ALCE Alternus Clean Energy Inc

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

 

Date of Report (Date of earliest event reported): December 11, 2024

 

ALTERNUS CLEAN ENERGY, INC.

(Exact name of registrant as specified in its charter)

 

Delaware		001-41306		87-1431377
(State or other jurisdiction of Incorporation)		(Commission File Number)		(IRS Employer Identification Number)

 

17 State Street, Suite 4000 New York, NY		10004
(Address of registrant’s principal executive office)		(Zip code)

 

(212) 739-0727

(Registrant’s telephone number, including area code)

 

N/A

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading symbol(s)		Name of each exchange on which registered
Common Stock, par value $0.0001 per share		ALCE		The Nasdaq Stock Market LLC

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ☒

 

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

 

 

 

Item 1.01. Entry into a Material Definitive Agreement.

 

On December 11, 2024, BESS LLC, a Delaware limited liability company and wholly owned subsidiary of Alternus Clean Energy, Inc. (the “Company”), entered into an asset purchase agreement (the “APA”) with LiiON LLC (“LiiON”) a U.S.-based expert in advanced energy storage solutions, and closed the acquisition of certain assets of LiiON, including its customer base, service agreements and intellectual property.

 

As consideration, the Company paid a total consideration of $5 million in the form of debt and equity. Under the said definitive agreements, the total consideration was in the form of a note payable and common stock, whereby: (i) BESS issued a $2 million non-convertible loan note, payable over three years to LiiON, (ii) the Company issued 250,000 restricted shares of common stock of the Company, reflecting an underlying share price of $12.00 per common stock, and (iii) BESS entered into an exclusive consulting agreement for LiiOn’s services. The compensation provided herein may be adjusted on the two-year anniversary of the closing of the said transaction, based upon any agreed upon performance criteria. The Company believes that closing of this acquisition will immediately improve Company’s stockholder equity by approximately $3 million, expand its customer base and be accretive to revenues and gross margins.

  

The foregoing description of the APA and Exclusive Consulting Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Promissory Note, the APA, and the Consulting Agreement, a copy of which is filed as Exhibit 4.1, 10.1 and 10.2, respectively, to this Current Report on Form 8-K and which is incorporated by reference herein in its entirety.

 

Item 2.01. Completion of Acquisition or Disposition of Assets.

 

The information provided in Item 1.01 is hereby incorporated by reference.

 

Item 7.01 Regulation FD Disclosure.

 

On December 12, 2024, the Company issued a press release announcing the closing of the acquisition described in Item 1.01 above. A copy of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K.

 

The information contained in this Item 7.01, and in Exhibit 99.1, referenced herein is being furnished and shall not be deemed to be “filed” for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any registration statement or other filing under the Securities Act of 1933, as amended, unless the Company expressly so incorporates such information by reference.

 

Forward Looking Statements

 

All statements contained in this Current Report on Form 8-K other than statements of historical facts, including any information on the Company’s plans or future financial or operating performance and other statements that express the Company’s management’s expectations or estimates of future performance, constitute forward-looking statements. Forward-looking statements may be identified by the use of words such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “possible,” “potential,” “predict,” “project,” “should,” “would” and similar expressions, as they relate to the Company or its management team. Such forward-looking statements are based on the beliefs of management, as well as assumptions made by, and information currently available to, the Company’s management. Such statements are based on a number of estimates and assumptions that are subject to significant business, economic and competitive uncertainties, many of which are beyond the control of the Company. The Company cautions that such forward-looking statements involve known and unknown risks and other factors that may cause the actual financial results, performance or achievements of the Company to differ materially from the Company’s estimated future results, performance or achievements expressed or implied by the forward-looking statements. These statements should not be relied upon as representing the Company’s assessments of any date after the date of this Current Report on Form 8-K. The Company undertakes no obligation to update these statements for revisions or changes after the date of this release, except as required by law.

 

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit No.		Description
4.1		Promissory Note, dated December 11, 2024
10.1		Asset Purchase Agreement, by and among BESS LLC and LiiON LLC dated December 11, 2024
10.2		Exclusive Consulting Agreement Form
99.1		Press Release issued on December 12 2024
104		Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

 

SIGNATURES

 

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

 

Date: December 12, 2024	ALTERNUS CLEAN ENERGY, INC.
	By:	/s/ Vincent Browne
	Name:	Vincent Browne
	Title:	Chief Executive Officer, Interim Chief Financial Officer and Chairman of the Board of Directors

 

 

2

 

Exhibit 4.1

 

BESS LLC

PROMISSORY NOTE

 

 

Issue Date: December 11, 2024		Principal Amount:		US$ 2,000,000
Maturity Date: December 31, 2027

 

FOR VALUE RECEIVED, BESS LLC, a Delaware corporation (the “Company”), promises to repay to the order of LiiON LLC, a Nevada limited liability company (the “Payee”), at the office of the Payee or at such other place as Payee may designate in writing, the principal sum of Two Million US Dollars (US$2,000,000) (the “Principal Amount”) on the terms set forth below. All payments hereunder shall be made in United States Dollars. This Promissory Note (this “Note”) is issued pursuant to an Asset Purchase Agreement, executed on the Issue Date, by and between the Company and the Holder (the “Purchase Agreement”). Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Purchase Agreement.

 

1. Definitions.

 

The following terms shall have the meanings herein specified:

 

“Holder” / “Lender” means the Payee, and each endorsee, pledgee, assignee, owner and holder of this Note, as such; and any consent, waiver or agreement in writing by the then Holder with respect to any matter or thing in connection with this Note, whether altering any provision hereof or otherwise, shall bind all subsequent Holders. Notwithstanding the foregoing, the Company may treat the registered holder of this Note as the Holder for all purposes.

 

Words of one gender include the other gender; the singular includes the plural; and the plural includes the singular, unless the context otherwise requires.

 

2. Payment, Interest and Repayment Instruction of this Note

 

(a)

Payment Schedule. The amounts as set forth on the attached Payment Schedule shall be repaid by the Company by no later than the relevant dates as set forth in the attached Payment Schedule. It is hereby acknowledged and agreed by the Company and the Holder that a total of $42,019 has already been repaid by the Company to Holder or its third party designee parties as of the Issue Date.

 

(b)

Prepayment. This Note may be prepaid in part or in full at any time prior to the Maturity Date.

 

(c)

Interest. The outstanding principal amount of this Note shall not bear any interest.

 

 

3. Events of Default.

 

The existence of any of the following conditions shall constitute an Event of Default:

 

(a)

Non-payment of the Note in accordance with Section 2(a) of the Note, to the extent that such breach remains unpaid and uncured for thirty days thereafter.

 

(b)

Commencement of proceedings under any bankruptcy or insolvency law or other law for the reorganization, arrangement, composition or similar relief or aid of debtors or creditors of the Company if such proceeding remains undismissed and unstayed for a period of 60 days following such commencement.

 

(c)

If the Company shall dissolve, liquidate or wind up its affairs or sell substantially all of its assets, unless the provisions of Section 4 of this Note are met, in which case there is no Event of Default.

 

(d)

Attachment or similar process of execution is levied against a material portion of AEG PLC’s assets and such process is not terminated and any orders issued pursuant thereto canceled within 90 calendar days.

 

If an Event of Default exists, at any time thereafter, the Holder may proceed to collect the remaining outstanding principal amount owed.

 

4. Reorganization, Reclassification, Consolidation, Merger or Sale.

 

If any reorganization of the corporate capital of the Company, or any consolidation or merger of the Company with another corporation, or the sale of all or substantially all of its assets to another corporation shall be effected, appropriate provisions shall be made with respect to the rights and interests of the Holder of this Note to the end that this Note shall be fully assumed. The Company will not effect any such consolidation, merger or sale unless, prior to or simultaneously with the consummation thereof, the Note is fully assumed.

 

5. Loss or Mutilation of Note.

 

Upon receipt by the Company of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Note, together with an indemnity reasonably satisfactory to the Company, in the case of loss, theft, or destruction, or the surrender and cancellation of this Note, in the case of mutilation, the Company shall execute and deliver to the Holder a new Note of like tenor and denomination as this Note.

 

6. Holder not Shareholder.

 

This Note does not confer upon the Holder any right to vote or to consent or to receive notice as a shareholder of the Company in respect of any matters whatsoever, or any other rights or liabilities as a shareholder.

 

7. Waivers.

 

The failure of Holder to enforce at any time any of the provisions of this Note shall not, absent an express written waiver signed by Holder specifying the provision being waived, be construed to be a waiver of any such provision, nor in any way to affect the validity of this Note or any part hereof or the right of Holder thereafter to enforce each and every such provision. No waiver of any breach of this Note shall be held to be a waiver of any other or subsequent breach. The Company waives presentment, demand, notice of dishonor, protest and notice of non-payment and protest.

 

8. Taxes.

 

The Company agrees that it will pay, when due and payable, any and all stamp, original issue or similar taxes which may be payable in respect of the issue of this Note. The Company shall not be required to pay any stamp, original issue or similar tax which may be payable in respect of any transfer involved in the transfer and delivery of this Note to a person other than of the Payee.

 

 

9. Notices.

 

All notices or other communications to a party required or permitted hereunder shall be in writing and shall be delivered personally or by facsimile or electronic transmission (receipt confirmed electronically) to such party (or, in the case of an entity, to an executive officer of such party) or shall be sent by a reputable express delivery service or by certified mail, postage prepaid with return receipt requested, addressed as follows:

 

if to Payee to:

LiiON LLC

3233 Brookside Court

Tarpon Springs, FL 34688

 

if to the Company to:

BESS LLC

Attn: Director

17 State Street, Suite 4000, New York, NY 10004

Email: vb@alternusenergy.com; td@alternusenergy.com

 

Any party may change the above specified recipient and/or mailing address by notice to all other parties given in the manner herein prescribed. All notices shall be deemed given on the day when actually delivered as provided above (if delivered personally or by facsimile or email, provided that any such facsimile or email is received during regular business hours at the recipient’s location) or on the day shown on the return receipt (if delivered by mail or delivery service).

