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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):
January 19, 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) |
360 Kingsley Park Drive, Suite 250
Fort Mill, South Carolina |
|
29715 |
(Address of registrant’s principal executive office) |
|
(Zip code) |
(800) 581-1531
(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 January 19, 2024, Solis Bond Company Designated
Activity Company (“Solis”), a company incorporated under the laws of Ireland and indirect wholly owned subsidiary of
Alternus Clean Energy, Inc. (the “Company”) entered into a Final Share Purchase Agreement (the “Final SPA”)
by and between Solis and Donau Investment SARL, a private limited liability company formed under the laws of Luxembourg (“Donau,”
and together with Solis, the “Parties”), pursuant to the Preliminary Share Purchase Agreement (the “Preliminary
SPA,” and together with the Final SPA, the “Poland SPA”) previously entered into on December 22, 2023, by
and between the Parties and previously disclosed on the Euronext Growth Oslo stock exchange (the “Euronext”) on December
22, 2023. Pursuant to the Poland SPA, among other things, Solis sold to Donau, and Donau purchased from Solis, 100% of the share capital
in six separate entities, each of which were wholly owned by Solis and which, in the aggregate, held a portfolio of solar farm projects
in Poland with an aggregate capacity of approximately 88.5MW. In exchange, Donau will pay to Solis approximately €54.4 million
(approximately $59.1 million) subject to and in accordance with to the terms and conditions of the Poland SPA.
The Poland SPA contains customary representations,
warranties and covenants for transactions of its size and type, along with certain limitations of Solis’ liability under the Poland
SPA and the transactions contemplated thereby. The representations, warranties and covenants set forth in the Poland SPA have been made
only for the purposes of the Poland SPA and solely for the benefit of Solis and Donau, respectively, and may be subject to limitations
agreed upon by such parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk
between the such parties under the Poland SPA, instead of establishing these matters as facts. In addition, such representations and warranties
were made only as of the dates specified in the Poland SPA, and information regarding the subject matter thereof may change after the
date of the Poland SPA.
The foregoing description Poland SPA does not purport
to be complete and is qualified in its entirety by reference to the complete text of each of the Final SPA and the Preliminary SPA, copies
of which are filed as Exhibits 10.1 and 10.2, respectively, attached hereto and incorporated herein 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 7.01. Regulation FD Disclosure.
On January 19, 2024, Alternus Energy Group plc
(OSE: ALT), a majority stockholder of the Company, disclosed in a Euronext notice Solis’ entry into the Final SPA. A copy of such
notice is attached hereto as Exhibit 99.1 and incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
| † | Certain exhibits and schedules to this exhibit have been omitted
in accordance with Regulation S-K Item 601(b)(10)(iv). The Company agrees to furnish supplementally a copy of all omitted exhibits and
schedules to the SEC upon its request. |
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: January 22, 2024 |
ALTERNUS CLEAN ENERGY, INC. |
|
|
|
|
By: |
/s/ Vincent Browne |
|
Name: |
Vincent Browne |
|
Title: |
Chief Executive Officer and Chairman of the Board of Directors |
3
Exhibit
10.1
FINAL SHARE TRANSFER AGREEMENT
THIS TRANSFER AGREEMENT (“Agreement”)
is concluded in Warsaw on 18 January 2024 and made between:
THE PARTIES:
| (1) | SOLIS BOND COMPANY DESIGNATED ACTIVITY COMPANY, a private limited company incorporated in Ireland
on 16 March 2022 under registration number 679734 with its registered office at Suite 9/10, 212, Blanchardstown Corporate Park 2, Dublin
15, Ireland (“Seller”), |
and
| (2) | DONAU INVESTMENT S.À R.L., with its registered office in Luxembourg, 80 Route d’Esch,
1470 Luxembourg, entered into the business register of the Luxembourg Business Registers G.I.E under the number B233537 (“Buyer”). |
The Seller
and the Buyer are hereinafter referred to jointly as the “Parties”.
WHEREAS:
| (A) | The Seller holds all shares (jointly “Shares”) in the share capital of the companies
listed in Schedule (A) hereto (jointly “Companies”). |
| (B) | On 22 December 2023, the Seller and the Buyer entered into a preliminary sale and purchase agreement (“PSPA”)
pursuant to which the Buyer and Seller each undertook to execute this Agreement which shall provide for the sale of the Shares by the
Seller to the Buyer (umowa przyrzeczona), subject to the terms and conditions set forth in the SPA. |
| (C) | As of the date hereof the Parties wish to complete the Transaction contemplated in the PSPA by concluding
this Agreement. |
NOW, THEREFORE, the Parties hereby agree
as follows:
| 1.1. | Capitalized terms not otherwise defined in this Agreement shall have the meanings ascribed to them in
the PSPA. |
| 2. | TRANSFER OF THE SOLD SHARES |
| 2.1. | In performance of the obligations of the Seller and the Buyer resulting from the PSPA and pursuant to
the terms and conditions of the PSPA, the Seller hereby sells and transfers the full legal title to the Shares together with
all rights attached thereto to the Buyer while the Buyer buys and accepts the transfer of the Shares together with all rights attached
thereto, for the Purchase Price, i.e. the amount of EUR 4,689,520.47 (in words: four million six hundred eighty-nine thousand five hundred
twenty euro and 47/100) which has been calculated in accordance with Clause 3.1 to PSPA and which shall be paid in accordance with
Clause 3.6 to SPA. The exact allocation of the Purchase Price between the respective Shares in the Project Companies is indicated
in Schedule 3.1 to the PSPA. |
| 2.2. | The Parties agree that the transfer of the full legal title to the Shares will occur upon payment by the
Buyer and crediting of the Purchase Price Tranche 1 amounting to EUR 3,189,520.47 (in words: three million one hundred eighty-nine thousand
five hundred twenty euro and 47/100) and the Shareholder Loan Amounts amounting to EUR 49,738,944.64 (in words: forty-nine million, seven
hundred thirty-eight thousand, nine hundred forty-four euro and 64/100) on the Solis Bond Restricted Bank Account. |
| 3.1. | The Parties acknowledge and agree that this Agreement is entered into for the sole purpose of transferring
the legal title to the Shares, subject to the Clause 3.2 and 3.3 below which, in accordance with intention of the Parties, shall
amend the PSPA in the scope as indicated below. The terms and conditions of the PSPA continue to fully apply to the sale and transfer
of the Shares under this Agreement. Any liability of the Seller and the Buyer shall arise solely under and be subject to the terms and
conditions of the PSPA, and the Buyer shall have no additional rights, and hereby waives any and all additional claims, against the Seller
in connection with the sale and transfer of the Shares to the Buyer pursuant to this Agreement. |
| 3.2. | Notwithstanding the foregoing, the Parties hereby states and confirm that the Completion shall take place
on 18 January 2024 and hereby shall be deemed as amendment to Clause 6.1 of the PSPA. |
| 3.3. | In addition to Clause 7.3 of the PSPA, the Parties hereby confirm that the list of documents related to
the SolarPark Samas Witnica Project, which constitutes Schedule 3.3 hereto, shall be deemed a part of the Schedule 7.3 to the PSPA. |
