Table of Contents

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

 

FORM 20-F

 

(Mark One)

 

       REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934

 

OR

 

x       ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2019

 

OR

 

       TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from ____________ to __________.

 

OR

 

       SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

Date of event requiring this shell company report _____________

 

Commission file number: 001-37678

 

SPI Energy Co., Ltd.
(Exact name of Registrant as specified in its charter)

 

N/A
(Translation of Registrant’s name into English)

 

Cayman Islands
(Jurisdiction of incorporation or organization)

 

#1128, 11/F, No. 52 Hung To Road, Kwun Tong, Kowloon,
Hong Kong SAR, China
(Address of principal executive offices)

 

Xiaofeng Peng, Chief Executive Officer
4677 Old Ironsides Drive, Suite 190,

Santa Clara, CA 95054

Telephone: +1 408-919-8000
Fax: +1 888-633-0309

 

Email: denton.peng@spigroups.com

 

(Name, Telephone, E-mail and/or Facsimile number and Address of Company Contact Person)

 

Securities registered or to be registered pursuant to Section 12(b) of the Act.

 

Title of each class Trading Symbol Name of each exchange on which registered
Ordinary Shares, par value $0.0001 per share SPI (The NASDAQ Global Select Market)

 

Securities registered or to be registered pursuant to Section 12(g) of the Act.

 

None
(Title of Class)

 

Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act.

 

None
(Title of Class)

 

Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report.

 

14,837,469 ordinary shares as of June 29, 2020

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.

 

Yes     x No

 

If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.

 

Yes      x No

 

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 every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).

 

x Yes      No

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth company. See definition of “large accelerated filer,” “accelerated filer,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer Accelerated filer Non-accelerated filer x
    Emerging Growth Company

 

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

 

† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.

 

Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐

 

Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:

 

U.S. GAAP x International Financial Reporting Standards as issued by the International Accounting Standards Board Other

 

If “Other” has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has elected to follow.

 

Item 17       Item 18

 

If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).

 

Yes     x No

 

 

     

 

 

Explanatory Note

 

As a result of the global outbreak of the COVID-19, SPI Energy Co., Ltd. (the “Company”) was unable to meet the original filing deadline of this Annual Report on Form 20-F (the “Annual Report”). The Company’s business and facilities are located in Australia, Italy, US, Greece, Hong Kong and Japan. In order to avoid the risk of the virus spreading, the Company has been following the recommendations of local health authorities to minimize exposure risk for its employees, including the temporary closures of its corporate offices, having employees work remotely and travel restrictions or suspension. As a result, the Annual Report could not be completed by the original filing deadline.

 

Because the outbreak of COVID-19 prevented the Company from filing the Annual Report on a timely basis, the Company relied on the order issued by the U.S. Securities and Exchange Commission dated March 25, 2020 (Release No. 34-88465) (the “SEC Order”), providing conditional relief to public companies that are unable to timely comply with their filing obligations as a result of the outbreak of COVID-19 and extending the original due date by 45 days as permitted by the SEC Order.

 

 

 

 

 

 

     

 

 

Table of Contents

 

CONVENTIONS THAT APPLY TO THIS ANNUAL REPORT 1
   
PART I   2
     
ITEM 1. IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS 3
ITEM 2. OFFER STATISTICS AND EXPECTED TIMETABLE 3
ITEM 3. KEY INFORMATION 3
ITEM 4. INFORMATION ON THE COMPANY 29
ITEM 5. OPERATING AND FINANCIAL REVIEW AND PROSPECTS 44
ITEM 6. DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES 58
ITEM 7. MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS 66
ITEM 8. FINANCIAL INFORMATION 66
ITEM 9. THE OFFER AND LISTING 69
ITEM 10. ADDITIONAL INFORMATION 70
ITEM 11. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK 77
ITEM 12. DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES 78
     
PART II   79
     
ITEM 13. DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES 79
ITEM 14. MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS 79
ITEM 15. CONTROLS AND PROCEDURES 80
ITEM 16. RESERVED 82
ITEM 16A. AUDIT COMMITTEE FINANCIAL EXPERT 82
ITEM 16B. CODE OF ETHICS 82
ITEM 16C. PRINCIPAL ACCOUNTANT FEES AND SERVICES 82
ITEM 16D. EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES 83
ITEM 16E. PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS 83
ITEM 16F. CHANGE IN REGISTRANT’S CERTIFYING ACCOUNTANT 83
ITEM 16G. CORPORATE GOVERNANCE 83
ITEM 16H. MINE SAFETY DISCLOSURE 83
     
PART III   84
     
ITEM 17. FINANCIAL STATEMENTS 84
ITEM 18. FINANCIAL STATEMENTS 84
ITEM 19. EXHIBITS 84

 

 

 

  i  

 

 

CONVENTIONS THAT APPLY TO THIS ANNUAL REPORT

 

Unless otherwise indicated and except where the context otherwise requires, references in this annual report on Form 20-F to:

 

· “we,” “us,” “our Company,” “our” or “SPI Energy” refer to SPI Energy Co., Ltd., a Cayman Islands holding company and its subsidiaries or any of them, or where the context so requires, in respect of the period before our Company became the holding company of its present subsidiaries, such subsidiaries as if they were subsidiaries of our Company at the relevant time;
· “2017,” “2018” and “2019” refers to our fiscal years ended December 31, 2017, 2018 and 2019, respectively;
· “ADSs” refers to the American depositary shares, each representing ten ordinary shares, which were listed on the NASDAQ Global Select Market under the symbol of “SPI” between January 19, 2016 and September 18, 2017;
· “AUD” or “Australian Dollar” refers to the legal currency of Australia;
· “BT model” refers to our build-and-transfer model;
· “China” and “PRC” refer to the People’s Republic of China, excluding, for purposes of this annual report, Hong Kong and Macau special administrative regions and Taiwan;
· “DG” refers to distributed generation;
· “EPC” refers to engineering, procurement and construction services;
· “EUR” or “Euro” refers to the legal currency of the countries comprising the euro area;
· “British Pound” or “GBP” refers to the legal currency of the United Kingdom;
· “Japanese Yen” or “JPY” refers to the legal currency of Japan;
· “FIT” refers to feed-in tariff(s);
· “IPP model” refers to our independent power producer model;
· “LDK” refers to LDK Solar Co., Ltd.;
· “O&M” refers to operating and maintenance;
· “PP”refers to power purchase agreement(s);
· “PV” refers to photovoltaic;
· “Redomicile Merger” refers to the redomicile of Solar Power, Inc. to the Cayman Islands through a merger with and into a wholly-owned subsidiary of SPI Energy Co., Ltd., which was completed on January 4, 2016;
· “RMB” or “Renminbi” refers to the legal currency of China;
· “Shares” or “ordinary shares” refers to our ordinary shares, par value $0.0001 per share;
· “SPI” refers to Solar Power, Inc., a company incorporated under the laws of California;
· “U.K.” refers to the United Kingdom;
· “U.S.” refers to the United States of America;
· “U.S. dollar” or “$” refers to the legal currency of the United States of America; and
· “watt” or “W” refers to the measurement of total electrical power, where “kilowatt” or “kW” means one thousand watts, “megawatt” or “MW” means one million watts and “gigawatt” or “GW” means one billion watts.

 

Names of certain companies in this annual report are translated or transliterated from their original Chinese legal names.

 

Discrepancies in any table between the amounts identified as total amounts and the sum of the amounts listed therein are due to rounding.

 

Share and per share amounts reflect a one-for-ten reverse stock split that took place in November 2017 and a one-for-ten reverse stock split that took place on November 2018.

 

The conversion of amounts of Australian Dollars, Euros and Renminbi, respectively, into U.S. dollars in this annual report, made solely for the convenience of readers, is based on the noon buying rates in the city of New York for cable transfers of Australian Dollars, Euros, British Pounds, Japanese Yen and Renminbi, respectively, as certified for customs purposes by the Federal Reserve Bank of New York as of December 31, 2019, which was AUD 0.7030 to $1.00, EUR0.8907 to $1.00, GBP0.7536 to $1.00, JPY108.67 to $1.00 and RMB6.9618 to $1.00, respectively, unless indicated otherwise. No representation is intended to imply that the Australian Dollar, Euro, British Pounds, Japanese Yen or Renminbi could have been, or could be, converted, realized or settled into U.S. dollars at the foregoing rates or any other rate.

 

 

  1  

 

 

PART I

 

Safe Harbor

 

This annual report on Form 20-F for the fiscal year ended December 31, 2019, and information we provide in our press releases, telephonic reports and other investor communications, including those on our website, contains forward-looking statements within the meaning of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the Securities Act of 1933, as amended (the “Securities Act”), which are subject to risks, uncertainties, and assumptions that are difficult to predict. All statements in this annual report on Form 20-F, other than statements of historical fact, are forward-looking statements. These forward-looking statements are made pursuant to safe harbor provisions of the Private Securities Litigation Reform Act of 1995.

 

The forward-looking statements include statements, among other things, with respect to anticipated future events, including anticipated trends and developments in and management plans for our business and the markets in which we operate and plan to operate; future financial results, operating results, revenues, gross profit, operating expenses, projected costs, and capital expenditures; sales and marketing initiatives; competitive position; and liquidity, capital resources, and availability of future equity capital on commercially reasonable terms.

 

Forward-looking statements can be identified by the use of words such as “expect,” “plan,” “will,” “may,” “anticipate,” “believe,” “estimate,” “should,” “intend,” “forecast,” “project” the negative or plural of these words, and other comparable terminology. Our forward-looking statements are only predictions based on our current expectations and our projections about future events. All forward-looking statements included in this annual report on Form 20-F are based upon information available to us as of the filing date of this annual report on Form 20-F. You should not place undue reliance on these forward-looking statements. We undertake no obligation to update any of these forward-looking statements for any reason.

 

We have identified factors that could cause actual plans or results to differ materially from those included in any forward looking statements. These factors include, but are not limited to, the following:

 

  · an inability to realize expected benefits of the restructuring within the anticipated time frame, or at all;
     
  · changes in tax law, tax treaties or tax regulations or the interpretation or enforcement thereof, including
     
  · taxing authorities not agreeing with our assessment of the effects of such laws, treaties and regulations;
     
  · an inability to execute any of our business strategies; and
     
  · such other risk factors as may be discussed in our reports filed with the SEC.

 

These forward-looking statements involve known and unknown risks, uncertainties, and other factors that may cause our actual results, levels of activity, performance, or achievements to differ materially from those expressed or implied by these statements. These factors include the matters discussed in the section entitled “Item 3. Key Information—D. Risk Factors” and elsewhere in this annual report on Form 20-F. You should carefully consider the risks and uncertainties described under this section.

 

 

 

  2  

 

 

ITEM 1.                    IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS

 

Not Applicable.

 

ITEM 2.                    OFFER STATISTICS AND EXPECTED TIMETABLE

 

Not Applicable.

 

ITEM 3.                    KEY INFORMATION

 

A. Selected Financial Data

 

Our Selected Consolidated Financial Data

 

The following selected consolidated statements of operations data for the years ended December 31, 2017, 2018 and 2019 and the selected consolidated balance sheet data as of December 31, 2018 and 2019 are derived from our audited consolidated financial statements included elsewhere in this annual report. The selected consolidated statements of operations data for the years ended December 31, 2015 and 2016 and the consolidated balance sheet data as of December 31, 2015, 2016 and 2017 are derived from our audited consolidated financial statements not included in this annual report. The selected consolidated financial data should be read in conjunction with, and are qualified in their entirety by reference to, our audited consolidated financial statements and related notes and “Item 5. Operating and Financial Review and Prospects” included elsewhere in this annual report. Our consolidated financial statements are prepared and presented in accordance with accounting principles generally accepted in the United States of America, or U.S. GAAP. The historical results are not necessarily indicative of results to be expected in any future periods.

 

On January 1, 2017, we deconsolidated Sinsin Renewable Investment Limited, a Malta company (“Sinsin”) due to loss of control.

 

On December 10, 2018, the SPI China (HK) Limited and all China business were divested.

 

 

  3  

 

 

    For the year ended December 31,  
    2015     2016     2017     2018     2019  
              *       *       *          
Consolidated Statements of Operations Data:                                        
Net sales:                                        
Net sales     190,510       114,602       121,520       125,582       97,883  
Total net sales     190,510       114,602       121,520       125,582       97,883  
Cost of goods sold:                                        
Cost of goods sold     176,469       102,147       111,428       114,525       90,693  
Provision for losses on contracts     5,932       385                    
Total cost of goods sold     182,401       102,532       111,428       114,525       90,693  
Gross profit     8,109       12,070       10,092       11,057       7,190  
Operating expenses:                                        
General and administrative     76,747       13,728       13,994       12,225       15,158  
Sales, marketing and customer service     39,428       3,238       2,944       2,285       2,398  
Provision (reverse) for doubtful accounts, notes and other receivables     45,328       7,106       1,693       (501 )     4,115  
Impairment charges on property, plant and equipment     10,853       79,598       740             2,235  
Impairment charges on project assets                             2,455  
Total operating expenses     172,356       103,670       19,371       14,009       26,361  
Operating loss     (164,247 )     (91,600 )     (9,279 )     (2,952 )     (19,171 )
Other income (expense):                                        
Interest expense     (9,275 )     (3,494 )     (8,087 )     (6,665 )     (3,923 )
Interest income     2,218       802       384       320       155  
Gain on extinguishment of convertible bonds                 7,121              
Change in fair value of derivative liability     (15,650 )     (2,328 )                 285  
Reversal (accrual) of tax penalty                 (9,670 )           6,890  
Gain on troubled debt restructuring                       1,887        
Loss on investment in affiliates     (2,493 )     (6,296 )     (2,214 )            
Net foreign exchange gain(loss)     4,412       646       (5,141 )     1,118       1,261  
Others     628       847       509       487       (553 )
Total other income (expense), net     (20,160 )     (9,823 )     (17,098 )     (2,853 )     4,115  
Loss from continuing operations before income taxes     (184,407 )     (101,423 )     (26,377 )     (5,805 )     (15,056 )
Income taxes expense     673       606       137       332       92  
Loss from continuing operations     (185,080 )     (102,029 )     (26,514 )     (6,137 )     (15,148 )
Loss from discontinued operations, net of tax           (118,939 )     (64,445 )     (6,122 )      
Net loss     (185,080 )     (220,968 )     (90,959 )     (12,259 )     (15,148 )
Net loss per common share:                                        
Basic and Diluted     (30 )     (34 )     (13 )     (1.7 )     (1.20 )
Net loss from continuing operations per common share:                                        
Basic and Diluted     (30 )     (16 )     (4 )     (0.9 )     (1.20 )
Net loss from discontinued operations per common share:                                        
Basic and Diluted           (18 )     (9 )     (0.8 )      
Weighted average number of common shares used in computing per share:**                                        
Basic and Dilutive     6,120,471       6,415,616       6,826,633       7,262,023       12,733,062  

 

 

 

  4  

 

 

    As of December 31,  
    2015     2016     2017     2018     2019  
    *     *     *     *        
Summary Consolidated Balance Sheet Data:                                        
Cash and cash equivalents continuing     6,021       2,024       2,238       4,141       2,764  
Current assets of continuing operations     91,869       70,160       78,879       73,883       56,489  
Current assets of discontinued operations     301,700       84,173       52,433              
Total current assets     393,569       154,333       131,312       73,883       56,489  
Total assets     709,570       361,818       317,311       188,728       178,853  
Current liabilities of continued operations     156,976       160,449       172,990       166,531       170,017  
Current liabilities of discontinued operations     316,575       170,079       213,316              
Total current liabilities     473,551       330,528       386,306       166,531       170,017  
Total liabilities     493,012       374,746       414,955       188,658       184,328  
Total equity (deficit)     216,558       (12,928 )     (97,644 )     70       (5,475 )
Total liabilities and equity     709,570       361,818       317,311       188,728       178,853  

 

* The China business was discontinued operations after the disposal, the consolidated statements of operations data for the years ended December 31, 2016 and 2017 and the consolidated balance sheet data as of December 31, 2015, 2016 and 2017 were reclassified to conform to current year presentation, while the consolidated statements of operations for the years ended December 31, 2015 was not reclassified as management considered it not cost-effective to do so.

 

**The shares are presented on a retroactive basis to reflect the Company’s Reverse Stock Splits.

 

Exchange Rate Information

 

Not Applicable.

 

B. Capitalization and Indebtedness

 

Not Applicable.

 

C. Reasons for the Offer and Use of Proceeds

 

Not Applicable.

 

D. Risk Factors

 

Our business, financial condition and results of operations are subject to various changing business, competitive, economic, political and social conditions worldwide. In addition to the factors discussed elsewhere in this annual report, the following are some of the important factors that could adversely affect our operating results, financial condition and business prospects, and cause our actual results to differ materially from those projected in any forward-looking statements.

 

Risks Related to Our Business and Industry

 

We have incurred net losses, experienced net cash outflows from operating activities and recorded working capital deficit. If we do not effectively manage our cash and other liquid financial assets and execute our liquidity plan, we may not be able to continue as a going concern.

 

We incurred net losses of $91.0 million, $12.3 million and $15.1 million in 2017, 2018 and 2019, respectively. We had an accumulated deficit of $585.4 million as of December 31, 2019. We also had a working capital deficit of $113.5 million as of December 31, 2019. In addition, we have substantial amounts of debts that became due in 2017, 2018 and 2019.

 

 

 

  5  

 

 

Historically, we have relied primarily on cash from our operations, bank borrowings, private placements and financial leases to fund our operations. We expect that our existing cash and cash equivalents and cash flows from operating and financing activities will be sufficient to meet our anticipated working capital requirements and capital expenditure for at least the next 12 months, but generally inadequate to pursue new project acquisition or development initiatives without additional capital. The timing and amount of our working capital and capital expenditure requirements may vary significantly depending on numerous factors, such as the timeliness of payments from our customers. We have filed liens to secure customer payments for each of our solar projects, but there is no assurance that such payments will be timely collected. We have also enhanced our collection efforts and undertaken various measures to collect outstanding payments from customers, damages from legal actions and other payments due to us. The volatility and potential deterioration of the PV market conditions and the overall global economies have also added uncertainties regarding the sustainability of the PV industry and adverse impact on the demand for our products. Without access to sufficient level of capital from operations or through bank borrowings or other sources, we may not be able to execute our growth strategy or pursue additional projects, or may not even be able to continue as a going concern. These doubts and uncertainties may create concerns for our creditors, suppliers, customers and other counterparties, and cause them to make it more difficult for us to raise our financing, conduct our business and meet our debt and other obligations.

 

The report of our independent registered public accounting firm on our financial statements as of and for the year ended December 31, 2019 includes discussions on our ability to continue as a going concern. Although we have formulated a liquidity plan as summarized under Note 2 to our consolidated financial statements appearing elsewhere in this annual report, we cannot assure you that we will be able to successfully execute this liquidity plan. The amount of liquidity that we need may be greater than we currently anticipate as a result of additional factors and events beyond our control, such as global economic slowdown, continued downturn in the global PV market, potential financial crises globally or in any region where we conduct a significant portion of our business, changes in the regulatory and business environments, including international trade-related sanctions, which may prevent us from operating normally or from effectively competing in the PV industry. All of these and other factors and occurrences may increase our cash requirements and make us unable to satisfy our liquidity requirements and we may, as a result, be unable to continue as a going concern.

 

We have revised the assumptions underlying our existing operating plans and recognized the fact that additional actions were needed to reposition our operations to minimize our cash outflows. Therefore, we are undertaking a number of initiatives in order to conserve or generate cash on an incremental basis in 2019. For a detailed discussion of these initiatives and strategies, please see “Item 5. Operating and Financial Review and Prospects—B. Liquidity and Capital Resources— Capital Resources and Material Known Facts on Liquidity.

 

However, there is no assurance that these initiatives and strategies will be successfully implemented, or even if successfully implemented, our cash position and our operational efficiency will be improved. In the event that our business initiatives and strategies do not achieve the expected results, our business, financial conditions, results of operations and liquidity position may be materially and adversely affected. Furthermore, we have identified several business related risk factors, such as compliance with laws and regulations, contingent liabilities arising from litigations, suspected related party transactions and unusual transactions, which could cause cash position to further deteriorate.

 

We are in default on a number of our obligations, which could result in our being forced to cease operations if we are unable to reach satisfactory settlement with applicable counterparties.

 

We have outstanding convertible bonds of $55.0 million under a convertible bond agreement (“Convertible Bond Agreement”) with certain bond holders, which were defaulted in June 2016 and not repaid through December 31, 2017. On February 12, 2017, we entered into the first amendment agreement (the “1st Amendment”) with Union Sky Holding Group Limited (“Union Sky”), one of the holders of our convertible bonds, to extend the maturity date of the bonds, pursuant to which the repayment of US$6.6 million, US$6.7 million and US$6.7 million of the principal amount of the convertible bond were due by April 30, 2017, January 30, 2018 and January 30, 2019, respectively. Union Sky has the option to convert those outstanding amounts under the Convertible Bond Agreement and its 1st Amendment into the equity interest in our company at a conversion price of $1.372 per share. We were not able to make the first payment as of April 29, 2017. We have been in communications with the holders of our convertible bonds, including Union Sky, to further extend the maturity date of the bonds, and subsequently on June 29, 2018, the Company entered into another amendment agreement (the “2nd Amendment”) with the Union Sky and Magical Glaze Limited (the “MGL”), a company incorporated under the laws of British Virgin Islands, pursuant to which the Union Sky transferred all the rights and obligations under the Convertible Bond Agreement and 1st Amendment to MGL, and the maturity date of such bond was extended. According to the 2nd Amendment, the repayments of US$6.6 million, US$6.7 million and US$6.7 million of the principal amount of the bond and interest thereon should be due by December 2019, June 2020 and December 2020, respectively. As of the date of this annual report, we missed the December 2019 repayment and expect to miss the June 2020 repayment. We have been working on negotiating a third amendment to the Convertible Bond Agreement but have not yet obtained a further extension from the bond holders.

 

 

 

  6  

 

 

If we are unable to enter into settlement arrangements with all of the parties with whom we are in default, we could be forced to cease operations.

 

Certain minority stockholders of Solar Juice Pty Ltd (“Solar Juice Australia”), our 80% owned subsidiary in Australia, took certain actions that, if effective, would result in us owning only a minority interest in Solar Juice Australia, which would mean that we no longer have control of Solar Juice Australia and no longer be able to consolidate its financial results into our financial statements.

 

In May, 2020, certain minority stockholders of Solar Juice Australia took certain actions that, if effective, would result in our owning only a minority interest in Solar Juice Australia, which could cause us to no longer be able to control Solar Juice Australia or consolidate its financial results into our financial statements. This would result in a material adverse effect on our financial results since Solar Juice Australia accounts for 82.3% of our revenues and 15.7% of our assets.

 

In May 2020, Solar Juice Co. Ltd. (“Solar Juice Co”),a wholly owned subsidiary of the Company, in its capacity as shareholder of Solar Juice Australia together with Mr. Kun Fong Lee and Mr. Jinhan Zhou (who hold shares in Solar Juice as trustee for Solar Juice Co) ("SPI Shareholders") commenced proceedings in the Federal Court of Australia as plaintiffs against its other shareholders and some of its other directors and purported directors and against Solar Juice Australia ("Defendants") in relation to a purported new rights issue undertaken by Solar Juice Australia, the purported removal by those other shareholders of Mr. Kun Fong Lee and Mr. Jinhan Zhou as directors of Solar Juice Australia and the purported appointment of an additional director. The SPI Shareholders allege that the purported new rights issue and the subsequent purported removal and appointment of directors are invalid and ineffective and therefore should be set aside. If effective, the purported rights issue will result in the SPI Shareholders' shareholding in Solar Juice Australia being reduced from 80% to 40%.

 

If our lawsuit is not successful, our financial results and stock price will be materially adversely affected.

 

We conduct our business in diverse locations around the world and are subject to economic, regulatory, social and political risks internationally and in the regions where we operate.

 

We currently conduct our business operations in the U.S., Japan, U.K., Greece, Italy and Australia, and as of June 29, 2020, we own and operate 16.8 MW of solar projects and have 19.636 MW of solar projects under construction across the world. Our business is therefore subject to diverse and constantly changing economic, regulatory, social and political conditions in these markets.

 

Operating internationally exposes us to a number of risks globally and in each of the markets where we operate, including, without limitation:

 

  · global economic and financial conditions, including the stability of credit markets, foreign currency exchange rates and their fluctuations;
     
  · the supply and prices of other energy products such as oil, coal and natural gas in the relevant markets;
     
  · changes in government regulations, policies, taxes and incentives, particularly those concerning the electric utility industry and the solar industry;
     
  · reconciling heterogeneous, complex or contradictory regulations across different jurisdictions, international trade policies, including trade restrictions, embargoes and local sourcing or service requirements;
     
  · political risks, including risks of expropriation and nationalization of assets, potential losses due to civil unrests, acts of terrorism and war, regional and global political or military tensions, strained or altered foreign relations;
     
  · compliance with diverse and complex local environmental, safety, health, labor and other laws and regulations, which can be onerous and costly, as the magnitude, complexity and continuous amendments to the laws and regulations are difficult to predict and liabilities, costs, obligations and requirements associated with these laws and regulations may be substantial;

 

 

 

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  · dependence on local governments, utility companies and other entities for electricity, water, telecommunications, transportation and other utilities or infrastructure needs;
     
  · difficulties associated with local operating and market conditions, particularly regarding customs, taxation and labor;
     
  · difficulties for our senior management to effectively supervise local management teams in diverse locations;
     
  · increased difficulty in protecting our intellectual property rights and heightened risk of intellectual property disputes;
     
  · failure of our contractual counter-parties to honor their obligations to us, and potential disputes with regulatory authorities, customers, contractors, suppliers, local residents or communities;
     
  · obtaining fair access and legal remedies or benefits through local judicial or administrative bodies; and
     
  · failure to adapt to effectively to local competitive environments.

 

If economic recovery is slow in the markets where we operate, our business, financial condition, results of operations and prospects could be materially and adversely affected. Moreover, as we expand into additional markets, we may face unfamiliar regulatory regimes, business practices, governmental policies and industry conditions. As a result, our experience and knowledge of our existing markets may not be applicable to new markets that we enter, requiring significant time and resources to adapt our business to these unfamiliar markets. To the extent that our diverse business operations are affected by unexpected and adverse economic, regulatory, social and political conditions, we may experience business disruptions, loss of assets and personnel and other indirect losses and our business, financial condition and results of operations both locally and internationally could be materially and adversely affected.

 

The reduction, modification, delay or discontinuation of government subsidies and other economic incentives for the solar industry may reduce the profitability or viability of our solar projects and materially adversely affect our business.

 

At present, solar power is not cost competitive with other energy sources in our existing markets and the new markets we plan to expand into. For a variety of technological and economic reasons, the cost of generating electricity from solar energy in these markets currently exceeds and, absent significant changes in technological or economic circumstances, will continue to exceed the cost of generating electricity from conventional and certain other competing energy sources. Therefore, government subsidies and incentives, primarily in the form of feed-in tariffs, or FIT, price support schemes, tax credits, net metering and other incentives to end users, distributors, system integrators and manufacturers of solar products are generally required to enable companies such as us to successfully operate in these markets.

 

Government subsidies and incentives vary by geographic market. The availability and size of such subsidies and incentives depend, to a large extent, on political and policy developments relating to environmental concerns and other macro-economic factors. These government subsidies and incentives are expected to gradually decrease in scope or be discontinued as solar power technology improves and becomes more affordable relative to other types of energy. Reductions have occurred in certain countries where we have operations, and subsidies and incentives may be further reduced or discontinued in countries where we currently or intend to operate. Reductions may apply retroactively to existing solar projects, which could significantly reduce the value of our existing solar projects and other businesses. Even if reductions in government subsidies and economic incentives apply only to future solar projects, our operations in that country could be materially and adversely affected as we would not be able to leverage our existing presence to drive further growth. Moreover, certain solar subsidies and incentives are designed to expire or decline over time, are limited in total funding, require renewal from regulatory authorities or impose certain investment or performance criteria on our business partners or us, which we may not be able to satisfy. In addition, we may not be able to upgrade our technologies rapidly enough to compensate for foreseeable reductions in government subsidies and incentives. As a result, a significant reduction in the scope or discontinuation of government incentive programs in our existing and target markets could have a material adverse effect on our business, financial condition, results of operations and prospects.

 

 

 

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Misconduct and errors by our employees could harm our business and reputation.

 

We are exposed to many types of operational risks, including the risk of misconduct, errors and fraud by our employees and key management personnel. Our training, resources, technologies and fraud detection tools may be insufficient to accurately detect and prevent fraud. Significant increases in fraudulent activity could negatively impact our brand and reputation, which could increase our costs and expenses. High profile fraudulent activity could even lead to regulatory intervention, and may divert our management’s attention and cause us to incur additional expenses and costs. If any of the foregoing were to occur, our results of operations and financial condition could be materially and adversely affected.

 

Changes to our business strategy provide a limited history on which to base our prospects and anticipated results of operations. Our historical operating results may not serve as an adequate basis to evaluate our future prospects and results of operations.

 

For the past few years, we have expanded our global project development business under our independent power producer model, or IPP model, or our build-and-transfer model, or BT model, by ramping up our portfolio of solar projects. This limited operating history of developing and operating solar projects under our IPP and BT model may not be a reliable indicator of our future performance.

 

Given our limited operating history under the current business model, we may not be able to ascertain and allocate the appropriate financial and human resources necessary to grow these new business areas. We may invest considerable capital into growing these businesses but fail to address market or customer demands or otherwise fail to achieve satisfactory financial return. In particular, our results of operations, financial condition and future success depend largely on our ability to continue to identify suitable projects that complement our solar project pipeline through acquisitions and secondary development, as well as our ability to obtain the required regulatory approvals, financing and cost-effective construction services for these acquisitions. We must also sustainably manage and operate the solar projects that we acquire, develop and hold under our IPP model, or successfully identify buyers for solar projects under our BT model. In addition, in expanding into these new business areas, we may be competing against companies that have substantially more experience than we do with respect to solar projects under our IPP and BT models. If we are unable to achieve growth in these new business areas, our overall growth and financial performance may be inferior to our competitors and our operating results could be adversely impacted.

 

 Due to the change in our strategic focus and revenue generating efforts in 2014, our prior operating history and historical operating results may not provide a meaningful basis for evaluating our business, financial performance and prospects.

 

Period-to-period comparisons of our operating results and our results of operations for any period should not be relied upon as an indication of our performance for any future period. We have incurred net losses since our inception and as of December 31, 2019, we had an accumulated deficit of approximately $585.4 million. While we have had decreasing losses year over year, we may not be able to achieve or maintain profitability in the near future.

 

We may not be able to acquire additional solar projects to grow our project portfolio, or effectively integrate or realize the anticipated benefits of our acquisitions.

 

Our current business strategy includes plans to further increase the number of solar projects we own and operate. Since 2014, we have significantly expanded our operations through acquisitions of solar projects across different development stages in Japan, the U.S., the U.K., Greece and Italy, and we may acquire additional businesses, products or technologies or enter into joint ventures or other strategic initiatives in the future. Accordingly, our ability to execute our expansion strategies depends on our ability to identify suitable investment or acquisition opportunities, which is subject to numerous uncertainties. We may not be able to identify favorable geographical markets for expansion or assess local demand for solar power, identify a sufficient number of projects as contemplated, or secure project financing and refinancing on reasonable terms for the contemplated acquisitions. In addition, our competitors may have substantially greater capital and other resources than we do, and may be able to pay more for the acquisition targets we identify and may be able to identify, evaluate, bid for and acquire a greater number of projects than our resources permit.

 

 

 

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Furthermore, we may not realize the anticipated benefits of our acquisitions and each transaction involves numerous risks, including, among others:

 

  · difficulty in assimilating the operations and personnel of the acquired business;
     
  · difficulty in effectively integrating the acquired assets, technologies or products with our operations;
     
  · difficulty in maintaining controls, procedures and policies during the transition and integration;
     
  · disruption of our ongoing business and distraction of our management from daily operations;
     
  · inability to retain key technical and managerial personnel and key customers, suppliers and other business partners of the acquired business;
     
  · inability to achieve the financial and strategic goals for the acquired and combined businesses as a result of insufficient capital resources or otherwise;
     
  · incurring acquisition-related costs or amortization costs for acquired intangible assets that could impact our operating results;
     
  · potential failure of the due diligence processes to identify significant issues with product quality, legal and financial liabilities, among others;
     
  · potential failure to comply with local regulatory requirements or to obtain construction, environmental and other permits and approvals from governmental authorities in a timely manner or at all, which could delay or prevent such acquisitions; and
     
  · potential failure to connect the acquired solar projects to the local grid on schedule and within budget, to ensure sufficient grid capacity for the life of the solar projects, or to collect FIT payments and other economic incentives as expected from local government authorities.

 

Acquisitions of companies are inherently risky, and ultimately, if we do not generate expected economic returns from the acquired businesses, or become responsible for any preexisting liabilities related to the acquired businesses, we may not fully realize the anticipated benefits of the acquisitions, which could adversely affect our business, financial condition or results of operations.

 

Our substantial indebtedness could adversely affect our business, financial condition and results of operations.

 

We require a significant amount of cash to meet our capital requirements and fund our operations, including payments to suppliers for PV modules and components and to bank for project loan. As of December 31, 2019, we had $2.9 million in outstanding short-term borrowings (and the current portion of long-term borrowings) and $6 million in outstanding long-term borrowings (excluding the current portion).

 

Our existing debt may have significant consequences on our operations, including:

 

  · reducing the availability of our cash flow to fund working capital, capital expenditures, acquisitions and other general corporate purposes as a result of our debt service obligations;
     
  · limiting our ability to obtain additional financing;
     
  · making us more vulnerable to changes in our business, our industry and the general economy;
     
  · potentially increasing the cost of any additional financing; and
     
  · limiting our ability to make future acquisitions.

 

 

 

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Any of these factors and other consequences that may result from our substantial indebtedness could have an adverse effect on our business, financial condition and results of operations as well as our ability to meet our payment obligations under our existing debt facilities. Our ability to meet our payment obligations under our existing debt facilities depends on our ability to generate significant cash flow in the future. This, to some extent, is subject to general economic, financial, competitive, legislative and regulatory factors as well as other factors that are beyond our control.

 

Our results of operations may be subject to fluctuations.

 

Before we achieve economies of scale in terms of our IPP projects and receive steady electricity generation income, our revenue in a given period will depend on the number of solar projects sold under our BT model and sale of PV modules and solar component, and therefore is subject to significant fluctuations. For instance, we may generate a significant portion of our revenues from the one-time sale of solar projects for certain periods. Moreover, certain aspects of our operations will also be subject to seasonal variations. For example, we may schedule significant construction activities to connect solar projects to the grids prior to a scheduled decrease in FIT rates in order to qualify for more favorable FIT policies.

 

Failure to manage our evolving business could have a material adverse effect on our business, prospects, financial condition and results of operations.

 

We intend to expand our business within our existing markets and in a number of selected new locations in the future. We also intend to expand our global project development business in the future. As our operations evolve, we expect to encounter additional challenges in our internal management, construction contracting management, investment and acquisition management, project management, project funding infrastructure and financing capabilities. Our existing operations, personnel, systems and internal control may not be adequate to support our business expansion and may require new investments in our internal management infrastructure. To manage the future growth of our operations, we will be required to improve our administrative, operational and financial systems, procedures and controls, and maintain, expand, train and manage a growing number of employees. In addition, we will need to hire and train additional project development personnel to manage our growing portfolio of IPP and BT projects. If we are unable to manage our growth effectively, we may not be able to take advantage of market opportunities, execute our business strategies successfully or respond to competitive pressures. As a result, our business, prospects, financial condition and results of operations could be materially and adversely affected.

 

We act as the general contractor for our customers for the provision of EPC services, and are subject to risks associated with construction, delays and other contingencies, which could have a material adverse effect on our reputation, business and results of operations.

 

Historically, we have generated a significant portion of our revenue from the provision of EPC services. We generally enter into fixed-price EPC contracts under which we act as the general contractor for our customers in connection with the installation of their solar power systems. All essential costs are estimated at the time of entering into the EPC contracts for a particular project, and are reflected in the overall fixed-price that we charge our customers. These cost estimates are preliminary and may or may not be covered by contracts between us or our subcontractors, suppliers or other parties to the project. In addition, we engage qualified and licensed subcontractors for the construction of our EPC projects. Shortages of such skilled labor could significantly delay a project or otherwise increase our costs. Should miscalculations in project planning or delay in execution occur (including those due to unexpected increases in inflation, commodity prices or labor costs), we may not be able to achieve our expected margins or recover our costs.

 

In addition, our EPC contracts generally provide for performance milestones. Delays in supply of PV module or components, construction delays, unexpected performance problems in electricity generation or other events may cause us to fail to meet these performance criteria, resulting in unanticipated and severe revenue and earnings losses and financial penalties. If we are unable to complete the development of a solar project, or fail to meet one or more agreed target construction milestone dates, any agreed upon system-level capacity or energy output guarantees or warranties (including, for some projects, twenty-five year performance warranties) or other terms under our EPC contracts, or the solar projects we develop cause grid interference or other damage, we may be subject to termination of such contracts or significant damages, penalties and/or other obligation under the EPC agreements or other agreements relating to the projects (including obligations to repair, replace and/or supplement additional modules and balance of system materials for the projects), particularly if our liabilities are not capped under the terms of such agreements, and we may not be able to recover our investment in the project. The occurrence of any of these events could have a material adverse effect on our reputation, business and results of operations.

 

 

 

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We generally recognize revenue from EPC services on a “cost-based input method” and payments are due upon the achievement of contractual milestones and any delay or cancellation of a project could adversely affect our business.

 

We generally recognize revenue from our EPC services on a “cost-based input method,” and as a result, revenues from our EPC services are driven by the performance of our contractual obligations, which is in turn generally driven by timelines of the installation of solar power systems at customer sites. Such arrangement could result in unpredictability of revenue and in the near term, a revenue decrease. As with any project-related business, there is potential for delays within any particular customer project. Variation of project timelines and estimates may impact our ability to recognize revenue in a particular period. In addition, certain EPC contracts may provide for payment milestones due at specified stages throughout the development of a project. Because we must invest substantially in a project in advance of achieving these milestones and receiving payments, delay or cancellation of a project could adversely affect our business and results of operations.

 

We may fail to comply with laws and regulations in the markets we operate.

 

The development, construction and operation of solar projects are highly regulated. We conduct our operations in many jurisdictions and are subject to different laws and regulations, including national and local regulations relating to building codes, taxes, safety, environmental protection, utility interconnection, metering and other matters. Our establish subsidiaries also have operations in these countries and jurisdictions that are required to comply with various local laws and regulations. While we strive to work with our local counsel and other advisers to comply with the laws and regulations of each jurisdiction where we operate, there have been, and may continue to be, instances of non-compliances such as late filings of annual accounts with the appropriate governmental authorities, failure to notify governmental authorities of certain transactions, failure to hold annual meetings as required, failure to register director or address changes or other local requirements which may result in fines, sanctions or other penalties against our non-complying subsidiaries and its directors and officers. While we do not believe our past and continuing non-compliances, singularly or in the aggregate, will have a material adverse effect on our business, financial condition or results of operations, we cannot assure you that similar or other non-compliances will not occur in the future which may materially and adversely affect our business, financial condition or results of operations.

 

We are responsible for obtaining a variety of approvals, permits and licenses from various authorities for our solar projects. The procedures for obtaining such approvals, permits and licenses vary from country to country, making it onerous and costly to adhere to the varying requirements and standards of individual localities. Failure to obtain the required approvals, permits or licenses or to comply with the conditions associated therewith may result in fines, sanctions, suspension, revocation or non-renewal of approvals, permits or licenses, or even criminal liabilities, which could material and adversely affect our business, financial condition and results of operations. In addition, new government regulations pertaining to our business or solar projects may result in significant additional expenses. We cannot assure you that we will be able to promptly and adequately respond to changes of laws and regulations in various jurisdictions, or that our employees and contractors will act in accordance with our internal policies and procedures. Failure to comply with laws and regulations where we develop, own and operate solar projects may materially and adversely affect our business, results of operations and financial condition. The market demand for solar power is strongly influenced by government regulations and policies concerning the electric utility industry as well as by policies promulgated by electric utilities in each of the markets we operate. These regulations and policies often relate to electricity pricing and technical interconnection of electricity generation. Customer purchases of alternative energy sources, including solar power technology, could be deterred by these regulations and policies, which may significantly reduce the demand for our PV solutions. For example, without a regulatory-mandated exception for solar power systems, utility customers are often charged interconnection or standby fees for putting distributed power generation on the electric utility grid or limit the production capacity to the grid. The county-level government may also levy additional tax related to land use or potential plants recovery that was not initially included during the development or construction phase. These fees could increase, rendering solar power less cost competitive in these markets and our PV solutions less desirable.

 

It is difficult to ensure ongoing compliance with the changing requirements of individual markets. Any new government regulations or utility policies pertaining to solar projects may result in significant additional expenses to us or other industry participants and as a result could cause a significant reduction in demand for our PV solutions.

 

 

 

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The solar industry faces competition from both conventional power industries and other renewable power industries.

 

The solar industry faces intense competition from all other players within the energy industry, including both conventional energy providers such as nuclear, natural gas and fossil fuels and other renewable energy providers, such as geothermal, hydropower, biomass, wind and nuclear energy. Other energy sources may benefit from innovations that reduce their costs and increase safety, and therefore improve their competitiveness. New natural resources may be discovered, or global economic, business or political developments may disproportionately benefit conventional energy sources or other renewable energy sources at the expense of solar. Governments may strengthen their support for other renewable energy sources and reduce their support for the solar industry. Changes in supply and demand of conventional energy sources or other energy sources may reduce the cost of such sources and render solar power less attractive. For instance, the recent decline in oil prices and prolong low prices have adversely impacted the competitiveness of solar energy. Failure for our customers, other business partners or us to compete with the providers of other energy sources may materially and adversely affect our business, results of operations and financial condition.

 

The market for solar project development is highly competitive.

 

There is currently intense competition in the solar industry, particularly in the downstream project development segment. Solar projects encounter competition from utilities, industrial companies and other independent power producers. In recent years, there has been increasing competition for the award of PPAs, which has in some markets resulted in an excess supply above designated reserve margins and has been contributing to the declining electricity prices in many markets. In light of these conditions, we may not be able to obtain PPAs for our new solar projects under our IPP model, and we may not be able to renew PPAs on the same terms and conditions upon expiration, particularly in terms of securing an electricity sale price that enables profitable operation or the sale of a project at anticipated value, if at all.

 

We have expanded our business to include global project development and may not have the same level of expertise and customer base as our competitors, which may affect our ability to successfully establish our presence in the global market. Our current or potential competitors may have greater operational, financial, technical, market share, scale, management or other resources than us in our existing or target markets. Our competitors may also enter into strategic alliances with other competitors to our detriment, or may ally with our suppliers or contractors, thereby limiting our procurement choices and our flexibility in project development. Our current or potential competitors may offer PV solutions comparable or superior to ours at the same or lower prices, or adapt more quickly to industry trends than we do. Increased competition may result in price reductions, reduced profit margins and loss of market share.

 

Technological advances in the solar industry could render our PV solutions uncompetitive or obsolete.

 

The solar industry is characterized by its rapid adoption and application of technological advances. This requires us to develop new PV solutions and enhance our existing PV solutions to keep pace with and respond effectively to evolving technologies, market conditions and customer demands. Our competitors may develop technologies more advanced and cost-effective than ours. We will need to invest substantially in research and development to maintain our market position and effectively compete in the future. Our failure to further refine or enhance our technologies could render our technologies uncompetitive or obsolete, which could reduce our market share and cause our revenues to decline.

 

In addition, we may invest in and implement newly-developed, less-proven technologies in our project development or in maintaining or enhancing our existing projects. There is no guarantee that these new technologies will perform or generate customer demand as anticipated. The failure of our new technologies to perform as anticipated may materially and adversely affect our business and results of operations.

 

If sufficient demand for solar projects develops slower than we anticipate, develops in ways inconsistent with our strategy, or fails to develop at all, our business, financial condition, results of operations and prospects could be materially and adversely affected.

 

The solar power market worldwide is at a relatively early stage of development compared to conventional power markets and other renewable power markets, such as that for hydropower. Thus, trends in the solar industry are based only on limited data and may be unreliable. Many factors may affect the demand for solar projects worldwide, including:

 

 

 

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  · the cost and availability of project financing for solar projects;
     
  · fluctuations in economic and market conditions that improve the viability of competing energy sources;
     
  · the cost-effectiveness, performance and reliability of solar projects compared to conventional and other non-solar energy sources;
     
  · the availability of grid capacity allocated to solar power;
     
  · political opposition to solar power due to environmental, land use, safety or other local concerns;
     
  · the availability of government subsidies and incentives to support the development of the solar industry;
     
  · public perceptions of the utility, necessity and importance of solar power and other renewable energies;
     
  · the success of other alternative energy generation technologies, such as fuel cells, wind power and biomass; and
     
  · utility and grid regulations that present unique technical, regulatory and economic barriers to the development, transmission and use of solar energy.

 

Our analysis and predictions concerning the future growth of the solar industry are based on complex facts and circumstances and may be incorrect. If market demand for solar projects in our existing or target markets fails to develop according to our expectations, our business, financial condition, results of operations and prospects could be materially and adversely affected.

 

Our growth prospects and future profitability and our ability to continue to acquire solar projects depends on the availability of sufficient financing on terms acceptable to us.

 

The development of solar projects requires significant upfront cash investments, including the costs of permit development, construction and associated operations. Since 2014, we have been expanding our solar project portfolio primarily by acquiring solar projects across different development stages. Such expansion strategy requires significant upfront capital expenditures which, depending on the respective development stages of the acquired projects, may not be recouped for a significant period of time. As a result, we are required to pursue a wide variety of capital resources to fund our operations, including private placements, bank loans, financial leases and other third-party financing options.

 

Our ability to obtain sufficient financing is subject to a number of uncertainties, including:

 

  · our future financial condition, results of operations and cash flows;
     
  · the general condition and liquidity of global equity and debt capital markets;
     
  · local regulatory and government support for solar power in markets where we operate, such as through tax credits and FIT schemes;
     
  · the availability of credit lines from banks and other financial institutions;
     
  · economic, political, social and other conditions in the markets where we operate;
     
  · our level of indebtedness and ability to comply with financial covenants under our debt financing; and
     
  · tax and securities laws which may hamper our ability to raise capital.

 

 

 

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Due to these or other reasons, we may not be successful in obtaining the required funds for future acquisitions. Furthermore, we may be unable to refinance our bank borrowings on favorable terms, or at all, upon the expiration or termination of our existing loan facilities. In addition, rising interest rates could adversely affect our ability to secure financing on favorable terms. Our failure in securing suitable financing sources in a timely manner or at all, or on commercially acceptable terms, could significantly limit our ability to execute our growth strategies or future acquisitions, and may have a material adverse effect on our business, financial condition, results of operations and cash flows.

 

The significant period of time between our upfront investments in solar projects and their commencement of revenue generation could materially and adversely affect our liquidity, business and results of operations.

 

We have since 2014 commenced our global project development business under our IPP or BT models by ramping up our portfolio of solar projects. There is a significant gap between the time that we make significant upfront investments in the solar projects and the time that we receive any revenue from the electricity generated by these solar projects after grid connection (under our IPP model) or from the sale of these projects (under our BT model). These upfront investments include, among others, legal, accounting and other professional fees, costs associated with feasibility studies and due diligence, payments for land use rights, construction costs, government permits and deposits for grid connection agreements and PPAs, none of which may be refundable if a project fails to achieve completion. We have historically relied on private placements, bank loans and financial leases to cover costs and expenses incurred during project development.

 

In particular, there could be an especially long gap between the initial assessment of a project, the first steps of acquiring land use rights and negotiating interconnection agreements and the obtaining of governmental approvals for construction. Acquisition of land use rights can be particularly time-consuming if we are engaged in primary development and need to negotiate with land owners or government entities. The significant development time increases the risk for adverse events during such process, whether they be economic, environmental, political, social or otherwise, that could cause further delays in project development or increase the overall development costs. Due to such adverse developments or unanticipated delays, we may be unable to recoup our initial investment in the solar projects, which may materially and adversely affect our liquidity, profitability and results of operations.

 

We may encounter unexpected difficulties when developing solar power projects.

 

In 2014, we commenced our global project development business by ramping up our portfolio of solar projects under both our IPP, BT and EPC models. The attributable capacity of our projects in operation is 16.8 MW, projects under construction 19.636 MW, and had an aggregate of 10.24MW of projects in announced pipeline as of June 29, 2020. See “Item 4. Information on the Company—B. Business Overview—Our Global Project Development Business.” The development of solar projects involves numerous risks and uncertainties and require extensive research, planning and due diligence. Before we can determine whether a solar project is economically, technologically or otherwise feasible, we may be required to incur significant capital expenditure for land and interconnection rights, preliminary engineering, permitting, legal and other work. Success in developing a particular solar project is contingent upon, among others:

 

  · securing the rights to suitable project locations with access to the grid, necessary rights of way, and satisfactory land use permissions;
     
  · rezoning land, as necessary, to support a solar project;
     
  · negotiating and receiving on schedule the required permits and approvals for project development from government authorities;
     
  · completing all required regulatory and administrative procedures needed to obtain permits and agreements;
     
  · obtaining rights to interconnect the solar project to the grid or to transmit energy;
     
  · paying interconnection and other deposits, some of which are non-refundable;
     
  · negotiating favorable payment terms with module and other equipment suppliers and contractors;

 

 

 

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  · signing PPAs or other off-take arrangements that are commercially acceptable and adequate for providing financing;
     
  · obtaining construction financing, including debt financing and equity contributions, as appropriate; and
     
  · satisfactorily completing construction on schedule.

 

Successful completion of a particular solar project may be adversely affected by numerous factors, including, without limitation:

 

  · unanticipated delays or changes in project plans;
     
  · changes to laws and regulations requiring additional permits, licenses and approvals, or difficulties in obtaining and maintaining existing governmental permits, licenses and approvals;
     
  · the inability to obtain adequate financing with acceptable terms;
     
  · unforeseeable engineering problems, construction or other unexpected delays and contractor performance issues;
     
  · delays, disruptions or shortages of the supply of labor, equipment and materials, including work stoppages;
     
  · defective PV module or other components sourced from our suppliers;
     
  · adverse weather, environmental and geological conditions, force majeure and other events out of our control; and
     
  · cost overruns due to any one or more of the foregoing factors.

 

Accordingly, some of the solar projects in our portfolio may not eventually commence operation and connect to the grid, or even proceed to construction. If a number of our solar projects are not completed, our business, financial condition and results of operations could be materially and adversely affected.

 

Our construction activities may be subject to cost overruns or delays.

 

We engage third-party contractors for the construction of solar projects. Construction of solar projects involves numerous risks and uncertainties, and may be adversely affected by circumstances outside of our control, including seasonal changes, inclement weather, failure to receive regulatory approvals on schedule or third-party delays in supplying PV modules or other materials. We may not be able to negotiate satisfactory construction agreements with third-party contractors, or our third-party contractors may not be able to contract with their subcontractors on a timely basis. In addition, if our contractors fail to adhere to our quality standards or otherwise fail to meet their contractual obligations, or if there is a shortage of contractors or labor strikes that prevents our contractors from completing their construction work on schedule or within budget, the solar projects may experience significant delays or cost overruns. Increases in the prices of solar products and components may also increase our procurement costs. Labor shortages, work stoppages and labor disputes could significantly delay a project or otherwise increase our costs. In addition, delays in obtaining or failure to obtain required construction permits could also delay or hinder the construction of our solar projects. A lack of proper construction permits, or post-construction approvals could delay or prevent our solar projects from commencing operation and connecting to the grid.

 

We may not be able to recover any of our losses resulting from construction cost overruns or delays. In addition, since the FIT applicable to a solar project generally depends on its lead time to grid connection, construction and connection delays may lead to a lower-than-expected FIT, which would adversely affect the long-term value and potentially the viability of the project. Many PPAs also require our solar projects to connect to the grid by a certain date. If the construction of solar project is significantly delayed, we may be in violation of our PPAs or may only be entitled to reduced FIT payments, if at all. A reduction or forfeiture of FIT payments would materially and adversely affect the profitability for a solar power project. Any of the above contingencies could lead to our failure to generate expected return from our solar projects and result in unanticipated and significant revenue and earnings losses.

 

 

 

  16  

 

 

We rely on third-party suppliers and contractors when developing our solar power projects.

 

We source PV modules and other balance-of-system components from a wide selection of third-party suppliers and engage third-party contractors for the construction of solar projects. We typically enter into contracts with our suppliers and contractors on a project-by-project basis and do not maintain long-term contracts with our suppliers or contractors. Therefore, we are generally exposed to price fluctuations and availability of PV modules and balance-of-system components sourced from our suppliers and construction services procured from our contractors. For example, in light of changing market dynamics and government policies, the price and availability of PV modules have been subject to significant volatility in recent years. Increases in the prices of PV modules or balance-of-system components, decreases in their availability, fluctuations in construction, labor and installation costs, or changes in the terms of our relationship with our suppliers and contractors may increase the cost of procuring equipment and engaging contractors and hence materially adversely affect our financial condition and results of operations.

 

Furthermore, the delivery of defective products or products or construction services by our suppliers or contractors which are otherwise not in compliance with contract specifications, or the late supply of products or construction services, may cause construction delays or solar power projects that fail to adhere to our quality and safety standards, which could have a material adverse effect on our business, results of operations, financial condition and cash flow.

 

Warranties provided by our suppliers and contractors may be limited or insufficient to compensate for our losses, or may not cover the nature of our losses incurred.

 

We expect to benefit from various warranties, including product quality and performance warranties, provided by our suppliers and contractors. These suppliers and contractors, however, may file for bankruptcy, cease operations or otherwise become unable or unwilling to fulfill their warranty obligations. Even if a supplier fulfills its warranty obligations, the warranty may not be sufficient to compensate us for all of our losses. In addition, the warranty for inverters and transformers generally expire after 5 to 10 years from the date such equipment is delivered or commissioned and is subject to liability limits. Where damages are caused by defective products provided by our suppliers or construction services delivered by our contractors, our suppliers or contractors may be unable or unwilling to perform their warranty obligations as a result of their financial conditions or otherwise. Or if the warranty has expired or a liability limit has been reached, there may be a reduction or loss of warranty protection for the affected projects, which could have a material adverse effect on our business, financial condition and results of operations.

 

Our solar projects have short operating histories and may not perform up to our expectations.

 

The projects in our solar project portfolio are relatively new with expected operating life of more than 20 years. The majority of our projects in operation as of December 31, 2019 commenced operations since 2014. In addition, the projects we acquire in the future may not have commenced construction or operation or otherwise have a limited operating history. As a result, our assumptions and estimates regarding the future performance of these projects are, and will be, made without the benefit of a meaningful operating history, which may impair our ability to accurately assess the potential profitability of the projects. The performance of these projects will also be subject to risks inherent in newly constructed renewable energy projects, including breakdowns and outages, latent defects, equipment that performs below our expectations and system failures. Failure of some or all of our projects to perform up to our expectations could have a material adverse effect on our business, financial condition and results of operations.

 

We may not be able to obtain long-term contracts for the sale of electricity generated by our solar projects under our IPP model at prices and on other terms favorable to attract financing and other investments.

 

Since 2014, we started acquiring solar projects across different stages of development globally and to hold some of these acquired projects under our IPP model. Obtaining long-term contracts for the sale of electricity generated by our solar projects under our IPP model at prices and on other terms favorable to us will be essential for obtaining financing or completing construction of these projects. We must compete for PPAs against other developers of solar and renewable energy projects. Furthermore, other sources of power, such as natural gas-fired power plants, have historically been cheaper than the cost of solar power and power from certain types of projects, such as natural gas-fired power plants, can be delivered on a firm basis. The availability of PPAs is subject to a number of economic, regulatory, tax and public policy factors. The inability to compete successfully against other power producers or otherwise enter into PPAs favorable to us would negatively affect our ability to develop and finance our projects and negatively impact our revenue.

 

 

 

  17  

 

 

We may be subject to unforeseen costs, liabilities or obligations when providing O&M services.

 

We provide ongoing O&M services to third-party solar projects under fixed-price long-term service agreements, pursuant to which we generally perform all scheduled and unscheduled maintenance and operating and other asset management services for the system. Our costs to perform these services are estimated at the time of entering into the O&M agreement for a particular project, and these are reflected in the fixed-price that we charge our customers under the O&M agreement. Should miscalculations in estimating these costs occur (including those due to unexpected increases in inflation or labor costs), our O&M services may not be profitable and our growth strategy and results of operations could be adversely affected. Because of the long-term nature of these O&M agreements, the adverse impacts on results of operations could be significant, particularly if our liabilities are not capped or subject to an above-market liability cap under the terms of the O&M agreement. In addition, we may be subject to substantial costs, liabilities or obligations in the event that the solar projects we maintain and operate do not meet any agreed-upon system-level availability or performance warranties.

 

We have limited insurance coverage.

 

Our insurance policies cover employee-related accidents and injuries, property damage, machinery breakdowns, fixed assets, facilities and liability deriving from our activities, including environmental liability. We consider our current insurance coverage to be adequate, but we cannot assure you that our insurance will be sufficient or effective under all circumstances and against all hazards or liabilities to which we may be subject. Furthermore, our insurance coverage is subject to deductibles, caps, exclusions and other limitations. A loss for which we are not fully insured could have a material adverse effect on our business, financial condition, results of operations and cash flows. Furthermore, due to rising insurance costs and changes in the insurance markets, we cannot assure you that our insurance coverage will continue to be available at comparable rates or on similar terms, if at all. We may also reduce or cancel our insurance coverage at any time. We may not be able to maintain or obtain insurance of the type and amount we desire at reasonable rates and we may elect to self-insure a portion of our solar project portfolio. Any losses not covered by insurance could have a material adverse effect on our business, financial condition, results of operations and cash flows.

 

In addition, the insurance industry in many parts of the world is still in an early stage of development. As we continue to expand our global presence, we cannot assure you that we will be able to obtain adequate insurance coverage in each of the new markets we enter. To the extent that our operations are not adequately insured in these markets, our business, financial condition and results of operations may be materially and adversely affected.

 

We may be subject to product or strict liability claims if the provision of our EPC services or the solar projects we sell result in injury or damage, and we have limited insurance coverage to protect against such claims, as well as losses that may result from business interruptions or natural disasters.

 

Solar projects are highly sophisticated and generate and transfer large volumes of electric charge with the potential to harm or kill, whether by improper installation or other causes. We are therefore exposed to an inherent risk of product liability claims or class action suits in the event that the installation of the solar power systems during the provision of our EPC services, or the solar projects we sell under our BT model, results in injury or damage, and we may even be liable in some jurisdictions under a strict liability theory, where liability holds even if we are not negligent or at fault. Moreover, to the extent that a claim is brought against us, we may not have adequate resources to defend ourselves. We rely on our general liability insurance to cover product liability and other liability claims and have not separately obtained product liability insurance. The unfavorable settlement of product or strict liability claims against us could result in significant monetary damages and significant payments in excess of our insurance coverage could have a materially adverse effect on our financial results. Any such business disruption could result in substantial costs and diversion of resources.

 

Solar energy generation depends heavily on suitable meteorological conditions. If weather conditions are unfavorable, our power generation output, and therefore the revenue from our solar projects, may be substantially below our expectations.

 

The electricity produced and revenues generated by solar projects are highly dependent on suitable solar conditions and associated weather conditions. Such conditions are beyond our control. Furthermore, components of these generation systems, including solar panels and inverters, can be damaged by severe weather, such as heavy snowstorms, hailstorms, ice storms, lightning strikes, extreme winds, earthquakes or tornadoes. Replacement and spare parts for key components may be difficult costly or unavailable. Unfavorable weather and atmospheric conditions could reduce the electricity output of our solar projects to below projected generation, damage or impair the effectiveness of our projects or require shutdown of key equipment, impeding operation of our projects and our ability to achieve forecasted revenues and cash flows.

 

 

 

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The amount of electricity solar projects produce is dependent in part on the amount of sunlight, or insolation, where the projects are located. Because shorter daylight hours in winter months results in less insolation, the generation of particular projects will vary depending on the season.

 

We base our investment decisions with respect to solar power generation assets on the findings of related solar studies conducted prior to construction or based on historical conditions at existing projects. However, actual climatic conditions at an asset site may not conform to the findings of these studies. For example, unexpected development of climate conditions that was not taken into consideration during the investment decision-making process, such as smog and sand storms may significantly reduce the solar power generation. Therefore, our solar projects may not meet anticipated production levels or the rated capacity of our projects, which could adversely affect our business, financial condition, results of operations and cash flows.

 

The operation of solar projects involves significant inherent risks and hazards that could have a material adverse effect on our business, financial condition, results of operations and cash flows.

 

The operation of solar projects involves numerous hazardous activities, including delivering electricity to transmission and distribution systems. We are subject to natural disasters such as earthquakes, floods, snow obscuration, high temperatures, lightning, hurricanes, long-term climate changes, volcanoes and wind risks, as well as other inherent risks affecting resource availability such as fire, explosion, soil and ice buildup, structural collapse and equipment failure. Moreover, we may suffer from negligent acts by our PPA counterparties or other third parties. Our rooftop projects could cause damage to the building roof, resulting in claims due to water damages or replacement of roofing materials. These and other hazards can cause significant personal injury or loss of life, severe damage to, and destruction of, property and equipment and contamination of, or damage to, the environment, wildlife takes or fatalities and suspension of operations. The occurrence of any of these events may result in lawsuits against us asserting claims for substantial damages, including for environmental cleanup costs, personal injury and property damage and fines and/or penalties.

 

In addition, the ongoing operation of solar projects face risks that include the breakdown or failure of equipment or processes or performance below expected levels of output or efficiency due to wear and tear, latent defect, design error or operator error or force majeure events, among others. Unplanned outages, including extensions of scheduled outages, occur from time to time and are an inherent risk of our business. Unplanned outages typically increase our operation and maintenance expenses and may reduce our revenues as a result of generating and selling less electricity.

 

If we fail to properly operate and maintain our solar projects, these projects may experience decreased performance, shortened operating life or shut downs. Our solar projects may also require periodic upgrading and improvement. Changes in our own operation or local conditions may increase the costs of operating the project, including costs related to labor, equipment, insurance and taxes. If we cause damage to third parties, we may become liable for the consequences of any resulting damage. We may also experience equipment malfunction or failure, leading to unexpected maintenance needs, unplanned outages or other operational issues. In addition, inconsistencies in the quality of solar panels, PV modules, balance-of-system components or maintenance services for our solar projects may affect the system efficiency of our projects.

 

Any unexpected operational or mechanical failure, including failure associated with breakdowns and forced outages, and any decreased operational or management performance, could reduce our solar projects’ power generating capacity below expected levels, reducing our revenues and profitability. Degradation of the performance of our solar projects above levels provided for in the relevant PPAs may also reduce our revenues. Unanticipated capital expenditures associated with maintaining, upgrading or repairing our projects may also reduce our profitability. In addition, damage to our reputation due to system failure or accidents could negatively impact our relationships with customers and local government authorities, which could also materially adversely affect our business. Negative public or community response to solar energy projects could adversely affect the approval for and construction of our projects. We maintain insurance coverage that we consider adequate but we cannot assure you that our insurance will be sufficient or effective under all circumstances and against all hazards or liabilities to which we may be subject.

 

Environmental, health and safety laws and regulations subject us to extensive and increasingly stringent operational requirements, as well as potentially substantial liabilities arising out of environmental contamination.

 

We are subject to, in each of the jurisdictions we operate, numerous national and local laws, regulations, guidelines, policies, directives and other requirements governing or relating to, among others, land use and zoning matters and protection of human health and the environment, including those limiting the discharge and release of pollutants into the environment, and the protection of certain wildlife. These laws and regulations require our solar projects to, among others, obtain and maintain approvals and permits, undergo environmental impact assessments and review processes and implement environmental, health and safety programs and procedures to control risks associated with the construction, operation and decommissioning of solar projects. If our solar projects do not comply with applicable environmental laws, regulations or permit requirements, we may be required to pay significant fines or penalties or suspend or cease operations of the affected projects. Violations of environmental and other laws, regulations and permit requirements may also result in criminal sanctions or injunctions.

 

 

 

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Our solar projects may experience malfunctions and other unplanned events that result in personal injury and property damage. As such, the operation of our projects carries an inherent risk of environmental, health and safety liabilities (including potential civil actions, compliance or remediation orders, fines and other penalties), and may subject us to administrative and judicial proceedings. In addition, certain environmental laws and regulations may impose joint and several liability on past and present owners and operators of sites, related to the cleaning up of sites where hazardous wastes or materials were disposed or released.

 

We may continue to conduct acquisitions and enter into joint ventures, investments or other strategic alliances which may be unsuccessful.

 

We may continue to grow our operations through acquisitions, as well as joint ventures or other strategic alliances when appropriate opportunities arise. Such acquisitions, joint ventures and strategic alliances may expose us to additional operational, regulatory, market and geographical risks as well as risks associated with additional capital requirements and diversion of management attention. In particular, any future strategic alliances may expose us to the following risks:

 

  · There may be unforeseen risks relating to our counterparty’s business and operations or liabilities that were not discovered by us through our legal and business due diligence prior to our investment. Such undetected risks and liabilities could have a material adverse effect on our reputation, business and results of operations in the future.
     
  · We may not have experience acquiring, managing or investing in other companies. Business acquisitions may generally divert a significant portion of our management and financial resources from our existing business and the integration of the target’s operations may pose significant business challenges, potentially straining our ability to finance and manage our existing operations.
     
  · There is no assurance that the expected synergies from any business acquisition, joint venture or strategic alliances will materialize. If we are not successful in the integration of a target’s operations, we may not be able to generate sufficient revenue from its operations to recover costs and expenses of the acquisition.
     
  · Acquisition or participation in a new joint venture or strategic alliance may involve us in the management of operation in which we do not possess extensive expertise.

 

The materialization of any of these risks could have a material adverse effect on our business, financial condition and results of operations. We rely substantially on our senior management team and our ability to attract, train and retain qualified personnel for our current and future success.

 

The industry experience, expertise and contributions of our chairman, Mr. Xiaofeng Peng, is essential to our continuing success. We will continue to rely on our senior management, regional management and other key employees to manage our business operations and implement our growth plans. If they cannot work together effectively or efficiently, our business may be severely disrupted. If one or more of our senior or regional management personnel were unable or unwilling to continue to hold their present positions, we might not be able to recruit, train and retain personnel with comparable qualifications, and our results of operations and financial condition may be materially and adversely affected.

 

Our qualified and experienced project development teams are critical to our success. We may not be able to continue to attract, train and retain qualified personnel, including executive officers, project development personnel, project management personnel and other key personnel with the necessary experience and expertise. In particular, as we enter into new markets, we face challenges to recruit and retain qualified personnel who are familiar with local regulatory regimes and have adequate experiences in project development and operations. In particular, we have experienced a lack of accounting personnel with an appropriate level of knowledge and experience in U.S. GAAP.

 

There is substantial competition for qualified personnel in the downstream PV industry. Our competitors may offer more competitive packages or otherwise attract our personnel. Our costs to retain qualified personnel may also increase in response to competition. If we fail to continue to attract and retain a sufficient number of personnel with suitable managerial, technical or marketing expertise, our business operations could be adversely affected and our future growth and expansions may be inhibited.

 

 

 

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Our failure to protect our intellectual property rights may undermine our competitive position, and litigation to protect our intellectual property rights may be costly.

 

We rely primarily on trade secrets, know-how and other proprietary information to protect our intellectual property. Nevertheless, these afford only limited protection and the actions we take to protect our intellectual property rights may not be adequate to provide us with meaningful protection or commercial advantage. Third parties may be able to use the technologies that we have developed and compete with us, which could have a material adverse effect on our business, financial condition or results of operations. Our failure to protect our intellectual property and proprietary rights may undermine our competitive position. Third parties may infringe or misappropriate our proprietary technologies or other intellectual property and proprietary rights. Policing the unauthorized use of proprietary technology can be difficult and expensive. In particular, the laws and enforcement procedures certain markets where we operate are uncertain or do not protect intellectual property rights to the same extent as do the laws and enforcement procedures of the United States. We may need to resort to court proceedings to enforce our intellectual property rights in the future. Litigation relating to our intellectual property might result in substantial costs and diversion of resources and management attention away from our business. An adverse determination in any such litigation will impair our intellectual property rights and adversely affect our business, prospects and reputation.

 

We may be exposed to infringement or misappropriation claims by third parties which, if determined adversely to us, could cause us to pay significant damage awards.

 

Our success depends largely on our ability to use and develop our technology and know-how without infringing the intellectual property rights of third parties. The validity and scope of claims relating to solar technology involve complex scientific, legal and factual questions and analysis and, therefore, may be highly uncertain. As we continue to expand internationally, we face a heightened risk of becoming the subject of claims for intellectual property infringement. We may be subject to litigation involving claims of patent infringement or violation of intellectual property rights of third parties. An adverse determination in any such litigation or proceedings against us could subject us to significant liabilities to third parties, including requiring us to seek licenses from third parties, to pay ongoing royalties or to pay monetary and punitive damages. Protracted litigation could also result in our customers or potential customers deferring or limiting their procurement of our PV solutions until resolution of such litigation, which could result in losses and adversely affect our reputation and results of operations.

 

Our management has identified material weaknesses in our internal control over financial reporting and we may not be able to remediate these weaknesses. Additionally, our management may identify material weaknesses in the future that could adversely affect investor confidence, impair the value of our securities and increase our cost of raising capital.

 

Our management identified material weaknesses in our internal control over financial reporting, and our chief executive officer concluded that our disclosure and internal controls and procedures were not effective as of December 31, 2019. See “Item 15. Controls and Procedures” for more information. There can be no assurance as to how quickly or effectively we can remediate the material weaknesses in our internal control over financial reporting or that additional material weaknesses will not be identified in the future.

 

Any failure to remedy additional weaknesses or deficiencies in our internal control over financial reporting that may be discovered in the future or to implement new or improved controls, or difficulties encountered in the implementation of such controls, could harm our operating results, cause us to fail to meet our reporting obligations or result in material misstatements in our financial statements. Any such failure could, in turn, affect the future ability of our management to certify that our internal control over financial reporting is effective. Ineffective internal control over financial reporting could also subject us to the scrutiny of the SEC and other regulatory bodies which could cause investors to lose confidence in our reported financial information and subject us to civil or criminal penalties or shareholder litigation, which could have an adverse effect on the trading price of our securities.

 

In addition, if we identify additional deficiencies in our internal control over financial reporting, the disclosure of that fact, even if quickly remedied, could reduce the market’s confidence in our financial statements and harm our share price. Furthermore, additional deficiencies could result in future non-compliance with Section 404 of the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”). Such non-compliance could subject us to a variety of administrative sanctions, including review by the SEC or other regulatory authorities.

 

 

 

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The preparation of our consolidated financial statements in accordance with U.S. generally accepted accounting principles requires us to make estimates, judgments and assumptions that may ultimately prove to be incorrect.

 

The accounting estimates and judgments that management must make in the ordinary course of business affect the reported amounts of assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenue and expenses during the periods presented. If the underlying estimates are ultimately proven to be incorrect, subsequent adjustments could have a material adverse effect on our operating results for the period or periods in which the change is identified.

 

The global cryptocurrency mining services market is highly competitive and fragmented with low barriers to market.

 

Although the market for providing services to cryptocurrency miners is new and evolving, the barriers to entry are quite low. Except for having the financial resources to set up a facility, no specialized technology or know-how required. Therefore, if cryptocurrency mining remains profitable, we expect additional competitors to enter the market, some of whom may have greater resources than we do.

 

The prices of Bitcoin and other cryptocurrencies have been fluctuating wildly in the last few months. If there is fewer people who want to conduct cryptocurrency mining operations due to the wild fluctuation, the demand for our services will decline.

 

The prices of cryptocurrencies have been fluctuating wildly in the last few months. Such fluctuation may make cryptocurrency mining less profitable. If the price of cryptocurrencies falls or does not increase, fewer people are likely to conduct cryptocurrency mining operations, which would reduce the demand for our services.

 

Blockchain technology and cryptocurrency are in the early stages of development and it is difficult to predict how the market for cryptocurrencies will develop.

 

Blockchain technology and cryptocurrency are in the early stages of development and it is difficult to predict how the market for cryptocurrencies will develop. There are significant factors which may inhibit the growth of these markets, including:

 

  · volatility in the market price of cryptocurrencies;
     
  · the implementation of regulations on cryptocurrency markets or technology; and
     
  · the erosion or loss of user confidence in Bitcoin and other cryptocurrencies could.

 

Any of these factors could significantly limit the growth of our business.

 

We need to access a large quantity of power at a reasonable cost in order to provide our cryptocurrency mining services; if we are unable to access such power sources, we will not be able to continue providing cryptocurrency mining services profitably.

 

We need to access a large quantity of power at a reasonable cost in order to provide our cryptocurrency mining services, and we do not have any long-term contract for the provision of power at specified prices. As competition in this area increases, we may not be able to access power at reasonable costs or at all. If we are unable to access new power sources, or the price of our current power sources significantly increase, we will not be able to continue providing cryptocurrency mining services profitably.

 

The hemp and CBD industries are evolving yet highly regulated and we must anticipate and respond to changes and risks.

 

In September 2019, the Company launched a hemp and Cannabidiol (“CBD”) businesses and as of the date of this annual report, our hemp and CBD businesses have no revenue derived from this business. The hemp and CBD industries are not yet well-developed, and many aspects of the industries’ development and evolution cannot be accurately predicted. In addition, the hemp and CBD businesses are heavily regulated in the jurisdiction(s) where we carry on such businesses. Although the hemp and CBD businesses contribute nil to our total revenue,our hemp and CBD businesses are subject to various laws, regulations and guidelines by governmental authorities relating to, among other things, the manufacture, marketing, management, transportation, storage, sale, pricing and disposal of cannabis, U.S. hemp and cannabis-based products, and also including laws, regulations and guidelines relating to health and safety, insurance coverage, the conduct of operations and the protection of the environment. You should carefully consider that there are other risks that cannot be foreseen or are not described herein, which could affect Company’s business and financial performance.

 

 

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DEA Regulation of CBD Varies Depending on the Concentration of THC

 

Under Drug Enforcement Administration (DEA) regulations, marijuana is a Schedule 1 drug not approved as a medication in the United States; however, hemp has been distinguished from marijuana under the definition revised in 2018. Hemp is defined as the plant Cannabis sativa L. and any part of that plant — including the seeds and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not — with a THC concentration of not more than 0.3 percent on a dry weight basis.

 

U.S. Food and Drug Administration ( FDA) Regulations Do Not Permit CBD as a Food Additive or Dietary Supplement

 

Analysis of the potential for regulatory impact on any type of CBD product is fact-specific and requires close evaluation of several factors, including the type of product (e.g., food, dietary supplement, or cosmetic), product’s labeling, and the existing compliance structure of the product developer or manufacturer. The FDA regulates CBD if it is used as a food additive, a dietary supplement or in cosmetic products, or if it is advertised as a drug.

 

Rapidly Changing State Laws May Impose Further Restrictions on CBD Products

 

Where CBD products are sold or manufactured, it is important to review applicable state law to determine any further restrictions on CBD. For instance, the North Carolina Department of Agriculture and Consumer Services recently announced it would send letters to businesses notifying them that the sale of CBD in food, drinks and animal food violates state and federal law. Further, in February 2019, Maine and New York announced that restaurants and other retailers may not sell products containing CBD and that the states would begin enforcing these restrictions. These state restrictions may significantly impact overall sales of CBD products as the regulatory landscape continues to evolve.

 

Avoid Certain Advertising and Labeling Claims for CBD Products

 

Marketing claims about the therapeutic benefits of CBD may inadvertently subject CBD product manufacturers to FDA’s drug regulations. Claims that CBD can treat or mitigate a disease or condition, for instance, may run afoul of FDA’s position on CBD product marketing. To date, the FDA has approved only one drug directly using CBD - Epidiolex - which treats two rare forms of childhood epilepsy. The FDA has not determined that CBD is safe or effective for treating any other particular disease or condition. Accordingly, companies should avoid making claims that CBD will aid in the treatment of any particular disease or condition or provide any particular health benefits. FDA further clarified that it will continue to aggressively pursue companies marketing CBD products with “egregious and unfounded claims that are aimed at vulnerable populations.”

 

Federal Regulation of CBD Will Continue to Evolve

 

The FDA’s position on CBD is not static, and potential investors should continue to monitor the evolving federal landscape. The FDA recently held a public hearing to obtain scientific data and information about the safety, manufacturing, product quality, marketing, labeling and sale of products containing cannabis or cannabis-derived compounds. The FDA also announced that it is forming a high-level internal agency working group to explore potential pathways for dietary supplements and/or conventional foods containing CBD to be lawfully marketed. The group will consider what statutory or regulatory changes might be needed and the likely impact of such marketing on public health. As stakeholders weigh in on thisissue, FDA’s position on this topic likely will continue to evolve.

 

Covid-19 continues to impact on alfalfa hay transportation

 

With Asia’s increasing demand for American alfalfa hay, we have recognized the importance of exporting to the Asian market. However, the uncertainty around the coronavirus has disrupted global markets and the U.S. market has not been immune. Major oceanic carriers have reduced the frequency of their shipments, disrupting our supply chain. This required U.S. exporters to reschedule shipments and work to find boat space for new shipments. Fortunately, there is sustained demand from major importing countries, but logistics will be a challenge in the coming months.

 

 

 

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U.S.-China trade disruption remains unclear

 

The outcome of the U.S.-China trade war remains unclear. There might be future disruptions in the market with potential for tariffs being set on our products. This will affect the Chinese demand for our products if our products become more expensive than Chinese local producers when tariffs are added to our prices. However, alfalfa hay is exempted from tariffs since September 2019 for one year so we are currently unaffected.

 

Weather Condition may lead to decline in Hay production

 

Weather conditions are a huge factor affecting alfalfa hay production. Increasingly random weather patterns due to global warming could post a potential risk to production levels.

 

Risks Related to COVID-19

 

Our business and financial results may be materially adversely affected by the current COVID-19 pandemic outbreak.

 

The pandemic of a novel coronavirus (COVID-19) has resulted in a widespread health crisis that has adversely affected the economies and financial markets worldwide. Government efforts to contain the spread of the coronavirus through lockdowns of cities, business closures, restrictions on travel and emergency quarantines, among others, and responses by businesses and individuals to reduce the risk of exposure to infection, including reduced travel, cancellation of meetings and events, and implementation of work-at-home policies, among others, have caused significant disruptions to the global economy and normal business operations across a growing list of sectors and countries.

 

Our operating results substantially depend on revenues derived from sales of PV project assets, provision of electricity and our Australian subsidiary’s trading of PV components. As the COVID-19 spread continues, the measures implemented to curb the spread of the virus have resulted in supply chain disruptions, insufficient work force and suspended manufacturing and construction works for solar industry. One or more of our customers, partners, service providers or suppliers may experience financial distress, delayed or defaults on payment, file for bankruptcy protection, sharp diminishing of business, or suffer disruptions in their business due to the outbreak. These preventative measures have also impacted our daily operations. The efforts enacted to control COVID-19 have placed heavy pressure on our marketing and sales activities. Moreover, due to the decrease in prices of crude oil, the demand for solar energy can decrease in the near future. We continue to assess the related risks and impacts COVID-19 pandemic may have on our business and our financial performance. In light of the rapidly changing situation across different countries and regions, it remains difficult to estimate the duration and magnitude of COVID-19 impact. Until such time as the COVID-19 pandemic is contained or eradicated and global business return to more customary levels, our business and financial results may be materially adversely affected.

 

Risks Related to Our International Operations

 

We are subject to risks associated with foreign currency exchange rates, fluctuations of which may negatively affect our revenue, cost of goods sold and gross margins and could result in exchange losses.

 

We currently operate in a number of jurisdictions including the U.S., Japan, U.K., Greece, Italy and Australia, and our local operations are generally conducted in the functional currency of the home jurisdiction. The FIT and other subsidies granted are also denominated in local currencies. Thus, we deal on a regular basis in several currencies concurrently, which exposes us to significant currency exchange risks. Any increased costs or reduced revenue as a result of foreign exchange rate fluctuations could adversely affect our profit margins. The fluctuation of foreign exchange rates also affects the value of our monetary and other assets and liabilities denominated in local currencies. Generally, an appreciation of the U.S. dollar against the relevant local currencies could result in a foreign exchange loss for assets denominated in such local currencies and a foreign exchange gain for liabilities denominated in such local currencies. Conversely, a devaluation of the U.S. dollar against the relevant local currencies could result in a foreign exchange gain for assets denominated in such local currencies and a foreign exchange loss for liabilities denominated in such local currencies.

 

 

 

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We may also expand into emerging markets, some of which may have an uncertain regulatory environment relating to currency policy. Conducting business in such emerging markets could increase our exposure to foreign exchange risks. Although we access a variety of financing solutions that are tailored to the geographic location of our projects and to local regulations, we have not entered into any hedging transactions to reduce the foreign exchange risks, but may do so in the future when appropriate. However, if we decide to hedge our foreign exchange exposure in the future, we cannot assure you that we will be able to reduce our foreign currency risk exposure in an effective manner, at reasonable costs, or at all.

 

The ongoing debt crisis in the Eurozone and market perceptions concerning the instability of the Euro and the European economy could adversely affect our business, results of operations and financing.

 

Concerns persist regarding the debt burden of certain Eurozone countries and their ability to meet future financial obligations, the overall stability of the Euro and the suitability of the Euro as a single currency given the diverse economic and political circumstances in individual Eurozone countries. These concerns or market perceptions concerning these and related issues could adversely affect the value of our Euro-denominated assets and obligations and lead to future economic slowdowns.

 

Risks Related to Our Ordinary Shares

 

We have significant “equity overhang” which could adversely affect the market price of our Shares and impair our ability to raise additional capital through the sale of equity securities.

 

As of the date of this annual report, we had 14,837,469 ordinary shares outstanding, including 4,289,340 ordinary shares, or approximately 28.9% of our total ordinary shares outstanding, held by Mr. Xiaofeng Peng, our director, executive chairman of the board of directors and chief executive officer. The possibility that substantial amounts of our outstanding ordinary shares may be sold by Mr. Xiaofeng Peng or the perception that such sales could occur, or “equity overhang,” could adversely affect the market price of our ordinary shares, and could impair our ability to raise additional capital through the sale of equity securities in the future.

 

We are subject to litigation risks, including securities class actions and shareholder derivative actions, which may be costly to defend and the outcome of which is uncertain.

 

From time to time, we are subject to legal claims, with and without merit, that may be costly, and which may divert the attention of our management and our resources in general. In addition, our solar projects may be subject to litigation or other adverse proceedings that may adversely impact our ability to proceed with construction or grid connection or sell a given project, which would adversely affect our ability to recognize revenue with respect to such project. We are currently involved in various legal proceedings. See “Item 8. Financial Information —Consolidated Statements and Other Financial Information—Legal and Administrative Proceedings.” The results of complex legal proceedings are difficult to predict. Lawsuits filed against us may assert types of claims that, if resolved against us, could give rise to substantial damages, and an unfavorable outcome or settlement of one or more of these lawsuits, or any future lawsuits, could have a material adverse effect on our business, financial condition, or results of operations. Even if these lawsuits are not resolved against us, the costs of defending such lawsuits may not be covered by our insurance policies. We cannot assure you that additional litigation will not be filed against us in the future.

 

It may be difficult to effect service of process on, or to enforce any judgments obtained against us, our directors, or our senior management members.

 

There is no statutory enforcement in the Cayman Islands of judgments obtained in the federal or state courts of the United States (and the Cayman Islands are not a party to any treaties for the reciprocal enforcement or recognition of such judgments), a judgment obtained in such jurisdiction will be recognized and enforced in the courts of the Cayman Islands at common law, without any re-examination of the merits of the underlying dispute, by an action commenced on the foreign judgment debt in the Grand Court of the Cayman Islands, provided such judgment (a) is given by a foreign court of competent jurisdiction, (b) imposes on the judgment debtor a liability to pay a liquidated sum for which the judgment has been given, (c) is final, (d) is not in respect of taxes, a fine or a penalty, and (e) was not obtained in a manner and is not of a kind the enforcement of which is contrary to natural justice or the public policy of the Cayman Islands. However, the Cayman Islands courts are unlikely to enforce a judgment obtained from the U.S. courts under civil liability provisions of the U.S. federal securities law if such judgment is determined by the courts of the Cayman Islands to give rise to obligations to make payments that are penal or punitive in nature. Because such a determination has not yet been made by a court of the Cayman Islands, it is uncertain whether such civil liability judgments from U.S. courts would be enforceable in the Cayman Islands.

 

 

 

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Our shareholders may experience future dilution.

 

Our amended and restated memorandum and articles of association permits our board of directors, without shareholder approval, to authorize the issuance of preferred shares. The board of directors may classify or reclassify any preferred shares to set the preferences, rights and other terms of the classified or reclassified shares, including the issuance of preferred shares that have preference rights over our ordinary shares with respect to dividends, liquidation and voting rights. Furthermore, substantially all of our ordinary shares for which our outstanding stock options are exercisable are, once they have been purchased, eligible for immediate sale in the public market.

 

We may from time to time distribute rights to our shareholders, including rights to acquire our securities. However, we cannot make these rights available in the United States unless we register the rights and the securities to which the rights relate under the Securities Act or an exemption from the registration requirements is available. We are under no obligation to file a registration statement with respect to any such rights or securities or to endeavor to cause a registration statement to be declared effective. Moreover, we may not be able to establish an exemption from registration under the Securities Act. Accordingly, you may be unable to participate in our rights offerings and may experience dilution in your holdings.

 

The issuance of additional shares in our capital or the exercise of stock options or warrants could be substantially dilutive to your shares and may negatively affect the market price of our ordinary shares.

 

The price of our securities has been and may continue to be highly volatile.

 

The price of our ordinary shares has been and may continue to be subject to wide fluctuations in the future in response to many events or factors, including those discussed in the preceding risk factors relating to our operations, as well as:

 

  · actual or anticipated fluctuations in operating results, actual or anticipated gross profit as a percentage of net sales, our actual or anticipated rate of growth and our actual or anticipated earnings per share;
     
  · changes in expectations as to future financial performance or changes in financial estimates;
     
  · changes in governmental regulations or policies in the countries in which we do business;
     
  · our, or a competitor’s, announcement of new products, services or technological innovations;
     
  · the operating and stock price performance of other comparable companies;
     
  · news and commentary emanating from the media, securities analysts or government bodies relating to us and to the industry in general;
     
  · changes in the general condition of the global economy and credit markets;
     
  · general market conditions or other developments affecting us or our industry;
     
  · announcements regarding patent litigation or the issuance of patents to us or our competitors;
     
  · release or expiry of lock-up or other transfer restrictions on our outstanding ordinary shares;
     
  · sales or perceived sales of additional ordinary shares; and
     
  · commencement of, or our involvement in, litigation.

 

 

 

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Any of these factors may result in large and sudden changes in the volume and price at which our ordinary shares will trade. We cannot give any assurance that these factors will not occur in the future again. In addition, the securities market has from time to time experienced significant price and volume fluctuations that are not related to the operating performance of particular companies. These market fluctuations may also have a material adverse effect on the market price of our ordinary shares. In the past, following periods of volatility in the market price of their stock, many companies have been the subject of securities class action litigation. If we become involved in similar securities class action litigation in the future, it could result in substantial costs and diversion of our management’s attention and resources and could harm our stock price, business, prospects, financial condition and results of operations.

 

If we fail to meet the applicable listing requirements, NASDAQ may delist our ordinary shares from trading on its exchange in which case the liquidity and market price of our securities could decline and our ability to raise additional capital would be adversely affected.

 

Our ordinary shares are currently listed for trading on the NASDAQ Global Select Market. If we remain listed, there are a number of requirements that must be met in order for our ordinary shares to remain listed on the NASDAQ Global Select Market, and the failure to meet any of these listing standards could result in the delisting of our ordinary shares from NASDAQ. We cannot assure you that we will be able to timely file all required reports or comply with all other NASDAQ Listing Rules at all times in the future, or regain compliance in a timely manner in case of a default and avoid any subsequent adverse action taken by the Listing Qualifications Department, including but not limited to delisting.

 

Our articles of association contain anti-takeover provisions that could prevent a change in control even if such takeover is beneficial to our shareholders.

 

Our articles of association contain provisions that could delay, defer or prevent a change in control of us that could be beneficial to our shareholders. These provisions could also discourage proxy contests and make it more difficult for you and other shareholders to elect directors and take other corporate actions. As a result, these provisions could limit the price that investors are willing to pay for the ordinary shares. These provisions might also discourage a potential acquisition proposal or tender offer, even if the acquisition proposal or tender offer is at a price above the then current market price of our ordinary shares. These provisions provide that our board of directors has authority, without any further action by our shareholders, to issue preferred shares in one or more series and to fix their designations, powers, preferences, privileges, and relative participating, optional or special rights and the qualifications, limitations or restrictions, including dividend rights, conversion rights, voting rights, terms of redemption and liquidation preferences, any or all of which may be greater than the rights associated with the ordinary shares. The board of directors may decide to issue such preferred shares quickly with terms calculated to delay or prevent a change in control of us or make the removal of our management more difficult. If the board of directors decides to issue such preferred shares, the price of our ordinary shares may fall and the voting and other rights of holders of our ordinary shares may be materially adversely affected.

 

You may not receive dividends or other distributions on our ordinary shares and you may not receive any value for them, if it is illegal or impractical to make them available to you.

 

Under Cayman Islands law, we may only pay dividends out of our profits or share premium account subject to our ability to pay our debts as they fall due in the ordinary course of our business. Our ability to pay dividends will therefore depend on our ability to generate sufficient profits. We cannot give any assurance that we will declare dividends of any amounts, at any rate or at all in the future. We have not paid any dividends in the past. Future dividends, if any, will be paid at the discretion of our board of directors, subject to requirements under Cayman Islands law and our memorandum and articles of association, as amended and restated from time to time, and will depend upon our future operations and earnings, capital expenditure requirements, general financial conditions, legal and contractual restrictions and other factors that our board of directors may deem relevant.

 

We are treated as a U.S. corporation for U.S. federal tax purposes.

 

Due to the circumstances of our formation and the application of Section 7874(b) of the United States Internal Revenue Code of 1986, as amended (the “Code”), we are treated as a U.S. corporation for all purposes of the Code. As a result, we are subject to U.S. federal corporate income tax on our worldwide income. In addition, if we pay dividends to a Non-U.S. Holder, as defined in the discussion “Item 10. Additional Information—E. Taxation—U.S. Federal Income Taxation,” U.S. income tax will be withheld at the rate of 30%, or, subject to certain conditions, such lower rate as may be provided in an applicable income tax treaty. Each investor should consult its own tax adviser regarding the U.S. federal income tax consequences of holding the ordinary shares in its particular circumstances.

 

 

 

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We rely on the foreign private issuer exemption for certain corporate governance requirements under the NASDAQ Stock Market Rules, or the NASDAQ Rules, including the majority independent board requirement. This may afford less protection to holders of our ordinary shares and ADSs.

 

As a foreign private issuer, we are exempt from certain corporate governance requirements of NASDAQ. We are required to provide a brief description of the significant differences between our corporate governance practices and the corporate governance practices required to be followed by U.S. domestic issuers under the NASDAQ Rules. The standards applicable to us are considerably different from those applied to U.S. domestic issuers. For instance, we are not required to:

 

  · have a majority of the board of directors be comprised of independent directors;
     
  · have a compensation committee that is comprised solely of independent directors;
     
  · having a nomination and corporate governance committee that is comprised solely of independent directors;
     
  · have executive compensation be determined by independent directors or a committee of independent directors;
     
  · have director nominees be selected, or recommended for selection by the board of directors, by independent directors or a committee of independent directors;
     
  · hold an annual meeting of shareholders no later than one year after the end of our fiscal year-end; and
     
  · have shareholder approval for private placement of Company’s common stocks at a price less than the greater of book or market value which together with sales by officers, directors or Substantial Shareholders of the Company equals 20% or more of common stock or 20% or more of the voting power outstanding before the issuance.

 

We are not required to, and will not voluntarily meet, these requirements. For example, our board of directors currently consists of five directors, three of whom satisfy the “independence” requirements of Rule 10A-3 under the Exchange Act and Rule 5605 of the NASDAQ Rules. The law of our home country, the Cayman Islands, does not require a majority of our board of directors be composed of independent directors. We intend to follow our home country practice with regard to the composition of the board of directors.

 

As a result, holders of our ordinary shares may not have the same protection afforded to shareholders of companies that are subject to all of NASDAQ’s corporate governance requirements. For a description of the material corporate governance differences between the NASDAQ Rules and Cayman Islands law, see “Item 16G. Corporate Governance.”

 

 

 

 

 

 

 

 

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ITEM 4.                    INFORMATION ON THE COMPANY

 

A. History and Development of the Company

 

Our legal and commercial name is SPI Energy Co., Ltd. Our principal executive office is located at #1128, 11/F, No. 52 Hung To Road, Kwun Tong, Kowloon, Hong Kong SAR, China. Our telephone number at this address is +852 2291 6020 and our fax number is +852 2291 6030. Our registered office is situated at 4th Floor, Harbour Place, 103 South Church Street, PO Box 10240, George Town, Cayman Islands.

 

The Company was incorporated by SPI as a company limited by shares in the Cayman Islands on May 4, 2015. On January 4, 2016, we completed the redomiciliation of SPI to the Cayman Islands, whereby SPI merged with and into a wholly-owned subsidiary of the Company and the holders of SPI common stock received ADS representing ordinary shares of the Company. As a result, the former shareholders of SPI became the beneficial owners of the capital stock of the Company, and the Company, together with our subsidiaries, now own and continue to conduct SPI’s business in substantially the same manner as was conducted by SPI and its subsidiaries. The Company is also managed by substantially the same board of directors and executive officers that managed SPI previously.

 

We raised a significant amount of cash for our working capital purposes from the issuance of shares of SPI’s common stock and convertible notes in 2014, 2015 and 2016 to non-U.S. investors in private placements. In those periods, we entered into various private placement share purchase agreements and option agreements with a number of non-U.S. investors and issued approximately 14.6 million unregistered shares or options to purchase shares of SPI’s common stock in reliance on Regulation S of the Securities Act, or Regulation S, mostly at a per share purchase price benchmarked to the prevailing trading price of SPI’s shares at the respective dates of these agreements, and raised an aggregate of $401.58 million. We also raised $55.0 million of cash by issuing unregistered convertible notes to non-U.S. investors in reliance of Regulation S promulgated under the U.S. Securities Act of 1933, as amended (“Regulations S”) in 2014 and 2015. In January 2016, we raised $5 million by issuing 2.5 million ordinary shares, in reliance on Regulation S, to a non-U.S. investor who exercised an option to purchase our ordinary shares pursuant to an option agreement with our Company. In September 2016, we entered into share purchase agreements with certain existing shareholders, including certain members of our management and other investors, pursuant to which we agreed to issue and sell an aggregate of 386.1 million ordinary shares for a total consideration of approximately $100 million. In January 2017, we completed approximately $0.881 million of its $100 million private placement. The investors in these transactions have advised us that they no longer wish to close on these transactions.

 

On January 17, 2019, we entered into share purchase agreements with certain existing shareholders (including certain key management personnel of the Company) and other investors (collectively, the “Purchasers”), pursuant to which the Purchasers agreed to purchase an aggregate of 6,600,000 ordinary shares of the Company at a price of US$1.16 per Share, for a total consideration of approximately $7.7 million. The transaction was closed on April 12, 2019. Those shares were being offered and sold to private investors, on a private placement basis in reliance on Regulation S. Those shares have not been and will not be registered under the Securities Act of 1933, as amended, and may not be offered or sold in the United States absent registration or an applicable exemption from registration. Net proceeds from the sale of those shares are intended to be used for expansion of our global PV project activities and general corporate purposes.

 

Between January 19, 2016 and September 18, 2017, our ADSs were listed on the NASDAQ Global Select Market under the symbol of “SPI”. The Bank of New York Mellon, the depositary bank for the ADS facility, terminated our ADS facility on September 18, 2017. Following such termination, we listed our ordinary shares, par value US$0.0001 per share, for trading on NASDAQ Global Select Market in substitution for our ADSs. On September 19, 2017, our ordinary shares began trading on the NASDAQ Global Select Market under the symbol of “SPI”.

 

On January 1, 2017, we deconsolidated Sinsin due to loss of control.

 

In September 2017, we entered into a framework share purchase agreement to acquire 100% equity interests of three Greek companies, namely THERMI SUN S.A, HELIOHRISI S.A., and HELIOSTIXIO S.A., from THERMI TANEO Venture Capital Fund (“TTVCF”), for a total consideration of EUR 16.8 million, subject to certain adjustments. The transaction is subject to customary closing conditions. These three companies own a total of four PV plants with 7.4MWp PV installations in northern Greece. The closing of the transaction took place in three separate stages (one for each company under acquisition). The acquisition of HELIOSTIXIO S.A. was closed in December 2017. The Company completed the second-stage acquisition of 100% of the equity interest of HELIOHRISI S.A., which owns 1.988 MW of photovoltaic projects in Greece on March 20 2019. The last of three acquisitions of 100% of the equity interest of THERMI SUN S.A., which owns 4.4 Megawatts (“MW”) of photovoltaic (“PV”) projects in Greece, was closed in November 1, 2019. With 7.4MWp PV installations added to SPI Energy’s existing PV portfolio in Greece, the Company becomes one of the significant PV owners in Greece.

 

 

 

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On December 10, 2018, we divested all our business and operations in China for nominal consideration due to the significant liabilities in the business.

 

On July 23 2019, the Company entered into a framework agreement to acquire up to eight solar PV projects, totaling 21MW in the State of Oregon (the “Oregon Portfolio”). On August 26, 2019, the Company completed the closing of Manchester and Waterford solar projects with a total of approximately 5.4MW. On September 10, 2019, the Company completed the closing on the Belvedere project with approximately 3.56MW of clean energy for the local community. On September 24, 2019, the Company completed the closing of the Dover and Clayfield solar projects with a total of approximately 5.45MW. On April 22, 2020, the Company completed the acquisition of the Cork project with a total of approximately 1.5MW. The Company has now closed 6 of the 8 projects within the Oregon Portfolio.

 

On September 26, 2019, the Company completed the closing on the sale of Sun Roof II and Sun Roof V to Theia Investments (Italy) S.r.l. (“Theia”) a company established by an infrastructure fund managed by Stafford Capital Partners (“Stafford”), a leading private markets investment and advisory group. Sun Roof II, comprised of three rooftop solar projects totaling 1.83 MW located in Sassari, Italy, and Sun Roof V, a 1 MW rooftop solar project located in Cisterna di Latina, Italy, have been in operation since 2012. Theia paid approximately EUR4.3 million to complete the transaction. On March 16, 2020, the Company completed the closing of the sale of its Sun Roof I assets, a 479 kWp rooftop solar project located in Aprilia, Italy, that has been in operation since 2012. Proceeds from the sale were approximately EUR 1.1 million before transaction fees, strengthening the Company’s balance sheet and providing additional capital for the development of solar assets in the US and Greece. After the sale of Sun Roof II, Sun Roof V and Sun Roof I, the Company currently owns only 1 PV asset with a capacity of 0.993 MW in Italy.

 

Nasdaq Compliance

 

On March 23, 2020, the Company received a notification letter from Nasdaq indicating that the Company is not in compliance with NASDAQ Listing Rule 5450(b)(3)(C) for continued listing because the market value of its publicly held shares (“MVPHS”) was less than $15 million. Normally, the Company would be eligible for a 180 day compliance period to regain the compliance. On April 17, 2020, the Company received a notification letter from Nasdaq indicating that the Company will have 156 calendar days from July 1, 2020, or until December 3, 2020 to regain compliance with the Nasdaq’s market value of publicly held shares (“MVPHS”) requirement. The Notice also stated that Nasdaq has determined to toll the compliance periods for bid price and MVPHS requirements (collectively, the “Price-based Requirements”) through June 30, 2020. As a result, companies presently in compliance periods for any Price-based Requirements will remain at that same stage of the process and will not be subject to being delisted for these concerns. Starting on July 1, 2020, companies will receive the balance of any pending compliance period in effect at the start of the tolling period to regain compliance. Accordingly, since the Company had 156 calendar days remaining in its MVPHS compliance period as of April 16, 2020, it will, upon reinstatement of the Price-based Requirements, still have 156 calendar days from July 1, 2020, or until December 3, 2020, to regain compliance. The Notices have no immediate effect on the listing of the Company’s securities. The Company can regain compliance at any time before December 3, 2020 by evidencing compliance with the MVPHS requirement for a minimum of 10 consecutive trading days.

 

On April 28, 2020, the Company received a notification letter from Nasdaq notifying the Company that its bid price per ordinary share had been below $1.00 for a period of 30 consecutive business days and, therefore, that the Company did not meet the minimum bid price requirement set forth in Rule 5450(a)(1) of the Nasdaq Listing Rules. Normally, the Company would be eligible for a 180 day compliance period to regain the compliance.

 

Given current market conditions, Nasdaq previously determined to toll the compliance periods for Price-based Requirements through June 30, 2020. As a result, the Company will, upon reinstatement of the Price-based Requirements, still have 180 calendar days from July 1, 2020, or until December 28, 2020, to regain compliance.

 

The Notices have no immediate effect on the listing of the Company’s securities. The Company can regain compliance at any time before December 28, 2020 by evidencing compliance with the bid price requirement for a minimum of 10 consecutive trading days.

 

 

 

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B. Business Overview

 

We are a global provider of PV solutions for business, residential, government and utility customers and investors. We provide a full spectrum of EPC services to third party project developers, as well as develop, own and operate solar projects that sell electricity to the grid in multiple countries, including the U.S., the U.K., Greece, Japan and Italy. Prior to 2014, we were primarily engaged in providing EPC services to developers in the U.S. We were also engaged in the development, manufacture and marketing of a variety of PV modules, the key components of solar parks that convert sunlight into electricity, and balance-of-system components, including our in-house brand. We have discontinued our manufacturing business and liquidated our research and development function. Beginning in 2014, we expanded our global project development business by ramping up our portfolio of global solar projects, including projects that we plan to hold in the long term and derive electricity generation revenue from our independent power producer model, or IPP model, and projects that we plan to sell in the future when we are presented with attractive opportunities under our build-and-transfer model, or BT model. We grow our project portfolio primarily through acquisitions and act as a secondary developer for the projects which are under construction or in pipeline upon acquisition. Solar projects in our current portfolio include projects at all stages of development, including projects in operation, projects under construction and projects in pipeline. See “—Our Global Project Development Business—Our Solar Project Portfolio.

 

For our EPC service business, the scope of our work encompasses engineering design procurement of technical components from PV module and panel manufacturers and contracting of construction and installation, which reaches both upstream and downstream along the spectrum of the solar business value chain. Our rigorous design and supply chain management as well as construction quality control enable us to design, build and deliver world-class solar system configurations with components that can work optimally together.

 

For our global project development business, as of June 29, 2020, we had completed a series of acquisitions of solar projects that were in operation, consisting of (i) 26.6 MW of projects in Greece, acquired in December 2014 for a total consideration of $79.330 million including the rights to be awarded up to 360MW EPC contracts, (ii) 4.3 MW of projects in Italy, acquired in February 2015 for a total consideration of $11.8 million, (iii) 1.082 MW, 1.988 MW and 4.4MW of projects in Greece, acquired in December 2017, March 2019 and November 2019 respectively, for a total consideration of EUR 12.88 million ($14.46 million), (iv) 0.2744 MW of projects in Japan, acquired in July 2017 for a total consideration of JPY 110 million ($ 0.98 million) and (v) a total of 15.77 MW DC of projects in the state of Oregon, US, acquired in August, September 2019 and April 2020 respectively for a total consideration of $1.3 million.

 

From January 2019 to December 31, 2019, we sold 1 solar project in Japan (1.99MW) to a third party at the consideration of $9.56 million, which has been recognized as revenue accordingly. On September 26, 2019, we sold Sun Roof II comprised of three rooftop solar projects totaling 1.83 MW, and Sun Roof V with1 MW rooftop solar project in Italy at the consideration of EUR4.3 million. On March 16, 2020, we sold Sun Roof I, a 479 kWp rooftop solar project located in Italy at the consideration of EUR1.1 million before transaction fees. After the sale of Sun Roof II, Sun Roof V and Sun Roof I, the Company currently owns only 1 PV asset with a capacity of 0.993 MW in Italy.

 

As of the date of this report, we are constructing an aggregate of 19.636 MW of projects in the U.S. under our BT model. We anticipate that the U.S. project will be connected to the grid in 2021.

 

We had 10.24MW of projects in announced pipeline as of June 29, 2020. See “—Our Global Project Development Business—Our Solar Project Portfolio.” We expect to complete the acquisition of, or commence permitting processes for, our projects in announced pipeline as soon as practicable. We believe these new additions, combined with our existing project portfolio, demonstrate our broad geographic reach and established presence across key solar markets and mitigate country-specific risks.

 

We divested all our operations in China in December 2018 for nominal consideration due to the significant liabilities in the business.

 

Deconsolidation

 

On January 1, 2017, we deconsolidated Sinsin due to loss of control.

 

Disposition of China Assets

 

On August 30, 2018, the Company entered into a share purchase agreement (the “SPA”) with Lighting Charm Limited (the “Buyer”), an affiliate of Ms. Shan Zhou, the spouse of Xiaofeng Peng, the Company’s Chairman of the Board of Directors and Chief Executive Officer. The SPA was approved by an independent committee of the Company’s Board of Directors and the transactions contemplated by the SPA closed on December 10, 2018. Pursuant to the terms of the SPA, the Company sold to the Buyer 100% of the shares of SPI China (HK) Limited (“SPI China”), which held all of the Company’s assets and liabilities related to its business in China (the “Acquired China Business”). These assets include EPC business, PV projects, Internet finance lease related business, and E-commerce in China.

 

 

 

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In connection with the transaction, a pre-closing restructuring was accomplished. The pre-closing restructuring resulted in: (1) SolarJuice Co., Ltd., a 100% wholly owned subsidiary of the Company, acquiring 80% of the equity interests in Solar Juice Pty Limited, a holding company which holds all the assets of the Company in Australia; (2) the Company acquiring all of the equity interests in Solar Power Inc. UK Service Limited, a holding company which holds all the assets of the Company in UK; (3) SPI Orange Power (Cyprus) Limited, a 100% wholly owned subsidiary of the Company, acquiring all of the equity interests in SPI Renewable Energy (Luxembourg) Private Limited Company S.a.r.l., a holding company which holds part of the assets of the Company in Italy; (4) SPI Orange Power (Cyprus) Limited acquiring all the equity interests in ItalsolarS.r.l, a company which holds a portion of the assets of the Company in Italy; (5) the Company acquiring all of the equity interests of Sinsin, a holding company which held all the assets of the Company in Greece; and (6) SPI Group Holding Co., Ltd., a 100% wholly owned subsidiary of the Company, acquiring 97% of the equity interests in SPI Solar Japan G.K.

 

On December 10, 2018, the Company and the Buyer executed the bought and sold notes and instrument of transfer relating to the shares in SPI China. Upon the execution of the bought and sold notes, the equitable title to the shares in SPI China past to the Buyer and until the legal title is transferred, the Company held the shares in SPI China on trust for the Buyer. On April 30, 2019, the legal title transfer was completed and the Buyer became the owner of the shares in SPI China.

 

Crypto Mining Hosting

 

In early 2018, we launched www.umining.io, a turnkey solution offering global crypto-mining hosting, training, sales, and repair services. As of December 31, 2019, we had 2 pilot mining sites in Canada and the U.S. We continue to look for potential investments to increase our mining capacity by the end of 2020

 

Hemp and CBD Business

 

In September 2019, the Company launched its newly established hemp and CBD business. The Company has executed a management services agreement with the Native American Agricultural Company (“NAAC”) to cultivate hemp in the Navajo Nation; and obtained licenses from the Navajo Nation to engage in lab testing, cultivation, processing, wholesale distribution, and retail sales of hemp. In January 2020, the Company completed the installation of its cannabidiol extraction and milling equipment at an approximately 25,000-sqft facility in Orange Cove, Fresno County in California. The newly installed CBD processing equipment is designed to enable the production of Hemp dry flower and Pre-roll, CBD crude oil, distillate, and isolate, serving the growers in California. The pre-production test runs of its CBD crude oil extraction and Hemp try flower and Pre-roll production process and quality control review have been completed. Currently, the Company is taking the orders from customers.

 

Business of Alfalfa and Other Related Agriculture Products

 

In May 2019, the Company announced to explore agriculture business for productions, sales or marketing of alfalfa and other related agriculture products in Arizona. Knight Holding Corporation is focused on becoming one of the largest global providers of alfalfa hay and other forage types. With China’s increasing demand for American alfalfa hay, we have recognized the importance of exporting to the Asia market. Committing ourselves to successfully becoming a major supplier of alfalfa, we have established a processing facility in Tonopah, Arizona. Our alfalfa pressing facility sits in the center of the Harquahala Valley, located in Western Maricopa County.

 

Engineering Design

 

As a critical first step in the EPC process, engineering design involves the planning of the entire solar project, from feasibility studies of the land and irradiation levels to efficient arrangement of mounting, modules and connection systems. Our technical team takes responsibility over initial solar project engineering with support from third-party contractors. The engineering design process includes the site layout and the electrical design, as well as assessment of a variety of factors in order to choose appropriate technologies and equipment for the project, particularly modules and inverters. Throughout the engineering design phase, we aim to reduce the risks, control the costs and improve the performance of our EPC projects.

 

 

 

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Procurement and Construction

 

In order to focus on our core downstream development and EPC service businesses, we no longer manufacture PV modules or produce other equipment such as controllers, inverters and balance of system components. Rather, we procure them from third-party manufacturers and install them in our PV systems as part of our EPC business.

 

We procure PV modules and other key equipment for project construction from independent suppliers and contract work to third-party EPC contractors in areas such as logistics, installation, construction and supervision. We believe this allows us to focus our resources on higher value-added tasks. We maintain an updated list of qualified and reliable global suppliers and local third-party contractors in the areas where we operate with a proven track record and with which we have established relationships.

 

We choose our suppliers and third-party EPC contractors through a competitive bidding process. The relevant departments of our headquarters organize and collect bids, communicate with bidders and coordinate with our regional development teams to meet local technical and legal requirements. This helps ensure that we have a strong, reliable and experienced supplier and construction team working with us on each of our EPC project.

 

Procurement of PV Modules and Other Equipment

 

We apply stringent quality assurance protocols to select components with a long useful life that are compatible with a variety of parameters of the project, including local topography and local solar irradiation.

 

PV modules, the primary equipment of our solar projects, typically contribute to a substantial portion of the overall system costs. We procure our PV modules from a wide array of suppliers including Trina Solar Limited, JinkoSolar Holding Co., Ltd., Xiexin Integration Technology Co., Ltd., JA Solar Holding Co., Ltd., LG Electronics, and Chint, among others.

 

We consider the following factors when we procure project equipment: technical specifications (such as size, type and power output), bid prices, warranty and insurance programs, spectral response, performance in low light, nominal power tolerance levels, degradation rate, technical support and reputation of suppliers. We typically require 10-year warranties for defects in materials or workmanship and 25-year warranty for module capacity under normal testing conditions (2-3% of capacity for the first year with a 0.5-0.8% linear degradation in capacity every year thereafter).

 

We are generally required to pay 100% of the purchase price within a period ranging from three months to six months after receipt, inspection and acceptance of the PV modules. We typically pay manufacturers deposits that represent 10% to 50% of the total purchase price.

 

Construction Contracting

 

When acting as a general contractor, we generally outsource the construction of our PV power plants to third-party construction companies and closely monitor their execution of our designs. Most of these companies are specialized EPC construction subcontractors. Our construction oversight teams conduct constructability reviews, provide construction support, contract administration and document control services, construction inspection, engineering support, instrumentation installation and monitoring, and on-site construction supervision and monitoring.

 

We utilize a number of metrics to manage and monitor the performance of our third-party contractors in terms of both quality and delivery time and to ensure compliance with applicable safety and other requirements. For instance, we may delegate qualified representatives to review, supervise, organize and provide comments on the third-party contractor’s design, construction plan, construction guidelines, materials and documentations. We also conduct periodic inspections to examine project implementation and quality against our project planning and quality standards and prepare periodic reports for review and approval by our relevant departments. If we identify any quality or progress issues that are attributable to the work of our third-party contractors, we will follow-up with them and monitor their rectification work.

 

 

 

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Those third-party contractors are responsible for the quality of the project and must maintain relevant insurance designating us as the beneficiary. They must ensure the project complies with all local safety, labor and environmental laws and regulations. We examine and keep records of the production-related safety documentation and insurance policies of our third-party contractors. All production-related tools and equipment used by our third-party contractors must be compliant with and certified by applicable regulatory standards. The contractors submit detailed quality assurance procedures and regularly updates us on the progress, quality and safety of the project. Our third-party contractors utilize a variety of measures to protect the project location, including the transmission line, built facilities and infrastructure, from damage during the construction process.

 

We are generally entitled to damages if our third-party contractors fail to meet the prescribed requirements and deadlines under our contracts. We usually negotiate to pay our third-party contractors the remaining 5% or 10% of the contract price after the expiration of the quality warranty period, which generally ranges from one to two years. If we pay the full contract price upon completion of a project, we require the contractor to provide a performance guarantee in respect of the warranty obligations for such project.

 

Commissioning and Warranties

 

We assess and evaluate our solar projects before completion. Upon completion of construction, we conduct commissioning tests prior to grid connection. The tests include a detailed visual inspection of all significant aspects of the plant, an open circuit voltage test and a short circuit current test, and then a direct-current test after connecting to the grid. We focus commissioning tests on the quality of the construction and major equipment. These tests are conducted in order to ensure that the plant is structurally and electrically safe, and is sufficiently robust to operate as designed for the specified project lifetime.

 

After grid connection, we also conduct commissioning tests on electricity generation performance. As grid connection requires approval from power companies, post-grid connection commissioning tests are also conducted by local quality supervisors or third-parties approved by the power companies. In addition to the warranties provided by the manufacturers of modules and balance-of-system components, EPC contractors also typically provide a limited warranty against defects in workmanship, engineering design, and installation services under normal use and service conditions for a period of one to two years following the energizing of a section of a solar power plant or upon substantial completion of the entire solar power plant. In resolving claims under the workmanship, design and installation warranties, the new owner has the option of remedying the defect to the warranted level through repair, refurbishment, or replacement.

 

Our Global Project Development Business

 

We develop and sell or own and operate solar projects which sell electricity to the grid in multiple countries, including the U.S., the U.K., Greece, Japan and Italy. In 2014, we expanded our global project development business by ramping up our portfolio of global solar projects, including projects that we plan to hold in the long term for electricity generation revenue under our IPP model, as well as projects which we plan to sell in the future when we are presented with attractive opportunities under our BT model. We grow our project portfolio primarily through acquisitions and our project acquisition strategy is based on rigorous market research and due diligence on the target project’s capacity, local energy demands, applicable tariff regime, supporting infrastructure, local government support and topography for construction in the case of projects under construction and projects in pipeline. We also consider available financing options, internal rate of return, key technical components, terms of the grid connection agreements and power purchase agreements, or PPAs, as well as guarantees on performance for projects in all development stages. We act as secondary developer for the projects under construction or in pipeline when they are acquired. We either hold these projects in the long term for electricity generation revenue or sell them when presented with attractive opportunities.

 

We had an aggregate 46.676 MW of projects in the U.S., the U.K., Greece, Japan and Italy as of June 29, 2020. We divested all of our business in China in December 2018.

 

Most of our solar projects are subject to the FIT or PPA policies of the countries or regions where they operate. FIT refers to the national and local subsidies to solar power generation supported by the government. PPA refers to power purchase agreement with electricity company. For the FIT terms of our projects, please refer to “—Our Solar Project Portfolio.”

 

 

 

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Our Solar Project Portfolio

 

We expect our solar projects to have operational lives of 25 to 27 years. As of June 29, 2020, our solar project portfolio consisted of:

 

  · Projects in Operation — “Projects in operation” refers to projects connected to the grid and selling electricity. As of June 29, 2020, we have projects in operation with an attributable capacity of 16.8 MW in the U.K., Greece, Japan and Italy.
     
  · Projects under Construction — “Projects under construction” refers to projects at the construction stage. We generally complete construction in three to six months after obtaining all the permits required for construction, if local climate and topographical conditions permit. We have 19.636 MW of projects under construction in the US as of June 29, 2020 and we expect substantially all of them to be connected to the grid by 2021.
     
  · Projects in Announced Pipeline — “Projects in announced pipeline” refers to projects that we have entered into definitive agreements to develop with a third party in which we expect to own a majority of the equity interest, and projects we have entered into definitive agreements to acquire. We have 10.24 MW project pipeline in the state of Hawaii, U.S. as of June 29, 2020.

 

The following summary sets forth our solar projects in operation, solar projects under construction and solar projects in announced pipeline as of June 29, 2020. For more recent development of the solar projects portfolio and potential sale of our solar projects, please see “Item 5. Operating and Financial Review and Prospects—B. Liquidity and Capital Resources—Capital Resources and Material Known Facts on Liquidity.

 

Solar Projects in Operation*

 

Country   Project name   Gross capacity (MW)   Our equity holding   Attributable capacity (MW)   Ground/ Rooftop   Connection date   FIT terms
Greece   HELIOSTIXIO SA   1.082   100%   1.082   Ground   September 2012   EUR0.215/kWh
Greece   HELIOHRISI SA   1.988   100%   1.988   Ground   June
2012
  EUR0.215/kWh
Greece   THERMI SUN SA   4.400   100%   4.400   Ground   June
2012
  EUR 0.215/KWh for the 3.4MW and EUR 0.25/KWh for the 0.7MW
Japan   Ibaraki   0.2744   100%   0.2744   Ground   December 2014   JPY36/kWh
Italy   ItalsolarS.r.l.   0.993   100%   0.993   Ground   December 2009   EUR0.325/kWh
U.K.   CairnhillSolarfield Limited   3.0906   100%   3.0906   Ground   February 2016   1.3 ROCs
U.K.   Emotion energy Solar One Limited   4.971   100%   4.971   Ground   March 2016   1.3 ROCs
Total       16.8       16.8            

_______________

 

*       The PPA agreements fix the FIT during the first 20 years of operation and will drop to EUR 0.09/ KWh after the 20th year for the next 7 subsequent years. The FIT will be charged based on the relevant law in force in Greece. The current law in force is law4254/2014. According the monthly FIT statements by the electricity supply bureau in Greece, the FIT range of the PV plants was EUR0.19~0.20/kWh in 2014. Sinsin was deconsolidated in the year of 2017 due to loss of control.

 

 

 

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Solar Projects Under Construction*

 

Country

 

Our equity
holding

 

Number of solar projects

 

Attributable
capacity (MW)

 

Ground/Rooftop

 

Scheduled
Connection
date

 

FIT terms

US   100%   2   1.996   Ground   2021   <500kW: $0.238/kWh>500kW: $0.236/kWh
US   100%   4   12.5   Ground   2021   N/P
US   100%   2   5.14   Ground   2021   N/P
Total       8   19.636            

_______________

 

* Intended by us to be BT projects in 2018 and 2019 and may be held as our IPP projects upon completion of construction if we determine that the return of owning the projects and selling electricity is more attractive.

 

As of December 31, 2019, we had capital commitments of approximately $5.1 million. As the total capital expenditure may be affected by various factors including, among others, increases in cost of key equipment and materials, failure to obtain sufficient financing, unexpected engineering or environmental issues as well as changes in regulatory requirements, the actual total capital expenditure may deviate significantly from such estimates. We expect to finance construction of these projects using cash from our operations and private placements, bank borrowings, financial leases as well as other third-party financing options.

 

Solar Projects in Announced Pipeline*

 

As of June 29, 2020, we were in the process of obtaining relevant regulatory approvals for the following self-developed and acquired solar projects:

 

  · a 10.24 MW project in the state of Hawaii, U.S.;

 

_______________________

 

* Our project portfolio excludes projects for which we provide EPC services but in which we do not own any equity interest or do not expect to acquire and excludes projects we have disposed of.

 

We sold all of our solar projects in China in connection with the sale of our Chinese business in December 2018.

 

Featured Markets

 

  · U.S. We have been present in the U.S. market since the commencement of our business. As of June 29, 2020, we have 19.636MW of projects under construction and 10.24 MW of projects in announced pipeline.
     
  · U.K. We entered the U.K. market in 2014. As of June 29, 2020, we owned 2 solar projects in operation with a total capacity of 8.1MW. In the U.K., all of the projects in our portfolio are eligible for FIT.
     
  · Greece. We entered the Greek market in 2014. As of June 29, 2020, we own twelve (12) operating solar projects with a total capacity of 33.8 MW, all of which belong to seven (7) different Greek societe anonymes. Four (4) societe anonymes, owned by Sinsin which was deconsolidated in 2017, collectively own eight (8) of the twelve (12) operating solar projects. In Greece, all of the projects in our portfolio are eligible for FIT. In March 2019 and November 2019, we acquired solar projects of 1.988 MW and 4.4 MW, respectively.
     
  · Japan. We entered the Japanese market in 2014. As of June 29, 2020, we have 0.2744 MW of solar project in operation. In Japan, all of our projects are eligible to receive FIT.
     
  · Italy. We entered the Italian market in 2015. As of June 29, 2020, we have 0.993 MW of solar projects in operation. In Italy, all of our projects are eligible to receive FIT.

 

 

 

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The following table sets forth a breakdown of our net sales by geographic location of customers for the periods indicated:

 

    For the year ended December 31,  
    2017     2018     2019  
    ($ in thousands except percentage)  
United Kingdom     6,903       5.7%       932       0.7%       979       1.0%  
Australia     112,174       92.3%       91,381       72.8%       80,518       82.3%  
United States                 18,721       14.9%       4,320       4.4%  
Greece                 378       0.3%       1,138       1.2%  
Japan     511       0.4%       12,437       9.9%       9,563       9.8%  
Italy     1,932       1.6%       1,733       1.4%       1,365       1.4%  
Total     121,520       100.0%       125,582       100.0%       97,883       100%  

 

Acquisition of Solar Projects

 

We made significant acquisitions of solar projects since 2017. See “Item 5. Operating and Financial Review and Prospects—Operating Results—Recent Acquisition Activities” on the projects we have acquired or expect to acquire. We may keep acquiring completed solar projects or other assets from independent third-parties which we believe will synergize with our existing operations and expansion strategies. Those acquisitions would be preapproved by our board.

 

Our board of directors has formulated a uniform standard for assessing target assets with respect to the acquisition of solar projects, and such standard may be adjusted based on our Company’s business, financial condition and results of operations from time to time. Our board of directors considers the following criteria when assessing potential acquisitions, among others:

 

  · the internal rate of return of the project prior to leverage, taking into consideration applicable FIT or PPA rate, and other applicable government incentives;
     
  · our ratio of debt-service coverage;
     
  · the solar irradiation hours of the project, after discounting for performance;
     
  · the use of financeable and reliable brands for and technical specifications of the key components, including modules, invertors, mounting systems, racks/tracking systems, and EPC integration services;
     
  · any performance guarantees required, as well as any compensation for failing to perform;
     
  · clear and trustworthy opinions from third-party professionals after detailed technical, financial, tax and legal due diligence; and
     
  · reasonable payment terms matching relevant milestones.

 

Market Due Diligence

 

We aim to select solar projects located at sites with long solar irradiation hours, high energy demand, good supporting infrastructure, favorable tariff regimes, local government support and appropriate topography for construction. We systematically analyze land cost, solar irradiation, grid connection capacity, land and property status, government support, availability of project financing and any other project information that would impact the overall economic return of the project. We target projects that we believe to have appropriate balance of financial returns, costs and risks.

 

 

 

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Permit Development Process

 

The permit development process is the process of obtaining all required permits, certifications and approvals from relevant government authorities for solar project development. As of December 31, 2019, most of our solar projects in operation had been undertaken by us as a secondary developer.

 

We acquire solar projects under development by third parties which have secured land use rights, development permits, or even begun construction. We typically learn about potential projects suitable for secondary development from our business partners, national or local governments, industry publications, overseas engineering exhibitions or overseas business liaison organizations. Our criteria for sourcing solar projects include land cost, solar irradiation, availability of FIT benefits or other government incentives, grid connection capacity, local financing opportunities and other project information. The selection process involves detailed due diligence into those third parties’ relevant company documentation, financial projections and the legal status of permits already secured by the project.

 

After an acquisition, we continue to develop the project through grid connection as our own. We pursue secondary permit development in markets with relatively liquid markets for energy permits transfer, thus allowing a smooth transfer of pre-operational solar assets from third-party developers to us. Under certain circumstances, we negotiate site acquisition, preliminary permits, grid connection agreements and PPAs for projects under our secondary development model depending on the development stage when we acquire them.

 

Permit Development Steps

 

The following sets forth each step of our permit development:

 

  · Evaluating project sites and location—The critical factors for evaluating the site of a solar project include its solar irradiation, its proximity to a grid connection point, zoning regulations and its general geographic and topographic features. If a project site is suitable for development or acquisition, our regional development team submits a site assessment report on the land and other related information to our management for evaluation and approval.
     
  · Due diligence—Our in-house technical and EPC team, along with third-party experts we contract as needed, examine project items such as engineering and design specifications, technical risks and solar irradiation and environmental analyses. We pay special attentions to potential delays and cost overruns, grid capacity and additional costs which may not be captured in the technical design. We also ensure that a project has clean legal titles to the permits and other permissions it has secured. In all cases, we ensure that local regulations allow us to properly carry out our business intentions for a project, whether by allowing us to hold the project under our IPP model or transfer it under our BT model.
     
  · Market considerations—We target projects which have appropriate balance of financial returns, costs and risks. Important factors include, the costs of maintenance, local taxes and fees, and the availability of applicable FIT, local credit or other refinancing options. Our financial teams conduct financial forecasts based on information about the financial prospects of the solar project and the local energy market to make a profitability estimate and adjust our capital plan accordingly.
     
  · Permitting—Permit and licensing requirements vary depending on the jurisdiction of the solar project, but the key permits, licenses and agreements typically required for solar projects include land acquisition or lease contracts, environmental impact assessments, building or rezoning permits, planning consents, grid connection contracts and PPAs. We work closely with relevant government and private stakeholders to secure all necessary permits to develop a project, including local or regional planning authorities, electric utilities, local communities, environmental agencies, as well as health and safety agencies.

 

Project Financing

 

A solar project sponsor typically sets up a project company as a special purpose vehicle to own a particular solar project and arrange for project financing. We typically enter into contracts and other agreements under the name of the project company, which facilitates project financing by isolating the project and its assets, and any potential securitization requirements, from our broader global business.

 

 

 

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The construction cost of a project is mainly funded by our working capital, and to a lesser extent, funded through bank borrowings in the year ended December 31, 2019. We seek to negotiate favorable credit terms with our equipment suppliers and EPC contractors when possible, such that payment is not due until several months after construction and grid connection are complete. While the exact mix of external and internal financing varies from project to project, we estimate that as of December 31, 2019, approximately 50% to 60% of the total costs of our solar projects under construction were funded by our working capital, with the remainder funded through bank borrowings. Our working capital dedicated towards a particular project would be generally available to us for other purposes if needed, and would not be considered restricted cash isolated at that project. We also have given guarantees to the lenders on certain project financings. However, none of our cash and cash equivalents have been collateralized to guarantee such project financings.

 

We generally seek to arrange debt financing for our solar projects from local banks and financial leasing companies in countries that are more open and receptive to renewable energy investments.

 

Engineering, Procurement and Construction

 

Given the multi-jurisdiction coverage of our project portfolio, we choose to utilize our EPC capabilities or contract third party EPC contractors to service our own projects, based on our cost analysis taking into consideration of locations, topographical conditions as well as the quality and competition of local EPC service providers. For detailed information on our EPC capabilities, see “—Our Engineering, Procurement and Construction Service Business.”

 

Operation and Maintenance Business

 

We operate and maintain solar projects connected to the grid, especially those we have provided EPC services to. We may choose to contract third party O&M contractors to service our own projects, based on our cost analysis taking into consideration of locations, topographical conditions as well as the quality and competition of local EPC service providers. We regularly maintain solar projects for our customers to ensure that these projects operate in good condition and comply with the recommendations issued by the grid company in order to remain connected.

 

By operating the projects effectively and efficiently, we reduce down time and increase electricity output. A project’s major lifecycle costs mainly consist of maintenance fee and depreciation of modules, inverters and transformers. We monitor electricity production and any incidents or abnormalities which may impede normal operation. We adjust production levels based on the available capacity of the grid.

 

Our Australia Distribution Business

 

Solar Juice Pty Limited or Solar Juice Australia is a wholesale distributor of Solar PV panels, solar inverters, components and complete solar systems, which was established in Australia in September 2009. It is one of the largest importers of solar related products in Australia with over 5000 B2B customers in every state and territory of Australia, New Zealand and Southeast Asia. As of the date of this annual report, Solar Juice Australia has nine warehouses located around Australia.

 

Solar Juice Australia, as a wholesale supplier, has developed key partners which have supported the growth of its brands throughout Australia, New Zealand and SEA Countries. Solar Juice Australia aligns itself with the most popular brands SMA, Fronius, ABB, Solax, LG Electronics, LG Chem, Trina,JA and Chint, which have the same values as Solar Juice Australia, namely service and support, quality and value for money. Solar Juice Australia’s products are backed by warranties held in Australia, experience and knowledge which set it apart from the competition, and commitment to serving the customer’ needs. Solar Juice Australia’s own branded products Opal Panels, Opal Switch and Opal storage provided customers with more value for money choices.

 

After years’ continuous rapid growth, Solar Juice Australia faced a few external and internal challenges including PV market price fluctuation, limited working capital and suppliers’ credit in 2018. Solar Juice Australia’s management actively undertook an operational restructure to meet market changes, adjusted inventory level to fit working capital, cut operation costs and general expenses to keep profit margin. Solar Juice Australia’s inventory and trade payable balances were reduced by 14% and 38% respectively, borrowings decreased 17% after a replacement of previous trade finance with new debt finance from December 31, 2018 to December 31, 2019. As a result, Solar Juice Australia successfully improved its operational efficiency and cost-effectiveness, achieved $0.55 million net profit target, with a stronger financial position by the end of 2019.

 

 

 

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Solar Juice Australia will benefit from these improvements in long term and keep its leadership in premium PV market in Australia. In the meantime, Solar Juice Australia’s traditional strengths such as outstanding customer services, technical supports and warranty services will keep differentiating it from the competitors.

 

In May 2020, Solar Juice Co. Ltd (“Solar Juice Co”),a wholly owned subsidiary of the Company, in its capacity as shareholder of Solar Juice Australia (an Australian company) together with Mr. Kun Fong Lee and Mr. Jinhan Zhou (who hold shares in Solar Juice Australia as trustee for Solar Juice Co) ("SPI Shareholders") commenced proceedings in the Federal Court of Australia as plaintiffs against its other shareholders and some of its other directors and purported directors and against Solar Juice Australia ("Defendants") in relation to a purported new rights issue undertaken by Solar Juice Australia, the purported removal by those other shareholders of Mr. Lee and Mr. Zhou as directors of Solar Juice Australia and the purported appointment of an additional director. The SPI Shareholders allege that the purported new rights issue and the subsequent purported removal and appointment of directors are invalid and ineffective and therefore should be set aside. If effective, the purported rights issue will result in the SPI Shareholders' shareholding in Solar Juice Australia being reduced from 80% to 40%. If our lawsuit is not successful, we will not control Solar Juice Australia or be able to consolidate its financial results in our financial statements and our financial results and stock price will be materially adversely affected. Solar Juice currently accounts for 82.3% of our revenues and 15.7% of our total assets.

 

 

Competition

 

Solar Power Market

 

The solar power market is intensely competitive and rapidly evolving, and we compete with major international and domestic companies over the development of solar projects. Our major competitors include leading global players such as SunPower Corporation, First Solar, Inc., Canadian Solar, Inc., SunEdison, Inc., SolarCity Corporation, Lightsource Renewable Energy Limited, and regional players such as West Holdings Corporation, Looop Inc., and other regional and international developers.

 

We believe that we can compete favorably with our competitors given that the key competitive factors for solar project development and operation include, without limitation:

 

  · industry reputation and development track record;
     
  · site selection and acquisition;
     
  · permit and project development experience and expertise;
     
  · relationship with government authorities and knowledge of local policies;
     
  · ability to secure high-quality PV modules and balance-of-system components at favorable prices and terms;
     
  · ready access to project financing;
     
  · control over the quality, efficiency and reliability of project development;
     
  · expertise in permit and project development; and
     
  · expertise in providing EPC and O&M services.

 

 

 

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However, we cannot guarantee that some of our competitors do not or will not have advantages over us in terms of greater operational, financial, technical, management or other resources in particular markets or in general. In terms of the broader energy sector, the entire solar industry faces competition from other power generation sources, including conventional sources as well as other emerging technologies. Solar power has certain advantages and disadvantages when compared to other power generating technologies. The advantages include the ability to deploy products in many sizes and configurations, install products almost anywhere in the world, provide reliable power for many applications and reduce air, water and noise pollution. Yet other energy sources have advantages which may result in electric utilities, grid companies or other off-takers to enter PPAs or other electricity purchase arrangements with companies specializing in those energy sources rather than us or other companies specializing in solar power.

 

Cryptocurrency Hosting Services

 

Cryptocurrencies and cryptocurrency mining are new industries, the competitive landscapes are still developing. Although the barriers to entry in this market are low, most of the large cryptocurrency mining farms such as HIVE Blockchain, Hut8Mining, NVIDIA, Bitfury Mines, Bcause LLC and Bitmain, cater to large investors.

 

However, cryptocurrency mining still requires large amounts of energy to sustain. Our competitive advantage as a green energy producing company in this industry would be being able to offset the high electrical bills required in the mining process by providing energy from our own energy grids and solar farms.  

 

Hemp and CBD Business

 

Hemp and CBD are also relatively new industries that sprung up due to the legalization of recreational marijuana in many states across the United States. Being one of the first energy companies to venture into this industry, our competitive advantage in this area is being able to supplement energy needs of CBD and Hemp production from our own energy grids or solar farms. This will offset a significant portion of the costs required for production that can potentially help us to price more competitively against other companies in the industry. However, the CBD and Hemp industry is still in its early stages of development. The demand of these products have not solidified and the growth of the industry is not as strong as its recreational marijuana counterpart.

 

Business of Alfalfa and Other Related Agriculture Products

 

Our in-depth research into this market has shown that there is a growing demand for Alfalfa grass, especially in Eastern countries like China. Alfalfa grass is commonly used as stock feed for farmed animals like cows. Our history of operations in China has helped us to gain partners and grow a solid customer base over the years. Our knowledge of the Chinese market will also prove to be valuable in this venture.

 

Suppliers

 

There are numerous suppliers of PV modules in the solar power industry, and we have adopted a supplier-neutral approach. For both our EPC service business and global project development business, we select the suppliers based on whether we could obtain high-quality PV modules and balance-of-system components at favorable prices and payment terms. For both our EPC service and global project development business, we procure our PV modules from a broad range of suppliers including Trina Solar Limited, JinkoSolar Holding Co., Ltd., Xiexin Integration Technology Co., Ltd., JA Solar Holding Co., Ltd., LG Electronics, and Chint, among others.

 

Our major suppliers of our alfalfa business and CBD and hemp is the local growers near our hay processing facilities in the state of Arizona and also CBD & hemp processing facility in the state of California.

 

Customers and Marketing

 

We have historically provided EPC and O&M services, a line of business we are still engaged in. We are also selling electricity to the grid under our IPP model as well as selling solar projects under our BT model. Customers of our EPC services include independent power developers and producers as well as commercial and industrial companies. For our global project development business, we sell electricity to power companies and other electricity off-takers, including government-owned utility companies, operating in the United States, Greece and Italy under our IPP model. Purchasers of our BT projects included utility companies, independent power developers and producers, commercial and industrial companies as well as investors in the solar business. Further, customers of our Australia distribution business include residential ones, towards which we distribute PV modules, balance of system components, solar monitoring systems and inverters.

 

 

 

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From the year 2018 to 2019, there is a slightly decrease in the proportion of revenue from sales of PV solar systems, the figures for sales of PV solar components also saw a slight downwards trend.

 

We promote our reputation by participating in industry conferences worldwide and aggressively sourcing development opportunities in markets with strong growth potential. Members of our senior and local management team routinely meet with industry players and interested investors. Our business development teams around the world have significant experience building business in local markets and actively pursue growth opportunities around the world. We intend to continue to increase our marketing efforts going forward.

 

We historically engaged in high-profile marketing activities focused on developing our brand awareness not just among the solar business developers who have traditionally been our customers, but also among the general public. Since we have been in solar business for 14 years, we have built our brand awareness and lately we have not engaged in marketing activities.

 

Seasonality

 

Demand for solar power products tends to be weaker during the winter months partly due to adverse weather conditions in certain regions, which complicate the installation of solar power systems. Our operating results may fluctuate from period to period based on the seasonality of industry demand for solar power products. Certain aspects of our operations are also subject to seasonal variations. For example, we may schedule significant construction activities to connect solar projects to the grids prior to a scheduled decrease in FIT rates in order to qualify for more favorable FIT policies.

 

Likewise to hemp and CBD business, demand and our operating results for hemp and CBD products fluctuate from period to period based on the seasonality of industry demand for solar power products.

 

Insurance

 

We maintain the types and amounts of insurance coverage that we believe are consistent with customary industry practices in all the countries where we operate. Our insurance policies cover employee-related accidents and injuries, property damage, machinery breakdowns, fixed assets, facilities and liability deriving from our activities, including environmental liability. We maintain business interruption insurance for interruptions resulting from incidents covered by insurance policies. We have not had any material claims under our insurance policies that would either invalidate our insurance policies or cause a material increase to our insurance premiums. We cannot assure you, however, that our insurance coverage will adequately protect us from all risks that may arise or in amounts sufficient to prevent any material loss.

 

Regulations

 

We operate in multiple jurisdictions, including the U.S., Japan, the U.K, Greece, Italy and Australia. We are therefore subject to complex laws, regulations and policies promulgated by the governments and government-run utilities of these jurisdictions, including FIT regulations, clean energy incentive rules and programs, laws and regulations that apply to all power producers, regulations that specifically apply to solar power project operators, EPC service providers as well as solar kit distributors, tax regulations and intellectual property laws, among others. Likewise, our hemp and CBD businesses are subject to various laws, regulations and guidelines by governmental authorities relating to, among other things, the manufacture, marketing, management, transportation, storage, sale, pricing and disposal of cannabis, U.S. hemp and cannabis-based products, and also including laws, regulations and guidelines relating to health and safety, insurance coverage, the conduct of operations and the protection of the environment.

 

 

 

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C. Organizational Structure

 

The following table sets out our principal subsidiaries as of December 31, 2019:

 

Subsidiaries Place of Incorporation Percentage of ownership
Solar Juice (HK) Limited Hong Kong 100%
SPI Group Holding Co., Ltd. Hong Kong 100%
SP Orange Power (HK) Limited Hong Kong 100%
SPI Investment Holding Limited British Virgin Islands 100%
SolarJuice Co., Ltd. Cayman 100%
SPI Orange Co., Ltd. Cayman 100%
Knight AG Holding Co., Ltd. Cayman 100%
Knight Holding Corporation U.S. 100%
Knight AG Sourcing Inc. U.S. 100%
CBD and Hemp Group Co.,Ltd. U.S. 100%
1215542 B.C. LTD. Canada 100%
SPI Solar, Inc. U.S. 100%
SPI Orange Power (HK) Limited Hong Kong 100%
SPI Renewable Energy (Luxembourg) Private Limited Company S.a.r.l.(1) Luxembourg 100%
Italsolar S.r.l. Italy 100%
Heliostixio S.A. Greece 100%
Helioxrisi S.A. Greece 100%
THERMI SUN S.A.

Greece

100%
Solar Juice (MY) SdnBhd Malaysia 100%
Solar Juice (SG) Pte Ltd Singapore 100%
Solar Juice Holding Pte Ltd. Singapore 100%
Calwaii Power Holding, LLC U.S. 100%
Solar Juice USA Inc. U.S. 100%
Solar Juice Pty Limited Australia 80%
SPI Solar Japan G.K.(2) Japan 97%
Solar Power Inc. UK Services Limited U.K. 100%
Emotion Energy Solar One Limited U.K. 100%
Cairnhill Solar field Limited U.K. 100%
SP Orange Power (Cyprus) Limited Cyprus 100%
Manchester Solar, LLC US 100%
Belvedere Solar LLC US 100%
Dover Solar LLC US 100%
Waterford Solar LLC US 100%
Clayfield Solar LLC US 100%

_____________________

 

Notes:

 

(1) SPI Renewable Energy (Luxembourg) Private Limited Company S.a.r.l. holds two solar power project entities in Italy and one entity in Germany.

 

(2) SPI Solar Japan G.K. holds one solar power project entities in Japan.

 

 

 

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D. Property, Plant and Equipment

 

Our global corporate headquarters are located in Hong Kong SAR, China, which is under a one-year lease that expires on May 3, 2021. We occupy approximately 3,332 square feet of office space in Santa Clara, California, for legal and business development, under a lease that expires in June 30, 2021. We occupy approximately 10.5 acre industrial property in Orange Cove, California, under a lease that expires in December 31 2049, and be granted an option to purchase the property. We owned approximately 120 acre land in Arizona, US. We occupy approximately 114 square meters of office space in Athens, the headquarters of the four Greek SPVs, under a monthly lease that expires on June 30, 2020. We occupy approximately 80 square feet of office space in London for operations and business development under a lease which renews every six months. We lease approximately 2,155 square meters of office space and warehouse space in Wetherill Park, Sydney, which expires on July 31, 2021.

 

ITEM 4A. UNRESOLVED STAFF COMMENTS

 

None.

 

ITEM 5. OPERATING AND FINANCIAL REVIEW AND PROSPECTS

 

You should read the following discussion and analysis in conjunction with our financial statements and the related notes appearing elsewhere in this annual report on Form 20-F. This discussion may contain forward-looking statements based on current expectations that involve risks and uncertainties. Our actual results may differ materially from those anticipated in these forward-looking statements as a result of various factors, including those set forth under “Item 3. Key Information—D. Risk Factors” or in other parts of this annual report on Form 20-F.

 

A. Operating Results

 

We are a global provider of photovoltaic (PV) solutions for business, residential, government and utility customers and investors. We develop solar PV projects which are either sold to third party operators or owned and operated by us for selling of electricity to the grid in multiple countries in Asia, North America and Europe. In Australia, we primarily sell solar PV components to retail customers and solar project developers. Since 2018, we have engaged in the sale of bitcoin mining equipment, providing hosting services to mine bitcoins. In 2019, we began selling hay from the United States to China.

 

Our liquidity position has deteriorated since 2015. We suffered losses of $91.0 million, $12.3 million and $15.1 million for the years ended December 31, 2017, 2018 and 2019, respectively. We also had an accumulated deficit of $585.4 million and a working capital deficit of $113.5 million as of December 31, 2019. For a detailed discussion, please see “Item 5. Operating and Financial Review and Prospects—B. Liquidity and Capital Resources—Capital Resources and Material Known Facts on Liquidity.

 

These may raise substantial doubt about our ability to continue as a going concern. We have developed a liquidity plan, including cost saving measures and improvements in working capital management. We believe this liquidity plan, if executed successfully, will provide sufficient liquidity to meet our obligations for a reasonable period of time. However, we cannot assure you that this liquidity plan will be successfully executed.

 

Principal Factors Affecting Our Results of Operations

 

We believe that the following factors have had, and we expect that they will continue to have, a significant effect on the development of our business, financial condition and results of operations.

 

COVID-19

 

The pandemic of a novel coronavirus (COVID-19) has resulted in a widespread health crisis that has adversely affected the economies and financial markets worldwide. Government efforts to contain the spread of the coronavirus through lockdowns of cities, business closures, restrictions on travel and emergency quarantines, among others, and responses by businesses and individuals to reduce the risk of exposure to infection, including reduced travel, cancellation of meetings and events, and implementation of work-at-home policies, among others, have caused significant disruptions to the global economy and normal business operations across a growing list of sectors and countries.

 

Our operating results substantially depend on revenues derived from sales of PV project assets, provision of electricity and our Australian subsidiary’s trading of PV components. As the COVID-19 spread continues, the measures implemented to curb the spread of the virus have resulted in supply chain disruptions, insufficient work force and suspended manufacturing and construction works for solar industry. One or more of our customers, partners, service providers or suppliers may experience financial distress, delayed or defaults on payment, file for bankruptcy protection, sharp diminishing of business, or suffer disruptions in their business due to the outbreak. These preventative measures have also impacted our daily operations. The efforts enacted to control COVID-19 have placed heavy pressure on our marketing and sales activities. Moreover, due to the decrease in prices of crude oil, the demand for solar energy can decrease in the near future. We continue to assess the related risks and impacts COVID-19 pandemic may have on our business and our financial performance. In light of the rapidly changing situation across different countries and regions, it remains difficult to estimate the duration and magnitude of COVID-19 impact. Until such time as the COVID-19 pandemic is contained or eradicated and global business return to more customary levels, our business and financial results may be materially adversely affected.

 

 

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Market Demand

 

Our revenue and profitability depend substantially on the demand for our PV solutions, which is driven by the economics of PV systems, including the availability and size of government subsidies and other incentives, government support, cost improvements in solar power, as well as environmental concerns and energy demand. The world PV market in terms of new annual installations is expected to grow significantly in the next five years, providing EPC service providers and solar project developers like us with significant opportunities to grow our business.

 

Many markets in the PV industry continue to be affected by government subsidies and economic incentives. A number of countries have introduced highly favorable FIT price support regimes. For example, Japan, which has a high demand for power and low domestic fossil fuel reserves, faces relatively high energy costs. As a result, the Japanese government has introduced an attractive FIT price support regime to encourage the development of solar parks. In 2016, the United Kingdom reduced its FIT for all technologies by 65% at the national level. In Asia, several countries reduced their FIT rates. For example, Japan reduced its solar FIT by 12.5% for 2017 and aims for cuts of 10% or more in the next two years. While governments generally ratchet down PV subsidies over time to reflect anticipated declines in the system costs of solar parks, the ratchet down schedules often underestimate our actual realized decrease in costs thus their effect on our margins is manageable. To foster our growth, we have shifted our focus away from countries with less favorable subsidy regimes and towards countries with more favorable subsidy regimes.

 

In the long term, as PV technology advances and the average system costs of solar projects decrease, we expect the market for electricity in a growing number of countries to achieve grid parity. As the PV industry becomes more competitive against other energy industries and widespread grid parity strengthens demand for solar projects, we expect our costs of sales to decrease and our revenue and profitability to increase.

 

Government Subsidies and Incentive Policies

 

We believe that the growth of the solar power industry in the short term will continue to depend largely on the availability and effectiveness of government incentives for solar power products and the competitiveness of solar power in relation to conventional and other renewable energy resources in terms of cost. Countries in Europe, notably Italy, Germany, France, Belgium and Spain, certain countries in Asia, including Japan, India and South Korea, as well as Australia and the United States have adopted favorable renewable energy policies. Examples of government sponsored financial incentives to promote solar power include capital cost rebates, FIT, tax credits, net metering and other incentives to end users, distributors, project developers, system integrators and manufacturers of solar power products.

 

Governments may reduce or eliminate existing incentive programs for political, financial or other reasons, which will be difficult for us to predict. Reductions in FIT programs may result in a significant fall in the price of and demand for solar power related products. Our revenue and operating results may be adversely impacted by unfavorable policy revisions, such as reductions FIT in the United States, our largest market, and certain major markets for our PV solutions. Electric utility companies or generators of electricity from fossil fuels or other renewable energy sources could also lobby for a change in the relevant legislation in their markets to protect their revenue streams. Government economic incentives could be reduced or eliminated altogether.

 

Our Solar Power Generation and Operations Capabilities

 

Our financial condition and results of operations depend on our ability to successfully continue to develop new solar projects and operate our existing solar projects. We expect to build and manage a greater number of solar projects, which we expect to present additional challenges to our internal processes, external construction management, working capital management and financing capabilities. Our financial condition, results of operations and future success depend, to a significant extent, on our ability to continue to identify suitable sites, expand our pipeline of projects with attractive returns, obtain required regulatory approvals, arrange necessary financing, manage the construction of our solar projects on time and within budget, and successfully operate solar projects.

 

 

 

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Selected Statement of Operations Items

 

Revenue

 

Our revenue for the years ended December 31, 2017, 2018 and 2019 was mainly derived from sales of PV project assets, sales of pre-development solar project, and sales of PV components.

 

The following table sets forth a breakdown of our revenue from continuing operation by category of activities for the periods indicated:

 

    For the year ended December 31,  
    2017     2018     2019  
    ($ in thousands except percentage)  
Sales of PV components     111,795       92.0 %     93,547       74.5 %     80,941       82.7 %
Sales of PV project assets     6,042       5.0 %     10,809       8.6 %     9,563       9.8 %
Electricity revenue with PPAs     2,793       2.3 %     3,043       2.4 %     3,368       3.4 %
Sales of pre-development solar project           %     15,794       12.6 %     (2,835 )     (2.9 )%
Bitcoin mining related business           %     1,052       0.8 %     4,197       4.3 %
Sales of hays and others     890       0.7 %     1,337       1.1 %     1,162       1.2 %
Total     121,520       100.0 %     125,582       100.0 %     97,883       100.0 %

 

Cost of Goods Sold

 

Our cost of goods sold consist primarily of raw materials and labor cost. In the years ended December 31, 2017, 2018 and 2019, we had cost of goods sold of $111.4 million, $114.5 million and $90.7 million from our continuing operation, respectively.

 

Operating Expenses

 

In the years ended December 31, 2017, 2018 and 2019, our operating expenses consisted of (1) general and administrative expenses, (2) sales, marketing and customer service expenses, (3) impairment charges and (4) provision (reverse) for doubtful accounts, notes and other receivables.

 

General and administrative expenses. Our general and administrative expenses consist primarily of salaries and share based compensation expense, professional service fees, rental and office supplies expenses. In the years ended December 31, 2017, 2018 and 2019, our general and administrative expenses from our continuing operations were $14.0 million, $12.2 million and $15.2 million, respectively.

 

Sales, marketing and customer service expenses. Our sales, marketing and customer service expenses consist primarily of advertising expense, business development expense and salaries. In the years ended December 31, 2017, 2018 and 2019, our sales, marketing and customer service expenses from continuing operation were $2.9 million, $2.3 million and $2.4 million, respectively.

 

Impairment charges. Our impairment charges consist of impairment charges for project assets, goodwill and intangible assets, property, plant and equipment and etc. In the years ended December 31, 2017, 2018 and 2019, our impairment charges from our continuing operations were $0.7 million, $nil and $4.7 million, respectively.

 

Provision (reverse) for doubtful accounts, notes and other receivables. In the year ended December 31, 2017, our provision for doubtful accounts and notes from continuing operations were $1.7 million. In the year ended December 31, 2018, we reversed the provision of $0.5 million. In the year ended December 31, 2019 our provision for doubtful accounts were of $4.1 million.

 

 

 

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Other Income (Expense)

 

In the years ended December 31, 2017, 2018 and 2019, our other income (expense) includes interest expense, interest income, gain on extinguishment of convertible bonds, change in fair value of derivative liability, loss on investment in affiliates, reversal (accrual) of tax penalty, gain on trouble debt restructuring, net foreign exchange gain and others.

 

Interest expense. Our interest expense arises from borrowings. In the years ended December 31, 2017, 2018 and 2019, our interest expense from continuing operations was $8.1 million, $6.7 million and $3.9 million, respectively.

 

Interest income. Our interest income arises from cash deposited in banks. In the years ended December 31, 2017, 2018 and 2019, our interest income from continuing operations was $0.4 million, $0.3 million and $0.2 million, respectively.

 

Gain on extinguishment of convertible bonds. We recorded a gain on extinguishment of convertible bonds of $7.1 million from continuing operations in the year ended December 31, 2017, due to the extension of a convertible bond agreement that we entered into with Union Sky Holdings Group Limited (“Union Sky”).

 

Tax penalty. We recorded a $9.7 million expected tax penalty in the year ended December 31, 2017 for late filing of Federal and State income tax returns from continuing operations for the tax year ended December 31, 2016. On May 27, 2019 and February 20, 2020, the Internal Revenue Service (IRS) issued notices which assessed penalties for Federal income tax for the tax years ended December 31, 2017 and 2016 in the amount of $1. 2 million and $1.3 million plus an immaterial amount of interest, respectively. The state portion of tax penalty is re-estimated in the amount of $0.3 million. Thus, we reversed $6.9 million of tax penalty for the year ended December 31, 2019.

 

Gain on trouble debt restructuring. We recorded a gain of $1.9 million on trouble debt restructuring from continuing operations for the year ended December 31, 2018. We defaulted the first amendment agreement with Union Sky Holding Group Limited (“Union Sky”). On June 29, 2018, we entered into another amendment agreement with the Union Sky and Magical Glaze Limited (“MGL”) to further extend the payment term. A gain was recognized for the difference between the future undiscounted cash flow of the second amended convertible bond of $20.0 million and the carrying amount of the first amended convertible bond of $21.9 million as of June 29, 2018.

 

Loss on investment in affiliates. We recorded a loss on investment in affiliates of $2.2 million which mainly arose from further impairment on our investment in ENS in the year ended December 31, 2017.

 

Income Tax

 

The following table sets forth our loss before income taxes for continuing operations attributable to the relevant geographic locations for the periods indicated:

 

    For the year ended December 31,  
    2017     2018     2019  
    ($ in thousands)  
United States   $ (24,757 )   $ (6,946 )   $ (4,926 )
Foreign     (1,620 )     (1,141 )     (10,130 )
Total   $ (26,377 )   $ (5,805 )   $ (15,056 )

 

Cayman Islands

 

We are incorporated in the Cayman Islands. Under the current laws of the Cayman Islands, we are not subject to income or capital gains tax in the Cayman Islands. Payments of dividends and capital in respect of our Shares will not be subject to taxation in the Cayman Islands and no withholding will be required on the payment of a dividend or capital to any holder of our Shares, nor will gains derived from the disposal of our Shares be subject to Cayman Islands income or corporation tax. The Cayman Islands currently have no income, corporation or capital gains tax and no estate duty, inheritance tax or gift tax.

 

 

 

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United States

 

We and our subsidiaries organized in the United States are subject to U.S. federal income tax at a rate of up to 35% for the year ended December 31, 2017.

 

On December 22, 2017, the U.S. enacted the Tax Cuts and Jobs Act (“TCJA” or the “Act”) (which is commonly referred to as “U.S. tax reform”). Among other provisions, the Act reduces the top U.S. federal corporate tax rate from 35% to 21%, requires companies to pay a one-time transition tax on earnings of certain foreign subsidiaries that were previously tax deferred, changes the rules related to uses and limitations of net operating loss carryforwards created in tax years beginning after December 31, 2017, and creates new taxes on certain foreign sourced earnings. The Company reflected the changes resulting from the Act in the financial statements for the period of enactment, the year ended December 31, 2017. The change in corporate rate resulted in a $22.8 million decrease in the Company’s gross deferred tax assets, with an offsetting decrease in valuation allowance of the same amount. The Company was not subject to a one-time repatriation tax as no aggregate foreign accumulated earnings and profits existed in the foreign subsidiaries as of December 31, 2018 and 2017. The Company will account for future tax liability arising from Global Intangible Low-Taxed Income, if any, as a period cost. The Company has accounted for additional tax liability in 2018 arising from Global Intangible Low-Taxed Income of $0.9 million which accounted for as a period cost. In accordance with Staff Accounting Bulletin No. 118, the Company determined that the measurement of deferred tax assets and liabilities, as noted above, was accurate and no other adjustments relating to the Act were necessary. The Company has recognized no income on account of GILTI as no aggregate foreign earnings existed in the foreign subsidiaries for 2019.

 

Hong Kong

 

Our subsidiaries incorporated in Hong Kong were subject to the uniform tax rate of 8.25% for the years ended December 31, 2018 and 2019, respectively. They were exempted from the Hong Kong income tax on its foreign-derived income and there were no withholding taxes in Hong Kong on the remittance of dividends. No provision for Hong Kong tax has been made in our consolidated financial statements, as our Hong Kong subsidiary had not generated any assessable income for the years ended December 31, 2017, 2018 and 2019.

 

See “Item 10. Additional Information—E. Taxation” for more information.

 

Critical Accounting Policies and Estimates

 

Principles of Consolidation

 

The consolidated financial statements include the financial statements of our Company, our subsidiaries, and consolidated VIEs. All material inter-company transactions and balances have been eliminated upon consolidation. For consolidated subsidiaries where our ownership in the subsidiary is less than 100%, the equity interest not held by us is shown as noncontrolling interests. We account for investments over which it has significant influence but not a controlling financial interest using the equity method of accounting. We deconsolidate a subsidiary when we cease to have a controlling financial interest in the subsidiary. When control is lost, the parent-subsidiary relationship no longer exists and the parent derecognizes the assets and liabilities of the subsidiary.

 

Revenue Recognition

 

On January 1, 2018, we adopted Accounting Standards Codification (“ASC”) No. 606, “Revenue from Contracts with Customers” (“ASC 606” or “Topic 606”) and applied the modified retrospective method to all contracts that were not completed as of January 1, 2018. Results for reporting periods beginning after January 1, 2018 are presented under Topic 606, while prior period amounts are not adjusted and continue to be reported in accordance with the Group’s historical accounting practices under ASC Topic 605 “Revenue Recognition”.

 

We have determined that the impact of the transition to the new standard is immaterial to our revenue recognition model. Accordingly, we have not made any adjustment to opening retained earnings.

 

 

 

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Our accounting practices under ASC Topic 606 are as followings:

 

The Company generates revenue from sales of PV components, electricity revenue with power purchase agreements (“Electricity revenue with PPAs”), sales of PV project assets, bitcoin mining equipment sales and hosting service, sales of pre-development solar projects, revenue from bitcoin mining and sales of hays.

 

Sale of PV components. Revenue on sale of PV components is recognized at a point in time following the transfer of control of such products to the customer, which typically occurs upon shipment or acceptance of the customer depending on the terms of the underlying contracts.

 

Electricity revenue with PPAs. We sell energy generated by PV solar power systems under PPAs. For energy sold under PPAs, we recognize revenue each period based on the volume of energy delivered to the customer (i.e., the PPAs off-taker) and the price stated in the PPAs. We have determined that none of the PPAs contains a lease since (i) the purchaser does not have the rights to operate the PV solar power systems, (ii) the purchaser does not have the rights to control physical access to the PV solar power systems, and (iii) the price that the purchaser pays is at a fixed price per unit of output.

 

Sale of PV project asset. Our sales arrangements for PV projects do not contain any forms of continuing involvement that may affect the revenue or profit recognition of the transactions, nor any variable considerations for energy performance guarantees, minimum electricity end subscription commitments. The Company therefore determined its single performance obligation to the customer is the sale of a completed solar project. We recognize revenue for sales of solar projects at a point in time after the solar project has been grid connected and the customer obtains control of the solar project.