 

10. Headings.

 

The titles and headings to the Sections herein are inserted for the convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Note. This Note shall be construed without regard to any presumption or other rule requiring construction hereof against the party causing this Note to be drafted.

 

11. Applicable Law and Jurisdiction.

 

This Note (and any non-contractual obligations arising out of or in connection with this Note) shall be governed by and construed in accordance with the laws of Delaware. All disputes arising out of or in connection with this Note and the documents connected therewith shall exclusively be settled by the courts of Delaware. The Company and the Holder each hereby waive any objection to such exclusive jurisdiction and courts represents an inconvenient forum.

 

12. Survival Of Representations and Warranties; Attorneys Fee.

 

This Note shall inure to the benefit of and be binding upon the successors and assigns of each of the parties hereto. If this Note is not paid when due or if the Company breaches any provisions of this Note, in addition to all other amounts due herein, the Company promises to pay all costs of collection and all reasonable attorney fees and court costs incurred by Holder.

 

13. Assignment.

 

This Note may not be assigned by either party hereto without the prior written consent of the other (except that the Company may without the prior written consent of the Holder assign this Note in the event of a merger, acquisition, reorganization or the sale of all or substantially all of its assets to another corporation to the surviving entity of such merger, acquisition, reorganization or sale).

 

*** Signature Page Follows ***

 

 

IN WITNESS WHEREOF, BESS LLC has caused this Promissory Note to be signed in its name by signature of its duly authorized representative.

 

	Name: Vincent Browne
	Title: Director
	Acknowledged and Agreed:
	HOLDER: LIION LLC
	By:
		Name:	Gary Gray
		Title:	Sole Member/Manager

 

 

Exhibit 10.1 

 

ASSET PURCHASE AGREEMENT

 

by and between

 

BESS LLC

 

(“ACQUIROR”)

 

and

 

LiiON LLC

 

(“LiiON”)

 

DATED DECEMBER 11, 2024

 

 

ASSET PURCHASE AGREEMENT

 

THIS ASSET PURCHASE AGREEMENT, dated as of December 11, 2024, is made and entered into by and between BESS LLC, a Delaware company (“Acquiror”) and a wholly owned subsidiary of Alternus Clean Energy, Inc. (“Parent”), and LiiON LLC, a private company limited by shares and incorporated in the State of Nevada (“LiiON”).

 

RECITALS:

 

WHEREAS, upon and subject to the terms and conditions set forth herein, LIION proposes to sell to Acquiror, and Acquiror proposes to purchase, certain assets related to the Battery Storage Business and as described in Section 2.1 of the Agreement (the “Assets”), in exchange for the issuance to LIION of a promissory note in the principal amount of $2,000,000 (the “Note”) and Two Hundred Fifty Thousand (250,000) shares of Parent’s restricted common stock, as described in Section 3.1 of the Agreement.

 

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants, agreements and conditions set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, each Party hereby agrees as follows:

 

Article I
Definitions

 

Section 1.1 Certain Definitions. The following terms, as used herein, have the meanings set forth below:

 

“Affiliate” of any specified Person means any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such specified Person.

 

“Agreement” means this Asset Purchase Agreement, as amended from time to time.

 

“Acquired Contracts” means those Contracts detailed at Schedule 4.5 relating to the Battery Storage Business to which LIION is a party.

 

“Business Day” means any day except Saturday, Sunday or any day on which banks in the United States are generally not open for business.

 

“Closing Date” means the date on which the Closing occurs.

 

 

“Confidential Information” means any data or information (including trade secrets), without regard to form, regarding (for example and including) (a) business process models; (b) proprietary software; (c) research, development, products, services, marketing, selling, business plans, budgets, unpublished financial statements, licenses, prices, costs, Contracts, suppliers, customers, and customer lists; (d) the identity, skills and compensation of employees, contractors, and consultants; (e) specialized training; and (f) discoveries, developments, trade secrets, processes, formulas, data, lists, and all other works of authorship, mask works, ideas, concepts, know-how, designs, and techniques, whether or not any of the foregoing is or are patentable, copyrightable, or registrable under any intellectual property Laws or industrial property Laws in the United States or elsewhere. Notwithstanding the foregoing, no data or information constitutes “Confidential Information” if such data or information is publicly known and in the public domain through means that do not involve a breach by the Party who is under an obligation of confidentiality or under any covenant or obligation set forth in this Agreement.

 

“Contract” means any contract, sub-contract, agreement, lease, sublease, license, commitment, sale and purchase order, note, loan agreement or any other instrument, arrangement, or understanding of any kind, whether written or oral, and whether express or implied.

 

“Control” means, when used with respect to any specified Person, the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by Contract or otherwise.

 

“Key People” means those three persons who are listed on Schedule 4.7.

 

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

“LIION Ancillary Documents” means any certificate, agreement, document or other instrument, other than this Agreement, required to be executed and delivered by LIION in connection with Closing or any other of the transactions contemplated hereby.

 

“Indemnified Parties” means LIION or the Acquiror, as applicable, and their respective Affiliates, officers, directors, employees, agents and representatives and the heirs, executors, successors and assigns of any of the foregoing.

 

“Governmental Entity” means any (a) nation, state, commonwealth, county, city, town, village, district, or other jurisdiction of any nature, (b) federal, state, local, municipal, foreign, or other government, (c) federal, state, local or foreign governmental or quasi-governmental authority of any nature (including any agency, branch, department, board, commission, court or tribunal), (d) multi-national or supra-national organization or body, (e) body exercising, or entitled or purporting to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power, including any court or arbitrator, (f) self-regulatory organization or (g) official of any of the foregoing.

 

“Intellectual Property” means any or all of the following and all rights, arising out of or associated therewith: (a) all patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof; (b) all inventions (whether patentable or not), invention disclosures, improvements, proprietary information, know-how, technology, technical data and customer lists, and all documentation relating to any of the foregoing; (c) all copyrights, copyright registrations and applications therefor, and all other rights corresponding thereto; (d) all industrial designs and any registrations and applications therefor; (e) all internet uniform resource locators, domain names, trade names, logos, slogans, designs, common law trademarks and service marks, trademark and service mark registrations and applications therefor; (f) all Software, databases and data collections and all rights therein; (g) all moral and economic rights of authors and inventors, however denominated; and (h) any similar or equivalent rights to any of the foregoing.

 

 

“Knowledge” means, (i) with respect to LIION, all facts known by any key people of LIION on the date hereof or on the Closing Date following reasonable inquiry and diligence with respect to the matters at hand and (ii) with respect to Acquiror, all facts known by any executive officer or director of Acquiror on the date hereof or on the Closing Date following reasonable inquiry and diligence with respect to the matters at hand.

 

“Laws” means all laws (including Labor Laws), statutes, common law, rules, codes, regulations, restrictions, ordinances, orders, decrees, approvals, directives, judgments, rulings, injunctions, writs, awards and decrees of, or issued or entered by, all Governmental Entities.

 

“Liabilities” means obligations or liabilities of whatever kind and nature, including all contractual obligations or liabilities, whether absolute or contingent, inchoate or otherwise, primary or secondary, direct or indirect, absolute or contingent, matured or unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown and whenever arising.

 

“Licenses” means all notifications, licenses, permits, franchises, certificates, approvals, exemptions, classifications, registrations and other similar documents and authorizations issued by any Governmental Entity, and applications therefor.

 

“Liens” means all mortgages, liens, pledges, security interests, charges, claims, restrictions and encumbrances of any nature whatsoever.

 

“Losses” means any and all claims, liabilities, obligations, damages, losses, costs, expenses, penalties, fines and judgments (including amounts paid in settlement, costs of investigation and reasonable attorney’s fees and expenses), whenever arising or incurred, and whether or not arising out of a third party claim. The Parties acknowledge and agree that “Losses” shall not include special, indirect, consequential, exemplary and punitive damages save in the case of fraud.

 

“Material Adverse Effect” means any state of facts, change, event, effect or occurrence (when taken individually or together with all other states of fact, changes, events, effects or occurrences) that has, has had or is reasonably likely to have a materially adverse effect on the financial condition, results of operations, prospects, properties, assets or liabilities (including contingent liabilities) of LIION or Acquiror, as the context so requires. A Material Adverse Effect shall also include any state of facts, change, event or occurrence that shall have occurred or been threatened that (when taken individually or together with all other states of facts, changes, events, effects or occurrences that have occurred or been threatened) has prevented or materially delayed, or would be reasonably likely to prevent or materially delay, the performance by LIION or Acquiror, as the context so requires, of their obligations hereunder or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, any state of facts, change, event or occurrence that shall have occurred or been threatened that is caused by or results from any of the following shall not be taken into account in determining whether there has been a Material Adverse Effect: (i) any actions taken or not taken, as the case may be, as required or permitted by or pursuant to the terms of this Agreement; (ii) changes affecting the industry in which LIION or Acquiror, as the context so requires, operates generally, the United States or global economy or general economic conditions (except where, with respect to each case, such changes or economic conditions disproportionately impact LIION or Acquiror, as the context so requires); and (iii) the announcement or pendency of any of the transactions contemplated by this Agreement.

 

 

“Non-Assignable Contracts” means Acquired Contracts that require third-party consents for assignment or novation that have not been obtained by LIION as of the Closing.

 

“Person” means any individual, corporation, partnership, joint venture, limited liability company, trust, unincorporated organization or Governmental Entity.

 

“Software” means any computer software program, together with any error corrections, updates, modifications, or enhancements thereto, in both machine-readable form and human-readable form, including all comments and any procedural code.

 

“Subsidiary” or “Subsidiaries” means any Person Controlled, directly or indirectly through one or more intermediaries.

 

Article II
ACQUISITION OF ASSETS

 

Section 2.1 Agreement to Purchase. Subject to the terms and conditions hereof, at the Closing, LIION shall sell, assign, transfer and deliver to Acquiror, and Acquiror shall accept such and acquire from LIION, all right, title and interest of LIION in and to, such of its assets, properties and rights as are further described in Schedule 2.1, attached hereto and incorporated herein (such assets, properties and rights, being referred to as the “LIION Assets”), free and clear of all Liens, other than Permitted Liens.