| 4.1. | No variation, supplement, modification to, deletion or waiver of this Agreement shall be binding unless
made in writing and signed by each of the Parties with notarized signatures. |
| 4.2. | If any provision of this Agreement is held to be illegal, invalid or unenforceable, the validity and enforceability
of the remaining provisions shall not in any way be affected or impaired, but any such provision shall be applied with such modifications
as may be necessary to make it valid, binding and enforceable, provided that the so modified provision is consistent with the meaning
and the purpose of this Agreement. |
| 4.3. | This Agreement and all matters (including, without limitation, any contractual or non-contractual obligation)
arising from or connected with it are governed by, and will be construed in accordance with, Polish law, exclusive of its conflict of
law rules. |
| 4.4. | Clauses 11, 14, 15, 16, 17, 18 and 19 of the PSPA shall apply mutatis
mutandis to this Agreement. |
| 4.5. | All disputes arising out of, or in connection with this Agreement, including a breach, termination or
invalidity thereof, shall be finally settled by the Court of Arbitration at the Polish Chamber of Commerce (Krajowa Izba Gospodarcza)
in Warsaw. The place of arbitration shall be Warsaw (Poland). The language to be used in the arbitral proceedings shall be English. |
| 4.6. | This Agreement has been made in the English language in two counterparts, each of which is an original
but all of which taken together shall constitute one and the same instrument. |
EXECUTED by the Parties:
Signed for and on behalf of the Seller: |
|
Signed for and on behalf of the Buyer: |
|
|
|
/s/ Witold Kurek, attorney-in-fact |
|
/s/
Fei Yang, sole manager (gerant unique) |
signature / name / position |
|
signature / name / position |
|
|
|
|
|
|
signature / name / position |
|
signature / name / position |
SCHEDULE (A)
PROJECT COMPANIES
No |
Project Company |
Shares |
1 |
Solarark Samas spółka z ograniczoną
odpowiedzialnością with its registered office in Warsaw, address: ul. Garażowa 5A, 02-651 Warsaw, entered in the
commercial register of the National Court Register kept by the district court the Capital City of Warsaw in Warsaw, 13th Commercial Division
of the National Court Register under number KRS: 0000584357 (“SolarPark Samas”)
|
“Solarpark Samas Shares” means 100 shares with a nominal value of PLN 50 (fifty Polish zlotys) each share and the total nominal value of PLN 5,000 (five thousand Polish zlotys), constituting 100% of all the issued share capital of Solarpark Samas and 100% (one hundred percent) of the votes at the shareholders’ meeting of Solarpark Samas. |
2 |
RA01 spółka z ograniczoną
odpowiedzialnością with its registered office in Warsaw, address: ul. Garażowa 5A, 02-651 Warsaw, entered in the
commercial register of the National Court Register kept by the district court the Capital City of Warsaw in Warsaw, 13th Commercial Division
of the National Court Register under number KRS: 0000802648 (“RA01”)
|
“RA01 Shares” means 100 shares with a nominal value of PLN 50 (fifty Polish zlotys) each share and the total nominal value of PLN 5,000 (five thousand Polish zlotys), constituting 100% of all the issued share capital of RA01 and 100% (one hundred percent) of the votes at the shareholders’ meeting of RA01. |
3 |
Gardno PV spółka z ograniczoną
odpowiedzialnością with its registered office in Warsaw, address: ul. Garażowa 5A, 02-651 Warsaw, entered in the
commercial register of the National Court Register kept by the district court the Capital City of Warsaw in Warsaw, 13th Commercial Division
of the National Court Register under number KRS: 0000765062 (“Gardno PV”)
|
“Gardno PV Shares” means 100 shares with a nominal value of PLN 50 (fifty Polish zlotys) each share and the total nominal value of PLN 5,000 (five thousand Polish zlotys), constituting 100% of all the issued share capital of Gardno PV and 100% (one hundred percent) of the votes at the shareholders’ meeting of Gardno PV. |
4 |
Gardno2 PV spółka z ograniczoną odpowiedzialnością with its registered office in Warsaw, address: ul. Garażowa 5A, 02-651 Warsaw, entered in the commercial register of the National Court Register kept by the district court the Capital City of Warsaw in Warsaw, 13th Commercial Division of the National Court Register under number KRS: 0000789820 (“Gardno2 PV”) |
“Gardno2 PV Shares” means 100 shares with a nominal value of PLN 50 (fifty Polish zlotys) each share and the total nominal value of PLN 5,000 (five thousand Polish zlotys), constituting 100% of all the issued share capital of Gardno2 PV and 100% (one hundred percent) of the votes at the shareholders’ meeting of Gardno2 PV. |
5 |
Elektrownia PV Komorowo spółka
z ograniczoną odpowiedzialnością with its registered office in Warsaw, address: ul. Garażowa 5A, 02-651 Warsaw,
entered in the commercial register of the National Court Register kept by the district court the Capital City of Warsaw in Warsaw, 13th
Commercial Division of the National Court Register under number KRS: 0000812542 (“Elektrownia PV Komorowo”)
|
“Elektrownia PV Komorowo Shares” means 100 shares with a nominal value of PLN 50 (fifty Polish zlotys) each share and the total nominal value of PLN 5,000 (five thousand Polish zlotys), constituting 100% of all the issued share capital of Elektrownia PV Komorowo and 100% (one hundred percent) of the votes at the shareholders’ meeting of Elektrownia PV Komorowo. |
6 |
PV Zachód spółka z ograniczoną
odpowiedzialnością with its registered office in Warsaw, address: ul. Garażowa 5A, 02-651 Warsaw, entered in the
commercial register of the National Court Register kept by the district court the Capital City of Warsaw in Warsaw, 13th Commercial Division
of the National Court Register under number KRS 0000756677 (“PV Zachód”)
|
“PV Zachód Shares” means
1,000 shares with a nominal value of PLN 50 (fifty Polish zlotys) each share and the total nominal value of PLN 50,000 (fifty thousand
Polish zlotys), constituting 100% of all the issued share capital of PV Zachód and 100% (one hundred percent) of the votes at the
shareholders’ meeting of PV Zachód. |
SCHEDULE 3.3
[LIST OF HANDOVER DOCUMENTS (SOLARPARK SAMAS
WITNICA PROJECT)]
[*]
4
Exhibit 10.2
SOLIS
BOND COMPANY DESIGNATED ACTIVITY COMPANY LIMITED
and
DONAU
INVESTMENT S.À R.L.
|
PRELIMINARY
SHARE PURCHASE AGREEMENT
concluded
on
22
December 2023 |
|
Table
of Contents
1. |
INTERPRETATION |
1 |
2. |
SALE AND PURCHASE OF SHARES |
12 |
3. |
PURCHASE PRICE |
12 |
4. |
LEAKAGE |
14 |
5. |
CONDITIONS |
15 |
6. |
COMPLETION |
17 |
7. |
SELLER’S POST COMPLETION UNDERTAKING |
19 |
8. |
THE SELLER’S WARRANTIES |
21 |
9. |
THE BUYER’S REMEDIES |
22 |
10. |
THE BUYER’S WARRANTIES AND UNDERTAKINGS |
22 |
11. |
INTERIM PERIOD COVENANTS |
24 |
12. |
THE BUYER’S POST-COMPLETION UNDERTAKING |
26 |
13. |
CONFIDENTIAL INFORMATION |
26 |
14. |
ANNOUNCEMENTS |
27 |
15. |
COSTS |
28 |
16. |
GENERAL |
28 |
17. |
ASSIGNMENT |
28 |
18. |
NOTICES |
28 |
19. |
GOVERNING LAW AND DISPUTE RESOLUTION |
29 |
20. |
GOVERNING LANGUAGE |
29 |
21. |
COUNTERPARTS |
30 |
THIS
PRELIMINARY SHARE PURCHASE AGREEMENT is made on 22 December 2023 (“Agreement”),
BETWEEN:
| (1) | SOLIS
BOND COMPANY DESIGNATED ACTIVITY COMPANY, a private limited company incorporated in Ireland
under registration number: 679734 with its registered office at Suite 9/10, 212, Blanchardstown
Corporate Park 2, Dublin 15, Ireland (“Seller”), |
and
| (2) | DONAU
INVESTMENT S.À R.L., with its registered office in Luxembourg, 80 Route d’Esch,
1470 Luxembourg, entered into the business register of the Luxembourg Business Registers
G.I.E under the number: B233537 (“Buyer”). |
The
Seller and the Buyer are hereinafter also jointly referred to as the “Parties” and each of them as the “Party”.