 

Bitcoin mining equipment sales and hosting service. Revenue on sale of bitcoin mining equipment is recognized at a point in time following the transfer of control of such products to the customer, which typically occurs upon delivery of the products to the hosting site or receipt place assigned by the customer, installation and setting up the products. Revenue for hosting service is recognized over time as services are performed and based on the output method related to the time incurred during the service period.

 

Sales of pre-development solar projects. For sales of pre-development solar projects in which we transfer 100% of the membership interest in solar projects to a customer, we recognize all of the revenue for the consideration received at a point in time when the membership interest was transferred to the customer, which typically occurs when we delivered the membership interest assignment agreement to the customer.

 

The contract arrangements may contain provisions that can either increase or decrease the transaction price. These variable amounts generally are resolved upon achievement of certain performance or upon occurrence of certain price reduction conditions. Variable consideration is estimated at each measurement date at its most likely amount to the extent that it is probable that a significant reversal of cumulative revenue recognized will not occur and true-ups are applied prospectively as such estimates change.

 

Changes in estimates for sales of pre-development solar projects occur for a variety of reasons, including but not limited to (i) EPC construction plan accelerations or delays, (ii) product cost forecast changes, (iii) change orders, or (iv) occurrence of purchase price reduction conditions. The cumulative effect of revisions to transaction prices are recorded in the period in which the revisions to estimates are identified and the amounts can be reasonably estimated.

 

Revenue from bitcoin mining. We entered into a digital asset mining pool to provide computing power to the mining pool. Providing computing power in crypto asset transaction verification services is an output of our ordinary activities. The provision of computing power is the only performance obligation in the contracts with mining pool. The transaction consideration we receive, if any, is noncash consideration, which we measure at fair value on the date received, which is not materially different than the fair value at contract inception. The consideration is all variable. Because it is not probable that a significant reversal of cumulative revenue will not occur, the consideration is constrained until we receive the consideration, at which time revenue is recognized. There is no significant financing component in these transactions.

 

Fair value of the digital asset award received is determined using the average U.S. dollar spot rate of the related digital currency at the time of receipt.

 

 

 

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Sale of Alfalfa hay. Revenue on sale of alfalfa hay is recognized at a point in time following the transfer of control of such products to the customer, which typically occurs upon the acceptance of the products made by the customer.

 

Product Warranties

 

We offer the industry standard warranty up to 25 years for PV modules and industry standard warranty for five to ten years on inverter and balance of system components. Due to the warranty period, we bear the risk of extensive warranty claims long after products have been shipped and revenues have been recognized. We provide a limited warranty to the original purchasers of its solar modules, inverters and cables for trading business for one to five years, in relation to defects in materials and workmanship. For our cable, wire and mechanical assemblies business, historically the related warranty claims have not been material. For our solar PV business, the greatest warranty exposure is in the form of product replacement.

 

During the quarter ended September 30, 2007 and continuing through the fourth quarter of 2010, we installed own manufactured solar panels and accrued warranty based on our own historical data. Since 2011, due to the absence of historical material warranty claims and identical warranty terms, we have not recorded any additional warranty provision relating to solar energy systems sold. PV construction contracts entered into during the recent years included provisions under which we agreed to provide warranties to the customers. The warranty we offer to its customers is identical to the warranty offered to us by its suppliers, therefore, we pass on all potential warranty exposure and claims, if any, with respect systems sold by us to our suppliers.

 

Impairment of Long-lived Assets

 

Our long-lived assets include property, plant and equipment, project assets and other intangible assets with finite lives. We evaluate long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. If circumstances require a long-lived asset or asset group be tested for possible impairment, we first compare undiscounted cash flows expected to be generated by that asset or asset group to its carrying amount. If the carrying amount of the long-lived asset or asset group is not recoverable on an undiscounted cash flow basis, an impairment is recognized to the extent that the carrying amount exceeds its fair value. Fair value is determined through various valuation techniques including discounted cash flow models, quoted market values and third-party independent appraisals, as considered necessary. Any impairment write-downs would be treated as permanent reductions in the carrying amounts of the assets and a charge to operations would be recognized.

 

Inventories

 

Inventories are carried at the lower of cost or net realizable value, determined by the weighted average cost method. Provisions are made for obsolete or slow-moving inventories based on management estimates. Inventories are written down based on the difference between the cost of inventories and the net realizable value based upon estimates about future demand from customers, specific customer requirements on certain projects and other factors. Inventory provision charges establish a new cost basis for inventory that subsequently cannot be marked up based on changes in underlying facts and circumstances.

 

Share-Based Compensation

 

Our share-based payment transactions with employees, such as restricted shares and share options, are measured based on the grant-date fair value of the equity instrument issued. The fair value of the award is recognized as compensation expense, net of estimated forfeitures, over the period during which an employee is required to provide service in exchange for the award, which is generally the vesting period.

 

Accounts Receivables and Allowance for Doubtful Accounts

 

We grant open credit terms to credit-worthy customers. Accounts receivable are primarily related to our sales of pre-development solar project contracts and sales of PV components. For sales of pre-development solar projects, the payment is typically due in installments over the contract term, which are both before and after the performance by the Company. Payment for sales of PV components and electricity revenue with PPAs are typically due in full within 30 to 90 days of shipping of the products or the start of the contract term.

 

 

 

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We maintain allowances for doubtful accounts. We regularly monitor and assess the risk of not collecting amounts owed by customers. This evaluation is based upon a variety of factors, including an analysis of amounts current and past due along with relevant history and facts particular to the customer. We do not have any off-balance-sheet credit exposure related to its customers. Contractually, we may charge interest for extended payment terms and require collateral.

 

Project Assets

 

We acquire or construct PV solar power systems (“solar system”) that are (i) held for development and sale or (ii) held for our own use to generate income or return from the use of the solar system. Solar systems are classified as either held for development and sale within “project assets” or as held for use within “property, plant and equipment” based on our intended use of solar systems. We determine the intended use of the solar systems upon acquisition or commencement of project construction.

 

Classification of the solar systems affects the accounting and presentation in the consolidated financial statements. Transactions related to the solar systems held for development and sale are classified as operating activities in the consolidated statements of cash flows and reported as sales and costs of goods sold in the consolidated statements of operations upon the sale of the project assets and fulfillment of the relevant recognition criteria. Incidental electricity income generated from the solar systems held for development and sale prior to the sale of the projects is recorded in other operating income in the consolidated statement of operations. The solar systems held for use are used by us in its operations to generate income or a return from the use of the assets. Income generated from the solar systems held for use are included in net sales in the consolidated statement of operations. The costs to construct solar system intended to be held for own use are capitalized and reported within property, plant and equipment on the consolidated balance sheets and are presented as cash outflows from investing activities in the consolidated statements of cash flows. The proceeds from disposal of solar system classified as held for own use are presented as cash inflows from investing activities within the consolidated statements of cash flows. A net gain or loss upon the disposal of solar system classified as held for own use is reported in other operating income or expense in the consolidated statement of operation.

 

Solar systems costs consist primarily of capitalizable costs for items such as permits and licenses, acquired land or land use rights, and work-in-process. Work-in-process includes materials and modules, construction, installation and labor, capitalized interests and other capitalizable costs incurred to construct the PV solar power systems.

 

The solar systems held for development and sale named as “project assets”, are reported as current assets on the consolidated balance sheets when upon completion of the construction of the solar systems, we initiate a plan to actively market the project assets for immediate sale in their present condition to potential third party buyers subject to terms that are usual and customary for sales of these types assets and it is probable that the project assets will be sold within one year. Otherwise, the project assets held for development and sale are reported as noncurrent assets. No depreciation expense is recognized while the project assets are under construction or classified as held for sale.

 

For solar systems held for development and sale, named as “project assets”, we consider a project commercially viable if it is anticipated to be sold for a profit once it is either fully developed or fully constructed. We also consider a partially developed or partially constructed project commercially viable if the anticipated selling price is higher than the carrying value of the related project assets plus the estimated cost to completion. We consider a number of factors, including changes in environmental, ecological, permitting, market pricing or regulatory conditions that affect the project. Such changes may cause the cost of the project to increase or the selling price of the project to decrease. We record an impairment loss of the project asset to the extent the carrying value exceed its estimated recoverable amount. The recoverable amount is estimated based on the anticipated sales proceeds reduced by estimated cost to complete such sales.

 

Income Taxes

 

We account for income taxes under the asset and liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carry forwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. A valuation allowance is recognized if it is more likely than not that some portion, or all, of a deferred tax asset will not be realized.

 

 

 

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The Company recognizes in the consolidated financial statements the impact of a tax position, if that position is more likely than not of being sustained upon examination, based on the technical merits of the position. In evaluating whether a tax position has met the more-likely-than-not recognition threshold, management presumes that the position will be examined by the appropriate taxing authority that has full knowledge of all relevant information. In addition, a tax position that meets the more-likely-than-not recognition threshold is measured to determine the amount of benefit to be recognized in the financial statements. The tax position is measured at the largest amount of benefit that is greater than 50 percent likely of being realized upon settlement. Our tax liability associated with unrecognized tax benefits is adjusted periodically due to changing circumstances, such as the progress of the tax audits, case law developments and new or emerging legislation. Such adjustments are recognized entirely in the period in which they are identified. We record interest and penalties related to an uncertain tax position, if and when required, as part of income tax expense in the consolidated statements of operations. No reserve for uncertainty tax position was recorded by us for the years ended December 31, 2019, 2018 and 2017. We do not expect that the assessment regarding unrecognized tax positions will materially change over the next 12 months. The Company is not currently under examination by an income tax authority, nor has been notified that an examination is contemplated.

 

Recent Accounting Pronouncements

 

Recently Adopted Accounting Standards

 

In May 2014, the Financial Accounting Standards Board (FASB) issued Topic 606, which supersedes the revenue recognition requirements in Topic 605. The Group adopted Topic 606 as of January 1, 2018 using the modified retrospective transition method applied to those contracts which were not completed as of January 1, 2018.

 

In February 2016, the FASB issued ASU 2016-12, Leases (ASC Topic 842), which amends the leases requirements in ASC Topic 840, Leases. The Group adopted ASC Topic 842 using the modified retrospective transition method effective January 1, 2019. There was no cumulative effect of initially applying ASC Topic 842 that required an adjustment to the opening retained earnings on the adoption date nor revision of the balances in comparative periods.

 

In November 2016, the FASB issued ASU No. 2016-18, Statement of Cash Flows (Topic 230): “Restricted Cash” (“ASU 2016-18”). ASU 2016-18 requires that a statement of cash flows explain the change during the period in the total of cash, cash equivalents, and amounts generally described as restricted cash or restricted cash equivalents. This update is effective in fiscal years, including interim periods, beginning after December 15, 2017 and early adoption is permitted. The adoption of this guidance will result in the inclusion of the restricted cash balances within the overall cash balance and removal of the changes in restricted cash activity, as a result, the Company no longer presents transfers between cash and cash equivalents and restricted cash in the statement of cash flows. Furthermore, an additional reconciliation will be required to reconcile cash, cash equivalents, and restricted cash reported within the Consolidated Balance Sheets to sum to the total shown in the Consolidated Statement of Cash Flows. The Group has already disclosed the restricted cash separately on its Consolidated Balance Sheets. Beginning January 1, 2018, the Group has adopted and included the restricted cash balances on the Consolidated Statement of Cash Flows and reconciliation of cash, cash equivalent, and restricted cash within its Consolidated Statements of Balance Sheet and Consolidated Statement of Cash Flows. This guidance has been applied retrospectively to the Consolidated Statement of Cash Flows for the year ended December 31, 2017, which required the Company to recast each prior reporting period presented.

 

In January 2017, the FASB issued Accounting Standards Update (“ASU”) 2017-01, “Business Combination (Topic 805): Clarifying the Definition of a Business”. The Company adopted ASU 2017-01 on January 1, 2018 and applied the new definition of a business prospectively for acquisitions made subsequent to December 31, 2017. Upon the adoption of ASU 2017-01, a new screen test is introduced to evaluate whether a transaction should be accounted for as an acquisition and/or disposal of a business versus assets. In order for a purchase to be considered an acquisition of a business, and receive business combination accounting treatment, the set of transferred assets and activities must include, at a minimum, an input and a substantive process that together significantly contribute to the ability to create outputs. If substantially all of the fair value of the gross assets acquired is concentrated in a single identifiable asset or a group of similar identifiable assets, then the set of transferred assets and activities is not a business. The adoption of this standard requires future purchases to be evaluated under the new framework.

 

Accounting Pronouncements Issued But Not Yet Adopted

 

In August 2018, the FASB issued ASU No. 2018-13, Fair Value Measurement (Topic 820)-Disclosure Framework-Changes to the Disclosure Requirements for Fair Value Measurement. ASU 2018-13 removes the amounts and reasons for transfers between Level 1 and Level 2 of the fair value hierarchy and the valuation processes for Level 3 fair value measurements; modifies certain disclosure requirements in Topic 820; and require additional disclosures such as the range and weighted average of significant unobservable inputs used to develop Level 3 measurements etc. ASU No. 2018-13 is effective for the Company beginning in the first quarter of fiscal year 2020. We do not expect this guidance will have a material impact on its consolidated financial statements.

 

On December 18, 2019, the FASB issued ASU No. 2019-12, Income taxes (Topic 740), Simplifying the Accounting for Income Taxes. This guidance amends ASC Topic 740 and addresses several aspects including 1) evaluation of step-up tax basis of goodwill when there is not a business combination, 2) policy election to not allocate consolidated taxes on a separate entity basis to entities not subject to income tax, 3) accounting for tax law changes or rates during interim periods, 4) ownership changes from equity method investment to subsidiary or vice versa, 5) elimination of exception to intraperiod allocation when there is gain in discontinued operations and a loss from continuing operations, 6) treatment of franchise taxes that are partially based on income. The guidance is effective for calendar year-end public entities on January 1, 2021 and other entities on January 1, 2022. We are evaluating the impact of this guidance on its consolidated financial statements.

 

 

 

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We do not believe other recently issued but not yet effective accounting standards, if currently adopted, would have a material effect on the consolidated financial position, statements of operations and cash flows.

 

Recent Acquisition Activities

 

When making solar project acquisitions, we focus on attractive targets based on our assessment of the rate of return, taking into consideration a target project’s irradiation hours, applicable FIT rate, key technical components used as well as our cost of financing for the acquisition. See “Item 4. Information on the Company—B. Business Overview—Our Global Project Development Business—Acquisition of Solar Projects” for more information on the criteria we apply when making project acquisitions.

 

When we pursue a target engaged in a solar business, such as a distribution business or a rooftop EPC business, we primarily select targets with higher gross profit margins, or in the case of a target engaged in a line of business complementary to our existing operations, with high potentials for us to realize synergies.

 

The following summary outlines the major acquisitions we completed, or for which have entered into definitive agreements since 2017:

 

Solar Projects

 

In March 2017, our wholly owned subsidiary, SPI Solar Japan GK entered into a definitive agreement to sell all of its interest in the land and project development rights in its two solar PV projects with total capacity of 4.4 MW in Shibayama city, Chiba. SPI Japan will also provide engineering, procurement and construction service to complete the projects. The solar plants are located approximately 50 kilometres east of Tokyo in Chiba and each with capacity of 2.2 MW and with an estimated total capacity of 5,200,000 kWh annually.

 

In May 2017, we entered into an agreement to sell all of our interest in Todderstaffe Solar Limited, one of the solar PV system in UK, to Capital Stage AG. The Todderstaffe project has a capacity of 4.4MW.

 

In September 2017, we entered into a framework share purchase agreement to acquire 100% equity interests of three Greek companies, namely THERMI SUN S.A, HELIOHRISI S.A., and HELIOSTIXIO S.A., from THERMI TANEO Venture Capital Fund (“TTVCF”), for a total consideration of EUR €12.88 million, subject to certain adjustments. The transaction is subject to customary closing conditions. These three companies own a total of four PV plants with 7.4MWp PV installations in northern Greece. The closing of the transaction will take place in three separate stages (one for each company under acquisition). The acquisition of HELIOSTIXIO S.A. was closed in December 2017. The Company completed the second-stage acquisition of 100% of the equity interest of HELIOHRISI S.A., which owns 1.988 MW of photovoltaic projects in Greece on March 20, 2019. The Company has completed its last of the three acquisitions of 100% of the equity interest of THERMI SUN S.A., which owns 4.4 Megawatts ("MW") of photovoltaic (“PV”) projects in Greece in November 2019. With 7.4MWp PV installations added to SPI Energy’s existing PV portfolio in Greece, the Company becomes one of the significant PV owners in Greece.

 

By the year end of December 31, 2018, our wholly owned subsidiary, SPI Solar Inc., sold eight solar projects in the USA (9.653 MW) to third parties.

 

In December 2018, SPI Energy Co., Ltd divested our solar projects in China.

 

In July 2019, the Company entered into a framework agreement to acquire up to eight solar PV projects, totaling 21MW in the State of Oregon (the “Oregon Portfolio”). On August 26, 2019, the Company completed the closing of Manchester and Waterford solar projects with a total of approximately 5.4MW. On September 10, 2019, the Company completed the closing on the Belvedere project with approximately 3.56MW of clean energy for the local community. On September 24, 2019, the Company completed the closing of the Dover and Clayfield solar projects with a total of approximately 5.45MW. On April 22, 2020, the Company completed the acquisition of the Cork project with a total of approximately 1.89MW. The Company has now closed 6 of the 8 projects within the Oregon Portfolio.

 

 

 

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In October, 2019, the Company completed the closing on the sale of Sun Roof II and Sun Roof V totaling 2.83MW to Theia Investments (Italy) S.r.l (“Theia”). Theia paid approximately EUR 4.3 million to complete the transaction.

 

In March, 2020, the Company completed the closing of the sale of its Sun Roof I assets, a 479 kWp rooftop solar project in Italy. Proceeds from the sale were approximately EUR 1.1 million before transaction fees. After the sale of Sun Roof II, Sun Roof V and Sun Roof I, the Company currently owns only 1 PV asset with a capacity of 0.993 MW in Italy.

 

We have funded our acquisitions primarily from cash generated from our financing activities and from credit facilities. Going forward we expect to fund our future acquisitions with cash generated from our operations, as well as equity and debt financing.

 

Results of Operations

 

The following table sets forth a summary, for the periods indicated, of our consolidated results of operations from our continuing operations and each item expressed as a percentage of our total net revenues. Our historical results presented below are not necessarily indicative of the results that may be expected for any future period.

 

    For the year ended December 31,  
    2017     2018     2019  
    ($ in thousands except percentage)  
Net sales:                                                
Net sales     121,520       100.0  %     125,582       100.0 %     97,883       100  %
Cost of goods sold:                                                
Cost of goods sold     111,428       91.7  %     114,525       91.2 %     90,693       92.7  %
Total cost of goods sold     111,428       91.7  %     114,525       91.2 %     90,693       92.7  %
Gross profit     10,092       8.3  %     11,057       8.8 %     7,190       7.3  %
Operating expenses:                                                
General and administrative     13,994       11.5  %     12,225       9.8 %     15,158       15.5  %
Sales, marketing and customer service     2,944       2.4  %     2,285       1.8 %     2,398       2.4  %
Provision (reverse) for doubtful accounts, notes and other receivables     1,693       1.4  %     (501 )     (0.4 )%     4,115       4.2  %
Impairment charges     740       0.6  %           %     4,690       4.8  %
Total operating expenses     19,371       15.9  %     14,009       11.2 %     26,361       26.9  %
Operating loss     (9,279 )     (7.6 )%     (2,952 )     (2.4 )%     (19,171 )     (19.6 )%
Other income (expense):                                                
Interest expense     (8,087 )     (6.7 )%     (6,665 )     (5.3 )%     (3,923 )     (4.0 )%
Interest income     384       0.3  %     320       0.3 %     155       0.2  %
Gain on extinguishment of convertible bonds     7,121       5.9  %                        
Change in fair value of derivative liability           –  %                 285       0.3  %
Loss on investment in affiliates     (2,214 )     (1.8 )%           –%              %
Net foreign exchange gain (loss)     (5,141 )     (4.2 )%     1,118       0.9 %     1,261       1.3  %
Reversal (accrual) of tax penalty     (9,670 )     (8.0 )%           –%       6,890       7.0  %
Gain on troubled debt restructuring            %     1,887       1.5 %            %
Others     509       0.4  %     487       0.4 %     (553 )     (0.6 )%
Total other expense, net     (17,098 )     (14.1 )%     (2,853 )     (2.2 )%     4,115       4.2  %
Loss before income taxes     (26,377 )     (21.7 )%     (5,805 )     (4.6 )%     (15,056 )     (15.4 )%
Income taxes expense     137       0.1  %     332       0.3 %     92       0.1  %
Net loss     (26,514 )     (21.8 )%     (6,137 )     (4.9 )%     (15,148 )     (15.5 )%

 

 

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Comparison of the year ended December 31, 2019 to the year ended December 31, 2018

 

Net sales —Net sales were $125.6 million and $97.9 million for the years ended December 31, 2018 and 2019, respectively, representing a decrease of $27.7 million or 22%. The decrease in net sales for the year ended December 31, 2019 over the comparative period was primarily due to the decrease of sales of PV solar components by $12.6 million and sales of pre-development project by $18.6 million respectively, which was partially offset by the increase of bitcoin and hay sales.

 

Cost of goods sold —Cost of goods sold was $114.5 million (91.2% of net sales) and $90.7 million (92.7% of net sales) for the years ended December 31, 2018 and 2019, respectively, representing a decrease of $23.8 million or 21%. The decrease in cost of goods sold was consistent with the decrease of sales.

 

Gross profit —Our gross profit decreased from $11.1 million in the year ended December 31, 2018 to $7.2 million in the year ended December 31, 2019. Gross margins were 8.8% and 7.3% for the years ended December 31, 2018 and 2019, respectively. The decrease in gross margin was primarily due to the reversal of sales of pre-development projects amounting to $ 2.8 million.

 

General and administrative expenses —General and administrative expenses were $12.2 million (9.8% of net sales) and $15.2 million (15.5% of net sales) for the years ended December 31, 2018 and 2019, respectively, representing an increase of $2.9 million, or 24%. The increase in our general and administrative expenses was mainly due to the increase of salary and welfare and professional service fee, which was partially offset by share-based compensation gain.

 

Sales, marketing and customer service expenses —Sales, marketing and customer service expenses were $2.3 million (1.8% of net sales) and $2.4 million (2.4% of net sales) for the years ended December 31, 2018 and 2019, respectively, representing an increase of $0.1 million, or 5%. Sales, marketing and customer service expenses kept stable during the two years.

 

Provision (reverse) for doubtful accounts, notes and other receivables —In 2018, we reversed doubtful accounts provision of $0.5 million. In 2019, we accrued doubtful accounts provision of $4.1 million.

 

Impairment charges —No impairment charge was recorded for the year ended December 31, 2018 and we accrued $4.7 million impairment loss for the year ended December 31, 2019. The increase was due to decrease in the market value of mining equipment and impairment in PV stations

 

Interest expense —Interest expense was $6.7 million (5.3% of net sales) and $3.9 million (4.0% of net sales) for the years ended December 31, 2018 and 2019, respectively, representing a decrease of $2.8 million, or 41%. The decrease in interest expense was due to the decrease of convertible bond interest.

 

Interest income —Interest income was $0.3 million (0.3% of net sales) and $0.2 million (0.2% of net sales) for the years ended December 31, 2018 and 2019, respectively.

 

Gain on trouble debt restructuring—We recorded a gain of $1.9 million on troubled debt restructuring for the year ended December 31, 2018. We defaulted the first amendment agreement with Union Sky in 2018. On June 29, 2018, we entered into another amendment agreement with the Union Sky and Magical Glaze Limited (“MGL”), a company affiliated with Union Sky, to further extend the payment term. A gain is recognized for the difference between the future undiscounted cash flow of the second amended convertible bond of $20.0 million and the carrying amount of the first amended convertible bond of $21.9 million as of June 29, 2018.

 

Other gains or expenses—We generated other gain of $1.6 million and $1.0 million in the year ended December 31, 2018 and 2019.

 

Income tax expense —We had a provision for income taxes of $0.3 million (0.2% of net sales) and $0.1 million (0.1% of net sales) for the years ended December 31, 2018 and 2019, respectively.

 

 

 

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Net loss —For the foregoing reasons, we incurred a net loss of $15.1 million (15.5% of net sales) for the year ended December 31, 2019, representing an increase of loss compared to a net loss of $6.1 million (4.9% of net sales) from our continuing operations for the year ended December 31, 2018.

 

A comparison for operating results of the year ended December 31, 2018 to the year ended December 31, 2017 has been omitted from this annual report. For the details about the comparison, please see “Item 5. Operating and Financial Review and Prospects – A. Operating Results – Results of Operations.” Included in the Company’s annual report on Form 20-F for the year ended December 31, 2018 filed with the SEC on April 30, 2019.

 

B.  Liquidity and Capital Resources

 

Liquidity

 

A summary of the sources and uses of cash and cash equivalents is as follows:

 

    For the year ended December 31,  
    2017     2018     2019  
    ($ in thousands)  
Net cash provided by (used in) operating activities, continuing operations   $ (14,373 )   $ 7,851     $ (2,871 )
Net cash generated by operating activities, discontinued operations     2,733       159        
Net cash used in investing activities, continuing operations     (2,934 )     (3,346 )     (7,894 )
Net cash used in investing activities, discontinued operations     (352 )     (418 )      
Net cash generated from (used in) financing activities, continuing operations     8,284       (1,585 )     9,520  
Net cash used in financing activities, discontinued operations     (2,488 )     (2,145 )      
Effect of exchange rate changes on cash     (477 )     453       (351 )
Net increase (decrease) in cash and cash equivalents   $ (9,607 )   $ 969     $ (1,596 )

 

As of December 31, 2017, 2018 and 2019, we had $2.3 million, $4.6 million and $3.0 million, respectively, in cash and cash equivalents, and restricted cash.

 

Operating Activities

 

Net cash used in operating activities from continuing operations was $2.9 million for the year ended December 31, 2019, the decrease in cash was primarily as a result of (i) net loss of $15.1 million, (ii) change in tax penalty of $6.9 million, and (iii) change in advance from customers of $8.4 million, and (iv) change in inventories of $2.0 million; the decrease was partially offset by (i) change in accounts payable of $7.8 million,(ii) Provision for prepaid and other current assets of $4.1 million, (iii) change in notes receivable of $4.8 million, (iv) change in project assets of $3.3 million, and (v) change in accounts receivable of $3.1 million.

 

Net cash provided by operating activities from continuing operations was $7.9 million for the year ended December 31, 2018, the increase in cash was primarily as a result of (i) change in project assets of $17.8 million, and (ii) change in inventories of $2.9 million, (iii) change in accounts payable of $3.4 million, (iv) non cash share-based compensation of $2.7 million, and (v) change in accrued liabilities and other liabilities of $4.0 million, (vi) depreciation of $1.2 million, (vii) amortization of debt discount of convertible bonds of $1.9 million; the increase was partially offset by (i) net loss of $12.3 million,(ii) change in accounts receivable of $13.9 million, (iii) change in advance from customers of $5.1 million, and (iv) gain on troubled debt restructuring of $1.9 million.

 

Investing Activities

 

Net cash used in investing activities from continuing operations was $7.9 million for the year ended December 31, 2019, primarily as a result of the acquisition of PV station in Greece of $8.3 million and acquisitions of property, plant and equipment of $4.8 million, partially offset by proceeds from sale of cryptocurrencies of $3.6 million and proceeds from disposal of affiliated entities of $4.5 million.

 

 

 

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Net cash used in investing activities from continuing operations was $3.3 million for the year ended December 31, 2018, primarily as a result of decrease of cash due to disposition of SPI China.

 

Financing Activities

 

Net cash generated from financing activities from continuing operations was $9.5 million for the year ended December 31, 2019, the increase in cash was primarily the result of proceeds from issuance of common stocks of $7.7 million and proceeds from issuance of convertible bond of $1.3 million.

 

Net cash used in financing activities from continuing operations was $1.6 million for the year ended December 31, 2018, the decrease in cash primarily consisted of (i) repayment of line of credit and loans payable of $67.8 million; the decrease was partially offset by (i) proceeds from line of credit and loans payable of $66.2 million.

 

Capital Resources and Material Known Facts on Liquidity

 

We have suffered recurring losses from operations. We have incurred a net loss of $15.1 million for the year ended December 31, 2019. As of December 31, 2019, we had an accumulated deficit of $585.4 million and working capital deficit of $113.5 million. As of December 31, 2019, $55.9 million of convertible bonds was due within one year. These raised substantial doubt about our ability to continue as a going concern.

 

We have revised the assumptions underlying our existing operating plans and recognized the fact that additional actions were needed to reposition our operations to minimize our cash outflows. Therefore, we undertook a number of initiatives in order to conserve or generate cash on an incremental basis in 2018 and 2019. These initiatives included:

 

· Working capital management. The Group sold several PV projects in Japan and US, and is actively negotiating with the buyers to mobilize cash collection. In addition, the Group has intention to sell all the PV projects in Italy and US. The sales of these projects are expected to bring in significant amount of cash to the company to improve liquidity and capital to reinvest into new solar projects. Except for the PV projects in US to be constructed, the Group has been closely monitoring the Group’s capital spending level until its liquidity position has improved. These initiatives are aimed at preserving cash and generating operating cash flows to enable the Group to repay its borrowings and accounts payable.

 

· Cost saving measures. The Group has implemented certain measures with an aim to reduce its operating expenses in 2020. Such measures include: 1) strictly controlling and reducing business, marketing and advertising expenses in United States and Australia; 2) lowering the remuneration of the Group’s management team.

 

However, we cannot assure you that this liquidity plan will be successful executed. See “Item 3. Key Information—D. Risk Factors—Risks Related to Our Business and Industry—. Historically, we have incurred net losses, experienced net cash outflows from operating activities and recorded working capital deficit. If we do not effectively manage our cash and other liquid financial assets and execute our liquidity plan, we may not be able to continue as a going concern.”

 

Capital Expenditures

 

We incurred capital expenditures of $0.3 million, $0.1 million and $1.5 million in 2017, 2018 and 2019, respectively. Capital commitments amounted to approximately $5.1 million as of December 31, 2019. These capital commitments will be used primarily for the construction of our solar projects. We expect to finance construction of these projects using cash from our operations and private placements, bank borrowings as well as other third-party financing options.

 

Research and development, patents and licenses, etc.

 

We have discontinued our manufacturing business and liquidated our research and development function.

 

 

 

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Trend information

 

Other than as disclosed elsewhere in this annual report, we are not aware of any trends, uncertainties, demands, commitments or events for 2019 that are reasonably likely to have a material effect on our net revenues, income, profitability, liquidity or capital resources, or that would cause reported consolidated financial information not necessarily to be indicative of future operating results or financial conditions.

 

Off-Balance Sheet Arrangements

 

We have not entered into any financial guarantees or other commitments to guarantee the payment obligations of any third parties. We have not entered into any derivative contracts that are indexed to our own shares and classified as shareholder’s equity, or that are not reflected in our consolidated financial statements. We do not have any retained or contingent interest in assets transferred to an unconsolidated entity that serves as credit, liquidity or market risk support to such entity. We do not have any variable interest in any unconsolidated entity that provides financing, liquidity, market risk or credit support to us or engages in leasing, hedging or research and development services with us.

 

Tabular Disclosure of Contractual Obligations

 

The following table sets forth our contractual obligations as of December 31, 2019:

 

    Payment due by period  
Contractual Obligations   Total

    less than 1 year

    1-3 years     3-5 years     more than 5 years  
    ($ in thousands)  
Convertible bonds   $ 55,907     $ 55,907     $     $     $  
Short-term borrowings     2,857       2,857                    
Long-term debt obligations     6,039             504       636       4,899  
Operating lease obligations     2,835       546       601       286       1,402  
Capital commitment     5,144       5,144                    
Due to an affiliate     2,037       309       619       619       490  
Total   $ 74,819     $ 64,763     $ 1,724     $ 1,541     $ 6,791  

 

ITEM 6.                    DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES

 

A. Directors and Senior Management

 

The following table sets forth the names and ages of our current board of directors (the “Board”) and our named executive officers and the principal offices and positions held by each person. Our executive officers are appointed by the Board. Our directors serve until the earlier to occur of the appointment of his or her successor at the next meeting of shareholders, death, resignation or removal by the Board. There are no family relationships among our directors and our named executive officers.

 

 

 

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Name Age Position
Xiaofeng Peng 45 Director, Executive Chairman of the Board of Directors and Chief Executive Officer
Maurice Ngai 58 Director
HoongKhoeng Cheong 55 Director and Chief Operating Officer
Lu Qing 49 Director
Jing Zhang 65 Director

 

Set forth below is a brief biography of each director, named executive officer and significant employee that contains information regarding the individual’s service as a director, named executive officer or significant employee including business experience for the past five years. In addition, information for directors includes directorships held during the past five years, information concerning certain legal or administrative proceedings, if applicable, and the experiences, qualifications, attributes or skills that caused the Board to determine that the individual should serve as a director for us.

 

Mr. Xiaofeng Peng has served as a director and the executive chairman of our Board since January 10, 2011 and as our chief executive officer since March 25, 2016. Mr. Peng was appointed chairman of the Board pursuant to the Stock Purchase Agreement entered into between us and LDK on January 5, 2011. Mr. Peng founded LDK in July 2005 and is its chairman of the board and chief executive officer. Prior to founding LDK, Mr. Peng founded Suzhou Liouxin Co., Ltd., or Suzhou Liouxin, in March 1997 and was its chief executive officer until February 2006. Suzhou Liouxin is a leading manufacturer of personal protective equipment in Asia. Mr. Peng graduated from Jiangxi Foreign Trade School with a diploma in international business in 1993 and from Beijing University Guanghua School of Management with an executive MBA degree in 2002.

 

Dr. Maurice Wai-fung Ngai has served as our director since May 9, 2016. Dr. Ngai is a member of the Working Group on Professional Services under the Economic Development Commission of HKSAR, a director of Hong Kong Coalition of Professional Services, the President of the Hong Kong Institute of Chartered Secretaries (2015), a General Committee member of The Chamber of Hong Kong Listed Companies, a member of Qualification and Examination Board of the Hong Kong Institute of Certified Public Accountants and the Adjunct Professor of Law of Hong Kong Shue Yan University. Dr. Ngai obtained a Doctoral Degree in Finance at Shanghai University of Finance and Economics, a Master’s Degree in Corporate Finance from Hong Kong Polytechnic University, a Master’s Degree in Business Administration from Andrews University of Michigan and a Bachelor’s Degree in Laws at University of Wolverhampton. He is in a selected talent pool of State-owned Assets Supervision and Administration of the State Council (SASAC) and is serving as an independent non-executive director of several reputable listed companies.

 

Mr. HoongKhoeng Cheong has served as our director since September 2017, as and our chief operating officer since May 2014. Mr. Cheong has more than 20 years of engineering and operation experience in the solar and electronics industries. He served in various management positions in LDK from 2011 to 2014 and he was appointed as the chairman of the Management Board and chief executive officer of Sunways AG, a publicly-listed company in Germany. He previously served as our general manager from 2007 to 2011 and was responsible for PV system design and development as well as the manufacturing of key components for PV modules and racking systems before joining LDK. Prior to joining the solar industry in 2007, Mr. Cheong spent 16 years in the electronics industry responsible for engineering development and manufacturing of liquid crystal display products and he served as the Vice President of Engineering of an affiliate of Flextronics International Ltd. Mr. Cheong holds a Bachelor of Science degree in mechanical engineering from the University of Louisiana and obtained his Master of Science in computer integrated manufacturing from Nanyang Technology University, Singapore in 1997.

 

Ms. Lu Qing has served as our director since May 2017. She currently serves as the chief operating officer of WisePublic Asset Management Limited, where she manages daily operations, and acts as the special consultant to Peking Certified Public Accountants. Ms. Lu Qing has qualified experience in the finance, accounting, tax and legal fields. She served the head of internal audit of China Regenerative Medicine International Limited (8158 HK) from January 2013 to October 2015. Ms. Lu Qing also served as financial controller of Mainland China at Sing Tao News Corporation Limited (1105 HK) from May 2005 to May 2008. From February 1992 to March 2002, Ms. Lu Qing served as one of the major business partners and vice general manager at Peking Certified Public Accountants. Ms. Lu Qing received bachelor’s degree in economics, major in accounting from Central University of Finance and Economics in June 1993, and a master’s degree in law from Peking University in January 2001. Ms. Lu Qing is also a Certified Tax Agents, Certified Public Valuer, and Certified Public Account in China.

 

 

 

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Mr. Jing Zhang has served as our director since March 30, 2020. Mr. Zhang has served as a director of Hong Kong Dongying Financial Group since 2012, where he manages the group’s private equity operations. He has also been an independent director of New City Construction Development Group Co., Ltd. and China International Capital Corporation since 2012. He served as a deputy general manager of China Yituo Group Co., Ltd. and a director and chief financial officer of First Tractor Co., Ltd. from 1997 to 2007. Mr. Zhang Jing received the Master degree in Management Engineering from Jiangsu University.

 

B. Compensation of Directors and Executive Officers

 

For the year ended December 31, 2019, the aggregate cash compensation and benefits that we paid to our directors and executive officers was approximately $3,129,680. No pension, retirement or similar benefits have been set aside or have accrued by us for our executive officers of directors.

 

Stock Incentive Plans

 

2006 Equity Incentive Plan

 

On November 15, 2006, SPI’s board of directors adopted the 2006 Equity Incentive Plan, reserving nine percent (9%) of the outstanding shares of SPI’s common stock for the plan, and this plan was approved by SPI’s shareholders on February 7, 2007. Upon completion of the Redomicle Merger, our Company assumed SPI’s existing obligations under the 2006 Equity Incentive Plan and an equal number of the Company’s ordinary shares, rather than the common stock of SPI, will be issued upon the exercise of the awards under this plan.

 

The following are principal terms under our 2006 Equity Incentive Plan:

 

Administration. The administrator is a committee consisting of two or more independent members of the Board appointed by the Board to administer this plan, or if there is no such committee, the Board itself.

 

Awards. We may grant incentive and non-qualified share options, restricted shares, unrestricted shares and share appreciation rights under this plan.

 

Award Agreements. Each award granted under this plan will be evidenced by a signed written award agreement between the Company and the award recipient.

 

Exercise Price. The exercise price of any option or share appreciation right will be determined by the administrator in accordance with this plan.

 

Terms of Awards. The term of options granted under this plan may not exceed ten years (or five years, in the case of an incentive share option granted to an optionee who owns more than ten percent of the total combined voting power of all classes of share of the Company). The term of a share appreciation right will be set forth in the award agreement as determined by the administrator.

 

Vesting Schedule. The administrator may determine in its discretion whether any award will be subject to vesting and the terms and conditions of any such vesting. The award agreement will contain any such vesting schedule.

 

Transfer Restrictions. No options, restricted shares awards (prior to vesting, subject to the plan and the award agreement) or share appreciation rights may be transferred other than by will or by the laws of descent or distribution, except that non-qualified options and share appreciation rights may be transferred to an award recipient’s former spouse pursuant to a property settlement made part of an agreement or court order incident to the divorce. During the lifetime of an award recipient, only the award recipient, his guardian or legal representative may exercise an option (other than an incentive share option) pursuant to a domestic relations order in accordance with the plan. During the lifetime of an award recipient, only the award recipient may exercise the restricted share awards or share appreciation rights.

 

Termination of Employment or Service. In the event that an award recipient terminates employment with us or ceases to provide services to us, an award may be exercised following the termination of employment or services as provided in the plan and the award agreement.

 

 

 

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Termination and Amendment of the Plan. This plan was terminated automatically in 2016 pursuant to its terms. Our Board has the authority to amend, suspend or terminate the plan, subject to shareholder approval with respect to certain amendments. No award will be granted after termination of this plan but all awards granted prior to termination will remain in effect in accordance with their terms.

 

2015 Equity Incentive Plan

 

On May 8, 2015, our board of directors adopted our 2015 Equity Incentive Plan. Our shareholders approved this plan on the same date. This plan went effective upon completion of the Redomicile Merger. The total number of Shares that may be issued under this plan is nine percent (9%) of the number of outstanding and issued ordinary shares of the Company. Awards may, in the discretion of the administrator, be made under this plan in assumption of, or in substitution for, outstanding awards previously granted by the Company or its affiliates or a company acquired by the Company or with which the Company combines. The number of shares underlying such substitute awards shall be counted against the aggregate number of shares available for awards under the plan.

 

The following are principal terms under our 2015 Equity Incentive Plan:

 

Administration. This plan is administered by the compensation committee of our Board, and the compensation committee may delegate its duties and powers in whole or in part to any subcommittee of it.

 

Awards. We may grant non-qualified or incentive share options, share appreciation rights and other share-based awards such as restricted shares under this plan.

 

Option / Exercise Price. The purchase price per share of any option and the exercise price of any share appreciation right will be determined by the administrator in accordance with the plan.

 

Terms of Awards. The term of options granted under this plan may not exceed ten years from the date of grant. Vesting Conditions. The administrator has full power and authority to accelerate or waive any vesting conditions.

 

Transfer Restrictions. Unless otherwise determined by the administrator and subject to terms and conditions of the plan, an award may not be transferred other than by will or by the laws of descent and distribution.

 

Adjustments upon Certain Events. In the event of any change in the outstanding shares by reason of certain corporate transactions, the administrator will in its sole discretion make such substitution or adjustment (if any) as to the number or kind of securities issued or reserved for issuance pursuant to the plan or outstanding awards, the maximum numbers of awards that may be granted during a calendar year to any award recipient, the option or exercise price of any awards, or other affected terms of the awards. In the event of a change of control, the administrator may (1) determine any outstanding awards to be automatically exercisable or otherwise vested or no longer subject to lapse restrictions; or (2) cancel these awards in accordance with the plan, provide for issuance of substitute awards that substantially preserve the otherwise applicable terms of these awards, or provide that relevant options shall be exercisable within a period of at least 15 days prior to the change of control and shall terminate upon occurrence of the change of control.

 

Termination and Amendment of Plan. Unless terminated earlier, this plan shall terminate automatically in 2025. Our Board may amend, alter or discontinue this plan in accordance with terms and conditions of the plan. No award may be granted under the plan after termination date, but awards granted prior to termination will remain in effect.

 

 

 

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Option Awards

 

The following table summarizes the outstanding options that we granted to our directors and executive officers and to other individuals as a group under both of our 2006 Equity Incentive Plan and our 2015 Equity Incentive Plan as of the date of this annual report. We have not granted any outstanding options other than to the individuals named below.

 

Name

 

 

Number of Shares

 

Exercise Price ($) 

 

Grant Date 

 

Expiration Date 

Xiaofeng Peng   100,000    $3.63   September 2017   September 2027
Maurice Ngai   3,600*   $62   May 2016   May 2026
    3,600    $62   May 2016   May 2026
    5,000    $3.63   September 2017   September 2027
HoongKhoeng Cheong   46,000*   $3.63   September 2017   September 2027
Qing Lu   800*   $3.63   September 2017   September 2027
Jing Zhang   20,000*   $0.66   March 2020   March 2030
Directors and executive officers as a group   179,000*   From $0.66 to $62   From August 2013 to March 2020   From May 2026 to September 2030
Other individuals as a group   92,200**            

_____________________

 

* Upon exercise of all share options, would beneficially own less than 5.0% of our then outstanding share capital.

 

** Upon exercise of all share options, each such individual would beneficially own less than 1.0% of our then outstanding share capital.

 

C. Board Practices

 

Board of Directors

 

Our board of directors currently consists of five directors, three of whom satisfy the “independence” requirements of Rule 10A-3 under the Exchange Act and Rule 5605 of the NASDAQ Rules. The law of our home country, which is the Cayman Islands, does not require a majority of the board of directors of our Company to be composed of independent directors, nor does the Cayman Islands law require that of a compensation committee or a nominating committee. We intend to follow our home country practice with regard to composition of the board of directors. A director is not required to hold any shares in the Company by way of qualification. A director who is in any way, whether directly or indirectly, interested in a contract or transaction or proposed contract or transaction with our company must declare the nature of his interest at a meeting of the directors. Subject to the NASDAQ Rules and disqualification by the chairman of the relevant board meeting, a director may vote in respect of any contract or transaction or proposed contract or transaction notwithstanding that he or she may be interested therein and if he or she does so his or her vote shall be counted and he or she may be counted in the quorum at the relevant board meeting at which such contract or transaction or proposed contract or transaction is considered. Our board of directors may exercise all of the powers of our Company to borrow money, to mortgage or charge our undertakings, property and uncalled capital, and to issue debentures or other securities whenever money is borrowed or pledged as security for any debt, liability or obligation of our Company or of any third party.

 

Committees of the Board of Directors

 

We have an audit committee, a compensation committee and a nominating and corporate governance committee under the board of directors. We have adopted a charter for each of the three committees. Each committee’s members and functions are described below.

 

Audit Committee

 

Our audit committee consists of Maurice Ngai, Qing Lu and Jing Zhang, and is chaired by Maurice Ngai. All of the members of our audit committee satisfy the “independence” requirements of Rule 10A-3 under the Exchange Act and Rule 5605 of the NASDAQ Rules. The audit committee assists the Board’s oversight of (1) the quality and integrity of our financial statements and related disclosure, (2) our compliance with legal and regulatory requirements, (3) the independent auditor’s qualifications and independence, (4) the performance of our internal audit function and independent auditors and (5) related-party transactions. The audit committee is responsible for, among other things:

 

 

 

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  · appointing the independent auditors and pre-approving any non-audit services to be performed by the independent auditors;
     
  · reviewing and approving all proposed related-party transactions;
     
  · reviewing with the independent auditors any audit problems or difficulties and management’s response;
     
  · discussing the audited financial statements with management and the independent auditors;
     
  · reviewing major issues as to the adequacy of our internal controls and any significant deficiencies or material weaknesses in internal controls;
     
  · meeting separately and periodically with management and the independent auditors;
     
  · reviewing with the general counsel the adequacy of procedures to ensure compliance with legal and regulatory responsibilities; and
     
  · reporting regularly to the entire board of directors.

 

Compensation Committee

 

Our compensation committee consists of Qing Lu, Maurice Ngai and Jing Zhang, and is chaired by Qing Lu. Maurice Ngai, Qing Lu and Jing Zhang satisfy the “independence” requirements of Rule 10A-3 under the Exchange Act and Rule 5605 of the NASDAQ Rules. The compensation committee has overall responsibility for evaluating and recommending to the Board compensation of our directors and executive officers and our equity-based and incentive compensation plans, policies and programs. The compensation committee is responsible for, among other things:

 

  ·  approving and overseeing the total compensation package for our executives;
     
  · reviewing and recommending to the Board the compensation of our directors;
     
  · reviewing and approving corporate goals and objectives relevant to the compensation of our chief executive officer, evaluating the performance of our chief executive officer in light of those goals and objectives, and setting the compensation level of our chief executive officer based on this evaluation;
     
  · reviewing periodically and recommending to the Board and administering any long-term incentive compensation or equity plans, programs or similar arrangements; and
     
  · reporting regularly to the entire board of directors.

 

Nominating and Corporate Governance Committee

 

Our nominating and corporate governance committee consists of Jing Zhang, Maurice Ngai, and Qing Lu, and is chaired by Jing Zhang. Jing Zhang, Maurice Ngai and Qing Lu satisfy the “independence” requirements of Rule 10A-3 under the Exchange Act and Rule 5605 of the NASDAQ Rules. The nominating and corporate governance committee assists the board of directors in selecting individuals qualified to become our directors and in determining the composition of the Board and its committees. The nominating and corporate governance committee is responsible for, among other things:

 

  · identifying and recommending to the Board nominees for election to the Board or for appointment to fill any vacancy that is anticipated or has arisen on the Board;
  · reviewing annually with the Board the current composition of the Board in light of the characteristics of independence, age, skills, experience and availability of service to us of its members and of anticipated needs;
  · identifying and recommending to the Board the directors to serve as members of the Board’s committees;
  · advising the Board periodically regarding significant developments in law and practice of corporate governance and making recommendations to the Board on all matters of corporate governance;
  · monitoring compliance with our code of business conduct and ethics, including reviewing the adequacy and effectiveness of our procedures to ensure proper compliance; and
  · reporting regularly to the entire board of directors.

 

 

 

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Duties of Directors

 

Under Cayman Islands law, our directors owe to us fiduciary duties, including a duty of loyalty, a duty to act honestly and a duty to act in what they consider in good faith to be in our best interests. Our directors also have a duty to exercise the skill they actually possess and such care and diligence that a reasonably prudent person would exercise in comparable circumstances. In fulfilling their duty of care to us, our directors must ensure compliance with our memorandum and articles of association, as amended and restated from time to time. Our Company has the right to seek damages if a duty owed by our directors is breached.

 

Terms of Directors and Executive Officers

 

The members of the Board serve until their successors are duly elected and have qualified. Our officers are appointed by and serve at the discretion of the board of directors. A director will cease to be a director if, among other things, the director (i) becomes bankrupt or makes any arrangement or composition with his creditors; (ii) dies or is found by our company to be or becomes of unsound mind; (iii) resigns his office by written notice to the Company; (iv) the board resolves that his office be vacated; or (v) is removed from office pursuant to any other provision of our memorandum and articles of association.

 

Employment Agreements

 

We have entered into employment agreements with each of our executive officers. These employment agreements became effective on the signing date and will remain effective through 2020. We may terminate an executive officer’s employment for cause for certain acts of the officer, including, but not limited to, conviction of a felony, any act involving moral turpitude, or a misdemeanor where imprisonment is imposed; commission of any act of theft, fraud, dishonesty, or falsification of any employment or the Company’s records; improper disclosure of the Company’s confidential or proprietary information; any action that has a detrimental effect on the Company’s reputation or business; or failure to perform agreed duties. We may also terminate an executive officer’s employment without cause. Each of us or the relevant executive officer may terminate the employment by giving advance written notice. We may renew the employment agreements with our executive officers.

 

D. Employees

 

As of December 31, 2017, 2018 and 2019, we had 63, 49 and 57 employees, respectively. The employees are based in the U.S., the U.K., Italy, Greece, Hong Kong, Australia, and Japan. The following table sets forth the number of our employees for each of our major functions as of December 31, 2019:

 

Major functions   As of
December 31,
2019
 
Managerial functions     33  
Operating functions     20  
Others     4  
Total     57  

 

None of our employees are represented by a labor union nor are we organized under a collective bargaining agreement. We have never experienced a work stoppage and believe that our relations with our employees are good.

 

As required by regulations in China, we participated in various employee social security plans that are organized by municipal and provincial governments, including pension, unemployment insurance, childbirth insurance, work-related injury insurance, medical insurance and housing insurance. We were also required under PRC law to make contributions to employee benefit plans at specified percentages of the salaries, bonuses and certain allowances of our employees, up to a maximum amount specified by the local government from time to time. Since we divested our Chinese operation in December 2018, we are no longer subject to these laws.

 

E. Share Ownership

 

The following tables set forth information with respect to the beneficial ownership of our shares as of the date of the report.

 

· each of our directors and executive officers; and
· each person known to us to own beneficially in excess of 5% of our ordinary shares.

 

 

 

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Directors and Executive Officers   Shares
Beneficially
Owned
    Percentage
Beneficially
Owned
 
Xiaofeng Peng, Chairman of the Board1     5,339,340       35.99%  
Maurice Wai-fung Ngai, Director     *       *  
Qing Lu, Director     *       *  
Jing Zhang, Director     *       *  
HoongKhoeng Cheong, Director and Chief Operating Officer     *       *  
All Directors and Executive Officers as a Group2     6,071,140       42.20%  

__________________

 

(1) Consists of 2,000 ordinary shares and options to purchase 50,000 ordinary shares, Mr. Xiaofeng Peng, as the spouse of Ms. Shan Zhou, may be deemed to beneficially own the 875,000 ordinary shares of the Company held by Ms. Shan Zhou. Furthermore, LDK New Energy Holding Limited, or LDK Energy, directly owns 3,412,340 ordinary shares. As the spouse of Ms. Shan Zhou, who is the sole shareholder and a director of LDK Energy, Mr. Peng may be deemed to beneficially own such 3,412,340 ordinary shares beneficially owned by LDK Energy. Lighting Charm Limited holds an option to purchase 1,000,000 ordinary shares. As the spouse of Ms. Shan Zhou, who is the sole shareholder and a director of Lighting Charm Limited, Mr. Peng may be deemed to beneficially own such 1,000,000 ordinary shares beneficially owned by Lighting Charm Limited.

 

(2) Consists of an aggregate of 4,973,840 ordinary shares and options to purchase an aggregate of 1,097,300 ordinary shares.

 

* Less than 5.0%.

 

Principal Shareholders

 

Ordinary Shares Beneficially Owned

   

Percentage Beneficially Owned

 
LDK Solar USA, Inc. (1)     1,317,463       8.88%  
LDK Solar Europe Holding SA (2)     97,712       0.66%  
Shan Zhou(3)     5,339,340       35.99%  
UPC CO., LTD. (4)     1,350,000       9.10%  
Qian Kun Prosperous Times Investment Limited (5)     800,000       5.40%  

______________________

 

(1) LDK Solar USA, Inc. LDK Solar USA, Inc. is wholly owned by LDK Solar CO., Ltd. The address of LDK Solar USA, Inc. LDK Solar USA, Inc. is One Front Street, Suite 1600, San Francisco, CA 94111, USA.

 

(2) LDK Solar Europe Holding S.A. is wholly owned by LDK Solar International Co., Ltd., which is in turn wholly owned by LDK Solar CO., Ltd. The address of LDK Solar Europe Holding S.A. is 898, rue Pafebruch, L-8308, Capellen RCS, Luxembourg.

 

(3) Consists of 875,000 ordinary shares held by Ms. Shan Zhou and 3,412,340 ordinary shares beneficially owned by LDK Energy. As the spouse of Mr. Peng, Ms. Shan Zhou may also be deemed to beneficially own 2,000 ordinary shares and 50,000 ordinary shares that Mr. Peng has the option to purchase. Lighting Charm Limited holds an option to purchase 1,000,000 ordinary shares. As the sole shareholder and a director of Lighting Charm Limited, Ms. Shan Zhou may be deemed to beneficially own such 1,000,000 ordinary shares beneficially owned by Lighting Charm Limited.

 

(4) Mrs. Qiuyue Liu is the natural person who has sole voting and investment power over 1,350,000 ordinary shares of the company shares held through UPC CO., LTD. The address of UPC CO., LTD. is at Floor 4, Willow house, cricket square, PO Box 2804,Grand Cayman, KY1-1112, Cayman Islands.

 

(5) Mr. Yunshi Wang is the natural person who has sole voting and investment power over 800,000 ordinary of the company shares held through Qian Kun Prosperous Times Investment Limited. The address of Qian Kun Prosperous Times Investment Limited is Sea Meadow House, Blackburne Highway, (P.O. Box 116), Road Town, Tortola, British Virgin Islands.

 

 

 

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As of the date of this annual report, 14,837,469 ordinary shares are issued and outstanding. We cannot ascertain the exact number of beneficial shareholders with addresses in the United States.

 

None of our shareholders has different voting rights from other shareholders as of the date of this annual report. We are currently not aware of any arrangement that may, at a subsequent date, result in a change of control of our Company.

 

ITEM 7.                    MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS

 

A. Major Shareholders

 

Please refer to “Item 6. Directors, Senior Management and Employees—E. Share Ownership.”

 

B. Related Party Transactions

 

Transactions with Our Directors, Executive Officers and Shareholders

 

On January 17, 2019, we entered into share purchase agreements with certain existing shareholders (including certain key management personnel of the Company) and other investors (collectively, the “Purchasers”), pursuant to which the Purchasers agreed to purchase an aggregate of 6,600,000 ordinary shares of the Company at a price of US$1.16 per Share, for a total consideration of approximately $7.7 million.

 

Employment Agreements

 

See “Item 6. Directors, Senior Management and Employees—C. Board Practices—Employment Agreements.

 

Share Incentives

 

See “Item 6. Directors, Senior Management and Employees—B. Compensation of Directors and Executive Officers” for a description of share options that we have granted to our directors, officers and other individuals as a group.

 

C. Interests of Experts and Counsel

 

Not applicable.

 

ITEM 8.                    FINANCIAL INFORMATION

 

A. Consolidated Statements and Other Financial Information

 

We have appended consolidated financial statements filed as part of this annual report.

 

Legal and Administrative Proceedings

  

Some of our previous employees filed lawsuits in late 2015 and early 2016 against us for breach of their prior employment contracts with us. As of the date of this annual report, we have reached a settlement with Michael Turco, Taimur Jamil, Sharon Mauer, William Heck and Brain Lessig and the court has administratively closed those matters. There is only one unclosed employee lawsuit with Kevin Adler, which we and Kevin Adler have reached a settlement in February 2020. The lawsuit is pending final adjournment upon the payment of all settlement amount.

 

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There is currently an ongoing dispute in Greece between the Company and SPI China (HK) Limited on one hand (hereinafter collectively, “SPI”) and SINSIN Europe Solar Asset Limited Partnership and SINSIN Solar Capital Limited Partnership on the other hand (hereinafter collectively, “SINSIN”) with respect to a share sale and purchase agreement dated September 9, 2014 (“SPA”) entered into by and between SINSIN,as vendors, and SPI, as purchasers, in relation to all of the shares in Sinsin Renewable Investment Limited, a company registered in Malta (for purpose of this section, “SRIL”). The SPA is governed by Maltese law and any disputes thereunder shall be referred to arbitration in Malta. SRIL is the direct and/or indirect owner of four (4) Greek companies under the names “JASPER PV MACEDONIA ENERGIAKI SOCIETE ANONYME”, “ORION ENERGIAKI SOCIETE ANONYME PHOTOVOLTAICON ERGON”, “ASTRAIOS ENERGIAKI SOCIETE ANONYME PHOTOVOLTAICON ERGON”, “PHOTOVOLTAICA PARKA VEROIA I SOCIETE ANONYME” (hereinafter collectively, “4 SPVs”). The 4 SPVs collectively own a number of photovoltaic parks in Greece having a total power output of 26.57 MW.

 

In particular, the following judicial proceedings were initiated in Greece and are pending as of the date of this annual report:

 

A. SINSIN’s Injunction Petition against the 4 SPVs dated January 26, 2018, with General Submission No 8118/2018, which was heard on the March 20, 2018, before the Athens One-Member First Instance Court and on which Judgement No 4212/2018 was issued on June 25,2018.

 

This Interim Measures Judgment ordered, inter alia, the following:

 

(A) It suspends the force of the extraordinary General Meetings of the shareholders of the 4 SPVs dated December 19, 2017 on the appointment of their members of Board of Directors, until the issuance of a final judgment on the lawsuit filed by SINSIN on March 14, 2018 for the annulment of the extraordinary General Meetings of the shareholders of the 4 SPVs dated December 19, 2017.

 

(B) It appoints an interim management of the 4 SPVs, consisting of two members elected by SINSIN (Dejun Ye and Fan Yang) and one member elected by the 4 SPVs (Hoong Khoeng Cheong), with the following, exclusively defined, competences: (a) to represent judicially and extra-judicially the 4 SPVs before any public authority and court, (b) to manage the bank accounts of the 4 SPVs, in order to, exclusively and solely, proceed with the payment of existing and current obligations of the 4 SPVs towards third parties, arising from their regular management (liabilities towards the State, employees, social security institutions, private creditors, banks), excluding the payment of any price of the shares that were transferred from SINSIN to SPI pursuant to the above-mentioned share sale and purchase agreement dated September 6, 2014, (c) to collect the proceeds of the 4 SPVs, especially from selling electric energy from the photovoltaic parks of the 4 SPVs to the Operator of Electricity Market (“LAGIE”), which (proceeds) should be subsequently deposited to the bank accounts of the 4 SPVs, with the exclusive purpose being the payment of the above under element b΄ obligations of the 4 SPVs (i.e., not for the payment of the purchase price of the shares transferred by SINSIN to SPI pursuant to the above-mentioned share sale and purchase agreement dated September 6, 2014.

 

(C) It allows the petitioners to register with the Greek General Commercial Registry (“GEMI”) the appointed interim management of the 4 SPVs with the above competences.

 

B. SINSIN’s and Mr. Dejun Ye’s lawsuit against the 4 SPVs dated March 14, 2018, with General Submission No. 25276/2018 (the “Annulment Lawsuit”). By virtue of the Annulment Lawsuit, the petitioners request the annulment of the December 19, 2017 General Assemblies’ Resolutions of the 4 SPVs, which appointed a Board of Directors elected by their shareholders SRIL, Veltimo Limited and Photovoltaica Parka Veroia 1 Malta Limited, companies belonging to SPI.

 

SPI and their subsidiaries opposed the above-mentioned petition. SPI and their subsidiaries SRIL, Veltimo Limited and Photovoltaica Parka Veroia 1 Malta Limited filed an Additional Intervention in the above pending trial under General No. 40772/2018 in favor of the 4 SPVs requesting the rejection of the Annulment Lawsuit.

 

By virtue of its Decision No 2318/2019, the Athens Multimember Court of First Instance suspended the issuance of a definitive judgment on SINSIN’s petition until the issuance of a final decision on the case pending before the Malta arbitration tribunal with respect to the SPA.

 

C. By virtue of a petition under General Submission No 7294/2018 dated January 25, 2018 filed by SINSIN before the Athens Local Court against SRIL, Veltimo Limited and Photovoltaica Parka Veroia 1 Malta Limited, SINSIN lacking an enforcement title, requested the above Athens Local Court to allow them to proceed to an auction of the pledged shares of the 4 SPVs, in order to satisfy their claim amounting to EUR 38.3 million, plus interest and expenses, for the outstanding purchase price of the 4 SPVs shares under the above-mentioned share sale and purchase agreement dated September 6, 2014.

 

 

 

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SRIL, Veltimo Limited and Photovoltaica Parka Veroia 1 Malta Limited opposed the above-mentioned petition.

 

The above petition was heard on October 23, 2018. The Athens Local Court issued Decision No. 350/2019, which suspended the issuance of a definitive judgment on SINSIN’s petition until the issuance of a final decision on the case pending before the Malta arbitration tribunal with respect to the SPA.

 

In June 2018, the Company, as Claimant, filed arbitration proceedings in Malta against SINSIN as respondents for an alleged breach of a share sale and purchase agreement dated September 6, 2014 entered into by and between the respondents as sellers and the claimant as purchaser in relation to all of the shares in SRIL. The claimant is requesting the payment of damages from the respondents.

 

The respondents have filed separate arbitration proceedings in Malta against the Company, requesting payment of the balance of the purchase price due in terms of the share purchase agreement mentioned above (stated to be EUR38,054,000) together with interest. Company is contesting these claims. Meanwhile, SINSIN has obtained the status of a precautionary garnishee order against the Company as security for its claims and has had the same order served on SRIL with a view to freezing any payments that may be due by the target company to its shareholders, the Company.

 

The production of evidence in both arbitration cases has been completed and the parties have also produced very extensive written final submissions in relation to the cases. They have also filed their respective rebuttals to the submissions.

 

Unless there are any unforeseen circumstances or developments, we expect that the Tribunal is now in a position to move to deliberate the cases with a view to issuing its final awards in both cases concurrently. While no specific date has been given or agreed for the delivery of the awards, in July 2019 the Tribunal had indicated that it expected to be in a position to issue the awards by the end of second quarter in 2020. It is possible that the Tribunal will require more time for this purpose.

 

The cases are vigorously contested and both parties have produced substantive evidence and plausible submissions with regard to their interpretation of the facts and the application of relevant laws to the circumstances. The likelihood of success for either party is very difficult to assess at this time. We believe that there is a possibility that the Tribunal could accept both Parties’ claims (in part) thereby giving an award which is of limited success to each party. We believe that at best there is a 50% chance of obtaining a favourable award in favour of the Company.

 

In a best-case scenario, should an award in favour of the Company be given, the Company would be awarded damages in the sum of Euro54 million together with interest and costs of the Arbitration held in Malta. On the other end of the spectrum and in a worst-case scenario, an arbitral award given in favour of SINSIN would lead to an award ordering the Company to pay Euro38 million in outstanding payments plus an unquantified amount in additional damages, together with legal interest and costs. The damages will need to be liquidated and quantified by the Tribunal.

 

It should also be noted that if there is an Award with costs against the Company, fees and costs payable to the arbitral tribunal and to counsel is expected to be material and could be as high as Euro 1 million in the aggregate.

 

In June 2018, ENS obtained a default judgement invalidating the Governance Agreement. In March 2019, ENS made an assignment for benefit of creditors which assignment is part of a Wisconsin Chapter 128 receivership initiated by creditor Analytics Plus, LLC Captioned Analytics Plus, LLC v. Ensync, Inc., Waukesha County Circuit Court Case No. 19-CV-556 (the “ Chapter 128 Proceeding”). The Company has instructed to vigorously pursue all legal remedies available to the Company.

 

Solar Juice USA Inc. (“SolarJuice”), a subsidiary of the Company, submitted a complaint in the local court in the county of Santa Clara in the State of California on or about June 11, 2020 against Shengrun Int’l Industry Group, Inc., a California corporation (“Shengrun”) and Sophie Harrison, a resident of the State of California and the purported controlling person of Shengrun. In March, 2019, SolarJuice  and Shengrun entered into a real property purchase agreement pursuant to which SolarJuice shall purchase from Shengrun a real property located in Santa Clara in the State of California.  Subsequently, SolarJuice made a down payment of $3,132,000 to Shengrun for the proposed transaction, and Sophie Harrison provided personal guarantee that if Shengrun does not convey the property to SolarJuice or if SolarJuice withdraws from the transaction, she would be personally liable for the return of the down payment to SolarJuice. As of the date hereof, the subject property has not been conveyed to SolarJuice, neither has Shengrun or Ms. Harrison refunded the down payment to SolarJuice. Counsel for SolarJuice on this matter reasonably expects that the court shall render a verdict against Shengrun and Ms. Harrison personally (as related to the personal guarantee) and in favor of SolarJuice. However, the counsel does not have the information to assess whether Shengrun or Ms. Harrison has the assets available for the governmental authorities or the Company to enforce such verdict.

 

 

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The Company is currently involved in a potential lawsuit against NAAC regarding our newly set up CBD and hemp business. The Company was required to make a down payment of $324,125 to NAAC on or before July 31, 2019, and the Company timely made this payment. Subsequently, however, NAAC failed to comply with or perform the Agreement. First, in August 2019, representatives of the Company visited the farm where NAAC was growing the hemp. The conditions of the plants and growing operations appeared to be deficient and not up to industry standards. Second, NAAC failed to provide the required Milestone Report and Financial Reports. Finally, NAAC failed to deliver any of the hemp plants by November 30, 2019, or at all, and refused and failed to return Company’s down payment and to make whole for the damages the Company has suffered. As such, NAAC was in default under the Agreement. The Company sent two demand letters to NAAC on October 25, 2019 and November 25, 2019 respectively without any response from NAAC. The Company has instructed to vigorously pursue all legal remedies available to the Company.

 

In May 2020, Solar Juice Co. Ltd (“Solar Juice Co”),a wholly owned subsidiary of the Company, in its capacity as shareholder of Solar Juice Australia (an Australian company) together with Mr. Kun Fong Lee and Mr. Jinhan Zhou (who hold shares in Solar Juice Australia as trustee for Solar Juice Co) ("SPI Shareholders") commenced proceedings in the Federal Court of Australia as plaintiffs against its other shareholders and some of its other directors and purported directors and against Solar Juice Australia ("Defendants") in relation to a purported new rights issue undertaken by Solar Juice Australia, the purported removal by those other shareholders of Mr. Kun Fong Lee and Mr. Jinhan Zhou as directors of Solar Juice Australia and the purported appointment of an additional director. The SPI Shareholders allege that the purported new rights issue and the subsequent purported removal and appointment of directors are invalid and ineffective and therefore should be set aside. If effective, the purported rights issue will result in the SPI Shareholders' shareholding in Solar Juice Australia being reduced from 80% to 40%. The parties to the litigation have requested that the case be expedited but it is current unknown when a final hearing will take place.

 

From time to time, we are involved in various other legal and regulatory proceedings arising in the normal course of business. While we cannot predict the occurrence or outcome of these proceedings with certainty, it does not believe that an adverse result in any pending legal or regulatory proceeding, individually or in the aggregate, would be material to our consolidated financial condition or cash flows. However, an unfavorable outcome could have a material adverse effect on our results of operations for a specific interim period or year.

 

Dividend Policy and Dividend Distribution

 

We have never declared or paid dividends, nor do we have any present plan to pay any cash dividends on our ordinary shares in the foreseeable future. We currently intend to retain our available funds and any future earnings to operate and expand our business.

 

Subject to our memorandum and articles of association and certain restrictions under the Cayman Islands law, our board of directors has complete discretion on whether to pay dividends. In addition, our shareholders may by ordinary resolution declare a dividend, but no dividend may exceed the amount recommended by our directors. Even if our board of directors decides to pay dividends, the form, frequency and amount will depend upon our future operations and earnings, capital requirements and surplus, general financial condition, contractual restrictions and other factors that the board of directors may deem relevant.

 

B. Significant Changes

 

Except as disclosed elsewhere in this annual report, we have not experienced any significant changes since the date of our audited consolidated financial statements included in this annual report.

 

ITEM 9.                    THE OFFER AND LISTING

 

A. Offering and Listing Details

 

Our ADSs, each representing ten ordinary shares, have been listed on the NASDAQ Global Select Market between January 19, 2016 and September 18, 2017. Our Ordinary Shares have been listed on the Nasdaq Global Select Market since September 18, 2017.

 

 

 

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B. Plan of Distribution

 

Not Applicable.

 

C. Markets

 

Our ADSs, each representing ten ordinary shares, were listed on the NASDAQ Global Select market between January 19, 2016 and September 18, 2017 under the symbol “SPI”. Our ordinary shares have been listed on the NASDAQ Global Select market since September 19, 2017 under the symbol “SPI”.

 

D. Selling Shareholders

 

Not Applicable.

 

E. Dilution

 

Not Applicable.

 

F. Expenses of the Issue

 

Not Applicable.

 

ITEM 10.                 ADDITIONAL INFORMATION

 

A. Share Capital

 

Not Applicable.

 

B. Memorandum and Articles of Association

 

The registered office of our Company is at the offices of Harneys Fiduciary (Cayman) Limited, PO Box 10240, 103 South Church Street, 4th floor, Harbour Place, George Town, Cayman Islands. The objects for which the Company is established are unrestricted, and the Company has full power and authority to carry out any object not prohibited by the laws of the Cayman Islands.

 

The following summarizes material provisions of our currently effective amended and restated memorandum and articles of association, as well as the Companies Law (2020 Revision) of the Cayman Islands, which is referred to as the Companies Law below, insofar as they relate to the material terms of our ordinary shares.

 

General

 

All of our issued and outstanding ordinary shares are fully paid and non-assessable. Our ordinary shares are issued in registered form, and are issued when registered in our register of members. Our shareholders who are non-residents of the Cayman Islands may freely hold and transfer their ordinary shares.

 

Dividends

 

The holders of our ordinary shares are entitled to such dividends as may be declared by our board of directors, subject to the Companies Law and the memorandum and articles of association of our Company, as amended and restated from time to time. In addition, our shareholders may by ordinary resolution declare a dividend, but no dividend may exceed the amount recommended by our directors. Under Cayman Islands law, dividends may be declared and paid only out of funds legally available therefor, namely out of either profit or share premium account, and provided further that a dividend may not be paid if this would result in us being unable to pay our debts as they fall due in the ordinary course of business.

 

 

 

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Register of Members

 

Under Cayman Islands law, we must keep a register of members and there shall be entered therein:

 

(a)       the names and addresses of the members, a statement of the shares held by each member, and of the amount paid or agreed to be considered as paid, on the shares of each member;

 

(b)       the date on which the name of any person was entered on the register as a member; and

 

(c)       the date on which any person ceased to be a member.

 

Under Cayman Islands law, our register of members is prima facie evidence of the matters set out therein (namely, the register of members will raise a presumption of fact on the matters referred to above unless rebutted) and a member registered in the register of members shall be deemed as a matter of Cayman Islands law to have legal title to the shares as set against its name in the register of members. If the name of any person is incorrectly entered in or omitted from our register of members, or if there is any default or unnecessary delay in entering on the register the fact of any person having ceased to be a member of our Company, the person or member aggrieved (or any member of our Group or our Company itself) may apply to the Grand Court of the Cayman Islands for an order that the register be rectified, and the Court may either refuse such application or it may, if satisfied of the justice of the case, make an order for the rectification of the register.

 

Voting Rights

 

Each holder of ordinary shares is entitled to one vote on all matters upon which the ordinary shares are entitled to vote on a show of hands or, on a poll, each holder is entitled to have one vote for each share registered in his name on the register of members. Voting at any meeting of shareholders is by show of hands unless a poll is demanded. A poll may be demanded by the chairman of the meeting or by any one or more shareholders holding at least one-tenth of the paid-up shares given a right to vote at the meeting or one-tenth of the votes attaching to the issued and outstanding ordinary shares in us entitled to vote at general meetings, present in person or by proxy.

 

A quorum required for a general meeting of shareholders consists of one or more shareholders who hold in aggregate at least one-third of the votes attaching to the issued and outstanding ordinary shares in us entitled to vote at general meetings, present in person or by proxy or, if a corporation or other non-natural person, by its duly authorized representative. Although not required by the Companies Laws or our amended and restated memorandum and articles of association, we expect to hold shareholders’ meetings annually and such meetings may be convened by our board of directors on its own initiative or upon a request to the directors by shareholders holding in aggregate at least one-third of the votes attaching to the issued and outstanding shares that carry the right to vote at general meetings. Advance notice of at least 14 days is required for the convening of our annual general meeting and other shareholders meetings.

 

An ordinary resolution to be passed by the shareholders requires the affirmative vote of a simple majority of the votes cast by those shareholders entitled to vote who are present in person or by proxy in a general meeting, while a special resolution requires the affirmative vote of no less than two-thirds of the votes cast by those shareholders entitled to vote who are present in person or by proxy in a general meeting.

 

Transfer of Ordinary Shares

 

Subject to the restrictions of our articles of association, as applicable, any of our shareholders may transfer all or any of his or her ordinary shares by an instrument of transfer in the usual or common form or any other form approved by our board of directors.

 

 

 

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Our board of directors may, in its absolute discretion, decline to register any transfer of any ordinary share which is not fully paid up or on which we have a lien. Our directors may also decline to register any transfer of any ordinary share unless:

 

  · the instrument of transfer is lodged with us, accompanied by the certificate for the ordinary shares to which it relates and such other evidence as our board of directors may reasonably require to show the right of the transferor to make the transfer;
     
  · the instrument of transfer is in respect of only one class of ordinary shares;
     
  · the instrument of transfer is properly stamped, if required;
     
  · in the case of a transfer to joint holders, the number of joint holders to whom the ordinary share is to be transferred does not exceed four;
     
  · the ordinary shares transferred are free of any lien in favor of us; and
     
  · a fee of such maximum sum as NASDAQ may determine to be payable, or such lesser sum as our board of directors may from time to time require, is paid to us in respect thereof.

 

If our directors refuse to register a transfer they shall, within two months after the date on which the instrument of transfer was lodged, send to each of the transferor and the transferee notice of such refusal. The registration of transfers may, on 14 days’ notice being given by advertisement in such one or more newspapers or by electronic means, be suspended and the register of members closed at such times and for such periods as our board of directors may from time to time determine; provided, however, that the registration of transfers shall not be suspended and the register of members shall not be closed for more than 30 days in any year.

 

Liquidation

 

On a winding up of our Company, if the assets available for distribution among our shareholders shall be more than sufficient to repay the whole of the share capital at the commencement of the winding up, the surplus will be distributed among our shareholders in proportion to the par value of the shares held by them at the commencement of the winding up, subject to a deduction from those shares in respect of which there are monies due, of all monies payable to us for unpaid calls or otherwise. If our assets available for distribution are insufficient to repay all of the paid-up capital, the assets will be distributed so that the losses are borne by our shareholders in proportion to the par value of the shares held by them.

 

Calls on Ordinary Shares and Forfeiture of Ordinary Shares

 

Our board of directors may from time to time make calls upon shareholders for any amounts unpaid on their ordinary shares in a notice served to such shareholders at least 14 days prior to the specified time of payment. The ordinary shares that have been called upon and remain unpaid are subject to forfeiture.

 

Redemption, Repurchase and Surrender of Ordinary Shares

 

We may issue shares on terms that are subject to redemption, at our option or at the option of the holders, on such terms and in such manner as may be determined before the issue of such shares, by our board of directors or by a special resolution of our shareholders. We may also repurchase any of our shares provided that the manner and terms of such purchase have been approved by our board of directors or by ordinary resolution of our shareholders, or are otherwise authorized by our memorandum and articles of association. Under the Companies Law, the redemption or repurchase of any share may be paid out of our profits or out of the proceeds of a fresh issue of shares made for the purpose of such redemption or repurchase, or out of capital (including share premium account and capital redemption reserve) if we can, immediately following such payment, pay our debts as they fall due in the ordinary course of business. In addition, under the Companies Law no such share may be redeemed or repurchased (a) unless it is fully paid up, (b) if such redemption or repurchase would result in there being no shares outstanding, or (c) if the company has commenced liquidation. In addition, we may accept the surrender of any fully paid share for no consideration.

 

 

 

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Variations of Rights of Shares

 

All or any of the special rights attached to any class of shares may, subject to the provisions of the Companies Law, be varied either with the written consent of the holders of a majority of the issued shares of that class or with the sanction of an ordinary resolution passed at a general meeting of the holders of the shares of that class.

 

Inspection of Books and Records

 

Holders of our ordinary shares have no general right under Cayman Islands law to inspect or obtain copies of our list of shareholders or our corporate records. However, we will provide our shareholders with annual audited financial statements.

 

Changes in Capital

 

We may from time to time by ordinary resolution:

 

  · increase our share capital by such sum, to be divided into shares of such classes and amount, as the resolution shall prescribe;
     
  · consolidate and divide all or any of our share capital into shares of a larger amount than our existing shares;
     
  · convert all or any of our paid-up shares into stock and reconvert that stock into paid up shares of any denomination;
     
  · sub-divide our existing shares, or any of them into shares of a smaller amount that is fixed by the amended and restated memorandum and articles of association; and
     
  · cancel any shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person and diminish the amount of our share capital by the amount of the shares so cancelled.

 

Subject to Companies Law and confirmation by the Grand Court of the Cayman Islands on an application by us for an order confirming such reduction, we may by special resolution reduce our share capital and any capital redemption reserve in any manner authorized by law.

 

Issuance of Additional Preferred Shares

 

Our amended and restated memorandum and articles of association authorizes our board of directors to issue additional ordinary shares from time to time as our board of directors shall determine, to the extent of available authorized but unissued shares.

 

Our amended and restated memorandum and articles of association authorizes our board of directors to establish from time to time one or more series of preferred shares and to determine, with respect to any series of preferred shares, the terms and rights of that series, including:

 

  · the designation of the series;
  · the number of shares of the series;
  · the dividend rights, dividend rates, conversion rights, voting rights; and
  · the rights and terms of redemption and liquidation preferences.

 

 

 

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Our board of directors may issue preferred shares without action by our shareholders to the extent of available authorized but unissued shares. In addition, the issuance of preferred shares may be used as an anti-takeover device without further action on the part of the shareholders. Issuance of these shares may dilute the voting power of holders of ordinary shares.

 

C.               Material Contracts

 

In the past two years, we have not entered into any material contracts other than in the ordinary course of business and other than those described in “Item 4. Information on the Company—B. Business Overview,” “Item 7. Major Shareholders and Related Party Transactions—B. Related Party Transactions,” or elsewhere in this annual report on Form 20-F.

 

D.               Exchange Controls

 

See “Item 3. Key Information—D. Risk Factors—Risks Related to Our International Operations—We are subject to risks associated with foreign currency exchange rates, fluctuations of which may negatively affect our revenue, cost of goods sold and gross margins and could result in exchange losses,” “Item 4. Information on the Company—B. Business Overview—Regulations—Foreign Currency Exchange” and “Item 4. Information on the Company—B. Business Overview—Regulations—Dividend Distribution.”

 

E.                Taxation

 

The following summary of the material Cayman Islands and United States federal income tax consequences of an investment in our ordinary shares is based upon laws and relevant interpretations thereof in effect as of the date of this annual report, all of which are subject to change, possibly with retroactive effect. This summary does not deal with all possible tax consequences relating to an investment in our ordinary shares, such as the tax consequences under United States state or local tax laws, or tax laws of jurisdictions other than the Cayman Islands and the United States.

 

Cayman Islands Taxation

 

The Cayman Islands currently does not levy taxes on individuals or corporations based upon profits, income, gains or appreciation, and there is no taxation in the Cayman Islands in the nature of inheritance tax or estate duty. There are no other taxes likely to be material to us levied by the government of the Cayman Islands except for stamp duty which may be applicable on instruments executed in, or after execution brought within the jurisdiction of the Cayman Islands. The Cayman Islands is not a party to any double tax treaties that are applicable to any payments made to or by our Company. There are no exchange control regulations or currency restrictions in the Cayman Islands.

 

Economic Substance Law

 

Since 1 January 2019,the Cayman Islands adopted certain laws and regulations in response to the Organisation for Economic Co-operation and Development(OECD)Forum on Harmful Tax Practices,which sets the global standard that requires companies to have substantial activities in a jurisdiction (also known as "economic substance").To date, the Cayman Islands have passed or adopted the International Tax Co-Operation (Economic Substance) Law, (as varied by the Regulations which are defined below and includes any revision thereof or amendment thereto from time to time,the"ES Law"), the International Tax Co-Operation (Economic Substance) (Prescribed Dates) Regulations, 2018, the International Tax Co-Operation (EconomicSubstance) (Amendment of Schedule) Regulations, 2019 and the International Co-Operation (Economic Substance) (Amendment of Schedule) (No. 2) Requlations. 2019 (collectively referred to as, the “Regulations”), and the related guidance was published on 30 April 2019.

 

A relevant entity conducting any relevant activity must satisfy the economic substance test the “ES Test”) as set out in the ES Law. Failure to comply with requirements of the ES Law may result in substantial fines and/or imprisonment.

 

Considering SPI Energy is a tax resident outside in US, the Company has been determined that it is either not a Relevant Entity (i.e. an “investment fund” or tax resident in another jurisdiction) or not conducting a Relevant Activity for the purposes of the ES Law.

 

 

 

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U.S. Federal Income Taxation

 

Introduction

 

The following discussion is a summary of U.S. federal income tax considerations of the purchase, ownership and disposition of the ordinary shares. This discussion applies only to holders that hold the ordinary shares as capital assets. This discussion is based on the Code, Treasury regulations promulgated thereunder, and administrative and judicial interpretations thereof, all as in effect on the date hereof and all of which are subject to change, possibly with retroactive effect. This discussion does not address all of the tax considerations that may be relevant to specific holders in light of their particular circumstances or to holders subject to special treatment under U.S. federal income tax law, such as banks, financial institutions, insurance companies, controlled foreign corporations, passive foreign investment companies, tax-exempt entities, regulated investment companies, real estate investment trusts, partnerships and the partners therein, dealers in securities or currencies, traders in securities electing to mark to market, U.S. expatriates, persons who have acquired the ordinary shares as part of a straddle, hedge, conversion transaction or other integrated investment, U.S. Holders (as defined below) that have a “functional currency” other than the U.S. dollar or persons that own (or are deemed to own) 5% or more of our stock. This discussion does not address the alternative minimum tax, the Medicare tax on net investment income or any U.S. state or local or non-U.S. tax considerations or, other than to the limited extent set forth below, any U.S. federal estate or gift tax considerations.

 

As used in this discussion, the term “U.S. Holder” means a beneficial owner of the ordinary shares that is, for U.S. federal income tax purposes, (i) an individual who is a citizen or resident of the United States, (ii) a corporation, or other entity classified as a corporation for U.S. federal income tax purposes, created or organized in or under the laws of the United States or of any state thereof, or the District of Columbia, (iii) an estate whose income is subject to U.S. federal income taxation regardless of its source or (iv) a trust that (1) is subject to the supervision of a court within the United States and the control of one or more United States persons or (2) has a valid election in effect under applicable United States Treasury regulations to be treated as a United States person.

 

As used in this discussion, the term “Non-U.S. Holder” means a beneficial owner of the ordinary shares that is not a partnership (or entity treated as a partnership for U.S. federal income tax purposes) and not a U.S. Holder.

 

Treatment of the Company as a U.S. Corporation for U.S. Federal Income Tax Purposes

 

Even though we are organized as a Cayman Islands exempted company, due to the application of Section 7874(b) of the Code, we are treated as a U.S. corporation for U.S. federal income tax purposes and all purposes under the Code.

 

U.S. Holders

 

Distributions

 

We do not currently anticipate paying distributions on our ordinary shares. In the event that distributions are paid, however, the gross amount of such distributions generally will be included in a U.S. Holder’s gross income as dividend income on the date of receipt to the extent that the distribution is paid out of our current or accumulated earnings and profits, as determined under U.S. federal income tax principles. To the extent the amount of any distribution exceeds our current and accumulated earnings and profits as so computed, it will be treated first as a non-taxable return of capital to the extent of the U.S. Holder’s adjusted tax basis in such ordinary shares and, to the extent the amount of such distribution exceeds such adjusted tax basis, will be treated as gain from the sale of such ordinary shares.

 

Subject to certain conditions, including a minimum holding period requirement, dividends received by individuals and other non-corporate U.S. Holders, generally will be subject to reduced rates of taxation, and dividends paid by us will be eligible for the “dividends received” deduction generally allowed to corporate shareholders with respect to dividends received from U.S. corporations.

 

 

 

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Sale or Other Disposition of Ordinary Shares

 

A U.S. Holder generally will recognize gain or loss for U.S. federal income tax purposes upon a sale or other disposition of the ordinary shares in an amount equal to the difference between the amount realized from such sale or disposition and the U.S. Holder’s adjusted tax basis in such ordinary shares. Such gain or loss generally will be a capital gain or loss and will be long-term capital gain or loss (taxable at a reduced rate for individuals and other non-corporate U.S. Holders) if, on the date of sale or disposition, such ordinary shares were held by such U.S. Holder for more than one year. The deductibility of capital losses is subject to limitations.

 

Non-U.S. Holders

 

Distributions

 

Distributions treated as dividends (see “—U.S. Holders—Distributions” above) paid to a Non-U.S. Holder are treated as income derived from sources within the United States and generally will be subject to U.S. federal withholding tax at a rate of 30% of the gross amount of such dividend, or at a lower rate provided by an applicable income tax treaty.

 

Even if a Non-U.S. Holder is eligible for a lower treaty rate, U.S. federal withholding tax will be imposed at a 30% rate (rather than the lower treaty rate) on dividend payments to a Non-U.S. Holder, unless (i) the Non-U.S. Holder has furnished a valid U.S. Internal Revenue Service (the “IRS”) Form W-8BEN or W-8BEN-E or other documentary evidence establishing such holder’s entitlement to the lower treaty rate with respect to such payments, and (ii) in the case of actual or constructive dividends paid to a foreign entity, (a) if such entity is, or holds the ordinary shares through, a foreign financial institution, any such foreign financial institution (x) has entered into an agreement with the U.S. government to collect and provide to the U.S. tax authorities information about its accountholders (including certain investors in such institution), (y) satisfies an exemption from the obligation to enter into such an agreement, or (z) satisfies the terms of an applicable intergovernmental agreement, and (b) if required, such entity has provided the withholding agent with a certification identifying its direct and indirect U.S. owners.

 

If a Non-U.S. Holder is eligible for a reduced rate of U.S. withholding tax pursuant to an applicable income tax treaty, the Non-U.S. Holder may obtain a refund of any excess amounts withheld by filing an appropriate claim for refund with the IRS.

 

Sale or Other Disposition

 

Any gain realized upon the sale or other disposition of ordinary shares by a Non-U.S. Holder generally will not be subject to U.S. federal income tax unless (i) the Non-U.S. Holder is an individual who is present in the United States for 183 days or more in the taxable year of the disposition, and certain other conditions are met, or (ii) in the case of the sale or disposition of ordinary shares on or after January 1, 2019, the requirements described in item (ii) in the second paragraph under “—Distributions,” above, are satisfied. Each Non-U.S. Holder is encouraged to consult with its own tax advisor regarding the possible implications of these withholding requirements on its investment in ordinary shares and the potential for a refund or credit in the case of any withholding tax.

 

Information Reporting and Backup Withholding

 

Payments of dividends or of proceeds on the disposition of ordinary shares to U.S. Holders may be subject to information reporting and backup withholding unless the U.S. Holder (i) is a corporation or comes within certain other exempt categories and demonstrates this fact, or (ii) provides a correct taxpayer identification number, certifies as to no loss of exemption from backup withholding and otherwise complies with applicable requirements of the backup withholding rules. Non-U.S. Holders may be required to provide documentary evidence establishing they are not subject to information reporting and backup withholding. Payments of dividends to Non-U.S. Holders and the amount of U.S. federal withholding tax imposed on such dividends must generally be reported annually to the IRS. A similar report will be sent to Non-U.S. Holders. Copies of these reports may be made available to tax authorities in a holder’s country of residence.

 

 

 

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Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against a holder’s U.S. federal income tax liability, provided the required information is furnished to the IRS on a timely basis.

 

U.S. Federal Estate Tax

 

Ordinary shares owned or treated as owned by an individual who is not a citizen or resident of the United States (as specifically defined for U.S. federal estate tax purposes) at the time of death will be included in the individual’s gross estate for U.S. federal estate tax purposes and may be subject to U.S. federal estate tax unless an applicable estate tax treaty provides otherwise.

 

F. Dividends and Paying Agents

 

Not applicable.

 

G. Statement by Experts

 

Not applicable.

 

H. Documents on Display

 

We are subject to the periodic reporting and other informational requirements of the Exchange Act as applicable to foreign private issuers. Under the Exchange Act, we are required to file reports and other information with the SEC. Specifically, we are required to file annually a Form 20-F no later than four months after the close of each fiscal year, which is December 31. Copies of reports and other information, when so filed with the SEC, can be inspected and copied at our executive offices. The SEC also maintains a web site at www.sec.gov that contains reports, proxy and information statements, and other information regarding registrants that make electronic filings with the SEC using its EDGAR system. As a foreign private issuer, we are exempt from the rules of the Exchange Act prescribing the furnishing and content of quarterly reports and proxy statements, and our executive officers, directors and principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. In addition, we are not required under the Exchange Act to file periodic reports and financial statements with the SEC as frequently or as promptly as U.S. companies whose securities are registered under the Exchange Act.

 

In accordance with Rule 5250(d) of the NASDAQ Rules, we will post this annual report on Form 20-F on our website at http://www.spigroups.com.

 

I. Subsidiary Information

 

Not applicable.

 

ITEM 11.                 QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

 

Foreign Exchange Risk

 

We currently conduct our business operations in the U.S., Japan, the U.K., Greece, Italy and Australia. The functional currency of our Company and our subsidiaries located in the United States is the U.S. dollar. The functional currency of our subsidiaries located in Europe and Australia are the Euro and AUD, respectively. Transactions denominated in foreign currencies are re-measured into the functional currency at the rates of exchange prevailing when the transactions occur. Monetary assets and liabilities denominated in foreign currencies are re-measured into the functional currency at rates of exchange in effect at the balance sheet dates. Exchange gains and losses are included in our consolidated statements of operations.

 

Our reporting currency is the U.S. dollar. Assets and liabilities of subsidiaries, whose functional currency is not the U.S. dollar, are translated into the U.S. dollar using exchange rates in effect at each period end, and revenues and expenses are translated into the U.S. dollar at average rates prevailing during the year. Gains and losses resulting from the translations of the financial statements of these subsidiaries into the U.S. dollar are recognized as other comprehensive income in our consolidated statements of comprehensive income.

 

 

 

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Depending on movements in foreign exchange rates, the foreign currency translation may have an adverse impact on our consolidated financial statements. In 2017, 2018 and 2019, we recorded foreign exchange loss of $5.1 million, gain of $1.1 million and gain of $1.3 million in our consolidated statements of operations, respectively.

 

Interest Rate Risk

 

Our exposure to interest rate risk primarily relates to interest expenses incurred on our short-term and long-term borrowings, as well as interest income generated from excess cash invested in demand deposits. Such interest-earning instruments carry a degree of interest rate risk. We have not used any derivative financial instruments to manage our interest rate risk exposure. We have not been exposed to, nor do we anticipate being exposed to, material risks due to changes in interest rates. However, our future interest expense may increase due to changes in market interest rates. If market interest rates for short-term demand deposits increase in the near future, such increase may cause the amount of our interest income to rise. A hypothetical 10% increase in the average interest rate for our bank borrowings would result in an increase of approximately $0.1 million and $0.1 million in interest expense for the years ended December 31, 2018 and 2019. We may use derivative financial instruments, such as interest rate swaps, to mitigate potential risks of interest expense increases due to changes in market interest rates.

 

ITEM 12.                 DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES

 

Not Applicable.

 

 

 

 

 

 

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PART II

 

ITEM 13.                 DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES

 

We have outstanding convertible bonds of US$55.0 million, which were defaulted in June 2016 and not repaid as at December 31, 2016. On February 12, 2017, we entered into an Amendment Agreement (“Agreement”) with Union Sky Group Limited, one of the holders of our convertible bonds, to extend the maturity date of the bonds, pursuant to which the repayment of US$6.6 million, US$6.7 million and US$6.7 million of the principal amount of the convertible bond will be due by April 30, 2017, January 30, 2018 and January 30, 2019, respectively. Union Sky Group Limited has the option to convert the outstanding amounts under the convertible bond into equity interest in our company at a certain conversion price. We were not able to make the first repayments of April 29, 2017. We have been in communications with the holders of our convertible bonds, including Union Sky Group Limited, to further extend the maturity date of the bonds, and On June 29, 2018, the Company entered into the 2nd Amendment with the Union Sky Group Limited and Magical Glaze Limited (the “MGL”), a company incorporated under the laws of British Virgin Islands, pursuant to which agreement the Union Sky Group Limited has transferred all the rights and obligations under the Convertible Bond Agreement and 1st Amendment to MGL, and the maturity date of the note was extended. According to the 2nd Amendment, the repayment of US$6.6 million, US$6.7 million and US$6.7 million of the principal amount of the note and interest thereon is due by December 2019, June 2020 and December 2020, respectively. As of the date of this annual report, we missed the December 2019 repayment and expect to miss the June 2020 repayment. We have been working on negotiating a third amendment to the Convertible Bond Agreement but have not yet obtained a further extension from the bond holders.

 

ITEM 14.                 MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS

 

A.-D.       Material Modifications to the Rights of Security Holders

 

On January 4, 2016, pursuant to the terms of the Second Amended and Restated Agreement and Plan of Merger and Reorganization dated October 30, 2015, SPI merged with and into a wholly-owned subsidiary of our Company. This resulted in the redomicliation of SPI to the Cayman Islands and our Company becoming our holding company. Upon completion of the Redomicle Merger, each ten shares of SPI’s common stock acquired before the relevant F-4 registration statement became effective converted into the right to receive one ADS, representing ten ordinary shares in the capital of our Company, and each right to purchase shares of SPI’s common stock automatically converted into an equivalent right to purchase ordinary shares of our Company. Accordingly, the shares became governed by our Company’s amended and restated memorandum and articles of association. See “Item 10. Additional Information—Memorandum and Articles of Association.

 

Between January 19, 2016 and September 18, 2017, our ADSs were listed on the NASDAQ Global Select Market under the symbol of “SPI”. The Bank of New York Mellon, the depositary bank for our ADS facility, terminated our ADS facility on September 18, 2017. Following such termination, we listed our ordinary shares, par value US$0.0001 each, for trading on NASDAQ Global Select Market in substitution for our ADSs. On September 19, 2017, the substitution listing became effective and our ordinary shares began trading on the NASDAQ Global Select Market under the symbol of “SPI”.

 

Except for the foregoing, there have been no changes to the instruments defining the rights of the holders of any class of our registered securities, and the rights of holders of our registered securities have not been altered by the issuance or modification of any other class of our securities. There has been no removal or substitution of assets securing any class of our registered securities. None of our registered securities have a trustee or paying agent.

 

E. Use of Proceeds

 

Not applicable.

 

 

 

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ITEM 15.                 CONTROLS AND PROCEDURES

 

Disclosure Controls and Procedures

 

Our executive management is responsible for establishing and maintaining a system of disclosure controls and procedures (as defined in Rule 13a-15 and 15d-15 under the Exchange Act) designed to ensure that information required to be disclosed by us in the reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by an issuer in the reports that it files or submits under the Exchange Act is accumulated and communicated to the issuer’s management, including its principal executive officer and principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure. Our executive management concluded that, because of the material weaknesses in our internal control over financial reporting discussed below, our disclosure controls and procedures were not effective as of December 31, 2019. Notwithstanding the material weaknesses discussed below, our executive management has concluded that the consolidated financial statements included in this Form 20-F present fairly, in all material respects, our financial position, results of operations and cash flows for the periods presented in conformity with accounting principles generally accepted in the U.S.

 

Management’s Annual Report on Internal Control Over Financial Reporting.

 

Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Exchange Act Rule 13a-15(f). Our internal control over financial reporting is a process designed by, or under the supervision of, our chief executive officer, 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. Internal control over financial reporting includes those policies and procedures which (a) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of our assets; (b) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of ours are being made only in accordance with authorizations of our management and directors; and (c) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a material effect on the financial statements.

 

Management, including our chief executive officer, assessed the effectiveness of our internal control over financial reporting as of December 31, 2019. In making this assessment, management used the criteria for effective internal control over financial reporting described in Internal Control-Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. A material weakness is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of our consolidated financial statements will not be prevented or detected on a timely basis. Based on management’s assessment of the effectiveness of our internal control over financial reporting, management has identified the following material weaknesses in our internal control over financial reporting as of December 31, 2019:

 

  · Lack of an internal audit department since April 2017, and internal audit evaluation work was not performed during the year ended December 31, 2019.
     
  · We didn’t have adequate risk assessment procedures, including those on identification and assessment of fraud risks, to cope with the expansion of its business and organization. In particularly, we did not put in place an adequate process to continuously assess the legal, compliance and fraud risks associated with the business initiatives and the related financial impact. As a result, we did not properly account for certain transactions, which led to significant adjustments to the consolidated financial statements for the year ended December 31, 2019.

 

 

 

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  · Our review controls over management’s judgment and financial statement assertions were ineffective with respect to certain significant transactions including impairment charges on project assets and accounting for convertible bonds. Our review controls in these areas were not effective, as we failed to prepare sufficient documentation on the judgment made and the significant assumptions used in accounting for the transactions. As a result, there were material adjustments on convertible bonds, impairment charges on project assets and accrued liabilities reflected in the consolidated financial statements for the year ended December 31, 2019.
     
  · We did not have adequate controls on the internal communication between finance team and operation team related to the status of the construction of project assets, execution of contracts and conclusion of business decisions. This deficiency has resulted in the finance team not having accurate or updated information necessary to properly assess the accounting treatment for the relevant business transactions. As a result, there were material adjustments to the consolidated financial statements for the year ended December 31, 2019.
     
  · We did not have adequate communications between the headquarter and subsidiaries, and lack of sufficient supervision over the local management team, related to the daily operation of the subsidiaries.
     
  · We had insufficient resources for financial information processing and reporting and lack of appropriate GAAP knowledge. As a result, there was material adjustments to the consolidated financial statements for the year ended December 31, 2019.

 

The material weaknesses described above may result in misstatement of our consolidated financial statements that would not be prevented or detected. As a result of these material weaknesses, management has concluded that our internal control over financial reporting was not effective as of December 31, 2019.

 

Remediation Activities

 

Our management has been engaged in, and continues to be engaged in, making necessary changes and improvements to the overall design of controls and procedures to address the material weaknesses in our internal control over financial reporting and the ineffectiveness of our disclosure controls and procedures described above. To remediate the material weaknesses, we will adopt the following changes:

 

(i) With respect to the insufficiency of knowledge and experience in U.S. GAAP and the lack of expertise in handling complex accounting and reporting matters, we plan to continue to: (1) provide more comprehensive training on U.S. GAAP to our accounting team and other relevant personnel, and (2) enhance our accounting manual to provide our accounting team with more comprehensive guidelines on the policies and controls over financial reporting under U.S. GAAP and SEC rules and requirements.

 

(ii) With respect to inadequate risk assessment controls, we plan to continue to: (1) organize the related department to hold risk assessment discussions before significant business expansion and organization changes, (2) provide more comprehensive training to our accounting team and legal department to improve the risk awareness of unusual and significant transactions, and (3) implement Office Automation System to standardize processes so that unusual and significant transactions can be timely identified and approved properly. (4) enhance the in-house tax department management and improve the tax compliance.

 

(iii) With respect to our management review controls over significant judgment and financial statement assertions, we plan to continue to: (1) provide appropriate training on management review standards and requirements to the related business department, and (2) enhance management monitoring and review of key processes with more comprehensive guidelines on the policies and controls over financial reporting.

 

(iv) With respect to the deficiencies in internal communication with the company, we plan to continue to organize regular operation meetings between our finance team and operation team to share the status of significant transactions, project assets, execution of contracts and business decisions, among others.

 

Attestation Report of the Independent Registered Public Accounting Firm

 

Because we are not an accelerated filer, we are not required to obtain an attestation report of our independent registered public accounting firm.

 

 

 

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Changes in Internal Control over Financial Reporting

 

Other than the changes resulting from the material weakness described above, there have been no changes in our internal control over financial reporting (as defined in Rule 13a-15(f) and 15d-15(f) of the Exchange Act) during the fiscal year ended December 31, 2019 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

 

ITEM 16.                 RESERVE

 

ITEM 16A.              AUDIT COMMITTEE FINANCIAL EXPERT

 

Our board of directors has determined that Maurice Ngai, an independent director, is our audit committee financial expert. Maurice Ngai satisfies the independent requirements of Rule 10A-3 under the Exchange Act and Rule 5605 of the NASDAQ Rules.

 

ITEM 16B.             CODE OF ETHICS

 

Our board of directors believes in strict adherence to the highest standards of business ethics and responsibility. We have thus adopted a code of business conduct and ethics that applies to us and our directors, officers, employees and advisors. Certain provisions of the code apply specifically to our chief executive officer, chief financial officer, senior operating officer and any other persons who perform similar functions for us. We have filed this code of business conduct and ethics as an exhibit to this annual report on Form 20-F. The code of business conduct and ethics is also available at our website at www.spigroups.com.

 

ITEM 16C.              PRINCIPAL ACCOUNTANT FEES AND SERVICES

 

The following table sets forth the aggregate fees by categories specified below in connection with certain professional services rendered by Marcum Bernstein & Pinchuk LLP, our current principal external auditors for the periods indicated.

 

    2018     2019  
Audit fees   $ 860,000     $ 440,000  
Audit-related fees            
Tax fees            
All other fees            
Total   $ 860,000     $ 440,000  

__________

 

(1) Audit fees consist of fees billed for professional services rendered for the audit of our financial statements and services that are normally provided by the above auditors in connection with statutory and regulatory fillings or engagements.

 

(2) Audit related fees consist of assurance and related services that are reasonably related to the performance of audit or review of our financial statements related to our SEC filings.

 

Consistent with the rules of the SEC regarding auditor independence, our Board of Directors is responsible for the appointment, compensation and oversight of the work of our independent registered public accounting firm. Our Board asks our independent registered public accounting firm to provide a detailed description of its services each year as a basis for its decision-making. The Board evaluates the proposals based on four categories: audit services, audit-related services, tax services, and other services; and determines the proper arrangement for each service according to its judgment as to our needs over the coming year. Our Board pre-approves all audit and non-audit services to be performed by our independent registered public accounting firm. The Board pre-approved 100% of the audit and audit-related services performed by the independent registered public accounting firms described above in fiscal years 2018 and 2019.

 

 

 

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ITEM 16D.              EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES

 

Not Applicable.

 

ITEM 16E.              PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS

 

Not Applicable.

 

ITEM 16F.              CHANGE IN REGISTRANT’S CERTIFYING ACCOUNTANT.

 

Not applicable.

 

ITEM 16G. CORPORATE GOVERNANCE

 

As a foreign private issuer whose securities are listed on the NASDAQ Global Select Market, we are permitted to follow certain home country corporate governance practices in lieu of the requirements of the NASDAQ Stock Market Marketplace Rules (the “NASDAQ Rules”) pursuant to NASDAQ Rule 5615(a)(3), which provides for such exemption to compliance with the NASDAQ Rule 5600 Series, Rule 5250(b)(3) and Rule 5250(d). We are relying on the exemptions available to foreign private issuers under the NASDAQ Rules and are not obligated to comply with certain exchange corporate governance standards, including the NASDAQ corporate governance standards requiring that:

 

  · the majority of the board of directors be comprised of independent directors;
     
  · executive compensation be determined by independent directors or a committee of independent directors;
     
  · director nominees be selected, or recommended for selection by the board of directors, by independent directors or a committee of independent directors;
     
  · we hold an annual meeting of shareholders no later than one year after the end of our fiscal year-end;
     
  · we make all required disclosures relating to third party director and nominee compensation; and
     
  · we make available and distribute our annual and interim reports to all shareholders.

 

Our Cayman Islands counsel, has advised us that there are no comparable Cayman Islands laws related to the above corporate governance standards.

 

ITEM 16H.              MINE SAFETY DISCLOSURE

 

Not applicable.

 

 

 

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PART III

 

ITEM 17.                 FINANCIAL STATEMENTS

 

We have elected to provide financial statements pursuant to Item 18.

 

ITEM 18.                 FINANCIAL STATEMENTS

 

The consolidated financial statements of SPI Energy Co., Ltd. are included at the end of this annual report beginning on page F-1.

 

ITEM 19.                 EXHIBITS

 

Exhibit Number Description of Document
1.1 Amended and Restated Memorandum and Articles of Association, as currently in effect (incorporated by reference to Exhibit 3.2 of our registration statement on Form F-4 (File No. 333-204069) filed with the Securities and Exchange Commission on May 11, 2015)
   
2.1 Registrant’s Specimen Certificate for Shares (incorporated by reference to Exhibit 4.1 of Amendment No. 1 to our registration statement on Form F-4 (file No. 333-204069) filed with the Securities and Exchange Commission on June 24, 2015)
   
4.1 2006 Equity Incentive Plan (as amended) (incorporated by reference to Exhibit 4.2 to our Post Effective Amendment No. 1 to our registration statement on Form S-8 (file No. 333-203917) filed with the Securities and Exchange Commission on January 4, 2016)
   
4.2 2015 Equity Incentive Plan (incorporated by reference to Exhibit 10.2 to our registration statement on Form F-4 (file No. 333-204069) filed with the Securities and Exchange Commission on May 11, 2015)
   
4.3 Form of Indemnification Agreement between the directors and the Registrant (incorporated by reference to Exhibit 10.1 of our registration statement on Form F-4 (file No. 333-204069) filed with the Securities and Exchange Commission on May 11, 2015)
   
4.4 Translation of Capital Increase and Share Subscription Agreement among Meitai Investment (Suzhou) Co., Ltd., Beijing DingdingYiwei New Energy Technology Development Co., Ltd. and shareholders of Beijing DingdingYiwei New Energy Technology Development Co. Ltd., dated September 1, 2015 (incorporated by reference to Exhibit 10.1 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on September 4, 2015)
   
4.5 Exchange and Release Agreement dated December 26, 2013 (incorporated by reference to Exhibit 10.1 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on February 21, 2014)
   
4.6 Form of Project Management Agreement (incorporated by reference to Exhibit 10.2 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on February 21, 2014)
   
4.7 Second Amended and Restated Operating Agreement for KDC Solar Mountain Creek Parent LLC dated February 18, 2014 (incorporated by reference to Exhibit 10.3 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on February 21, 2014)
   
4.8 First Amended and Restated Exchange and Release Agreement dated April 17, 2014 (incorporated by reference to Exhibit 10.1 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on April 23, 2014)

 

 

 

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4.9 Third Amended and Restated Operating Agreement for KDC Solar Mountain Creek Parent LLC dated April 17, 2014 (incorporated by reference to Exhibit 10.2 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on April 23, 2014)
   
4.10 Equity Cash Flow Letter dated April 17, 2014 (incorporated by reference to Exhibit 10.3 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on April 23, 2014)
   
4.11 Translation of Share Purchase Agreement by and between SPI Solar Power Suzhou Co., Ltd. and China Energy Power Group Operation and Maintenance Management Jiangsu Co., Ltd. dated October 22, 2014 (incorporated by reference to Exhibit 10.2 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on October 23, 2014)
   
4.12 Translation of Share Purchase Agreement by and between SPI Solar Power Suzhou Co., Ltd. and Liaoning Xinda New Energy Investment Co., Ltd. dated October 22, 2014 (incorporated by reference to Exhibit 10.3 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on October 23, 2014)
   
4.13 Translation of Equity Purchase Agreement by and between SPI Solar Power Suzhou Co., Ltd., Beijing Taihedafang Investment Development Co., Ltd. and XingheChaerhu Development Co., Ltd. dated October 22, 2014 (incorporated by reference to Exhibit 10.4 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on October 23, 2014)

 

4.14 Convertible Promissory Note Purchase Agreement by and between Solar Power, Inc. and Brilliant King Group Ltd. dated December 12, 2014 (incorporated by reference to Exhibit 10.3 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on December 18, 2014)
   
4.15 Convertible Promissory Note Purchase Agreement by and between Solar Power, Inc. and Poseidon Sports Limited dated December 12, 2014 (incorporated by reference to Exhibit 10.6 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on December 18, 2014)
   
4.16 Convertible Promissory Note Purchase Agreement by and between Solar Power, Inc. and Union Sky Holding Group Limited dated December 15, 2014(incorporated by reference to Exhibit 10.8 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on December 18, 2014)
   
4.17 Purchase Agreement by and between Solar Power, Inc. and Forwin International Financial Holding Limited dated December 12, 2014 (incorporated by reference to Exhibit 10.11 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on December 18, 2014)
   
4.18 Stock Purchase Agreement by and among CECEP Solar Energy Hong Kong Co., Limited, SPI China (HK) Limited and Solar Power, Inc. dated January 15, 2015 (incorporated by reference to Exhibit 10.1 to our current report on Form 8-K (file No. 000¬50142) filed with the Securities and Exchange Commission on January 16, 2015)
   
4.19 Option Agreement by and between Solar Power, Inc. and Central Able Investments Limited dated January 22, 2015(incorporated by reference to Exhibit 10.1 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on January 23, 2015)
   
4.20 Share Purchase Agreement by and among SPI China (HK) Limited, LDK Solar Europe Holding S.A. and LDK Solar USA, Inc. dated March 30, 2015(incorporated by reference to Exhibit 10.1 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on March 31, 2015)
   
4.21 Share Purchase Agreement by and among SPI China (HK) Limited., Andrew Burgess, Rami Fedda and Allied Energy Holding Pte Ltd. dated March 31, 2015 (incorporated by reference to Exhibit 10.2 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on March 31, 2015)

 

 

 

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4.22 Membership Interest Purchase Agreement by and among Solar Power, Inc., William Hedden, as Trustee of the William H. Hedden and Sandra L. Hedden Trust, Stephen C. Kircher, the chief strategy officer of SPI, as Trustee of the Kircher Family Irrevocable Trust dated December 29, 2004, and Steven Kay dated March 31, 2015 (incorporated by reference to Exhibit 10.1 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on April 6, 2015)
   
4.23 GK Interest Sale and Purchase Agreement by and between SPI Solar Japan G.K. and Re Capital K.K. dated April 15, 2015 (incorporated by reference to Exhibit 10.1 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on April 17, 2015)
   
4.24 Securities Purchase Agreement by and between EnSync, Inc. (formerly known as ZBB Energy Corporation) and Solar Power, Inc. dated April 17, 2015 (incorporated by reference to Exhibit 10.2 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on April 17, 2015)
   
4.25 Translation of Share Purchase Agreement by and among Solar Power, Inc., Meitai Investment (Suzhou) Co., Ltd., Zhong Junhao, Li Jin, Tong Ling Hong Xin Ling Xiang Investment Partnership, Shanghai Yi Ju Sheng Yuan Investment Center, Shanghai Ninecity Investment Holding (Group) Ltd., Shanghai Yi Ju Sheng Quan Equity Investment Center, Shanghai Panshi Investment Co., Ltd. and Shanghai All-Zip Roofing System Group Co., Ltd. dated April 30, 2015 (incorporated by reference to Exhibit 10.1 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on April 30, 2015)
   
4.26 Purchase Agreement by and between Solar Power, Inc. and Yes Yield Investments Limited dated May 4, 2015 (incorporated by reference to Exhibit 10.1 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on May 7, 2015)
   
4.27 Option Agreement by and between Solar Power, Inc. and Yes Yield Investments Limited dated May 4, 2015 (incorporated by reference to Exhibit 10.2 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on May 7, 2015)
   
4.28 Convertible Promissory Note Purchase Agreement by and between Solar Power, Inc. and Vision Edge Limited dated June 15, 2015 (incorporated by reference to Exhibit 10.1 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on June 15, 2015)
   
4.29 Option Agreement by and between Solar Power, Inc. and Vision Edge Limited dated June 15, 2015 (incorporated by reference to Exhibit 10.2 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on June 15, 2015)
   
4.30 Supply Agreement between EnSync, Inc. (formerly known as ZBB Energy Corporation) and Solar Power, Inc. dated July 13, 2015 (incorporated by reference to Exhibit 10.3 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on April 17, 2015)
   
4.31 Governance Agreement between EnSync, Inc. (formerly known as ZBB Energy Corporation) and Solar Power, Inc. dated July 13, 2015 (incorporated by reference to Exhibit 10.2 to our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on July 14, 2015)
   
4.32 Second Amended and Restated Agreement and Plan of Merger and Reorganization by and among Solar Power, Inc., SPI Energy Co., Ltd. and SPI Merger Sub, Inc. dated October 30, 2015(incorporated by reference to Exhibit 2.1 of our current report on Form 8-K (file No. 000-50142) filed with the Securities and Exchange Commission on October 30, 2015)
   
4.33 Purchase Agreement by and between Tiger Capital Fund SPC and SPI Energy Co., Ltd. dated April 24, 2017 (incorporated by reference to Exhibit 4.40 to our Annual Report on Form 20-F for the year ended December 31, 2016, filed with the Securities and Exchange Commission on October 27, 2017)

 

 

 

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4.34 Purchase Agreement by and between Qian Kun Prosperous Times Investment Limited and SPI Energy Co., Ltd. dated July 6, 2017 (incorporated by reference to Exhibit 4.41 to our Annual Report on Form 20-F for the year ended December 31, 2016, filed with the Securities and Exchange Commission on October 27, 2017)
   
4.35 Purchase Agreement by and between Qian Kun Prosperous Times Investment Limited and SPI Energy Co., Ltd. dated October 10, 2017 (incorporated by reference to Exhibit 4.42 to our Annual Report on Form 20-F for the year ended December 31, 2016, filed with the Securities and Exchange Commission on October 27, 2017)
   
4.36 Purchase Agreement by and between Alpha Assai fund sp of Sunrise SPC and SPI Energy Co., Ltd. dated October 10, 2017 (incorporated by reference to Exhibit 4.43 to our Annual Report on Form 20-F for the year ended December 31, 2016, filed with the Securities and Exchange Commission on October 27, 2017)
   
4.37 Framework Share Purchase Agreement by and among SPI Energy Co., Ltd., Thelmico Limited, SP ORANGE POWER (CYPRUS) LIMITED, THERMI TANEO Venture Capital Fund and other parties named therein, dated September 20, 2017 (incorporated by reference to Exhibit 4.44 to our Annual Report on Form 20-F for the year ended December 31, 2016, filed with the Securities and Exchange Commission on October 27, 2017)
   
4.38 Sale and Purchase Agreement dated August 28, 2018 between SPI Energy Co., Ltd. and Lighting Charm Limited (incorporated by reference to Exhibit 4.38 to our Annual Report on Form 20-F for the year ended December 31, 2018, filed with the Securities and Exchange Commission on April 30, 2019)
   
4.49 Share Purchase Agreement dated January 15, 2019 between SPI Energy Co., Ltd. and Happy Goal Industries Limited (incorporated by reference to Exhibit 4.38 to our Annual Report on Form 20-F for the year ended December 31, 2018, filed with the Securities and Exchange Commission on April 30, 2019)
   
4.50 Share Purchase Agreement dated January 15, 2019 between SPI Energy Co., Ltd. and CHEONG Hoong Khoeng (incorporated by reference to Exhibit 4.38 to our Annual Report on Form 20-F for the year ended December 31, 2018, filed with the Securities and Exchange Commission on April 30, 2019)
   
4.51 Share Purchase Agreement dated January 15, 2019 between SPI Energy Co., Ltd. and LDK New Energy Holding Limited (incorporated by reference to Exhibit 4.38 to our Annual Report on Form 20-F for the year ended December 31, 2018, filed with the Securities and Exchange Commission on April 30, 2019)
   
4.52 Share Purchase Agreement dated January 15, 2019 between SPI Energy Co., Ltd. and LIM Joo Heng (incorporated by reference to Exhibit 4.38 to our Annual Report on Form 20-F for the year ended December 31, 2018, filed with the Securities and Exchange Commission on April 30, 2019)
   
4.53 Share Purchase Agreement dated January 15, 2019 between SPI Energy Co., Ltd. and UPC Co., Ltd. (incorporated by reference to Exhibit 4.38 to our Annual Report on Form 20-F for the year ended December 31, 2018, filed with the Securities and Exchange Commission on April 30, 2019)
   
4.54 Share Purchase Agreement dated March 20, 2019 between SP Orange Power (Cyprus) Limited and Thermi Taneo Venture Capital Fund (incorporated by reference to Exhibit 4.38 to our Annual Report on Form 20-F for the year ended December 31, 2018, filed with the Securities and Exchange Commission on April 30, 2019)
   
4.55* Membership Interest Purchase Agreement for Oregon Portfolio dated on July 15, 2019 between Sulus LLC and SPI Solar, Inc.
   
4.56* Common Stock Purchase Agreement between Knight AG Holding Co., Ltd. and Jacky Lo.

 

 

 

  87  

 

 

4.57* Management Services Agreement dated on July 24, 2019 between Native American Agricultural Company and CBD and Hemp Group Co., Ltd.
4.58* Equipment Purchase Contract dated on August 6 2019 between CBD and Hemp Group Co., Ltd. and All Datum Inc.
4.59* Sales and Purchase Agreement dated on July 8 2019 between Bitmain Equipment (Canada) Inc. and 1215542 B.C.LTD
4.60* Hosting Agreement dated on July 9, 2019 between 1151203 B.C.LTD and 1215542 B.C.LTD
4.61* Supplemental Agreement dated on October 7, 2019 between 1151203 B.C.LTD and 1215542 B.C.LTD
4.62* Second Supplemental Agreement dated on March 8, 2020 between 1151203 B.C.LTD and 1215542 B.C.LTD
4.63* Remote Hash Power Computing Service Agreement dated on July 15, 2019 between 1215542 B.C.LTD and SPI Orange Co., Ltd.
4.64* Securities Purchase Agreement dated on May 28, 2019 between SPI Energy Co., Ltd. and ILIAD RESEARCH AND TRADING, L.P.
4.65* Asset Purchase Agreement dated on July 31, 2019 between SPI Solar, Inc. and John M. Wirth
4.66* Sale and Purchase Agreement dated on September 23 2019 for Sun Roof II between SPI Renewables Energy (Luxemburg) Private Limited Company S.a.r.l and Theia Investments (Italy) S.r.l
4.67* Sale and Purchase Agreement dated on September 23 2019 for Sun Roof V between SPI Renewables Energy (Luxemburg) Private Limited Company S.a.r.l and Theia Investments (Italy) S.r.l
4.68* Sale and Purchase Agreement dated on March 16 2020 for Sun Roof I between SPI Renewables Energy (Luxemburg) Private Limited Company S.a.r.l and Theia Investments (Italy) S.r.l
4.69* Standard Industrialicommercial Single Tenant Lease dated on September 15, 2019 between Al Factory, LLC and SPI Solar, Inc.
5.56* Amendment to Convertible Promissory Note dated on December 10, 2019 between SPI Energy Co., Ltd. and ILIAD RESEARCH AND TRADING, L.P.
8.1* List of subsidiaries
11.1 Code of Business Conduct and Ethics of the Registrant (incorporated by reference to Exhibit 11.1 of our annual report on Form 20-F (file No. 005-78703) filed with the Securities and Exchange Commission on May 17, 2016)
12.1** Certification of the Principal Executive and Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
13.1** Certification of Principal Executive Officer and Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
15.1* Consent of Independent Registered Public Accounting Firm—Marcum Bernstein & Pinchuk LLP
99.1 Letter from KPMG Huazhen LLP (incorporated by reference to Exhibit 99.1 to our Annual Report on Form 20-F for the year ended December 31, 2017, as amended, filed with the Securities and Exchange Commission on December 11, 2018)
99.2* Form of Audit Committee Charter
99.3* Form of Compensation Committee Charter
99.4* Form of Nominating and Corporate Governance Committee Charter
101.INS* XBRL Instance Document
101.SCH* XBRL Taxonomy Extension Schema Document
101.CAL* XBRL Taxonomy Extension Calculation Linkbase Document
101.DEF* XBRL Taxonomy Extension Definition Linkbase Document
101.LAB* XBRL Taxonomy Extension Label Linkbase Document
101.PRE* XBRL Taxonomy Extension Calculation Presentation Document

_____________________

 

*       Filed herewith

 

**       Furnished herewith

 

 

 

  88  

 

 

SIGNATURES

 

The registrant hereby certifies that it meets all of the requirements for filing its annual report on Form 20-F and that it has duly caused and authorized the undersigned to sign this annual report on its behalf.

 

SPI Energy Co., Ltd.

 

Date: June 29, 2020

 

By:   /s/ Xiaofeng Peng                                 
Name: Xiaofeng Peng
Title: Chief Executive Officer
(Principal Executive, Financial and Accounting Officer)

 

 

 

  89  

 

 

Index to Financial Statements

 

 

  Page
Report of Independent Registered Public Accounting Firm F-2
Consolidated Balance Sheets F-3
Consolidated Statements of Operations F-4
Consolidated Statements of Comprehensive Loss F-5
Consolidated Statements of Equity (Deficit) F-6
Consolidated Statements of Cash Flows F-7
Notes to Consolidated Financial Statements F-8

 

 

 

 

 

 

 

 

 

 

  

  F-1  
 

 

 

Report of Independent Registered Public Accounting Firm 

 

To the Shareholders and Board of Directors of

SPI Energy Co., Ltd.

 

Opinion on the Financial Statements

 

We have audited the accompanying consolidated balance sheets of SPI Energy Co., Ltd. (the “Company”) as of December 31, 2019 and 2018, the related consolidated statements of operations, comprehensive loss, equity (deficit) and cash flows for each of the three years in the period ended December 31, 2019, and the related notes (collectively referred to as the “financial statements”). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2019 and 2018, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2019, in conformity with accounting principles generally accepted in the United States of America.

 

Chang in Accounting Principle

 

As discussed in Note 3 to the financial statements, the Company has changed its method of accounting for leases in 2019 due to the adoption of Accounting Standards Codification (“ASC”) Topic 842, Leases (“Topic 842”).

 

Explanatory Paragraph – Going Concern

 

The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As more fully described in Note 2 to the financial statements, the Company has a significant working capital deficiency, has incurred significant losses and needs to raise additional funds to meet its obligations and sustain its operations. These conditions raise substantial doubt about the Company's ability to continue as a going concern. Management's plans in regard to these matters are also described in Note 2. The financial statements do not include any adjustments that might result from the outcome of this uncertainty.

 

Basis for Opinion

 

These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company's financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) ("PCAOB") and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

 

We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion.

 

Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.

 

/s/ Marcum Bernstein & Pinchuk LLP

 

Marcum Bernstein & Pinchuk LLP

 

We have served as the Company’s auditor since 2018.

Beijing China

June 29, 2020

 

 

  F-2  
 

 

SPI ENERGY CO., LTD.

CONSOLIDATED BALANCE SHEETS

(In thousands, except for share and per share data)

 

   

December 31,

2019

   

December 31,

2018

 
ASSETS                
Current assets:                
Cash and cash equivalents   $ 2,764     $ 4,141  
Restricted cash     239       458  
Accounts receivable, net     16,539       27,777  
Notes receivable           526  
Inventories, net     13,781       11,906  
Project assets, net     17,842       24,654  
Prepaid expenses and other current assets, net     5,170       4,382  
Amount due from related parties     154       39  
Total current assets     56,489       73,883  
                 
Intangible assets, net     1,528       1,801  
Goodwill     626       651  
Other receivable, noncurrent     283       832  
Notes receivable, noncurrent           4,297  
Property, plant and equipment, net     31,783       21,150  
Project assets, noncurrent, net     16,495       16,368  
Investment in affiliates, net     69,606       69,606  
Operating lease right-of-use assets     1,985        
Deferred tax assets, net     58       140  
Total assets   $ 178,853     $ 188,728  
LIABILITIES AND EQUITY (DEFICIT)                
Current liabilities:                
Accounts payable   $ 19,677     $ 16,271  
Accrued liabilities     9,177       16,495  
Income taxes payable     561       293  
Advance from customers     17,632       25,984  
Short-term borrowings and current portion of long-term borrowings     2,857       3,166  
Amount due to an affiliate     9,128       8,819  
Convertible bonds, net of unamortized debt discount     55,907       41,600  
Derivative liability     652        
Operating lease liabilities, current     426        
Amount due to related parties             79  
Consideration payable     54,000       53,824  
Total current liabilities     170,017       166,531  
                 
Convertible bonds, noncurrent           13,400  
Long-term borrowings, excluding current portion     6,039       6,674  
Amount due to an affiliate, noncurrent     1,728        
Deferred tax liabilities     3,506       515  
Accrued warranty reserve     1,538       1,538  
Operating lease liabilities, non-current     1,500        
Total liabilities     184,328       188,658  
                 
Equity (deficit):                
Ordinary shares, par $0.0001, 500,000,000 shares authorized, 14,621,125 and 7,914,125 shares issued and outstanding as of December 31, 2019 and 2018, respectively     1       1  
Additional paid in capital     612,726       601,319  
Accumulated other comprehensive loss     (35,527 )     (35,115 )
Accumulated deficit     (585,384 )     (570,126 )
Total deficit attributable to the shareholders of SPI Energy Co., Ltd.     (8,184 )     (3,921 )
Noncontrolling interests     2,709       3,991  
Total (deficit) equity     (5,475 )     70  
Total liabilities and equity   $ 178,853     $ 188,728  

 

 

The accompanying notes are an integral part of these consolidated financial statements.

 

  F-3  
 

 

SPI ENERGY CO., LTD.

CONSOLIDATED STATEMENTS OF OPERATIONS

(In thousands, except for share and per share data)

 

    For the Years Ended December 31,  
    2019     2018     2017  
                   
Net sales   $ 97,883     $ 125,582     $ 121,520  
Cost of revenue     90,693       114,525       111,428  
Gross profit     7,190       11,057       10,092  
                         
Operating expenses:                        
General and administrative     15,158       12,225       13,994  
Sales, marketing and customer service     2,398       2,285       2,944  
Provision (reverse) for doubtful accounts, notes and other receivables     4,115       (501 )     1,693  
Impairment charges on property, plant and equipment     2,235             53  
Impairment charges on project assets     2,455             687  
Total operating expenses     26,361       14,009       19,371  
Operating loss     (19,171 )     (2,952 )     (9,279 )
                         
Other income (expense):                        
Interest expense     (3,923 )     (6,665 )     (8,087 )
Interest income     155       320       384  
Gain on extinguishment of convertible bonds                 7,121  
Change in fair value of derivative liability     285              
Reversal (accrual) of tax penalty     6,890             (9,670 )
Gain on troubled debt restructuring           1,887        
Loss on investment in affiliates                 (2,214 )
Net foreign exchange gain (loss)     1,261       1,118       (5,141 )
Others     (553 )     487       509  
Total other income (expense), net     4,115       (2,853 )     (17,098 )
Loss from continuing operations before income taxes     (15,056 )     (5,805 )     (26,377 )
Income tax expense     92       332       137  
Loss from continuing operations including noncontrolling interests   $ (15,148 )   $ (6,137 )   $ (26,514 )
Loss from discontinued operations, net of tax           (6,122 )     (64,445 )
Net loss including noncontrolling interests   $ (15,148 )   $ (12,259 )   $ (90,959 )
Less: Net income attributable to noncontrolling interests from continuing operations     110       31       168  
Less: Net loss attributable to noncontrolling interests from discontinued operations           (8 )     (47 )
Net loss attributable to shareholders of SPI Energy Co., Ltd. from continuing operations     (15,258 )     (6,168 )     (26,682 )
Net loss attributable to shareholders of SPI Energy Co., Ltd. from discontinued operations           (6,114 )     (64,398 )
Net loss attributable to shareholders of SPI Energy Co., Ltd.   $ (15,258 )   $ (12,282 )   $ (91,080 )
Net loss from continuing operations per ordinary share:                        
Basic and Diluted   $ (1.2 )   $ (0.9 )   $ (4 )
Net loss from discontinued operations per ordinary share:                        
Basic and Diluted   $     $ (0.8 )   $ (9 )
Net loss per ordinary share:                        
Basic and Diluted   $ (1.2 )   $ (1.7 )   $ (13 )
Weighted average shares outstanding*                        
Basic and Diluted     12,733,062       7,262,023       6,826,633  

 

*The shares are presented on a retroactive basis to reflect the Company’s Reverse Stock Splits (Note 20).

 

The accompanying notes are an integral part of these consolidated financial statements.

 

 

  F-4  
 

 

SPI ENERGY CO., LTD.

CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS

(In thousands)

 

 

    For the Years Ended December 31,  
    2019     2018     2017  
Loss from continuing operations including noncontrolling interests   $ (15,148 )   $ (6,137 )   $ (26,514 )
Loss from discontinued operations, net of tax           (6,122 )     (64,445 )
Net loss including noncontrolling interests     (15,148 )     (12,259 )     (90,959 )
Other comprehensive loss, net of tax of nil:                        
Foreign currency translation losses arising during the year     (591 )     (1,381 )     (1,196 )
Total comprehensive loss including noncontrolling interests     (15,739 )     (13,640 )     (92,155 )
Comprehensive income (loss) attributable to noncontrolling interests     (69 )     (117 )     55  
Comprehensive loss attributable to shareholders of SPI Energy Co., Ltd.   $ (15,670 )   $ (13,523 )   $ (92,210 )

 

The accompanying notes are an integral part of these consolidated financial statements.

 

 

 

 

 

 

 

  

 

 

 

 

 

  F-5  
 

 

SPIENERGY CO., LTD.

CONSOLIDATED STATEMENTS OF EQUITY (DEFICIT)

(In thousands, except for share and per share data)

 

    Ordinary Shares     Additional Paid- In     Accumulated     Accumulated Other Comprehensive     Equity (deficit) Attributable to Shareholders of SPI Energy     Noncontrolling     Total Equity  
    Shares*     Amount     Capital     Deficit     Loss     Co., Ltd.     Interests     (Deficit)  
Balances at December 31, 2016     6,416,652     $ 1     $ 482,533     $ (466,764 )   $ (32,744 )   $ (16,974 )   $ 4,046     $ (12,928 )
Net loss                       (91,080 )           (91,080 )     121       (90,959 )
Foreign currency translation losses                             (1,130 )     (1,130 )     (66 )     (1,196 )
Issuance of ordinary shares     834,020             6,641                   6,641             6,641  
Share-based compensation expense                 798                   798             798  
Balances at December 31, 2017     7,250,672     $ 1     $ 489,972     $ (557,844 )   $ (33,874 )   $ (101,745 )   $ 4,101     $ (97,644 )
Net loss                       (12,282 )           (12,282 )     23       (12,259 )
Foreign currency translation losses                             (1,241 )     (1,241 )     (140 )     (1,381 )
Disposition of SPI China (HK) Limited                 107,867                   107,867       7       107,874  
Option granted in disposition                 1,260                   1,260             1,260  
Forgiveness of receivable from SPI China (HK) Limited                 (536 )                 (536 )           (536 )
Share-based compensation expense     663,460             2,756                   2,756             2,756  
Reverse stock split rounding shares     (7 )                                          
Balances at December 31, 2018     7,914,125     $ 1     $ 601,319     $ (570,126 )   $ (35,115 )   $ (3,921 )   $ 3,991     $ 70  
Net loss                       (15,258 )           (15,258 )     110       (15,148 )
Foreign currency translation losses                             (412 )     (412 )     (179 )     (591 )
Acquisition of noncontrolling interest                 2,278                   2,278       (1,213 )     1,065  
Forgiveness of payable to SPI China (HK) Limited                 652                   652             652  
Issuance of ordinary shares     6,600,000             7,656                   7,656             7,656  
Issuance of restricted stock units for services     107,000             516                   516             516  
Share-based compensation expense                 305                   305             305  
Balances at December 31, 2019     14,621,125     $ 1     $ 612,726     $ (585,384 )   $ (35,527 )   $ (8,184 )   $ 2,709     $ (5,475 )

 

*The shares are presented on a retroactive basis to reflect the Company’s Reserve Stock Splits (Note 20).

 

 

 

 

 

 

 

  F-6  
 

 

SPI ENERGY CO., LTD.

CONSOLIDATED STATEMENTS OF CASH FLOWS

(In thousands)

 

   

December 31,

2019

   

December 31,

2018

   

December 31,

2017

 
Cash flows from operating activities:                        
Net loss from continuing operations   $ (15,148 )   $ (6,137 )   $ (26,514 )
Net loss from discontinued operations           (6,122 )     (64,445 )
Adjustments to reconcile net loss to net cash (used in) provided by operating activities:                        
Depreciation     1,981       1,204       1,159  
Amortization     278       300       302  
Reserve for inventory     103             366  
Provision (reverse) for doubtful accounts, notes and other receivables     4,115       (501 )     1,693  
Impairment charges on property, plant and equipment     2,235             53  
Impairment charges on project assets     2,455             687  
Loss on investment in affiliates                 2,214  
Share-based compensation expense     821       2,726       1,174  
Gain on extinguishment of convertible bonds                 (7,121 )
Gain on troubled debt restructuring           (1,887 )      
Amortization of right-of-use assets     434              
(Reversal) accrual of tax penalty     (6,890 )           9,670  
Amortization of debt discount on convertible bonds     594       1,910       2,906  
Change in fair value of derivative liability     (285 )            
Deferred income tax benefit     (85 )     (83 )     (247 )
Gain on disposal of property and equipment     (45 )            
Loss on disposal of subsidiaries     385              
Changes in operating assets and liabilities                        
Accounts receivable     3,087       (13,898 )     (8,974 )
Amount due from related parties     538       (451 )     (470 )
Notes receivable     4,823       526       525  
Costs and estimated earnings in excess of billings on uncompleted contracts                 266  
Project assets     3,333       17,834       (3,957 )
Inventories     (1,958 )     2,876       (6,733 )
Prepaid expenses and other assets     (497 )     906       164  
Accounts payable     7,805       3,353       (297 )
Advances from customers     (8,352 )     (5,092 )     13,700  
Income taxes payable     268       226       (146 )
Accrued liabilities and other liabilities     1,264       3,960       5,207  
Lease liability     (421 )            
Bitcoin mining, net of mining pool operating fees     (3,630 )                
Amount due to related parties     (79 )     79        
Net cash provided by (used in) provided by operating activities, continuing operations     (2,871 )     7,851       (14,373 )
Net cash provided by operating activities, discontinued operations           159       2,733  
                         
Cash flows from investing activities:                        
Proceeds from disposal of subsidiaries     4,549              
Proceeds from sale of bitcoins     3,630                  
Acquisitions of Solar PV systems     (8,345 )            
Acquisitions of property, plant and equipment     (4,762 )     (95 )     (298 )
Proceeds from disposal of property, plant and equipment     166       6        
Prepayment of purchase of land     (3,132 )            
Acquisitions of subsidiaries, net of cash acquired                 43  
Decrease of cash due to deconsolidation of Sinsin                 (2,679 )
Decrease of cash due to disposition of SPI China (Note 4 (1))           (3,257 )        
Net cash used in investing activities, continued operations     (7,894 )     (3,346 )     (2,934 )
Net cash used in investing activities, discontinued operations           (418 )     (352 )
                         
Cash flows from financing activities:                        
Proceeds from issuance of ordinary shares     7,656             5,760  
Net payment for purchasing minority interests     (75 )            
Proceeds from issuance of convertible note     1,250              
Proceeds from line of credit and loans payable     84,308       66,169       31,925  
Repayments of line of credit and loans payable     (83,619 )     (67,754 )     (29,401 )
Net cash provided by (used in) financing activities, continued operations     9,520       (1,585 )     8,284  
Net cash used in financing activities, discontinued operations           (2,145 )     (2,488 )
                         
Effect of exchange rate changes on cash     (351 )     453       (477 )
                         
(Decrease) increase in cash, cash equivalents and restricted cash     (1,596 )     969       (9,607 )
Cash, cash equivalents and restricted cash at beginning of year     4,599       3,630       13,237  
                         
Cash, cash equivalents and restricted cash at end of year     3,003       4,599       3,630  
                         
Less: cash and cash equivalents of discontinued operations at end of year                 (1,356 )
Cash and cash equivalents at end of year for continuing operations   $ 3,003     $ 4,599     $ 2,274  
                         
Reconciliation of cash, cash equivalents, and restricted cash to the consolidated balance sheets                        
Cash and cash equivalents     2,764       4,141       2,238  
Restricted cash     239       458       36  
Total cash, cash equivalents, and restricted cash   $ 3,003     $ 4,599     $ 2,274  
                         
Supplemental cash flow information:                        
Interest paid   $ 645     $ 725     $ 566  
Income tax paid   $     $     $ 347  
Non-cash activities:                        
Netting off balance due to/from third party   $ 2,109     $ 5,003     $ 6,917  
Right of use assets obtained in exchange for operating lease obligations   $ 2,419     $     $  
Forgiveness of loan by minority interest holders   $ 1,140     $     $  
Interest capitalized to project assets   $     $ 292     $ 1,607  
Loss on forgiveness of debt due from SPI China (Note 4(1))   $ 653     $ 536     $  
Options issued to shareholder during disposition of SPI China (Note 4(1))   $     $ 1,260     $  
Forgiveness of debt due to (due from) SPI China (Note 29 and Note 4(1))   $     $ 107,867     $  
Derecognition of Project Aerojet   $     $     $ 754  

 

The accompanying notes are an integral part of these consolidated financial statements.

 

 

 

 

 

  F-7  
 

 

SPI ENERGY CO., LTD.

NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS

(Amounts in US$ thousands, except share and per share data)

 

  1. Description of Business and Organization

 

    Description of Business

 

SPI Energy Co., Ltd. (“SPI Energy” or the “Company”), its subsidiaries and consolidated variable interest entities (“VIEs”) (collectively the “Group”) is a provider of photovoltaic (“PV”) solutions for business, residential, government and utility customers and investors. The Group develops solar PV projects which are either sold to third party operators or owned and operated by the Group for selling of electricity to the grid in multiple countries in Asia, North America and Europe. In Australia, the Group primarily sells solar PV components to retail customers and solar project developers. 

 

Since 2018, the Company engages in the sale of bitcoin mining equipment, provides hosting services and mines bitcoins. In 2019, the Company also sells hays from United States to China.

 

    Organization

 

The Company was incorporated in the Cayman Islands on May 4, 2015 for the sole purpose of effectuating the redomicile of the Company’s predecessor, Solar Power, Inc., a California corporation (“SPI California”). The redomicile was approved by the shareholders of SPI California on May 11, 2015, pursuant to which one share of common stock of SPI California held by the shareholders was converted into one SPI Energy’s ordinary share. On January 4, 2016, SPI California completed the redomicile, resulting in SPI Energy becoming the publicly held parent company of SPI California. SPI Energy’s shares then began quotation on the Open Transparent Connected Markets under the symbol “SRGYY” effective January 4, 2016. On January 19, 2016, SPI Energy’s shares were listed on the Nasdaq Global Select Market and traded under the symbol “SPI”.

 

The major subsidiaries of the Company as of December 31, 2019 are summarized as below:

 

  Major Subsidiaries   Abbreviation   Location
  SPI Renewables Energy (Luxembourg) Private Limited Company S.a.r.l. (formerly known as CECEP Solar Energy (Luxembourg) Private Limited Company (S.a.r.l.)) and Italsolar S.r.l.   CECEP   Luxembourg, Italy
  Solar Juice Pty Ltd.   Solar Juice   Australia
  Solar Juice USA Inc.   Solar Juice US   United States
  Solar Juice (HK) Limited   Solar Juice HK   Hong Kong
  SPI Solar Japan G.K.   SPI Japan   Japan
  Solar Power Inc UK Service Limited   SPI UK   United Kingdom
  SPI Solar Inc.   SPI US   United States
  Heliostixio S.A.   Heliostixio   Greece
  Heliohrisi S.A.   Heliohrisi   Greece
  Thermi Sun S.A.   Thermi Sun   Greece
  Knight Holding Corporation   Knight   United States

 

On January 1, 2017, the Group deconsolidated one of the major subsidiaries, Sinsin Renewable Investment Limited (“Sinsin”) due to loss of control and recognized the investment in Sinsin on the carrying amount of $69,606 as of December 31, 2019 and 2018. Both the Group and the former shareholders, Sinsin Europe Solar Asset Limited Partnership and Sinsin Solar Capital Limited Partnership (collectively, the “Sinsin Group”) failed to fulfill the obligation under the share sale and purchase agreement of Sinsin, which led to that both parties filed petitions to each other. The petitions directly affected the Group’s ability to effectively control Sinsin and make any direct management decisions or have any direct impact on Sinsin’s polices, operations or assets without the agreement of Sinsin Group. As of the issuance of the financial statements, the lawsuit with Sinsin is still on the proceeding, and it is uncertain how the court will rule (See Note 26(b) Contingencies).

 

 

 

  F-8  
 

 

On December 10, 2018, the Group disposed SPI China (HK) Limited (“SPI China”), which holds all of the Group’s assets and liabilities related to its business in China, including engineering, procurement and construction (“EPC”) business, PV projects, Internet finance lease related business and E-commence in China, to Lighting Charm Limited (“Lighting Charm”), an affiliate of Ms. Shan Zhou, the spouse of Xiaofeng Peng, the Group’s Chairman of the Board of Directors and Chief Executive Officer (see Note 4 (1) Disposition of SPI China). The Group effected an internal restructuring following which SPI China would only hold the Group’s subsidiaries in China, and all the other subsidiaries outside of China would be transferred to the Group (the “restructuring”). As of December 10, 2018, the restructuring was completed and the disposal transaction was closed (see Note 4 (1) Disposition of SPI China).

 

Variable Interest Entities

 

Current PRC laws and regulations impose certain restrictions or prohibitions on foreign ownership of companies that engage in value-added telecommunication services, and certain other business. The Group conducted its business in China through a series of contractual agreements before December 10, 2018. On December 10, 2018, the Group disposed SPI China, its PRC subsidiaries and the variable interest entities.

 

The Group operated its on-line fund raising and leasing business and its on-line solar products trading through Shanghai Meijv Network Technology Co., Ltd. (“Meijv”) and Lv Neng Tao E-Commerce (Suzhou) Co., Ltd. (“Lv Neng Tao”) (collectively referred to as the “VIEs”) respectively. Both Meijv and Lv Neng Tao were limited liability companies established in the PRC and held the requisite licenses and permits necessary to conduct the on-line businesses, which were restricted from foreign investment in accordance with the relevant PRC laws and regulations. Meijv was established by Shanghai Youying E-commerce Co., Ltd. (“Youying”) on June 12, 2015. Lv Neng Tao was established on June 17, 2015 by Mr. Min Xiahou, the former deputy chairman of the Company’s board of directors, Mr. Minghua Zhao, a former director of the Group and Mr. Tairan Guo, the Group’s former Chief Financial Officer. These individuals acted as nominee equity holders of Lv Neng Tao on behalf of the Company. OnMarch 17, 2016, Meijv entered into a series of contractual arrangements with Yanhua Network Technology (Shanghai) Co., Ltd.Y (“Yanhua Network”) and Youying, including exclusive call option agreement, proxy voting agreement, exclusive business cooperation agreement and equity interest pledge agreement (collectively, the “Meijv VIE Agreements”). On January 1, 2016, Lv Neng Tao entered into a series of contractual arrangements with Yanhua Network and its legal shareholders, including exclusive call option agreement, proxy voting agreement, exclusive business cooperation agreement and equity interest pledge agreement (collectively, the “Lv Neng Tao VIE Agreements”, and together with Meijv VIE Agreements, the “VIE Agreements”).

 

Pursuant to the VIE Agreements, Youying and Lv Neng Tao’s legal shareholders had granted all of their legal rights in Meijv and LvNeng Tao, respectively, including voting rights and deposition rights, to Yanhua Network. As a result, Youying and Lv Neng Tao’s legal shareholders did not have the direct or indirect ability through voting rights or similar rights to make decision about the activities of Meijv and Lv Neng Tao, respectively, that had a significant effect on the success of Meijv and Lv Neng Tao. The Company, through Yanhua Network, had obtained a financial controlling interest of Meijv and Lv Neng Tao which enable it to have (1) the power to direct the activities that most significantly affected the economic performance of Meijv and Lv Neng Tao, and (2) the right to receive benefits or have the obligation to absorb losses and to receive the expected residual return of Meijv and Lv Neng Tao that could potentially be significant to Meijv and Lv Neng Tao. Accordingly, the Company, through Yanhua Network, was considered the primary beneficiary of Meijv and Lv Neng Tao. As such, the financial results of Meijv and Lv Neng Tao were included in the Company’s consolidated financial statements as of December 31, 2017 and 2016, and December 10, 2018. Prior to the signing of Meijv VIE Agreements on March 17, 2016 and Lv Neng Tao VIE Agreements on January 2016, Meijv and Lv Neng Tao had not carried out any business except for the holding the business licenses and permits necessary to conduct the on-line businesses in the PRC. With the disposition of SPI China, all VIEs were disposed as of December 10, 2018 (see Note 4 (1) Disposition of SPI China).

  

 

 

 

  F-9  
 

 

  2. Going Concern

 

The Group has suffered recurring losses from operations. The Group has incurred a net loss of $15,148 during the year ended December 31, 2019, and the cash flow used in operating activities was $2,871. As of December 31, 2019, the Group had a working capital deficit of $113,528 and accumulated deficit of $585,384. Additionally, the Group has defaulted the repayment of convertible bonds of $35,000 since 2016, and another convertible bond of $20,000 would be fully due in 2020. As of December 31, 2019, $55,907 of convertible bonds is payable within one year.

 

These and other factors disclosed in these financial statements raise substantial doubt as to the Group’s ability to continue as a going concern. Management believes that it has developed a liquidity plan, as summarized below, that, if executed successfully, will provide sufficient liquidity to meet the Group’s obligations for a reasonable period of time.

 

Working Capital management

 

The Group plans to implement certain measures with an aim to reduce its operating costs in 2020, which has considered the impact of Coronavirus 2019 as disclosed in Note 30 to the consolidated financial statements. Such measures include: 1) strict controlling and reducing business, marketing and advertising expenses in United States and Australia; 2) lowering the remuneration of the Group’s management team; 3) implementing comprehensive budget control, and other measures.

 

Cost Saving Measures

 

The Group plans to implement certain measures with an aim to reduce its operating costs in 2020, which has considered the impact of Coronavirus 2019 as disclosed in Note 30 to the consolidated financial statements. Such measures include: 1) strict controlling and reducing business, marketing and advertising expenses in United States and Australia; 2) lowering the remuneration of the Group’s management team, which has considered the impact of Coronavirus 2019 as disclosed in Note 30 to the consolidated financial statements. 3) implementing comprehensive budget control, etc.

 

While management believes that the measures in the liquidity plan will be adequate to allow the Group to meet its liquidity and cash flow requirements within one year after the date that the financial statements are issued, there is no assurance that the liquidity plan will be successfully implemented. Failure to successfully implement the liquidity plan will have a material adverse effect on the Group’s business, results of operations and financial position, and may materially adversely affect its ability to continue as a going concern. The consolidated financial statements do not include any adjustments related to the recoverability and classification of recorded assets or the amounts and classification of liabilities or any other adjustments that might be necessary should the Group be unable to continue as a going concern. 

 

  3. Summary of Significant Accounting Policies

 

  (a) Basis of Presentation

 

The accompanying consolidated financial statements of the Group are prepared in conformity with accounting principles generally accepted in the United States of America (“U.S. GAAP”).

 

The accompanying consolidated financial statements have been prepared on a going concern basis, which contemplates the realization of assets and the satisfaction of liabilities in the normal course of business. The realization of assets and the satisfaction of liabilities in the normal course of business are dependent on, among other things, the Group’s ability to operate profitably, to generate cash flows from operations, and to pursue financing arrangements to support its working capital requirements.

 

 

 

  F-10  
 

 

  (b) Principles of Consolidation

 

The consolidated financial statements include the financial statements of the Company, and its subsidiaries. All material inter-company transactions and balances have been eliminated upon consolidation. For consolidated subsidiaries where the Company’s ownership in the subsidiary is less than 100%, the equity interest not held by the Group is shown as noncontrolling interests. The Company accounts for investments over which it has significant influence but not a controlling financial interest using the equity method of accounting. The Company deconsolidates a subsidiary when the Company ceases to have a controlling financial interest in the subsidiary. When control is lost, the parent-subsidiary relationship no longer exists and the parent derecognizes the assets and liabilities of the subsidiary.

 

  (c) Use of Estimates

 

The preparation of the financial statements in conformity with U.S. GAAP requires the Group to make estimates and assumptions that affect reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements as well as the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Significant accounting estimates reflected in the Company’s consolidated financial statements include the allowance made for doubtful accounts receivable and other receivable, inventory write-downs, the estimated useful lives of long-lived assets, the impairment of goodwill, long-lived assets and project assets, fair value of derivative liability, valuation allowance of deferred tax assets, accrued warranty expenses, the grant-date fair value of share-based compensation awards and related forfeiture rates, the lease discount rate, and fair value of financial instruments and assumptions related to the consolidation of entities in which the Company holds variable interests. Changes in facts and circumstances may result in revised estimates. The current economic environment has increased the degree of uncertainty inherent in those estimates and assumptions.

 

  (d) Foreign Currency Translation and Foreign Currency Risk

 

The functional currency of the Company and subsidiaries located in the United States is the United States dollar (“US$” or “$”). The functional currency of the Company’s subsidiaries located in the PRC, Europe, United Kingdom, Japan and Australia are Renminbi (“RMB”), EURO (“EUR”), British Pounds(“GBP”), Japanese Yen (“JPY”) and Australia Dollar (“AUD”), respectively. Transactions denominated in foreign currencies are re-measured into the functional currency at the rates of exchange prevailing when the transactions occur. Monetary assets and liabilities denominated in foreign currencies are re-measured into the functional currency at rates of exchange in effect at the balance sheet dates. Exchange gains and losses are included in the consolidated statements of operations.

 

The Group’s reporting currency is the US$. Assets and liabilities of subsidiaries, whose functional currency is not the US$, are translated into US$ using exchange rates in effect at each period end, and revenues and expenses are translated into US$ at average rates prevailing during the year, and equity is translated at historical exchange rates, except for the change in retained earnings during the year which is the result of the income or loss. Gains and losses resulting from the translations of the financial statements of these subsidiaries into US$ are recognized as other comprehensive income or loss in the consolidated statement of comprehensive loss. 

 

  (e) Fair Value of Financial Instruments

 

The Group estimates fair value of financial assets and liabilities as the price that would be received from the sale of an asset or paid to transfer a liability (an exit price) on the measurement date in an orderly transaction between market participants. The fair value measurement guidance establishes a three-level fair value hierarchy that prioritizes the inputs into the valuation techniques used to measure fair value.

 

  Ÿ Level 1 — Valuation techniques in which all significant inputs are unadjusted quoted prices from active markets for assets or liabilities that are identical to the assets or liabilities being measured.

 

  Ÿ Level 2 — Valuation techniques in which significant inputs include quoted prices from active markets for assets or liabilities that are similar to the assets or liabilities being measured and/or quoted prices for assets or liabilities that are identical or similar to the assets or liabilities being measured from markets that are not active. Also, model-derived valuations in which all significant inputs and significant value drivers are observable in active markets are Level 2 valuation techniques.

  

 

 

 

  F-11  
 

 

  Ÿ Level 3 — Valuation techniques in which one or more significant inputs or significant value drivers are unobservable. Unobservable inputs are valuation technique inputs that reflect the Group’s own assumptions about the assumptions that market participants would use to price an asset or liability.

 

The Group uses quoted market prices to determine the fair value when available. If quoted market prices are not available, the Group measures fair value using valuation techniques that use, when possible, current market-based or independently-sourced market parameters, such as interest rates and currency rates.

 

(f) Business Combination

 

Business combinations are recorded using the acquisition method of accounting and, accordingly, the acquired assets and liabilities are recorded at their fair market value at the date of acquisition. Any excess of acquisition cost over the fair value of the acquired assets and liabilities, including identifiable intangible assets, is recorded as goodwill. The Company charges acquisition related costs that are not part of the purchase price consideration to general and administrative expenses as they are incurred. Those costs typically include transaction and integration costs, such as legal, accounting, and other professional fees.

 

The Company adopted Accounting Standard Update (“ASU”) 2017-01 “Business Combination (Topic 805): Clarifying the Definition of a Business” on January 1, 2018 and applied the new definition of a business prospectively for acquisitions made subsequent to December 31, 2017. Upon the adoption of ASU 2017-01, a new screen test is introduced to evaluate whether a transaction should be accounted for as an acquisition and/or disposal of a business versus assets. In order for a purchase to be considered an acquisition of a business, and receive business combination accounting treatment, the set of transferred assets and activities must include, at a minimum, an input and a substantive process that together significantly contribute to the ability to create outputs. If substantially all of the fair value of the gross assets acquired is concentrated in a single identifiable asset or a group of similar identifiable assets, then the set of transferred assets and activities is not a business. The adoption of this standard requires future purchases to be evaluated under the new framework.

 

(g) Asset Acquisition

 

When the Company acquires other entities, if the assets acquired and liabilities assumed do not constitute a business, the transaction is accounted for as an asset acquisition. Assets are recognized based on the cost, which generally includes the transaction costs of the asset acquisition, and no gain or loss is recognized unless the fair value of noncash assets given as consideration differs from the assets’ carrying amounts on the Company’s books. If the consideration given is not in the form of cash (that is, in the form of noncash assets, liabilities incurred, or equity interest issued), measurement is based on either the cost to the acquiring entity or the fair value of the assets (or net assets) acquired, whichever is more clearly evident and, thus, more reliably measureable. The cost of a group of assets acquired in an asset acquisition is allocated to the individual assets acquired or liabilities assumed based on their relative fair value and does not give rise to goodwill.

 

  (h) Cash and Cash Equivalents

 

Cash and cash equivalents include cash on hand, cash accounts, interest bearing savings accounts and all highly liquid investments with original maturities of three months or less, and which are unrestricted as to withdrawal and use. There were no cash equivalents as of December 31, 2019 and 2018.

 

  (i) Restricted Cash

 

Restricted cash represent bank deposits with designated use, which cannot be withdraw without certain approval or notice. Restricted cash, which matures twelve months after the balance sheet date, is classified as noncurrent assets in the consolidated balance sheets. 

 

At December 31, 2019 and 2018, the Group had restricted bank deposits of $239 and $458, respectively. The balance as of December 31, 2019 and 2018 mainly represented the restricted bank deposits in the bank account established for the sole purpose of paying the obligations and making other payments related to the project assets development in Hawaii of SPI Solar Inc., a subsidiary of the Group.

 

 

 

  F-12  
 

 

  (j) Accounts Receivable, net

 

The Group grants open credit terms to credit-worthy customers. Accounts receivable are primarily related to the Group's sales of pre-development solar projects and sales of PV components. For pre-development sales contracts, the payment is typically due in installments over the contract term, which are both before and after the performance by the Company. Payment for sales of PV components and electricity revenue with power purchase agreements (“PPAs”) are typically due in full within 30 to 90 days of shipping of the products or the start of the contract term.

 

The Group maintains allowances for doubtful accounts. The Group regularly monitors and assesses the risk of not collecting amounts owed by customers. This evaluation is based upon a variety of factors, including an analysis of amounts current and past due along with relevant history and facts particular to the customer. The Group does not have any off-balance-sheet credit exposure related to its customers. Contractually, the Group may charge interest for extended payment terms and require collateral.

 

  (k) Notes Receivable

 

Notes receivable was a 12-year interest-bearing promissory note issued by an EPC customer in 2015. The promissory note carries interests at 6% per annum and is settled by pre-determined installments. Installment payments that fall due within 12 months and over 12 months after the balance sheet date are classified as current assets and noncurrent assets respectively on the consolidated balance sheet. Notes receivable was fully collected during the year ended December 31, 2019. As of December 31, 2018, no allowance was made against the notes receivable.

 

  (l) Inventories, net

 

Inventories are carried at the lower of cost or net realizable value, determined by the weighted average cost method. Provisions are made for obsolete or slow-moving inventories based on management estimates. Inventories are written down based on the difference between the cost of inventories and the net realizable value based upon estimates about future demand from customers, specific customer requirements on certain projects and other factors. Inventory provision charges establish a new cost basis for inventory that subsequently cannot be marked up based on changes in underlying facts and circumstances.

 

  (m) Project Assets, net

 

The Group acquires or constructs PV solar power systems (“solar system”) that are (i) held for development and sale or (ii) held for the Group’s own use to generate income or return from the use of the solar systems. Solar systems are classified as either held for development and sale within “project assets” or as held for use within “property, plant and equipment” based on the Group’s intended use of solar systems. The Group determines the intended use of the solar systems upon acquisition or commencement of project construction.

 

Classification of the solar systems affects the accounting and presentation in the consolidated financial statements. Transactions related to the solar systems held for development and sale within “project assets” are classified as operating activities in the consolidated statements of cash flows and reported as sales and costs of goods sold in the consolidated statements of operations upon the sale of the solar systems and fulfillment of the relevant recognition criteria. Incidental electricity income generated from the solar systems held for development and sale prior to the sale of the projects is recorded in other operating income in the consolidated statement of operations. The solar systems held for use within “property, plant and equipment”, are used by the Group in its operations to generate income or a return from the use of the assets. Income generated from the solar systems held for use are included in net sales in the consolidated statement of operations. The costs to construct solar systems intended to be held for own use are capitalized and reported within property, plant and equipment on the consolidated balance sheets and are presented as cash outflows from investing activities in the consolidated statements of cash flows. The proceeds from disposal of solar systems classified as held for own use are presented as cash inflows from investing activities within the consolidated statements of cash flows. A net gain or loss upon the disposal of solar systems classified as held for own use is reported in other operating income or expense in the consolidated statement of operation.