 

Section 2.2 Excluded Assets. Notwithstanding anything to the contrary set forth herein, all other assets, properties and rights of LIION not expressly included in the definition of LIION Assets shall be excluded; specifically such excluded assets shall include, but not be limited to, the articles of incorporation and bylaws, minute books, and stock ledgers and stock records of LIION, the rights that accrue to LIION hereunder, cash and book debts up to the Closing Date (collectively, the “Excluded Assets”).

 

Section 2.3 No Assumed Liabilities. As a result of the transactions contemplated hereby or otherwise, other than (a) performance obligations under the Assigned Contracts arising after the Closing, and (b) , Acquiror’s indemnities expressly set forth in this Agreement and/or the other documents executed and delivered by Acquiror pursuant to this Agreement (together, the “Assumed Liabilities”), Acquiror shall not assume or be obligated to perform or discharge when due any Liabilities of LIION (or any affiliates thereof), including, but not limited to: (w) any Liabilities whatsoever arising from or relating to the ownership or operation of any of the purchased Assets prior to the Closing; (x) any Liabilities relating to any former or current employee of LIION (or any affiliates thereof) arising out of or relating to their employment by LIION (or any of their affiliates); (y) any Liabilities relating to any health, welfare, retirement or other benefit plan maintained for employees of LIION (or any affiliates thereof), whether arising on or prior to or after the Closing; and (z) any and all taxes arising in connection with the purchase and sale of the Assets relating to pre-Closing periods; it being agreed that all of the Liabilities described in clauses (w) – (z), inclusive, shall be and remain the sole responsibility of LIION. Such Liabilities shall include, but not be limited to, all claims, actions, litigation and proceedings relating to any or all of the foregoing and all costs and expenses in connection therewith.

 

 

Article III
CONSIDERATION ISSUED UPON ACQUISITION

 

Section 3.1 Consideration Issued Upon Acquisition. In exchange for the sale by LIION of the Assets to Acquiror, Acquiror shall on Closing issue a $2,000,000 promissory note to LIION with such terms and conditions as set forth in Schedule 3.1(i), and Parent shall issue Two Hundred Fifty Thousand (250,000) shares of Parent’s restricted common stock to LIION or its designated assignees as set forth in Schedule 3.1(ii).

 

Section 3.2 Restricted Common Stock. The shares of common stock to be issued in connection with this Agreement will be issued in a transaction exempt from registration under the Securities Act by reason of Section 4(2) thereof, and Parent is relying on the representations of LIION with respect to such exemption. There will be placed on the certificates for such shares, or shares issued in substitution thereof, two legends stating in substance:

 

“The securities represented hereby have not been registered under the Securities Act of 1933, as amended, and may not be offered, sold, transferred or otherwise disposed of unless registered with the Securities and Exchange Commission of the United States and the securities regulatory authorities of applicable states or unless an exemption from such registration is available.”

 

The foregoing legends will also be placed on any certificate representing securities issued subsequent to the original issuance of the stock as a result of any subsequent assignment, merger or transfer of such shares or any stock dividend, stock split, or other recapitalization or reorganization of Parent.

 

Within thirty (30) days of the three (3) year anniversary of the Closing Date, Acquiror and Parent shall cause the Restricted Common Stock to be registered under the Securities Act.

 

Article IV
REPRESENTATIONS AND WARRANTIES OF LIION

 

LIION hereby represents and warrants to Acquiror as follows as of the date hereof and the Closing Date:

 

Section 4.1 Organization. LIION is a corporation duly and validly incorporated under the State of Nevada. Copies of the Certificate of Incorporation and articles of association of LIION and all amendments thereto, heretofore delivered to Acquiror are accurate and complete as of the date hereof.

 

Section 4.2 Authorization. LIION has all requisite corporate power and authority, and has taken all corporate action necessary, to execute and deliver this Agreement, to consummate the transactions contemplated hereby and to perform its obligations thereunder. The execution and delivery of this Agreement by LIION and the consummation by LIION of the transactions contemplated hereby have been duly approved by the boards of directors and shareholders of LIION. No other corporate proceedings on the part of LIION are necessary to authorize this Agreement and the transactions contemplated hereby. This Agreement has been duly executed and delivered by LIION and is a legal, valid and binding obligation of LIION, enforceable against LIION in accordance with its terms.

 

 

Section 4.3 No Conflict or Violation. Neither the execution, delivery or performance of this Agreement nor the consummation of the transactions contemplated hereby, nor compliance by LIION with any of the provisions hereof, will (1) violate or conflict with any provision of the Articles of Incorporation or Bylaws of LIION or, (2) violate, conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any of the terms, conditions or provisions of any contract, indebtedness, note, bond, indenture, security or pledge agreement, commitment, license, lease, franchise, permit, agreement, authorization, concession, or other instrument or obligation to which LIION is a party, or (3) violate any statute, rule, regulation, ordinance, code, order, judgment, ruling, writ, injunction, decree or award except, in the case of each of clauses (a), (b) and (c) above, for such violations, conflicts, breaches, defaults, terminations, accelerations or creations of encumbrances which, in the aggregate, would not have a Material Adverse Effect on the Business or its ability to consummate the transactions contemplated hereby.

 

Section 4.4 Required Consents. Schedule 4.4 sets forth each action, consent, approval, notification, waiver, authorization, order or filing (each, a “Required Consent” and collectively, the “Required Consents”) under any Law, License or Contract to which LIION is a party that is necessary with respect to the execution, delivery and performance of this Agreement or the LIION Ancillary Documents to avoid a breach or violation of, or giving rise to any right of termination, cancellation or acceleration of any right or obligation or to a loss of any benefit under any such Law, License or Contract. Except as set forth on Schedule 4.4, no consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Entity is required with respect to LIION or the Shareholders in connection with the execution, delivery or performance of this Agreement or the LIION Ancillary Documents or the consummation of the transactions contemplated hereby.

 

Section 4.5 Acquired Contracts. Schedule 4.5 sets forth a true, correct and complete list of all of the contracts currently in force to which LIION is a party or under which LIION has continuing liabilities and/or obligations, and which relate exclusively to LIION’s Battery Storage Business.

 

True, correct and complete copies of all Acquired Contracts have been provided to Acquiror. The Acquired Contracts are legal, valid, binding and enforceable in accordance with their respective terms with respect to LIION and, to the Knowledge of LIION, each other party thereto. There is no existing default or breach of LIION under any Acquired Contract (or event or condition that, with notice or lapse of time or both could constitute a default or breach) and, to the Knowledge of LIION, there is no such default (or event or condition that, with notice or lapse of time or both, could constitute a default or breach) with respect to any third party to any Acquired Contract. There is no term, obligation, understanding or agreement that would modify any term of an Acquired Contract or any right or obligation of a party thereunder which is not reflected on the face of such Acquired Contract. No Acquired Contract is a contract or agreement in which, in LIION’s best estimate, the direct labor cost, direct materials cost and applied overhead (calculated on a basis consistent with past practice) incurred or to be incurred in connection therewith (but excluding selling, general and administrative expenses) exceed the revenues derived or to be derived therefrom. LIION is not participating in any discussions or negotiations regarding termination or modification of or amendment to any Acquired Contract or entry in any new Contract.

 

 

Section 4.6 Intellectual Property.

 

(a) Schedule 4.6(a) contains a true, correct and complete list of all LIION Battery Storage Business Intellectual Property. LIION owns, or is licensed or otherwise has the right to use, free and clear of any Liens, all Intellectual Property used in connection with the operation and conduct of its Battery Storage Business. Schedule 4.13(a) sets forth a true, correct and complete list of all such licensing. Except as otherwise disclosed in Schedule 4.6(a), there are no agreements or arrangements between LIION and any third party which have any effect upon LIION’s title to or other rights respecting the Intellectual Property, including the right to transfer the same as contemplated by this Agreement. To the extent that any LIION Intellectual Property has been developed or created by a third party for LIION, LIION has a written agreement with such third party with respect thereto and LIION thereby either (i) has obtained ownership of and is the exclusive owner of, or (ii) has obtained a license (sufficient for the conduct of its business as currently conducted) to, all of such third party’s Intellectual Property in such work, material or invention by operation of law or by valid assignment.

 

(b) To the Knowledge of LIION, neither LIION nor any of its products or services has infringed upon or otherwise violated, or is infringing upon or otherwise violating, the Intellectual Property of any third party. To the Knowledge of LIION, no Person has infringed upon or violated, or is infringing upon or violating, any LIION Intellectual Property.

 

(c) LIION has taken reasonable steps to protect its rights in its Confidential Information and any trade secret or confidential information of third parties used by LIION, and to the Knowledge of LIION, except under confidentiality obligations, there has not been any disclosure by LIION of any of its Confidential Information or any such trade secret or confidential information of third parties.

 

Section 4.7 Key People. Schedule 4.7 contains a list of the three key people and the form of the associated consulting agreement to be entered into simultaneously with those people upon Closing.

 

Section 4.8 Disclosure. No representations, warranties, assurances or statements by LIION in this Agreement and no statement contained in any document, certificates or other writings furnished or to be furnished by LIION to Acquiror or any of its representatives pursuant to the provisions hereof contains or will contain any untrue statement of material fact, or omits or will omit to state any fact necessary, in light of the circumstances under which it was made, in order to make the statements herein or therein not misleading.

 

 

Section 4.9 No Other Agreements. LIION does not have any commitment or legal obligation, absolute or contingent, to any other Person (other than Acquiror hereunder) to sell, assign, transfer or effect a sale of the Assets, to effect any merger, consolidation, liquidation, dissolution or other reorganization of LIION, or to enter into any agreement or cause the entry into of an agreement with respect to any of the foregoing.