INTRODUCTION:
| (A) | The
Seller is the sole shareholder of the Project Companies. |
| (B) | Subject
to the terms and conditions specified in this Agreement, the Buyer intends to purchase and
the Seller intends to sell all the Shares in all the Project Companies. |
| (C) | Moreover,
the Buyer intends to step into all rights of the Seller as creditor under the existing Shareholder
Loans by repaying the Seller on behalf of each of the Project Company and the Seller intends
to agree to such repayment and acquisition of rights on the terms and conditions as set out
in the Subrogation Agreement. |
| (D) | The
Seller has initiated the sale of the Shares through a controlled auction process and the
Buyer has been selected as the purchaser of the Shares. |
THE
PARTIES AGREE as follows:
“Accounting
Act” means the Polish Accounting Act (ustawa o rachunkowości) of 29 September 1994 (as amended);
“Accounts”
means the financial accounts (sprawozdanie finansowe) of each Project Company for the financial year ended on the relevant
Accounting Date including notes to these accounts and the relevant directors’ reports for that year on those accounts;
“Accounting
Dates” means 31 December 2020, 31 December 2021, 31 December 2022 and 31 July 2023, and the term “Accounting Date”
shall be construed accordingly;
“Applicable
Law” means, with respect to any person, any law, decree, statute, rule, regulation, order, writ, directive, judgment, and other
pronouncements having the effect of law in Poland, the European Union or any member state thereof, or any other country, jurisdiction,
region, city or other political subdivision of any of the foregoing, in each case applicable to such person;
“Asset”
means an asset, owned or leased by any of the Project Companies;
“Breach
of Warranty” has the meaning given in paragraph 1.1 of Schedule 8.3;
“Building
Permit” means a building permit issued in accordance with the provisions of the Act of 7 July 1994 – Construction law
(as amended) (Prawo budowlane) for the Project, issued for the benefit of the relevant Project Company, allowing for construction
of the Project;
“Business
Day” means a day other than a Saturday, Sunday or public holiday, on which banks are generally open in Poland, Ireland, PRC,
Hong Kong SAR and Luxembourg for the conduct of normal banking business;
“Buyer’s
Group Undertaking” means the Buyer or an undertaking which is, on or at any time after the date of this Agreement, a subsidiary
undertaking or parent undertaking of the Buyer or a subsidiary undertaking of a parent undertaking of the Buyer and includes, for the
avoidance of doubt, each Project Company after Completion;
“Buyer’s
Lawyers” means CMS Cameron McKenna Nabarro Olswang Pośniak i Bejm sp.k., ul. Chmielna 69, Warsaw 00-801, Poland;
“Buyer’s
Warranties” means the statements contained in Clause 10.1;
“Civil
Code” means the Polish civil code (Kodeks cywilny) of 23 April 1964 (as amended);
“Claim”
means a claim by the Buyer under or pursuant to this Agreement or in connection with it, including Warranty Claim, or a claim by
the Buyer under any other Transaction Document or in connection with it;
“Claim
Notice” has the meaning given in paragraph 7.1.1 of Schedule 8.3;
“CMA”
means the agreement for Commercial Management Services concluded on 1 October 2020 between SolarPark Samas and BayWa r.e. Polska
sp. z o. o.;
“Completion”
means completion of all of the Completion Actions;
“Completion
Actions” has the meaning given in Clause 6.2;
“Completion
Date” has the meaning given in Clause 6.1;
“Completion
Documents” has the meaning given in Clause 10.1.4;
“Conditions”
has the meaning given in Clause 5.1;
“Daily
Accrued Interest” means an amount equal to a sum of Purchase Price Tranche 1, Purchase Price Tranche 2 and Shareholder Loan
Amounts, multiplied by 5% and divided by 365;
“Data
Room” means the information and documents made available by the Seller to the Buyer and its advisers through the electronic
data room organised on behalf of the Seller by iDeals and accessible via the website at iDeals.com 1 opened from 27 July
2023 until 8 September 2023, the content of which has been recorded on USB flash stick, which have been attached as Schedule 1.1(A);
| 1 | https://auth.idealsvdr.com/login?ReturnUrl=https:%2F%2Fauth.idealsvdr.com%2Fconnect%2Fauthorize%2Fcallback%3Fresponse_type%3Dcode%26client_id%3Dvdr8%26state%3D5zq9gThBKSE3_K0T7eicFIGDQtOfPh0wwcyK78A6Cs0;https%253A%252F%252Fwww8.idealsvdr.com%252Fv3%252FRename_This_Data_Room_k5j2s%252F%26redirect_uri%3Dhttps%253A%252F%252Fwww8.idealsvdr.com%252Fv3%252FSso2RedirectUri%26scope%3Dopenid%2520profile%2520api%2520offline_access%26code_challenge%3DSOyvoZkVhnLpE-qWVbazfm73VN5kCnhoRvOcrq21H3g%26code_challenge_method%3DS256%26room%3Dwww8.idealsvdr.com_Rename_This_Data_Room_k5j2s%26room_name%3DRename_This_Data_Room_k5j2s#/documents?path=1758843 |
“Disclosure
Letter” means the letter executed in the written form, delivered by the Seller to the Buyer on the date falling 5 Business Days
before the Execution Date, setting out the information relating to the Project Companies, content of which has been agreed by the Parties
before the date of this Agreement; the copy of the Disclosure Letter constitutes Schedule 1.1(B) to this Agreement;
“Encumbrance”
means any limited right in rem, claim or any other right under a contract, including a mortgage, charge, pledge (including
registered, civil, state treasury or financial pledge), option, right of first refusal, right of pre-emption, right of first offer, right
or share of a third party, easement, title transfer or retention arrangement, guarantee, indemnity, seizure, security interest, claim
or other encumbrance or right exercisable by a third party having similar effect, regardless of whether such a right is subject to Polish
law or another law, including an obligation or agreement to establish any of the foregoing; the term “Encumbrance” shall
apply accordingly to related terms such as “Encumbered” and “Encumber”;
“Environmental
Law” means all Polish Applicable Law regarding: environmental protection and conditions of use of environment resources, the
costs using the of environment and liability for damages to the environment, dealing with waste, in particular imitating its quantity,
preventing its creation or limitation of its negative influence;
“Environmental
Permit” means a permit on environmental conditions (decyzja o środowiskowych uwarunkowaniach) issued in accordance
with the provisions of the Act of 3 October 2008 on sharing information concerning environment and its protection, participation of society
in environmental protection and on environmental impact assessments (as amended) (ustawa o udostępnianiu informacji o środowisku
i jego ochronie, udziale społeczeństwa w ochronie środowiska oraz o ocenach oddziaływania na środowisko)
for construction of the Projects, concerned with the pollution or protection of the environment (including the disposal of waste) or
harm to or the protection of the health of humans, animals or plants, required by Environmental Law;
“EUR”
means Euros, being the official currency of the Eurozone, which is part of the European Union;
“Event”
means an event, act, transaction or omission including a receipt or accrual of income or gains, distribution, failure to distribute,
acquisition, disposal, transfer, payment, loan or advance;
“Execution
Date” means the date of this Agreement as stated in the heading of this Agreement;
“Fairly
Disclosed” means an event, fact, matter or circumstance being disclosed in the Data Room or arising from the Disclosure Letter
in such a way as would allow a reasonable acquirer (together with professional legal, financial and tax advisors acting reasonably, to
understand the nature of such events, facts, matters or circumstances and (i) identify the nature and scope of such matter, and (ii) assess
the matter disclosed and its impact on the relevant Project Company and/or Shares; in particular the following manners of disclosure
of facts are not Fairly Disclosed: (i) a disclosure of derivative fact the main content of which is included in a source, which is not
a disclosed information, (ii) a disclosure of facts solely by a reference to a source, which is not a disclosed information and (iii)
fact that was partially disclosed in a number of documents, which constitute disclosed information, unless all such documents were presented
together and explicitly indicated to the Buyer and/or its advisors.