 

 

 

 

 

  F-13  
 

 

Solar systems costs consist primarily of capitalizable costs for items such as permits and licenses, acquired land or land use rights, and work-in-process. Work-in-process includes materials and modules, construction, installation and labor, capitalized interests and other capitalizable costs incurred to construct the PV solar power systems.

 

The solar systems held for development and sale, named as “project assets”, are reported as current assets on the consolidated balance sheets when upon completion of the construction of the solar systems, the Group initiates a plan to actively market the project assets for immediate sale in their present condition to potential third party buyers subject to terms that are usual and customary for sales of these types assets and it is probable that the project assets will be sold within one year. Otherwise, the project assets are reported as noncurrent assets. No depreciation expense is recognized while the project assets are under construction or classified as held for sale.

  

For solar systems held for development and sale, named as “project assets”, the Group considers a project commercially viable if it is anticipated to be sold for a profit once it is either fully developed or fully constructed. The Group also considers a partially developed or partially constructed project commercially viable if the anticipated selling price is higher than the carrying value of the related project assets plus the estimated cost to completion. The Group considers a number of factors, including changes in environmental, ecological, permitting, market pricing or regulatory conditions that affect the project. Such changes may cause the cost of the project to increase or the selling price of the project to decrease. The Group records an impairment loss of the project asset to the extent the carrying value exceed its estimated recoverable amount. The recoverable amount is estimated based on the anticipated sales proceeds reduced by estimated cost to complete such sales.

 

  (n) Property, Plant and Equipment, net

 

The Group accounts for its property, plant and equipment at cost, less accumulated depreciation. Cost includes the prices paid to acquire or construct the assets, interest capitalized during the construction period and any expenditure that substantially extends the useful life of an existing asset. The Group expenses repair and maintenance costs when they are incurred. Depreciation is recorded on the straight-line method based on the estimated useful lives of the assets as follows:

 

  Plant and machinery   5 or 6.67 years
  Furniture, fixtures and equipment   3 or 5 years
  Computers   3 or 5 years
  Automobile   3 or 5 years
  Bitcoin mining equipment   3 years
  Leasehold improvements   The shorter of the estimated life or the lease term
  PV solar system   17, 20, 25 or 27 years

 


  (o) Intangible Assets other than Goodwill

 

Intangible assets consist of customer relationships and patents. Amortization is recorded on the straight-line method based on the estimated useful lives of the assets.

 

  (p) Impairment of Long-lived Assets

 

The Group’s long-lived assets include property, plant and equipment, project assets and other intangible assets with finite lives. The Group evaluates long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. If circumstances require a long-lived asset or asset group be tested for possible impairment, the Group first compare undiscounted cash flows expected to be generated by that asset or asset group to its carrying amount. If the carrying amount of the long-lived asset or asset group is not recoverable on an undiscounted cash flow basis, an impairment is recognized to the extent that the carrying amount exceeds its fair value. Fair value is determined through various valuation techniques including discounted cash flow models, quoted market values and third-party independent appraisals, as considered necessary. Any impairment write-downs would be treated as permanent reductions in the carrying amounts of the assets and a charge to operations would be recognized.

  

 

 

 

 

  F-14  
 

 

(q) Bitcoins

 

Bitcoins are awarded to the Company through its mining activities which are accounted for in connection with the Company’s revenue recognition policy.

 

Bitcoins held are accounted for as intangible assets with indefinite useful lives. An intangible asset with an indefinite useful life is not amortized but assessed for impairment annually, or more frequently, when events or changes in circumstances occur indicating that it is more likely than not that the indefinite-lived asset is impaired. Impairment exists when the carrying amount exceeds its fair value, which is measured using the quoted price of the bitcoins at the time its fair value is being measured. In testing for impairment, the Company has the option to first perform a qualitative assessment to determine whether it is more likely than not that an impairment exists. If it is determined that it is not more likely than not that an impairment exists, a quantitative impairment test is not necessary. If the Company concludes otherwise, it is required to perform a quantitative impairment test. To the extent an impairment loss is recognized, the loss establishes the new cost basis of the asset. Subsequent reversal of impairment losses is not permitted. The balance of bitcoins was nil as of December 31, 2019 and 2018.

 

Bitcoins awarded to the Company through its mining activities are included within operating activities on the accompanying consolidated statements of cash flows. The sales of bitcoins are included within investing activities in the accompanying consolidated statements of cash flows and any realized gains or losses from such sales are included in other income (expense) in the consolidated statements of operations. The Company accounts for its gains or losses in accordance with the first in first out (FIFO) method of accounting.

 

  (r) Goodwill

 

Goodwill represents the excess of the purchase consideration over the fair value of the identifiable tangible and intangible assets acquired and liabilities assumed of the acquired entity as a result of the Company’s acquisitions of interests in its subsidiaries. Goodwill is not amortized but is tested for impairment on an annual basis, or more frequently if events or changes in circumstances indicate that it might be impaired. The Company has an option to first assess qualitative factors to determine whether it is necessary to perform the two-step quantitative goodwill impairment test. In the qualitative assessment, the Company considers primary factors such as industry and market considerations, overall financial performance of the reporting unit, and other specific information related to the operations. Based on the qualitative assessment, if it is more likely than not that the fair value of each reporting unit is less than the carrying amount, the quantitative impairment test is performed.

 

In performing the two-step quantitative impairment test, the first step compares the fair values of each reporting unit to its carrying amount, including goodwill. If the fair value of each reporting unit exceeds its carrying amount, goodwill is not considered to be impaired and the second step will not be required. If the carrying amount of a reporting unit exceeds its fair value, the second step compares the implied fair value of goodwill to the carrying value of a reporting unit’s goodwill. The implied fair value of goodwill is determined in a manner similar to accounting for a business combination with the allocation of the assessed fair value determined in the first step to the assets and liabilities of the reporting unit. The excess of the fair value of the reporting unit over the amounts assigned to the assets and liabilities is the implied fair value of goodwill. This allocation process is only performed for the purposes of evaluating goodwill impairment and does not result in an entry to adjust the value of any assets or liabilities. Application of a goodwill impairment test requires significant management judgment, including the identification of reporting units, assigning assets, liabilities and goodwill to reporting units, and determining the fair value of each reporting unit.

 

  (s) Product Warranties

 

The Group offers the industry standard warranty up to 25 years for PV modules and industry standard warranty for five to ten years on inverter and balance of system components. Due to the warranty period, the Group bears the risk of extensive warranty claims long after products have been shipped and revenues have been recognized. The Group provides a limited warranty to the original purchasers of its solar modules, inverters and cables for trading business for one to five years, in relation to defects in materials and workmanship. For the Group’s cable, wire and mechanical assemblies business, historically the related warranty claims have not been material. For the Group’s solar PV business, the greatest warranty exposure is in the form of product replacement.

 

 

 

 

 

  F-15  
 

 

During the quarter ended September 30, 2007 and continuing through the fourth quarter of 2010, the Group installed own manufactured solar panels and accrued warranty based on the Group’s own historical data. Since 2011, due to the absence of historical material warranty claims and identical warranty terms, the Group has not recorded any additional warranty provision relating to solar energy systems sold. PV construction contracts entered into during the recent years included provisions under which the Group agreed to provide warranties to the customers. The warranty the Group offers to its customers is identical to the warranty offered to the Group by its suppliers, therefore, the Group passes on all potential warranty exposure and claims, if any, with respect systems sold by the Group to its suppliers.

 

  (t) Income Taxes

 

The Group accounts for income taxes under the asset and liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. A valuation allowance is recognized if it is more likely than not that some portion, or all, of a deferred tax asset will not be realized.

 

The Company recognizes in the consolidated financial statements the impact of a tax position, if that position is more likely than not of being sustained upon examination, based on the technical merits of the position. In evaluating whether a tax position has met the more-likely-than-not recognition threshold, management presumes that the position will be examined by the appropriate taxing authority that has full knowledge of all relevant information. In addition, a tax position that meets the more-likely-than-not recognition threshold is measured to determine the amount of benefit to be recognized in the financial statements. The tax position is measured at the largest amount of benefit that is greater than 50 percent likely of being realized upon settlement. The Group’s tax liability associated with unrecognized tax benefits is adjusted periodically due to changing circumstances, such as the progress of the tax audits, case law developments and new or emerging legislation. Such adjustments are recognized entirely in the period in which they are identified. The Group records interest and penalties related to an uncertain tax position, if and when required, as part of income tax expense in the consolidated statements of operations. No reserve for uncertainty tax position was recorded by the Group for the years ended December 31, 2019, 2018 and 2017. 

 

  (u) Revenue Recognition

 

On January 1, 2018, the Group adopted Accounting Standards Codification (“ASC”) No. 606, “Revenue from Contracts with Customers” (“ASC 606” or “Topic 606”) and applied the modified retrospective method to all contracts that were not completed as of January 1, 2018. Results for reporting periods beginning after January 1, 2018 are presented under Topic 606, while prior period amounts are not adjusted and continue to be reported in accordance with the Group’s historical accounting practices under ASC Topic 605 “Revenue Recognition”.

 

The Group has determined that the impact of the transition to the new standard is immaterial to the Group’s revenue recognition model. Accordingly, the Group has not made any adjustment to opening retained earnings.

 

The Group’s accounting practices under ASC Topic 606 are as followings:

 

The Company generates revenue from sales of PV components, electricity revenue with Power Purchase Agreements (“PPAs”), sales of PV project assets, bitcoin mining equipment sales and hosting service, sales of pre-development solar projects, revenue from bitcoin mining and sales of hays for the years ended December 31 2019, 2018 and 2017.

 

Sale of PV components

 

Revenue on sale of PV components is recognized at a point in time following the transfer of control of such products to the customer, which typically occurs upon shipment or acceptance of the customer depending on the terms of the underlying contracts.

 

Electricity revenue with PPAs

 

The Group sells energy generated by PV solar power systems under PPAs. For energy sold under PPAs, the Group recognizes revenue each period based on the volume of energy delivered to the customer (i.e., the PPAs off-taker) and the price stated in the PPAs. The Group has determined that none of the PPAs contains a lease since (i) the purchaser does not have the rights to operate the PV solar power systems, (ii) the purchaser does not have the rights to control physical access to the PV solar power systems, and (iii) the price that the purchaser pays is at a fixed price per unit of output.

 

 

 

  F-16  
 

 

Sale of PV project asset

 

The Group’s sales arrangements for PV projects do not contain any forms of continuing involvement that may affect the revenue or profit recognition of the transactions, nor any variable considerations for energy performance guarantees, minimum electricity end subscription commitments. The Group therefore determined its single performance obligation to the customer is the sale of a completed solar project. The Group recognizes revenue for sales of solar projects at a point in time after the solar project has been grid connected and the customer obtains control of the solar project.

  

Bitcoin mining equipment sales and hosting service

 

Revenue on sale of bitcoin mining equipment is recognized at a point in time following the transfer of control of such products to the customer, which typically occurs upon delivery of the products to the hosting site or receipt place assigned by the customer, installation and setting up the products. Revenue for hosting service is recognized over time as services are performed and based on the output method related to the time incurred during the service period.

 

Sales of pre-development solar projects

 

For sales of pre-development solar projects in which the Group transfers 100% of the membership interest in solar projects to a customer, the Group recognizes all of the revenue for the consideration received at a point in time when the membership interest was transferred to the customer, which typically occurs when the Group delivered the membership interest assignment agreement to the customer.

 

The contract arrangements may contain provisions that can either increase or decrease the transaction price. These variable amounts generally are resolved upon achievement of certain performance or upon occurrence of certain price reduction conditions. Variable consideration is estimated at each measurement date at its most likely amount to the extent that it is probable that a significant reversal of cumulative revenue recognized will not occur and true-ups are applied prospectively as such estimates change.

 

Changes in estimates for sales of pre-development solar projects occur for a variety of reasons, including but not limited to (i) EPC construction plan accelerations or delays, (ii) product cost forecast changes, (iii) change orders, or (iv) occurrence of purchase price reduction conditions. The cumulative effect of revisions to transaction prices are recorded in the period in which the revisions to estimates are identified and the amounts can be reasonably estimated.

 

Revenue from bitcoin mining

 

The Company has entered into a digital asset mining pool to provide computing power to the mining pool. Providing computing power in crypto asset transaction verification services is an output of the Company’s ordinary activities. The provision of computing power is the only performance obligation in the Company’s contracts with the mining pool. The transaction consideration the Company receives, if any, is noncash consideration, which the Company measures at fair value on the date of receipt, which is not materially different than the fair value at contract inception or the time the Company has earned the award from the mining pool. The consideration is all variable. Because it is not probable that a significant reversal of cumulative revenue will not occur, the consideration is constrained until the Company receives the consideration, at which time revenue is recognized. There is no significant financing component in these transactions.

 

Fair value of the digital asset award received is determined using the average U.S. dollar spot rate of the related digital currency at the time of receipt.

 

Sale of Alfalfa hays

 

In 2019, the Company sells alfalfa hays from United States to China. Revenue on sale of alfalfa hays is recognized at a point in time following the transfer of control of such products to the customer, which typically occurs upon the acceptance of the products made by the customer.

 

 

 

  F-17  
 

 

Disaggregation of revenues

 

The following table illustrates the disaggregation of revenue by revenue stream from continuing operations for the years ended December 31, 2019, 2018 and 2017:

 

By revenue stream   For the year ended December 31, 2019  
Continued operations   Sales of PV components     Electricity revenue with PPAs     Sales
of PV
project
asset
   

Bitcoin
mining equipment
sales and

hosting service

    Sales of pre-
development
solar projects
    Bitcoin mining     Sales of hays     Others     Total  
Australia   $ 79,470     $     $     $     $     $     $     $ 1,048     $ 80,518  
Japan                 9,563                                     9,563  
Italy           1,365                                           1,365  
United States     1,471                   567       (2,835 )     3,630       1,487             4,320  
United Kingdom           979                                           979  
Greece           1,024                                     114       1,138  
Total   $ 80,941     $ 3,368     $ 9,563     $ 567     $ (2,835 )   $ 3,630     $ 1,487     $ 1,162     $ 97,883  

 

 

By revenue stream   For the year ended December 31, 2018  
Continued operations   Sales
of PV components
    Electricity revenue with PPAs     Sales
of PV
project
asset
    Bitcoin mining equipment sales and hosting service     Sales of pre-
development solar projects
    Bitcoin mining     Sales of hays     Others     Total  
Australia   $ 90,067     $     $     $     $     $     $     $ 1,314     $ 91,381  
Japan     1,605             10,809                               23       12,437  
Italy           1,733                                           1,733  
United States     1,875                   1,052       15,794                         18,721  
United Kingdom           932                                           932  
Greece           378                                           378  
Total   $ 93,547     $ 3,043     $ 10,809     $ 1,052     $ 15,794     $     $     $ 1,337     $ 125,582  

 

 

By revenue stream   For the year ended December 31, 2017  
Continued operations   Sales of PV components     Electricity revenue with PPAs     Sales
of PV
project
asset
   

Bitcoin
mining equipment
sales and

hosting service

    Sales of pre-
development
solar projects
    Bitcoin mining     Sales of hays     Others     Total  
Australia   $ 111,284     $     $     $     $     $     $     $ 890     $ 112,174  
Japan     511                                                 511  
Italy           1,932                                           1,932  
United States                                                      
United Kingdom           861       6,042                                     6,903  
Greece                                                      
Total   $ 111,795     $ 2,793     $ 6,042     $     $     $     $     $ 890     $ 121,520  

 

 

 

  F-18  
 

 

Contract balance

 

The following table provides information about accounts receivables and contract liabilities from contracts with customers:

 

     

December 31,

2019

   

December 31,

2018

 
  Accounts receivable, current and noncurrent   $ 16,539     $ 27,777  
  Advance from customers   $ 17,632     $ 25,984  

 

Advance from customers, which represent a contract liability, represent mostly unrecognized amount received for customers. Advance from customers is recognized as (or when) the Group performs under the contract. During the year ended December 31, 2019, 2018 and 2017, the Group recognized $8,159, $11,365 and $326 that was included in the balance of advance from customers at January 1, 2019, 2018 and 2017, respectively.

 

  (v) Cost of Revenues

 

Cost of revenues for PV components is mainly from direct purchase price of PV components. Cost of revenues for PV project assets and pre-development solar projects include all direct material, labor, subcontractor cost, land use right fee, and those indirect costs related to contract performance, such as indirect labor, supplies and tools. Cost of revenues for bitcoin mining equipment and hosting service include direct purchase of mining equipment, electricity fee and other indirect expense. Costs of electricity generation revenue include depreciation of solar power project assets and costs associated with operation and maintenance of the project assets. Costs of bitcoin mining include depreciation of bitcoin miners and hosting service fee. Cost of sales of hays is mainly the purchase price of raw materials.

 

  (w) Share-based Compensation

 

The Group’s share-based payment transactions with employees, such as restricted shares and share options, are measured based on the grant-date fair value of the equity instrument issued. The fair value of the award is recognized as compensation expense, net of estimated forfeitures, over the period during which an employee is required to provide service in exchange for the award, which is generally the vesting period. 

 

  (x) Derivative Instruments

 

The Company evaluates its convertible debt to determine if the contract or embedded component of the contract qualifies as derivatives to be separately accounted for in accordance with ASC 480, “Distinguish by Liabilities from Equity”, and ASC 815, “Derivatives and Hedging”. The result of this accounting treatment is that the fair value of the embedded derivative, if required to be bifurcated, is marked-to-market at each balance sheet date and recorded as a liability. The change in fair value is recorded in the consolidated statement of operations. Upon conversion or exercise of a derivative instrument, the instrument is marked to fair value at the conversion date and then that fair value is reclassified to equity.

 

  (y) Capitalized Interest

 

The Group’s policy is to capitalize interest cost incurred on debt during the construction of major projects exceeding three months. A reconciliation of total interest cost to “Interest Expense” as reported in the consolidated statements of operations for the years ended December 31, 2019, 2018 and 2017 is as follows:

 

      For the years ended December 31,  
      2019     2018     2017  
                     
  Interest cost capitalized   $     $ 292     $ 1,607  
  Interest cost charged to expense     3,923       6,665       8,087  
  Total interest cost   $ 3,923     $ 6,957     $ 9,694  

  

 

 

 

 

  F-19  
 

 

  (z) Gain on Troubled Debt Restructuring

 

The Group accounted the debt amendment as a troubled debt restructuring when the transaction meets the two criteria: 1) The Group was experiencing financial difficulties; 2) the lender was granting a concession when the effective borrowing rate on the restructured debt is less than the effective borrowing on the original debt. The difference between future undiscounted cash flows and the net carrying value of the original debt is recognized as gain on troubled debt restructuring, and the carrying value of the debt is adjusted to the future undiscounted cash flow amount.

 

  (aa) Segment Reporting

 

Operating segments are defined as components of a company which separate financial information is available that is evaluated regularly by the operating decision maker in deciding how to allocate resources and assessing performance. The Group’s chief operating decision maker is the Chairman, Mr. Peng. Based on the financial information presented to and reviewed by the chief operating decision maker, the Group has determined that it has a single operating and reporting segment for the years ended December 31, 2019, 2018 and 2017.

 

  (ab) Net Loss Per Share

 

Basic loss per share is computed by dividing net loss attributable to ordinary shareholders by the weighted average number of ordinary shares outstanding for the period. Diluted loss per share is calculated by dividing net loss attributable to ordinary shareholders as adjusted for the effect of dilutive ordinary equivalent shares, if any, by the weighted average number of ordinary and dilutive ordinary equivalent shares outstanding during the period. Potentially dilutive shares are excluded from the computation if their effect is anti-dilutive.

 

  (ac) Comprehensive Loss

 

U.S. GAAP generally requires that recognized revenue, expenses, gains and losses be included in net income or loss. Although certain changes in assets and liabilities are reported as separate components of the equity section of the consolidated balance sheet, such items, along with net income, are components of comprehensive income or loss. The components of other comprehensive income or loss consist solely of foreign currency translation adjustments.

 

  (ad) Commitments and Contingencies

 

Liabilities for loss contingencies arising from claims, assessments, litigation, fines, and penalties and other sources are recorded when it is probable that a liability has been incurred and the amount can be reasonably estimated. If a potential material loss contingency is not probable but is reasonably possible, or is probable but cannot be estimated, then the nature of the contingent liability, together with an estimate of the range of possible loss if determinable and material, is disclosed. Legal costs incurred in connection with loss contingencies are expensed as incurred.

 

  (ae) Leases

 

In February 2016, the FASB issued ASU 2016-12, Leases (ASC Topic 842), which amends the leases requirements in ASC Topic 840, Leases. Under the new lease accounting standard, a lessee will be required to recognize a right-of-use asset and lease liability for most leases on the balance sheet. The new standard also modifies the classification criteria and accounting for sales-type and direct financing leases, and enhances the disclosure requirements. Leases will continue to be classified as either finance or operating leases.

 

The Group adopted ASC Topic 842 using the modified retrospective transition method effective January 1, 2019. There was no cumulative effect of initially applying ASC Topic 842 that required an adjustment to the opening retained earnings on the adoption date nor revision of the balances in comparative periods. As a result of the adoption, the Group recognized a lease liability and right-of-use asset for each of the existing lease arrangement. The adoption of the new lease standard does not have a material impact on the consolidated statements of operations or the consolidated statements of cash flows.

 

 

 

 

 

  F-20  
 

 

The Group determines if an arrangement is a lease at inception. The lease payments under the lease arrangements are fixed. Non-lease components include payments for building management, utilities and property tax. It separates the non-lease components from the lease components to which they relate.

 

Lease assets and liabilities are recognized at the present value of the future lease payments at the lease commencement date. The interest rate used to determine the present value of the future lease payments is the Group’s incremental borrowing rate, because the interest rate implicit in the leases is not readily determinable. The incremental borrowing rate is estimated to approximate the interest rate on a collateralized basis with similar terms and payments, and in economic environments where the leased asset is located. The lease terms include periods under options to extend or terminate the lease when it is reasonably certain that the Group will exercise that option. The Group generally uses the base, non-cancelable, lease term when determining the lease assets and liabilities.

 

  (af) Recent Accounting Pronouncements

 

Recently Adopted Accounting Standards

 

In May 2014, the Financial Accounting Standards Board (FASB) issued Topic 606, which supersedes the revenue recognition requirements in Topic 605. The Group adopted Topic 606 as of January 1, 2018 using the modified retrospective transition method applied to those contracts which were not completed as of January 1, 2018. See Note 3(u) “Revenue Recognition” above for further details.

 

In February 2016, the FASB issued ASU 2016-12, Leases (ASC Topic 842), which amends the leases requirements in ASC Topic 840, Leases. The Group adopted ASC Topic 842 using the modified retrospective transition method effective January 1, 2019. There was no cumulative effect of initially applying ASC Topic 842 that required an adjustment to the opening retained earnings on the adoption date nor revision of the balances in comparative periods. See Note 3(ae) “Leases” above for further details.

 

In November 2016, the FASB issued ASU No. 2016-18, Statement of Cash Flows (Topic 230): “Restricted Cash” (“ASU 2016-18”). ASU 2016-18 requires that a statement of cash flows explain the change during the period in the total of cash, cash equivalents, and amounts generally described as restricted cash or restricted cash equivalents. This update is effective in fiscal years, including interim periods, beginning after December 15, 2017 and early adoption is permitted. The adoption of this guidance will result in the inclusion of the restricted cash balances within the overall cash balance and removal of the changes in restricted cash activity, as a result, the Company no longer presents transfers between cash and cash equivalents and restricted cash in the statement of cash flows. Furthermore, an additional reconciliation will be required to reconcile cash, cash equivalents, and restricted cash reported within the consolidated balance sheets to sum to the total shown in the consolidated statement of cash flows. The Group has already disclosed the restricted cash separately on its consolidated balance sheets. Beginning January 1, 2018, the Group has adopted and included the restricted cash balances on the consolidated statement of cash flows and reconciliation of cash, cash equivalent, and restricted cash within its consolidated statements of balance sheet and consolidated statement of cash flows. This guidance has been applied retrospectively to the consolidated statement of cash flows for the year ended December 31, 2017, which required the Company to recast each prior reporting period presented.

 

In January 2017, the FASB issued AUS No. 2017-01, “Business Combination (Topic 805): Clarifying the Definition of a Business”. The Group adopted it on January 1, 2018 and applied the new definition of a business prospectively for acquisitions made subsequent to December 31, 2017. See Note 3 (f) “Business Acquisition” above for further details.

 

Accounting Pronouncements Issued But Not Yet Adopted

  

In August 2018, the FASB issued ASU No. 2018-13, Fair Value Measurement (Topic 820)-Disclosure Framework-Changes to the Disclosure Requirements for Fair Value Measurement. ASU 2018-13 removes the amounts and reasons for transfers between Level 1 and Level 2 of the fair value hierarchy and the valuation processes for Level 3 fair value measurements; modifies certain disclosure requirements in Topic 820; and require additional disclosures such as the range and weighted average of significant unobservable inputs used to develop Level 3 measurements etc. ASU No. 2018-13 is effective for the Company beginning in the first quarter of fiscal year 2020. The Company does not expect this guidance will have a material impact on its consolidated financial statements.

 

 

 

 

  F-21  
 

 

On December 18, 2019, the FASB issued ASU No. 2019-12, Income taxes (Topic 740), Simplifying the Accounting for Income Taxes. This guidance amends ASC Topic 740 and addresses several aspects including 1) evaluation of step-up tax basis of goodwill when there is not a business combination, 2) policy election to not allocate consolidated taxes on a separate entity basis to entities not subject to income tax, 3) accounting for tax law changes or rates during interim periods, 4) ownership changes from equity method investment to subsidiary or vice versa, 5) elimination of exception to intraperiod allocation when there is gain in discontinued operations and a loss from continuing operations, 6) treatment of franchise taxes that are partially based on income. The guidance is effective for calendar year-end public entities on January 1, 2021 and other entities on January 1, 2022. The Company is evaluating the impact of this guidance on its consolidated financial statements.

 

The Group does not believe other recently issued but not yet effective accounting standards, if currently adopted, would have a material effect on the consolidated financial position, statements of operations and cash flows.

 

  4.

Disposition

 

(1) Disposition of SPI China

 

On August 30, 2018, the Group entered into a share purchase agreement (the “SPI China disposal agreement”) with Lighting Charm, an affiliate of Ms. Shan Zhou, the spouse of Xiaofeng Peng, the Group’s Chairman of the Board of Directors and Chief Executive Officer. Ms. Shan Zhou, as the beneficial owner of the Group, hold more than 10% equity interest of the Group on December 10, 2018. The agreement has been approved by an independent committee of the Group’s Board of Directors. The SPI China disposal agreement provides that the Group sold Lighting Charm the 100% equity interest of SPI China, which holds all of the Group’s assets and liabilities related to its business in China (the “Acquired Business”). The Group effected an internal restructuring following which SPI China would only hold the Group’s subsidiaries in China, and all the other subsidiaries outside of China would be transferred to the Group. Pursuant to the terms of the SPI China disposal agreement, the consideration for the Acquired Business to be paid by the Lighting Charm to the Group in cash was US$1.00. As of December 10, 2018, the restructuring was completed and the disposition was closed. As a result of the disposition to a principal shareholder for US$1.00, the excess of SPI China’s book value of liabilities over the book value of its assets was recorded as an addition to paid-in capital of $107,867.

 

Together with the transaction, the Group granted Lighting Charm options to purchase up to 1,000,000 of the Group’s ordinary shares with par value of $0.0001, with an exercise price of US$ 3.80 per share. The options vested immediately and can be exercised at any time on or prior to August 21, 2021. The options were valued using the Binomial option pricing model and the fair value of the options on the grant date was $1,260, which adjusted to the fair value of disposal consideration and was charged into additional paid-in capital.

 

The Group had made payment on behalf of SPI China for its operation purpose from December 10, 2018 to December 31, 2018, which was considered remote collectability due to the financial position of SPI China, and the Company recorded the amount due from SPI China as a debt forgiveness loss from related parties, with amount of $536 recorded as a reduction of paid-in capital.

 

 

 

 

 

  F-22  
 

 

The following are revenues and loss from discontinued operations:

 

      For the years ended December 31,  
      2019     2018     2017  
  Net sales   $       4,681       5,945  
  Cost of revenue           2,027       6,235  
  Gross profit (loss)           2,654       (290 )
  General and administrative           2,904       8,391  
  Sales, marketing and customer service           887       4,796  
  Provision for doubtful accounts, notes and other receivable           195       7,485  
  Impairment charges on goodwill and intangible assets                 205  
  Impairment charges on property, plant and equipment                 3,755  
  Impairment charges on project assets                 3,354  
  Impairment charges on finance lease receivable                 23,967  
  Total operating expense           3,986       51,953  
  Total other expense, net           (4,790 )     (12,188 )
  Loss from discontinued operations before income tax           (6,122 )     (64,431 )
  Income tax expense                 14  
  Loss from discontinued operations, net of income tax   $       (6,122 )     (64,445 )

 

(2) Disposition of Italy Subsidiaries

 

On September 23, 2019, the Company entered into a sale and purchase agreement with a third party buyer, Theia Investments (Italy) S.r.l. (“Theia”), to sell all the shares it held in SUN ROOF II S.r.l (“SR II”) and SUN ROOF V S.r.l. (“SR V”) for a consideration of $2,802 and $2,014, respectively.

 

SR II and SR V are two limited liabilities companies established under the Italian law in 2011, which own 3 PV plants for a total of 1.8MW peak capacity and 1 PV plant of 0.9MW peak capacity, respectively. The sale of both SR II and SR V were completed on September 26, 2019. The Company derecognized all the assets, liabilities and equity components of SR II and SR V and recognized a loss of $481 on disposal of SR II and a gain of $96 on disposal of SR V which are included in other income (expense) – others in the consolidated statements of operations.

  

  5. Acquisitions

 

On September 20, 2017, the Group entered into a Framework Share Purchase Agreement with Thermi Taneo Venture Capital Fund (“Thermi”) to expand the Company’s business in Europe and also to settle the Group’s EPC receivable from Thermi. Pursuant to the Framework Share Purchase Agreement, the Group agreed to purchase 100% equity interest in Heliohrisi S.A. (“Heliohrisi”), Heliostixio S.A. (“Heliostixio”) and Thermi Sun S.A. (“Thermi Sun”) from Thermi.

 

(1)       Acquisition of Heliostixio

 

On December 13, 2017, the Group entered into a Share Purchase Agreement (“Heliostixio Purchase Agreement”) with Thermi and purchased 100% equity interest of Heliostixio at a cash price of $2,108 (EUR 1,757). Heliostixio is a Company located in Greece, with a solar photovoltaic project of 1.082 MW peak capacity. Pursuant to Heliostixio Purchase Agreement, the closing date of the acquisition was December 13, 2017, and the Group obtained related control of Heliostixio.

 

The acquisition has been accounted for under ASC 805 Business Combinations. The goodwill arose from the acquisition was $626 and $651 as of December 31, 2019 and 2018, respectively. No impairment was provided during the years ended December 31, 2019, 2018 and 2017.

 

 

 

  F-23  
 

 

(2)       Acquisition of Heliohrisi S.A

 

On March 20, 2019, the Group entered into a Share Purchase Agreement (“Heliohrisi Purchase Agreement”) with Thermi and purchased 100% equity interest of Heliohrisi. Heliohrisi is a company located in Greece, with a solar photovoltaic project of 1.99 MW peak capacity. The solar photovoltaic facility began commercial operation in July 2012. The output of the plant is contracted under a 27-year PPA which began on the commercial operation date. The acquisition was in accordance with the Company's overall growth strategy.

 

The total consideration for acquiring Heliohrisi was $4,013 which was paid in cash as of December 31, 2019 and there is no noncash or contingent consideration. The acquisition is accounted as an asset acquisition according to ASU 2017-01 since substantially all the fair value of the gross assets acquired is concentrated in a single identifiable asset. The excess of consideration over fair value of the assets acquired of $777 was allocated to property, plant and equipment.

 

(3)       Acquisition of Thermi Sun S.A.

 

On November 1, 2019, the Group entered into a Share Purchase Agreement (“Thermi Sun Purchase Agreement”) with Thermi and purchased 100% equity interest of Thermi Sun. Thermi Sun is a company located in Greece, with two solar photovoltaic project of totally 4.4 MW peak capacity. The solar photovoltaic facility began commercial operation in July 2012. The output of the plant is contracted under a 27-year PPA which began on the commercial operation date. The acquisition was in accordance with the Company's overall growth strategy.

 

The total consideration for acquiring Thermi Sun was $8,476 which was paid in cash as of December 31, 2019, and there is no noncash or contingent consideration. The acquisition is accounted as an asset acquisition according to ASU 2017-01 since substantially all the fair value of the gross assets acquired is concentrated in a single identifiable asset. The excess of consideration over the fair value of the assets acquired of $232 was allocated to property, plant and equipment.

 

  6. Accounts Receivable, net

  

The accounts receivable as of December 31, 2019 and 2018 consisted of the following: 

 

      December 31,     December 31,  
      2019     2018  
  Accounts receivable   $ 17,001     $ 28,410  
  Less: Allowance for doubtful accounts     (462 )     (633 )
  Accounts receivable, net   $ 16,539     $ 27,777  

 

 

 

 

  F-24  
 

 

The movements of allowance for doubtful accounts are as follows:

 

      2019     2018     2017  
  Balance as at January 1   $ 633     $ 1,520     $ 1,592  
  Addition     101       202       1,536  
  Written off     (45 )           (1,526 )
  Reversal     (225 )     (1,002 )     (152 )
  Foreign currency translation difference     (2 )     (87 )     70  
  Balance as at December 31   $ 462     $ 633     $ 1,520  

 

On March 18, 2019, Solar Juice, entered into debtor finance agreements with Scottish Pacific (BFS) Pty Ltd. (“Scottish Pacific”), whereby Scottish Pacific provided Solar Juice invoice discounting facility (see Note 16 Short-term Borrowings and Long-term Borrowings). As of December 31, 2019 and 2018, all the outstanding Accounts receivable of Solar Juice was pledged to Scottish Pacific for a total gross amount of $9,761 and $8,345, respectively.

 

  7. Inventories, net

 

Inventories as of December 31, 2019 and 2018 consisted of the following:

 

      December 31,     December 31,  
      2019     2018  
  Finished goods   $ 12,216     $ 9,867  
  Goods in transit     1,326       2,039  
  Raw materials     239        
  Total inventories, net   $ 13,781     $ 11,906  

 

During the years ended December 31, 2019, 2018 and 2017, inventories were written down by $103, $nil and $366 from continuing operations, respectively, to reflect the lower of cost or net realizable value. 

  

  8. Project Assets, net

 

Project assets as of December 31, 2019 and 2018 consist of the following:

 

      December 31,     December 31,  
      2019     2018  
  Project assets completed for sale   $ 17,847     $ 21,215  
  Project assets under development     16,490       19,807  
  Total project assets     34,337       41,022  
  Current, net of impairment loss   $ 17,842     $ 24,654  
  Noncurrent, net of impairment loss   $ 16,495     $ 16,368  

 

During the years ended December 31, 2019, 2018 and 2017, impairment losses of $2,455, $nil and $687 were recorded for certain project assets held for development and sale from continuing operations, respectively. The impairment provided for the year ended December 31, 2019 is mainly for the project assets located in Japan.

 

During the years ended December 31, 2019, 2018 and 2017, the Group recognized total revenue from sales of PV project assets and sales of pre-development solar projects of $6,728, $26,603 and $6,042 from continuing operations, respectively, and cost of $7,703, $23,418 and $6,229 from continuing operations were recognized accordingly.

 

 

 

  F-25  
 

 

  9. Prepaid Expenses and Other Current Assets, net

 

Prepaid expenses and other current assets, net as of December 31, 2019 and 2018 consist of the following:

 

     

December 31,

2019

   

December 31,

2018

 
  Value-added tax recoverable, current   $ 193     $ 483  
  Deposit and prepayment for acquisitions, net of provision of $10,921 and $10,840, respectively (a)     56       55  
  Other deposit and prepayment, net of provision of $3,584 and $452, respectively (b)     2,659       1,216  
  Other receivable, net of provision of $1,968 and $914, respectively (c)     2,262       2,628  
  Total prepaid expenses and other current assets   $ 5,170     $ 4,382  

 

  (a) Deposit and Prepayment for Acquisitions

 

Deposit and prepayment for acquisitions as at December 31, 2019 primarily include: i) an amount of $8,625 (2018: $8,543) relating to the acquisition of RE Capital Projects. The prepayment for acquisition of RE Capital Projects mainly included cash of $2,640 and the Group’s ordinary shares amounting to $5,500. In April 2017, the acquisition was terminated and both parties agreed that the ordinary shares would be transferred back to the Group and the cash portion would not be refunded. Thus, provision for doubtful recoveries of $8,569 (2018: $8,488) was accrued, and the prepayment for acquisition was written down to the recovered amount of $56 and $55 as of December 31, 2019 and 2018; ii) prepayment of $2,288 (2018: $2,288) relating to acquisition of the Kashima PV station. The Group assessed the collectability is remote and full provision for doubtful recoveries was accrued.

 

  (b) Other Deposit and Prepayment

 

Other deposit and prepayment primarily include: i) prepayment of $3,132 to purchase land from Shengrun Intl Industry Group INC (“Shengrun”) to develop solar projects in California as of December 31, 2019, of which full provision has been provided during the year ended December 31, 2019. The total contract price is $19,577 and the Group has the right to redeem the prepayment within six months after May 21, 2019. In November 2019, the Group decide to terminate the transaction and require Shengrun to return $3,132 before December 15, 2019. However, the Group failed to collect it till the issuance of the financial statements. The Group provided full provision after assessing the possibility of collectivity; ii) prepayment made to vendors to purchase PV modules, rental deposits and other prepaid expenses. 

 

  (c) Other receivable

 

Other receivable as at December 31, 2019 mainly included: i) the business fund lent to a third party, Tacoo Corporation with no interest bearing of $1,320 (2018: $2,107). The Company assessed the collectability of the receivable and concluded no provision accrued as of December 31, 2019 and 2018; ii) other receivable of $2,910 (2018: $1,435) for project payment on behalf of third parties, the Group assessed the collectability and provision of $1,968 (2018: $914) was accrued.

 

 

 

 

  F-26  
 

 

  10. Intangible Assets, net

 

Intangible assets, net as of December 31, 2019 and 2018 consisted of the following:

 

      Useful Life           Accumulated     Impairment        
      (in months)     Gross     Amortization     Charge     Net  
  As of December 31, 2019                              
  Patent     57     $ 2,700     $ (2,700 )   $     $  
  Customer Relationship     120       4,370       (1,547 )     (1,295 )     1,528  
              $ 7,070     $ (4,247 )   $ (1,295 )   $ 1,528  
  As of December 31, 2018                                        
  Patent     57     $ 2,700     $ (2,700 )   $     $  
  Customer Relationship     120       4,366       (1,270 )     (1,295 )     1,801  
              $ 7,066     $ (3,970 )   $ (1,295 )   $ 1,801  

 

The customer relationship was mainly contributed by the acquisition of Solar Juice in May 2015. As customer relationship with clients was the key driver of the revenue for Solar Juice, which will bring further economic benefit to the Group’s business. Therefore, the customer relationship was separately identified as an intangible asset on the acquisition date. The balance is amortized over the useful life of 10 years. No impairment loss was provided for intangible assets for the years ended December 31, 2019, 2018 and 2017.

 

Amortization expense for other intangible assets was $278, $300 and $302 from continuing operations for the years ended December 31, 2019, 2018 and 2017, respectively.

 

As of December 31, 2019, the estimated future amortization expense related to other intangible assets is as follows: 

 

      USD  
  2020   $ 276  
  2021     276  
  2022     276  
  2023     276  
  2024     276  
  Thereafter     148  
      $ 1,528  

  

 

 

 

 

 

 

  F-27  
 

 

  11. Property, Plant and Equipment, net

 

Property, plant and equipment, net as of December 31, 2019 and 2018 consisted of the following:

 

      December 31,     December 31,  
      2019     2018  
  Photovoltaic solar systems   $ 32,288     $ 24,375  
  Bitcoin mining equipment     4,045        
  Furniture, fixtures and equipment     586       517  
  Automobile     468       489  
  Computers     173       1,177  
  Leasehold improvements     187       188  
        37,747       26,746  
  Less: accumulated depreciation     (3,636 )     (5,505 )
        34,111       21,241  
  Less: impairment     (2,328 )     (91 )
      $ 31,783     $ 21,150  

 

The costs of PV solar system include costs of acquiring permits, construction fees of PV solar system, costs of items installed in the PV solar system including solar panels, and other costs incurred that are directly attributable to getting the PV solar system ready for its intended use of grid connection with customer for supply of electricity. Depreciation of property, plant and equipment was $1,981, $1,204 and $1,159 from continuing operations for the years ended December 31, 2019, 2018 and 2017, respectively. Impairment loss on property, plant and equipment of $2,235, $nil and $53 from continuing operations for the years ended December 31, 2019, 2018 and 2017, respectively.

 

  12. Investment in Affiliates, net

 

      December 31,     December 31,  
      2019     2018  
  Investment in Sinsin   $ 69,606     $ 69,606  
  Investment in EnSync, Inc.     33,390       33,390  
        102,996       102,996  
  Less: impairment     (33,390 )     (33,390 )
  Investment in affiliates, net   $ 69,606     $ 69,606  

 

The impairment provision for the years ended December 31, 2019, 2018 and 2017 was $nil, $nil and $2,214, respectively.

 

  13. Fair Value Measurement

 

As of December 31, 2019, the derivative liability was measured at fair value on a recurring basis in periods subsequent to their initial recognition using Black-Scholes model, which was classified in Level 3 of the fair value hierarchy. There were no assets or liabilities measured at fair value on a recurring basis as of December 31, 2018.

 

The Company identified derivative instruments arising from embedded conversion features in the convertible promissory note issued to Iliad Research and Trading, L.P. (“ILIAD”) see Note 17 Convertible Bonds). The estimated fair value of the derivative embedded in the convertible note issued to ILIAD was $652 as of December 31, 2019, and $937 as of the issuance date, May 28, 2019, respectively.

 

 

 

  F-28  
 

 

The following summarizes the Black-Scholes Model assumptions used to estimate the fair value of the derivative liability at the dates of issuance and the revaluation dates:

 

    For the Year Ended    
   

December 31,

2019

   
Expected term     0.41-0.5    
Risk-free interest rate     1.6%-2.38%    
Expected volatility     120%-160%    
Expected dividend yield     0%    
               

Derivative liability as of December 31, 2019 and 2018 is $652 and $nil, respectively, with the change in fair value of $285 recorded in the consolidated statements of operations for the year ended December 31, 2019.

 

The following method and assumptions were used to estimate the fair value on a non-recurring basis as at December 31, 2019 and 2018:

 

Cash and cash equivalents, restricted cash, accounts receivable and payable, short term borrowings, accrued liabilities, advance from customers and other current liabilities — costs approximate fair value because of the short maturity period.

 

The fair value of convertible bonds was classified in Level 3 of the fair value hierarchy, and uses binomial model. The estimated fair value of convertible bond with Union Sky was $12,879 as of February 12, 2017 (see Note 17 Convertible Bonds).

 

The fair value of options issued to Lighting Charm Limited was classified in Level 3 of the fair value hierarchy, and uses binomial model. The estimated fair value of options issued to Lighting Charm Limited was $1,260 as of August 21, 2018 (see Note 4(1) Disposition of SPI China).

 

There have been no transfers between Level 1, Level 2, or Level 3 categories during the years ended December 31, 2019, 2018 and 2017.

 

  14. Accrued Liabilities

 

Accrued liabilities as of December 31, 2019 and 2018 are as follows:

 

     

December 31,

2019

   

December 31,

2018

 
  Tax penalty payable (a)   $ 2,780     $ 9,670  
  Other payable     5,024       4,556  
  Other tax payables     296       774  
  Accrued expense     707       1,323  
  Other accrual and payables     370       172  
  Total accrued liabilities   $ 9,177     $ 16,495  

 

 

 

 

  F-29  
 

 

  (a) Tax Penalty Payable

 

The tax penalty payable of $2,780 and $9,670 as of December 31, 2019 and 2018, respectively, represented the accrued tax penalty and interest since the Company was late for filing the United States Federal and State income tax returns for the years ended December 31, 2017 and 2016. The Company recorded a tax penalty of $9,670 as of December 31, 2018 based on best estimation as the Company didn’t receive any result from the United States Internal Revenue Service (“IRS”) by then.

 

 

On May 27, 2019 and February 20, 2020, IRS issued a notice to the Company which assessed penalties for Federal income tax for the tax years ended December 31, 2017 and 2016 in the amount of $1,190 and $1,290 plus interest, respectively. Therefore, the Company reversed tax penalty payable of $6,890 for the year ended December 31, 2019 based on IRS notices for Federal income tax and the management reassessment for State income tax. The tax penalty payable for Federal and State income tax plus interest was $2,780 as of December 31, 2019.

  

  15. Advance from Customers

 

The Group requires its customers to make deposits before sale of PV projects. Such payments are recorded as advances from customers in the Group’s consolidated financial statements, until the sales completed. 

 

  16. Short-term Borrowings and Long-term Borrowings

 

     

December 31,

2019

   

December 31,

2018

 
  Debtor finance   $ 2,226     $ 2,691  
  Short-term bank borrowings           146  
  Other short-term borrowings     414       150  
  Current portion of long-term borrowings     217       179  
  Total short-term borrowings and current portion of long-term borrowings     2,857       3,166  
                   
  Long term bank borrowings     6,256       6,017  
  Other long-term borrowings           836  
  Total long-term borrowings     6,256       6,853  
  Less: current portion of long-term borrowings     (217 )     (179 )
  Total long-term borrowings, excluding current portion     6,039       6,674  
  Total borrowings   $ 8,896     $ 9,840  

 

As of December 31, 2019, the maturities of the long-term borrowings are as follows:

 

      USD  
  2020   $ 217  
  2021     238  
  2022     266  
  2023     290  
  2024     346  
  Thereafter     4,899  
      $ 6,256  

 

 

 

 

  F-30  
 

 

The Group’s subsidiary, Solar Juice, entered into debtor finance agreements with Scottish Pacific on March 18, 2018, whereby Scottish Pacific provided Solar Juice invoice discounting facility with a limit of $5,637, at service fee charge of 0.13% based on the invoices processed, and discount fee charge of margin percentage plus 1.1% (margin percentage is around 6.76% during 2019 and 2018) based on the average daily debtor finance balance. The accounts receivable collection of Solar Juice was automatically transferred to Scottish Pacific for the debtor finance repayment at the ending of each work day. As of December 31, 2019 and 2018, the debtor finance balance was $2,226 and $2,691, respectively.

 

As of December 31, 2019, long term bank borrowings primarily represent a 10-year long term loan borrowed from Santander Bank amounting to $6,256 (2018: $6,017) with a maturity date of February 16, 2027, of which $4,692 is at interest rate of 3.96% per annum and $1,564 is at interest rate of 2.83% per annum.

 

The interest expense of bank loans from continuing operations was $544, $525 and $567 for the years ended December 31, 2019, 2018 and 2017. The average interest rate on short term borrowings from continuing operations was 7.97%, 7.39% and 5.65% per annum for the years ended December 31, 2019, 2018 and 2017, respectively

 

  17. Convertible Bonds

 

     

December 31,

2019

   

December 31,

2018

 
  Brilliant King Group Limited (1)   $ 12,000     $ 12,000  
  Poseidon Sports Limited (1)     3,000       3,000  
  Magical Glaze Limited (1)     20,000       6,600  
  Vision Edge Limited (1)     20,000       20,000  
  Iliad Research and Trading, L.P. (2)     907        
  Convertible bonds, current     55,907       41,600  
                   
  Magical Glaze Limited (1)           13,400  
  Convertible bonds, noncurrent           13,400  
  Total convertible bonds   $ 55,907     $ 55,000  

 

(1) 2014 and 2015 Convertible Promissory Note and Amendments

 

In December 2014, the Company entered into three convertible promissory note purchase agreements with Brilliant King Group Limited (“Brilliant King”), Poseidon Sports Limited (“Poseidon”) and Union Sky Holding Group Limited (“Union Sky”), respectively whereby the Company agreed to sell and issue to these three investors convertible promissory notes in an aggregate principal amount of $35,000 which could be converted into 175,000 Ordinary Shares at a fixed conversion price of $200 unless adjusted for anti-dilution. The convertible notes bore no interest, and might be partially or wholly converted into shares of the Company’s ordinary shares at any time prior to maturity at the option of the investor. The convertible promissory notes were due and payable on June 11, 2016.

 

On June 15, 2015, the Company agreed to issue to Vision Edge Limited (“Vision Edge”) convertible promissory note in an aggregate amount of $20,000 which could be converted into 74,074 Ordinary Shares at a fixed conversion price of $270 unless adjusted for anti-dilution pursuant to the agreement entered between the Company and Vision Edge. The convertible notes bore no interest, and might be wholly converted into shares of the Company’s ordinary shares at any time prior to maturity at the option of the investor. The commitment date of the convertible promissory note is on June 29, 2015. The convertible promissory note was due and payable on June 29, 2016.

 

The Group defaulted the payment for all outstanding convertible bonds of $55,000 in June 2016.

 

 

 

  F-31  
 

 

First Amendment Agreement with Union Sky

 

On February 12, 2017, the Group entered into an Amendment Agreement (“First Amendment Agreement”) with Union Sky, one of the convertible bond holders to extend the maturity date of the debt, pursuant to which the repayment of $6,600, $6,700 and $6,700 of the principal amount of the convertible bond was extended to April 30, 2017, January 30, 2018 and January 30, 2019, respectively. The holder has the option to convert the outstanding amounts under the convertible bond into equity interest in the Company at a conversion price per ordinary share that equals the weighted average daily closing price of the Company’s American depositary shares from January 30, 2017 to February 10, 2017.

 

According to the First Amendment, the convertible bond held by Union Sky was substantially amended by adding the substantive conversion option and the present value of the cash flows under the terms of the amended debt instrument was more than 10 percent different from the present value of the remaining cash flows under the terms of the original instrument. According to ASC Topic 470, if it is determined that the original and new debt instruments are substantially different, and the new debt instrument shall be initially recorded at fair value, and that amount shall be used to determine the debt extinguishment gain or loss to be recognized and the effective rate of the new instrument. Therefore, the amended convertible bond held by Union Sky was initially recorded at fair value, amounting to $12,879 as of February 12, 2017. As comparing to the carrying value of original of $20,000, a gain from extinguishment of debt of $7,121 was recognized in 2017. The discount of $7,121 of the amended convertible bond is amortized as interest expense using the effective interest rate method through the period of the First Amendment Agreement.

 

As the Group did not make the first repayment by the end of April 2017, all outstanding debts of $20,000 under the Agreement became due immediately bearing an annual interest rate of 18%. 

 

Second Amendment Agreement with Union Sky

 

On June 29, 2018, the Company entered into another amendment agreement (the “Second Amendment Agreement”) with the Union Sky and Magical Glaze Limited (“MGL”), a company and Union Sky was under common control, pursuant to which agreement the Union Sky has transferred all the rights and obligations under the Original agreement and First Amendment Agreement to MGL, and the maturity date of the note was further extended. According to the Second Amendment Agreement, the repayment of $6,600, $6,700 and $6,700 of the principal amount of the convertible bond and interest thereon is due by December 2019, June 2020 and December 2020, respectively. MGL and the Company also agreed that MGL had the option to convert the outstanding amounts under the convertible bond into equity interest of the Company as the same provision stated in the First Amendment Agreement started on June 29, 2018, which the conversion price per ordinary share equals the weighted average daily closing price of the Company’s ordinary shares in the NASDAQ stock market 10 working days prior to the date of signing the second amendment agreement.

 

Given that the Company was experiencing financial difficulties and the note holder, MGL granted a concession by extending the note maturity dates, resulting in the effective interest rate for the second amendment lower than effective interest rate for the first amendment, the Company accounted for the second amendment as a troubled debt restructuring. According to ASC Topic 470, if future undiscounted cash flows are less than the net carrying value of the original debt, a gain is recognized for the difference and the carrying value of the debt is adjusted to the future undiscounted cash flow amount. The future undiscounted cash flow of the second amended convertible bond was $20,000, which is less than the carrying amount of the first amended convertible bond of $21,887 as of June 29, 2018. Therefore, the Company recognized a gain on troubled debt restructuring of $1,887 and the second amended convertible bond held by MGL was recorded at the undiscounted future cash flow, amounting to $20,000. No interest expense or amortization of debt discount is recorded going forward.

 

 

 

 

  F-32  
 

 

(2) Convertible Promissory Note and Amendment with ILIAD

 

On May 28, 2019, the Company entered into a Secured Convertible Promissory Note with ILIAD (the “ILIAD Note”), with an initial principal amount of $1,335. The Company received $1,250 in cash from the ILIAD, and the remainder $19 was retained for legal fees for the issuance of the ILIAD Note and the original issue discount of $62. The ILIAD Note had a 12-month term and carried interest at 10% per annum. The Company’s obligations under the ILIAD Note may be prepaid at any time, provided that in such circumstance the Company would pay 115% of any amounts outstanding under the note and being prepaid. The note could be convertible into shares of the Company’s common stock at a conversion price of $10 per share (“Conversion Price”) at any time after the issuance date.

 

ILIAD could redeem any portion of the note, at any time after six months from the issue date, subject to a maximum monthly redemption amount of $200, with the Company having the option to pay such redemptions in cash, the Company’s common stock at the Redemption Conversion Price, or by a combination thereof. The Redemption Conversion Price should be the lesser of $10 or 80% of the lowest closing trade price during the ten trading days immediately preceding the applicable measurement date.

 

The Company determines that the conversion feature within the ILIAD Note meets the requirements to be treated as a derivative and the Company estimates a fair value of the derivative liability using the Black-Scholes Model upon the date of issuance. As the fair value of the derivative liability is less than the face value of the convertible debt, the fair value of the derivative liability is recorded as a liability with an offsetting amount recorded as a debt discount, which offsets the carrying amount of the debt. The derivative liability is revalued at the end of each reporting period and any change in fair value is recorded as a change in fair value of derivative liability in the consolidated statements of operations.

 

On December 10, 2019, the Company made an amended to the ILIAD Note to defer the first redemption until January 1, 2020. The Company evaluated the Amendment in accordance with ASC 470, Debt (“ASC 470”) and determined the Amendment is not considered a troubled debt restructuring or an extinguishment of the existing debt.

 

The Company recorded a total of $1,018 debt discount upon the issuance of ILIAD Note, including the $937 fair value of the embedded derivative liability, $19 of direct transaction costs incurred, and $62 original issue discount. The debt discount is amortized to interest expense over the term of the loan. Amortization of the debt discount was $594 for the year ended December 31, 2019 and was included in interest expense in the accompanying Statements of Operations.

 

As at December 31, 2019, except the convertible bonds held by MGL and ILIAD, the conversion option of the convertible bonds had expired. As of December 31, 2019 and 2018, the carrying amounts of convertible bonds are $55,907 and $55,000, net of unamortized debt discount of $424 and $nil, respectively. As of the date of issuance of the accompanying consolidated financial statements, except for the ILIAD Note, the remaining principal amount of the convertible bonds of $55,000 remained unpaid, which are all due within the next 12 months.

 

  18. Consideration Payable

 

Consideration payable of $54,000 and $53,824 as of December 31, 2019 and 2018 mainly represented: i) unpaid purchase consideration of Sinsin of $42,723 and $43,595 as of December 31, 2019 and 2018, respectively; ii) Accrued interest for the unpaid purchase consideration of Sinsin of $11,277 and $8,712 with an interest rate of 6% for the unpaid purchase price, as of December 31, 2019 and 2018, respectively; iii) unpaid purchase consideration of Heliostixio of $nil and $1,517 as of December 31, 2019 and 2018, respectively (see Note 5(1) Acquisition of Heliostixio).

 

 

 

 

  F-33  
 

 

  19. Amount Due to an Affiliate

 

      December 31,     December 31,  
      2019     2018  
  Amount due to an affiliate, current   $ 9,128     $ 8,819  
  Amount due to an affiliate, noncurrent     1,728        
  Total amount due to an Affiliate   $ 10,856     $ 8,819  

 

Amount due to an affiliate includes: i) payment made by Sinsin on the behalf of the Group of $8,819 as of December 31, 2019 and 2018, which is classified as amount due to an affiliate, current; ii) a borrowing of $729 (EUR 650) form Sinsin on February 20, 2019 with an interest rate of 5% per annum which will mature on December 31, 2024, of which $146 will be paid in 2020 and classified as amount due to an affiliate, current; ii) a borrowing of $1,308 (EUR 1,165) from Sinsin on October 14, 2019 with an interest rate of 4.5% per annum which will mature on December 31, 2027, of which $163 will be paid in 2020 and classified as amount due to and affiliate, current.

 

  20. Ordinary Shares

 

On December 6, 2017, the Group enacted a one-for-ten reverse stock split as approved by the Group’s extraordinary general meeting. On November 12, 2018, the Group enacted a one-for-ten reverse stock split as approved by the Group’s extraordinary general meeting. All share and per share amounts in the consolidated financial statements have been retroactively restated to reflect the reverse stock split. The authorized shares of ordinary shares were 500,000,000 shares of a par value of $0.0001.

 

During the year ended December 31, 2019 and 2018, the Group issued 107,000 and 663,460 restricted ordinary shares to core management members and other management, respectively (see Note 22 Share-based Compensation).

 

On January 17, 2019, the Company announced the entry into share purchase agreements with certain existing shareholders (including certain key management personnel of the Company) and other investors, to purchase an aggregate of 6,600,000 ordinary shares of the Company at a price of US$1.16 per share, for a total consideration of $7,656. The transaction was closed as of April 12, 2019.

 

The issued ordinary share of the Company as of December 31, 2019 and 2018 was 14,621,125 shares and 7,914,125 shares, respectively.

 

  21. Noncontrolling Interests

 

On July 25, 2019, the Company purchased the 20% equity interest of SR II and 30% equity interest of SR V, subsidiaries of the Company in Italy, from Green Equity S.à r.l. (“Green Equity”), the minority shareholder of SR II and SR V. The purchase price was $75, and the carrying amount of the noncontrolling interest of SR II and SR V was $1,213 as of the purchase date. Green Equity also waived the amount due from SR II and SR V of $1,140.

 

During the year ended December 31, 2019, as a result of purchasing all noncontrolling interest of SR II and SR V, the Company derecognized the noncontrolling interest of $1,213, and the difference between the purchase price together with the debt forgiveness mount, and the carrying amount of noncontrolling interest was recorded in additional paid-in capital, which was $2,278.

 

 

  F-34  
 

 

  22. Share-based Compensation

 

The Company measures employee share-based compensation expense for all share-based compensation awards based on the grant-date fair value and recognizes the cost in the financial statements over the employee requisite service period.

 

During the years ended December 31, 2019, 2018 and 2017, the total share-based compensation expense was $821, $2,756 and $798, respectively. Among them, $821, $2,726 and $1,174 were attributable to continuing operations, respectively. The following table summarizes the consolidated share-based compensation expense from continuing operations, by type of awards:

 

      For the Years Ended  
      December 31,     December 31,     December 31,  
      2019     2018     2017  
  Employee stock options   $ 305     $ 1,799     $ 886  
  Restricted stock grants     516       927       288  
  Total share-based compensation expense   $ 821     $ 2,726     $ 1,174  

 

The following table summarizes the consolidated share-based compensation by line items from continuing operations:

 

      For the Years Ended  
     

December 31,

2019

   

December 31,

2018

   

December 31,

2017

 
  General and administrative   $ 768     $ 2,579     $ 1,131  
  Sales, marketing and customer service     53       147       43  
  Total share-based compensation expense   $ 821     $ 2,726     $ 1,174  

 

As share-based compensation expense recognized in the consolidated statements of operations is based on awards ultimately expected to vest, it has been reduced for estimated forfeitures. Forfeitures are required to be estimated at the time of grant and revised, if necessary, in subsequent periods if actual forfeitures differ from those estimates. 

 

Determining Fair Value

 

Valuation and Amortization Method —The Company estimates the fair value of service-based and performance-based stock options granted using the Black-Scholes option-pricing formula. The fair value is then amortized on a straight-line basis over the requisite service periods of the awards, which is generally the vesting period. In the case of performance-based stock options, amortization does not begin until it is determined that meeting the performance criteria is probable. Service-based and performance-based options typically have a ten-year life from date of grant and vesting periods of four years.

 

Expected Term —The Company’s expected term represents the period that the Company’s share-based awards are expected to be outstanding. For awards granted subject only to service vesting requirements, the Group utilizes the simplified method for estimating the expected term of the share-based award, instead of historical exercise data. For its performance-based awards, the Group has determined the expected term life to be 6.25 years based on contractual life and the seniority of the recipient.

 

 

 

 

  F-35  
 

 

Expected Volatility —The Company uses historical volatility of the price of its ordinary shares to calculate the volatility for its granted options.

 

Expected Dividend —The Company has never paid dividends on its ordinary shares and currently does not intend to do so, and accordingly, the dividend yield percentage is zero for all periods. 

 

Risk-Free Interest Rate — The Company bases the risk-free interest rate used in the Black-Scholes valuation model upon the implied yield curve currently available on U.S. Treasury zero-coupon issues with a remaining term equal to the expected term used as the assumption in the model.

 

Assumptions used in the determination of the fair value of share-based payment awards using the Black-Scholes model for stock option grants were as follows:

 

      For the Years Ended  
     

December 31,

2019

   

December 31,

2018

   

December 31,

2017

 
  Expected term     6.25       6.25       6.25  
  Risk-free interest rate     1.55%-2.51%       2.54%-3.03%       1.81%-2.30%  
  Expected volatility     575%-605%       624%-756%       284%-763%  
  Expected dividend yield     0%       0%       0%  

 

Equity Incentive Plan

 

On May 8, 2015, the Company adopted the 2015 Equity Incentive Plan (the “2015 Plan”) which permits the Company to grant stock options to directors, officers or employees of the Company or others to purchase shares of Ordinary Stock of the Company through awards of incentive and nonqualified stock options (“Option”), Restricted Stock or Unrestricted Stock and stock appreciation rights (“SARs”) which was approved by the shareholders. The total number of shares which may be issued under the 2015 Plan is 9% of the number of outstanding and issued ordinary shares of the Company. The Option Price per Share shall be determined by the compensation committee of the Board (“Compensation Committee”), unless expressly approved by the Compensation Committee, shall not be less than 100% of the fair market value of the shares on the date an Option is granted. 

 

During the year ended December 31, 2019 and 2018, the Board of Directors approved the grants of Restricted Stock Units (“RSUs”) to core management members and other management, pursuant to the terms of the 2015 Plan. The total number of RSUs granted is 107,000 and 663,460 shares, respectively. The vesting schedules are 100% vested at the grant date for all the grants. All these shares were issued to the management during the year ended December 31, 2019 and 2018. The Group used the market price of its shares at grant date as the fair value of the RSUs in calculating the share based compensation expense.

 

 

 

 

  F-36  
 

 

The following table summarizes the Group’s stock option activities:

 

      Shares     Weighted-Average Exercise Price Per Share     Weighted-Average
Remaining Contractual Term
    Aggregate Intrinsic Value ($000)  
  Outstanding as of December 31, 2016     550,760       82       7.40     $ 60,032  
  Granted     325,300       4                  
  Exercised                            
  Forfeited/expired     (374,800 )     36                  
  Outstanding as of December 31, 2017     501,260       66       7.03     $ 769  
  Granted     287,000       13                  
  Exercised                            
  Forfeited/expired     (528,060 )     10                  
  Outstanding as of December 31, 2018     260,200       212       8.59     $  
  Granted     65,000       3                  
  Exercised                            
  Forfeited/expired     (70,000 )     4                  
  Outstanding as of December 31, 2019     255,200       19       6.70     $  
  Vested and exercisable as of December 31, 2019     139,450       24       6.47     $  
  Expected to vest as of December 31, 2019     124,355       26       6.45     $  

 

The following table presents the exercise price and remaining life information about options exercisable at December 31, 2019:

 

  Range of exercise price   Shares Exercisable     Weighted Average Remaining Contractual Life     Weighted Average
Exercise Price
    Aggregate Intrinsic ($000)  
  $118 - $172     1,000       5.13     $ 172.00     $  
  $40 - $117     42,300       6.38     $ 63.61        
  $2 - $39     93,650       7.33     $ 5.60        
  $1-$2     2,500       9.69     $ 1.96        
        139,450                     $  

 

Following is a summary of our restricted stock awards as follows:

 

      Number of Shares     Weighted Average Grant-Date Fair Value  
  Restricted stock units at December 31, 2016     217,059     $ 151  
  Granted            
  Forfeited     (1,250 )     177  
  Restricted stock units at December 31, 2017     215,809       151  
  Granted     663,460       1  
  Forfeited     (250 )     185  
  Restricted stock units at December 31, 2018     879,019       38  
  Granted     107,000       3  
  Forfeited     -       -  
  Restricted stock units at December 31, 2019     986,019     $ 34  

 

 

 

 

  F-37  
 

 

Changes in the Group’s non-vested stock awards are summarized as follows:

 

      Time-based Options     Restricted Stock  
      Shares     Weighted Average Exercise Price Per Share     Shares     Weighted Average Grant-Date Fair Value Per Share  
  Non-vested as of December 31, 2016     430,358     $ 46       4,750     $ 178  
  Granted     325,300       4              
  Vested     (100,663 )     43       (2,187 )     128  
  Forfeited     (275,075 )     48       (1,250 )     177  
  Non-vested as of December 31, 2017     379,920     $ 9       1,313     $ 264  
  Granted     287,000       13       663,460       1  
  Vested     (87,285 )     25       (663,273 )     1  
  Forfeited     (396,335 )     13       (250 )     185  
  Non-vested as of December 31, 2018     183,300     $ 8       1,250     $ 185  
  Granted     65,000       3       107,000       3  
  Vested     (70,050 )     17       (108,250 )     5  
  Forfeited     (62,500 )     4              
  Non-vested as of December 31, 2019     115,750     $ 11           $  

 

The weighted average grant date fair value of option per share are $3.48, $12.54, and $3.88 for the years ended December 31, 2019, 2018 and 2017. As of December 31, 2019, the unrecognized compensation costs are expected to be recognized over a weighted average period of approximately 1.72 years.

 

The total fair value of shares vested during the years ended December 31, 2019, 2018 and 2017 was $690, $1,382 and $2,955, respectively. There were no changes to the contractual life of any fully vested options during the years ended December 31, 2019, 2018 and 2017.

 

  23. Income Taxes

 

Loss before provision for income taxes is attributable to the following geographic locations for the years ended December 31:

 

      2019     2018     2017  
  United States   $ (4,926 )   $ (6,946 )   $ (24,757 )
  Foreign Countries     (10,130 )     1,141       (1,620 )
      $ (15,056 )   $ (5,805 )   $ (26,377 )

 

 

 

  F-38  
 

 

The provision for income taxes consists of the following for the years ended December 31:

 

      2019     2018     2017  
  Current tax:                        
  Federal tax   $     $     $  
  State tax     7       7       7  
  Foreign countries     275       408       226  
  Total current tax     282       415       233  
  Deferred tax:                        
  Federal tax   $ (9 )     15       (16 )
  State tax     (4 )            
  Foreign countries     (177 )     (98 )     (80 )
  Total deferred tax     (190 )     (83 )     (96 )
  Total provision for income taxes   $ 92     $ 332     $ 137  

 

 

The reconciliation between the actual income tax expense and income tax computed by applying the statutory U.S. Federal income tax rate for the year ended December 31 is as follows:

 

      2019     2018     2017  
  Provision for income taxes at U.S. Federal statutory rate   $ (3,161 )   $ (1,219 )   $ (9,232 )
  State taxes, net of federal benefit     (944 )     (168 )     (610 )
  Foreign taxes at different rate     314       902       1,059  
  Non-deductible expenses     (936 )     (231 )     345  
  Tax law changes           188       22,813  
  Valuation allowance     6,463       45,870       (17,752 )
  Other     (209 )           5,086  
  Disposition of subsidiaries           (45,193 )      
  Impairments and intangible amortization                 (3,761 )
  Share Based Compensation     12       579       279  
  Gain on debt modification           (396 )     (1,475 )
  (Reversal) accrual of tax penalty     (1,447 )           3,385  
      $ 92     $ 332     $ 137  

  

On December 22, 2017, the U.S. enacted the Tax Cuts and Jobs Act (“TCJA” or the “Act”) (which is commonly referred to as “U.S. tax reform”). Among other provisions, the Act reduces the top U.S. federal corporate tax rate from 35% to 21%, requires companies to pay a one-time transition tax on earnings of certain foreign subsidiaries that were previously tax deferred, changes the rules related to uses and limitations of net operating loss carry forwards created in tax years beginning after December 31, 2017, and creates new taxes on certain foreign sourced earnings. The Company has reflected the changes resulting from the Act in the financial statements for the period of enactment, the year ended December 31, 2017. The change in corporate rate resulted in a $22,813 decrease in the Company's gross deferred tax assets, with an offsetting decrease in valuation allowance of the same amount. The Company is not subject to a one-time repatriation tax as no aggregate foreign accumulated earnings and profits existed in the foreign subsidiaries as of December 31, 2019 and 2018. The Company has accounted for additional tax liability in 2018 arising from Global Intangible Low-Taxed Income of $892 which accounted for as a period cost. In accordance with Staff Accounting Bulletin No. 118, the Company determined that the measurement of deferred tax assets and liabilities, as noted above, was accurate and no other adjustments relating to the Act were necessary.

 

 

 

  F-39  
 

 

Deferred income taxes reflect the net tax effects of loss carry forwards and temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. Significant components of the Group’s deferred tax assets and liabilities for federal, state and foreign income taxes are as follows at December 31 are presented below:

 

    2019     2018  
Deferred tax assets:                
Net operating loss carry forwards   $ 77,101     $ 66,775  
Temporary differences due to accrued warranty costs     467       459  
Impairment of property, plant and equipment, and project assets     1,464        
Investment in subsidiaries     3,670       4,134  
Credits     16       16  
Allowance for bad debts     1,502       21  
Fair value adjustment arising from subsidiaries acquisition     806       4,949  
Stock compensation     858       661  
Unrealized loss on derivatives     5,095       5,006  
Unrealized investment loss     5,409       4,314  
Other temporary differences     3,646       7,318  
Valuation allowance     (99,976 )     (93,513 )
Total deferred tax assets     58       140  
Deferred tax liabilities:                
Fair value adjustment arising from subsidiaries acquisition     (3,227 )     (515 )
Other     (279 )      
Total deferred tax liabilities     (3,506 )     (515 )
Net deferred tax liabilities   $ (3,448 )   $ (375 )

 

As of December 31, 2019, the Group had a net operating loss carry forward for federal income tax purposes of approximately $319,439, which will start to expire in the year 2027. The Group had a total state net operating loss carry forward of approximately $154,237, which will start to expire in the year 2027. The Group has foreign net operating loss carry forward of $7,801, some of which begin to expire in 2020. The Group had a federal AMT credit of $16, which does not expire.

 

Utilization of the federal and state net operating losses is subject to certain annual limitations due to the “change in ownership” provisions of the Internal Revenue Code of 1986 and similar state provisions. However, the annual limitation may be anticipated to result in the expiration of net operating losses and credits before utilization.

 

The Group recognizes deferred tax assets if it is more likely than not that those deferred tax assets will be realized. Management reviews deferred tax assets periodically for recoverability and makes estimates and judgments regarding the expected geographic sources of taxable income in assessing the need for a valuation allowance to reduce deferred tax assets to their estimated realizable value. Realization of the Group’s deferred tax assets is dependent upon future earnings, if any, the timing and amount of which are uncertain. Because of the Group’s lack of earnings history, the net deferred tax assets have been fully offset by a valuation allowance in the U.S. The valuation allowance increased by $6,463 and $45,870 during the years ended December 31, 2019 and 2018, and decreased by $17,752 for the year ended December 31, 2017, respectively.

 

 

 

  F-40  
 

 

The Group had no unrecognized tax benefits as of December 31, 2019 and 2018. The Group currently files income tax returns in the U.S., as well as California, Hawaii, New Jersey, and certain other foreign jurisdictions. The Group is currently not the subject of any income tax examinations. The Group’s tax returns generally remain open for tax years after 2011.

 

The Group has analyzed the impact of adopting ASC 606 on the Group's financial statements and disclosures. There is no material impact on the financial statements of adopting ASC 606. Therefore, there is no material tax impact either.

 

The Coronavirus Aid, Relief and Economy Security (CARES) Act (“the CARES Act, H.R. 748”) was signed into law on 27 March 2020. The CARES Act temporarily eliminates the 80% taxable income limitation (as enacted under the Tax Cuts and Jobs Act of 2017) for NOL deductions for 2018-2020 tax years and reinstated NOL carrybacks for the 2018-2020 tax years. Moreover, the CARES Act also temporarily increases the business interest deduction limitations from 30% to 50% of adjusted taxable income for the 2019 and 2020 taxable year. Lastly, the Tax Act technical correction classifies qualified improvement property as 15-year recovery period, allowing the bonus depreciation deduction to be claimed for such property retroactively as if it was included in the Tax Act at the time of enactment. The company does not anticipate a material impact on its financial statements as of December 31, 2019 due to the recent enactment.

 

  24. Net Loss Per Share

 

As a result of the net loss for the years ended December 31, 2019, 2018 and 2017, there is no dilutive impact to the net loss per share calculation for the period. 

 

The following table presents the calculation of basic and diluted net loss per share: 

 

      December 31,     December 31,     December 31,  
      2019     2018     2017  
  Numerator:                        
  Numerator for net loss from continuing operations per share-basic and diluted   $ (15,258 )   $ (6,168 )   $ (26,682 )
  Numerator for net loss from discontinued operations per share-basic and diluted   $     $ (6,114 )   $ (64,398 )
  Denominator:                        
  Basic weighted-average ordinary shares     12,733,062       7,262,023       6,826,633  
  Diluted weighted-average ordinary shares     12,733,062       7,262,023       6,826,633  
  Basic and diluted net loss per share-continuing operations   $ (1.2)     $ (0.9 )   $ (4 )
  Basic and diluted net loss per share-discontinued operations   $     $ (0.8 )   $ (9 )

 

For the years ended December 31, 2019, 2018 and 2017, the following securities were excluded from the computation of diluted net loss per share as inclusion would have been anti-dilutive.

 

      December 31,     December 31,     December 31,  
      2019     2018     2017  
  Share options and non-vested restricted stock     255,200       261,450       502,573  
  Convertible bonds (see Note 17)     598,580       465,430       1,633,851  
  Total     853,780       726,880       2,136,424  

 

  25. Leases

 

The Group has operating leases for its PV stations and office facilities. The Group's leases have remaining terms of less than one year to approximately twenty years. Leases with an initial term of 12 months or less are not recorded on the balance sheet; the Company recognizes lease expense for these leases on a straight-line basis over the lease term.

 

The components of lease expenses were as below:

 

   

For the year ended

December 31, 2019

 
Short term lease expenses   $ 570  
Operating lease expenses excluding short term lease expenses   $ 510  

 

Maturities of operating lease liabilities as of December 31, 2019 were as follows:

 

  Maturity of Lease Liabilities   Operating Leases  
  2020   $ 546  
  2021     378  
  2022     223  
  2023     175  
  2024     111  
  Thereafter     1,402  
  Total lease payments     2,835  
  Less: interest     (909 )
  Present value of lease payments   $ 1,926  
  Operating lease liabilities, current   $ 426  
  Operating lease liabilities, noncurrent   $ 1,500  

 

 

 

  F-41  
 

 

Supplemental information related to operating leases was as follows:

 

     

For the year ended

December 31, 2019

 
  Cash paid for amounts included in the measurement of lease liabilities   $ 497  
  New operating lease assets obtained in exchange for operating lease liabilities   $ 2,419  

 

Weighted average remaining lease term     11.8 Years
Weighted average discount rate     6.16%

  

  26. Commitments and Contingencies

 

  (a) Commitments

 

Product Warranties —The Group offers the industry standard warranty up to 25 years for its PV panels and industry standard five to ten years on inverter and balance of system components. Due to the warranty period, the Group bear the risk of warranty claims long after the Group has shipped product and recognized revenue. In the Group’s cable, wire and mechanical assemblies business, the Group’s historically warranty claims have not been material. In the Group’s solar PV business, the greatest warranty exposure is in the form of product replacement.

 

During the quarter ended September 30, 2007 and continuing through the fourth quarter of 2010, the Group installed own manufactured solar panels. Since 2011, due to the absence of historical material warranty claims and identical warranty terms, the Group has not recorded any additional warranty provision relating to solar energy systems sold. The accrued warranty reserve is $1,538 as of December 31, 2019 and 2018.

 

PV construction contracts entered into during the recent years included provisions under which the Group agreed to provide warranties to the customers. The warranty the Group offers to its customers is identical to the warranty offered to the Group by its suppliers, therefore, the Group passes on all potential warranty exposure and claims, if any, with respect systems sold by the Group to its suppliers. Therefore, the Group has not recorded warranty reserve related to solar energy systems as of December 31, 2019 and 2018. 

  

Capital commitments —As of December 31, 2019 and 2018, the Group had capital commitments of approximately $5,144 and $6,617, respectively, from continuing operations. These capital commitments were solely related to contracts signed with vendors for procurement of services or PV related products used for the construction of solar PV systems being developed by the Group.

 

The capital commitments as at balance sheet dates disclosed above do not include those incomplete acquisitions for investment and business as at balance sheet dates as the agreements could either be terminated unconditionally without any penalty or cancelable when the closing conditions as specified in the agreements could not be met.

 

  (b) Contingencies

 

On January 26, 2018, Sinsin Group filed a complaint against the Group requesting the payment of outstanding purchase price and related interest of $43,595 (EUR 38,054). On June 25, 2018, an interim measures judgment was made which appointed an interim management of Sinsin, consisting of two members elected by Sinsin Group and one member elected by the Group. The interim management would manage the bank accounts of Sinsin and collect the proceeds of electric energy revenue. As of the issuance of the financial statements, this case is still on the proceeding, and it is uncertain how the court will rule.

 

From time to time, the Group is involved in various other legal and regulatory proceedings arising in the normal course of business. While the Group cannot predict the occurrence or outcome of these proceedings with certainty, it does not believe that an adverse result in any pending legal or regulatory proceeding, individually or in the aggregate, would be material to the Group’s consolidated financial condition or cash flows; however, an unfavorable outcome could have a material adverse effect on the Group’s results of operations. 

 

 

 

  F-42  
 

 

  27. Concentration Risk

 

A substantial percentage of the Group’s net revenue comes from sales made to a small number of customers to whom sales are typically made on an open account basis. There was no customer of which the revenue accounted for 10% or more of total net revenue for the years ended December 31, 2019, 2018 and 2017.

 

Details of customers accounting for 10% or more of total accounts receivable and notes receivable as of December 31, 2019 and 2018, respectively are:

 

      December 31, 2019     December 31, 2018  
  Customer         % of Total           % of Total  
  Valta Solar LLC   $ 5,432       32%     $ 8,366       25%  
  Thermi Venture SA.           –%       6,763       20%  
  AES Distribution Energy, LLC           –%       3,525       11%  
  KDC Solar Designed LLC           –%       4,823       15%  
      $ 5,432       32%     $ 23,477       71%  

 

  28. Segment information

 

Operating segments are defined as components of a company which separate financial information is available that is evaluated regularly by the client operating decision maker in deciding how to allocate resources and in assessing performance. The Group’s chief operating decision maker is the Chairman, Mr. Peng. Based on the financial information presented to and reviewed by the chief operating decision maker, the Group has determined that it has a single operating and reporting segment: solar energy products and services. The types of products and services in this single segment primarily include: (i) Sales of PV components, (ii) Sales of pre-development solar project, (iii) Sales of PV project assets, (iv) Electricity revenue under PPAs, (v) Bitcoin mining related business, (vi) Sales of hays and others.

 

Net sales by major product and services are as follows:

 

      For the years ended December 31,  
      2019     2018     2017  
  Sales of PV components   $ 80,941     $ 93,547     $ 111,795  
  Sales of pre-development solar project     (2,835 )     15,794        
  Sales of PV project assets     9,563       10,809       6,042  
  Electricity revenue with PPAs     3,368       3,043       2,793  
  Bitcoin mining related business     4,197       1,052        
  Sales of hays and others     2,649       1,337       890  
      $ 97,883     $ 125,582     $ 121,520  

  

 

 

 

  F-43  
 

 

Net sales by geographic location are as follows:

 

      For the years ended December 31,  
  Location (a)   2019     2018     2017  
  United Kingdom   $ 979     $ 932     $ 6,903  
  Australia     80,518       91,381       112,174  
  United States     4,320       18,721        
  Greece     1,138       378        
  Japan     9,563       12,437       511  
  Italy     1,365       1,733       1,932  
      $ 97,883     $ 125,582     $ 121,520  

 

  (a) Sales are attributed to countries based on location of customers.

 

Geographic information, which is based upon physical location, for long-lived assets was as follows:

 

  Location  

December 31,

2019

   

December 31,

2018

 
  Greece   $ 18,121     $ 2,637  
  United States     16,556       16,368  
  Italy     2,950       9,038  
  Japan     2        
  UK     9,657       9,642  
  Canada     1,190        
  Australia     1,952       2,285  
      $ 50,428     $ 39,970  

 

  29. Related Party Transactions

 

The amount due from related parties of $154 and $39 as of December 31, 2019 and 2018 represented the advance payment to management for the Group’s business operation.

 

The amount due to related parties of $nil and $79 as of December 31, 2019 and 2018 mainly represented the short term borrowing made from related parties.

 

In 2018, the Group disposed SPI China to Lighting Charm, an affiliate of Ms. Shan Zhou, the spouse of Xiaofeng Peng, the Group’s Chairman of the Board of Directors and Chief Executive Officer. As of the December 10, 2018, the disposition was closed (see Note 4(1) Disposition of SPI China). 

 

During year ended December 31, 2019, SPI China paid operation expenses of $653 on behalf of the Company, and the payable to SPI China was waived by SPI China.

 

 

 

 

  F-44  
 

 

  30. Subsequent Events

 

(1) Dispute on shareholding of Solar Juice

 

In May 2020, Solar Juice issued 100 shares in an amount of AU$20,000 per share to Andrew Burgess, Rami Fedda and Allied Energy, the minority shareholders of Solar Juice. After the issuance of the shares, the Group’s shareholding in Solar Juice decreased from 80% to 40%. The issuance and change of shares have been submitted, recorded and maintained by the Australia Securities and Investment Commission (“ASIC”). With the change in shareholding, the board directors of Solar Juice appointed by the Group decreased from four directors to two directors in May 2020, with five other directors.

 

There’s dispute between the Group and the minority shareholders on the issuance of shares of Solar Juice. The Group filed an affidavit to the Federal Court of Australia on May 29, 2020 to invalidate the aforesaid share issuance and appointment and removal of directors, and expect a hearing on July 3, 2020. The dispute is on the proceeding and the Group could not estimate the outcome as of the date of issuance of the consolidated financial statements.

 

(2) Coronavirus 2019

 

The spread of COVID-19 around the world in the first quarter of 2020 has caused significant volatility in the markets of U.S., Europe and rest of the world. There is significant uncertainty around the breadth and duration of business disruptions related to COVID-19, as well as its impact on the economy of U.S. and international markets and, as such, the extent of the business disruption and the related financial impact cannot be reasonably estimated at this time.

 

 

(3) Sale of Sun Roof I

 

On March 16, 2020, the Company closed the sale of Sun Roof I assets, a 479 kWp rooftop solar project located in Aprilia, Italy, that has been in operation since 2012. The sale price was approximately $1.2 million (EUR 1.1 million) before transaction fees.

 

The Company has evaluated subsequent events through the date of issuance of the consolidated financial statements, there were no other subsequent events occurred that would require recognition or disclosure in the consolidated financial statements.

 

 

 

 

 

 

 

 

  F-45  

Exhibit 4.55

 

 

  

 

 

 

 

MEMBERSHIP INTEREST PURCHASE AGREEMENT

 

FOR

 

EACH OF THE COMPANIES REFERRED TO HEREIN

 

 

 

DATED AS OF July 15th , 2019

 

 

 

 

BETWEEN

 


SPI SOLAR, INC.

 


AND

 


SULUS LLC

 

 

 

 

 

 

 

     

 

 

TABLE OF CONTENTS

 

 

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ARTICLE I. DEFINITIONS AND PRINCIPLES OF INTERPRETATION 1
Section 1.1 Definitions 1
Section 1.2 Rules of Interpretation. In this Agreement: 13
ARTICLE II. MEMBERSHIP INTEREST PURCHASE AND SALE; JOINT DEVELOPMENT 14
Section 2.1 Membership Interest Purchase and Sale. 14
Section 2.2 Purchase Price. 14
Section 2.3 Purchase Price Adjustments. 15
Section 2.4 Seller’s Development Obligations. 15
Section 2.5 Interconnection Cost Reimbursement and Crediting System. 16
Section 2.6 Unwind. 16
ARTICLE III. 17
REPRESENTATIONS AND WARRANTIES OF SELLER 17
Section 3.1 Organization and Good Standing. 17
Section 3.2 Authorization, Execution and Enforceability 18
Section 3.3 Development 18
Section 3.4 Ownership of Company Interests 18
Section 3.5 Material Project Documents 19
Section 3.6 Governmental Approvals. 19
Section 3.7 Legal Proceedings 20
Section 3.8 No Conflict; No Consents. 20
Section 3.9 Governmental Approvals and Filings 21
Section 3.10 Assets and Real Estate Interests. 21
Section 3.11 Insurance 22
Section 3.12 Environmental Claims. 22
Section 3.13 Compliance with Laws. 23
Section 3.14 No Employees. 24
Section 3.15 Financial Statements and Balance Sheets. 24
Section 3.16 Intellectual Property. 25
Section 3.17 Indebtedness 25
Section 3.18 Bankruptcy 25

 

 

 

 

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Section 3.19 Books and Records 25
Section 3.20 Affiliate Transactions 25
Section 3.21 Taxes. 25
Section 3.22 FERC and State Energy Regulation 27
Section 3.23 Interconnection 28
Section 3.24 Compliance. 28
Section 3.25 OFAC 28
Section 3.26 No Use or Zoning Changes 28
Section 3.27 Historic Sites 29
Section 3.28 Full Disclosure 29
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF PURCHASER 29
Section 4.1 Organization and Good Standing 29
Section 4.2 Authorization, Execution and Enforceability 29
Section 4.3 Legal Proceedings 29
Section 4.4 No Conflict 29
Section 4.5 Governmental Approvals and Filings. 30
Section 4.6 Investment Intent 30
Section 4.7 Unregistered Securities 30
ARTICLE V. CONDITIONS 30
Section 5.1 Conditions Precedent to Obligations of Purchaser on each Closing Date 30
Section 5.2 Conditions Precedent to Obligations of Seller on Each Closing Date 32
Section 5.3 Conditions Precedent to Obligations of Purchaser on the Development Tasks Milestone Payment Date 33
Section 5.4 Conditions Precedent to Obligations of Purchaser on the NTP Payment Date 33
Section 5.5 Conditions Precedent to Obligations of Purchaser on the COD Payment Date 34
Section 5.6 Procedure for Satisfaction of Conditions 34
Section 5.7 Expedited Resolution of Disputes Over Satisfaction of Conditions 34

 

 

 

 

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ARTICLE VI. COVENANTS 35
Section 6.1 Tax Filings. 35
Section 6.2 Characterization of the Transaction 36
Section 6.3 Transfer Taxes 36
Section 6.4 Taxes 37
Section 6.5 Taxes. 37
Section 6.6 Conduct of Operations During Pre-Closing Period. 38
Section 6.7 Cooperation 40
Section 6.8 Supplement to Disclosure Schedules 40
Section 6.9 Exclusivity 41
Section 6.10 Purchaser Financing 41
ARTICLE VII. TERMINATION 42
Section 7.1 Termination 42
Section 7.2 Consequences of Termination 43
ARTICLE VIII. INDEMNIFICATION 43
Section 8.1 Survival. 43
Section 8.2 Indemnification by Seller 44
Section 8.3 Indemnification by Purchaser 44
Section 8.4 Limitations on Liability 44
Section 8.5 Procedure for Third-Party Claims. 46
Section 8.6 Indemnification Procedures 48
ARTICLE IX. GENERAL PROVISIONS 50
Section 9.1 Notices 50
Section 9.2 Third-Party Beneficiaries 51
Section 9.3 Amendment and Waiver 51
Section 9.4 Binding Nature; Assignment; Consent to Assignment 51
Section 9.5 Governing Law 51
Section 9.6 Jurisdiction; Service of Process 51
Section 9.7 Counterparts 52
Section 9.8 Headings 52

 

 

 

 

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Section 9.9 Severability 52
Section 9.10 Entire Agreement 52
Section 9.11 No Agents 52
Section 9.12 Expenses 52
Section 9.13 Confidentiality 52
Section 9.14 Setoff. . 53
Section 9.15 Further Assurances 53
Section 9.16 Joint Negotiations and Preparation of Agreement 54
Section 9.17 No Joint Venture 54

 

 

 

ANNEXES

 

 

Annex 1A Companies; Company Interests; Projects; Project Sites; LLC Agreements
Annex 1B Purchase Price
Annex 1C Termination Date
Annex 2A Assets of the Companies
Annex 2B Real Property Documents
Annex 3 Material Project Documents
Annex 4 Governmental Approvals
Annex 5 Insurance Policies
Annex 6 Disclosed Conditions
Annex 7 Affiliate Transactions
Annex 8 Liabilities
Annex 9 Estoppels Required from Counterparties
Annex 10 Consents Required
Annex 11 [Reserved]
Annex 12 Environmental Reports

 

 

 

 

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EXHIBITS

 

 

Exhibit 1 Membership Interest Assignment Agreement (form)
Exhibit 2 Seller Parent Guaranty
Exhibit 2A Seller Parent Certificate
Exhibit 3 Manager’s Certificate (form)
Exhibit 4 Officer’s Certificate (form)
Exhibit 5 Resignation (form)
Exhibit 6 Estoppel Certificate (form)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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MEMBERSHIP INTEREST PURCHASE AGREEMENT

 

This MEMBERSHIP INTEREST PURCHASE AGREEMENT dated as of July 15th , 2019 (the “Effective Date”) is entered into by and between SULUS LLC, an Oregon limited liability company (the “Seller”), and SPI SOLAR, INC., a Delaware corporation (together with its successor and permitted assigns, the “Purchaser”). Seller and Purchaser are sometimes hereinafter referred to individually as a “Party” and collectively as the “Parties”.

 

PRELIMINARY STATEMENTS:

 

1.                  Seller is the sole beneficial and record owner of one hundred percent (100%) of the limited liability company membership interests (the “Company Interests”) in the eight (8) limited liability companies described in Annex 1A (each, a “Company” and collectively, the “Companies”);

 

2.                  Each Company is developing the solar photovoltaic project(s) associated with such company as the more particularly described on Annex 1A (each a “Project”);

 

3.                  Seller and Purchaser wish to jointly develop each Project on the terms and conditions provided herein; and

 

4.                  Seller wishes to sell to Purchaser and Purchaser wishes to purchase from Seller, each of the Company Interests on the terms and conditions provided herein.

 

NOW, THEREFORE, in consideration of the mutual agreements, covenants, representations and warranties set forth herein, and intending to be legally bound hereby, the Parties agree as follows:

 

ARTICLE I.

DEFINITIONS AND PRINCIPLES OF INTERPRETATION

 

Section 1.1     Definitions. The following capitalized terms shall have the respective meanings set forth below:

 

Acquisition Proposal” means any inquiry, proposal or offer from any Person (other than Purchaser or any of its Affiliates) that pertains to or that could reasonably be expected to pertain to (i) a merger, consolidation, liquidation, recapitalization, share exchange or other business combination transaction involving any Company; (ii) the issuance or acquisition of any Equity Securities of any Company; or (iii) the sale, lease, exchange or other disposition of any significant portion of any Company’s assets and properties of every kind, nature, character and description (whether real, personal or mixed, whether tangible or intangible and wherever situated), including the goodwill related thereto, operated, owned or leased by such Company.

 

Affiliate” means, with respect to any Party hereto, any Person directly or indirectly controlling, controlled by or under common control with such party. The term “control” (including the terms “controlled by” and “under common control with”) as used in the preceding sentence means the possession, directly or indirectly, of the power to direct or cause the direction of management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

 

 

 

 

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Agreement” means this Membership Interest Purchase Agreement and the Annexes referred to herein and attached hereto, as originally executed and as amended, modified or supplemented from time to time in accordance with its terms.

 

Applicable Laws” means any treaty, constitution, law, statute, ordinance, zoning requirement, rule, order, code, decree, guideline, treaty, regulation, policy, directive or similar form of decision or any interpretation or administration of the foregoing, which is legally binding on Seller, any Company or any Project and has been enacted, issued or promulgated by any Governmental Authority.

 

Arbitrator” has the meaning provided in Section 5.7.

 

Assets” means all the Real Estate Interests and Personal Property Interests of each Company.

 

Assumed Interconnection Cost Rate” means nine and a half cents per direct-current watt ($0.095/Wdc).

 

Balance Sheet” means, as of the applicable Balance Sheet Date, the unaudited balance sheet of a Company prepared in accordance with GAAP and presenting fairly the financial position of the applicable Company.

 

Balance Sheet Date” means, with respect to a Company, the Effective Date or the Closing Date for such Company, as applicable.

 

Bankruptcy” or “Bankrupt” as to any Person means the filing of a petition for relief as to any such Person as debtor or bankrupt under the Bankruptcy Code or like provision of law (except if such petition is contested by such Person and has been dismissed within sixty (60) days); insolvency of such Person as finally determined by a court proceeding; filing by such Person of a petition or application to accomplish the same or for the appointment of a receiver or a trustee for such Person or a substantial part of its assets; commencement of any proceedings relating to such Person under any other reorganization, arrangement, insolvency, adjustment of Indebtedness or liquidation law of any jurisdiction, whether now in existence or hereinafter in effect, either by such Person or by another, provided that if such proceeding is commenced by another, such Person indicates its approval of such proceeding, consents thereto or acquiesces therein, or such proceeding is contested by such Person and has not been finally dismissed within sixty (60) days.

 

Bankruptcy Code” means any and all sections and chapters of Title 11 of the United States Code, as in effect from time to time.

 

Base Purchase Price” means, for each Designated Company Interest, an amount equal to the product of (a) the Project Nameplate Capacity for the applicable Company’s Project, multiplied by (b) the Price Per Watt (calculated as of the date on which any installment of the Base Purchase Price is paid), as may be adjusted pursuant to Section 2.3.

 

 

 

 

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Business Day” means any day other than a Saturday, a Sunday or any other day on which banks are authorized by Applicable Law to be closed in New York, New York.

 

Closing” has the meaning provided in Section 2.1(b).

 

Closing Date” has the meaning provided in Section 2.1(b).

 

Closing Date Payment Amount” means an amount equal to twenty percent (20%) of the Base Purchase Price (calculated using the Price Per Watt as of the Closing Date).

 

COD Payment Amount” means, for each Designated Company Interest, an amount equal to one hundred percent (100%) of the Base Purchase Price (calculated as of the COD Payment Date), as adjusted pursuant to Section 2.3(a), less the sum of (i) the Closing Date Payment Amount, (ii) the Development Tasks Milestone Payment Amount, and (iii) the NTP Payment Amount previously paid for such Designated Company Interest.

 

COD Payment Date” means thirty (30) days after the Commercial Operation Date of the applicable Project.

 

Code” means the Internal Revenue Code of 1986, as amended from time to time.

 

Commercial Operation Date” means, with respect to the applicable Project, the “Commercial Operation Date” under the applicable Power Purchase Agreement.

 

Community Solar Purchase Price” means, for each Designated Company Interest, an amount equal to (a) the product of (i) the Project Nameplate Capacity for the applicable Company’s Project, multiplied by (ii) twenty-three cents per direct-current watt ($0.230/Wdc).

 

Company” has the meaning provided in the Preliminary Statements. “Company Interests” has the meaning provided in the Preliminary Statements.

 

Compliance Regulations” means anti-corruption, anti-money laundering, anti-terrorism and economic sanction and anti-boycott laws, including, without limitation, international anticorruption conventions such as the United Nations Convention Against Bribery, the United States Foreign Corrupt Practices Act, and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and in each case any applicable implementing legislation of the foregoing.

 

Condemnation” means an action in condemnation or an eminent domain action commenced or threatened by any Governmental Authority having jurisdiction therefor against all or any part of the Assets of any Company.

 

Confidential Information” has the meaning provided in Section 9.13.

 

Consent” means any written approval, consent, ratification, waiver or authorization by any Person, including any Governmental Approval.

 

 

 

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Covered Dispute” has the meaning ascribed in Section 5.7.

 

Damages” means all losses, claims, liabilities, damages, deficiencies, obligations, fines, payments, expenses (including reasonable costs of investigation and defense and reasonable fees and expenses of legal counsel, accountants and other professional advisors), actions, causes of action, assessments, judgments and amounts paid in settlement or diminutions in value.

 

Designated Company Interest” has the meaning provided in Section 2.1(a).

 

Development Tasks Milestone Payment Amount” means, for each Designated Company Interest, an amount equal to forty percent (40%) of the Base Purchase Price for such Designated Company Interest (calculated as of the Development Tasks Milestone Payment Date), less the Closing Date Payment Amount previously paid for such Designated Company Interest.

 

Development Tasks Milestone Outside Date” has the meaning provided in Section 2.6.

 

Development Tasks Milestone Payment Date” means, with respect to the applicable Project, the later of thirty (30) days after the date that the conditions described in Section 5.3 have been satisfied or six (6) months prior to the Interconnection COD Date provided in the fully executed Interconnection Agreement with the Utility.

 

Disclosed Conditions” means the environmental conditions described in the reports, documents and Governmental Approvals set forth on Annex 6, and the Environmental Reports.

 

Disclosing Party” has the meaning provided in Section 9.13.

 

Dispute Notice” has the meaning provided in Section 8.6(b).

 

Effective Date” has the meaning provided in the Preliminary Statements.

 

Environmental Claim” means any notice, claim, suit, administrative, regulatory, or judicial action, suit, judgment, demand or other communication (whether written or oral) with respect to, or arising in connection with the Projects by any Person alleging any liability or obligation for investigation, remediation or corrective action under or violation of or noncompliance with any Environmental Law, common law or Governmental Approval required under Environmental Law.

 

Environmental Law” means any Applicable Law and any amendments thereto (whether common law, public law, rule, order, regulation, or otherwise) promulgated or entered into by any Governmental Authority relating to the environment, pollution or protection of health, safety, natural resources or the environment, or reclamation of natural, cultural or archaeological resources, or relating to land surface or subsurface strata or sediment, air, water (including surface water, navigable water and groundwater), protected species, migratory birds, wetlands, flora and fauna, or to the presence, use, storage, disposal, manufacture, distribution, formulation, packaging, labeling, transportation, Release or remediation of Hazardous Substances, including the Comprehensive Environmental Response, Compensation and liability Act of 1980 (“CERCLA”), as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. § 11001 et seq.; the Safe Drinking Water Act, 42 U.S.C. § 300(f) et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. § 5101 et seq.; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136 et seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq.; the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (to the extent any provisions thereof relate to environmental matters); the National Environmental Policy Act, 42 U.S.C. § 4321 et seq.; the Endangered Species Act, 16 U.S.C. § 1531 et seq.; the Bald and Golden Eagle Protection Act, 16 U.S.C. § 668 et seq.; the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq.; National Historic Preservation Act of 1966, 54 U.S.C. § 300101 et seq.; Title 14 Code of Federal Regulations Part 77 and 49; and any similar, analogous, or implementing state or local Laws and all amendments or regulations promulgated thereunder; and any applicable standard of conduct under any common law doctrine, including, but not limited to, negligence, nuisance, or trespass, personal injury, or property damage related to protection of the environment or related to or arising out of the presence, Release, or exposure to Hazardous Substances.

 

 

 

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Environmental Reports” means a Phase 1 Environmental Assessment prepared pursuant to, and valid under, the ASTM E1527-13 Standard in form and substance reasonably satisfactory to Purchaser.

 

EPC Contract” means a contract for the engineering, procurement and construction of a Project approved in writing by Purchaser and executed and delivered by a Company or its designated contractor and the counterparty provider of services.

 

Equity Securities” means (i) capital stock, shares, partnership (whether general or limited) interests, membership interests, trust interests or units, and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distribution of assets of, the issuing entity, or the right to vote on or direct the management or affairs of the issuing entity, (ii) subscriptions, calls, warrants, options, rights or commitments of any kind or character relating to, or entitling any Person to acquire any of the foregoing, and (iii) securities or other instruments convertible into or exercisable or exchangeable for any of the foregoing.

 

ERISA” means the Employee Retirement Income Security Act of 1974 and the regulations promulgated and rulings issued thereunder.

 

FERC” means the United States Federal Energy Regulatory Commission and any successor thereto.

 

Final Interconnection Cost Rate” means, for each Project, such Project’s final Interconnection Costs as of the COD Payment Date for such Project, measured on a per direct-current watt (Wdc) basis based on such Project’s final installed Project Nameplate Capacity determined on such date.

 

FPA” means the Federal Power Act, 16 U.S.C. § 791a, et seq., and the rules and regulations adopted thereunder, as they may be amended from time to time.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Fundamental Representations” means (i) with respect to Seller, the representations and warranties contained in each of Section 3.1(a) and Section 3.1(b) (Organization), Section 3.2 (Authorization, Execution and Enforceability), Section 3.4 (Ownership of Company Interests), Section 3.10 (Title to Assets and Real Estate Interests), and Section 9.11 (No Agents); and (ii) with respect to Purchaser, the representations and warranties contained in the first sentence of Section 4.1(a) (Organization).

 

GAAP” means United States generally accepted accounting principles for accrual-based accounting.

 

Governmental Approval” means all filings, submittals, permits, licenses, approvals, consents, exemptions, waivers, certificates, variances, orders, notices, consultations and authorizations of, with, to, or from any Governmental Authority.

 

Governmental Authority” means any (a) federal, national, state, county, municipal or local government (whether domestic or foreign), any political subdivision thereof, (b) any court or administrative tribunal, (c) any other governmental, quasi-governmental, judicial, public or statutory instrumentality, authority, body, agency, bureau or entity of competent jurisdiction (including any zoning authority, FERC or any comparable authority), (d) State of Oregon Public Utilities Commission or any Regional Transmission Organizations (RTO) or Independent System Operators (ISO) controlling or regulating the sale, scheduling or transmission of electricity by any Company, or (e) any arbitrator with authority to bind a party at law.

 

Government Official” means any officer or employee or family member of an officer or employee of a government, or department (whether executive, legislative, judicial or administrative), agency or instrumentality of such government, including any government-owned business, or a public international organization; or any person acting in an official capacity for or on behalf of such government, or any candidate for public office or representative of a political party.

 

Hazardous Substances” means (i) any material, substance, chemical, waste, product, derivative, compound, mixture, solid, liquid, vapor, mineral or gas, in each case, whether naturally occurring or man-made, that (A) is classified as hazardous, acutely hazardous, toxic, a pollutant or a contaminant, or words of similar import or regulatory effect under Environmental Laws or (B) otherwise poses a material health risk to human health or a material threat to the environment or natural resources; and (ii) any petroleum or petroleum-derived products (including crude oil or any fraction thereof), radon, radioactive materials or wastes, asbestos in any form, lead or lead-containing materials, urea formaldehyde foam insulation, polychlorinated biphenyls, per- and polyfluoroalkyl substances, perfluorooctanoic acid and perfluorooctane sulfonate.

 

Indebtedness” means, with respect to a Person, all obligations of such Person (a) for borrowed money, (b) evidenced by notes, bonds, debentures or similar instruments, (c) for the deferred purchase price of goods or services (other than trade payables or accruals incurred in the ordinary course of business), (d) under capital leases, (e) all obligations under letters of credit, bankers’ acceptances or note purchase facilities issued for the account of such Person and all drafts drawn thereunder, including principal, interest, fees and other amounts payable with respect thereto, (f) all obligations of such Person under any derivative, hedging or similar agreements, and (g) in the nature of guaranties of the obligations described in clauses (a) through (f) above of any other Person.

 

 

 

 

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Indemnitee” means any person seeking indemnification under Article VIII of this Agreement.

 

Indemnitor” means any person from whom indemnification is sought under Article VIII of this Agreement.

 

Indemnity Amount Payable” means any amount of an Indemnity Claim Amount which has become an Indemnity Amount Payable in accordance with Section 8.6.

 

Indemnity Claim” means any claim made for indemnification in accordance with Article VIII.

 

Indemnity Claim Amount” means the amount of Damages claimed in any Notice of Claim.

 

Indemnity Claim Period” means (i) the period commencing on the Effective Date and ending on the calendar day that is twenty-four (24) months thereafter in the case of any Indemnity Claim for any inaccuracy in or breach of any representation or warranty of Seller, other than a Fundamental Representation of Seller or a representation or warranty of Seller contained in Section 3.12 (Environmental Claims) or Section 3.21 (Taxes); (ii) the period commencing on the Effective Date and continuing indefinitely in the case of any Indemnity Claim for any inaccuracy in or breach of any Fundamental Representation of Seller; (iii) the period commencing on the Effective Date and ending on the calendar day that is sixty (60) months thereafter in the case of any Indemnity Claim for any inaccuracy in or breach of any representation of warranty of Seller contained in Section 3.12 (Environmental Claims); (iv) the period commencing on the Effective Date and ending on the calendar day that is six (6) months following the expiration of the applicable statute of limitations (including any extensions) in the case of any Indemnity Claim for any inaccuracy in or breach of any representation or warranty of Seller contained in Section 3.21 (Taxes); (v) the period commencing on the Effective Date and ending on the calendar day that is twenty-four (24) months thereafter in the case of any Indemnity Claim for any inaccuracy in or breach of any representation or warranty of Purchaser, other than a Fundamental Representation of Purchaser; (vi) the period commencing on the Effective Date and continuing indefinitely in the case of any Indemnity Claim for the inaccuracy in or breach of any Fundamental Representation of Purchaser; and (vii) in the case of any Indemnity Claim for any breach of any covenant to be performed or complied with under this Agreement brought by Purchaser against Seller or by Seller against any Purchaser, the period commencing on the date of such breach (or if later, the discovery thereof) and ending on the date that is six years thereafter.

 

Independent Accountants” has the meaning provided in Section 6.1(b). Insurance Coverage” has the meaning provided in Section 3.11.

 

Intellectual Property” means the entire right, title and interest in and to all proprietary rights of every kind and nature throughout the world, both statutory and common law rights, including all rights and interests pertaining to or deriving from (a) patents, copyrights, mask work rights, technology, know-how, processes, trade secrets, algorithms, inventions, works, proprietary data, databases, formulae, research and development data and computer software or firmware, and registrations and applications for registration of the foregoing; and (b) trademarks, trade names, service marks, service names, brands, trade dress and logos, and the goodwill and activities associated therewith, and registrations and applications for registration of the foregoing.

 

 

 

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Interconnection Agreement” means an interconnection agreement executed by a Company and the Utility, as defined and provided in each Utility’s standards for interconnection.

 

Interconnection Costs” has the meaning provided in Section 2.5(a).

 

Knowing, Intentional Breach” means a breach of this Agreement by a Party that (i) knows of its actions, (ii) knows that such actions breach this Agreement, and (iii) intends for such actions to breach this Agreement.

 

Landowner Estoppel” means an Estoppel Certificate in the form attached hereto as Exhibit 6.

 

Lease” means, for each Project, the ground lease entered between the Company and the owner of the land on which the Project is to be developed, and all amendments, including all memoranda and other recorded instruments intended to give record notice thereof, modifications, supplements, assignments, thereto.

 

Lien” means any mortgage, deed of trust, lien, pledge, claim, option, lease, charge, security interest, assessment, reservation, assignment, hypothecation, defect in title, encroachments and other burdens, restrictive covenant (including restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership), right of first refusal, right of first offer, condition or restriction or easement or encumbrance of any kind, whether voluntary or involuntary, choate or inchoate, arising by contract or under any Applicable Law and whether or not filed, recorded or otherwise perfected or effective under any Applicable Law, or any preference, priority or preferential arrangement of any kind or nature whatsoever including the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement.

 

LLC Agreement” means the Operating Agreement of the applicable Company listed on Annex 1A attached hereto and in effect on the Effective Date.

 

Material Adverse Change” means any change or event that has, or could reasonably be expected to have, a material adverse effect on (a) the business, operations, prospects, assets, liabilities or condition, financial or otherwise, of Seller, any Company, or any Project, (b) the rights and obligations of Purchaser or any Company under, or the validity and enforceability of any Transaction Document or any Material Project Document, (c) the development, construction or ownership of any Project, or (d) Seller’s performance of, or its ability to perform, its obligations under this Agreement.

 

Material Project Document” means, with respect to each Company, (a) any contract to which such Company is a party, or by the terms of which such Company or its Assets are bound; (b) any interconnection or transmission-related agreements or applications for interconnection or transmission of or from the Company’s Project; (c) any contract providing for any Indebtedness of such Company or the mortgaging, pledging or otherwise placing a Lien on any Assets of such Company, or the guarantying of any obligation (other than endorsements made for collection) or that is otherwise related to any such Indebtedness; (d) all employment, severance or change in control agreements binding upon such Company; and (e) any Real Property Document.

 

 

 

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Membership Interest Assignment Agreement” means the Membership Interest Assignment Agreement dated as of the Closing Date, by and between the Seller and Purchaser, pursuant to which Seller sells, transfers, conveys, assigns and delivers the Company Interests to Purchaser, in form set forth as Exhibit 1.

 

Multiemployer Plan” has the meaning provided in Section 3.14(b). MW” means megawatt.

 

Notice of Claim” means a written notice of a claim for indemnification pursuant to Section 8.5(a) or Section 8.6(a), as applicable.

 

NTP Payment Amount” means, for each Designated Company Interest, an amount equal to eighty percent (80%) of the Base Purchase Price for such Designated Company Interest (calculated as of the NTP Payment Date), less the sum of the Closing Date Payment Amount and Development Tasks Milestone Payment Amount previously paid for such Designated Company Interest.

 

NTP Payment Date” means, with respect to the applicable Project, thirty (30) days after the date that “Notice to Proceed” occurs under the EPC Contract for such Project.

 

Offtaker” means Portland General Electric Company.

 
Party” shall have the meaning provided in the Preamble.

 

Payment Date” means the Closing Date, Milestone Payment Date, NTP Payment Date or the COD Payment Date, as applicable.

 

Pension Plan” has the meaning provided in Section 3.14(c).

 

Permitted Encumbrance” means (a) Schedule B exceptions shown on preliminary reports of title for each Project Site that are approved in writing by Purchaser prior to the applicable Closing Date in the reasonable exercise of its discretion, (b) Liens for Taxes not yet due and payable; and (c) Liens created by or through Purchaser after the Closing Date.

 

Person” means any individual, partnership, joint venture, company, corporation, limited liability company, limited duration company, limited life company, association, union, trust or other entity or organization, including any Governmental Authority or an agency or instrumentality thereof.

Personal Property Interests” means all of the personal property (tangible and intangible) interests of a Company.

 

 

 

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Power Purchase Agreement” means each power purchase agreement, each subscription agreement, any application for participating in a power purchase agreement and all related documentation, pursuant to which a Company sells or intends to sell energy (or a subscription for the sale of energy) produced by a Project, as set forth on Annex 3.

 

Pre-Closing Period” means, with respect to each Company, the period commencing with the Effective Date and ending on the earlier of (i) the Closing Date with respect to the Company Interests applicable to such Company, (ii) the effective date of any termination of a Company from this Agreement in accordance with Section 8.1(b), and (iii) the effective date of any termination of this Agreement.

 

Pre-Closing Taxable Period” has the meaning provided in Section 6.1(a).

 

Pre-Closing Taxes” has the meaning provided in Section 6.1(a).

 

Price Per Watt” means eight and a half cents per direct-current watt ($0.085/Wdc).

 

Prohibited Payment” means any offer, gift, payment, promise to pay, or authorization of the payment of any money or anything of value, directly or indirectly, to a Government Official, including for the use or benefit of any other person or entity, to the extent that one knows or has reasonable grounds for believing that all or a portion of the money or thing of value which was given or is to be given to such other person or entity, will be paid, offered, promised, given or authorized to be paid by such other person or entity, directly or indirectly, to a Government Official, for the purpose of either (i) influencing any act or decision of the Government Official in his official capacity; (ii) inducing the Government Official to do or omit to do any act in violation of his lawful duty; (iii) securing any improper advantage; or (iv) inducing the Government Official to use his influence with a government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, in order to assist in obtaining or retaining business or in directing business to any party.

 

Prohibited Transaction” means any of the following: (a) receiving, transferring, transporting, retaining, using, structuring, diverting, or hiding the proceeds of any criminal activity whatsoever, including drug trafficking, fraud, and bribery of a Government Official; (b) engaging or becoming involved in, financing, or supporting financially or otherwise, sponsoring, facilitating, or giving aid to any terrorist person, activity or organization; or (c) participating in any transaction or otherwise conducting business with a “designated person,” namely a person or entity that appears on any list issued by the United States or the United Nations with respect to money laundering, terrorism financing, drug trafficking or economic or arms embargoes.

 

Project” has the meaning provided in the Preliminary Statements.

 

Project Nameplate Capacity” means, for each Project as of the date of determination, the nameplate capacity in direct-current watts (Wdc) of such Project listed on Annex 1A, as adjusted on the Development Tasks Milestone Payment Date, NTP Payment Date, and COD Payment Date, as applicable, pursuant to Section 2.3(a); provided that there shall be no upward adjustment to the Project Nameplate Capacity if there is no corresponding change per watt in such Project’s alternating-current nameplate capacity.

 

 

 

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Project Site” means the real property described in the Lease applicable to a Company on which such Company’s Project is to be located as described in Annex 1A hereto.

 

Prudent Industry Practices” means those standard practices, methods and procedures conforming to safety and legal requirements which are attained by exercising that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced owner or operator of solar electric generating facilities of size and type similar to those operated by the Companies and in a similar location.

 

PUHCA” means the Public Utility Holding Company Act of 2005, enacted as part of the Energy Policy Act of 2005, Pub. L. No. 109-58, as codified at § 1261 et seq., and the rules and regulations thereunder, as they may be amended from time to time.

 

Purchase Price” means the purchase price payable for the Designated Company Interests, in an amount not to exceed the sum of the Closing Date Payment Amount, the Development Tasks Milestone Payment Amount, the NTP Payment Amount, and the COD Payment Amount for such Designated Company Interests, each as set forth on Annex 1B and adjusted pursuant to Sections 2.3 and 2.5.

 

Purchaser” has the meaning provided in the Preliminary Statements.

 

Purchaser Financing” means equity (including tax equity) or debt financing to raise an amount sufficient to enable Purchaser to pay the Purchase Price and to arrange for a level of capital reasonably required for the development and construction of the Projects and normal operations of the Companies.

 

Purchaser Indemnitees” means Purchaser and its Affiliates, and their respective officers, employees, shareholders, partners, managers, members, lenders, successors and assigns.

 

PURPA” means the Public Utility Regulatory Policies Act of 1978, as amended, and FERC rules and regulations thereunder (18 C.F.R. Part 292), as they may be amended from time to time.

 

Real Estate Interests” means the leasehold, fee, easement or other interests (including option interests) and estates held by each Company in real property created or evidenced by the applicable Real Property Documents.

 

Real Property Documents” means each of the contracts or agreements constituting an estate or interest in any portion of a Project Site and any easements required from a third party to complete the project as set forth on Annex 2B, including all memoranda and other recorded instruments intended to give record notice thereof, and all amendments, modifications, supplements, assignments and agreements related thereto.

 

Receiving Party” has the meaning provided in Section 9.13.

 

Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, or migrating of any Hazardous Substances, into, at, under, or adjacent to any soil, groundwater, surface water, air or other environmental media.

 

 

 

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Representation Date” means (i) with respect to Seller, the Effective Date or the Closing Date, as the case may be, and (ii) with respect to Purchaser, the Effective Date and the Closing Date, as the case may be.

 

Representative” has the meaning provided in Section 9.13. Schedule Supplement” has the meaning provided in Section 6.8. Seller” has the meaning provided in the Preamble.

 

Seller Indemnitees” means Seller and its Affiliates, and each of their respective officers, employees, shareholders, partners, managers, members, successors and assigns.

 

Seller Parent” means Sulus Developments Limited.

 

Seller Parent Guarantee” means the agreement attached as Exhibit 2.

 

Seller’s Knowledge” means that which is known or should have been known after due inquiry by the directors, managers, officers and employees of Seller.

 

Straddle Periods” has the meaning provided in Section 6.1(b).

 

Straddle Pre-Closing Taxes” has the meaning provided in Section 6.1(b).

 

Straddle Returns” has the meaning provided in Section 6.1(b).

 

Tax” or “Taxes” means any federal, state, local or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, import, tariff, customs duties, capital stock, franchise, profits, withholding, social security, unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, alternative or add on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not.

 

Tax Matter” has the meaning provided in Section 6.5(a)(i).

 

Tax Return” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

 

Termination Date” means, with respect to each Company and Project, the termination date listed for such Company and Project on Annex 1C.

 

Third-Party Claim” means any claim by a Person other than a Purchaser Indemnitee or Seller Indemnitee with respect to any matter for which indemnification is or may be owing pursuant to Section 8.2 or Section 8.3.

 

Title Company” means Stewart Title Guaranty Company or First American Title Insurance Company, as applicable.

 

 

 

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Title Reports” means the reports on title issued by the Title Company prior to the Effective Date and made available to Purchaser.

 

Transaction Documents” means, collectively, this Agreement, each Membership Interest Assignment Agreement and the Seller Parent Guaranty.

 

Transfer Taxes” has the meaning provided in Section 6.3.

 

Unwind Notice” has the meaning given in Section 2.6.


Unwind Offset” has the meaning given in Section 2.6.


Unwind Option” has the meaning given in Section 2.6.


Unwind Price” has the meaning given in Section 2.6.


Unwind Transaction” has the meaning given in Section 2.6.

 

Utility” means, with respect to each Project, such Project’s applicable local electric distribution utility.

 

Section 1.2   Rules of Interpretation. In this Agreement:

 

(a)          The singular shall include the plural and the masculine shall include the feminine and neuter as the context requires.

 

(b)          References to “Articles,” “Sections,” “Annexes” or “Exhibits” shall be to articles, sections, annexes or exhibits of or to this Agreement.

 

(c)          Reference to a given agreement, instrument, document or Applicable Law is a reference to that agreement, instrument, document or Applicable Law as modified, amended, supplemented and restated (including by means of any change order, waiver or other modification) through the date as of which such reference is made, and, as to any Applicable Law, any successor Applicable Law.

 

(d)          The words “herein,” “hereof” and “hereunder” shall refer to this Agreement as a whole and not to any particular section or subsection of this Agreement; the words “include,” “includes” or “including” shall mean “including, but not limited to.”

 

(e)          When calculating the period of time before which, within which, or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period will be excluded. If the last day of such period is a non- Business Day, the period in question will end on the next succeeding Business Day.

 

(f)           All accounting terms used herein and not expressly defined herein shall have the meanings given to them under GAAP.

 

 

 

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ARTICLE II.

MEMBERSHIP INTEREST PURCHASE AND SALE; JOINT DEVELOPMENT

 

Section 2.1     Membership Interest Purchase and Sale.

 

(a)          Subject to fulfillment or waiver of the conditions set forth in Section 5.1 (Conditions Precedent to Obligations of Purchaser) and Section 5.2 (Conditions Precedent to Obligations of Seller), on any Closing Date for the purchase and sale of any Company Interests to be transferred on that Closing Date (the “Designated Company Interests”) (i) Seller shall sell, assign, transfer and convey the Designated Company Interests to Purchaser free and clear of all Liens, and (ii) Purchaser shall purchase the Designated Company Interests from Seller free and clear of all Liens.

 

(b)          The closing of the purchase and sale of any Designated Company Interests contemplated by this Agreement (each a “Closing”) will take place on a Business Day selected by Purchaser and Seller that is no later than ten (10) Business Days after the day on which the last of the conditions set forth in Section 5.1 (Conditions Precedent to Obligations of Purchaser) and Section 5.2 (Conditions Precedent to Obligations of Seller) (other than those conditions which are only capable of being satisfied contemporaneous with any Closing) is fulfilled or waived in writing by the Purchaser for such Designated Company Interests or on such other date as the Parties may agree in writing (with respect to each Closing, the “Closing Date”). For the avoidance of doubt, Seller and Purchaser acknowledge that more than one Closing Date may occur due to the fact or condition that the date or dates for satisfaction or waiver of conditions specified in the preceding sentence may occur on different dates for different Companies. The Parties further agree that, subject to the fulfillment or waiver of the conditions set forth in Section 5.1 and Section 5.2, each Closing shall take place on or before the applicable Termination Date.

 

Section 2.2     Purchase Price.

 

(a)          In consideration for any Company Interests purchased and subject to the terms and conditions of this Agreement, subject to Section 2.2(b), Purchaser shall pay to Seller the Purchase Price as follows: (i) on each Closing Date, Purchaser shall pay to Seller the Closing Date Payment Amount for the Designated Company Interests, (ii) on each Development Tasks Milestone Payment Date, Purchaser shall pay to Seller the Development Tasks Milestone Payment Amount for the applicable Designated Company Interests, (iii) on each NTP Payment Date, Purchaser shall pay to Seller the NTP Payment Amount for the applicable Designated Company Interests, and (iv) on each COD Payment Date, Purchaser shall pay to Seller the COD Payment Amount for the applicable Designated Company Interests, in each case, as may be adjusted or modified pursuant to Section 2.3 and Section 2.5.

 

(b)          To the extent any Company Interests have been acquired by Purchaser on a Closing Date, but the applicable Project does not achieve the Development Tasks Milestone Payment Date, the NTP Payment Date, or the COD Payment Date by November 30, 2020 solely due to circumstances outside of the reasonable control of Seller, then Purchaser shall pay the unpaid Payment Amounts for such Company Interests on or before December 14, 2020, in each case, as may be adjusted or modified pursuant to Section 2.3 and 2.5.

 

 

 

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(c)          The Purchase Price shall be paid in immediately available funds deposited in an account or accounts to be designated by Seller.

 

Section 2.3     Purchase Price Adjustments. On the COD Payment Date (or on the date set forth in Section 2.2(b), if applicable) for each Designated Company Interest, the Base Purchase Price shall be adjusted as follows:

 

(a)          (i) Seller and Purchaser shall agree on the final installed Project Nameplate Capacity for each applicable Project, as confirmed in writing by an independent engineer satisfactory to Seller and Purchaser, (ii) Annex 1A and Annex 1B shall be updated to reflect such final installed Project Nameplate Capacity, and (iii) the Base Purchase Price shall be re-calculated using such final installed Project Nameplate Capacity prior to calculating the COD Payment Amount; provided that (x) any such adjustment shall be made in a manner that preserves an AC/DC ratio of 1.0:1.2, and (y) the Base Purchase Price shall not under any circumstances be adjusted upward for any change in the Project Nameplate Capacity if there is no corresponding change per watt in such Project’s alternating-current nameplate capacity.

 

(b)          If, and only if: (i) the Utility issues a “community solar” or similar program and the subject Company’s Project has received an award into such program, (ii)  such Project is 100% subscribed with subscribers who are at least investment grade, (iii) such Project’s subscription agreements provide for a contract price of at least $0.11/kWh and a contract term of at least twenty years, and (iv) Purchaser’s subscriber acquisition costs for such Project’s subscribers did not exceed $0.02/kWh, then the Base Purchase Price used to calculate the COD Payment Amount for such Company Interests on such date calculated under Section 2.3(a) shall be the Community Solar Purchase Price.

 

(c)          If the Final Interconnection Cost Rate for the subject Company’s Project is higher or lower than the Assumed Interconnection Cost Rate for such Project, the NTP Payment Amount and, if necessary, the COD Payment Amount for such Company Interests shall be adjusted upward or downward, as applicable, on a dollar-for-dollar basis to the extent necessary to either compensate Seller or reimburse Purchaser for the discrepancy between the Final Interconnection Cost Rate and the Assumed Interconnection Cost Rate.


Section 2.4     Seller’s Development Obligations.

 

(a)          From and after the Closing Date of the Company Interest for each Company, Seller will, at its sole cost and expense (except as provided in Section 2.4(b)), diligently pursue, carry out and complete all development activities required for each applicable Project to issue “Notice to Proceed” under such Project’s EPC Contract, and thereafter cooperate with Purchaser and the contractor under such EPC Contract in all aspects of the development and construction of the applicable Project. Such cooperation will require Seller to make its representatives available, upon reasonable notice from Purchaser or such contractor, to participate in meetings, review documents and provide input with respect to the development in good faith and in accordance with Applicable Law and Prudent Industry Practice.

 

 

 

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(b)         Seller shall not be deemed to be an employee, partner, agent or principal of Purchaser and nothing herein shall be construed to create anything other than an independent contractor relationship. Purchaser (or the applicable Company) shall be the sole owner of any work product produced by Seller in connection with Seller’s development activities for each Project.

 

(c)          From and after the Effective Date until the last COD Payment Date, Seller and Purchaser shall meet at least monthly to discuss the status, strategy and progress of the development of each Project, including (i) the status of Seller’s development obligations under this Agreement, and (ii) scope and responsibility for any development activities other than Seller’s development obligations and any changes thereto.

 

Section 2.5     Interconnection Cost Reimbursement and Crediting System.

 

(a)          From and after the Closing Date of the Company Interest for each Company, within fifteen (15) days of receiving a written request therefor from Seller or the Utility, together with reasonable supporting documentation, Purchaser shall pay or provide, or cause the applicable Company to pay or provide, to the Utility: (i) any and all required interconnection costs, (ii) the amount of any necessary Utility upgrades, and (iii) any required deposits or other required credit support, in each case pursuant to such Company’s Interconnection Agreement (such costs, collectively, the “Interconnection Costs”). If Seller has incurred Interconnection Costs for a Company prior to the Closing Date for such Company, Purchaser shall pay such Interconnection Costs to Seller on the Closing Date.

 

Section 2.6     Unwind.

 

(a)          In the event that, for any applicable Designated Company Interests, the conditions described in Section 5.3 do not occur on or prior to November 30, 2020 (the “Development Tasks Milestone Outside Date”), Purchaser shall have the option (the “Unwind Option”), exercisable in its sole and absolute discretion by written notice (an “Unwind Notice”) to the Seller not later than ninety (90) days after the applicable Development Tasks Milestone Outside Date, to require the Seller to purchase, acquire, assume and agree to pay, perform and discharge, as applicable, the applicable Designated Company Interests from Purchaser (an “Unwind Transaction”). As consideration for an Unwind Transaction, the Seller shall pay and reimburse to Purchaser an amount equal to the sum of (a) the total amount of the Purchase Price previously paid by Purchaser to Seller for the applicable Designated Company Interests hereunder and (b) Purchaser’s out-of-pocket expenses incurred with the respect to the applicable Designated Company Interests and the applicable Project (the “Unwind Price”).

 

 

 

 

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(b)          On a date determined by Purchaser and within thirty (30) days of Purchaser’s delivery of an Unwind Notice, unless Purchaser withdraws the Unwind Notice in Purchaser’s sole and absolute discretion, (a) Purchaser and Seller shall execute a Membership Interest Assignment Agreement, modified only as necessary to account for the Unwind Transaction, and (b) Purchaser shall offset the Unwind Price against any and all amounts owed or expected to become owed to Seller under this Agreement (the “Unwind Offset”). If the Unwind Price, exceeds the Unwind Offset, Seller shall pay the excess to Purchaser by wire transfer in immediately available funds to an account identified by Purchaser in the Unwind Notice.

 

(c)          Purchaser’s sale, transfer and assignment of any Designated Company Interests in an Unwind Transaction, if any, shall be made on an “as-is, where-is” basis and Purchaser shall have no obligation to make, and shall not be deemed to make, any representation or warranty whatsoever, express or implied, with respect to such Designated Company Interests, the Unwind Transaction or any other matter. Upon the consummation of the Unwind Transaction, Purchaser shall have no further liability under this Agreement or otherwise with respect to, related to or arising out of the applicable Project or the Designated Company Interests. In the event that the Seller fails to pay the Unwind Price on the date determined by Purchaser pursuant to Section 2.6(b), such failure shall be a breach of this Agreement and Purchaser shall have the right, in its sole discretion and without limiting Purchaser’s other remedies for such breach, to offset such Unwind Price against amounts owed by Purchaser to Seller under this Agreement or cancel its exercise of the Unwind Option, in which case Purchaser shall be entitled to retain the applicable Designated Company Interests without further liability (including any further obligation with respect to future Purchase Price payments) to the Seller.

 

(d)         To the extent Purchaser has purchased Company Interests on a Closing Date, but the corresponding Company and Project have not achieved a Commercial Operation Date by the applicable Termination Date, Seller shall reimburse Purchaser for all Interconnection Costs incurred related to those Company Interests within five (5) Business Days of demand therefor.

 

ARTICLE III.

REPRESENTATIONS AND WARRANTIES OF SELLER

 

As of the Effective Date and the applicable Closing Date, Seller hereby represents and warrants to Purchaser as follows:

 

Section 3.1     Organization and Good Standing.

 

(a)          Seller (i) is a limited liability company duly formed and validly existing and in good standing under the laws of the State of Oregon, (ii) is qualified to do business in, and is in good standing in all jurisdictions in which its properties (or the character of its business) requires such qualification, except to the extent that a lack of such qualification could not reasonably be expected to have a Material Adverse Change and (iii) has all limited liability company power and authority to carry on its business as now being conducted and to own its properties.

 

 

 

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(b)          Each Company is a limited liability company that (i) has been duly formed, is validly existing and is in good standing under the laws of the State of Oregon, (ii) is qualified to do business and is in good standing in each jurisdiction where its properties (or the character of its business) requires such qualification and (iii) has all limited liability company power and authority to carry on its business as now being conducted and to own its properties.

 

(c)          Each Company has not (nor has such Company ever had) a direct or indirect ownership interest, or investment, in any Person, or any contractual obligation or commitment to make any investment in (by way of contributions, advances, loans or otherwise) any other Person.

 

(d)          Seller has made available to Purchaser true and correct copies of the Articles of Organization and LLC Agreement of each Company.

 

Section 3.2     Authorization, Execution and Enforceability. Seller has all requisite power and authority to execute and deliver this Agreement and each other Transaction Document to which it is a party and to perform its obligations hereunder and thereunder. Seller has duly authorized, executed and delivered this Agreement and, as of the applicable Closing Date, each other Transaction Document to which it is a party. Each Company has all requisite power and authority to execute and deliver each Material Project Document to which it is a party and to perform its obligations thereunder. Each Company has duly authorized, executed and delivered each Material Project Document to which it is a party. Each of this Agreement, each other Transaction Document and each Material Project Document to which any Company or Seller is a party, constitutes a legal, valid and binding obligation enforceable against Seller and such Company, as applicable, in accordance with the terms hereof and thereof, as applicable, except as such enforceability may be limited by applicable Bankruptcy, reorganization, fraudulent conveyance or transfer, moratorium, insolvency and similar laws affecting the rights or remedies of creditors generally, and by general principles of equity, regardless of whether considered in a proceeding at law or in equity.

 

Section 3.3    Development. Each Company has not conducted any business other than the development, ownership and operation of the applicable Project, nor is it party to any contract (written or oral) other than the Material Project Documents to which it is a party.

 

Section 3.4     Ownership of Company Interests. Seller is the sole legal and beneficial owner of the Company Interests and has good and valid title to, and full power and authority to convey, the Company Interests, free and clear of any Lien and, upon the satisfaction or waiver by the appropriate Parties of the conditions precedent set forth in Section 5.1 (Conditions Precedent to Obligations of Purchaser) and Section 5.2 (Conditions Precedent to Obligations of Seller), Seller will convey to Purchaser good and valid title to the Company Interests, free and clear of any Liens. There are no outstanding Equity Securities of any Company other than the Company Interests owned by Seller. Other than Purchaser, no Person holds any option or other right to acquire any equity or other ownership interest in the Company Interests. Seller is not a party to any voting trust, proxy or other agreement or understanding with respect to the voting of any of the Company Interests. The Company Interests have been validly issued under the Oregon Limited Liability Company Act, Chapter 63 of the Oregon Revised Statutes. Seller has no obligation to make further payments to any Company for its ownership of the Company Interests or as a result of its status as a member of any Company.

 

 

 

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Section 3.5     Material Project Documents. Annex 3 lists all Material Project Documents to which each Company is a party or by which such Company or its Assets is bound, as such Material Project Documents have been modified, supplemented or amended through the Effective Date, and as updated as of the Closing Date. Annex 3 also lists any letters of credit or other security arranged by or on behalf of such Company, and any consensual Liens granted under any Material Project Document or in connection with any Governmental Approval. True and complete copies of the Material Project Documents have been made available to Purchaser. Each Material Project Document is in full force and effect, has not been assigned by such Company and is valid, binding and enforceable (x) against such Company and any counterparty that is Seller or an Affiliate of Seller and (y) to Seller’s Knowledge, against the other parties thereto in accordance with its respective terms. None of such Company, Seller or any Affiliate of Seller is in breach of any provision of any Material Project Document. Except as disclosed in Annex 3, to Seller’s Knowledge, no counterparty to a Material Project Document is in breach of any provision of any Material Project Document, and there are no events or circumstances which may contravene, conflict with or result in a violation or breach of or give any Person with the right to declare a default or exercise any remedy under, or accelerate any obligation under, or to cancel, terminate or modify and Material Project Document. None of such Company, Seller or any Affiliate of Seller has delivered to, or received from, any party to any Material Project Document (i) a notice of termination, cancellation, repudiation, non-renewal or assertion of breach with respect to such Material Project Document, (ii) a notice of force majeure under such Material Project Document, or (iii) a notice of breach of warranty or indemnification claim. There are no renegotiations of, or attempts or requests to renegotiate or outstanding rights to renegotiate any Material Project Document with any Person.

 

Section 3.6     Governmental Approvals.

 

(a)           Annex 4 contains a true and complete list of all Governmental Approvals under Applicable Law, including Environmental Law, for development of each Project. Seller has provided to Purchaser true, complete and correct copies of all such Governmental Approvals. Except as noted in Annex 4, each such Governmental Approval is in full force and effect, in full and final form, and not subject to any administrative or judicial appeals and the time periods for any such appeal of the Governmental Approvals have expired. Each such Governmental Approval is held in the name of the applicable Company or, where noted in Annex 4, for the benefit of the applicable Project. Each Company is, and has been, in compliance with all Governmental Approvals and all conditions contained in the Governmental Approvals listed on Annex 4 required to have been satisfied on or before the Closing Date have been satisfied as of such date have been satisfied.

 

 

 

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(b)          Neither Seller nor any Company has received any notice or other communication from any Governmental Authority or any other Person regarding (i) any violation of, or failure to comply with, the terms of, or a requirement applicable to, any Governmental Approval, or (ii) any revocation, suspension, nonrenewal, material modification or termination of any Governmental Approval.

 

(c)          Seller has made available to Purchaser copies of all reports, assessments, documents and materials owned by, in the possession of or otherwise available to Seller describing the environmental conditions of the Project Sites relating to the Projects under development by each Company, including with respect to the presence or potential presence of Hazardous Substances, protected species or protected resources.

 

Section 3.7     Legal Proceedings. Except as set forth on Annex 8, there is (and has been in the past six (6) years) no suit, action or proceeding (including any Condemnation or Environmental Claim) pending or, to Seller’s Knowledge, threatened, against Seller or any of its Affiliates (with respect to any Project), any Company or any Project before any Governmental Authority or arbitral body. There is no action or proceeding pending or to Seller’s Knowledge, threatened, against Seller or any of its Affiliates or any Company that would be reasonably expected to impair Seller’s ability to perform its obligations under this Agreement or any other Transaction Document, or any Company’s ability to perform its obligations under any Material Project Document. To Seller’s Knowledge, there is no action or proceeding pending or threatened, against any counterparty to any Material Project Document that could be reasonably expected to impair such counterparty’s ability to perform its obligations under any Material Project Document. There is no judgment, ruling, order, writ, decree, stipulation, injunction or determination in effect by or with any arbitrator, court or other Governmental Authority to which Seller, any Company or any Affiliate of the foregoing is subject or by which any assets of any thereof is bound, and which relates to or affects any of the Companies, the Projects, any Transaction Document, or the transactions contemplated by this Agreement.

 

Section 3.8     No Conflict; No Consents.

 

(a)           Except as set forth on Annex 10, the execution and delivery of this Agreement or the consummation or performance of any of the transactions contemplated between Seller and Purchaser on the Closing Date hereby will not, directly or indirectly (with or without notice or lapse of time or both): (i) conflict with or violate any provision of any of the governing documents of Seller or any Company, (ii) contravene, conflict with or result in a violation of any Applicable Law by which Seller or any Company is bound or any judgment, ruling, order, writ, decree, stipulation or injunction of any Governmental Authority by which Seller or any Company is bound, (iii) contravene, conflict with or result in a breach of any provision of, or give any Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment or loss of benefit under, or to cancel, terminate or modify (A) any material contract (other than any Material Project Document), in each case which, individually or in the aggregate, could reasonably be expected to cause a Material Adverse Change or (B) any Material Project Document, (iv) result in the imposition or creation of any Lien, or (v) give any Person the right to prevent, delay or otherwise interfere with any of the transactions contemplated hereby.

 

 

 

 

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(b)          Except as set forth on Annex 10, Seller and each Company is not currently required, nor will Seller or any Company be required in the future, to give any notice to or obtain any consent from any Person in connection with the execution and delivery of this Agreement or the consummation or performance of any of the transactions contemplated between Seller and Purchaser on the Closing Date.

 

Section 3.9     Governmental Approvals and Filings. Except as set forth on Annex 4, no Governmental Approval or filing with any Governmental Authority is required to be obtained or made by Seller or any Company for the execution, delivery or performance by Seller of this Agreement or the consummation of the transactions between Seller and Purchaser on the Closing Date contemplated hereby, other than any such Governmental Approvals or filings which have been obtained or made or are specifically required to be obtained or made as a condition to Closing pursuant to Section 5.1 or Section 5.2.

 

Section 3.10   Assets and Real Estate Interests.

 

(a)           Annex 2A contains a true and complete list of all Assets of each Company. As of the Development Tasks Milestone Payment Date, each Company will have good and marketable title to its Assets free and clear of all Liens other than Permitted Encumbrances. All tangible assets and properties owned or leased by each Company are adequately maintained and in a manner consistent with any applicable warranties and are in good operating condition and repair and free from any material defects, reasonable wear and tear excepted, and are suitable for the uses for which they are being used. The Assets of each Company constitutes all the material assets and properties necessary for the conduct by such Company of its business and operations as presently conducted, as it will be conducted through the Closing Date, and in accordance with Applicable Laws and Prudent Industry Practices.

 

(b)          Each Company does not own, nor has such Company at any time in the past owned, any Equity Securities of any kind in any corporation, partnership, limited liability company, joint venture, association or other entity.

 

(c)          Other than as set forth on Annex 8, each Company does not have any liabilities arising out of transactions entered into prior to the Effective Date or the Closing Date, other than liabilities arising out of the Transaction Documents or Material Project Documents.

 

(d)          No Company owns, leases or occupies any real property except for the applicable Real Estate Interests under the applicable Real Property Documents.

 

(e)          A true and complete list of all Real Estate Interests and each Real Property Document, including all amendments, modifications, supplements, assignments, and agreements related thereto, is on Annex 2B. Each Real Property Document executed and delivered by each Company is valid, binding and enforceable in accordance with its terms, is in full force and effect and there are no existing defaults by such Company thereunder. A true and complete copy of each Real Property Document has been made available to Purchaser. Such Company has not received any written notification from the counterparty thereto that any event occurred which (with or without notice or lapse of time or both) could constitute a default thereunder. Each Company has good and marketable title to the Real Estate Interests and its Project (given the current stage of development of such Project) free and clear of all Liens on or senior to said Real Estate Interests, other than Permitted Encumbrances.

 

 

 

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(f)           (i) There is no pending or threatened Condemnation (or similar proceedings) of all or any part of the Project Site relating to any Company’s Project, and neither Seller nor any Company has assigned or sublet or granted any rights to use and occupy or created any limitations to or on its interests in any Project Site to any Person except as expressly set forth in the applicable Real Property Documents, (ii) there are no zoning, building code, occupancy restriction or other land-use regulation proceedings that could, individually or in the aggregate, result in a Material Adverse Change, nor has Seller or any Company received any notice of any special assessment proceedings affecting any Project Site, or applied for any change to the zoning or land use status of any Project Site and (iii) to Seller’s Knowledge and except as set forth on the applicable Title Report, there are no Liens or other agreements (whether of record or not) affecting title to, or creating any Lien, right of first refusal, purchase option, reverter or charge upon, any Project Site.

 

Section 3.11   Insurance. Annex 5 contains a true and correct list of the insurance coverage that relates to the business of each Company (collectively, the “Insurance Coverage”). Seller has provided to Purchaser true, complete and correct copies of all Insurance Coverage policies and certificates of insurance. All policies are in full force and effect, are in such amounts and cover such losses and risks as are consistent with industry practice, all premiums due and payable thereon have been paid, and no notice of cancellation or termination has been received with respect to any policy relating to such Insurance Coverage that has not been replaced on substantially similar terms prior to the date of such cancellation. Seller has not (with respect to any Company or Project) and no Company has received from any insurance carrier to which it has applied for any insurance or with which it has carried any insurance any refusal of coverage or notice of material limitation of coverage or any notice that a defense will be afforded with reservation of rights. The policy relating to such Insurance Coverage will cease to cover each Company upon the Closing Date for such Company. There exist no pending claims against such insurance policies as to which the insurers have denied liability. To Seller’s Knowledge, there exist no facts, circumstances or conditions that could give rise to a claim.

 

Section 3.12   Environmental Claims.

 

(a)          There are no known existing circumstance which, for each Company, could give rise to, nor has any Company otherwise incurred, liability to any Person (including any Governmental Authority) under any Environmental Laws, nor has it received any notice from a Governmental Authority or written notice from any other Person of any such liability or any Environmental Claim therefor.

 

 

 

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(b)         Other than the Disclosed Conditions (i) each Company is not subject to any outstanding judgment, decree, or order relating to compliance with any Environmental Law or Governmental Approvals or any liability or obligation under any Environmental Law or common law to investigate or cleanup any Hazardous Substances, and (ii) Hazardous Substances have not been Released from or to any Project Site under circumstances that could result in any liability or obligation under any Environmental Law or common law to investigate or clean-up any such Hazardous Substances.

 

(c)          Other than the Disclosed Conditions, to Seller’s Knowledge there are no facts, circumstances, conditions or occurrences regarding any Project that could reasonably be expected to (i) form the basis of an Environmental Claim, (ii) other than as contemplated by the Governmental Approvals listed on Annex 4, cause any Project to be subject to any restrictions on ownership, occupancy or use or (iii) require any Governmental Approval other than as set forth on Annex 4.

 

(d)          To Seller’s Knowledge, there has been no unpermitted taking of any species listed or protected under any Environmental Law applicable to any Company or any Projects, or of the habitat of any such species, in any way related to the development, construction or operation of the Projects.

 

(e)          Except as noted in Annex 4, none of the real property included in the Real Estate Interests has any local, state or federal jurisdictional waters on it that is subject to wetlands regulation or the jurisdiction of any federal, state or county agency regulating and controlling wetlands, and no such agency has made a determination that any wetland exists on such property.

 

(f)           No Project or Project Site is located on a landfill.

 

(g)         As a result of Purchaser’s entering into this Agreement and consummating the transactions contemplated hereby, none of Purchaser or its Affiliates will have liability for site investigation or cleanup, or be required to obtain the consent of any Person, pursuant to any Environmental Laws, including so-called “transaction-triggered” or “responsible property transfer” requirements.

 

Section 3.13   Compliance with Laws.

 

(a)          Each Company is (and its Assets are) and has been in compliance in all material respects with all Applicable Laws.

 

(b)          Neither Seller nor any Company has received any notice from any Governmental Authority or other communication from any other Person regarding (i) any actual, alleged or potential violation of, or failure to comply with, any Applicable Law relating to such Company or its Project or the transaction contemplated hereby or (ii) any obligation on the part of such Company to undertake, or to bear all or any portion of the cost of, any remedial action of any nature other than obligations with respect to remedial actions set forth in Material Project Documents or written Governmental Approvals set forth on Annex 4 with respect to which, in each such case, such Company does not have any outstanding payment or performance obligation as of the Closing Date.

 

 

 

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Section 3.14   No Employees.

 

(a)          Each Company has no employees and has not had any employees. Each Company has no liability or obligation to any former director, officer or employee of such Company pursuant to the terms of any employment, severance, separation or consulting agreement.

 

(b)          Each Company does not maintain, nor does such Company have any liability or obligation under, any “Employee Welfare Benefit Plan,” as defined in Section 3(1) of ERISA, any “Employee Pension Benefit Plan,” as defined in Section 3(2) of ERISA, any other “employee benefit plan,” as defined in Section 3(3) of ERISA or any other employee benefit plan, program, policy or arrangement, and such Company is not and has not been a contributing employer to any multi-employer plans, as defined in Section 3(37) of Section 4001(a)(3) of ERISA (“Multiemployer Plan”).

 

(c)          No Person, trade or business that, together with any Company, is or was treated as a single employer within the meaning of Section 414 (b), (c), (m) or (o) of the Code or Section 4001(b) of ERISA sponsors, maintains, participates in contributes to or has any liability in respect of any defined benefit pension plan subject to Title IV of ERISA or Section 412 of the Code (“Pension Plan”) or any Multiemployer Plan or has sponsored, maintained, participated in, contributed to or had any liability in respect of a Pension Plan or Multiemployer Plan within the past six years.

 

Section 3.15   Financial Statements and Balance Sheets.

 

(a)          On the applicable Closing Date for each Company, the most recent audited quarterly and annual financial statements of the Seller and Seller Parent, and the Balance Sheet of each Company, have been made available to Purchaser and each such financial statement and Balance Sheet has been prepared in accordance with GAAP (except for footnotes and utilization of accelerated depreciation) applied on a consistent basis, and presents fairly in all material respects the financial position of Seller, Seller Parent, or such Company (as applicable), as of the Balance Sheet Date.

 

(b)          Each Company does not have any (i) liability or obligation of any nature (whether accrued or contingent) which, if incurred during the period covered by the Balance Sheet, would have been required to be disclosed or reserved against on the face of the Balance Sheet or the notes thereto in accordance with GAAP, each of which are necessary for the development, construction or operation of such Company’s Project and (ii) liabilities and obligations arising in the ordinary course of business consistent with past practice of such Company since the Balance Sheet Date, none of the items listed in sub-clauses (i)-(ii) of which, individually or in the aggregate, is material in nature or amount to such Company or its business, operations, property or condition (financial or other).

 

(c)          Since the applicable Balance Sheet Date: (i) each Company has operated, in all material respects, in the ordinary course of business; (ii) there has not been any Material Adverse Change; and (iii) such Company has not taken, and has not failed to take, any action that, if taken or failed to be taken after the Effective Date, would be prohibited by Section 6.6.

 

 

 

 

 

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Section 3.16   Intellectual Property.

 

(a)          Annex 2A sets forth the Intellectual Property rights owned or licensed by each Company.

 

(b)          Each Company has not (i) infringed upon or misappropriated any Intellectual Property rights of any third party or (ii) received any charge, complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation, or violation (including any claim that a Person must license or refrain from using any Intellectual Property rights of any third party in connection with such Company’s business).

 

Section 3.17   Indebtedness. No Company has any outstanding Indebtedness.

 

Section 3.18  Bankruptcy. There are no Bankruptcy, reorganization or arrangement proceedings pending against, being contemplated by or, to Seller’s Knowledge, threatened against, Seller, any Company or any counterparty to any Material Project Document.

 

Section 3.19  Books and Records. True and complete copies of the minute book of each Company and the membership interest register, if any, of such Company have been kept in accordance with Applicable Laws and have been made available to Purchaser. All books, accounts, ledgers and files of each Company will be made available to Purchaser as of the Closing Date.

 

Section 3.20   Affiliate Transactions. From and after the Effective Date and except as contemplated by this Agreement or as set forth on Annex 7, neither Seller nor any Affiliate or Representative of Seller (other than the applicable Company) is party to any agreement or arrangement involving any Company or any Project.

 

Section 3.21   Taxes.

 

(a)          Each Company owned by the Seller is disregarded as an entity separate from its owner for federal income tax purposes. At all times since its organization, each Company has either been a disregarded entity or a partnership for federal income tax purposes and no elections have been filed or will be filed with the Internal Revenue Service to treat such Company as an association taxable as a corporation;

 

(b)         Seller, with respect to each Company and its assets, and each Company has filed or caused to be filed all Tax Returns required to be filed by or for it with the appropriate Governmental Authority in accordance with Applicable Law. All such Tax Returns were true, complete and correct at the time of such filing and filed on a timely basis, taking into account applicable extensions. Seller, with respect to any Company and its assets, and each Company has paid all Taxes payable by each of them with respect to such Tax Returns;

 

 

 

 

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(c)          Seller, with respect to each Company and its assets, and each Company has complied with all Applicable Laws relating to the payment and withholding of Taxes (including withholding and reporting requirements under Code Sections 1441 through 1464, 3401 through 3406, 6041 and 6049 and similar provisions under any other Applicable Law) and has, within the time and in the manner prescribed by law, withheld from employee wages, if any, and paid over to the proper Governmental Authority all required amounts;

 

(d)          Seller, with respect to each Company and its assets, and each Company has not executed (nor is it subject to) any waiver or extension currently in effect or comparable consents regarding the application of the statute of limitations for any Taxes or Tax Returns;

 

(e)         No audit, examination or other administrative proceedings or court proceedings are presently pending or, to Seller’s knowledge, threatened with regard to any Taxes or Tax Returns of any Company or of Seller, with respect to each Company and its assets, and there are no Liens for Taxes upon any property or Asset of any Company;

 

(f)           No written claim has been made by any tax authority in a jurisdiction where any Company or Seller, with respect to each Company and its assets, does not file a Tax Return that it is or may be subject to taxation in that jurisdiction;

 

(g)          No power of attorney currently in force has been granted by Seller or any Company with respect to the Taxes of such Company;

 

(h)         Neither Seller (or any Affiliate of Seller), with respect to any Company or its assets, nor any Company has requested or received any written ruling of a taxing authority relating to Taxes;

 

(i)           Except as contemplated in the Material Project Documents, no agreement as to indemnification for, contribution to, reimbursement or payment of Taxes exists between any Company and any other Person; and no Company has liability for Taxes of any person as a transferee or successor, by contract or otherwise; no Company has any liability for Taxes as a result of Treasury Regulations Section 1.1502-6 or the analogous provisions of any state, local or foreign law;

 

(j)           (i) No grants have been provided by the United States, a state or a political subdivision of a state in connection with any Project being developed by any Company or Seller; (ii) no assets of any Company are subject to the alternative depreciation system within the meaning of Section 168(g) of the Code or tax-exempt use property within the meaning of Section 168(h) of the Code; (iii) no subsidized energy financing has been provided (directly or indirectly) under a federal, state or local program in connection with any Project; and (iv) no Tax credit (including the investment tax credit under Code Section 48) has been allowed with respect to any property that is part of any Project;

 

 

 

 

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(k)          For federal income tax purposes, Seller is not a foreign person within the meaning of section 1445(f)(3) of the Code;

 

(l)           [Reserved];

 

(m)         No Assets of any Company have been placed in service for federal income tax purposes;

 

(n)         No Power Purchase Agreement relating to any Project transfers the benefits of any grants or any credits arising under the Code (including the investment tax credit) available to such Project to the offtaker thereunder; and

 

(o)          Neither Seller nor any Company has knowledge of any outstanding, pending or proposed special assessments or special real property related taxes, including any deferred money payments or performances on account of any subdivision or change in zoning or land use classification, affecting the real property included in the Real Estate Interests or any acts that would result in the imposition of any deferred or “roll back” taxes with respect to the real property included in the Real Estate Interests.

 

(p)          There are no liens for any Taxes on any Company or its assets.

 

Section 3.22   FERC and State Energy Regulation.

 

(a)          Neither the Seller nor, other than as a Qualifying Facility (“QF”) eligible for all exemptions pursuant to 18 CFR §§ 292.601 and 292.602 applicable to QFs under 20 MWs, any Company is subject to regulation under the FPA or PUHCA. Each Company has taken no action that, to Seller’s Knowledge, would require any of the Parties hereto to obtain FERC authorization under Section 203 of the FPA to consummate the transactions between Seller and Purchaser on the Closing Dates contemplated herein. None of the Companies are subject to regulation by the Public Utilities Commission of the State of Oregon, PUHCA or PURPA as a “public utility,” “electric utility,” “electric company,” “electrical corporation,” “holding company,” or similar term under any state Applicable Law relating to public utilities;

 

(b)          Each Company is a QF and Seller has filed with FERC accurate and complete self-certifications of QF status prior to the date any sales of energy were made, any has updated such filings to the extent required by law as of the date hereof;

 

(c)          No QF is affiliated with any other QF located within one mile of any other QF; and

 

(d)          Each Power Purchase Agreement that is not a subscription agreement has been approved by the Oregon Public Utilities Commission.

 

 

 

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(e)          Each Power Purchase Agreement that is a subscription agreement has a price of at least $0.11/kWh(dc) and a contract term of at least 20 years.

 

Section 3.23   Interconnection. As of the Development Tasks Milestone Payment Date, each Company has executed an Interconnection Agreement with the Utility to interconnect the applicable Project to the local distribution system. Any interconnection upgrades that may be required under an Interconnection Agreement or revealed pursuant to an interconnection study in respect of any Project have been disclosed to Purchaser in writing.

 

Section 3.24   Compliance.

 

(a)          Seller represents and warrants that it is not a government entity and that it does not currently employ, and will not in the future, without the prior written consent of Purchaser, employ, either directly or indirectly, a Government Official, or a parent, spouse, child or sibling of a Government Official who shall perform services pursuant to each of the Projects.

 

(b)          Seller represents and warrants that it has not, and that it has no evidence of any kind that any of its owners, controlling shareholders, directors, officers, employees or any other person working on its behalf (including, without limitation any of its subsidiaries, Affiliates, subcontractors, consultants, representatives and agents) has, either directly or indirectly, made a Prohibited Payment with respect to any Project or engaged in any Prohibited Transaction with respect to any Project or the performance of any of its obligations under the Transaction Documents.

 

(c)         Seller represents and warrants that it and its owners, controlling shareholders, directors, officers, employees and any other person working on its behalf (including, without limitation any of its subsidiaries, affiliates, subcontractors, consultants, representatives or agents) in the development of the Projects has complied with all Applicable Laws including all anti-corruption, anti-money laundering, antiterrorism and economic sanction and anti-boycott laws of the United States including without limitation, the United States Foreign Corrupt Practices Act.

 

Section 3.25   OFAC. Seller and each Company represents and warrants that each is in compliance with the requirements of Executive Order No. 13224, 66 Fed Reg. 49079 (September 25, 2001) (the “Order”) and other similar requirements contained in the rules and regulations of the Office of Foreign Asset Control, Department of the Treasury (“OFAC”) and in any enabling legislation or other executive orders in respect thereof (the Order and such other rules, regulations, legislation, or orders are collectively called the “Orders”).

 

Section 3.26  No Use or Zoning Changes. Neither Seller nor any Company has received written notice of any plan, study or effort by any Governmental Authority that would materially adversely affect the present use or zoning of any portion of any Project Site or any portion of the real property included in the Real Estate Interests.

 

 

 

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Section 3.27  Historic Sites. Neither Seller nor any Company has knowledge that any of the real property included in the Real Estate Interests contains any buildings, structures, objects, districts, areas or sites of prehistoric, historic or archeological interest or significance or any site eligible for listing on the National Register of Historic Places.

 

Section 3.28  Full Disclosure. Seller has provided Purchaser all material documentation and information relating to each Company and each Company’s Assets and Project, and relating to Seller relevant to its interest in the Company Interests. All of such provided documentation and information is true, correct and complete, and Seller has not failed to disclose to Purchaser any facts or information known to Seller material to the Company Interests, the Companies or the Projects. None of such provided documentation or information (including all financial statements), nor any of the representations and warranties of Seller set forth in any Transaction Document or in any certificate, document or other instrument delivered by or on behalf of Seller thereunder, contains any untrue statement of material fact, nor do any of the same omit to state a material fact necessary to make the statements or facts contained therein not misleading.

 

ARTICLE IV.

REPRESENTATIONS AND WARRANTIES OF PURCHASER

 

As of the Effective Date and the Closing Date, Purchaser hereby represents to Seller as follows:

 

Section 4.1     Organization and Good Standing. Purchaser (a) is a corporation duly formed and validly existing and in good standing under the laws of the State of Delaware, (b) is duly authorized to conduct business in, and is in good standing in all jurisdictions in which its properties (or the character of its business) requires such qualification, except to the extent that a lack of such qualification would not reasonably be expected to have a material adverse effect on Purchaser or on its ability to perform its obligations hereunder and (c) has all corporate power and authority to carry on its business as now being conducted and to own its properties, except where the failure to have such power or authority would not have an adverse and material impact on its ability to conduct its business or own its assets.

 

Section 4.2     Authorization, Execution and Enforceability. Purchaser has duly authorized, executed and delivered this Agreement, which constitutes its legal, valid and binding obligation and is enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable Bankruptcy, moratorium, insolvency and similar laws affecting the rights of creditors generally, and by general principles of equity, regardless of whether considered in a proceeding at law or in equity.

 

Section 4.3     Legal Proceedings. There is no action, suit or proceeding pending or, to its knowledge, threatened against Purchaser, which would reasonably be expected to impair its ability to perform its obligations under this Agreement.

 

Section 4.4     No Conflict. The execution, delivery and performance by Purchaser of its obligations under this Agreement will not (a) contravene any law or any order, writ, decree or injunction of any court or Governmental Authority; (b) conflict with, or result in a breach of any term, covenant, condition or provision of, or constitute a default under, or result in the creation or imposition of any lien upon any assets of Purchaser pursuant to the terms of any agreement or instruments to which Purchaser is a party or by which Purchaser or any of its properties is bound; or (c) violate any provision of Purchaser’s organizational documents in each case that would be reasonably expected to impair its ability to perform its obligations under this Agreement.

 

 

 

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Section 4.5    Governmental Approvals and Filings. No Governmental Approval or filing with or notice to any Governmental Authority is required to be obtained or made by Purchaser for the execution, delivery and performance by Purchaser of this Agreement, or the consummation of the transactions contemplated between Seller and Purchaser on the Closing Dates, other than any such Governmental Approvals or filings which (a) have been obtained or made or are specifically required to be obtained or made as a condition to Closing pursuant to Section 5.1 (Conditions Precedent to Obligations of Purchaser) or Section 5.2 (Conditions Precedent to Obligations of Seller) or (b) may be required to be obtained or made at a future date, which future Governmental Approvals or filings can reasonably be expected to be obtained when required.