 

Section 4.10 Investment Representations. LIION and its designated assignees as set forth on Schedule 3.1(ii), are acquiring the Acquiror Securities and Parent Securities (together, the “Shares”) for their own account, for investment and not with a view to the distribution thereof within the meaning of the Securities Act. LIION and its designated assignees understand that (i) the Shares have not been registered under the Securities Act or any state securities laws, by reason of their issuance in a transaction exempt from the registration requirements thereof and (ii) the Shares may not be sold unless such disposition is registered under the Securities Act and applicable state securities laws or is exempt from registration thereunder. LIION and its designated assignees further understand that the exemption from registration afforded by Rule 144 (the provisions of which are known to LIION) promulgated under the Securities Act depends on the satisfaction of various conditions, and that, if applicable, Rule 144 may afford the basis for sales only in limited amounts. LIION and its designated assignees are “accredited investor” (as defined in Rule 501(a) under the Securities Act) and/or are not a U.S. Person as defined in Rule 902 of Regulation S promulgated under the Securities Act. LIION has been provided the opportunity at reasonable times prior to the date hereof to discuss the Acquiror’s business and the Parent’s business with directors, officers and management of Acquiror and Parent, and to review each of its operations. LIION has also had the opportunity to ask questions and receive answers regarding the terms and conditions of the offering of the Acquiror Securities and Parent Securities.

 

Article V
REPRESENTATIONS AND WARRANTIES OF ACQUIROR AND PARENT

 

Acquiror and Parent hereby represent and warrant to LIION as follows as of the date hereof and the Closing Date:

 

Section 5.1 Organization.

 

(a) Acquiror and Parent are each a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Delaware and have all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. Each of Parent and Acquiror are duly qualified or registered as a foreign corporation to transact business under the Laws of each jurisdiction where the character of its activities or the location of the properties owned or leased by it requires such qualification or registration, except in such jurisdictions where the failure to be so qualified or in good standing would not reasonably be expected to have a Material Adverse Effect on Acquiror.

 

 

(b) The authorized capital stock of Parent is as set forth in the Parent’s Reports.

 

Section 5.2 Authorization. Acquiror has full corporate power and authority to execute and deliver this Agreement and the Acquiror Ancillary Documents and to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and the Acquiror Ancillary Documents by Acquiror and the performance by Acquiror of its obligations hereunder and thereunder and the consummation of the transactions provided for herein and therein have been duly and validly authorized by all necessary corporate action on the part of Acquiror. This Agreement has been, and the Acquiror Ancillary Documents shall be as of the Closing Date, duly executed and delivered by Acquiror and do or shall, as the case may be, constitute the valid and binding agreements of Acquiror, enforceable against Acquiror in accordance with their respective terms, except to the extent that enforceability may be limited by the effect of (i) any applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity, regardless of whether such enforceability is considered in a proceeding at law or in equity.

 

Section 5.3 Absence of Restrictions and Conflicts. The execution, delivery and performance of Acquiror of this Agreement and the Acquiror Ancillary Documents, as applicable, the consummation of the transactions contemplated hereby and thereby and the fulfillment of and compliance with the terms and conditions hereof and thereof do not or shall not (as the case may be), with the passing of time or the giving of notice or both, (a) contravene or conflict with any term or provision of the articles of incorporation or bylaws of Acquiror, (b) violate or conflict with, constitute a breach of or default under, result in the loss of any benefit under, permit the acceleration of any obligation under or create in any party the right to terminate, modify or cancel any Contract to which Acquiror is a party, (c) contravene or conflict with any judgment, decree or order of any Governmental Entity to which Acquiror is a party or by which Acquiror or any of its respective properties are bound or (d) contravene or conflict with any Law or arbitration award applicable to Acquiror, except in the case of each of (b) and (d) above to the extent any such violation, breach or conflict would not reasonably be expected to result in a Material Adverse Effect on Acquiror.

 

Section 5.4 Disclosure. No representations, warranties, assurances or statements by Acquiror in this Agreement and no statement contained in any document, certificates or other writings furnished or to be furnished by Acquiror to LIION or any of its representatives pursuant to the provisions hereof contains or will contain any untrue statement of material fact, or omits or will omit to state any fact necessary, in light of the circumstances under which it was made, in order to make the statements herein or therein not misleading.

 

Section 5.5 Financial Statements. The Parent’s financial statements (including the notes thereto) included in Parent’s most recently filed Annual Report and Quarterly Report filed through the Securities and Exchange Commission (“Parent’s Reports”) (1) have been prepared in accordance with generally accepted accounting principles consistently applied throughout the periods covered thereby and (2) fairly and accurately present the assets, liabilities (including all reserves) and financial position of the Parent as of the respective dates thereof and the results of operations and changes in cash flows for the periods then ended. At the respective dates of the Parent’s Reports, there were no liabilities of Parent and its subsidiaries, taken as a whole, which, in accordance with generally accepted accounting principles, should have been shown or reflected in the Parent’s Reports, which are not shown or reflected in the Parent’s Reports. The Parent’s Reports have complied in all material respects with the requirements of Section 12 of the Securities Act of 1933, as amended.

 

 

Article VI
CERTAIN COVENANTS AND AGREEMENTS

 

6.1

Risk of Loss. The risk of loss with respect to the Assets shall remain with LIION until the Closing.

 

6.2

Contract Assignment. Simultaneous with Closing, LIION does hereby sell, assign and transfer unto the Acquiror, its successors and assigns, all of its right, title and interest in and to the Acquired Contracts.

 

6.3

Consents. LIION shall, from the full execution of this Agreement and during the remaining term of each Non-Assignable Contract, use commercially reasonable efforts to (a) obtain the consent of the third parties required thereunder, (b) make the benefit of such Non-Assignable Contract available to Acquiror and (c) enforce, at the sole expense and for the account of Acquiror, any right of LIION arising from such Non-Assignable Contract against the other party or parties thereto (including the right to elect or terminate any such Non-Assignable Contract in accordance with the terms thereof). LIION shall not take any action or suffer any omission that could limit, restrict or terminate in any material respect the benefits to Acquiror of such Non-Assignable Contract unless, in good faith and after consultation with and prior written notice to Acquiror, LIION is (i) ordered to do so by a Governmental Entity of competent jurisdiction or (ii) otherwise required to do so by Law. With respect to any such Non-Assignable Contract as to which the necessary approval or consent for the assignment or transfer to Acquiror is obtained, LIION shall transfer such Non-Assignable Contract to Acquiror by execution and delivery of an instrument of conveyance reasonably satisfactory to Acquiror within five (5) Business Days following receipt of such approval or consent.

 

6.4

Transfer Taxes; Expenses. Any taxes or recording fees payable as a result of the purchase and sale of the LIION Assets or any other action contemplated hereby shall be borne by Acquiror. The Parties shall cooperate in the preparation, execution and filing of all returns, questionnaires, applications and other documents regarding taxes and all transfer, recording, registration and other fees that become payable in connection with the transactions contemplated hereby that are required or permitted to be filed at or prior to the Closing.

 

6.5

Consulting Agreements. Simultaneous with Closing, the Acquiror shall enter into consulting agreements with the 3 key people, in the form attached hereto as Exhibit 6.5.

 

 

6.6

IP Assignment. Simultaneous with Closing, LIION does hereby sell, assign and transfer unto the Acquiror, its successors and assigns, all of its right, title and interest in and to the patents, copyrights, source code, trade secrets, and trademarks, trade names, service marks and their associated logos, as listed on Exhibit 4.6, including their associated goodwill, and the right to apply for copyright, trademark and patent registrations and renewals thereof, together with all rights of action and claims for damages and benefits arising because of past infringement of said copyrights, source code, trade secrets, trademarks and patents. LIION will assist the Acquiror in recording the assignments contemplated herein with the United States Patent and Trademark Office.

 

Article VII
CLOSING

 

Section 7.1 Closing. The Closing shall occur upon full execution of this Agreement, the Promissory Note, and the Consulting Agreements, and the delivery of the documents listed in this Section 8. The Closing shall take place at the offices of Acquiror, or at such other place as the Parties may agree.

 

Section 7.2 LIION Closing Deliveries. At the Closing, LIION shall deliver to Acquiror the following:

 

(a) a certificate or certificates executed by a duly authorized officer of LIION as to compliance with the conditions set forth in necessary consents and resolutions authorizing the transaction executed by a duly authorized officer of LIION; and

 

(b) all other documents required to be entered into by LIION pursuant hereto or reasonably requested by Acquiror to convey the Assets to Acquiror or to otherwise consummate the transactions contemplated hereby, including, but not limited to, the Consulting Agreements.

 

Section 7.3 Acquiror Closing Deliveries. On the Closing, Acquiror shall deliver, or caused to be delivered, to LIION the following:

 

(a) a signed letter of instruction to the Parent’s transfer agent to issue the restricted common stock pursuant to Section 3.1;

 

(b) a certificate or certificates executed by a duly authorized officer of LIION as to compliance with the conditions set forth in necessary consents and resolutions authorizing the transaction executed by both a duly authorized officer of BESS, LLC and Alternus Clean Energy, Inc.; and

 

(c) all other documents required to be entered into or delivered by Acquiror at or prior to the Closing pursuant hereto, including the Promissory Note.

 

 

Article VIII
INDEMNIFICATION

 

8.1 Indemnification Obligations of LIION. From and after the Closing, LIION shall indemnify and hold harmless the Acquiror Indemnified Parties from, against and in respect of any and all Losses arising out of or relating to:

 

(a)

any breach or inaccuracy of any representation or warranty made by LIION in this Agreement or in any Ancillary Document, whether such representation or warranty is made as of the date hereof or as of the Closing Date; or

 

(b)

any breach of any covenant, agreement or undertaking made by LIION in this Agreement or in any Ancillary Document.

 

The Losses of the Acquiror Indemnified Parties described in this Section as to which the Company Indemnified Parties are entitled to indemnification are collectively referred to as “Company Losses.”