“Final
Agreement” means the final agreement for the sale and transfer of all the Shares in the Project Companies from the Seller to
the Buyer, to be concluded on Completion Date between the Seller and the Buyer in the form set out in Schedule 1.1(C);
“Fundamental
Warranties” means the Seller’s representations and warranties set out in Schedule 8.1 in the following paragraphs:
1. Capacity Warranties; 2. Shares; 3. The Project Companies (sections 3.1 to 3.11); 4. Permits and
Projects and included in Part B (Tax) (section 1.17);
“FY22
CIT Evidence” has the meaning given in Clause 7.6;
“FY22
CIT Retained Amount” means the corporate income tax in the total amount of EUR 33,665 for the year ended 31 December 2022 to
be refunded by the relevant Tax Authority to PV Zachód, and the FY22 CIT Refund Amount shall be construed accordingly;
“GCA”
means grid connection agreements concluded with the relevant distribution system operator;
“GCC”
means grid connection conditions issued by the relevant distribution system operator;
“Governmental
Authority” means any supra-national, national, sub-national or local, governmental, administrative, regulatory, law-enforcement,
judicial or other body, authority or agency or competent jurisdiction in any jurisdiction;
“Intellectual
Property” means:
| (a) | all
rights arising from and relating to the creative efforts performed regardless of whether
they are/were subject to registration or not, in particular but not only rights to: patents
(including patents granted under the simplified procedure), trademarks, trade names, business
names, press titles, service marks, logos, product appearance and packaging, geographical
indications and appellations and other marks used in commerce, Internet domain names and
rights related to it, technology secrets, technology documentation, trade secrets, utility
models, utility designs, designations of origin, microchip layouts, ornamental designs, industrial
designs, designs, copyrights (including author’s economic rights, author’s moral
rights, derivative rights and related rights), neighbouring rights, know-how, rights in designs
and inventions, rights to computer programmes, databases, source codes, integrated circuits,
and other similar rights sui generis, and any other rights of intellectual and industrial
property and the rights of the same or similar effect or nature as those listed above, anywhere
in the world; |
| (b) | rights
under licences, consents, orders, statutes or otherwise in relation to a right in paragraph
(a) (including, inter alia, rights to applications submitted and rights to submit
an application for registration or extension of the rights being subject to registration);
and |
| (c) | rights
with the same or similar effect or nature as or to those in paragraphs (a) and (b); |
“Intellectual
Property Rights” means all Intellectual Property used by the Project Companies which are necessary to run their business activity;
“Interim
Period” means the period between the Execution Date and the Completion Date;
“Intragroup
Agreements” means any agreement between any of the Project Companies and any Seller or any of the Seller’s Group Undertakings
with or without a third party as a party and excluding the Shareholder Loan Agreements;
“Land
Lease Agreements” means the lease agreements securing the Projects’ necessary land rights, secured against the underlying title,
for the access, construction, grid connection, operation and decommissioning of the Projects for a period not less than 25 years from
the signing of such agreement listed in Appendix 5.2 to Schedule 8.1;
“Leakage”
means any of the following events or circumstances occurring after the Locked Box Date but on or before the Completion Date: (i)
any management charge, service fee or other fees or compensations of the similar nature levied or charged by the Seller or any Seller’s
Group Undertaking against any of the Project Companies or payment of any management charge, service fee or other fees or compensations
of the similar nature from any of the Project Companies to the Seller or any Seller’s Group Undertaking, (ii) acquisition or disposal
of any business or assets for the benefit of the Seller or any Seller’s Group Undertaking by any of the Project Companies, (iii) waiver,
remittance or release of any debt or amount owed by the Seller or any Seller’s Group Undertaking to any of the Project Companies, in
whole or in part, by any of the Project Companies, (iv) any fee or expense to any person in connection with the Transaction under this
Agreement, including any fees or expenses of any professional or other advisers, employees or other persons paid by any of the Project
Companies, including but not limited to: (a) the out-of-pocket fees, expenses and other similar amounts that have been incurred by any
Project Company (or, to the extent any Project Company is responsible for the payment thereof, Seller or the Seller’s Group Undertaking)
in connection with the negotiation, execution, performance under or consummation of this Agreement, the Transaction Documents, any other
document contemplated hereby and the Transaction, including any investment banking, accounting, advisory, broker’s, finder’s
or legal fees, and (b) any stay bonus, transaction completion bonus, retention payment, any payment that may be triggered by the Transaction
or any other similar payment made or required to be made to any current or former directors, managers, officers, employees or service
providers (including independent contractors) of any Project Company (other than as a result of contracts made by any, (v) any dividend
or distribution of assets, profits or capital (whether in cash or in kind) declared, paid or made from any Project Company to the Seller
or Seller’s Group Undertaking, (vi) any repurchase, redemption, repayment or return of share capital (whether by reduction of capital
or redemption or purchase of shares) from any Project Company to the Seller or Seller’s Group Undertaking, (vii) any payment made by
any Project Company to the Seller or Seller’s Group Undertaking, (viii) any payment made by any Project Company in respect of its shares
being issued, redeemed, purchased or repaid, or any other return or issuance of share capital, (ix) any guarantee, indemnity, Encumbrance
or security provided by any Project Company in respect of any assets, rights, obligations or liabilities of the Seller or Seller’s Group
Undertaking (x) any repayment by any Project Company of any amount of the Shareholder Loan (in particular the part being as of the Locked
Box Date the principal amount of EUR 45,551,205.83 (in words: forty five million five hundred and fifty one thousand two hundred and
five euro 83/100) increased by relevant interest), whether principal repayment or interest; (xi) any labor or of a similar nature costs
payment, or any potential lay-off costs, even if the relevant labor or of a similar nature contract have been Fairly Disclosed; (xii)
any payment or other costs related to the final use permits issued in accordance with the Commission Regulation (EU) 2016/631 of 14 April
2016 laying down the Grid Code on requirements for the connection of generating units to the grid (NC RfG); (xiii) any agreement, arrangement
or undertaking by any Project Company or the Seller or Seller’s Group Undertaking, to do or give effect to any of the matters set out
in items (i) – (xii) above, or any Taxes as a result of those matters set out in items (i) – (xiii) above, but, in each case,
excluding any items expressly listed in the definition of the Permitted Leakage
“Leakage
Claim” means a claim for any Leakage occurring pursuant to a breach of Clause 4.2;
“Leakage
Claim Notice” has the meaning given in Clause 4.4;
“Leakage
Claim Period” means the 9 month period commencing on the Completion Date;
“LMR”
means the land and mortgage register kept for a given Property by the competent district court;
“Locked
Box Covenant” has the meaning given to it in Clause 4.1;
“Locked
Box Date” means 31 December 2022;
“Longstop
Date” means 19 January 2024;
“Loss”
means in relation to any matter, all liabilities (actual), losses, claims, costs (including reasonable and documented professional
costs), reasonable and documented fees and reasonable and documented expenses (to the extent that such costs, fees and expenses are not
recovered in litigation) and including any VAT on the same (except to the extent recoverable as input VAT), relating to that matter,
and any amounts paid or payable in relation to that matter either pursuant to an order or judgment of any court, tribunal or Governmental
Authority, or pursuant to any settlement or agreement between the relevant parties to the matter, excluding loss of profits (utracone
korzyści, lucrum cessans);
“Management
Services Agreements” has the meaning given in Clause 5.1.8;
“Material
Contracts” means the agreements referred to in Appendix 7.1 to Schedule 8.1 (Seller’s Warranties) including
in particular EPC Contracts, grid connection agreements, distribution agreements, O&M contracts, power purchase agreements and contracts
for balancing services, accounting service agreement and technical and asset management agreement to which a Project Company is a party
to at the Execution Date and/or Completion Date;
“MW”
means megawatts;
“NDA”
means a confidentiality agreement entered into between the Seller and the Buyer dated 26 March 2023;
“Notice”
has the meaning given in Clause 18.1;
“O&M
Agreements with UPER” means jointly (i) the O&M contract concluded on 1 July 2022 between Solarpark Samas and UPER Energy
Poland sp. z o.o., (ii) the O&M contract concluded on 1 July 2022 between PV Zachód and UPER Energy Poland sp. z o. o., (iii)
the O&M contract concluded on 1 July 2022 between Gardno PV and UPER Energy Poland sp. z o. o., (iv) the O&M contract concluded
on 1 July 2022 between Gardno2 PV and UPER Energy Poland sp. z o.o., (v) the O&M contract concluded on 1 July 2022 between Elektrownia
PV Komorowo and UPER Energy Poland sp. z o.o., (vi) the O&M contract concluded on 1 July 2022 between RA01 and UPER Energy Poland
sp. z o.o.;
“Ordinary
Course of Business” means the ordinary course of business of each Project Company as a going concern in the period of twelve
(12) months preceding the Completion conducted on an arm’s length basis in compliance in all material respects with Applicable
Laws and the concluded agreements;
“Payment
Notice” has the meaning given in Clause 3.5, be prepared in a form of pro forma Leakage report for the period between 1
January 2023 until 31 July 2023 and from 1 August 2023 to the date of such Payment Notice, together with the general ledgers, trial balances,
financial reports, bank statements as well as other supporting documents that the Buyer so requests, including but not limited to timely
responses to questions raised, contracts, bank payment evidence;
“Permits”
has the meaning given in paragraph 4.1 in Schedule 8.1;
“Permitted
Leakage” means (i) any action undertaken or payment made after obtaining of the Buyer’s written consent in accordance
with this Agreement, (ii) any payment or performance of any obligations pursuant to any contract or arrangement entered into by any of
the Project Companies prior to the Execution Date in connection with operational activities of the Project Companies, only if made within
the ordinary course of business, and except for payments defined as Leakage and subject to such agreements have been Fairly Disclosed,
but including payments made to UPER Energy Poland sp. z o.o. under and in line with the O&M Agreements with UPER Energy Poland sp.