 

Section 4.6     Investment Intent. Purchaser is acquiring the Company Interests for its own account, for investment and with no view to the distribution (as such term is used in Section 2(11) of the Securities Act of 1933, as amended) thereof; provided that the foregoing is not intended as a restriction of Purchaser’s right, on and after the Closing Date, to dispose of all or any portion of the Company Interests in compliance with the Securities Act of 1933, as amended, and all other applicable securities laws and each applicable LLC Agreement.

 

Section 4.7    Unregistered Securities. Purchaser acknowledges that the issuance and sale of the Company Interests have not been registered under the Securities Act of 1933, as amended, or the securities laws of any state of the United States or any other jurisdiction, and these interests may not be offered or sold by Purchaser unless subsequently registered under that Act and any other applicable securities laws or unless an exemption from such registration or other requirements thereof is available.

 

ARTICLE V.
CONDITIONS

 

Section 5.1     Conditions Precedent to Obligations of Purchaser on each Closing Date. The obligations of Purchaser to purchase the applicable Company Interests on each Closing Date are subject to the satisfaction by Seller or waiver by Purchaser of each of the following conditions on or prior to the Closing Date:

 

(a)          Seller shall have delivered a written notice of the Closing Date no later than ten (10) Business Days prior to the expected Closing Date;

 

(b)          Seller shall have delivered to Purchaser a counterpart to this Agreement executed by Seller;

 

 

 

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(c)          Seller shall have delivered to Purchaser a counterpart to the applicable Membership Interest Assignment Agreement in the form attached hereto as Exhibit 1 and all original certificates of the applicable Company Interests, together with duly endorsed transfer powers, to the extent that the Company Interests are certificated;

 

(d)          Purchaser shall have received the Seller Parent Guarantee in the form attached hereto as Exhibit 2 duly executed and delivered by Seller Parent;

 

(e)          Purchaser shall have received a certificate of Seller Parent in the form attached hereto as Exhibit 2A;

 

(f)           an organizational chart showing the relationship between the applicable Project Company, Seller, and Seller Parent;

 

(g)          an Employer Identification Number for Seller and, if applicable, the applicable Project Company;

 

(h)          a Manager’s Certificate for the applicable Project Company in the form attached hereto as Exhibit 3;

 

(i)           an Officer’s Certificate in the form attached hereto as Exhibit 4;

 

(j)           resignations of all the managers, officers and registered agents of the applicable Company in the form attached hereto as Exhibit 5;

 

(k)          a certificate of compliance for Seller and, if applicable, the applicable Project Company issued by the State of Oregon as of a date not more than ten (10) days prior to the Closing Date;

 

(l)          Seller shall have delivered to Purchaser UCC judgment and lien search reports of a recent date before the Closing Date in each of the jurisdictions in which UCC-1 financing statements or other filings or recordations could be made to evidence or perfect security interests in the Company Interests and each Project, and such searches shall reveal no Liens on any of the Company Interests or Projects;

 

(m)         the applicable Title Reports;

 

(n)          the applicable Real Property Documents;

 

(o)          a Portland General Electric Facility Study for the applicable Project Company;

 

(p)          a Power Purchase Agreement for the applicable Project Company

 

(q)          a Conditional Use Permit for the applicable Project;

 

(r)           Historical or Cultural Resource Studies (if applicable);

 

(s)          Species Analysis (if applicable);

 

 

 

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(t)           Zoning/Site Approval (if applicable);

 

(u)          Sworn Statements/Lien Waivers (if applicable);

 

(v)          Flood Search/Wetlands (if applicable);

 

(w)         a site plan for the applicable Site as submitted for the Conditional use Permit in CAD format;

 

(x)           a FERC QF Filing for the applicable Project;

 

(y)          all original books, accounts, ledgers, permits, licenses and files of the applicable Company and Project;

 

(z)          Seller shall have duly performed and complied with all agreements, covenants and conditions required by this Agreement to be performed or complied with by Seller prior to or on the Closing Date, excluding any such failure to perform and comply which, individually or in the aggregate, has not had any material adverse impact (i) on the applicable Company, (ii) on Purchaser or its ability to perform its obligations under this Agreement or to satisfy any condition in Section 5.2 required to be satisfied by Purchaser or (iii) on Seller’s ability to satisfy any condition in this Section 5.1 (other than this Section 5.1(aa)) or Seller’s ability to satisfy any condition in Sections 5.3, 5.4, or 5.5;

 

(aa)        Between the Effective Date and the Closing Date, there has not been any Material Adverse Change with respect to Seller or the applicable Company; and

 

(bb)       No condemnation is pending or threatened in writing with respect to the applicable Project, or any portion thereof, and no unrepaired casualty exists with respect to the applicable Project, or any portion thereof, or the sale of electric power therefrom, unless (i) such casualty is capable of repair in a reasonably satisfactory timeframe, (ii) the cost of such repair shall not exceed $2,000, and (iii) the Purchase Price with respect to such Project shall be adjusted by an amount equal thereto.

 

Section 5.2     Conditions Precedent to Obligations of Seller on Each Closing Date. The obligations of Seller to sell the applicable Company Interests on the Closing Date are subject to the satisfaction by Purchaser or waiver by Seller of each of the following conditions on or prior to the Closing Date:

 

(a)          Seller has received a counterpart to this Agreement executed by Purchaser;

 

(b)          Purchaser shall have delivered to Seller a counterpart to the applicable Membership Interest Assignment Agreement;

 

(c)          Purchaser will provide Seller with a certificate of a manager, secretary or assistant secretary certifying that each of the representations and warranties of Purchaser in this Agreement is true and correct in all material respects as of the Closing Date; and

 

 

 

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(d)          Purchaser shall have delivered the Closing Date Payment Amount.

 

Section 5.3     Conditions Precedent to Obligations of Purchaser on the Development Tasks Milestone Payment Date. The obligation of Purchaser to pay the Development Tasks Milestone Payment Amount on the Development Tasks Milestone Payment Date is subject to the satisfaction or waiver by Purchaser of each of the following conditions on or prior to the Development Tasks Milestone Payment Date:

 

(a)          the Closing Date shall have occurred;

 

(b)          all applicable adjustments and modifications to the Purchase Price required under Sections 2.3 and 2.5 have been made to the reasonable satisfaction of the Purchaser;

 

(c)          Purchaser shall have received a true, correct, and complete copy of the Interconnection Agreement for the applicable Project Company;

 

(d)          Purchaser shall have received a Phase I Environmental Site Assessment consistent with ASTM E1527–13 standards;

 

(e)          Except as set forth on Annex 10, the applicable Company shall have received all consents of counterparties required pursuant to the Real Property Documents to which it is a party including without limitation (i) consent to assignment of such Real Property Document (ii), consent to change of control of the Company and (iii) any consent to the construction or installation of improvements required by such Real Property Documents.

 

(f)           Seller is not Bankrupt.

 

Section 5.4     Conditions Precedent to Obligations of Purchaser on the NTP Payment Date

 

Purchaser shall provide Seller with a copy of the applicable EPC Contract and keep Seller reasonably informed about progress under the EPC Contract, including by providing Seller with documentation thereof. The obligations of Purchaser to pay the NTP Payment Amount on the NTP Payment Date is subject to the satisfaction or waiver by Purchaser of each of the following conditions on or prior to the NTP Payment Date:

 

(a)          the Closing Date and the conditions described in Section 5.3 shall have occurred;

 

(b)          all applicable adjustments and modifications to the Purchase Price required under Sections 2.3 and 2.5 have been made to the reasonable satisfaction of the Purchaser;

 

 

 

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(c)          “Notice to Proceed” shall have occurred under the applicable EPC Contract;

 

(d)          Seller is not Bankrupt.

 

Section 5.5     Conditions Precedent to Obligations of Purchaser on the COD Payment Date

 

The obligation of Purchaser to pay the COD Payment Amount on the COD Payment Date is subject to the satisfaction or waiver by Purchaser of each of the following conditions on or prior to the COD Payment Date:

 

(a)          the Closing Date, Development Tasks Milestone Payment Date, and NTP Payment Date shall have occurred;

 

(b)          all applicable adjustments and modifications to the Purchase Price required under Sections 2.3 and 2.5 have been made to the reasonable satisfaction of the Purchaser; and

 

(c)          the “Commercial Operation Date” shall have occurred under the applicable Power Purchase Agreement

 

(d)         ; and Seller is not Bankrupt.

 

 

Section 5.6     Procedure for Satisfaction of Conditions

 

(a)          Seller shall provide Purchaser with written notice upon completion or satisfaction of any of the conditions described in Sections 5.1, 5.3, 5.4 and 5.5.

 

(b)         If Purchases believes Seller has not completed or satisfied a condition mentioned in such notice, Purchaser must notify Seller of the alleged deficiency within ten (10) business days of receipt of Seller’s notice, which notice shall state the grounds for Purchaser’s belief that there is a deficiency. If Purchaser fails to notify Seller of an alleged deficiency within the ten (10) business days, Seller will be deemed to have completed or satisfied the condition mentioned in Seller’s notice.

 

Section 5.7     Expedited Resolution of Disputes Over Satisfaction of Conditions

 

(a)          This Section 5.7 shall govern all disputes over whether the conditions described in this Article V have been completed or satisfied. (a “Covered Dispute”). The Parties intend for this Section to facilitate resolution of any Covered Dispute as quickly as possible.

 

(b)          The parties agree to submit all Covered Disputes to an arbitrator to be mutually agreed by the Parties (the “Arbitrator”) who shall act as sole arbitrator. Any decision rendered by the Arbitrator shall be final and binding. If the Parties do not agree to a different Arbitrator, Frank Burke shall be the Arbitrator.

 

 

 

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(c)          After a Covered Dispute arises, the aggrieved Party may submit a letter to the Arbitrator, with a copy to the other Party, requesting that the Arbitrator resolve the Covered Dispute. The other Party may, within three business days, submit a responding letter, with a copy to the aggrieved Party. Unless the Parties agree otherwise or requested by the Arbitrator, there shall be no discovery, hearing, or further argument. The Arbitrator shall render a decision based on the letters (or other materials, if applicable) as soon as possible and the Parties shall do all that is commercially reasonable to enable the Arbitrator to render a decision within one week of receipt of the responding letter. Each Party will bear its own costs and legal fees incurred in connection with a Covered Dispute. Each Party is responsible for 50% of the Arbitrator’s fees

 

ARTICLE VI.
COVENANTS

 

Section 6.1     Tax Filings.

 

(a)          Seller shall prepare (or cause to be prepared) and timely file (or cause to be filed) all Tax Returns of the applicable Company with respect to any taxable periods ending on or before the Closing Date (“Pre-Closing Taxable Period”) and shall pay any Taxes (“Pre-Closing Taxes”) due in respect of any Pre-Closing Taxable Period. Seller shall be entitled to refunds (whether by payment, credit or offset) of Taxes with respect to Pre-Closing Taxable Periods.

 

(b)          Purchaser shall prepare or cause each Company to prepare (or cause to be prepared) and timely file or cause to be filed when due all Tax Returns that are required to be filed by or with respect to each Company with respect to periods ending after the applicable Closing Date and shall remit or cause each Company to remit any Taxes due in respect of such Tax Returns. With respect to Tax Returns that are required to be filed by or with respect to each Company for any taxable period that begins before and ends after the applicable Closing Date (such periods “Straddle Periods” and such Tax Returns “Straddle Returns”), such Straddle Returns shall be prepared in a manner consistent with past practice (unless otherwise required by law), and Seller shall be responsible for Taxes due in respect of that portion of such Straddle Periods as ends on the applicable Closing Date (“Straddle Pre-Closing Taxes”). Purchaser shall notify Seller of any amounts due from Seller in respect of any Straddle Return no later than ten (10) Business Days prior to the date on which such Straddle Return has been finalized (as described in this paragraph) and is due, and Seller shall remit such payment to Purchaser no more than five (5) Business Days following receipt of such notice. Purchaser shall deliver or cause to be delivered any Straddle Return to Seller for its review at least thirty (30) days prior to the date on which such Tax Return is required to be filed. If Seller disputes any item on such Tax Return, it shall notify Purchaser of such disputed item (or items) and the basis for their objection. The Parties shall act in good faith to resolve any such dispute prior to the date on which the relevant Tax Return is required to be filed. If the Parties cannot resolve any disputed item, the item in question shall be resolved by an independent accounting firm mutually acceptable to Seller and Purchaser (the “Independent Accountants”). The fees and expenses of such Independent Accountants shall be borne equally by Seller and the applicable Company or Companies. Seller shall be entitled to any refund of Straddle Pre-Closing Taxes. For purposes of this Section 6.1(b), in the case of any Taxes of each Company that are payable with respect to Straddle Periods, the portion of any such Taxes that are attributable to the portion of the Straddle Period that ends on the Closing Date shall (i) in the case of Taxes that are based upon or related to income or receipts or imposed on a transactional basis, be deemed equal to the amount that would be payable if the Tax year or period ended on the Closing Date; and (ii) in the case of other Taxes, be allocated pro rata per day between the period ending on the Closing Date and the period beginning after the Closing Date.

 

 

 

 

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(c)          In the event that a dispute arises between Seller and Purchaser as to the computation of the amount of Taxes, the Parties shall attempt in good faith to resolve such dispute, and any amount so agreed upon shall be paid to the appropriate Party. If such dispute is not resolved within thirty (30) days thereafter, the Parties shall submit the dispute to the Independent Accountants for resolution, which resolution shall be final, conclusive and binding on the Parties. Notwithstanding anything in this Agreement to the contrary, the fees and expenses of the Independent Accountants in resolving the dispute shall be borne equally by Seller and Purchaser. Any payment required to be made as a result of the resolution of the dispute by the Independent Accountants shall be made within ten (10) days after such resolution, together with any interest determined by the Independent Accountants to be appropriate.

 

(d)          Purchaser and Seller shall cooperate fully, as and to the extent reasonably requested by the other Party, in connection with the filing of Tax Returns pursuant to this Section 6.1 and any audit, litigation or other proceeding with respect to Taxes. Such cooperation shall include the retention and (upon the other Party’s request) the provision of records and information which are reasonably relevant to any such audit, litigation or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Purchaser and Seller agree (i) to retain all books and records with respect to Tax matters pertinent to each Company relating to any taxable period beginning before the Closing Date until the expiration of the statute of limitations (and, to the extent notified by Purchaser or Seller, any extensions thereof) of the respective taxable period, and to abide by all record retention agreements entered into with any taxing authority, and (ii) to give the other Party reasonable written notice prior to destroying or discarding any such books and records and, if the other Party so requests, Purchaser or Seller, as the case may be, shall allow the other Party to take possession of such books and records.

 

Section 6.2     Characterization of the Transaction. The Parties agree to treat the sale of the Company Interests as a sale to Purchaser of all of the assets owned by each Company for federal and state income Tax purposes.

 

Section 6.3     Transfer Taxes. Each Seller shall pay all sales, use, transfer, real property transfer, recording, gains, stock transfer and other similar taxes and fees, including all state and local sales, use or other transfer taxes (“Transfer Taxes”) arising out of or in connection with the transactions between Seller and Purchaser on the Closing Dates. Seller shall timely file all Transfer Tax returns and timely remit all Transfer Taxes to the appropriate taxing authorities and provide to Purchaser evidence of such filings and remittances upon Purchaser’s request.

 

 

 

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Section 6.4     Taxes. From and after the Effective Date and until the Closing Date:

 

(a)          Seller (i) shall, or shall cause each Company to, maintain its status as a disregarded entity for federal income tax purposes, (ii) shall not admit any new member(s) to any Company that would result in the Company being classified as a partnership for federal income tax purposes, and (iii) shall not file or cause or permit to be filed any election with the Internal Revenue Service to treat any Company as an association taxable as a corporation for federal income tax purposes; and

 

(b)          Seller, with respect to each Company and its Assets, and each Company will comply with all Applicable Laws relating to the payment and withholding of Taxes (including withholding and reporting requirements under Code Sections 1441 through 1464, 3401 through 3406, 6041 and 6049 and similar provisions under any other Applicable Law) and will, within the time and in the manner prescribed by law, withhold from employee wages, if any, and pay over to the proper Governmental Authority all required amounts.

 

Section 6.5     Taxes.

 

(a)          Controversies.

 

(i)       Purchaser shall promptly notify Seller upon receipt by Purchaser or any affiliate of Purchaser (including each Company and its subsidiaries after the applicable Closing Date) of written notice of any inquiries, claims, assessments, audits or similar events with respect to (i) Taxes relating to a taxable period ending on or prior to the applicable Closing Date or any loss, disallowance, or recapture of any tax credit, in each case for which Seller may be liable under this Agreement (any such inquiry, claim, assessment, audit or similar event, a “Tax Matter”). Seller, or the Seller’s representative, at its sole expense, shall have the authority to represent the interests of any Company with respect to any Tax Matter before the Internal Revenue Service, any other taxing authority, any other governmental agency or authority or any court and shall have the right to control the defense, compromise or other resolution of any Tax Matter, including responding to inquiries, filing Tax Returns and contesting, defending against and resolving any assessment for additional Taxes or notice of Tax deficiency or other adjustment of Taxes of, or relating to, a Tax Matter; provided, however, that neither Seller nor any of its affiliates shall enter into any settlement of or otherwise compromise any Tax Matter that adversely affects or may adversely affect the Tax liability of Purchaser, any Company or any of the Companies’ subsidiaries or any affiliate of the foregoing for any period ending after the applicable Closing Date, including the portion of the Straddle Period that is after the applicable Closing Date, without the prior written consent of Purchaser; and provided further that Purchaser shall have the right to control any Tax Matter that concerns or implicates the valuation of the Assets of any Company. Seller or Seller’s representative shall keep the Purchaser fully and timely informed with respect to the commencement, status and nature of any Tax Matter. Seller shall, in good faith, allow Purchaser to make comments to Seller or Seller’s representative, regarding the conduct of or positions taken in any such proceeding.

 

 

 

 

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(ii)      Except as otherwise provided in Section 6.5(a)(i) above, or if Seller does not elect to control a proceeding pursuant to Section 6.5(a)(i) above, Purchaser shall have the sole right to control any audit or examination by any tax authority, initiate any claim for refund, amend any Tax Return, and contest, resolve and defend against any assessment for additional Taxes, notice of Tax deficiency or other adjustment of Taxes of or relating to, the income, assets or operations of any Company for all taxable periods.

 

(b)          Notification. Purchaser, the Companies, and their respective Affiliates shall promptly forward to Seller all written notifications and other communications from any Tax authority received by any Company relating to any Tax Matters relating to the Tax liability of any Company with respect to a Pre- Closing Period.

 

(c)          Indemnification for Taxes. Seller agrees to indemnify, defend and hold Purchaser and its Affiliates (including the Companies) and their respective members, shareholders, directors, managers, officers, employees agents, successors and assigns, harmless on an after-tax basis from and against: (i) all Taxes, losses, claims and expenses resulting from, arising out of, or incurred with respect to, any claims that may be asserted by any party based on, attributable to, or resulting from the failure of any representation or warranty made pursuant to Section 3.21 (Taxes) to be true and correct in all respects as of the Effective Date and as of the applicable Closing Date with the same effect as though made as of the applicable Closing Date, in each case, (x) without giving effect to any Schedule Supplements and (y) with respect to each Seller and each Company; (ii) all Taxes imposed on, asserted against or attributable to the properties, income or operations of any Company or any Taxes for which any Company is otherwise liable, for all Pre-Closing Periods; and (iii) all Taxes imposed on any Company as a result of the provisions of Treasury Regulations Section 1.1502-6 or the analogous provisions of any state, local or foreign law.

 

Section 6.6     Conduct of Operations During Pre-Closing Period.

 

(a)          Except as contemplated or permitted by this Agreement or as required by Applicable Law, during the Pre-Closing Period, each Company shall, and Seller shall cause each applicable Company to:

 

(i)       conduct the business of the Company in the ordinary course consistent with past practice and in accordance with Prudent Industry Practice;

 

(ii)     use its commercially reasonable efforts to (A) preserve the present business operations, organization and goodwill of the Company and (B) preserve the present relationships with Persons having business dealings with the Company;

 

(iii)     maintain all of the Assets of, or used by, the Company or the Project in their current condition;

 

 

 

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(iv)    comply in all material respects with all Applicable Laws and the Material Project Documents, and maintain or renew, as needed, all existing Governmental Approvals applicable to the Companies and the Projects;

 

(v)     promptly notify Purchaser of any casualty, Condemnation or emergency condition affecting any Project or Company; and

 

(vi)    provide Purchaser with information concerning the Company and the Projects that may be reasonably requested by Purchaser, and procure that Purchaser and its Representatives are given reasonable access to the books, records, properties and management of the Companies during normal business hours on any Business Day on reasonable prior notice to Seller.

 

(b)          Without limiting the generality of the foregoing, and except as otherwise required or permitted by other provisions of this Agreement or required by Applicable Laws, during the Pre-Closing Period, no Company will, and Seller shall not cause or permit any Company to, without the prior written consent of Purchaser:

 

(i)      declare, set aside, make or pay any distribution (including any tax distributions) in respect of the ownership interests in the Company;

 

(ii)      permit or allow any Lien to be imposed on or against any of the Company’s assets or the Company Interests;

 

(iii)     grant any waiver of any term under, exercise any option under, or give any consent with respect to, any Material Project Document;

 

(iv)    acquire any properties or sell, transfer, assign, license, convey or otherwise dispose of any Assets, outside the ordinary course of business;

 

(v)     other than accounts payable incurred in the ordinary course of business or otherwise incurred pursuant to the Material Project Documents, or short term, unsecured borrowings or intercompany loans or guarantees that are paid in full and discharged prior to the applicable Closing Date, incur, create, assume or otherwise become liable for Indebtedness or issue any debt securities or assume or guarantee the obligations of any other Person;

 

(vi)    except as may be required to meet the requirements of Applicable Laws or GAAP, change any accounting method or practice in a manner that is inconsistent with past practice;

 

(vii)   fail to maintain its existence or consolidate or merge with any other Person or acquire all or more than a majority (based on fair market value as determined by the applicable Company) of the assets of any other Person;

 

(viii)  issue, reserve for issuance, transfer, modify, encumber, dispose or sell or grant or redeem any options, warrants, calls or other rights to purchase or otherwise acquire any Company Interests or any other Equity Securities in any Company;

 

 

 

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(ix)     liquidate, dissolve, recapitalize, reorganize, reclassify, combine or effect any like change in the capitalization of any Company or otherwise wind up its business or operations;

 

(x)     enter into, terminate or amend (A) any Governmental Approval, (B) any Material Project Document or (C) any contract involving total consideration throughout its term in excess of $10,000 (other than contracts entered into in the ordinary course which will be fully performed prior to Closing);

 

(xi)     amend or modify any LLC Agreement or any other organizational document of any Company;

 

(xii)    take any action that could result in a material breach or default under any Material Project Document or Governmental Approval;

 

(xiii)   violate or permit any of its Representatives to violate any applicable Compliance Regulation or Environmental Law, make or permit any of its Representatives to make, directly or indirectly, any Prohibited Payment or engage in any Prohibited Transaction;

 

(xiv)   make any new, or change any existing, material election with respect to Taxes, or settle any Tax liability in a manner that could materially and adversely affect Purchaser or any Company after the Closing;

 

(xv)   settle, waive, unwind or modify any dispute or claim or compromise or settle any liability (other than accounts payable, Taxes and other liabilities payable in the ordinary course of business) which results in a non-current liability of $2,000 or greater becoming due from any Company after Closing or restrictions or limitations that materially and adversely affect any Company’s ability to conduct business after the Closing;

 

(xvi)  fail to discharge any material liability of any Company or make any material payment of any Company as it comes due except in connection with a good faith dispute with an adequate reserve in accordance with GAAP; or

 

(xvii)  agree or commit to do any of the foregoing.

 

Section 6.7     Cooperation. Seller shall, upon Purchaser’s written request, reasonably assist Purchaser in preparing any documentation or providing any information related to any facts relevant to Tax discussions, including assisting Purchaser in the preparation of responses to any requests from the U.S. Department of Treasury, NREL, or any other Governmental Authority.

 

Section 6.8     Supplement to Disclosure Schedules. Seller shall promptly disclose to Purchaser in writing any information contained in the representations and warranties or the Disclosure Schedules which is incomplete or no longer correct as of all times after the Effective Date through each Closing Date (a “Schedule Supplement”). Neither the supplementation of the Schedules pursuant to the obligation in this Section 6.8, nor any disclosure after the date hereof of the untruth of any representation or warranty made in this Agreement shall operate as a cure of the failure to disclose the information, or a cure of the breach of any representation or warranty made herein, and determination of any liability for breach of representations or warranties either as of the Effective Date or any Closing Date shall be made without reference to any supplements and with reference only to the Disclosure Schedules as they stand on the date of this Agreement.

 

 

 

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Section 6.9     Exclusivity. During each Pre-Closing Period, Seller shall not, and shall cause its Affiliates (including the Companies) and any of its or their respective Representatives not to, directly or indirectly, (a) take any action to solicit, initiate, facilitate, encourage or continue inquiries regarding an Acquisition Proposal; (b) enter into discussions or negotiations with, or provide any information to, any Person concerning a possible Acquisition Proposal; or (c) enter into any agreements or other instruments (whether or not binding) regarding an Acquisition Proposal. Seller shall immediately cease and cause to be terminated, and shall cause its Affiliates (including the Companies) and all their respective Representatives to immediately cease and cause to be terminated, all existing discussions or negotiations with any Persons conducted heretofore with respect to a possible Acquisition Proposal. Seller shall promptly (and in any event within one (1) Business Day after receipt thereof by Seller, its Affiliates (including the Companies) or their respective Representatives) advise Purchaser orally and in writing of any Acquisition Proposal or any inquiry with respect to or which could reasonably be expected to result in an Acquisition Proposal and the material terms and conditions thereof and the identity of the party making such Acquisition Proposal or inquiry. Seller agrees that the rights and remedies for noncompliance with this Section 6.9 shall include having such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to Purchaser and that money damages would not provide an adequate remedy to Purchaser. Seller shall not, and shall cause its Affiliates (including the Companies) not to, release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and Seller also agrees to promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) any Company, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on behalf of Seller or any of its Affiliates (including the Companies) or any of their respective Representatives and, if requested by Purchaser, to enforce such Person’s obligation to do so.

 

Section 6.10   Purchaser Financing. Seller shall, and shall cause each of the Companies and their Representatives to, at the expense of Purchaser, (i) use their commercially reasonable efforts to provide to Purchaser reasonable cooperation to complete the Purchaser Financing, (ii) use commercially reasonable efforts to furnish Purchaser as promptly as reasonably practicable with information relating to the Companies reasonably requested by Purchaser from Seller to assist in preparation of customary financing presentations relating to the Purchaser Financing, (iii) participate in a reasonable number of financing meetings in connection with the Purchaser Financing; (iv) request required consents of accountants for use of their reports in any materials relating to the Purchaser Financing; (v) use commercially reasonable efforts to facilitate pledging collateral in connection with any debt portion of the Purchaser Financing from and after the Closing as may be reasonably requested by Purchaser (provided that any obligations contained in such documents shall be effective no earlier than as of the Closing); (vi) take such corporate actions (subject to the occurrence of the Closing) by each of the Companies reasonably necessary to complete the Purchaser Financing; (vii) use commercially reasonable efforts to facilitate the execution and delivery (at the Closing) of definitive documents related to the Purchaser Financing; and (viii) provide customary affidavits as may reasonably be required in connection with obtaining or updating any title insurance or surveys.

 

 

 

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ARTICLE VII.
TERMINATION

 

Section 7.1     Termination. This Agreement may be terminated in respect of any Closing at any time prior to such Closing, only in the following manner:

 

(a)          by mutual written consent of each of the Parties, effective as of such date as the Parties may agree in such consent;

 

(b)          by Purchaser or Seller, upon written notice of breach by the other in any material respect by Seller (including any Company) or Purchaser, respectively, of any of the representations or warranties or covenants contained in this Agreement in respect of the applicable Company or corresponding Project, but only if (i) the terminating Party shall have first given a written notice to the breaching Party identifying the breach and specifying the effective date of such termination in such notice (which may not be earlier than permitted by clause (ii) hereof) and (ii) the breaching Party has not cured or remedied such breach by the earlier to occur of (A) the applicable Termination Date and (B) thirty (30) days after receipt of such notice provided such breach is capable of being cured or remedied within such time period and if the breach is not capable of being cured or remedied within such time period this Agreement shall terminate upon receipt of the notice described above;

 

(c)          if the Closing has not occurred by the applicable Termination Date, either Purchaser or Seller may terminate this Agreement with respect to the applicable Company and corresponding Project by delivering a notice of termination to the other Party after such Termination Date, and specifying in such notice the effective date of such termination, so long as Purchaser (if Purchaser is the terminating Party) is not, or Seller (if Seller is the terminating Party) is not, in material breach of any representations or warranties or covenants contained in this Agreement applicable to the terminating Party;

 

(d)          by Purchaser or Seller, upon the Bankruptcy of the other Party; or

 

(e)          by Purchaser or Seller, upon written notice to the other Party at any time prior to the Closing, if (i) any court of competent jurisdiction shall have issued an order, judgment or decree permanently restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated hereby, and such order, judgment or decree shall have become final and nonappealable; or (ii) any Applicable Law shall have been enacted or issued by any Governmental Authority and shall remain in effect prohibiting the consummation of the transactions contemplated hereby.

 

 

 

 

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Section 7.2     Consequences of Termination.

 

(a)          If this Agreement is validly terminated pursuant to Section 7.1 in respect of a Company and corresponding Projects, then this Agreement shall cease to have force and effect with respect to such Company and corresponding Projects, and there shall be no further liability or obligation on the part of any Party with respect thereto, except as otherwise expressly provided in Section 2.3 and this Section 7.2.

 

(b)          Upon termination of this Agreement pursuant to Section 7.1(b), the Seller will remain liable to Purchaser for any breach of this Agreement by Seller existing at the time of such termination, and Purchaser will remain liable to Seller for any breach of this Agreement by Purchaser existing at the time of such termination, as well as for any fraud, willful misrepresentation or Knowing, Intentional Breach of this Agreement, and Seller or Purchaser may seek such remedies as are available with respect to any such breach, fraud, willful misrepresentation or Knowing, Intentional Breach under Applicable Laws.

 

(c)          If this Agreement is validly terminated pursuant to Section 7.1(a), (b) or (c) in respect of any Company and corresponding Projects, this Agreement shall continue in full force and effect in accordance with its terms for all purposes solely as it applies to any one or more of the other Companies and corresponding Projects; and

 

(d)          The following provisions of this Agreement shall survive any termination of this Agreement: Section 6.5 (if any Closing occurs), Article VII, Article VIII (if any Closing occurs), and Article IX.

 

ARTICLE VIII.

INDEMNIFICATION

 

Section 8.1     Survival.

 

(a)          Subject to the limitations and other provisions of this Agreement, the representations and warranties of Seller contained herein shall survive each Closing and shall remain in full force and effect for the Indemnity Claim Period with respect to such Closing.

 

(b)         All covenants and agreements of Purchaser contained herein shall survive the Closings indefinitely or for the period explicitly specified therein.

 

(c)         All covenants and agreements of Seller contained herein shall survive the Closings indefinitely or for the period explicitly specified therein.

 

(d)         Any Indemnity Claim asserted prior to the expiration of any applicable Indemnity Claim Period shall not thereafter be barred by the expiration of the relevant representation or warranty in accordance with the preceding subsections of this Section 8.1 and such Indemnity Claim shall survive until finally resolved.

 

 

 

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(e)          Except as set forth in this Section 8.1 and Section 8.4(e), nothing in this Article VIII shall apply to any claims for breach of any representation, warranty or covenant concerning Taxes, which shall be made, contested, settled, resolved, paid or otherwise dealt with pursuant to Section 6.5.

 

Section 8.2     Indemnification by Seller. Subject to the other terms and conditions of this Article VIII, Seller shall defend, indemnify and hold harmless each Purchaser Indemnitee from and against any and all Damages suffered or incurred by any such Purchaser Indemnitee which arise, directly or indirectly, out of, from or in connection with:

 

(a)          any inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement or in any certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement, as of any Representation Date as if made on such Representation Date (except for representations and warranties that expressly relate to a specified date set forth in a representation and warranty made by Seller in Article III, the inaccuracy in or breach of which will be determined with reference to such specified date);

 

(b)          any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller or any Company pursuant to this Agreement; or

 

(c)          any indemnification obligations of a Company as to its managers and officers or otherwise under the Operating Agreement of each Company as to any matters arising on or prior to the Closing Date.

 

Section 8.3    Indemnification by Purchaser. Subject to the other terms and conditions of this Article VIII, Purchaser shall defend, indemnify and hold harmless each Seller Indemnitee from and against any and all Damages suffered or incurred by any Seller Indemnitee which arise, directly or indirectly, out of, from or in connection with:

 

(a)          any inaccuracy in or breach of any of the representations or warranties of Purchaser contained in this Agreement or in any certificate or instrument delivered by or on behalf of Purchaser pursuant to this Agreement, as of any Representation Date as if made on such Representation Date (except for representations and warranties that expressly relate to a specified date set forth in a representation and warranty made by Purchaser in Article IV, the inaccuracy in or breach of which will be determined with reference to such specified date); and

 

(b)          any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Purchaser pursuant to this Agreement.

 

Section 8.4     Limitations on Liability. The indemnification provided for in Section 8.2(a) and Section 8.3(a) shall be subject to the following limitations:

 

 

 

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(a)          Time Bar on Claims. No Indemnitee will be entitled to any recovery from any Indemnitor unless a Notice of Claim has been given in accordance with Section 8.5(a) or Section 8.6(a), as applicable, on or before the expiration of the Indemnity Claim Period for the applicable Indemnity Claim.

 

(b)          Mitigation. Each Seller Indemnitee and Purchaser Indemnitee shall use commercially reasonable efforts to mitigate any Damages subject to an Indemnity Claim by it hereunder.

 

(c)          Tax Treatment. Any indemnity payment made pursuant to this Agreement will be treated as an adjustment to the Purchase Price for Tax purposes, unless and to the extent there is a final determination in an audit or other administrative or judicial action that any such payment does not constitute an adjustment to the Purchase Price for U.S. federal income tax purposes or the Purchaser determines in good faith that such payment is subject to tax.

 

(d)          Other Rights and Remedies Not Affected. The remedies provided in this Article VIII, from and after the Closing, are the sole and exclusive remedy of the Purchaser Indemnitees and Seller Indemnitees, respectively, with respect to any claims for monetary damages for (i) any inaccuracy in or breach of any of the representations or warranties of any Party in this Agreement or in any certificate or instrument delivered by or on behalf of any Party pursuant to this Agreement, and (ii) any breach or nonfulfillment of any covenant, agreement or obligation to be performed by any Party pursuant to this Agreement, except for such claims arising from fraud or willful misrepresentation or Knowing, Intentional Breach. For all other claims, the indemnification rights of the Parties under this Article VIII are independent of, and in addition to, such rights and remedies as the Parties may have under Applicable Laws or in equity or otherwise, including the right to seek specific performance, rescission or restitution, none of which rights or remedies shall be affected or diminished hereby. The waiver of any condition based on the accuracy of any representation or warranty made in this Agreement, or on the performance of or compliance with any covenant, agreement or obligation under this Agreement, will not affect any right to indemnification, payment of Damages or other remedy based on such representations, warranties, covenants, agreements or obligations. The rights and remedies of any Party based upon, arising out of or otherwise in respect of any inaccuracy or breach of any representation, warranty, covenant or agreement or failure to satisfy any condition shall in no way be limited by the fact that the act, omission, occurrence or other state of facts upon which any claim of any such inaccuracy, breach or failure is based may also be the subject matter of any other representation, warranty, covenant, agreement or condition as to which there is or is not an inaccuracy, breach or failure to satisfy.

 

(e)          Consequential Damages. IN NO EVENT SHALL SELLER OR PURCHASER OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, PARTNERS, SHAREHOLDERS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY TYPE, INCLUDING LOST PROFITS, LOSS OF BUSINESS OPPORTUNITY OR BUSINESS INTERRUPTIONS IRRESPECTIVE OF WHETHER SUCH DAMAGES ARE REASONABLY FORESEEABLE OR WHETHER SUCH CLAIMS ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE, WHETHER SOLE, JOINT, OR CONCURRENT OR STRICT LIABILITY) OR OTHERWISE (“NON-REIMBURSABLE DAMAGES”), UNLESS SUCH NON-REIMBURSABLE DAMAGES ARE AWARDED TO A PERSON IN AN INDEMNIFIABLE THIRD PARTY CLAIM OR ATTRIBUTABLE TO THE FRAUD OF A PARTY; PROVIDED, HOWEVER, THAT NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED HEREIN SHALL PRECLUDE A CLAIM BY A PURCHASER INDEMNITEE FOR ANY DIMINUTION IN VALUE OF THE PROJECT RESULTING FROM A BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR OTHER OBLIGATION OF SELLER HEREUNDER.

 

 

 

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Section 8.5     Procedure for Third-Party Claims.

 

(a)          Notice of Claim. Promptly after receipt by an Indemnitee of notice of any Third- Party Claim, the Indemnitee will give notice thereof to the Indemnitor in accordance with Section 9.1, which shall:

 

(i)      describe the Third-Party Claim in reasonable detail;

 

(ii)      include copies of all material written evidence thereof; and

 

(iii)     indicate the estimated amount, if reasonably practicable, of the Damages that have been or may be sustained by the Indemnitee in connection with such Third-Party Claim.

 

The failure of the Indemnitee to so notify the Indemnitor will not relieve the Indemnitor of any of its obligations hereunder, except to the extent that the Indemnitor demonstrates that the defense of such Third-Party Claim has been actually prejudiced by the Indemnitee’s failure to give such notice.

 

(b)          Participation in Defense. The Indemnitor may participate in the defense of such Third-Party Claim with counsel selected it by it or may assume the defense of such Third-Party Claim with counsel reasonably satisfactory to the Indemnitee.

 

(c)          Indemnitor Defense. If the Indemnitor elects to assume the defense of such Third-Party Claim:

 

(i)      The Indemnitor shall give the Indemnitee notice of such election, in accordance with Section 9.1, within thirty (30) days after the Indemnitor receives notice of the Third-Party Claim from the Indemnitee pursuant to Section 8.5(a).

 

(ii)      The Indemnitor shall have the right to take such actions as it deems necessary to avoid, defend, contest, settle (subject to Section 8.5(c)(v) and Section 8.5(e)), appeal or make counterclaims pertaining to such Third-Party Claim, in the name and on behalf of the Indemnitee, after giving the Indemnitee a reasonable opportunity to provide its input on the applicable matter.

 

 

 

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(iii)     The Indemnitor shall conduct the defense actively and diligently with counsel reasonably satisfactory to the Indemnitee, and the Indemnitee shall cooperate in any defense of such Third-Party Claim conducted by the Indemnitor.

 

(iv)    The Indemnitee may join in any defense of such Third-Party Claim, and employ separate counsel (at its own expense, except as provided in Section 8.5(c)(vii)), subject to the Indemnitor’s right to control the defense of such Third-Party Claim.

 

(v)     No compromise or settlement of such Third-Party Claim may be effected by the Indemnitor without the Indemnitee’s written consent unless either (A) the settlement includes, as an unconditional term, a complete release of the Indemnitee, or (B) in the absence of such a complete release, (1) there is no finding or admission of any violation of law or any violation of the rights of any Person and no effect on or grounds for the basis of any other claims that may be made against the Indemnitee, and (2) the sole relief provided is monetary damages that are paid in full by the Indemnitor. Except as provided in clause (A) or (B) of the prior sentence, the Indemnitee will have no liability with respect to any compromise or settlement of such Third-Party Claim effected without Indemnitee’s written consent.

 

(vi)   After notice from the Indemnitor to the Indemnitee of the Indemnitor’s election to assume the defense of such Third-Party Claim, the Indemnitor will not, as long as it diligently conducts such defense, be liable to the Indemnitee under this Section 8.5 for any fees or expenses of other counsel with respect to the defense of such Third-Party Claim, in each case subsequently incurred by the Indemnitee in connection with the defense of such Third-Party Claim, except as provided in Section 8.5(c)(vii).

 

(vii)   If the Indemnitor and the Indemnitee are both parties to an action involving a Third-Party Claim and the Indemnitee determines in good faith that joint representation would be inappropriate upon the advice of outside counsel that a conflict of interest exists between the Indemnitee and the Indemnitor with respect to such Third-Party Claim, the Indemnitee may employ separate counsel to join in the defense of such Third-Party Claim, and if it does, the reasonable fees and expenses of such counsel will be reimbursed by the Indemnitor.

 

(d)          Indemnitee Defense. Notwithstanding anything to the contrary in this Section 8.5, if notice of the Third-Party Claim is given by an Indemnitee in accordance with Section 8.5(a), and the Indemnitor does not, within thirty (30) days after such notice is given, give notice to the Indemnitee of its election to assume the defense of such Third-Party Claim:

 

(i)       The Indemnitee may assume the defense of any such Third-Party Claim with counsel of its own selection, and defend, contest, pay, settle or otherwise deal with the Third-Party Claim and seek indemnification from the Indemnitor for any Damages to the extent provided in this Article VIII; provided that the Indemnitor shall reimburse the Indemnitee for the costs of defending against such Third-Party Claim (including reasonable attorneys’ fees and expenses) and the Indemnitor shall remain responsible for any indemnifiable amounts arising from or related to such Third-Party Claim to the fullest extent provided in this Article VIII.

 

 

 

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(ii)      The Indemnitor may join in such defense and employ separate counsel at its own expense.

 

(e)          Joint Defense. Notwithstanding the foregoing, if the Indemnitee determines in good faith that there is a reasonable probability that a Third-Party Claim may materially adversely affect the Indemnitee or its Affiliates other than as a result of monetary Damages for which it would be entitled to indemnification under this Agreement, the Indemnitee may, by notice to the Indemnitor, assume the control of the defense or settlement of such portion of the action as may be necessary to avoid such non-monetary adverse effect but the Indemnitor will not be bound by any compromise or settlement effected without its written consent.

 

(f)           Cooperation in Defense. Indemnitor and Indemnitee agree to provide each other with reasonable access during regular business hours to the properties, books and records and Representatives of the other, as reasonably necessary in connection with the preparation for an existing or anticipated action involving a Third-Party Claim and its obligations with respect thereto pursuant to this Article VIII.

 

Section 8.6    Indemnification Procedures. The following procedures shall apply to any claim for indemnification by a Purchaser Indemnitee or a Seller Indemnitee that is not a Third- Party Claim:

 

(a)          Notice of Claim. The Indemnitee will give notice thereof to the Indemnitor as soon as practicable, but in no event later than ninety (90) days, after the Indemnitee determines that it is or may be entitled to indemnification pursuant to this Agreement as follows:

 

(i)       In the case of any Indemnity Claim by any Purchaser Indemnitee, by Purchaser to Seller, at the address and in the manner provided in Section 9.1. Seller shall be the Indemnitor with respect to Indemnity Claims pursuant to Section 8.2, and no liability in respect of any such Indemnity Claim shall be contested, settled, admitted, litigated or otherwise dealt with by or on behalf of any Seller Indemnitee for this purpose by any person other than Seller.

 

(ii)      In the case of any Indemnity Claim by Seller Indemnitee, by Seller to Purchaser, at the address and in the manner provided in Section 9.1. Purchaser shall be the Indemnitor with respect to Indemnity Claims pursuant to Section 8.3, and no liability in respect of any such Indemnity Claim shall be contested, settled, admitted, litigated or otherwise dealt with by or on behalf of any Purchaser Indemnitee for this purpose by any person other than Purchaser.

 

Any such Notice of Claim pursuant to this Section 8.6(a) shall set forth (1) in reasonable detail the basis for such claim, (2) the Indemnity Claim Amount, and (3) the name of any person against whom the claim is being made.

 

(b)          Dispute Notice. If the Indemnitor disputes (x) its obligation to indemnify the Indemnitee in respect of any claim set forth in a Notice of Claim, or (y) the Indemnity Claim Amount set forth in a Notice of Claim, a dispute notice (“Dispute Notice”) shall be given as soon as practicable, but in no event later than thirty (30) days after the Notice of Claim is given, as follows:

 

 

 

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(i)      In the case of any Indemnity Claim by any Purchaser Indemnitee against Seller, a Dispute Notice may be given only by Seller, and if given, shall be sent by Seller to Purchaser at the address and in the manner provided in Section 9.1.

 

(ii)     In the case of any Indemnity Claim by Seller Indemnitee against Purchaser, a Dispute Notice may be given only by Purchaser, and if given, shall be sent by Purchaser to Seller at the address and in the manner provided in Section 9.1.

 

(iii)     If no Dispute Notice is given within such thirty (30) day period, the validity of the claim for indemnification and the Indemnity Claim Amount, each as set forth in the Notice of Claim, shall be deemed to be agreed, effective on the first day following such thirty (30) day period, and the Indemnity Claim Amount set forth in the Notice of Claim shall immediately be an Indemnity Amount Payable of the relevant Indemnitor.

 

(iv)    If a Dispute Notice is given within such thirty (30) day period, then:

 

(A)        The portion, if any, of the Indemnity Claim Amount which is not disputed in the Dispute Notice shall immediately be an Indemnity Amount Payable of the relevant Indemnitor.

 

(B)         Purchaser and Seller shall negotiate in good faith to settle the dispute, and the portion, if any, of the Indemnity Claim Amount which Purchaser and Seller agree in writing is payable shall immediately be an Indemnity Amount Payable of the relevant Indemnitor.

 

(C)         If Purchaser and Seller are unable to resolve any portion of the Indemnity Claim Amount within two (2) months following the date the Dispute Notice is given, either Purchaser or Seller may initiate legal proceedings specified in Section 9.6 to obtain resolution of the dispute.

 

(D)         If neither Purchaser nor Seller initiate legal proceedings in respect of the dispute within twelve (12) months following the date the Dispute Notice is given, the portion of the Indemnity Claim Amount which is disputed shall not be an Indemnity Amount Payable, and the Indemnitee shall have no further right, under this Agreement or otherwise, to seek to recover such amount from the Indemnitor.

 

(E)         If Purchaser or Seller initiate legal proceedings within the twelve (12) month period specified in Section 8.6(b)(iv)(D), the amount, if any, determined pursuant to Section 9.6 or in a final order of a court of competent jurisdiction as payable by the Indemnitor shall be an Indemnity Amount Payable of the Indemnitor as of the date of such final order.

 

(c)       Payments of Indemnity Amounts Payable by Purchaser. Subject to the limitations in Section 8.4, Purchaser shall pay any Indemnity Amount Payable by Purchaser, by wire transfer of immediately available dollars (or as otherwise directed pursuant to any final order of a court of competent jurisdiction or as otherwise agreed by the Indemnitee and the Indemnitor) to Seller (for itself or any other Seller Indemnitee entitled to any such Indemnity Amount Payable), promptly and in no event later than ten (10) Business Days after such Indemnity Amount Payable is established in accordance with this Agreement.

 

 

 

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(d)       Payments of Indemnity Amounts Payable by Seller. Subject to the limitations in Section 8.4, at any time after an Indemnity Amount Payable to a Purchaser Indemnitee has been established pursuant to Seller’s indemnity obligations under this Agreement, Purchaser may seek recovery of any such amount through any of the following methods, either individually or in combination with another such method:

 

(i)              if there are any amounts payable pursuant to this Agreement then due and owing by Purchaser to the applicable Seller Indemnitor, then Purchaser may reduce any such amount payable by Purchaser to the applicable Seller Indemnitor by such Indemnity Amount Payable owed by Seller to Purchaser;

 

(ii)            by delivering notice of such Indemnity Amount Payable to Seller at the address and in the manner provided in Section 9.1, in which case Seller shall pay any such Indemnity Amount Payable by wire transfer of immediately available dollars (or as otherwise directed pursuant to any final order of a court of competent jurisdiction or as otherwise agreed by the Indemnitee and the Indemnitor) to Purchaser (for itself or any other Purchaser Indemnitee entitled to such Indemnity Amount Payable), promptly and in no event later than ten (10) Business Days after such notice is given.

 

(e)       Seller Indemnitees other than Seller and Purchaser Indemnitees other than Purchaser shall be third-party beneficiaries of this Article VIII and, subject to the limitations set forth herein, may enforce (through Seller or Purchaser, as applicable) the provisions of this Article VIII.

 

ARTICLE IX.

GENERAL PROVISIONS

 

Section 9.1    Notices. Any notice to be given hereunder shall be in writing and shall be delivered by hand (including by express courier) or sent by registered prepaid first class mail or by e-mail to the Persons or addresses specified below (or such other Person or address as a Party may previously have notified all other Parties in writing for that purpose). A notice shall be deemed to have been served when delivered by hand at that address or received by e-mail, or, if sent by registered prepaid first class mail as aforesaid, on the date delivered. The names and addresses for the service of notices referred to in this Section 9.1 (Notices) are:

 

If to Seller, to:

 

Sulus Solar

c/o Wework

Power & Light Building

920 SW 6th Avenue

Portland, OR 97204

Attn: Conor Grogan

Email: conor.grogan@sulus solar.com

Telephone: (971) 336-3715

 

 

 

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If to Purchaser, to:

 

SPI Solar, Inc.

4677 Old Ironsides Drive, Suite 190

Santa Clara, CA 95054

Attn: Phillip Leung

Email: Phillip.leung@spigroups.com

Telephone: (415) 996–5305

 

Section 9.2 Third-Party Beneficiaries. This Agreement is solely for the benefit of the Parties and their respective permitted successors and permitted assigns and, except as provided in Section 8.6(e), this Agreement shall not otherwise be deemed to confer upon or give to any other third party any right, claim, cause of action, or other interest herein.

 

Section 9.3 Amendment and Waiver. Neither this Agreement nor any term hereof may be changed, amended or terminated orally, but only by written act of Seller and Purchaser (or, in respect of a waiver, the waiving Party). No failure or delay on the part of a Party hereto in the exercise of any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or of any other right. The rights and remedies of Purchaser in relation to any misrepresentation or breach of warranty on the part of the Seller shall not be prejudiced by any investigation by or on behalf of Purchaser into the affairs of Seller or any Company, by the execution or the performance of this Agreement or by any other act or thing by or on behalf of Purchaser which might prejudice such rights or remedies.

 

Section 9.4 Binding Nature; Assignment; Consent to Assignment. Subject to the provisions of Section 9.2, this Agreement shall bind and inure to the benefit of the Parties hereto and their respective successors and legal representatives and permitted assigns. Seller shall not assign its rights and obligations under this Agreement, without the prior written consent of the Purchaser. Purchaser shall not assign its rights and obligations under this Agreement, without the prior written consent of Seller, provided that, Purchaser shall be permitted to assign this Agreement to an Affiliate without Seller’s prior written consent. Any assignment contrary to the terms hereof shall be null and void and of no force and effect. Seller and Purchaser agree to acknowledge the transfer of the rights and obligations of the other made in accordance with the terms of this Section 9.4 (Binding Nature; Assignment; Consent to Assignment), which acknowledgement shall be in form and substance reasonably satisfactory to the acknowledging Party.

 

Section 9.5 Governing Law. This Agreement shall be deemed made and prepared and shall be governed, construed and interpreted in accordance with the internal laws of the State of Oregon, without regard to principles of conflict of laws thereof which may require the application of the law of another jurisdiction.

 

Section 9.6 Jurisdiction; Service of Process. Each of the Parties, for itself and in respect of its property, irrevocably consents to the exclusive jurisdiction of the courts of the County of Multnomah, State of Oregon and of any federal court located therein, waives any right to invoke and agrees not to invoke any claim of forum non conveniens, inconvenient forum, transfer of venue or any other objection to venue in the County of Multnomah, State of Oregon, and agrees that, to the extent permitted by law, service of process in connection with any such proceeding may be effected by mailing in the same manner provided in Section 9.1 (Notices) hereof. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BETWEEN SELLER AND PURCHASER ON THE CLOSING DATES.

 

 

 

 

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Section 9.7 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but each of which, when taken together, shall constitute one and the same instrument.

 

Section 9.8 Headings. The section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning and interpretation of this Agreement.

 

Section 9.9 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, (provided the substance of the agreement between Seller and Purchaser is not thereby materially altered) and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by Applicable Laws, the Parties hereto hereby waive any provision of law which renders any provision hereof prohibited or unenforceable in any respect.

 

Section 9.10 Entire Agreement. This Agreement, its Annexes and Exhibits and the other Transaction Documents constitute the entire understanding of the Parties with respect to the subject matter hereof, and supersedes all prior statements or agreements, whether oral or written, between the Parties with respect to such subject matter.

 

Section 9.11 No Agents. Seller represents to Purchaser that neither Seller nor any Affiliate thereof has retained any broker, agent or finder or incurred any liability or obligation for any brokerage fees, commissions or finder fees with respect to this Agreement or the transactions contemplated between Seller and Purchaser on the Closing Dates.

 

Section 9.12 Expenses. Each Party shall be responsible for its own costs and expenses, including any legal fees, incurred in connection with this Agreement and the transactions contemplated between Seller and Purchaser on the Closing Dates.

 

Section 9.13 Confidentiality. Each Party has furnished the other Party hereto with certain information which is either non-public, confidential or proprietary in nature, which information, together with all analyses, compilations, data, studies or other documents prepared with respect thereto by either Party or any Company or their respective directors, officers, employees, agents or representatives, including attorneys, accountants, consultants, potential lenders, investors and financial advisors (collectively, “Representatives”) shall be hereinafter referred to as “Confidential Information”. Following the date hereof, each Party shall hold, and shall use all reasonable efforts to cause its Affiliates and Representatives to hold, such Confidential Information in strict confidence from any other Person (other than any such Affiliate or Representative) consistent with its own practices, unless (a) compelled to disclose by judicial or administrative process or by other requirements of Applicable Law or (b) disclosed in an action or proceeding brought by such Party in pursuit of its rights or exercise of its remedies hereunder. If the party receiving such Confidential Information (the “Receiving Party”) is required to disclose any Confidential Information pursuant to any subpoena or any other equivalent legal process, the Receiving Party shall promptly notify the party who disclosed such Confidential Information (the “Disclosing Party”) so that the Disclosing Party can seek a protective order from the court having jurisdiction in such matter or otherwise seek to prevent or limit the scope or impose conditions upon such disclosure. Notwithstanding anything contained herein, (i) the foregoing restrictions will not apply to the use or disclosure following the Closing Date by Purchaser or the Companies of Confidential Information concerning the Companies; (ii) each party hereto (and each employee, representative, or other agent of such party) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transaction contemplated by this Agreement and all materials of any kind (including opinions and other tax analyses) that are provided to any party relating to such tax treatment and tax structure; (iii) Confidential Information shall not include information (x) that was publicly available at the time of the disclosure thereof by one party to the other, (y) that becomes publicly available other than through actions of the Receiving Party or any of its Representatives in violation of this Agreement, or (z) that was in the possession of the Receiving Party (without confidential or proprietary restriction) at the time of disclosure or that becomes available to the Receiving Party from a source not subject to any obligation to keep such information confidential; and (iv) if this Agreement is validly terminated pursuant to Section 7.1(a) or (b) after a Closing has occurred for any one or more of the Companies, with respect to any such Company that is acquired, the foregoing restrictions will only apply for a period of two (2) years from the effective date of the termination.

 

 

 

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Section 9.14 Setoff. If at any time any amounts become due to Purchaser from Seller arising hereunder and have not been paid, Seller absolutely and unconditionally covenants and agrees that Purchaser shall have the irrevocable and continuing right to offset any such amounts against portion of the Base Purchase Price (or any installment thereof) due or thereafter to become due to Seller, and Purchaser may withhold making any such payments hereunder until all amounts owed to Purchaser are paid.

 

Section 9.15 Further Assurances. Each Party hereto covenants and agrees promptly to execute, deliver, file, or record such agreements, instruments, certificates and other documents and to do and perform such other and further acts and things as any other party hereto may reasonably request or as may be otherwise be necessary or proper to consummate the transactions contemplated hereby and to carry out the provisions of this Agreement. The Parties shall cooperate in making all filings required to be made in connection with any Transfer Taxes described in Section 6.3 (Transfer Taxes).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Section 9.16 Joint Negotiations and Preparation of Agreement. The Parties have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as having been jointly drafted by the Parties and no presumption or burden of proof favoring or disfavoring any Party will exist or arise by virtue of the authorship of any provision of this Agreement.

 

Section 9.17 No Joint Venture. Nothing in this Agreement is intended to, or shall be deemed or construed to, establish any partnership or joint venture between the Parties, constitute any Party the agent of another Party, or authorize any Party to make or enter into any commitments for or on behalf of the other Party. No Party shall hold itself out contrary to the terms of this Section, and no Party shall become liable by any representation, act or omission of the other Party contrary to the provisions hereof.

 

[Remainder of page intentionally left blank.]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed by their duly authorized officers as of the date first written above.

 

  PURCHASER
   
  SPI SOLAR, INC.
   
 
   
   
  By:_________________________________
   Name:
   Title:
   
   
  SELLER
   
  SULUS LLC
   
 
   

 

 

 

 

 

 

 

[Signature Page -- SPI Solar, Inc. - Sulus Membership Interest Purchase Agreement]

 

 

 

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Membership Interest Purchase Agreement

Annex 1A

Company; Company Interests, Projects; Project Sites; LLC Agreement

 

Project Company Project Site Real Estate Interest AC kW DC kW

Manchester Project

Manchester Solar
LLC, an Oregon
limited liability
company
18100 SE Neck Rd., Dayton, OR 97114 Ground
Lease
1,800 2,160
Clayfield Project Clayfield Solar LLC, an Oregon limited liability company 23779 S Springwater Rd, Estacada, OR 97023, Ground
Lease
2,565 3,078
Waterford Project Waterford Solar LLC, an Oregon limited liability company 8755 Fort Hill Rd, Willamina, OR 97396, Ground
Lease
2,565 3,078
Cavan
Project
Cavan Solar LLC, an Oregon limited liability company 12245 NW Dersham Rd, North Plains, OR 97133, USA Ground
Lease
1,800 2,160
Belvedere Project Belvedere Solar LLC, an Oregon limited liability company 9526 Mount Angel Highway Northeast, Mount Angel, Oregon, Ground
Lease
2,970 3,564
Cork
Project
Cork Solar LLC, an Oregon limited liability company 14920 S Claim Rd, Molalla, OR 97038, USA Ground
Lease
1,260 1,512
Carlow
Project
Carlow Solar LLC, an Oregon limited liability company 47644 SE Marmot Rd, Sandy, OR 97055, USA Ground
Lease
2,565 3,078
Dover
Project
Dover Solar LLC, an Oregon limited liability company 9350 S Gribble Rd, Canby, OR 97013, USA Ground
Lease
1,980 2,376
      Total 17,505 21,006

 

 

 

     

 

 

Annex 1B –
Purchase Price

 

Company DC kW Purchase Price($/W) Closing
Date
Payment
Amount
Milestone Payment Amount NTP
Payment
Amount

COD Payment

Amount

Manchester Solar LLC, an Oregon limited liability company 2,160 0.085 $36,720 $36,720 $73,440 $36,720
Clayfield Solar LLC, an Oregon limited liability company 3,078 0.085 $52,326 $52,326 $104,652 $52,326
Waterford Solar LLC, an Oregon limited liability company 3,078 0.085 $52,326 $52,326 $104,652 $52,326
Cavan Solar LLC, an Oregon limited liability company 2,160 0.085 $36,720 $36,720 $73,440 $36,720
Belvedere Solar LLC, an Oregon limited liability company 3,564 0.085 $60,588 $60,588 $121,176 $60,588
Cork Solar LLC, an Oregon limited liability company 1,512 0.085 $25,704 $25,704 $51,408 $25,704
Carlow Solar LLC, an Oregon limited liability company 3,078 0.085 $52,326 $52,326 $104,652 $52,326
Dover Solar LLC, an Oregon limited liability company 2,376 0.085 $40,392 $40,392 $80,784 $40,392

 

 

 

 

 

     

 

 

Annex 1C

Termination Date

 

Company Termination Date
Manchester Solar LLC, an Oregon
limited liability company
December 31, 2021
Clayfield Solar LLC, an Oregon
limited liability company
December 31, 2021
Waterford Solar LLC, an Oregon
limited liability company
December 31, 2021
Cavan Solar LLC, an Oregon
limited liability company
December 31, 2021

Belvedere Solar LLC, an

Oregon limited liability company

December 31, 2021

Cork Solar LLC, an

Oregon limited liability company

December 31, 2021

Carlow Solar LLC, an

Oregon limited liability company

December 31, 2021

Dover Solar LLC, an

Oregon limited liability company

December 31, 2021

 

 

 

 

 

     

 

 

Annex 2A

Assets of the Companies

 

Company Assets of Company
Manchester Solar LLC, an Oregon limited liability company

Ground Lease Agreement dated September 24, 2018

Memorandum of Ground Lease Agreement recorded October 4, 2018

Clayfield Solar LLC, an Oregon limited liability company

Ground Lease Agreement dated September 10, 2018

Memorandum of Ground Lease Agreement recorded September 13, 2018

Waterford Solar LLC, an Oregon limited liability company

Ground Lease Agreement dated June 8, 2018

Memorandum of Ground Lease Agreement recorded November 11, 2018

Cavan Solar LLC, an Oregon limited liability company

Ground Lease Agreement dated March 27, 2018

Memorandum of Ground Lease Agreement recorded April 26, 2018

Belvedere Solar LLC, an Oregon limited liability company

Ground Lease Agreement dated September 10, 2018

Memorandum of Ground Lease Agreement recorded September 13, 2018

Cork Solar LLC, an Oregon limited liability company

Ground Lease Agreement dated April 16, 2018

Memorandum of Ground Lease Agreement recorded April 24, 2018

Carlow Solar LLC, an Oregon limited liability company  
Dover Solar LLC, an Oregon limited liability company

Ground Lease Agreement dated January 25, 2018

Memorandum of Ground Lease Agreement recorded April 24, 2018

 

[No Company owns or licenses any Intellectual Property rights.]

 

 

 

     

 

 

Annex 2B

Real Property Documents

 

Company Real Property Documents
Manchester Solar LLC, an Oregon limited liability company

Lease;

 

Memorandum of Lease;

 

Other recorded instruments intended to give record notice thereof, and all amendments, modifications, supplements, assignments and agreements related thereto.

 

Easement (if lease area does not abut Point of Interconnection)

Clayfield Solar LLC, an Oregon limited liability company

Lease;

 

Memorandum of Lease;

 

Other recorded instruments intended to give record notice thereof, and all amendments, modifications, supplements, assignments and agreements related thereto.

 

Easement (if lease area does not abut Point of Interconnection)

Waterford Solar LLC, an Oregon limited liability company

Lease;

 

Memorandum of Lease;

 

Other recorded instruments intended to give record notice thereof, and all amendments, modifications, supplements, assignments and agreements related thereto.

 

Easement (if lease area does not abut Point of Interconnection)

Cavan Solar LLC, an Oregon limited liability company

Lease;

 

Memorandum of Lease;

 

Other recorded instruments intended to give record notice thereof, and all amendments, modifications, supplements, assignments and agreements related thereto.

 

Easement (if lease area does not abut Point of Interconnection)

 

 

 

     

 

 

Belvedere Solar LLC, an Oregon limited liability company

Lease;

 

Memorandum of Lease;

 

Other recorded instruments intended to give record notice thereof, and all amendments, modifications, supplements, assignments and agreements related thereto.

 

Easement (if lease area does not abut Point of Interconnection)

Cork Solar LLC, an Oregon limited liability company

Lease;

 

Memorandum of Lease;

 

Other recorded instruments intended to give record notice thereof, and all amendments, modifications, supplements, assignments and agreements related thereto.

 

Easement (if lease area does not abut Point of Interconnection)

Carlow Solar LLC, an Oregon limited liability company

Lease;

 

Memorandum of Lease;

 

Other recorded instruments intended to give record notice thereof, and all amendments, modifications, supplements, assignments and agreements related thereto.

 

Easement (if lease area does not abut Point of Interconnection)

Dover Solar LLC, an Oregon limited liability company

Lease;

 

Memorandum of Lease;

 

Other recorded instruments intended to give record notice thereof, and all amendments, modifications, supplements, assignments and agreements related thereto.

 

Easement (if lease area does not abut Point of Interconnection)

 

 

 

     

 

 

Annex 3

Material Project Documents

 

Company Material Project Documents
Manchester Solar LLC, an Oregon limited liability company

Power Purchase Agreement with Portland General Electric dated September 17th 2018

 

System Impact Study with Portland

 

General Electric dated March 14th 2019

 

Facilities Study with Portland General Electric dated June 26th 2019

 

Conditional Use Permit reference C-27-18/SDR-34-18 with Yamhill County dated November 29th 2018

 

Preliminary Title Report with Stewart dated June 11th 2019

Clayfield Solar LLC, an Oregon limited liability company

Power Purchase Agreement with Portland General Electric dated October 23rd 2018

 

System Impact Study with Portland

 

General Electric dated February 19th 2019

 

Facilities Study with Portland General Electric dated June 5th 2019

 

Interconnection Agreement with Portland General Electric dated June 26th 2019

 

Preliminary Title Report with Stewart dated May 21st 2019

Waterford Solar LLC, an Oregon limited liability company

System Impact Study with Portland

 

General Electric dated October 18th 2018

 

Facilities Study with Portland General Electric dated February 5th 2019

 

Interconnection Agreement with Portland General Electric dated March 13th 2019

 

Conditional Use Permit reference CU 18-11 with Polk County dated March 29th 2019

 

Preliminary Title Report with Stewart dated June 20th 2019

 

 

 

     

 

 

Cavan Solar LLC, an Oregon limited liability company

System Impact Study with Portland General Electric dated December 27th 2018

 

Facilities Study with Portland General Electric dated April 15th 2019

 

Interconnection Agreement with Portland General Electric dated May 22nd 2019

 

Preliminary Title Report with Stewart dated March 6th 2019

Belvedere Solar LLC, an Oregon limited liability company

System Impact Study with Portland General Electric dated March 14th 2019

 

Facilities Study with Portland General Electric dated June 27th 2019

 

Conditional Use Permit reference CU 18-011 with Marion County dated 28th June 2018

 

Preliminary Title Report with Stewart dated June 12th 2019

Cork Solar LLC, an Oregon limited liability company

Feasibility Study with Portland General Electric dated 22nd February 2019

 

Preliminary Title Report with Stewart dated March 1st 2018

Carlow Solar LLC, an Oregon limited liability company None
Dover Solar LLC, an Oregon limited liability company

System Impact Study with Portland General Electric dated June 10th 2019

Conditional Use Permit reference Z0149-18-C with Clackamas County dated August 6th 2018

 

Preliminary Title Report with Stewart dated January 26th 2019

 

 

 

 

 

     

 

 

Annex 4

Governmental Approvals

 

Company Governmental Approvals Notes
Manchester Solar LLC, an Oregon limited liability company Conditional Use Permit  
Phase 1 ESA Not undertaken
Wetland/Floodplain Delineation and concurrence if applicable Not undertaken
USACE/DSL Approvals if applicable Not undertaken
All applicable County Permits such as building, grading, electrical, right of way Not undertaken
Title Insurance Not undertaken
1200-C NPDES permit from Oregon Department of Environmental Quality if applicable Not undertaken
ODOT permit if applicable Not undertaken
FERC Filing  
Company Articles  
Oregon Tax Returns  
Licensed Engineering with such as Grid Application SLD  
  Other County/State/Federal Consents as applicable  

 

 

 

     

 

 

Clayfield Solar LLC, an Oregon limited liability company Conditional Use Permit Not undertaken
Phase 1 ESA Not undertaken
Wetland/Floodplain Delineation and concurrence if applicable Not undertaken
USACE/DSL Approvals if applicable Not undertaken
All applicable County Permits such as building, grading, electrical, right of way Not undertaken
Title Insurance Not undertaken
1200-C NPDES permit from Oregon Department of Environmental Quality if applicable Not undertaken
ODOT permit if applicable Not undertaken
FERC Filing  
Company Articles  
Oregon Tax Returns  
Licensed Engineering with such as Grid Application SLD  
  Other County/State/Federal Consents as applicable  

 

 

 

     

 

 

Waterford Solar LLC, an Oregon limited liability company Conditional Use Permit  
Phase 1 ESA Not undertaken
Wetland/Floodplain Delineation and concurrence if applicable Not undertaken
USACE/DSL Approvals if applicable Not undertaken
All applicable County Permits such as building, grading, electrical, right of way Not undertaken
Title Insurance Not undertaken
1200-C NPDES permit from Oregon Department of Environmental Quality if applicable Not undertaken
ODOT permit if applicable Not undertaken
FERC Filing  
Company Articles  
Oregon Tax Returns  
Licensed Engineering with such as Grid Application SLD  
  Other County/State/Federal Consents as applicable  

 

 

 

     

 

 

Cavan Solar LLC,
an Oregon limited
liability company
Conditional Use Permit Not undertaken
Phase 1 ESA Not undertaken
Wetland/Floodplain Delineation and concurrence if applicable Not undertaken
USACE/DSL Approvals if applicable Not undertaken
All applicable County Permits such as building, grading, electrical, right of way Not undertaken
Title Insurance Not undertaken
1200-C NPDES permit from Oregon Department of Environmental Quality if applicable Not undertaken
ODOT permit if applicable Not undertaken
FERC Filing  
Company Articles  
Oregon Tax Returns  
Licensed Engineering with such as Grid Application SLD  
  Other County/State/Federal Consents as applicable  

 

 

 

     

 

 

Belvedere Solar LLC, an Oregon limited liability company Conditional Use Permit  
Phase 1 ESA Not undertaken
Wetland/Floodplain Delineation and concurrence if applicable Not undertaken
USACE/DSL Approvals if applicable Not undertaken
All applicable County Permits such as building, grading, electrical, right of way Not undertaken
Title Insurance Not undertaken
1200-C NPDES permit from Oregon Department of Environmental Quality if applicable Not undertaken
ODOT permit if applicable Not undertaken
FERC Filing  
Company Articles  
Oregon Tax Returns  
Licensed Engineering with such as Grid Application SLD  
  Other County/State/Federal Consents as applicable  

 

 

 

     

 

 

Cork Solar LLC,
an Oregon limited
liability company
Conditional Use Permit Not undertaken
Phase 1 ESA Not undertaken
Wetland/Floodplain Delineation and concurrence if applicable Not undertaken
USACE/DSL Approvals if applicable Not undertaken
All applicable County Permits such as building, grading, electrical, right of way Not undertaken
Title Insurance Not undertaken
1200-C NPDES permit from Oregon Department of Environmental Quality if applicable Not undertaken
ODOT permit if applicable Not undertaken
FERC Filing  
Company Articles  
Oregon Tax Returns  
Licensed Engineering with such as Grid Application SLD  
  Other County/State/Federal Consents as applicable  

 

 

 

     

 

 

Carlow Solar LLC, an Oregon limited liability company Conditional Use Permit Not undertaken
Phase 1 ESA Not undertaken
Wetland/Floodplain Delineation and concurrence if applicable Not undertaken
USACE/DSL Approvals if applicable Not undertaken
All applicable County Permits such as building, grading, electrical, right of way Not undertaken
Title Insurance Not undertaken
1200-C NPDES permit from Oregon Department of Environmental Quality if applicable Not undertaken
ODOT permit if applicable Not undertaken
FERC Filing  
Company Articles  
Oregon Tax Returns  
Licensed Engineering with such as Grid Application SLD  
  Other County/State/Federal Consents as applicable  

 

 

 

     

 

 

Dover Solar LLC,
an Oregon limited
liability company
Conditional Use Permit  
Phase 1 ESA Not undertaken
Wetland/Floodplain Delineation and concurrence if applicable Not undertaken
USACE/DSL Approvals if applicable Not undertaken
All applicable County Permits such as building, grading, electrical, right of way Not undertaken
Title Insurance Not undertaken
1200-C NPDES permit from Oregon Department of Environmental Quality if applicable Not undertaken
ODOT permit if applicable Not undertaken
FERC Filing  
Company Articles  
Oregon Tax Returns  
Licensed Engineering with such as Grid Application SLD  
  Other County/State/Federal Consents as applicable  

 

 

 

     

 

 

Annex 5

Insurance Policies

 

Company Insurance Policies
Manchester Solar LLC, an Oregon limited liability company None.
Clayfield Solar LLC, an Oregon limited liability company None.
Waterford Solar LLC, an Oregon limited liability company None.
Cavan Solar LLC, an Oregon limited liability company None.
Belvedere Solar LLC, an Oregon limited liability company None.
Cork Solar LLC, an Oregon limited liability company None.
Carlow Solar LLC, an Oregon limited liability company None.
Dover Solar LLC, an Oregon limited liability company None.

 

 

 

     

 

 

Annex 6

Disclosed Conditions

 

Company Disclosed Conditions
Manchester Solar LLC, an Oregon limited liability company None other than any revealed by the Environmental Report.
Clayfield Solar LLC, an Oregon limited liability company None other than any revealed by the Environmental Report.
Waterford Solar LLC, an Oregon
limited liability company
None other than any revealed by the Environmental Report.
Cavan Solar LLC, an Oregon
limited liability company
None other than any revealed by the Environmental Report.

Belve.dere Solar LLC, an

Oregon limited liability company

None other than any revealed by the Environmental Report.

Cork Solar LLC, an

Oregon limited liability company

None other than any revealed by the Environmental Report.

Carlow Solar LLC, an

Oregon limited liability company

None other than any revealed by the Environmental Report.

Dover Solar LLC, an

Oregon limited liability company

None other than any revealed by the Environmental Report.

 

 

 

 

     

 

 

Annex 7

Affiliate Transactions

 

Company Affiliate Transactions
Manchester Solar LLC, an Oregon limited liability company None.
Clayfield Solar LLC, an Oregon limited liability company None.
Waterford Solar LLC, an Oregon limited liability company None.
Cavan Solar LLC, an Oregon limited liability company None.

Belvedere Solar LLC, an Oregon limited liability company

None.

Cork Solar LLC, an Oregon limited liability company

None.

Carlow Solar LLC, an Oregon limited liability company

None.

Dover Solar LLC, an Oregon limited liability company

None.

 

 

 

 

 

     

 

 

Annex 8
Liabilities

 

Company Liabilities
Manchester Solar LLC, an Oregon limited liability company None.
Clayfield Solar LLC, an Oregon limited liability company None.
Waterford Solar LLC, an Oregon limited liability company None.
Cavan Solar LLC, an Oregon limited liability company None.

Belvedere Solar LLC, an Oregon limited liability company

None.

Cork Solar LLC, an Oregon limited liability company

None.

Carlow Solar LLC, an Oregon limited liability company

None.

Dover Solar LLC, an Oregon limited liability company

None.

 

 

 

 

 

     

 

 

Annex 9

Estoppels Required from Counterparties

 

Company Estoppels Required from Counterparties
Manchester Solar LLC, an Oregon limited liability company Landowner Estoppel.
Clayfield Solar LLC, an Oregon limited liability company Landowner Estoppel.
Waterford Solar LLC, an Oregon limited liability company Landowner Estoppel.
Cavan Solar LLC, an Oregon limited liability company Landowner Estoppel.

Belvedere Solar LLC, an Oregon limited liability company

Landowner Estoppel.

Cork Solar LLC, an Oregon limited liability company

Landowner Estoppel.

Carlow Solar LLC, an Oregon limited liability company

Landowner Estoppel.

Dover Solar LLC, an Oregon limited liability company

Landowner Estoppel.

 

 

 

 

     

 

 

Annex 10

Consents and Notices Required

 

Company Consents Required
Manchester Solar LLC, an Oregon limited liability company None.
Clayfield Solar LLC, an Oregon limited liability company None.
Waterford Solar LLC, an Oregon limited liability company None.
Cavan Solar LLC, an Oregon limited liability company None.
Belvedere Solar LLC, an Oregon limited liability company None.
Cork Solar LLC, an Oregon limited liability company None.
Carlow Solar LLC, an Oregon limited liability company None.
Dover Solar LLC, an Oregon limited liability company None.

 

 

 

     

 

 

Annex 11

 

 

[Reserved]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

     

 

 

Annex 12

Environmental Reports

 

Company Environmental Reports
Manchester Solar LLC, an Oregon limited liability company None.
Clayfield Solar LLC, an Oregon limited liability company None.
Waterford Solar LLC, an Oregon limited liability company None.
Cavan Solar LLC, an Oregon limited liability company None.
Belvedere Solar LLC, an Oregon limited liability company None.
Cork Solar LLC, an Oregon limited liability company None.
Carlow Solar LLC, an Oregon limited liability company None.
Dover Solar LLC, an Oregon limited liability company None.

 

 

 

 

     

 

 

Exhibit 1

 

Membership Interest Assignment Agreement (form)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

     

 

 

Membership Interest Assignment Agreement

 


PROJECTCO, LLC

 

This Membership Interest Assignment Agreement (this “Assignment”) is made and entered into by Sulus LLC, an Oregon limited liability company (“Assignor”), and SPI Solar Inc., a Delaware Corporation (“Assignee”), effective as of_____ , 20__ (the “Closing Date”).

 

RECITALS

 

WHEREAS, Assignor and Assignee are party to that certain Membership Interest Purchase Agreement, dated as of______ , 201 , as it may be amended, supplemented or modified from time to time (the “Membership Interest Purchase Agreement”);

 

WHEREAS, Assignor owns one hundred percent (100%) of the issued and outstanding equity interests (including all of the limited liability company interests and rights as a member under the Oregon Limited Liability Company Act or otherwise) (the “Assigned Interests”) of PROJECTCO, LLC, an Oregon limited liability company (the “Company”);

 

WHEREAS, pursuant to the Membership Interest Purchase Agreement, Assignor has agreed to assign, transfer, set over, deliver and convey to Assignee the Assigned Interests;

 

WHEREAS, capitalized terms used herein without definition are used as defined in the Membership Interest Purchase Agreement;

 

WHEREAS, this Assignment is executed and delivered by Assignor and Assignee in connection with the Closing under, and in accordance with and subject to the terms and conditions of the Membership Interest Purchase Agreement;

 

NOW, THEREFORE, BE IT KNOWN THAT:

 

1.                  Conveyance and Assignment. For good and valuable consideration as set forth in the Membership Interest Purchase Agreement, effective as of the Closing Date, Assignor does hereby ASSIGN, TRANSFER, SET OVER, DELIVER AND CONVEY to Assignee all of such Assignor’s rights, title and interest in and to the Assigned Interests, free and clear of all liens, including, without limitation, Assignor’s rights as a member of the Company in and to all (i) capital and assets of the Company, (ii) profits and losses of the Company, and (iii) distributions (whether now due or hereafter to become due) from the Company, free and clear of all Liens.

 

2.                  Acceptance of Assignment. On and as of the Closing Date, Assignee hereby accepts the assignment, transfer, set over, delivery and conveyance of all of Assignor’s rights, title and interest in and to the Assigned Interests as set forth above, free and clear of all liens.

 

3.                  Consent to Assignment. Assignor, as the sole member of the Company on the Closing Date, hereby (a) approves and consents to the assignment of the Assigned Interests and the admission of Assignee as the sole member of such Company and (b) waives and relinquishes all rights and options set forth in the limited liability company agreement of the Company to purchase any of the Assigned Interests in connection with such assignment.

 

4.                  Conflict Among Agreements. In the event of a conflict between the terms and conditions of this Assignment and the terms and conditions of the Membership Interest Purchase Agreement, the terms and conditions of the Membership Interest Purchase Agreement shall govern, supersede and prevail.

 

 

 

     

 

 

5.                  Titles and Captions. All section or paragraph titles or captions in this Assignment are for convenience only, shall not be deemed part of this Assignment, and in no way define, limit, extend or describe the scope or intent of any provision hereof.

 

6.                  Further Assurances. Assignor covenants and agrees promptly to execute, deliver, file, or record, or cause to be executed, delivered, filed or recorded, such agreements, instruments, certificates and other documents and to do and perform such other and further actions as Assignee may reasonably request or as may otherwise be necessary, convenient or proper to assign, convey, transfer and deliver the Assigned Interests unto Assignee.

 

7.                  No Third Party Beneficiaries. This Assignment is solely for the benefit of the parties hereto, and no provision of this Assignment shall be deemed to confer any remedy, claim or right upon any third party.

 

8.                  Counterparts and Amendments. This Assignment may be executed in multiple counterparts, all of which taken together shall constitute one original instrument. This Assignment may be amended, modified or supplemented only in a writing signed by each party to this Assignment.

 

9.                  Governing Law. This Assignment shall be governed by and construed in and interpreted in accordance with the laws of the State of Oregon.

 

[The remainder of the page left intentionally blank.]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  2  

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of the date first set forth above.

 

 

  Assignor:
   
  Sulus LLC
   
   
   
  By: _                                                   - -
  Name:
  Title:
   
   
   
  Assignee:
   
  SPI Solar Inc.

   
   
  By: _                                                   - -
  Name:
  Title:

 

[Signature Page to Membership Interest Assignment Agreement – PROJECTCO LLC

 

 

 

  3  

 

 

Exhibit 2

 

Seller Parent Guaranty

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

     

 

 

GUARANTY AGREEMENT

 

This GUARANTY AGREEMENT (this “Guaranty”) is made as of the day of_______ 201 , by Sulus Developments Limited (“Guarantor”), for the benefit of SPI Solar, “Purchaser”). Guarantor and Purchaser are individually referred to herein as a “Party” and collectively as the “Parties.”

 

RECITALS

 

WHEREAS, Guarantor is the sole beneficial and record owner of one hundred percent (100%) of Sulus LLC, an Oregon limited liability company (“Seller”); WHEREAS, Seller is the sole beneficial and record owner of one hundred percent (100%) of the limited liability company membership interests (the “Company Interests”) in the eight (8) limited liability companies described in Annex 1A of the Contract (each, a “Company” and collectively, the “Companies”);

 

WHEREAS, Purchaser and Seller have entered into a Membership Interest Purchase Agreement dated_____ , 201 for the purchase of the Company Interests (the “Contract”);

 

WHEREAS, pursuant to Section 5.1(d) of the Contract, Guarantor is obligated to provide Purchaser with this Guaranty; and

 

WHEREAS, Guarantor as the parent company of Seller, is willing to enter into this Guaranty in consideration of and to satisfy the terms of the Contract.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the premises and mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

 

1.      In consideration of the award of the Contract by Purchaser to Seller, Guarantor hereby guarantees to and for the benefit of Purchaser the full and timely performance of the obligations of the Seller under the Contract when and if such obligations become due according to the terms of the Contract (“Obligations”). Guarantor covenants with Purchaser that if at any time Seller should default in the payment or performance of any of the Obligations, Guarantor shall, not less than ten (10) business days after receiving written notice by Purchaser of such default (after giving effect to all applicable notice and grace periods), pay in Seller’s stead, or cause the payment or performance of, such Obligations; provided, however, if such performance default is curable but shall reasonably require more than ten (10) business days to cure, Guarantor shall be afforded additional time to effect such cure, provided Guarantor commences to cure the default within the initial ten (10) business day period and, thereafter, diligently prosecutes the same to completion. Guarantor’s liability under this Guaranty Agreement (the “Guaranty”) is a continuing guaranty of payment and performance, and not of collection, and shall apply to all Obligations whenever arising, without regard to whether such Obligation is contingent or absolute, liquidated or unliquidated, or whether recovery may be or has become barred by any statute of limitations or otherwise may be unenforceable except those Obligations that have been determined to be fully performed by the Seller in accordance therewith or deemed to not be the Seller’s obligations thereunder, in each case as shall have been finally determined by arbitration or a court of competent jurisdiction. Capitalized terms used but not defined in this Guaranty shall have the meanings given to them in the Contract.

 

2.       Notwithstanding anything to the contrary herein, Guarantor's liability under this Guaranty shall not exceed Seller’s liability under the Contract. In addition to the amounts for which payment is guaranteed hereunder, Guarantor agrees to pay reasonable documented attorneys’ fees and all other costs and expenses incurred by Purchaser in enforcing this Guaranty or any action or proceeding arising out of or relating to this Guaranty.

 

 

 

     

 

 

3.       The obligations of Guarantor hereunder shall be irrevocable, absolute and unconditional, and shall remain in full force and effect until such time as set forth in Section 5 hereof; provided, that notwithstanding anything in this Guaranty to the contrary, Guarantor expressly reserves to itself all rights, setoffs, counterclaims and defenses that the Seller would or could be entitled to assert under the Contract arising from or out of the Contract or at law or in equity if a claim were made directly against Seller under the Contract, other than defenses arising from (i) the insolvency, reorganization, bankruptcy or dissolution of the Seller, (ii) the lack of power or authority of the Seller to enter into or to perform its obligations under the Contract, or (iii) any rights or remedies waived pursuant to Section 8 hereof. Without limiting the reservation of rights in the preceding sentence, the obligations of Guarantor shall not be affected, modified or impaired or prejudiced (x) by any other security now or hereafter held by the Purchaser as security for the Obligations; or (y) upon the happening from time to time of any one or more of the following whether or not with notice to or consent of the Seller (except to the extent that Seller’s consent may be required to effectuate a modification of the Contract) or Guarantor:

 

(a)         the extension of time for payment of any amounts due or of the time for payment or performance of any of the Obligations (provided that the Guarantor will have the benefit of any such extension);

 

(b)         the modification, waiver or amendment (whether material or otherwise) of any of the Obligations (provided that the Obligations guaranteed hereunder by Guarantor shall be the Obligations as modified, waived or amended);

 

(c)          the failure, omission, delay or lack on the part of the Purchaser to enforce, ascertain or exercise any right, power or remedy under or pursuant to the terms of the Contract or this Guaranty;

 

(d)         the fact that Guarantor may at any time in the future dispose of all or any part of its interest in Seller, or otherwise alter its investment in Seller in any manner;

 

(e)          the bankruptcy, insolvency, winding up, dissolution, liquidation, administration, reorganization or other similar or dissimilar failure or financial disability of Seller or Guarantor or any legal limitation, disability, incapacity or other circumstances relating to Seller or Guarantor;

 

(f)          the addition, substitution or partial or entire release of any guarantor, maker or other party (including Seller) primarily or secondarily liable or responsible for the payment, performance, or observance of any of the Obligations (provided that if Seller is released from any payment, performance or observance of any of the Obligations, then Guarantor shall likewise be released from the same) or by any extension, waiver, amendment or thing whatsoever which may release a guarantor (other than payment or performance and provided that Guarantor will have the benefit of such extension, waiver, amendment or thing);

 

 

 

 

  2  

 

 

(g)         the invalidity, nonbinding effect or unenforceability of (x) any of the Obligations, or (y) the Contract in its entirety, solely as a result of the acts or omissions of Seller (and provided Purchaser is not in breach of any of its obligations under the Contract); or

 

(h)         the taking, variation, renewal, addition, substitution, subordination, or partial or entire release of any security for the payment, performance, or observance of any of the Obligations or the enforcement or neglect to perfect or enforce any such security.

 

4.       Guarantor hereby represents and warrants that the execution, delivery and performance of this Guaranty by Guarantor have been duly authorized by all requisite corporate action, and that this Guaranty constitutes the valid and binding obligation of Guarantor, enforceable against the Guarantor in accordance with its terms, except to the extent that the enforcement of remedies herein provided may be limited under applicable bankruptcy and insolvency and similar laws, public policy and equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law).

 

5.       This Guaranty shall continue in full force and effect until all of the Obligations have been discharged.

 

6.       This Guaranty shall be governed by the law of the jurisdiction governing the Contract, and any dispute under this Guaranty shall be governed by the dispute resolution provisions of the Contract.

 

7.       There are no third-party beneficiaries of this Guaranty.

 

8.       Guarantor, except as expressly set forth in this Guaranty, hereby waives and relinquishes the following rights and remedies accorded by applicable law to sureties or guarantors and, except as expressly set forth in this Guaranty, agrees not to assert or take advantage of any such waived and relinquished rights or remedies:

 

(a) any right to require Purchaser to proceed against or exhaust any security held by Purchaser before proceeding against Guarantor;

 

(b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other person or the failure of Purchaser to file or enforce a claim against the estate (in administration, bankruptcy or any other similar proceeding) of any other person;

 

(c) except as expressly contemplated herein demand, presentment, protest and notice of any kind, including without limitation notice of the existence, creation or incurring of any new or additional obligation or of any action or non-action on the part of Seller or Purchaser (other than a breach by Purchaser of any of its obligations under the Contract);

 

(d) any defense based upon an election of remedies by Purchaser which destroys or otherwise impairs the subrogation rights of Guarantor, the right of Guarantor to proceed against Seller for reimbursement, or both;

 

 

 

  3  

 

 

(e) any duty on the part of Purchaser to disclose to Guarantor any facts Purchaser may now or hereafter know about Seller, regardless of whether Purchaser has reason to believe that any such facts materially increase the risk beyond that which Guarantor intends to assume, or has reason to believe that such facts are unknown to Guarantor, or has a reasonable opportunity to communicate such facts to Guarantor, since Guarantor acknowledges that Guarantor is fully responsible for being and keeping informed of the financial condition of Seller and of all circumstances bearing on the risk of non-payment of any Obligations hereby guaranteed;

 

(f) any defense arising because of Purchaser’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code;

 

(g) any defense based upon any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code; and

 

(h) demands, diligence, presentment, notices and any other circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantor (other than performance of and/or compliance with the terms of such Obligations by the Guarantor and/or compliance with the terms of such Obligations by the Guarantor and/or the person whose performance and compliance is being guaranteed.

 

9.     Except as set forth in Section 10 below, no party shall be entitled to assign this Guaranty or any of its rights or obligations under this Guaranty without the prior written consent of the other party, which may be withheld in its sole and absolute discretion.

 

10.     Notwithstanding the foregoing, (a) Purchaser shall be entitled to collaterally assign its right, title and interest in and to this Guaranty (and, in particular, any rights arising in relation to any insurance policy and any other right to collect any amount from Guarantor) to the financing institutions providing financing for a Project (as defined in the Contract) by way of security for the performance of obligations to such financing institutions without the consent of Guarantor and (b) Purchaser may assign this Guaranty without the prior consent of the Guarantor in connection with a permitted assignment of the Contract. Guarantor shall execute any consent and agreement, direct agreement or similar documents with respect to such an assignment described in clause (a) of the preceding sentence as the financing institutions may reasonably request, with all reasonable and documented costs incurred by Guarantor in connection therewith to be promptly reimbursed by Purchaser upon demand therefor. Any assignment by the Guarantor without the prior written consent of Purchaser (given or withheld in the sole discretion of Purchaser) shall be void ab initio and shall have no effect on Seller’s rights against Guarantor hereunder.

 

11.     This Guaranty represents the final agreement between the Parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the Parties. This Guaranty may not be modified, amended or waived, except in writing signed by the Parties.

 

12.     All notices, requests, demands, and other communications under this Guaranty shall be deemed 4 to have been duly given (i) to Guarantor, if delivered in accordance with the requirements set forth in Section 9.1 of the Contract to the address below and (ii) to Seller, if delivered in accordance with the requirements set forth in Section 9.1 of the Contract to the address set forth therein.

 

 

 

  4  

 

 

To Guarantor:   Sulus Solar
     
Address:   c/o Wework
    Power & Light Building
    920 SW 6th Avenue
    Portland, OR 97204
Phone:   (971) 336–3715
Attn:   Conor Grogan
   Email: conor.grogan@sulus-solar.com

 

13. This Guaranty may be executed in counterparts (and by different parties to this Guaranty in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Guaranty shall become effective when it has been executed by each of the parties to this Guaranty. Delivery of an executed counterpart of a signature page of this Guaranty by facsimile or portable document format ("pdf") shall be effective as delivery of a manually executed counterpart of this Guaranty.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

* * * Signature Page Follows * * *

 

 

 

 

 

 

 

 

 

 

  5  

 

 

This Guaranty Agreement has been duly executed by authorized representatives of each of the Parties as follows:

 

 

 

GUARANTOR:

Sulus Developments Limited

 

 

 

By:________________________________________


Title: ______________________________________

 

 

 

 

PURCHASER:
SPI Solar, Inc.

 

 

 

By:________________________________________


Title: ______________________________________

 

 

 

ACKNOWLEDGED AND AGREED:

 

 

 

SELLER:
Sulus LLC

 

By:________________________________________

 

 

Name:______________________________________

 

 
Title: ______________________________________

 

 

 

  6  

 

 

Exhibit 2A

 

Seller Parent Certificate

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   

 

 

CERTIFICATE OF

SULUS DEVELOPMENTS LIMITED

 

I, ______, hereby certify on behalf of Sulus Developments Limited, a UK private limited company (the “Company”), that I am a duly qualified Director of the Company, and that as such, I am authorized to execute this Certificate on behalf of the Company. All capitalized terms used and not identified herein shall have the respective meanings ascribed to them in the Guaranty Agreement dated_____, 2019 (the “Agreement”), entered into by and between SPI Solar Inc., as Purchaser, and the Company, as Guarantor in connection with the Membership Interest Purchase Agreement dated___________, 201_ between Purchaser and Sulus LLC (“Seller”) (as amended, restated, or modified or supplemented at any time or from time to time, the “Contract”). In satisfaction of Section 5.1(e) of the Contract, I hereby certify on behalf of the Company, and not in my personal capacity, as follows:

 

1.                  As of the date hereof, the persons named on Exhibit A attached hereto have been duly elected or appointed as Directors of the Company, and the signatures set opposite their names on Exhibit A are their genuine signatures.

 

2.                  Attached hereto as Exhibit B is a print out from the Companies House dated [Date] showing that the Company is active.

 

3.                  Attached hereto as Exhibit C is a true, correct and complete copy of the Certificate of Corporation of the Company pursuant to which the Company was formed.

 

[Remainder of Page Intentionally Left Blank; Signature Page Follows]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   

 

 

IN WITNESS WHEREOF, the undersigned has signed this Certificate as of the____ day of____________ , 201 .

 

 

 

Signature:_______________________

Name:__________________________

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Signature Page to Certificate of Sulus Development Limited

 

 

 

   

 

 

Exhibit A

 

 

 

 

Incumbency Certificate of Sulus Developments Limited

 

The following persons have been duly appointed Directors of Sulus Developments Limited, and the signatures set opposite their respective names are either their genuine official signatures or a printed facsimile thereof:

 

Name Title Signature
     
Conor Grogan    
     
Collin Murphy    
     
  Auth. Rep.  

 

 

 

 

CERTIFICATION

 

The undersigned, as a Director of Sulus Developments Limited, a UK private limited company, does hereby certify that as of 2019, the above is true and correct.

 

 

Signature:___________________________________
Name:

 

 

 

 

 

   

 

 

Exhibit B

 

 

 

 

Companies House Information for Sulus Developments Limited

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   

 

 

Exhibit C

 

 

 

 

Certificate of Incorporation of Sulus Developments Limited

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   

 

 

Exhibit 3

 

Manager’s Certificate (form)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   

 

 

MANAGER’S CERTIFICATE OF
SULUS LLC

 

I, ________, hereby certify on behalf of Sulus LLC, an Oregon limited liability company (the “Company”), that I am the duly qualified Manager of the Company, and that as such, I am authorized to execute this Certificate on behalf of the Company. All capitalized terms used and not identified herein shall have the respective meanings ascribed to them in the Membership Interest Purchase Agreement dated____, 2019, entered into by and between SPI Solar Inc., as Purchaser, and the Company, as Seller (as amended, restated, or modified or supplemented at any time or from time to time, the “Agreement”). In satisfaction of Section 5.1(i) of the Agreement, I hereby certify on behalf of the Company, and not in my personal capacity, as follows:

 

1.       As of the date hereof, the persons named on Exhibit A-1 attached hereto have been duly elected or appointed as the Manager or Authorized Representative of the Company, as the case may be, and on Exhibit A-2 attached hereto have been duly elected or appointed as the Manager or Authorized Representative of__________ LLC, an Oregon limited liability company (the “Project Company”), and the signatures set opposite their names on Exhibit A-1 and Exhibit A-2 are their genuine signatures.

 

2.       Attached hereto as Exhibit B-1 is the Certificate of Existence for the Company issued by the Secretary of State of Oregon on DATE, and as Exhibit B-2 is the Certificate of Existence for the Project Company issued by the Secretary of State of Oregon on DATE.

 

3.                  Attached hereto as Exhibit C-1 is a true, correct and complete copy of the Amended and Restated Liability Company Agreement of the Company dated____ , 201 , and as Exhibit C-2 is a true, correct and complete copy of the Amended and Restated Operating Agreement of the Project Company dated____, 201 , but effective as of , 201 , which Operating Agreements are in full force and effect and have not been amended, rescinded or modified as of the date hereof.

 

4.                  Attached hereto as Exhibit D is a true, correct and complete copy of the Articles of Organization of the Project Company, which Articles are in full force and effect and have not been amended, rescinded or modified as of the date hereof.

 

[Remainder of Page Intentionally Left Blank; Signature Page Follows]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   

 

 

IN WITNESS WHEREOF, the undersigned has signed this Certificate as of the____ day of____________, 201 .

 

 

 

Signature:_______________________

Name:__________________________

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Signature Page to Company Manager’s Certificate

 

 

 

   

 

 

Exhibit A-1

 

 

 

Incumbency Certificate of Sulus LLC

 

The following persons have been duly appointed and constitute all of the Managers and Authorized Representatives of Sulus LLC, an Oregon limited liability company, and the signatures set opposite their respective names are either their genuine official signatures or a printed facsimile thereof:

 

Name Title Signature
     
Conor Grogan Manager  
     
Collin Murphy Manager  
     
  Auth. Rep.  

 

 

 

CERTIFICATION

 

The undersigned, as a Manager of Sulus LLC, an Oregon limited liability company, does hereby certify that as of 2019, the above is true and correct.

 

 

Signature:________________________________________
Name:

 

 

 

 

 

 

 

 

 

 

  Exhibit A-1  

 

 

Exhibit A-2

 

Incumbency Certificate of_________ LLC

 

The following persons have been duly appointed and constitute all of the Managers and Authorized Representatives of______________ LLC, an Oregon limited liability company, and the signatures set opposite their respective names are either their genuine official signatures or a printed facsimile thereof:

 

Name Title Signature
     
  Manager  
     
  Manager  
     
  Auth. Rep.  

 

 

 

CERTIFICATION

 

The undersigned, as a Manager of Sulus LLC, an Oregon limited liability company, does hereby certify that as of 2019, the above is true and correct.

 

 

Signature:________________________________________
Name:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  Exhibit A-2  

 

 

Exhibit B-1

 

Certificate of Existence for Sulus LLC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  Exhibit B-1  

 

 

Exhibit B-2

 

Certificate of Existence for LLC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  Exhibit B-2  

 

 

Exhibit C-1

 

Amended and Restated Limited Liability Company Agreement of Sulus LLC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  Exhibit C-1  

 

 

Exhibit C-2

 

Operating Agreement of________ LLC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  Exhibit C-2  

 

 

Exhibit D

 

Articles of Organization of_________ LLC

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  Exhibit D  

 

 

Exhibit 4

 

Officer’s Certificate (form)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   

 

 

[SULUS LLC]1[SPI SOLAR, INC.]2

OFFICER’S CERTIFICATE

 

[_____], 20[__]

Pursuant to Section [5.1(i))]3[5.2(c)]4 of the Membership Interest Purchase Agreement by and between SPI Solar, Inc., a Delaware corporation (“Purchaser”) and Sulus LLC, an Oregon limited liability company (“Seller”), dated as of [ ], 2019 (the “Agreement”), the undersigned, in its capacity as an authorized officer of [Seller]5[Purchaser]6, delivers this Officer’s Certificate (this “Certificate”) to [Purchaser]7[Seller]8 as of the date first set forth above (the “Closing Date”). Capitalized terms used but not defined in this Certificate shall have the meanings given to them in the Agreement. The undersigned hereby certifies to [Purchaser]9[Seller]10 as of the Closing Date as follows:

 

1.                  [The representations and warranties in Article III of the Agreement that are Fundamental Representations and those listed in Section 3.12 of the Agreement (Environmental Matters) and Section 3.21 of the Agreement (Taxes) are true and correct,

(x) without giving effect to any Schedule Supplements and (y) with respect to Seller and the applicable Company.

 

2.                  The representations and warranties in Article III that are not Fundamental Representations are true and correct, after giving effect to any Schedule Supplement, or (2) are in all material respects as though made as of the Closing Date, in each case excluding (solely for purposes of this paragraph 2) those representations and warranties that relate solely to any Company that has already been acquired.

 

3.                  Seller has duly performed and complied with all agreements, covenants and conditions required by the Agreement to be performed or complied with by Seller prior to or on the Closing Date, excluding any such failure to perform and comply which, individually or in the aggregate, has not had any material adverse impact (i) on the applicable Company, (ii) on Purchaser or its ability to perform its obligations under the Agreement or to satisfy any condition in Section 5.2 of the Agreement required to be satisfied by Purchaser or (iii) on Seller’s ability to satisfy any condition in Sections 5.1, 5.3, 5.4, or 5.5 of the Agreement.

 

________________________________

1 For Seller’s Officer’s Certificate.

2 For Purchaser’s Officer’s Certificate.

3 For Seller’s Officer’s Certificate.

4 For Purchaser’s Officer’s Certificate.

5 For Seller’s Officer’s Certificate.

6 For Purchaser’s Officer’s Certificate.

7 For Seller’s Officer’s Certificate.

8 For Purchaser’s Officer’s Certificate.

9 For Seller’s Officer’s Certificate.

10 For Purchaser’s Officer’s Certificate.

 

 

 

   

 

 

4.                  Between the Effective Date and the Closing Date, there has not been any Material Adverse Change with respect to Seller or the applicable Company.]11

 

5.                  No condemnation is pending or threatened in writing with respect to the applicable Project, or any portion thereof, and no unrepaired casualty exists with respect to the applicable Project, or any portion thereof, or the sale of electric power therefrom, unless (i) such casualty is capable of repair in a reasonably satisfactory timeframe, (ii) the cost of such repair shall not exceed $2,000, and (iii) the Purchase Price with respect to such Project shall be adjusted by an amount equal thereto. 12

 

6.                  [Each of the representations and warranties of Purchaser in the Agreement is true and correct in all material respects.] 13

 

 

[Signature Page Follows]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

________________________________

11 For Seller’s Officer’s Certificate.

12 For Seller’s Officer’s Certificate.

13 For Purchaser’s Officer’s Certificate.

 

 

 

   

 

 

IN WITNESS WHEREOF, the undersigned has executed this Officer’s Certificate as of the date first set forth above.

 

 

 

[Sulus LLC, an Oregon limited liability company] 14

[SPI Solar, Inc., a Delaware corporation]15

By:___________________________

Name:

Title:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

________________________________

14 For Seller’s Officer’s Certificate.

15 For Purchaser’s Officer’s Certificate.

 

[Signature Page to Officer’s Certificate ([Purchaser] [Seller])]

 

 

   

 

 

Exhibit 5

 

Resignation (form)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   

 

 

[date], 2019

 

 

 

[Project LLC Name]

c/o SPI Solar, Inc.

4677 Old Ironside Drive, Suite 190

Santa Clara, CA 95054

Attn: Kevin White

 

 

Re: Resignation


Dear Mr. White:

 

By my signature below, I hereby resign from each officer and/or Manager position, as the case may be, of [Project Name], LLC held by me as of the date hereof.

 

 

 

Sincerely,

 

 

 

___________________________________

[name of manager]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   

 

 

Exhibit 6

 

Estoppel Certificate (form)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   

 

 

ESTOPPEL CERTIFICATE

(LEASE AND OTHER AGREEMENTS)

 

This Estoppel Certificate (the “Certificate”) is made and given as of____________ , ____ 20__.

 

Reference is hereby made to the following (the “Agreements,” whether one or more):

 

(a)       that certain [LEASE] dated [LEASE] by and between [LESSOR] (“Lessor”), as lessor, and [SULUS LESSEE], an Oregon limited liability company (“Lessee”), as lessee, as amended by that certain Amendment of Ground Lease Agreement dated , _____ 2018 by and between Lessor and Lessee (as amended from time to time, the “Lease”), as evidenced by that certain Memorandum of Lease recorded Book/Reel at Page _____, in the Office of the County Clerk for [COUNTY] County, Oregon (the “Registry”); all relating to the ground mounted solar photovoltaic energy generation facility and tie-line in [COUNTY] County, Oregon (the “Project”), all or certain portions of which are or will be located at the real property that is the subject of the Lease (the “Property”). Capitalized terms not otherwise defined herein shall have the meaning set forth in the Lease.

 

This Certificate is being delivered in connection with the acquisition of the membership interests by SPI Solar, Inc., 4677 Old Ironside Drive, Suite 190, Santa Clara, CA 95054, (together with its affiliates, the “Reliance Parties”).

 

Based on the foregoing, and recognizing that the Reliance Parties will rely hereon, Lessor hereby confirms, certifies, and represents, to and for the benefit of the Reliance Parties, as follows:

 

1.                  The execution, delivery, and performance by Lessor of the Agreements and this Certificate have been duly authorized by all necessary corporate, partnership, limited liability, or other action on the part of Lessor and do not require any approvals, filings with, or consents of any entity or person which have not previously been obtained or made.

 

2.                  Each Agreement is in full force and effect and constitutes the legal, valid and binding obligation of Lessor, enforceable against Lessor in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and general equitable principles.

 

3.                  The copy of the Lease attached hereto as Exhibit A constitutes a true, correct, and complete copy of the Lease (including, without limitation, all amendments thereto). The Lease has not been modified, restated or amended in any way except as shown on the instrument(s) attached hereto as Exhibit A.

 

4.                  The Agreements set forth the entirety of Lessor’s agreements with respect to the matters addressed or contemplated thereby.

 

5.                  Lessor consents to any and all assignments, conveyances, pledges and transfers of the Agreements and the Project by the Reliance Parties with respect to the development, construction, operation, or financing of the Project.

 

 

 

 

   

 

 

 

6.                Lessor has not (a) transferred or assigned any interest in the Agreements or in and to the Property, (b) executed any mortgage, deed of trust or other lien encumbering Lessor’s interest in the Property or the Agreements, or (c) had notice of or consented to any previous assignment under the Agreements by Lessee.

 

7.                To the actual knowledge of Lessor, no third party has an option or preferential right to purchase all or any part of or right, title or interest in the Property or the Agreements.

 

8.                Lessor is not in default under or breach of the Lease and has no disputes with respect to the Lease. To the actual knowledge of Lessor, there are no defaults, disputes or breaches or circumstances that with the passage of time or the giving of notice or both would give rise to any defaults, disputes or breaches by any party to the Agreements and all payments due and payable under the Agreements have been paid in full.

 

9.                To Lessor’s actual knowledge, the covenants and obligations of the Lessee, made to or for the benefit of Lessor under the Agreements and required to be performed on or before the date hereof (including the payment of any amounts), have been properly performed or expressly waived in writing.

 

10.            There are no actions pending against Lessor under the bankruptcy or any similar laws of the United States or any state.

 

11.            To Lessor’s actual knowledge, there are no proceedings pending or threatened against or affecting Lessor in any court or by or before any court, governmental authority, or arbitration board or tribunal which could reasonably be expected to have a material adverse effect on the ability of the Lessor to perform its obligations under the Agreements.

 

12.            To Lessor’s actual knowledge, there is no event, act, circumstance or condition currently existing that could excuse the performance of a party under the Agreements.

 

13.            Lessor has no actual knowledge of any facts existing that entitle Lessor to any claim, counterclaim, offset or defense against the Lessee or any other party in respect of the Agreements.

 

14.            The Lessee does not owe any payments to Lessor in respect of claims for indemnification that Lessor has made, and Lessor has asserted no counterclaims, offsets or defenses against the Lessee under the Agreements.

 

15.            As of the date hereof, Lessor holds the entire interest of Lessor under the Lease.

 

16.            All representations made by Lessor in the Agreements are true and correct and all warranties under the Agreements are absolutely, irrevocably and unconditionally in effect.

 

17.            Lessor acknowledges that the Project constitutes the Intended Use.

 

18.            To the actual knowledge of Lessor, there are no unrecorded contracts, easements, encumbrances or other agreements or interests relating to the Property.

 

 

 

   

 

 

19.       Lessor hereby ratifies and affirms the Lease in all respects.

 

 

[SIGNATURE PAGE FOLLOWS]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   

 

 
SIGNATURE PAGE TO

 

ESTOPPEL CERTIFICATE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   

 

 

EXHIBIT A

 

LEASE AGREEMENT

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   

 

Exhibit 4.56

 

COMMON STOCK PURCHASE AGREEMENT

 

This Common Stock Purchase Agreement (the "Agreement") is made as of _____ 2019 by and between Knight AG Holding Co., Ltd., (the "Company"), a Cayman Islands exempted limited company with its registered office at Cassia Court, Suite 716, 10 Market Street, Camana Bay, Grand Cayman KY1-9006, Cayman Islands, and Jackv LO, a resident of the United States with driver license ID of D4464941 ("Mr. Lo") (the "Purchaser").

 

WHEREAS, the Company desires to issue and sell 4,000 shares (the "Purchased Shares") in the capital of the Company with a nominal or par value of US$1 each and the Purchaser desires to subscribe and purchase the Purchased Shares, subject and pursuant to the terms and conditions set forth herein;

 

WHEREAS, after the closing of the transaction contemplated hereby and immediately the closings of the issuance and sale of the Purchased Shares with other investors, the Company, the Purchaser and the other investors shall enter into the Stockholder Agreement (the "Stockholder Agreement") in the form attached hereto as Exhibit A.

 

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises. representations, warranties and covenants hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1. PURCHASE OF THE SHARES

 

Subject to the terms and conditions of this Agreement, the Purchaser, intending to be legally bound, agrees to purchase the Purchased Shares for the following consideration (the "Purchase Price"): (i) a wire transfer in immediately available funds of US$1 (the "Down Payment") and (ii) such obligations the Purchaser shall assume hereunder as set forth herein subject to the terms and conditions hereof.

 

2. CLOSING

 

2.1       Closing Date. The closing of the purchase and sale of the Purchased Shares (the "Closing") shall be held on the date which is the second (2nd) business day after the date hereof, or at such other time as the Company and the Purchaser of such Purchased Shares shall agree (the "Closing Date").

 

2.2       Deliverables. At the Closing, the Purchaser will deliver to the order of the Company (i) a wire transfer, in immediately available funds, in the amount of the Down Payment; (ii) a counterpart signature page to this Agreement and (iii) a counterpart signature page to the Stockholder Agreement. At the Closing, the Company shall deliver to the Purchaser, (i) a counterpart signature page to the Stockholder Agreement, (ii) a certified copy of the written resolutions of the board of directors of the Company approving this Agreement and the Stockholders Agreement and their execution and the entry into the register of members of the Company the name of the Purchaser as the holder of the Purchased Shares with effect from Closing and the making of all such other entries in the corporate records of the Company as may be necessary; and (iii) an up to date certified copy of the register of members of the Company duly amended to show the name of the Purchaser as the holder of the Purchased Shares.

 

2.3       Additional Closing Conditions. The obligations of the Company under Section 2.2 of this Agreement will be subject to the satisfaction by the Purchaser on or before the Closing of each of the following conditions:

 

  (i) The execution and delivery by Knight Holding Corporation, a Delaware corporation which is wholly owned by the Company ("KHC"), and Harbor Green Grain LP, a California limited partnership ("HGG"), of the Share Transfer Agreement in the form attached hereto as Exhibit B (the "STA", and together with this Agreement and the Stockholder Agreement, the "Transaction Documents") by and among them, pursuant to and subject to the terms and conditions of which HGG shall transfer to KHC, 100% of the capital or profits of Arizona Hay Press, LLC ( the "Subject Shares 1"), a limited liability company in Arizona, and 100% of the capital or profits of Knight AG Sourcing, LLC ( the "Subject Shares 2", together with Subject Shares 1, collectively, the "Subject Shares"), a limited liability company in Arizona.

 

  (ii) a stock ledger, or any other evidence of the ownership by KHC of Subject Shares.

 

(iii) The issuance and sale of the Subject Shares by the HGG shall not be prohibited by any law or governmental order or regulation.

 

 

 

  1  

 

 

(iv) All necessary consents, approvals, licenses, permits, orders and authorizations of, or registrations, declarations and filings with, any governmental or administrative agency or of or with any other person or entity, with respect to any of the transactions contemplated by this Agreement shall have been duly obtained or made and shall be in full force and effect prior to the Closing Date.

 

3. REPRESENTATIONS,WARRANTIES AND COVENANTS OF THE COMPANY

 

The Company hereby represents, warrants and covenants to the Purchaser as follows:

 

3.1       Organization; Corporate Power. The Company is a limited liability company duly incorporated, validly existing and in good standing under the laws of Cayman Islands. The Company is duly qualified and is authorized to do business and is in good standing as a foreign corporation in all jurisdictions in which the nature of its activities and of its properties (both owned and leased) makes such qualification necessary, except for those jurisdictions in which failure to do so would not have a material adverse effect on the Company or its business. The Company has all requisite power and authority (corporate, legal and otherwise) to execute and deliver this Agreement and to carry out and perform its obligations under the terms of this Agreement.

 

3.2       Authorization. All corporate action on the part of the Company, its directors and its stockholders necessary for the authorization, execution, delivery and performance of this Agreement by the Company, including the issuance, sale and delivery of the Purchased Shares, has been taken. This Agreement, when executed and delivered by the Company, shall constitute the valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors' rights generally, or (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.

 

3.3       Valid Issuance. The Purchased Shares, when issued and delivered by the Company against payment therefor, will be validly issued, fully paid and non-assessable, and shall be free and clear of all encumbrances and restrictions (other than those created by the Purchaser), except for restrictions on transfer set forth in the Transaction Documents or imposed by applicable securities laws.

 

3.4       Consents. All consents, approvals, orders, or authorizations of, or registrations, qualifications, designations, declarations, or filings with, any governmental authority or any other person or entity, required on the part of the Company in connection with the valid execution and delivery of this Agreement, the offer, sale or issuance of the Purchased Shares, and the consummation of all other transactions contemplated by this Agreement, have been obtained and will be effective at the Closing, except the post-closing filings as may be required under applicable laws, which will be timely filed within the applicable periods therefor.

 

3.5       Litigation. There is no claim, action, suit, proceeding, arbitration, complaint, charge or investigation pending or to the Company's knowledge, currently threatened in writing against the Company.

 

3.6       Capitalization. As of the date hereof, the authorised share capital of the Company is US$50,000 divided into 50,000 shares with a nominal or par value of US$1.00, of which [6,000 ordinary shares have been issued and outstanding]. All of the outstanding ordinary shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and non-assessable.

 

3.7       No Conflicts. The execution, delivery and performance by the Company of this Agreement, issuance and sale of the Purchased Shares and the consummation by it of the transactions contemplated hereby and thereby do not and will not conflict with or violate any provision of the Company's certificate of incorporation or bylaws, or its equivalent .

 

3.8       Offering. Assuming the accuracy of the representations and warranties of the Purchaser contained in Section 4 hereof, the offer, issue, and sale of the Purchased Shares are and will be exempt from the registration and prospectus delivery requirements of the Act and have been registered or qualified (or are exempt from registration and qualification) under the registration, permit, or qualification requirements of all applicable securities laws.

 

 

 

  2  

 

 

4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.

 

The Purchaser represents and warrants to the Company as follows:

 

4.1       Requisite Power and Authority. The Purchaser has all necessary power and authority under all applicable provisions of law to execute and deliver this Agreement and the Stockholder Agreement and to carry out their provisions. All action on such Purchaser's part required for the lawful execution and delivery of this Agreement and the Stockholder Agreement has been taken. Each of this Agreement and the Stockholder Agreement, when executed and delivered by the Purchaser, will be a valid and binding obligation of the Purchaser, enforceable in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency, the relief of debtors and, with respect to rights of indemnity, subject to federal and state securities laws.

 

4.2       Purchase for Own Account. The Purchaser represents that it is acquiring the Purchased Shares solely for its own account and beneficial interest for investment and not for sale or with a view to distribution of the Purchased Shares or any part thereof, has no present intention of selling (in connection with a distribution or otherwise), granting any participation in, or otherwise distributing the same, and does not presently have reason to anticipate a change in such intention.

 

4.3       Information and Sophistication. The Purchaser hereby: (i) acknowledges that it has received all the information it has requested from the Company and it considers necessary or appropriate for deciding whether to acquire the Purchased Shares; (ii) represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Purchased Shares and to obtain any additional information necessary to verify the accuracy of the information given to the Purchaser and (iii) further represents that it has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risk of this investment.

 

4.4       Ability to Bear Economic Risk. The Purchaser acknowledges that an investment in the Shares involves a high degree of risk, and represents that it is able, without materially impairing its financial condition, to hold the Purchased Shares for an indefinite period of time and to suffer a complete loss of its investment.

 

4.5       Further Limitations on Disposition. The Purchaser understands and acknowledges that the Purchased Shares issued pursuant to this Agreement will not be registered or qualified under any applicable securities or blue-sky laws on the ground that the offering and sale of securities contemplated by this Agreement are exempt from registration thereunder. The Purchaser acknowledges and understands that the Purchased Shares must be held indefinitely unless the securities are subsequently registered and qualified under applicable securities laws or an exemption from such registration and such qualification is available. The Purchaser also understands that there is no assurance that any exemption from registration under applicable securities laws will be available and that, even if available, such exemption may not allow the Purchaser to transfer all or any portion of the securities under the circumstances, in the amounts or at the times the Purchaser might propose.

 

4.6       No Public Market. The Purchaser understands that no public market now exists for any of the securities issued by the Company, including the Purchased Shares, and that the Company has made no assurances that a public market will ever exist for the Purchased Shares.

 

4.7       Accredited Investor Status. The Purchaser is an "accredited investor.' as such term is defined in Rule 501 under the Securities Act of 1933, as amended.

 

4.8       No General Solicitation. The Purchaser did not learn of the investment in the Purchased Shares as a result of any general solicitation or general advertising.

 

4.9       Further Representations. The Purchaser's subscription and payment for, and his or her continued beneficial ownership of the Purchased Shares, will not violate any applicable securities or other laws of his or her jurisdiction. The Purchaser agrees to indemnify and hold harmless the Company and each of its officers, directors, employees, agents and controlling persons (collectively, "Indemnified Parties"), from and against any and all losses, claims, damages, judgments, liabilities, costs and expenses, and any and all actions, suits, proceedings and investigations in respect thereof and any and all legal and other costs, expenses and disbursements in giving testimony or furnishing documents in response to a subpoena or otherwise, directly or indirectly, caused by, relating to, based upon. or in connection with, a breach by the Purchaser of this Agreement.

 

 

 

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5. MISCELLANEOUS

 

5.1       Binding Agreement. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, expressed or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

 

5.2       Governing Law; Jurisdiction and Venue; Waiver of Jury Trial.

 

This Agreement shall be governed by and construed under the laws of the State of New York in all respects as such laws are applied to agreements among New York State residents entered into and performed entirely within the State of New York.

 

Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and the Purchased Shares shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby consents to process being served in any such action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.

 

EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.

 

5.3       Termination. Provide that if at any time prior to the closing the Company becomes aware of (a) any fact, matter, or event which constitutes a breach of the warranties given by the Purchaser to the Company and/or (b) any fact, matter or event which constitutes a breach of the Purchaser's undertakings and/or (c) a breach of the terms of this Agreement and/or the Shareholders Agreement, then the Company shall be entitled (in addition and without prejudice to all other rights or remedies available to it including the right to claim damages) to proceed either to close so far as practicable having regard to the breaches that have occurred, or by notice in writing to the Purchaser, to terminate this Agreement without any liability whatsoever on the Company.

 

5.4       Assignment. This Agreement is personal to the parties and no party may assign, transfer, delegate, change or otherwise deal in any other manner with this Agreement or any of its rights or obligations nor grant, declare, create or dispose of any right or interest in it without the prior written consent of all the other parties, and that any purported assignment, transfer, delegation, charging, dealing or other disposition of this Agreement in contravention of this clause shall be ineffective.

 

5.5       Continuity. This Agreement shall to the extent that it remains to be performed, continue in full force and effect notwithstanding closing.

 

5.6       Counterparts; Facsimile Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any signature page delivered by a fax machine shall be binding to the same extent as an original signature page, with regard to any agreement subject to the terms hereof or any amendment thereto.

 

5.7       Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

 

 

 

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5.8       Entire Agreement. This Agreement and the exhibits and schedules hereto constitute the full and entire understanding and agreement between the parties and supersedes and cancels all prior written and oral agreements and understandings with regard to the subjects hereof and no party shall be liable or bound to any other party in any manner by any representations, warranties, covenants and agreements except as specifically set forth herein.

 

5.9       Severability. In the event one or more of the provisions of the Transaction Documents should, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of the Transaction Documents, and the Transaction Documents shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

 

5.10     Delays or Omissions. It is agreed that no delay or omission to exercise any right, power or remedy accruing to any party, upon any breach, default or noncompliance by another party under the Transaction Documents, shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach, default or noncompliance, or any acquiescence therein, or of or in any similar breach, default or noncompliance thereafter occurring.

 

5.11     Expenses. Each party shall pay all costs and expenses that it incurs with respect to the negotiation, execution, delivery and performance of the Transaction Documents.

 

5.12     Attorneys' Fees. In the event that any suit or action is instituted under or in relation to the Transaction Documents, including without limitation to enforce any provision in the Transaction Documents, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to the Transaction Documents, including without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.

 

[Signatures begin on following page]

 

 

 

  5  

 

 

IN WITNESS WHEREOF, the parties have executed this STOCK PURCHASE AGREEMENT as of the date first written above.

 

 

 

 

{Signature Page to Stock Purchase Agreement}

 

 

 

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EXHIBIT A

 

Stockholder Agreement

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  A-1  

 

 

THIS SHAREHOLDERS AGREEMENT (the "Agreement") of Knight AG Holding Co. Ltd., (the "Company"), a Cayman corporation is made and entered into as of ____________ 2019 (the "Effective Date"), by and among

 

(i) The Company;

 

(ii) Jacky LO, a resident of United States with driver license ID of D4464941 ("Mr. Lo"); and

 

(iii) SPI Investments Holding Limited, a Cayman corporation ("SPI", and together with Mr. Lo, and other persons or entities who subsequently become parties to this Agreement by execution of a joinder agreement to be bound hereby (a "Joinder Agreement"). hereinafter referred collectively as the "Shareholders” and each a "Shareholder").

 

WITNESSETH:

 

WHEREAS, the Company was formed under the laws of Cayman Islands on or about _____, 2019 to be engaged in the business (the "Business") of the productions, sales or marketing of cotton, Alfalfa grass-based feed and other related products (the "Business").

 

WHEREAS, as of the Effective Date, the Company's capital stock constitutes solely of 50,000 authorized shares, par value $1 per share, of ordinary shares (the "Shares"), out of which 10,000 are issued and outstanding and owned by the Shareholders;

 

WHEREAS, the Shareholders and the Company deem it expedient and in their respective best interests to enter into this Agreement with respect to the relationship among the Shareholders, and the relationship between the Shareholders and the Company, including without limitation, restrictions on the transfer of Shares and covenants to protect the interests of the Company, including the Business;

 

NOW THEREFORE, in consideration of the premises and mutual covenants and agreements contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge conclusively, the parties, intending to be legally bound, hereby agree as follows:

 

Article 1          General Restrictions on Transfer.

 

(a)          Restrictions on Shareholders.

 

Except for a Permitted Disposition (as defined in Article 1(c) below), or as otherwise permitted in this Agreement and in compliance with the terms and conditions set forth herein, no Shareholder shall sell, transfer, assign, hypothecate, or otherwise dispose of, either voluntarily or by operation of law (each a "Transfer"), any of such Shareholder's Shares (whether vested or not) or any rights or interest therein, whether now owned or hereafter acquired. Any Transfer in violation of the terms of this Agreement shall be null and void ab initio and without any force or effect.

 

(b)          Restrictions on the Company.

 

The Company shall not, except for Transfers otherwise permitted in this Agreement. cause or permit the Transfer of any Shares to be made on its books.

 

(c)          Permitted Dispositions.

 

For purposes of this Agreement, the term "Permitted Disposition" means a Transfer of Shares (i) by operation of law; (ii) by any Shareholder of all or any portion of its Shares, whether or not for adequate consideration, either directly to, or indirectly to an affiliate thereof; (iii) a Transfer by any Shareholder of all or any portion of its Shares to another Shareholder; (iv) a Transfer by any Shareholder of all or any portion of its Shares to the Company by operations of any contract between such Shareholder and the Company. Notwithstanding the foregoing, any Permitted Disposition shall entitle the transferee only to the economic benefits of the Shares so Transferred, but not to the rights and benefits of a Shareholder set forth herein or any other right and benefit that otherwise would have accrued to such transferee as a shareholder of the Company, unless and until such Transfer is approved in writing by the Company's Board of Directors (the "Board").

 

 

 

  A-2  

 

 

Article 2            Governance of the Company.

 

(a)          Board of Directors.

 

The management and control of the business, affairs and property of the Company shall be vested in the Board. Except as set forth herein, the Board shall have full and complete authority, power, and discretion to manage and control the business, affairs and property of the Company, to make all decisions regarding the foregoing matters, and to perform any and all other acts or activities customary or incident to the management of the Company.

 

(b)          Composition of the Board.

 

Notwithstanding any statute or provision in the Company's Bylaws to the contrary, but subject to the terms of this Agreement, the Shareholders agree that the Board shall initially consist of three (3) directors, with SPI having the power to nominate and appoint four (4) directors to the Board, one of whom shall serve as the Chairperson of the Board, and Mr. Lo having the power to nominate and appoint one (1) director.

 

(c)         Determination of Matters Not Provided by this Agreement.

 

The Board shall decide any questions arising with respect to the business, affairs and property of the Company which are not specifically and expressly provided for in this Agreement.

 

(d)         Election and Term of the Directors.

 

Each director shall serve as such until the earlier of his or her (a) death, (b) resignation or (c) removal by the requisite vote entitled to remove such director in accordance with this Agreement. For the avoidance of doubt, a director may only be removed by the Shareholder who is entitled to nominate and appoint such director.

 

(e)        Vacancies.

 

If a director resigns or no longer serves as a director for any reason, then such vacancy shall only be filled by the affirmative vote of the Shareholder entitled to nominate and appoint such director.

 

(f)        Officers.

 

The officers of the Company (the "Officers") shall consist of a President, a Secretary, and a Treasurer, and such other Officers as the Board may determine, from time to time, in its sole discretion. The Board shall appoint the Officers, and, subject to an Officer's rights and obligations set forth in any contractual arrangements with the Company, such Officers shall serve until the earlier of his death, resignation or removal from time to time, with or without cause, and the compensation of the Officers shall be determined by the Board in its good faith judgment.

 

(g)       Indemnity.

 

To the fullest extent permitted by applicable law, the Company shall indemnify the directors of the Board and Officers from and against all costs of defense (including reasonable fees such as attorneys' fees), judgments, fines, and amounts paid in settlement suffered by such individuals because such individuals have been made a party to an action due to such their status as officers and/or directors of the Company. The Company shall make advances to such persons with respect to such matters to the maximum extent permitted by the applicable law.

 

 

 

  A-3  

 

 

Article 3            Operating Responsibilities.

 

(a)           Conduct of Business.

 

The Officers of the Company, led by the President, shall be responsible for conducting the day to day business of the Company including, but not limited, monitoring, controlling and directing the financial, business and operations of the Company; and maintaining the business records of the Company. For each year, the Officers should draft and deliver an annual operating plan and budget for the Board to approve.

 

(b)          Commencement of Operations.

 

Mr. Lo shall. or shall cause his subsidiaries to, transfer and hire sufficient number of technical and management professionals to commence the operation of the Business as soon as practicable.

 

(c)           Company Records.

 

The Officers shall keep the books and records of the Company in good order. All accounting of the transactions shall be kept by the Company in accordance with United States GAAP.

 

(d)          Reasonable Assistance by the Shareholders.

 

SPI shall provide such reasonable assistance to the Company for the Officers of the Company under the direction of the Board to conduct of the operations of the Business of the Company. SPI shall provide such reasonable assistance to the Company in raising capital for the Company and in the capital market with a view toward an initial public offering of the Company in NASDAQ. SPI shall provide such further reasonable assistance to the Company to enable the Company to build the storage warehouse in Arizona with the roof powered by solar power with 5MW capacity.

 

SPI shall contribute to the Company the cash with the amount up to US$ 2,000,000. The initial investment with the amount of US$ 500,000 (exclude the investment of fix assets which shall be applied on needed basis) shall be paid to the Company within 5 days following the Effective Date hereto .

 

If and when the Company becomes profitable based upon generally accepted accounting principles and cash flow positive based upon its actual cash flows, SPI shall contribute additional capital to the Company to fund the operation of the Company; provided, however, such additional capital contribution shall not exceed US$1.5 million in the aggregation; provided, however, SPI shall not be obligated to provide any such additional capital in the event the Company fails to become profitable based upon generally accepted accounting principles or its actual cash flow fails to become positive.

 

Article 4            Profit Distribution

 

After the payment of or provisioning for income tax by the Company, the Board will determine the annual allocation to the reserve fund and the distribution of after-tax net profits.

 

(A) The after-tax net profit of the Company, if determined by the Board to distribute, shall be distributed to the Shareholders in proportion to their respective percentage interests in the Company.

 

(B) If the Company carries losses from the previous years, the profit of the current year shall first be used to cover the losses. No profit shall be distributed unless the deficit from the previous years is made up. Any undistributed profits retained by the Company and carried over from the previous years may be distributed together with the distributable profits of the current year.

 

 

 

  A-4  

 

 

Article 5            IPO of the Company and ESOP

 

(a)       IPO of the Company

 

The Parties hereto shall endeavour to cause an initial public offering of the equity interest on a national exchange in the United States within five years of the formation of the Company. The Parties shall endeavour to issue certain amount of Shares to other investors with the consideration up to US$ 80,000,000 in total after the Company has listed on a national exchange in the United States.

 

(b)           ESOP

 

The Parties hereto shall establish an employee stock option plan to incentivize executive management of the Company consistent with customary practices for similar companies listed on the Nasdaq stock market.

 

(c)           Bonus

 

In the event that SPI achieves a net internal annual rate of return on its investments that exceeds 18%, then the management team shall collectively be entitled to receive 50% of such amount in the excess, half of which in the form of cash and the balance in equity interests in the company.

 

Article 6            Drag-Along Rights.

 

If at any time the Shareholders of the Company owning no less than the majority of the Shares then issued and outstanding propose to enter into or to cause the Company to enter into any transaction involving (i) the sale of all or substantially all of the Company's assets, (ii) the sale of more than a majority of the Shares in a non-public sale, or (iii) any merger, share exchange, consolidation or other reorganization or business combination of the Company, if immediately after such transaction persons who hold a majority of the surviving entity's voting capital shares are not persons who held a majority of the Company's voting capital shares immediately prior to such transaction, then, in any such case (the "Approved Transaction"), the Company and/or the transferring Shareholders of the Company may require all Shareholders to participate in such Approved Transaction by giving such Shareholders written notice thereof at least thirty (30) days in advance of the date of the Approved Transaction or the date that tender is required, as the case may be. Upon receipt of such notice, each of the Shareholders will vote for, consent to and raise no objections to the Approved Transaction described in such notice, and will sell, assign, tender or transfer the same percentage of Shares as the percentage of the Shares proposed to be sold, assigned, tendered or transferred by the transferring Shareholders collectively, upon the same terms and conditions applicable to the transferring Shareholders and at a value equal to the value per share the transferring Shareholders will receive pursuant to the terms of the Approved Transaction (whether such value is paid in cash or otherwise). If the Approved Transaction is structured as a merger or consolidation, each Shareholder will, to the extent possible under applicable law, waive any dissenters' rights, appraisal rights or similar rights in connection with such merger or consolidation. Each Shareholder will take all necessary or desirable actions in connection with the consummation of the Approved Transaction as requested by the Company.

 

 

 

  A-5  

 

 

Article 7            Deadlock Resolution

 

In the event the Shareholders are deadlocked and are unable to agree unanimously on any decision that requires the unanimous consent of the Shareholders, and the Shareholders are unable through good faith and the exercise of their reasonable efforts to break such deadlock for a period of sixty (60) days following notice from one Shareholder to the other Shareholder that a deadlock exists with regard to such a decision, the deadlock may be broken by the invocation of the provisions of this Section; provided, however, this Section may be invoked if and only if such deadlock occurs after the date which is twelve (12) months from the date hereof. Either Shareholder may initiate the buy/sell procedure by providing a written notice (the "Value Notice") to the other Shareholder. The Shareholder which initiates the buy/sell procedure, is referred to herein as the "Offeror." The Shareholder who receives the Value Notice is referred to herein as the "Offeree." The Value Notice shall include an offer by the Offeror to purchase all (and not less than all) of the shares in the Company owned by the Offeree and an offer by the Offeror to sell all (and not less than all) of the shares in the Company owned by the Offeror to the Offeree. The Value Notice shall specify an amount (the "Stated Amount") that shall be the purchase price per share of the Shares of the Company, which shall, after multiplied by the number of the Shares issued and outstanding be not less than the aggregate of all indebtedness owed at that time by the Company, and which shall be used in the calculations of the total purchase price for the Shares transferred pursuant to this Section. The Offeree shall have ten (10) days from its receipt of the Value Notice to provide a written notice (the "Election Notice") to the Offeror stating either that the Offeree will sell all (and not less than all) its Shares in the Company to the Offeror or that the Offeree will purchase all (and not less than all) the Offeror's Shares in the Company at the per Share purchase price referenced in the Value Notice. If the Offeree fails to give a timely Election Notice, the Offeree shall be deemed to have elected to sell all (and not less than all) its Shares to the Offeror. The Election Notice shall specify the date of closing (the "Buy-Sell Closing Date"), which date shall be at least sixty (60) days after the giving of the Election Notice, but in any event not later than the ninetieth (90th) day after such notice. If the Offeree fails to provide an Election Notice, the Buy-Sell Closing Date shall be held on the first business day which is at least ninety (90) days after the giving of the Value Notice. As of the effective date of any transfer of a Shares pursuant to this Section, the buyer shall assume all obligations of the seller with respect to the Shares so transferred, including any liability of the seller with respect to any Company liabilities. Upon such transfer, the seller's rights and obligations under this Agreement shall terminate with respect to such transferred Shares, except as to indemnity rights of such Shareholder under this Agreement attributable to acts or events occurring prior to the effective date of such transfer.

 

Article 8            Miscellaneous.

 

(a)           Transferees of the Shares.

 

Any Shares transferred by a Shareholder to a person or entity not currently a party to this Agreement, after following the procedure set forth in this Agreement. shall remain subject to the terms, conditions and restrictions of this Agreement, and any such transferee shall execute a Joinder Agreement and all such other written acknowledgments, amendments or other agreements or documents the Board may reasonably request necessary to effectuate this provision.

 

(b)            Assignment; Binding Effect.

 

This Agreement and any obligations, restrictions and rights hereunder may not be transferred or assigned by a Shareholder without the prior written consent of the Company and the other Shareholders. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, personal representatives, successors and assigns.

 

(c)            Severability.

 

If any provision of this Agreement or the application thereof shall be invalid or unenforceable, the remainder of this Agreement and any other application of such provision shall not be affected thereby.

 

(d)            Waiver.

 

No failure by any party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

 

 

 

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(e)            Requirement for Amendment of this Agreement.

 

Any amendment to this Agreement shall be made in writing and, except as otherwise set forth in this Agreement, and consented to by the Shareholders holding no less than three quarters (3/4) of the Shares (whether vested or not) entitled to vote thereon.

 

(f)            Securities Matters; Legend on Certificate.

 

(A)              Securities Act Requirements. Notwithstanding any other provision in this Agreement, but subject to express written waiver by the Company in the exercise of its good faith and reasonable judgment, no Shareholder shall Transfer any Shares without the registration of the transfer of such Shares under the Securities Act of 1933, as amended (the "Securities Act"), or until the Company shall have received such legal opinions or other assurances that such transfer is exempt from the registration requirements of the Securities Act and applicable state securities laws as the Company in its good faith and reasonable judgment deems appropriate in light of the facts and circumstances relating to such proposed Transfer, together with such representations, warranties, indemnifications and other assurances from the transferor and the transferee as the Company in its good faith and reasonable discretion deems appropriate to confirm the accuracy of the facts and circumstances that are the basis for any such opinion and to protect the Company and the other Shareholders from any liability resulting from any such transfer.

 

(B)              Legends. Upon the execution of this Agreement. the certificates representing the Shares shall bear the following legend:

 

THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF A CERTAIN SHAREHOLDERS AGREEMENT DATED AS OF________________, 2019, AS AMENDED, TO WHICH THE REGISTERED HOLDER OR HIS, HER OR ITS PREDECESSOR IN INTEREST IS A PARTY, WHICH AGREEMENT PROVIDES FOR CERTAIN VOTING RIGHTS AND OBLIGATIONS OF SALE AND PURCHASE. SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THIS COMPANY AND AFFECTS THE TRANSFERABILITY OF THE SHARES REPRESENTED BY THIS CERTIFICATE.

 

All certificates for Shares of the Company hereinafter newly issued or transferred shall bear the foregoing endorsement.

 

(g)           Governing Law.

 

This Agreement has been prepared, negotiated and delivered in, and shall be construed, interpreted and enforced in accordance with the substantive laws of the State of New York, without regard to its conflicts of laws principles.

 

(h)           Notices.

 

All notices, requests, demands and other communications that are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given (i) when received, if personally delivered; (ii) when transmitted, if transmitted by confirmed telecopy or electronic mail; (iii) the day after it is sent, if sent for next day delivery to a domestic address by recognized overnight delivery service (e.g., FedEx); and (iv) upon receipt, if sent by certified or registered mail, return receipt requested. Notices shall be addressed: (A) in the case of the Company, to its principal office; and (b) in the case of the Shareholders, to the addresses set forth on Schedule A; or to such other place and particulars and with such other copies as the Company or each Shareholder, as applicable, may designate as to itself by written notice to the other parties hereto delivered in accordance with this Article.

 

(i)             Further Assurances.

 

The parties to this Agreement agree to take all actions necessary to approve and/or execute and deliver in a timely fashion any and all additional documents necessary or desirable to effectuate the purposes of this Agreement. Each party, by the execution hereof, designates the Company, and any of its authorized officers, as its attorney-in-fact to execute all such documents and instruments necessary or desirable to implement the provisions thereof.

 

 

 

  A-7  

 

 

(j)             Rights. Obligations and Remedies.

 

The rights and obligations under, and the remedies to enforce, this Agreement are joint and several as to the Company and each of its Shareholders, with each being completely free to enforce any and all of the rights or obligations under this Agreement against any of the others with or without the concurrence or joinder of any of the others. The Shares are unique, and recognizing that the remedy at law for the breach or threatened breach by a party hereto of the covenants and agreements set forth in this Agreement would be inadequate and any such breach or threatened breach would cause such immediate and permanent damage that it would be irreparable and the exact amount of which would be impossible to ascertain, the parties hereto agree that in the event of any breach or threatened breach of any such covenant or agreement, in addition to any and all other legal and equitable remedies which may be available, any party hereto may specifically enforce the terms of this Agreement and shall be entitled to injunctive relief or such other equitable remedy as a court of competent jurisdiction may provide. Nothing contained herein will be construed to limit the Company's right to any remedies at law, including the recovery of damages for breach of this Agreement.

 

(k)       Execution and Counterparts.

 

This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. This Agreement shall become binding when one (1) or more counterparts hereof, individually or taken together, shall bear the signatures of all of the parties reflected hereon as the signatories. Any copy of this Agreement, with all signatures reproduced on one (1) or more sets of signatures pages, shall be considered for all purposes as if it were an executed counterpart of this Agreement. Delivery of an executed counterpart of a signature page to this Agreement by fax, e-mail or other electronic means shall be as effective as delivery of an original signature page to this Agreement.

 

(1)       Termination.

 

Unless provisions of this Agreement are earlier terminated pursuant to their terms, this Agreement shall terminate and shall be of no further force or effect upon the earliest to occur of (i) the ownership of all of the Shares by one Shareholder, or (ii) the occurrence of an underwritten offer and sale of any equity securities resulting in net proceeds in excess of one hundred million dollars.

 

(m)       Binding Arbitration.

 

Any dispute, claim, disagreement or controversy arising out of, connected with, or relating in any way to this Agreement (a "Dispute"), shall be resolved by final and binding arbitration conducted in in New York, New York in accordance with the procedures described hereinafter. Except for an action to obtain interim or provisional relief described herein, or an action to enforce the provisions of this Article, neither the Company nor any Shareholder (individually a "Party" and collectively the "Parties") shall file or commence any legal action to resolve a Dispute. The arbitration shall be administered by a dispute resolution service provider in New York, New York jointly selected by the Parties, in accordance with such service provider's procedures. If the Parties cannot agree on such service provider, then the arbitration shall be administered by AAA ("AAA") in New York, New York in accordance with its procedures. (Such jointly selected mediation service provider or AAA is referred to herein as the "Administrator"), The arbitration proceedings shall be conducted by one (1) arbitrator, who shall be selected from the Administrator's panel of neutrals in accordance with the Administrator's rules, and the Parties shall cooperate with the Administrator and with each other in selecting the arbitrator. Any Party may initiate arbitration by filing a written demand for arbitration with the Administrator. The decision of the arbitrator shall be final and binding on all Parties, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall not issue a reasoned award unless all Parties request such an award in writing. The arbitrator may, in the award, allocate all or part of the costs, fees and expenses of the arbitration, including the fees of the arbitrator and the reasonable attorneys' fees of the prevailing Party. All Parties understand that the arbitration provision set forth above constitutes a waiver of a Party's right to a jury trial and constitutes the sole and exclusive method of resolving all Disputes. The foregoing notwithstanding, any Party may seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that Party, and the Parties agree not to defend against any application for interim or provisional relief on the ground that an arbitration is pending. Any recourse by a Party to a court for interim or provisional relief shall not be deemed incompatible with the arbitration provisions of this Article or a waiver of such Party's right to arbitrate. The provisions of this Article may be enforced by any court having jurisdiction, and the Party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including reasonable attorneys' fees, to be paid by the Party against whom enforcement is ordered.

 

 

 

  A-8  

 

 

(n)           Entire Agreement.

 

This Agreement and those documents expressly referred to herein embody the complete agreement and understanding among the parties hereto, and supersede and preempt any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.

 

(o)            No Presumption.

 

The parties hereto acknowledge and agree that any applicable law that would require the interpretation of any alleged ambiguity in this Agreement against the party that drafted it has no application and such claim is expressly waived. If any such allegation is made by a party relating to any conflict, omission or ambiguity in the provisions of this Agreement, no presumption or burden of proof or persuasion will be implied because this Agreement was prepared by or at the request of any party or its counsel. Each party hereto acknowledges and represents that (i) it has read this Agreement carefully and understands the legal effect of its terms, (ii) it has engaged independent legal counsel in connection with the matters contemplated by this Agreement, or it has had the opportunity to engage independent legal counsel in connection with the matters contemplated by this Agreement but has chosen, out of its own volition, to forego the benefits of the advice of such independent legal counsel, and (iii) it is entering into this Agreement freely and based on its own judgment. Each party hereto acknowledges that the counsel that drafted this Agreement has acted as counsel only for the Company for the purposes of this Agreement and not for any other party hereto in connection with this Agreement and any negotiations leading to the terms and conditions set forth herein.

 

 

 

  A-9  

 

 

IN WITNESS WHEREOF, the parties hereto have duly executed this Shareholders Agreement as of the Effective Date.

 

 

 

 

 

 

 

 

 

 

 

 

 

  A-10  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  A-11  

 

 

EXHIBIT B

 

Share Transfer Agreement

 

 

 

 

 

 

 

 

 

  B-1  

 

 

SHARE TRANSFER AGREEMENT

 

 

This Share Transfer Agreement (this "Agreement") is entered into on __________, 2019

 

 

BETWEEN:

 

(1) Harbor Green Grain, L.P., a limited partnership duly organized and validly existing under the laws of the state of California, USA (the "Transferor"), and

 

(2) Knight Holding Corporation, tentatively named as or a variation thereof, a company incorporated and existing under the laws of the state of Delaware, USA (the "Transferee").

 

The parties above are collectively referred to as "the Parties”.

 

 

RECITALS

 

WHEREAS, as of the date of this Agreement, the Transferor owns 100% of the capital or profits of Arizona Hay Press, LLC, a limited liability company in Arizona (the "Company 1"), and 100% of the capital or profits of Knight AG Sourcing, LLC, a limited liability company in Arizona (the "Company 2", together with Company 1, collectively, the "Companies") ;

 

WHEREAS, the Transferor desires to transfer, and the Transferee desires to accept, the ownership held by the Transferor, representing 100% of the capital or profits of the Companies as of the date hereof, (the "Subject Shares"), upon the receipt of One US Dollar, subject to the terms and conditions set forth herein;

 

NOW, THEREFORE, in consideration of the mutual promises and agreements set forth herein, the adequacy of which are hereby acknowledged, the Parties hereby agree as follows:

 

1. Representations and Warranties by the Transferor

 

1.1. The Transferor is a company duly organized and validly existing and in good standing under the laws of California. The Transferor has the requisite corporate power and authority to execute and deliver this Agreement and perform its obligations hereunder and to consummate the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by the Transferor and constitutes a legal, valid and binding agreement of the Transferor enforceable against the Transferor in accordance with its terms.

 

1.2. Neither the execution of this Agreement nor any other agreement referred to herein nor the consummation of the transactions contemplated hereby and thereby will conflict with or result in a material breach or violation of any other material agreement or instrument by which the Transferor is bound, any charter, bylaws, certificate of incorporation or similar organizational documents of the Transferor, or any existing material law, regulation, judgment or order applicable to the Transferor.

  

2. Representations and Warranties by the Transferee

 

2.1. The Transferee is a company duly organized and validly existing and in good standing under the laws of Delaware. The Transferee has the requisite corporate power and authority to execute and deliver this Agreement and perform its obligations hereunder and to consummate the transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by the Transferee and constitutes a legal, valid and binding agreement of the Transferee enforceable against the Transferee in accordance with its terms.

 

 

 

  B-2  

 

 

2.2. Neither the execution of this Agreement nor any other agreement referred to herein nor the consummation of the transactions contemplated hereby and thereby will conflict with or result in a material breach or violation of any other material agreement or instrument by which either of the Transferee is bound, any existing material law, regulation, judgment or order applicable to each of the Transferee.

 

3. Representations and Warranties by the Shareholder

 

3.1. Jacky Lo, a resident of United States with driver license ID of D4464941 ("Mr. Lo"), as the Ultimate Beneficial Owner of the Transferor, hereby represents, warrants, covenants, agrees and confirms to Transferee that, from and after the Effective Date, Mr. Lo shall thereby assume and take responsibility and liability for the following: (a) any and all Liabilities attributable to Companies and the Assets (as defined below) , as applicable, to the extent that the same arise or accrue on or before the Closing and are attributable to events or circumstances which arise or occur on or before the Closing; and (b) any and all Liabilities with respect to the structural, physical or environmental condition of the property or land owned by Companies, as applicable, whether such Liabilities are latent or patent, whether the same arise or accrue on or before the Closing, and whether the same are attributable to events or circumstances which may arise or occur on or before the Closing, including, without limitation, all Environmental Liabilities; and (c) any and all Liabilities that arose or accrued prior to the Closing or are attributable to events which arose or occurred prior to the Closing, but only if Mr. Lo and its affiliates are deemed to know about the same on or before the Closing (excluding Liability to the extent the same arise or accrue as a result of any tort claims); (d) Intentionally Deleted; and (e) any and all Liabilities with respect to which Mr. Lo and its affiliates receive a credit at or before the Closing, but only to the extent of such credit. Mr. Lo acknowledges and agrees that the Liabilities to be assumed by Mr. Lo pursuant to each of the foregoing clauses are intended to be independent of one another, so Mr. Lo shall assume Liabilities described in each of the clauses even though some of those Liabilities may be read to be excluded by another clause.

 

3.2. Mr. Lo further represents or warrants that any and all the information disclosed by transferor (including its affiliates) to Transferee (including its affiliates) regarding the Transferor, Companies and Assets, are true, accurate and complete, whether in oral, written, graphic or machine-readable form, including without limitation to, product technologies, technical specifications, inventions, improvements, concepts, manuals, business plans, system integration capabilities, processes and procedures, technology roadmaps, pricing-related information, procurement information including supplier names, customer information, production schedules, component and assembly lead times, forecast data, order quantities and terms and conditions, strategies, and plans, proposals or data of a commercial, marketing information, software, source code, computer programs, products, technology, marketing plans, financial information (including any other forms of financials), personnel, legal or whatever other nature.

 

3.3. By execution of this Agreement, Mr. Lo acknowledges and represents that Mr. Lo HAS READ THE FORGOING, UNDERSTANDS IT AND SIGN IT VOLUNTARILY as his own free act and deed; and Guarantor execute this Agreement for full, adequate and complete consideration fully intending to be bound by same.

 

4. Agreement to Transfer Subject Shares

 

4.1. The Transferor agrees to transfer to the Transferee, and the Transferee agrees to accept from the Transferor, the Subject Shares in accordance with recitals to this Agreement. As consideration for the Subject Shares, the Transferee agrees to pay to the Transferor upon the receipt of One US Dollar.

 

5. Closing

 

5.1. The closing of the Agreement (the -Closing") shall be held on the date which is the five (5st) business day after the Effective Date hereof, or at such other time as the Parties shall agree (the "Closing Date").

 

5.2. At the Closing, the Transferor will deliver to the order of the Transferee (i) a counterpart signature page to this Agreement; (ii) a stock ledger, or any other evidence of the ownership by the Transferee of the Subject Shares; and (iii) a Sale and Purchase Agreement which is set forth in Schedule A hereto (the "SPA") countersigned by Transferor and Company 1, pursuant to and subject to the terms and conditions of which the Transferor hereby assigns, transfers, conveys and delivers to AHP, and AHP hereby accepts from Transferor, all of Transferor's title, interest and rights in all of the certain assets in which the Transferor has the title and/or other interests ( the "Assets"), from and clear from any and all liens, charges, security interests, mortgages, pledges, claims, rights of third parties and other encumbrances of any kind or nature.

 

 

 

  B-3  

 

 

6. Confidentiality

 

6.1. For the purpose of the Parties' evaluations of, and discussions relating to, the transactions contemplated by this Agreement, each Party has provided or may provide to the other Party certain information relating to the Company and the Subject Shares that is non-public, confidential or proprietary in nature (the "Confidential Information"). Each Party agrees to hold all the Confidential Information in trust and confidence and shall not use or disclose any such Confidential Information during the term of this Agreement anda fter the expiration of this Agreement for any reason whatsoever.

 

6.2. Notwithstanding the foregoing, each Party may disclose or otherwise use any Confidential Information to the extent such information (A) is or becomes publicly known or available (other than as a result of a violation by such Party of this Agreement), (B) is or becomes available to such Party from a third-party whom such Party reasonably believes is not under an obligation to keep such information confidential, (C) was already in such Party's possession, provided that such information is not known to such Party to be subject to another obligation of confidentiality to the Company, or (D) was or is independently developed by or on behalf of such Party without violating the terms of this Section 5.

 

6.3. If either Party becomes (or if it is reasonably likely that it shall become) legally compelled to disclose any Confidential Information, to the extent legally permissible and reasonably practicable, such Party shall provide immediate notice of such fact to the Company and the other Party so that appropriate action may be taken. Such Party shall cooperate with any reasonable requests from the Company and the other Party in connection therewith. If, after complying with the foregoing requirements, such Party is nonetheless legally compelled to disclose the Confidential Information to any third-party, such Party may disclose to such third-party only that portion of the Confidential Information which its outside legal counsel advises it is legally required to disclose.

 

7. General

 

7.1. Each Party hereto agrees to perform any further acts and execute and deliver any document or instrument that may be reasonably necessary to carry out the intent of this Agreement.

 

7.2. This Agreement shall bind and inure to the benefit of the successors and assigns of the Parties hereto.

 

7.3. This Agreement may be amended at any time by the written agreement and consent of the Parties hereto.

 

7.4. This Agreement shall be governed by and construed under the laws of the State of New York in all respects as such laws are applied to agreements among New York State residents entered into and performed entirely within the State of New York.

 

Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and the Shares shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby consents to process being served in any such action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.

 

 

 

  B-4  

 

 

EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.

 

7.5. This Agreement, including such other agreements referred to herein, constitutes the entire agreement and understanding among the parties pertaining to the subject matter hereof and supersedes any and all prior agreements, whether written or oral, relating thereto.

 

7.6. Introductory headings at the beginning of each clause of this Agreement are solely for the convenience of the parties and shall not be deemed to be a limitation upon or description of the contents of any such clause.

 

7.7. This Agreement may be executed in counterparts, which, when taken together, shall constitute one and the same instrument.

 

[Signature Page Follows]

 

 

 

 

 

 

 

 

 

 

 

 

 

  B-5  

 

 

 

IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the date first written above.

 

 

THE TRANSFEROR

 

 

By: /s/ Jacky Lo

Name: Jacky Lo

Title:

 

 

 

THE TRANSFEREE

 

 

By: /s/ Xiaofeng Peng

Name: Xiaofeng Peng

Title:

 

 

 

JACKY LO

 

 

By: /s/ Jacky Lo

 

 

 

 

 

  B-6  

 

 

Schedule A to Share Transfer Agreement

 

 

Sale and Purchase Agreement

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  B-7  

 

 

Sale and Purchase Agreement

 

This Sale and Purchase Agreement (together with all of its schedules and exhibits, this "Agreement") is made and entered into as of__________, 2019 (the "Effective Date"), by and between

 

(i) Arizona Hay Press, LLC, a limited liability AHP in Arizona ( the "AHP"), and

 

(ii) Harbor Green Grain, L.P., a limited partnership duly organized and validly existing under the laws of the state of California, USA ( "HGG") (together with their respective affiliates, collectively, the "HGG Group", and together with the AHP, collectively the "Parties", and each party, a "Party").

 

RECITALS

 

WHEREAS, the HGG has the title and/or other interests in certain assets, a description of which is set forth in Schedule A hereto (the "Assets") that may be used in the productions, sales or marketing of cotton, Alfalfa grass-based feed and other related products (the "Business").

 

WHEREAS, the AHP desires to be engaged in the Business; and

 

WHEREAS, subject to the terms and conditions contained herein, the HGG shall assign and transfer all of the Assets to AHP, and AHP shall pay to HGG One US Dollar as consideration (collectively, the "Transaction");

 

NOW, THEREFORE, FOR AND IN CONSIDERATION OF the premises, the mutual promises, covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

 

ARTICLE I.            CONTRIBUTION OF ASSETS

 

Section 1.01          Transfer of Assets

 

Upon the terms and subject to the conditions set forth in this Agreement, effective as of the Effective Date, HGG hereby assigns, transfers, conveys and delivers to AHP, and AHP hereby accepts from HGG, all of HGG's title, interest and rights in all of the Assets, from and clear from any and all liens, charges, security interests, mortgages, pledges, claims, rights of third parties and other encumbrances of any kind or nature (collectively, "Encumbrances"),

 

Section 1.02          No Assumption of Liabilities

 

  (a) The Parties agree that AHP shall not assume any liability of HGG, or any claim against HGG, whether in connection with the Assets or not, accruing to or incurred by HGG prior to the consummation of the Transaction, whether such liability or claim is known or unknown, now existing or not, of whatever nature or character, and whether absolute or contingent, liquidated or disputed. All such liabilities and claims shall be exclusively the obligations of HGG Group (the "Retained Liabilities").

 

  (b) The HGG Group shall remain liable for, and shall timely pay, perform and discharge in accordance with their respective terms of, and shall indemnify and hold AHP and its affiliates harmless from, all of the Retained Liabilities, if any.

 

ARTICLE II.           CONSIDERATION FOR THE ASSETS

 

Section 2.01         Consideration

 

As the consideration for the Assets, AHP shall pay One US Dollar to HGG.

 

 

 

  B-8  

 

 

ARTICLE III.          REPRESENTATIONS AND WARRANTIES OF THE HGG Group

 

Section 3.01         The Assets

 

The HGG hereby represents and warrants that

 

i. it owns of record and beneficially, all of the Assets, as fully described in Schedule A hereof.

 

ii. the Assets are free and clear from any Encumbrance;

 

iii. the Assets constitute all of the equipment, intellectual property and other intangible assets that are reasonably related to the Business that the HGG has; and

 

iv. the Assets are all in reasonably good condition and repair and free from any material defect and shall collectively constitute sufficient assets for the AHP to commence the operation of the Business.

 

Section 3.02          Legal Proceedings

 

The HGG hereby represents and warrants that there are no legal claims pending or threated against HGG or the Contributed Asset that challenge or seek to prevent, enjoin, alter or materially delay or condition the Transaction.

 

ARTICLE V.          FURTHER AGREEMENTS

 

The Parties further agree as follows:

 

Section 5.01          Prohibition on the Use of the Assets by HGG

 

The parties hereto agree that as a material inducement for AHP to enter into the Transaction, HGG hereby covenants that it shall, as of the Effective Date, be immediately and permanently prohibited from using any of the Assets, or any assets, including intellectual property or information derived from the Assets, including granting the right thereof, to any party, for any purpose.

 

ARTICLE VI.          Further Covenants

 

The parties hereto understand and agree that the Assets shall be used by the AHP to restart the operation of the Business of the AHP. The HGG shall without any further action of the AHP, take all such necessary actions to effect and complete the transfer and assignment of the Assets to the AHP, and to ensure the Assets are in good working order to enable the AHP to promptly commence the operation of the Business.

 

In the event any HGG breaches any representation, warranty or covenant, the HGG shall indemnify the AHP and any other shareholder of the AHP as the case may be for any and all of its losses and expenses resulted from such breach.

 

ARTICLE VII.         GENERAL PROVISIONS

 

The parties hereto further agree to the following:

 

Section 7.01         Governing Law

 

 

 

  B-9  

 

 

THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES, INCLUDING SUCH PRINCIPLES UNDER THE LAWS OF THE STATE OF NEW YORK.

 

Section 7.02          VENUE

 

SHOULD ANY LEGAL ACTION BE COMMENCED WITH RESPECT TO THIS AGREEMENT, THE PARTIES HERETO HEREBY CONSENT TO THE PERSONAL JURISDICTION OF THE UNITED STATES DISTRICT COURT IN THE SOUTHERN DISTRICT OF NEW YORK SITTING IN NEW YORK CITY.

 

By executing and delivering this Agreement, each Party (i) accepts, generally and unconditionally, the exclusive jurisdiction of such courts and any related appellate court, and irrevocably agrees to be bound by any judgment rendered thereby in connection with this Agreement and (ii) irrevocably waives any objection it may now or hereafter have as to the venue of any such suit, action or proceeding brought in such a court or that such court is an inconvenient forum.

 

Section 7.03          Waive of Jury Trial

 

THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO WHICH THEY ARE PARTIES INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT.

 

Section 7.04          Amendments and Waivers

 

No amendment or waiver of any provision of this Agreement shall be valid unless in writing and signed by the Parties hereto. No waiver by any Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.

 

Section 7.05          Entire Agreement

 

This Agreement constitutes a complete and exclusive statement of the terms of the agreement between the Parties with respect to the subject matters herein. This Agreement supersedes all prior agreements or understandings (whether oral or written), if any, between the Parties with respect to such subject matters.