 

8.2 Indemnification Obligations of the Acquiror. From and after the Closing, the Acquiror shall indemnify and hold harmless LIION Indemnified Parties from, against and in respect of any and all Losses arising out of or relating to:

 

(a) any breach or inaccuracy of any representation or warranty made by the Acquiror in this Agreement or in any Acquiror Ancillary Document, whether such representation or warranty is made as of the date hereof or as of the Closing Date; or

 

(b) any breach of any covenant, agreement or undertaking made by the Acquiror in this Agreement or in any ancillary document.

 

The Losses of the LIION Indemnified Parties described in this Section as to which the LIION Indemnified Parties are entitled to indemnification are collectively referred to as “LIION Losses.”

 

8.3 Survival Period. The representations and warranties of the Parties contained herein shall not be extinguished by the Closing, but shall survive the Closing for, and all claims for indemnification in connection therewith shall be asserted not later than, eighteen months following the Closing Date; provided, however, that (a) each of the representations and warranties contained in Section 4.1 (Organization), Section 4.2 (Authorization), Section 6.1 (Organization), Section 6.2 (Authorization) shall survive the Closing without limitation as to time, and the period during which a claim for indemnification may be asserted in connection therewith shall continue indefinitely. The covenants and agreements of the Parties hereunder shall survive without limitation as to time, and the period during which a claim for indemnification may be asserted in connection therewith shall continue indefinitely. Notwithstanding the foregoing, if, prior to the close of business on the last day a claim for indemnification may be asserted hereunder, an Indemnifying Party shall have been properly notified of a claim for indemnity hereunder and such claim shall not have been finally resolved or disposed of at such date, such claim shall continue to survive and shall remain a basis for indemnity hereunder until such claim is finally resolved or disposed of in accordance with the terms hereof.

 

 

8.4 Procedure.

 

(a) Cooperation. The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party and the attorneys defending the Indemnification Claims in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom; provided, however, that the Indemnified Party may, at its own cost, participate in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. The parties shall cooperate with each other in any notifications to insurers.

 

(b) Conduct of Indemnification Proceedings. Any person entitled to indemnification under this Section will (i) give prompt notice to the indemnifying party of any claim with respect to which it seeks indemnification (but omission of such notice shall not relieve the indemnifying party from liability hereunder except to the extent such indemnifying party is actually prejudiced by such failure to give notice), and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest may exist between the indemnified and indemnifying parties with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If the indemnifying party so assumes the defense of such claim, after notice from the indemnifying party to the indemnified party of its election to so assume the defense thereof, the indemnifying party will not be liable to the indemnified party for any legal or other expenses Subsequently incurred by the indemnified party in connection with the defense of such claim. If such defense is not assumed by the indemnifying party, the indemnifying party will not be Subject to any liability for any settlement made without its consent (but such consent will not be unreasonably withheld). No indemnifying party will consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of an unconditional release of all indemnified parties from all liability with respect to such claim or litigation. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim (i) will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, and (ii) shall be entitled to participate in (at its own cost and expense), but not control, the defense of such claim.

 

8.5 Contribution. If the indemnification provided for in this Agreement is unavailable or insufficient to hold harmless each of the indemnified parties against any losses, claims, damages, liabilities and expenses (or actions in respect thereof) referred to therein, then the indemnifying party shall, in lieu of indemnifying each party entitled to indemnification hereunder, contribute to the amount paid or payable by such party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified parties on the other in connection with the statements or omissions or alleged statements or omissions that resulted in such losses, claims, damages, liabilities or expenses. The relative fault of such persons shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact, or omission or alleged omission to state a material fact, relates to information supplied by or concerning the indemnifying party on the one hand, or by such indemnified person on the other, and such person’s relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section were determined by pro rata allocation or by any other allocation that does not take into account the equitable considerations referred to in this Section.

 

 

No person guilty of fraudulent misrepresentation within the meaning of the Securities Act shall be entitled to contribution from any person that is not guilty of such fraudulent misrepresentation.

 

8.6 Each Indemnifying Party’s total liability to provide indemnification for a Loss or Losses pursuant to Sections 8.1 and 8.2 shall not exceed Two Million Dollars ($2,000,000) (the “Cap Amount”).

 

8.7 Right of Offset. Anything in this Agreement to the contrary notwithstanding, Acquiror shall be entitled to satisfy any liability for indemnification pursuant by right of offset through a reduction of the remaining outstanding balance owed pursuant to the Promissory Note issued to LiiON equal to the amount of the liability.

 

Article IX
MISCELLANEOUS PROVISIONS

 

Section 9.1 Notices. All notices, communications and deliveries required or made hereunder must be made in writing signed by or on behalf of the Party making the same, shall specify the Section hereunder pursuant to which it is given or being made, and shall be delivered personally or by telecopy transmission or by a national overnight courier service or by registered or certified mail (return receipt requested) (with postage and other fees prepaid) as follows:

 

To LIION:

 

3233 Brookside Court

Tarpon Springs, FL 34688

 

To Acquiror:

 

17 State Street, Suite 4000

New York, NY 10004

 

or to such other representative or at such other address of a Party as such Party may furnish to the other Parties in writing. Any such notice, communication or delivery shall be deemed given or made (a) on the date of delivery, if delivered in person, (b) upon transmission by facsimile if receipt is confirmed by telephone, (c) on the first (1st) Business Day following delivery to a national overnight courier service or (d) on the fifth (5th) Business Day following it being mailed by registered or certified mail.

 

Section 9.2 Schedules and Exhibits. The Schedules are hereby incorporated into this Agreement and are hereby made a part hereof as if set out in full herein.

 

Section 9.3 Assignment; Successors in Interest. No assignment or transfer by any Party of such Party’s rights and obligations hereunder shall be made except with the prior written consent of the other Parties. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns, and any reference to a Party shall also be a reference to the successors and permitted assigns thereof.

 

 

Section 9.4 Captions. The titles, captions and table of contents contained herein are inserted herein only as a matter of convenience and for reference and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.

 

Section 9.5 Controlling Law. This Agreement shall be governed by and construed and enforced in accordance with the internal Laws of the State of Delaware without reference to its choice of law rules.

 

Section 9.6 Severability. Any provision hereof that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by Law, each Party hereby waives any provision of Law that renders any such provision prohibited or unenforceable in any respect.

 

Section 9.7 Counterparts; Facsimile. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and it shall not be necessary in making proof of this Agreement or the terms hereof to produce or account for more than one of such counterparts. This Agreement and any document executed and delivered in connection with this Agreement, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine or as an attachment to an electronic mail message in “pdf” or similar format, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any Party to any such agreement or instrument, each other Party hereto or thereto shall re-execute original forms thereof and deliver them to all other Parties. No Party to any such agreement or instrument shall raise the use of a facsimile machine or electronic mail attachment in “pdf” or similar format to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or as an attachment to an electronic mail message as a defense to the formation of a contract and each such Party forever waives any such defense. A facsimile signature or electronically scanned copy of a signature shall constitute and shall be deemed to be sufficient evidence of a Party’s execution of this Agreement, without necessity of further proof. Each such copy shall be deemed an original, and it shall not be necessary in making proof of this Agreement to produce or account for more than one such counterpart.

 

Section 9.8 Enforcement of Certain Rights. Nothing expressed or implied herein is intended, or shall be construed, to confer upon or give any Person other than the Parties, and their successors or permitted assigns, any right, remedy, obligation or liability under or by reason of this Agreement, or result in such Person being deemed a third-party beneficiary hereof.

 

Section 9.9 Waiver; Amendment. Any agreement on the part of a Party to any extension or waiver of any provision hereof shall be valid only if set forth in an instrument in writing signed on behalf of such Party. A waiver by a Party of the performance of any covenant, agreement, obligation, condition, representation or warranty shall not be construed as a waiver of any other covenant, agreement, obligation, condition, representation or warranty. A waiver by any Party of the performance of any act shall not constitute a waiver of the performance of any other act or an identical act required to be performed at a later time. This Agreement may not be amended, modified or supplemented except by written agreement of the Parties.

 

 

Section 9.10 Integration. This Agreement and the documents executed pursuant hereto supersede all negotiations, agreements and understandings among the Parties with respect to the subject matter hereof (except for any Confidentiality Agreement by and between the Parties which shall remain in effect until termination or expiration pursuant to its terms) and constitute the entire agreement among the Parties with respect thereto.

 

Section 9.11 Compliance with Bulk Sales Laws. Each Party hereby waives compliance by the Parties with the “bulk sales,” “bulk transfers” or similar Laws and all other similar Laws in all applicable jurisdictions in respect of the transactions contemplated by this Agreement.

 

Section 9.12 Interpretation. Where the context requires, the use of a pronoun of one gender or the neuter is to be deemed to include a pronoun of the appropriate gender. References herein to any Law shall be deemed to refer to such Law, as amended from time to time, and all rules and regulations promulgated thereunder. The words “include,” “includes,” and “including” shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.” Except as otherwise indicated, all references in this Agreement to “Sections” and “Exhibits” are intended to refer to Sections of this Agreement and Exhibits of this Agreement.

 

Section 9.13 Cooperation Following the Closing. Following the Closing, each Party shall deliver to the other Parties such further information and documents and shall execute and deliver to the other Parties such further instruments and agreements as any other Party shall reasonably request to consummate or confirm the transactions provided for herein, to accomplish the purpose hereof or to assure to any other Party the benefits hereof.

 

Section 9.14 Transaction Costs. Except as provided above or as otherwise expressly provided herein, (a) Acquiror shall pay its own fees, costs and expenses incurred in connection herewith and the transactions contemplated hereby, including the fees, costs and expenses of its financial advisors, accountants and counsel, and (b) LIION shall pay the fees, costs and expenses of LIION incurred in connection herewith and the transactions contemplated hereby, including the fees, costs and expenses of financial advisors, accountants and counsel to LIION.

 

* * *

 

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed, as of the date first above written.