z o.o.;
“Postponed
Completion Date” has the meaning given in Clause 6.6.2;
“PLN”
means Polish zloty, the currency of Poland;
“Project
Company’s Bank Accounts” mean any of the bank accounts listed in Schedule 1.1(D) to this Agreement, each additionally
with the names of persons who have access to such respective Project Company’s Bank Account (“Former Representatives”)
and all of them shall be jointly referred to as the “Project Companies’ Bank Accounts”;
“Project
Company” means any company listed in Schedule 1.1(E), and all of them shall be jointly referred to as the “Project
Companies”;
“Projects”
means jointly the projects listed in Schedule 1.1(E), and the “Project” means any of them;
“Properties”
means jointly the real estates listed in Schedule 1.1(F), needed for the development and/or operation of the Projects,
held in usufruct or leased by the Project Companies, and the “Property” means any one of the Properties;
“Purchase
Price” has the meaning given in Clause 3.1;
“Purchase
Price Tranche 1” has the meaning given in Clause 3.6.1;
“Purchase
Price Tranche 2” has the meaning given in Clause 3.6.2;
“Release
Amount” has the meaning given in Clause 5.1.9;
“Release
Instruction” means the release instruction describing the condition for the release and delivery to the Buyer the Solis Release
Letter and the Solis Pay-off Letter, in the form attached to this Agreement as Schedule 6.2.1 (C)
“Relief”
means any loss, relief, allowance, exemption, set-off, deduction, rights to repayment or credit granted by or available in relation
to Tax pursuant to any legislation or otherwise;
“Representation”
means an assurance, commitment, condition, covenant, guarantee, indemnity, representation, statement, undertaking or warranty of
any sort whatsoever (whether contractual or otherwise, oral or in writing, or made negligently or otherwise);
“Retained
Amount” means EUR 1,533,665.00 (one million and five hundred thirty three thousand and six hundred sixty five euro) to be retained
by the Buyer until the date falling 12 months after the Completion; each of the FY22 CIT Retained Amount and the WHT Retained Amount
shall constitute parts of and be included in this Retained Amount;
“Seller’s
Group Undertaking” means the Seller and/or an undertaking which is, at the date of this Agreement, a subsidiary undertaking
or parent undertaking of the Seller or a subsidiary undertaking of a parent undertaking of the Seller, but in each case excluding the
Project Companies;
“Seller’s
Knowledge” means the actual awareness and knowledge of the persons who on the date hereof are the members of the management
board of the Project Companies and the knowledge of any fact or matter in his/her capacity as the member of the management board could
have obtained after due inquiry of the employees of the Project Companies and the Seller’s legal, tax, financial and commercial
advisors; applying the standard of care of a prudent businessman pursuant to Article 293 par. 2 of the Commercial Companies Code;
“Seller’s
Lawyers” means Sołtysiński Kawecki & Szlęzak - Kancelaria Radców Prawnych i Adwokatów
Spółka Jawna;
“Seller’s
VPPA Security” has the meaning given in Clause 12.1;
“Seller’s
Cash Deposit” has the meaning given in Clause 12.1;
“Shareholder
Loans” means the shareholder loans provided to the Project Companies by the Seller based on the Shareholder Loan Agreements;
“Shares”
means jointly the shares in the share capital of each Project Company representing 100% (one hundred percent) of all of the shares
in the share capital of such Project Company and 100% (one hundred percent) of the votes at the shareholders’ meeting of such Project
Company, details thereof are indicated in Schedule 1.1(E);
“Shareholder
Loan Agreements” means the loan agreements executed between the Seller (as a lender) and each Project Company (as borrower),
listed in Schedule 1.1(G);
“Shareholder
Loan Amounts” means the amounts due under the Shareholder Loan Agreements, including both interest and principal, for the Project
Companies as at the Completion Date;
“SINO-CEE
Guarantee” means the irrevocable and unconditional guarantee issued by SINO – CEE Fund II in order to secure the payment
of the Purchase Price, the Shareholder Loan Amounts, and subject to any set-off as the case may be, the payment of the Retained Amount,
copy of which is attached as Schedule 1.1(H);
“SINO
– CEE Fund II” means SINO – CEE Fund, registered in Luxembourg, entered in the companies register under RCS number
B272596;
“SolarPark
Samas” means SolarPark Samas spółka z ograniczoną odpowiedzialnością, a limited liability company
incorporated and existing under the laws of Poland, having its registered office in Warsaw, at ul. Garażowa 5A, 02-651 Warsaw, Poland,
registered in the register of entrepreneurs of the National Court Register maintained by the District Court for the Capital City of Warsaw
in Warsaw, 13th Commercial Division of the National Court Register under KRS No. 0000584357, REGON (statistical number): 362977533, NIP
(tax identification number): 1132897915;
“Solis
Bond” means ISIN NO0010914914 – Solis Bond Company Designated Activity Company Senior Secured Green Bond Issue 2021/2024;
“Solis
Pay-off Letter” means the letter to be executed between Solis Bond Trustee and the Parties in the form constituting Schedule
6.2.1 (A) hereto, to be issued and delivered on Completion;
“Solis
Release Letter” means the letter to be executed in the written form with signatures notified by a relevant notary public and
certified with Apostille, to be issued on the Completion Date from the Solis Bond Trustee to the Seller, releasing the existing security
on the Project Companies in the form attached to this Agreement as Schedule 6.2.1 (B);
“Solis
Bond Terms” means the Solis Bond terms originally dated 5 January 2021, as amended by an amendment agreement no. 1 dated 5 July
2021;
“Solis
Bond Trustee” means Nordic Trustee AS;
“Solis
Bond Restricted Bank Account” means bank account no NO5012510504591 opened in J DNB Bank ASA, maintained for the Seller but
restricted and pledged for the benefit of the Solis Bond Trustee; SWIFT: DNBANOKKXXX, IBAN: NO5012510504591;
“Subrogation
Agreement” means the subrogation agreement concerning Shareholder Loans to be concluded between the Seller and the Buyer on
Completion Date, in the form set out in Schedule 1.1(I);