 

Section 7.06          Incorporation by Reference

 

The exhibits and schedules identified in and attached to this Agreement, as well as the preamble and recitals hereof, are incorporated herein by reference and shall be deemed fully as integral parts of this Agreement as if set forth herein in full.

 

Section 7.07          Construction

 

The Parties have participated jointly in the drafting of this Agreement, and each Party was represented by counsel or had the opportunity to seek the advice of counsel, in the negotiation of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.

 

Section 7.08          Severability

 

The illegality, invalidity or unenforceability of any provision of this Agreement shall not render any other provision hereof or this Agreement illegal, invalid, or unenforceable.

 

 

 

  B-10  

 

 

Section 7.09          Counterparts; Facsimile

 

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Original signatures hereto and to other Transaction Documents may be delivered by facsimile or by electronic transmission in .PDF or .TIF format which shall be deemed originals.

 

Section 7.10          Joint and Several Liabilities

 

The liabilities of I-IGG Group hereunder are joint and several.

 

 

 

 

 

 

 

 

 

 

 

 

  B-11  

 

 

IN WITNESS WHEREOF, the parties identified herein have executed this Agreement on the date first above written.

 

Arizona Hay Press, LLC

 

 

/s/ Jacky Lo

Name: Jacky Lo

Title:

 

 

 

HGG:

 

Harbor Green Grain, L.P.

 

 

/s/ Jacky Lo

Name: Jacky Lo

Title:

 

 

 

  B-12  

 

 

 

Schedule A

 

The Assets

 

 

 

 

 

 

 

 

 

  B-13  

 

 

 

 

Item Purchase Price

Net Value

as of 30. April,

2019

Hunterwood FC7700 Forage Compactor and Associated Hardware 1,970,300 867,870
450ft x 100ft Aluminum top Barn w/Concrete Flooring and 4 Loading Docks 350,000 233,333

2006 Kalmar Yard Goat VIN:

11VF813E88A000469 w/2Trailers

License Plate# S53811 & S53810

15,000 6,000

1996 Volvo Water Truck VIN:

4V4JDBJF0TN852397

6,000 2,400
Hyster/H100FT   Serial # POO5VO3488H 24,260 4,043
Cat/Skid Steer Serial # 252B2 25,000 7,917
Hyster/H135XL Serial# F006A03609J 37,700 6,283
Cat/2C600 Serial# AT83F31395 18,000 5,700

120 Acres of Land, 515TH Ave/Tonto-

Vacant

Tonopah, AZ 85354

285,000 285,000
  2,731,260 1,418,547

 

 

Equipment:

 

1-Hunterwood FC7700 Forage Compactor
and Associated Hardware
$1,300,000.00

 

2-120 Acres of Land $285,000

 

3-450ft x 100ft Aluminum top Barn
w/Concrete Flooring and 4 Loading

 

Docks          $350,000.00

 

4-2006 Kalmar Yard Goat VIN:
11VF813E88A000469 w/2Trailers

License Plate# S53811 & S53810 ($8K).

(04/2016 $15,000.00 ).

 

5-1996 Volvo Water Truck VIN:

4V4JDBJF0TN852397 ($4K ). ( 04/2016
$6,000.00 ).

 

6-HysterH100FT Seria #

POO5VO3488H ( $18K ). ( 02/11/2015

 

7-Cat/Skid Steer Serial # 252B2 ($16K).

(11/2015 $25,000.00 ).

 

8-Hyster/H135XL Serial# F006A03609J

($25K .( 02/23/2015 $37,700.

 

9-Cat/2C600 Serial# AT83F31395

($11K). (11/2015 $18,000.00). 10-Daewoo Serial # GC255-2 Junk).

 

 

 

  B-14  

 

Exhibit 4.57

 

MANAGEMENT SERVICES AGREEMENT

 

This Management Agreement (the "Agreement") is made as of July 24, 2019 (the "Effective Date"), among Native American Agricultural Company, Company incorporated under the laws of New Mexico with its office located at Farm Rd and 5th Lane, Shiprock NM, 87420, ("NAAC" or "Contractor"), and CBD and Hemp Group Co., Ltd., a Delaware corporation located at 4677 Old Ironsides Drive ("Company"), and Hemp Biotechnology, Inc., ("Management"), a California Limited Liability Company, with office, located at 24301 Southland Drive 217a, Hayward CA, 94545.

 

Recitals

 

WHEREAS, the Company is in the business of the cultivation, distribution, manufacturing and selling of hemp.

 

WHEREAS, the Contractor has a background in Agricultural Development and Cultivation Services upon the Sovereign Navajo Nation and is willing to provide services to Company based on its experience and background;

 

WHEREAS, the Management owns the specialized knowledge and related experience in cultivation, distribution and manufacturing of hemp, and the Company agrees to engage the Management, and the Management agrees to accept such engagement, as the management team and supervisor in relation to the performance under this Agreement;

 

NOW THEREFORE, the Company, the Management and the Contractor (each, a "Party"; together, the "Parties"), agree as follows:

 

1. Basic Agreement

 

Contractor hereby proposes to cultivate and to provide to Company all services, (see Exhibit A), including but not limited to perform the work of Farm Preparation, Securing Seeds, Planting Seeds, Maintain Plant Count, Watering, Weeding, Male Plant Culling, Fertilization, Harvesting, Drying, Weighing, Packaging, Delivery and Marketing of Cannabis from Hemp in Compliance with all Regulations and Laws of the Navajo Nation San Juan River Farm Board and the state of New Mexico and agrees to accept the management and supervision of the Management who acts as the representative on behalf of the Company. Contractor agrees to provide all services and work from planting to sale and delivery of hemp products produced under this Agreement.

 

2. Grower Fee and Payment Schedule

 

(1)       The Company shall pay to the Contractor, as grower fee under this Agreement in the amount of US $1,143,750.00 ("Grower Fee") to the bank account of the Contractor (See Exhibit F)

 

The Company Agrees to pay the Grower Fee according to the below schedule:

 

(i) The Down Payment: US $343,125 (30%) of Grower Fee payable on or before July 31, 2019.

 

(ii) The First Milestone Payment: US $228,750 (20%) of Grower Fee payable on or before August 25, 2019, upon the Company's acceptance of the submission of the Contractor's first monthly Milestone Reports and Financial Reports(as defined in Exhibit A and Section 15);

 

(iii) The Second Milestone Payment: US $228,750 (20%) of Grower Fee payable on or before September 25, 2019,upon the Company's acceptance of the submission of the Contractor's second monthly Milestone Reports and Financial Reports;

 

(iv) The Third Milestone Payment: US $228,750 (20%) of Grower Fee payable on or before October 25, 2019, upon the Company's acceptance of the submission of the Contractor's last monthly Milestone Reports and Financial Reports;

 

 

 

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(v) The "Harvest Payment": US $114,375 (10%) of Grower Fee payable on or before November 25, 2019, upon the Company's acceptance of the submission of the Contractor's last monthly Milestone Reports and Financial Reports, and upon Contractor's receipt of the harvest confirmation from the Company in writing.

 

3. Detail of Grower Fee and Requirements

 

a. All Parties agree that it costs US $12.50 per Matured Plant (as defined below) and Company agrees to invest a minimum of US$ 1,143,750.00 for 91,500 Matured Plants. the Matured Plant means a plant genus Cannabis within the plant family Cannabis that has flowers and that contains no less than one (1) pound of dry flower in average (the "Minimum"); Contractor shall guarantee that each of 91,500 plants shall contain a Minimum of dry hemp flower and the total weights of dry flowers will not be less than 91,500 pounds.

 

All parties agree that if the number of Matured Plant exceed 91,500 in total upon harvest, Company shall have the first right of refusal to purchase any of the excess hemp beyond 91,500 plants (the "Excess") at its discretion; provided the price of the Excess shall be at US$12.18 per Matured Plant. If the Company chooses to acquire the Excess, such excess amount shall be paid concurrently with the Harvest Payment.

 

b. Contractor agrees that all seeds planted pursuant to this Agreement shall comply with the certificate of analysis report per Exhibit E attached.;

 

c. All Matured Plants shall be harvested and packaged according to Company's request, the dry flower and leaf will be packed separately, and each package will contain the type of product and weight;

 

d. All the flowers of plants shall pass the tests regulated by USDA;

 

4. Detailed Description of Contractor Duties

 

(a) Contractor shall provide the services as grower for Company in a manner consistent with good business practice within the industry, and consistent with all Regulations and Laws of the Navajo Nation San Juan River Farm Board.

 

(b) Contractor shall provide such services for Company in conformity with standards for the hemp industry, including activities which are customary and usual in connection with them (more specifically including the services set forth in Exhibit A below). Except as expressly limited under this Agreement and subject to the ultimate supervision of Company, Contractor shall supervise and direct the management of the all the independent workers/sub-contractors in all phases of farming activities.

 

(c) Contractor shall apply the standards of performance to meet those of the regulatory bodies, agencies and authorities having jurisdiction over Contractor.

 

(d) Contractor shall provide all reasonable and necessary supervision of all independent workers/sub-contractors and the operation of them.

 

(e) Contractor agrees to perform all customary functions which are reasonably required in conformity with industry standards.

 

(f) Contractor shall assist and cooperate with Company in maintaining all licenses and permits required in connection with the operation, if applicable.

 

(g) Contractor shall, with the prior approval of Company, take any and all reasonable actions (including legal action) or proceedings to prevent any legal disposure in the Navajo Nation San Juan River Farm.

 

(h) Contractor shall fully abide by the Farm Lease agreement by and between NAAC and Farm 10, dated April 1, 2019,attached as Exhibit C.

 

(i) Contractor shall grant to the Management the access to the Work wherever it is in preparation and progress at all times and agrees to accept the supervision of the Management.

 

 

 

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(ii) Contractor shall deliver to the designated place by Company all the Matured Plant accepted by the Company and packed by the Contractor no later than November 30 2019 at the expense of the Company.

 

5. Detailed Description of Management Duties

 

(a)  The Management shall supervise the work conducted by the Contractor, Contractor's employees and all sub-subcontractors, their agents and all other persons performing any of the work under this Agreement with the Contractor (" Work"), using the Management's best skill and attention;

 

(b)  The Management shall make periodic visits to the site to determine in general if the Work is proceeding in accordance with the terms of Agreement. On the basis of on-site observations, the Management shall keep the Company informed of the progress of the Work by submitting weekly report to the Company and shall endeavor to guard the Company against defects and deficiencies in the Work.

 

(c)  The Management shall make exhaustive and continuous on-site inspections to check the quality or quantity of the Work.

 

6. Representation and Warranties

 

Each Party hereby represents and warrants that it (a) has the right, power, and authority to enter into and perform its obligations under this Agreement; (b) has taken all requisite corporate action to approve execution, delivery, and performance of this Agreement; (c) this Agreement constitutes a legal, valid, and binding obligation upon itself.

 

All Parties represents all matters in Section 3 (a)-(d).

 

7. Compliance with Governmental Regulations

 

Contractor shall take all required action to comply promptly with all Federal, Navajo Nation San Juan River Farm, State, County and Municipal rules, regulations and orders, provided, however, that if Company is contesting or has affirmed its intention to contest any such rule, regulation or order, Contractor shall not take any action under this paragraph. Contractor shall, within forty-eight (48) hours of receipt of any Federal, State, County or Municipal rule, regulation or order, notify Company in writing of its receipt of such order, rule or regulation.

 

8. Insurance Coverage

 

Contractor shall maintain in full force and effect all policies of insurance now existing in connection with the performance of Services, the buildings and equipment thereon, and the inventory, including but not limited to public liability insurance, general liability insurance, property damage and personal injury insurance, and fire and theft coverage if able. Contractor shall bear the cost of any such insurance coverage and Contractor shall provide a proof of insurance coverage to Company. If Contractor's insurance coverage could not cover Company's damages arising from the Agreement hereto, Contractor shall indemnify Contractor's damage which is not covered by Contractor's insurance.

 

9. Indemnification

 

Contractor assumes all liability for and agrees to defend, indemnify and hold Company, its employees and its agents or subsidiaries, harmless from all loss, damage, cost and expense, including all attorneys' fees incurred by Company arising from or in any way connected with the Contractor's operations or the operations of any subcontractor, agent, servant or employee of the Contractor, including without limitation, bodily injury, sickness and/or disease, including death at any time, resulting from such bodily injury, sickness and/or disease, sustained by any person while in, on or about the performance of Services.

 

10. Storage

 

Contractor shall provide a storage room, with a fair price to be determined in the future. Contractor also agrees that the Matured Plants owned by Company which is placed in the storage room shall be covered by a proper insurance policy if able of Contractor without any fee imposed to Company until November 30, 2019.

 

 

 

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11. Precautionary Procedures

 

Risk warnings, market conditions are unpredictable, and the future harvest will be concentrated in the collection season. Price fluctuation risk is self-controlled, the Contractor has no way to guarantee, try to assist the Company, provide information, and maximize revenue. In order to maximize the benefits of the Company, the Contractor provides dry flower purchase information and sales channels for the Company to choose to maximize its benefits.

 

12. Corporate guarantee by the Contractor

 

Contractor shall maintain in full force and effect all policies of guarantee now existing in connection with the performance of Services, the buildings and equipment thereon, and the inventory, including but not limited to public liability insurance, general liability insurance, property damage and personal injury insurance, and fire and theft coverage if available. If Contractor's insurance coverage could not cover Company's damages arising from the Agreement hereto, Contractor shall indemnify Company's damage which is covered by Contractor's Guarantee.

 

13. Indemnification

 

Contractor assumes all liability for and agrees to defend, indemnify and hold Company, its employees and its agents or subsidiaries, harmless from all loss, damage, cost and expense, including all attorneys' fees incurred by Company arising from or in any way connected with the Contractor's operations or the operations of any subcontractor, agent, servant or employee of the Contractor, including without limitation, bodily injury, sickness and/or disease, including death at any time, resulting from such bodily injury, sickness and/or disease, sustained by any person while in, on or about the performance of Services.

 

14. Delivery of Harvested Products

 

Contractor agrees to deliver the Harvested Products to the designated place by Company in Southern California and bill the Company the actual costs of delivery. The Contractor can be commissioned to sell and be selected by the Company. When the Contractor has the buyer's information, the Company will be notified in time to decide whether or not to agree to sell.

 

15. Financial Records and Reports

 

Contractor shall keep accurate and complete records in accordance with the accounting standards and procedures presently utilized by Company. Company shall have the right at any reasonable time to inspect any such record of Contractor in order to verify the financial reports of Contractor, including but not limited to all checks, bills, vouchers, invoices, statements, cash receipts, correspondence, and all other records in connection with the performance Services. Company shall further have the right to cause an audit to be made of all account books and records connected with the performance Services.

 

Contractor shall prepare a monthly financial report showing in detail all of the receipts and disbursements from the preceding month and shall prepare a quarterly summary of receipts and disbursements, such monthly and quarterly reports to be submitted to Company within twenty (20) days after the close of the month or quarter, whichever is appropriate.

 

16. Time and Termination

 

This Agreement will continue to be effective from the Effective Date to November 30, 2019, or until terminated by either party upon agreement.

 

Provided an Event of Default occurs, the non-defaulting party shall have the discretion to terminate this Agreement by giving written notice to the defaulting party to terminate this Agreement. The notice must be issued at least thirty (30) days prior to the proposed expiration date. The defaulting party shall reimburse all the cost and damages (including direct and indirect) occurred to the non-defaulting party by performing this Agreement.

 

 

 

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Events of Default include but not limited to:

 

1. Default by the Company in the payment of Grower Fee as set forth in Section 2;
2. Default by the Contractor in the performance of or breach of any covenant or warranty under this Agreement;
3. The Personal Guarantee as attached as Exhibit D ceases to be in full force and effect or is disaffirmed or denied, or is found to be unenforceable or invalid; and
4. Certain events of bankruptcy or insolvency of the Company or the Contractor.

 

Provided no Event of Default occurs, either party may choose to terminate this Agreement by giving written notice to the other party to terminate this Agreement. The notice must be issued at least thirty (30) days prior to the proposed expiration date. The expiration date may be extended by mutual consent.

 

17. Force Majeure

 

The occurrence of an event which materially interferes with the ability of a Party to perform its obligations or duties hereunder which is not within the reasonable control of the Party affected or any of its Affiliates, and which could not with the exercise of Diligent Efforts have been avoided ("Force Majeure Event"), including, but not limited to, war, rebellion, earthquake, fire, accident, strike, riot, civil commotion, act of God, inability to obtain raw materials, change in Law, shall not excuse such Party from the performance of its obligations or duties under this Agreement, but shall merely suspend such performance during the Force Majeure Event. The Party subject to a Force Majeure Event shall promptly notify the other Party of the occurrence and particulars of such Force Majeure Event and shall provide the other Party, from time to time, with its best estimate of the duration of such Force Majeure Event and with notice of the termination thereof. The Party so affected shall use Diligent Efforts to avoid or remove such causes of non-performance as soon as is reasonably practicable. Upon termination of the Force Majeure Event, the performance of any suspended obligation or duty shall without delay recommence. The Party subject to the Force Majeure Event shall not be liable to the other Party for any damages arising out of or relating to the suspension or termination of any of its obligations or duties under this Agreement by reason of the occurrence of a Force Majeure Event, provided such Party complies in all material respects with its obligations under this Agreement.

 

18. Notices

 

Any notices to be given hereunder by either party to the other may be affected either by personal delivery in writing or by registered or certified mail, postage prepaid, with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing at the end of this Agreement, but each party may change its address by giving written notice in accordance with this paragraph. Notices personally delivered shall be deemed communicated as of three (3) days after mailing.

 

19. Partial Invalidity

 

If any provision in this agreement is held by a Court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.

 

20. Remedies

 

Should Contractor become incapable of continuing performance of the work herein, whether due to circumstances within or outside of its control, or in material default hereto, Company may terminate this Agreement and Company shall have all available legal remedies and shall be indemnified by the Contractor all loss, damage, cost and expense, including all attorneys' fees incurred by Company arising from or in any way connected with the Contractor's incapability and default hereto.

 

 

 

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Should Contractor fail to grow each Matured Plant which contains less than one (1) pound of dry flower, less than 10% of the total plants (100,000 in total), or less than 100,000 pounds in total weights, Contractor shall make up the deficiency, defined below (the "Deficiency"), to Company by providing additional dry flowers without excuse. The Deficiency is defined as the net difference of one (1) pound less the actual harvested dry flower per Matured Plant.

 

If more than 10% of the total plants (100,000 in total) contain less than one (1) pound of dry flowers or the total weights is less than 90,000 pounds, it is considered a material breach and constitute an Event of Default.

 

Should Company be in default of compensation owing at any time under this Agreement, Company shall be deemed to be in default of this Agreement, and Contractor has available to all legal remedies and processes.

 

21. Attorneys' Fees and Costs

 

If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs, and necessary disbursements, in addition to any other relief to which such party may be entitled.

 

22. Governing Law, Jurisdiction

 

This Agreement shall be governed by the laws of the Navaho Nation without regard to principles of conflicts of law. All Parties agree to resolve all disputes in the court of Los Angles fora binding Arbitration, see Section 26 below.

 

23. General Covenants of Company and Contractor

 

(a)            Company agrees that it will furnish sufficient funds as grower and management fees to provide for Contractor's performance of Services, see Section 2.

 

(b)            Each Party shall comply with all federal, the Navajo Nation San Juan River Farm, state and local laws, rules, regulations and requirements which are applicable to either Party.

 

(c)            Subject to the provisions of this Agreement, all of the costs and expenses of performance of Services by Contractor, including but not limited to the compensation of all Contractor personnel, shall be at the expense of Contractor.

 

24. Assignment

 

Neither this Agreement nor any right, interest, or obligation under it may be assigned, pledged, or otherwise transferred by either Party without the written consent of the other Party, which consent shall not be unreasonably withheld.

 

25. Third-Party Beneficiaries

 

This Agreement is made solely for the benefit of the Parties and their successors and permitted assigns; no other person or entity has, or is entitled to enforce, any rights, benefits, or obligations under this Agreement. The foregoing notwithstanding, Company shall be a third-party beneficiary of this Agreement.

 

26. Arbitration of Disputes

 

If a claim or controversy arising out of or relating to this agreement, the performance or non-performance of services, the quality or appropriateness of the services, and/or other disputes involving productivity, such dispute shall be determined by final and binding arbitration before either the Judicial Arbitration and Mediation Service ("JAMS") or, alternatively, ADR Services, Inc. ("ADR"). The arbitration will be conducted in Los Angeles, California, and shall be administered by and in accordance with either the then existing JAMS Streamlined Arbitration Rules and Procedures or, alternatively, ADR's Arbitration Rules (a copy of such rules will be furnished to you upon request). In rendering the award, the arbitrator shall determine the rights and obligations of the parties according to the substantive law of Navajo Nation and procedural laws of Court of Los Angeles. Neither the Company nor the Contractor, however, will be precluded from obtaining provisional relief, including but not limited to attachment, in any court of competent jurisdiction. Judgment may be entered upon the arbitrator's award by any court having jurisdiction. Should either Party refuses or neglects to appear or participate in the arbitration proceeding, the arbitrator is empowered to decide the claim or controversy in accordance with the evidence presented. PARTY REALIZES THAT BY ACCEPTING THIS ARBITRATION PROVISION, PARTY WAIVE ITS CONSTITUTIONAL RIGHT TO A JURY TRIAL AND THE RIGHT, EXCEPT UNDER LIMITED CIRCUMSTANCES, TO APPEAL THE ARBITRATOR'S DECISION.

 

 

 

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This agreement to arbitrate shall be governed by and interpreted under the procedures of the Federal Arbitration Act, 9 U.S.C. Sections 1-16. In rendering an award, the arbitrator shall apply the substantive law of Navajo Nation, without regard to its choice of laws principles. The arbitrator shall not have any power to alter, amend, modify or change any of the terms of this Agreement, nor to grant any remedy that is either prohibited by the terms of this Agreement or not available in a court of law.

 

27.       Waiver

 

The United States federal government has viewed that anyone who is engaging in Cannabis business, including but not limited to testing lab, is in violation of the Controlled Substances Act (21 U.S.C. § 811), which may render this Agreement invalid. Nevertheless, each Party hereby waives the right to claim such defense or related defenses and agrees that this Agreement is binding upon, and shall inure to the benefit of the Parties hereto.

 

 

CONTRACTOR:

 

/s/ DaMu Lin         7/24/2019

DaMu Lin, authorized officer of Native American Agricultural Company  

 

 

COMPANY:

 

/s/ Xiaofeng Peng           07.24.2019

Xiaofeng Peng, authorized officer of

CBD and Hemp Group Co., Ltd

 

 

 

MANAGEMENT:

 

 

/s/ Yonglei Zang       7.24.2019

Yonglei Zang, authorized officer of

Hemp Biotechnology, Inc.

 

 

 

 

 

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Exhibit A

Scope of Work

 

a.              Hiring of all employees or independent contractors for the farm used by Company. Contractor will employ and/or enter into consulting contracts with all persons who work on its behalf. All personnel will be either employees or independent contractors of Contractor, and Company shall not be responsible for all income and payroll tax withholding and reporting; and

 

b.              Advise and notify Company of all equipment and supplies necessary to operate the business and it is Contractor's responsibilities to pay for all equipment and supplies.

 

c.              Contractor's services will include:

 

Farm Preparation, Securing Seeds, Planting Seeds, Maintain Plant Count, Watering, Weeding, Male Plant Culling, Fertilization, Harvesting, Drying, Weighing and Packaging of Cannabis from Hemp in Compliance with all Regulations and Laws.

 

d.              Upon Effective Date of the Agreement, Contractor shall assist in the application and approval of all required, licenses, permits and permissions as needed to have a fully legal Hemp Cultivation with the laws of the Navajo Nation, as regulated and administered by the Navajo Nation San Juan River Farm Board.

 

e.              Contractor shall prepare each Milestone Report ("Milestone Report"), including but not limited to Pictures, Growth and Size of the hemp, to be submitted and approved by Company 10 days prior to each of the milestone payment.

 

Contractor agrees to devote its best effort to the performance of its management services. The parties further agree Contractor will perform such other services as agreed upon by the parties from time to time as further agreed by the parties.

 

e. Location (See Exhibit B)

 

 

 

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Exhibit B

 

 

 

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Exhibit C

 

Farm Lease Agreement

 

 

 

 

 

 

 

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Farm Lease

 

This Lease Agreement (this "Lease") is made effective as of 04/01/2019. by and between an agricultural property known as FARM 10 ("Landlord"), and Native • American Agricultural Company ("Tenant"). The parties agree as follows:

 

PREMISES. Landlord, in consideration of the lease payments provided in this Lease, leases to Tenant 36 Acre Farm (the "Premises") located near Shiprock Navajo Nation (see attached property description and location map)

 

TERM. The lease term will begin on April 01, 2019 and will terminate on November 30, 2019.

 

LEASE PAYMENTS. Tenant shall pay to Landlord monthly installments of 51,000.00, payable in advance on the first day of each month a payment is due. Lease payments shall be made to Landlord in person which location may be changed from time to time by Landlord.

 

POSSESSION. Tenant shall be entitled to possession on the first day of the term of this Lease and shall yield possession to Landlord on the last day of the term of this Lease, unless otherwise agreed by both parties in writing. At the expiration of the term, Tenant shall remove its goods and effects and peaceably yield up the Premises to Landlord in as good or better condition as when delivered to Tenant.

 

CROPS: Landlord acknowledges and allow tenant to plant, cultivate and harvest legally licensed and compliant Hemp plants.

 

NO PARTNERSHIP. Nothing in this lease shall create a partnership, joint venture. employment, or any other relationship between Lessor and Lessee, than that of landlord and tenant. Neither party shall be liable, except as otherwise expressly provided herein, for the other party's obligations or liabilities. Tenant shall indemnify and hold Landlord and his property, including the Premises, free and harmless from all obligations and liabilities incurred by Lessee in conducting farming or other operations on the Premises, whether under this lease or otherwise.

 

USE OF PREMISES/ABSENCES. The Premises shall be used for the purpose of planting, growing, and harvesting of hemp crops; The Premises shall not be used for any other purpose without Landlord's prior written consent. Tenant shall carry on all of the activities specified above in accordance with good and best practices of the farming community in which the leased premises are situated. Tenant agrees not to apply pesticides, insecticides, fungicides, herbicides, or other chemical treatments that will have a residual effect beyond the term of this lease.

 

MAINTENANCE. Tenant shall be responsible for: Planting, cultivation, weed control, irrigation, security and harvesting and any maintenance deemed necessary.

 

UTILITIES AND SERVICES. Tenant shall pay all costs in connection with Tenant's operations on the leased premises, including but not limited to costs of preparing the leased premises for planting of crops, production costs, costs of tools and labor, electricity and other utilities.

 

 

 

 

 

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Farm Lease

 

DEFAULTS. Tenant shall be in default of this Lease if Tenant fails to fulfill any lease obligation or term by which Tenant is bound. Subject to any governing provision of law to the contrary, if Tenant fails to cure any financial obligation within 5 days (or any other obligation within 10 days) after written notice of such default is provided by Landlord to Tenant, Landlord may elect to cure such default and the cost of such action shall be added to Tenant's financial obligations under this Lease. All sums of money or charges required to be paid by Tenant under this Lease shall be additional rent, whether or not such sums or charges are designated as "additional rent." The rights provided by this paragraph are cumulative in nature and are in addition to any other rights afforded by law.

 

HOLDOVER. If Tenant maintains possession of the Premises for any period after the termination of this Lease ("Holdover Period"), Tenant shall pay to Landlord lease payment(s) during the Holdover Period at a rate equal to the most recent rate preceding the Holdover Period. Such holdover shall constitute a month-to-month extension of this Lease.

 

NON-SUFFICIENT FUNDS. Tenant shall be charged the maximum amount allowable under applicable law for each check that is returned to Landlord for lack of sufficient funds.

 

ACCESS BY LANDLORD TO PREMISES. Subject to Tenant's consent, (which shall not be unreasonably withheld), Landlord shall have the right to enter the Premises to make inspections, provide necessary services.

 

DANGEROUS MATERIALS. Tenant shall not keep or have on the Premises any article or thing of a dangerous, flammable, or explosive character that might substantially increase the danger of fire on the Premises, or that might be considered hazardous by a responsible person.

 

MECHANICS LIENS. Neither Tenant nor anyone claiming through the Tenant shall have the right to file mechanics liens or any other kind of lien on the Premises and the filing of this Lease constitutes notice that such liens are invalid. Further, Tenant agrees to (1) give actual advance notice to any contractors, subcontractors or suppliers of goods, labor, or services that such liens will not be valid, and (2) take whatever additional steps that are necessary in order to keep the premises free of all liens resulting from construction done by or for the Tenant.

 

ASSIGNABILITY/SUBLETTING. Tenant may assign or sublease any interest in the Premises and assign without the prior written consent of Landlord.

 

GOVERNING LAW. This Lease shall be construed in accordance with the laws of the Navajo Nation.

 

ENTIRE AGREEMENT/AMENDMENT. This Lease contains the entire agreement of the parties and there are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Lease. This Lease may be modified or amended in writing, if the writing is signed by the party obligated under the amendment.

 

SEVERABILITY. If any portion of this Lease shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds

 

 

 

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Farm Lease

 

Property Description

 

FARM 10 agrees to plant 5,000 plants per acre and grow 36 acres of hemp.

 

GPS Coordinates (REQUIRED) GPS coordinates should be provided in DEGREES DECIMAL MINUTES example: (dd° mm.mmm' : example: lat: 38° 9.919N, long: 84° 49.267'W)

 

Latitude 36°49'58.0"N
Longitude 108°43'43.21"W

 

Property Map

 

 

 

 

 

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Farm Lease

 

that any provision of this Lease is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written. construed, and enforced as so limited.

 

WAIVER. The failure of either party to enforce any provisions of this Lease shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Lease.

 

BINDING EFFECT. The provisions of this Lease shall be binding upon and inure to the benefit of both parties and their respective legal representatives, successors and assigns.

 

LANDLORD:

 

 

 

 

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Exhibit D

 

Personal Guaranty Agreement

 

This Personal Guaranty Agreement (the "Guaranty") is dated on July 24, 2019.

 

Guarantors:

 

DaMu Lin a resident of United States with a State of Nevada driver license # ID 160261810 as the Guarantor A;

 

And Leo a resident of the United States with a State of California driver license #ID 0517192 as the Guarantor B;

 

WHEREAS, Native American Agricultural Company, a Company incorporated under the laws of New Mexico with its office at Shiprock, NM ("NAAC" or "Contractor"), Guarantee, and Hemp Biotechnology, Inc., (" Hemp"), a California Limited Liability Company, with offices in Hayward CA, entered into a Management Service Agreement(the "Service Agreement") dated July 15, 2019,pursuant to which NAAC and Hemp will provide services to Guarantee as per the terms of the Service Agreement.

 

NOW, THEREFORE, the Guarantors hereby irrevocably, absolutely and unconditionally represent, warrant, covenant, agree and confirm to Guarantee, from and after the date of this Guaranty, to guaranty the full performance and contractual obligations of NAAC and Hemp under the Service Agreement (the "Obligations").

 

The Guarantors waive diligence, presentment, protest, notice of dishonor, notice of default by NAAC and Hemp, notice of acceptance of this Guaranty, and indulgences and notices of every kind. Guarantors waive any rights of subrogate on, indemnity, reimbursement.

 

NAAC and Hemp may do the following from time to time without notice to, or consent of, Guarantors and without affecting Guarantors' liability under this Guaranty:

 

a. Change the terms of the Obligations or of any debts or liabilities of NAAC and/or Hemp.

 

b. Release, settle, or compromise any debts or liabilities of NAAC and/or Hemp.

 

c. Exchange, modify, release, impair, or fail to perfect a security interest in, any collateral securing the Obligations.

 

d. Guarantors shall remain liable until all terms of the Obligations are fully performed by NAAC and Hemp, notwithstanding any event that would in the absence of these provisions, resulting in the discharge of Guarantors.

 

This is a continuing guaranty of performance, not a guaranty of collection. Guarantee may enforce this Guaranty without first proceeding against NAAC, Hemp, any of the guarantors, any other person or any security or collateral, and without first pursuing any other right or remedy. This Guaranty remains enforceable regardless of any defenses that NAAC or Hemp may assert on the Obligations, including but not limited to, breach of warranty, fraud, statute of frauds, bankruptcy, lack of legal capacity, statute of limitations, accord and satisfaction. If foreclosure or other remedy is pursued, only the net proceeds, after deduction of all charges and expenses, shall be applied to the amount due on the Obligations. Guarantee may purchase all or part of the collateral or security at any foreclosure or other sale for its own account and may apply the amount bid against the amount due on the Obligations.

 

If this Guaranty is given to an attorney for enforcement, Guarantors will reimburse Guarantee for all expenses incurred in connection with enforcement including without limitation reasonable attorney's fees.

 

No provision of this Guaranty shall be construed to amend the Obligations or to relieve NAAC and Hemp of any obligations.

 

 

 

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If more than one person or party executes a Guaranty as Guarantor of the Obligations of NAAC and Hemp, this Guaranty and the related guaranties by other parties shall bind all such persons and parties jointly and severally. Each of the Guarantors acknowledges that Guarantor has adequate means to obtain from the NAAC and Hemp on a continuing basis, information on the performance of NAAC and Hemp and that each of the Guarantors is not relying on Guarantee to provide this information, now or in the future. The liability of Guarantors shall be reinstated to the extent NAAC and Hemp are required at any time to be liable for the Obligations for any reason.

 

All rights and remedies of Guarantee under this Guaranty are cumulative and are in addition to other rights and remedies the Guarantee may have. This writing is a complete and exclusive statement of the guaranty agreement between the parties. No course of dealing, course of performance, or parole evidence shall be used to modify its terms. This Guaranty shall inure to the benefit of and may be enforced by Guarantee, its affiliates and any subsequent holder of the Obligations and shall be binding upon and enforceable against Guarantors and the legal representatives, heirs, successors and assigns of Guarantors.

 

In signing this Guaranty, Guarantors acknowledge and represent that Guarantors HAVE READ THE FORGOING, UNDERSTANDS IT AND SIGN IT VOLUNTARILY as their own free act and deed; and Guarantors execute this guaranty for full, adequate and complete consideration fully intending to be bound by same.

 

This Guaranty shall be governed by and construed under the laws of the State of New Mexico in all respects as such laws are applied to the Guaranty among New Mexico State residents entered into and performed entirely within the State of New Mexico.

 

Parties agrees that all legal proceedings concerning the interpretations, enforcement and defense of the Guaranty shall be commenced exclusively in the state and federal courts sitting in the City of Albuquerque. Parties hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of Albuquerque, for the adjudication of any dispute hereunder or in connection herewith or with the Guaranty herein, and hereby irrevocably waives, and agrees not to assert in any action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such action or proceeding is improper or is an inconvenient venue for such proceeding. Parties hereby consents to process being served in any such action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to other party at the address in effect for notices to it under this Guaranty and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.

 

EACH OF THE PARTIES HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS GUARANTY HEREBY.

 

This Guaranty may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any signature page delivered by a fax machine shall be binding to the same extent as an original signature page, regarding any agreement subject to the terms hereof or any amendment thereto.

 

 

By: /s/ DaMu Lin          7/24/2019

DaMu Lin

 

 

By: /s/ Zhang Yonglie         7.24.2019

Zhang Yonglei

 

 

 

 

 

 

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[drivers’ license appears hear]

 

 

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Exhibit E

 

 

 

 

 

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Exhibit F

 

Bank Account Information

 

Native American Agricultural Company

 

Bank of America

 

Account Number: xxxxxxxxxx

 

Routing Number: xxxxxxxxx

 

SWIFT code xxxxxxxxxx for incoming wires in U.S. dollars

 

SWIFT code xxxxxxxxxx for incoming wires in foreign currency

 

 

 

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Exhibit 4.58

 

Equipment Purchase Contract

 

This Contract is made as of 6 August 4, 2019 ("Effective Date") and entered into through friendly negotiation by and between CBD and Hemp Group Co., Ltd., a Delaware corporation located at 4677 Old lronsides Drive, Ste. 190, Santa Clara, CA 95054 (hereinafter referred to as "the Purchaser"), as one party and All Datum Inc., a corporation located at 1004 W West Covina Parkway, West Covina, CA 91790, under the laws of California (hereinafter referred to as "the Seller" or "the Supplier"), as the other party, under the following terms and conditions:

 

1. DEFINITION

 

In the Contract unless the context otherwise defines,

 

1.1 The Equipment means the equipment, materials, spare parts or any part thereof supplied by the Seller including those with which the Product are produced, details of which are specified in Appendix 1 to the Contract.

 

1.2 The Raw Material means dry flower and trim of hemp supplied by the Purchaser.

 

1.3 The Products means crystalized CBD (cannabidiol), a chemical compound extracted from the stalks, stems, and flowers of the Raw Material by manufacturing and processing in the Equipment.

 

1.4 Lab means a ISO 17025 accredited cannabis/hemp testing laboratory, or equivalent cannabis/hemp testing laboratory.

 

1.5 Sample means certain amount of the Raw Material as determined by the Purchaser chosen out of the Raw Material.

 

1.6 Lab Test is the method conducted by the Lab which are used for the purpose of confirm and certify the level of the Products out of the Sample.

 

1.7 Sample Tests are the methods which are used for the purpose of judging the Equipment's ability to extract the Products from the Raw Material which performance shall conform to the result of Lab Test.

 

1.8 The Purpose of the Equipment means extracting the Products from the Raw Material.

 

1.9 The Site refers to as a producer sites means an area devoted to the growth of the Raw Material. This is a parcel or tract of land used for the purpose of growing Raw Material.

 

1.10 The Price means the sum payable to the Seller under the Contract for full and proper performance of its contractual obligations, details of which are specified in Appendix 1.

 

1.11 The Currency means the currency in which the payment is made under the Contract, namely US Dollars.

 

1.12 The Agency Agreement means the agreement entered into between the Purchaser and Seller pursuant to which the Purchaser shall be appointed as the agent of the Seller to sell the Equipment.

 

2.  THE EQUIPMENT

 

2.1 The Equipment shall be to the reasonable satisfaction of the Purchaser and shall conform in all respects with any particulars specified in the Contract and in any variations thereto.

 

2.2 The Equipment shall conform in all respects with the requirements of any statutes, regulations or laws from time to time in force.

 

2.3 The Equipment shall be fit and sufficient for the Purpose of the Equipment and the Purchaser relies on the skill and judgement of the Supplier in the supply of the Equipment and the execution of the Contract.

 

 

 

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2.4 The Equipment shall conform in all respects with the Lab Test and Sample Test.

 

3.  THE PRICE AND PAYMENT

 

3.1 The Price shall be 300,000.00 US dollars, as adjusted according to the terms of first time Purchaser by applying 10.74% discount on the total price stated in the Appendix l,including all possible tax or duties, and no increase will be accepted by the Purchaser unless agreed by him/her in writing before the execution of the Contract.

 

3.2 within 3 working days after the Effective Date, the Purchaser shall pay 30% of the Price as the down payment. After the Equipment is delivered to the designated place by the Purchaser and completed assembly by Seller and upon the result of the Sample Test is to the reasonable satisfaction of the Purchaser at Purchaser's discretion, the Purchaser shall pay 60% of the Price; and the balance 10% of the Price shall be payable after the Equipment runs well for a consecutive of two (2) months and upon the Acceptance Report from the Purchaser is issued.

 

3.3 After expiry of the 24 months guarantee period, the Purchase agrees to place an order to purchase the Equipment under the same terms of this Agreement provided the Equipment runs well to the Purchaser's satisfactory during 24 months guarantee period.

 

4.  DELIVERY

 

4.1 The Equipment shall be delivered to the designated place named by the Purchaser within 90 days after the Effective Date ( the "Delivery Date"). Any access to Site and any labor and equipment that may be provided by the Purchaser in connection with delivery shall be provided without acceptance by the Purchaser of any liability whatsoever and the Supplier shall indemnify the Purchaser in respect of any actions, suits, claims, demands, losses, charges, costs and expenses which the Purchaser may suffer or incur as a result of or in connection with any damage or injury (whether fatal or otherwise) occurring in the course of delivery or installation to the extent that any such damage or injury is attributable to any act or omission of the Supplier or any of his subcontractors.

 

4.2 Where any access to the Site is necessary in connection with delivery or installation the Supplier and his sub-contractors shall at all time comply with the reasonable requirements of the Purchaser.

 

4.3 The time of delivery shall be of the essence and failure to deliver before the Delivery Date or specified by the Purchaser shall enable the Purchaser (at his option) to release himself from any obligation to accept and pay for the Equipment and/or to cancel all or part of the Contract therefor without any charge to the Purchaser, in either case without prejudice to his other rights and remedies.

 

5. OWNERSHIP AND TITLE

 

Ownership and title of the Equipment shall without prejudice to any of the rights or remedies of the Purchaser pass to the Purchaser at the time of delivery.

 

6. DAMAGE IN TRANSIT

 

On despatch of any consignment of the Equipment the Supplier shall send to the Purchaser at the address for delivery of the Equipment an advice note specifying the means of transport, the place and date of despatch, the number of packages and their weight and volume. The Supplier shall free of charge and as quickly as possible either repair or replace (as the Purchaser shall elect) such of the Equipment as may either be damaged in transit or having been placed in transit fail to be delivered to the Purchaser provided that:

 

a)     in the case of damage to such Equipment in transit the Purchaser shall within thirty days of the completed date of delivery give notice to the Supplier that the Equipment have been damaged; and

 

 

 

  2  

 

 

b)     in the case of non-delivery the Purchaser shall (provided that the Purchaser has been advised of the despatch of the Equipment) within ten days of the notified date of delivery give notice to the Supplier that the Equipment have not been delivered.

 

7. INSPECTION, REJECTION AND GUARANTEE

 

7.1 The Supplier shall permit the Purchaser or his authorised representatives to make any inspections or Sample Test the Purchaser may reasonably require and the Supplier shall afford all reasonable facilities and assistance free of charge at his premises. No failure to make complaint at the time of such inspection or tests and no approval given during or after such tests or inspections shall constitute a waiver by the Purchaser of any rights or remedies in respect of the Equipment.

 

7.2 The Purchaser may by written notice to the Supplier reject any of the Equipment which fail to meet the Sample Test specified herein. Such notice shall be given within a reasonable time after delivery to the Purchaser of the Equipment concerned. If the Purchaser shall reject any of the Equipment pursuant to this Condition the Purchaser shall be entitled (without prejudice to his other rights and remedies) either:

 

a)    to have the Equipment concerned as quickly as possible either repaired by the Supplier or (as the Purchaser shall elect) replaced by the Supplier with Equipment which comply in all respects with the requirements specified herein; or

 

b)   to obtain a refund from the Supplier in respect of the Equipment concerned.

 

7.3 The guarantee period applicable to the Equipment shall be 24 months from delivery. If the Purchaser shall, within such guarantee period or within 30 days thereafter, give notice in writing to the Supplier of any defect in any of the Equipment as may have arisen during such guarantee period under proper and normal use, the Supplier shall (without prejudice to any other rights and remedies which the Purchaser may have) as quickly as possible remedy such defects (whether by repair or replacement as the Purchaser shall elect) without cost to the Purchaser.

 

7.4 Any Equipment rejected or returned by the Purchaser as described in paragraphs 7.2 or 7.3 shall be returned to the Supplier at the Supplier's risk and expense.

 

8.     LABELLING AND PACKAGING

 

8.1 The Equipment shall be packed and marked in a proper manner and in accordance with the Purchaser's instructions and any statutory requirements and any requirements of the carriers. In particular the Equipment shall be marked with the Contract Number, the net, gross and tare weights, the name of the contents shall be clearly marked on each container and all containers of hazardous Equipment (and all documents relating thereto) shall bear prominent and adequate warnings. The Supplier shall indemnify the Purchaser against all actions, suits, claims, demands, losses, charges, costs and expenses which the Purchaser may suffer or incur as a result of or in connection with any breach of this condition

 

8.2 All packaging materials will be considered non-returnable and will be destroyed unless the Supplier's advice note states that such materials will be charged for unless returned. The Purchaser accepts no liability in respect of the non-arrival at the Supplier's premises of empty packages returned by the Purchaser unless the Supplier shall within ten days of receiving notice from the Purchaser that the packages have been dispatched notify the Purchaser of such non-arrival.

 

9.     PATENTS AND INFORMATION

 

9.1 It shall be a condition of this Contract that, except to the extent that the Equipment are made up in accordance with designs furnished by the Purchaser, none of the Equipment will infringe any patent, trade mark, registered design, copyright or other right in the nature of industrial property of any third party and the Supplier shall indemnify the Purchaser against all actions, suits, claims, demands, losses, charges, costs and expenses which the Purchaser may suffer or incur as a result of or in connection with any breach of this Condition.

 

 

 

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9.2 All rights (including ownership and copyright) in any specifications, instructions, plans, drawings, patterns, models, designs or other material furnished to or made available to the Supplier by the Purchaser pursuant to this Contract shall remain vested solely in the Purchaser and the Supplier shall not (except to the extent necessary for the implementation of this Contract) without prior written consent of the Purchaser use or disclose any such specifications, plans, drawings, patterns, models or designs or any information (whether or not relevant to this Contract) which the Supplier may obtain pursuant to this Contract and in particular (but without prejudice to the generally of the foregoing) the Supplier shall not refer to the Purchaser or the Contract in any advertisement without the Purchaser's prior written agreement.

 

10.      HEALTH AND SAFETY

 

The Supplier represents and warrants to the Purchaser that the Supplier has satisfied himself that all necessary tests and examinations have been made or will be made prior to delivery of the Equipment to ensure that the Equipment are designed and constructed so as to be safe and without risk to the health or safety of persons using the same, and that he had made available to the Purchaser adequate information about the use for which the Equipment have been designed and have been tested and about any conditions necessary to ensure that when put to use the Equipment will be safe and without risk to health. The Supplier shall indemnify the Purchaser against all actions, suits, claims, demands, losses, charges, costs and expenses which the Purchaser may suffer or incur as a result of or in connection with any breach of this Condition

 

11.      INDEMNITY AND INSURANCE

 

11.1 Without prejudice to any rights or remedies of the Purchaser (including the Purchaser's rights and remedies under Condition 7 hereof) the Supplier shall indemnify the Purchaser against all actions, suits, claims demands, losses, charges, costs and expenses which the purchaser may suffer or incur as a result of or in connection with any damage to property or in respect of any injury (whether fatal or otherwise) to any person which may result directly or indirectly from any defect in the Equipment or the negligent or wrongful act or omission of the Supplier.

 

11.2 The Supplier shall effect with a reputable insurance company a policy or policies of insurance covering all the matters which are the subject of indemnities under these Conditions and shall at the request of the Purchaser produce the relevant policy or policies together with receipts or other evidence of payment of the latest premium due thereunder.

 

12.      CONFIDENTIALITY

 

12.1 The Supplier shall keep secret and not disclose and shall procure that his employees keep secret and do not disclose any information of a confidential nature obtained by him by reason of this Contract except information which is in the public domain otherwise than by reason of a breach of this provision

 

12.2 The provisions of this condition 12 shall apply during the continuance of this Contract and after its termination howsoever arising.

 

13.      TERMINATION ON SUPPLIER'S INSOLVENCY

 

Without prejudice to any other rights or remedies of the Purchaser under this Contract the Purchaser shall have the right forthwith to terminate this Contract by written notice to the Supplier or his trustee in bankruptcy or receiver or (if a company) liquidator or administrator if the Supplier shall have a receiver appointed over all or a substantial part of his or its assets or (if an individual) be declared bankrupt or (if a company) shall go into liquidation or have an administrator appointed to manage its affairs.

 

14.      ASSIGNMENT AND SUB-CONTRACTING

 

14.1 The Supplier shall not without the written consent of the Purchaser assign the benefit or burden of this Contract or any part thereof.

 

14.2 No sub-contracting by the Supplier shall in any way relieve the Supplier of any of his responsibilities under this Contract.

 

 

 

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14.3 Where the Supplier enters a sub-contract with a sub-Supplier or sub-contractor for the purpose of performing the Contract, he shall cause a clause to be included in such sub-contract which requires payment to be made to the sub-Supplier or sub-contractor within a specified period not exceeding 30 days from receipt of a valid invoice as defined by the sub-contract requirement.

 

15.      NOTICES

 

Any notices to be given under this Contract shall be delivered personally or sent by post or by facsimile transmission to the address set out in this Contract. Any such notice shall be deemed to be served, if delivered personally, at the time of delivery, if sent by post, 48 hours after posting or, if sent by telex or facsimile transmission, 12 hours after proper transmission.

 

16.      ENVIRONMENTAL MATTERS

 

16.1 The Supplier confirms that the process used in the manufacture of the Equipment relied on minimal dependence and use of ozone depleting substances, toxic chemicals and other pollutants including lead, methyl chloroform and formaldehyde.

 

17.      LAW AND JURISDICTION

 

This Contract shall be governed by and construed under the laws of the State of California in all respects as such laws are applied to agreements among California State residents entered into and performed entirely within the State of California.

 

Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Contract shall be commenced exclusively in the state and federal courts sitting in the City of Santa Clara. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of Santa Clara for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby consents to process being served in any such action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Contract and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.

 

EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS CONTRACT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.

 

18.      GENERAL

 

18.1 Each Party hereto agrees to perform any further acts and execute and deliver any document or instrument that may be reasonably necessary to carry out the intent of this Contract.

 

18.2 This Contract shall bind and inure to the benefit of the successors and assigns of the Parties hereto.

 

18.3 This Contract may be amended at any time by the written agreement and consent of the Parties hereto.

 

18.4 This Contract, including such other agreements referred to herein, constitutes the entire agreement and understanding among the parties pertaining to the subject matter hereof and supersedes any and all prior agreements, whether written or oral, relating thereto.

 

18.5 Introductory headings at the beginning of each clause of this Contract are solely for the convenience of the parties and shall not be deemed to be a limitation upon or description of the contents of any such clause.

 

 

 

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18.6 This Contract may be executed in counterparts, which, when taken together, shall constitute one and the same instrument.

 

 

 

SELLER: All Datum Inc. BUYER: CBD and Hemp Group Co., Ltd.
   
By: Ken Ke Qiu By: Xiaofeng Peng
        Authorized Signatory           Authorized Signatory 
   
Title: Director Title: Director
   

 

 

 

 

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Personal Guaranty Agreement

 

This Personal Guaranty Agreement (the "Guaranty") is dated on 6 August 2019.

 

Between:

 

Ken Ke Qiu, a resident of United States with driver license ID of Y8734331 resident at the 721 N Azusa Ave unit 319 West Covina, CA 91791, as the Guarantor;

 

And

 

CBD and Hemp Group Co., Ltd., a Delaware Company (the "Guarantee").

 

WHEREAS, the Guarantee and All Datum Inc., a corporation located at 1004 W West Covina Parkway, West Covina, CA 91790, under the laws of California (the "Seller"), entered into an Equipment Purchase Contract (the "Purchase Contract"),pursuant to which Guarantee shall purchase some certain equipment from the Seller as per the terms of the Purchase Contract.

 

NOW, THEREFORE, the Guarantor hereby irrevocably, absolutely and unconditionally represents, warrants, covenants, agrees and confirms to Guarantee, from and after the date of this Guaranty, to guaranty the full performance and contractual obligations of the Seller under the Purchase Contract (the "Obligations").

 

The Guarantor waives diligence, presentment, protest, notice of dishonor, notice of default by the Seller, notice of acceptance of this Guaranty, and indulgences and notices of every kind. Guarantor waives any rights of subrogation, indemnity, reimbursement.

 

The Seller may do the following from time to time without notice to, or consent of, Guarantor and without affecting Guarantor's liability under this Guaranty:

 

a. Change the terms of the Obligations or of any debts or liabilities of The Seller. b.Release, settle, or compromise any debts or liabilities of The Seller.

 

c. Exchange, modify, release, impair, or fail to perfect a security interest in, any collateral securing the Obligations.

 

Notwithstanding the above, the Guarantor shall remain liable until all terms of the Obligations are fully performed by The Seller, notwithstanding any event that would, in the absence of these provisions, result in the discharge of Guarantor.

 

This is a continuing guaranty of performance, not a guaranty of collection. Guarantee may enforce this Guaranty without first proceeding against the Seller, any of the Guarantor, any other person or any security or collateral, and without first pursuing any other right or remedy. This Guaranty remains enforceable regardless of any defenses that the Seller may assert on the Obligations, including but not limited to, breach of warranty, fraud, statute of frauds, bankruptcy, lack of legal capacity, statute of limitations, accord and satisfaction. If foreclosure or other remedy is pursued, only the net proceeds, after deduction of all charges and expenses, shall be applied to the amount due on the Obligations. Guarantee may purchase all or part of the collateral or security at any foreclosure or other sale for its own account and may apply the amount bid against the amount due on the Obligations.

 

4. If this Guaranty is given to an attorney for enforcement, Guarantor will reimburse Guarantee for all expenses incurred in connection with enforcement including without limitation reasonable attorneys' fees.

 

5. No provision of this Guaranty shall be construed to amend the Obligations or to relieve the Seller of any obligations.

 

6. If more than one person or party executes a Guaranty as Guarantor of the Obligations of the Seller, this Guaranty and the related guaranties by other parties shall bind all such persons and parties jointly and severally. The Guarantor acknowledges that Guarantor has adequate means to obtain from the Seller on a continuing basis, information on the performance of the Seller and that the Guarantor is not relying on Guarantee to provide this information, now or in the future. The liability of Guarantor shall be reinstated to the extent the Seller is required at any time to be liable for the Obligations for any reason.

 

 

 

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7. All rights and remedies of Guarantee under this Guaranty are cumulative and are in addition to other rights and remedies the Guarantee may have. This writing is a complete and exclusive statement of the guaranty agreement between the parties. No course of dealing, course of performance, or parol evidence shall be used to modify its terms. This Guaranty shall inure to the benefit of and may be enforced by Guarantee, its affiliates and any subsequent holder of the Obligations and shall be binding upon and enforceable against Guarantor and the legal representatives, heirs, successors and assigns of Guarantor.

 

In signing this Guaranty, Guarantor acknowledges and represents that Guarantor HAVE READ THE FORGOING, UNDERSTANDS IT AND SIGN IT VOLUNTARILY as their own free act and deed; and Guarantor executes this guaranty for full, adequate and complete consideration fully intending to be bound by same.

 

This Guaranty shall be governed by and construed under the laws of the State of California in all respects as such laws are applied to agreements among California State residents entered into and performed entirely within the State of California.

 

Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Guaranty shall be commenced exclusively in the state and federal courts sitting in the City of Santa Clara. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of Santa Clara for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby consents to process being served in any such action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Guaranty and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.

 

EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS CONTRACT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.

 

This Guaranty may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any signature page delivered by a fax machine shall be binding to the same extent as an original signature page, with regard to any agreement subject to the terms hereof or any amendment thereto.

 

[Signatures begin on following page]

 

 

 

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Appendix 2 to the Equipment Purchase Agreement

 

(with evidence of delivery) to such party at the address in effect for notices to it under this Guaranty and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.

 

EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS CONTRACT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.

 

This Guaranty may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any signature page delivered by a fax machine shall be binding to the same extent as an original signature page, with regard to any agreement subject to the terms hereof or any amendment thereto.

 

[Signatures begin on following page]

 

 

 

 

 

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Ken KE Qiu

 

 

By: /s/ Ken KE Qiu        08/05/2019

 

CBD and Hemp Group Co., Ltd.

 

By: /s/ Xiaofeng Peng

Name. Xiaofeng Peng

Title: Director

 

 

 

 

 

 

 

 

 

 

 

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Exhibit 4.59

 

SALES AND PURCHASE AGREEMENT

 

BETWEEN

 

Bitmain Equipment (Canada) Inc.
("Seller")

 

AND

 

1215542 B.C. LTD
("Buyer")

 

 

 

 

 

 

     

 

 

 

1. Definitions and Interpretations 3
2. Sales of Product(s) 5
3. Prices and Terms of Payment 5
4. Shipping of Product(s) 6
5. Customs 6
6. Warranty 6
7 Representations and Warranties 8
8 Indemnification and Limitation of Liability 9
9 Distribution 10
10 Intellectual Property Rights 10
11 Confidentiality and Communications 11
12 Term and Termination of this Agreement 11
13 Contact Information 12
14 Compliance with Laws and Regulations 12
15 Force Majeure 13
16 Entire Agreement and Amendment 14
17 Assignment 14
18 Severability 14
19 Governing Law and Dispute Resolution 14
20 Waiver 14
21 Counterparts and Electronic Signatures 14

 

 

 

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This agreement (this "Agreement") is made on [2019.07.08] by and between Bitmain Equipment (Canada) Inc. ("Seller"), with its principal place of business at Suite 3700, P.O. Box 242, 800 Place, Victoria, Montreal (Quebec), H4Z 1E9, Canada, and 1215542 B.C. LTD (the "Buyer"), with its principal place of business at 4677 Old Ironsides Drive, Suite 190, Santa Clara, CA 95054, US.

 

The Seller and the Buyer shall hereinafter collectively be referred to as the "Parties", and individually as a "Party".

 

Whereas:

 

The Seller is willing to supply, and the Buyer is willing to purchase USED cryptocurrency mining hardware and other equipment in accordance with the terms and conditions of this Agreement.

 

The Parties hereto agree as follows:

 

1. Definitions and Interpretations

 

The following terms, as used herein, have the following meanings:

 

"Affiliate" means, with respect to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with such Person; "Person" means any individual, corporation, partnership, limited partnership, proprietorship, association, limited liability company, firm, trust, estate or other enterprise or entity; and "Control" means the power or authority, whether exercised or not, to direct the business, management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by Contract or otherwise, provided that such power or authority shall conclusively be presumed to exist upon possession of beneficial ownership or power to direct the vote of more than fifty percent (50%) of the votes entitled to be cast at a meeting of the members or shareholders of such Person or power to control the composition of a majority of the board of directors of such Person. The terms "Controlled" and "Controlling" have meanings correlative to the foregoing.

 

"Applicable Law" means any treaty, law, decree, order, regulation, decision, statute, ordinance, rule, directive, code or other document that has legal force under any system of law, including, without limitation, local law, law of any other state or part thereof or international law, and which creates or purports to create any requirement or rule that may affect, restrict, prohibit or expressly allow the terms of this Agreement or any activity contemplated or carried out under this Agreement.

 

"Bank Account" means the bank account information of Seller provided in this Agreement.

 

"Force Majeure" means in respect of either Party, any event or occurrence whatsoever beyond the reasonable control of that Party, which delays, prevents or hinders that Party from performing any obligation imposed upon that Party under this Agreement, including to the extent such event or occurrence shall delay, prevent or hinder such Party from performing such obligation, war (declared or undeclared), terrorist activities, acts of sabotage, blockade, fire, lightning, acts of god, national strikes, riots, insurrections, civil commotions, quarantine restrictions, epidemics, earthquakes, landslides, avalanches, floods, hurricanes, explosions and regulatory and administrative or similar action or delays to take actions of any governmental authority.

 

 

 

 

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"Insolvency Event" in the context of the Buyer means any of the following events:

 

i) a receiver, receiver and manager, judicial manager, official manager, trustee, administrator or similar official is appointed, or steps are taken for such appointment, over all or any part of the assets, equipment or undertaking of the Buyer;

 

ii) if the Buyer stops or suspends payments to its creditors generally, is unable to or admits its inability to pay its debts as they fall due, seeks to enter into any composition or other arrangement with its creditors, is declared or becomes bankrupt or insolvent or enters into liquidation;

 

iii) a petition is presented, a proceeding is commenced, an order is made or an effective resolution is passed or any other steps are taken by any person for the liquidation, winding up, insolvency, judicial management, administration, reorganisation, reconstruction, dissolution or bankruptcy of the Buyer, otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction; or

 

iv) if any event, process or circumstance analogous or having a substantially similar effect to any of the above, in any applicable jurisdiction, commences or exists.

 

"Intellectual Property Rights" means any and all intellectual property rights, including but not limited to those concerning inventions, patents, utility models, registered designs and models, engineering or production materials, drawings, trademarks, service marks, domain names, applications for any of the foregoing (and the rights to apply for any of the foregoing), proprietary or business sensitive information and/or technical know-how, copyright, authorship, whether registered or not, and any neighbor rights.

 

"Product(s)" means the merchandise that Seller will provide to the Buyer in accordance with this Agreement.

 

"Total Purchase Price" means the aggregate amount payable by the Buyer as set out in this Agreement.

 

"Delivery Date" means the date when the Seller finishes the change of the Products' configuration to the Buyer's requirement.

 

"Warranty Period" means the period of time that the Product(s) are covered by the warranty granted by the Seller in accordance with Clause 6 of this Agreement.

 

Interpretations:

 

i) Words importing the singular include the plural and vice versa where the context so requires.

 

 

 

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ii) The headings in this Agreement are for convenience only and shall not be taken into consideration in the interpretation or construction of this Agreement.

 

iii) References to Clauses are references to Clauses of this Agreement.

 

iv) Unless specifically stated otherwise, all references to days shall mean calendar days.

 

v) Any reference to a code, law, statute, statutory provision, statutory instrument, order, regulation or other instrument of similar effect shall include any re-enactment or amendment thereof for the time being in force.

 

2.       Sales of Product(s)

 

2.1 The quantity, unit price, specifications and total price of the Products sold by the Seller to the Buyer are as follows:

 

No. Model Quantity Unit Price (US Dollar)

Subtotal
Price

(US Dollar)

 

1 S9-13T with PSU 1204 361 434,644
2 S9-13.5 with PSU 1292 376 485,792
3 S9-14T with PSU 2630 390 1,025,700
4 S9i-13T with PSU 1935 376 727,560
5 S9i-13.5T with PSU 1163 391 454,733
6 S9i-14T with PSU 1090 405 441,450
7 S9i-14.5T with PSU 193 420 81,060
Tax (GST 5%, QST 9.975%) 546,728.12
Total Price 4,197,667.12

Remarks:

 

1.      The PSU models shall be APW3++ and APW7. The total quantity of APW3++ shall be [2391]; the total quantity of APW7 shall be [7116].

 

2.  The specific Product(s) list refers to the Exhibit 1.

 

 

 

2.2 The Buyer acknowledges and accepts that the Products sold under this agreement are used products.

 

2.3 The delivery address of the Product(s) shall be [3770 Boulevard Industrial, Sherbrooke, QC, J1L 1N6, Canada]. The Delivery Date shall be no later than three (3) days after the Buyer finished the payment of the Total Purchase Price.

 

2.4 The Buyer shall examine Product(s) within three (3) days after the Delivery date, if the Buyer fails to raise any written objection within the abovementioned period, the Product(s) shall be deemed to be in full compliance with provisions hereof.

 

3.  Prices and Terms of Payment

 

3.1 The payment shall be arranged by the Buyer as follows: one hundred percent (100%) of the Total Purchase Price of the Product(s) as listed above shall be paid no later than 12pm PST, July 12, 2019 after the execution of this Agreement by both Parties.

 

 

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3.2 Payments shall be paid in [United States Dollars (USD)] by wire transfer to Seller's Bank Account.

 

3.3 Without prejudice to the above, the unit price and the Total Purchase Price of the Product(s) and any amount paid by the Buyer shall be all denominated in USD. Where the Parties agree that the payments shall be made in cryptocurrencies, the exchange rate between the USD and the cryptocurrency selected shall be the real time exchange rate between the USD and the cryptocurrency displayed on the official website of the Product(s) upon payment.

 

3.4 The Seller's BANK ACCOUNT info:

 

BANK NAME: Canadian Imperial Bank of Commerce

SWIFT CODE: CIBCCATT

Address: 1155 Boul. Rene-Levesque Oucst Montreal Qc H3B 3Z4

Account Name: Bitmain Equipment (Canada) Inc.

ACCOUNT NO: 00001/0413518

 

3.5 The Parties understand and agree that the applicable prices of the Product(s) are inclusive of applicable bank transaction fee, but are exclusive of any and all applicable import duties, taxes and governmental charges. The Buyer shall pay or reimburse Seller for all taxes levied on or assessed against the amounts payable hereunder. If any payment is subject to withholding, the Buyer shall pay such additional amounts as necessary, to ensure that the Seller receives the full amount it would have received had payment not been subject to such withholding.

 

4. Delivery of Product(s)

 

4.1. The delivery of the Product(s) will be conducted in the form of changing the products' configuration to the Buyer's requirement.

 

4.2. The Seller shall send a written notice to the Buyer at the beginning and end of the configuration change of the Product(s).

 

4.3. Once the Product(s) have been delivered to the Buyer, the Seller's supply obligation is fulfilled, and the title and risk of loss or damage to the Product(s) shall pass to the Buyer.

 

5. Customs

 

5.1 N/A

 

6. Warranty

 

6.1 The Warranty Period shall start on the Delivery Date and end on the 30th day after the Delivery Date. The scope of warranty shall be subject to the description on the official website of the Product(s).

 

 

 

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6.2 During the Warranty Period, the Buyer's sole and exclusive remedy, and Seller's entire liability, will be to repair or replace, at Seller's option, the defective part/component of the Product(s) or the defective Product(s) at no charge to the Buyer.

 

6.3 If the Buyer applies for warranty, the Buyer shall comply with the Warranty Policy on the official website of the Product(s) and create a repair order on the official website during the Warranty Period, otherwise, the Seller has the right to refuse to provide the warranty

 

6.4 The Parties acknowledge and agree that the warranty provided by the Seller as stated in the preceding paragraph does not apply to the following:

 

(i) normal wear and tear;
(ii) damage resulting from accident, abuse, misuse, neglect, improper handling or improper installation;
(iii) damage or loss of the Product(s) caused by undue physical or electrical stress, including but not limited to moisture, corrosive environments, high voltage surges, extreme temperatures, shipping, or abnormal working conditions;
(iv) damage or loss of the Product(s) caused by acts of nature including, but not limited to, floods, storms, fires, and earthquakes;
(v) damage caused by operator error, or non-compliance with instructions as set out in accompanying documentation;
(vi) alterations by persons other than Seller, associated partners or authorized service facilities;
(vii) Product(s), on which the original software has been replaced or modified by persons other than Seller, associated partners or authorized service facilities;
(viii) counterfeit products;
(ix) damage or loss of data due to interoperability with current and/or future versions of operating system, software and/or hardware;
(x) damage or loss of data caused by improper usage and behavior which is not recommended and/or permitted in the product documentation;
(xi) failure of the Product(s) caused by usage of products not supplied by Seller; and
(xii) hash boards or chips are burnt.

 

6.5 Notwithstanding anything to the contrary herein, the Buyer acknowledges and agrees that the Product(s) provided by the Seller do not guarantee any cryptocurrency mining time and, the Seller shall not be liable for any cryptocurrency mining time loss or cryptocurrency mining revenue loss that are caused by downtime of any part/component of the Product(s). The Seller does not warrant that the Product(s) will meet the Buyer's requirements or the Product(s) will be uninterrupted or error free. Except as provided in Clause 6.1 of this Agreement, the Seller makes no warranties to the Buyer with respect to the Product(s), and no warranties of any kind, whether written, oral, express, implied or statutory, including warranties of merchantability, fitness for a particular purpose or non-infringement or arising from course of dealing or usage in trade shall apply.

 

 

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6.6 In the event of any ambiguity or discrepancy between this Clause 6 of this Agreement and the After-sales Service Policy on the official website of the Product(s) from time to time, it is intended that the After-sales Service Policy shall prevail and the Parties shall comply with and give effect to the After-sales Service Policy.

 

6.7 During the Warranty Period, if the Product(s) need to be repaired or replaced, the Buyer shall bear the transportation expense of sending the Product(s) to the address designated by the Seller, and the Seller shall bear the transportation expense of sending the repaired or replaced products to the address designated by the Buyer. The Buyer shall bear the relevant additional fees incurred by providing incorrect or incomplete delivery information.

 

7 Representations and Warranties

 

The Buyer makes the following representations and warranties to the Seller:

 

7.1 It has the full power and authority to own its assets and carry on its businesses.

 

7.2 The obligations expressed to be assumed by it under this Agreement are legal, valid, binding and enforceable obligations.

 

7.3 It has the power to enter into, perform and deliver, and has taken all necessary action to authorize its entry into, performance and delivery of, this Agreement and the transactions contemplated by this Agreement.

 

7.4 The entry into and performance by it of, and the transactions contemplated by, this Agreement do not and will not conflict with:

 

(i) any Applicable Law;
(ii) its constitutional documents; or
(iii) any agreement or instrument binding upon it or any of its assets.

 

7.5 All authorizations required or desirable:

 

(i) to enable it lawfully to enter into, exercise its rights under and comply with its obligations under this Agreement;
(ii) to ensure that those obligations are legal, valid, binding and enforceable; and
(iii) to make this Agreement admissible in evidence in its jurisdiction of incorporation,

 

have been or will have been by the time, obtained or effected and are, or will be by the appropriate time, in full force and effect.

 

7.6 It is not aware of any circumstances which are likely to lead to:

 

(i) any authorization obtained or effected not remaining in full force and effect;
(ii) any authorization not being obtained, renewed or effected when required or desirable; or
(iii) any authorization being subject to a condition or requirement which it does not reasonably expect to satisfy or the compliance with which has or could reasonably be expected to have a material adverse effect.

 

 

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7.7 (a) It is not the target of economic sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty's Treasury or Singapore ("Sanctions"), including by being listed on the Specially Designated Nationals and Blocked Persons (SDN) List maintained by OFAC or any other Sanctions list maintained by one of the foregoing governmental authorities, directly or indirectly owned or controlled by one or more SDNs or other Persons included on any other Sanctions list, or located, organized or resident in a country or territory that is the target of Sanctions, and (b) the purchase of the Product(s) will not violate any Sanctions or import and export control related laws and regulations.

 

7.8 All information supplied by the Buyer is and shall be true and correct, and the information does not contain and will not contain any statement that is false or misleading.

 

8 Indemnification and Limitation of Liability

 

8.1 The Buyer shall, during the term of this Agreement and at any time thereafter, hold the Seller and/or its Affiliates harmless and fully indemnified against any claim, demand, action, costs or proceedings brought or instituted against Seller and/or its Affiliates by the Buyer and/or its Affiliates and/or any third party in connection with all types of loss or damage arising out of or relating to the Product(s).

 

8.2 Notwithstanding anything to the contrary herein, the Seller and its Affiliates shall under no circumstances, be liable to the Buyer for any consequential loss, or loss of goodwill, business, anticipated profits, revenue, contract, or business opportunity arising out of or in connection with this Agreement, and the Buyer hereby waives any claim it may at any time have against the Seller and its Affiliates in respect of any such damages. The foregoing limitation of liability shall apply whether in an action at law, including but not limited to contract, strict liability, negligence, willful misconduct or other tortious action, or an action in equity.

 

8.3 The Seller and its Affiliates' cumulative aggregate liability pursuant to this Agreement, whether arising from tort, breach of contract or any other cause of action shall be limited to and not exceed the amount of one hundred percent (100%) of the down payment actually received by Seller from the Buyer for the Product(s).

 

8.4 The Product(s) are not designed, manufactured or intended for use in hazardous or critical environments or in activities requiring emergency or fail-safe operation, such as the operation of nuclear facilities, aircraft navigation or communication systems or in any other applications or activities in which failure of the Product(s) may pose the risk of environmental harm or physical injury or death to humans. Seller specifically disclaims any express or implied warranty of fitness for any of the above described application and any such use shall be at the Buyer's sole risk.

 

8.5 The above limitations and exclusions shall apply (1) notwithstanding failure of essential purpose of any exclusive or limited remedy; and (2) whether or not the Seller has been advised of the possibility of such damages. This Clause allocates the risks under this Agreement and the Seller's pricing reflects this allocation of risk and the above limitations.

 

 

 

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9 Distribution

 

9.1 This Agreement does not constitute a distributor agreement between the Seller and the Buyer. Therefore, the Buyer is not an authorized distributor of Seller.

 

9.2 The Buyer shall in no event claim or imply to a third party that it is an authorized distributor of the Seller, or perform any act that will cause it to be construed as an authorized distributor of the Seller. As between the Buyer and the Seller, the Buyer shall be exclusively and fully responsible for complying with the Applicable Laws regarding repackaging the Product(s) for the Buyer's redistribution needs, and shall be solely liable for any and all liabilities or costs directly incurred or incidental to such redistribution.

 

10 Intellectual Property Rights

 

10.1 The Parties agree that the Intellectual Property Rights in any way contained in the Product(s), made, conceived or developed by the Seller and/or its Affiliates for the Product(s) under this Agreement and/or, achieved, derived from, related to, connected with the provision of the Product(s) by the Seller and/or acquired by Seller from any other person in performance of this Agreement shall be the exclusive property of the Seller and/or its Affiliates.

 

10.2 Notwithstanding anything to the contrary herein, all Intellectual Property Rights in the Product(s) shall remain the exclusive property of the Seller and/or its licensors. Except for licenses explicitly identified in Seller's Shipping Confirmation or in this Clause 10.2, no rights or licenses are expressly granted, or implied, whether by estoppel or otherwise, in respect of any Intellectual Property Rights of the Seller and/or its Affiliates or any Intellectual Property residing in the Product(s) provided by the Seller to the Buyer, including in any documentation or any data furnished by Seller. The Seller grants the Buyer a non-exclusive, non-transferrable, royalty-free and irrevocable license of the Seller and/or its Affiliates' Intellectual Property Rights to solely use the Product(s) delivered by the Seller to the Buyer for their ordinary function, and subject to the Clauses set forth herein. The Buyer shall in no event violate the Intellectual Property Rights of the Seller and/or its licensors.

 

10.3 If applicable, payment by the Buyer of non-recurring charges to the Seller for any special designs, or engineering or production materials required for the Seller's performance of orders for customized Product(s), shall not be construed as payment for the assignment from the Seller to the Buyer of title to the design or special materials. The Seller shall be the sole owner of such special designs, engineering or production materials.

 

 

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11 Confidentiality and Communications

 

11.1 All information concerning this Agreement and matters pertaining to or derived from the provision of Product(s) pursuant to this Agreement between the Parties, whether in oral or written form, or in the form of drawings, computer programs or other, as well as all data derived therefrom ("Confidential Information"), shall be deemed to be confidential and, as such, may not be divulged to any unauthorized person. The Buyer undertakes and agrees to take all reasonable and practicable steps to ensure and protect the confidentiality of the Confidential Information which cannot be passed, sold, traded, published or disclosed to any unauthorized person.

 

12 Term and Termination of this Agreement

 

12.1 This Agreement will be effective since the date of signing by both parties.

 

12.2 The Seller shall be entitled to terminate this Agreement with immediate effect upon written notice to the Buyer if:

 

(i) the Buyer fails to comply in any material respect of this Agreement, and where that failure is capable of being remedied, fails to remedy it within thirty (30) days of being required by Seller to do so;
(ii) it is or becomes unlawful for the Buyer to perform or comply with any of its material obligations under this Agreement or all or a material part of the obligations of the Buyer under this Agreement are not or cease to be valid, binding and enforceable; or
(iii) an Insolvency Event occurs in respect of the Buyer.

 

12.3 The Buyer shall be entitled to terminate this Agreement with immediate effect upon written notice to Seller if Seller fails to deliver the Product(s) to the carrier in accordance with the delivery dates indicated in the shipping confirmation, and fails to remedy it within sixty (60) days of being required by the Buyer to do so.

 

12.4 If the Buyer fails to comply in any material respect of this Agreement, the Seller will have the right to request and the Buyer will be obliged to pay to Seller liquidated damages (but not penalty) for such breach in the amount of 100% of down payment. Both Parties acknowledge and agree that the amount of liquidated damages set out in this Clause is agreed as a genuine pre-estimate of the losses which may be sustained by the Seller in the event that the Buyer fails in its respective obligations under this Agreement, and not as a penalty.

 

12.5 In circumstances where any liquidated damages are successfully challenged by the Buyer as constituting a penalty or otherwise cannot be enforced against the Buyer, the Parties agree that the Buyer's liability to the Seller will instead be general damages at law.

 

12.6 Termination of this Agreement shall be without prejudice to the rights and liabilities of the Parties accrued prior to or as a result of such termination, including those related to antecedent breaches. Termination of this Agreement for any cause or otherwise shall not release a Party from any liability which at the time of termination has already accrued to the other Party or which thereafter may accrue in respect of any act or omission prior to such termination. The rights and obligations of the Parties under Clause 1 (Definitions and Interpretations), Clause 10 (Intellectual Property Rights), Clause 11 (Confidentiality and Communications), Clause 12 (Term and Termination of this Agreement), Clause 13 (Contact Information), Clause 14 (Compliance with Laws and Regulations) and Clause 19 (Governing Law and Dispute Resolution) shall survive the termination of this Agreement.

 

 

 

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13 Contact Information

 

All communications in relation to this Agreement shall be made to the following contacts:

 

Buyer's business contact:

 

Name: Denton Peng

Phone: +1-9166225531

Email: Denton.peng@spigroups.com

 

Seller's business contact:

 

Name: Xinran He

Phone: +86-15636130223

Email: Xinran.he@bitmain.com

 

14 Compliance with Laws and Regulations

 

14.1 The Buyer undertakes that it will fully comply with all Applicable Laws in relation to export and import control and Sanctions and shall not take any action that would cause the Seller or any of its Affiliates to be in violation of any export and import control laws or Sanctions. The Buyer shall also be fully and exclusively liable for and shall defend, fully indemnify and hold harmless the Seller and/or its Affiliates from and against any and all claims, demands, actions, costs or proceedings brought or instituted against Seller and/or its Affiliates arising out of or in connection with any breach by the Buyer or the carrier of any Applicable Laws in relation to export and import control or Sanction.

 

14.2 The Buyer acknowledges and agrees that the Product(s) in this Agreement are subject to the export control laws and regulations of all related countries, including but not limited to the Export Administration Regulations ("EAR") of the United States. Without limiting the foregoing, the Buyer shall not, without receiving the proper licenses or license exceptions from all related governmental authorities, including but not limited to the U.S. Bureau of Industry and Security, distribute, re-distribute, export, re-export, or transfer any Product(s) subject to this Agreement either directly or indirectly, to any national of any country identified in Country Groups D:1 or E:1 as defined in the EARs. In addition, the Product(s) under this Agreement may not be exported, re-exported, or transferred to (a) any person or entity listed on the "Entity List", "Denied Persons List" or the SDN List as such lists are maintained by the U.S. Government, or (b) an end-user engaged in activities related to weapons of mass destruction. Such activities include but are not necessarily limited to activities related to: (1) the design, development, production, or use of nuclear materials, nuclear facilities, or nuclear weapons; (2) the design, development, production, or use of missiles or support of missiles projects; and (3) the design, development, production, or use of chemical or biological weapons. The Buyer further agrees that it will not do any of the foregoing in violation of any restriction, law, or regulation of the European Union or an individual EU member state that imposes on an exporter a burden equivalent to or greater than that imposed by the U.S. Bureau of Industry and Security

 

 

 

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14.3 The Buyer undertakes that it will not take any action under this Agreement or use the Product(s) in a way that will be a breach of any anti-money laundering laws, any anticorruption laws, and/or any counter-terrorist financing laws.

 

14.4 The Buyer warrants that the Product(s) have been purchased with funds that are from legitimate sources and such funds do not constitute proceeds of criminal conduct, or realizable property, or proceeds of terrorism financing or property of terrorist, within the meaning given in the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Chapter 65A) and the Terrorism (Suppression of Financing) Act (Chapter 325), respectively. The Buyer understands that if any Person resident in Singapore knows or suspects or has reasonable grounds for knowing or suspecting that another Person is engaged in criminal conduct or is involved with terrorism or terrorist property and the information for that knowledge or suspicion came to their attention in the course of business in the regulated sector, or other trade, profession, business or employment, the Person will be required to report such knowledge or suspicion to the Suspicious Transaction Reporting Office, Commercial Affairs Department of the Singapore Police Force. The Buyer acknowledges that such a report shall not be treated as breach of confidence or violation of any restriction upon the disclosure of information imposed by any Applicable Law, contractually or otherwise.

 

15 Force Majeure

 

15.1 To the extent that a Party is fully or partially delayed, prevented or hindered by an event of Force Majeure from performing any obligation under this Agreement (other than an obligation to make payment), subject to the exercise of reasonable diligence by the affected Party, the failure to perform shall be excused by the occurrence of such event of Force Majeure. A Party claiming that its performance is excused by an event of Force Majeure shall, promptly after the occurrence of such event of Force Majeure, notify the other Party of the nature, date of inception and expected duration of such event of Force Majeure and the extent to which the Party expects that the event will delay, prevent or hinder the Party from performing its obligations under this Agreement. The notifying Party shall thereafter use its best effort to eliminate such event of Force Majeure and mitigate its effects.

 

 

 

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15.2 The affected Party shall use reasonable diligence to remove the event of Force Majeure, and shall keep the other Party informed of all significant developments.

 

16 Entire Agreement and Amendment

 

This Agreement, constitutes the entire agreement of the Parties hereto and can only be amended with the written consent of both Parties or otherwise as mutually agreed by both Parties.

 

17 Assignment

 

The Seller may freely assign this Agreement in whole or in part to its Affiliates or to any third party. The Buyer may not assign this Agreement in whole or in part without Seller's prior written consent.

 

18 Severability

 

To the extent possible, if any provision of this Agreement is held to be illegal, invalid or unenforceable in whole or in part by a court, the provision shall apply with whatever deletion or modification is necessary so that such provision is legal, valid and enforceable and gives effect to the commercial intention of the Parties. The remaining provisions of this Agreement shall not be affected and shall remain in full force and effect.

 

19 Governing Law and Dispute Resolution

 

19.1 This Agreement shall be solely governed by and construed in accordance with the laws of Quebec.

 

19.2 If at any time, any question, dispute, difference or disagreement shall arise out of or in connection with this Contract, including any question regarding its existence, validity or termination and cannot be settled by the Parties to their mutual satisfaction, then the Parties shall attempt in good faith to resolve any dispute or claim regarding such matter promptly through negotiations. If the dispute is not resolve by mediation within thirty (30) days, or if one of the Parties will not participate in the mediation, the dispute shall be referred to and finally resolved by arbitration in Quebec in accordance with its arbitration rules for the time being in force which rules are deemed incorporated by reference into this clause. The decision and awards of the arbitration shall be final and binding upon the parties hereto.

 

20 Waiver

 

Failure by either Party to enforce at any time any provision of this Agreement, or to exercise any election of options provided herein shall not constitute a waiver of such provision or option, nor affect the validity of this Agreement or any part hereof, or the right of the waiving Party to thereafter enforce each and every such provision or option.

 

21 Counterparts and Electronic Signatures

 

This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement, and all of which, when taken together, will be deemed to constitute one and the same agreement. The facsimile, email or other electronically delivered signatures of the Parties shall be deemed to constitute original signatures, and facsimile or electronic copies hereof shall be deemed to constitute duplicate originals.

 

(The rest part of the page is intentionally left in blank)

 

 

 

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Signed for and on behalf of Seller

 

 

   

Bitmain Equipment (Canada) Inc.

 

Signature_____________________

Title ________________________

 

 

Signed for and on behalf of the Buyer

 

 

   

1215542 B.C. LTD

 

 

Signature ________________________

Title

 

 

 

 

 

 

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Exhibit 4.60

 

HOSTING AGREEMENT

 

THIS HOSTING AGREEMENT (the "Agreement") is made and entered into on this 9th day of July, 2019 (the "Effective Date") by and between 1151203 B.C. Ltd ("Host") and 1215542 B.C. Ltd ("Client"), and with Client and Host being collectively called the "Parties' and, individually, a "Party".

 

WHEREAS Host arranges space and other equipment necessary to operate computers and related hardware for cloud computing ("Servers") at the location of 3750 bout Industriel, Sherbrook, Quebec, J1L INS in Canada ("Location");

 

AND WHEREAS Client is the owner of all right, title and interest in and to the 10,050 Servers described in Schedule A hereto (the "Client Servers" and, individually, a "Client Server");

 

AND WHEREAS Client wishes to contract with Host to provide hosting and other services for the Client Servers on the terms and conditions set forth in this Agreement.

 

NOW THEREFORE in consideration of the mutual covenants and agreements of the Parties as set forth in this Agreement, the receipt and sufficient of which is hereby irrevocably acknowledged, the Parties hereby agree as follows:

 

ARTICLE 1

Host RESPONSIBILITIES

 

For the entire term of this Agreement, and subject to the terms and conditions set forth in this Agreement, Host hereby agrees to provide the Location described below to the Client. Host shall also provide any services, functions or responsibilities not specifically described in this Agreement but that can reasonably be considered to be done by Host.

 

(1) Provide space at the Location for the operation of the Client Servers therein , which will be equipped with the following:

 

(a) Ventilation setup for cooling purposes, with the objective being to maintain the temperature inside the facility. Host will use commercially reasonable efforts to accommodate any specific requests of Client's Servers in this regard; and

 

(b) Such security and confidentiality measures as Host and the Client consider appropriate in the circumstances, acting reasonably.

 

(c) Host and its certified contractors will setup the racks according to the loading weight and engineering standard. The material and setup will confirmed by the licensed engineers.

 

(2) Advise Client of the delivery address for all of the Client Servers (the "Delivery Address"), which is the one described above as Location.

 

(3) Unpack and inspect all of the Client Servers upon receipt or during installation, and promptly advise Client of any damaged or incomplete Servers ("Rejected Client Servers").

 

 

 

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(4) Set up all undamaged and complete Client Servers in accordance with a schedule that is mutually agreed to by the Parties, based upon the number of Client Servers that need to be set up.

 

(5) Host shall use commercially reasonable efforts to provide for the delivery of adequate power to the Locations for the operation of the Client Servers and related equipment.

 

(6) Provide Client with access, via Internet, to a web management portal, where Client can view and access files and various usage statistics. Client can also request to send staff to the facility, to work with the staffs from Host, and manage their own Servers with the computers of Host, under the approval and supervision from Host,

 

(7) Host shall be responsible to ensure the Client Server operates for at least 95% of the time in one-month period and under this condition Hosting Fees will be charged to Client on a daily basis. In the event that Client Servers operate for less than 95% of the time in one-month period, Hosting Fees for that month will only be charged for the number of hours that such Client Server has actually been operated during the month.

 

(8) Host is not responsible for the possible interruptions in the supply of electricity during seasonal variations or other unforeseen accidents. One of these will occur when Host's electricity supplier is experiencing peak demand in its requirements for electricity. When these incidents occur, Host shall charge the Hosting Fees based on the actual number of hours that such Client Server has actually been operated. The additional cost of the average electricity cost (cost per KWH) because of the defects of Client Servers need be paid by Client.

 

(9) Host shall be responsible to solve the electricity supply problems and any technical issues as quick as possible by using the commercially reasonable efforts. Client has the right to terminate this Agreement if Host is not able to get the Client Servers back to work normally within a certain time which is mutually agreed by both parties and confirmed in writing in advance.

 

ARTICLE 2

CLIENT RESPONSIBILITIES

 

In addition to all of its other obligations as set forth in this Agreement, Client shall:

 

(1) Ship all Client Servers to the Location at Client's sole cost and expense and at Client's sole risk. Client shall ensure that all Client Servers shipped to Host are compliant with the requirement of the local government and hydro department at the Location and include:

 

(a) A minimum 90% efficient PSU to power that Server;

 

(b) Complete desired configuration parameters for that Client Server (the Configuration Parameters")

 

(c) Include in the Configuration Parameters, the identify of any and all mining pools or other third party services that each Client Server is participating in; and

 

(d) Provide one NEMA 6-15P to C13 plug compatible with the provided PSU, rated for 15 amps at 240V, with a minimum length of 10' per Client Server OR cover the cost of purchase of an equivalent power cable by Host.

 

 

 

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(2) Be solely responsible for any and all applicable import duties, taxes, permits and authorizations.

 

(3) Be solely responsible for any damage to any Client Server during shipping and for any incomplete Client Server. Host shall promptly arrange the return shipment to Client, at Client's sole cost and expense and at Client's sole risk, of any Rejected Client Server.

 

(4) Be responsible, at Client's sole cost and expense, to keep each Client Server in good repair and working order under normal hosting conditions with appropriate characteristics.

 

(5) Not remove any Client Server from a Hosted Location or alter any Client Server in any manner whatsoever without the prior written consent of.

 

(6) Be responsible, at Client's sole cost and expense, to monitor any external — third party — accounts provided in the Configuration Parameters (including but not limited to any mining pools or other third party services that Client may identify in the Configuration Parameters), to ensure that Client is in good standing with the services offered by any such third party.

 

ARTICLE 3
INSURANCE

 

(1) Host will place and maintain comprehensive commercial general liability insurance that covers the damage to the facility and the equipment at the Location (the "Insurance Policy"). Should there be any such damage, Host will report the damage and submit a claim under the insurance policy in a timely manner.

 

(2) The Insurance Policy placed and maintained by Host does NOT cover, and Host shall NOT be responsible, for any lost cloud computing time or for any lost revenue that is attributable or related to any damage to any Client Server,

 

(3) For greater certainty, the total coverage of the current Insurance Policy to be placed by Host is C$3,000,000 (Canadian Dollar). Details of the Insurance Policy could be given to Client by Host. Client need to get the additional insurance for the Servers as well.

 

ARTICLE 4

FEES, TAXES AND PAYMENT OBLIGATIONS

 

(1) In exchange for the Location and related services to be provided by the Host pursuant to the terms of this Agreement, Client shall pay to Host all of the fees described in Schedule C (collectively, the "Fees"), with each such Fee to be applicable to each Client Server.

 

(2) All Fees referred to in Schedule C, and all amounts payable to Host pursuant to this Agreement, are expressed in, and payable in, Canadian Dollar.

 

(3) Concurrently with its signing of this Agreement, Client shall provide Host with a deposit in the aggregate amount that represents the details below. The payment of full amount of first month Hosting Fees is to secure the space for Client's Servers at the Location, and to activate the contract itself.

 

 

 

  3  

 

 

(a) The Set-Up Fees;

 

(b) 1 month of Hosting Fees, which will be applied to the first month (the "Deposit").

 

(c) Another 1 month of Hosting Fees as Security Deposit, which will be paid by Client within 90 days after this Agreement is confirmed.

 

(d) Hosting Fees of each month shall be paid in Advance, before the first day of each month.

 

(4) Host will issue an invoice to Client for the Set-Up Fees, the first month's Hosting Fees as soon as Host receives the shipment of Client Servers at the Location. Subsequent invoices will be issued by Host to Client on a monthly basis for the next month's Hosting Fees as all of these Fees are payable in advance.

 

(5) Host may increase its fees if its own utility and operation costs have increased and with any of the Fees on at least 30 days prior written notice to Client. Host will act reasonably in increasing any of the Fees, and will include with any such notice an explanation for the increase in Fees. Any such increase in Fees shall automatically become effective at the end of the notice period.

 

(6) Applicable taxes shall be added to each Fee and shall be included in each payment on account of Fees. Additional taxes will be added to each Fee and will be payable by Client if, as, and when any additional tax is required to be added to each Fee.

 

(7) Each invoice is due and payable upon receipt, In the event of any non--payment in full of any invoice by Client within 30 days of issuance of that invoice by Host, interest shall accrue on the amount of that invoice at the rate of 15% per annum, from the date of the invoice to the date of payment. In addition, Host shall be entitled to pay that invoice in full out of the Deposit. Client shall immediately pay to Host the amount so paid out of the Deposit, so that the Deposit is restored to its total intended amount. For greater certainty, in the event that any additional Client Servers become subject to this Agreement subsequent to the Effective Date, Client shall be required to concurrently increase the Deposit to reflect those additional Client Servers.

 

(8) In addition to the other remedies described in Article 10, Host reserves the right to suspend all Services and render the Client Servers inoperable by turning them off in the event that the Deposit is fully exhausted as a result of the failure by Client to pay any invoice(s) as required pursuant to this Agreement.

 

ARTICLE 5

OWNERSHIP OF EQUIPMENT AND CRYPTO

CURRENCIES AND RELATED OBLIGATIONS

 

(1) Subject to Article 10:

 

(a) Client will continue to own all of the Client Servers; and

 

(b) Client will have exclusive ownership of any digital products or services provided through the operation of the Client Servers.

 

 

 

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(2) Client expressly acknowledges and agrees that it is solely responsible for reporting to the appropriate authority(s) in all applicable jurisdiction(s), as required, the results of the cloud computing activity contemplated by this Agreement, specifically including how many digital products or services are in fact provided, produced or discovered through the operation of the Client Servers pursuant to this Agreement.

 

(3) Client also expressly acknowledges and agrees that it is solely responsible for paying any and all taxes of any nature or kind whatsoever that may be assessed by any taxing authority in respect of the cloud computing activity contemplated by this Agreement.

 

(4) During the term of this Agreement, Client and its affiliates, at Client's request, shall be provided with access to each Hosted Location, so that Client can tour and conduct reasonable checks on that Hosted Location for the purposes of ensuring the safekeeping and good operation of its hardware in accordance with this Agreement Host will use commercially reasonable efforts to accommodate any such request within a reasonable period of time after Host's receipt of that request. Client and its affiliates will be required to comply with any and all Host security protocols in effect at that Hosted Location during any such tour, which will be hosted by one or more representatives of Host.

 

(5) If Host has implemented or is implementing an Improvement (as defined below) for another Client or itself, Host will identify the Improvement and offer Client the opportunity to implement it. *Improvements" shall mean any improvements to the Services, service levels, business processes or other operations, or any other aspect of Host's operations relating to the Services (excluding, for greater certainty, any upgrades, improvements or modifications to the Client Servers or related equipment), that will enable Client to maintain or enhance the running of diverse cryptographic hash functions in connection with the mining of crypto currency. Client hereby agrees that, if it wishes to implement any such Improvement, it will so advise Host. Host will then advise Client how long it will take Host to implement that Improvement and whether or not there will be a cost to Client for the Implementation services and/or for the Improved Services following such implementation. Client will then advise Host if Host should proceed with the implementation. Any such advice by Client will bind Client to pay any such cost that has been so identified.

 

ARTICLE 6

CLIENTS REPRESENTATIONS AND WARRANTIES

 

(1) Client hereby represents and warrants to Host that:

 

(a) Client owns or has the right to use each Client Server that is provided to Host pursuant to this Agreement (together with all related hardware and software) for purposes of the crypto currency mining operations contemplated in this Agreement;

 

(b) if any Client Server is being imported into Canada on its way to the Location, Client has obtained any and all approvals that may be required for such importation; and

 

(c) the use of any Client Server or related hardware and/or software for such purpose does not

 

    (i) Infringe or misappropriate any intellectual property right of any nature or kind; or
    (ii) Violate any contractual right of any nature or kind whatsoever; or
    (iii) Violate any applicable laws or regulations.

 

 

 

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ARTICLE 7

HOST REPRESENTATIONS AND WARRANTIES

 

(1) Host hereby represents and warrants to Client that:

 

(a) Host is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation and is qualified to do business in all jurisdictions in which qualification is necessary in order to transact its business and perform its obligations set out in this Agreement;

 

(b) Host or its partner corporation has all requisite corporate power and authority to own, lease and operate its properties and assets and to carry on its business as now being conducted by it;

 

(c) Host or its partner corporation has obtained all necessary approvals, consents and authorizations to enter into, and to perform its obligations under, this Agreement;

 

(d) Host and its personnel possess the necessary technology, skills and experience to perform its obligations under this Agreement;

 

(e) Host has exercised due skill and care in selecting the Hosted Locations, that to the best of Host's knowledge the Location is currently appropriate for their intended use, and that it is not aware of any reason why the hosting services, as anticipated under this Agreement, cannot be provided at the Location;

 

(f) Host will use commercially reasonable efforts to provide for Client's benefit all of the physical services that are needed to support the overall operation of the Client Servers at the Location, such as cleaning services, security services and environmental systems maintenance, all as more specifically provided in Schedule A hereto; and

 

(g) during the term of this Agreement: (i) the Services will conform in all material respects to the Service descriptions set out in Schedule A hereto; and (ii) all Services will be performed in a professional and workmanlike manner in accordance with industry standards.

 

ARTICLE 9

INDEMNIFICATION

 

(1) Host agrees to indemnify Client and Client's directors, officers, shareholders and representatives (collectively, the "Client lndemnitees"), and hold the Client lndemnitees harmless, from and against any and all claims, demands, lawsuits, actions or proceedings of any nature or kind whatsoever, as well as any and all losses, liabilities, damages, costs and expenses (specifically including reasonable legal and other professional fees and expenses) incurred by any of the Client lndemnitees and attributable thereto, that are directly or indirectly resulting from: (a) any material breach by Host, including its respective directors, officers, employees, agents and subcontractors (collectively, "Host Personnel"), of Host's obligations under this Agreement; (b) any gross negligence, criminal act, fraudulent act, fraudulent omission or willful misconduct by Host, its affiliates or any Host Personnel; (c) any damage, loss or destruction of any tangible, real or personal property while in the possession or control of Host, its affiliates or any Host Personnel, or otherwise to the extent caused by any act, omission or willful misconduct of Host, its affiliates or any Host Personnel; or (d) Host having made any materially inaccurate or unauthorized representations or warranties in this Agreement.

 

 

 

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(2) Client agrees to indemnify Host and Host's directors, officers, shareholders and representatives (collectively, the "Host lndemnitees"), and hold the Host lndemnitees harmless, from and against any and all claims, demands, lawsuits, actions or proceedings of any nature or kind whatsoever, as well as any and all losses, liabilities, damages, costs and expenses (specifically including reasonable legal and other professional fees and expenses) incurred by any of the Host lndemnitees and attributable thereto, that are directly or indirectly associated with the use of the Client Servers as contemplated in this Agreement, with the participation of any Client Server in any mining pool or other third party service as contemplated in Sections Article 2(6) and Article 2(7)), with any of Client's reporting related obligations that are referred to in Section Article 5(2), with any of Client's taxation related obligations that are referred to in Section Article 5(3), or with any misrepresentation in any of Client's representations and warranties in Section Article 6(1).

 

ARTICLE 9

TERM AND TERMINATION

 

(1) This Agreement will take effect on the Effective Date and will remain in effect until it is terminated in accordance with Section Article 9(2).
   
(2) Either Party may terminate this Agreement, with or without cause, upon at least SIXTY (60) days' prior written notice to the other Party (with the effective date of termination being the date following the last day of such notice period, and being herein called the "Termination Date"). Under the situation that Host is the party who proposes the termination of this Agreement, Host shall be responsible for the return shipment handling and processing fee described below in Article 9 (4) (a).

 

(3)

As soon as reasonably possible following the Termination Date (with the length of such time period to reflect the number of Client Servers being returned to Client), and subject to Section Article 9 (4), Host will return to Client the Client Servers and any other related equipment owned by Client, at the sole cost and expense, and at the sole risk, of Client, in the same condition as the Client Servers were delivered to Host save for ordinary wear and tear. Host will provide any other transitional services to Client that are requested by Client, but only on a reasonable time and materials basis and with payment in advance.
   
(4) Host will not return any Client Servers to Client unless and until:

 

(a) Host has been paid in full for all Fees accrued to the Termination Date, and for any other amounts owed by Client to Host pursuant to this Agreement, specifically including a return shipment handling and processing fee in the amount of $15.00 per Client Server, in addition to shipping company charge; and

 

(b) Client advises Host who Client has retained to provide such shipping services ("Client's Shipper"), and provides Client's Shipper's contact information to Host. Host will advise Client's Shipper when the Client Servers have been assembled and packaged for shipment.

 

(5) In the event that there is any portion of the Deposit still standing to Client's credit as of the Termination Date (after payment in full to Host of all Fees and other amounts pursuant to Section 9 (4), Host will pay such amount to Client by bank draft or wire transfer.
   
(6) All terms in this agreement shall survive the termination of this Agreement.

 

 

 

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ARTICLE 10
DEFAULT

 

(1) Client shall be deemed to be in default under this Agreement if any of the following events occur (each, an 'Event of Default"):

 

(a) Client falls to pay in full any invoice forwarded to Client by Host within 30 days of Host sending that invoice to Client, unless and only to the extent that Client is legitimately disputing any portion of that invoice, in which case Client shall pay the non-disputed portion in full within such 30-day period and shall also provide reasons justifying its position regarding the disputed portion within such 30-day period;

 

(b) Client fails to comply with any other obligation of this Agreement, and fails to remedy that failure within seven (7) days of written notice of such failure from Host;

 

(c) Client defaults under any other agreement that it may have entered into with Host;

 

(d) any representation made by Client to Host in Section Article 6(1) is or becomes untrue;

 

(e) Client makes any assignment for the benefit of its creditors, becomes insolvent, commits any act of bankruptcy, ceases or threatens to cease to do business as a going concern or seeks any arrangement or compromise with its creditors; or

 

(f) Any proceeding in bankruptcy, receivership, liquidation, or insolvency is commenced against Client or its property.
     
(2) In the event of an Event of Default, Host shall have the following rights and remedies:

 

(a) Host may, without resorting to legal process, take immediate possession of all Client Servers then being hosted by Host and not release any such Client Servers to Client or to any third party unless and until Host receives payment in full of all outstanding Fees and any other amounts due to Host at that time;

 

(b) Host may, without resorting to legal process and notwithstanding Section Article 5(1)(b), take such action as may be required to ensure that Host is the owner of any bitcoins or other crypto currencies mined, produced, or discovered through the operation of the Client Servers while those Servers are still at any Hosted Location;

 

(c) Host may remove any or all of the Client Servers from the Location, and place them in storage at Client's sole cost, expense and risk;

 

(d) Host may exercise any other remedy that is available to it at law or in equity; and

 

(e) Host may charge Client for any expense incurred by Host (including legal, accounting and other professional fees) in exercising any of the foregoing rights and remedies and may add the amount of all such expenses to the amount that must be paid by Client to Host in order to have the Client Servers released to Client.

 

All of Host's remedies referred to in this Agreement are cumulative and not alternative, and may be exercised by Host in such manner as it sees fit in its sole discretion.

 

 

 

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ARTICLE 11

DISPUTE RESOLUTION

 

(1) If any dispute arises in connection with this Agreement, the Parties will attempt to settle it by good faith negotiations. In the event that the dispute is not settled by negotiation within thirty (30) days of either Party giving notice of the dispute to the other Party, either Party may give to the other Party a written notice requiring resolution by binding arbitration in accordance with the arbitration process in The Arbitration Act (Quebec).

 

ARTICLE 12

GENERAL PROVISIONS

 

(1) This Agreement may not be assigned by either Party without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed. Subject to the foregoing, this Agreement shall enure to the benefit of, and shall be binding upon, the Parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.

 

(2) Except as otherwise expressly provided herein, this Agreement may only be amended by written agreement of both Parties.

 

(3) Each Party will be excused from delays in performing or from failing to perform its obligations under this Agreement (other than the payment of Fees or other amounts due under this Agreement) due to circumstances beyond that Party's control and which could not have been avoided by the taking of appropriate precautions; provided that the Party that is the subject of those circumstances shall use reasonable efforts to be in a position to again perform its obligations under this Agreement as quickly as reasonably possible under the circumstances.

 

(4) If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated.

 

(5) This Agreement, including the recitals and all Schedules now or at any time hereafter attached hereto (all of which are hereby incorporated herein by reference and form an integral part hereof), contains the entire agreement of the Parties relating to the subject matter of this Agreement, and supersedes all previous or contemporaneous discussions, negotiations, understandings, arrangements or agreements with respect to such subject matter.

 

(6) This Agreement shall be governed, construed and interpreted in accordance with the laws of the Province of Quebec (without respect to principles of conflicts of law) and the federal laws of Canada applicable therein, and the Parties hereby submit to jurisdiction of and venue in the courts in the Province of Quebec in any legal proceeding that may relate to this Agreement.

 

(7) Time shall in all respects be of the essence of this Agreement

 

(8) This Agreement may be executed (by original or facsimile) by the Parties in one or more counterparts, each of which shall be considered an original and one and the same agreement, and shall become effective when one or more counterparts have been signed by each Party and delivered to the other Party such that there is evidence of signature by both Parties.

 

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

 

 

Hosting Company Client Company
   
Per: /s/ Songhua Zhang Per: /s/ Xiaofeng Peng
       Name: Songhua Zhang        Name: Xiaofeng Peng
       Title: Director        Title: CEO

 

 

 

 

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SCHEDULE A

DESCRIPTION OF THE Client SERVERS AND SET UP SCHEDULE

 

 

1. Ant Miner S9 miner (Quantity 10,050)
       
  (a) The ASIC unit
       
    (i) Hashboards (one or multiple)
       
    (ii) Controller board
       
    (iii) Cooling equip (one or multiple fans)
       
    (iv) Hardware, e.g. the aluminum body, the control board shroud, plates, fasteners,
       
  (b) The PSU
     
    (i) Meet the minimum power delivery requirements for the ASIC unit it corresponds to (e.g. Bitmain APW3++)
       
2. Set Up Schedule

 

Host will use commercially reasonable efforts to complete the set up of all of the Client Servers within 7 days of its receipt of the ownership transfer confirmation from the seller of these servers and the Client, so long as:

 

  (a) the Client Servers are complete and undamaged when received by Host; and

 

(b) Host does not experience any technical difficulties with any Client Server (including difficulties associated with Host not having previously set up the version of Client Servers received from Client).

 

 

 

 

 

 

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SCHEDULE B

MONITORING SERVICES

 

1. Basic monitoring of each Client Server to determine if that Client Server is functioning.

 

Reboot of each Client Server within 12 hours to fix any Client Server that might be frozen. If any reboot does not work, Host will notify Client within 12 hours of such failure and seek Client's further instructions. In the event that Client instructs Host to perform a complete factory reset, Host will do so as soon as reasonably possible (depending on how many Client Servers need to be reset), and in any event within 24 hours of receiving such instructions if there is only one Client Server that needs to be reset. Any such reset will be followed by a reconfiguration of that Client Server to the latest configuration specified in the Configuration Parameters for that Client Server. If this reset does not fix the problem, that Client Server will be deemed 'dead' and shipped by Host to Client at Client's sole cost, expense and risk; or

 

2. Correction of trivial failures, in the sole discretion of Host unless they interrupt the mining of the crypto currency in such case the correction within 24 hours is mandatory.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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SCHEDULE C
FEE

 

1. Fee Structure

 

Host charges Client fee by services including receiving Servers, setup, hosting (maintain good working condition), monitor, repair, remove, return and shipping. Most of these are one time and nonrecurring charges except hosting fee. Hosting is charged by Servers' energy draw at wall.

 

(a) Setup fee is $10 per Server. This fee will be waived as far as Client is getting ownership transfer from the seller of the servers which have already been setup in the Location.

 

(b) NEMA 6-15 Power Cord $10 per Server as one-time rental fee. This fee will be waived as far as Client is going to get the Power cords from the seller of the servers.

 

(c) Basic monitoring fee is included.

 

(d) Hosting Fee is charged at CAD $0.073 per KWH plus tax. When the profitability of the Servers dramatically changes, which could be impacted by the price of crypto currency or the whole network hash rate, Host and Client will work on a new Hosting Fee rate within 30 days, and mutually confirm the new rate in writing before the new Hosting Fee rate being applied.

 

(e) The KWH rate of Servers above in Schedule C 1. (d) is based the Servers' actual power consumption, plus the averaged power consumption of ventilations, lightings, panels etc. The power consumption figure applied of the Client Server mentioned in Schedule A-1 is 1500W.

 

(f) Return Shipping is charged $15 per Server in addition to shipping company charge

 

(g) Extra size charge for GPU Servers

 

(h) Deposit to secure Servers' space include: 1 month pre-payment and Security Deposit hosting and monitoring fees, setup fees, and parts required including but not limited to Power Cords.

 

2. Monthly Adjustment and Fee Consolidation

 

Actual monthly charge may be adjusted due to non-regular service items and may be consolidated from multiple systems and/or agreements.

 

 

 

 

 

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Exhibit 4.61

 

SUPPLEMENTAL AGREEMENT

 

THIS SUPPLEMENTAL AGREEMENT dated October 7, 2019 (the "Effective Date") is to amend the HOSTING AGREEMENT made on JULY 9, 2019 between 1151203 B.C. Ltd ("Host") and 1215542 B.C. LTD ("Client") that was executed by Songhua Zhang and Xiaofeng Peng.

 

Both Host and Client mutually agree to the following amendments:

 

(1) As of the Effective Date, Host and Client (collectively, the Parties) agree to change the Hosting Fee to CAD $0.07/khw. This rate change is also applicable to UMining, an affiliate of Client.

 

(2) Host has the right to increase its fees to C$0.073/kwh or higher, when a ratio of Bitcoin Price: Bitcoin Hash Rate goes back or higher than US $12,561 : 58,125,056TH/s, which the ratio was on the day of July 9th 2019. Host agrees to notify Client in writing prior to such rate increase.

 

(3) Unless and only to the extent that Client is legitimately disputing any portion of that invoice, in which case Client shall pay the non-disputed portion in full within such 15-day period and shall also provide reasons justifying its position regarding the disputed portion within such 15-day period, Client shall be deemed to be in default if Client fails to pay in full any invoice within 15 days of Host sending that monthly invoice to Client. Host will send each monthly invoices to Client on the 15th day of every month; Client shall pay these invoices by the end of the month.

 

(4) Client agrees to pay the full amount of Security Deposit, which equals to one month Hosting Fee, by the end of December 15, 2019 . Client shall secure this payment of this Security Deposit to Host through its earliest tax return, and shall gives Host all the authorizations to follow up Canada Revenue Agency or Quebec Revenue Agency, or the accounting firm, or the bank staffs, to follow up and assume the ownership of the fund of the tax return. Host also reserves the right to pursue this payment of Security Deposit through other solutions described in the original Hosting Agreement.

 

(4) Host reserves the right to suspend all Services in the event that Client fails to pay these invoices as required pursuant to this SUPPLEMENTAL AGREEMENT, or the HOSTING AGREEMENT signed before. After sending a notice to Client, Host may also, without resorting to legal process, take immediate possession of all Client Servers then being hosted by Host, and take any action to recover its loss.

 

(5) This SUPPLEMENTAL AGREEMENT may be executed (by original or electronic) by the Parties in one or more counterparts, each of which shall be considered an original and one and the same agreement, and shall become effective when the SUPPLEMENTAL AGREEMENT has been properly executed by both Parties.

 

 

 

IN WITNESS WHEREOF, the Parties have executed this SUPPLEMENTAL AGREEMENT as of the Effective Date.

 

Host: 1151203 B.C. Ltd. Client: 1215542 B.C. Ltd.
   
Per: /s/ Songhua Zhang Per: /s/ Xiaofeng Peng
Name: Songhua Zhang Name: Xiaofeng Peng
Title: Director Title: CEO

 

  1  

 

Exhibit 4.62

 

SECOND SUPPLEMENTAL AGREEMENT

 

THIS SECOND SUPPLEMENTAL AGREEMENT dated March 8, 2020 (the "Contract Date") is to amend the HOSTING AGREEMENT made on July 9, 2019 and SUPPLEMENT AGREEMENT made on Oct 7, 2019, between 1151203 B.C. Ltd ("Host") and 1215542 B.C. LTD ("Client") that was executed by Songhua Zhang and Xiaofeng Peng

 

Both Host and Client mutually agree to the following amendments:

 

(1) As of the Effective Date below, Host and Client (collectively, the Parties) agree to change the Hosting Fee to CAD 0.0675/khw. This rate change is also applicable to UMining, an affiliate of Client.

 

(2) Both partied agreed that as of January 15th 2020, the total outstanding Hosting Fee due to the Host is CAD 2,416,790.89 among which Client agrees to settle CAD 1,200,000.00 within 10 business days after the Contract Date (the "Pay Date"). Upon the Pay Date and Host's receipt of CAD 1,200,000.00 from Client, this SECOND SUPPLEMENTAL AGREEMENT shall become effective (Effective Date), and then the Host shall show Client the mining history, trade history of Client's server from 2019/12/03 5:30PM (Montreal time). In respect of the balance amount CAD 1,216,790.89, it shall be paid partially in installments ("Installment Payment"). Within 24 hours after Client paid each Installment Payment, Host shall transfer to Client such number of bitcoin as derived by dividing (x) the each Installment Payment by (y) the market price of the bitcoin on such Minute as recorded on Host's bank account when Host received each Installment Payment, until Client have paid all the balance. If there are remaining bitcoins in the wallet when Client have paid the balance, Host must immediately return all the remaining bitcoins to Client.

 

(3) Client also agrees to pay the full amount of Security Deposit, which is the less of one month Hosting Fee: CAD 710,367.42,(9504 Miners), or the tax rebate that the client received. Client agrees to pay deposit within 5 business days after Client receives its earliest and very first tax return. As of the Effective Date, Host shall fully support the client to follow up Canada Revenue Agency or Quebec Revenue Agency, or the accounting firm, or Client's bank account manager, to follow up the time of delivery of the fund of the tax return. Host also reserves the right to pursue this payment of Security Deposit through other solutions described in the original Hosting Agreement.

 

(4) Host has no right to increase its Hosting Fee from C$0.0675/kwh at effective date, unless mutually agreed by both parties; or under the terms in the original HOSTING AGREEMENT; or item (8) in this SECOND SUPPLEMENTAL AGREEMENT.

 

(5) Each invoice is due and payable upon receipt. Host will issue invoices to Client 10 days earlier before the invoice date. In the event of any non-payment in full of any invoice by Client by the due date, interest shall accrue on the amount of the balance at the rate of 15% per annum, and Host reserves the right to suspend all Services and all actions in the original HOSTING AGREEMENT made on July 9, 2019. If any delays or insufficient payment occurs in the future, Host has the right to cancel the new Hosting Fee in this Agreement and change it back to the original rate in HOSTING AGREEMENT mentioned above.

 

 

 

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(6) Host reserves the right to suspend all Services in the event that Client fails to pay these invoices as required pursuant to this SUPPLEMENTAL AGREEMENT, or the HOSTING AGREEMENT signed before. After sending a notice to Client, Host may also, without resorting to legal process, take immediate possession of all Client Servers then being hosted by Host, and take any action to recover its loss.

 

(7) Based on the market situation and business nature, both Host and Client agree to shut down the Client Servers month by month and return them to Client at Client's sole cost and risk. At the same time, the corresponding part of the unused Security Deposit shall be credited to Client's next bill as well. The actual quantities of Client Servers to be shut down and returned shall be based on Host's sole business decision, and the up limit of quantities for each month are as the following:

 

February 2020: 1,330 server; March 2020: 1,330 server; April 2020: 2,000 server;
May 2020: 2,660 server; June 2020: 2,660 server;  

 

(8) Client promises to buy new model server consuming no-less-than 2MW power, to be hosted at Host's facility. The Host rate will start at C$0.0675/kwh, and will discount to C$0.07 when the ratio of Bitcoin USD Price/Bitcoin Network Terahash Rate goes to or lower than 4,709: 150,000,000, and continue to discount to C$0.0675/kwh when this ratio reaches or lower than 4,455 : 160,000,000, Host agrees to notify Client in writing prior to such rate increase.

 

(9) This SECOND SUPPLEMENTAL AGREEMENT may be executed (by original or electronic) by the Parties in one or more counterparts, each of which shall be considered an original and one and the same agreement, and shall become effective when the SECOND SUPPLEMENTAL AGREEMENT has been properly executed by both Parties.

 

 

 

IN WITNESS WHEREOF, the Parties have executed this SECOND SUPPLEMENTAL AGREEMENT as of the Effective Date.

 

Host: 1151203 B.C. Ltd. Client: 1215542 B.C. Ltd.
   
Per: /s/ Songhua Zhang Per: /s/ Xiaofeng Peng
Name: Songhua Zhang Name: Xiaofeng Peng
Title: Director Title: CEO

 

 

 

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Exhibit 4.63

 

REMOTE HASH POWER COMPUTING SERVICE AGREEMENT

 

This REMOTE HASH POWER COMPUTING SERVICE AGREEMENT (the "Agreement") is made and entered into on this 15th day of July 2019 (the "Effective Date") by and between 1215542 BC Ltd. ("PROVIDER") and SPI Orange Co. Ltd. (Cayman) ("CLIENT") (collectively called the "Parties" and, individually, a "Party").

 

WHEREAS PROVIDER is the owner of 9,507 crypto-mining equipment and it has an existing hosting agreement with a data center in Sherbrooke, Quebec, Canada;

 

AND WHEREAS CLIENT wishes to engage PROVIDER to provide remote hash power computing services to Client on the terms and conditions set forth in this Agreement.

 

NOW THEREFORE in consideration of the mutual covenants and agreements of the Parties as set forth in this Agreement, the receipt and sufficient of which is hereby irrevocably acknowledged, the Parties hereby agree as follows:

 

(1) PROVIDER'S RESPONSIBILITIES

 

During the term of this Agreement, and subject to the terms and conditions set forth in this Agreement, PROVIDER agrees to provide CLIENT with access to a web management portal, whereby CLIENT can view and access various usage statistics and perform crypto-mining operations using the hash rate provided by the PROVIDER's crypto-miners.

 

(2) SERVICE FEE

 

Both Parties agree to use PROVIDER's crypto-miners to provide remote hash power computing service to CLIENT. The number of crypto-mining equipment as of the Effective Date of this Agreement is 9,507. The PROVIDER'S monthly service fee will be based on the actual number of crypto-mining equipment that is online during the month, multiply by an agreed-upon rate of 1.5 and agreed-upon energy cost of CAD $0.073 per crypto-miner. For illustration purposes, assuming zero downtime in a month with 31 days, the monthly service fee will be CAD $774,516 (9,507 miners online x 1.5kw x 24 hours x 31 days x $0.073/kwh).

 

For billing purposes, an estimated monthly service fee of CAD $800,000 will be charged to CLIENT starting with the month of July 2019. The fee will be trued up every 6 months based on actual usage.

 

(3) GENERAL PROVISIONS

 

  (1) This Agreement is for a period of one-year, renewable automatically and may only be amended by written agreement of both Parties.

 

 

 

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REMOTE HASH POWER COMPUTING SERVICE AGREEMENT

 

  (2) Each Party will be excused from delays in performing or from failing to perform its obligations under this Agreement due to circumstances beyond that Party's control and which could not have been avoided by the taking of appropriate precautions; provided that the Party that is the subject of those circumstances shall use reasonable efforts to " be in a position to again perform its obligations under this Agreement as quickly as reasonably possible under the circumstances.

 

 

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

 

 

CLIENT PROVIDER
SPI Orange Co. Ltd. (Cayman) 1215542 BC Ltd.
   
   
/s/ Signature illegible                                     /s/ Anthony S. Chan                                             
Name: Name: Anthony S. Chan
Title: Title: Director

 

 

 

 

 

 

 

 

 

 

 

 

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Exhibit 4.64

 

SECURITIES PURCHASE AGREEMENT

 

THIS SECURITIES PURCHASE AGREEMENT (this “Agreement”), dated as of May 28, 2019, is entered into by and between SPI ENERGY CO., LTD., a Cayman Islands corporation (“Company”), and ILIAD RESEARCH AND TRADING, L.P., a Utah limited partnership, its successors and/or assigns (“Investor”).

 

A.        Company and Investor are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by the Securities Act of 1933, as amended (the “1933 Act”), and the rules and regulations promulgated thereunder by the United States Securities and Exchange Commission (the “SEC”).

 

B.        Investor desires to purchase and Company desires to issue and sell, upon the terms and conditions set forth in this Agreement a Convertible Promissory Note, in the form attached hereto as Exhibit A, in the original principal amount of $1,331,500.00 (the “Note”), convertible into Ordinary Shares, $0.0001 par value per share, of Company (the “Ordinary Shares”), upon the terms and subject to the limitations and conditions set forth in such Note.

 

C.        This Agreement, the Note, and all other certificates, documents, agreements, resolutions and instruments delivered to any party under or in connection with this Agreement, as the same may be amended from time to time, are collectively referred to herein as the “Transaction Documents”.

 

D.        For purposes of this Agreement: “Conversion Shares” means all Ordinary Shares issuable upon conversion of all or any portion of the Note; and “Securities” means the Note and the Conversion Shares.

 

NOW, THEREFORE, in consideration of the above recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Investor hereby agree as follows:

 

1.       Purchase and Sale of Securities.

 

1.1.       Purchase of Securities. Company shall issue and sell to Investor and Investor shall purchase from Company the Note. In consideration thereof, Investor shall pay the Purchase Price (as defined below) to Company.

 

1.2.       Form of Payment. On the Closing Date (as defined below), Investor shall pay the Purchase Price to Company via wire transfer of immediately available funds against delivery of the Note.

 

1.3.       Closing Date. Subject to the satisfaction (or written waiver) of the conditions set forth in Section 5 and Section 6 below, the date of the issuance and sale of the Note pursuant to this Agreement (the “Closing Date”) shall be May 28, 2019, or another mutually agreed upon date. The closing of the transactions contemplated by this Agreement (the “Closing”) shall occur on the Closing Date by means of the exchange by email of signed .pdf documents, but shall be deemed for all purposes to have occurred at the offices of Hansen Black Anderson Ashcraft PLLC in Lehi, Utah.

 

1.4.       Collateral for the Note. The Note shall be unsecured.

 

1.5.       Original Issue Discount; Transaction Expense Amount. The Note carries an original issue discount of $62,500.00 (the “OID”). In addition, Company agrees to pay $19,000.00 to Investor to cover Investor’s legal fees, accounting costs, due diligence, monitoring and other transaction costs incurred in connection with the purchase and sale of the Securities (the “Transaction Expense Amount”), all of which amount is included in the initial principal balance of the Note. The “Purchase Price”, therefore, shall be $1,250,000.00, computed as follows: $1,331,500.00 initial principal balance, less the OID, less the Transaction Expense Amount.

 

 

 

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2.        Investor’s Representations and Warranties. Investor represents and warrants to Company that as of the Closing Date: (i) this Agreement has been duly and validly authorized; (ii) this Agreement constitutes a valid and binding agreement of Investor enforceable in accordance with its terms; and (iii) Investor is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D of the 1933 Act.

 

3.        Company’s Representations and Warranties. Company represents and warrants to Investor that as of the Closing Date: (i) Company is a corporation duly organized, validly existing and in good standing under the laws of its state of incorporation and has the requisite corporate power to own its properties and to carry on its business as now being conducted; (ii) Company is duly qualified as a foreign corporation to do business and is in good standing in each jurisdiction where the nature of the business conducted or property owned by it makes such qualification necessary; (iii) Company has registered its Ordinary Shares under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “1934 Act”), and is obligated to file reports pursuant to Section 13 or Section 15(d) of the 1934 Act; (iv) each of the Transaction Documents and the transactions contemplated hereby and thereby, have been duly and validly authorized by Company and all necessary actions have been taken; (v) the Transaction Documents have been duly executed and delivered by Company and constitute the valid and binding obligations of Company enforceable in accordance with their terms; (vi) the execution and delivery of the Transaction Documents by Company, the issuance of Securities in accordance with the terms hereof, and the consummation by Company of the other transactions contemplated by the Transaction Documents do not and will not conflict with or result in a breach by Company of any of the terms or provisions of, or constitute a default under (a) Company’s formation documents or bylaws, each as currently in effect, (b) any indenture, mortgage, deed of trust, or other material agreement or instrument to which Company is a party or by which it or any of its properties or assets are bound, including, without limitation, any listing agreement for the Ordinary Shares, or (c) any existing applicable law, rule, or regulation or any applicable decree, judgment, or order of any court, United States federal, state or foreign regulatory body, administrative agency, or other governmental body having jurisdiction over Company or any of Company’s properties or assets; (vii) no further authorization, approval or consent of any court, governmental body, regulatory agency, self-regulatory organization, or stock exchange or market or the stockholders or any lender of Company is required to be obtained by Company for the issuance of the Securities to Investor or the entering into of the Transaction Documents; (viii) none of Company’s filings with the SEC contained, at the time they were filed, any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading; (ix) Company has filed all reports, schedules, forms, statements and other documents required to be filed by Company with the SEC under the 1934 Act on a timely basis or has received a valid extension of such time of filing and has filed any such report, schedule, form, statement or other document prior to the expiration of any such extension; (x) except as has previously been disclosed, there is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body pending or, to the knowledge of Company, threatened against or affecting Company before or by any governmental authority or non-governmental department, commission, board, bureau, agency or instrumentality or any other person, wherein an unfavorable decision, ruling or finding would have a material adverse effect on Company or which would adversely affect the validity or enforceability of, or the authority or ability of Company to perform its obligations under, any of the Transaction Documents; (xi) Company has not consummated any financing transaction that has not been disclosed in a periodic filing or current report with the SEC under the 1934 Act; (xii) Company is not, nor has it been at any time in the previous twelve (12) months, a “Shell Company,” as such type of “issuer” is described in Rule 144(i)(1) under the 1933 Act; (xiii) with respect to any commissions, placement agent or finder’s fees or similar payments that will or would become due and owing by Company to any person or entity as a result of this Agreement or the transactions contemplated hereby (“Broker Fees”), any such Broker Fees will be made in full compliance with all applicable laws and regulations and only to a person or entity that is a registered investment adviser or registered broker-dealer; (xiv) Investor shall have no obligation with respect to any Broker Fees or with respect to any claims made by or on behalf of other persons for fees of a type contemplated in this subsection that may be due in connection with the transactions contemplated hereby and Company shall indemnify and hold harmless each of Investor, Investor’s employees, officers, directors, stockholders, members, managers, agents, and partners, and their respective affiliates, from and against all claims, losses, damages, costs (including the costs of preparation and attorneys’ fees) and expenses suffered in respect of any such claimed Broker Fees; (xv) when issued, the Conversion Shares will be duly authorized, validly issued, fully paid for and non-assessable, free and clear of all liens, claims, charges and encumbrances; (xvi) neither Investor nor any of its officers, directors, stockholders, members, managers, employees, agents or representatives has made any representations or warranties to Company or any of its officers, directors, employees, agents or representatives except as expressly set forth in the Transaction Documents and, in making its decision to enter into the transactions contemplated by the Transaction Documents, Company is not relying on any representation, warranty, covenant or promise of Investor or its officers, directors, members, managers, employees, agents or representatives other than as set forth in the Transaction Documents; (xvii) Company acknowledges that the State of Utah has a reasonable relationship and sufficient contacts to the transactions contemplated by the Transaction Documents and any dispute that may arise related thereto such that the laws and venue of the State of Utah, as set forth more specifically in Section 9.2 below, shall be applicable to the Transaction Documents and the transactions contemplated therein; and (xviii) Company has performed due diligence and background research on Investor and its affiliates including, without limitation, John M. Fife, and, to its satisfaction, has made inquiries with respect to all matters Company may consider relevant to the undertakings and relationships contemplated by the Transaction Documents including, among other

things, the following:

 

 

 

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http://investing.businessweek.com/research/stocks/people/person.asp?personId=7505107&ticker=UAHC; SEC Civil Case No. 07-C-0347 (N.D. Ill.); SEC Civil Action No. 07-CV-347 (N.D. Ill.); and FINRA Case #2011029203701. Company, being aware of the matters described in subsection (xviii) above, acknowledges and agrees that such matters, or any similar matters, have no bearing on the transactions contemplated by the Transaction Documents and covenants and agrees it will not use any such information as a defense to performance of its obligations under the Transaction Documents or in any attempt to avoid, modify or reduce such obligations.

 

4.       Company Covenants. Until all of Company’s obligations under all of the Transaction Documents are paid and performed in full, or within the timeframes otherwise specifically set forth below, Company will at all times comply with the following covenants: (i) so long as Investor beneficially owns any of the Securities and for at least twenty (20) Trading Days (as defined in the Note) thereafter, Company will timely file on the applicable deadline (which for these purposes, will include any automatic extension available to Company) all reports required to be filed with the SEC pursuant to Sections 13 or 15(d) of the 1934 Act, and will take all reasonable action under its control to ensure that adequate current public information with respect to Company, as required in accordance with Rule 144 of the 1933 Act, is publicly available, and will not terminate its status as an issuer required to file reports under the 1934 Act even if the 1934 Act or the rules and regulations thereunder would permit such termination; (ii) when issued, the Conversion Shares will be duly authorized, validly issued, fully paid for and non-assessable, free and clear of all liens, claims, charges and encumbrances; (iii) the Ordinary Shares shall be listed or quoted for trading on any of (a) NYSE, (b) NYSE American, (c) NASDAQ, (d) OTCQX, or (e) OTCQB; (iv) trading in Company’s Ordinary Shares will not be suspended, halted, chilled, frozen, reach zero bid or otherwise cease trading on Company’s principal trading market; and (v) within sixty (60) days of the Closing Date, Company will: (x) obtain a legal opinion stating that the Nasdaq 19.99% Cap (as defined in the Note) does not apply to Company, and (y) apply to Nasdaq for confirmation that the Nasdaq 19.99% Cap does not apply to issuances of Conversion Shares to Investor.

 

5.       Conditions to Company’s Obligation to Sell. The obligation of Company hereunder to issue and sell the Securities to Investor at the Closing is subject to the satisfaction, on or before the Closing Date, of each of the following conditions:

 

5.1.         Investor shall have executed this Agreement and delivered the same to Company.

 

5.2.         Investor shall have delivered the Purchase Price to Company in accordance with Section 1.2 above.

 

6.        Conditions to Investor’s Obligation to Purchase. The obligation of Investor hereunder to purchase the Securities at the Closing is subject to the satisfaction, on or before the Closing Date, of each of the following conditions, provided that these conditions are for Investor’s sole benefit and may be waived by Investor at any time in its sole discretion:

 

6.1.         Company shall have executed this Agreement and the Note and delivered the same to Investor.

 

6.2.         Company shall have delivered to Investor a fully executed Irrevocable Letter of Instructions to Transfer Agent (the “TA Letter”) substantially in the form attached hereto as Exhibit B acknowledged and agreed to in writing by Company’s transfer agent (the “Transfer Agent”).

 

6.3.         Company shall have delivered to Investor a fully executed Secretary’s Certificate substantially in the form attached hereto as Exhibit C evidencing Company’s approval of the Transaction Documents.

 

6.4.         Company shall have delivered to Investor a fully executed Share Issuance Resolution substantially in the form attached hereto as Exhibit D to be delivered to the Transfer Agent.

 

6.5.         Company shall have delivered to Investor fully executed copies of all other Transaction Documents required to be executed by Company herein or therein.

 

 

 

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7.        Reservation of Shares. On the date hereof, Company will reserve 1,800,000 Ordinary Shares from its authorized and unissued Ordinary Shares to provide for all issuances of Ordinary Shares under the Note (the “Share Reserve”). Company further agrees to add additional Ordinary Shares to the Share Reserve in increments of 100,000 shares as and when requested by Investor if as of the date of any such request the number of shares being held in the Share Reserve is less than three (3) times the number of Ordinary Shares obtained by dividing the Outstanding Balance (as defined in the Note) as of the date of the request by the Redemption Conversion Price (as defined in the Note). Company shall further require the Transfer Agent to hold the Ordinary Shares reserved pursuant to the Share Reserve exclusively for the benefit of Investor and to issue such shares to Investor promptly upon Investor’s delivery of a conversion notice under the Note. Finally, Company shall require the Transfer Agent to issue Ordinary Shares pursuant to the Note to Investor out of its authorized and unissued shares, and not the Share Reserve, to the extent Ordinary Shares have been authorized, but not issued, and are not included in the Share Reserve. The Transfer Agent shall only issue shares out of the Share Reserve to the extent there are no other authorized shares available for issuance and then only with Investor’s written consent.

 

8.        OFAC; Patriot Act.

 

8.1.       OFAC Certification. Company certifies that (i) it is not acting on behalf of any person, group, entity, or nation named by any Executive Order or the United States Treasury Department, through its Office of Foreign Assets Control (“OFAC”) or otherwise, as a terrorist, “Specially Designated Nation”, “Blocked Person”, or other banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule or regulation that is enforced or administered by OFAC or another department of the United States government, and (ii) Company is not engaged in this transaction on behalf of, or instigating or facilitating this transaction on behalf of, any such person, group, entity or nation.

 

8.2.       Foreign Corrupt Practices. Neither Company, nor any of its subsidiaries, nor any director, officer, agent, employee or other person acting on behalf of Company or any subsidiary has, in the course of his actions for, or on behalf of, Company, used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee.

 

8.3.       Patriot Act. Company shall not (i) be or become subject at any time to any law, regulation, or list of any government agency (including, without limitation, the OFAC) that prohibits or limits Investor from making any advance or extension of credit to Company or from otherwise conducting business with Company, or (ii) fail to provide documentary and other evidence of Company’s identity as may be requested by Investor at any time to enable Investor to verify Company’s identity or to comply with any applicable law or regulation, including, without limitation, Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318. Company shall comply with all requirements of law relating to money laundering, anti-terrorism, trade embargos and economic sanctions, now or hereafter in effect. Upon Investor’s request from time to time, Company shall certify in writing to Investor that Company’s representations, warranties and obligations under this Section 8.3 remain true and correct and have not been breached. Company shall immediately notify Investor in writing if any of such representations, warranties or covenants are no longer true or have been breached or if Company has a reasonable basis to believe that they may no longer be true or have been breached. In connection with such an event, Company shall comply with all requirements of law and directives of governmental authorities and, at Investor’s request, provide to Investor copies of all notices, reports and other communications exchanged with, or received from, governmental authorities relating to such an event. Company shall also reimburse Investor any expense incurred by Investor in evaluating the effect of such an event on the loan secured hereby, in obtaining any necessary license from governmental authorities as may be necessary for Investor to enforce its rights under the Transaction Documents, and in complying with all requirements of law applicable to Investor as the result of the existence of such an event and for any penalties or fines imposed upon Investor as a result thereof.

 

9.        Miscellaneous. The provisions set forth in this Section 9 shall apply to this Agreement, as well as all other Transaction Documents as if these terms were fully set forth therein; provided, however, that in the event there is a conflict between any provision set forth in this Section 9 and any provision in any other Transaction Document, the provision in such other Transaction Document shall govern.

 

 

 

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9.1.       Arbitration of Claims. The parties shall submit all Claims (as defined in Exhibit E) arising under this Agreement or any other Transaction Document or any other agreement between the parties and their affiliates or any Claim relating to the relationship of the parties to binding arbitration pursuant to the arbitration provisions set forth in Exhibit E attached hereto (the “Arbitration Provisions”). For the avoidance of doubt, the parties agree that the injunction described in Section 9.3 below may be pursued in an arbitration that is separate and apart from any other arbitration regarding all other Claims arising under the Transaction Documents. The parties hereby acknowledge and agree that the Arbitration Provisions are unconditionally binding on the parties hereto and are severable from all other provisions of this Agreement. By executing this Agreement, Company represents, warrants and covenants that Company has reviewed the Arbitration Provisions carefully, consulted with legal counsel about such provisions (or waived its right to do so), understands that the Arbitration Provisions are intended to allow for the expeditious and efficient resolution of any dispute hereunder, agrees to the terms and limitations set forth in the Arbitration Provisions, and that Company will not take a position contrary to the foregoing representations. Company acknowledges and agrees that Investor may rely upon the foregoing representations and covenants of Company regarding the Arbitration Provisions.

 

9.2.         Governing Law; Venue. This Agreement shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Agreement shall be governed by, the internal laws of the State of Utah, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Utah or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Utah. Each party consents to and expressly agrees that the exclusive venue for arbitration of any dispute arising out of or relating to any Transaction Document or the relationship of the parties or their affiliates shall be in Salt Lake County, Utah. Without modifying the parties’ obligations to resolve disputes hereunder pursuant to the Arbitration Provisions, for any litigation arising in connection with any of the Transaction Documents (and notwithstanding the terms (specifically including any governing law and venue terms) of any transfer agent services agreement or other agreement between the Transfer Agent and Company, such litigation specifically includes, without limitation any action between or involving Company and the Transfer Agent under the TA Letter or otherwise related to Investor in any way (specifically including, without limitation, any action where Company seeks to obtain an injunction, temporary restraining order, or otherwise prohibit the Transfer Agent from issuing Ordinary Shares to Investor for any reason)), each party hereto hereby (i) consents to and expressly submits to the exclusive personal jurisdiction of any state or federal court sitting in Salt Lake County, Utah, (ii) expressly submits to the exclusive venue of any such court for the purposes hereof, (iii) agrees to not bring any such action (specifically including, without limitation, any action where Company seeks to obtain an injunction, temporary restraining order, or otherwise prohibit the Transfer Agent from issuing Ordinary Shares to Investor for any reason) outside of any state or federal court sitting in Salt Lake County, Utah, and (iv) waives any claim of improper venue and any claim or objection that such courts are an inconvenient forum or any other claim, defense or objection to the bringing of any such proceeding in such jurisdiction or to any claim that such venue of the suit, action or proceeding is improper. Finally, Company covenants and agrees to name Investor as a party in interest in, and provide written notice to Investor in accordance with Section 9.9 below prior to bringing or filing, any action (including without limitation any filing or action against any person or entity that is not a party to this Agreement, including without limitation the Transfer Agent) that is related in any way to the Transaction Documents or any transaction contemplated herein or therein, including without limitation any action brought by Company to enjoin or prevent the issuance of any Ordinary Shares to Investor by the Transfer Agent, and further agrees to timely name Investor as a party to any such action. Company acknowledges that the governing law and venue provisions set forth in this Section 9.2 are material terms to induce Investor to enter into the Transaction Documents and that but for Company’s agreements set forth in this Section 9.2 Investor would not have entered into the Transaction Documents.

 

9.3.         Specific Performance. Company acknowledges and agrees that Investor may suffer irreparable harm in the event that Company fails to perform any material provision of this Agreement or any of the other Transaction Documents in accordance with its specific terms. It is accordingly agreed that Investor shall be entitled to one or more injunctions to prevent or cure breaches of the provisions of this Agreement or such other Transaction Document and to enforce specifically the terms and provisions hereof or thereof, this being in addition to any other remedy to which the Investor may be entitled under the Transaction Documents, at law or in equity. Company specifically agrees that following an Event of Default (as defined in the Note) under the Note, Investor shall have the right to seek and receive injunctive relief from a court or an arbitrator prohibiting Company from issuing any of its common or preferred stock to any party unless the Note is being paid in full simultaneously with such issuance. Company specifically acknowledges that Investor’s right to obtain specific performance constitutes bargained for leverage and that the loss of such leverage would result in irreparable harm to Investor. For the avoidance of doubt, in the event Investor seeks to obtain an injunction from a court or an arbitrator against Company or specific performance of any provision of any Transaction Document, such action shall not be a waiver of any right of Investor under any Transaction Document, at law, or in equity, including without limitation its rights to arbitrate any Claim pursuant to the terms of the Transaction Documents, nor shall Investor’s pursuit of an injunction prevent Investor, under the doctrines of claim preclusion, issues preclusion, res judicata or other similar legal doctrines, from pursuing other Claims in the future in a separate arbitration.

 

 

 

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9.4.         Counterparts. Each Transaction Document may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. The parties hereto confirm that any electronic copy of another party’s executed counterpart of a Transaction Document (or such party’s signature page thereof) will be deemed to be an executed original thereof.

 

9.5.         Headings. The headings of this Agreement are for convenience of reference only and shall not form part of, or affect the interpretation of, this Agreement.

 

9.6.         Severability. In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform to such statute or rule of law. Any provision hereof which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision hereof.

 

9.7.         Entire Agreement. This Agreement, together with the other Transaction Documents, contains the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither Company nor Investor makes any representation, warranty, covenant or undertaking with respect to such matters. For the avoidance of doubt, all prior term sheets or other documents between Company and Investor, or any affiliate thereof, related to the transactions contemplated by the Transaction Documents (collectively, “Prior Agreements”), that may have been entered into between Company and Investor, or any affiliate thereof, are hereby null and void and deemed to be replaced in their entirety by the Transaction Documents. To the extent there is a conflict between any term set forth in any Prior Agreement and the term(s) of the Transaction Documents, the Transaction Documents shall govern.

 

9.8.         Amendments. No provision of this Agreement may be waived or amended other than by an instrument in writing signed by both parties hereto.

 

9.9.         Notices. Any notice required or permitted hereunder shall be given in writing (unless otherwise specified herein) and shall be deemed effectively given on the earliest of: (i) the date delivered, if delivered by personal delivery as against written receipt therefor or by email to an executive officer named below or such officer’s successor, or by facsimile (with successful transmission confirmation which is kept by sending party), (ii) the earlier of the date delivered or the third Trading Day after deposit, postage prepaid, in the United States Postal Service by certified mail, or (iii) the earlier of the date delivered or the third Trading Day after mailing by express courier, with delivery costs and fees prepaid, in each case, addressed to each of the other parties thereunto entitled at the following addresses (or at such other addresses as such party may designate by five (5) calendar days’ advance written notice similarly given to each of the other parties hereto):

 

If to Company:

 

SPI Energy Co., Ltd.

Attn: Xiaofeng Peng

Unit 15-16, 19/F, South Wing, Delta House

3 On Yiu Street, Shatin, Shek Mun

Hong Kong SAR, China

 

 

 

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If to Investor:

 

Iliad Research and Trading, L.P.
Attn: John Fife

303 East Wacker Drive, Suite 1040
Chicago, Illinois 60601

 

With a copy to (which copy shall not constitute notice):

 

Hansen Black Anderson Ashcraft PLLC
Attn: Jonathan Hansen

3051 West Maple Loop Drive, Suite 325
Lehi, Utah 84043

 

9.10.         Successors and Assigns. This Agreement or any of the severable rights and obligations inuring to the benefit of or to be performed by Investor hereunder may be assigned by Investor to a third party, including its affiliates, in whole or in part, without the need to obtain Company’s consent thereto. Company may not assign its rights or obligations under this Agreement or delegate its duties hereunder without the prior written consent of Investor.

 

9.11.         Survival. The representations and warranties of Company and the agreements and covenants set forth in this Agreement shall survive the Closing hereunder notwithstanding any due diligence investigation conducted by or on behalf of Investor. Company agrees to indemnify and hold harmless Investor and all its officers, directors, employees, attorneys, and agents for loss or damage arising as a result of or related to any breach or alleged breach by Company of any of its representations, warranties and covenants set forth in this Agreement or any of its covenants and obligations under this Agreement, including advancement of expenses as they are incurred.

 

9.12.         Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.

 

9.13.         Investor’s Rights and Remedies Cumulative. All rights, remedies, and powers conferred in this Agreement and the Transaction Documents are cumulative and not exclusive of any other rights or remedies, and shall be in addition to every other right, power, and remedy that Investor may have, whether specifically granted in this Agreement or any other Transaction Document, or existing at law, in equity, or by statute, and any and all such rights and remedies may be exercised from time to time and as often and in such order as Investor may deem expedient.

 

9.14.         Attorneys’ Fees and Cost of Collection. In the event of any arbitration or action at law or in equity to enforce or interpret the terms of this Agreement or any of the other Transaction Documents, the parties agree that the party who is awarded the most money (which, for the avoidance of doubt, shall be determined without regard to any statutory fines, penalties, fees, or other charges awarded to any party) shall be deemed the prevailing party for all purposes and shall therefore be entitled to an additional award of the full amount of the attorneys’ fees, deposition costs, and expenses paid by such prevailing party in connection with arbitration or litigation without reduction or apportionment based upon the individual claims or defenses giving rise to the fees and expenses. Nothing herein shall restrict or impair an arbitrator’s or a court’s power to award fees and expenses for frivolous or bad faith pleading. If (i) the Note is placed in the hands of an attorney for collection or enforcement prior to commencing arbitration or legal proceedings, or is collected or enforced through any arbitration or legal proceeding, or Investor otherwise takes action to collect amounts due under the Note or to enforce the provisions of the Note, or (ii) there occurs any bankruptcy, reorganization, receivership of Company or other proceedings affecting Company’s creditors’ rights and involving a claim under the Note; then Company shall pay the costs incurred by Investor for such collection, enforcement or action or in connection with such bankruptcy, reorganization, receivership or other proceeding, including, without limitation, attorneys’ fees, expenses, deposition costs, and disbursements.

 

 

 

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9.15.         Waiver. No waiver of any provision of this Agreement shall be effective unless it is in the form of a writing signed by the party granting the waiver. No waiver of any provision or consent to any prohibited action shall constitute a waiver of any other provision or consent to any other prohibited action, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or commit a party to provide a waiver or consent in the future except to the extent specifically set forth in writing.

 

9.16.         Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES ANY AND ALL RIGHTS SUCH PARTY MAY HAVE TO DEMAND THAT ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT, OR THE RELATIONSHIPS OF THE PARTIES HERETO BE TRIED BY JURY. THIS WAIVER EXTENDS TO ANY AND ALL RIGHTS TO DEMAND A TRIAL BY JURY ARISING UNDER COMMON LAW OR ANY APPLICABLE STATUTE, LAW, RULE OR REGULATION. FURTHER, EACH PARTY HERETO ACKNOWLEDGES THAT SUCH PARTY IS KNOWINGLY AND VOLUNTARILY WAIVING SUCH PARTY’S RIGHT TO DEMAND TRIAL BY JURY.

 

9.17.         Time is of the Essence. Time is expressly made of the essence with respect to each and every provision of this Agreement and the other Transaction Documents.

 

9.18.         Voluntary Agreement. Company has carefully read this Agreement and each of the other Transaction Documents and has asked any questions needed for Company to understand the terms, consequences and binding effect of this Agreement and each of the other Transaction Documents and fully understand them. Company has had the opportunity to seek the advice of an attorney of Company’s choosing, or has waived the right to do so, and is executing this Agreement and each of the other Transaction Documents voluntarily and without any duress or undue influence by Investor or anyone else.

 

[Remainder of page intentionally left blank; signature page follows]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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IN WITNESS WHEREOF, the undersigned Investor and Company have caused this Agreement to be duly executed as of the date first above written.

 

SUBSCRIPTION AMOUNT:  
   
Principal Amount of Note: $1,331,500.00
   
Purchase Price: $1,250,000.00

 

  INVESTOR:
   
  I LIAD RESEARCH AND TRADING, L.P.
   
  By: Iliad Management, LLC, its General Partner
   
  By: Fife Trading, Inc., its Manager
   
  By: /s/ John M. Fife
         John M. Fife, President
   
   
   
  COMPANY:
   
  SPI ENERGY CO., LTD.
   
   
  By: _______________________
  Printed Name: _______________________
  Title: Chairman & CEO
   

 

 

 

 

 

 

 

 

[Signature Page to Securities Purchase Agreement]

 

 

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ATTACHED EXHIBITS:

 

Exhibit A Note
Exhibit B Irrevocable Transfer Agent Instructions
Exhibit C Secretary’s Certificate
Exhibit D Share Issuance Resolution
Exhibit E Arbitration Provisions

 

 

 

 

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Exhibit A

CONVERTIBLE PROMISSORY NOTE

 

Effective Date: May 28, 2019 U.S. $1,331,500.00

 

FOR VALUE RECEIVED, SPI ENERGY CO., LTD., a Cayman Islands corporation (“Borrower”), promises to pay to ILIAD RESEARCH AND TRADING, L.P., a Utah limited partnership, or its successors or assigns (“Lender”), $1,331,500.00 and any interest, fees, charges, and late fees accrued hereunder on the date that is twelve (12) months after the Purchase Price Date (the “Maturity Date”) in accordance with the terms set forth herein and to pay interest on the Outstanding Balance at the rate of ten percent (10%) per annum from the Purchase Price Date until the same is paid in full. All interest calculations hereunder shall be computed on the basis of a 360-day year comprised of twelve (12) thirty (30) day months, shall compound daily and shall be payable in accordance with the terms of this Note. This Convertible Promissory Note (this “Note”) is issued and made effective as of May 28, 2019 (the “Effective Date”). This Note is issued pursuant to that certain Securities Purchase Agreement dated May 28, 2019, as the same may be amended from time to time, by and between Borrower and Lender (the “Purchase Agreement”). Certain capitalized terms used herein are defined in Attachment 1 attached hereto and incorporated herein by this reference.

 

This Note carries an OID of $62,500.00. In addition, Borrower agrees to pay $19,000.00 to Lender to cover Lender’s legal fees, accounting costs, due diligence, monitoring and other transaction costs incurred in connection with the purchase and sale of this Note (the “Transaction Expense Amount”), all of which amount is fully earned and included in the initial principal balance of this Note. The purchase price for this Note shall be $1,250,000.00 (the “Purchase Price”), computed as follows: $1,331,500.00 original principal balance, less the OID, less the Transaction Expense Amount. The Purchase Price shall be payable by Lender by wire transfer of immediately available funds.

 

1.       Payment; Prepayment.

 

1.1.       Payment. All payments owing hereunder shall be in lawful money of the United States of America or Conversion Shares (as defined below), as provided for herein, and delivered to Lender at the address or bank account furnished to Borrower for that purpose. All payments shall be applied first to (a) costs of collection, if any, then to (b) fees and charges, if any, then to (c) accrued and unpaid interest, and thereafter, to (d) principal.

 

1.2.       Prepayment. Notwithstanding the foregoing, Borrower shall have the right to prepay all or any portion of the Outstanding Balance (less such portion of the Outstanding Balance for which Borrower has received a Lender Conversion Notice (as defined below) or a Redemption Notice (as defined below) from Lender where the applicable Conversion Shares have not yet been delivered). If Borrower exercises its right to prepay this Note, Borrower shall make payment to Lender of an amount in cash equal to 115% multiplied by the portion of the Outstanding Balance Borrower elects to repay.

 

2.       Security. This Note is unsecured.

 

3.       Lender Optional Conversion.

 

3.1.       Lender Conversions. Lender has the right at any time after the Purchase Price Date until the Outstanding Balance has been paid in full, at its election, to convert (“Lender Conversion”) all or any portion of the Outstanding Balance into shares (each instance of conversion is referred to herein as a “Lender Conversion Shares”) of fully paid and non-assessable Ordinary Shares, $0.0001 par value per share (“Ordinary Shares”), of Borrower as per the following conversion formula: the number of Lender Conversion Shares equals the amount being converted (the “Conversion Amount”) divided by the Lender Conversion Price (as defined below). Conversion notices in the form attached hereto as Exhibit A (each, a “Lender Conversion Notice”) may be effectively delivered to Borrower by any method set forth in the “Notices” Section of the Purchase Agreement, and all Lender Conversions shall be cashless and not require further payment from Lender. Borrower shall deliver the Lender Conversion Shares from any Lender Conversion to Lender in accordance with Section 9 below.

 

 

 

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3.2.       Lender Conversion Price. Subject to adjustment as set forth in this Note, the price at which Lender has the right to convert all or any portion of the Outstanding Balance into Ordinary Shares is $10.00 per share (the “Lender Conversion Price”).

 

4.       Defaults and Remedies.

 

4.1.       Defaults. The following are events of default under this Note (each, an “Event of Default”): (a) Borrower fails to pay any principal, interest, fees, charges, or any other amount when due and payable hereunder; (b) Borrower fails to deliver any Lender Conversion Shares in accordance with the terms hereof; (c) Borrower fails to deliver any Redemption Conversion Shares (as defined below) in accordance with the terms hereof; (d) a receiver, trustee or other similar official shall be appointed over Borrower or a material part of its assets and such appointment shall remain uncontested for twenty (20) days or shall not be dismissed or discharged within sixty (60) days; (e) Borrower becomes insolvent or generally fails to pay, or admits in writing its inability to pay, its debts as they become due, subject to applicable grace periods, if any; (f) Borrower makes a general assignment for the benefit of creditors; (g) Borrower files a petition for relief under any bankruptcy, insolvency or similar law (domestic or foreign); (h) an involuntary bankruptcy proceeding is commenced or filed against Borrower; (i) Borrower or any pledgor, trustor, or guarantor of this Note defaults or otherwise fails to materially observe or materially perform any covenant, obligation, condition or agreement of Borrower or such pledgor, trustor, or guarantor contained herein or in any other Transaction Document (as defined in the Purchase Agreement), other than those specifically set forth in this Section 4.1 and Section 4 of the Purchase Agreement; (j) any representation, warranty or other statement made or furnished by or on behalf of Borrower or any pledgor, trustor, or guarantor of this Note to Lender herein, in any Transaction Document, or otherwise in connection with the issuance of this Note is false, incorrect, incomplete or misleading in any material respect when made or furnished; (k) the occurrence of a Fundamental Transaction without Lender’s prior written consent; (l) Borrower fails to maintain the Share Reserve (as defined in the Purchase Agreement); (m) Borrower effectuates a reverse split of its Ordinary Shares without twenty (20) Trading Days prior written notice to Lender; (n) any money judgment, writ or similar process is entered or filed against Borrower or any subsidiary of Borrower or any of its property or other assets for more than $100,000.00, and shall remain unvacated, unbonded or unstayed for a period of twenty (20) calendar days unless otherwise consented to by Lender; (o) Borrower fails to be DWAC Eligible; (p) Borrower fails to observe or perform any covenant set forth in Section 4 of the Purchase Agreement; or (q) Borrower, any affiliate of Borrower, or any pledgor, trustor, or guarantor of this Note breaches any covenant or other term or condition contained in any Other Agreements.

 

4.2.       Remedies. At any time and from time to time after Lender becomes aware of the occurrence of any Event of Default, Lender may accelerate this Note by written notice to Borrower, with the Outstanding Balance becoming immediately due and payable in cash at the Mandatory Default Amount. Notwithstanding the foregoing, at any time following the occurrence of any Event of Default, Lender may, at its option, elect to increase the Outstanding Balance by applying the Default Effect (subject to the limitation set forth below) via written notice to Borrower without accelerating the Outstanding Balance, in which event the Outstanding Balance shall be increased as of the date of the occurrence of the applicable Event of Default pursuant to the Default Effect, but the Outstanding Balance shall not be immediately due and payable unless so declared by Lender (for the avoidance of doubt, if Lender elects to apply the Default Effect pursuant to this sentence, it shall reserve the right to declare the Outstanding Balance immediately due and payable at any time and no such election by Lender shall be deemed to be a waiver of its right to declare the Outstanding Balance immediately due and payable as set forth herein unless otherwise agreed to by Lender in writing). Notwithstanding the foregoing, upon the occurrence of any Event of Default described in clauses (d), (e), (f), (g) or (h) of Section 4.1, the Outstanding Balance as of the date of acceleration shall become immediately and automatically due and payable in cash at the Mandatory Default Amount, without any written notice required by Lender. At any time following the occurrence of any Event of Default, upon written notice given by Lender to Borrower, interest shall accrue on the Outstanding Balance beginning on the date the applicable Event of Default occurred at an interest rate equal to the lesser of fifteen percent (15%) per annum or the maximum rate permitted under applicable law (“Default Interest”). For the avoidance of doubt, Lender may continue making Lender Conversions and Redemption Conversions (as defined below) at any time following an Event of Default until such time as the Outstanding Balance is paid in full. In connection with acceleration described herein, Lender need not provide, and Borrower hereby waives, any presentment, demand, protest or other notice of any kind, and Lender may immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable law. Such acceleration may be rescinded and annulled by Lender at any time prior to payment hereunder and Lender shall have all rights as a holder of the Note until such time, if any, as Lender receives full payment pursuant to this Section 4.2. No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon. Nothing herein shall limit Lender’s right to pursue any other remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to Borrower’s failure to timely deliver Conversion Shares upon Conversion of the Note as required pursuant to the terms hereof.

 

 

 

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5.       Unconditional Obligation; No Offset. Borrower acknowledges that this Note is an unconditional, valid, binding and enforceable obligation of Borrower not subject to offset, deduction or counterclaim of any kind. Borrower hereby waives any rights of offset it now has or may have hereafter against Lender, its successors and assigns, and agrees to make the payments or Conversions called for herein in accordance with the terms of this Note.

 

6.       Waiver. No waiver of any provision of this Note shall be effective unless it is in the form of a writing signed by the party granting the waiver. No waiver of any provision or consent to any prohibited action shall constitute a waiver of any other provision or consent to any other prohibited action, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or commit a party to provide a waiver or consent in the future except to the extent specifically set forth in writing.

 

7.       Rights Upon Issuance of Securities.

 

7.1.       Subsequent Equity Sales.

 

(a)       Except with respect to Excluded Securities, if Borrower or any subsidiary thereof, as applicable, at any time this Note is outstanding, shall sell, issue or grant any Ordinary Shares, option to purchase Ordinary Shares, right to reprice, preferred shares convertible into Ordinary Shares, or debt, warrants, options or other instruments or securities to Lender or any third party which are convertible into or exercisable or exchangeable for Ordinary Shares (collectively, the “Equity Securities”), including without limitation any Deemed Issuance, at an effective price per share less than the then effective Lender Conversion Price (such issuance is referred to herein as a “Dilutive Issuance”), then, the Lender Conversion Price shall be automatically reduced and only reduced to equal such lower effective price per share. If the holder of any Equity Securities so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options, or rights per share which are issued in connection with such Dilutive Issuance, be entitled to receive Ordinary Shares at an effective price per share that is less than the Lender Conversion Price, such issuance shall be deemed to have occurred for less than the Lender Conversion Price on the date of such Dilutive Issuance, and the then effective Lender Conversion Price shall be reduced and only reduced to equal such lower effective price per share. Such adjustments described above to the Lender Conversion Price shall be permanent (subject to additional adjustments under this section), and shall be made whenever such Equity Securities are issued. Borrower shall notify Lender, in writing, no later than the Trading Day following the issuance of any Equity Securities subject to this Section 7.1, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price, or other pricing terms (such notice, the “Dilutive Issuance Notice”). For purposes of clarity, whether or not Borrower provides a Dilutive Issuance Notice pursuant to this Section 7.1, upon the occurrence of any Dilutive Issuance, on the date of such Dilutive Issuance the Lender Conversion Price shall be lowered to equal the applicable effective price per share regardless of whether Borrower or Lender accurately refers to such lower effective price per share in any subsequent Installment Notice or Lender Conversion Notice. Notwithstanding anything in this Section 7 to the contrary, in no event shall the Lender Conversion Price be reduced below $3.00 pursuant to any Dilutive Issuance.

 

7.2.       Adjustment of Lender Conversion Price upon Subdivision or Combination of Ordinary Shares. Without limiting any provision hereof, if Borrower at any time on or after the Effective Date subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its outstanding Ordinary Shares into a greater number of shares, the Lender Conversion Price in effect immediately prior to such subdivision will be proportionately reduced. Without limiting any provision hereof, if Borrower at any time on or after the Effective Date combines (by combination, reverse stock split or otherwise) one or more classes of its outstanding Ordinary Shares into a smaller number of shares, the Lender Conversion Price in effect immediately prior to such combination will be proportionately increased. Any adjustment pursuant to this Section 7.2 shall become effective immediately after the effective date of such subdivision or combination. If any event requiring an adjustment under this Section 7.2 occurs during the period that a Redemption Conversion Price is calculated hereunder, then the calculation of such Redemption Conversion Price shall be adjusted appropriately to reflect such event.

 

 

 

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7.3.       Other Events. In the event that Borrower (or any subsidiary) shall take any action to which the provisions hereof are not strictly applicable, or, if applicable, would not operate to protect Lender from dilution or if any event occurs of the type contemplated by the provisions of this Section 7 but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then Borrower’s board of directors shall in good faith determine and implement an appropriate adjustment in the Lender Conversion Price so as to protect the rights of Lender, provided that no such adjustment pursuant to this Section 7.3 will increase the Lender Conversion Price as otherwise determined pursuant to this Section 7, provided further that if Lender does not accept such adjustments as appropriately protecting its interests hereunder against such dilution, then Borrower’s board of directors and Lender shall agree, in good faith, upon an independent investment bank of nationally recognized standing to make such appropriate adjustments, whose determination shall be final and binding and whose fees and expenses shall be borne by Borrower.