 

LIION LLC:
By:	/s/ Gary Gray
Name:
Title:
ACQUIROR:
BESS LLC
By:	/s/ Vincent Browne
Name:	Vincent Browne
Title:	Director
PARENT COMPANY:
ALTERNUS CLEAN ENERGY, INC.
By:	/s/ Vincent Browne
Name:	Vincent Browne
Title:	Chief Executive Officer

 

 

 

Exhibit 10.2

 

BESS LLC

 

EXCLUSIVE CONSULTING AGREEMENT

 

This EXCLUSIVE Consulting Agreement (this “Agreement”) is made and entered into as of December 11, 2024 (the “Effective Date”), by and between BESS LLC, a Delaware limited liability company (the “Company”), and ASSURE POWER, LLC, a Wyoming limited liability company (“Consultant”). The Company and Consultant are referred to individually as a “Party” and collectively as the “Parties.”

 

WHEREAS, the Company desires to retain Consultant as an independent contractor on a full time and exclusive basis to perform the Services (as defined below) for the Company, and Consultant is willing to perform such Services on the terms and subject to the conditions set forth in this Agreement.

 

NOW, THEREFORE, in consideration of the premises set forth above and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

1. Services. Consultant shall provide three key people as listed on Exhibit A to exclusively consult with, and render exclusively to, the Company consulting services relating to the transition and integration of the Consultant’s business into the Company’s business, including those services explicitly set forth on Exhibit A hereto (collectively, the “Services”). Company shall determine the scope of the work to be performed, but Consultant shall have the ability to select the means, manner and method of performing these services. Consultant agrees to use its best efforts to promote Company’s interests, and to give Company the benefit of, to the exclusion of all other companies, its experience, knowledge, and skills. Consultant shall have the right to perform the projects in such manner as Consultant deems appropriate. Consultant undertakes to perform services in a timely and professional manner and to devote such time, attention and skill to its duties under this Agreement as may reasonably be necessary to ensure the performance of the Services to the Company’s Chief Executive Officer’s satisfaction. Consultant shall make itself available and shall render such services at such times and places as mutually and reasonably agreed upon between the Company and Consultant. Consultant shall not delegate or subcontract its duties hereunder. During the Term of this Agreement, Consultant shall not, whether directly or indirectly, provide the Services to any other party other than to the Company.

 

(a) Nothing herein shall be deemed to preclude Company from retaining the services of other persons or entities undertaking the same or similar services as those undertaken by Consultant hereunder or from independently developing or acquiring materials or programs that are similar to, or competitive with, the services.

 

2. Compensation. During the Term of this Agreement, unless terminated sooner pursuant to this Agreement, the Company will pay Consultant in exchange for the Services as follows: $30,000.00 per month, on the last day of each month. All payments due hereunder shall be payable in arrears. If any of the three key people listed on Exhibit A resign from, or are terminated by, the Company for any reason, the monthly fee will be reduced on a pro rata basis thereafter. In addition, the Company and consultant may agree upon additional compensation terms on a project by project basis

 

 

(a) The Consultant shall invoice the Company for Services pursuant to Section 2 above on a monthly basis. The Company shall discharge any valid invoice within 10 business days of receipt of the valid invoice.

 

3. Confidentiality.

 

(a) Definition of Confidential Information. “Confidential Information” means any information (including any and all combinations of individual items of information) that relates to the actual or anticipated business and/or products, research or development of the Company, its affiliates or subsidiaries, or to the Company’s, its affiliates’ or subsidiaries’ technical data, trade secrets, or know-how, including, but not limited to, research, product plans, or other information regarding the Company’s, its affiliates’ or subsidiaries’ products or services and markets therefor, customer lists and customers (including, but not limited to, customers of the Company on whom Consultant called or with whom Consultant became acquainted during the Term (as defined below)), software, developments, inventions, discoveries, ideas, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, and other business information disclosed by the Company, its affiliates or subsidiaries, either directly or indirectly, in writing, orally or by drawings or inspection of premises, parts, equipment, or other property of Company, its affiliates or subsidiaries. Notwithstanding the foregoing, Confidential Information shall not include any such information which Consultant can establish becomes publicly known or made generally available to the public after disclosure to Consultant through no wrongful action or inaction of Consultant.

 

(b) Nonuse and Nondisclosure. During and after the Term, Consultant will hold in the strictest confidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Confidential Information, and Consultant will not: (i) use the Confidential Information for any purpose whatsoever other than as necessary for the performance of the Services on behalf of the Company or (ii) disclose the Confidential Information to any third party without the prior written consent of an authorized representative of Company, except that Consultant may disclose Confidential Information to the extent compelled by applicable law; provided, however, prior to such disclosure, Consultant shall provide prior written notice to the Company to allow the Company to seek a protective order or such similar confidential protection as may be available under applicable law. Consultant agrees that no ownership of Confidential Information is conveyed to Consultant. Without limiting the foregoing, Consultant shall not use or disclose any Company property, intellectual property rights, trade secrets or other proprietary know-how of the Company to invent, author, make, develop, design, or otherwise enable others to invent, author, make, develop, or design identical or substantially similar designs as those developed under this Agreement for any third party. Consultant shall not put to commercial use or use in any way except for the benefit of Company any Confidential Information disclosed to Consultant or any Confidential Information developed by Consultant pursuant to this Agreement. Consultant agrees that Consultant’s obligations under this Section 3(b) shall continue after the Term.

 

 

(c) Other Client Confidential Information. Consultant agrees that Consultant will not improperly use, disclose, or induce the Company to use any proprietary information or trade secrets of any former or concurrent employer of Consultant or other person or entity with which Consultant has an obligation to keep in confidence. Consultant also agrees that Consultant will not bring onto the Company’s premises or transfer onto the Company’s technology systems any unpublished document, proprietary information, or trade secrets belonging to any third party unless disclosure to, and use by, the Company has been consented to in writing by such third party.

 

(d) Third-Party Confidential Information. Consultant recognizes that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Consultant agrees that at all times during the Term and thereafter, Consultant owes the Company and such third parties a duty to hold all such confidential or proprietary information in the strictest confidence and not to use it or to disclose it to any person, firm, corporation, or other third party except as necessary in carrying out the Services for the Company consistent with the Company’s agreement with such third party.

 

(e) Acknowledgement. The Parties acknowledge 18 U.S.C. § 1833(b), which states as follows: “[a]n individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that—(i) is made—(A) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.” Accordingly, Consultant shall have the right to: (1) disclose in confidence trade secrets to federal, State, and local government officials, or to an attorney, for the sole purpose of reporting or investigating a suspected violation of law; or (2) disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from public disclosure. Nothing in this Agreement is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C. § 1833(b).

 

(f) Great loss and immediate and irreparable injury may be suffered by the Company if the Consultant should breach or violate any of the covenants and agreements set forth in this clause. The parties agree that such covenants and agreements are reasonably necessary to protect and preserve the Company’s interests.

 

4. Ownership.

 

(a) Assignment of Inventions. As a material condition to which Consultant agrees in exchange for the opportunity to provide the Services, Consultant expressly acknowledges and agrees that all right, title, and interest in and to any copyrightable material, notes, records, drawings, designs, inventions, improvements, developments, discoveries, ideas and trade secrets conceived, discovered, authored, invented, developed or reduced to practice by Consultant, solely or in collaboration with others, during the Term and arising out of, or in connection with, performing the Services under this Agreement and any copyrights, patents, trade secrets or other intellectual property rights relating to the foregoing (collectively, “Inventions”) are the sole property of the Company. Consultant also agrees to promptly make full written disclosure to the Company of any Inventions and to deliver and assign (or cause to be assigned) and hereby irrevocably assigns fully to the Company all right, title and interest in and to the Inventions. Consultant agrees that he will not use or disclose any Intellectual Property owned by Company to benefit a competitor, customer, individual, or other entity without the express written permission of the Chief Executive Officer.

 

 

(b) Pre-Existing Materials. Subject to Section 4(a), Consultant will provide the Company with prior written notice if, in the course of performing the Services, Consultant incorporates into any Invention or utilizes in the performance of the Services any invention, discovery, idea, original works of authorship, development, improvements, trade secret, concept, or other proprietary information or intellectual property right owned by Consultant or in which Consultant has an interest, prior to, or separate from, performing the Services under this Agreement (“Prior Inventions”), and the Company is hereby granted an exclusive, royalty-free, perpetual, irrevocable, transferable, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Prior Inventions, without restriction, including, without limitation, as part of, or in connection with, such Invention, and to practice any method related thereto. Consultant will not incorporate any invention, discovery, idea, original works of authorship, development, improvements, trade secret, concept, or other proprietary information or intellectual property right owned by any third party, including, without limitation, any free software or open source software, into any Invention without Company’s prior written permission.

 

(c) Moral Rights. Any assignment to the Company of Inventions includes all rights of attribution, paternity, integrity, modification, disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like (collectively, “Moral Rights”). To the extent that Moral Rights cannot be assigned under applicable law, Consultant hereby waives and agrees not to enforce any and all Moral Rights, including, without limitation, any limitation on subsequent modification, to the extent permitted under applicable law.

 

(d) Maintenance of Records. Consultant agrees to keep and maintain adequate, current, accurate, and authentic written records of all Inventions made by Consultant (solely or jointly with others) during the Term and for a period of three (3) years thereafter. The records will be in the form of notes, sketches, drawings, electronic files, reports, or any other format that is customary in the industry and/or otherwise specified by the Company. Such records are and remain the sole property of the Company at all times and upon Company’s request, Consultant shall deliver (or cause to be delivered) the same.

 

(e) Further Assurances. Consultant agrees to assist Company, or its designee, at the Company’s expense, in every proper way to secure the Company’s rights in Inventions in any and all countries, including the disclosure to the Company of all pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments that the Company may deem necessary in order to apply for, register, obtain, maintain, defend, and enforce such rights, and in order to deliver, assign and convey to the Company, its successors, assigns and nominees the sole and exclusive right, title, and interest in and to all Inventions and testifying in a suit or other proceeding relating to such Inventions. Consultant further agrees that Consultant’s obligations under this Section 4(e) shall continue after the Term.