“Surviving
Provisions” means Clause 1 (Interpretations), Clause 11 (Confidential Information), Clause 12 (Announcements),
Clause 16 (Notices), and Clause 17 (Governing Law and Dispute Resolution);
“Sum
Recovered” has the meaning given in paragraph 8.2 of Schedule 8.3;
“Tax”
means any tax (including local taxes, customs charges, corporate income tax, value added tax, withholding of payroll tax, social
insurance payments administered by any social insurance funds or pension funds, tax and customs duty) and any other charges imposed by
any Tax Authority, including penalties, fines or similar such amounts, and interest on any of the foregoing;
“Tax
Authority” means any government, state or municipality or any local, state, federal or other authority, body or official anywhere
in the world authorised to charge Tax pursuant to the Tax Ordinance;
“Tax
Certificates” means: (i) the certificates issued by the respective Tax Authority on the basis of Article 306e of the Tax Ordinance
Act confirming that the Project Companies have no arrears in the payment of any Tax and that no proceedings aimed at defining or declaring
the tax liabilities of the Project Companies were pending; (ii) the certificates issued by the Social Insurance Office (Zakład
Ubezpieczeń Społecznych), in accordance with Article 50 Section 4 and Article 123 of the Act dated 13 October 1998
on Social Security System (Ustawa o systemie ubezpieczeń społecznych) and Articles 217 and 218 of the Act dated
14 June 1960 - Administrative Proceedings Code (Kodeks postępowania administracyjnego), confirming no arrears of the Project
Companies with the social security payments; (iii) the certificates issued by the President of the Management Board of the State Fund
for the Rehabilitation of the Disabled (Prezes Zarządu Państwowego Funduszu Rehabilitacji Osób Niepełnosprawnych)
in accordance with Article 306e of the Tax Ordinance Act confirming no arrears of the Project Companies with the payments to the State
Fund for the Rehabilitation of the Disabled and that no proceedings aimed at defining or declaring the Project Companies’ liabilities
with respect to the payments to the State Fund for the Rehabilitation of the Disabled were pending; (iv) the certificates issued by the
respective local Tax Authority on the basis of Article 306e of the Tax Ordinance Act confirming that the Project Companies have no arrears
in the payment of any local Tax and that no proceedings aimed at defining or declaring the local tax liabilities of the Project Companies
were pending;
“Tax
Ordinance” means the Polish tax ordinance (Ordynacja Podatkowa) of 29 August 1997 (as amended);
“TCMA”
means the agreement on technical management services for the Witnica photovoltaic plant concluded on 1 October 2020 between Solarpark
Samas and BayWa Operation Services GmbH;
“TEAs”
has the meaning given in paragraph 5.2 in Schedule 8.1;
“Third
Party Claim” has the meaning given in paragraph 7.1 of Schedule 8.3;
“Total
Consideration” means the aggregate payment made to the Seller consisting of the Purchase Price and Shareholder Loan Amounts;
“Total
Daily Accrued Interest” means an amount equal to the aggregate of the Daily Accrued Interest for each day from (and including)
the day immediately following the Locked-Box Date up to (and including) the Completion Date;
“Total
Liability Amount” sum of the Purchase Price and Shareholder Loan Amounts;
“Transaction”
means the transaction contemplated pursuant to the Transaction Documents;
“Transaction
Documents” means this Agreement, the Final Agreement, the Disclosure Letter, Subrogation Agreement and any other document entered
or to be entered into pursuant to this Agreement;
“Transmission
Easement Agreement” means a transmission easement agreement between SolarPark Samas and BayWa r.e. Polska sp. z o.o. dated 6
August 2021 for Witnica project;
“VPPA”
means the guarantees of origin and virtual power purchase agreement relating to Witnica photovoltaic plant concluded on 19 December
2020 between the Seller and Górażdże Cement S.A.;
“VPPA
Counterparty” means Górażdze Cement S.A.;
“Warranty”
means any representation or warranty contained in Schedule 8.1 and “Warranties” means all those representations
and warranties;
“Warranty
Claim” has the meaning given in paragraph 1.1 of Schedule 8.3;
“WHT”
means the withholding tax with respect to interest payments in connection with the Shareholder Loans;
“WHT
Evidence” has the meaning given in Clause 7.4;
“WHT
Maximum Amount” means the amount of the WHT in connection with all the Shareholder Loans in respect of interest paid during
the period from the acquisition of the relevant Project Company by the Seller until the relevant date, calculated at withholding tax
rate of maximum 20%; for the avoidance of doubt the WHT on the interest from the Shareholder Loans may be also calculated and paid at
a lower withholding Tax rate applicable under agreement between the government of Ireland and the government of the Republic of Poland
for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income signed on 13 November 1995
as modified by the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting signed
by Ireland and by Poland on 7 June 2017;
“WHT
Refund” means the refund of the relevant amount of the WHT collected in connection with payment of the interest on the Shareholder
Loans paid during the period between 1 October 2023 and 31 December 2023 to be awarded to the Seller by the relevant Tax Authority; the
actual amount to be remitted by the Project Companies regarding interest payments in connection with the Shareholder Loans paid during
the period between 1 October 2023 and 31 December 2023 should be net of Tax calculated from this interest at withholding tax rate of
20%;
“WHT
Refund Amount” means the amount of the WHT Refund applied for to the Tax Authority by the Seller;
“WHT
Repayment Evidence” has the meaning given in Clause 7.5;
“WHT
Retained Amount” means EUR 668,323, as it may be reduced in accordance with Clauses 3.10 and 3.10;
“Zoning
Permit” means zoning and land development decision (decyzje o warunkach zabudowy i zagospodarowania terenu) issued in
accordance with the provisions of the Act of 27 March 2003 on spatial planning and development (as amended) (ustawa o planowaniu i
zagospodarowaniu przestrzennym) allowing for construction of the given Project.