 

8.       Borrower Redemptions.

 

8.1.       Redemption Conversion Price. Subject to the adjustments set forth herein, the conversion price for each Redemption Conversion (the “Redemption Conversion Price”) shall be the lesser of (a) the Lender Conversion Price, and (b) the Market Price.

 

8.2.       Redemption Conversions. Beginning on the date that is six (6) months from the Purchase Price Date, Lender shall have the right, exercisable at any time in its sole and absolute discretion, to redeem any portion of the Note up to $200,000.00 per calendar month (such amount, the “Redemption Amount”) by providing Borrower with a notice substantially in the form attached hereto as Exhibit B (each, a “Redemption Notice”, and each date on which Lender delivers a Redemption Notice, a “Redemption Date”). For the avoidance of doubt, Lender may submit to Borrower one (1) or more Redemption Notices in any given calendar month so long as the aggregate amount redeemed in such calendar month does not exceed $200,000.00. At the election of the Borrower, payments of each Redemption Amount may be made (a) in cash, or (b) by converting such Redemption Amount into Ordinary Shares (“Redemption Conversion Shares”, and together with the Lender Conversion Shares, the “Conversion Shares”) in accordance with this Section 8.2 (each, a “Redemption Conversion”) per the following formula: the number of Redemption Conversion Shares equals the portion of the applicable Redemption Amount being converted divided by the Redemption Conversion Price, or (c) by any combination of the foregoing, so long as the cash is delivered to Lender on the third (3rd) Trading Day immediately following the applicable Redemption Date and the Redemption Conversion Shares are delivered to Lender on or before the applicable Delivery Date (as defined below). Notwithstanding the foregoing, Borrower will not be entitled to elect a Redemption Conversion with respect to any portion of any applicable Redemption Amount and shall be required to pay the Redemption Amount in cash, if on the applicable Redemption Date there is an Equity Conditions Failure, and such failure is not waived in writing by Lender. Notwithstanding that failure to repay this Note in full by the Maturity Date is an Event of Default, the Redemption Dates shall continue after the Maturity Date pursuant to this Section 8.2 until the Outstanding Balance is repaid in full.

 

8.3.       Allocation of Redemption Amounts. Following its receipt of a Redemption Notice, Borrower may either ratify Lender’s proposed allocation in the applicable Redemption Notice or elect to change the allocation by written notice to Lender by email or fax within seventy-two (72) hours of its receipt of such Redemption Notice, so long as the sum of the cash payments and the amount of Redemption Conversions equal the applicable Redemption Amount. If Borrower fails to notify Lender of its election to change the allocation prior to the deadline set forth in the previous sentence, it shall be deemed to have ratified and accepted the allocation set forth in the applicable Redemption Notice prepared by Lender. Borrower acknowledges and agrees that the amounts and calculations set forth thereon are subject to correction or adjustment because of error, mistake, or any adjustment resulting from an Event of Default or other adjustment permitted under the Transaction Documents (an “Adjustment”). Furthermore, no error or mistake in the preparation of such notices, or failure to apply any Adjustment that could have been applied prior to the preparation of a Redemption Notice may be deemed a waiver of Lender’s right to enforce the terms of any Note, even if such error, mistake, or failure to include an Adjustment arises from Lender’s own calculation. Borrower shall deliver the Redemption Conversion Shares from any Redemption Conversion to Lender in accordance with Section 9 below on or before each applicable Delivery Date.

 

 

 

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9.       Method of Conversion Share Delivery. On or before the close of business on the fifth (5th) Trading Day following each Redemption Date or the fifth (5th) Trading Day following the date of delivery of a Lender Conversion Notice, as applicable (the “Delivery Date”), Borrower shall, provided it is DWAC Eligible at such time and such Conversion Shares are eligible for delivery via DWAC, deliver or cause its transfer agent to deliver the applicable Conversion Shares electronically via DWAC to the account designated by Lender in the applicable Lender Conversion Notice or Redemption Notice. If Borrower is not DWAC Eligible or such Conversion Shares are not eligible for delivery via DWAC, it shall deliver to Lender or its broker (as designated in the Lender Conversion Notice or Redemption Notice), via reputable overnight courier, a certificate representing the number of Ordinary Shares equal to the number of Conversion Shares to which Lender shall be entitled, registered in the name of Lender or its designee. For the avoidance of doubt, Borrower has not met its obligation to deliver Conversion Shares by the Delivery Date unless Lender or its broker, as applicable, has actually received the certificate representing the applicable Conversion Shares no later than the close of business on the relevant Delivery Date pursuant to the terms set forth above. Moreover, and notwithstanding anything to the contrary herein or in any other Transaction Document, in the event Borrower or its transfer agent refuses to deliver any Conversion Shares without a restrictive securities legend to Lender on grounds that such issuance is in violation of Rule 144 under the Securities Act of 1933, as amended (“Rule 144”), Borrower shall deliver or cause its transfer agent to deliver the applicable Conversion Shares to Lender with a restricted securities legend, but otherwise in accordance with the provisions of this Section 9. In conjunction therewith, Borrower will also deliver to Lender a written explanation from its counsel or its transfer agent’s counsel opining as to why the issuance of the applicable Conversion Shares violates Rule 144.

 

10.       Conversion Delays. If Borrower fails to deliver Conversion Shares in accordance with the timeframe stated in Section 9, Lender may at any time prior to receiving the applicable Conversion Shares rescind in whole or in part such Conversion, with a corresponding increase to the Outstanding Balance (any returned amount will tack back to the Purchase Price Date for purposes of determining the holding period under Rule 144). In addition, for each Lender Conversion, in the event that Lender Conversion Shares are not delivered by the fifth (5th) Trading Day (inclusive of the day of the Conversion), a late fee equal to 2% of the applicable Conversion Share Value rounded to the nearest multiple of $100.00 but with a floor of $500.00 per day (but in any event the cumulative amount of such late fees for each Conversion shall not exceed 200% of the applicable Conversion Share Value) will be assessed for each day after the fifth (5th) Trading Day (inclusive of the day of the Conversion) until Lender Conversion Share delivery is made; and such late fee will be added to the Outstanding Balance (such fees, the “Conversion Delay Late Fees”).

 

11.       Restriction on Equity Sales. If at any time after the date that is six (6) months from the Purchase Price Date, Borrower is unable to issue Ordinary Shares to Lender as result of any lock-up or other agreement or restriction prohibiting the issuance of Ordinary Shares for a certain period of time, then the Outstanding Balance will automatically be increased by three percent (3%) for each thirty (30) day period that Borrower is prohibited from issuing Ordinary Shares (which increase shall be pro-rated for any partial period). For the avoidance of doubt, such increase to the Outstanding Balance shall be in addition to all other rights and remedies available to Lender under this Note and the other Transaction Documents and shall not be in lieu of, nor deemed to be a waiver of any other rights or remedies available to Lender under this Note or any of the other Transaction Documents, including without limitation calling an Event of Default if Borrower fails to deliver Conversion Shares in accordance with the terms of this Note.

 

12.       Ownership Limitation. Notwithstanding anything to the contrary contained in this Note or the other Transaction Documents, Borrower shall not effect any conversion of this Note to the extent that after giving effect to such conversion would cause Lender (together with its affiliates) to beneficially own a number of shares exceeding 4.99% of the number of Ordinary Shares outstanding on such date (including for such purpose the Ordinary Shares issuable upon such issuance) (the “Maximum Percentage”). For purposes of this section, beneficial ownership of Ordinary Shares will be determined pursuant to Section 13(d) of the 1934 Act. Notwithstanding the forgoing, the term “4.99%” above shall be replaced with “9.99%” at such time as the Market Capitalization is less than $10,000,000.00. Notwithstanding any other provision contained herein, if the term “4.99%” is replaced with “9.99%” pursuant to the preceding sentence, such increase to “9.99%” shall remain at 9.99% until increased, decreased or waived by Lender as set forth below. By written notice to Borrower, Lender may increase, decrease or waive the Maximum Percentage as to itself but any such waiver will not be effective until the 61st day after delivery thereof. The foregoing 61-day notice requirement is enforceable, unconditional and non-waivable and shall apply to all affiliates and assigns of Lender.

 

 

 

  15  

 

 

13.       Issuance Cap. Notwithstanding anything to the contrary contained in this Note or the other Transaction Documents, Borrower and Lender agree that the total cumulative number of shares of Common Stock issued to Lender hereunder together with all other Transaction Documents may not exceed the requirements of Nasdaq Listing Rule 5635(d) (“Nasdaq 19.99% Cap”), except that such limitation will not apply following Approval (defined below). If the number of shares of Common Stock issued to Investor reaches the Nasdaq 19.99% Cap, so as not to violate the 20% limit established in Listing Rule 5635(d), Borrower will use reasonable commercial efforts to: (a) obtain stockholder approval of the Note and the issuance of additional Conversion Shares, if necessary, in accordance with the requirements of Nasdaq Listing Rule 5635(d), or (b) obtain Nasdaq approval of the Note and the issuance of additional Conversion Shares (the “Approval”). In the event Borrower is unable to deliver any additional Conversion Shares to Lender as a result of the Nasdaq 19.99% Cap, then until such time as Borrower is able to obtain the Approval, all Redemption Amounts must be paid in cash.

 

14.       Opinion of Counsel. In the event that an opinion of counsel is needed for any matter related to this Note, Lender has the right to have any such opinion provided by its counsel.

 

15.       Governing Law; Venue. This Note shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Note shall be governed by, the internal laws of the State of Utah, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Utah or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Utah. The provisions set forth in the Purchase Agreement to determine the proper venue for any disputes are incorporated herein by this reference.

 

16.       Arbitration of Disputes. By its issuance or acceptance of this Note, each party agrees to be bound by the Arbitration Provisions (as defined in the Purchase Agreement) set forth as an exhibit to the Purchase Agreement.

 

17.       Cancellation. After repayment or conversion of the entire Outstanding Balance, this Note shall be deemed paid in full, shall automatically be deemed canceled, and shall not be reissued.

 

18.       Amendments. The prior written consent of both parties hereto shall be required for any change or amendment to this Note.

 

19.       Assignments. Borrower may not assign this Note without the prior written consent of Lender. This Note and any Ordinary Shares issued upon conversion of this Note may be offered, sold, assigned or transferred by Lender without the consent of Borrower.

 

20.       Notices. Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be given in accordance with the subsection of the Purchase Agreement titled “Notices.”

 

21.       Liquidated Damages. Lender and Borrower agree that in the event Borrower fails to comply with any of the terms or provisions of this Note, Lender’s damages would be uncertain and difficult (if not impossible) to accurately estimate because of the parties’ inability to predict future interest rates, future share prices, future trading volumes and other relevant factors. Accordingly, Lender and Borrower agree that any fees, balance adjustments, Default Interest or other charges assessed under this Note are not penalties but instead are intended by the parties to be, and shall be deemed, liquidated damages (under Lender’s and Borrower’s expectations that any such liquidated damages will tack back to the Purchase Price Date for purposes of determining the holding period under Rule 144).

 

22.       Severability. If any part of this Note is construed to be in violation of any law, such part shall be modified to achieve the objective of Borrower and Lender to the fullest extent permitted by law and the balance of this Note shall remain in full force and effect.

 

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IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed as of the Effective

 

Date:

 

  BORROWER:
   
  SPI ENERGY CO., LTD.
   
   
  By: __________________
  Name: ___________________
  Title: Chairman & CEO
   
   

ACKNOWLEDGED, ACCEPTED AND AGREED:

 

LENDER:

 

ILIAD RESEARCH AND TRADING, L.P.

 

By: Iliad Management, LLC, its General Partner

 

By: Fife Trading, Inc., its Manager

 

By: /s/ John M. Fife

       John M. Fife, President

 

 

 

 

 

 

 

 

 

 

 

[Signature Page to Convertible Promissory Note]

 

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ATTACHMENT 1
DEFINITIONS

 

For purposes of this Note, the following terms shall have the following meanings:

 

A1                Approved Stock Plan” means any stock option plan in effect as of the Purchase Price Date which has been approved by the board of directors of Borrower, pursuant to which Borrower’s securities may be issued to any employee, officer or director for services provided to Borrower.

 

A2                Closing Bid Price” and “Closing Trade Price” means the last closing bid price and last closing trade price, respectively, for the Ordinary Shares on its principal market, as reported by Bloomberg, or, if its principal market begins to operate on an extended hours basis and does not designate the closing bid price or the closing trade price (as the case may be) then the last bid price or last trade price, respectively, of the Ordinary Shares prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if its principal market is not the principal securities exchange or trading market for the Ordinary Shares, the last closing bid price or last trade price, respectively, of the Ordinary Shares on the principal securities exchange or trading market where the Ordinary Shares is listed or traded as reported by Bloomberg, or if the foregoing do not apply, the last closing bid price or last trade price, respectively, of the Ordinary Shares in the over-the-counter market on the electronic bulletin board for the Ordinary Shares as reported by Bloomberg, or, if no closing bid price or last trade price, respectively, is reported for the Ordinary Shares by Bloomberg, the average of the bid prices, or the ask prices, respectively, of any market makers for the Ordinary Shares as reported by OTC Markets Group, Inc., and any successor thereto. If the Closing Bid Price or the Closing Trade Price cannot be calculated for the Ordinary Shares on a particular date on any of the foregoing bases, the Closing Bid Price or the Closing Trade Price (as the case may be) of the Ordinary Shares on such date shall be the fair market value as mutually determined by Lender and Borrower. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during such period.

 

A3                Conversion” means a Lender Conversion under Section 3 or a Redemption Conversion under Section 8.

 

A4                Conversion Factor” means 80%.

 

A5                Conversion Share Value” means the product of the number of Lender Conversion Shares deliverable pursuant to any Lender Conversion Notice multiplied by the Closing Trade Price of the Ordinary Shares on the Delivery Date for such Lender Conversion.

 

A6                Deemed Issuance” means an issuance of Ordinary Shares that shall be deemed to have occurred on the latest possible permitted date pursuant to the terms hereof in the event Borrower fails to deliver Conversion Shares as and when required pursuant to Section 9 of this Note. For the avoidance of doubt, if Borrower has elected or is deemed under Section 8.3 to have elected to pay a Redemption Amount in Redemption Conversion Shares and fails to deliver such Redemption Conversion Shares, such failure shall be considered a Deemed Issuance hereunder even if an Equity Conditions Failure exists at that time or other relevant date of determination.

 

A7                Default Effect” means multiplying the Outstanding Balance as of the date the applicable Event of Default occurred by (a) fifteen percent (15%) for each occurrence of any Major Default, or (b) five percent (5%) for each occurrence of any Minor Default, and then adding the resulting product to the Outstanding Balance as of the date the applicable Event of Default occurred, with the sum of the foregoing then becoming the Outstanding Balance under this Note as of the date the applicable Event of Default occurred; provided that the Default Effect may only be applied three (3) times hereunder with respect to Major Defaults and three (3) times hereunder with respect to Minor Defaults; and provided further that the Default Effect shall not apply to any Event of Default pursuant to Section 4.1(b) hereof.

 

 

 

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A8                DTC” means the Depository Trust Company or any successor thereto.

 

A9                DTC/FAST Program” means the DTC’s Fast Automated Securities Transfer program.

 

A10             DWAC” means the DTC’s Deposit/Withdrawal at Custodian system.

 

A11             DWAC Eligible” means that (a) Borrower’s Ordinary Shares is eligible at DTC for full services pursuant to DTC’s operational arrangements, including without limitation transfer through DTC’s DWAC system; (b) Borrower has been approved (without revocation) by DTC’s underwriting department; (c) Borrower’s transfer agent is approved as an agent in the DTC/FAST Program; (d) the Conversion Shares are otherwise eligible for delivery via DWAC; and (e) Borrower’s transfer agent does not have a policy prohibiting or limiting delivery of the Conversion Shares via DWAC.

 

A12             Equity Conditions Failure” means that any of the following conditions has not been satisfied on any given Redemption Date: (a) with respect to the applicable date of determination all of the Conversion Shares would be freely tradable under Rule 144 or without the need for registration under any applicable federal or state securities laws (in each case, disregarding any limitation on conversion of this Note); (b) no Event of Default shall have occurred or be continuing hereunder; (c) the average and median daily dollar volume of the Ordinary Shares on its principal market for the previous twenty (20) and two hundred (200) Trading Days shall be greater than $75,000.00; and (d) the Market Capitalization is greater than or equal to $30,000,000.00.

 

A13             Excluded Securities” means any shares of Common Stock or options to purchase Common Stock issued or issuable: (a) in connection with any Approved Stock Plan; provided that the option term, exercise price or similar provisions of any securities outstanding pursuant to such Approved Stock Plan are not amended, modified or changed on or after the Purchase Price Date; or (b) other than pursuant to a convertible debt instrument.

 

A14             Fundamental Transaction” means that (a) (i) Borrower or any of its subsidiaries shall, directly or indirectly, in one or more related transactions, consolidate or merge with or into (whether or not Borrower or any of its subsidiaries is the surviving corporation) any other person or entity, or (ii) Borrower or any of its subsidiaries shall, directly or indirectly, in one or more related transactions, sell, lease, license, assign, transfer, convey or otherwise dispose of all or substantially all of its respective properties or assets to any other person or entity, or (iii) Borrower or any of its subsidiaries shall, directly or indirectly, in one or more related transactions, allow any other person or entity to make a purchase, tender or exchange offer that is accepted by the holders of more than 50% of the outstanding shares of voting stock of Borrower (not including any shares of voting stock of Borrower held by the person or persons making or party to, or associated or affiliated with the persons or entities making or party to, such purchase, tender or exchange offer), or (iv) Borrower or any of its subsidiaries shall, directly or indirectly, in one or more related transactions, consummate a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with any other person or entity whereby such other person or entity acquires more than 50% of the outstanding shares of voting stock of Borrower (not including any shares of voting stock of Borrower held by the other persons or entities making or party to, or associated or affiliated with the other persons or entities making or party to, such stock or share purchase agreement or other business combination), or (v) Borrower or any of its subsidiaries shall, directly or indirectly, in one or more related transactions, reorganize, recapitalize or reclassify the Ordinary Shares, other than an increase in the number of authorized shares of Borrower’s Ordinary Shares, or (b) any “person” or “group” (as these terms are used for purposes of Sections 13(d) and 14(d) of the 1934 Act and the rules and regulations promulgated thereunder) is or shall become the “beneficial owner” (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of 50% of the aggregate ordinary voting power represented by issued and outstanding voting stock of Borrower.

 

 

 

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A15             Major Default” means any Event of Default occurring under Sections 4.1(a), 4.1(c), 4.1(l), or 4.1(p).

 

A16             Mandatory Default Amount” means the Outstanding Balance following the application of the Default Effect.

 

A17             Market Capitalization” means a number equal to (a) the average VWAP of the Ordinary Shares for the immediately preceding fifteen (15) Trading Days, multiplied by (b) the aggregate number of outstanding Ordinary Shares as reported on Borrower’s most recently filed Form 10-Q or Form 10-K.

 

A18             Market Price” means the Conversion Factor multiplied by the lowest Closing Trade Price during the ten (10) Trading Days immediately preceding the applicable measurement date.

 

A19             Minor Default” means any Event of Default that is not a Major Default.

 

A20             OID” means an original issue discount.

 

A21             Other Agreements” means, collectively, (a) all existing and future agreements and instruments between, among or by Borrower (or an affiliate), on the one hand, and Lender (or an affiliate), on the other hand, and (b) any financing agreement or a material agreement that affects Borrower’s ongoing business operations.

 

A22             Outstanding Balance” means as of any date of determination, the Purchase Price, as reduced or increased, as the case may be, pursuant to the terms hereof for payment, Conversion, offset, or otherwise, plus the OID, the Transaction Expense Amount, accrued but unpaid interest, collection and enforcements costs (including attorneys’ fees) incurred by Lender, transfer, stamp, issuance and similar taxes and fees related to Conversions, and any other fees or charges (including without limitation Conversion Delay Late Fees) incurred under this Note.

 

A23             Purchase Price Date” means the date the Purchase Price is delivered by Lender to Borrower.

 

A24             Trading Day” means any day on which the New York Stock Exchange (or such other principal market for the Ordinary Shares) is open for trading.

 

A25             VWAP” means the volume weighted average price of the Ordinary Shares on the principal market for a particular Trading Day or set of Trading Days, as the case may be, as reported by Bloomberg.

 

 

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EXHIBIT A

 

Iliad Research and Trading, L.P.
303 East Wacker Drive, Suite 1040
Chicago, Illinois 60601

 

SPI Energy Co., Ltd.

Attn: Xiaofeng Peng

Unit 15-16, 19/F, South Wing, Delta House

3 On Yiu Street, Shatin, Shek Mun

Hong Kong SAR, China

Date:____________________

 

LENDER CONVERSION NOTICE

 

The above-captioned Lender hereby gives notice to SPI Energy Co., Ltd., a Cayman Islands corporation (the “Borrower”), pursuant to that certain Convertible Promissory Note made by Borrower in favor of Lender on May 28, 2019 (the “Note”), that Lender elects to convert the portion of the Note balance set forth below into fully paid and non-assessable Ordinary Shares of Borrower as of the date of conversion specified below. Said conversion shall be based on the Lender Conversion Price set forth below. In the event of a conflict between this Lender Conversion Notice and the Note, the Note shall govern, or, in the alternative, at the election of Lender in its sole discretion, Lender may provide a new form of Lender Conversion Notice to conform to the Note. Capitalized terms used in this notice without definition shall have the meanings given to them in the Note.

 

A.        Date of Conversion:

B.        Lender Conversion #: ____________

C.        Conversion Amount: _____________

D.        Lender Conversion Price: _____________

E.        Lender Conversion Shares: ______________ (C divided by D)

F.         Remaining Outstanding Balance of Note: __________ *

 

* Subject to adjustments for corrections, defaults, interest and other adjustments permitted by the Transaction Documents (as defined in the Purchase Agreement), the terms of which shall control in the event of any dispute between the terms of this Lender Conversion Notice and such Transaction Documents.

 

Please transfer the Lender Conversion Shares electronically (via DWAC) to the following account:

Broker: Address: _____________________
DTC#:   _____________________
Account #:   _____________________
Account Name:    

 

To the extent the Lender Conversion Shares are not able to be delivered to Lender electronically via the DWAC system, deliver all such certificated shares to Lender via reputable overnight courier after receipt of this Lender Conversion Notice (by facsimile transmission or otherwise) to:

 

_________________________________

_________________________________

_________________________________

 

 

[Signature Page Follows]

 

 

 

 

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Sincerely,

 

Lender:

 

ILIAD RESEARCH AND TRADING, L.P.

 

By: Iliad Management, LLC, its General Partner

 

By: Fife Trading, Inc., its Manager

 

By: /s/ John M. Fife

       John M. Fife, President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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EXHIBIT B

 

Iliad Research and Trading, L.P.
303 East Wacker Drive, Suite 1040
Chicago, Illinois 60601

 

SPI Energy Co., Ltd.

Attn: Xiaofeng Peng

Unit 15-16, 19/F, South Wing, Delta House

3 On Yiu Street, Shatin, Shek Mun

Hong Kong SAR, China

Date:____________________

 

REDEMPTION NOTICE

 

The above-captioned Lender hereby gives notice to SPI Energy Co., Ltd., a Cayman Islands corporation (the “Borrower”), pursuant to that certain Convertible Promissory Note made by Borrower in favor of Lender on May 28, 2019 (the “Note”), that Lender elects to redeem a portion of the Note in Redemption Conversion Shares or in cash as set forth below. In the event of a conflict between this Redemption Notice and the Note, the Note shall govern, or, in the alternative, at the election of Lender in its sole discretion, Lender may provide a new form of Redemption Notice to conform to the Note. Capitalized terms used in this notice without definition shall have the meanings given to them in the Note.

 

REDEMPTION INFORMATION

A. Redemption Date:___________, 201_
B. Redemption Amount: _____________
C. Portion of Redemption Amount to be Paid in Cash:
D. Portion of Redemption Amount to be Converted into Ordinary Shares:_____________ (B minus C)
E. Redemption Conversion Price: ______________(lower of (i) Lender Conversion Price in effect and (ii) Market Price as of Redemption Date)
F. Redemption Conversion Shares: ______________ (D divided by E)
G. Remaining Outstanding Balance of Note: *

* Subject to adjustments for corrections, defaults, interest and other adjustments permitted by the Transaction Documents (as defined in the Purchase Agreement), the terms of which shall control in the event of any dispute between the terms of this Redemption Notice and such Transaction Documents.

 

Please transfer the Redemption Conversion Shares, if applicable, electronically (via DWAC) to the following account:

Broker: Address: _____________________
DTC#:   _____________________
Account #:   _____________________
Account Name:    

 

To the extent the Redemption Conversion Shares are not able to be delivered to Lender electronically via the DWAC system, deliver all such certificated shares to Lender via reputable overnight courier after receipt of this Redemption Notice (by facsimile transmission or otherwise) to:

_________________________________

_________________________________

_________________________________

 

 

 

 

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Sincerely,

 

Lender:

 

ILIAD RESEARCH AND TRADING, L.P.

 

By: Iliad Management, LLC, its General Partner

 

By: Fife Trading, Inc., its Manager

 

By: /s/ John M. Fife

       John M. Fife, President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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EXHIBIT E

 

ARBITRATION PROVISIONS

 

1.     Dispute Resolution. For purposes of this Exhibit E, the term “Claims” means any disputes, claims, demands, causes of action, requests for injunctive relief, requests for specific performance, liabilities, damages, losses, or controversies whatsoever arising from, related to, or connected with the transactions contemplated in the Transaction Documents and any communications between the parties related thereto, including without limitation any claims of mutual mistake, mistake, fraud, misrepresentation, failure of formation, failure of consideration, promissory estoppel, unconscionability, failure of condition precedent, rescission, and any statutory claims, tort claims, contract claims, or claims to void, invalidate or terminate the Agreement (or these Arbitration Provisions (defined below)) or any of the other Transaction Documents. For the avoidance of doubt, Investor’s pursuit of an injunction or other Claim pursuant to these Arbitration Provisions or with a court will not later prevent Investor under the doctrines of claim preclusion, issue preclusion, res judicata or other similar legal doctrines from pursuing other Claims in a separate arbitration in the future. The parties to this Agreement (the “parties”) hereby agree that the Claims may be arbitrated in one or more Arbitrations pursuant to these Arbitration Provisions (one for an injunction or injunctions and a separate one for all other Claims). The term “Claims” specifically excludes a dispute over Calculations. The parties to the Agreement hereby agree that the arbitration provisions set forth in this Exhibit E (“Arbitration Provisions”) are binding on each of them. As a result, any attempt to rescind the Agreement (or these Arbitration Provisions) or declare the Agreement (or these Arbitration Provisions) or any other Transaction Document invalid or unenforceable for any reason is subject to these Arbitration Provisions. These Arbitration Provisions shall also survive any termination or expiration of the Agreement. Any capitalized term not defined in these Arbitration Provisions shall have the meaning set forth in the Agreement.

 

2.     Arbitration. Except as otherwise provided herein, all Claims must be submitted to arbitration (“Arbitration”) to be conducted exclusively in Salt Lake County, Utah and pursuant to the terms set forth in these Arbitration Provisions. Subject to the arbitration appeal right provided for in Paragraph 5 below (the “Appeal Right”), the parties agree that the award of the arbitrator rendered pursuant to Paragraph 4 below (the “Arbitration Award”) shall be (a) final and binding upon the parties, (b) the sole and exclusive remedy between them regarding any Claims, counterclaims, issues, or accountings presented or pleaded to the arbitrator, and (c) promptly payable in United States dollars free of any tax, deduction or offset (with respect to monetary awards). Subject to the Appeal Right, any costs or fees, including without limitation attorneys’ fees, incurred in connection with or incident to enforcing the Arbitration Award shall, to the maximum extent permitted by law, be charged against the party resisting such enforcement. The Arbitration Award shall include default interest (as defined or otherwise provided for in the Note, “Default Interest”) (with respect to monetary awards) at the rate specified in the Note for Default Interest both before and after the Arbitration Award. Judgment upon the Arbitration Award will be entered and enforced by any state or federal court sitting in Salt Lake County, Utah.

 

3.     The Arbitration Act. The parties hereby incorporate herein the provisions and procedures set forth in the Utah Uniform Arbitration Act, U.C.A. § 78B-11-101 et seq. (as amended or superseded from time to time, the “Arbitration Act”). Notwithstanding the foregoing, pursuant to, and to the maximum extent permitted by, Section 105 of the Arbitration Act, in the event of conflict or variation between the terms of these Arbitration Provisions and the provisions of the Arbitration Act, the terms of these Arbitration Provisions shall control and the parties hereby waive or otherwise agree to vary the effect of all requirements of the Arbitration Act that may conflict with or vary from these Arbitration Provisions.

 

4.     Arbitration Proceedings. Arbitration between the parties will be subject to the following:

 

4.1       Initiation of Arbitration. Pursuant to Section 110 of the Arbitration Act, the parties agree that a party may initiate Arbitration by giving written notice to the other party (“Arbitration Notice”) in the same manner that notice is permitted under Section 9.9 of the Agreement; provided, however, that the Arbitration Notice may not be given by email or fax. Arbitration will be deemed initiated as of the date that the Arbitration Notice is deemed delivered to such other party under Section 9.9 of the Agreement (the “Service Date”). After the Service Date, information may be delivered, and notices may be given, by email or fax pursuant to Section 9.9 of the Agreement or any other method permitted thereunder. The Arbitration Notice must describe the nature of the controversy, the remedies sought, and the election to commence Arbitration proceedings. All Claims in the Arbitration Notice must be pleaded consistent with the Utah Rules of Civil Procedure.

 

 

 

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4.2      Selection and Payment of Arbitrator.

 

(a)  Within ten (10) calendar days after the Service Date, Investor shall select and submit to Company the names of three (3) arbitrators that are designated as “neutrals” or qualified arbitrators by Utah ADR Services (http://www.utahadrservices.com) (such three (3) designated persons hereunder are referred to herein as the “Proposed Arbitrators”). For the avoidance of doubt, each Proposed Arbitrator must be qualified as a “neutral” with Utah ADR Services. Within five (5) calendar days after Investor has submitted to Company the names of the Proposed Arbitrators, Company must select, by written notice to Investor, one (1) of the Proposed Arbitrators to act as the arbitrator for the parties under these Arbitration Provisions. If Company fails to select one of the Proposed Arbitrators in writing within such 5-day period, then Investor may select the arbitrator from the Proposed Arbitrators by providing written notice of such selection to Company.

 

(b) If Investor fails to submit to Company the Proposed Arbitrators within ten (10) calendar days after the Service Date pursuant to subparagraph (a) above, then Company may at any time prior to Investor so designating the Proposed Arbitrators, identify the names of three (3) arbitrators that are designated as “neutrals” or qualified arbitrators by Utah ADR Service by written notice to Investor. Investor may then, within five (5) calendar days after Company has submitted notice of its Proposed Arbitrators to Investor, select, by written notice to Company, one (1) of the Proposed Arbitrators to act as the arbitrator for the parties under these Arbitration Provisions. If Investor fails to select in writing and within such 5-day period one (1) of the three (3) Proposed Arbitrators selected by Company, then Company may select the arbitrator from its three (3) previously selected Proposed Arbitrators by providing written notice of such selection to Investor.

 

(c) If a Proposed Arbitrator chosen to serve as arbitrator declines or is otherwise unable to serve as arbitrator, then the party that selected such Proposed Arbitrator may select one (1) of the other three (3) Proposed Arbitrators within three (3) calendar days of the date the chosen Proposed Arbitrator declines or notifies the parties he or she is unable to serve as arbitrator. If all three (3) Proposed Arbitrators decline or are otherwise unable to serve as arbitrator, then the arbitrator selection process shall begin again in accordance with this Paragraph 4.2.

 

(d) The date that the Proposed Arbitrator selected pursuant to this Paragraph 4.2 agrees in writing (including via email) delivered to both parties to serve as the arbitrator hereunder is referred to herein as the “Arbitration Commencement Date”. If an arbitrator resigns or is unable to act during the Arbitration, a replacement arbitrator shall be chosen in accordance with this Paragraph 4.2 to continue the Arbitration. If Utah ADR Services ceases to exist or to provide a list of neutrals and there is no successor thereto, then the arbitrator shall be selected under the then prevailing rules of the American Arbitration Association.

 

(e) Subject to Paragraph 4.10 below, the cost of the arbitrator must be paid equally by both parties. Subject to Paragraph 4.10 below, if one party refuses or fails to pay its portion of the arbitrator fee, then the other party can advance such unpaid amount (subject to the accrual of Default Interest thereupon), with such amount being added to or subtracted from, as applicable, the Arbitration Award.

 

4.3      Applicability of Certain Utah Rules. The parties agree that the Arbitration shall be conducted generally in accordance with the Utah Rules of Civil Procedure and the Utah Rules of Evidence. More specifically, the Utah Rules of Civil Procedure shall apply, without limitation, to the filing of any pleadings, motions or memoranda, the conducting of discovery, and the taking of any depositions. The Utah Rules of Evidence shall apply to any hearings, whether telephonic or in person, held by the arbitrator. Notwithstanding the foregoing, it is the parties’ intent that the incorporation of such rules will in no event supersede these Arbitration Provisions. In the event of any conflict between the Utah Rules of Civil Procedure or the Utah Rules of Evidence and these Arbitration Provisions, these Arbitration Provisions shall control.

 

 

 

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4.4      Answer and Default. An answer and any counterclaims to the Arbitration Notice shall be required to be delivered to the party initiating the Arbitration within twenty (20) calendar days after the Arbitration Commencement Date. If an answer is not delivered by the required deadline, the arbitrator must provide written notice to the defaulting party stating that the arbitrator will enter a default award against such party if such party does not file an answer within five (5) calendar days of receipt of such notice. If an answer is not filed within the five (5) day extension period, the arbitrator must render a default award, consistent with the relief requested in the Arbitration Notice, against a party that fails to submit an answer within such time period.

 

4.5      Related Litigation. The party that delivers the Arbitration Notice to the other party shall have the option to also commence concurrent legal proceedings with any state or federal court sitting in Salt Lake County, Utah (“Litigation Proceedings”), subject to the following: (a) the complaint in the Litigation Proceedings is to be substantially similar to the claims set forth in the Arbitration Notice, provided that an additional cause of action to compel arbitration will also be included therein, (b) so long as the other party files an answer to the complaint in the Litigation Proceedings and an answer to the Arbitration Notice, the Litigation Proceedings will be stayed pending an Arbitration Award (or Appeal Panel Award (defined below), as applicable) hereunder, (c) if the other party fails to file an answer in the Litigation Proceedings or an answer in the Arbitration proceedings, then the party initiating Arbitration shall be entitled to a default judgment consistent with the relief requested, to be entered in the Litigation Proceedings, and (d) any legal or procedural issue arising under the Arbitration Act that requires a decision of a court of competent jurisdiction may be determined in the Litigation Proceedings. Any award of the arbitrator (or of the Appeal Panel (defined below)) may be entered in such Litigation Proceedings pursuant to the Arbitration Act.

 

4.6      Discovery. Pursuant to Section 118(8) of the Arbitration Act, the parties agree that discovery shall be conducted as follows:

 

(a) Written discovery will only be allowed if the likely benefits of the proposed written discovery outweigh the burden or expense thereof, and the written discovery sought is likely to reveal information that will satisfy a specific element of a claim or defense already pleaded in the Arbitration. The party seeking written discovery shall always have the burden of showing that all of the standards and limitations set forth in these Arbitration Provisions are satisfied. The scope of discovery in the Arbitration proceedings shall also be limited as follows:

 

(i)          To facts directly connected with the transactions contemplated by the Agreement.

 

(ii)        To facts and information that cannot be obtained from another source or in another manner that is more convenient, less burdensome or less expensive than in the manner requested.

 

(b) No party shall be allowed (i) more than fifteen (15) interrogatories (including discrete subparts), (ii) more than fifteen (15) requests for admission (including discrete subparts), (iii) more than ten (10) document requests (including discrete subparts), or (iv) more than three (3) depositions (excluding expert depositions) for a maximum of seven (7) hours per deposition. The costs associated with depositions will be borne by the party taking the deposition. The party defending the deposition will submit a notice to the party taking the deposition of the estimated attorneys’ fees that such party expects to incur in connection with defending the deposition. If the party defending the deposition fails to submit an estimate of attorneys’ fees within five (5) calendar days of its receipt of a deposition notice, then such party shall be deemed to have waived its right to the estimated attorneys’ fees. The party taking the deposition must pay the party defending the deposition the estimated attorneys’ fees prior to taking the deposition, unless such obligation is deemed to be waived as set forth in the immediately preceding sentence. If the party taking the deposition believes that the estimated attorneys’ fees are unreasonable, such party may submit the issue to the arbitrator for a decision. All depositions will be taken in Utah.

 

 

 

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(c) All discovery requests (including document production requests included in deposition notices) must be submitted in writing to the arbitrator and the other party. The party submitting the written discovery requests must include with such discovery requests a detailed explanation of how the proposed discovery requests satisfy the requirements of these Arbitration Provisions and the Utah Rules of Civil Procedure. The receiving party will then be allowed, within five (5) calendar days of receiving the proposed discovery requests, to submit to the arbitrator an estimate of the attorneys’ fees and costs associated with responding to such written discovery requests and a written challenge to each applicable discovery request. After receipt of an estimate of attorneys’ fees and costs and/or challenge(s) to one or more discovery requests, consistent with subparagraph (c) above, the arbitrator will within three (3) calendar days make a finding as to the likely attorneys’ fees and costs associated with responding to the discovery requests and issue an order that (i) requires the requesting party to prepay the attorneys’ fees and costs associated with responding to the discovery requests, and (ii) requires the responding party to respond to the discovery requests as limited by the arbitrator within twenty-five (25) calendar days of the arbitrator’s finding with respect to such discovery requests. If a party entitled to submit an estimate of attorneys’ fees and costs and/or a challenge to discovery requests fails to do so within such 5-day period, the arbitrator will make a finding that (A) there are no attorneys’ fees or costs associated with responding to such discovery requests, and (B) the responding party must respond to such discovery requests (as may be limited by the arbitrator) within twenty-five (25) calendar days of the arbitrator’s finding with respect to such discovery requests. Any party submitting any written discovery requests, including without limitation interrogatories, requests for production subpoenas to a party or a third party, or requests for admissions, must prepay the estimated attorneys’ fees and costs, before the responding party has any obligation to produce or respond to the same, unless such obligation is deemed waived as set forth above.

 

(d) In order to allow a written discovery request, the arbitrator must find that the discovery request satisfies the standards set forth in these Arbitration Provisions and the Utah Rules of Civil Procedure. The arbitrator must strictly enforce these standards. If a discovery request does not satisfy any of the standards set forth in these Arbitration Provisions or the Utah Rules of Civil Procedure, the arbitrator may modify such discovery request to satisfy the applicable standards, or strike such discovery request in whole or in part.

 

(e) Each party may submit expert reports (and rebuttals thereto), provided that such reports must be submitted within sixty (60) days of the Arbitration Commencement Date. Each party will be allowed a maximum of two (2) experts. Expert reports must contain the following: (i) a complete statement of all opinions the expert will offer at trial and the basis and reasons for them; (ii) the expert’s name and qualifications, including a list of all the expert’s publications within the preceding ten (10) years, and a list of any other cases in which the expert has testified at trial or in a deposition or prepared a report within the preceding ten (10) years; and (iii) the compensation to be paid for the expert’s report and testimony. The parties are entitled to depose any other party’s expert witness one (1) time for no more than four (4) hours. An expert may not testify in a party’s case-in-chief concerning any matter not fairly disclosed in the expert report.

 

4.6       Dispositive Motions. Each party shall have the right to submit dispositive motions pursuant Rule 12 or Rule 56 of the Utah Rules of Civil Procedure (a “Dispositive Motion”). The party submitting the Dispositive Motion may, but is not required to, deliver to the arbitrator and to the other party a memorandum in support (the “Memorandum in Support”) of the Dispositive Motion. Within seven (7) calendar days of delivery of the Memorandum in Support, the other party shall deliver to the arbitrator and to the other party a memorandum in opposition to the Memorandum in Support (the “Memorandum in Opposition”). Within seven (7) calendar days of delivery of the Memorandum in Opposition, as applicable, the party that submitted the Memorandum in Support shall deliver to the arbitrator and to the other party a reply memorandum to the Memorandum in Opposition (“Reply Memorandum”). If the applicable party shall fail to deliver the Memorandum in Opposition as required above, or if the other party fails to deliver the Reply Memorandum as required above, then the applicable party shall lose its right to so deliver the same, and the Dispositive Motion shall proceed regardless.

 

4.7      Confidentiality. All information disclosed by either party (or such party’s agents) during the Arbitration process (including without limitation information disclosed during the discovery process or any Appeal (defined below)) shall be considered confidential in nature. Each party agrees not to disclose any confidential information received from the other party (or its agents) during the Arbitration process (including without limitation during the discovery process or any Appeal) unless (a) prior to or after the time of disclosure such information becomes public knowledge or part of the public domain, not as a result of any inaction or action of the receiving party or its agents, (b) such information is required by a court order, subpoena or similar legal duress to be disclosed if such receiving party has notified the other party thereof in writing and given it a reasonable opportunity to obtain a protective order from a court of competent jurisdiction prior to disclosure, or (c) such information is disclosed to the receiving party’s agents, representatives and legal counsel on a need to know basis who each agree in writing not to disclose such information to any third party. Pursuant to Section 118(5) of the Arbitration Act, the arbitrator is hereby authorized and directed to issue a protective order to prevent the disclosure of privileged information and confidential information upon the written request of either party.

 

 

 

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4.8      Authorization; Timing; Scheduling Order. Subject to all other portions of these Arbitration Provisions, the parties hereby authorize and direct the arbitrator to take such actions and make such rulings as may be necessary to carry out the parties’ intent for the Arbitration proceedings to be efficient and expeditious. Pursuant to Section 120 of the Arbitration Act, the parties hereby agree that an Arbitration Award must be made within one hundred twenty (120) calendar days after the Arbitration Commencement Date. The arbitrator is hereby authorized and directed to hold a scheduling conference within ten (10) calendar days after the Arbitration Commencement Date in order to establish a scheduling order with various binding deadlines for discovery, expert testimony, and the submission of documents by the parties to enable the arbitrator to render a decision prior to the end of such 120-day period.

 

4.9       Relief. The arbitrator shall have the right to award or include in the Arbitration Award (or in a preliminary ruling) any relief which the arbitrator deems proper under the circumstances, including, without limitation, specific performance and injunctive relief, provided that the arbitrator may not award exemplary or punitive damages.

 

4.10      Fees and Costs. As part of the Arbitration Award, the arbitrator is hereby directed to require the losing party (the party being awarded the least amount of money by the arbitrator, which, for the avoidance of doubt, shall be determined without regard to any statutory fines, penalties, fees, or other charges awarded to any party) to (a) pay the full amount of any unpaid costs and fees of the Arbitration, and (b) reimburse the prevailing party for all reasonable attorneys’ fees, arbitrator costs and fees, deposition costs, other discovery costs, and other expenses, costs or fees paid or otherwise incurred by the prevailing party in connection with the Arbitration.

 

5.       Arbitration Appeal.

 

5.1       Initiation of Appeal. Following the entry of the Arbitration Award, either party (the “Appellant”) shall have a period of thirty (30) calendar days in which to notify the other party (the “Appellee”), in writing, that the Appellant elects to appeal (the “Appeal”) the Arbitration Award (such notice, an “Appeal Notice”) to a panel of arbitrators as provided in Paragraph 5.2 below. The date the Appellant delivers an Appeal Notice to the Appellee is referred to herein as the “Appeal Date”. The Appeal Notice must be delivered to the Appellee in accordance with the provisions of Paragraph 4.1 above with respect to delivery of an Arbitration Notice. In addition, together with delivery of the Appeal Notice to the Appellee, the Appellant must also pay for (and provide proof of such payment to the Appellee together with delivery of the Appeal Notice) a bond in the amount of 110% of the sum the Appellant owes to the Appellee as a result of the Arbitration Award the Appellant is appealing. In the event an Appellant delivers an Appeal Notice to the Appellee (together with proof of payment of the applicable bond) in compliance with the provisions of this Paragraph 5.1, the Appeal will occur as a matter of right and, except as specifically set forth herein, will not be further conditioned. In the event a party does not deliver an Appeal Notice (along with proof of payment of the applicable bond) to the other party within the deadline prescribed in this Paragraph 5.1, such party shall lose its right to appeal the Arbitration Award. If no party delivers an Appeal Notice (along with proof of payment of the applicable bond) to the other party within the deadline described in this Paragraph 5.1, the Arbitration Award shall be final. The parties acknowledge and agree that any Appeal shall be deemed part of the parties’ agreement to arbitrate for purposes of these Arbitration Provisions and the Arbitration Act.

 

5.2       Selection and Payment of Appeal Panel. In the event an Appellant delivers an Appeal Notice to the Appellee (together with proof of payment of the applicable bond) in compliance with the provisions of Paragraph 5.1 above, the Appeal will be heard by a three (3) person arbitration panel (the “Appeal Panel”).

 

(a)       Within ten (10) calendar days after the Appeal Date, the Appellee shall select and submit to the Appellant the names of five (5) arbitrators that are designated as “neutrals” or qualified arbitrators by Utah ADR Services (http://www.utahadrservices.com) (such five (5) designated persons hereunder are referred to herein as the “Proposed Appeal Arbitrators”). For the avoidance of doubt, each Proposed Appeal Arbitrator must be qualified as a “neutral” with Utah ADR Services, and shall not be the arbitrator who rendered the Arbitration Award being appealed (the “Original Arbitrator”). Within five (5) calendar days after the Appellee has submitted to the Appellant the names of the Proposed Appeal Arbitrators, the Appellant must select, by written notice to the Appellee, three (3) of the Proposed Appeal Arbitrators to act as the members of the Appeal Panel. If the Appellant fails to select three (3) of the Proposed Appeal Arbitrators in writing within such 5-day period, then the Appellee may select such three (3) arbitrators from the Proposed Appeal Arbitrators by providing written notice of such selection to the Appellant.

 

 

 

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(b)       If the Appellee fails to submit to the Appellant the names of the Proposed Appeal Arbitrators within ten (10) calendar days after the Appeal Date pursuant to subparagraph (a) above, then the Appellant may at any time prior to the Appellee so designating the Proposed Appeal Arbitrators, identify the names of five (5) arbitrators that are designated as “neutrals” or qualified arbitrators by Utah ADR Service (none of whom may be the Original Arbitrator) by written notice to the Appellee. The Appellee may then, within five (5) calendar days after the Appellant has submitted notice of its selected arbitrators to the Appellee, select, by written notice to the Appellant, three (3) of such selected arbitrators to serve on the Appeal Panel. If the Appellee fails to select in writing within such 5-day period three (3) of the arbitrators selected by the Appellant to serve as the members of the Appeal Panel, then the Appellant may select the three (3) members of the Appeal Panel from the Appellant’s list of five (5) arbitrators by providing written notice of such selection to the Appellee.

 

(c)       If a selected Proposed Appeal Arbitrator declines or is otherwise unable to serve, then the party that selected such Proposed Appeal Arbitrator may select one (1) of the other five (5) designated Proposed Appeal Arbitrators within three (3) calendar days of the date a chosen Proposed Appeal Arbitrator declines or notifies the parties he or she is unable to serve as an arbitrator. If at least three (3) of the five (5) designated Proposed Appeal Arbitrators decline or are otherwise unable to serve, then the Proposed Appeal Arbitrator selection process shall begin again in accordance with this Paragraph 5.2; provided, however, that any Proposed Appeal Arbitrators who have already agreed to serve shall remain on the Appeal Panel.

 

(d)       The date that all three (3) Proposed Appeal Arbitrators selected pursuant to this Paragraph 5.2 agree in writing (including via email) delivered to both the Appellant and the Appellee to serve as members of the Appeal Panel hereunder is referred to herein as the “Appeal Commencement Date”. No later than five (5) calendar days after the Appeal Commencement Date, the Appellee shall designate in writing (including via email) to the Appellant and the Appeal Panel the name of one (1) of the three (3) members of the Appeal Panel to serve as the lead arbitrator in the Appeal proceedings. Each member of the Appeal Panel shall be deemed an arbitrator for purposes of these Arbitration Provisions and the Arbitration Act, provided that, in conducting the Appeal, the Appeal Panel may only act or make determinations upon the approval or vote of no less than the majority vote of its members, as announced or communicated by the lead arbitrator on the Appeal Panel. If an arbitrator on the Appeal Panel ceases or is unable to act during the Appeal proceedings, a replacement arbitrator shall be chosen in accordance with Paragraph 5.2 above to continue the Appeal as a member of the Appeal Panel. If Utah ADR Services ceases to exist or to provide a list of neutrals, then the arbitrators for the Appeal Panel shall be selected under the then prevailing rules of the American Arbitration Association.

 

(e)       Subject to Paragraph 5.7 below, the cost of the Appeal Panel must be paid entirely by the Appellant.

 

5.3       Appeal Procedure. The Appeal will be deemed an appeal of the entire Arbitration Award. In conducting the Appeal, the Appeal Panel shall conduct a de novo review of all Claims described or otherwise set forth in the Arbitration Notice. Subject to the foregoing and all other provisions of this Paragraph 5, the Appeal Panel shall conduct the Appeal in a manner the Appeal Panel considers appropriate for a fair and expeditious disposition of the Appeal, may hold one or more hearings and permit oral argument, and may review all previous evidence and discovery, together with all briefs, pleadings and other documents filed with the Original Arbitrator (as well as any documents filed with the Appeal Panel pursuant to Paragraph 5.4(a) below). Notwithstanding the foregoing, in connection with the Appeal, the Appeal Panel shall not permit the parties to conduct any additional discovery or raise any new Claims to be arbitrated, shall not permit new witnesses or affidavits, and shall not base any of its findings or determinations on the Original Arbitrator’s findings or the Arbitration Award.

 

5.4       Timing.

 

(a)       Within seven (7) calendar days of the Appeal Commencement Date, the Appellant (i) shall deliver or cause to be delivered to the Appeal Panel copies of the Appeal Notice, all discovery conducted in connection with the Arbitration, and all briefs, pleadings and other documents filed with the Original Arbitrator (which material Appellee shall have the right to review and supplement if necessary), and (ii) may, but is not required to, deliver to the Appeal Panel and to the Appellee a Memorandum in Support of the Appellant’s arguments concerning or position with respect to all Claims, counterclaims, issues, or accountings presented or pleaded in the Arbitration. Within seven (7) calendar days of the Appellant’s delivery of the Memorandum in Support, as applicable, the Appellee shall deliver to the Appeal Panel and to the Appellant a Memorandum in Opposition to the Memorandum in Support. Within seven (7) calendar days of the Appellee’s delivery of the Memorandum in Opposition, as applicable, the Appellant shall deliver to the Appeal Panel and to the Appellee a Reply Memorandum to the Memorandum in Opposition. If the Appellant shall fail to substantially comply with the requirements of clause (i) of this subparagraph (a), the Appellant shall lose its right to appeal the Arbitration Award, and the Arbitration Award shall be final. If the Appellee shall fail to deliver the Memorandum in Opposition as required above, or if the Appellant shall fail to deliver the Reply Memorandum as required above, then the Appellee or the Appellant, as the case may be, shall lose its right to so deliver the same, and the Appeal shall proceed regardless.

 

 

 

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(b)       Subject to subparagraph (a) above, the parties hereby agree that the Appeal must be heard by the Appeal Panel within thirty (30) calendar days of the Appeal Commencement Date, and that the Appeal Panel must render its decision within thirty (30) calendar days after the Appeal is heard (and in no event later than sixty (60) calendar days after the Appeal Commencement Date).

 

5.5       Appeal Panel Award. The Appeal Panel shall issue its decision (the “Appeal Panel Award”) through the lead arbitrator on the Appeal Panel. Notwithstanding any other provision contained herein, the Appeal Panel Award shall (a) supersede in its entirety and make of no further force or effect the Arbitration Award (provided that any protective orders issued by the Original Arbitrator shall remain in full force and effect), (b) be final and binding upon the parties, with no further rights of appeal, (c) be the sole and exclusive remedy between the parties regarding any Claims, counterclaims, issues, or accountings presented or pleaded in the Arbitration, and (d) be promptly payable in United States dollars free of any tax, deduction or offset (with respect to monetary awards). Any costs or fees, including without limitation attorneys’ fees, incurred in connection with or incident to enforcing the Appeal Panel Award shall, to the maximum extent permitted by law, be charged against the party resisting such enforcement. The Appeal Panel Award shall include Default Interest (with respect to monetary awards) at the rate specified in the Note for Default Interest both before and after the Arbitration Award. Judgment upon the Appeal Panel Award will be entered and enforced by a state or federal court sitting in Salt Lake County, Utah.

 

5.6       Relief. The Appeal P anel shall have the right to award or include in the Appeal Panel Award any relief which the Appeal Panel deems proper under the circumstances, including, without limitation, specific performance and injunctive relief, provided that the Appeal Panel may not award exemplary or punitive damages.

 

5.7       Fees and Costs. As part of the Appeal Panel Award, the Appeal Panel is hereby directed to require the losing party (the party being awarded the least amount of money by the arbitrator, which, for the avoidance of doubt, shall be determined without regard to any statutory fines, penalties, fees, or other charges awarded to any party) to (a) pay the full amount of any unpaid costs and fees of the Arbitration and the Appeal Panel, and (b) reimburse the prevailing party (the party being awarded the most amount of money by the Appeal Panel, which, for the avoidance of doubt, shall be determined without regard to any statutory fines, penalties, fees, or other charges awarded to any part) the reasonable attorneys’ fees, arbitrator and Appeal Panel costs and fees, deposition costs, other discovery costs, and other expenses, costs or fees paid or otherwise incurred by the prevailing party in connection with the Arbitration (including without limitation in connection with the Appeal).

 

6.       Miscellaneous.

 

6.1       Severability. If any part of these Arbitration Provisions is found to violate or be illegal under applicable law, then such provision shall be modified to the minimum extent necessary to make such provision enforceable under applicable law, and the remainder of the Arbitration Provisions shall remain unaffected and in full force and effect.

 

6.2       Governing Law. These Arbitration Provisions shall be governed by the laws of the State of Utah without regard to the conflict of laws principles therein.

 

6.3       Interpretation. The headings of these Arbitration Provisions are for convenience of reference only and shall not form part of, or affect the interpretation of, these Arbitration Provisions.

 

6.4       Waiver. No waiver of any provision of these Arbitration Provisions shall be effective unless it is in the form of a writing signed by the party granting the waiver.

 

6.5       Time is of the Essence. Time is expressly made of the essence with respect to each and every provision of these Arbitration Provisions.

 

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Exhibit B

 

 

 

IRREVOCABLE LETTER OF INSTRUCTIONS TO TRANSFER AGENT

Date: May 28, 2019

 

To the transfer agent of SPI Energy Co., Ltd.

 

Re: Instructions to Reserve and Issue Shares

 

Ladies and Gentlemen:

 

Reference is made to that certain Convertible Promissory Note dated as of May 28, 2019 (as the same may be amended or exchanged from time to time, the "Note"), made by SPI Energy Co., Ltd., a Cayman Islands corporation ("Company"), pursuant to which Company agreed to pay to Iliad Research and Trading, L.P., a Utah limited partnership, its successors and/or assigns ("Investor"), the aggregate sum of $1,331,500.00, plus interest, fees, and collection costs. The Note was issued pursuant to that certain Securities Purchase Agreement dated May 28, 2019, by and between Company and Investor (the "Purchase Agreement", and together with the Note, and all other documents entered into in conjunction therewith, including any amendments thereto, the "Transaction Documents"). Pursuant to the terms of the Note, the Outstanding Balance (as defined in the Note) of the Note may be converted into Ordinary Shares, par value $0.0001 per share, of Company (the "Ordinary Shares", and the Ordinary Shares issuable upon any conversion or otherwise under the Note, the "Shares").

 

Pursuant to the terms of the Purchase Agreement, Company has agreed to establish a reserve of authorized but unissued Ordinary Shares for Investor's sole and exclusive benefit in an amount not less than 1,800,000 shares (the "Share Reserve"). Company further agreed to add additional Ordinary Shares to the Share Reserve in increments of 100,000 shares, as and when requested by Investor, if the number of shares being held in the Share Reserve is less than the amount calculated as follows: three (3) times the number of Ordinary Shares obtained by dividing the Outstanding Balance by the Redemption Conversion Price (as defined in the Note). For the avoidance of doubt, this Share Reserve shall be in addition to any previous share reserves put in place for the benefit of Investor.

 

This irrevocable letter of instructions (this "Letter") shall serve as the authorization and direction of Company to VStock Transfer, LLC, or its successors, as Company's transfer agent (hereinafter, "you" or "your"), to reserve Ordinary Shares and to issue (or where relevant, to reissue in the name of Investor) Ordinary Shares to Investor or its broker, upon conversion of the Note as follows:

 

1.        From and after the date hereof and until all of Company's obligations under the Purchase Agreement and the Note are paid and performed in full, (a) you shall establish a reserve of authorized but unissued Ordinary Shares in an amount not less than the Share Reserve, (b) you shall maintain and hold the Share Reserve for the exclusive benefit of Investor, (c) you shall issue the Ordinary Shares held in the Share Reserve to Investor or its broker only, (d) when you issue Ordinary Shares to Investor or its broker under the Note pursuant to the other instructions in this Letter, you shall issue such shares from the Share Reserve, (e) you shall not otherwise reduce the Share Reserve under any circumstances, unless Investor delivers to you written pre-approval of such reduction, and (0 you shall immediately add Ordinary Shares to the Share Reserve in increments of 100,000 shares as and when requested by Company or Investor in writing from time to time.

 

 

 

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2.        You shall issue the Shares to Investor or its broker in accordance with Paragraph 3 upon a conversion of all or any portion of the Note, upon delivery to you of a duly executed Lender Conversion Notice substantially in the form attached hereto as Exhibit A (a "Conversion Notice"), or a duly executed Redemption Notice substantially in the form attached hereto as Exhibit B (a "Redemption Notice", and together with a Lender Conversion Notice, a "Conversion Notice"). By your signature below, you acknowledge and agree that a conversion of the Note may include any conversion by Investor of any judgment amount or arbitration award granted in favor of Investor, as set forth in the Note, and that you will issue Shares to Investor in accordance with Paragraph 3 below upon Investor's delivery to you of a duly executed Conversion Notice wherein Investor seeks to convert any portion of any judgment amount or arbitration award granted in favor of Investor. You further acknowledge that Company and Investor have agreed that it is their expectation that any such judgment amount or arbitration award that is converted will tack back to the Purchase Price Date (as defined in the Note) for purposes of determining the holding period under Rule 144 (as defined below) and that Company agreed that it will not take a contrary position in any filing, document, letter, agreement or setting.

 

3.        In connection with a Conversion Notice delivered to you pursuant to Paragraph 2 above, you will receive a legal opinion as to the free transferability of the Shares, dated within ninety (90) days from the date of the Conversion Notice, from either Investor's or Company's legal counsel, indicating that the Shares to be issued are registered pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), or pursuant to Rule 144 promulgated under the 1933 Act ("Rule 144"), or any other available exemption under the 1933 Act, the issuance of the applicable Shares to Investor is exempt from registration under the 1933 Act, and thus the Shares may be issued or delivered without restrictive legend (the "Opinion Letter"). Upon your receipt of a Conversion Notice and an Opinion Letter, you shall, within three (3) Trading Days (as defined below) thereafter, (i) if you are eligible to participate in the Depository Trust Company ("DTC") Fast Automated Securities Transfer program, and the Ordinary Shares are eligible to be transferred electronically with DTC through the Deposit/Withdrawal at Custodian system ("DWAC Eligible"), credit such aggregate number of DWAC Eligible Ordinary Shares to Investor's or its designee's balance account with DTC, provided Investor identifies its bank or broker (by providing its name and DTC participant number) and causes its bank or broker to initiate such DWAC Eligible transaction, or (ii) if the Ordinary Shares are not then DWAC Eligible, issue and deliver to Investor or its broker (as specified in the applicable Conversion Notice), via reputable overnight courier, to the address specified in the Conversion Notice, as the case may be, a certificate, registered in the name of Investor or its designee, representing such aggregate number of Ordinary Shares as have been requested by Investor to be transferred in the Conversion Notice, as applicable. Such Shares (A) shall not bear any legend restricting transfer, (B) shall not be subject to any stop-transfer restrictions, and (C) shall otherwise be freely transferable on the books and records of Company. For purposes hereof, "Trading Day" shall mean any day on which the New York Stock Exchange is open for trading.

 

If you receive a Conversion Notice but you do not also receive an Opinion Letter, and you are required to issue the Shares in certificated form, then any certificates for the applicable Shares shall bear a restrictive legend substantially as follows:

 

THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES OR AN OPINION OF COUNSEL IN FORM, SUBSTANCE AND SCOPE CUSTOMARY FOR OPINIONS OF COUNSEL IN COMPARABLE TRANSACTIONS OR OTHER EVIDENCE ACCEPTABLE TO COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED, OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT.

 

4.        Please note that a share issuance resolution is not required for each conversion and issuance of Shares since this Letter and the Transaction Documents have been approved by resolution of Company's board of directors (the "Share Issuance Resolution"). Pursuant to the Share Issuance Resolution, all of the Shares are authorized to be issued to Investor. For the avoidance of doubt, this Letter is your authorization and instruction by Company to issue the Shares pursuant to this Letter without any further authorization or direction from Company. You shall rely exclusively on the instructions in this Letter and shall have no liability for relying on any Conversion Notice provided by Investor. Any Conversion Notice delivered hereunder shall constitute an irrevocable instruction to you to process such notice or notices in accordance with the terms thereof, without any further direction or inquiry. Such notice or notices may be transmitted to you by fax, email, or any commercially reasonable method.

 

 

 

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5.        Notwithstanding any other provision hereof, Company and Investor understand that you shall not be required to perform any issuance or transfer of Shares if (a) such an issuance or transfer of Shares is in violation of any state or federal securities laws or regulations, or (b) the issuance or transfer of Shares is prohibited or stopped as required or directed by a court order. Additionally, Company and Investor understand that you shall not be required to perform any issuance or transfer of Shares if Company is in default of its payment obligations under its agreement with you; provided, however, that in such case Investor shall have the right to pay the applicable issuance or transfer fee on behalf of Company and upon payment of the issuance or transfer fee by Investor, you shall be obligated to make the requested issuance or transfer.

 

6.        You are hereby authorized and directed to promptly disclose to Investor, after Investor's request from time to time, the total number of Ordinary Shares issued and outstanding and the total number of shares that are authorized but unissued and unreserved.

 

7.        Company hereby confirms to you and to Investor that no instruction other than as contemplated herein (including instructions to increase the Share Reserve as necessary pursuant to Paragraph 1(f) above) will be given to you by Company with respect to the matters referenced herein. Company hereby authorizes you, and you shall be obligated, to disregard any contrary instruction received by or on behalf of Company or any other person purporting to represent Company.

 

8.        Notwithstanding anything to the contrary herein or in any previous Irrevocable Letter of Instructions to Transfer Agent with Investor and Company, Company hereby agrees that the Share Reserve set forth in this Letter may, at Investor's election, be used to satisfy any prior obligations owed by Company to Investor or any obligations owed by Company to Investor that may arise in the future. Company further agrees that any prior or future share reserves established for the benefit of Investor may also be used to satisfy Company's obligations under the Note.

 

9.        Company hereby agrees not to change you as its transfer agent without first (a) providing Investor with at least 30-days' written notice of such proposed change, and (b) obtaining Investor's written consent to such proposed change, Any such consent is conditioned upon the new transfer agent executing an irrevocable letter of instructions substantially similar to this Letter so that such transfer agent is bound by the same terms set forth herein.

 

10.        Company acknowledges that Investor is relying on the representations and covenants made by Company in this Letter and that the representations and covenants contained in this Letter constitute a material inducement to Investor to make the loan evidenced by the Note. Company further acknowledges that without such representations and covenants of Company, Investor would not have made the loan to Company evidenced by the Note.

 

11.         Company shall indemnify you and your officers, directors, members, managers, principals, partners, agents and representatives, and hold each of them harmless from and against any and all loss, liability, damage, claim or expense (including the reasonable fees and disbursements of its attorneys) incurred by or asserted against you or any of them arising out of or in connection with the instructions set forth herein, the performance of your duties hereunder and otherwise in respect hereof, including the costs and expenses of defending yourself or themselves against any claim or liability hereunder, except that Company shall not be liable hereunder as to matters in respect of which it is determined that you have acted with gross negligence or in bad faith.

 

12.        Investor is an intended third-party beneficiary of this Letter. The parties hereto specifically acknowledge and agree that in the event of a breach or threatened breach by a party hereto of any provision hereof, Investor will be irreparably damaged, and that damages at law would be an inadequate remedy if this Letter were not specifically enforced. Therefore, in the event of a breach or threatened breach of this Letter, Investor shall be entitled, in addition to all other rights or remedies, to an injunction restraining such breach, without being required to show any actual damage or to post any bond or other security, and/or to a decree for a specific performance of the provisions of this Letter.

 

 

 

  35  

 

 

13.        This Letter shall be fully binding and enforceable against Company even if it is not signed by you. If Company takes (or fails to take) any action contrary to this Letter, then such action or inaction will constitute a default under the Transaction Documents. Although no additional direction is required by Company, any refusal by Company to immediately confirm this Letter and the instructions contemplated herein to you will constitute a default hereunder and under the Transaction Documents.

 

14.        Whenever possible, each provision of this Letter shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Letter shall be invalid or unenforceable in any jurisdiction, such provision shall be modified to achieve the objective of the parties to the fullest extent permitted and such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Letter or the validity or enforceability of this Letter in any other jurisdiction.

 

15.        By signing below, (a) each individual executing this Letter on behalf of an entity represents and warrants that he or she has authority to so execute this Letter on behalf of such entity and thereby bind such entity to the terms and conditions hereof, and (b) each party to this Letter represents and warrants that such party has received good and valuable consideration in exchange for executing this Letter.

 

16.        Company and Investor agree that any action which names you as a party shall be brought in a court of general jurisdiction in Nassau County, New York and no other court and shall be subject to New York law. Notwithstanding the foregoing, nothing herein shall be construed to modify, change or amend Company's agreement to arbitrate disputes with Investor pursuant to the Arbitration Provisions (as defined in the Purchase Agreement) set forth as an exhibit to the Purchase Agreement. For the avoidance of doubt, only claims directly involving you will be subject to litigation in Nassau County, New York and New York law, all other claims between Company and Investor will be subject to the Arbitration Provisions and Utah law and may proceed concurrently with any action among the parties in Nassau County, New York. Notwithstanding the foregoing, each party further agrees to not participate in any action, suit, proceeding or arbitration (including without limitation any action or proceeding seeking an injunction or temporary restraining order against your issuance of Shares to Investor) of any dispute arising out of or relating to this Letter or the relationship of the parties or their affiliates that takes place outside of the jurisdictions set forth herein.

 

17.        Company hereby authorizes and directs you to provide to Investor a copy of any process, stop order, notice or other instructions delivered to you in furtherance of any attempt to prohibit or prevent you from issuing Shares to Investor. By your signature below, you covenant and agree to promptly and as soon as reasonably practicable provide to Investor, upon a request from Investor, a copy of any such process, stop order, notice or other instructions.

 

 

[Remainder of page intentionally left blank; signature page follows]

 

 

 

 

  36  

 

 

  Very truly yours,
   
  SPI ENERGY CO., LTD.
   
   
  By: _____________
  Name: _____________
  Title: Chairman & CEO
   
   

ACKNOWLEDGED AND AGREED:

 

INVESTOR:

 

ILIAD RESEARCH AND TRADING, L.P.

 

By: Iliad Management, LLC, its General Partner

 

By: Fife Trading, Inc., its Manager

 

By: /s/ John M. Fife

      John M. Fife, President

 

 

TRANSFER AGENT:


VSTOCK TRANSFER, LLC

 

By:__________________________

Name:________________________

Title: ________________________

 

Attachments:

 

Exhibit A       Form of Lender Conversion Notice

Exhibit B       Form of Redemption Notice

 

 

 

[Signature Page to Irrevocable Letter of Instructions to Transfer Agent]

 

 

  37  

 

 

  Very truly yours,
   
  SPI ENERGY CO., LTD.
   
   
  By: _____________
  Name: Xiabfeng Peng
  Title: Chief Executive Officer
   
   

ACKNOWLEDGED AND AGREED:

 

INVESTOR:

 

ILIAD RESEARCH AND TRADING, L.P.

 

By: Iliad Management, LLC, its General Partner

 

By: Fife Trading, Inc., its Manager

 

By: /s/ John M. Fife

      John M. Fife, President

 

 

TRANSFER AGENT:


VSTOCK TRANSFER, LLC

 

By: _______________________

Name: _____________________

Title: ______________________

 

 

Attachments:

 

Exhibit A       Form of Lender Conversion Notice

Exhibit B       Form of Redemption Notice

 

 

 

 

 

 

[Signature Page to Irrevocable Letter of Instructions to Transfer Agent]

 

  38  

 

 

 

Exhibit C

  

SPI ENERGY CO., LTD.

 

SECRETARY’S CERTIFICATE

 

I, 彭'J'峰 Feng , hereby certify that I am the duly elected, qualified and acting Secretary of SPI Energy Co., Ltd., a Cayman Islands corporation (“Company”), and I am authorized to execute this Secretary’s Certificate (this “Certificate”) on behalf of Company. This Certificate is delivered in connection with that certain Securities Purchase Agreement dated May 28, 2019 (the “Purchase Agreement”), by and between Company and Iliad Research and Trading, L.P., a Utah limited partnership.

 

Solely in my capacity as Secretary, I certify that Schedule 1 attached hereto is a true, accurate and complete copy of all of the resolutions adopted by the Board of Directors of Company (the “Resolutions”) approving and authorizing the execution, delivery and performance of the Purchase Agreement and related documents to which Company is a party on the date hereof, and the transactions contemplated thereby. Such Resolutions have not been amended, rescinded or modified since their adoption and remain in effect as of the date hereof.

 

IN WITNESS WHEREOF, I have made this Secretary’s Certificate effective as of May 28, 2019.

 

 

  SPI Energy Co., Ltd.
   
  _______________________
  Printed Name: 彭'J'峰 Feng
  Title: Secretary

 

 

 

 

 

 

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Schedule 1

 

BOARD RESOLUTIONS

 

[attached]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  40  

 

 

SPI ENERGY CO., LTD.

RESOLUTIONS ADOPTED BY THE BOARD OF DIRECTORS

 

 

 

Effective May 28, 2019

 

 

 

APPROVAL OF FINANCING

 

WHEREAS, the Board of Directors (the “Board”) of SPI Energy Co., Ltd., a Cayman Islands corporation (“Company”), has determined that it is in the best interests of Company to seek financing in the amount of $1,250,000.00 through the issuance and sale to Iliad Research and Trading, L.P., a Utah limited partnership (“Investor”), of a Convertible Promissory Note (the “Financing”);

 

WHEREAS, the terms of the Financing are reflected in a Securities Purchase Agreement substantially in the form attached hereto as Exhibit A (the “Purchase Agreement”), a Convertible Promissory Note issued by Company to Investor in the original principal amount of $1,331,500.00 substantially in the form attached hereto as Exhibit B (the “Note”), an Irrevocable Letter of Instructions to Transfer Agent substantially in the form attached hereto as Exhibit C, a Share Issuance Resolution substantially in the form attached hereto as Exhibit D (“Share Issuance Resolution”), and all other agreements, certificates, instruments and documents being or to be executed and delivered under or in connection with the Financing (collectively, the “Financing Documents”); and

 

WHEREAS, the Board, having received and reviewed the Financing Documents, believes that it is in the best interests of Company and its stockholders to approve the Financing and the Financing Documents and authorize the officers of Company to execute such documents.

 

NOW, THEREFORE, BE IT:

 

RESOLVED, that the Financing is hereby approved and determined to be in the best interests of Company and its stockholders;

 

RESOLVED FURTHER, that the form, terms and provisions of the Financing Documents (including all exhibits, schedules and other attachments thereto) are hereby ratified, confirmed and approved;

 

RESOLVED FURTHER, that the Note shall be duly and validly issued upon the issuance and delivery thereof in accordance with the Purchase Agreement;

 

RESOLVED FURTHER, that the Conversion Shares (as defined in the Note) shall be duly authorized, validly issued, fully paid for and non-assessable upon the issuance and delivery thereof in accordance with the Note;

 

RESOLVED FURTHER, that Company shall take all action necessary to at all times have authorized and reserved for the purpose of issuance under the Note such number of shares of Company’s Ordinary Shares required under the Purchase Agreement (the “Share Reserve”);

 

RESOLVED FURTHER, that the fixed number of Ordinary Shares set forth in the Share Issuance Resolution to be reserved by the transfer agent is not meant to limit or restrict in any way the resolutions contained herein, including without limitation the calculation of the Share Reserve under the Purchase Agreement, as required from time to time;

 

 

 

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RESOLVED FURTHER, that each of the officers of Company be, and each of them hereby is, authorized to instruct the transfer agent to increase the Share Reserve, from time to time, in the incremental amount set forth in the Share Issuance Resolution; provided, however, that any decrease in the Share Reserve held by the transfer agent will require the prior written consent of Investor;

 

RESOLVED FURTHER, that in the event of any conflict between these resolutions and the Share Issuance Resolution, these resolutions shall control;

 

RESOLVED FURTHER, that with respect to each Conversion (as defined in the Note) under the Note, the reduction in the Outstanding Balance (as defined in the Note and as the same may increase or decrease pursuant to the terms of the Note) in an amount equal to the applicable Conversion Amount (as defined in the Note) or Redemption Amount (as defined in the Note) being converted into Conversion Shares shall constitute fair and adequate consideration to Company for the issuance of the applicable Conversion Shares, regardless of the conversion price used to determine the number of Conversion Shares deliverable with respect to any Conversion;

 

RESOLVED FURTHER, that each of the officers of Company be, and each of them hereby is, authorized to execute and deliver in the name of and on behalf of Company, each of the Financing Documents and any other related agreements (with such additions to, modifications to, or deletions from such documents as the officer approves, such approval to be conclusively evidenced by such execution and delivery), to conform Company’s minute books and other records to the matters set forth in these resolutions, and to take all other actions on behalf of Company as any of them deem necessary, required, or advisable with respect to the matters set forth in these resolutions;

 

RESOLVED FURTHER, that the Board hereby determines that all acts and deeds previously performed by the Board and other officers of Company relating to the foregoing matters prior to the date of these resolutions are ratified, confirmed and approved in all respects as the authorized acts and deeds of Company; and

 

RESOLVED FURTHER, that all prior actions or resolutions of Company’s directors that are inconsistent with the foregoing are hereby amended, corrected and restated to the extent required to be consistent herewith.

 

******************

 

EXHIBITS ATTACHED TO BOARD RESOLUTIONS:

 

Exhibit A        PURCHASE AGREEMENT

Exhibit B        NOTE

Exhibit C        TRANSFER AGENT LETTER

Exhibit D        SHARE ISSUANCE RESOLUTION

 

[Remainder of page intentionally left blank]

 

 

 

 

 

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Exhibit D

 

 

SHARE ISSUANCE RESOLUTION

AUTHORIZING THE ISSUANCE OF NEW ORDINARY SHARES IN

 

SPI ENERGY CO., LTD.

 

 

 

Effective May 28, 2019

 

 

 

The undersigned, as a qualified officer of SPI Energy Co., Ltd., a Cayman Islands corporation (“Company”), hereby certifies that this Share Issuance Resolution is authorized by and consistent with the resolutions of Company’s board of directors (“Board Resolutions”) regarding that certain Convertible Promissory Note in the face amount of $1,331,500.00 with an original issuance date of May 28, 2019 (the “Note”), made by Company in favor of Iliad Research and Trading, L.P., a Utah limited partnership, its successors and/or assigns (“Investor”), pursuant to that certain Securities Purchase Agreement dated May 28, 2019, by and between Company and Investor (the “Purchase Agreement”).

 

RESOLVED, that VStock Transfer, LLC, as transfer agent (including any successor transfer agent, the “Transfer Agent”) of shares of Company’s Ordinary Shares, $0.0001 par value per share (“Ordinary Shares”), is authorized to rely upon:

 

(i) a Lender Conversion Notice substantially in the form of Exhibit A attached hereto, whether an original or a copy (the “Lender Conversion Notice”), and

 

(ii) a Redemption Notice substantially in the form of Exhibit B attached hereto, whether an original or a copy (the “Redemption Notice”),

 

in each case without any further inquiry, to be delivered to the Transfer Agent from time to time either by Company or Investor.

 

RESOLVED FURTHER, that the Transfer Agent is authorized to issue the number of:

 

(i) “Lender Conversion Shares” (representing Ordinary Shares) set forth in each Lender Conversion Notice delivered to the Transfer Agent,

 

(ii) “Redemption Conversion Shares” (representing Ordinary Shares) set forth in each Redemption Notice delivered to the Transfer Agent, and

 

(iii) all additional Ordinary Shares Company may subsequently instruct the Transfer Agent to issue in connection with any of the foregoing or otherwise under the Note,

 

with such shares to be issued in the name of Investor, or its successors, transferees, or designees, free of any restricted security legend, as permitted by the Note.

 

 

 

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RESOLVED FURTHER, that consistent with the terms of the Purchase Agreement, the Transfer Agent is authorized and directed to immediately create a share reserve equal to 1,800,000 shares of Company’s Ordinary Shares for the benefit of Investor (the “Share Reserve”); provided that the Share Reserve may increase in increments of 100,000 shares from time to time by written instructions provided to the Transfer Agent by Company or Investor as required by the Purchase Agreement and as contemplated by the Board Resolutions.

 

RESOLVED FURTHER, that Investor and the Transfer Agent may rely upon the more general approvals and authorizations set forth in the Board Resolutions, and the Transfer Agent is hereby authorized and directed to take those further actions approved under the Board Resolutions.

 

RESOLVED FURTHER, that Investor must consent in writing to any reduction of the Share Reserve held by the transfer agent; provided, however, that upon full conversion and/or full repayment of the Note, the Share Reserve will terminate thirty (30) days thereafter.

 

RESOLVED FURTHER, that Company shall indemnify the Transfer Agent and its employees against any and all loss, liability, damage, claim or expenses incurred by or asserted against the Transfer Agent arising from any action taken by the Transfer Agent in reliance upon this Share Issuance Resolution.

 

Nothing in this Share Issuance Resolution shall limit or restrict those resolutions and authorizations set forth in the Board Resolutions, including without limitation increasing the Share Reserve from time to time required by the Purchase Agreement.

 

The undersigned officer of Company hereby certifies that this is a true copy of Company’s Share Issuance Resolution, effective as of the date set forth below, and that said resolution has not been in any way rescinded, annulled, or revoked, but the same is still in full force and effect.

 

 

_______________________ 5/28/2019
Officer’s Signature Date
   
   
   
Feng               Chairman & CEO  
Printed Name and Title  
   

 

 

EXHIBITS ATTACHED TO SHARE ISSUANCE RESOLUTION:

 

Exhibit A          Lender Conversion Notice

Exhibit B          Redemption Notice

 

 

 

  2  

 

Exhibit 4.65

 

ASSET PURCHASE AGREEMENT

 

THIS ASSET PURCHASE AGREEMENT ("Agreement") is made as of July 31, 2019, by and between SPI SOLAR, INC., a Delaware corporation ("Purchaser"), and JOHN M. WIRTH, AS RECEIVER OF THE ASSETS OF ENSYNC, INC ("Seller").

 

RECITALS

 

A.                 EnSync, Inc. (the "Company") specializing in energy management and storage, including the development and manufacturing of residential and commercial distributed energy resource systems and energy control platforms (the "Business").

 

B.                 Seller is the receiver of the Company's assets in a case (the "Case") under Chapter 128 of the Wisconsin Statutes pending in the Circuit Court for Waukesha County, Wisconsin (the "Court"). The Case is styled In re EnSync, Inc., Case No. 19CV556.

 

C.                 Purchaser desires to acquire, by purchase from Seller, the assets described in this Agreement.

 

AGREEMENTS

 

In consideration of the Recitals and the mutual agreements which follow, the Parties agree as follows:

 

1.                   Transfer of Assets. Subject to the terms and conditions of this Agreement, Seller shall sell and deliver to Purchaser, and Purchaser shall purchase and accept from Seller, as of Closing (as defined below), all rights, title and interests of Seller and the Company in and to the assets described on Exhibit A (other than the "Excluded Assets," as defined below) (collectively, the "Purchased Assets"). The Purchased Assets shall be delivered pursuant to the Order Approving Auction, Authorizing Sales of Assets and Authorizing Payment of Administrative Expenses dated as of July 17, 2019 (the "Sale Order") entered in the Case stating that the sale to Purchaser is free and clear of all security interests, liens, claims, rights, interests, causes of action and encumbrances, with any and all such security interests, liens, claims, rights, interests, causes of action and encumbrances attaching to the proceeds of the sale.

 

2.                   Excluded Assets. Notwithstanding any provision to the contrary in this Agreement, the following assets (the "Excluded Assets") shall be excluded from transfer under this Agreement:

 

(a)             Cash. All cash, cash equivalents, bank accounts, and checks received but not deposited.

 

(b)             Deposits. All deposits, prepaid expenses and rights to refunds of any kind, including, but not limited to, tax and insurance refunds.

 

 

 

 

  1  

 

 

(c)                Insurance Policies. All insurance policies owned by the Company, the cash surrender value of those policies, and all claims arising under such policies.

 

(d)                Leases. All leased equipment and real property.

 

(e)                Avoidance Actions. All claims and causes of action arising under Chapter 128 and Chapter 242 of the Wisconsin Statutes and any and all other avoidance actions.

 

(f)                Corporate Records. All corporate records, seals, minute books, charter documents, stock transfer records, record books, original Tax and financial records and such other files, books and records relating solely to the Excluded Assets or to the organization, existence or capitalization of the Company to the extent such records are not Purchased Assets.

 

(g)               Excluded Contracts. All Contracts that are not Assumed Contracts.

 

(h)               Employment Agreements. All agreements with employees (including any employment, collective bargaining or union agreement), and all policies, trust funds and arrangements with respect to any employee benefit plans.

 

(i)                 Records. All books, files and records owned by Seller that relate to any of the Excluded Assets or current or former employees and other personnel, including, without limitation, books, files and records that are related to medical history, medical insurance or other medical matters and to workers' compensation and to the evaluation, appraisal or performance of current or former employees and other personnel of Seller.

 

(j)                 Taxes. All rights to or claims for refunds, overpayment or rebates of Taxes, as defined below, including, without limitation, any claims based upon Company's net operating losses. The term "Taxes" means all taxes, however denominated, including any interest, penalties or additions to tax imposed by any government, whether payable by reason of contract, assumption, transferee liability, operation of law or otherwise, which taxes shall include all income taxes, payroll and employee withholding unemployment insurance, social security (or similar), sales and use, excise, franchise, gross receipts, occupation, real and personal property, stamp, transfer, workmen's compensation, customs duties, registration, documentary, value added, alternative or add-on minimum, estimated, environmental and other assessments or obligations of the same or a similar nature.

 

(k)               Specific Books and Records. All books and records relating to the Excluded Assets.

 

(l)                Rights Under this Agreement. Seller's rights under this Agreement or any other document or agreement delivered to or received by Seller in connection with this Agreement.

 

(m)               Lots. Lots One, Two, Four and Six, as defined in the Bid and Auction Terms and Procedures dated as of June 5, 2019 (Revised Pursuant to an Order of the Court dated July 16, 2019).

 

 

 

 

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3.                   Assumption of Liabilities and Obligations.

 

(a)             Assumption of Liabilities. Purchaser agrees that, from and after the date of Closing, it shall assume only the following liabilities of Seller (the "Assumed Liabilities"):

 

(i)                 All liabilities and obligations under the Assumed Contracts, if any.

 

(ii)                All personal property taxes not yet due or payable in connection with the Purchased Assets.

 

(b)             Excluded Liabilities. Notwithstanding any other provision of this Agreement, Purchaser shall not directly or indirectly assume any liabilities, obligations, or commitments of Seller or the Company of any kind or nature, whether absolute or contingent, known or unknown, except for the Assumed Liabilities.

 

4.                   Deposit. Purchaser has deposited the sum of $250,000 (the "Deposit") with Mallery & Zimmerman, S.C., Seller's counsel, to be held in escrow in such firm's trust account. The Deposit shall be applied against the Purchase Price, as defined below, if the transaction described in this Agreement closes, and will be returned to Purchaser if the transaction does not close through no fault of Purchaser. If Purchaser defaults in its obligations under this Agreement, Seller shall be entitled to retain the Deposit as partial damages. Additional provisions regarding the Deposit are included in the Bid and Auction Terms and Procedures dated as of June 5, 2019 (Revised Pursuant to an Order of the Court dated July 16, 2019), which are incorporated in this Agreement by reference. Any dispute regarding the Deposit shall be resolved by the Court.

 

5.                   Purchase Price and Payment.

 

(a)             Amount. In consideration of Seller's sale, assignment and transfer of the Purchased Assets and Seller's agreement to perform the terms, covenants and conditions of this Agreement, Purchaser shall pay to Seller an amount equal to $350,000 (the "Purchase Price").

 

(b)             Payment Terms. Purchaser shall pay to Seller at Closing an amount equal to the Purchase Price, less the Deposit, in cash by either wire transfer or delivery of other immediately available funds.

 

(c)             Allocation of Purchase Price. The Purchase Price shall be allocated to the Purchased Assets in accordance with the allocation schedule prepared by Purchaser and delivered to Seller no later than three days before Closing. Purchaser shall prepare such schedule in a manner that reasonably reflects the respective values of the Purchased Assets. Such allocation shall bind Seller, and all Tax returns and reports filed by Purchaser and Seller with respect to the transactions contemplated by this Agreement shall be consistent with such allocation.

 

(d)             Transfer Taxes. All transfer, documentary, sales, use, stamp, registration and such other Taxes and recording, filing and other fees (including penalties and interest), if any, incurred in connection with this Agreement or as a result of the sale, transfer, assignment, and delivery of the Purchased Assets by Seller to Purchaser shall be paid by Purchaser when due, and Purchaser will, at its own expense, file all necessary Tax returns and other documentation with respect to all such Taxes and fees, and if required by applicable law, Seller will join in the execution of any such tax returns and other documentation.

 

 

 

 

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6.                   Closing. The closing of the transactions contemplated by this Agreement ("Closing") shall take place at a time as the parties may agree, but in any event, no later than five business days after the date of the Sale Order. Closing shall take place at the offices of Seller's attorneys.

 

7.                   Deliveries at Closing.

 

(a)             At Closing, Seller shall deliver or cause to be delivered to Purchaser:

 

(i)              A Bill of Sale in the form attached to this Agreement as Exhibit B, duly executed by Seller.

 

(ii)             A copy of the Sale Order.

 

(iii)           An assignment and assumption agreement, in form and substance reasonably satisfactory to Purchaser and Seller, of Seller's and the Company's interest in the entities comprising Lot Six (the "Assignment and Assumption Agreement"). duly executed by Seller. By such agreement, Seller shall assign its interests in such entities to Purchaser, and Purchaser shall accept such assignment.

 

(iv)           Such other documents as may be reasonably required to effectuate the transactions contemplated by this Agreement.

 

(b)             At Closing, Purchaser shall deliver or cause to be delivered to Seller:

 

(i)              The cash payment in accordance with Section 5(b).

 

(ii)             The Assignment and Assumption Agreement duly executed by Purchaser.

 

(iii)           Such other documents as may be reasonably required to effectuate the transactions contemplated by this Agreement.

 

8.                   Conditions to Obligations of Parties. The respective obligations of Seller on the one hand, and Purchaser, on the other hand, to close under this Agreement shall be subject to the satisfaction at or prior to Closing of the following conditions:

 

(a)             No Injunction. No preliminary or permanent injunction or other order or decree issued by any federal, state, local, municipal governmental or quasi-governmental authority or court shall be in effect or pending which delays, restrains, enjoins, reverses, modifies, or vacates the Sale Order, or otherwise prohibits the transactions contemplated by this Agreement.

 

(b)             Accuracy of Representations and Warranties. The representations and warranties of the other party to this Agreement contained in this Agreement shall be true and correct in all material respects on the date of this Agreement and as of Closing, with the same force and effect as though such representations and warranties had been made on and as of Closing.

 

 

 

 

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(c)             Sale Order. The entry of the Sale Order by the Court (which has occurred prior to this date).

 

9.                   Representations and Warranties of Seller. As of Closing, Seller shall represent and warrant to Purchaser that the statements contained in this Section 9 are correct and complete.

 

(a)             Authority. Seller is the duly appointed receiver of the Company's assets and has the power to execute and deliver this Agreement and, subject to the Court's approval, to consummate the transactions provided for in this Agreement.

 

(b)             Title to the Purchased Assets. All of Seller's and the Company's rights, title and interests in the Purchased Assets, if any, shall be transferred to Purchaser, pursuant to the Sale Order, free and clear of all security interests, liens, claims, rights, causes of action and encumbrances.

 

(c)             Execution and Binding Effect. This Agreement has been duly and validly executed and delivered by Seller and constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally and to general principles of equity.

 

10.                  Limitations on Representations and Warranties. Purchaser acknowledges and agrees the Purchased Assets are being conveyed "AS IS, WHERE IS." Except for the representations and warranties specifically contained in this Agreement, Seller and his agents, including without limitation the law firm of Mallery & Zimmerman, S.C. and the consulting firm of Wadsworth Whitestar Consultants, make no express or implied representations or warranties of any kind, including, without limitation, representations or warranties as to (a) warranties of title; (b) representations or warranties as to the value, condition, merchantability or fitness for a particular purpose of the Purchased Assets; (c) the income derived or potentially to be derived from the Purchased Assets or the Business, or the expenses incurred or potentially to be incurred in connection with the Purchased Assets or the Business; or (d) the compliance of the Assets or the Business with any laws, rules or regulations applicable to the Purchased Assets.

 

INFORMATION ABOUT THE PURCHASED ASSETS PROVIDED TO POTENTIAL PURCHASERS AT ANY TIME IS FOR INFORMATIONAL PURPOSES, AND SELLER AND HIS AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING SUCH INFORMATION.

 

Purchaser is solely relying on the due diligence performed by Purchaser and Purchaser's agents.

 

11.                  Representations and Warranties of Purchaser. Purchaser represents and warrants to Seller that the statements contained in this Section 11 are correct and complete as of the date of this Agreement and shall be correct and complete as of Closing.

 

 

 

 

  5  

 

 

(a)             Organization; Power. Purchaser is a corporation duly organized, validly existing and in current status under the laws of the State of Delaware and has the corporate power to own its property and carry on its business.

 

(b)             Authority. Purchaser has all necessary corporate power to execute and deliver this Agreement and to consummate the transactions provided for in this Agreement. The execution and delivery of this Agreement by Purchaser and the performance by it of the obligations to be performed hereunder have been duly authorized by all necessary and appropriate corporate action. The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement do not and shall not conflict with, or result in a breach of, or constitute a default under the terms or conditions of Purchaser's Articles of Incorporation or Bylaws, any court or administrative order or process to which Purchaser is a party, any agreement or instrument to which Purchaser is a party or by which Purchaser is bound or any statute or regulation of any governmental agency.

 

(c)             Execution and Binding Effect. This Agreement has been duly and validly executed and delivered by Purchaser and constitutes a valid and legally binding obligation of Purchaser, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, or other laws relating to or affecting the rights and remedies of creditors generally and to general principles of equity.

 

(d)             Third-Party Approvals. The execution, delivery and performance by Purchaser of this Agreement and the transactions contemplated by this Agreement do not require any consents, waivers, authorizations, or approvals of, or filings with, any third-parties which have not been obtained by Purchaser.

 

12.                  Brokers. Each party represents and warrants to the other that there are no brokerage or finders' fees payable in connection with the transactions contemplated by this Agreement resulting from any actions taken by he or it, and each indemnifies, saves and holds each other harmless from and against claims by any broker or finder for a fee or expense which is based in any way on an agreement, arrangement or understanding made or alleged to have been made by him or it.

 

13.                  Access; Copies. To the extent Purchaser purchases records (paper or electronic). Purchaser grants to Seller and Seller's representatives, from and after the date of Closing, upon prior reasonable notice from Seller to Purchaser, the right of access during normal business hours to any records related to the Purchased Assets or the Business to make photocopies of such records for Tax purposes or to be used in any legal proceedings. In lieu of such access, Purchaser shall make copies for Seller of any such records that Seller needs for such purposes provided that Seller can reasonably identify such records. To the extent necessary for any legal proceedings, Seller and his representatives shall be provided with original records.

 

 

 

 

  6  

 

 

14.                  Sale Procedures. The Bid and Auction Terms and Procedures dated as of June 5, 2019 (Revised Pursuant to an Order of the Court dated July 16, 2019), are incorporated in this Agreement by reference.

 

15.                  Miscellaneous.

 

(a)             Specific Performance. In the event of any controversy concerning the rights or obligations under this Agreement, such rights or obligations shall be enforceable by a decree of specific performance. Such remedy shall, however, be cumulative and nonexclusive and shall be in addition to any other remedy which the parties may have.

 

(b)             Amendment and Severability. Except for amendments made during the Auction pursuant to the Bid and Auction Terms and Procedures dated as of June 5, 2019 (Revised Pursuant to an Order of the Court dated July 16, 2019), this Agreement may only be amended by a written agreement of Seller and Purchaser. If any provision, clause or part of this Agreement, or the application of any provision, clause or part of this Agreement under certain circumstances, is held by a court or other judicial or administrative body to be invalid or unenforceable, the remainder of this Agreement, or the applications of each provision, clause or part under other circumstances, shall not be affected.

 

(c)             Waiver. The failure of Seller or Purchaser to insist, in any one or more instances, upon performance of any of the terms or conditions of this Agreement, shall not be construed as a waiver or relinquishment of any rights granted under this Agreement or the future performance of any such term, covenant or condition.

 

(d)             Notices. Any notice or other communication required or permitted under this Agreement shall be in writing and shall be delivered personally, emailed or sent, with fees prepaid, by a recognized overnight courier such as Federal Express or United Parcel Service. Any such notice shall be deemed given when delivered personally or emailed or, if sent by overnight courier, the day following deposit with the courier, addressed as follows:

 

If to Seller:

John M. Wirth

Mallery & Zimmerman, S.C.

731 North Jackson, Suite 900

Milwaukee, Wisconsin 53202-4697

jwirth@mzmilw.com

 

 

 

 

  7  

 

 

If to Purchaser:

 

SPI Solar, Inc.

Attn: Xiaofeng Peng

4677 Old Ironsides Drive, Suite 190

Santa Clara, California 95054

denton.peng@spigroups.com

 

With a copy to:

 

Leonard G. Leverson

Leverson Lucey & Metz, S.C.

106 West Seeboth Street, Suite 204-1

Milwaukee, Wisconsin 53204

lgl@levmetz.com

 

or to such other address as Seller or Purchaser may designate by notice in writing to the other.

 

(e)             Benefit. This Agreement shall bind and inure to the benefit and burden of and shall be enforceable by Purchaser and Seller and their successors and permitted assigns. This Agreement may not be assigned by Seller or Purchaser without the written consent of the other.

 

(f)              Expenses. All expenses incurred by Seller or Purchaser in connection with the transactions contemplated by this Agreement, including, without limitation, legal and accounting fees, and any and all Taxes applicable to or arising out of such transactions shall be the responsibility of and for the account of the party who ordered the particular service or incurred the particular expense.

 

(g)             Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by telecopy, facsimile or in other electronic form shall be effective as delivery of a manually executed counterpart of this Agreement. In proving this Agreement, it shall not necessary to produce or account for more than one such counterpart signed by the party against whom enforcement is sought.

 

(h)             Further Assurances. The parties shall execute such further documents, and perform such further acts, as may be necessary to transfer and convey the Purchased Assets to Purchaser, on the terms in this Agreement contained and to otherwise comply with the terms of this Agreement and to consummate the transactions contemplated by this Agreement.

 

(i)              Headings. The headings contained in this Agreement are for convenience only and shall not affect the meaning or interpretation of this Agreement.

 

(j)              No Strict Construction. The parties to this Agreement jointly participated in negotiating and drafting this Agreement. The language used in this Agreement shall be deemed to be the language chosen by the parties to express their collective mutual intent. This Agreement shall be construed as if drafted jointly by the parties to this Agreement, and no rule of strict construction shall be applied against any party.

 

 

 

 

  8  

 

 

(k)             Exclusive Jurisdiction; Waiver of Jury Trial. The Court shall retain exclusive jurisdiction to enforce the terms of this Agreement and to decide any claims or disputes which may arise or result from, or relate to, this Agreement, any breach or default hereunder, or the transactions contemplated by this Agreement. Any and all claims, actions, causes of action, suits and proceedings related to the foregoing shall be filed and maintained only in the Court, and the parties by this Agreement consent to and submit to the jurisdiction of the Court. THE PARTIES WAIVE ANY RIGHT THEY MAY HAVE TO TRIAL BY JURY OF ANY DISPUTE ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH THE TRANSACTIONS DESCRIBED IN THIS AGREEMENT.

 

(1)              Governing Law. This Agreement shall be governed by and construed under the internal laws of the State of Wisconsin.

 

(m)             Personal Liability of Seller. The parties acknowledge that Seller is a party to this Agreement as a Chapter 128 receiver of the Company's assets and not in his personal capacity, and that Seller shall have no personal liability under this Agreement for anything he may in good faith do or omit to do in connection with this Agreement.

 

(n)             Interpretation. The Schedules and Exhibits referred to in this Agreement, and the Bid and Auction Terms and Procedures dated as of June 5, 2019 (Revised Pursuant to an Order of the Court dated July 16, 2019), shall be construed with and deemed an integral part of this Agreement. Notwithstanding any contrary provision of this Agreement, to the extent Seller has provided lists of Purchased Assets to Purchaser, those lists have been established based on the records of the Company. Seller has not reviewed such assets to determine if such assets actually exist, Purchaser has conducted its own due diligence, and this Agreement is not conditioned upon the actual existence of or title to such assets.

 

 

 

 

 

 

 

 

 

  9  

 

 

Dated as of the date first set forth above.

 

  PURCHASER:
   
  SPI SOLAR, INC.
   
  By: /s/ Xiaofeng (Denton) Peng
    Xiaofeng (Denton) Peng
    Chief Executive Officer
     
  SELLER:
   
  /s/ John M. Wirth
  John M. Wirth, as Receiver of the Assets of EnSync, Inc.

 

 

 

Attachments:

Exhibit A — Purchased Assets

Exhibit B — Bill of Sale

Exhibit C — Assignment of Interest in Patents and Trademarks

 

 

 

 

 

 

 

 

 

  10  

 

 

EXHIBIT A

 

Purchased Assets

 

The Purchased Assets include the following:

 

LOT THREE (hard assets except in Madison, Wisconsin):

 

1.                  Except as described as part of in Lot Four, machinery and equipment, fixtures, improvements, spare parts, furniture, office equipment, computer equipment and hardware, fittings, tools, signage, maintenance equipment, sales and marketing materials, engineering prototypes, engineering evaluation parts, vehicles and other personal property of any kind or type that is used or held for use in connection with the Business, whether in Seller's possession or otherwise, and all rights to express or implied warranties and licenses received from manufacturers, sellers and suppliers of such personal property.

 

2.                  Except as described as part of Lot Four, the Company's inventory of raw materials, work in process and finished goods, as well as supplies, packaging, spare parts, janitorial and office supplies and other disposables.

 

Laptops and hard drives from the Company's computers in Menomonee Falls, Wisconsin shall not be included in Lot Three except to the extent Lot Three is included as part of Lot One.

 

Unless Purchaser reaches an accommodation with the Company's landlord, all of Lot Three shall be removed, at Purchaser's cost, from the Company's headquarters in Menomonee Falls, Wisconsin, within 15 business days of Closing, TIME BEING OF THE ESSENCE. Seller may supervise such removal. Purchaser shall not abandon any assets at the premises and shall leave the area in an orderly condition. Purchaser shall be liable for any damage to the premises caused by Purchaser or Purchaser's agents in removing the Purchased Assets.

 

LOT FIVE (subsidiaries):

 

All shares of stock, membership interests and partnership interests in any and all corporations, limited liability companies and partnerships owned by the Company.

 

 

 

 

 

 

 

 

 

  11  

 

 

EXHIBIT B

 

BILL OF SALE

 

FOR GOOD AND VALUABLE CONSIDERATION, the receipt of which is acknowledged, the undersigned, JOHN M. WIRTH, AS RECEIVER OF THE ASSETS OF ENSYNC, INC. ("Seller"), conveys and assigns by this Bill of Sale to ____________________ ("Purchaser"), all rights, title and interests of Seller and EnSync, Inc. in and to the "Purchased Assets," as such term is defined and more particularly described in the Asset Purchase Agreement dated as of__________________________ , 2019 between Seller and Purchaser (the "Purchase Agreement").

 

The Purchased Assets are conveyed and assigned to Purchaser free and clear of all security interests, liens, claims, rights, causes of action and encumbrances, pursuant to the Order ___________ dated as of________________________ , 2019, entered by the Circuit Court for Waukesha County, Wisconsin, in Case No. 19CV556.

 

Other than warranties expressly set forth in the Purchase Agreement, the Seller's transfer of the Purchased Assets is AS IS, WHERE IS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

The provisions of this General Bill of Sale are subject, in all respects, to the terms and conditions of the Purchase Agreement.

 

Dated as of_____________ , 2019.

 

________________________________________

John M. Wirth, as Receiver of the Assets of EnSync, Inc.

 

 

 

 

 

 

 

 

 

 

 

 

 

  12  

 

 

ASSIGNMENT AND ASSUMPTION AGREEMENT

 

THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is made as of June 31, 2019, by and between JOHN M. WIRTH, THE RECEIVER OF THE ASSETS OF ENSYNC, INC., a Wisconsin corporation ("Seller"), and SPI SOLAR, INC., a Delaware corporation ("Purchaser").

 

RECITALS

 

A.              As of this date, Seller is selling to Purchaser certain assets pursuant to an Asset Purchase Agreement dated as of July 31, 2019 between Seller and Purchaser (the "Purchase Agreement").

 

B.               The transactions described in the Purchase Agreement were approved by the Circuit Court for Waukesha County, Wisconsin, in a case styled In re EnSync, Inc., Case No. 19CV556, pursuant to an Order Approving Auction, Authorizing Sales of Assets and Authorizing Payment of Administrative Expenses dated as of July 17, 2019 (the "Sale Order").

 

C.               As a condition of closing the transactions described in the Purchase Agreement, Seller intends to assign to Purchaser and Purchaser intends to acquire all of Seller's right, title and interest in all shares of stock, membership interests and partnership interests in any and all corporations, limited liability companies and partnerships owned by EnSync, Inc. (collectively, the "Interests"). As understood by the parties, the entities in which the Interests represent capital shares are listed on the attached Exhibit A.

 

AGREEMENTS

 

In consideration of the foregoing recitals, and for other good and valuable consideration, the receipt and sufficiency of which Purchaser and Seller acknowledge, Purchaser and Seller agree:

 

1.                Assignment of the Interests. Seller assigns to Purchaser all of Seller's right, title and interest in and to the Interests. Purchaser accepts the foregoing assignment.

 

2.                No Warranties of Seller. Except as specifically set forth in the Purchase Agreement, Seller makes no warranties, representations or guarantees, either express or implied, of any kind, nature or type whatsoever, written or oral, regarding the Interests.

 

Purchaser accepts the Interests AS IS, WHERE IS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

SELLER HAS NEITHER SOUGHT NOR OBTAINED THE CONSENT TO THIS AGREEMENT OR THE ASSIGNMENT CONTAINED IN THIS AGREEMENT FROM ANY SHAREHOLDER, MEMBER OR PARTNER WHO HAS ANY INTEREST IN ANY OF THE ENTITIES FOR WHICH THE INTERESTS REPRESENT CAPITAL SHARES. Accordingly, Purchaser accepts all risks of taking the assignment contained in this Agreement to the extent any such consent was a precondition of the assignment.

 

 

 

 

  13  

 

 

3.                  Further Assurances. Seller shall reasonably cooperate with Purchaser to more fully effectuate the transactions contemplated by this Assignment, if necessary, provided that such cooperation is at no cost to Seller. Seller and Purchaser shall execute such other documents and to perform such other acts as may be necessary or desirable to effectuate this Agreement.

 

4.                  Authority of Seller. By making this Agreement, Seller is not acting personally but rather in his capacity under authority of the Order Appointing Receiver dated as of March 27, 2019, executed by the Honorable Michael 0. Bohren, Circuit Court Judge for Waukesha County, Wisconsin and the Sale Order. Seller's personal liability is limited as described in such orders.

 

5.                  Successors and Assigns. This Agreement shall bind and benefit Purchaser and Seller and their assigns and successors in interest or in title or in both.

 

6.                  Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one in the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by telecopy or facsimile or electronically shall be effective as delivery of a manually executed counterpart of this Agreement. In proving this Agreement, it shall not necessary to produce or account for more than one such counterpart signed by the party against whom enforcement is sought.

 

7.                  Governing Law. This Agreement shall be governed by and construed under the internal laws of the State of Wisconsin.

 

Dated as of the date first set forth above.

     
  SELLER:
   
  /s/ John M. Wirth
  John M. Wirth, as Receiver of the Assets of EnSync, Inc.

 

  PURCHASER:
   
  SPI SOLAR, INC.
   
  By: /s/ Xiaofeng (Denton) Peng
    Xiaofeng (Denton) Peng
    Chief Executive Officer

 

 

 

 

  14  

 

 

EXHIBIT A

 

Entities

 

CleanSolar Power LLC
DCfusion LLC

EnSync Managed Services LLC

EnSync Pacific Energy LLC

EnSync Pacific Engineering LLC

Holu Energy LLC

ZBB Cayman Corporation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  15  

Exhibit 4.66

 

To:

 

SPI Renewables Energy (Luxemburg) Private Limited Company S.à r.1.

 

6, Rue Eugene Ruppert

L-2453 Luxembourg

Grand Duchy of Luxembourg

 

23 September, 2019

 

Re:          sale and purchase agreement proposal

 

Dear Sirs,

 

Following our previous discussions, please find below our sale and purchase agreement proposal. Please confirm that the below proposal correctly sets forth the terms of our agreement by reproducing

 

our proposal in a separate document duly signed by an authorized signatory, initialized on each page.

 

Kind regards,

 

Theia Investments (Italy) S.r.l.

 

 

/s/ David Lindsay

 

Name: David Lindsay
Title: Director

 

 

 

  1  

 

 

SALE AND PURCHASE AGREEMENT

 

BETWEEN

 

(1) SPI Renewables Energy (Luxemburg) Private Limited Company S.à r.l., a company incorporated under the laws of Luxembourg, having its registered offices at 6, Rue Eugene Ruppert, L-2453 Luxembourg, registered with the Companies' Register of Luxembourg under no. 8156036, tax number 20102434979 ("SPI Renewables or the "Seller""), represented by Cheong Hoong Khoeng, in his capacity as Manager A and Universal Management Services Sà r.l. in their capacity as Manager B;

 

on one side

 

AND

 

(2) Theia Investments (Italy) S.r.l., a company incorporated under the laws of Italy, having its registered offices at Via Giovanni Boccaccio 7, 20123 Milano, registered with the Companies' Register of Milano Monza Brianza Lodi under no. MI-2551617, tax and VAT code 10711700962 (the "Purchaser"), represented by Mr. David Lindsay, in his capacity as Director;

 

          on the other side

 

(the Seller and the Purchaser are individually referred to as a "Party" and, collectively, the "Parties").

 

WHEREAS:

 

(A) The Purchaser is a company active in the renewable energy business and it intends to invest in photovoltaic plants in Italy.

 

(B) The Seller is also active in the renewable energy business and owns 100% - par value Euro10,000.00 - of the corporate capital of Sun Roof II S.r.l., (the "Quota") a company incorporated under the laws of Italy, having its registered offices at viale Gran Sasso no. 11, 20131, Milano, registered with the Companies' Register of Milano Monza Brianza Lodi under no. MI-1965194, tax and VAT code 07531620966 (the "SPV").

 

(C) The SPV owns three operating flat rooftop photovoltaic plants located in the Municipality of Sassari, Sardinia Region, Italy, whose aggregate installed capacity is approximately equal to 1.848 MWp:

 

(a)          Sassari 1 plant, having an installed capacity equal to 779.73 kWp;

 

(b)         Sassari 2 plant, having an installed capacity equal to 764.92 kWp; and

 

(c)          Sassari 3 plant, having an installed capacity equal to 286.23 kWp,

 

(jointly, the "Plants" and each the "Plant", whose term shall be deemed inclusive of the relevant connection infrastructures).

 

(D) On 9 September 2019, the non-interest-bearing receivable, equal to the fixed amount of Euro 1,042,166.25, due by the SPV to ET Solar Energy Limited, the former titleholder of the said receivable, was assigned by ET Solar Energy Limited to SPI Orange Power (HK) Limited, a company incorporated under the laws of Hong Kong, having its registered office in RM2202 Beautiful Group Tower, 74-77 Connaught Road, Central, Hong Kong, registered with the commercial register of Hong Kong under No 66375213 ("SPI Orange Power"). Such assignment was accepted by the SPV according to Italian law.

 

 

 

  2  

 

 

(E) The Purchaser has conducted (also by means of its advisors) a technical, legal and tax due diligence on the SPV and the Plants, through the review of the information and documents having been made available to the Purchaser by the Seller (the "Due Diligence").

 

(F) In accordance with the terms and subject to the conditions set forth under this Agreement: i) the Purchaser intends to purchase the Quota from the Seller and; ii) the Seller intends to transfer the Quota to the Purchaser.

 

(G) Moreover, in accordance with the terms hereof: 1) the Purchaser intends to purchase from the Seller the Shareholder Receivables (as defined below) and; ii) the Seller intends to transfer to the Purchaser the Shareholder Receivables.

 

NOW, THEREFORE, on the basis of the foregoing, it is hereby agreed as follows:

 

1. RECITALS AND SCHEDULES

 

The above Recitals and the Schedules attached hereto constitute an integral and substantial part of this Agreement.

 

2. DEFINITIONS AND INTERPRETATIVE RULES

 

2.1 Definitions

 

In addition to any other term defined elsewhere in this Agreement, the following terms shall have, for the purposes of this Agreement, the meanings set forth below unless the context clearly requires otherwise:

 

  2.1.1 "Accounting Principles" shall mean the principles provided by the ICC in respect of the preparation of financial statements (bilanci di eserci:io), as interpreted in accordance with the accounting principles issued by the Consiglio Nationale dei Dottori Conunercialisti e degli Esperti Corttabili and the Organism° Italiano di Contabilita;
     
  2.1.2 "Affiliate" shall mean, in relation to any Party, any subsidiary company or parent company of such Party and any subsidiary company of any such parent company, in each case from time to time;
     
  2.1.3 "Agreement" shall mean this quota sale and purchase agreement, including its Recitals and Schedules;
     
  2.1.4 "Applicable Laws and Regulations" shall mean all supra-national, national, regional and local laws, acts, ordinances, orders, decrees, injunctions, rules, regulations, permits, licenses, authorizations, as well as directions and requirements of any authorities, including tax authorities, having jurisdiction over the SPV and/or the Plants (including the GSE, ARERA and the Grid Operator);
     
  2.1.5 "ARERA" shall mean Autorita di &golazione per Energia Reti e Ambiente; 2.1.6 "Basket" shall have the meaning set forth in Clause 8.1 b);
     
  2.1.7 "Business Day" shall mean any calendar day (other than a Saturday or a Sunday) on which banking institutions are open for business in Milan, Italy;
     
  2.1.8 "Cap" shall have the meaning set forth in Clause 8.2;
     
  2.1.9 "Claim" shall have the meaning set forth in Clause 8.6.1;

 

 

 

  3  

 

 

  2.1.10 "Closing" shall mean the execution of the Transfer Deed and, in general, the execution and exchange of all documents and agreements and the performance and consummation of all obligations and transactions, respectively, required to be executed and exchanged and performed and consummated by the Parties on the Closing Date pursuant to this Agreement;
     
  2.1.11 "Closing Date" shall mean the date on which the Transfer Deed is executed and Closing takes place;
     
  2.1.12 "Damages" shall mean any actual loss (including losses of or shortfall in profits, earnings or revenues, and loss of opportunities), damage, liability, write-off, writedown, shortfall, including for the avoidance of doubt any insussistenza dell'attivo, minusvalenza dell'attivo, sopravvenien:a passiva and plusvalenza passiva, dividends distribution restriction, costs or expenses of whatever nature (including out-of-pocket expenses, and accountants', consultants', experts' and attorney's fees);
     
  2.1.13 "Date of Execution" shall mean the date hereof;
     
  2.1.14 "Due Diligence" shall have the meaning set forth in Recital (E);
     
  2.1.15 "Encumbrance" shall mean any security interest, pledge, mortgage, easement, lien, charge, encumbrance or restriction on the use, voting or transfer, usufruct, security or enjoyment right (diritto di garctnzia o di godimento), sequestration, deed of trust, assignment, freeze, privilege, expropriation, seizure, attachment, claim, opposition, covenant, obligation (including proper rem), burden, limitation, restriction, reservation of title, option, right of first refusal, right of pre-emption, right of set off, right to acquire, other similar restriction or any other third-party right or interest, statutory or otherwise, of any kind or nature whatsoever, however created or arising, or any agreement to create any of the foregoing or any written claim by a third party for the granting of any of the foregoing;
     
  2.1.16 "Grid Operator" shall mean Enel Distribuzione S.p.A., Terna S.p.A. and/or any other network provider on the site where the Plants have been constructed and connected to the grid;
     
  2.1.17 "GSE" shall mean Gestore dei Servizi Energetici S.p.A.;
     
  2.1.18 "ICC" shall mean the Italian Civil Code;
     
  2.1.19 "Leakages" shall mean, with respect to the SPV, any indebtedness or liability different from those indicated in the Reference Financial Statement and/or any payment (other than payments made by the SPV in favor of its relevant counterparties according to the Project Contracts and/or expressly authorised by the Purchaser) and/or any cash extraction made following the Reference Date (excluded) other than payments made in the ordinary course of business and required by Applicable Laws and Regulations. For the sake of clarity, any repayment of the Shareholder Loan Receivables will not be considered, for the purposes of this definition, as a payment made in the ordinary course of business;
     
  2.1.20 "Nominee" shall have the same meaning set forth in Clause 12.2;
     
  2.1.21 "Notice of Claim" shall have the meaning set forth in Clause 8.6.1;
     
  2.1.22 "Parties" shall have the meaning set forth in the preamble of this Agreement;

 

 

 

 

  4  

 

 

  2.1.23 "Permits" shall mean, in respect of the Plants and the SPV, each and all the authorizations, consents, approvals, nihil obstat, ways of leave, permits, licenses, certificates, environmental assessments, agreements, however named, as required pursuant to the Applicable Laws and Regulations for the construction, connection to the grid, exploitation, operation of such Plants and enjoyment of the Tariff (including any written prescription from any authority, however involved in the authorization procedure) and any attachment thereto as well as any requests or applications to obtain any of such authorizations, consents, approvals, nihil obstat, ways of leave, permits, licenses, certificates, environmental assessments, agreements; for the sake of clarity, the term "Permits" also includes any permit required for the interconnection facilities and all rights and proceedings related to the connection of the Plants to the grid, including the sohcione tecnica minima generale and the soluzione tecnica minima di dettaglio, the regolamento di esercizio, the connection agreement and any other rights or title necessary to carry out all works and infrastructures required for the (i) construction of the Plants' evacuation line, and (ii) connection of the Plants' evacuation line to the grid connection point.
     
  2.1.24 "Person" shall mean any natural person, company, firm, partnership, joint-venture, corporation, association, government or political subdivision, agency or institution of a government, or any other organization or entity;
     
  2.1.25 "Plant" shall have the meaning set forth in Recital (C);
     
  2.1.26 "Project Contracts" shall have the meaning set forth in Clause 6.7.1;
     
  2.1.27 "Purchase Price" shall have the meaning set forth in Clause 4.1;
     
  2.1.28 "Purchaser" shall have the meaning set forth in the preamble of this Agreement;
     
  2.1.29 "Quota" shall have the meaning set forth in Recital (B);
     
  2.1.30 "Quota Purchase Price" shall have the meaning set forth in Clause 4.1.2;
     
  2.1.31 "Real Estate" shall mean, in respect of the Plants and the SPV, the building and the roof (lastrico solar e) on which such Plants stands (including the facilities necessary for the construction and operation of the aforesaid Plants (including cabling, access roads and substations)), as indicated on the layout and the project of the Plants as duly and finally authorised according to the Permits and the Applicable Laws and Regulations;
     
  2.1.32 "Real Estate Contracts" shall mean the contracts executed by the SPV in order to have title over the relevant Real Estate;
     
  2.1.33 "Reference Date" shall mean December 31', 2018;
     
  2.1.34 "Reference Financial Statement" shall mean the financial statement of the SPV as of the Reference Date, attached hereto as Schedule 2.1.34;
     
  2.1.35 "Seller" shall have the meaning set forth in the preamble of this Agreement; 2.1.36 "Seller's Consent" shall have the meaning set forth in Clause 8.7.1 (a); 2.1.37 "Seller's Objection" shall have the meaning set forth in Clause 8.7.1 (a);
     
  2.1.38 "Shareholder Advance Receivables" shall mean the no-interest bearing receivables of the Seller vis-à-vis the SPV, equal to Euro 3,500.00;

 

 

 

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  2.1.39 "Shareholder Advance Receivables Price" shall have the meaning set forth in Clause 4.1.2;
     
  2.1.40 "Shareholder Loan Agreement" shall mean the shareholder loan agreement, effective from 1 January 2014 and with maturity date 31 December 2023, bearing an interest rate of 6.5% per annum, executed by the SPV;
     
  2.1.41 "Shareholder Loan Receivables" shall mean the receivables (including any interests accrued thereon as of the Closing Date) of the Seller vis-a-vis the SPV, as arising out of the Shareholder Loan Agreement and outstanding as of the Closing Date, deducted an amount equal to Euro 323,063.94 that will be waived by the SPV prior or on the Closing Date;
     
  2.1.42 "Shareholder Loan Receivables Price" shall have the meaning set forth in Clause 4.1.1;
     
  2.1.43 "Shareholder Receivables" shall mean jointly the Shareholder Advance Receivables and the Shareholder Loan Receivables;
     
  2.1.44 "Shareholder Receivables Price" shall mean jointly the Shareholder Advance Receivables Price and the Shareholder Loan Receivable Price;
     
  2.1.45 "SPI Renewables" shall have the meaning set forth in the preamble of this Agreement;
     
  2.1.46 "SPI Orange Power" shall have the meaning set forth in Recital (D) of this Agreement;
     
  2.1.47 "SPI Orange Power Receivable" shall mean the no-interest bearing receivable of SPI Orange Power vis-a-vis the SPV, equal to Euro 1,042,166.25;
     
  2.1.48 "SPV" shall have the meaning set forth in Recital (B);
     
  2.1.49 "Tariff" shall mean the incentive tariff (tai iffa incentivante) granted by the GSE to the SPV in connection with the Plants, in accordance with the applicable energy decree (Conto Energia);
     
  2.1.50 "Taxes" shall mean any Italian state or local tax, including registration tax, cadastral tax, mortgage tax, stamp duties, corporate income tax ("IRES"), regional tax ("IRAP"), trade, wealth, value-added tax ("VAT'), sales, property or transfer tax, salary/wage tax, any other withholding tax, excise taxes, customs, duties, social security contributions or any other tax, as well as any tax and social security contributions, within the meaning of any laws of foreign jurisdictions, wherever and whenever imposed, in each case together with any interest, penalty, fine, addition to tax or other ancillary duties or any other such charges within the meaning of any laws of foreign jurisdictions;
     
  2.1.51 "Third Party Claim" shall have the meaning set forth in Clause 8.7.1;
     
  2.1.52 "Third Party Claim's Notice" shall have the meaning set forth in Clause 8.7.1;
     

 

 

2.1.53 "Transaction" shall have the meaning set forth in Clause 3;
  2.1.54 "Transfer Deed" shall mean the agreement which shall be executed for the sole purposes of article 2470 of the ICC on the Closing Date for the purposes of implementing this Agreement by transferring the Quota from the Seller to the Purchaser.

 

 

 

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2.2 Interpretative Rules

 

Unless otherwise expressly provided for in this Agreement, for purposes of this Agreement:

 

2.2.1 all terms used in the singular shall be deemed to include the plural, and vice versa, as the context may require;
     
  2.2.2 the word "including" and any variation thereof shall mean "including without limitation" and shall not be construed to limit any general statement to the specific or similar items or matters following it;
     
  2.2.3 the words "hereof', "herein", "hereto" and "hereunder" refer to this Agreement as a whole (including the Recitals and the Schedules), and not to any subdivision of this Agreement;
     
  2.2.4 when calculating the period of days before which, by which, or following which any act is to be done or any step is to be taken pursuant to this Agreement, the day that is the reference date in calculating such period shall be excluded. If the last day of such period is not a Business Day, the relevant period shall end on the next following Business Day. Unless otherwise expressly provided for, any period of time expressed in months shall be calculated as provided for in article 2963, paragraphs 4 and 5 of the ICC;
     
  2.2.5 references to "Clauses", "Recitals" and "Schedules" are to the clauses, recitals and schedules of this Agreement;
     
  2.2.6 the division of this Agreement into Clauses and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement;
     
  2.2.7 any reference to the knowledge, belief and/or awareness of the Seller, or similar phrases, or any similar expression or variation thereof shall be interpreted as referring to the knowledge of a circumstance which the director(s) or the board of directors of the Seller, or of the entity to which the relevant statement refers (or which holds the assets to which the relevant statement refers), when making the statement, actually has or would have had if it had made due and careful inquiry as to the circumstance which is the subject of the statement in accordance with directors' duties under the Applicable Laws and Regulations, including the ICC;
     
  2.2.8 the obligation of a Party to cause any other Person (including a corporate body of any such Person) to undertake or to do something, or to procure that any other Person (including a corporate body of any such Person) undertake or do something, shall be construed as a "promessa dell'obbligazione o del fatto del terzo" for the purpose of article 1381 of the ICC.

 

3. THE TRANSACTION

 

3.1 Sale and purchase of the Quota and of the Shareholder Receivables

 

  3.1.1 In accordance with the terms and subject to the conditions set forth under this Agreement, on the Closing Date: (i) the Seller shall sell the Quota to the Purchaser and the Purchaser shall purchase the Quota from the Seller and pay to the latter the Quota Purchase Price; and (ii) the Seller shall sell the Shareholder Receivables to the Purchaser and the Purchaser shall purchase such Shareholder Receivables and pay to the Seller the Shareholder Receivables Price (the “Transaction”).

 

 

 

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4. PURCHASE PRICE, SHAREHOLDER LOAN RECEIVABLES PRICE AND RELEVANT PAYMENT TERMS

 

4.1 Subject to the terms and conditions set forth in this Agreement, the aggregate consideration to be paid by the Purchaser for the purchase of the Quota and for the assignment of the Shareholders Receivables (including, for the sake of clarity, any interests accrued on the Shareholder Loan Receivables as of the Closing Date) shall be equal to Euro 2,495,078.81 (the "Purchase Price") and shall be composed of:

 

  4.1.1 The amount of the nominal value of the Shareholder Loan Receivables, equal to Euro 2,066,001.06 plus applicable interest accrued as of the Closing Date, (the "Shareholder Loan Receivables Price") to be paid by the Purchaser to the Seller;
     
  4.1.2 The amount of the nominal value of the Shareholder Advance Receivables, equal to the fixed amount of Euro 3,500.00 (the "Shareholder Advance Receivables Price") to be paid by the Purchaser to the Seller;

 

(Shareholders Loan Receivables Price and Shareholder Advance Receivables Price jointly defined as "Shareholder Receivables Price").

 

  4.1.3 An amount equal to the Purchase Price minus the Shareholder Receivables Price as consideration for the Quota to be paid to the Seller (the "Quota Purchase Price") as consideration for the transfer of the Quota;

 

4.2 The Quota and the Shareholder Receivables shall be transferred free from any Encumbrance with all rights, obligations, liabilities and entitlements relating thereto and enjoinment including dividends regardless of the date of resolution, which shall be for the benefit of the Purchaser as of January 1st, 2019 (included). The Parties agree that (i) the Purchaser Price has been calculated on the basis of the Reference Financial Statement and (ii) the amount of any Leakage, regarding the SPV (that the Seller must notify to the Purchaser before the Closing) shall be deducted on a Euro per Euro basis from the Purchase Price, unless such Leakage has been expressly authorised by the Purchaser according to Clause 5.2.2 in which case no deduction shall be triggered.

 

4.3 Payment terms

 

  4.3.1 Without prejudice to Clause 4.2, the Quota Purchase Price shall be paid by the Purchaser on the Closing Date upon execution of the Transfer Deed by wire transfer of immediately available funds on the bank account of the Seller that will be indicated by the Seller prior to Closing.
     
  4.3.2 Without prejudice to Clause 4.2, the Shareholder Receivables Price shall be paid by the Purchaser on the Closing Date upon execution of the relevant Shareholder Receivables deed of assignment by wire transfer of immediately available funds on the bank account of the Seller that will be indicated by the Seller prior to Closing.
     
  4.3,3 The payments mentioned in Clauses 4.3.1 and 4.3.2 of the Quota Purchase Price and of the Shareholder Receivables Price shall occur simultaneously with the completion of all the other actions set forth in Clause 5.5.1.
     
  4.3.4 The Purchase Price will be reduced by an amount corresponding to the costs incurred by the Purchaser for the repair and/or consolidation of the roofs and the related structures,

 

 

 

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5. CLOSING

 

5.1 General

 

The Parties agree that the Quota and the Shareholder Receivables shall be transferred by the Seller to the Purchaser at Closing.

 

5.2 Interim Period

 

  5.2.1 The Seller shall procure that, from the Date of Execution until the Closing Date (both included), the SPV exercises its business in the ordinary and usual course and in accordance with ordinary standards of due diligence, care and efficiency, and takes all necessary steps to manage and exploits the Plants and maximises their production, in full compliance with the Applicable Laws and Regulations and the Permits.
     
  5.2.2 Unless expressly authorised in writing by the Purchaser within 5 Business Days from the Seller's written request - which authorization shall not be unreasonably withheld from the Date of Execution to the Closing Date (both included), the Seller shall procure that the SPV does not (and does not commit to):

 

(a) create, assume, any long-term debt for money borrowed;
     
(b) hire any employee or personnel, not even on a temporary basis;
     
(c) purchase, sell, transfer, encumber, lease (as lessor or lessee) license (as licensor or licensee) or otherwise acquire or dispose of any tangible or intangible assets;
     
(d) dispose of or transfer, or agree to dispose of or agree to transfer any business or part of any business;
     
(e) initiate, settle or waive any litigation, arbitration, prosecution or other legal proceedings;
     
(f) terminate or amend (including through any waiver or by course of dealing) any of the Project Contracts, without prejudice to Clause 5.5.1 (c) iv;
     
(g) change their accounting methods, principles, practices or policies;
     
(h) alter its memorandum or articles of association;
     
(i) incur in any Leakage and/or make any payment not strictly related to the Plants normal operational status, save for those payments necessary to comply with Applicable Laws and Regulations;
     
(j) make dividend payment and/or shareholders loan repayment;
     
(k) sign new contracts of whatever typology, save for those necessary for the ordinary course of business.

 

5.3 Conditions to the Closing

 

The Parties agree that there are no conditions precedent to Closing.

 

5.4 Date and Place of the Closing

 

The Closing shall be held on the date agreed upon by the Purchaser and the Seller - which shall in any case fall within 15 Business Days of the Date of Execution - before an Italian notary public to be designated by the Purchaser.

 

 

 

 

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5.5 Deliveries at Closing

 

  5.5.1 On the Closing Date, the Parties shall perform the following actions, which (regardless of their time sequence) shall be deemed to occur simultaneously and to constitute one single transaction:

 

(a) the Seller and the Purchaser shall execute the Transfer Deed substantially in the form attached hereto as Schedule 5.5.1 (a);

 

(b) the Seller and the Purchaser shall enter into an agreement (in the form attached hereto as Schedule 5.5.1 (b) for the purposes of assigning from the Seller to the Purchaser: (i) the Shareholder Loan Receivables - amounting to Euro 2,066,001.06 plus applicable interest accrued as of the Closing Date and; (ii) the Shareholder Advance Receivables - amounting to Euro 3,500.00;

 

  (c) the Seller shall:

 

i. procure that the sole director of the SPV resigns (and confirms in his written resignations that he has no claim whatsoever vis-à-vis the SPV, and he shall waive any such claim, if any) through execution of resignation letters drafted as attached hereto as Schedule 5.5.1 (c) i);

 

ii. cause, in relation to the SPV, a quotaholders' meeting to be validly held to resolve upon (i) the acceptance of the resignation of the previous sole director, and (ii) the appointment of the new directors/sole director to be designated by the Purchaser in lieu of the resigning one;

 

iii. deliver to the Purchaser the SPV's corporate and accounting books, as well as all the original documentation related to the SPV and the Plants (including all the Permits), as well as each other document and/or instrument that may be necessary for the purposes of vesting the Purchaser with the full and exclusive ownership of the Quota and the Shareholder Loan Receivables;

 

iv. procure that the management agreement entered into on December 30th, 2014, between CECEP Solar Energy Italy S.r.l. (former name of SPI Renewables Italy S.r.l.) and the SPV is terminated effective as of the Closing Date without the SPV and/or the Purchaser being required to incur any liability whatsoever in connection with its termination, and deliver a written statement by the legal representative of Renewables Italy Sri. whereby the latter declares to have no claim vis-à-vis the SPV in connection with the aforesaid termination. It is understood among the Parties that the SPV shall remain liable vis-à-vis SPI Renewables Italy S.r.l. for the payment of the fee/remuneration due by the SVP for the services provided by SPI Renewables Italy S.r.l. from 1st January 2019 up to Closing Date according to the terms and conditions of the said management agreement;

 

v. deliver to the Purchaser evidence of its irrevocable and unconditional renounce, in writing, to a portion of receivables arising out of the Shareholder Loan Agreement equal to Euro 323,063.94.

 

 

 

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(d)       the Purchaser shall:

 

 

i. deliver to the Seller a letter in the form of Schedule 5.5.1 (d) i) attached hereto, in which the Purchaser: (i) waives unconditionally any claims (if any) which it may have against the resigning sole director, in respect of his conduct up to the Closing Date, based on article 2476, paragraph 7, of the ICC, except in case of gross negligence ("colpa grave") and wilful misconduct ("dolo"); (ii) undertakes not to vote or promote and to cause the Company neither to vote nor to promote, respectively, any liability action against the resigning sole director in respect of his conduct up to the Closing Date pursuant to article 2476 of the ICC, except in case of gross negligence ("colpa grave') and wilful misconduct ("do/a"); (iii) undertakes to indemnify the resigning sole director (except in case of gross negligence ("colpa grave") and wilful misconduct ("dolo") against any claim or action promoted, by any of its Affiliates which shall acquire any shareholding in the Company after the Closing, connected to the claims or actions mentioned in numbers (i) and (ii) above;

 

ii. pay the Quota Purchase Price to the Seller by wire transfer in immediately available funds onto the bank account that will be indicated by the Seller prior to Closing;

 

iii. pay to the Seller the Shareholder Receivables Price, by wire transfer in immediately available funds to the bank account which shall be communicated in writing by the Seller to the Purchaser prior to Closing;

 

iv. enter (as accollante), together with the SPV (as accollato) into a an assumption of debt agreement (contralto di accollo) in the form of Schedule 5.5.1 (d) iv), whereby pursuant to Articles 1273 of the ICC: i) the Purchaser accepts to pay in full the SPI Orange Power Receivable amounting to Euro 1,042,166.25 - in favour of SPI Orange Power; ii) the Purchaser, simultaneously with the execution of such assumption of debt agreement, shall pay to SPI Orange Power the SPI Orange Power Receivable, by wire transfer in immediately available funds to the bank account which shall be communicated by SPI Orange Power to the Purchaser before Closing; iii) SPI Orange Power shall accept such agreement with releasing effects (effetti libel ator° vis-à-vis the SPV.

 

(e) the Parties shall:

 

i. immediately after the execution and the authentication of the Transfer Deed, cause the notary public to file the Transfer Deed with the competent companies' register, pursuant to article 2470, paragraph 2, of the ICC;

 

ii. cause the SPV to execute a statement pursuant to Article 1264 of the ICC by means of which the said SPV shall provide its acceptance to the transfer of the Shareholders Receivables.

 

  5.5.2 The Parties mutually acknowledge and agree that the actions and transactions constituting the Closing pursuant to Clause 5.5.1 shall be regarded as one single transaction, so that, at the option of the Party having interest in the performance of the relevant specific action or transaction, no action or transaction constituting the Closing shall be deemed to have taken place if and until all other actions and transactions referred above shall have been properly taken or performed. This shall be without prejudice to the right of the non-defaulting Party to take any action in respect of the non-performance by the defaulting Party

 

 

 

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  5.5.3 No document executed or activity carried out on the Closing Date shall have the effect of amending, superseding, affecting or novating any provision of this Agreement, which shall survive and continue to be binding upon the Parties in accordance with their terms.

 

6. REPRESENTATIONS AND WARRANTIES BY THE SELLER

 

6.1 General

 

  6.1.1 The representations and warranties given by the Seller hereunder are true, complete, correct, accurate and not misleading as of the Date of Execution and shall be true,complete, correct, accurate and not misleading as of the Closing Date.
     
  6.1.2 The Parties acknowledge and agree that the representations and warranties given, and the relevant indemnification obligation undertaken, by the Seller are autonomous warranties and indemnification obligations of the Seller and, accordingly, (i) the provisions of articles 1490 through 1495 and 1497 of the ICC shall not apply thereto, and (ii) indemnifications payable by the Seller shall be due irrespective of whether the Seller will be found to be or have been in bad faith or negligent.
     
  6.1.3 The Seller hereby acknowledges and agrees that the rights and remedies of the Purchaser under this Agreement shall not be excluded, reduced or otherwise affected by any investigation (including any Due Diligence review) conducted or that will be conducted by or on behalf of the Purchaser or by any information which the Purchaser and/or its relevant advisors may have received on or before the Closing Date.

 

6.2 Incorporation, good standing, authority of the Seller

 

6.2.1 SPI Renewables is a company duly incorporated and organized, validly existing and in good standing under the laws of Luxembourg,

 

6.2.2 Green Equity is a company duly incorporated and organized, validly existing and in good standing under the laws of Luxembourg.

 

6.2.3 The Seller, and any of its signatories hereunder, have full legal right, power, capacity and the authority to enter into this Agreement and the other documents to be executed pursuant to this Agreement and to perform and consummate the Transaction and to fulfil all obligations and duties contemplated herein.

 

6.2.4 The performance of this Agreement and of the Transaction does not (i) violate the Seller's by-laws or its other constitutional document, or (ii) constitute a breach by the Seller of any contract or other commitment undertaken by the Seller, or (iii) will result in the creation or imposition of any Encumbrance on the Quota and/or the Shareholder Loan Receivables, or (iv) jeopardize the Seller's creditors.

 

6.3 SPV capital, Quota

 

  6.3.1 The Quota represents 100% of the share capital of the SPV. The Quota is fully subscribed, entirely paid up and owned by the Seller, with good and valid title thereto. The Quota and the Shareholder Receivables are free of any Encumbrance and can be freely transferred to the Purchaser in accordance with the terms and conditions set forth under this Agreement.

 

 

 

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  6.3.2 No Person (other than the Seller) has any right whatsoever to participate directly or indirectly in the assets or profits of the SPV. There are no resolutions authorising any capital increase of the SPV or which may somehow amend or alter the by-laws of the SPV.
     
  6.3.3 Following completion of the activities due by the Parties on the Closing Date, the Purchaser will acquire full, valid and unchallengeable title to, and become the sole, legitimate, exclusive and registered owner of the Quota and the Shareholder Loan Receivables, both free and clear of any Encumbrance.
     
  6.3.4 All the filings, application and fulfilments in order to avoid the unlimited liability pursuant to article 2462 of the ICC have been performed.
     
  6.3.5 The acquisition of the Plants by the SPV and/or of the SPV by the Seller from any of its predecessor in title (if any) is not subject to being declared null and void, annulled, rescinded, terminated or revoked for any reason whatsoever, including in the event of insolvency of any of such predecessor in title. To the Seller's knowledge, the consideration for the acquisition of the Plants, the Permits and SPV from all the relevant predecessors in title, regardless of the technicalities pursuant to which the relevant acquisition took place, was determined in accordance with market values and has been paid in full so that no such predecessors in title may make any claims against the SPV and/or the Purchaser in connection with the Transaction.

 

6.4 Organization and compliance with Applicable Laws and Regulations

 

  6.4.1 The SPV is a limited liability company (society a responsabilita limitata), duly incorporated and organized and validly existing and in good standing under Italian law.
     
  6.4.2 The SPV has always complied with its by-laws and any other constitutional document and none of the activities, agreements, commitments, obligations or rights of the SPV are in breach of its by-laws or otherwise unauthorized.
     
  6.4.3 The SPV is currently managed in the ordinary course of business, in compliance with the obligations undertaken by it and has always been in compliance with all Applicable Laws and Regulations.
  6.4.4 The SPV, its management and, to the Seller's knowledge, any Person having acted in the name and/or on behalf of the Seller, have never performed acts or facts which may be considered directly or indirectly as violation (illecito) or crime (reato) contemplated under the Applicable Laws and Regulations, including Legislative Decree no. 231/2001 and which may affect the Plants, the SPV and/or the Purchaser.

 

6.5 Accounting, Corporate Books and liabilities

 

  6.5.1 All the financial statements of the SPV (including the Reference Financial Statement) have been prepared in accordance with the Accounting Principles and the Applicable Laws and Regulations using bases, practices, methods and estimation techniques consistent with those used in the preceding 3 accounting periods. Each of them gives a true and fair view (rappresenta:ione veritiera e corretta) of the assets, obligations, liabilities (actual and contingent), debt of any nature, as well as the economic and financial condition of the SPV as at the relevant reference date.

 

 

 

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  6.5.2 The SPV's accounting records and mandatory books have been kept in compliance with the Accounting Principles and the Applicable Laws and Regulations. All the corporate procedures and actions reflected therein have been and will be conducted or taken in compliance with the Applicable Laws and Regulations and the relevant documents of incorporation.
     
  6.5.3 Each transaction to be registered in the SPV's books and records pursuant to the Accounting Principles arid/or the Applicable Laws and Regulations has been and will be recorded on the books and records of the SPV and each document on which entries in any such books and records are based (including purchase orders, customer or company invoices and service agreements) is true, complete and accurate in all respects.
     
  6.5.4 Up to the Closing Date, (i) the business of the SPV has been conducted in accordance with the principles and obligations set out in Clause 5.2.1, and (ii) the SPV has not taken or carried out any action or transaction contemplated in Clause 5.2.2.
     
  6.5.5 As of the Closing Date, the SPV has not incurred in any Leakage (other than payments made by the SPV in accordance with the Project Contracts and/or expressly authorised by the Purchaser and other than payments made in the ordinary course of business and required by Applicable Laws and Regulations. For the sake of clarity, any repayment of the Shareholder Loan Receivables will not be considered, for the purposes of this representation and warranty, as a payment made in the ordinary course of business).

 

6.6 Real Estate

 

  6.6.1 The SPV holds valid, duly registered, unchallenged, definitive, enforceable and undisputed titles over the Real Estate, as resulting from the Real Estate Contracts, enforceable against any third party, to build and operate the Plants and the relevant mitigation works. With regard to the connection infrastructures, the SPV has validly transferred the ownership, the relevant Permits to the extent it is necessary, and the related Real Estate right to the Grid Operator of the portion regarding the so called "impiant© di rete".
     
  6.6.2 The Real Estate is not affected by Encumbrances of any type. Neither the Seller nor the SPV have entered into any agreement (final, preliminary or otherwise) for the disposal of the Real Estate, or any portion thereof, or for the setting up of any kind of Encumbrance, right or obligation of any type over it from which any kind of limitation or restriction over the use, fruition or disposition of the Real Estate may arise.
     
  6.6.3 There are no environmental constraints pursuant to the Applicable Laws and Regulations which are or may be of prejudice to the construction and operation of the Plants over the Real Estate where such Plants have been constructed. The Real Estate and the relevant subsoil are in full compliance with the environmental Applicable Laws and Regulations.
     
  6.6.4 The Real Estate Contracts have been duly and timely registered with the competent tax office (registrati) and recorded (trascritti) with the competent Land Registry (Conservatoria dei Registri Immobiliari).

 

 

 

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6.7 Contracts

 

  6.7.1 All contracts, understandings, agreements, arrangements, commitments of any nature to which the SPV is a party are listed under Schedule 6.7.1 (collectively, the "Project Contracts")
     
  6.7.2 The Seller and the SPV have not entered into any contract that it is not at arm's length and consistent with market standards.
     
  6.7.3 The Project Contracts are in full force and effect and no party to a Project Contract has given written notice of termination or indicated in writing that it will give notice of termination, and to the Seller's knowledge, no circumstances exist which give any party to a Project Contract the right to terminate or modify such Project Contract. All payment or other obligations contained in the Project Contracts have been fully and timely discharged by the SPV.

 

6.8 Plants, Permits and Tariff

 

  6.8.1 The Plants have been developed and realized in compliance with the best industry practice after due examination of all the characteristics and conditions of the Real Estate and the latter was suitable for the envisaged construction methodology of the Plants as well as of the relevant interconnection facilities.
     
  6.8.2 The contractor, the works director and the SPV have timely, duly and correctly performed their respective obligations in compliance with the health and safety, construction and seismic Applicable Law and Regulations.
     
  6.8.3 The Plants have been built, connected to the grid and is being operated in full compliance with the relevant designs as authorized by the competent public entities and authorities, with the Applicable Laws and Regulations as well as with the Permits.
     
  6.8.4 There are no further plants joint or close to the Plants, whose nominal capacity, cumulated with the nominal power of the Plants, could affect in any manner the validity and effectiveness of any of the Permits and/or trigger the need to carry out the environmental impact assessment procedure.
     
  6.8.5 The SPV is the sole legal beneficiary of the Permits and such Permits are fully valid, effective and enforceable and there has not been any default and/or irregularity in the procedure for the issuance thereof (vizi della procedura).
     
  6.8.6 The Permits have been duly obtained by the SPV (or have validly been transferred to the SPV) and any and all obligations relating to the existence, validity and effectiveness of the Permits, and any legal, economical and/or technical prescriptions contained therein, has been fully and timely complied with so that the SPV validly and effectively maintains all the Permits as required in connection with the Plants, and, to the Seller's knowledge, there is no ground for revocation, suspension or annulment thereof.
     
  6.8.7 To the Seller's knowledge, the execution of this Agreement and/or the consummation of the Transaction will not lead to the termination, suspension, annulment or withdrawal of any of the Permits and will also not give rise to any right of the competent authorities, including without limitation the GSE, the Grid Operator, or other third parties to terminate and/or revoke and/or cancel and/or suspend and/or amend such Permits.
     

 

 

 

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  6.8.8 Any variations between the Plants-as-built and the Plants-as-designed (progetto esecutivo and progetto definitivo) have been notified to, and authorized by, the competent authorities in compliance with the Applicable Laws and Regulations.
     
  6.8.9 All Plants' components and/or parts that have been replaced, if any, comply with the original Permits and are in good operating order except for ordinary tear and wear, The replacements of inverters, modules and other component for the Pant, if any made, have been duly communicated to the GSE.
     
  6.8.10 All components' warranties (including all inverter and modules warranties) for the Plants are valid and in force. All main components have been installed and managed in compliance with technical specification of the components provider.
     
  6.8.11 There are no payment obligations (nor there will be in the future as a result of act, facts, circumstances or event occurred prior to the Closing Date) owed to or claimed by the component providers for the construction and operation of the Plants.
     
  6.8.12 The SPV has properly performed any action and properly filed all the relevant documents necessary for the obtainment and maintaining of the Tariff (in respect of the whole Plant's nominal peak power) as attributed to it pursuant to the energy decree (Canto Energia) applicable to the Plant. The Plants are legally and technically suitable for the maintaining of the Tariff by the SPV in accordance with the Applicable Laws and Regulations and the Permits.
     
  6.8.13 None of the information or documentation delivered to the GSE for the purposes of being awarded with the Tariff is untrue, inaccurate or incomplete and the information and/or documentation provided to the GSE fully complies with GSE requirements for projects of the same type as the Plants. To the Seller's knowledge, there are no circumstances based on which the granting of the Tariff may be revoked, suspended, reduced or otherwise affected and there is no pending or threatened investigation by the GSE which may lead to the suspension or revocation of the Tariff. The GSE has been regularly paying the Tariff to the SPV.
     
  6.8.14 In respect of the Plants, the agreement (convenzione) for the Tariff award and the agreement for the sale of the energy have all been duly and timely entered into by the SPV with the GSE. To the Seller's knowledge, there are no circumstances based on which such rights may be legitimately revoked or otherwise affected.

 

6.9 Tax compliance

 

  6.9.1 The SPV:

 

(a) has duly and timely paid every Tax which it has become liable to pay before the Closing Date;

 

(b) has duly and timely filed with the competent tax authorities all Tax returns, declarations and social security statements within the required terms and on a proper basis in compliance with the Applicable Laws and Regulations in respect to Taxes. The Tax returns were correct and complete in all respects and adequately reflect the Tax liabilities of the SPV, at the time of the filing for the relevant period covered thereby;

 

(c) has never been resident for Tax purposes in any jurisdiction other than Italy;

 

 

 

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(d) is entitled to all Tax shown in its Tax returns and no such Tax returns is the subject of any dispute with any Tax authority.

 

  6.9.2 Neither the SPY nor any of its directors or officers has any fine, penalty, surcharge or interest outstanding in relation to Taxes. No Tax claims or investigation are pending or threatened against the SPV and no notice of any such claim or investigation has been received by the SPV.

 

6.10 Powers of attorney, relationship with advisors, employees and labour matters

 

  6.10.1 The SPY has no employees, is not bound to hire any Person and no third parties have rendered services to the SPV which, according to how they were provided or due to agreements with the SPY, entitle them to claim the acknowledgement of the status of employee. There are no individuals who are entitled, under any law or collective bargaining agreement to be recognised as being or as having been an employee of the SPY or to bring any claim vis-à-vis the SPV based on any labour or cooperation relationship which may be qualified as rapport! di lavoro autononw, rapporti di lavoro parasubordinato, collaborazioni autonome e continuative, collabora:ioni a progetto or agenda, including for remuneration of services or payment of social security contributions, in connection with any performance and/or services rendered by such individual, directly or indirectly, to the benefit of the SPY.
     
  6.10.2 None of the former or current directors of the SPV has any residual claim vis-à-vis the SPY of any kind whatsoever in respect of the activities carried out. No judicial, extrajudicial, administrative and arbitration proceedings have been brought or threatened against the SPV by any director(s).
     
  6.10.3 All documents pertaining to agents, advisors, consultants and brokers acting in the interest of the SPV (including the evidence of the payments of all amounts due to them) have been made available in the course of the Due Diligence. The SPY has performed all obligations and duties in respect of the agents, advisors, consultants and brokers acting in the interest of the SPY in compliance with all Applicable Laws and Regulations.
     
  6.10.4 The SPV has not granted any power of attorney in favour of any person, firm or company for any purpose whatsoever.
     
  6.10.5 All negotiations relating to the Transaction have been carried out without the intervention of any entities and/or individuals carrying out activities on behalf of the Seller that may ground any claim in connection with intermediation activities or payment of intermediation commissions, remunerations or any other similar fee against any of the SPV or the Purchaser.
     

 

6.11 Good standing; Litigation and claims

 

  6.11.1 Neither the Seller nor the SPY are insolvent nor under bankruptcy procedure or similar proceedings, nor has been declared bankrupt and no action or request to declare either the Seller or the SPY bankrupted or to make the Seller or the SPV subject to winding-up, liquidation, dissolution, insolvency and/or any similar proceeding is pending or threatened; the execution of the Agreement and the consummation of the Transaction will not result in any such winding-up, liquidation, insolvency or bankruptcy procedure of the Seller and or the SPV. Neither the Seller nor the SPY are in default of payment of any of their obligations, have requested any of their creditors to forgive or restructure debt or to extend their payment obligations. No voluntary arrangement, compromise or similar arrangement with creditors has been proposed, agreed or sanctioned in respect of the SPV or any of its assets.

 

 

 

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  6.11.2 There are no pending and/or threatened-in-writing proceedings of civil, criminal, civil, administrative, labour, Tax or any other nature before any arbitration panel, tribunal or other judicial, regulatory or administrative authority in which the SPV or the Seller are a party, whether as plaintiff or defendant or otherwise, and which may have an impact on the Plants, Project Contracts, Real Estate, Permits and/or the ability of the SPV to carry out its own business and the Seller is not aware of any facts or circumstance which may give rise to any such proceedings.
     
  6.11.3 No written notice of any expropriation, revocation, termination, invalidity, non-renewal, annulment or other expiry or forfeiture of any of the Real Estate contracts has been delivered to the SPV, nor, to the Seller's knowledge, there have been or there are any facts, acts, omissions, events or circumstances which may ground any such revocation, termination, invalidity, non-renewal, annulment or other expiry or forfeiture of any of the rights granted under the Real Estate Rights nor which may adversely affect the use or enjoyment (godimento) of such rights by the SPV.
     
  6.11.4 There are no challenges or objections to the Permits before any governmental, administrative or judicial authority under Applicable Laws and Regulations neither notice of termination, revocation, invalidity, expiry, forfeiture, non-renewal, annulment or suspension which are pending, have been notified or however communicated in writing to the SPV and/or the Seller. The SPV and/or the Seller are not subject to any proceedings and/or action of the competent public authority aimed to annul in self-defence (anmillcunento in autowtela) the authorising titles for the Plants.
     
  6.11.5 There are no judgments, rulings or orders against the SPV and/or the Plants, Real Estate, Permits and/or Project Contracts, which the SPV has not complied with or fulfilled and there is and there has been no delay by the SPV in the completion of any obligation ensuing from such judgements, rulings or orders, if any.

 

6.12 Intra-a-group debts and other arrangements

 

  6.12.1 There are:

 

(a) except for the Shareholder Loan Receivables, no amounts outstanding or obligations due by and between the SPV, the Seller and/or any other Person related to the SPV and/or the Seller;

 

(b) no contract, guarantee, agreement, understanding or commitment, either in written form or in verbal form by and between any of the SPV, the Seller and/or any other Person related to the SPV and/or the Seller;

 

(c) all intra group transactions including the Shareholder Loan Agreements have been carried out by the SPV at arm's length and in compliance with any applicable transfer pricing rules.

 

6.13 Accuracy of information and documentation provided

 

  6.13.1 All information and documents disclosed in the course of the Due Diligence and/or given to the Purchaser and its advisors by the Seller and/or the SPV during the Due Diligence or in any case prior to the execution of this Agreement are true, complete, correct, accurate and not misleading in all respects.

 

 

 

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  6.13.2 There are no facts or circumstances which have not been disclosed in writing to the Purchaser and its advisors and which could adversely affect the SPV and/or the Plants.

 

6.14 Pre signing and interim period

 

  6.14.1 From January 1st, 2019 to the Closing Date (both included) the SPV has been managed in accordance with Clause 5.2.

 

7. INDEMNIFICATION OBLIGATIONS OF THE SELLER

 

7.1 Seller's - indemnifiable Damages

 

The Seller agrees to indemnify and hold the Purchaser harmless from and against any Damage suffered by the Purchaser or the SPV in connection with any event, fact or circumstance rendering any representation and warranty provided under Clause 6 (in whole or in part) untrue, incomplete, incorrect, inaccurate or misleading. The Seller's representations and warranties have to be deemed specific: in order to avoid any doubt, this means that matters included and foreseen, in whole or in part, by a specific representation, shall not be considered contained by a different or more general Seller's representation and/or warranty. Therefore, there will be no duplication of recovery in respect of any fact giving rise to a claim under the Seller's representations and warranties.

 

7.2 Duty to mitigate

 

Notwithstanding the foregoing, the Purchaser shall use its best efforts to prevent and mitigate and to cause the SPV to prevent and mitigate - any Damage that it may incur as a consequence of a matter that gives rise to a breach of the Seller's representations and warranties.

 

7.3 Sole remedy

 

Subject to Closing, the indemnification obligations of the Seller provided under this Clause 7 is the sole remedy available to the Purchaser for breach or inaccuracy of the Seller's representations and warranties or for breach of any obligation of the Seller set forth in this Agreement, to the exclusion and in lieu of any other right or remedy available to the Purchaser under Applicable Laws and Regulations, without prejudice for any remedy pursuant to article 1439 of the ICC.

 

8. LIMITATIONS ON THE SELLER'S LIABILITY

 

8.1 De Minimis - Basket

 

The Seller shall only be liable in respect of any Damages arising out of breaches of the Seller's representations and warranties if:

 

a) the amount of the liability agreed or determined in respect of any individual Damage, considered alone or in the aggregate as a series of Damages arising from the same circumstances, exceed Euro 10,000;

 

b) such Damages exceed, in the aggregate, Euro 40,000 (the "Basket"), in which case the Seller shall be liable only for the amount in excess of the Basket.

 

 

 

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8.2 Cap to Seller's liability

 

The total aggregate liability of the Seller in respect of all claims under the Seller's representations and warranties or arising from breaches of the Seller's covenants under this

 

Agreement is limited to an amount equal to the 60% of the Purchase Price (the "Cap").

 

The Cap shall not apply to Damages deriving from breach of the Seller's representations and warranties set forth in Clauses 6.2 (Incorporation, good standing, authority of the Seller), 6.3 (SPV capital, Quota) nor, for the sake of clarity, to Damages deriving from breach of the Seller's representations and warranties due to the Seller's gross negligence (colpa grave) or willful misconduct (dolo).

 

8.3 Other limitations to Seller's liability

 

In calculating the liability of the Seller for any claim under the Seller's representations and warranties, that liability must be reduced by the sum of the following economic benefits relating to that claim:

 

a) any indemnification payable hereunder shall be increased to an amount which ensures that the Purchaser and/or the SPV, as the case may be, receive a sum which, after having actually paid any Tax due in connection therewith, is equal to the amount which they would have benefitted from if no Tax had been payable in connection therewith. Conversely, in the event and to the extent that any Damage incurred by the Purchaser, and/or the SPV, as the case may be, actually indemnified by the Seller under this Agreement, is deductible by the Purchaser or the SPV, for income tax purposes in any given fiscal year, in such event and to such extent, the indemnity due by the Seller in respect of such Damage will be reduced by the actual reduction of net Tax liability (if any) resulting from the deductibility of the Damage ;

 

b) any amount which the Purchaser or the SPV have actually recovered from any third party in respect of such claim.

 

8.4 Exclusions and Restrictions

 

  8.4.1 The Seller shall not be liable under Clause 7.1 unless a Notice of Claim is given to it:

 

(a) on or before 24 months after the Closing Date, if a Damage arises from any of the representations and warranties contained in Clause 6, other than those referred to in the following paragraph (b);

 

(b) on or before the date of the expiry, for statutory limitation, of the rights or prerogatives which the relevant third parties could assert against the Purchaser or the relevant SPV, if a Damage arises from any of the representations and warranties concerning Tax, labour, or environmental matters,

 

provided however that the Seller's indemnification obligations shall remain valid, also after the expiration of the terms set out above, in case before the expiration thereof the Purchaser has sent to the Seller a Notice of Claim.

 

8.5 Liability of the Seller only in relation to actual losses

 

Notwithstanding any other provision of this Agreement, the Seller shall not be held liable for any claim and/or loss which arises by reason of a liability which, at the time when the Notice of Claim is given to the Seller, is contingent or potential, and the Seller shall not be liable to make any payment in respect of such claim and/or loss unless and until the liability becomes an actual liability, also as a result of an enforceable obligation to pay, or an interim measure binding on the SPV (e.g. including by way of a judgment or provision "provvisoriomente esecutivo", whether through "sentenza", "ordinanza" or "decreto" "or "ingiunzione" or "cartella esattoriale" or otherwise, and including for the avoidance of doubt any preventive remedy ("provvedinzento cautelare"), or a settlement agreement executed by the Purchaser and/or the SPV in compliance with Clause 8.7 below).

 

 

 

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8.6 Handling of Claims

 

8.6.1 If the Purchaser intends to seek indemnification from the Seller pursuant to Clause 7.1, the Purchaser shall provide the Seller with written notice of any fact which may result in the Purchaser's and/or the SPV's suffering a Damage (the "Notice of Claim"). The said Notice of Claim shall be provided to the Seller as promptly as possible and in any event within 20 (twenty) days after the Purchaser has become aware of such fact or event and it shall set forth (i) the claim which the Purchaser intends to make (the "Claim"), (ii) the specific representation or warranty of the Seller set forth in this Agreement that the Purchaser alleges to be breached, and (iii) all related available information.

 

  8.6.2 In case the Seller rejects a Claim made in a Notice of Claim, the Seller and the Purchaser shall attempt to resolve any differences that they may have with respect to the matters constituting the subject matter of such Notice of Claim during a period of 20 Business Days starting from the date of rejection. lf, by the end of such period, the Seller and the Purchaser have failed to reach an agreement in writing with respect to all of such matters, all matters as to which an agreement has not been so reached may be submitted to the Court of Milan pursuant to Clause 13.2 by either Party.

 

8.7 Third Parties Claims

 

  8.7.1 In the event that of a third-party claim ("Third Party Claim"), possibly resulting in the Purchaser's right to be indemnified pursuant to the Seller's obligations under this Agreement, the Purchaser shall, under penalty of forfeiture, inform the Seller in writing, by registered letter (the "Third Party's Claim Notice"), within thirty (20) Business Days from the date such claim is received (or the shorter term which shall be necessary or appropriate in order not to lose any defence right or benefit), providing all reasonable information it has become aware of about such claim, including information as to any settlement proposal of such Third-Party Claim; it being understood that the Purchaser shall:

 

(a) cause the SPV not to settle any such claim, action, suit or proceeding without the prior written consent of the Seller (the "Seller's Consent"), which shall not be unreasonably delayed or denied. In any case, the Seller's Consent shall be deemed to have been given, unless the Seller notifies the Purchaser to the contrary in writing in reasonable detail (together with any supporting justifications and written explanations) not later than 20 Business Days following receipt by the Seller of the Purchaser's consent request in writing, unless circumstances require otherwise in order to allow the Purchaser and/or the SPV to settle the Third Party Claim and/or to exercise its rights under this Agreement (the "Seller's Objection");

 

(b) have the right to handle the defence of any such Third Party Claim and shall allow the Seller to participate, by counsels of their own choice, at their own cost, in the defence of any Third Party Claim, provided that, should the Parties disagree with respect to the handling of the relevant Third Party Claim, the defence strategy of the Purchaser shall prevail.