 

 

(f) Attorney-in-Fact. Consultant agrees that, if the Company is unable because of Consultant’s unavailability, dissolution, mental or physical incapacity, or for any other reason, to secure Consultant’s signature with respect to any Inventions, including, without limitation, for the purpose of applying for or pursuing any application for any United States or foreign patents or copyright registrations covering the Inventions assigned to the Company in Section 4(a), then Consultant hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as Consultant’s agent and attorney-in-fact, to act for and on Consultant’s behalf to execute and file any papers and oaths and to do all other lawfully permitted acts with respect to such Inventions to further the prosecution and issuance of patents and copyright registrations with the same legal force and effect as if executed by Consultant. This power of attorney shall be deemed coupled with an interest and shall be irrevocable.

 

5. Performing Services for Others. The consultancy arrangements contemplated by this Agreement shall be on an exclusive basis. The Consultant shall not during the course of this Agreement, without the prior written consent of the Chief Executive Officer of the Company, provide any of his Services as out lined in Exhibit A, whether on a consultancy or other basis, to any legal or natural person or other entity in competition with the Company’s current or future business. For the purposes of this clause, the term “Company’s Business” shall mean the development, installation, ownership, and operation of utility-scale solar photovoltaic (PV) parks, or the energy storage thereof.

 

6. Conflicting Obligations. Consultant represents and warrants that he has no agreements, relationships, or commitments to any other person or entity that conflict with the provisions of this Agreement, Consultant’s obligations to the Company under this Agreement, and/or Consultant’s ability to perform the Services. Consultant will not enter into any such conflicting agreement during the Term. Consultant is hereby bound in writing by the confidentiality and intellectual property assignment or license provisions of this Agreement, and, upon the Company’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to the Company, and promptly provide a copy of each such executed agreement to the Company.

 

7. Return of Company Materials. Upon the expiration or earlier termination of this Agreement, or upon Company’s earlier request, Consultant will immediately deliver to the Company, and will not keep in Consultant’s possession, recreate, or deliver to anyone else, all Company property, including, but not limited to: (a) Confidential Information; (b) tangible embodiments of all Inventions; (c) all devices and equipment belonging to the Company; (d) all electronically-stored information and passwords to access such property; (e) those records maintained pursuant to Section 4(d); and (f) any reproductions of any of the foregoing items that Consultant may have in Consultant’s possession or control.

 

8. Reports. Consultant agrees that Consultant will periodically keep the Company advised as to Consultant’s progress in performing the Services under this Agreement. Consultant further agrees that Consultant will, as requested by the Company, prepare written reports with respect to such progress. The Company and Consultant agree that the reasonable time expended in preparing such written reports will be considered time devoted to the performance of the Services.

 

 

9. Term; Termination.

 

(a) Term. The initial term of this Agreement (the “Term”) will begin on the Effective Date and will continue until the earlier of: (i) the date that is three (3) years following the Effective Date and (ii) termination as provided in Section 9(b). This Agreement shall automatically renew for additional one year terms unless ninety (90) day prior written notice is delivered by either Party to the other Party.

 

(b) Termination.

 

(i) Either Party may terminate this Agreement immediately: (x) upon the institution of bankruptcy or similar proceedings by or against the other Party, or any assignment or attempted assignment by the other Party for the benefit of creditors, or any appointment, or application for such appointment, of a receiver for a Party, (y) if the other Party materially breaches any term or provision of this Agreement; provided, that, if such breach is curable, the breaching Party shall have thirty (30) from being notified of such breach to cure the same, or (z) upon mutual agreement of the Parties.

 

(ii) The Company may terminate this Agreement upon ninety (90) days prior written notice at any time after one year from the Effective Date.

 

(iii) In the event Company terminates this Agreement for a Material Breach, Company’s sole liability to Consultant shall be to pay Consultant for any unpaid amounts earned and accrued hereunder through the date of termination.

 

(c) Survival. Upon any termination of this Agreement, all rights and duties of the Company and Consultant toward each other shall cease except:

 

(i) the Company will pay, within thirty (30) days after the effective date of termination, all amounts owing to Consultant for Services completed prior to the termination date; and

 

(ii) Section 3 (Confidentiality), Section 4 (Ownership), Section 6 (Conflicting Obligations), Section 7 (Return of Company Materials), Section 9 (Term; Termination), Section 10 (Restrictive Covenants), Section 12 (Indemnification), Section 13 (Limitation of Liability), Section 14 (Representations and Warranties), and Section 15 (Miscellaneous) will survive the expiration or earlier termination of this Agreement in accordance with their respective terms.

 

 

10. Restrictive Covenants. In the course of the provision of the Services, the Consultant is likely to obtain knowledge or trade secrets of the Company. Accordingly, Consultant agrees that during the term of this Agreement and for a period of two years from the date of the termination or expiry of the Agreement, Consultant shall not, without the prior written consent of the Company:

 

Directly or indirectly employ, or solicit the employment of (whether as an employee, officer, director, agent, consultant or independent contractor) any person(s) who is or was at any time during the previous year an officer, director, representative, agent or employee of Company. If Consultant breaches this clause, it shall promptly pay to the Company a sum equal to the annual salary of the employee(s) in question (net of benefits) and the parties agree that this amount is a genuine pre-estimate of the loss that the Company is likely to suffer as a result of such breach.

 

The Consultant acknowledges and agrees that the restrictions set out in this clause are reasonable and necessary to protect the interests of the Company.

 

11. Relationship of the Parties.

 

(a) It is the express intention of the Company and Consultant that Consultant perform the Services as an independent contractor to the Company. Nothing in this Agreement shall in any way be construed to constitute Consultant as an agent, employee or representative of the Company. Without limiting the generality of the foregoing, Consultant is not authorized to bind the Company to any liability or obligation or to represent that Consultant has any such authority.

 

(b) Consultant agrees to furnish (or reimburse the Company for) all tools and materials necessary to accomplish this Agreement and shall incur all expenses associated with performance.

 

(c) Consultant acknowledges and agrees that Consultant is obligated to report as income all compensation received by Consultant pursuant to this Agreement. Consultant agrees to and acknowledges the obligation to pay all self-employment and other taxes on such income.

 

(d) The Company and Consultant agree that Consultant will receive no Company-sponsored benefits from the Company where benefits include, but are not limited to, paid vacation, sick leave, medical insurance, and 401(k) participation and the Company will not be responsible for withholding or paying any income, payroll, social security or other federal, state or local taxes, making any insurance contributions, including unemployment or disability, or obtaining worker’s compensation insurance on your behalf. Consultant will be responsible for, and shall indemnify the Company against, all such taxes or contributions, including penalties and interest.

 

(e) If Consultant is reclassified by a state or federal agency or court as the Company’s employee, Consultant will become a reclassified employee and will receive no benefits from the Company, except those mandated by state or federal law, even if by the terms of the Company’s benefit plans or programs of the Company in effect at the time of such reclassification, Consultant would otherwise be eligible for such benefits.

 

(f) Consultant shall be fully responsible for Consultant’s Personnel and fully indemnify the Company against any and all claims made by or on behalf of any member of Consultant’s Personnel.

 

 

12. Indemnification.

 

(a) Consultant agrees to indemnify and hold harmless the Company and its affiliates, and their respective directors, officers and employees, from and against all taxes, losses, damages, liabilities, costs and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from, or in connection with, (a) any negligent, reckless or intentionally wrongful act of Consultant or Consultant’s Personnel; (b) a determination by a court or governmental agency that the Consultant is not an independent contractor of the Company; (c) any breach by Consultant or Consultant’s Personnel of any of the representations, warranties, or covenants contained in this Agreement; (d) any failure of Consultant or Consultant’s Personnel to perform the Services in accordance with all applicable laws, rules and regulations; and I any violation or claimed violation of a third party’s rights resulting, in whole or in part, from the Company’s use of the Inventions of Consultant under this Agreement.

 

(b) Company agrees to indemnify and hold harmless the Consultant and its affiliates, and their respective directors, officers and employees, from and against all taxes, losses, damages, liabilities, costs and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from, or in connection with, any breach by Company of any of the representations, warranties, or covenants contained in this Agreement.

 

13. Limitation of Liability. IN NO EVENT SHALL COMPANY BE LIABLE TO CONSULTANT OR TO ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS OR LOSS OF BUSINESS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL COMPANY’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS PAID BY COMPANY TO CONSULTANT UNDER THIS AGREEMENT FOR THE SERVICES, DELIVERABLES OR INVENTION GIVING RISE TO SUCH LIABILITY.

 

14. Representations and Warranties. Consultant represents and warrants to the Company that: (a) Consultant has the required skill, experience, and qualifications to perform the Services, Consultant shall perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, and Consultant shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner and (b) Consultant shall perform the Services in compliance with all applicable federal, state, and local laws and regulations, including by maintaining all licenses, permits, and registrations required to perform the Services and (c) Consultant’s execution, delivery and performance of this Agreement will not violate or cause a breach of any existing employment, consultant or any other agreement, covenant, promise or any other duties by which Consultant is bound, including confidentiality obligations or covenants not to compete including any present or previous employer.

 

 

15. Miscellaneous.

 

(a) Compliance with the Law. During the performance of the Services, Consultant, at his own expense and at all times, shall comply with any and all laws and ordinances and any and all rules, regulations, and orders of public authorities applicable thereto, including, but not limited to, tax and social welfare laws, applicable worker’s compensation laws, unemployment insurance requirements, employer’s liability requirements, and minimum wage. Consultant shall file all reports required to be filed in the name of Consultant and pay all taxes, fees and charges required by laws, rules, regulations, and orders, and shall, without reimbursement by Company, indemnify Company against any and all liabilities and penalties by reason of any failure on the part of Consultant to comply with any such laws, orders, rules, and regulations.

 

(b) Governing Law; Consent to Personal Jurisdiction. This Agreement shall be governed by the laws of the State of Delaware, without regard to the conflicts of law provisions of any jurisdiction. To the extent that any lawsuit is permitted under this Agreement, the Parties hereby expressly consent to the personal and exclusive jurisdiction and venue of the state and federal courts located in the District of Delaware.