| 1.2 | In
this Agreement, a reference to: |
| 1.2.1 | a
“subsidiary undertaking” or “parent undertaking” is to
be construed in accordance with article 4 section 3 of the CCPA. A subsidiary undertaking
shall include any person the shares or ownership interests in which are subject to security
and where the legal title to the shares or ownership interests so secured are registered
in the name of the secured party or its nominee pursuant to such security; |
| 1.2.2 | a
“statutory provision” includes a reference to the statutory provision as
modified or re-enacted or both from time to time before the date of this Agreement and any
subordinate legislation made under the statutory provision (as so modified or re-enacted)
before the date of this Agreement; |
| 1.2.3 | a
“person” includes a reference to any individual, firm, company, corporation
or other body corporate, government, state or agency of a state or any joint venture, association
or partnership, works council or employee representative body (whether or not having separate
legal personality); |
| 1.2.4 | an
“individual” includes a reference to that individual’s legal personal representatives,
successors and permitted assigns; |
| 1.2.5 | a
“director” of a Polish joint stock company or a Polish limited liability
company means a member of the management board of such company; |
| 1.2.6 | each
“Party” include references to its legal successors and assigns; |
| 1.2.7 | an
“officer” of a Polish joint stock company or a Polish limited liability
company means a director, a member of the supervisory board or a proxy (prokurent) of such
company; |
| 1.2.8 | a
“Clause”, “paragraph” or “Schedule”, unless
the context otherwise requires, is a reference to a Clause or paragraph of, or schedule to,
this Agreement; |
| 1.2.9 | “best
endeavours” means “należyta staranność przy uwzględnieniu
zawodowego charakteru”; and |
| 1.2.10 | references
to the word “procure” or “shall procure” (or any similar
term) shall be construed as creating an obligation of result (zobowiązanie rezultatu)
and for breach of such obligation a relevant Party shall bear a strict liability; |
| 1.2.11 | any
references in this Agreement to “written” or “in writing”
should be understood as a requirement to use the written form (forma pisemna) and/or
electronic form (forma elektroniczna) within the meaning of the Civil Code; |
| 1.2.12 | where
appropriate, a reference importing the singular shall include the plural and vice versa and
any reference importing a gender includes the other genders; |
| 1.2.13 | words
or phrases derived from a defined term have a corresponding meaning to the defined term; |
| 1.2.14 | times
of the day is to Warsaw time; and |
| 1.2.15 | the
words “include”, “includes”, “including”
and “in particular” shall be deemed to be followed by the words “without
limitation”. |
| 1.3 | If
there is any obligation to pay a guarantee amount (suma gwarancyjna) under this Agreement,
unless expressly provided to the contrary under this Agreement or other Transaction Documents: |
| 1.3.1 | the
guarantee amount will be based on the principle of the freedom of contracts, pursuant to
art. 353 of the Civil Code; |
| 1.3.2 | the
payment of the guarantee amount shall not release the paying party from its obligations the
breach of which has triggered the obligation to pay such guarantee amount; |
| 1.3.3 | the
party demanding payment of the guarantee amount may claim damages exceeding the amount of
the guarantee amount; |
| 1.3.4 | the
paying party may not demand a decrease of the guarantee amount; and |
| 1.3.5 | the
guarantee amount shall be paid within thirty (30) days after request for payment is served
on the paying party. |
| 1.4 | The
headings in this Agreement do not affect its interpretation. |
| 1.5 | Any
monetary sum to be taken into account for the purposes of any Warranty where that sum is
expressed in a currency other than PLN shall be translated into PLN at the average exchange
rate applicable to that non PLN currency as published on the official website of the National
Bank of Poland on the day immediately preceding the date of this Agreement (or, if such day
is not a Business Day, on the Business Day immediately preceding such day). |
| 1.6 | Where
it is necessary to determine whether a monetary limit or threshold referred to in Schedule
8.3 has been reached or exceeded and the value of the Claim is expressed in a currency
other than PLN, the value of that Claim shall be translated into PLN at the average exchange
applicable to that amount of that non PLN currency as published on the official website of
the National Bank of Poland on the date of receipt by the Seller of written notification
from the Buyer in accordance with paragraph 2 of Schedule 8.3 of the existence
of such Claim (or, if such day is not a Business Day, on the Business Day immediately preceding
such day). |
| 2. | SALE
AND PURCHASE OF SHARES |
| 2.1 | On
the terms and subject to the conditions set out in this Agreement, subject to the satisfaction
or waiver by the Buyer (as the case may be) of all Conditions, the Seller and the Buyer undertake
to perform the Completion Actions, including to execute the Final Agreement based on which
the Seller shall sell and transfer the ownership and the Buyer shall buy all the Shares in
the Project Companies, and all rights attached to the Shares , free of any Encumbrances,
in consideration for the Purchase Price. |
| 2.2 | For
the purpose of the Parties’ obligation to enter into the Final Agreement, this Agreement
is a preliminary agreement (umowa przedwstępna) and the Final Agreement is final
agreement (umowa przyrzeczona) with respect to the Shares in each Project Company
(as those terms are used in article 389 and article 390 of the Civil Code). The term for
the conclusion of the Final Agreement, referred to in article 389 section 2 of the Civil
Code shall be the Completion Date. |
| 2.3 | At
Completion the Buyer shall also take over, by way of subrogation, the Shareholder Loans by
payment of an amount equal to the Shareholder Loan Amounts. Such subrogation shall be effected
pursuant to the Subrogation Agreement which shall be executed on Completion Date in accordance
with Clause 6.2.11. Upon signing of the Subrogation Agreement and payment of the Shareholder
Loan Amounts the Buyer shall become the creditor of each Project Company under the Shareholder
Loans by way of subrogation in accordance with Article 518 § 1 point 3 of the Civil
Code and the Buyer shall therefore assume all rights, claims and receivables attached to
the Shareholder Loans. |
| 2.4 | The
transfer of the full legal title to the Shares in each Project Company will occur at the
Completion upon crediting the Solis Bond Restricted Bank Account with the Purchase Price
Tranche 1 and the Shareholder Loan Amounts. |
| 3.1 | In
consideration for the sale and transfer of the Shares in each Project Company the Buyer shall
pay to the Seller an amount equal to: (i) the amount calculated pursuant to the methodology
and formulas set forth in Schedule 3.1 and paid in accordance with Clause 3.6
hereof (“Purchase Price”) increased by (ii) the Total Daily Accrued Interest.
The exact allocation of the Purchase Price between the respective Shares in the Project Companies
is presented in Schedule 3.1. |
| 3.2 | If
there is a need for the conversion of any amount that is expressed in PLN into EUR (or vice
versa) or PLN into any other currencies, then the average exchange rate published by the
National Bank of Poland for the relevant currency on the 30 December 2022, i.e. EUR 1 = PLN
4.6899. |
| 3.3 | If
any sum payable by a Party under this Agreement is subject to Taxes (whether by way of deduction,
withholding, set-off, counterclaim or loss or diminution of any tax relief or otherwise),
such payment will be increased with an amount that leaves the other Party and, if applicable,
the Project Companies in the position in which each of them would have been, had such sum
payable by such Party under this Agreement not been subject to Taxes. For purposes of calculating
the increased payment as set out in the previous sentence, the value of any loss or diminution
of tax loss will be equal to the amount of tax loss so reduced or diminished multiplied by
the highest statutory rate of the relevant corporate income tax applicable in the year in
which the payment is made. |
| 3.4 | The
Shareholder Loan Amounts and the Total Daily Accrued Interest shall be calculated as of the
Completion Date. |
| 3.5 | The
Parties agree that the Shareholder Loan Amounts and the Total Daily Accrued Interest shall
be notified to the Buyer in writing not later than ten (10) Business Days prior to the Completion
Date (“Payment Notice”). Such Payment Notice shall also include the amount
of the Additional Leakage Amount. Form of the Payment Notice is attached as Schedule 3.5
hereto. The Buyer shall have a right to disagree with such calculation by giving justified
notification not later than 5 (five) Business Days after it receives the Payment Notice,
and in such a case the calculation of the Buyer shall be binding for the Parties. |
| 3.6 | The
Purchase Price shall be paid by wire transfer in the following way: |
| 3.6.1 | Purchase
Price reduced by the Retained Amount shall be paid on the Completion Date by wire transfer