 

  8.7.2 The Purchaser shall not, and shall procure that the SPV shall not, make any admission of liability, agreement, settlement or compromise with any third party in relation to any such claim without the prior written Seller's Consent provided, however, that if a firm offer is made to the SPV or to the Purchaser to settle any matter giving rise to the Seller's indemnification obligations which the Seller, but not the Purchaser, is willing to accept, the Purchaser and/or the SPV (as the case may be) shall be free not to enter into such settlement and to commence or continue litigation, at their own expenses, however the Seller's indemnificatiodisagree with respect to the handling of the relevant Third Party Claim, the defence strategy of the Purchaser shall prevailn obligations under Section 7.1 shall be limited without prejudice to the application of the provisions of Sections 8.1, 8.2, 8.3, 8.4 and 8.5 - to the amount of the proposed settlement. It being understood that should: (i) the Seller's Objection be raised in relation to a certain proposed settlement and (ii) a proceeding be started or be continuing in connection with the relevant Third Party Claim then the Seller shall indemnify and keep fully harmless the Purchaser and/or the SPV - without application of Cap - in respect of any Damages which they may incur in connection with the Third Party Claim.

 

9. REPRESENTATIONS AND WARRANTIES BY THE PURCHASER

 

The Purchaser hereby makes the following representations and gives the following warranties to the Seller, which are true as at the Date of Execution and, unless otherwise provided, on the Closing Date.

 

9.1 Due Organization and Existence of the Purchaser

 

The Purchaser is a corporation incorporated and duly organized, validly existing, and in good standing under the laws of Italy.

 

9.2 Authority and Enforceability, Consents, No Conflicts for the Purchaser, No intermediation

 

  9.2.1 All corporate action necessary for the Purchaser to approve the execution and performance of this Agreement have been carried out and the Purchaser has all necessary right, power, authority and capacity to enter into this Agreement and carry out the transaction contemplated herein. This Agreement constitutes valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms.
  9.2.2 The Purchaser is not subject to any bankruptcy proceedings, has not entered into arrangements by which its assets have been transferred to its creditors, is not insolvent nor has been put into liquidation; there are no bankruptcy proceedings or other insolvency proceedings pending against the Purchaser and no bankruptcy, liquidation or similar procedures pending against the Purchaser.
  9.2.3 The Purchaser has available all funds necessary to pay the Purchase Price and the Shareholders Loan Receivables and in general to consummate the transactions contemplated by this Agreement.
  9.2.4 All negotiations relating to the Transaction have been carried out without the intervention of any entities and/or individuals carrying out activities on behalf of the Purchaser that may ground any claim in connection with intermediation activities or payment of intermediation commissions, remunerations or any other similar fee against the Seller.

 

9.3 Due Diligence Review

 

  9.3.1 The Purchaser represents and acknowledges that it has performed the Due Diligence and that, in such context:

 

a) the Purchaser has had the opportunity to review the information and the data room documents made available by the Seller or their representatives and/or advisors;

 

b) the Purchaser has been granted access to the Plants, in the context of several site visits and management meetings;

 

c) the Purchaser has raised with the Seller specific issues and questions and has obtained satisfactory and complete answers/information by the Seller and/or their advisors.

 

10. CONFIDENTIAL INFORMATION

 

10.1 Each Party shall not, without the prior written consent of the other Party, disclose to any Person, or make a public announcement of any of the terms or other facts relating to this Agreement, or to any other agreement or arrangement relating to the Transaction, other than on a confidential basis, to any of its Affiliate(s).

 

10.2 Where a Party reasonably determines that a disclosure or announcement is required by the Applicable Laws and Regulations or by any other authority with relevant powers to which such Party or any of its Affiliate(s) is subject, the disclosure or announcement shall, to the extent permitted by the Applicable Laws and Regulations, be made after consultation with the other Party and after taking into account the reasonable requirements of the other Party as to timing, content and manner of making or dispatch of the disclosure or announcement.

 

10.3 The Seller acknowledges that:

 

  10.3.1 the Purchaser (and/or its Affiliates) may be under disclosing obligations relating to the certain terms of the Transaction in order to comply with the applicable stock exchange regulations and securities laws; and

 

  10.3.2 the Purchaser (and/or its Affiliates) will also disclose certain information about the Transaction to its shareholders and prospected investors to get the necessary funding.

 

10.4 Accordingly, the Purchaser shall not be deemed in breach of this Clause 10 as a result of any disclosure made pursuant to Clause 10.3 above.

 

11. COSTS AND TAXES

 

11.1 Any tax, cost, expense, fee, duty, or charge arising out in connection with this Agreement or the Transaction contemplated herein shall be borne as follows:

 

  11.1.1 any income and capital gain taxes (if any) due by the Seller as a consequence of the sale and purchase of the Quota shall be borne by the Seller;
     
  11.1.2 each Party shall bear the fees and expenses incurred by their respective representatives and advisors; and
     
  11.1.3 notarial fees and registration tax shall be borne by the Purchaser.

 

12. MISCELLANEOUS PROVISIONS

 

12.1 Entire Agreement

 

This Agreement contains the entire understanding and supersedes all prior agreements/arrangements of the Parties with respect to the Transaction contemplated hereunder, including the letter of intents dated December 4th, 2018.

 

12.2 Purchaser's right to designate

 

Pursuant to article 1401 of the ICC, the Purchaser shall have the right to designate a Person to become a party (or an additional party) to this Agreement (the "Nominee") and to purchase, and pay for all or part of the Quota and the Shareholder Loan Receivables in accordance with the terms hereof, provided that such designation is in compliance with the following provisions: (i) anything in articles 1402 and 1403 of the ICC to the contrary notwithstanding, any designation pursuant hereto shall be made and communicated to the Seller not later than 10 Business Days prior to the Closing Date together with the written unconditional acceptance of the Nominee of the designation and of all the terms and conditions of this Agreement; (ii) the Nominee shall be an Affiliate of the Purchaser, (iii) the Purchaser shall remain jointly and severally obligated to the Seller in respect of all the Nominee's obligations under this Agreement; and (iv) following the designation to become a Party to this Agreement in lieu of the Purchaser, any reference made to the Purchaser under this Agreement shall be deemed to be made to the Nominee. Notwithstanding the designation of the Nominee hereunder, Clause 13.2 (Exclusive Jurisdiction) shall continue to apply also to the original Purchaser.

 

12.3 No assignment

 

No Party shall be entitled to assign any of its rights and obligations hereunder without the prior written consent of the other Party.

 

12.4 Notices

 

Any communication or notice required or permitted to be given under this Agreement shall be made in writing and in English language and shall be deemed to have been duly and validly given (i) in the case of notice sent by registered letter, upon the Business Day following the signing of the return receipt by the recipient and (ii) in the case of notice sent by e-mail, upon the Business Day following receipt by the sender of the receipt of delivery by the recipient, addressed, in each case, as follows:

 

if to the Seller:

 

SPI Renewables Energy (Luxemburg) Private Limited Company S. a r.l.

 

6, Rue Eugene Ruppert, L-2453 Luxembourg

 

E-mail: gaia.baldinifemigroups.com;

 

E-mail: ludovic.trogliero@intertrustgroup.com;

 

if to the Purchaser:

 

Theia Investments (Italy)

 

Via Giovanni Boccaccio 7

 

20123 - Milan

 

E-mail: david.lindsaytOstaffordcp.com

 

PEC: theia@legalmaiLit,

 

or at such other address as either Party may hereafter provide to the others by written notice, as provided herein.

 

12.5 Changes in writing

 

This Agreement may not be waived, changed, modified or discharged orally, but only by an agreement in writing signed by the Parties.

 

12.6 No waiver

 

Except for the cases of forfeiture expressly provided for by this Agreement, the failure to exercise or any delay in exercising a right or remedy provided by this Agreement or by Applicable Laws and Regulations shall not impair or constitute a waiver of such right or remedy or an impairment or a waiver of other rights or remedies.

 

12.7 Set-off

 

The Purchaser shall be entitled to set-off any amount due by it under this Agreement with any amount due by the Seller to the Purchaser under this Agreement.

 

13. APPLICABLE LAW — EXCLUSIVE JURISDICTION

 

13.1 Applicable law

 

This Agreement, any connected Schedules or documents and the rights and obligations of the Parties hereunder or however connected with its execution, perfection, construction and performance shall be governed by and construed and interpreted in accordance with the laws of Italy.

 

13.2 Exclusive jurisdiction

 

All disputes arising out of or in connection with this Agreement and the documents connected therewith (including the Transfer Deed) shall be submitted to the exclusive jurisdiction of the Court of Milan.

 

14. LIST OF SCHEDULES

 

The following Schedules constitute an integral and substantial part of this Agreement:

 

  · Schedule 2.1.34: Reference Financial Statements;
     
  · Schedule 5.5.1 (a): Transfer Deed;
     
  · Schedule 5.5.1 (b): Shareholder Receivables Deed of assignment;
     
  · Schedule 5.5.1 (c) i): Sole Director Resignation Letter;
     
  · Schedule 5.5.1 (d) i): Release Letter;
     
  · Schedule 5.5.1 (d) iv): Assumption of debt Agreement;
     
  · Schedule 6.7.1: List of Contracts.

 

 

 

 

 

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SPI Renewables Energy (Luxemburg)   Private Limited Company S. à r.l.
     
   
Name: Cheong Hoong Khoeng   Name: Universal Management Services S.à r.l.
     
Title: Manager A   Title: Manager B
     
     
     
     
Theia Investments (Italy) S.r.l.    
     
     
/s/ David Lindsay    
Name: David Lindsay    
Durector    

 

 

 

 

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Schedule 5.5.1 (b): Shareholder Receivables Deed of assignment

 

[on SPI Renewables Energy Luxenzburg letterhead]

 

[•] 2019

 

Theia Investments (Italy) S.r.l.
Via Giovanni Boccaccio 7

20123 - Milan

 

Copy to:

SUN ROOF II S.r.l.
Viale Gran Sasso 11,
20131 - Milan

 

Subject: Shareholder Receivables Deed of assignment — proposal

 

Dear Sirs,

 

in relation to the sale and purchase agreement (hereinafter the "SPA") entered into on 23 September 2019 by and among S.P.I. Renewables Energy (Luxembourg) Private Limited Company S. a r.I., as seller, on the one side, and Theia Investments (Italy) S.r.l., as purchaser, on the other side, for the sale and purchase of 100% of the corporate capital of Sun Roof II S.r.l., a company organized under the laws of Italy, with registered office in Milan, Viale Gran Sasso 11, registered with the Companies' Register of Milan Lodi Monza Brianza under No. 07531620966 (hereinafter the "Company"), herewith we propose the following:

 

SHAREHOLDER RECEIVABLES DEED OF ASSIGNMENT

 

Among

 

S.P.I. Renewables Energy (Luxemburg) Private Limited Company S. ii r.1., a limited liability company registered and incorporated under the laws of Luxembourg and having its registered office at 6 Rue Eugene Ruppert, L-2453 Luxembourg, and registered with the Companies' Register of Luxembourg under no. B156036, tax number 20102434979, represented herein by Gaia Baldini, in her capacity as Manager A, duly empowered pursuant to a Board of Directors resolution dated 18 September 2019;

(hereinafter the "Seller")

 

- on the one side -

 

and

 

Theia Investment (Italy) S.r.l., a company incorporated under the laws of Italy, having its registered offices at Via Giovanni Boccaccio 7, 20123, registered with the Companies' Register of Milano Monza Brianza Lodi under no. MI-2551617, tax and VAT code 10711700962, represented herein by David Lindsay, in his capacity as Director, duly empowered pursuant to a resolution [CORPORATE BODY] dated [DATE];

(hereinafter the "Purchaser")

 

- on the other side -

 

(hereinafter jointly the "Parties" and each of them the "Party")

 

RECITALS

 

(A) As of the date hereof, Seller has a receivable vis-a-vis the Company equal to [.] including the relevant interests (hereinafter the "Shareholder Receivables"), deriving from:

 

· An interest-bearing intercompany loan, for an original aggregate amount of Euro 4,706,956.88, with an annual interest rate equal to 6.5%, advanced to the latter on I January 2014 and with a maturity date of 31 December 2023;

 

· A shareholder advance equal to the fixed amount of Euro 3,500.00;

 

 

  32  

 

 

Schedule 5.5.1 (b): Shareholder Receivables Deed of assignment

 

(B) The Seller intends to sell to Purchaser, who intends to purchase, the Shareholder Receivables on the terms and conditions contained in this agreement.

 

Now, therefore

the Parties agree as follows.

 

1. RECITALS

 

The Recitals form an integral and substantial part of this agreement (hereinafter the "Agreement").

 

2. SHAREHOLDER RECEIVABLES ASSIGNMENT

 

2.1. The Seller sells to Purchaser, who purchases, the Shareholder Receivables (including all rights and obligations thereunder) with effect from today's date.

2.2. The assignment of the Shareholder Receivables is made and accepted "pro soluto" and therefore the Seller warrants to Purchaser, pursuant to Article 1266 of the Italian Civil Code, that the Shareholder Receivables are valid, existing, and are not subject to any pledge, usufruct, foreclosures or restrictions of any kind, but no warranty is given by Seller, pursuant to Article 1267 of the Italian Civil Code, on the actual payment of the Shareholder Receivables by the Company.

 

3. INTERCOMPANY RECEIVABLE PRICE

 

Purchaser as a consideration for the purchase of the Shareholder Receivables, pays to Seller, simultaneously with the execution of this Agreement, the sum of Euro by means of irrevocable wire transfer on the bank account no. [_____].

 

4. EFFECTS

 

4.1 The Shareholder Receivables shall be transferred to Purchaser with enjoyment as from the date hereof.

4.2 The Parties declare that this Agreement does not intend to renew, modify, replace or amend any other agreement signed between the Parties concerning, inter alia, the same subject matter of this Agreement, which remain fully valid and effective. In particular, there is no extinction due to the signing of this Agreement of any declarations or guarantees given by Seller to Purchaser,

 

5. GOVERNING LAW AND DISPUTE RESOLUTION

 

This Agreement shall be governed by and construed in accordance with Italian law. Any dispute arising from and connected with this Agreement shall be subject to the exclusive jurisdiction of the Court of Milan.

 

* * *

 

If you agree with this proposal, please express your acceptance, by sending a copy of this letter reproducing its text and duly signed below for acceptance.

 

 

Kind regards,

 

 

______________________ 

S.P.I. Renewables Energy (Luxemburg) Private Limited Company S. a r.l.

 

Name Gaia Baldini

 

 

  33  

 

 

Schedule 5.5.1 (b): Shareholder Receivables Deed of assignment

 

Title: Manager A

 

 

 

 

 

 

 

 

 

 

  34  

 

 

Schedule 5.5.1 (b): Shareholder Receivables Deed of assignment

 

[on Theia letterhead]

 

[•] 2019

 

S.P.I. Renewables Energy (Luxemburg) Private Limited Company S. it r.l.

6 Rue Eugene Ruppert

Luxembourg

 

Copy to:

SUN ROOF II S.r.l.
Viale Gran Sasso 11,
20131 - Milano

 

Subject: Shareholder Receivables Deed of assignment — acceptance

 

Dear Sirs,

 

We acknowledge receipt of your proposal, whose terms and conditions are fully reproduced herein below:

 

"Dear Sirs,

 

in relation to the sale and purchase agreement (hereinafter the "SPA') entered into on 23 September 2019 by and among Renewables Energy (Luxembourg) Private Limited Company & a 1.4 as seller, on the one side, and Theia Investments (Italy) S.r..,, as purchaser, on the other side, for the sale and purchase of 100% of the corporate capita! of Sun Roof II S.r.l., a company organized under the laws of Italy, with registered office in Milan, Viale Gran Sasso 11, registered with the Companies' Register of Milan Lodi Monza Brianza under No, 07531620966 (hereinafter the "Company'), herewith we propose the following:

 

SHAREHOLDER RECEIVABLES DEED OF ASSIGNMENT

 

among

 

S.P.I. Renewables Energy (Luxemburg) Private Limited company S.á r.l., a limited liability  company registered and incorporated under the laws of Luxembourg and having its registered office at 6 Rue Eugene Ruppert, L-2453 Luxembourg, and registered with the Companies' Register of Luxembourg under no. B156036, tax number 20102434979, represented herein by Gaia in her capacity as Manager A, duly empowered pursuant to a Board of Directors resolution dated 18 September 2019;

(hereinafter the "Seller”)

 

- on the one side -

 

and

Theia Investment (Italy) S.r.l. a company incorporated under the laws of Italy, having its registered offices at Via Giovanni Boccaccio 7, 20123, registered with the Companies' Register of Milano Monza Brianza Lodi under no. MI-2551617, tax and VAT code 10711700962, represented herein by David Lindsay, in his capacity as Director. duly empowered pursuant to a resolution [CORPORATE BODY] dated [DATE];

(hereinqfter the "Purchaser")

 

- on the other side -

 

(hereinafter jointly the “Parties” and each of them the "Party”)

 

 

 

  35  

 

 

Schedule 5.5.1 (b): Shareholder Receivables Deed of assignment

 

RECITALS

 

(A) As of the date hereof Seller has a receivable vis-a-vis the Company equal to t.] including the relevant interests (hereinafter the "Shareholder Receivables"), deriving from:

 

· An interest-bearing intercompany loan, for an original aggregate amount of Euro 4,706,956.88, with an annual interest rate equal to 6.5 9 advanced to the latter on 1 January 2014 and with a maturity date of 31 December 2023;

 

· A shareholder advance equal to the fixed amount of Euro 3,500.00.

 

(B) The Seller intends to sell to Purchaser, who intends to purchase, the Shareholder Receivables on the terms and conditions contained in this agreement.

 

Now, therefore

the Parties agree as follows.

 

I. RECITALS

 

The Recitals form an integral and substantial part of this agreement (hereinafter the "Agreement '7.

 

2. SHAREHOLDER RECEIVABLES ASSIGNMENT

 

2.1. The Seller sells to Purchaser, who purchases, the Shareholder Receivables (including all rights and obligations thereunder) with effect from today's date.

 

2.2. The assignment of the Shareholder Receivables is made and accepted "pro soluto" and therefore the Seller warrants to Purchaser, pursuant to Article 1266 of the Italian Civil Code, that the Shareholder Receivables are valid, existing, and are not subject to any pledge, usufruct, foreclosures or restrictions of any kind, but no warranty is given by Seller, pursuant to Article 1267 of the Italian Civil Code, on the actual payment of the Shareholder Receivables by the Company.

 

3. INTERCOMPANY RECEIVABLE PRICE

 

Purchaser as a consideration for the purchase of the Shareholder Receivables, pays to Seller, simultaneously with the execution of this Agreement, the suns of Euro 11, by means of irrevocable wire transfer on the bank account no. [_________].

 

4. EFFECTS

 

4.1 The Shareholder Receivables shall be transferred to Purchaser with enjoyment as from the date hereof.

 

4.2 The Parties declare that this Agreement does not intend to renew, modify, replace or amend any other agreement signed between the Parties concerning, inter alia, the same subject matter of this Agreement, which remain fully valid and effective. In particular, there is no extinction due to the signing of this Agreement of any declarations or guarantees given by Seller to Purchaser.

 

5. GOVERNING LAW AND DISPUTE RESOLUTION

 

This Agreement shall be governed by and construed in accordance with Italian law. Any dispute arising from and connected with this Agreement shall be subject to the exclusive jurisdiction of the Court of Milan.

 

* * *

 

If you agree with this proposal, please express your acceptance, by sending a copy of this letter reproducing its text and duly signed below for acceptance.

 

  36  

 

 

 

Schedule 5.5.1 (b): Shareholder Receivables Deed of assignment

 

Kind regards.

 

_______________ 

S.P.I. Renewables Energy (Luxemburg) Private Limited Company S.à r.l.

 

_______________

 

Name: Gaia Baklini

 

Title: Manager A"

 

We hereby agree and accept your proposal.

Theia Investments (Italy) S.r.l.

 

 

DATE:_______________
NAME:______________
TITLE:
_______________

 

* * *

 

Acknowledged and agreed, pursuant to article 1264 of the Italian civil code, by SUN ROOF II S.r.l.:

 

DATE:_______________
NAME:______________
TITLE:
_______________

 

 

 

 

 

  37  

 

 

 

 

 

 

  38  

 

 

Schedule 5.5.1 d) 1) — Release Letter

 

 

To:

 

Resigning Sole Director of Sun Roof II S.r.l.

Mr. Hoong Khoeng Cheong

 

 

and copy to:

Sun Roof II S.r.l.

Viale Gran Sasso 11

20131 - Milan

 

RE: Release letter to the benefit of the sole director

 

[•], 2019

 

Dear Sir,

 

reference is made to the sale and purchase agreement relating to 100°0 of the corporate capital of Sun Roof H S.r.l. (the "Company"), executed on 23 September 2019 by and between S.P.I. Renewable Energy (Luxemburg) Private Limited Company S. a r.1, as Seller, on one side, and Theia Investments (Italy) S.r.1., as Purchaser, on the other side (the "SPA").

 

Capitalized terms not defined herein shall have the same meaning ascribed to them in the SPA.

 

We hereby:

 

(i) waive unconditionally any claims (if any) which we may have against you, in respect of your conduct, as sole director of the Company, up to the Closing Date, based on article 2476, paragraph 7, of the ICC, except in case of gross negligence ("colpa grave") and wilful misconduct ("dolo");

 

(ii) undertake not to vote or promote and to cause the Company neither to vote nor to promote, respectively, any liability action against you pursuant to article 2476 of the ICC, except in case of gross negligence ("colpa grave") wilful misconduct ("dolo");

 

(iii) undertake to indemnify you (except in case of their gross negligence ("colpa grave") wilful misconduct ("dolo") against any claim or action promoted by any of the Purchaser's Affiliates which shall acquire any shareholding in the Company after the Closing, connected to the claims or actions mentioned in numbers (i) and (ii) above.

 

Kind regards,

 

Theia Investments (Italy) S.r.1.

 

 

_______________ 

[•] by its legal representative [•]

 

 

 

  39  

 

 

Schedule 5.5.1 (d) iv): Deed of Accollo

 

[On SPI Orange Power (HK) Limited letterhead]

 

[•) 2019

 

To:

 

Theia Investment (Italy) S.r.l.

Via Boccaccio 7,

20123 - Milan

 

And

 

SUN ROOF II S.r.l.

Viale Gran Sasso II

20131 - Milan

 

Subject: Deed of debt undertaking (Accollo) - acceptance

 

Dear Sirs,

 

We acknowledge receipt of your proposal, whose terms and conditions are fully reproduced herein below:

 

"Dear Sirs,

 

As agreed, we propose the following:

 

DEED OF DEBT UNDERTAKING (ACCOLLO)

 

· SUN ROOF II S.r.l., a company incorporated under the la%is of Italy, having its registered offices at Viale Gran Sasso no. 11, 20131, Milano, registered with the Companies' Register of Milano Monza Brianza Lodi under no. M1-1965194, tax and VAT code 07531620966

 

- hereinafter referred as "SUN ROOF II"

 

  · Theia Investment (Italy) S.r.l., a company incorporated under the laws of Italy, having its registered offices at Via Giovanni Boccaccio 7, 20123, registered with the Companies' Register of Milano Monza Br ianza Lodi under no. M1-2551617, tax and VAT code 10711700962

 

- hereinafter referred as "THEIA"

 

· SPI Orange Power (HK) Limited, a company incorporated under the laws of IV, having its registered offices at IV, IV, registered with the Companies' Register of [-] under no. PI tax and VAT code [-1

 

- hereinafter referred as "SPI ORANGE"

 

(SUN ROOF II, THETA and SPI ORANGE hereinafter referred to also as the "Parties", and each of them as "Party")

 

 

 

  40  

 

 

Schedule 5.5.1 (d) iv). Deed of Accollo

 

WHEREAS

  

A. On 9 September 2019, the non-interest-bearing receivable, equal to the fixed amount of Euro 1,042,166,25, due by SUN ROOF II to ET Solar Energy Limited, the former titleholder of the said receivable, was assigned by ET Solar Energy Limited to SPI ORANGE (the "SPI Orange Power Receivable"). Such assignment was accepted by SUN ROOF II according to Italian law.

 

B. On the date hereof in accordance with the relevant preliminary sale and purchase agreement executed on N(hereinafier the "SPA"), SPI Renewables Energy (Luxembourg) Private Limited Company S. a as seller, on the one side, and THETA, as purchaser, on the other side, entered into a notarial deed of transfer for the sale and purchase of 100% of the corporate capital of SUN ROOF II;

 

C. SPI ORANGE indirectly controls 100% of SPI Renewables Energy (Luxembourg) Private Limited Company S.à r.l.;

 

D. Pursuant to article 5.5.1 (d) iv of the SPA, THETA committed to undertake, pursuant to Article 1273 of the Italian civil code, the debt of SUN ROOF II for the payment of the SPI Orange Power Receivable - amounting to Euro 1,042,166,25 (one million forty-two thousand one hundred sixty-six{25) - (the "Accollo") and SPI ORANGE intends to accept the benefit from the Accollo, releasing SUN ROOF II from any and all its obligation.

 

IN CONSIDERATION OF THE ABOVE, the Parties agree as follows:

 

1. Subject

 

1.1. THETA hereby undertakes, pursuant to Article 1273 of the Italian Civil Code, the debt of SUN ROOF II for the payment of the SPI Orange Power Receivable and SPI ORANGE, hereby, accepts the benefi(from the Accollo also in order to nzake irrevocable the provisions provided hereunder in its favour, releasing SUN ROOF II from any and all its obligation.

 

1.2. On the basis of the foregoing, the Parties agree that (i) THETA (as sole debtor pursuant to the Accollo) is entitled to pay on the date hereof the SPI Orange Power Receivable in favour of SPI ORANGE on the bank account which has been indicated by SPI ORANGE prior to the date hereof

 

2. Applicable law

 

2.1 This Agreement and the rights and obligations of the Parties hereunder or however connected with its execution, perfection, construction and performance shall be governed by and construed and interpreted in accordance with the laws of Italy.

 

3. Exclusive jurisdiction

 

3.1 All disputes arising out of or in connection with this Agreement and the documents connected therewith shall be submitted to the exclusive jurisdiction of the Court of Milan.

 

* * *

 

 

 

  41  

 

 

 

 

If you agree with this proposal, please express your acceptance, by sending a copy of this letter reproducing its text and duly signed below for acceptance.

 

Kind regards,

 

Theia Investments (Italy)

 

_______________

Name:

Title:

 

 

SUN ROOF II S.r.L

 

_______________

Name:

Title:

 

***

 

 

We hereby agree and accept your proposal.

 

SPI Orange Power (HK) Limited

 

DATE:_______________

 

NAME:_______________

 

TITLE:________________

 

* * *

 

 

 

  42  

 

 

 

Schedule 6.7.1 — List of Contracts

 

SUN ROOF II

 

Project Contracts:

 

1. DDS Agreement ("Cossitudione di diritto di superficie"), signed on November taltra 2011 between SUN ROOF II S.r.l. and Cumbes S.r.1.;

 

2. Easement Right Deed ("Attogo definitiva di costituzione di sertitù inamovibile di elettrodotto in cavo interrato"), signed on March 15th, 2012 by SUN ROOF II SRL CUMERSS Ss]° and atria, Disiribuzione S.p.A.;

 

3. Operation and Maintenance Agreement, signed on September 1st, 2014 between SUN ROOF II S.r.l. and Future Energy Service and Maintenance Sr.1.;

 

4. Quotation for accounting, tax and administrative services, issued by Ciccioriccio & Associati on November 21st 2017 and accepted by SUN ROOF II S.r.l.;

 

5. Quotation for E-Invoicing service, issued by Ciccioriccio & Associati on December 5th, 2018 and accepted by SUNROOF II S.r.l.;

 

6. Surveillance Agreement, signed on December 1st, 2018 between Istituto di Vigillanza Vigilpol S.C.a.r.l.. and SUN ROOF 11 S.r.1.;

 

7. Legal Address Registration Agreement “Contratto di domiciliaione legale”), ), signed on January 7th, 2013 between A&P Services Sr.l. and SUN ROOF II S.r.l.,

 

8. Full-Risks Insurance Policy, signed on July 3rd, 2018., between AXIS Specialty Europe RE, and SUN ROOF II S.r.l;

 

9. Internet and Telephone Agreements, signed on June 20th, 2012 between TELECOM Italia S.p.A. and SUN ROOF II S.r.1.;

 

10. N. 3 MV Energy Supply Agreements for FVI , FV2 and FV3, signed on April 11th, 2012 between Enel Energia S.p.A. and SUN ROOF II S.r.1.;

 

11. Quotation for Measurement Service ("Preventivo servizio di misura”), issued on March 1st, 20112 by ENEL Distribuzione S.p.A and accepted by SUN ROOF II S.r.l.;

 

12. Quotation for Periodical Check of Fire-Extinguishers, issued on June 15th, 2015 by FIRE ANTINCENDIO di Monni Anna Maria and accepted. by SUN ROOF II S.r.1.;

 

13. IRES Tax Reimbursemet Service Agreement ("Conferimento d'incarico per la fornitura di servizi di consulenua energetica"), signed on March 8th, 2016 between SOUL S.r.l. and SUN ROOF II S.r.1.;

 

14. FIT Agreement ("Convenzione per il riconoscimento delle tariffeincentivnti”), signed on June 28th, 2011 2 between GSE S.p.A. and SUN ROOF II S.r.1. for IFV#1 and relevant Addendum issued on January 15th, 2016; FIT Agreement ("Convenzione per il riconoscimento delle tariffe incentivanti"), signed on June 28th, 2012 between GSE S.p.A. and SUN ROOF II S.r.l. for IFV#2 and relevant Addendum issued on January 15th, 2016; FIT Agreement ("Convenzione per il riconoscimento delle tariffe incentivanti"), signed on June 20th, 2012 between GSE S.p.A. and SUN ROOFII Sr.l. for IFV#3 and relevant Addendum issued on January 15th, 2016

 

15. PPA, (Contratto di compraventlila di energia electrica), signed on November 21st, 2018 between EGO Trade S.p.A. and SUN ROOF II S.r.1.;

 

16. GO Agreement (Contralto di compravendita di garanzie d’origine), signed on November 21st, 2018 between EGO Trade S.p.A. and SUN ROOF II S.r.I.

 

 

 

  43  

 

Exhibit 4.67

 

 

To:

 

SP! Renewables Energy (Luxemburg) Private Limited Company S. a r.l.

 

6, Rue Eugene Ruppert

 

L-2453 Luxembourg

 

Grand Duchy of Luxembourg

 

 

 

23 September, 2019

 

 

Re:     sale and purchase agreement proposal

 

Dear Sirs,

 

Following our previous discussions, please find below our sale and purchase agreement proposal. Please confirm that the below proposal correctly sets forth the terms of our agreement by reproducing our proposal in a separate document duly signed by an authorized signatory, initialized on each page.

 

Kind regards,

 

Theia Investments (Italy) S.r.l.

 

          /s/ David Lindsay

 

Name: David Lindsay
Title: Director

 

 

 

 

  1  

 

 

SALE AND PURCHASE AGREEMENT

 

BETWEEN

 

(1) SPI Renewables Energy (Luxemburg) Private Limited Company S. it r.1., a company incorporated under the laws of Luxembourg, having its registered offices at 6, Rue Eugene Ruppert, L-2453 Luxembourg, registered with the Companies' Register of Luxembourg under no. B156036, tax number 20102434979 ("SPI Renewables or the "Seller"), represented by Cheong Hoong Khoeng, in his capacity as Manager A and Universal Management Services s.a r.l. in their capacity as Manager B;

 

on one side

 

AND

 

(2) Theia Investment (Italy) S.r.1., a company incorporated under the laws of Italy, having its registered offices at Via Giovanni Boccaccio 7, 20123, registered with the Companies' Register of Milano Monza Brianza Lodi under no. MI-2551617, tax and VAT code 10711700962 (the "Purchaser"), represented by David Lindsay, in his capacity as Director;

 

on the other side

 

(the Seller and the Purchaser are individually referred to as a "Party" and, collectively, the "Parties").

 

WHEREAS:

 

(A) The Purchaser is a company active in the renewable energy business and it intends to invest in photovoltaic plants in Italy.

 

(B) The Seller is also active in the renewable energy business and owns 100% - par value Euro 10,000.00 - of the corporate capital of Sun Roof V S.r.I. (the "Quota"), a company incorporated under the laws of Italy, having its registered offices at via Boccaccio no. 7, 20123, Milano, registered with the Companies' Register of Milano Monza Brianza Lodi under no. MI1965198, tax and VAT code 07531650963 (the "SPV").

 

(C) The SPV owns an operating photovoltaic plant located in the Municipality of Cistema di Latina (Latina), Lazio Region, Italy, whose aggregate installed capacity is approximately equal to 997.92 kW (the "Plant", whose term shall be deemed inclusive of the relevant connection infrastructures).

 

(D) The Purchaser has conducted (also by means of its advisors) a technical, legal and tax due diligence on the SPV and the Plant, through the review of the information and documents having been made available to the Purchaser by the Seller (the "Due Diligence").

 

(E) In accordance with the terms and subject to the conditions set forth under this Agreement: i) the Purchaser intends to purchase the Quota from the Seller and; ii) the Seller intends to transfer the Quota to the Purchaser.

 

(F) Moreover, in accordance with the terms hereof: i) the Purchaser intends to purchase from Seller the Shareholder Loan Receivables (as defined below) and; ii) the Seller intends to transfer to the Purchaser the Shareholder Loan Receivables.

 

 

 

  2  

 

 

NOW, THEREFORE, on the basis of the foregoing, it is hereby agreed as follows:

 

1.       RECITALS AND SCHEDULES

 

The above Recitals and the Schedules attached hereto constitute an integral and substantial part of this Agreement.

 

2.       DEFINITIONS AND INTERPRETATIVE RULES

 

2.1       Definitions

 

In addition to any other term defined elsewhere in this Agreement, the following terms shall have, for the purposes of this Agreement, the meanings set forth below unless the context clearly requires otherwise:

 

2.1.1     "Accounting Principles" shall mean the principles provided by the ICC in respect of the preparation of financial statements (bilanci di esercizio), as interpreted in accordance with the accounting principles issued by the Consiglio Nazionale dei Dottori ConunerciaUsti e degli Esperti Contabili and the Organism Italiano di Contabilita;

 

2.1.2     "Affiliate" shall mean, in relation to any Party, any subsidiary company or parent company of such Party and any subsidiary company of any such parent company, in each case from time to time;

 

2.1.3     "Agreement" shall mean this quota sale and purchase agreement, including its Recitals and Schedules;

 

2.1.4     "Applicable Laws and Regulations" shall mean all supra-national, national, regional and local laws, acts, ordinances, orders, decrees, injunctions, rules, regulations, permits, licenses, authorizations, as well as directions and requirements of any authorities, including tax authorities, having jurisdiction over the SPV and/or the Plant (including the GSE, ARERA and the Grid Operator);

 

2.1.5     "ARERA" shall mean Autorita di Regolazione per Energia Reti e Anzbiente;

 

2.1.6     "Basket" shall have the meaning set forth in Clause 8.1 b);

 

2.1.7     "Business Day" shall mean any calendar day (other than a Saturday or a Sunday) on which banking institutions are open for business in Milan, Italy;

 

2.1.8     "Cap" shall have the meaning set forth in Clause 8.2;

 

2.1.9     "Claim" shall have the meaning set forth in Clause 8.6.1;

 

 

 

  3  

 

 

2.1.10     "Closing" shall mean the execution of the Transfer Deed and, in general, the execution and exchange of all documents and agreements and the performance and consummation of all obligations and transactions, respectively, required to be executed and exchanged and performed and consummated by the Parties on the Closing Date pursuant to this Agreement;

 

2.1.11     "Closing Date" shall mean the date on which the Transfer Deed is executed and Closing takes place;

 

2.1.12     "Damages" shall mean any actual loss (including losses of or shortfall in profits, earnings or revenues, and loss of opportunities), damage, liability, write-off, writedown, shortfall, including for the avoidance of doubt any insztssistenza dell'attivo, minusvalenza dell'attivo, sopravvenienza passim and plusvalenza passim, dividends distribution restriction, costs or expenses of whatever nature (including out-of-pocket expenses, and accountants', consultants', experts' and attorney's fees);

 

2.1.13     "Date of Execution" shall mean the date hereof;

 

2.1.14     "Due Diligence" shall have the meaning set forth in Recital (D);

 

2.1.15     "Encumbrance" shall mean any security interest, pledge, mortgage, easement, lien, charge, encumbrance or restriction on the use, voting or transfer, usufruct, security or enjoyment right (diritto di garan:ia o di godimento), sequestration, deed of trust, assignment, freeze, privilege, expropriation, seizure, attachment, claim, opposition, covenant, obligation (including propter rem), burden, limitation, restriction, reservation of title, option, right of first refusal, right of pre-emption, right of set off, right to acquire, other similar restriction or any other third-party right or interest, statutory or otherwise, of any kind or nature whatsoever, however created or arising, or any agreement to create any of the foregoing or any written claim by a third party for the granting of any of the foregoing;

 

2.1.16     "Grid Operator" shall mean Enel Distribuzione S.p.A., Terna S.p.A. and/or any other network provider on the site where the Plant has been constructed and connected to the grid;

 

2.1.17     "GSE" shall mean Gestore dei Servizi Energetici S.p.A.;

 

2.1.18     "ICC" shall mean the Italian Civil Code;

 

2.1.19     "Leakages" shall mean, with respect to the SPV, any indebtedness or liability different from those indicated in the Reference Financial Statement and/or any payment (other than payments made by the SPV in favor of its relevant counterparties according to the Project Contracts and/or expressly authorised by the Purchaser) and/or any cash extraction made following the Reference Date (excluded) other than payments made in the ordinary course of business and required by Applicable Laws and Regulations. For the sake of clarity, any repayment of the Shareholder Loan Receivables will not be considered, for the purposes of this definition, as a payment made in the ordinary course of business;

 

2.1.20     "Nominee" shall have the meaning set forth in Clause 12.2;

 

2.1.21     "Notice of Claim" shall have the meaning set forth in Clause 8.6.1;

 

 

 

  4  

 

 

2.1.22     "Parties" shall have the meaning set forth in the preamble of this Agreement;

 

2.1.23     "Permits" shall mean, in respect of the Plant and the SPV, each and all the authorizations, consents, approvals, nihil obstat, ways of leave, permits, licenses, certificates, environmental assessments, agreements, however named, as required pursuant to the Applicable Laws and Regulations for the construction, connection to the grid, exploitation, operation of such Plant and enjoyment of the Tariff (including any written prescription from any authority, however involved in the authorization procedure) and any attachment thereto as well as any requests or applications to obtain any of such authorizations, consents, approvals, nihil obstat, ways of leave, permits, licenses, certificates, environmental assessments, agreements; for the sake of clarity, the term "Permits" also includes any permit required for the interconnection facilities and all rights and proceedings related to the connection of the Plant to the grid, including the sohtzione tecnica minima genet-ale and the sohtzione tecnica minima di dettaglio, the regolantento di eserci:io, the connection agreement and any other rights or title necessary to carry out all works and infrastructures required for the (i) construction of the Plant's evacuation line, and (ii) connection of the Plant's evacuation line to the grid connection point.

 

2.1.24     "Person" shall mean any natural person, company, firm, partnership, joint-venture, corporation, association, government or political subdivision, agency or institution of a government, or any other organization or entity;

 

2.1.25     "Plant" shall have the meaning set forth in Recital (C);

 

2.1.26     "Project Contracts" shall have the meaning set forth in Clause 6.7.1;

 

2.1.27     "Purchase Price" shall have the meaning set forth in Clause 4.1;

 

2.1.28     "Purchaser" shall have the meaning set forth in the preamble of this Agreement;

 

2.1.29     "Quota" shall have the meaning set forth in Recital (B);

 

2.1.30     "Quota Purchase Price" shall have the meaning set forth in Clause 4.1.2;

 

2.1.31     "Real Estate" shall mean, in respect of the Plant and the SPV, the building and the roof (lastrico solare) on which such Plant stands (including the facilities necessary for the construction and operation of the aforesaid Plant (including cabling, access roads and substations)), as indicated on the layout and the project of the Plant as duly and finally authorised according to the Permits and the Applicable Laws and Regulations;

 

2.1.32     "Real Estate Contracts" shall mean the contracts executed by the SPV in order to have title over the relevant Real Estate;

 

2.1.33     "Reference Date" shall mean December 31s', 2018;

 

2.1.34     "Reference Financial Statement" shall mean the financial statement of the SPV as of the Reference Date, attached hereto as Schedule 2.1.34;

 

2.1.35     "Seller" shall have the meaning set forth in the preamble of this Agreement;

 

2.1.36     "Seller's Consent" shall have the meaning set forth in Clause 8.7.1(a);

 

2.1.37     "Seller's Objection" shall have the meaning set forth in Clause 8.7.1(a);

 

 

 

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2.1.38     "Shareholder Loan Agreements" shall mean No. 2 shareholder loan agreements, effective from 1 January 2014 and with maturity date 31 December 2023, both bearing an interest rate of 6.5% per annum, executed by the SPV and i) the Seller for an original amount of Euro 1,829,100.00 (one million eight hundred and twenty nine thousand one hundred/00) ("Shareholder Loan Agreement 1") and ii) Green Equity S. a r.l., the former minority shareholder of the Company, for an original amount of 775,400.00 (seven hundred and seventy five thousand four hundred/00) ("Shareholder Loan Agreement 2"). The receivables relating to the Shareholder Loan Agreement 2 were assigned to the Seller from the former minority shareholder of the Company, by deed of assignment dated 25 July 2019, accepted by the Company on the same date;

 

2.1.39     "Shareholder Loan Receivables" shall mean the receivables (including any interests accrued thereon as of the Closing Date) of the Seller, vis-a-vis the SPV, as arising out of the Shareholder Loan Agreements and outstanding as of the Closing Date;

 

2.1.40     "Shareholder Loan Receivables Price" shall have the meaning set forth in Clause 4.1.1;

 

2.1.41     "SPI Renewables" shall have the meaning set forth in the preamble of this Agreement;

 

2.1.42     "SPV" shall have the meaning set forth in Recital (B);

 

2.1.43     "Tariff" shall mean the incentive tariff (tar& incentivante) granted by the GSE to the SPV in connection with the Plant, in accordance with the applicable energy decree (Conto Energia);

 

2.1.44     "Taxes" shall mean any Italian state or local tax, including registration tax, cadastral tax, mortgage tax, stamp duties, corporate income tax ("IRES"), regional tax ("IRAP"), trade, wealth, value-added tax ("VAT'), sales, property or transfer tax, salary/wage tax, any other withholding tax, excise taxes, customs, duties, social security contributions or any other tax, as well as any tax and social security contributions, within the meaning of any laws of foreign jurisdictions, wherever and whenever imposed, in each case together with any interest, penalty, fine, addition to tax or other ancillary duties or any other such charges within the meaning of any laws of foreign jurisdictions;

 

2.1.45     "Third Party Claim" shall have the meaning set forth in Clause 8.7.1;

 

2.1.46     "Third Party's Claim Notice" shall have the meaning set forth in Clause 8.7.1;

 

2.1.47     "Transaction" shall have the meaning set forth in Clause 3;

 

2.1.48     "Transfer Deed" shall mean the agreement which shall be executed for the sole purposes of article 2470 of the ICC on the Closing Date for the purposes of implementing this Agreement by transferring the Quota from the Seller to the Purchaser.

 

2.2       Interpretative Rules

 

Unless otherwise expressly provided for in this Agreement, for purposes of this Agreement:

 

2.2.1     all terms used in the singular shall be deemed to include the plural, and vice versa, as the context may require;

 

 

 

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2.2.2     the word "including" and any variation thereof shall mean "including without limitation" and shall not be construed to limit any general statement to the specific or similar items or matters following it;

 

2.2.3     the words "hereof", "herein", "hereto" and "hereunder" refer to this Agreement as a whole (including the Recitals and the Schedules), and not to any subdivision of this Agreement;

 

2.2.4     when calculating the period of days before which, by which, or following which any act is to be done or any step is to be taken pursuant to this Agreement, the day that is the reference date in calculating such period shall be excluded. If the last day of such period is not a Business Day, the relevant period shall end on the next following Business Day. Unless otherwise expressly provided for, any period of time expressed in months shall be calculated as provided for in article 2963, paragraphs 4 and 5 of the ICC;

 

2.2.5     references to "Clauses", "Recitals" and "Schedules" are to the clauses, recitals and schedules of this Agreement;

 

2.2.6     the division of this Agreement into Clauses and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement;

 

2.2.7     any reference to the knowledge, belief and/or awareness of the Seller, or similar phrases, or any similar expression or variation thereof shall be interpreted as referring to the knowledge of a circumstance which the director(s) or the board of directors of the Seller, or of the entity to which the relevant statement refers (or which holds the assets to which the relevant statement refers), when making the statement, actually has or would have had if it had made due and careful inquiry as to the circumstance which is the subject of the statement in accordance with directors' duties under the Applicable Laws and Regulations, including the ICC;

 

2.2.8     the obligation of a Party to cause any other Person (including a corporate body of any such Person) to undertake or to do something, or to procure that any other Person (including a corporate body of any such Person) undertake or do something, shall be construed as a "promessa dell 'obbligazione o del fatto del terzo" for the purpose of article 1381 of the ICC.

 

3.       THE TRANSACTION

 

3.1       Sale and purchase of the Quota and of the Shareholder Loan Receivables

 

3.1.1     In accordance with the terms and subject to the conditions set forth under this Agreement, on the Closing Date: (i) the Seller shall sell the Quota to the Purchaser and the Purchaser shall purchase the Quota from the Seller and pay to the latter the Quota Purchase Price; and (ii) the Seller shall sell the Shareholder Loan Receivables to the Purchaser and the Purchaser shall purchase such Shareholder Loan Receivables and pay to the Seller the Shareholder Loan Receivables Price (the "Transaction").

 

4.       PURCHASE PRICE, SHAREHOLDER LOAN RECEIVABLES PRICE AND RELEVANT PAYMENT TERMS

 

4.1     Subject to the terms and conditions set forth in this Agreement, the aggregate consideration to be paid by the Purchaser for the purchase of the Quota and for the assignment of the Shareholder Loan Receivables (including, for the sake of clarity, any interests accrued thereon as of the Closing Date) shall be equal to Euro 1,834,859.87 (one million eight hundred thirty-four thousand eight hundred fifty-nine/87) (the "Purchase Price") and shall be composed of:

 

 

 

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4.1.1     the amount of the nominal value of the Shareholder Loan Receivables, equal to Euro 1,474,118.90 plus applicable interest accrued as of the Closing Date, (the "Shareholder Loan Receivables Price") to be paid by the Purchaser to the Seller;

 

4.1.2     an amount equal to the Purchase Price minus the Shareholder Loan Receivables Price as consideration for the Quota to be paid to the Seller (the "Quota Purchase Price") as consideration for the transfer of the Quota;

 

4.2     The Quota and the Shareholder Loan Receivables shall be transferred free from any Encumbrance with all rights, obligations, liabilities and entitlements relating thereto and enjoinment including dividends regardless of the date of resolution, which shall be for the benefit of the Purchaser as of January 1st, 2019 (included). The Parties agree that (i) the Purchaser Price has been calculated on the basis of the Reference Financial Statement and (ii) the amount of any Leakage, regarding the SPV (that the Seller must notify to the Purchaser before the Closing) shall be deducted on a Euro per Euro basis from the Purchase Price, unless such Leakage has been expressly authorised by the Purchaser according to Clause 5.2.2 in which case no deduction shall be triggered.

 

4.3       Payment terms

 

4.3.1     The Quota Purchase Price shall be paid by the Purchaser on the Closing Date upon execution of the Transfer Deed by wire transfer of immediately available funds on the bank account of the Seller that will be indicated by the Seller prior to Closing.

 

4.3.2     The Shareholder Loan Receivables Price shall be paid by the Purchaser on the Closing Date, upon execution of the Shareholder Loan Receivables Deed of assignment, by wire transfer of immediately available funds on the bank account of the Seller that will be indicated by the Seller prior to Closing.

 

4.3.3     The payments mentioned in Clauses 4.3.1 and 4.3.2 of the Quota Purchase Price and of the Shareholder Loan Receivables Price shall occur simultaneously with the completion of all the other actions set forth in Clause 5.5.1.

 

5.       CLOSING

 

5.1       General

 

The Parties agree that the Quota and the Shareholder Loan Receivables shall be transferred by the Seller to the Purchaser at Closing.

 

5.2       Interim Period

 

5.2.1     The Seller shall procure that, from the Date of Execution until the Closing Date (both included), the SPV exercises its business in the ordinary and usual course and in accordance with ordinary standards of due diligence, care and efficiency, and takes all necessary steps to manage and exploits the Plant and maximises its production, in full compliance with the Applicable Laws and Regulations and the Permits.

 

 

 

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5.2.2     Unless expressly authorised in writing by the Purchaser within 5 Business Days from the Seller's written request - which authorization shall not be unreasonably withheld from the Date of Execution to the Closing Date (both included), the Seller shall procure that the SPV does not (and does not commit to):

 

(a) create, assume, any long-term debt for money borrowed;

 

(b) hire any employee or personnel, not even on a temporary basis;

 

(c) purchase, sell, transfer, encumber, lease (as lessor or lessee) license (as licensor or licensee) or otherwise acquire or dispose of any tangible or intangible assets;

 

(d) dispose of or transfer, or agree to dispose of or agree to transfer any business or part of any business;

 

(e) initiate, settle or waive any litigation, arbitration, prosecution or other legal proceedings;

 

(f) terminate or amend (including through any waiver or by course of dealing) any of the Project Contracts, without prejudice to Clause 5.5.1 (c) iv;

 

(g) change their accounting methods, principles, practices or policies;

 

(h) alter its memorandum or articles of association;

 

(i) incur in any Leakage and/or make any payment not strictly related to the Plant normal operational status, save for those payments necessary to comply with Applicable Laws and Regulations;

 

(j) make dividend payment and/or shareholders loan repayment;

 

(k) sign new contracts of whatever typology, save for those necessary for the ordinary course of business.

 

5.3       Conditions to the Closing

 

5.3.1     The Parties agree that there are no conditions precedent to Closing.

 

5.4       Date and Place of the Closing

 

The Closing shall be held on the date agreed upon by the Purchaser and the Seller - which shall in any case fall within 15 Business Days of the Date of Execution - before an Italian notary public to be designated by the Purchaser.

 

5.5       Deliveries at Closing

 

5.5.1     On the Closing Date, the Parties shall perform the following actions, which (regardless of their time sequence) shall be deemed to occur simultaneously and to constitute one single transaction:

 

 

 

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(a)     the Seller and the Purchaser shall execute the Transfer Deed substantially in the form attached hereto as Schedule 5.5.1 (a);

 

(b)     the Seller and the Purchaser shall enter into an agreement (in the form attached hereto as Schedule 5.5.1 (b) for the purposes of assigning the Shareholder Loan Receivables - amounting to Euro 1,474,118.90 (one million four hundred seventy-four thousand one hundred eighteen/90 plus applicable interest accrued as of the Closing Date, from the Seller to the Purchaser;

 

(c)     the Seller shall:

 

i.     procure that the sole director of the SPV resigns (and confirms in his written resignations that he has no claim whatsoever vis-à-vis the SPV, and he shall waive any such claim, if any) through execution of resignation letters drafted as attached hereto as Schedule 5.5.1 (c) i);

 

ii.    cause, in relation to the SPV, a quotaholders' meeting to be validly held to resolve upon (i) the acceptance of the resignation of the previous sole director, and (ii) the appointment of the new directors/sole director to be designated by the Purchaser in lieu of the resigning one;

 

iii.   deliver to the Purchaser the SPV's corporate and accounting books, as well as all the original documentation related to the SPV and the Plant (including all the Permits), as well as each other document and/or instrument that may be necessary for the purposes of vesting the Purchaser with the full and exclusive ownership of the Quota and the Shareholder Loan Receivables;

 

iv.    procure that the management agreement entered into on December 18"1, 2015, between CECEP Solar Energy Italy S.r.l. (former name of SPI Renewable Italy S.r.l.) and the SPV, is terminated effective as of the Closing Date without the SPV and/or the Purchaser being required to incur any liability whatsoever in connection with such termination and deliver a written statement by the legal representative of SPI Renewable Italy S.r.l. whereby the latter declares to have no claim vis-à-vis the SPV in connection with the aforesaid termination. It is understood among the Parties that the SPV shall remain liable vis-à-vis SPI Renewables Italy S.r.l. for the payment of the fee/remuneration due by the SPV for the services provided by SPI Renewables Italy S.r.l. from I' January 2019 up to Closing Date according to the terms and conditions of the said management agreement;

 

(d)     the Purchaser shall:

 

i.     deliver to the Seller a letter in the form of Schedule 5.5.1 (d) i) attached hereto, in which the Purchaser: (i) waives unconditionally any claims (if any) which it may have against the resigning sole director, in respect of his conduct up to the Closing Date, based on article 2476, paragraph 7, of the ICC, except in case of gross negligence ("colpa grave") and wilful misconduct ("dole); (ii) undertakes not to vote or promote and to cause the Company neither to vote nor to promote, respectively, any liability action against the resigning sole director in respect of his conduct up to the Closing Date pursuant to article 2476 of the ICC, except in case of gross negligence ("colpa grave") and wilful misconduct ("do/o"); (iii) undertakes to indemnify the resigning sole director (except in case of gross negligence ("colpa grave") and wilful misconduct ("dole) against any claim or action promoted, by any of its Affiliates which shall acquire any shareholding in the Company after the Closing, connected to the claims or actions mentioned in numbers (i) and (ii) above;

 

ii.    pay the Quota Purchase Price to the Seller by wire transfer in immediately available funds onto the bank accounts that will be indicated by the Seller prior to Closing;

 

iii.   pay to the Seller the Shareholder Loan Receivables Price, by wire transfer in immediately available funds to the bank account which shall be communicated in writing by the Seller to the Purchaser prior to Closing;

 

 

 

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(e)     the Parties shall:

 

i.     immediately after the execution and the authentication of the Transfer Deed, cause the notary public to file the Transfer Deed with the competent companies' register, pursuant to article 2470, paragraph 2, of the ICC;

 

ii.    cause the SPV to execute a statement pursuant to Article 1264 of the ICC by means of which the said SPV shall provide its acceptance to the transfer of the Shareholder Loan Receivables.

 

5.5.2     The Parties mutually acknowledge and agree that the actions and transactions constituting the Closing pursuant to Clause 5.5.1 shall be regarded as one single transaction, so that, at the option of the Party having interest in the performance of the relevant specific action or transaction, no action or transaction constituting the Closing shall be deemed to have taken place if and until all other actions and transactions referred above shall have been properly taken or performed. This shall be without prejudice to the right of the non-defaulting Party to take any action in respect of the non-performance by the defaulting Party.

 

5.5.3     No document executed or activity carried out on the Closing Date shall have the effect of amending, superseding, affecting or novating any provision of this Agreement, which shall survive and continue to be binding upon the Parties in accordance with their terms.

 

6.     REPRESENTATIONS AND WARRANTIES BY THE SELLER

 

6.1     General

 

6.1.1     The representations and warranties given by the Seller hereunder are true, complete, correct, accurate and not misleading as of the Date of Execution and shall be true, complete, correct, accurate and not misleading as of the Closing Date.

 

6.1.2     The Parties acknowledge and agree that the representations and warranties given, and the relevant indemnification obligation undertaken, by the Seller are autonomous warranties and indemnification obligations of the Seller and, accordingly, (i) the provisions of articles 1490 through 1495 and 1497 of the ICC shall not apply thereto, and (ii) indemnifications payable by the Seller shall be due irrespective of whether the Seller will be found to be or have been in bad faith or negligent.

 

6.1.3     The Seller hereby acknowledges and agrees that the rights and remedies of the Purchaser under this Agreement shall not be excluded, reduced or otherwise affected by any investigation (including any Due Diligence review) conducted or that will be conducted by or on behalf of the Purchaser or by any information which the Purchaser and/or its relevant advisors may have received on or before the Closing Date.

 

6.2       Incorporation, good standing, authority of the Seller

 

6.2.1     SPI Renewables is a company duly incorporated and organized, validly existing and in good standing under the laws of Luxembourg.

 

6.2.2     Green Equity is a company duly incorporated and organized, validly existing and in good standing under the laws of Luxembourg.

 

 

 

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6.2.3     The Seller, and any of its signatories hereunder, has full legal right, power, capacity and the authority to enter into this Agreement and the other documents to be executed pursuant to this Agreement and to perform and consummate the Transaction and to fulfil all obligations and duties contemplated herein.

 

6.2.4     The performance of this Agreement and of the Transaction does not (i) violate the Seller's by-laws or its other constitutional document, or (ii) constitute a breach by the Seller of any contract or other commitment undertaken by the Seller, or (iii) will result in the creation or imposition of any Encumbrance on the Quota and/or the Shareholder Loan Receivables, or (iv) jeopardize the Seller's creditors.

 

6.3       SPV capital, Quota

 

6.3.1     The Quota represents 100% of the share capital of the SPV. The Quota is fully subscribed, entirely paid up and owned by the Seller, with good and valid title thereto. The Quota and the Shareholder Loan Receivables are free of any Encumbrance and can be freely transferred to the Purchaser in accordance with the terms and conditions set forth under this Agreement.

 

6.3.2     No Person (other than the Seller) has any right whatsoever to participate directly or indirectly in the assets or profits of the SPV. There are no resolutions authorising any capital increase of the SPV or which may somehow amend or alter the by-laws of the Spy.

 

6.3.3     Following completion of the activities due by the Parties on the Closing Date, the Purchaser will acquire full, valid and unchallengeable title to, and become the sole, legitimate, exclusive and registered owner of the Quota and the Shareholder Loan Receivables, both free and clear of any Encumbrance.

 

6.3.4     All the filings, application and fulfilments in order to avoid the unlimited liability pursuant to article 2462 of the ICC have been performed.

 

6.3.5     The acquisition of the Plant by the SPV and/or of the SPV by the Seller from any of its predecessor in title (if any) is not subject to being declared null and void, annulled, rescinded, terminated or revoked for any reason whatsoever, including in the event of insolvency of any of such predecessor in title. To the Seller's knowledge, the consideration for the acquisition of the Plant, the Permits and SPV from all the relevant predecessors in title, regardless of the technicalities pursuant to which the relevant acquisition took place, was determined in accordance with market values and has been paid in full so that no such predecessors in title may make any claims against the SPV and/or the Purchaser in connection with the Transaction.

 

6.4       Organization and compliance with Applicable Laws and Regulations

 

6.4.1     The SPV is a limited liability company (soda?: a responsabilitez limitata), duly incorporated and organized and validly existing and in good standing under Italian law.

 

6.4.2     The SPV has always complied with its by-laws and any other constitutional document and none of the activities, agreements, commitments, obligations or rights of the SPV are in breach of its by-laws or otherwise unauthorized.

 

 

 

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6.4.3     The SPV is currently managed in the ordinary course of business, in compliance with the obligations undertaken by it and has always been in compliance with all Applicable Laws and Regulations.

 

6.4.4     The SPV, its management and, to the Seller's knowledge, any Person having acted in the name and/or on behalf of the Seller, have never performed acts or facts which may be considered directly or indirectly as violation (illecito) or crime (mato) contemplated under the Applicable Laws and Regulations, including Legislative Decree no. 231/2001 and which may affect the Plant, the SPV and/or the Purchaser.

 

6.5       Accounting, corporate Books and liabilities

 

6.5.1     All the financial statements of the SPV (including the Reference Financial Statement) have been prepared in accordance with the Accounting Principles and the Applicable Laws and Regulations using bases, practices, methods and estimation techniques consistent with those used in the preceding 3 accounting periods. Each of them gives a true and fair view (rappresentazione veritiera e corretta) of the assets, obligations, liabilities (actual and contingent), debt of any nature, as well as the economic and financial condition of the SPV as at the relevant reference date.

 

6.5.2     The SPV's accounting records and mandatory books have been kept in compliance with the Accounting Principles and the Applicable Laws and Regulations. All the corporate procedures and actions reflected therein have been and will be conducted or taken in compliance with the Applicable Laws and Regulations and the relevant documents of incorporation.

 

6.5.3     Each transaction to be registered in the SPV's books and records pursuant to the Accounting Principles and/or the Applicable Laws and Regulations has been and will be recorded on the books and records of the SPV and each document on which entries in any such books and records are based (including purchase orders, customer or company invoices and service agreements) is true, complete and accurate in all respects.

 

6.5.4     Up to the Closing Date, (i) the business of the SPV has been conducted in accordance with the principles and obligations set out in Clause 5.2.1, and (ii) the SPV has not taken or carried out any action or transaction contemplated in Clause 5.2.2.

 

6.5.5     As of the Closing Date, the SPV has not incurred in any Leakage (other than payments made by the SPV in accordance with the Project Contracts and/or expressly authorised by the Purchaser and other than payments made in the ordinary course of business and required by Applicable Laws and Regulations. For the sake of clarity, any repayment of the Shareholder Loan Receivables will not be considered, for the purposes of this representation and warranty, as a payment made in the ordinary course of business).

 

6.6       Real Estate

 

6.6.1     The SPV holds valid, duly registered, unchallenged, definitive, enforceable and undisputed titles over the Real Estate, as resulting from the Real Estate Contracts, enforceable against any third party, to build and operate the Plant and the relevant mitigation works. With regard to the connection infrastructures, the SPV has validly transferred the ownership, the relevant Permits to the extent it is necessary, and the related Real Estate right to the Grid Operator of the portion regarding the so called "impianto di rete".

 

 

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6.6.2     The Real Estate is not affected by Encumbrances of any type. Neither the Seller nor the SPV have entered into any agreement (final, preliminary or otherwise) for the disposal of the Real Estate, or any portion thereof, or for the setting up of any kind of Encumbrance, right or obligation of any type over it from which any kind of limitation or restriction over the use, fruition or disposition of the Real Estate may arise.

 

6.6.3     There are no environmental constraints pursuant to the Applicable Laws and Regulations which are or may be of prejudice to the construction and operation of the Plant over the Real Estate where such Plant has been constructed. The Real Estate and the relevant subsoil are in full compliance with the environmental Applicable Laws and Regulations.

 

6.6.4     The Real Estate Contracts have been duly and timely registered with the competent tax office (registrati) and recorded (trascritti) with the competent Land Registry (Conservatoria dei Registri Immobiliari).

 

6.7       Contracts

 

6.7.1     All contracts, understandings, agreements, arrangements, commitments of any nature to which the SPV is a party are listed under Schedule 6.7.1 (collectively, the "Project Contracts")

 

6.7.2     The Seller and the SPV have not entered into any contract that it is not at arm's length and consistent with market standards.

 

6.7.3     The Project Contracts are in full force and effect and no party to a Project Contract has given written notice of termination or indicated in writing that it will give notice of termination, and to the Seller's knowledge, no circumstances exist which give any party to a Project Contract the right to terminate or modify such Project Contract. All payment or other obligations contained in the Project Contracts have been fully and timely discharged by the SPV.

 

6.8       Plant, Permits and Tariff

 

6.8.1     The Plant has been developed and realized in compliance with the best industry practice after due examination of all the characteristics and conditions of the Real Estate and the latter was suitable for the envisaged construction methodology of the Plant as well as of the relevant interconnection facilities.

 

6.8.2     The contractor, the works director and the SPV have timely, duly and correctly performed their respective obligations in compliance with the health and safety, construction and seismic Applicable Law and Regulations.

 

6.8.3     The Plant has been built, connected to the grid and is being operated in full compliance with the relevant designs as authorized by the competent public entities and authorities, with the Applicable Laws and Regulations as well as with the Permits.

 

6.8.4     There are no further plants joint or close to the Plant, whose nominal capacity, cumulated with the nominal power of the Plant, could affect in any manner the validity and effectiveness of any of the Permits and/or trigger the need to carry out the environmental impact assessment procedure.

 

 

 

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6.8.5     The SPV is the sole legal beneficiary of the Permits and such Permits are fully valid, effective and enforceable and there has not been any default and/or irregularity in the procedure for the issuance thereof (vizi della procedura).

 

6.8.6     The Permits have been duly obtained by the SPV (or have validly been transferred to the SPV) and any and all obligations relating to the existence, validity and effectiveness of the Permits, and any legal, economical and/or technical prescriptions contained therein, has been fully and timely complied with so that the SPV validly and effectively maintains all the Permits as required in connection with the Plant, and, to the Seller's knowledge, there is no ground for revocation, suspension or annulment thereof.

 

6.8.7     To the Seller's knowledge, the execution of this Agreement and/or the consummation of the Transaction will not lead to the termination, suspension, annulment or withdrawal of any of the Permits and will also not give rise to any right of the competent authorities, including without limitation the GSE, the Grid Operator, or other third parties to terminate and/or revoke and/or cancel and/or suspend and/or amend such Permits.

 

6.8.8     Any variations between the Plant-as-built and the Plant-as-designed (progetto esecutivo and progetto definitivo) have been notified to, and authorized by, the competent authorities in compliance with the Applicable Laws and Regulations.

 

6.8.9     All Plant's components and/or parts that have been replaced, if any, comply with the original Permits and are in good operating order except for ordinary tear and wear, The replacements of inverters, modules and other component for the Pant, if any made, have been duly communicated to the GSE.

 

6.8.10     All components' warranties (including all inverter and modules warranties) for the Plant are valid and in force. All main components have been installed and managed in compliance with technical specification of the components provider.

 

6.8.11     There are no payment obligations (nor there will be in the future as a result of act, facts, circumstances or event occurred prior to the Closing Date) owed to or claimed by the component providers for the construction and operation of the Plant.

 

6.8.12     The SPV has properly performed any action and properly filed all the relevant documents necessary for the obtainment and maintaining of the Tariff (in respect of the whole Plant's nominal peak power) as attributed to it pursuant to the energy decree (Conto Energia) applicable to the Plant. The Plant is legally and technically suitable for the maintaining of the Tariff by the SPV in accordance with the Applicable Laws and Regulations and the Permits.

 

6.8.13     None of the information or documentation delivered to the GSE for the purposes of being awarded with the Tariff is untrue, inaccurate or incomplete and the information and/or documentation provided to the GSE fully complies with GSE requirements for projects of the same type as the Plant. To the Seller's knowledge, there are no circumstances based on which the granting of the Tariff may be revoked, suspended, reduced or otherwise affected and there is no pending or threatened investigation by the GSE which may lead to the suspension or revocation of the Tariff. The GSE has been regularly paying the Tariff to the SPV.

 

6.8.14     In respect of the Plant, the agreement (conven:ione) for the Tariff award and the agreement for the sale of the energy have all been duly and timely entered into by the SPV with the GSE. To the Seller's knowledge, there are no circumstances based on which such rights may be legitimately revoked or otherwise affected.

 

 

 

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6.9     Tax compliance

 

6.9.1     The SPV:

 

(a)     has duly and timely paid every Tax which it has become liable to pay before the Closing Date;

 

(b)     has duly and timely filed with the competent tax authorities all Tax returns, declarations and social security statements within the required terms and on a proper basis in compliance with the Applicable Laws and Regulations in respect to Taxes. The Tax returns were correct and complete in all respects and adequately reflect the Tax liabilities of the SPV, at the time of the filing for the relevant period covered thereby;

 

(c)     has never been resident for Tax purposes in any jurisdiction other than Italy;

 

(d)     is entitled to all Tax shown in its Tax returns and no such Tax returns is the subject of any dispute with any Tax authority.

 

6.9.2     Neither the SPV nor any of its directors or officers has any fine, penalty, surcharge or interest outstanding in relation to Taxes. No Tax claims or investigation are pending or threatened against the SPV and no notice of any such claim or investigation has been received by the SPV.

 

6.10     Powers of attorney, relationship with advisors, employees and labour matters

 

6.10.1     The SPV has no employees, is not bound to hire any Person and no third parties have rendered services to the SPV which, according to how they were provided or due to agreements with the SPV, entitle them to claim the acknowledgement of the status of employee. There are no individuals who are entitled, under any law or collective bargaining agreement to be recognised as being or as having been an employee of the SPV or to bring any claim vis-a-vis the SPV based on any labour or cooperation relationship which may be qualified as rapporti di lavoro autonomo, rapporti di lavoro parasubordinato, collaborazioni autonome e continuative, collabora:ioni a progetto or agen:ia, including for remuneration of services or payment of social security contributions, in connection with any performance and/or services rendered by such individual, directly or indirectly, to the benefit of the SPV.

 

6.10.2     None of the former or current directors of the SPV has any residual claim vis-a-vis the SPV of any kind whatsoever in respect of the activities carried out. No judicial, extrajudicial, administrative and arbitration proceedings have been brought or threatened against the SPV by any director(s).

 

6.10.3     All documents pertaining to agents, advisors, consultants and brokers acting in the interest of the SPV (including the evidence of the payments of all amounts due to them) have been made available in the course of the Due Diligence. The SPV has performed all obligations and duties in respect of the agents, advisors, consultants and brokers acting in the interest of the SPV in compliance with all Applicable Laws and Regulations.

 

6.10.4     The SPV has not granted any power of attorney in favour of any person, firm or company for any purpose whatsoever.

 

6.10.5     All negotiations relating to the Transaction have been carried out without the intervention of any entities and/or individuals carrying out activities on behalf of the Seller that may ground any claim in connection with intermediation activities or payment of intermediation commissions, remunerations or any other similar fee against any of the SPV or the Purchaser.

 

 

 

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6.11       Good standing; Litigation and claims

 

6.11.1     Neither the Seller nor the SPV are insolvent nor under bankruptcy procedure or similar proceedings, nor has been declared bankrupt and no action or request to declare either the Seller or the SPV bankrupted or to make the Seller or the SPV subject to winding-up, liquidation, dissolution, insolvency and/or any similar proceeding is pending or threatened; the execution of the Agreement and the consummation of the Transaction will not result in any such winding-up, liquidation, insolvency or bankruptcy procedure of the Seller and or the SPV. Neither the Seller nor the SPV are in default of payment of any of their obligations, have requested any of their creditors to forgive or restructure debt or to extend their payment obligations. No voluntary arrangement, compromise or similar arrangement with creditors has been proposed, agreed or sanctioned in respect of the SPV or any of its assets.

 

6.11.2     There are no pending and/or threatened-in-writing proceedings of civil, criminal, civil, administrative, labour, Tax or any other nature before any arbitration panel, tribunal or other judicial, regulatory or administrative authority in which the SPV or the Seller are a party, whether as plaintiff or defendant or otherwise, and which may have an impact on the Plant, Project Contracts, Real Estate, Permits and/or the ability of the SPV to carry out its own business and the Seller is not aware of any facts or circumstance which may give rise to any such proceedings.

 

6.11.3     No written notice of any expropriation, revocation, termination, invalidity, non-renewal, annulment or other expiry or forfeiture of any of the Real Estate contracts has been delivered to the SPV, nor, to the Seller's knowledge, there have been or there are any facts, acts, omissions, events or circumstances which may ground any such revocation, termination, invalidity, non-renewal, annulment or other expiry or forfeiture of any of the rights granted under the Real Estate Rights nor which may adversely affect the use or enjoyment (godimento) of such rights by the SPV.

 

6.11.4     There are no challenges or objections to the Permits before any governmental, administrative or judicial authority under Applicable Laws and Regulations neither notice of termination, revocation, invalidity, expiry, forfeiture, non-renewal, annulment or suspension which are pending, have been notified or however communicated in writing to the SPV and/or the Seller. The SPV and/or the Seller are not subject to any proceedings and/or action of the competent public authority aimed to annul in self-defence (annullamento iri azttotutela) the authorising titles for the Plant.

 

6.11.5     There are no judgments, rulings or orders against the SPV and/or the Plant, Real Estate, Permits and/or Project Contracts, which the SPV has not complied with or fulfilled and there is and there has been no delay by the SPV in the completion of any obligation ensuing from such judgements, rulings or orders, if any.

 

6.12     hrtra-group debts and other arrangements

 

6.12.1     There are:

 

(a)     except for the Shareholder Loan Receivables, no amounts outstanding or obligations due by and between the SPV, the Seller and/or any other Person related to the SPV and/or the Seller;

 

 

 

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(b)     no contract, guarantee, agreement, understanding or commitment, either in written form or in verbal form by and between any of the SPV, the Seller and/or any other Person related to the SPV and/or the Seller;

 

(c)     all intra group transactions including the Shareholder Loan Agreements have been carried out by the SPV at arm's length and in compliance with any applicable transfer pricing rules.

 

6.13     Accuracy of information and documentation provided

 

6.13.1     All information and documents disclosed in the course of the Due Diligence and/or given to the Purchaser and its advisors by the Seller and/or the SPV during the Due Diligence or in any case prior to the execution of this Agreement are true, complete, correct, accurate and not misleading in all respects.

 

6.13.2     There are no facts or circumstances which have not been disclosed in writing to the Purchaser and its advisors and which could adversely affect the SPV and/or the Plant.

 

6.14     Pre signing and interim period

 

6.14.1     From January 1st, 2019 to the Closing Date (both included) the SPV has been managed in accordance with Clause 5.2.

 

7.     INDEMNIFICATION OBLIGATIONS OF THE SELLER

 

7.1     Seller's liability — indemnifiable Damages

 

The Seller agrees to indemnify and hold the Purchaser harmless from and against any Damage suffered by the Purchaser or the SPV in connection with any event, fact or circumstance rendering any representation and warranty provided under Clause 6 (in whole or in part) untrue, incomplete, incorrect, inaccurate or misleading. The Seller's representations and warranties have to be deemed specific: in order to avoid any doubt, this means that matters included and foreseen, in whole or in part, by a specific representation, shall not be considered contained by a different or more general Seller's representation and/or warranty. Therefore, there will be no duplication of recovery in respect of any fact giving rise to a claim under the Seller's representations and warranties.

 

7.2     Duo, to mitigate

 

Notwithstanding the foregoing, the Purchaser shall use its best efforts to prevent and mitigate and to cause the SPV to prevent and mitigate - any Damage that it may incur as a consequence of a matter that gives rise to a breach of the Seller's representations and warranties.

 

 

 

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7.3     Sole remedy

 

Subject to Closing, the indemnification obligations of the Seller provided under this Clause 7 is the sole remedy available to the Purchaser for breach or inaccuracy of the Seller's representations and warranties or for breach of any obligation of the Seller set forth in this Agreement, to the exclusion and in lieu of any other right or remedy available to the Purchaser under Applicable Laws and Regulations, without prejudice for any remedy pursuant to article 1439 of the ICC.

 

8.     LIMITATIONS ON THE SELLER'S LIABILITY

 

8.1     De Minimis - Basket

 

The Seller shall only be liable in respect of any Damages arising out of breaches of the Seller's representations and warranties if:

 

a)     the amount of the liability agreed or determined in respect of any individual Damage, considered alone or in the aggregate as a series of Damages arising from the same circumstances, exceed Euro 10,00;

 

b)     such Damages exceed, in the aggregate, Euro 40,000 (the "Basket"), in which case the Seller shall be liable only for the amount in excess of the Basket.

 

8.2     Cap to Seller's liability

 

The total aggregate liability of the Seller in respect of all claims under the Seller's representations and warranties or arising from breaches of the Seller's covenants under this

 

Agreement is limited to an amount equal to the 60% of the Purchase Price (the "Cap").

 

The Cap shall not apply to Damages deriving from breach of the Seller's representations and warranties set forth in Clauses 6.2 (Incorporation, good standing, authority of the Seller), 6.3 (SPY capital, Quota) nor, for the sake of clarity, to Damages deriving from breach of the Seller's representations and warranties due to the Seller's gross negligence (colpa grave) or willful misconduct (dolo).

 

8.3     Other limitations to Seller's liability

 

In calculating the liability of the Seller for any claim under the Seller's representations and warranties, that liability must be reduced by the sum of the following economic benefits relating to that claim:

 

a)     any indemnification payable hereunder shall be increased to an amount which ensures that the Purchaser and/or the SPV, as the case may be, receive a sum which, after having actually paid any Tax due in connection therewith, is equal to the amount which they would have benefitted from if no Tax had been payable in connection therewith. Conversely, in the event and to the extent that any Damage incurred by the Purchaser, and/or the SPV, as the case may be, actually indemnified by the Seller under this Agreement, is deductible by the Purchaser or the SPV, for income tax purposes in any given fiscal year, in such event and to such extent, the indemnity due by the Seller in respect of such Damage will be reduced by the actual reduction of net Tax liability (if any) resulting from the deductibility of the Damage;

 

b)     any amount which the Purchaser or the SPV have actually recovered from any third party in respect of such claim.

 

 

 

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8.4     Exclusions and Restrictions

 

8.4.1     The Seller shall not be liable under Clause 7.1 unless a Notice of Claim is given to it:

 

(a) on or before 24 months after the Closing Date, if a Damage arises from any of the representations and warranties contained in Clause 6, other than those referred to in the following paragraph (b);

 

(b) on or before the date of the expiry, for statutory limitation, of the rights or prerogatives which the relevant third parties could assert against the Purchaser or the relevant SPV, if a Damage arises from any of the representations and warranties concerning Tax, labour, or environmental matters,

 

provided however that the Seller's indemnification obligations shall remain valid, also after the expiration of the terms set out above, in case before the expiration thereof the Purchaser has sent to the Seller a Notice of Claim.

 

8.5     Liability of the Seller only in relation to actual losses

 

Notwithstanding any other provision of this Agreement, the Seller shall not be held liable for any claim and/or loss which arises by reason of a liability which, at the time when the Notice of Claim is given to the Seller, is contingent or potential, and the Seller shall not be liable to make any payment in respect of such claim and/or loss unless and until the liability becomes an actual liability, also as a result of an enforceable obligation to pay, or an interim measure binding on the SPV (e.g. including by way of a judgment or provision "provvisoriamente esecutivo", whether through "sentenza", "ordinanza" or "decreto" "or "ingiunzione" or "cartella esattoriale" or otherwise, and including for the avoidance of doubt any preventive remedy ("provvedimento cautelare"), or a settlement agreement executed by the Purchaser and/or the SPV in compliance with Clause 8.7 below).

 

8.6     Handling of claims

 

8.6.1     If the Purchaser intends to seek indemnification from the Seller pursuant to Clause 7.1, the Purchaser shall provide the Seller with written notice of any fact which may result in the Purchaser's and/or the SPV's suffering a Damage (the "Notice of Claim"). The said Notice of Claim shall be provided to the Seller as promptly as possible and in any event within 20 (twenty) days after the Purchaser has become aware of such fact or event and it shall set forth (i) the claim which the Purchaser intends to make (the "Claim"), (ii) the specific representation or warranty of the Seller set forth in this Agreement that the Purchaser alleges to be breached, and (iii) all related available information.

 

8.6.2     In case the Seller rejects a Claim made in a Notice of Claim, the Seller and the Purchaser shall attempt to resolve any differences that they may have with respect to the matters constituting the subject matter of such Notice of Claim during a period of 20 Business Days starting from the date of rejection. If, by the end of such period, the Seller and the Purchaser have failed to reach an agreement in writing with respect to all of such matters, all matters as to which an agreement has not been so reached may be submitted to the Court of Milan pursuant to Clause 13.2 by either Party.

 

 

 

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8.7     Third Parties Claims

 

8.7.1     In the event that of a third-party claim ("Third Party Claim"), possibly resulting in the Purchaser's right to be indemnified pursuant to the Seller's obligations under this Agreement, the Purchaser shall, under penalty of forfeiture, inform the Seller in writing, by registered letter (the "Third Party's Claim Notice"), within thirty (20) Business Days from the date such claim is received (or the shorter term which shall be necessary or appropriate in order not to lose any defence right or benefit), providing all reasonable information it has become aware of about such claim, including information as to any settlement proposal of such Third-Party Claim; it being understood that the Purchaser shall:

 

(a) cause the SPV not to settle any such claim, action, suit or proceeding without the prior written consent of the Seller (the "Seller's Consent"), which shall not be unreasonably delayed or denied. In any case, the Seller's Consent shall be deemed to have been given, unless the Seller notifies the Purchaser to the contrary in writing in reasonable detail (together with any supporting justifications and written explanations) not later than 20 Business Days following receipt by the Seller of the Purchaser's consent request in writing, unless circumstances require otherwise in order to allow the Purchaser and/or the SPV to settle the Third Party Claim and/or to exercise its rights under this Agreement (the "Seller's Objection");

 

(b) have the right to handle the defence of any such Third Party Claim and shall allow the Seller to participate, by counsels of their own choice, at their own cost, in the defence of any Third Party Claim, provided that, should the Parties disagree with respect to the handling of the relevant Third Party Claim, the defence strategy of the Purchaser shall prevail.

 

8.7.2     The Purchaser shall not, and shall procure that the SPV shall not, make any admission of liability, agreement, settlement or compromise with any third party in relation to any such claim without the prior written Seller's Consent provided, however, that if a firm offer is made to the SPV or to the Purchaser to settle any matter giving rise to the Seller's indemnification obligations which the Seller, but not the Purchaser, is willing to accept, the Purchaser and/or the SPV (as the case may be) shall be free not to enter into such settlement and to commence or continue litigation, at their own expenses, however the Seller's indemnification obligations under Section 7.1 shall be limited —without prejudice to the application of the provisions of Sections 8.1, 8.2, 8.3, 8.4 and 8.5 - to the amount of the proposed settlement. It being understood that should: (i) the Seller's Objection be raised in relation to a certain proposed settlement and (ii) a proceeding be started or be continuing in connection with the relevant Third Party Claim then the Seller shall indemnify and keep fully harmless the Purchaser and/or the SPV — without application of Cap — in respect of any Damages which they may incur in connection with the Third Party Claim.

 

9.     REPRESENTATIONS AND WARRANTIES BY THE PURCHASER

 

The Purchaser hereby makes the following representations and gives the following warranties to the Seller, which are true as at the Date of Execution and, unless otherwise provided, on the Closing Date.

 

9.1     Due Organization and Existence of the Purchaser

 

The Purchaser is a corporation incorporated and duly organized, validly existing, and in good standing under the laws of Italy.

 

 

 

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9.2     Authority and Enforceability, Consents, No Conflicts for the Purchaser, No intermediation

 

9.2.1     All corporate action necessary for the Purchaser to approve the execution and performance of this Agreement have been carried out and the Purchaser has all necessary right, power, authority and capacity to enter into this Agreement and carry out the transaction contemplated herein. This Agreement constitutes valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms.

 

9.2.2     The Purchaser is not subject to any bankruptcy proceedings, has not entered into arrangements by which its assets have been transferred to its creditors, is not insolvent nor has been put into liquidation; there are no bankruptcy proceedings or other insolvency proceedings pending against the Purchaser and no bankruptcy, liquidation or similar procedures pending against the Purchaser.

 

9.2.3     The Purchaser has available all funds necessary to pay the Purchase Price and the Shareholders Loan Receivables and in general to consummate the transactions contemplated by this Agreement.

 

9.2.4     All negotiations relating to the Transaction have been carried out without the intervention of any entities and/or individuals carrying out activities on behalf of the Purchaser that may ground any claim in connection with intermediation activities or payment of intermediation commissions, remunerations or any other similar fee against the Seller.

 

9.3     Due Diligence Review

 

9.3.1     The Purchaser represents and acknowledges that it has performed the Due Diligence and that, in such context:

 

a) the Purchaser has had the opportunity to review the information and the data room documents made available by the Seller or their representatives and/or advisors;

 

b) the Purchaser has been granted access to the Plant, in the context of several site visits and management meetings;

 

c) the Purchaser has raised with the Seller specific issues and questions and has obtained satisfactory and complete answers/information by the Seller and/or their advisors.

 

10.     CONFIDENTIAL INFORMATION

 

10.1     Each Party shall not, without the prior written consent of the other Party, disclose to any Person, or make a public announcement of any of the terms or other facts relating to this Agreement, or to any other agreement or arrangement relating to the Transaction, other than on a confidential basis, to any of its Affiliate(s).

 

10.2     Where a Party reasonably determines that a disclosure or announcement is required by the Applicable Laws and Regulations or by any other authority with relevant powers to which such Party or any of its Affiliate(s) is subject, the disclosure or announcement shall, to the extent permitted by the Applicable Laws and Regulations, be made after consultation with the other Party and after taking into account the reasonable requirements of the other Party as to timing, content and manner of making or dispatch of the disclosure or announcement.

 

 

 

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10.3     The Seller acknowledges that:

 

10.3.1     the Purchaser (and/or its Affiliates) may be under disclosing obligations relating to the certain terms of the Transaction in order to comply with the applicable stock exchange regulations and securities laws; and

 

10.3.2     the Purchaser (and/or its Affiliates) will also disclose certain information about the Transaction to its shareholders and prospected investors to get the necessary funding.

 

10.4     Accordingly, the Purchaser shall not be deemed in breach of this Clause 10 as a result of any disclosure made pursuant to Clause 10.3 above.

 

11.               COSTS AND TAXES

 

11.1     Any tax, cost, expense, fee, duty, or charge arising out in connection with this Agreement or the Transaction contemplated herein shall be borne as follows:

 

11.1.1     any income and capital gain taxes (if any) due by the Seller as a consequence of the sale and purchase of the Quota shall be borne by the Seller;

 

11.1.2     each Party shall bear the fees and expenses incurred by their respective representatives and advisors; and

 

11.1.3     notarial fees and registration tax shall be borne by the Purchaser.

 

12.     MISCELLANEOUS PROVISIONS

 

12.1     Entire Agreement

 

This Agreement contains the entire understanding and supersedes all prior agreements/arrangements of the Parties with respect to the Transaction contemplated hereunder, including the letter of intents dated December 4th, 2018.

 

12.2     Purchaser's right to designate

 

Pursuant to article 1401 of the ICC, the Purchaser shall have the right to designate a Person to become a party (or an ocklitional party) to this Agreement (the "Nominee") and to purchase, and pay for all or part of the Quota and the Shareholder Loan Receivables in accordance with the terms hereof, provided that such designation is in compliance with the following provisions: (i) anything in articles 1402 and 1403 of the ICC to the contrary notwithstanding, any designation pursuant hereto shall be made and communicated to the Seller not later than 10 Business Days prior to the Closing Date together with the written unconditional acceptance of the Nominee of the designation and of all the terms and conditions of this Agreement; (ii) the Nominee shall be an Affiliate of the Purchaser, (iii) the Purchaser shall remain jointly and severally obligated to the Seller in respect of all the Nominee's obligations under this Agreement; and (iv) following the designation to become a Party to this Agreement in lieu of the Purchaser, any reference made to the Purchaser under this Agreement shall be deemed to be made to the Nominee. Notwithstanding the designation of the Nominee hereunder, Clause 13.2 (Exclusive Jurisdiction) shall continue to apply also to the original Purchaser.

 

 

 

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12.3     No assignment

 

No Party shall be entitled to assign any of its rights and obligations hereunder without the prior written consent of the other Party.

 

12.4     Notices

 

Any communication or notice required or permitted to be given under this Agreement shall be made in writing and in English language and shall be deemed to have been duly and validly given (i) in the case of notice sent by registered letter, upon the Business Day following the signing of the return receipt by the recipient and (ii) in the case of notice sent by e-mail, upon the Business Day following receipt by the sender of the receipt of delivery by the recipient, addressed, in each case, as follows:

 

if to the Seller:

 

SPI Renewables Energy (Luxemburg) Private Limited Company S. a r.l.

 

6, Rue Eugene Ruppert, L-2453 Luxembourg

 

E-mail: gaia.baldinaspigroups.com;

 

E-mail: ludovic.trogliero@intertrustgroup.com;

 

if to the Purchaser:

 

Theia Investments (Italy) S.r.l.

 

Via Giovanni Boccaccio 7

 

20123 - Milan

 

E-mail: david.lindsay@staffordcp.com

 

PEC: theia@legalmail.it,

 

or at such other address as either Party may hereafter provide to the others by written notice, as provided herein.

 

12.5     Changes in writing

 

This Agreement may not be waived, changed, modified or discharged orally, but only by an agreement in writing signed by the Parties.

 

 

 

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12.6     No waiver

 

Except for the cases of forfeiture expressly provided for by this Agreement, the failure to exercise or any delay in exercising a right or remedy provided by this Agreement or by Applicable Laws and Regulations shall not impair or constitute a waiver of such right or remedy or an impairment or a waiver of other rights or remedies.

 

12.7     Set-off

 

The Purchaser shall be entitled to set-off any amount due by it under this Agreement with any amount due by the Seller to the Purchaser under this Agreement.

 

13.     APPLICABLE LAW — EXCLUSIVE JURISDICTION 1 3. 1 Applicable law

 

This Agreement, any connected Schedules or documents and the rights and obligations of the Parties hereunder or however connected with its execution, perfection, construction and performance shall be governed by and construed and interpreted in accordance with the laws of Italy.

 

13.2     Exclusive jurisdiction

 

All disputes arising out of or in connection with this Agreement and the documents connected therewith (including the Transfer Deed) shall be submitted to the exclusive jurisdiction of the Court of Milan.

 

14.     LIST OF SCHEDULES

 

The following Schedules constitute an integral and substantial part of this Agreement:

 

·      Schedule 2.1.34: Reference Financial Statements;

·      Schedule 5.5.1 (a): Transfer Deed;

·      Schedule 5.5.1 (b): Shareholder Loan Receivables Deed of assignment;

·      Schedule 5.5.1 (c) i): Sole Director Resignation Letter;

·      Schedule 5.5.1 (d) i): Release Letter;

·      Schedule 6.7.1: List of Contracts.

 

 

 

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SPI Renewables Energy (Luxemburg) Private Limited Company S. à r.l.

 

 

     
     
Name: Cheong Hoong Khoeng   Name: Universal Management Services S.à r.l.
Title: Manager A   Title: Manager B
     
     
     
     

 

 

 

 

 

 

 

Theia Investments (Italy) S.r.l.

 

          /s/ David Lindsay

 

Name: David Lindsay
Title: Director

 

 

 

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SUN ROOF V S.R.L.

 

 

Bilancio di esercizio al 31-12-2018

 

 

 

 

 

 

 

 

 

 

 

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Schedule 53.1 (b): Shareholder Loan Receivables Deed of assignment

 

[on SPI Renewables Energy Luxemburg letterhead]

 

[•] 2019

 

Theia Investments (Italy) S.r.l.
Via Giovanni Boccaccio 7

20123 - Milan

 

Copy to:

SUN ROOF V S.r.l.

Via Boccaccio 7,
20123 - Milan

 

Subject: Shareholder Loan Receivables Deed of assignment — proposal

 

Dear Sirs,

 

in relation to the sale and purchase agreement (hereinafter the "SPA") entered into on 23 September 2019 by and among S.P.I. Renewables Energy (Luxembourg) Private Limited Company S. a r.1., as seller, on the one side, and Theia Investments (Italy) S.r.l., as purchaser, on the other side, for the sale and purchase of 100% of the corporate capital of Sun Roof V S.r.l., a company organized under the laws of Italy, with registered office in Milan, Via Giovanni Boccaccio, 7, registered with the Companies' Register of Milan Lodi Monza Brianza under No. 07531650963 (hereinafter the "Company"), herewith we propose the following:

 

SHAREHOLDER LOAN RECEIVABLES DEED OF ASSIGNMENT

 

among

 

S.P.I. Renewables Energy (Luxemburg) Private Limited Company S. a r.l., a limited liability company registered and incorporated under the laws of Luxembourg and having its registered office at 6 Rue Eugene Ruppert, L-2453 Luxembourg, and registered with the Companies' Register of Luxembourg under no. BI56036, tax number 20102434979, represented herein by Gaia Baldini, in her capacity as Manager A, duly empowered pursuant to a Board of Directors resolution dated 18 September 2019;

(hereinafter the "Seller")

 

- on the one side -

 

and

 

Theia Investment (Italy) S.r.l., a company incorporated under the laws of Italy, having its registered offices at Via Giovanni Boccaccio 7, 20123, registered with the Companies' Register of Milano Monza Brianza Lodi under no. MI-2551617, tax and VAT code 10711700962, represented herein by David Lindsay, in his capacity as Director, duly empowered pursuant to a resolution [CORPORATE BODY] dated [DATE];

(hereinafter the "Purchaser")

 

- on the other side -

 

(hereinafter jointly the "Parties" and each of them the "Party")

 

RECITALS

 

(A)       As of the date hereof, Seller has a receivable vis-à-vis the Company equal to [-] including the relevant interests (hereinafter the "Shareholder Loan Receivables"), deriving from:

 

· an interest-bearing intercompany loan, for an original aggregate amount of Euro 1,829,100.00 with an annual interest rate equal to 6.5 %, advanced to the latter on 1 January 2014 and with a maturity date of 31 December 2023.

 

 

  36  

 

 

Schedule 5.5.1 b • Shareholder Loan Receivables Deed of assignment

 

· an interest-bearing intercompany loan, for an original aggregate amount of Euro 775,400.00 with an annual interest rate equal to 6.5 %, advanced to Green Equity S. a r.1., the former minority shareholder of the Company on 1 January 2014 and with a maturity date of 31 December 2023. The outstanding receivables relating to this shareholder loan were assigned to the Seller from the former minority shareholder of the Company, by deed of assignment dated 25 July 2019, accepted by the Company on the same date.

 

(B)       The Seller intends to sell to Purchaser, who intends to purchase, the Shareholder Loan Receivables on the terms and conditions contained in this agreement.

 

Now, therefore

the Parties agree as follows.

 

1.       RECITALS

 

The Recitals form an integral and substantial part of this agreement (hereinafter the "Agreement").

 

2.       SHAREHOLDER LOAN RECEIVABLES ASSIGNMENT

 

2.1.     The Seller sells to Purchaser, who purchases, the Shareholder Loan Receivables (including all rights and obligations thereunder) with effect from today's date.

 

2.2.     The assignment of the Shareholder Loan Receivables is made and accepted "pro solute" and therefore the Seller warrants to Purchaser, pursuant to Article 1266 of the Italian Civil Code, that the Shareholder Loan Receivables are valid, existing, and are not subject to any pledge, usufruct, foreclosures or restrictions of any kind, but no warranty is given by Seller, pursuant to Article 1267 of the Italian Civil Code, on the actual payment of the Shareholder Loan Receivables by the Company.

 

3.       INTERCOMPANY RECEIVABLE PRICE

 

Purchaser as a consideration for the purchase of the Shareholder Loan Receivables, pays to Seller, simultaneously with the execution of this Agreement, the sum of Euro [ ], by means of irrevocable wire transfer on the bank account no. [__________].

 

4.       EFFECTS

 

4.1 The Shareholder Loan Receivables shall be transferred to Purchaser with enjoyment as from the date hereof.

 

4.2 The Parties declare that this Agreement does not intend to renew, modify, replace or amend any other agreement signed between the Parties concerning, inter alia, the same subject matter of this Agreement, which remain fully valid and effective. In particular, there is no extinction due to the signing of this Agreement of any declarations or guarantees given by Seller to Purchaser.

 

5.       GOVERNING LAW AND DISPUTE RESOLUTION

 

This Agreement shall be governed by and construed in accordance with Italian law. Any dispute arising from and connected with this Agreement shall be subject to the exclusive jurisdiction of the Court of Milan.

 

* * *

If you agree with this proposal, please express your acceptance, by sending a copy of this letter reproducing its text and duly signed below for acceptance.

 

 

  37  

 

 

 

Kind regards,

 

 

___________________________________

S.P.I. Renewables Energy (Luxemburg) Private Limited Company S. a r.l.

 

Name: Gala Baldini

 

Title: Manager A

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  38  

 

 

Schedule 5.5.1 (b): Shareholder Loan Receivables Deed of assignment

 

 

 

[on Theia letterhead]

 

[•] 2019

S.P.I. Renewables Energy (Luxemburg) Private Limited Company S. a r.l.

6 Rue Eugene Ruppert

Luxembourg

 

 

Copy to:

SUN ROOF V S.r.l.

Via Boccaccio 7,

Milano

 

 

 

Subject: Shareholder Loan Receivables Deed of assignment — acceptance

 

Dear Sirs,

 

We acknowledge receipt of your proposal, whose terms and conditions are fully reproduced herein below:

 

"Dear Sirs,

 

in relation to the sale and purchase agreement (hereinafter the "SPA') entered into on 23 September 2019 by and among Renewables Energy (Luxembourg) Private Limited Company S. a O., as seller, on the one side, and Theia Investments (Italy) Sri., as purchaser, on the other side, for the sale and purchase of 100% of the corporate capital of Sun Roof V a company organized under the laws of Italy, with registered office in Milan, dale Gran Sasso 11, registered with the Companies' Register of Milan Lodi Monza Brianza under No. 07531650963 (hereinafter the "Company'), herewith we propose the following:

 

SHAREHOLDER LOAN RECEIVABLES DEED OF ASSIGNMENT

 

among

 

Renewables Energy (Luxemburg) Private Limited Company S. a a, a limited liability company registered and incorporated under the laws of Luxembourg and having its registered office at 6 Rue Eugene Ruppert, L-2453 Luxembourg and registered with the Companies' Register of Luxembourg under no. B156036, tax number 20102434979, represented herein by Gala Baldini, in her capacity as Manager A, duly empowered pursuant to a Board of Directors resolution dated 18 September 2019;

("hereinafter the "Seller')

 

- on the one side -

 

and

 

Theia Investment (Italy) a company incorporated under the laws of Italy, having its registered offices at Via Giovanni Boccaccio 7, 20123, registered with the Companies' Register of Milano Monza Brian:a Lodi under no. MI-2551617, tax and VAT code 10711700962, represented herein by David Lindsay, in his capacity as Director, duly empowered pursuant to a resolution [CORPORATE BODY] dated [DATE];

(hereinafter the "Purchaser')

 

- on the other side -

 

(hereinafterjointly the "Parties and each of them the "Party')

 

 

  39  

 

 

Schedule 5.5.1 (b) Shareholder Loan RCCCh Miles Deed of assignment

 

RECITALS

 

(A) As of the date hereof Seller has a receivable vis-a-vis the Company equal to [•] including the relevant interests (hereinafter the "Shareholder Loan Receivables'), deriving from:

 

· an interest-bearing intercompany loan, for an original aggregate amount of Euro 1,829,100.00 with an annual interest rate equal to 6.5 %, advanced to the latter on 1 January 2014 and with a maturity date of 31 December 2023.

 

· an interest-bearing intercompany loan, for an original aggregate amount of Euro 775,400.00 with an annual interest rate equal to 6.5 %, advanced to Green Equity S. a r.l., the former minority shareholder of the Company on 1 January 2014 and with a maturity date of 31 December 2023. The outstanding receivables relating to this shareholder loan were assigned to the Seller from the former minority shareholder of the Company, by deed of assignment dated 25 July 2019, accepted by the Company on the same date.

 

(B) The Seller intends to sell to Purchaser, who intends to purchase, the Shareholder Loan Receivables on the terms and conditions contained in this agreement.

 

Now, therefore

the Parties agree as follows.

 

1.       RECITALS

 

The Recitals form an integral and substantial part of this agreement (hereinafter the "Agreement').

 

2.       SHAREHOLDER LOAN RECEIVABLES ASSIGNMENT

 

2.1.     The Seller sells to Purchaser, who purchases, the Shareholder Loan Receivables (including all rights and obligations thereunder) with effect from today's date.

 

2.2.     The assignment of the Shareholder Loan Receivables is made and accepted "pro soluto" and therefore the Seller warrants to Purchaser, pursuant to Article 1266 of the Italian Civil Code, that the Shareholder Loan Receivables are valid, existing, and are not subject to any pledge, usttfruct, foreclosures or restrictions of any kind, but no warranty is given by Seller, pursuant to Article 1267 of the Italian Civil Code, on the actual payment of the Shareholder Loan Receivables by the company.

 

3.       INTERCOMPANY RECEIVABLE PRICE

 

Purchaser as a consideration for the purchase of the Shareholder Loan Receivables, pays to Seller, simultaneously with the execution of this Agreement, the sum of Euro ['I, by means of irrevocable wire transfer on the bank account no, [_________].

 

4.       EFFECTS

 

4.1     The Shareholder Loan Receivables shall be transferred to Purchaser with enjoyment as from the date hereof

 

4.2     The Parties declare that this Agreement does not intend to renew, modify, replace or amend any other agreement signed between the Parties concerning, inter alia, the same subject matter of this Agreement, which remain fully valid and effective. In particular, there is no extinction due to the signing of this Agreement of any declarations or guarantees given by Seller to Purchaser.

 

5.       GOVERNING LAW AND DISPUTE RESOLUTION

 

 

  40  

 

 

Schedule 5.5.1 (b): Shareholder Loan Receivables Deed of assignment

 

This Agreement shall be governed by and construed in accordance with Italian law. Any dispute arising from and connected with this Agreement shall be subject to the exclusive jurisdiction of the Court of Milan.

 

* * *

 

If you agree with this proposal, please express your acceptance, by sending a copy of this letter reproducing its text and duly signed below for acceptance.

 

Kind regards,

 

_____________________

S.P.I. Renewables Energy (Luxemburg) Private Limited Company S. a r.l.

 

_____________________ 

Name: Gala Baldini

 

Title: Manager A

 

 

We hereby agree and accept your proposal.
Theia Investments (Italy) S.r.l.

 

 

DATE: ___________________________

 

NAME: ___________________________

 

TITLE: ___________________________

 

* * *

 

Acknowledged and agreed, pursuant to article 1264 of the Italian civil code, by SUN ROOF V S.r.l.:

 

DATE: ___________________________

 

NAME: ___________________________

 

TITLE: ___________________________

 

 

 

  41  

 

 

 

 

 

 

  42  

 

 

Schedule 5.5.1 d) i) — Release Letter

 

 

To:

Resigning Sole Director of Sun Roof V

Mr. Hoong Khoeng Cheong

 

 

 

and copy to:

Sun Roof V S.r.l.
Via Boccaccio 7,
20123 - Milan

 

 

RE: Release letter to the benefit of the sole director

 

 

[•], 2019

 

Dear Sir,

 

reference is made to the sale and purchase agreement relating to 100% of the corporate capital of Sun Roof V S.r.l. (the "Company"), executed on 23 September 2019 by and between S.P.I. Renewable Energy (Luxemburg) Private Limited Company S. a r.1., as Seller, on one side, and Theia Investmeents (Italy) S.r.l., as Purchaser, on the other side (the "SPA").

 

Capitalized terms not defined herein shall have the same meaning ascribed to them in the SPA.

 

We hereby:

 

(i) waive unconditionally any claims (if any) which we may have against you, in respect of your conduct, as sole director of the Company, up to the Closing Date, based on article 2476, paragraph 7, of the ICC, except in case of gross negligence ("colpa grave") and wilful misconduct ("do/o");

 

(ii) undertake not to vote or promote and to cause the Company neither to vote nor to promote, respectively, any liability action against you pursuant to article 2476 of the ICC, except in case of gross negligence ("colpa grave") wilful misconduct ("dolo");

 

(iii) undertake to indemnify you (except in case of their gross negligence ("colpa grave") wilful misconduct ("dolo") against any claim or action promoted by any of the Purchaser's Affiliates which shall acquire any shareholding in the Company after the Closing, connected to the claims or actions mentioned in numbers (i) and (ii) above.

 

 

 

 

Kind regards,

 

 

Theia Investments (Italy) S.r.l.

 

 

 

_____________________________

[•] by its legal representative [•]

 

 

  43  

 

 

Schedule 6.7.1 — List of Contracts

 

SUN ROOF V S.r.1.

 

List of contracts Sun Roof V:

 

1. DDS Agreement ("Contralto per la costituzione di diritto di supelficie"), signed on December 19th, 2011 between SUN ROOF V S.r.l. and Avikosmos S.r.1.;
2. Easement Right Deed ("Alto di costituzione di servitir di locale per cabina di consegna di elettrodotto e di accesso"), signed separately on August 8th, 2012 by Avikosmos S.r.l. and SUN ROOF V S.r.l. and on Septemebr 20th, 2012 by ENEL Distribuzione S.p.A.;
3. Easement Right Deed ("Costituzione di servita di elettrodotto"), signed separately on August 8th, 2012 by SUN ROOF V S.r.l. and Di Meo Tole, Melato Rosa, De Franceschi Aldo, Gennari Giuseppina, on August 9th, 2012 by Gennari Franco and on October 26th, 2012 by ENEL Distribuzione S.p.A; addendum to this deed signed separately on October 25th, 2012 by SUN ROOF V S.r.l. and Di Meo Tole, Melato Rosa, Gennari Franco, De Franceschi Aldo, Gennari Giuseppina and on October 26th, 2012 by ENEL Distribuzione S.p.A;
4. Easement Right Deed ("Costiticione di servith inamovibile di ekttrodotto in cavo interrato") signed separately on August 8th, 2012 by SUN ROOF V S.r.l. and Guzzo Giancarlo and on September 20th, 2012 by ENEL Distribuzione S.p.A;
5. Dismantling Deed ("Alto d'obbligo unilaterale per lo smantellamento dell 'impianto") signed on July 6th, 2012 by SUN ROOF V S.r.1. towards Comune di Cisterna di Latina;
6. Operation and Maintenance Agreement, signed on April 15`, 2018 between SUN ROOF V S.r.l. and Future Energy Service and Maintenance S.r.l.;
7. Quotation for accounting, tax and administrative services, issued by Ciccioriccio & Associati on November 21 s1, 2017 and accepted by SUN ROOF V S.r.I.;
8. Full-Risks Insurance Policy, signed between the Company and WIDE GROUP;
9. Internet and Telephone Agreements, signed on September 21th, 2012 between TELECOM ITALIA. S.p.A. and SUN ROOF V S.r.l.;
10. MV Energy Supply Agreement, signed on July 31s1, 2012 between Enel Energia S.p.A. and SUN ROOF V S.r.1.;
11. LV Energy Supply Agreement, signed on July 31 s1, 2012 between Enel Energia S.p.A. and SUN ROOF V S.r.l.;
12. Agreement for Periodical Check of Fire-Extinguishers, signed on February 7th, 2013 between COTTERLI Estintori S.a.S. and SUN ROOF V S.r.l. and its relevant amendment signed on October 1St, 2013;
13. FIT Agreement ("Convenzione per it riconoscimento delle tail* incentivanti"), signed on November 26th, 2012 between GSE S.p.A. and SUN ROOF V S.r.l. and relevant Addendum issued on January 15th, 2016;
14. PPA ("Contratto di compravendita di energia elettrica"), signed on November 21st, 2018 between EGO Trade S.p.A. and SUN ROOF V S.r.l.;
15. GO Agreement ("Contratto di compravendita di gar anzie d 'origine"), signed on November 21st, 2018 between EGO Trade S.p.A. and SUN ROOF V S.r.l..
16. Regolamento di Esercizio;

 

  44  

 

 

Schedule 6.7.1 — List of Contracts

 

17. Quotation for E-Invoicing service, issued by Ciccioriccio & Associati on December 5th, 2018 and accepted by SUN ROOF V S.r.1.;
18. Surveillance Agreement, signed on June 8th, 2016 between Italpol Vigilanza S.r.l. and SUN ROOF V S.r.1.;
19. Legal Address Registration Agreement ("Contratto di domiciliazione legale"), signed on June 27th, 2012 between A&P Services S.r.1. and SUN ROOF V S.r.1.;
20. Quotation for Anti-Mice Services ("Servizi di derauizzazione"), issued by EURODISINFESTAZIONI S.r.1. Semplificata on December 14th, 2018 and accepted by SUN ROOF V S.r.1. on December 17th, 2018.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  45  

Exhibit 4.68

 

 

To:

 

SPI Renewables Energy (Luxemburg) Private Limited Company S. a r.l.

 

6, Rue Eugene Ruppert

 

L-2453 Luxembourg

 

Grand Duchy of Luxembourg

 

 

 

23 September, 2019

 

 

Re:     sale and purchase agreement proposal

 

Dear Sirs,

 

Following our previous discussions, please find below our sale and purchase agreement proposal. Please confirm that the below proposal correctly sets forth the terms of our agreement by reproducing our proposal in a separate document duly signed by an authorized signatory, initialized on each page.

 

Kind regards,

 

Theia Investments (Italy) S.r.l.

 

          /s/ David Lindsay

 

Name: David Lindsay
Title: Director

 

 

 

 

  1  

 

 

SALE AND PURCHASE AGREEMENT

 

BETWEEN

 

(1) SPI Renewables Energy (Luxemburg) Private Limited Company S. a r.1., a company incorporated under the laws of Luxembourg, having its registered offices at 6, Rue Eugene Ruppert, L-2453 Luxembourg, registered with the Companies' Register of Luxembourg under no. B156036, tax number 20102434979 ("SPI Renewables" or the "Seller"), represented by Cheong Hoong Khoeng, in his capacity as Manager A and Universal Management Services S.a r.l. in their capacity as Manager B;

 

on one side

 

AND

 

(2) Theia Investments (Italy) S.r.l., a company incorporated under the laws of Italy, having its registered offices at Via Giovanni Boccaccio 7, 20123 Milano, registered with the Companies' Register of Milano Monza Brianza Lodi under no. MI-2551617, tax and VAT code 10711700962 (the "Purchaser"), represented by David Lindsay, in his capacity as Director;

 

on the other side

 

(the Seller and the Purchaser are individually referred to as a "Party" and, collectively, the "Parties").

 

WHEREAS:

 

(A) The Purchaser is a company active in the renewable energy business and it intends to invest in photovoltaic plants in Italy.
   
(B) The Seller is also active in the renewable energy business and owns 100% - par value Euro 10,000.00 - of the corporate capital of Sun Roof I S.r.l. (the "Quota"), a company incorporated under the laws of Italy, having its registered offices at Viale Gran Sasso no. 11, 20131, Milano, registered with the Companies' Register of Milano Monza Brianza Lodi under no. MI-1965170, tax and VAT code 07531480965 (the "SPV").
   
(C) The SPV owns an operating photovoltaic plant located in the Municipality of Aprilia (RM), Lazio Region, Italy, consisting of two sections whose aggregate installed capacity is equal to 479.4 kW (the "Plant", whose term shall be deemed inclusive of the relevant connection infrastructures).
   
(D) The Purchaser has conducted (also by means of its advisors) a technical, legal and tax due diligence on the SPV and the Plant, through the review of the information and documents having been made available to the Purchaser by the Seller (the "Due Diligence").
   
(E) In accordance with the terms and subject to the conditions set forth under this Agreement: 1) the Purchaser intends to purchase from Seller the Quota; ii) Seller intends to transfer to the Purchaser the Quota.
   
(F) Moreover, in accordance with the terms hereof: i) the Purchaser intends to purchase from Seller the Shareholder Loan Receivables (as defined below) and; ii) Seller intends to transfer to the Purchaser the Shareholder Loan Receivables.

 

 

 

  2  

 

 

NOW, THEREFORE, on the basis of the foregoing, it is hereby agreed as follows:

 

1.         RECITALS AND SCHEDULES

 

The above Recitals and the Schedules attached hereto constitute an integral and substantial part of this Agreement.

 

2.         DEFINITIONS AND INTERPRETATIVE RULES

 

2.1       Definitions

 

In addition to any other term defined elsewhere in this Agreement, the following terms shall have, for the purposes of this Agreement, the meanings set forth below unless the context clearly requires otherwise:

 

2.1.1        "Accounting Principles" shall mean the principles provided by the ICC in respect of the preparation of financial statements (bilanci di esercizio), as interpreted in accordance with the accounting principles issued by the Consiglio Nazionale dei Dottori Cornmercialisti e degli Esperti Contabili and the Organismo Italiano di Contabilita;

 

2.1.2        "Affiliate" shall mean, in relation to any Party, any subsidiary company or parent company of such Party and any subsidiary company of any such parent company, in each case from time to time;

 

2.1.3        "Agreement" shall mean this quota sale and purchase agreement, including its Recitals and Schedules;

 

2.1.4        "Applicable Laws and Regulations" shall mean all supra-national, national, regional and local laws, acts, ordinances, orders, decrees, injunctions, rules, regulations, permits, licenses, authorizations, as well as directions and requirements of any authorities, including tax authorities, having jurisdiction over the SPV and/or the Plant (including the GSE, ARERA and the Grid Operator);

 

2.1.5        "ARERA" shall mean Autorita di Regolazione per Energia Reti e Anibiente;

 

2.1.6        "Basket" shall have the meaning set forth in Clause 8.1 b);

 

2.1.7        "Business Day" shall mean any calendar day (other than a Saturday or a Sunday) on which banking institutions are open for business in Milan, Italy;

 

2.1.8        "Cap" shall have the meaning set forth in Clause 8.2;

 

2.1.9        "Claim" shall have the meaning set forth in Clause 8.6.1;

 

 

 

  3  

 

 

2.1.10        "Closing" shall mean the execution of the Transfer Deed and, in general, the execution and exchange of all documents and agreements and the performance and consummation of all obligations and transactions, respectively, required to be executed and exchanged and performed and consummated by the Parties on the Closing Date pursuant to this Agreement;

 

2.1.11        "Closing Date" shall mean the date on which the Transfer Deed is executed and Closing takes place;

 

2.1.12        "Conditions to the Closing" shall have the meaning set forth in Clause 5.3.1;

 

2.1.13        "Damages" shall mean any actual loss (including losses of or shortfall in profits, earnings or revenues, and loss of opportunities), damage, liability, write-off, writedown, shortfall, including for the avoidance of doubt any insussistenza dell'attivo, minusvalenza dell'attivo, sopravvenienza passiva and plusvalen:a passiva, dividends distribution restriction, costs or expenses of whatever nature (including out-of-pocket expenses, and accountants', consultants', experts' and attorney's fees);

 

2.1.14        "Date of Execution" shall mean the date hereof;

 

2.1.15        "Due Diligence" shall have the meaning set forth in Recital (D);

 

2.1.16        "Encumbrance" shall mean any security interest, pledge, mortgage, easement, lien, charge, encumbrance or restriction on the use, voting or transfer, usufruct, security or enjoyment right (diritto di garanzia o di godimento), sequestration, deed of trust, assignment, freeze, privilege, expropriation, seizure, attachment, claim, opposition, covenant, obligation (including propter rem), burden, limitation, restriction, reservation of title, option, right of first refusal, right of pre-emption, right of set off, right to acquire, other similar restriction or any other third-party right or interest, statutory or otherwise, of any kind or nature whatsoever, however created or arising, or any agreement to create any of the foregoing or any written claim by a third party for the granting of any of the foregoing;

 

2.1.17        "Grid Operator" shall mean Enel Distribuzione S.p.A., Terna S.p.A. and/or any other network provider on the site where the Plant has been constructed and connected to the grid;

 

2.1.18        "GSE" shall mean Gestore dei Servizi Energetici S.p.A.;

 

2.1.19        "ICC" shall mean the Italian Civil Code;

 

2.1.20        "Leakages" shall mean, with respect to the SPV, any indebtedness or liability different from those indicated in the Reference Financial Statement and/or any payment (other than payments made by the SPV in favor of its relevant counterparties according to the Project Contracts and/or expressly authorised by the Purchaser) and/or any cash extraction made following the Reference Date (excluded) other than payments made in the ordinary course of business and required by Applicable Laws and Regulations. For the sake of clarity, any repayment of the Shareholder Loan Receivables will not be considered, for the purposes of this definition, as a payment made in the ordinary course of business;

 

2.1.21        "Long Stop Closing Date" shall mean 30 November 2019;

 

 

 

  4  

 

 

2.1.22        "Nominee" shall have the meaning set forth in Clause 12.2;

 

2.1.23        "Notice of Claim" shall have the meaning set forth in Clause 8.6.1•;

 

2.1.24        "Parties" shall have the meaning set forth in the preamble of this Agreement;

 

2.1.25        "Permits" shall mean, in respect of the Plant and the SPV, each and all the authorizations, consents, approvals, nihil obstat, ways of leave, permits, licenses, certificates, environmental assessments, agreements, however named, as required pursuant to the Applicable Laws and Regulations for the construction, connection to the grid, exploitation, operation of such Plant and enjoyment of the Tariff (including any written prescription from any authority, however involved in the authorization procedure) and any attachment thereto as well as any requests or applications to obtain any of such authorizations, consents, approvals, nihil obstat, ways of leave, permits, licenses, certificates, environmental assessments, agreements; for the sake of clarity, the term "Permits" also includes any permit required for the interconnection facilities and all rights and proceedings related to the connection of the Plant to the grid, including the soluzione tecnica minima generale and the soluzione tecnica minima di dettaglio, the regolamento di esercizio, the connection agreement and any other rights or title necessary to carry out all works and infrastructures required for the (i) construction of the Plant's evacuation line, and (ii) connection of the Plant's evacuation line to the grid connection point.

 

2.1.26        "Person" shall mean any natural person, company, firm, partnership, joint-venture, corporation, association, government or political subdivision, agency or institution of a government, or any other organization or entity;

 

2.1.27        "Plant" shall have the meaning set forth in Recital (C);

 

2.1.28        "Project Contracts" shall have the meaning set forth in Clause 6.7.1;

 

2.1.29        "Purchase Price" shall have the meaning set forth in Clause 4.1;

 

2.1.30        "Purchaser" shall have the meaning set forth in the preamble of this Agreement;

 

2.1.31        "Quota" shall have the meaning set forth in Recital (B);

 

2.1.32        "Quota Purchase Price" shall have the meaning set forth in Clause 4.1.2;

 

2.1.33        "Real Estate" shall mean, in respect of the Plant and the SPV, the building and the roof (lastrico solare) on which such Plant stands (including the facilities necessary for the construction and operation of the aforesaid Plant (including cabling, access roads and substations)), as indicated on the layout and the project of the Plant as duly and finally authorised according to the Permits and the Applicable Laws and Regulations;

 

2.1.34        "Real Estate Contracts" shall mean the contracts executed by the SPV in order to have title over the relevant Real Estate;

 

 

 

  5  

 

 

2.1.35        "Reference Date" shall mean December 31', 2018;

 

2.1.36        "Reference Financial Statement" shall mean the financial statement of the SPY as of the Reference Date, attached hereto as Schedule 2.1.36;

 

2.1.37        "Seller" shall have the meaning set forth in the preamble of this Agreement; 2.1.38 "Seller's Consent" shall have the meaning set forth in Clause 8.7.1 (a); 2.1.39 "Seller's Objection" shall have the meaning set forth in Clause 8.7.1 (a);

 

2.1.40        "Shareholder Loan Agreement" shall mean the shareholder loan agreements, effective from 1 January 2014 and with maturity date 31 December 2023, bearing an interest rate of 6.5% per annum, executed by the SPV and the Seller for an original amount of Euro 1,560,000.00 (one million five hundred and sixty thousand/00);

 

2.1.41        "Shareholder Loan Receivables" shall mean the receivables (including any interests accrued thereon as of the Closing Date) of the Seller vis-a-vis the SPV, as arising out of the Shareholder Loan Agreement and outstanding as of the Closing Date;

 

2.1.42        "Shareholder Loan Receivables Price" shall have the meaning set forth in Clause 4.1.1;

 

2.1.43        "SPY" shall have the meaning set forth in Recital (B);

 

2.1.44        "Tariff" shall mean the incentive tariff (tariffa incentivante) granted by the GSE to the SPV in connection with the Plant, in accordance with the applicable energy decree (Canto Energia);

 

2.1.45        "Taxes" shall mean any Italian state or local tax, including registration tax, cadastral tax, mortgage tax, stamp duties, corporate income tax ("IRA'S"'), regional tax ("IRAP"), trade, wealth, value-added tax ("VAT), sales, property or transfer tax, salary/wage tax, any other withholding tax, excise taxes, customs, duties, social security contributions or any other tax, as well as any tax and social security contributions, within the meaning of any laws of foreign jurisdictions, wherever and whenever imposed, in each case together with any interest, penalty, fine, addition to tax or other ancillary duties or any other such charges within the meaning of any laws of foreign jurisdictions;

 

2.1.46        "Third Party Claim" shall have the meaning set forth in Clause 8.7.1;

 

2.1.47        "Third Party's Claim Notice" shall have the meaning set forth in Clause 8.7.1;

 

2.1.48        "Transaction" shall have the meaning set forth in Clause 3;

 

2.1.49        "Transfer Deed" shall mean the agreement which shall be executed for the sole purposes of article 2470 of the ICC on the Closing Date for the purposes of implementing this Agreement by transferring the Quota from the Seller to the Purchaser.

 

 

 

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2.2       Interpretative Rules

 

Unless otherwise expressly provided for in this Agreement, for purposes of this Agreement:

 

2.2.1        all terms used in the singular shall be deemed to include the plural, and vice versa, as the context may require;

 

2.2.2        the word "including" and any variation thereof shall mean "including without limitation" and shall not be construed to limit any general statement to the specific or similar items or matters following it;

 

2.2.3        the words "hereof', "herein", "hereto" and "hereunder" refer to this Agreement as a whole (including the Recitals and the Schedules), and not to any subdivision of this Agreement;

 

2.2.4        when calculating the period of days before which, by which, or following which any act is to be done or any step is to be taken pursuant to this Agreement, the day that is the reference date in calculating such period shall be excluded. If the last day of such period is not a Business Day, the relevant period shall end on the next following Business Day. Unless otherwise expressly provided for, any period of time expressed in months shall be calculated as provided for in article 2963, paragraphs 4 and 5 of the ICC;

 

2.2.5        references to "Clauses", "Recitals" and "Schedules" are to the clauses, recitals and schedules of this Agreement;

 

2.2.6        the division of this Agreement into Clauses and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement;

 

2.2.7        any reference to the knowledge, belief and/or awareness of the Seller, or similar phrases, or any similar expression or variation thereof shall be interpreted as referring to the knowledge of a circumstance which the director(s) or the board of directors of the Seller, or of the entity to which the relevant statement refers (or which holds the assets to which the relevant statement refers), when making the statement, actually has or would have had if it had made due and careful inquiry as to the circumstance which is the subject of the statement in accordance with directors' duties under the Applicable Laws and Regulations, including the ICC;

 

2.2.8        the obligation of a Party to cause any other Person (including a corporate body of any such Person) to undertake or to do something, or to procure that any other Person (including a corporate body of any such Person) undertake or do something, shall be construed as a "promessa dell 'obbligazione o del fatto del ter zo" for the purpose of article 1381 of the ICC.

 

3.        THE TRANSACTION

 

3.1       Sale and purchase of the Quota and of the Shareholder Loan Receivables

 

3.1.1 In accordance with the terms and subject to the conditions set forth under this Agreement, on the Closing Date, (1) the Seller shall sell the Quota to the Purchaser and the Purchaser shall purchase the Quota from the Seller and pay to the latter the Quota Purchase Price; and (ii) the Seller shall sell the Shareholder Loan Receivables to the Purchaser and the Purchaser shall purchase such Shareholder Loan Receivables and pay to the Seller the Shareholder Loan Receivables Price.

 

(the "Transaction").

 

 

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4.        PURCHASE PRICE, SHAREHOLDER LOAN RECEIVABLES PRICE AND RELEVANT PAYMENT TERMS

 

4.1        Subject to the terms and conditions set forth in this Agreement, the aggregate consideration to be paid by the Purchaser to the Seller for the purchase of the Quota and for the assignment of the Shareholders Loan Receivables (including, for the sake of clarity, any interests accrued thereon as of the Closing Date) shall be equal to Euro 1,113,113.49 (one million one hundred thirteen thousand one hundred and thirteen/49) (the "Purchase Price") and shall be composed of:

 

4.1.1        the amount of the nominal value of the Shareholder Loan Receivables, equal to Euro 950,448.00 plus applicable interest accrued as of the Closing Date, (the "Shareholder Loan Receivables Price");

 

4.1.2        an amount equal to the Purchase Price minus the Shareholder Loan Receivables Price (the "Quota Purchase Price") shall be paid as consideration for the transfer of the Quota.

 

4.2        The Quota and the Shareholder Loan Receivables shall be transferred free from any Encumbrance with all rights, obligations, liabilities and entitlements relating thereto and enjoinment including dividends regardless of the date of resolution, which shall be for the benefit of the Purchaser as of January 1st, 2019 (included). The Parties agree that (1) the Purchaser Price has been calculated on the basis of the Reference Financial Statement and (ii) the amount of any Leakage, regarding the SPV (that the Seller must notify to the Purchaser before the Closing) shall be deducted on a Euro per Euro basis from the Purchase Price, unless such Leakage has been expressly authorised by the Purchaser according to Clause 5.2.2 in which case no deduction shall be triggered.

 

4.3       Payment terms

 

4.3.1        Without prejudice to Clause 4.2, the Purchase Price shall be paid on the Closing Date upon and subject the execution of the Transfer Deed (and simultaneously with the completion of all the other actions set forth in Clause 5.5.1) by wire transfer of immediately available funds on the bank account of the Seller that will be indicated prior to Closing.

 

4.3.2        The Purchase Price will be reduced by an amount corresponding to the costs incurred by the Purchaser for the repair and/or consolidation of the roofs and the related structures.

 

5.       CLOSING

 

5.1       General

 

Subject to the satisfaction, or waiver in writing by the Purchaser, of all the Conditions to the Closing within the Long Stop Closing Date, the Parties agree that the Quota and the Shareholder Loan Receivables shall be transferred by the Seller to the Purchaser at Closing.

 

5.2       Interim Period

 

5.2.1       The Seller shall procure that, from the Date of Execution until the Closing Date (both included), the SPV exercises its business in the ordinary and usual course and in accordance with ordinary standards of due diligence, care and efficiency, and takes all necessary steps to manage and exploits the Plant and maximises its production, in full compliance with the Applicable Laws and Regulations and the Permits.

 

 

 

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5.2.2       Unless expressly authorised in writing by the Purchaser within 5 Business Days from the Seller's written request - which authorization shall not be unreasonably withheld from the Date of Execution to the Closing Date (both included), the Seller shall procure that the SPV does not (and does not commit to):

 

(a)       create, assume, any long-term debt for money borrowed;

 

(b)       hire any employee or personnel, not even on a temporary basis;

 

(c)       purchase, sell, transfer, encumber, lease (as lessor or lessee) license (as licensor or licensee) or otherwise acquire or dispose of any tangible or intangible assets;

 

(d)       dispose of or transfer, or agree to dispose of or agree to transfer any business or part of any business;

 

(e)       initiate, settle or waive any litigation, arbitration, prosecution or other legal proceedings;

 

(f)       terminate or amend (including through any waiver or by course of dealing) any of the Project Contracts, without prejudice to Clause 5.5.1 (c) iv;

 

(g)       change their accounting methods, principles, practices or policies;

 

(h)       alter its memorandum or articles of association;

 

(i)       incur in any Leakage and/or make any payment not strictly related to the Plant normal operational status, save for those payments necessary to comply with Applicable Laws and Regulations;

 

(j)       make dividend payment and/or shareholders loan repayment;

 

(k)       sign new contracts of whatever typology, save for those necessary for the ordinary course of business.

 

5.3       Conditions to the Closing

 

5.3.1       The Parties' respective obligations to proceed with the Closing shall be conditional upon each of the following conditions precedent (condizioni sospensive) being satisfied, or waived in writing by the Purchaser, by the Long Stop Closing Date (the "Conditions to the Closing"):

 

(a) the Seller has provided the Purchaser with the evidence of the qualification of the building on which the Plant is located as "rural" before the Plant's entry into operation;

 

(b) the Seller has provided the Purchaser with the evidence of the submission to the Genio Civile of the technical documentation related to the electrical cabin, included the Mass-production process compliance statement ("Attestato di Qualificazione in Serie Dichiarata");

 

 

 

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(c) the Seller has provided the Purchaser with the warranty of the Plant's modules CECEP valid for 10 years as prescribed in the GSE technical rules in relation to Ministerial Decree 5 May 2011 ("Quarto Conto");

 

(d) the Seller has provided the Purchaser with the evidence of documents proving the disposal of the replaced modules of the Plant;

 

(e) the Seller has provided the Purchaser with the static suitability report ("certificato di idoneita statica") related to the Plant;

 

5.3.2       The Parties shall each use their best efforts and cooperate to make sure that each Condition to the Closing is satisfied as soon as possible and, in any case, within the Long Stop Closing Date. Any cost associated with the fulfilment of the Conditions to the Closing set out in Clause 5.3.1 shall be borne entirely by the Seller.

 

5.3.3       In the event that any of the Conditions to the Closing has not been satisfied (or waived in writing by the Purchaser, in whose exclusive interest the Parties acknowledge that the Conditions to the Closing have been included hereunder) on or before the Long Stop Closing Date, each Party shall be released vis-à-vis the other from its obligation to proceed with the Closing and from any obligation and liability arsing under this Agreement. The provisions under Clauses I0, 11 and 13 shall survive termination hereof.

 

5.4       Date and Place of the Closing

 

The Closing shall be held on the date agreed upon by the Purchaser and the Seller - which shall in any case fall within 15 Business Days of all the Conditions to the Closing being satisfied -before an Italian notary public to be designated by the Purchaser.

 

5.5       Deliveries at Closing

 

5.5.1 On the Closing Date, the Parties shall perform the following actions, which (regardless of their time sequence) shall be deemed to occur simultaneously and to constitute one single transaction:

 

(a)       the Seller and the Purchaser shall execute the Transfer Deed substantially in the form attached hereto as Schedule 5.5.1 (a);

 

(b)       the Seller and the Purchaser shall enter into an agreement (in the form attached hereto as Schedule 5.5.1 (b) for the purposes of assigning the Shareholder Loan Receivables - amounting to Euro 950,448.00 (nine hundred fifty thousand fourh undred forty-eighr00) plus applicable interest accrued as of the Closing Date, by Seller to the Purchaser;

 

(c)       the Seiler shall:

 

i.       procure that the sole director of the SPV resigns (and confirms in his written resignations that he has no claim whatsoever vis-à-vis the SPV, and he shall waive any such claim, if any) through execution of resignation letters drafted as attached hereto as Schedule 5.5.1 (c) i);

 

ii.      cause, in relation to the SPV, a quotaholders' meeting to be validly held to resolve upon (i) the acceptance of the resignation of the previous sole director, and (ii) the appointment of the new directors/sole director to be designated by the Purchaser in lieu of the resigning one;

 

 

 

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iii.     deliver to the Purchaser the SPV's corporate and accounting books, as well as all the original documentation related to the SPV and the Plant (including all the Permits), as well as each other document and/or instrument that may be necessary for the purposes of vesting the Purchaser with the full and exclusive ownership of the Quota and the Shareholder Loan Receivables;

 

iv.     procure that the management agreement entered into on December 21', 2017, between SPI Renewables Italy S.r.l. and the SPV is terminated effective as of the Closing Date without the SPV and/or the Purchaser being required to incur any liability whatsoever in connection with its termination, and deliver a written statement by the legal representative of SPI Renewable Italy S.r.l. whereby the latter declares to have no claim vis-à-vis the SPV in connection with the aforesaid termination. It is understood among the Parties that the SPV shall remain liable vis-a-vis SPI Renewables Italy S.r.l. for the payment of the fee/remuneration due by the SPV for the services provided by SPI Renewables Italy S.r.l. from 1" January 2019 up to Closing Date according to the terms and conditions of the said management agreement;

 

(d)       the Purchaser shall:

 

i.      deliver to the Seller a letter in the form of Schedule 5.5.1 (d) i) attached hereto, in which the Purchaser: (i) waives unconditionally any claims (if any) which it may have against the resigning sole director, in respect of his conduct up to the Closing Date, based on article 2476, paragraph 7, of the ICC, except in case of gross negligence ("colpa grave") and wilful misconduct ("dolo"); (ii) undertakes not to vote or promote and to cause the Company neither to vote nor to promote, respectively, any liability action against the resigning sole director in respect of his conduct up to the Closing Date pursuant to article 2476 of the ICC, except in case of gross negligence ("colpa grave") and wilful misconduct ("dolo"); (iii) undertakes to indemnify the resigning sole director (except in case of gross negligence ("colpa grave') and wilful misconduct ("do/o") against any claim or action promoted, by any of its Affiliates which shall acquire any shareholding in the Company after the Closing, connected to the claims or actions mentioned in numbers (i) and (ii) above;

 

ii.     pay the Purchase Price by wire transfer in immediately available funds onto the bank accounts that will be indicated by the Seller prior to Closing;

 

(e)       the Parties shall:

 

i.      immediately after the execution and the authentication of the Transfer Deed, cause the notary public to file the Transfer Deed with the competent companies' register, pursuant to article 2470, paragraph 2, of the ICC;

 

ii.     cause the SPV to execute a statement pursuant to Article 1264 of the ICC by means of which the said SPV shall provide its acceptance to the transfer of the Shareholders Loan Receivables.

 

5.5.2       The Parties mutually acknowledge and agree that the actions and transactions constituting the Closing pursuant to Clause 5.5.1 shall be regarded as one single transaction, so that, at the option of the Party having interest in the performance of the relevant specific action or transaction, no action or transaction constituting the Closing shall be deemed to have taken place if and until all other actions and transactions referred above shall have been properly taken or performed. This shall be without prejudice to the right of the non-defaulting Party to take any action in respect of the non-performance by the defaulting Party.

 

5.5.3       No document executed or activity carried out on the Closing Date shall have the effect of amending, superseding, affecting or novating any provision of this Agreement, which shall survive and continue to be binding upon the Parties in accordance with their terms.

 

 

 

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6.       REPRESENTATIONS AND WARRANTIES BY THE SELLER

 

6.1       General

 

6.1.1       The representations and warranties given by the Seller hereunder are true, complete, correct, accurate and not misleading as of the Date of Execution and shall be true, complete, correct, accurate and not misleading as of the Closing Date.

 

6.1.2       The Parties acknowledge and agree that the representations and warranties given, and the relevant indemnification obligation undertaken, by the Seller are autonomous warranties and indemnification obligations of the Seller and, accordingly, (i) the provisions of articles 1490 through 1495 and 1497 of the ICC shall not apply thereto, and (ii) indemnifications payable by the Seller shall be due irrespective of whether the Seller will be found to be or have been in bad faith or negligent.

 

6.1.3       The Seller hereby acknowledges and agrees that the rights and remedies of the Purchaser under this Agreement shall not be excluded, reduced or otherwise affected by any investigation (including any Due Diligence review) conducted or that will be conducted by or on behalf of the Purchaser or by any information which the Purchaser and/or its relevant advisors may have received on or before the Closing Date.

 

6.2       Incorporation, good standing, authority of the Seller

 

6.2.1       SPI Renewables is a company duly incorporated and organized, validly existing and in good standing under the laws of Luxembourg.

 

6.2.2       The Seller, and the signatory hereunder, has full legal right, power, capacity and the authority to enter into this Agreement and the other documents to be executed pursuant to this Agreement and to perform and consummate the Transaction and to fulfil all obligations and duties contemplated herein.

 

6.2.3       The performance of this Agreement and of the Transaction does not (i) violate the Seller's by-laws or its other constitutional document, or (ii) constitute a breach by the Seller of any contract or other commitment undertaken by the Seller, or (iii) will result in the creation or imposition of any Encumbrance on the Quota and/or the Shareholder Loan Receivables, or (iv) jeopardize the Seller's creditors.

 

6.3       SPV capital, Quota

 

6.3.1       The Quota represents 100% of the share capital of the SPV. The Quota is fully subscribed, entirely paid up and owned by Seller, with good and valid title thereto. The Quota and the Shareholder Loan Receivables is free of any Encumbrance and can be freely transferred to the Purchaser in accordance with the terms and conditions set forth under this Agreement.

 

6.3.2       No Person (other than the Seller) has any right whatsoever to participate directly or indirectly in the assets or profits of the SPV. There are no resolutions authorising any capital increase of the SPV or which may somehow amend or alter the by-laws of the Spy.

 

 

 

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6.3.3       Following completion of the activities due by the Parties on the Closing Date, the Purchaser will acquire full, valid and unchallengeable title to, and become the sole, legitimate, exclusive and registered owner of the Quota and the Shareholder Loan Receivables, both free and clear of any Encumbrance.

 

6.3.4       All the filings, application and fulfilments in order to avoid the unlimited liability pursuant to article 2462 of the ICC have been performed.

 

6.3.5       The acquisition of the Plant by the SPV and/or of the SPV by the Seller from any of its predecessor in title (if any) is not subject to being declared null and void, annulled, rescinded, terminated or revoked for any reason whatsoever, including in the event of insolvency of any of such predecessor in title. To the Seller's knowledge, the consideration for the acquisition of the Plant, the Permits and SPV from all the relevant predecessors in title, regardless of the technicalities pursuant to which the relevant acquisition took place, was determined in accordance with market values and has been paid in full so that no such predecessors in title may make any claims against the SPV and/or the Purchaser in connection with the Transaction.

 

6.4       Organization and compliance with Applicable Laws and Regulations

 

6.4.1       The SPV is a limited liability company (society a responsabilita limitata), duly incorporated and organized and validly existing and in good standing under Italian law.

 

6.4.2       The SPV has always complied with its by-laws and any other constitutional document and none of the activities, agreements, commitments, obligations or rights of the SPV are in breach of its by-laws or otherwise unauthorized.

 

6.4.3       The SPV is currently managed in the ordinary course of business, in compliance with the obligations undertaken by it and has always been in compliance with all Applicable Laws and Regulations.

 

6.4.4       The SPV, its management and, to the Seller's knowledge, any Person having acted in the name and/or on behalf of the Seller, have never performed acts or facts which may be considered directly or indirectly as violation (illecito) or crime (mato) contemplated under the Applicable Laws and Regulations, including Legislative Decree no. 231/2001 and which may affect the Plant, the SPV and/or the Purchaser.

 

6.5       Accounting, Corporate Books and liabilities

 

6.5.1       All the financial statements of the SPV (including the Reference Financial Statement) have been prepared in accordance with the Accounting Principles and the Applicable Laws and Regulations using bases, practices, methods and estimation techniques consistent with those used in the preceding 3 accounting periods. Each of them gives a true and fair view (rappresentazione veritiera e corretta) of the assets, obligations, liabilities (actual and contingent), debt of any nature, as well as the economic and financial condition of the SPV as at the relevant reference date.

 

6.5.2       The SPV's accounting records and mandatory books have been kept in compliance with the Accounting Principles and the Applicable Laws and Regulations. All the corporate procedures and actions reflected therein have been and will be conducted or taken in compliance with the Applicable Laws and Regulations and the relevant documents of incorporation.

 

 

 

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6.5.3       Each transaction to be registered in the SPV's books and records pursuant to the Accounting Principles and/or the Applicable Laws and Regulations has been and will be recorded on the books and records of the SPV and each document on which entries in any such books and records are based (including purchase orders, customer or company invoices and service agreements) is true, complete and accurate in all respects.

 

6.5.4       Up to the Closing Date, (1) the business of the SPV has been conducted in accordance with the principles and obligations set out in Clause 5.2.1, and (ii) the SPV has not taken or carried out any action or transaction contemplated in Clause 5.2.2.

 

6.5.5       As of the Closing Date, the SPV has not incurred in any Leakage (other than payments made by the SPV in accordance with the Project Contracts and/or expressly authorised by the Purchaser and other than payments made in the ordinary course of business and required by Applicable Laws and Regulations. For the sake of clarity, any repayment of the Shareholder Loan Receivables will not be considered, for the purposes of this representation and warranty, as a payment made in the ordinary course of business).

 

6.6       Real Estate

 

6.6.1       The SPV holds valid, duly registered, unchallenged, definitive, enforceable and undisputed titles over the Real Estate, as resulting from the Real Estate Contracts, enforceable against any third party, to build and operate the Plant and the relevant mitigation works. With regard to the connection infrastructures, the SPV has validly transferred the ownership, the relevant Permits to the extent it is necessary, and the related Real Estate right to the Grid Operator of the portion regarding the so called "impianto di rete".

 

6.6.2       The Real Estate is not affected by Encumbrances of any type. Neither the Seller nor the SPV has entered into any agreement (final, preliminary or otherwise) for the disposal of the Real Estate, or any portion thereof, or for the setting up of any kind of Encumbrance, right or obligation of any type over it from which any kind of limitation or restriction over the use, fruition or disposition of the Real Estate may arise.

 

6.6.3       There are no environmental constraints pursuant to the Applicable Laws and Regulations which are or may be of prejudice to the construction and operation of the Plant over the Real Estate where such Plant has been constructed. The Real Estate and the relevant subsoil are in full compliance with the environmental Applicable Laws and Regulations.

 

6.6.4       The Real Estate Contracts have been duly and timely registered with the competent tax office (registrati) and recorded (trascritti) with the competent Land Registry (Canservatoria dei Registri Immobiliari).

 

6.7       Contracts

 

6.7.1       All contracts, understandings, agreements, arrangements, commitments of any nature to which the SPV is a party are listed under Schedule 6.7.1 (collectively, the "Project Contracts").

 

 

 

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6.7.2       The Seller and the SPV have not entered into any contract that it is not at arm's length and consistent with market standards.

 

6.7.3       The Project Contracts are in full force and effect and no party to a Project Contract has given written notice of termination or indicated in writing that it will give notice of termination, and to the Seller's knowledge, no circumstances exist which give any party to a Project Contract the right to terminate or modify such Project Contract. All payment or other obligations contained in the Project Contracts have been fully and timely discharged by the SPV.

 

6.8       Plant, Permits and Tariff

 

6.8.1       The Plant has been developed and realized in compliance with the best industry practice after due examination of all the characteristics and conditions of the Real Estate and the latter was suitable for the envisaged construction methodology of the Plant as well as of the relevant interconnection facilities.

 

6.8.2       The contractor, the works director and the SPV have timely, duly and correctly performed their respective obligations in compliance with the health and safety, construction and seismic Applicable Law and Regulations.

 

6.8.3       The Plant has been built, connected to the grid and is being operated in full compliance with the relevant designs as authorized by the competent public entities and authorities, with the Applicable Laws and Regulations as well as with the Permits.

 

6.8.4       There are no further plants joint or close to the Plant, whose nominal capacity, cumulated with the nominal power of the Plant, could affect in any manner the validity and effectiveness of any of the Permits and/or trigger the need to carry out the environmental impact assessment procedure.

 

6.8.5       The SPV is the sole legal beneficiary of the Permits and such Permits are fully valid, effective and enforceable and there has not been any default and/or irregularity in the procedure for the issuance thereof (vizi della procedura).

 

6.8.6       The Permits have been duly obtained by the SPV (or have validly been transferred to the SPV) and any and all obligations relating to the existence, validity and effectiveness of the Permits, and any legal, economical and/or technical prescriptions contained therein, has been fully and timely complied with so that the SPV validly and effectively maintains all the Permits as required in connection with the Plant, and, to the Seller's knowledge, there is no ground for revocation, suspension or annulment thereof.

 

6.8.7 To the Seller's knowledge, the execution of this Agreement and/or the consummation of the Transaction will not lead to the termination, suspension, annulment or withdrawal of any of the Permits and will also not give rise to any right of the competent authorities, including without limitation the GSE, the Grid Operator, or other third parties to terminate and/or revoke and/or cancel and/or suspend and/or amend such Permits.

 

6.8.8       Any variations between the Plant-as-built and the Plant-as-designed (progetto esecutivo and progetto definitivo) have been notified to, and authorized by, the competent authorities in compliance with the Applicable Laws and Regulations.

 

6.8.9       All Plant's components and/or parts that have been replaced, if any, comply with the original Permits and are in good operating order except for ordinary tear and wear. The replacements of inverters, modules and other component for the Plant, if any made, have been duly communicated to the GSE.

 

 

 

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6.8.10       All components' warranties (including all inverter and modules warranties) for the Plant are valid and in force. All main components have been installed and managed in compliance with technical specification of the components provider.

 

6.8.11       There are no payment obligations (nor there will be in the future as a result of act, facts, circumstances or event occurred prior to the Closing Date) owed to or claimed by the component providers for the construction and operation of the Plant.

 

6.8.12       The SPV has properly performed any action and properly filed all the relevant documents necessary for the obtainment and maintaining of the Tariff (in respect of the whole Plant's nominal peak power) as attributed to it pursuant to the energy decree (Conto Energia) applicable to the Plant. The Plant is legally and technically suitable for the maintaining of the Tariff by the SPV in accordance with the Applicable Laws and Regulations and the Permits.

 

6.8.13       None of the information or documentation delivered to the GSE for the purposes of being awarded with the Tariff is untrue, inaccurate or incomplete and the information and/or documentation provided to the GSE fully complies with GSE requirements for projects of the same type as the Plant. To the Seller's knowledge, there are no circumstances based on which the granting of the Tariff may be revoked, suspended, reduced or otherwise affected and there is no pending or threatened investigation by the GSE which may lead to the suspension or revocation of the Tariff. The GSE has been regularly paying the Tariff to the SPV.

 

6.8.14       In respect of the Plant, the agreement (convenzione) for the Tariff award and the agreement for the sale of the energy have all been duly and timely entered into by the SPV with the GSE. To the Seller's knowledge, there are no circumstances based on which such rights may be legitimately revoked or otherwise affected.

 

6.9       Tax compliance

 

6.9.1       The Spoof:

 

(a)       has duly and timely paid every Tax which it has become liable to pay before the Closing Date;

 

(b)       has duly and timely filed with the competent tax authorities all Tax returns, declarations and social security statements within the required terms and on a proper basis in compliance with the Applicable Laws and Regulations in respect to Taxes. The Tax returns were correct and complete in all respects and adequately reflect the Tax liabilities of the SPV, at the time of the filing for the relevant period covered thereby;

 

(c)       has never been resident for Tax purposes in any jurisdiction other than Italy;

 

(d)       is entitled to all Tax shown in its Tax returns and no such Tax returns is the subject of any dispute with any Tax authority.

 

6.9.2       Neither the SPV nor any of its directors or officers has any fine, penalty, surcharge or interest outstanding in relation to Taxes. No Tax claims or investigation are pending or threatened against the SPV and no notice of any such claim or investigation has been received by the SPV.

 

 

 

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6.10       Powers of attorney, relationship with advisors, employees and labour matters

 

6.10.1       The SPV has no employees, is not bound to hire any Person and no third parties have rendered services to the SPV which, according to how they were provided or due to agreements with the SPV, entitle them to claim the acknowledgement of the status of employee. There are no individuals who are entitled, under any law or collective bargaining agreement to be recognised as being or as having been an employee of the SPV or to bring any claim vis-à-vis the SPV based on any labour or cooperation relationship which may be qualified as rapporti di lavoro autonomo, rapporti di lavoro parasubordinato, collaborazioni autonome e continuative, collaborazioni a progello or agenzia, including for remuneration of services or payment of social security contributions, in connection with any performance and/or services rendered by such individual, directly or indirectly, to the benefit of the SPV.

 

6.10.2       None of the former or current directors of the SPV has any residual claim vis-à-vis the SPV of any kind whatsoever in respect of the activities carried out. No judicial, extrajudicial, administrative and arbitration proceedings have been brought or threatened against the SPV by any director(s).

 

6.10.3       All documents pertaining to agents, advisors, consultants and brokers acting in the interest of the SPV (including the evidence of the payments of all amounts due to them) have been made available in the course of the Due Diligence. The SPV has performed all obligations and duties in respect of the agents, advisors, consultants and brokers acting in the interest of the SPV in compliance with all Applicable Laws and Regulations.

 

6.10.4       The SPV has not granted any power of attorney in favour of any person, firm or company for any purpose whatsoever.

 

6.10.5       All negotiations relating to the Transaction have been carried out without the intervention of any entities and/or individuals carrying out activities on behalf of the Seller that may ground any claim in connection with intermediation activities or payment of intermediation commissions, remunerations or any other similar fee against any of the SPV or the Purchaser.

 

6.11       Goad standing; Litigation and claims

 

6.11.1       Neither the Seller nor the SPV is insolvent nor under bankruptcy procedure or similar proceedings, nor has been declared bankrupt and no action or request to declare either the Seller or the SPV bankrupted or to make the Seller or the SPV subject to winding-up, liquidation, dissolution, insolvency and/or any similar proceeding is pending or threatened; the execution of the Agreement and the consummation of the Transaction will not result in any such winding-up, liquidation, insolvency or bankruptcy procedure of the Seller and or the SPV, Neither the Seller nor the SPV is in default of payment of any of their obligations, has requested any of their creditors to forgive or restructure debt or to extend their payment obligations. No voluntary arrangement, compromise or similar arrangement with creditors has been proposed, agreed or sanctioned in respect of the SPV or any of its assets.

 

6.11.2       There are no pending and/or threatened-in-writing proceedings of civil, criminal, civil, administrative, labour, Tax or any other nature before any arbitration panel, tribunal or other judicial, regulatory or administrative authority in which any of the SPV or the Seller is a party, whether as plaintiff or defendant or otherwise, and which may have an impact on the Plant, Project Contracts, Real Estate, Permits and/or the ability of the SPV to carry out its own business and the Seller is not aware of any facts or circumstance which may give rise to any such proceedings.

 

 

 

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6.11.3       No written notice of any expropriation, revocation, termination, invalidity, non-renewal, annulment or other expiry or forfeiture of any of the Real Estate contracts has been delivered to the SPV, nor, to the Seller's knowledge, there have been or there are any facts, acts, omissions, events or circumstances which may ground any such revocation, termination, invalidity, non-renewal, annulment or other expiry or forfeiture of any of the rights granted under the Real Estate Rights nor which may adversely affect the use or enjoyment (godimento) of such rights by the SPV.

 

6.11.4       There are no challenges or objections to the Permits before any governmental, administrative or judicial authority under Applicable Laws and Regulations neither notice of termination, revocation, invalidity, expiry, forfeiture, non-renewal, annulment or suspension which are pending, have been notified or however communicated in writing to the SPV and/or the Seller. The SPV and/or the Seller are not subject to any proceedings and/or action of the competent public authority aimed to annul in self-defence (annullamento in autotutela) the authorising titles for the Plant.

 

6.11.5       There are no judgments, rulings or orders against the SPV and/or the Plant, Real Estate, Permits and/or Project Contracts, which the SPV has not complied with or fulfilled and there is and there has been no delay by the SPV in the completion of any obligation ensuing from such judgements, rulings or orders, if any.

 

6.12       Intro-group debts and other arrangements

 

6.12.1       There are:

 

(a)       except for the Shareholder Loan Receivables, no amounts outstanding or obligations due by and between the SPV, the Seller and/or any other Person related to the SPV and/or the Seller;

 

(b)       no contract, guarantee, agreement, understanding or commitment, either in written form or in verbal form by and between any of the SPV, the Seller and/or any other Person related to the SPV and/or the Seller;

 

(c)       all intra group transactions including the Shareholder Loan Agreements have been carried out by the SPV at arm's length and in compliance with any applicable transfer pricing rules.

 

6.13       Accuracy of information and documentation provided

 

6.13.1       All information and documents disclosed in the course of the Due Diligence and/or given to the Purchaser and its advisors by the Seller and/or the SPV during the Due Diligence or in any case prior to the execution of this Agreement are true, complete, correct, accurate and not misleading in all respects.

 

6.13.2       There are no facts or circumstances which have not been disclosed in writing to the Purchaser and its advisors and which could adversely affect the SPV and/or the Plant.

 

6.14       Pre signing and interim period

 

6.14.1       From January 1st, 2019 to the Closing Date (both included) the SPV has been managed in accordance with Clause 5.2.

 

 

 

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7.       INDEMNIFICATION OBLIGATIONS OF THE SELLER

 

7.1       Seller's liability — indemnifiable Damages

 

The Seller agrees to indemnify and hold the Purchaser harmless from and against any Damage suffered by the Purchaser or the SPV in connection with any event, fact or circumstance rendering any representation and warranty provided under Clause 6 (in whole or in part) untrue, incomplete, incorrect, inaccurate or misleading. The Seller's representations and warranties have to be deemed specific: in order to avoid any doubt, this means that matters included and foreseen, in whole or in part, by a specific representation, shall not be considered contained by a different or more general Seller's representation and/or warranty. Therefore, there will be no duplication of recovery in respect of any fact giving rise to a claim under the Seller'a representations and warranties.

 

7.2       Duty to mitigate

 

Notwithstanding the foregoing, the Purchaser shall use its best efforts to prevent and mitigate and to cause the SPV to prevent and mitigate - any Damage that it may incur as a consequence of a matter that gives rise to a breach of the Seller's representations and warranties.

 

7.3       Sole remedy

 

Subject to Closing, the indemnification obligations of the Seller provided under this Clause 7 is the sole remedy available to the Purchaser for breach or inaccuracy of the Seller's representations and warranties or for breach of any obligation of the Seller set forth in this Agreement, to the exclusion and in lieu of any other right or remedy available to the Purchaser under Applicable Laws and Regulations, without prejudice to any remedy pursuant to article 1439 of the ICC and.

 

8.       LIMITATIONS ON THE SELLER'S LIABILITY

 

8.1       De Minimis - Basket

 

The Seller shall only be liable in respect of any Damages arising out of breaches of the Seller's representations and warranties if:

 

a)       the amount of the liability agreed or determined in respect of any individual Damage, considered alone or in the aggregate as a series of Damages arising from the same circumstances, exceed Euro 10,000;

 

b)       such Damages exceed, in the aggregate, Euro 40,000 (the "Basket"), in which case the Seller shall be liable only for the amount in excess of the Basket.

 

8.2       Cap to Seller's liability

 

The total aggregate liability of the Seller in respect of all claims under the Seller's representations and warranties or arising from breaches of the Seller's covenants under this Agreement is limited to an amount equal to the 60% of the Purchase Price (the "Cap").

 

 

 

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The Cap shall not apply to Damages deriving from breach of the Seller's representations and warranties set forth in Clauses 6.2 (Incorporation, good standing, authority of the Seller), 6.3 (SPV capital, Quota) nor, for the sake of clarity, to Damages deriving from breach of the Seller's representations and warranties due to the Seller's gross negligence (colpa grave) or willful misconduct (dolo).

 

8.3       Other limitations to Seller's liability

 

In calculating the liability of the Seller for any claim under the Seller's representations and warranties, that liability must be reduced by the sum of the following economic benefits relating to that claim:

 

a)       any indemnification payable hereunder shall be increased to an amount which ensures that the Purchaser and/or the SPV, as the case may be, receive a sum which, after having actually paid any Tax due in connection therewith, is equal to the amount which they would have benefitted from if no Tax had been payable in connection therewith. Conversely, in the event and to the extent that any Damage incurred by the Purchaser, and/or the SPV, as the case may be, actually indemnified by the Seller under this Agreement, is deductible by the Purchaser or the SPV, for income tax purposes in any given fiscal year, in such event and to such extent, the indemnity due by the Seller in respect of such Damage will be reduced by the actual reduction of net Tax liability (if any) resulting from the deductibility of the Damage ;

 

b)       any amount which the Purchaser or the SPV have actually recovered from any third party in respect of such claim.

 

8.4       Exclusions and Restrictions

 

8.4.1       The Seller shall not be liable under Clause 7.1 unless a Notice of Claim is given to it:

 

(a)       on or before 24 months after the Closing Date, if a Damage arises from any of the representations and warranties contained in Clause 6, other than those referred to in the following paragraph (b);

 

(b)        on or before the date of the expiry, for statutory limitation, of the rights or prerogatives which the relevant third parties could assert against the Purchaser or the relevant SPV, if a Damage arises from any of the representations and warranties concerning Tax, labour, or environmental matters,p rovided however that the Seller's indemnification obligations shall remain valid, also after the expiration of the terms set out above, in case before the expiration thereof the Purchaser has sent to the Seller a Notice of Claim.

 

8.5       Liability of the Seller only in relation to actual losses

 

Notwithstanding any other provision of this Agreement, the Seller shall not be held liable for any claim and/or loss which arises by reason of a liability which, at the time when the Notice of Claim is given to the Seller, is contingent or potential, and the Seller shall not be liable to make any payment in respect of such claim and/or loss unless and until the liability becomes an actual liability, also as a result of an enforceable obligation to pay, or an interim measure binding on the SPV (e.g. including by way of a judgment or provision "provvisoriamente esecutivo", whether through "senten:a", "ordinanza" or "decreto" "or "ingiunzione" or "cartella esattoriale" or otherwise, and including for the avoidance of doubt any preventive remedy ("provvedimento cautelare"), or a settlement agreement executed by the Purchaser and/or the SPV in compliance with Clause 8.7 below).

 

 

 

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8.6       Handling of Claims

 

8.6.1       If the Purchaser intends to seek indemnification from the Seller pursuant to Clause 7.1, the Purchaser shall provide the Seller with written notice of any fact which may result in the Purchaser's and/or the SPV's suffering a Damage (the "Notice of Claim"). The said Notice of Claim shall be provided to the Seller as promptly as possible and in any event within 20 (twenty) days after the Purchaser has become aware of such fact or event and it shall set forth (i) the claim which the Purchaser intends to make (the "Claim"), (ii) the specific representation or warranty of the Seller set forth in this Agreement that the Purchaser alleges to be breached, and (iii) all related available information.

 

8.6.2       In case the Seller rejects a Claim made in a Notice of Claim, the Seller and the Purchaser shall attempt to resolve any differences that they may have with respect to the matters constituting the subject matter of such Notice of Claim during a period of 20 Business Days starting from the date of rejection. If, by the end of such period, the Seller and the Purchaser have failed to reach an agreement in writing with respect to all of such matters, all matters as to which an agreement has not been so reached may be submitted to the Court of Milan pursuant to Clause 13.2 by either Party.

 

8.7       Third Parties Claims

 

8.7.1       In the event that of a third-party claim ("Third Party Claim"), possibly resulting in the Purchaser's right to be indemnified pursuant to the Seller's obligations under this Agreement, the Purchaser shall, under penalty of forfeiture, inform the Seller in writing, by registered letter (the "Third Party's Claim Notice"), within thirty (20) Business Days from the date such claim is received (or the shorter term which shall be necessary or appropriate in order not to lose any defence right or benefit), providing all reasonable information it has become aware of about such claim, including information as to any settlement proposal of such Third-Party Claim; it being understood that the Purchaser shall:

 

(a)       cause the SPV not to settle any such claim, action, suit or proceeding without the prior written consent of the Seller (the "Seller's Consent"), which shall not be unreasonably delayed or denied. In any case, the Seller's Consent shall bed eemed to have been given, unless the Seller notifies the Purchaser to the contrary in writing in reasonable detail (together with any supporting justifications and written explanations) not later than 20 Business Days following receipt by the Seller of the Purchaser's consent request in writing, unless circumstances require otherwise in order to allow the Purchaser and/or the SPV to settle the Third Party Claim and/or to exercise its rights under this Agreement (the "Seller's Objection");

 

(b)       have the right to handle the defence of any such Third Party Claim and shall allow the Seller to participate, by counsels of their own choice, at their own cost, in the defence of any Third Party Claim, provided that, should the Parties disagree with respect to the handling of the relevant Third Party Claim, the defence strategy of the Purchaser shall prevail.

 

8.7.2       The Purchaser shall not, and shall procure that the SPV shall not, make any admission of liability, agreement, settlement or compromise with any third party in relation to any such claim without the prior written Seller's Consent provided, however, that if a firm offer is made to the SPV or to the Purchaser to settle any matter giving rise to the Seller's indemnification obligations which the Seller, but not the Purchaser, is willing to accept, the Purchaser and/or the SPV (as the case may be) shall be free not to enter into such settlement and to commence or continue litigation, at their own expenses, however the Seller's indemnification obligations under Section 7.1 shall be limited -without prejudice to the application of the provisions of Sections 8.1, 8.2, 8.3, 8.4 and 8.5 - to the amount of the proposed settlement. It being understood that should: (i) the Seller's Objection be raised in relation to a certain proposed settlement and (ii) a proceeding be started or be continuing in connection with the relevant Third Party Claim then the Seller shall indemnify and keep fully harmless the Purchaser and/or the SPV - without application of Cap - in respect of any Damages which they may incur in connection with the Third Party Claim.