 

(c) Assignability. This Agreement will be binding upon Consultant and its permitted successors and permitted assigns, and will be for the benefit of the Company, its successors, and its assigns. There are no intended third-party beneficiaries to this Agreement, except as expressly stated. Except as may otherwise be provided in this Agreement, Consultant may not sell, assign or delegate any rights or obligations under this Agreement. Notwithstanding anything to the contrary herein, Company may assign this Agreement and its rights and obligations under this Agreement to any successor to all or substantially all of Company’s relevant assets, whether by merger, consolidation, reorganization, reincorporation, sale of assets or stock, change of control or otherwise.

 

(d) Injunctive Relief and Damages. Consultant acknowledges and agrees that the covenants and obligations of Consultant set forth in Sections 3, 4, 5 and 10 relate to special, unique and extraordinary matters and that a violation of any of the terms of such covenants and obligations will cause the Company irreparable injury for which adequate remedies are not available at law. Therefore, Consultant agrees that the Company shall be entitled to an injunction, restraining order or such other equitable relief (without the requirement to post bond) as a court of competent jurisdiction may deem necessary or appropriate to restrain Consultant from committing any violation of the covenants and obligations referred to above. These injunctive remedies are cumulative and in addition to any other rights and remedies the Company may have at law or in equity. Nothing contained in this Section shall be construed as prohibiting the Company from pursuing any other remedies available to it for any such breach or threatened breach, including recovery of damages and an equitable accounting of all earnings, profits and other benefits arising from such violation.

 

(e) Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter herein and supersedes all prior written and oral agreements, discussions, or representations between the Parties, which shall have no further force or effect. Consultant represents and warrants that Consultant is not relying on any statement or representation not contained in this Agreement.

 

 

(f) Headings. Headings are used in this Agreement for reference only and shall not be considered when interpreting this Agreement.

 

(g) Severability. If a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision of this Agreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.

 

(h) Amendment; Waiver. No modification of, or amendment to, this Agreement, and no waiver of any rights under this Agreement, will be effective unless in a writing signed by the Parties. Waiver by the Company of a breach of any provision of this Agreement will not operate as a waiver of any other or subsequent breach.

 

(i) Notices. Any notice or other communication required or permitted by this Agreement to be given to a Party shall be in writing and delivered to such Party’s address for notice set forth on the signature page to this Agreement or, if no such address is provided, to the last address of such Party provided to the other Party and any such notice shall be deemed given: (i) when delivered, if given personally or by commercial messenger or courier service; (ii) three (3) business days after mailing, if delivered by U.S. registered or certified mail (return receipt requested) to the Party at the Party’s address written below or at such other address as the Party may have previously specified by like notice; or (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient.

 

(j) Attorneys’ Fees. In any court action at law or equity that is brought by a Party to enforce or interpret the provisions of this Agreement, the prevailing Party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that Party may be entitled.

 

(k) Signatures. This Agreement may be signed in two counterparts, each of which shall be deemed an original, with the same force and effectiveness as though executed in a single document. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

 

[Remainder of page intentionally left blank.]

 

 

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.

 

	Company:
	BESS LLC,
	a Delaware limited liability company
	By:
		Name:	Vincent Browne
		Title:	Director
	Address:
		17 State Street, Suite 4000
		New York, NY 10004
		Attention: Vincent Browne
	Consultant:
	ASSURE POWER, LLC,
	a Wyoming limited liabilty company
	By:
		Name: Gary Gray
	Address:
	3233 Brookside Court
	Tarpon Springs, FL 34688

 

 

 

Exhibit 99.1

 

Alternus Clean Energy Completes Acquisition of LiiON, a Leading US-Based Provider of Advanced Energy Storage Solutions

 

LiiON brings major clients like Amazon, Walmart, and NASA

 

Completed acquisition is a significant step in Alternus’ transition to become a more comprehensive clean energy provider

 

New York, NY, December 12, 2024 – Alternus Clean Energy, Inc. (“Alternus”, Nasdaq: ALCE), a global provider of international renewable energy solutions, announces today it has completed the acquisition of LiiON, LLC (“LiiON”) through an asset purchase agreement, entered into with one of Alternus’ US subsidiaries. LiiON is a U.S.-based leader in advanced energy storage solutions. The company was founded in 2009 by a team of senior power quality experts with extensive backgrounds in engineering, marketing, and sales of energy storage technologies and services, having worked with some of the top battery companies in the industry.

 

Alternus will pay $5 million through a mix of debt and equity- under the asset purchase agreement, acquiring LiiON’s customer contracts, service agreements, and partnerships. LiiON will also exclusively license its intellectual property to Alternus as applicable. The total consideration sees Alternus issuing a $2 million non-convertible loan note payable over three years, and 250,000 shares of common stock, reflecting an underlying share price of $12.00 per share. The acquisition immediately improves Alternus’ shareholder equity by approximately $3 million.

 

The completion of the LiiON acquisition is a critical step for Alternus as it pursues its strategy to become a more comprehensive energy provider. Beyond the ongoing revenues generated by LiiON, the company’s state-of-the-art battery technologies and engineering capabilities will enhance Alternus’ market reach and customer offerings, enabling clients to achieve greater energy reliability, efficiency, and sustainability from their owned assets.

 

LiiON also brings a roster of blue-chip clients, including Amazon, Walmart, and NASA. Alternus plans to build on these relationships to drive growth in its new microgrid market segment and establish a dedicated Battery Energy Storage Systems (BESS) division to expand its utility storage pipeline. LiiON’s existing revenues will be integrated into Alternus’ BESS division.

 

Alternus plans to closely integrate LiiON’s technical capabilities with its pending joint venture with Hover Energy, LLC. The joint venture will strategically combine Hover Energy’s patented microgrid portfolio, which includes wind generators and energy control systems, with Alternus’ expertise in solar energy, project finance, development, and now storage. Installed on the rooftops of buildings, Hover’s Wind-Powered-Microgrid™ provides 24-hour, on-site, “behind the meter” power. The JV entity will also enjoy access to key LiiON customers to address their growing need for energy.

 

Vincent Browne, CEO of Alternus, stated, “Completing this acquisition is a significant step forward for Alternus as we execute our strategy to become a comprehensive energy provider, encompassing utility-scale solar, clean energy microgrids, and other clean technologies. This acquisition is immediately accretive to shareholder equity, adds sustainable revenue streams, and introduces a roster of blue-chip customers, positioning Alternus for renewed growth and long-term success. It is also the perfect complement to our microgrid segment as we focus on addressing the energy challenges created by increased power demand from data centers and corporates that make up most of LiiON’s existing customers.”

 

 

Gary Gray, CEO of LiiON, LLC, commented, “We are very excited to join the Alternus team and to growing our business further as part of a larger group. Whether in utility-scale solar or distributed energy resources like microgrids, the energy storage market is a key enabler of the clean energy transition. LiiON’s systems are designed to deliver reliability and performance in even the most demanding environments. We’re thrilled to join Alternus and contribute to what is set to be an incredible journey of growth and innovation.”

 

About Alternus Clean Energy, Inc.: 

 

Alternus is a transatlantic clean energy independent power producer. Headquartered in the United States, we currently develop, install, own, and operate utility scale solar parks in North America and Europe. Our highly motivated and dynamic team at Alternus have achieved rapid growth in recent years. Building on this, our goal is to reach 3GW of operating projects within five years through continued organic development activities and targeted strategic opportunities. Our vision is to become a leading provider of 24/7 clean energy delivering a sustainable future of renewable power with people and planet in harmony. For more information, please visit https://alternusce.com/.

 

About LiiON, LLC:

 

LiiON, LLC is addressing the $3 billion renewable and stored energy markets by delivering proprietary lithium stored energy solutions into applications for the data center, telecom, cable, and solar/wind enterprise markets. By developing the best chemistry for each application and market segment — with designs that are safe, cost-effective and modular —LiiON’s advanced, patented and patent-pending platform is engineered to work with existing equipment, controls and monitoring systems to ensure power quality uptime and protection. Established in 2009, LiiON was founded by a group of senior power quality experts with an extensive background in sales, engineering and marketing. Leveraging its knowledge and relationships, the team has designed and built solutions that have been tested and endorsed by key OEM customers in the global power quality and standby power markets. For more info, please visit http://www.liionllc.com.

 

Forward-Looking Statements

 

Certain information contained in this release, including any information on the Company’s plans or future financial or operating performance and other statements that express the Company’s management’s expectations or estimates of future performance, constitute forward-looking statements. When used in this notice, words such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “possible,” “potential,” “predict,” “project,” “should,” “would” and similar expressions, as they relate to us or our management team, identify forward-looking statements. Such forward-looking statements are based on the beliefs of management, as well as assumptions made by, and information currently available to, the Company’s management. Such statements are based on a number of estimates and assumptions that are subject to significant business, economic and competitive uncertainties, many of which are beyond the control of the Company. The Company cautions that such forward-looking statements involve known and unknown risks and other factors that may cause the actual financial results, performance or achievements of the Company to differ materially from the Company’s estimated future results, performance or achievements expressed or implied by the forward-looking statements. These statements should not be relied upon as representing Alternus’ assessments of any date after the date of this release. The Company undertakes no obligation to update these statements for revisions or changes after the date of this release, except as required by law.

 

Contact Information:

 

Media Contact: ir@alternusenergy.com

 

 

 

v3.24.3

Cover	Dec. 11, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Dec. 11, 2024
Entity File Number	001-41306
Entity Registrant Name	ALTERNUS CLEAN ENERGY, INC.
Entity Central Index Key	0001883984
Entity Tax Identification Number	87-1431377
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	17 State Street
Entity Address, Address Line Two	Suite 4000
Entity Address, City or Town	New York
Entity Address, State or Province	NY
Entity Address, Postal Zip Code	10004
City Area Code	212
Local Phone Number	739-0727
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, par value $0.0001 per share
Trading Symbol	ALCE
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	true
Elected Not To Use the Extended Transition Period	false

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