 

 

 

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9.       REPRESENTATIONS AND WARRANTIES BY THE PURCHASER

 

The Purchaser hereby makes the following representations and gives the following warranties to the Seller, which are true as at the Date of Execution and, unless otherwise provided, on the Closing Date.

 

9.1       Due Organization and Existence of the Purchaser

 

The Purchaser is a corporation incorporated and duly organized, validly existing, and in good standing under the laws of Italy.

 

9.2       Authority and Enforceability, Consents, No Conflicts for the Purchaser, No intermediation

 

9.2.1       All corporate action necessary for the Purchaser to approve the execution and performance of this Agreement have been carried out and the Purchaser has all necessary right, power, authority and capacity to enter into this Agreement and carry out the transaction contemplated herein. This Agreement constitutes valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms.

 

9.2.2       The Purchaser is not subject to any bankruptcy proceedings, has not entered into arrangements by which its assets have been transferred to its creditors, is not insolvent nor has been put into liquidation; there are no bankruptcy proceedings or other insolvency proceedings pending against the Purchaser and no bankruptcy, liquidation or similar procedures pending against the Purchaser.

 

9.2.3       The Purchaser has available all funds necessary to pay the Purchase Price and the Shareholders Loan Receivables and in general to consummate the transactions contemplated by this Agreement.

 

9.2.4       All negotiations relating to the Transaction have been carried out without the intervention of any entities and/or individuals carrying out activities on behalf of the Purchaser that may ground any claim in connection with intermediation activities or payment of intermediation commissions, remunerations or any other similar fee against the Seller.

 

9.3       Due Diligence Review

 

9.3.1 The Purchaser represents and acknowledges that it has performed the Due Diligence and that, in such context:

 

a)       the Purchaser has had the opportunity to review the information and the data room documents made available by the Seller or its representatives and/or advisors;

 

b)       the Purchaser has been granted access to the Plant, in the context of several site visits and management meetings;

 

c)       the Purchaser has raised with the Seller specific issues and questions and has obtained satisfactory and complete answers/information by the Seller and/or its advisors.

 

 

 

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10.       CONFIDENTIAL INFORMATION

 

10.1       Each Party shall not, without the prior written consent of the other Party, disclose to any Person, or make a public announcement of any of the terms or other facts relating to this Agreement, or to any other agreement or arrangement relating to the Transaction, other than (i) as required for the purposes of fulfilling any Condition to Closing and/or (ii) on a confidential basis, to any of its Affiliate(s).

 

10.2       Where a Party reasonably determines that a disclosure or announcement is required by the Applicable Laws and Regulations or by any other authority with relevant powers to which such Party or any of its Affiliate(s) is subject, the disclosure or announcement shall, to the extent permitted by the Applicable Laws and Regulations, be made after consultation with the other Party and after taking into account the reasonable requirements of the other Party as to timing, content and manner of making or dispatch of the disclosure or announcement.

 

10.3       The Seller acknowledges that:

 

10.3.1       the Purchaser (and/or its Affiliates) may be under disclosing obligations relating to the certain terms of the Transaction in order to comply with the applicable stock exchange regulations and securities laws; and

 

10.3.2       the Purchaser (and/or its Affiliates) will also disclose certain information about the Transaction to its shareholders and prospected investors to get the necessary funding.

 

10.4       Accordingly, the Pur-chaser shall not be deemed in breach of this Clause 10 as a result of any disclosure made pursuant to Clause 10.3 above.

 

11.       COSTS AND TAXES

 

11.1       Any tax, cost, expense, fee, duty, or charge arising out in connection with this Agreement or the Transaction contemplated herein shall be borne as follows:

 

11.1.1       any income and capital gain taxes (if any) due by the Seller as a consequence of the sale and purchase of the Quota shall be borne by the Seller;

 

11.1.2       each Party shall bear the fees and expenses incurred by their respective representatives and advisors; and

 

11.1.3       notarial fees and registration tax shall be borne by the Purchaser.

 

12.       MISCELLANEOUS PROVISIONS

 

12.1       Entire Agreement

 

This Agreement contains the entire understanding and supersedes all prior agreements/arrangements of the Parties with respect to the Transaction contemplated hereunder, including the letter of intents dated December 4th, 2018.

 

 

 

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12.2       Purchaser's right to designate

 

Pursuant to article 1401 of the ICC, the Purchaser shall have the right to designate a Person to become a party (or an additional party) to this Agreement (the "Nominee") and to purchase, and pay for all or part of the Quota and the Shareholder Loan Receivables in accordance with the terms hereof, provided that such designation is in compliance with the following provisions: (i) anything in articles 1402 and 1403 of the ICC to the contrary notwithstanding, any designation pursuant hereto shall be made and communicated to the Seller not later than 10 Business Days prior to the Closing Date together with the written unconditional acceptance of the Nominee of the designation and of all the terms and conditions of this Agreement; (ii) the Nominee shall be an Affiliate of the Purchaser, (iii) the Purchaser shall remain jointly and severally obligated to the Seller in respect of all the Nominee's obligations under this Agreement; and (iv) following the designation to become a Party to this Agreement in lieu of the Purchaser, any reference made to the Purchaser under this Agreement shall be deemed to be made to the Nominee. Notwithstanding the designation of the Nominee hereunder, Clause 13.2 (Exchtsive Jurisdiction) shall continue to apply also to the original Purchaser.

 

12.3       No assignment

 

No Party shall be entitled to assign any of its rights and obligations hereunder without the prior written consent of the other Party.

 

12.4       Notices

 

Any communication or notice required or permitted to be given under this Agreement shall be made in writing and in English language and shall be deemed to have been duly and validly given (i) in the case of notice sent by registered letter, upon the Business Day following the signing of the return receipt by the recipient and (ii) in the case of notice sent by e-mail, upon the Business Day following receipt by the sender of the receipt of delivery by the recipient, addressed, in each case, as follows:

 

if to the Seller:

 

SPI Renewables Energy (Luxemburg) Private Limited Company S. a r.l.

 

6, Rue Eugene Ruppert, L-2453 Luxembourg

 

E-mail: gaia.balditnet spigroups.com;

 

E-mail: ludovic.trogliero@intertrustgroup.com;

 

if to the Purchaser:

 

Theia Investments (Italy) S.r.l.

 

Via Giovanni Boccaccio 7

 

20123 Milano

 

E-mail: david.lindsay@staffordcp.com

 

PEC: theia@legalmailit,

 

or at such other address as either Party may hereafter provide to the others by written notice, as provided herein.

 

 

 

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12.5       Changes in writing

 

This Agreement may not be waived, changed, modified or discharged orally, but only by an agreement in writing signed by the Parties.

 

12.6       No waiver

 

Except for the cases of forfeiture expressly provided for by this Agreement, the failure to exercise or any delay in exercising a right or remedy provided by this Agreement or by Applicable Laws and Regulations shall not impair or constitute a waiver of such right or remedy or an impairment or a waiver of other rights or remedies.

 

12.7       Set-off

 

The Purchaser shall be entitled to set-off any amount due by it under this Agreement with any amount due by the Seller to the Purchaser under this Agreement.

 

13.       APPLICABLE LAW — EXCLUSIVE JURISDICTION

 

13.1       Applicable law

 

This Agreement, any connected Schedules or documents and the rights and obligations of the Parties hereunder or however connected with its execution, perfection, construction and performance shall be governed by and construed and interpreted in accordance with the laws of Italy.

 

13.2       Exclusive jurisdiction

 

All disputes arising out of or in connection with this Agreement and the documents connected therewith (including the Transfer Deed) shall be submitted to the exclusive jurisdiction of the Court of Milan.

 

14.       LIST OF SCHEDULES

 

The following Schedules constitute an integral and substantial part of this Agreement:

 

·      Schedule 2.1.36: Reference Financial Statements;

·      Schedule 5.5.1 (a): Transfer Deed;

·      Schedule 5.5.1 (b): Shareholder Loan Receivables;

·      Schedule 5.5.1 (c) i): Sole Director Resignation Letter;

·      Schedule 5.5.1 (d) 1): Release Letter;

·      Schedule 6.7.1: List of Contracts.

 

 

****

 

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SPI Renewables Energy (Luxemburg) Private Limited Company S. à r.l.

 

 

     
     
Name: Cheong Hoong Khoeng   Name: Universal Management Services S.à r.l.
Title: Manager A   Title: Manager B
     
     
     
     

 

 

 

 

 

 

Theia Investments (Italy) S.r.l.

 

          /s/ David Lindsay

 

Name: David Lindsay
Title: Director

 

 

 

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SUN ROOF I S.R.L.

 

 

Bilancio di esercizio al 31-12-2018

 

 

 

 

 

 

 

 

 

 

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Schedule 5.5.1 (b): Shareholder Loan Receivables Deed of assignment

 

[on S.P.I. Renewables Energy letterhead]

 

[•] 2019

 

Theia Investments (Italy) S.r.l.
Via Giovanni Boccaccio 7

20123 - Milan

 

Copy to:

SUN ROOF I S.r.l.

Viale Gran Sasso 11,
20131 - Milan

 

Subject: Shareholder Loan Receivables Deed of assignment — proposal

 

Dear Sirs,

 

in relation to the sale and purchase agreement (hereinafter the "SPA") entered into on 23 September 2019 by and among S.P.I. Renewables Energy (Luxembourg) Private Limited Company S. a r.1., as seller, and Theia Investments (Italy) S.r.l., as purchaser, for the sale and purchase of 100% of the corporate capital of Sun Roof I S.r.1., a company organized under the laws of Italy, with registered office in Milan, Viale Gran Sasso 11, registered with the Companies' Register of Milan Lodi Monza Brianza under No. 07531480965 (hereinafter the "Company"), herewith we propose the following:

 

SHAREHOLDER LOAN RECEIVABLES DEED OF ASSIGNMENT

 

among

 

S.P.I. Renewables Energy (Luxemburg) Private Limited Company S. a r.l., a limited liability company registered and incorporated under the laws of Luxembourg and having its registered office at 6 Rue Eugene Ruppert, L-2453 Luxembourg, and registered with the Companies' Register of Luxembourg under no. B156036, tax number 20102434979 (hereinafter the "Seller"), represented herein by Gaia Baldini, in her capacity as Manager A, duly empowered pursuant to a Board of Directors resolution dated 18 September 2019;

(hereinafter the "Seller")

 

- on the one side -

 

and

 

Theia Investment (Italy) S.r.I., a company incorporated under the laws of Italy, having its registered offices at Via Giovanni Boccaccio 7, 20123, registered with the Companies' Register of Milano Monza Brianza Lodi under no. MI-2551617, tax and VAT code 10711700962 (hereinafter the "Purchaser"), represented herein by David Lindsay, in his capacity as Director, duly empowered pursuant to a resolution [CORPORATE BODY] dated [DATE];

(hereinafter the "Purchaser")

 

- on the other side -

 

(hereinafter jointly the "Parties" and each of them the "Party")

 

 

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RECITALS

 

(A)       As of the date hereof, the Seller has a receivable vis-a-vis the Company equal to [-] including the relevant interests (hereinafter the "Shareholder Loan Receivables"), deriving from an interest-bearing intercompany loan, for an original aggregate amount of Euro 1,560,000.00, with an annual interest rate equal to 6.5%, advanced to the latter on I January 2014 and with a maturity date of 31 December 2023;

 

Schedule 5.5.1 (b): Shareholder Loan Receivables Deed of assignment

 

(B)       the Seller intends to sell to Purchaser, who intends to purchase, the Shareholder Loan Receivables on the terms and conditions contained in this agreement.

 

Now, therefore

the Parties agree as follows.

 

1.       RECITALS

 

The Recitals form an integral and substantial part of this agreement (hereinafter the "Agreement").

 

2.       SHAREHOLDER LOAN RECEIVABLES ASSIGNMENT

 

2.1.      The Seller sells to Purchaser, who purchases, the Shareholder Loan Receivables (including all rights and obligations thereunder) with effect from today's date.

 

2.2.      The assignment of the Shareholder Loan Receivables is made and accepted "pro solute and therefore Seller warrants to Purchaser, pursuant to Article 1266 of the Italian Civil Code, that the Shareholder Loan Receivables re valid, existing, and are not subject to any pledge, usufruct, foreclosures or restrictions of any kind, but no warranty is given by Seller, pursuant to Article 1267 of the Italian Civil Code, on the actual payment of the Shareholder Loan Receivables by the Company.

 

3.       INTERCOMPANY RECEIVABLE PRICE

 

Purchaser as a consideration for the purchase of the Shareholder Loan Receivables, pays to Seller, simultaneously with the execution of this Agreement, the sum of Euro 11, by means of irrevocable wire transfer on the bank account no. [___________].

 

4.       EFFECTS

 

4.1      The Shareholder Loan Receivables shall be transferred to Purchaser with enjoyment as from the date hereof.

 

4.2      The Parties declare that this Agreement does not intend to renew, modify, replace or amend any other agreement signed between the Parties concerning, inter alia, the same subject matter of this Agreement, which remain fully valid and effective. In particular, there is no extinction due to the signing of this Agreement of any declarations or guarantees given by Seller to Purchaser.

 

5.       GOVERNING LAW AND DISPUTE RESOLUTION

 

This Agreement shall be governed by and construed in accordance with Italian law. Any dispute arising from and connected with this Agreement shall be subject to the exclusive jurisdiction of the Court of Milan.

 

* * *

 

 

 

  37  

 

 

 

If you agree with this proposal, please express your acceptance, by sending a copy of this letter reproducing its text and duly signed below for acceptance.

 

Kind regards,

 

 

___________________________________

S.P.I. Renewables Energy (Luxemburg) Private Limited Company S. a r.l.

 

___________________________________

Name: Gaia Baldini

 

Title: Manager A

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  38  

 

 

Schedule 53.1 (b): Shareholder Loan Receivables Deed of assignment

 

 

 

[on Theia letterhead]

 

[•] 2019

 

S.P.I. Renewables Energy (Luxemburg) Private Limited Company S. a r.l.

6 Rue Eugene Ruppert,

Luxembourg

 

 

Copy to:

SUN ROOF I S.r.l.
Viale Gran Sasso 11,
20131 - Milano

 

 

Subject: Shareholder Loan Receivables Deed of assignment — acceptance

 

Dear Sirs,

 

We acknowledge receipt of your proposal, whose terms and conditions are fully reproduced herein below:

 

" Dear Sirs,

 

in relation to the sale and purchase agreement (hereinafter the "SPA") entered into on 23 September 2019 by and among Renewables Energy (Luxembourg) Private Limited Company S. a r.l., as seller, and Theta Investments (Italy) S.r.1., as purchaser, for the sale and purchase of 100% of the corporate capital of Sun Roof I S.r.1., a company organized under the laws of Italy, with registered office in Milan, Viale Gran Sasso 11, registered with the Companies' Register of Milan Lodi Monza Brianza under No. 07531480965 (hereinafter the "Company"), herewith we propose the following:

 

SHAREHOLDER LOAN RECEIVABLES DEED OF ASSIGNMENT

 

among

 

S.P.I. Renewables Energy (Luxemburg) Private Limited Company S. a r.1., a limited liability company registered and incorporated under the laws of Luxembourg and having its registered office at 6 Rue Eugene Ruppert, L-2453 Luxembourg, and registered with the Companies' Register of Luxembourg under no. B156036, tax number 20102434979 (hereinafter the "Seller"), represented herein by Gaia Baldini, in her capacity as Manager A, duly empowered pursuant to a Board of Directors resolution dated 18 September 2019;

(hereinafter the "Seller')

 

- on the one side -

 

and

 

Theia Investment (Italy) S.r.1., a company incorporated under the laws of Italy, having its registered offices at Via Giovanni Boccaccio 7, 20123, registered with the Companies' Register of Milano Monza Brianza Lodi under no. MI-2551617, tax and VAT code 10711700962 (hereinafter the "Purchaser"), represented herein by David Lindsay, in his capacity as Director, duly empowered pursuant to a resolution [CORPORATE BODY] dated [DATE];

 

(hereinafter the "Purchaser')

 

- on the other side -

 

(hereinafter jointly the "Parties" and each of them the "Party")

 

 

  39  

 

 

Schedule 5.5.1 03): Shareholder Loan Receivables Deed of assignment

 

RECITALS

 

(A)      As of the date hereof the Seller has a receivable vis-a-vis the Company equal to [•j including the relevant interests (hereinafter the "Shareholder Loan Receivables"), deriving from an interest-bearing intercompany loan, for an original aggregate amount of Euro 1,560,000.00, with an annual interest rate equal to 6.5%, advanced to the latter on 1 January 2014 and with a maturity date of 31 December 2023;

 

(B)      the Seller intends to sell to Purchaser, who intends to purchase, the Shareholder Loan Receivables on the terms and conditions contained in this agreement.

 

Now, therefore

the Parties agree as follows.

 

1.      RECITALS

 

The Recitals form an integral and substantial part of this agreement (hereinafter the "Agreement").

 

2.      SHAREHOLDER LOAN RECEIVABLES ASSIGNMENT

 

2.1.      The Seller sells to Purchaser, who purchases, the Shareholder Loan Receivables (including all rights and obligations thereunder) with effect from today's date.

 

2.2.      The assignment of the Shareholder Loan Receivables is made and accepted "pro sohao" and therefore Seller warrants to Purchaser, pursuant to Article 1266 of the Italian Civil Code, that the Shareholder Loan Receivables re valid, existing, and are not subject to any pledge, usuji-uct, foreclosures or restrictions of any kind, but no warranty is given by Seller, pursuant to Article 1267 of the Italian Civil Code, on the actual payment of the Shareholder Loan Receivables by the Company.

 

3.       INTERCOMPANY RECEIVABLE PRICE

 

Purchaser as a consideration for the purchase of the Shareholder Loan Receivables, pays to Seller, simultaneously with the execution of this Agreement, the sum of Euro PI by means of irrevocable wire transfer on the bank account no. [___________].

 

4.      EFFECTS

 

4.1      The Shareholder Loan Receivables shall be transferred to Purchaser with enjoyment as from the date hereof

 

4.2      The Parties declare that this Agreement does not intend to renew, mod, replace or amend any other agreement signed between the Parties concerning, inter alia, the same subject matter of this Agreement, which remain filly valid and effective. In particular, there is no extinction due to the signing of this Agreement of any declarations or guarantees given by Seller to Purchaser.

 

5.       GOVERNING LAW AND DISPUTE RESOLUTION

 

This Agreement shall be governed by and construed in accordance with Italian law. Any dispute arising from and connected with this Agreement shall be subject to the exclusive jurisdiction of the Court of Milan.

 

* * *

 

 

  40  

 

 

Schedule 5.5.1(b): Shareholder Loan Receivables Deed of assignment

 

If you agree with this proposal, please express your acceptance, by sending a copy of this letter reproducing its text and duly signed below for acceptance.

 

Kind regards,

 

_____________________

S.P.I. Renewables Energy (Luxemburg) Private Limited Company S. a r.1.

 

_____________________ 

Name: Gaia Baldini

Title: Manager A

 

 

We hereby agree and accept your proposal.
Theia Investments (Italy) S.r.l.

 

DATE: ___________________________

 

NAME: ___________________________

 

TITLE: ___________________________

 

* * *

 

Acknowledged and agreed, pursuant to article 1264 of the Italian civil code, by SUN ROOF I S.r.l.:

 

DATE: ___________________________

 

NAME: ___________________________

 

TITLE: ___________________________

 

 

 

  41  

 

 

 

 

 

 

  42  

 

 

Schedule 5.5.1 d) i) — Release Letter

 

 

To:

Resigning Sole Director of Sun Roof I S.r.l.

Mr. Hoong Khoeng Cheong

 

 

 

and copy to:
Sun Roof I S.r.l.

Viale Gran Sasso 11

20131, Milan

 

 

RE: Release letter to the beneft of the sole director

 

 

[•], 2019

 

Dear Sir,

 

reference is made to the sale and purchase agreement relating to 100% of the corporate capital of Sun Roof I S.r.l. (the "Company"), executed on 23 September 2019 by and between S.P.I. Renewable Energy (Luxemburg) Private Limited Company S. a r.1., as Seller, on one side, and Theia Investments (Italy) S.r.l., as Purchaser, on the other side (the "SPA").

 

Capitalized terms not defined herein shall have the same meaning ascribed to them in the SPA.

 

We hereby:

 

(i) waive unconditionally any claims (if any) which we may have against you, in respect of your conduct, as sole director of the Company, up to the Closing Date, based on article 2476, paragraph 7, of the ICC, except in case of gross negligence ("colpa grave") and wilful misconduct ("dolo");

 

(ii) undertake not to vote or promote and to cause the Company neither to vote nor to promote, respectively, any liability action against you pursuant to article 2476 of the ICC, except in case of gross negligence ("colpa grave") wilful misconduct ("dolo");

 

(iii) undertake to indemnify you (except in case of their gross negligence ("colpa grave") wilful misconduct ("dolo") against any claim or action promoted by any of Purchaser's Affiliates which shall acquire any shareholding in the Company after the Closing, connected to the claims or actions mentioned in numbers (i) and (ii) above.

 

 

 

Kind regards,

 

 

Theia Investments (Italy) S.r.l.

 

 

 

_____________________________

[•] by its legal representative [•]

 

 

  43  

 

 

Schedule 6.7.1 — List of Contracts

 

SUN ROOF I


Contracts for Expenses:

 

1. DDS Agreement (Contratto per la costituzione di diritto di superficie), signed on October 24th, 2011 between SUN ROOF I S.r.1. and Avicola Olandia S.r.l.;
2. Easement Right Deed (Atto di costituzione di servitii di locale per cabina di consegna di elettrodotto e di accesso), signed separately on April 5th, 2012 by SUN ROOF 18 S.r.l. and SUN ROOF I S.r.l. and on June 25th, 2012 by ENEL Distribuzione S.p.A.;
3. Operation and Maintenance Agreement, signed on February 1st, 2018 between SUN ROOF I S.r.l. and Future Energy Service and Maintenance S.r.l.;
4. Quotation for accounting, tax and administrative services, issued by Ciccioriccio & Associati on November 21st, 2017 and accepted by SUN ROOF I S.r.I.;
5. Quotation for E-Invoicing service, issued by Ciccioriccio & Associati on December 5th, 2018 and accepted by SUN ROOF I S.r.l.;
6. Management Agreement, signed on December 21st, 2017 between SPI Renewables Italy S.r.l. and SUN ROOF I S.r.l.;
7. Surveillance Agreement, signed on October 24th, 2016 between Italpol Vigilanza S.r.l. and SUN ROOF I S.r.I.;
8. Legal Address Registration Agreement (Contratto di domiciliazione legale), signed on January 7th, 2013 between A&P Services S.r.l. and SUN ROOF I S.r.l.;
9. Full-Risks Insurance Policy, signed on June 12th, 2019, between GENERAL! AG. and SUN ROOF I S.r.1.;
10. Internet Agreement, signed on September 30th, 2014 between RETE-TEL S.r.l. and SUN ROOF I S.r.l.;
11. MV Energy Supply Agreement, signed on November 4th, 2012 between Enel Energia S.p.A. and SUN ROOF I S.r.l.;
12. LV Energy Supply Agreement, signed on July 1st, 2012 between Enel Energia S.p.A. and SUN ROOF I S.r.I.;
13. Agreement for Periodical Check of Fire-Extinguishers, signed on February 7th, 2013 between COTTERLI Estintori S.a.S. and SUN ROOF I S.r.l. and its relevant amendment signed on October 1st, 2013;
14. Quotation for Anti-Mice Services (Servizi di derattizzazione), issued by EURODISINFESTAZIONI S.r.l. Semplificata on December I 4th, 2018 and accepted by SUN ROOF I S.r.l. on December 17th, 2018.

 

Contracts for Revenues:

 

15. FIT Agreement (Convenzione per it riconoscimento delle tariffe incentivanti), signed on October 5th, 2012 between GSE S.p.A. and SUN ROOF I S.r.l. for Section n. 01 and relevant Addendum issued on January 15th, 2016; FIT Agreement (Convenzione per it riconoscimento delle tariffe incentivanti), signed on October 5th, 2012 between GSE S.p.A. and SUN ROOF I S.r.l. for Section n. 02 and relevant Addendum issued on January 15th, 2016;
16. PPA (Contratto di compravendita di energia elettrica), signed on November 21st, 2018 between EGO Trade S.p.A. and SUN ROOF I S.r.l.;
17. GO Agreement (Contratto di compravendita di garanzie d'origine), signed on November 2I st, 2018 between EGO Trade S.p.A. and SUN ROOF I S.r.l..

 

  44  

 

Exhibit 4.69

 

 

 

1.    Basic Provisions (“Basic Provisions”)

1.1 Parties: This Lease (“Lease”), dated for reference purposes only Sept 15, 2019 is made by and between AI Factory, LLC (“Lessor”) and SPI Solar, Inc. (“Lessee”), (collectively the “Parties,” or individually a “Party”).

1.2   Premises: That certain real property, including all improvements therein or to be provided by Lessor under the terms of this Lease, and commonly known as 700 Center St. Orange Cove, CA 93646, located in the County of Fresno, State of California, and generally described as (describe briefly the nature of the property and, if applicable, the “Project”, if the property is located within a Project) approximately 10.5 acre industrial property to be delivered in as-is condition (“Premises”). (See also Paragraph 2)

1.3   Term: 30 years and 108 days (“Original Term”) commencing September 15, 2019 (“Commencement date”) and ending December 31, 2049 (“Expiration Date”). (See also Paragraph 3)

1.4  Early Possession: If the Premises are available Lessee may have non-exclusive possession of the Premises commencing upon receipt of proof of insurance (“Early Possession Date”). (See also Paragraphs 3.2 and 3.3)

1.5  Base Rent: payable on the 1st day of each year as set forth in paragraphs 54 and 55 and free rental period from September 15, 2019 to December 31, 2019. (See also Paragraph 4)

1.6  Base Rent and Other Monies To Be Paid Within 10 Business Days of Execution:

(a) Base Rent: $125,000.00 for the period January 1, 2020 through December 31, 2020.

(b) Security Deposit: $10,000.00 (“Security Deposit”). (See also Paragraph 5)

(c) Association Fees: $ ______ for the period ______________.

(d) Other: $7,608.76 for NNN expenses September 15, 2019 to December 31, 2019.

(e) Total Due Upon Execution of this Lease: $141,521.79.

1.7  Agreed Use: industrial use, including building photovoltaic solar systems, storing the energy solar systems for solar projects, packing and manufacturing for oranges and other agricultural products, industrial machining and processing, and other legal uses. (See also Paragraph 6)

1.8  Insuring Party: Lessor is the “Insuring Party” unless otherwise stated herein. (See also Paragraph 8)

1.10  Guarantor. The obligations of the Lessee under this Lease are to be guaranteed by ________ (“Guarantor”). (See also Paragraph 37)

1.11  Attachments: Attached hereto are the following, all of which constitute a part of this Lease:

[_] an Addendum consisting of Paragraphs 51 through 57.

 

 

 

  1  
 

 

2.   Premises.

2.1       Letting. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Premises, for the term, at the rental, and upon all of the terms, covenants and conditions set forth in this Lease. While the approximate square footage of the Premises may have been used in the marketing of the Premises for purposes of comparison, the Base Rent stated herein is NOT tied to square footage and is not subject to adjustment should the actual size be determined to be different. Note: Lessee is advised to verify the actual size prior to executing this Lease.

2.2       Condition. Lessor shall deliver the Premises to Lessee on the Commencement Date or the Early Possession Date, whichever first occurs ("Start Date”)

2.3       Compliance. Lessor warrants that to the best of its knowledge the improvements on the Premises comply with the building codes, applicable laws, covenants or restrictions of record, regulations, and ordinances ("Applicable Requirements") that were in effect at the time that each improvement, or portion thereof, was constructed. Said warranty does not apply to the use to which Lessee will put the Premises, modifications which may be required by the Americans with Disabilities Act or any similar laws as a result of Lessee's use (see Paragraph 50), or to any Alterations or Utility Installations (as defined in Paragraph 7.3(a)) made or to be made by Lessee. NOTE: Lessee is responsible for determining whether or not the Applicable Requirements, and especially the zoning, are appropriate for Lessee's Intended use, and acknowledges that past uses of the Premises may no longer be allowed. If the Premises do not comply with said warranty, Lessor shall, except as otherwise provided, promptly after receipt of written notice from Lessee setting forth with specificity the nature and extent of such non-compliance, rectify the same at Lessor's expense. If Lessee does not give Lessor written notice of a non-compliance with this warranty within 6 months following the Start Date, correction of that noncompliance shall be the obligation of Lessee at Lessees sole cost and expense. If the Applicable Requirements are hereafter changed so as to require during the term of this Lease the construction of an addition to or an alteration of the Premises and/or Building, the remediation of any Hazardous Substance, or the reinforcement or other physical modification of the Unit, Premises and/or Building ("Capital Expenditure"), Lessor and Lessee shall allocate the cost of such work as follows:

(a) Subject to Paragraph 2.3(c) below, if such Capital Expenditures are required as a result of the specific and unique use of the Premises by Lessee as compared with uses by tenants in general, Lessee shall be fully responsible for the cost thereof, provided, however that if such Capital Expenditure is required during the last 2 years of this Lease and the cost thereof exceeds 6 months' Base Rent, Lessee may instead terminate this Lease unless Lessor notifies Lessee, in writing, within 10 days after receipt of Lessees termination notice that Lessor has elected to pay the difference between the actual cost thereof and an amount equal to 6 months' Base Rent, If Lessee elects termination, Lessee shall immediately cease the use of the Premises which requires such Capital Expenditure and deliver to Lessor written notice specifying a termination date at least 90 days thereafter. Such termination date shall, however, in no event be earlier than the last day that Lessee could legally utilize the Premises without commencing such Capital Expenditure.

(b) If such Capital Expenditure is not the result of the specific and unique use of the Premises by Lessee (such as, governmentally mandated seismic modifications), then Lessor shall pay for such Capital Expenditure and Lessee shall only be obligated to pay, each month during the remainder of the term of this Lease or any extension thereof, on the date that on which the Base Rent is due, an amount equal to 1/144th of the portion of such costs reasonably attributable to the Premises. Lessee shall pay Interest on the balance but may prepay its obligation at any time. If, however, such Capital Expenditure is required during the last 2 years of this Lease or if Lessor reasonably determines that it is not economically feasible to pay its share thereof, Lessor shall have the option to terminate this Lease upon 90 days prior written notice to Lessee unless Lessee notifies Lessor, in writing, within 10 days after receipt of Lessor's termination notice that Lessee will pay for such Capital Expenditure. If Lessor does not elect to terminate, and fails to tender its share of any such Capital Expenditure, Lessee may advance such funds and deduct same, with Interest, from Rent until Lessor's share of such costs have been fully paid. If Lessee is unable to finance Lessor's share, or if the balance of the Rent due and payable for the remainder of this Lease is not sufficient to fully reimburse Lessee on an offset basis, Lessee shall have the right to terminate this Lease upon 30 days written notice to Lessor.

 

 

 

  2  
 

 

(c) Notwithstanding the above, the provisions concerning Capital Expenditures are intended to apply only to non-voluntary, unexpected, and new Applicable Requirements. If the Capital Expenditures are instead triggered by Lessee as a result of an actual or proposed change in use, change in intensity of use, or modification to the Premises then, and in that event, Lessee shall either: (i) immediately cease such changed use or intensity of use and/or take such other steps as may be necessary to eliminate the requirement for such Capital Expenditure, or (ii) complete such Capital Expenditure at its own expense. Lessee shall not, however, have any right to terminate this Lease.

2.4       Acknowledgements. Lessee acknowledges that: (a) it has been given an opportunity to inspect and measure the Premises, (b) it has been advised by Lessor and/or Brokers to satisfy itself with respect to the size and condition of the Premises (including but not limited to the electrical, I-1VAC and fire sprinkler systems, security, environmental aspects, and compliance with Applicable Requirements and the Americans with Disabilities Act), and their suitability for Lessee's intended use, (c) Lessee has made such investigation as it deems necessary with reference to such matters and assumes all responsibility therefor as the same relate to its occupancy of the Premises, (d) it is not relying on any representation as to the size of the Premises made by Brokers or Lessor, (e) the square footage of the Premises was not material to Lessee's decision to lease the Premises and pay the Rent stated herein, and (f) neither Lessor, Lessor's agents, nor Brokers have made any oral or written representations or warranties with respect to said matters other than as set forth in this Lease. In addition, Lessor acknowledges that: (i) Brokers have made no representations, promises or warranties concerning Lessees ability to honor the Lease or suitability to occupy the Premises, and (ii) it is Lessors sole responsibility to investigate the financial capability and/or suitability of all proposed tenants.

2.5       Lessee as Prior Owner/Occupant. The warranties made by Lessor in Paragraph 2 shall be of no force or effect if immediately prior to the Start Date Lessee was the owner or occupant of the Premises. In such event, Lessee shall be responsible for any necessary corrective work.

 

3.       Term.

3.1       Term. The Commencement Date, Expiration Date and Original Term of this Lease are as specified in Paragraph 1.3.

3.2       Early Possession. Any provision herein granting Lessee Early Possession of the Premises is subject to and conditioned upon the Premises being available for such possession prior to the Commencement Date. Any grant of Early Possession only conveys a non-exclusive right to occupy the Premises. If Lessee totally or partially occupies the Premises prior to the Commencement Date, the obligation to pay Base Rent shall be abated for the period of such Early Possession. All other terms of this Lease (including but not limited to the obligations to pay Real Property Taxes and insurance premiums and to maintain the Premises) shall be in effect during such period. Any such Early Possession shall not affect the Expiration Date.

3.3       Delay In Possession. Lessor agrees to use its best commercially reasonable efforts to deliver possession of the Premises to Lessee by the Commencement Date. If, despite said efforts, Lessor is unable to deliver possession by such date, Lessor shall not be subject to any liability therefor, nor shall such failure affect the validity of this Lease or change the Expiration Date. Lessee shall not, however, be obligated to pay Rent or perform its other obligations until Lessor delivers possession of the Premises and any period of rent abatement that Lessee would otherwise have enjoyed shall run from the date of delivery of possession and continue for a period equal to what Lessee would otherwise have enjoyed under the terms hereof, but minus any days of delay caused by the acts or omissions of Lessee. If possession is not delivered within 60 days after the Commencement Date, as the same may be extended under the terms of any Work Letter executed by Parties, Lessee may, at its option, by notice in writing within 10 days after the end of such 60 day period, cancel this Lease, in which event the Parties shall be discharged from all obligations hereunder. If such written notice is not received by Lessor within said 10 day period, Lessee's right to cancel shall terminate. If possession of the Premises is not delivered within 120 days after the Commencement Date, this Lease shall terminate unless other agreements are reached between Lessor and Lessee, in writing.

3.4       Lessee Compliance. Lessor shall not be required to deliver possession of the Premises to Lessee until Lessee complies with its obligation to provide evidence of insurance (Paragraph 8.5). Pending delivery of such evidence, Lessee shall be required to perform all of its obligations under this Lease from and after the Start Date, including the payment of Rent, notwithstanding Lessor's election to withhold possession pending receipt of such evidence of insurance. Further, if Lessee is required to perform any other conditions prior to or concurrent with the Start Date, the Start Date shall occur but Lessor may elect to withhold possession until such conditions are satisfied

 

 

 

  3  
 

 

4.     Rent.

4.1.      Rent Defined. All monetary obligations of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are deemed to be rent ("Rent").

4.2       Payment Lessee shall cause payment of Rent to be received by Lessor in lawful money of the United States, without offset or deduction (except as specifically permitted in this Lease), on or before the day on which it is due. All monetary amounts shall be rounded to the nearest whole dollar. In the event that any invoice prepared by Lessor is inaccurate such inaccuracy shall not constitute a waiver and Lessee shall be obligated to pay the amount set forth in this Lease. Rent for any period during the term hereof which is for less than one full calendar month shall be prorated based upon the actual number of days of said month. Payment of Rent shall be made to Lessor at its address stated herein or to such other persons or place as Lessor may from time to time designate in writing. Acceptance of a payment which is less than the amount then due shall not be a waiver of Lessor's rights to the balance of such Rent, regardless of Lessor's endorsement of any check so stating. In the event that any check, draft, or other instrument of payment given by Lessee to Lessor is dishonored for any reason, Lessee agrees to pay to Lessor the sum of $25 in addition to any Late Charge and Lessor, at its option, may require all future Rent be paid by cashier's check. Payments will be applied first to accrued late charges and attorney's fees, second to accrued interest, then to Base Rent, Insurance and Real Property Taxes, and any remaining amount to any other outstanding charges or costs 

4.3       Association Fees. In addition to the Base Rent, Lessee shall pay to Lessor each month an amount equal to any owner's association or condominium fees levied or assessed against the Premises. Said monies shall be paid at the same time and in the same manner as the Base Rent.

 

5.     Security Deposit. Lessee shall deposit with Lessor upon execution hereof the Security Deposit as security for Lessee's faithful performance of its obligations under this Lease. If Lessee fails to pay Rent, or otherwise Defaults under this Lease, Lessor may use, apply or retain all or any portion of said Security Deposit for the payment of any amount already due Lessor, for Rents which will be due in the future, and/ or to reimburse or compensate Lessor for any liability, expense, loss or damage which Lessor may suffer or incur by reason thereof. If Lessor uses or applies all or any portion of the Security Deposit, Lessee shall within 10 days after written request therefor deposit monies with Lessor sufficient to restore said Security Deposit to the full amount required by this Lease. If the Base Rent increases during the term of this Lease, Lessee shall, upon written request from Lessor, deposit additional monies with Lessor so that the total amount of the Security Deposit shall at all times bear the same proportion to the increased Base Rent as the initial Security Deposit bore to the initial Base Rent. Should the Agreed Use be amended to accommodate a material change in the business of Lessee or to accommodate a sublessee or assignee, Lessor shall have the right to increase the Security Deposit to the extent necessary, in Lessors reasonable judgment, to account for any increased wear and tear that the Premises may suffer as a result thereof. If a change in control of Lessee occurs during this Lease and following such change the financial condition of Lessee is, in Lessors reasonable judgment, significantly reduced, Lessee shall deposit such additional monies with Lessor as shall be sufficient to cause the Security Deposit to be at a commercially reasonable level based on such change in financial condition. Lessor shall not be required to keep the Security Deposit separate from its general accounts. Within 90 days after the expiration or termination of this Lease, Lessor shall return that portion of the Security Deposit not used or applied by Lessor. Lessor shall upon written request provide Lessee with an accounting showing how that portion of the Security Deposit that was not returned was applied. No part of the Security Deposit shall be considered to be held in trust, to bear interest or to be prepayment for any monies to be paid by Lessee under this Lease. THE SECURITY DEPOSIT SHALL NOT BE USED BY LESSEE IN LIEU OF PAYMENT OF THE LAST MONTH'S RENT.

 

6.     Use.

6.1       Use. Lessee shall use and occupy the Premises only for the Agreed Use, or any other legal use which is reasonably comparable thereto, and for no other purpose. Lessee shall not use or permit the use of the Premises in a manner that is unlawful, creates damage, waste or a nuisance, or that disturbs occupants of or causes damage to neighboring premises or properties. Other than guide, signal and seeing eye dogs, Lessee shall not keep or allow in the Premises any pets, animals, birds, fish, or reptiles. Lessor shall not unreasonably withhold or delay its consent to any request for a modification of the Agreed Use, so long as the same will not impair the structural integrity of the improvements on the Premises or the mechanical or electrical systems therein, and/or is not significantly more burdensome to the Premises. If Lessor elects to withhold consent, Lessor shall within 7 days after such request give written notification of same, which notice shall include an explanation of Lessor's objections to the change in the Agreed Use.

 

 

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6.2       Hazardous Substances.

(a)  Reportable Uses Require Consent. The term "Hazardous Substance" as used in this Lease shall mean any product, substance, or waste whose presence, use, manufacture, disposal, transportation, or release, either by itself or in combination with other materials expected to be on the Premises, is either: (i) potentially injurious to the public health, safety or welfare, the environment or the Premises, (ii) regulated or monitored by any governmental authority, or (iii) a basis for potential liability of Lessor to any governmental agency or third party under any applicable statute or common law theory. Hazardous Substances shall include, but not be limited to, hydrocarbons, petroleum, gasoline, and/or crude oil or any products, by-products or fractions thereof. Lessee shall not engage in any activity in or on the Premises which constitutes a Reportable Use of Hazardous Substances without the express prior written consent of Lessor and timely compliance (at Lessee's expense) with all Applicable Requirements. "Reportable Use" shall mean (i) the installation or use of any above or below ground storage tank, (ii) the generation, possession, storage, use, transportation, or disposal of a Hazardous Substance that requires a permit from, or with respect to which a report, notice, registration or business plan is required to be filed with, any governmental authority, and/or (iii) the presence at the Premises of a Hazardous Substance with respect to which any Applicable Requirements requires that a notice be given to persons entering or occupying the Premises or neighboring properties. Notwithstanding the foregoing, Lessee may use any ordinary and customary materials reasonably required to be used in the normal course of the Agreed Use, ordinary office supplies (copier toner, liquid paper, glue, etc.) and common household cleaning materials, so long as such use is in compliance with all Applicable Requirements, is not a Reportable Use, and does not expose the Premises or neighboring property to any meaningful risk of contamination or damage or expose Lessor to any liability therefor. In addition, Lessor may condition its consent to any Reportable Use upon receiving such additional assurances as Lessor reasonably deems necessary to protect itself, the public, the Premises and/or the environment against damage, contamination, injury and/or liability, including, but not limited to, the installation (and removal on or before Lease expiration or termination) of protective modifications (such as concrete encasements) and/or increasing the Security Deposit.

(b)  Duty to Inform Lessor. If Lessee knows, or has reasonable cause to believe, that a Hazardous Substance has come to be located in, on, under or about the Premises, other than as previously consented to by Lessor, Lessee shall immediately give written notice of such fact to Lessor, and provide Lessor with a copy of any report, notice, claim or other documentation which it has concerning the presence of such Hazardous Substance.

(c)  Lessee Remediation. Lessee shall not cause or permit any Hazardous Substance to be spilled or released in, on, under, or about the Premises (including through the plumbing or sanitary sewer system) and shall promptly, at Lessee's expense, comply with all Applicable Requirements and take all investigatory and/or remedial action reasonably recommended, whether or not formally ordered or required, for the cleanup of any contamination of, and for the maintenance, security and/or monitoring of the Premises or neighboring properties, that was caused or materially contributed to by Lessee, or pertaining to or involving any Hazardous Substance brought onto the Premises during the term of this Lease, by or for Lessee, or any third party.

(d)  Lessee Indemnification. Lessee shall indemnify, defend and hold Lessor, its agents, employees, lenders and ground lessor, if any, harmless from and against any and all loss of rents and/or damages, liabilities, judgments, claims, expenses, penalties, and attorneys' and consultants' fees arising out of or involving any Hazardous Substance brought onto the Premises by or for Lessee, or any third party (provided, however, that Lessee shall have no liability under this Lease with respect to underground migration of any Hazardous Substance under the Premises from adjacent properties not caused or contributed to by Lessee). Lessee's obligations shall include, but not be limited to, the effects of any contamination or injury to person, property or the environment created or suffered by Lessee, and the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or termination of this Lease. No termination, cancellation or release agreement entered into by Lessor and Lessee shall release Lessee from Its obligations under this Lease with respect to Hazardous Substances, unless specifically so agreed by Lessor in writing at the time of such agreement.

 

 

 

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(e)  Lessor Indemnification. Except as otherwise provided in paragraph 8.7, Lessor and its successors and assigns shall indemnify, defend, reimburse and hold Lessee, its employees and lenders, harmless from and against any and all environmental damages, including the cost of remediation, which result from Hazardous Substances which existed on the Premises prior to Lessee's occupancy or which are caused by the gross negligence or willful misconduct of Lessor, its agents or employees. Lessor's obligations, as and when required by the Applicable Requirements, shall include, but not be limited to, the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or termination of this Lease.

(f)  Investigations and Remediations. Lessor shall retain the responsibility and pay for any investigations or remediation measures required by governmental entities having jurisdiction with respect to the existence of Hazardous Substances on the Premises prior to Lessees occupancy, unless such remediation measure is required as a result of Lessees use (including "Alterations-, as defined in paragraph 7.3(a) below) of the Premises, in which event Lessee shall be responsible for such payment. Lessee shall cooperate fully in any such activities at the request of Lessor, including allowing Lessor and Lessors agents to have reasonable access to the Premises at reasonable times in order to carry out Lessors investigative and remedial responsibilities.

(g) Lessor Termination Option. If a Hazardous Substance Condition (see Paragraph 9.1(e)) occurs during the term of this Lease, unless Lessee is legally responsible therefor (in which case Lessee shall make the investigation and remediation thereof required by the Applicable Requirements and this Lease shall continue in full force and effect, but subject to Lessors rights under Paragraph 6.2(d) and Paragraph 13), Lessor may, at Lessor's option, either (i) investigate and remediate such Hazardous Substance Condition, if required, as soon as reasonably possible at Lessors expense, in which event this Lease shall continue in full force and effect, or (ii) if the estimated cost to remediate such condition exceeds 12 times the then monthly Base Rent or $100,000, whichever is greater, give written notice to Lessee, within 30 days after receipt by Lessor of knowledge of the occurrence of such Hazardous Substance Condition, of Lessors desire to terminate this Lease as of the date 60 days following the date of such notice. In the event Lessor elects to give a termination notice, Lessee may, within 10 days thereafter, give written notice to Lessor of Lessee's commitment to pay the amount by which the cost of the remediation of such Hazardous Substance Condition exceeds an amount equal to 12 times the then monthly Base Rent or $100,000, whichever is greater. Lessee shall provide Lessor with said funds or satisfactory assurance thereof within 30 days following such commitment. In such event, this Lease shall continue in full force and effect, and Lessor shall proceed to make such remediation as soon as reasonably possible after the required funds are available, If Lessee does not give such notice and provide the required funds or assurance thereof within the time provided, this Lease shall terminate as of the date specified in Lessor's notice of termination.

6.3       Lessee's Compliance with Applicable Requirements. Except as otherwise provided in this Lease, Lessee shall, at Lessee's sole expense, fully, diligently and in a timely manner, materially comply with all Applicable Requirements, the requirements of any applicable fire insurance underwriter or rating bureau, and the recommendations of Lessors engineers and/or consultants which relate in any manner to the Premises, without regard to whether said Applicable Requirements are now in effect or become effective after the Start Date. Lessee shall, within 10 days after receipt of Lessor's written request, provide Lessor with copies of all permits and other documents, and other information evidencing Lessee's compliance with any Applicable Requirements specified by Lessor, and shall immediately upon receipt, notify Lessor in writing (with copies of any documents involved) of any threatened or actual claim, notice, citation, warning, complaint or report pertaining to or involving the failure of Lessee or the Premises to comply with any Applicable Requirements. Likewise, Lessee shall immediately give written notice to Lessor of: (i) any water damage to the Premises and any suspected seepage, pooling, dampness or other condition conducive to the production of mold; or (ii) any mustiness or other odors that might indicate the presence of mold in the Premises. In addition, Lessee shall provide copies of all relevant material safety data sheets (MSDS) to Lessor within 10 days of the receipt of a written request therefor. In addition, Lessee shall provide Lessor with copies of its business license, certificate of occupancy and/or any similar document within 10 days of the receipt of a written request therefor.

 

 

 

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6.4       Inspection; Compliance. Lessor and Lessor's "Lender" (as defined in Paragraph 30) and consultants authorized by Lessor shall have the right to enter into Premises at any time, in the case of an emergency, and otherwise at reasonable times after reasonable notice, for the purpose of inspecting and/or testing the condition of the Premises and/or for verifying compliance by Lessee with this Lease. The cost of any such inspections shall be paid by Lessor, unless a violation of Applicable Requirements, or a Hazardous Substance Condition (see paragraph 9.1) is found to exist or be imminent, or the inspection is requested or ordered by a governmental authority. In such case, Lessee shall upon request reimburse Lessor for the cost of such inspection, so long as such inspection is reasonably related to the violation or contamination. In addition, Lessee shall provide copies of all relevant material safety data sheets (MSDS) to Lessor within 10 days of the receipt of a written request therefore. Lessee acknowledges that any failure on its part to allow such inspections or testing will expose Lessor to risks and potentially cause Lessor to incur costs not contemplated by this Lease, the extent of which will be extremely difficult to ascertain. Accordingly, should the Lessee fail to allow such inspections and/or testing in a timely fashion the Base Rent shall be automatically increased, without any requirement for notice to Lessee, by an amount equal to 10% of the then existing Base Rent or $100, whichever is greater for the remainder to the Lease. The Parties agree that such increase in Base Rent represents fair and reasonable compensation for the additional risk/costs that Lessor will incur by reason of Lessee's failure to allow such inspection and/or testing. Such increase in Base Rent shall in no event constitute a waiver of Lessee's Default or Breach with respect to such failure nor prevent the exercise of any of the other rights and remedies granted hereunder.

 

7.       Maintenance; Repairs, Utility Installations; Trade Fixtures and Alterations.

7.2   Lessors Obligations. Subject to the provisions of Paragraphs 2.2 (Condition), 2.3 (Compliance), 9 (Damage or Destruction) and 14 (Condemnation), it is intended by the Parties hereto that Lessor have no obligation, in any manner whatsoever, to repair and maintain the Premises, or the equipment therein, all of which obligations are intended to be that of the Lessee. It is the intention of the Parties that the terms of this Lease govern the respective obligations of the Parties as to maintenance and repair of the Premises.

7.3       Utility Installations; Trade Fixtures; Alterations.

(a)    Definitions. The term "Utility Installations" refers to all floor and window coverings, air and/or vacuum lines, power panels, electrical distribution, security and fire protection systems, communication cabling, lighting fixtures, HVAC equipment, plumbing, and fencing in or on the Premises. The term "Trade Fixtures" shall mean Lessee's machinery and equipment that can be removed without doing material damage to the Premises. The term "Alterations" shall mean any modification of the improvements, other than Utility Installations or Trade Fixtures, whether by addition or deletion. "Lessee Owned Alterations and/or Utility Installations" are defined as Alterations and/or Utility installations made by Lessee that are not yet owned by Lessor pursuant to Paragraph 7.4(a).

(c)    Liens; Bonds. Lessee shall pay, when due, all claims for labor or materials furnished or alleged to have been furnished to or for Lessee at or for use on the Premises, which claims are or may be secured by any mechanic's or matenalmen's lien against the Premises or any interest therein. Lessee shall give Lessor not less than 10 days notice prior to the commencement of any work in, on or about the Premises, and Lessor shall have the right to post notices of non-responsibility. If Lessee shall contest the validity of any such lien, claim or demand, then Lessee shall, at its sole expense defend and protect itself, Lessor and the Premises against the same and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof. If Lessor shall require, Lessee shall furnish a surety bond in an amount equal to 150% of the amount of such contested lien, claim or demand, indemnifying Lessor against liability for the same. If Lessor elects to participate in any such action, Lessee shall pay Lessor's attorneys' fees and costs.

7.4     Ownership; Removal; Surrender; and Restoration.

(a)    Ownership. Subject to Lessor's right to require removal or elect ownership as hereinafter provided, all Alterations and Utility Installations made by Lessee shall be the property of Lessee, but considered a part of the Premises. Lessor may, at any time, elect in writing to be the owner of all or any specified part of the Lessee Owned Alterations and Utility Installations. Unless otherwise instructed per paragraph 7.4(b) hereof, all Lessee Owned Alterations and Utility Installations shall, at the expiration or termination of this Lease, become the property of Lessor and be surrendered by Lessee with the Premises.

 

 

 

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(b)   Removal. By delivery to Lessee of written notice from Lessor not earlier than 90 and not later than 30 days prior to the end of the term of this Lease, Lessor may require that any or all Lessee Owned Alterations or Utility Installations be removed by the expiration or termination of this Lease. Lessor may require the removal at any time of all or any part of any Lessee Owned Alterations or Utility installations made without the required consent.

(c)    Surrender; Restoration. Lessee shall surrender the Premises by the Expiration Date or any earlier termination date, with all of the improvements, parts and surfaces thereof broom clean and free of debris, and in good operating order, condition and state of repair, ordinary wear and tear excepted. "Ordinary wear and tear shall not include any damage or deterioration that would have been prevented by good maintenance practice. Notwithstanding the foregoing, if the Lessee occupies the Premises for 12 months or less, then Lessee shall surrender the Premises in the same condition as delivered to Lessee on the Start Date with NO allowance for ordinary wear and tear. Lessee shall repair any damage occasioned by the installation, maintenance or removal of Trade Fixtures, Lessee owned Alterations and/or Utility Installations, furnishings, and equipment as well as the removal of any storage tank installed by or for Lessee. Lessee shall remove from the Premises any and all Hazardous Substances brought onto the Premises by or for Lessee, or any third party (except Hazardous Substances which were deposited via underground migration from areas outside of the Premises) to the level specified in Applicable Requirements. Trade Fixtures shall remain the property of Lessee and shall be removed by Lessee. Any personal property of Lessee not removed on or before the Expiration Date or any earlier termination date shall be deemed to have been abandoned by Lessee and may be disposed of or retained by Lessor as Lessor may desire. The failure by Lessee to timely vacate the Premises pursuant to this Paragraph 7.4(c) without the express written consent of Lessor shall constitute a holdover under the provisions of Paragraph 25 below.

 

8.       Insurance; Indemnity.

8.1       Payment For Insurance. Lessee shall pay far all insurance required under Paragraph 8 except to the extent of the cost attnbutable to liability insurance carried by Lessor under Paragraph 8.2(b) in excess of $2,000,000 per occurrence. Premiums for policy periods commencing prior to or extending beyond the Lease term shall be prorated to correspond to the Lease term. Payment shall be made by Lessee to Lessor within 10 days following receipt of an invoice.

8.2       Liability Insurance.

(a) Carried by Lessee. Lessee shall obtain and keep in force a Commercial General Liability policy of insurance protecting Lessee and Lessor as an additional insured against claims for bodily injury, personal injury and property damage based upon or arising out of the ownership, use, occupancy or maintenance of the Premises and ail areas appurtenant thereto. Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than $1,000,000 per occurrence with an annual aggregate of not less than $2,000,000. Lessee shall add Lessor as an additional insured by means of an endorsement at least as broad as the Insurance Service Organization's "Additional Insured-Managers or Lessors of Premises" Endorsement. The policy shall not contain any intra-insured exclusions as between insured persons or organizations, but shall include coverage for liability assumed under this Lease as an "insured contract' for the performance of Lessee's indemnity obligations under this Lease. The limits of said insurance shall not, however, limit the liability of Lessee nor relieve Lessee of any obligation hereunder. Lessee shall provide an endorsement on its liability policy(ies) which provides that its insurance shall be primary to and not contributory with any similar insurance carried by Lessor, whose insurance shall be considered excess insurance only.

(b) Carried by Lessor. Lessor shall maintain liability insurance as described in Paragraph 8.2(a), in addition to, and not in lieu of, the insurance required to be maintained by Lessee. Lessee shall not be named as an additional insured therein.

 

 

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8.3     Property Insurance - Building, Improvements and Rental Value.

(a) Building and Improvements. The Insuring Party shall obtain and keep in force a policy or policies in the name of Lessor, with loss payable to Lessor, any ground-lessor, and to any Lender insuring loss or damage to the Premises. The amount of such insurance shall be equal to the full insurable replacement cost of the Premises, as the same shall exist from time to time, or the amount required by any Lender, but in no event more than the commercially reasonable and available insurable value thereof. Lessee Owned Alterations and Utility Installations, Trade Fixtures, and Lessees personal property shall be insured by Lessee not by Lessor. If the coverage is available and commercially appropriate, such policy or policies shall insure against all risks of direct physical loss or damage (except the perils of flood and/or earthquake unless required by a Lender), including coverage for debris removal and the enforcement of any Applicable Requirements requiring the upgrading, demolition, reconstruction or replacement of any portion of the Premises as the result of a covered loss. Said policy or policies shall also contain an agreed valuation provision in lieu of any coinsurance clause, waiver of subrogation, and inflation guard protection causing an increase in the annual property insurance coverage amount by a factor of not less than the adjusted U.S. Department of Labor Consumer Price Index for All Urban Consumers for the city nearest to where the Premises are located. If such insurance coverage has a deductible clause, the deductible amount shall not exceed $5,000 per occurrence, and Lessee shall be liable for such deductible amount in the event of an Insured Loss.

(b) Rental Value. The Insuring Party shall obtain and keep in force a policy or policies in the name of Lessor with loss payable to Lessor and any Lender, insuring the loss of the full Rent for one year with an extended period of indemnity for an additional 180 days ("Rental Value insurance"). Said insurance shall contain an agreed valuation provision in lieu of any coinsurance clause, and the amount of coverage shall be adjusted annually to reflect the projected Rent otherwise payable by Lessee, for the next 12 month period. Lessee shall be liable for any deductible amount in the event of such loss.

(c) Adjacent Premises. If the Premises are part of a larger building, or of a group of buildings owned by Lessor which are adjacent to the Premises, the Lessee shall pay for any increase in the premiums for the property insurance of such building or buildings if said increase is caused by Lessee's acts, omissions, use or occupancy of the Premises.

8.4    Lessee's Property; Business Interruption Insurance; Worker's Compensation Insurance.

(a) Property Damage. Lessee shall obtain and maintain insurance coverage on all of Lessee's personal property, Trade Fixtures, and Lessee Owned Alterations and Utility Installations, Such insurance shall be full replacement cost coverage with a deductible of not to exceed $1,000 per occurrence. The proceeds from any such insurance shall be used by Lessee for the replacement of personal property, Trade Fixtures and Lessee Owned Alterations and Utility Installations.

(b) Business Interruption. Lessee shall obtain and maintain loss of income and extra expense insurance in amounts as will reimburse Lessee for direct or indirect loss of earnings attributable to all perils commonly insured against by prudent lessees in the business of Lessee or attributable to prevention of access to the Premises as a result of such perils.

(c) Workers Compensation Insurance. Lessee shall obtain and maintain Worker's Compensation Insurance in such amount as may be required by Applicable Requirements. Such policy shall include a 'Waiver of Subrogation' endorsement. Lessee shall provide Lessor with a copy of such endorsement along with the certificate of insurance or copy of the policy required by paragraph 8.5.

(d) No Representation of Adequate Coverage. Lessor makes no representation that the limits or forms of coverage of insurance specified herein are adequate to cover Lessee's property, business operations or obligations under this Lease.

8.5    Insurance Policies. Insurance required herein shall be by companies maintaining during the policy term a "General Policyholders Rating" of at least A-, VII, as set forth in the most current issue of "Best's Insurance Guide", or such other rating as may be required by a Lender. Lessee shall not do or permit to be done anything which invalidates the required insurance policies. Lessee shall, prior to the Start Date, deliver to Lessor certified copies of policies of such insurance or certificates with copies of the required endorsements evidencing the existence and amounts of the required insurance. No such policy shall be cancelable or subject to modification except after 30 days prior written notice to Lessor. Lessee shall, at least 10 days prior to the expiration of such policies, furnish Lessor with evidence of renewals or "insurance binders" evidencing renewal thereof, or Lessor may increase his liability insurance coverage and charge the cost thereof to Lessee, which amount shall be payable by Lessee to Lessor upon demand. Such policies shall be for a term of at least one year, or the length of the remaining term of this Lease, whichever is less. If either Party shall fail to procure and maintain the insurance required to be carried by it, the other Party may, but shall not be required to, procure and maintain the same.

 

 

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8.6    Waiver of Subrogation. Without affecting any other rights or remedies, Lessee and Lessor each hereby release and relieve the other, and waive their entire right to recover damages against the other, for loss of or damage to its property arising out of or incident to the perils required to be insured against herein. The effect of such releases and waivers is not limited by the amount of insurance carried or required, or by any deductibles applicable hereto. The Parties agree to have their respective property damage insurance carriers waive any right to subrogation that such companies may have against Lessor or Lessee, as the case may be, so long as the insurance is not invalidated thereby.

8.7     Indemnity. Except for Lessors gross negligence or willful misconduct, Lessee shall indemnify, protect, defend and hold harmless the Premises, Lessor and its agents, Lessor's master or ground lessor, partners and Lenders, from and against any and all claims, loss of rents and/or damages, liens, judgments, penalties, attorneys' and consultants' fees, expenses and/or liabilities arising out of, involving, or in connection with, the use and/or occupancy of the Premises by Lessee. If any action or proceeding is brought against Lessor by reason of any of the foregoing matters, Lessee shall upon notice defend the same at Lessee's expense by counsel reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee in such defense. Lessor need not have first paid any such claim in order to be defended or indemnified.

8.8    Exemption of Lessor and its Agents from Liability. Notwithstanding the negligence or breach of this Lease by Lessor or its agents, neither Lessor nor its agents shall be liable under any circumstances for (i) injury or damage to the person or goods, wares, merchandise or other property of Lessee, Lessee's employees, contractors, invitees, customers, or any other person in or about the Premises, whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain, indoor air quality, the presence of mold or from the breakage, leakage, obstruction or other defects of pipes, fire sprinklers, wires, appliances, plumbing, WAG or lighting fixtures, or from any other cause, whether the said injury or damage results from conditions arising upon the Premises or upon other portions of the building of which the Premises are a part, or from other sources or places, (ii) any damages arising from any act or neglect of any other tenant of Lessor or from the failure of Lessor or its agents to enforce the provisions of any other lease in the Project, or (iii) injury to Lessee's business or for any loss of income or profit therefrom. Instead, it is intended that Lessee's sole recourse in the event of such damages or injury be to file a claim on the insurance policy(ies) that Lessee is required to maintain pursuant to the provisions of paragraph 8.

8.9    Failure to Provide Insurance. Lessee acknowledges that any failure on its part to obtain or maintain the insurance required herein will expose Lessor to risks and potentially cause Lessor to incur costs not contemplated by this Lease, the extent of which will be extremely difficult to ascertain. Accordingly, for any month or portion thereof that Lessee does not maintain the required insurance and/or does not provide Lessor with the required binders or certificates evidencing the existence of the required insurance, the Base Rent shall be automatically increased, without any requirement for notice to Lessee, by an amount equal to 10% of the then existing Base Rent or $100, whichever is greater. The parties agree that such increase in Base Rent represents fair and reasonable compensation for the additional risk/costs that Lessor will incur by reason of Lessee's failure to maintain the required insurance. Such increase in Base Rent shall in no event constitute a waiver of Lessee's Default or Breach with respect to the failure to maintain such insurance, prevent the exercise of any of the other rights and remedies granted hereunder, nor relieve Lessee of its obligation to maintain the insurance specified in this Lease.

 

9.       Damage or Destruction.

9.1       Definitions.

(a)   "Premises Partial Damage" shall mean damage or destruction to the improvements on the Premises, other than Lessee Owned Alterations and Utility Installations, which can reasonably be repaired in 6 months or less from the date of the damage or destruction. Lessor shall notify Lessee in writing within 30 days from the date of the damage or destruction as to whether or not the damage is Partial or Total.

(b) "Premises Total Destruction" shall mean damage or destruction to the Premises, other than Lessee Owned Alterations arid Utility Installations and Trade Fixtures, which cannot reasonably be repaired in 6 months or less from the date of the damage or destruction. Lessor shall notify Lessee in writing within 30 days from the date of the damage or destruction as to whether or not the damage is Partial or Total.

 

 

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(c)  "Insured Loss" shall mean damage or destruction to improvements on the Premises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which was caused by an event required to be covered by the insurance described in Paragraph 8.3(a), irrespective of any deductible amounts or coverage limits involved.

(d)  "Replacement Cost" shall mean the cost to repair or rebuild the improvements owned by Lessor at the time of the occurrence to their condition existing immediately prior thereto, including demolition, debris removal and upgrading required by the operation of Applicable Requirements, and without deduction for depreciation.

(e)  "Hazardous Substance Condition" shall mean the occurrence or discovery of a condition involving the presence of, or a contamination by, a Hazardous Substance , in, on, or under the Premises which requires remediation.

9.2     Partial Damage - Insured Loss. If a Premises Partial Damage that is an Insured Loss occurs, then Lessor shall, at Lessor's expense, repair such damage (but not Lessee's Trade Fixtures or Lessee Owned Alterations and Utility Installations) as soon as reasonably possible and this Lease shall continue in full force and effect; provided, however, that Lessee shall, at Lessor's election, make the repair of any damage or destruction the total cost to repair of which is $10,000 or less, and, in such event, Lessor shall make any applicable insurance proceeds available to Lessee on a reasonable basis for that purpose. Notwithstanding the foregoing, if the required insurance was not in force or the insurance proceeds are not sufficient to effect such repair, the Insuring Party shall promptly contribute the shortage in proceeds (except as to the deductible which is Lessees responsibility) as and when required to complete said repairs. In the event, however, such shortage was due to the fad that, by reason of the unique nature of the improvements, full replacement cost insurance coverage was not commercially reasonable and available, Lessor shall have no obligation to pay for the shortage in insurance proceeds or to fully restore the unique aspects of the Premises unless Lessee provides Lessor with the funds to cover same, or adequate assurance thereof, within 10 days following receipt of written notice of such shortage and request therefor. If Lessor receives said funds or adequate assurance thereof within said 10 day period, the party responsible for making the repairs shall complete them as soon as reasonably possible and this Lease shall remain in full force and effect. If such funds or assurance are not received, Lessor may nevertheless elect by written notice to Lessee within 10 days thereafter to: (i) make such restoration and repair as is commercially reasonable with Lessor paying any shortage in proceeds, in which case this Lease shall remain in full force and effect, or (ii) have this Lease terminate 30 days thereafter. Lessee shall not be entitled to reimbursement of any funds contributed by Lessee to repair any such damage or destruction. Premises Partial Damage due to flood or earthquake shall be subject to Paragraph 9.3, notwithstanding that there may be some insurance coverage, but the net proceeds of any such insurance shall be made available for the repairs if made by either Party.

9.3    Partial Damage - Uninsured Loss. If a Premises Partial Damage that is not an Insured Loss occurs, unless caused by a negligent or willful act of Lessee (in which event Lessee shall make the repairs at Lessees expense), Lessor may either: (i) repair such damage as soon as reasonably possible at Lessor's expense, in which event this Lease shall continue in full force and effect, or (ii) terminate this Lease by giving written notice to Lessee within 30 days after receipt by Lessor of knowledge of the occurrence of such damage. Such termination shall be effective 60 days following the date of such notice. In the event Lessor elects to terminate this Lease, Lessee shall have the right within 10 days after receipt of the termination notice to give written notice to Lessor of Lessee's commitment to pay for the repair of such damage without reimbursement from Lessor. Lessee shall provide Lessor with said funds or satisfactory assurance thereof within 30 days after making such commitment. In such event this Lease shall continue in full force and effect, arid Lessor shall proceed to make such repairs as soon as reasonably possible after the required funds are available. If Lessee does not make the required commitment, this Lease shall terminate as of the date specified in the termination notice.

9.4   Total Destruction. Notwithstanding any other provision hereof, if a Premises Total Destruction occurs, this Lease shall terminate 60 days following such Destruction. If the damage or destruction was caused by the gross negligence or willful misconduct of Lessee, Lessor shall have the right to recover Lessors damages from Lessee, except as provided in Paragraph 8.6.

 

 

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9.5   Damage Near End of Term. If at any time during the last 6 months of this Lease there is damage for which the cost to repair exceeds one month's Base Rent, whether or not an Insured Loss, Lessor may terminate this Lease effective 60 days following the date of occurrence of such damage by giving a written termination notice to Lessee within 30 days after the date of occurrence of such damage. Notwithstanding the foregoing, if Lessee at that time has an exercisable option to extend this Lease or to purchase the Premises, then Lessee may preserve this Lease by, (a) exercising such option and (b) providing Lessor with any shortage in insurance proceeds (or adequate assurance thereof) needed to make the repairs on or before the earlier of (i) the date which is 10 days after Lessee's receipt of Lessor's written notice purporting to terminate this Lease, or (ii) the day prior to the date upon which such option expires. If Lessee duly exercises such option during such period and provides Lessor with funds (or adequate assurance thereof) to cover any shortage in insurance proceeds, Lessor shall, at Lessors commercially reasonable expense, repair such damage as soon as reasonably possible and this Lease shall continue in full force and effect. If Lessee fails to exercise such option and provide such funds or assurance during such period, then this Lease shall terminate on the date specified in the termination notice and Lessee's option shall be extinguished.

9.6   Abatement of Rent; Lessee's Remedies.

(a)  Abatement. In the event of Premises Partial Damage or Premises Total Destruction or a Hazardous Substance Condition for which Lessee is not responsible under this Lease, the Rent payable by Lessee for the period required for the repair, remediation or restoration of such damage shall be abated in proportion to the degree to which Lessee's use of the Premises is impaired, but not to exceed the proceeds received from the Rental Value insurance. All other obligations of Lessee hereunder shall be performed by Lessee, and Lessor shall have no liability for any such damage, destruction, remediation, repair or restoration except as provided herein.

(b)  Remedies. If Lessor is obligated to repair or restore the Premises and does not commence, in a substantial and meaningful way, such repair or restoration within 90 days after such obligation shall accrue, Lessee may, at any time prior to the commencement of such repair or restoration, give written notice to Lessor and to any Lenders of which Lessee has actual notice, of Lessee's election to terminate this Lease on a date not less than 60 days following the giving of such notice. If Lessee gives such notice and such repair or restoration is not commenced within 30 days thereafter, this Lease shall terminate as of the date specified in said notice. If the repair or restoration is commenced within such 30 days, this Lease shall continue in full force and effect. "Commence" shall mean either the unconditional authorization of the preparation of the required plans, or the beginning of the actual work on the Premises, whichever first occurs.

9.7       Termination; Advance Payments. Upon termination of this Lease pursuant to Paragraph 6.2(g) or Paragraph 9, an equitable adjustment shall be made concerning advance Base Rent and any other advance payments made by Lessee to Lessor. Lessor shall, in addition, return to Lessee so much of Lessee's Security Deposit as has not been, or is not then required to be, used by Lessor.

 

10.         Real Property Taxes.

10.1       Definition. As used herein, the term "Real Property Taxes" shall include any form of assessment; real estate, general, special, ordinary or extraordinary, or rental levy or tax (other than inheritance, personal income or estate taxes); improvement bond; and/or license fee imposed upon or levied against any legal or equitable interest of Lessor in the Premises or the Project, Lessor's right to other income therefrom, and/or Lessor's business of leasing, by any authority having the direct or indirect power to tax and where the funds are generated with reference to the Building address. Real Property Taxes shall also include any tax, fee, levy, assessment or charge, or any increase therein: (i) imposed by reason of events occurring during the term of this Lease, including but not limited to, a change in the ownership of the Premises, and (ii) levied or assessed on machinery or equipment provided by Lessor to Lessee pursuant to this Lease.

 

 

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10.2       Payment of Taxes. In addition to Base Rent, Lessee shall pay to Lessor an amount equal to the Real Property Tax installment due at least 20 days prior to the applicable delinquency date. If any such installment shall cover any period of time prior to or after the expiration or termination of this Lease, Lessee's share of such installment shall be prorated. In the event Lessee incurs a late charge on any Rent payment, Lessor may estimate the current Real Property Taxes, and require that such taxes be paid in advance to Lessor by Lessee monthly in advance with the payment of the Base Rent. Such monthly payments shall be an amount equal to the amount of the estimated installment of taxes divided by the number of months remaining before the month in which said installment becomes delinquent. When the actual amount of the applicable tax bill is known, the amount of such equal monthly advance payments shall be adjusted as required to provide the funds needed to pay the applicable taxes. If the amount collected by Lessor is insufficient to pay such Real Property Taxes when due, Lessee shall pay Lessor, upon demand, such additional sum as is necessary. Advance payments may be intermingled with other moneys of Lessor and shall not bear interest. In the event of a Breach by Lessee in the performance of its obligations under this Lease, then any such advance payments may be treated by Lessor as an additional Security Deposit.

10.3       Joint Assessment. If the Premises are not separately assessed, Lessee's liability shall be an equitable proportion of the Real Property Taxes for all of the land and improvements included within the tax parcel assessed, such proportion to be conclusively determined by Lessor from the respective valuations assigned in the assessor's work sheets or such other information as may be reasonably available.

10.4       Personal Property Taxes. Lessee shall pay, prior to delinquency, all taxes assessed against and levied upon Lessee Owned Alterations, Utility Installations, Trade Fixtures, furnishings, equipment and all personal property of Lessee. When possible, Lessee shall cause its Lessee Owned Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all other personal property to be assessed and billed separately from the real property of Lessor. If any of Lessee's said property shall be assessed with Lessor's real property, Lessee shall pay Lessor the taxes attributable to Lessee's property within 10 days after receipt of a written statement setting forth the taxes applicable to Lessee's property.

 

11.         Utilities and Services. Lessee shall pay for all water, gas, heat, light, power, telephone, trash disposal and other utilities and services supplied to the Premises, together with any taxes thereon. If any such services are not separately metered or billed to Lessee, Lessee shall pay a reasonable proportion, to be determined by Lessor, of all charges jointly metered or billed. There shall be no abatement of rent and Lessor shall not be liable in any respect whatsoever for the inadequacy, stoppage, interruption or discontinuance of any utility or service due to riot, strike, labor dispute, breakdown, accident, repair or other cause beyond Lessor's reasonable control or in cooperation with governmental request or directions.

 

12.       Assignment and Subletting.

12.1     Lessor's Consent Required.

(a) Lessee shall not voluntarily or by operation of law assign, transfer, mortgage or encumber (collectively, "assign or assignment") or sublet ail or any part of Lessee's interest in this Lease or in the Premises without Lessor's prior written consent. Notwithstanding anything to the contrary contained herein, Lessor's consent shall not be required for an assignment or sublease to a Lessee Affiliate (as hereinafter defined). As used herein, "Affiliate' shall mean any entity (a) which owns and controls Lessee;(b) is owned and controlled by Lessee;(c) is owned and controlled by an entity described in (a);(d) with which Lessee may merge or consolidate; or (e) which acquires all or substantially all of the capital stock or assets of Lessee. Lessor acknowledges that as of the date hereof SR Energy Co., Ltd. is an Affiliate of Lessee and, accordingly, sublease to such Affiliate does not require Lessor's consent hereunder.

(a) Unless Lessee is a corporation and its stock is publicly traded on a national stock exchange, a change in the control of Lessee shall constitute an assignment requiring consent. The transfer, on a cumulative basis, of 25% or more of the voting control of Lessee shall constitute a change in control for this purpose.

 

 

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(b) The involvement of Lessee or its assets in any transaction, or series of transactions (by way of merger, sale, acquisition, financing, transfer, leveraged buy-out or otherwise), whether or not a formal assignment or hypothecation of this Lease or Lessee's assets occurs, which results or will result in a reduction of the Net Worth of Lessee by an amount greater than 25% of such Net Worth as it was represented at the time of the execution of this Lease or at the time of the most recent assignment to which Lessor has consented, or as it exists immediately prior to said transaction or transactions constituting such reduction, whichever was or is greater, shall be considered an assignment of this Lease to which Lessor may withhold its consent. "Net Worth of Lessee" shall mean the net worth of Lessee (excluding any guarantors) established under generally accepted accounting principles.

(c) An assignment or subletting without consent shall, at Lessor's option, be a Default curable after notice per Paragraph 13.1(d), or a noncurable Breach without the necessity of any notice and grace period. If Lessor elects to treat such unapproved assignment or subletting as a noncurable Breach, Lessor may either (i) terminate this Lease, or (ii) upon 30 days written notice, increase the monthly Base Rent to 110% of the Base Rent then in effect. Further, in the event of such Breath and rental adjustment, (i) the purchase price of any option to purchase the Premises held by Lessee shall be subject to similar adjustment to 110% of the price previously in effect, and (ii) all fixed and non-fixed rental adjustments scheduled during the remainder of the Lease term shall be increased to 110% of the scheduled adjusted rent.

(d)  Lessee's remedy for any breach of Paragraph 12.1 by Lessor shall be limited to compensatory damages and/or injunctive relief. If Lessor may reasonably withhold consent to a proposed assignment or subletting if Lessee is in Default at the time consent is requested.

(g) Notwithstanding the foregoing, allowing a de minimis portion of the Premises, ie. 20 square feet or less, to be used by a third party vendor in connection with the installation of a vending machine or payphone shall not constitute a subletting.

12.2 Terms and Conditions Applicable to Assignment and Subletting.

(a)  Regardless of Lessor's consent, no assignment or subletting shall: (i) be effective without the express written assumption by such assignee or sublessee of the obligations of Lessee under this Lease, (ii) release Lessee of any obligations hereunder, or (iii) alter the primary liability of Lessee for the payment of Rent or for the performance of any other obligations to be performed by Lessee.

(b)  Lessor may accept Rent or performance of Lessee's obligations from any person other than Lessee pending approval or disapproval of an assignment. Neither a delay in the approval or disapproval of such assignment nor the acceptance of Rent or performance shall constitute a waiver or estoppel of Lessor's right to exercise its remedies for Lessee's Default or Breach.

(c)   Lessor's consent to any assignment or subletting shall not constitute a consent to any subsequent assignment or subletting.

(d)  in the event of any Default or Breach by Lessee, Lessor may proceed directly against Lessee, any Guarantors or anyone ease responsible for the performance of Lessee's obligations under this Lease, including any assignee or sublessee, without first exhausting Lessor's remedies against any other person or entity responsible therefor to Lessor, or any security held by Lessor.

(e)  Each request for consent to an assignment or subletting shall be in writing, accompanied by information relevant to Lessor's determination as to the financial and operational responsibility and appropriateness of the proposed assignee or sublessee, including but not limited to the intended use and/or required modification of the Premises, if any, together with a fee of $500 as consideration for Lessors considering and processing said request. Lessee agrees to provide Lessor with such other or additional information and/or documentation as may be reasonably requested. (See also Paragraph 36)

(f)   Any assignee of, or sublessee under, this Lease shall, by reason of accepting such assignment, entering into such sublease, or entering into possession of the Premises or any portion thereof, be deemed to have assumed and agreed to conform and comply with each and every term, covenant, condition and obligation herein to be observed or performed by Lessee during the term of said assignment or sublease, other than such obligations as are contrary to or inconsistent with provisions of an assignment or sublease to which Lessor has specifically consented to in writing.

 

 

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(g)  Lessor's consent to any assignment or subletting shall not transfer to the assignee or sublessee any Option granted to the original Lessee by this Lease unless such transfer is specifically consented to by Lessor in writing. (See Paragraph 39.2).

12.3    Additional Terms and Conditions Applicable to Subletting. The following terms and conditions shall apply to any subletting by Lessee of all or any part of the Premises and shall be deemed included in all subleases under this Lease whether or not expressly incorporated therein:

(a)  Lessee hereby assigns and transfers to Lessor all of Lessee's interest in all Rent payable on any sublease, and Lessor may collect such Rent and apply same toward Lessee's obligations under this Lease; provided, however, that until a Breach shall occur in the performance of Lessee's obligations, Lessee may collect said Rent. In the event that the amount collected by Lessor exceeds Lessee's then outstanding obligations any such excess shall be refunded to Lessee. Lessor shall not, by reason of the foregoing or any assignment of such sublease, nor by reason of the collection of Rent, be deemed liable to the sublessee for any failure of Lessee to perform and comply with any of Lessee's obligations to such sublessee. Lessee hereby irrevocably authorizes and directs any such sublessee, upon receipt of a written notice from Lessor stating that a Breach exists in the performance of Lessee's obligations under this Lease, to pay to Lessor all Rent due and to become due under the sublease. Sublessee shall rely upon any such notice from Lessor and shall pay all Rents to Lessor without any obligation or right to inquire as to whether such Breath exists, notwithstanding any claim from Lessee to the contrary.

(b)  In the event of a Breach by Lessee, Lessor may, at its option, require sublessee to attom to Lessor, in which event Lessor shall undertake the obligations of the sublessor under such sublease from the time of the exercise of said option to the expiration of such sublease; provided, however, Lessor shall not be liable for any prepaid rents or security deposit paid by such sublessee to such sublessor or for any prior Defaults or Breathes of such sublessor.

(c)   Any matter requiring the consent of the sublessor under a sublease shall also require the consent of Lessor.

(d) No sublessee shall further assign or sublet all or any part of the Premises without Lessor's prior written consent.

(e) Lessor shall deliver a copy of any notice of Default or Breach by Lessee to the sublessee, who shall have the right to cure the Default of Lessee within the grace period, if any, specified in such notice. The sublessee shall have a right of reimbursement and offset from and against Lessee for any such Defaults cured by the sublessee.

 

13.       Default; Breach; Remedies.

13.1       Default; Breach. A "Default" is defined as a failure by the Lessee to comply with or perform any of the terms, covenants, conditions or Rules and Regulations under this Lease. A "Breach" is defined as the occurrence of one or more of the following Defaults, and the failure of Lessee to cure such Default within any applicable grace period:

(a)  The abandonment of the Premises; or the vacating of the Premises without providing a commercially reasonable level of security, or where the coverage of the property insurance described in Paragraph 8.3 is jeopardized as a result thereof, or without providing reasonable assurances to minimize potential vandalism.

(b)  The failure of Lessee to make any payment of Rent or any Security Deposit required to be made by Lessee hereunder, whether to Lessor or to a third party, when due, to provide reasonable evidence of insurance or surety bond, or to fulfill any obligation under this Lease which endangers or threatens life or property, where such failure continues for a period of 3 business days following written notice to Lessee. THE ACCEPTANCE BY LESSOR OF A PARTIAL PAYMENT OF RENT OR SECURITY DEPOSIT SHALL NOT CONSTITUTE A WAIVER OF ANY OF LESSOR'S RIGHTS, INCLUDING LESSOR'S RIGHT TO RECOVER POSSESSION OF THE PREMISES.

(c)  The failure of Lessee to allow Lessor and/or its agents access to the Premises or the commission of waste, act or acts constituting public or private nuisance, and/or an illegal activity on the Premises by Lessee, where such actions continue for a period of 3 business days following written notice to Lessee. In the event that Lessee commits waste, a nuisance or an illegal activity a second time then, the Lessor may elect to treat such conduct as a non-curable Breach rather than a Default.

 

 

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(d) The failure by Lessee to provide (iii) the rescission of an unauthorized assignment or subletting, (iv) an Estoppel Certificate or financial statements, (v) a requested subordination, (vi) evidence concerning any guaranty and/or Guarantor, (vii) any document requested under Paragraph 42, (viii) material safety data sheets (MSDS), or (ix) any other documentation or information which Lessor may reasonably require of Lessee under the terms of this Lease, where any such failure continues for a period of 10 days following written notice to Lessee.

(e) A Default by Lessee as to the terms, covenants, conditions or provisions of this Lease, or of the rules adopted under Paragraph 40 hereof, other than those described in subparagraphs 13.1(a), (b), (c) or (d), above, where such Default continues for a period of 30 days after written notice; provided, however, that if the nature of Lessee's Default is such that more than 30 days are reasonably required for its cure, then it shall not be deemed to be a Breach if Lessee commences such cure within said 30 day period and thereafter diligently prosecutes such cure to completion.

(f) The occurrence of any of the following events: (i) the making of any general arrangement or assignment for the benefit of creditors; (ii) becoming a "debtor" as defined in 11 U.S.C. §101 or any sum"-ssor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within 60 days); (iii) the appointment of a trustee or receiver to take possession of substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Lease, where possession is not restored to Lessee within 30 days; or (iv) the attachment, execution or other judicial seizure of substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Lease, where such seizure is not discharged within 30 days; provided, however, in the event that any provision of this subparagraph is contrary to any applicable law, such provision shall be of no force or effect, and not affect the validity of the remaining provisions.

(g) The discovery that any financial statement of Lessee or of any Guarantor given to Lessor was materially false.

(h) if the performance of Lessee's obligations under this Lease is guaranteed: (i) the death of a Guarantor, (ii) the termination of a Guarantor's liability with respect to this Lease other than in accordance with the terms of such guaranty, (iii) a Guarantor's becoming insolvent or the subject of a bankruptcy filing, (iv) a Guarantor's refusal to honor the guaranty, or (v) a Guarantor's breach of its guaranty obligation on an anticipatory basis, and Lessee's failure, within 60 days following written notice of any such event, to provide written alternative assurance or security, which, when coupled with the then existing resources of Lessee, equals or exceeds the combined financial resources of Lessee and the Guarantors that existed at the time of execution of this Lease.

13.2       Remedies. If Lessee fails to perform any of its affirmative duties or obligations, within 10 days after written notice (or in case of an emergency, without notice), Lessor may, at its option, perform such duty or obligation on Lessee's behalf, including but not limited to the obtaining of reasonably required bonds, insurance policies, or governmental licenses, permits or approvals. Lessee shall pay to Lessor an amount equal to 115% of the costs and expenses incurred by Lessor in such performance upon receipt of an invoice therefor. In the event of a Breach, Lessor may, with or without further notice or demand, and without limiting Lessor in the exercise of any right or remedy which Lessor may have by reason of such Breach:

(a) Terminate Lessee's right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession to Lessor, In such event Lessor shall be entitled to recover from Lessee: (i) the unpaid Rent which had been earned at the time of termination; (ii) the worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that the Lessee proves could have been reasonably avoided; (iii) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that the Lessee proves could be reasonably avoided; and (iv) any other amount necessary to compensate Lessor for all the detriment proximately caused by the Lessee's failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, including but not limited to the cost of recovering possession of the Premises, expenses of reletting, including necessary renovation and alteration of the Premises, reasonable attorneys' fees, and that portion of any leasing commission paid by Lessor in connection with this Lease applicable to the unexpired term of this Lease. The worth at the time of award of the amount referred to in provision (iii) of the immediately preceding sentence shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of the District within which the Premises are located at the time of award plus one percent. Efforts by Lessor to mitigate damages caused by Lessee's Breach of this Lease shall not waive Lessor's right to recover any damages to which Lessor is otherwise entitled. If termination of this Lease is obtained through the provisional remedy of unlawful detainer, Lessor shall have the right to recover in such proceeding any unpaid Rent and damages as are recoverable therein, or Lessor may reserve the right to recover all or any part thereof in a separate suit. If a notice and grace period required under Paragraph 13.1 was not previously given, a notice to pay rent or quit, or to perform or quit given to Lessee under the unlawful detainer statute shall also constitute the notice required by Paragraph 13.1. In such case, the applicable grace period required by Paragraph 13.1 and the unlawful detainer statute shall run concurrently, and the failure of Lessee to cure the Default within the greater of the two such grace periods shall constitute both an unlawful detainer and a Breach of this Lease entitling Lessor to the remedies provided for in this Lease and/or by said statute.

 

 

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(b)  Continue the Lease and Lessee's right to possession and recover the Rent as it becomes due, in which event Lessee may sublet or assign, subject only to reasonable limitations. Acts of maintenance, efforts to relet, and/or the appointment of a receiver to protect the Lessors interests, shall not constitute a termination of the Lessee's right to possession.

(c)   Pursue any other remedy now or hereafter available under the laws or judicial decisions of the state wherein the Premises are located. The expiration or termination of this Lease and/or the termination of Lessee's right to possession shall not relieve Lessee from liability under any indemnity provisions of this Lease as to matters occurring or accruing during the term hereof or by reason of Lessee's occupancy of the Premises.

13.3    Inducement Recapture. Any agreement for free or abated rent or other charges, the cost of tenant improvements for Lessee paid
for or performed by Lessor, or for the giving or paying by Lessor to or for Lessee of any cash or other bonus, inducement or consideration for Lessee's entering into this Lease, all of which concessions are hereinafter referred to as "Inducement Provisions," shall be deemed conditioned upon Lessee's full and faithful performance of all of the terms, covenants and conditions of this Lease. Upon Breach of this Lease by Lessee, any such Inducement Provision shall automatically be deemed deleted from this Lease and of no further force or effect, and any rent, other charge, bonus, inducement or consideration theretofore abated, given or paid by Lessor under such an inducement Provision shall be immediately due and payable by Lessee to Lessor, notwithstanding any subsequent cure of said Breach by Lessee. The acceptance by Lessor of rent or the cure of the Breach which initiated the operation of this paragraph shall not be deemed a waiver by Lessor of the provisions of this paragraph unless specifically so stated in writing by Lessor at the time of such acceptance.

13.4    Late Charges. Lessee hereby acknowledges that late payment by Lessee of Rent will cause Lessor to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed upon Lessor by any Lender. Accordingly, if any Rent shall not be received by Lessor within 5 days after such amount shall be due, then, without any requirement for notice to Lessee, Lessee shall immediately pay to Lessor a one-time late charge equal to 10% of each such overdue amount or $100, whichever is greater. The Parties hereby agree that such late charge represents a fair and reasonable estimate of the casts Lessor will incur by reason of such late payment. Acceptance of such late charge by Lessor shall in no event constitute a waiver of Lessee's Default or Breach with respect to such overdue amount, nor prevent the exercise of any of the other rights and remedies granted hereunder, In the event that a late charge is payable hereunder, whether or not collected, for 3 consecutive installments of Base Rent, then notwithstanding any provision of this Lease to the contrary, Base Rent shall, at Lessors option, become due and payable quarterly in advance.

13.5    Interest. Any monetary payment due Lessor hereunder, other than late charges, not received by Lessor, when due shall bear interest from the 31st day after it was due. The interest ("Interest") charged shall be computed at the rate of 10% per annum but shall not exceed the maximum rate allowed by law. Interest is payable in addition to the potential late charge provided for in Paragraph 13.4.

13.6   Breach by Lessor.

(a) Notice of Breach. Lessor shall not be deemed in breach of this Lease unless Lessor fails within a reasonable time to perform an obligation required to be performed by Lessor. For purposes of this Paragraph, a reasonable time shall in no event be less than 30 days after receipt by Lessor, and any Lender whose name and address shall have been furnished Lessee in writing for such purpose, of written notice specifying wherein such obligation of Lessor has not been performed; provided, however, that if the nature of Lessor's obligation is such that more than 30 days are reasonably required for its performance, then Lessor shall not be in breach if performance is commenced within such 30 day period and thereafter diligently pursued to completion.

(b) Performance by Lessee on Behalf of Lessor. In the event that neither Lessor nor Lender cures said breach within 30 days after receipt of said notice, or if having commenced said cure they do not diligently pursue it to completion, then Lessee may elect to cure said breach at Lessee's expense and offset from Rent the actual and reasonable cost to perform such cure, provided, however, that such offset shall not exceed an amount equal to the greater of one month's Base Rent or the Security Deposit, reserving Lessee's right to seek reimbursement from Lessor for any such expense in excess of such offset. Lessee shall document the cost of said cure and supply said documentation to Lessor.

 

 

 

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14.           Condemnation. If the Premises or any portion thereof are taken under the power of eminent domain or sold under the threat of the exercise of said power (collectively "Condemnation"), this Lease shall terminate as to the part taken as of the date the condemning authority takes title or possession, whichever first occurs. If more than 10% of the Building, or more than 25% of that portion of the Premises not occupied by any building, is taken by Condemnation, Lessee may, at Lessee's option, to be exercised in writing within 10 days after Lessor shall have given Lessee written notice of such taking (or in the absence of such notice, within 10 days after the condemning authority shall have taken possession) terminate this Lease as of the date the condemning authority takes such possession. If Lessee does not terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the portion of the Premises remaining, except that the Base Rent shall be reduced in proportion to the reduction in utility of the Premises caused by such Condemnation. Condemnation awards and/or payments shall be the property of Lessor, whether such award shall be made as compensation for diminution in value of the leasehold, the value of the part taken, or for severance damages; provided, however, that Lessee shall be entitled to any compensation paid by the condemnor for Lessee's relocation expenses, loss of business goodwill and/or Trade Fixtures, without regard to whether or not this Lease is terminated pursuant to the provisions of this Paragraph, All Alterations and Utility Installations made to the Premises by Lessee, for purposes of Condemnation only, shall be considered the property of the Lessee and Lessee shall be entitled to any and all compensation which is payable therefor. In the event that this Lease is not terminated by reason of the Condemnation, Lessor shall repair any damage to the Premises caused by such Condemnation.

 

16.       Estoppel Certificates.

(a)  Each Party (as "Responding Party") shall within 10 days after written notice from the other Party (the "Requesting Party") execute, acknowledge and deliver to the Requesting Party a statement in writing in form similar to the then most current "Estoppel Certificate" form published by the AIR Commercial Real Estate Association, plus such additional information, confirmation and/or statements as may be reasonably requested by the Requesting Party.

(b)  If the Responding Party shall fail to execute or deliver the Estoppel Certificate within such 10 day period, the Requesting Party may execute an Estoppel Certificate stating that: (i) the Lease is in full force and effect without modification except as may be represented by the Requesting Party, (ii) there are no uncured defaults in the Requesting Party's performance, and (iii) if Lessor is the Requesting Party, not more than one month's rent has been paid in advance. Prospective purchasers and encumbrancers may rely upon the Requesting Party's Estoppel Certificate, and the Responding Party shall be estopped from denying the truth of the facts contained in said Certificate. In addition, Lessee acknowledges that any failure on its part to provide such an Estoppel Certificate will expose Lessor to risks and potentially cause Lessor to incur costs not contemplated by this Lease, the extent of which will be extremely difficult to ascertain. Accordingly, should the Lessee fail to execute and/or deliver a requested Estoppel Certificate in a timely fashion the monthly Base Rent shall be automatically increased, without any requirement for notice to Lessee, by an amount equal to 10% of the then existing Base Rent or $100, whichever is greater for remainder of the Lease. The Parties agree that such increase in Base Rent represents fair and reasonable compensation for the additional risk/costs that Lessor will incur by reason of Lessee's failure to provide the Estoppel Certificate. Such increase in Base Rent shall in no event constitute a waiver of Lessee's Default or Breach with respect to the failure to provide the Estoppel Certificate nor prevent the exercise of any of the other rights and remedies granted hereunder.

(c) If Lessor desires to finance, refinance, or sell the Premises, or any part thereof, Lessee and all Guarantors shall within 10 days after written notice from Lessor deliver to any potential lender or purchaser designated by Lessor such financial statements as may be reasonably required by such lender or purchaser, including but not limited to Lessees financial statements for the past 3 years. All such financial statements shall be received by Lessor and such lender or purchaser in confidence and shall be used only for the purposes herein set forth.

 

17.       Definition of Lessor. The term "Lessor' as used herein shall mean the owner or owners at the time in question of the fee title to the Premises, or, if this is a sublease, of the Lessees interest in the prior lease in the event of a transfer of Lessors title or interest in the Premises or this Lease, Lessor shall deliver to the transferee or assignee (in cash or by credit) any unused Security Deposit held by Lessor. Upon such transfer or assignment and delivery of the Security Deposit, as aforesaid, the prior Lessor shall be relieved of all liability with respect to the obligations and/or covenants under this Lease thereafter to be performed by the Lessor. Subject to the foregoing, the obligations and/or covenants in this Lease to be performed by the Lessor shall be binding only upon the Lessor as hereinabove defined.

 

 

 

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18.        Severability. The invalidity of any provision of this Lease, as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof.

 

19.         Days. Unless otherwise specifically indicated to the contrary, the word "days' as used in this Lease shall mean and refer to calendar days.

 

20.         Limitation on Liability. The obligations of Lessor under this Lease shall not constitute personal obligations of Lessor or its partners, members, directors, officers or shareholders, and Lessee shall look to the Premises, and to no other assets of Lessor, for the satisfaction of any liability of Lessor with respect to this Lease, and shall not seek recourse against Lessor's partners, members, directors, officers or shareholders, or any of their personal assets for such satisfaction.

 

21.         Time of Essence. Time is of the essence with respect to the performance of all obligations to be performed or observed by the Parties under this Lease.

 

22.         No Prior or Other Agreements; Broker Disclaimer. This Lease contains all agreements between the Parties with respect to any matter mentioned herein, and no other prior or contemporaneous agreement or understanding shall be effective. Lessor and Lessee each represents and warrants to the Brokers that it has made, and is relying solely upon, its own investigation as to the nature, quality, character and financial responsibility of the other Party to this Lease and as to the use, nature, quality and character of the Premises. Brokers have no responsibility with respect thereto or with respect to any default or breach hereof by either Party.

 

23.        Notices.

23.1   Notice Requirements. All notices required or permitted by this Lease or applicable law shall be in writing and may be delivered in person (by hand or by courier) or may be sent by regular, certified or registered mail or U.S. Postal Service Express Mail, with postage prepaid, or by facsimile transmission, or by email, and shall be deemed sufficiently given if served in a manner specified in this Paragraph 23. The addresses noted adjacent to a Party's signature on this Lease shall be that Party's address for delivery or mailing of notices. Either Party may by written notice to the other specify a different address for notice, except that upon Lessee's taking possession of the Premises, the Premises shall constitute Lessee's address for notice. A copy of all notices to Lessor shall be concurrently transmitted to such party or parties at such addresses as Lessor may from time to time hereafter designate in writing.

23.2    Date of Notice. Any notice sent by registered or certified mail, return receipt requested, shall be deemed given on the date of delivery shown on the receipt card, or if no delivery date is shown, the postmark thereon. if sent by regular mail the notice shall be deemed given 72 hours after the same is addressed as required herein and mailed with postage prepaid. Notices delivered by United States Express Mail or overnight courier that guarantees next day delivery shall be deemed given 24 hours after delivery of the same to the Postal Service or couner. Notices delivered by hand, or transmitted by facsimile transmission or by email shall be deemed delivered upon actual receipt. If notice is received on a Saturday, Sunday or legal holiday, it shall be deemed received on the next business day.

 

24.        Waivers.

(a)       No waiver by Lessor of the Default or Breach of any term, covenant or condition hereof by Lessee, shall be deemed a waiver of any other term, covenant or condition hereof, or of any subsequent Default or Breach by Lessee of the same or of any other term, covenant or condition hereof. Lessor's consent to, or approval of, any act shall not be deemed to render unnecessary the obtaining of Lessor's consent to, or approval of, any subsequent or similar act by Lessee, or be construed as the basis of an estoppel to enforce the provision or provisions of this Lease requiring such consent.

(b)      The acceptance of Rent by Lessor shall not be a waiver of any Default or Breach by Lessee. Any payment by Lessee may be accepted by Lessor on account of moneys or damages due Lessor, notwithstanding any qualifying statements or conditions made by Lessee in connection therewith, which such statements and/or conditions shall be of no force or effect whatsoever unless specifically agreed to in writing by Lessor at or before the time of deposit of such payment.

(c)     THE PARTIES AGREE THAT THE TERMS OF THIS LEASE SHALL GOVERN WITH REGARD TO ALL MATTERS RELATED THERETO AND HEREBY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE TO THE EXTENT THAT SUCH STATUTE IS INCONSISTENT WITH THIS LEASE.

 

 

 

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25.    Disclosures Regarding The Nature of a Real Estate Agency Relationship.

(a)       When entering into a discussion with a real estate agent regarding a real estate transaction, a Lessor or Lessee should from the outset understand what type of agency relationship or representation it has with the agent or agents in the transaction. Lessor and Lessee acknowledge being advised by the Brokers in this transaction, as follows:

(i) Lessor's Agent. A Lessor's agent under a listing agreement with the Lessor acts as the agent for the Lessor only. A Lessor's agent or subagent has the following affirmative obligations: To the Lessor: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Lessor. To the Lessee and the Lessor: a. Diligent exercise of reasonable skills and care in performance of the agent's duties. b. A duty of honest and fair dealing and good faith. c. A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the Parties. An agent is not obligated to reveal to either Party any confidential information obtained from the other Party which does not involve the affirmative duties set forth above.

(ii) Lessee's Agent. An agent can agree to act as agent for the Lessee only. In these situations, the agent is not the Lessor's agent, even if by agreement the agent may receive compensation for services rendered, either in full or in part from the Lessor. An agent acting only for a Lessee has the following affirmative obligations. To the Lessee: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Lessee. To the Lessee and the Lessor: a. Diligent exercise of reasonable skills and care in performance of the agent's duties. b. A duty of honest and fair dealing and good faith. c. A duty-to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the Parties. An agent is not obligated to reveal to either Party any confidential information obtained from the other Party which does not involve the affirmative duties set forth above.

Agent Representing Both Lessor and Lessee. A real estate agent, either acting directly or through one or more associate licenses, can legally be the agent of both the Lessor and the Lessee in a transaction, but only with the knowledge and consent of both the Lessor and the Lessee. In a dual agency situation, the agent has the following affirmative obligations to both the Lessor and the Lessee: a. A fiduciary duty of utmost care, integrity, honesty and loyalty in the dealings with either Lessor or the Lessee. b. Other duties to the Lessor and the Lessee as stated above in subparagraphs (i) or (ii). In representing both Lessor and Lessee, the agent may not without the express permission of the respective Party, disclose to the other Party that the Lessor will accept rent in an amount less than that indicated in the listing or that the Lessee is willing to pay a higher rent than that offered. The above duties of the agent in a real estate transaction do not relieve a Lessor or Lessee from the responsibility to protect their own interests. Lessor and Lessee should carefully read all agreements to assure that they adequately express their understanding of the transaction. A real estate agent is a person qualified to advise about real estate. If legal or tax advice is desired, consult a competent professional.

(b)      Brokers have no responsibility with respect to any default or breach hereof by either Party. The Parties agree that no lawsuit or other legal proceeding involving any breach of duty, error or omission relating to this Lease may be brought against Broker more than one year after the Start Date and that the liability (including court costs and attorneys' fees), of any Broker with respect to any such lawsuit and/or legal proceeding shall not exceed the fee received by such Broker pursuant to this Lease; provided, however, that the foregoing limitation on each Broker's liability shall not be applicable to any gross negligence or willful misconduct of such Broker.

(c)        Lessor and Lessee agree to identify to Brokers as 'Confidential" any communication or information given Brokers that is considered by such Party to be confidential.

 

26.     No Right To Holdover. Lessee has no right to retain possession of the Premises or any part thereof beyond the expiration or termination of this Lease. In the event that Lessee holds over, then the Base Rent shall be increased to 150% of the Base Rent applicable immediately preceding the expiration or termination. Holdover Base Rent shall be calculated on monthly basis. Nothing contained herein shall be construed as consent by Lessor to any holding over by Lessee.

 

27.     Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.  

 

 

 

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28.      Covenants and Conditions; Construction of Agreement All provisions of this Lease to be observed or performed by Lessee are both covenants and conditions. in construing this Lease, all headings and titles are for the convenience of the Parties only and shall not be considered a part of this Lease. Whenever required by the context, the singular shall include the plural and vice versa. This Lease shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it.

 

29.       Binding Effect; Choice of Law. This Lease shall be binding upon the Parties, their personal representatives, successors and assigns and be governed by the laws of the State in which the Premises are located. Any litigation between the Parties hereto concerning this Lease shall be initiated in the county in which the Premises are located,

 

30.      Subordination; Attornment; Non-Disturbance.

30.1     Subordination. This Lease and any Option granted hereby shall be subject and subordinate to any ground lease, mortgage, deed
of trust, or other hypothecation or security device (collectively, "Security Device"), now or hereafter placed upon the Premises, to any and all advances made on the security thereof, and to all renewals, modifications, and extensions thereof. Lessee agrees that the holders of any such Security Devices (in this Lease together referred to as "Lender") shall have no liability or obligation to perform any of the obligations of Lessor under this Lease. Any Lender may elect to have this Lease and/or any Option granted hereby superior to the lien of its Security Device by giving written notice thereof to Lessee, whereupon this Lease and such Options shall be deemed prior to such Security Device, notwithstanding the relative dates of the documentation or recordation thereof.

30.2    Attornment In the event that Lessor transfers title to the Premises, or the Premises are acquired by another upon the foreclosure or termination of a Security Device to which this Lease is subordinated (i) Lessee shall, subject to the non-disturbance provisions of Paragraph 30.3, attom to such new owner, and upon request, enter into a new lease, containing all of the terms and provisions of this Lease, with such new owner far the remainder of the term hereof, or, at the election of the new owner, this Lease will automatically become a new lease between Lessee and such new owner, and (ii) Lessor shall thereafter be relieved of any further obligations hereunder and such new owner shall assume all of Lessor's obligations, except that such new owner shall not: (a) be liable for any act or omission of any prior lessor or with respect to events occurring prior to acquisition of ownership; (b) be subject to any offsets or defenses which Lessee might have against any prior lessor, (c) be bound by prepayment of more than one month's rent, or (d) be liable for the return of any security deposit paid to any prior lessor which was not paid or credited to such new owner.

30.3    Non-Disturbance. With respect to Security Devices entered into by Lessor after the execution of this Lease, Lessee's subordination of this Lease shall be subject to receiving a commercially reasonable non-disturbance agreement (a "Non-Disturbance Agreement") from the Lender which Non-Disturbance Agreement provides that Lessee's possession of the Premises, and this Lease, including any options to extend the term hereof, will not be disturbed so long as Lessee is not in Breach hereof and attorns to the record owner of the Premises. Further, within 60 days after the execution of this Lease, Lessor shall, if requested by Lessee, use its commercially reasonable efforts to obtain a Non-Disturbance Agreement from the holder of any pre-existing Security Device which is secured by the Premises. In the event that Lessor is unable to provide the Non-Disturbance Agreement within said 60 days, then Lessee may, at Lessee's option, directly contact Lender and attempt to negotiate for the execution and delivery of a Non-Disturbance Agreement.

30.4    Self-Executing. The agreements contained in this Paragraph 30 shall be effective without the execution of any further documents; provided, however, that, upon written request from Lessor or a Lender in connection with a sale, financing or refinancing of the Premises, Lessee and Lessor shall execute such further writings as may be reasonably required to separately document any subordination, attornment and/or Non-Disturbance Agreement provided for herein.

 

 

 

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31.       Attorneys' Fees. If any Party or Broker brings an action or proceeding involving the Premises whether founded in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys' fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding is pursued to decision or judgment. The term, "Prevailing Party" shall include, without limitation, a Party or Broker who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the other Party or Broker of its claim or defense. The attorneys' fees award shall not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse all attorneys' fees reasonably incurred. In addition, Lessor shall be entitled to attorneys' fees, costs and expenses incurred in the preparation and service of notices of Default and consultations in connection therewith, whether or not a legal action is subsequently commenced in connection with such Default or resulting Breach ($200 is a reasonable minimum per occurrence for such services and consultation).

 

32.        Lessor's Access; Showing Premises, Repairs. Lessor and Lessor's agents shall have the right to enter the Premises at any time, in the case of an emergency, and otherwise at reasonable times after reasonable prior notice for the purpose of showing the same to prospective purchasers, lenders, or tenants, and making such alterations, repairs, improvements or additions to the Premises as Lessor may deem necessary or desirable and the erecting, using and maintaining of utilities, services, pipes and conduits through the Premises and/or other premises as long as there is no material adverse effect to Lessee's use of the Premises. All such activities shall be without abatement of rent or liability to Lessee.

 

33.        Auctions. Lessee shall not conduct, nor permit to be conducted, any auction upon the Premises without Lessor's prior written consent. Lessor shall not be obligated to exercise any standard of reasonableness in determining whether to permit an auction.

 

34.       Signs. Lessor may place on the Premises ordinary "Far Sale" signs at any time and ordinary "For Lease" signs during the last 6 months of the term hereof.

 

35.       Termination; Merger. Unless specifically stated otherwise in writing by Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual termination or cancellation hereof, or a termination hereof by Lessor for Breach by Lessee, shall automatically terminate any sublease or lesser estate in the Premises; provided, however, that Lessor may elect to continue any one or all existing subtenancies. Lessor's failure within 10 days following any such event to elect to the contrary by written notice to the holder of any such lesser interest, shall constitute Lessor's election to have such event constitute the termination of such interest.

 

36.         Consents. All requests for consent shall be in writing. Except as otherwise provided herein, wherever in this Lease the consent of a Party is required to an act by or for the other Party, such consent shall not be unreasonably withheld or delayed. Lessor's actual reasonable costs and expenses (including but not limited to architects', attorneys', engineers' and other consultants' fees) incurred in the consideration of, or response to, a request by Lessee for any Lessor consent, including but not limited to consents to an assignment, a subletting or the presence or use of a Flazarclous Substance, shall be paid by Lessee upon receipt of an invoice and supporting documentation therefor Lessor's consent to any act, assignment or subletting shall not constitute an acknowledgment that no Default or Breach by Lessee of this Lease exists, nor shall such consent be deemed a waiver of any then existing Default or Breach, except as may be otherwise specifically stated in writing by Lessor at the time of such consent. The failure to specify herein any particular condition to Lessor's consent shall not preclude the imposition by Lessor at the time of consent of such further or other conditions as are then reasonable with reference to the particular matter for which consent is being given. In the event that either Party disagrees with any determination made by the other hereunder and reasonably requests the reasons for such determination, the determining party shall furnish its reasons in writing and in reasonable detail within 10 business days following such request.

 

37.       Guarantor.

37.1    Execution. The Guarantors, if any, shall each execute a guaranty in the form most recently published by the AIR Commercial Real Estate Association, and each such Guarantor shall have the same obligations as Lessee under this Lease.

37.2    Default. It shall constitute a Default of the Lessee if any Guarantor fails or refuses, upon request to provide: (a) evidence of the execution of the guaranty, including the authority of the party signing on Guarantor's behalf to obligate Guarantor, and in the case of a corporate Guarantor, a certified copy of a resolution of its board of directors authorizing the making of such guaranty, (b) current financial statements, (c) an Estoppel Certificate, or (d) written confirmation that the guaranty is still in effect.

 

 

 

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38.       Quiet Possession. Subject to payment by Lessee of the Rent and performance of all of the covenants, conditions and provisions on Lessee's part to be observed and performed under this Lease, Lessee shall have quiet possession and quiet enjoyment of the Premises during the term hereof.

 

39.       Options. If Lessee is granted any Option, as defined below, then the following provisions shall apply:

39.1    Definition. "Option" shall mean: (a) the right to extend or reduce the term of or renew this Lease or to extend or reduce the term of or renew any lease that Lessee has on other property of Lessor; (b) the right of first refusal or first offer to lease either the Premises or other property of Lessor, (c) the right to purchase, the right of first offer to purchase or the right of first refusal to purchase the Premises or other property of Lessor.

39.2    Options Personal To Original Lessee. Any Option granted to Lessee in this Lease is personal to the original Lessee, and cannot be assigned or exercised by anyone other than said original Lessee and only while the original Lessee is in full possession of the Premises and, if requested by Lessor, with Lessee certifying that Lessee has no intention of thereafter assigning or subletting.

39.3    Multiple Options. In the event that Lessee has any multiple Options to extend or renew this Lease, a later Option cannot be exercised unless the prior Options have been validly exercised.

39.4   Effect of Default on Options.

(a)   Lessee shall have no right to exercise an Option: (i) during the period commencing with the giving of any notice of Default and continuing until said Default is cured, (ii) during the period of time any Rent is unpaid (without regard to whether notice thereof is given Lessee), (iii) during the time Lessee is in Breach of this Lease, or (iv) in the event that Lessee has been given 3 or more notices of separate Default, whether or not the Defaults are cured, during the 12 month period immediately preceding the exercise of the Option.

(b)  The period of time within which an Option may be exercised shall not be extended or enlarged by reason of Lessee's inability to exercise an Option because of the provisions of Paragraph 39.4(a).

(c)   An Option shall terminate and be of no further force or effect, notwithstanding Lessee's due and timely exercise of the Option, if, after such exercise and prior to the commencement of the extended term or completion of the purchase, (i) Lessee fails to pay Rent for a period of 30 days after such Rent becomes due (without any necessity of Lessor to give notice thereof), or (ii) if Lessee commits a Breach of this Lease.

 

40.       Multiple Buildings. If the Premises are a part of a group of buildings controlled by Lessor, Lessee agrees that it will abide by and conform to all reasonable rules and regulations which Lessor may make from time to time for the management, safety, and care of said properties, including the care and cleanliness of the grounds and including the parking, loading and unloading of vehicles, and to cause its employees, suppliers, shippers, customers, contractors and invitees to so abide and conform. Lessee also agrees to pay its fair share of common expenses incurred in connection with such rules and regulations.

 

41.       Security Measures. Lessee hereby acknowledges that the Rent payable to Lessor hereunder does not include the cost of guard service or other security measures, and that Lessor shall have no obligation whatsoever to provide same. Lessee assumes all responsibility for the protection of the Premises, Lessee, its agents and invitees and their property from the acts of third parties.

 

42.      Reservations, Lessor reserves to itself the right, from time to time, to grant, without the consent or joinder of Lessee, such easements, rights and dedications that Lessor deems necessary, and to cause the recordation of parcel maps and restrictions, so long as such easements, rights, dedications, maps and restrictions do not unreasonably interfere with the use of the Premises by Lessee. Lessee agrees to sign any documents reasonably requested by Lessor to effectuate any such easement rights, dedication, map or restrictions.

 

 

 

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43.       Performance Under Protest. If at any time a dispute shall arise as to any amount or sum of money to be paid by one Party to the other under the provisions hereof, the Party against whom the obligation to pay the money is asserted shall have the right to make payment "under protest' and such payment shall not be regarded as a voluntary payment and there shall survive the right on the part of said Party to institute suit for recovery of such sum. If it shall be adjudged that there was no legal obligation on the part of said Party to pay such sum or any part thereof, said Party shall be entitled to recover such sum or so much thereof as it was not legally required to pay. A Party who does not initiate suit for the recovery of sums paid "under protest' with 6 months shall be deemed to have waived its right to protest such payment.

 

44.      Authority; Multiple Parties; Execution.

(a)       If either Party hereto is a corporation, trust, limited liability company, partnership, or similar entity, each individual executing this Lease on behalf of such entity represents and warrants that he or she is duly authorized to execute and deliver this Lease on its behalf. Each Party shall, within 30 days after request, deliver to the other Party satisfactory evidence of such authority.

(b)       If this Lease is executed by more than one person or entity as "Lessee", each such person or entity shall be jointly and severally liable hereunder. It is agreed that any one of the named Lessees shall be empowered to execute any amendment to this Lease, or other document ancillary thereto and bind all of the named Lessees, and Lessor may rely on the same as if ail of the named Lessees had executed such document.

(c) This Lease may be executed by the Parties in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.

 

45.     Conflict. Any conflict between the printed provisions of this Lease and typewritten or handwritten provisions shall be controlled by the typewritten or handwritten provisions.

 

46.      Offer. Preparation of this Lease by either Party or their agent and submission of same to the other Party shall not be deemed an offer to lease to the other Party. This Lease is not intended to be binding until executed and delivered by all Parties hereto.

 

47.       Amendments. This Lease may be modified only in writing, signed by the Parties in interest at the time of the modification. As long as they do not materially change Lessee's obligations hereunder, Lessee agrees to make such reasonable non-monetary modifications to this Lease as may be reasonably required by a Lender in connection with the obtaining of normal financing or refinancing of the Premises.

 

48.        Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING INVOLVING THE PROPERTY OR ARISING OUT OF THIS AGREEMENT.

 

49.       Arbitration of Disputes. An Addendum requiring the Arbitration of all disputes between the Parties andfor Brokers arising out of this Lease [_] is [X] is not attached to this Lease.

 

50.     Accessibility; Americans with Disabilities Act

(a)       The Premises:

 

[X] Have not undergone an inspection by a Certified Access Specialist (CASp). Note: A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law.

 

 

 

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[_] Have undergone an inspection by a Certified Access Specialist (CASp) and it was determined that the Premises did not meet all applicable construction-related accessibility standards pursuant to California Civil Code §55.51 et seq. Lessee acknowledges that it received a copy of the inspection report at least 48 hours prior to executing this Lease and agrees to keep such report confidential except as necessary to complete repairs and corrections of violations of construction related accessibility standards.

 

In the event that the Premises have been issued an inspection report by a CASp the Lessor shall provide a copy of the disability access inspection certificate to Lessee within 7 days of the execution of this Lease.

 

(b)      Since compliance with the Americans with Disabilities Act (ADA) and other state and local accessibility statutes are dependent upon Lessee's specific use of the Premises, Lessor makes no warranty or representation as to whether or not the Premises comply with ADA or any similar legislation. In the event that Lessee's use of the Premises requires modifications or additions to the Premises in order to be in compliance with ADA or other accessibility statutes, Lessee agrees to make any such necessary modifications and/or additions at Lessee's expense.

 

LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.

ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AIR COMMERCIAL REAL ESTATE ASSOCIATION OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:

1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.

2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PREMISES, THE STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, AND THE SUITABILITY OF THE PREMISES FOR LESSEE'S INTENDED USE.

WARNING: IF THE PREMISES IS LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN PROVISIONS OF THE LEASE MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OF THE STATE IN WHICH THE PREMISES IS LOCATED.

 

51.  This shall be a NNN lease whereby Lessee shall be responsible for paying all property taxes, insurance and maintenance costs forte Premises or, alternatively, reimbursing Lessor for same. NNN expenses shall be paid annually along with Lessee's rent and shall be estimated based on the previous year's amount if the exact amount due is unknown. (For reference purposes, the most recent annual insurance policy amount paid by Lessor was $8,326.20 and the real property taxes paid by Lessor was $17,760.94 (for fiscal year July 1, 2018 through June 30, 2019).]

52.  Rent payments provided at time of lease execution, or within 10 business days thereof, shall be non-refundable.

53.  Premises shall be provided in as-is condition. Lessee shall be solely responsible for all Tenant Improvements and related expenses.

54.  Lessee shall pay rent annually on or before the 1st of each year. The rent payable for 2021 shall be $180,000.00.

55.  Lessee's rent shall increase 3% annually commencing January 1, 2022. Rent amounts due on the lst of each year:

2022    $185,400.00

2023    $190,962.00

2024    $196,691.00

2025    $202,592.00

2026    $208,669.00

2027    $214,929.00

2028    $221,377.00

 

 

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2029    $228,019.00

2030    $234,859.00

2031    $241,905.00

2032    $249,162.00

2033    $256,637.00

2034    $264,335.00

2035    $272,266.00

2036    $280,434.00

2037    $288,847.00

2038    $297,513.00

2039    $30.5,43.008

2040    $315,631.00

2041    $325,100.00

2042    $334,853.00

2043    $344,899.00

2044    $355,246.00

2045    $365,903.00

2046    $376,880.00

2047    $388,186.00

2048    $399,832.00

2049    $411,827.00

 

56.  Option to Purchase: See addendum attached.

57.  Lessee shall take over responsibility for all utilities and shall become the responsible party for payment of any electric bills (i.e., PG&E) and other other utilities-related accounts, if applicable, serving the Premises as of the Commencement Date of the Early Possession Date, whichever is sooner.

 

The parties hereto have executed this Lease at the place and on the dates specified above their respective signatures.

 

Executed at: Newark CA

On: 9-16-2019

 

By LESSOR:   BY LESSEE:
AI Factory, LLC    
     
     
By: /s/ Stuart Millman                     By: /s/ Xiafeng Peng                    
Name: Stuart Millman   Name: Xiafeng Peng
    Title: CEO

 

 

 

 

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Dated: September 15, 2019

By and Between (Lessor) AI Factory, LLC

(Lessee) SPI Solar, Inc.

Address of Premises: 700 Center St.

Orange Cove, CA 93646

 

Paragraph 56

(a)        Lessor hereby grants to Lessee an option to purchase the Premises upon the terms and conditions herein set forth.

 

(b)        In order to exercise this option to purchase, Lessee must give written notice of the exercise of the option to Lessor during the period from September 15, 2019 to June 30, 2022 (the "Option Period"), time being of the essence. If such notice is not so given, this option shall automatically expire. At the same time the option is exercised, Lessee must deliver to Lessor a cashiers check in the amount of $250,000.00 payable to AI Factory, LLC as and for the Deposit referred to in paragraph 4.1 of the Standard Offer, Agreement and Escrow Instructions for the Purchase of Real Estate.

 

(c)         The provisions of paragraph 39, including those relating to Lessee's Default set forth in paragraph 39.4 of this Lease are conditions of this Option.

 

(d)         If Lessee elects to exercise this option to purchase as provided above, the transfer of title to Lessee shall occur on the close of escrow and until that time the terms of this Lease shall remain in full force and effect.

 

(e)         If Lessee elects to exercise this option to purchase, the purchase price to be paid by Lessee shall be $2,500,000.00 less any rent payments paid to Lessor on or before the date of written notice from Lessee to exercise the Option To Purchase and less the Deposit set forth in 56(b) above.

 

(f)             Within 10 days after this option to purchase is exercised, Lessor and Lessee shall give instructions to consummate the sale to SPI Solar, Inc. located at 700 Center St Orange Cove, CA 93646, who shall act as escrow holder, on the normal and usual escrow forms then used by such escrow holder, as follows:

 

 

 

 

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(i)         Escrow shall close 40 or ______________ days after the exercise of the option to purchase by Lessee;

 

(ii)        Lessor shall deposit the check referred to in paragraph (b) into escrow upon opening thereof, with the balance of the purchase price to be deposited into escrow no later than 2:00 RM. on the last business day prior to the expected dosing date;

 

(iii)       The parties agree to execute any additional instructions as are normal and usual;

 

(iv)       The balance of the terms and conditions of sale shall be as set forth in the AIR Commercial Real Estate Association "STANDARD OFFER, AGREEMENT AND ESCROW INSTRUCTIONS FOR THE PURCHASE OF REAL ESTATE", a copy of which is attached hereto, except for the following: and paragraphs 4.2; 5, 6; 9.1 a,b,c,d,e,h,j,k and I, and 20, which do not apply.

 

(g)       Either Lessor or Lessee shall, upon request of the other, execute, acknowledge and deliver to the other a short form memorandum of this Lease for recording purposes. The Party requesting recordation shall be responsible for payment of any fees applicable thereto.

 

(h)       In the event that this option to purchase is not exercised by Lessee in a timely fashion, the Lessee shall, upon request of Lessor, execute, acknowledge and deliver to Lessor a quit claim deed releasing Lessee's interest in such option. Lessor shall be responsible for the preparation of such deed and the payment of any fees applicable to the recording thereof.

 

WARNING:

 

LESSEE SHOULD NOT EXERCISE THIS OPTION UNTIL LESSEE HAS COMPLETED SUCH INVESTIGATION AS MAY BE APPROPRIATE, OBTAINED ANY NECESSARY FINANCING, AND IS OTHERWISE IN A POSITION TO COMPLETE SUCH PURCHASE.

 

 

 

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POWER OF ATTORNEY

 

1.           Al Factory, LLC, 8407 Central Ave Ste 1809, Newark CA 94560, hereby appoints Stuart Millman, Senior Vice President of Business Development of Smart Business Services, Inc. dba Idea Campus, to have power of attorney in fact, to act on its behalf to do and perform the following:

 

a Sign legal agreements on behalf of Al Factory, LLC.

b. Handle other corporate matters on behalf of, and/or when authorized by, the Managing Members of Al Factory, LLC.

 

2.           This Power of Attorney shall be effective only on September 16, 2019.

 

3.           This Power of Attorney shall terminate after September 16, 2019.

 

4.           This Power of Attorney shall be governed by the laws of the State of California

 

In Witness Whereof, this Power of Attorney is by Al Factory, LLC.

 

 

/s/ Kong Yu                                September 16, 2019

Kong Yu, Managing Member

AI Factory, LLC 

 

 

 

 

Agreed to and Accepted by:

 

 

/s/ Stuart Millman                  September 16, 2019

Stuart Millman

Senior Vice President of Business Development

Smart Business Services, Inc. dba Idea Campus


 

 

 

 

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Exhibit 5.56

 

AMENDMENT TO CONVERTIBLE PROMISSORY NOTE

 

This Amendment to Convertible Promissory Note (this “Amendment”) is entered into as of December 10, 2019, by and between ILIAD RESEARCH AND TRADING, L.P., a Utah limited partnership (“Lender”), and SPI ENERGY CO., LTD., a Cayman Islands corporation (“Borrower”). Capitalized terms used in this Amendment without definition shall have the meanings given to them in the Note (as defined below).

 

A.            Borrower previously issued to Lender a Convertible Promissory Note dated May 28, 2019 in the principal amount of $1,331,500.00 (the “Note”) pursuant to that certain Securities Purchase Agreement dated May 28, 2019 between Lender and Borrower (the “Purchase Agreement,” and together with the Note and all other documents entered into in conjunction therewith, the “Transaction Documents”).

 

B.            On December 2, 2019, Lender submitted a Redemption Notice to Borrower (the “December Redemption Notice”).

 

C.            Borrower has requested that Lender cancel the December Redemption Notice.

 

D.            Lender has agreed, subject to the terms, amendments, conditions and understandings expressed in this Amendment, to cancel the December Redemption Notice.

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

 

1.             Recitals. Each of the parties hereto acknowledges and agrees that the recitals set forth above in this Amendment are true and accurate and are hereby incorporated into and made a part of this Amendment.

 

2.             Redemptions. Lender hereby withdraws and cancels the December Redemption Notice. Lender also agrees not to submit any Redemption Notices to Borrower until January 1, 2020.

 

3.             Maximum Monthly Redemption Amount. Borrower agrees that for the months of January, February and March 2020, the maximum monthly amount that Lender may redeem will be increased from $200,000.00 to $300,000.00 (the “Maximum Monthly Redemption Amount”). Any portion of the Maximum Monthly Redemption Amount that is not redeemed in a given month will be carried forward into the following month or months. For illustration purposes only, if Lender were to redeem $200,000.00 of the Note in each of January and February 2020, then Lender could redeem up to $500,000.00 in March 2020. For the avoidance of doubt, redemptions may still be satisfied in either cash or Redemption Conversion Shares in accordance with the terms of the Note.

 

4.             Representations and Warranties. In order to induce Lender to enter into this Amendment, Borrower, for itself, and for its affiliates, successors and assigns, hereby acknowledges, represents, warrants and agrees as follows:

 

a.                Borrower has full power and authority to enter into this Amendment and to incur and perform all obligations and covenants contained herein, all of which have been duly authorized by all proper and necessary action. No consent, approval, filing or registration with or notice to any governmental authority is required as a condition to the validity of this Amendment or the performance of any of the obligations of Borrower hereunder.

 

b.               There is no fact known to Borrower or which should be known to Borrower which Borrower has not disclosed to Lender on or prior to the date of this Amendment which would or could materially and adversely affect the understanding of Lender expressed in this Amendment or any representation, warranty, or recital contained in this Amendment.

 

c.                Except as expressly set forth in this Amendment, Borrower acknowledges and agrees that neither the execution and delivery of this Amendment nor any of the terms, provisions, covenants, or agreements contained in this Amendment shall in any manner release, impair, lessen, modify, waive, or otherwise affect the liability and obligations of Borrower under the terms of the Transaction Documents.

 

 

 

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d.               Borrower has no defenses, affirmative or otherwise, rights of setoff, rights of recoupment, claims, counterclaims, actions or causes of action of any kind or nature whatsoever against Lender, directly or indirectly, arising out of, based upon, or in any manner connected with, the transactions contemplated hereby, whether known or unknown, which occurred, existed, was taken, permitted, or begun prior to the execution of this Amendment and occurred, existed, was taken, permitted or begun in accordance with, pursuant to, or by virtue of any of the terms or conditions of the Transaction Documents. To the extent any such defenses, affirmative or otherwise, rights of setoff, rights of recoupment, claims, counterclaims, actions or causes of action exist or existed, such defenses, rights, claims, counterclaims, actions and causes of action are hereby waived, discharged and released. Borrower hereby acknowledges and agrees that the execution of this Amendment by Lender shall not constitute an acknowledgment of or admission by Lender of the existence of any claims or of liability for any matter or precedent upon which any claim or liability may be asserted.

 

e.                Borrower represents and warrants that as of the date hereof no Events of Default or other material breaches exist under the Transaction Documents or have occurred prior to the date hereof.

 

5.               Certain Acknowledgments. Each of the parties acknowledges and agrees that no property or cash consideration of any kind whatsoever has been or shall be given by Lender to Borrower in connection with this Amendment.

 

6.               Other Terms Unchanged. The Note, as amended by this Amendment, remains and continues in full force and effect, constitutes legal, valid, and binding obligations of each of the parties, and is in all respects agreed to, ratified, and confirmed. Any reference to the Note after the date of this Amendment is deemed to be a reference to the Note as amended by this Amendment. If there is a conflict between the terms of this Amendment and the Note, the terms of this Amendment shall control. No forbearance or waiver may be implied by this Amendment.Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate as a waiver of, or as an amendment to, any right, power, or remedy of Lender under the Note, as in effect prior to the date hereof.

 

7.               No Reliance. Borrower acknowledges and agrees that neither Lender nor any of its officers, directors, members, managers, equity holders, representatives or agents has made any representations or warranties to Borrower or any of its agents, representatives, officers, directors, or employees except as expressly set forth in this Amendment and the Transaction Documents and, in making its decision to enter into the transactions contemplated by this Amendment, Borrower is not relying on any representation, warranty, covenant or promise of Lender or its officers, directors, members, managers, equity holders, agents or representatives other than as set forth in this Amendment.

 

8.               Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. The parties hereto confirm that any electronic copy of another party’s executed counterpart of this Amendment (or such party’s signature page thereof) will be deemed to be an executed original thereof.

 

9.               Further Assurances. Each party shall do and perform or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Amendment and the consummation of the transactions contemplated hereby.

 

[Remainder of page intentionally left blank]

 

 

 

 

 

 

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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date set forth above.

 

  BORROWER:
   
  SPI ENERGY CO., LTD.
   
   
  By: __________________
  Name: ________________
  Title:_________________
   
   
   
   

 

LENDER
   
  ILIAD RESEARCH AND TRADING, L.P.
   
  By: Iliad Management, LLC, its General Partner
   
  By: Fife Trading, Inc., its Manager
   
  By: /s/ John M. Fife
         John M. Fife, President

 

 

[Signature page to Amendment to Convertible Promissory Note]

 

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Exhibit 8.1

 

Subsidiaries Place of Incorporation Percentage of Ownership
Opal USA Inc. US 100%
SolarJuice USA Inc. US 100%
1215542 B.C. LTD. Canada 100%
Knight AG Holding Co., Ltd.
(Cayman)
Cayman 100%
Knight Holding Corporation US 100%
Knight AG Sourcing Inc. US 100%
CBD and Hemp Group Co.,Ltd. US 100%
Jollyfarming Inc. US 100%
Solar Juice Holding Pte. Ltd Singapore 100%
Solar Juice (SG) Pte. Ltd Singapore 100%
Solar Juice (MY) SDN. BHD Malaysia 100%
Sinsin Renewable Investment Limited (Malta) Malta 100%
Astraios Energy SA Greece 100%
Jasper PV Makedonia SA Greece 100%
Photovoltaica Parka Veroia 1 Malta Limited Malta 100%
Photovoltaica Parka Veroia I AE Greece 100%
Veltimo Ltd(Cyprus) Cyprus 100%
Orion Energy SA Greece 100%
SPI HELLAS Greece 100%
Thelmico Limited  Cyprus 100%

Exhibit 99.2

 

SPI ENERGY CO., LTD.

 

CHARTER OF THE AUDIT COMMITTEE

 

Purpose and Policy

 

The primary purpose of the Audit Committee (the “Committee”) shall be to act on behalf of the Board of Directors (the “Board”) of SPI Energy Co., Ltd. (the “Company”), in fulfilling the Board’s oversight responsibilities with respect to the Company’s corporate accounting and financial reporting processes, the systems of internal control over financial reporting, and audits of financial statements, as well as the quality and integrity of the Company’s financial statements and reports and the qualifications, independence and performance of the registered public accounting firm or firms engaged as the Company’s independent outside auditors for the purpose of preparing or issuing an audit report or performing other audit, review or attest services (the “Auditors”). The Committee shall also provide oversight assistance in connection with the Company’s legal, regulatory and ethical compliance programs as established by management and the Board. The operation of the Committee shall be subject to the Bylaws of the Company as in effect from time to time.

 

The policy of the Committee, in discharging these obligations, shall be to maintain and foster an open avenue of communication among the Committee, the Auditors and the Company’s financial management.

 

Composition

 

The Committee shall consist of at least three members of the Board. Each of the members of the Committee shall satisfy the independence requirements of the Securities and Exchange Commission (“SEC”) and stock exchange rules and regulations applicable to Committee members as in effect from time to time. At least one member shall qualify as an “Audit Committee Financial Expert” as defined in Item 407(d)(5)(ii) of Regulation S-K under the Securities Act of 1933, as amended, and shall otherwise satisfy the applicable stock exchange financial sophistication requirements as in effect from time to time. Members of the Committee may only receive director and committee member fees as compensation from the Company. The members of the Committee shall be appointed by and serve at the discretion of the Board. Vacancies occurring on the Committee shall be filled by the Board. The Chairman of the Committee shall be appointed by the Board.

 

Meetings and Minutes

 

The Committee shall meet on at least a quarterly basis. Minutes of each meeting of the Committee shall be prepared and distributed to each director of the Company and the Secretary of the Company. The Chairman of the Committee shall report to the Board from time to time, or whenever so requested by the Board.

 

Authority

 

The Committee shall have authority to appoint, determine compensation for, and at the Company’s expense, retain and oversee the Auditors as set forth in Section 10A(m)(2) of the Securities Exchange Act of 1934, as amended, and the rules thereunder and otherwise to fulfill its responsibilities under this charter. The Committee shall have authority to retain and determine compensation for, at the expense of the Company, special legal, accounting or other advisors or consultants as it deems necessary or appropriate in the performance of its duties. The Committee shall also have authority to pay, at the expense of the Company, ordinary administrative expenses that, as determined by the Committee, are necessary or appropriate in carrying out its duties. Each member of the Committee shall have full access to all books, records, facilities and personnel of the Company as deemed necessary or appropriate by any member of the Committee to discharge his or her responsibilities hereunder. The Committee shall have authority to require that any of the Company’s personnel, counsel, accountants (including the Auditors) or investment bankers, or any other consultant or advisor to the Company attend any meeting of the Committee or meet with any member of the Committee or any of its special outside legal, accounting or other advisors or consultants. The approval of this Charter by the Board shall be construed as a delegation of authority to the Committee with respect to the responsibilities set forth herein.

 

 

 

 

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Responsibilities

 

The Committee shall oversee the Company’s financial reporting process on behalf of the Board, and shall have direct responsibility for the appointment, compensation, retention and oversight of the work of the Auditors and any other registered public accounting firm engaged for the purpose of performing other review or attest services for the Company. The Auditors and each such other registered public accounting firm shall report directly and be accountable to the Committee. The Committee’s functions and procedures should remain flexible to address most effectively changing circumstances. To implement the Committee’s purpose and policy, the Committee shall be charged with the following functions and processes with the understanding, however, that the Committee may supplement or (except as otherwise required by applicable laws or rules) deviate from these activities as appropriate under the circumstances:

 

1.                  Evaluation and Retention of Auditors. To evaluate the performance of the Auditors, including the lead partner, to assess their qualifications (including their internal quality-control procedures and any material issues raised by that firm’s most recent internal quality-control review or any investigations by regulatory authorities) and to determine whether to retain or to terminate the engagement of the existing Auditors or to appoint and engage a different independent registered public accounting firm, which retention shall be subject only to ratification by the Company’s stockholders (if the Committee or the Board elects to submit such retention for ratification by the stockholders).

 

2.                  Communication Prior to Engagement. Prior to engagement of any prospective Auditors, to review a written disclosure by the prospective Auditors of all relationships between the prospective Auditors, or their affiliates, and the Company, or persons in financial oversight roles at the Company, that may reasonably be thought to bear on independence, and to discuss with the prospective Auditors the potential effects of such relationships on the independence of the prospective Auditors, consistent with Ethics and Independence Rule 3526, Communication with Audit Committees Concerning Independence (“Rule 3526”), of the Public Company Accounting Oversight Board (United States) (the “PCAOB”).

 

3.                  Approval of Audit Engagements. To determine and approve engagements of the Auditors, prior to commencement of such engagements, to perform all proposed audit, review and attest services, including the scope of and plans for the audit, the adequacy of staffing, the compensation to be paid, at the Company’s expense, to the Auditors and the negotiation and execution, on behalf of the Company, of the Auditors’ engagement letters, which approval may be pursuant to preapproval policies and procedures established by the Committee consistent with applicable laws and rules, including the delegation of preapproval authority to one or more Committee members so long as any such preapproval decisions are presented to the full Committee at the next scheduled meeting.

 

4.                  Approval of Non-Audit Services. To determine and approve engagements of the Auditors, prior to commencement of such engagements (unless in compliance with exceptions available under applicable laws and rules related to immaterial aggregate amounts of services), to perform any proposed permissible non-audit services, including the scope of the service and the compensation to be paid therefor, at the Company’s expense, which approval may be pursuant to preapproval policies and procedures established by the Committee consistent with applicable laws and rules, including the delegation of preapproval authority to one or more Committee members so long as any such preapproval decisions are presented to the full Committee at the next scheduled meeting.

 

5.                  Auditor Independence. At least annually, consistent with Rule 3526, to receive and review written disclosures from the Auditors delineating all relationships between the Auditors, or their affiliates, and the Company, or persons in financial oversight roles at the Company, that may reasonably be thought to bear on independence and a letter from the Auditors affirming their independence, to consider and discuss with the Auditors any potential effects of any such relationships on the independence of the Auditors as well as any compensation or services that could affect the Auditors’ objectivity and independence, and to assess and otherwise take appropriate action to oversee the independence of the Auditors.

 

6.                  Former Employees of Auditor. To consider and, if deemed appropriate, adopt clear policies regarding Committee preapproval of employment by the Company of individuals employed or formerly employed by the Auditors and engaged on the Company’s account.

 

 

 

 

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7.                  Audited Financial Statement Review. To review, upon completion of the audit, the financial statements proposed to be included in the Company’s Registration Statements and Annual Report on Form 10-K to be filed with the SEC and to recommend whether or not such financial statements should be so included.

 

8.                  Annual Audit Results. To review with management and the Auditors, the results of the annual audit, including the Auditors’ assessment of the quality, not just acceptability, of the Company’s accounting principles and practices, the Auditors’ views about qualitative aspects of the Company’s significant accounting practices, the reasonableness of significant judgments and estimates (including material changes in estimates), all known and likely misstatements identified during the audit (other than those the Auditors believe to be trivial), the adequacy of the disclosures in the financial statements and any other matters required to be communicated to the Committee by the Auditors under the standards of the PCAOB.

 

9.                  Auditor Communications. At least annually, to discuss with the Auditors the matters required to be discussed by Statement on Auditing Standards No. 61, as amended (AICPA, Professional Standards, vol. 12. AU section 380), as adopted by the PCAOB in Rule 3200T (including any successor rule adopted by the PCAOB).

 

10.               Quarterly Results. To review and discuss with management and the Auditors, as appropriate, the results of the Auditors’ review of the Company’s quarterly financial statements, prior to public disclosure of quarterly financial information, if practicable, or filing with the SEC of the Company’s Quarterly Report on Form 10-Q, and any other matters required to be communicated to the Committee by the Auditors under generally accepted auditing standards, including standards of the PCAOB, as appropriate.

 

11.               Management’s Discussion and Analysis. To review and discuss with management and the Auditors, as appropriate, the Company’s disclosures contained under the caption “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in its periodic reports to be filed with the SEC.

 

12.               Accounting Principles and Policies. To review with management and the Auditors, as appropriate, significant issues that arise regarding accounting principles and financial statement presentation, including critical accounting policies and practices, alternative accounting policies available under generally accepted accounting principles (“GAAP”) related to material items discussed with management, the potential impact on the Company’s financial statements of off-balance sheet structures and any other significant reporting issues and judgments, significant regulatory, legal and accounting initiatives or developments that may have a material impact on the Company’s financial statements, compliance programs and policies if, in the judgment of the Committee, such review is necessary or appropriate.

 

13.                Risk Assessment and Management. To review and discuss with management and, as appropriate, the Auditors the Company’s guidelines and policies with respect to risk assessment and risk management, including the Company’s major financial risk exposures and the steps taken by management to monitor and control these exposures; and to review and discuss with management insurance programs, including director and officer insurance, product liability insurance and general liability insurance (but excluding compensation and benefits-related insurance).

 

14.               Management Cooperation with Audit. To evaluate the cooperation received by the Auditors during their audit examination, including a review with the Auditors of any significant difficulties encountered during the audit or any restrictions on the scope of their activities or access to required records, data and information and, whether or not resolved, significant disagreements with management and management’s response, if any.

 

15.               Management Letters. To review and discuss with the Auditors and, if appropriate, management, any management or internal control letter issued or, to the extent practicable, proposed to be issued by the Auditors and management’s response, if any, to such letter, as well as any additional material written communications between the Auditors and management.

 

16.               National Office Communications. To review and discuss with the Auditors, as appropriate, communications between the audit team and the Auditors’ national office with respect to accounting or auditing issues presented by the engagement.

 

 

 

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17.               Disagreements Between Auditors and Management. To review with management and the Auditors, or any other registered public accounting firm engaged to perform review or attest services, any conflicts or disagreements between management and the Auditors, or such other accounting firm, whether or not resolved, regarding financial reporting, accounting practices or policies or other matters, that individually or in the aggregate could be significant to the Company’s financial statements or the Auditors’ report, and to resolve any conflicts or disagreements regarding financial reporting.

 

18.               Internal Control Over Financial Reporting. To confer with management and the Auditors, as appropriate, regarding the scope, adequacy and effectiveness of internal control over financial reporting including significant deficiencies or material weaknesses identified by the Auditors. To review with the management and the Auditors any fraud, whether or not material, that includes management or other employees who have any significant role in the Company’s internal control over financial reporting and any significant changes in internal controls or other factors that could significantly affect internal controls, including any corrective actions in regard to significant deficiencies or material weaknesses.

 

19.               Separate Sessions. Periodically, to meet in separate sessions with the Auditors, as appropriate, and management to discuss any matters that the Committee, the Auditors or management believe should be discussed privately with the Committee.

 

20.               Correspondence with Regulators. To consider and review with management, the Auditors, outside counsel, as appropriate, and any special counsel, separate accounting firm or other consultants and advisors as the Committee deems appropriate, any correspondence with regulators or governmental agencies and any published reports that raise material issues regarding the Company’s financial statements or accounting policies.

 

21.               Complaint Procedures. To establish procedures, when and as required by applicable laws and rules, for the receipt, retention and treatment of complaints received by the Company regarding accounting, internal accounting controls or auditing matters and the confidential and anonymous submission by employees of concerns regarding questionable accounting or auditing matters, and to establish such procedures as the Committee may deem appropriate for the receipt, retention and treatment of complaints received by the Company with respect to any other matters that may be directed to the Committee for review and assessment.

 

22.               Ethical Compliance; Compliance with Legal and Regulatory Requirements. To review the results of management’s efforts to monitor compliance with the Company’s programs and policies designed to ensure adherence to applicable laws and rules, as well as to its Code of Business Conduct and Ethics, as amended from time to time, and regarding legal matters and compliance with legal and regulatory requirements that may have a material effect on the Company’s business, financial statements or compliance policies, including any material reports or inquiries from regulatory or governmental agencies.

 

23.               Related-Person Transactions. To review and provide oversight of related-person transactions, as required by stock exchange rules and regulations.

 

24.               Engagement of Registered Public Accounting Firms. To determine and approve engagements of any registered public accounting firm (in addition to the Auditors), prior to commencement of such engagements, to perform any other review or attest service, including the compensation to be paid, at the Company’s expense, to such firm and the negotiation and execution, on behalf of the Company, of such firm’s engagement letter, which approval may be pursuant to preapproval policies and procedures, including the delegation of preapproval authority to one or more Committee members, so long as any such preapproval decisions are presented to the full Committee at the next scheduled meeting.

 

25.               Investment Policy. To review, on a periodic basis, as appropriate, the Company’s investment policy and recommend to the Board any changes to the investment policy.

 

26.               Investigations. To investigate any matter brought to the attention of the Committee within the scope of its duties if, in the judgment of the Committee, such investigation is necessary or appropriate.

 

 

 

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27.               Proxy Report. To prepare the report of the Committee required by the rules of the SEC to be included in the Company’s annual proxy statement.

 

28.               Annual Charter Review. To review and assess the adequacy of this charter annually and recommend any proposed changes to the Board for approval.

 

29.               Report to Board. To report to the Board with respect to material issues that arise regarding the quality or integrity of the Company’s financial statements, the Company’s compliance with legal or regulatory requirements, the performance or independence of the Auditors or such other matters as the Committee deems appropriate from time to time or whenever it shall be called upon to do so.

 

30.               Annual Committee Evaluation. To conduct an annual evaluation of the performance of the Committee.

 

31.               General Authority. To perform such other functions and to have such powers as may be necessary or appropriate in the efficient and lawful discharge of the foregoing.

 

It shall be the responsibility of management to prepare the Company’s financial statements and periodic reports and the responsibility of the Auditors to audit those financial statements. These functions shall not be the responsibility of the Committee, nor shall it be the Committee’s responsibility to ensure that the financial statements or periodic reports are complete and accurate, conform to GAAP or otherwise comply with applicable laws.

 

Adopted: ___________, [2019]

 

 

 

 

 

 

 

 

 

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Exhibit 99.3

 

COMPENSATION COMMITTEE CHARTER

OF
       

SPI ENERGY CO., LTD.

 

Purpose of the Committee

 

The purposes of the Compensation Committee (the “Committee”) of the Board of Directors (the “Board”) of SPI Energy Co., Ltd. (the “Company”) shall be to oversee the Company’s compensation and employee benefit plans and practices, including its executive, director and other incentive and equity-based compensation plans and to review and prepare any disclosures required to be made by the Company in its periodic filings with the Securities and Exchange Commission (“SEC”) pursuant to the rules and regulations of the SEC.

 

This Charter is intended as a tool within which the Board, assisted by its committees, directs the affairs of the Company. While it should be interpreted in the context of all applicable laws, regulations and listing requirements, as well as in the context of the Company’s charter and bylaws (“Governing Documents”), it is not intended to establish by its own force any legally binding obligations.

 

Composition of the Committee

 

The members of the Committee shall be appointed by the Board. The Board may designate one member of the Committee as its Chairperson and in the absence of any such designation by the Board, the Committee shall designate by majority vote of the full Committee one member of the Committee as its Chairperson. Vacancies on the Committee shall be filled by majority vote of the Board at the next meeting of the Board following the occurrence of the vacancy or by written consent of the Board. No member of the Committee shall be removed except by majority vote of the Board. The Board may remove any member from the Committee at any time with or without cause.

 

The Committee shall be comprised of at least three directors, each of whom (i) meets the independence requirements established by the Board and applicable laws, regulations and listing requirements, (ii) is a “non-employee director” within the meaning of Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended (“Exchange Act”), and (iii) is an “outside director” within the meaning of Section 162(m) of the Internal Revenue Code of 1986, as amended. Each member shall also be free of any relationship that, in the judgment of the Board, would interfere with the exercise of his or her independent judgment.

 

Meetings and Procedures of the Committee

 

The Committee may fix its own rules of procedure, which shall be consistent with the Governing Documents. The Committee shall meet at least annually, or more frequently as circumstances require. The Chairperson of the Committee or a majority of the members of the Committee may also call a special meeting of the Committee. A majority of the members of the Committee present in person or by means of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other shall constitute a quorum. Any action required or permitted to be taken at any meeting of the Committee may be taken without a meeting, if all members of the Committee consent thereto in writing, and the writing or writings are filled with the minutes of proceedings of the Committee.

 

 

 

 

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The Committee may request that any directors, officers or employees of the Company, or other persons whose advice and counsel are sought by the Committee, attend any meeting of the Committee to provide such pertinent information as the Committee requests. The Company’s Chief Executive Officer (“CEO”) shall not attend the portion of any meeting where the CEO’s performance or compensation are discussed.

 

The Compensation Committee shall report to the Board on Committee findings, recommendations and other matters the Committee deems appropriate or the Board requests. The Committee shall keep written minutes of its meetings, which minutes shall be maintained with the books and records of the Company.

 

Delegation of Authority

 

The Committee may form subcommittees for any purpose that the Committee deems appropriate and may delegate to such subcommittees such power and authority as the Committee deems appropriate; provided, however, that the Committee shall not delegate to a subcommittee any power or authority required by any law, regulation or listing standard to be exercised by the Committee as a whole.

 

The Committee may also delegate to one or more executive officers of the Company the authority to make grants of equity-based compensation to eligible individuals who are not executive officers. Any executive officer to whom the Committee grants such authority shall regularly report to the Committee grants so made and the Committee may revoke any delegation of authority at any time.

 

Committee Responsibilities

 

The primary responsibilities of the Committee shall be to:

 

· Ensure that the Company’s executive compensation programs are designed to enable it to recruit, retain and motivate a large group of talented and diverse domestic and international executives.
· Ensure that the Company’s executive compensation programs are appropriately competitive, support organization objectives and stockholder interests, and ensure executive compensation is adequately designed to align the interests of executive officers with the long-term performance of the Company.
· Review and report to the Board for its consideration any cash incentive compensation plans, option plans or other equity based plans that provide for payment in the Company’s stock or are based on the value of the Company’s stock, subject to any approvals required by the stockholders of the Company.
· Oversee all employee benefit plans and programs of the Company, its subsidiaries and divisions, including the authority to adopt, amend and terminate such plans and programs (unless approval by the Board or stockholders is required by law).
· Review and approve annual corporate goals and objectives relevant to the CEO’s compensation; evaluate the CEO’s performance in light of those goals and objectives; and recommend for approval by the independent members of the Board, the CEO’s compensation level based on this evaluation.
· Evaluate and recommend for Board approval, on an annual basis, the individual elements of total compensation for the executive officers (within the meaning of Section 16 of the Exchange Act), other than the CEO, and other key executives.
· Evaluate and recommend for Board Approval any mandatory stock ownership guidelines.
· Review the compensation paid to non-employee directors and make recommendations to the Board for any adjustments.
· Make all approvals necessary under Section 16, Section 162(m) and other regulatory provisions.
· Review and discuss with management any disclosures on the Company’s compensation policies and practices that are required to be included in any periodic filings with the SEC.
· Annually assess and report to the Board on the performance and effectiveness of the Committee.
· Review this Charter on an annual basis, update it as appropriate, and submit it for the approval of the Board when updated.
· Undertake such other responsibilities or tasks as the Board may delegate or assign to the Committee from time to time.

 

 

 

 

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Investigations and Studies; Outside Advisers

 

The Committee may conduct or authorize investigations into or studies of matters within the Committee’s scope of responsibilities, and may retain, at the Company’s expense, such independent legal counsel or other consultants or advisers as it deems necessary and appropriate, including compensation consultants to advise the Committee with respect to amounts or forms of executive or director compensation, and may rely on the integrity and advice of any such counsel or other advisers. It is the Committee’s intention that any compensation consultant engaged to advise the Committee with respect to executive and director compensation will not engage in work for the Company that is unrelated to executive and director compensation advisory services without prior approval of the Committee Chairperson.

 

The Committee shall be directly responsible for the appointment, compensation and oversight of the work of any such compensation consultant, legal counsel and other adviser retained by the Committee. The Company shall provide for appropriate funding, as determined by the compensation committee, for payment of reasonable compensation to a compensation consultant, legal counsel or any other adviser retained by the compensation committee. The Committee shall have sole authority to approve related fees and retention terms.

 

The Committee may select, or receive advice from, a compensation consultant, legal counsel or other adviser to the Committee, other than in-house legal counsel, only after taking into consideration the following factors:

 

· the provision of other services to the Company by the person that employs the compensation consultant, legal counsel or other adviser;

 

· the amount of fees received from the Company by the person that employs the compensation consultant, legal counsel or other adviser, as a percentage of the total revenue of the person that employs the compensation consultant, legal counsel or other adviser;

 

· the policies and procedures of the person that employs the compensation consultant, legal counsel or other adviser that are designed to prevent conflicts of interest;

 

· any business or personal relationship of the compensation consultant, legal counsel or other adviser with a member of the Committee;

 

· any stock of the Company owned by the compensation consultant, legal counsel or other adviser; and

 

· any business or personal relationship of the compensation consultant, legal counsel, other adviser or the person employing the adviser with a member of senior management.

 

Notwithstanding the foregoing, the Committee is not required to conduct an independence assessment for a compensation adviser that acts in a role limited to the following activities for which no disclosure is required under Item 407(e)(3)(iii) of Regulation S-K promulgated by the SEC: (a) consulting on any broad-based plan that does not discriminate in scope, terms, or operation, in favor of Executive Officers or directors of the Company, and that is available generally to all salaried employees; and/or (b) providing information that either is not customized for the Company or that is customized based on parameters that are not developed by the adviser, and about which the adviser does not provide advice.

 

Adopted: __________, [2019]

 

 

  3  

 

 

Exhibit 99.4

 

CHARTER OF

NOMINATING AND CORPORATE GOVERNANCE COMMITTEE
OF THE BOARD OF DIRECTORS OF
SPI ENERGY CO., LTD.

Purpose

 

The Corporate Governance and Nominating Committee (“Committee”) is a committee of the Board of Directors (the “Board”) of SPI Energy Co., Ltd. (the “Company”), established to help ensure that the Board is properly constituted to meet its fiduciary obligations to stockholders and the Company and that the Company has and follows appropriate corporate governance practices and standards.

 

Committee Membership

 

· The Committee shall be comprised of no fewer than two (2) members.
· The members of the Committee shall satisfy the independence requirements of the stock exchange rules and regulations applicable to Committee members as in effect from time to time, as well as any independence and other requirements of the Securities and Exchange Commission and other applicable laws.
· The Committee members shall be appointed by and serve at the discretions of the Board.
· The Board shall designate one member of the Committee as its chairperson.

 

Meetings and Procedures

 

· The Committee will set its own schedule of meetings and will meet at least twice per year, with the option of holding additional meetings at such times as it deems necessary or appropriate. The Committee will maintain written minutes of its meetings, which minutes will be filed with the minutes of the meetings of the Board, and shall report on its meetings to the Board and any action taken or approved by the Committee.
· The Committee may form subcommittees for any purpose that the Committee deems appropriate and may delegate to such subcommittees such power and authority as the Committee deems appropriate. The Committee shall not delegate to a subcommittee any power or authority required by law, regulation or listing standard to be exercised by the Committee as a whole.
· Members of the Committee may not receive any compensation from the Company except the fees that they receive for service as a member of the Board or any committee thereof.

 

Authority and Responsibilities

 

To the extent it deems necessary or appropriate, the Committee shall perform the following:

 

Board Composition, Evaluation and Nominating Activities

 

· Evaluate the current composition, organization and governance of the Board and its committees, determine future requirements and make recommendations to the Board for approval.
· Review periodically the policy and procedures for considering stockholder nominees for election to the Board.
· Recommend for approval by the Board on an annual basis desired qualifications and characteristics for Board membership and with corresponding attributes.
· Search for, identify, evaluate and recommend for the selection by the Board, candidates to fill new positions or vacancies on the Board, and review any candidates recommended by stockholders.
· Evaluate the performance of individual members of the Board eligible for re-election, and recommend for the selection by the Board, the director nominees for election to the Board at the annual meeting of stockholders.
· Evaluate the independence of directors and director nominees against the independence requirements of the stock exchange rules and regulations and SEC rules and other applicable requirements.
· Evaluate director compensation, consulting with outside consultants and/or management, when appropriate, and make recommendations to the Board regarding director compensation.

 

 

 

 

  1  
 

 

Board Committees

 

· Review periodically the composition of each committee of the Board, the need for additional committees, or changes in mandate or dissolution of existing committees, and make recommendations to the Board accordingly.
· Recommend to the Board persons to be members and chairpersons of the various committees.

 

Corporate Governance Generally

 

· Develop and recommend to the Board a set of corporate governance principles and practices.
· Review annually the Company’s corporate governance principles and practices, the Company’s compliance with these principles and practices, and recommend changes, as appropriate.
· Oversee the Company’s communications and relations with stockholders.
· Oversee the evaluation of the Company’s management.
· Oversee, review and report to Board regarding the Company’s succession planning for the Board, senior management and other key employees.
· Periodically review and reassess the adequacy and scope this Charter and the Committee’s established processes and procedures and recommend any proposed changes to the Board for approval.
· Oversee the Board’s performance and self-evaluation process, including conducting surveys of director observations, suggestions and preferences regarding how effectively the Board operates.
· Oversee compliance by the Board and its committees with applicable laws and regulations, including the stock exchange rules and regulations and SEC rules and regulations.
· Review annually the performance of the Committee.

 

Conflicts of Interest

 

· Review and monitor the Company’s Code of Ethics.
· Consider questions of possible conflicts of interest of members of the Board and of corporate officers and review actual or potential conflicts of interest or related party transactions involving members of the Board or officers of the Company, and make determinations accordingly.

 

In performing its responsibilities, the Committee shall have the authority to hire and obtain advice, reports or opinions from internal or external counsel and expert advisors, including search firms, and to set the terms and fees for any such counsel and advisors.

 

Adopted: ____________, [2019]

 

 

 

 

 

  2  

Exhibit 12.1

 

Certification by the Chief Executive Officer
Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

 

I, Xiaofeng Peng, certify that:

 

1.     I have reviewed this annual report on Form 20-F of SPI Energy Co., Ltd. (the “Company”);

 

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 Company as of, and for, the periods presented in this report;

 

4.     The Company’s other certifying officer(s) 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 Company 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 Company, 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 Company’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 Company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting; and

 

5.     The Company’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Company’s auditors and the audit committee of the Company’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 Company’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 Company’s internal control over financial reporting.

 

Date: June 29, 2020

 

By:/s/ Xiaofeng Peng                               
Name: Xiaofeng Peng
Title: Chief Executive Officer
(Principal Executive, Financial and Accounting Officer)

 

 

 

Exhibit 13.1

 

Certification by the Chief Executive Officer
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

In connection with this annual report on Form 20-F of SPI Energy Co., Ltd. (the “Company”) for the fiscal year ended December 31, 2019 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Xiaofeng Peng, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:

 

(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.

 

Date: June 29, 2020

 

By: /s/ Xiaofeng Peng                                          
Name: Xiaofeng Peng
Title: Chief Executive Officer
(Principal Executive, Financial and Accounting Officer)

Exhibit 15.1

 

 

 

 

Independent Registered Public Accounting Firm’s Consent

 

 

We consent to the incorporation by reference in the Registration Statement of SPI Energy Co., Ltd. on Form S-8 (FILE NO. 333-203917) and its Post-Effective Amendment No. 1 of our report dated June 29, 2020, which includes an explanatory paragraph as to the Company’s ability to continue as a going concern with respect to our audits of the consolidated financial statements of SPI Energy Co., Ltd. as of December 31, 2019 and 2018 and for the years ended December 31, 2019, 2018 and 2017, which report is included in this Annual Report on Form 20-F of SPI Energy Co., Ltd. for the year ended December 31, 2019.

 

Our report on the consolidated financial statements refers to a change in the method of accounting for leases effective January 1, 2019 due to the adoption of Accounting Standards Codification (“ASC”) Topic 842, Lease (“Topic 842”).

 

/s/ Marcum Bernstein & Pinchuk LLP

 

Marcum Bernstein & Pinchuk LLP

Beijing, China

June 29, 2020