to the Solis Bond Restricted Bank Account in accordance with Clause 6.2.12 (“Purchase
Price Tranche 1”); and |
| 3.6.2 | the
Retained Amount, reduced by any sum in accordance with Clause 3.8, shall be paid by
wire transfer to the Solis Bond Restricted Bank Account on the day falling 12 months after
the Completion (“Purchase Price Tranche 2”). |
| 3.7 | Shareholder
Loan Amounts shall be paid on the Completion Date by wire transfer to the Solis Bond Restricted
Bank Account in accordance with Clause 6.2.12. |
| 3.8 | The
Buyer shall have the right to set-off or otherwise deduct the Buyer’s receivable in
relation to the Seller under any of the following: (i) Loss caused by breach of any of the
Fundamental Warranties, (ii) Leakage, (iii) Loss caused by breach of Clause 10 (Interim Period
Covenants), (iv) Loss caused by breach of Clause 7.7 (Seller’s Post-Completion Undertakings,
related to maintenance of the Project Companies’ Bank Accounts), (v) any part of the
WHT Retained Amount not paid or payable to the Seller in accordance with Clauses 3.9
to 3.11 by the date falling 12 months after the Completion; (vi) any part of the FY22
CIT Refund Amount not paid or payable to the Seller in accordance with Clauses 3.13
by the date falling 12 months after the Completion; or (vii) failure of the Seller to transfer
Seller’s Cash Deposit to the Buyer although required under Clause 12.1 last sentence,
against the Seller’s receivables towards the Buyer, in particular the Retained Amount,
provided that the Buyer has duly observed its obligations hereunder in relation to the relevant
breach, including providing the Seller with reasonable access to information and documents. |
| 3.9 | The
entire WHT Retained Amount shall be paid on account of the Purchase Price Tranche 2 within
10 (ten) Business Days from providing the WHT Evidence in accordance with Clause 7.4
to the Buyer. |
| 3.10 | Notwithstanding
Clause 3.9 and in accordance with Clause 7.5, the part of the WHT Retained Amount
equal to the amount covered by WHT Repayment Evidence, subject to Clause 3.11 below,
shall be paid by the Buyer on account of the Purchase Price Tranche 2 within 10 (ten) Business
Days from providing the Buyer with the relevant WHT Repayment Evidence covering in full or
in part the WHT Maximum Amount. |
| 3.11 | In
case the Seller pays any part of the WHT Maximum Amount covered by WHT Repayment Evidence,
the WHT Retained Amount to be released by the Buyer shall include also Tax penalty interest
at a rate of 14.5% per annum on any part of the WHT Maximum Amount paid by the Seller that
would be accrued during the period from the payment made by the Seller until 31 December
2024. |
| 3.12 | For
the avoidance of doubt, the payment made by the Buyer under Clause 3.9 satisfies in
full the obligations of the Buyer under Clauses 3.10 and 3.11. Moreover, any payments
made under Clauses 3.10 and 3.11 shall reduce the payment to be made under Clause 3.9
by the amounts paid to the Seller under Clauses 3.10 and 3.11. |
| 3.13 | In
the extent any part of the FY22 CIT Refund Amount is repaid and credited with the part of
the FY22 CIT Refund Amount relevant for a given Project Company, such part of the FY22 CIT
Retained Amount shall be paid on account of the Purchase Price Tranche 2 within 10 (ten)
Business Days from providing the FY22 CIT Evidence as per Clause 7.6. |
| 3.14 | Without
prejudice to Clause 3.8 and any other possible deductions of the Purchase Price Tranche
2, in the event the Seller fails to provide the WHT Evidence, WHT Repayment Evidence as per
Clauses 7.4 and 7.5 or the FY22 CIT Evidence as per Clause 7.6 within the period of 12 months
after the Completion the Purchase Price Tranche 2 to be paid by the Buyer shall be reduced
by the still retained WHT Retained Amount and/or the FY22 CIT Retained Amount, as applicable. |
| 3.15 | In
order to secure payment of the Purchase Price, the Shareholder Loan Amounts and, subject
to any set-off, the payment of the Retained Amount, the Buyer has provided the Seller with
correct, complete and up-to-date SINO-CEE Fund Guarantee. |
| 4.1 | The
Seller undertakes (zobowiązuje się) and guarantees (zapewnia) to
the Buyer (zobowiązanie gwarancyjne) that in the period between the Locked Box
Date (exclusive that date) and the Completion Date (inclusive) no Leakage will occur (“Locked
Box Covenant”). |
| 4.2 | The
Seller agrees to indemnify the Buyer, on 1 EUR for 1 EUR basis and pay in cash the amount
equal to the value of the Leakage or the cash equivalent of the Leakage, that was caused
by any breach of any Locked Box Covenant (“Leakage Claim”). |
| 4.3 | In
the event any Leakage occurred prior to the Completion Date (inclusive), and the fact and
the value of the Leakage is known to the Buyer, such Leakage shall be deducted from the Purchase
Price. The Parties agreed that the Leakage for the period between 1 January 2023 and 31 July
2023 amounts to EUR 2,695,026. The Leakage for the period between 1 August 2023 and the Completion
will be calculated by the Seller and provide in the Payment Notice (“Additional Leakage
Amount”). |
| 4.4 | If
the Buyer becomes aware of any matter that gives or may give rise to a Leakage Claim, the
Buyer must give notice of such Leakage Claim (“Leakage Claim Notice”) to
the Seller no later than 30 (thirty) Business Days after it becomes aware of the matter on
which such Leakage Claim is based. The Leakage Claim Notice shall include the information
on: |
| 4.4.1 | the
matter that gives or may give rise to the Leakage Claim; and |
| 4.4.2 | if
reasonably practicable, an estimate of the amount of the Leakage, arising out of the Leakage
Claim or the matter that gives or may give rise to the Leakage Claim. |
| 4.5 | The
Buyer shall procure that the respective Project Company to provide relevant documents and
information in relation to the Leakage Claim to the Seller. |
| 4.6 | The
provisions in Clauses 4.1 to 4.4 shall not in any respect be extinguished or affected
by the Completion but, for the avoidance of doubt, no claim may be brought in respect of
these provisions unless and until the Completion has occurred. |
| 4.7 | If
the Seller pays any sum to the Buyer pursuant to a Leakage Claim, the Purchase Price received
by the Seller for the sale of the Shares shall be deemed to be reduced by the amount of such
payment. |
| 5.1 | The
obligation of the Parties to perform the Completion Actions, including execution of the Final
Agreement on the Completion Date, is conditional upon satisfaction or waiver by the Buyer,
of the following conditions precedent (collectively “Conditions”, and each
a “Condition”): |
| 5.1.1 | the
Solis Bond Trustee shall deliver to the Buyer a scanned copy of the Solis Pay-off Letter
and the Solis Release Letter both duly executed by Solis Bond Trustee (copy shared via e-mail
should be sufficient), original of which shall be delivered to the Buyer on Completion; |
| 5.1.2 | the
Seller shall deliver to the Buyer an annex to the Transmission Easement Agreement and an
annex to the Agreement on Technical Management Services for the Witnica Photovoltaic Plant
concluded between SolarPark Samas and BayWa Operation Services GmbH on 1 October 2020, executed
by parties thereto in the form attached to this Agreement as Schedule 5.1.2. |
| 5.1.3 | the
Seller shall deliver to the Buyer evidence of applications to the relevant distribution system
operator for final operational notification (ostateczne pozwolenie na użytkowanie)
issued in accordance with the Commission Regulation (EU) 2016/631 of 14 April 2016 laying
down the Grid Code on requirements for the connection of generating units to the grid (NC
RfG) with respect to the following projects, consisting of type B generation modules: Gościeszyn
(submitted by the Seller to the DSO no later than 16 October 2023), Rakowiec (submitted by
the Seller to the DSO no later than 15 December 2023), SSW7, SSW8, SSW9, SSW10, SSW11, SSW12,
SSW13, SSW14, SSW15, SSW16 (submitted by the Seller to the DSO no later than 20 December
2023); |
| 5.1.4 | the
Seller shall obtain consent of the VPPA Counterparty to the change of control over SolarPark
Samas; the Buyer undertakes in this respect to cooperate with the Seller to the extent that
it is necessary to provide VPPA Counterparty with the relevant financial statements concerning
the Buyer; |
| 5.1.5 | SolarPark
Samas shall terminate two labour contracts which were not provided in the Data Room, whereas
in the relevant termination the parties thereto shall confirm that the relevant person with
whom SolarPark Samas terminates the agreement does not have any claims towards SolarPark
Samas; |
| 5.1.6 | the
Seller shall obtain a consent for the transfer of shares in each of the Project Companies,
in the form of the shareholders’ resolution and deliver copies of such consents to
the Buyer; |
| 5.1.7 | the
Seller shall conclude annexes to O&M Agreements with UPER to specify any party is entitled
to terminate the O&M Agreements with UPER by notice with immediate effect, and that no
any compensation will be incurred due to this termination; |
| 5.1.8 | all
management agreements between Alternus Energy Group Plc and each of the Project Companies
(the “Management Services Agreements”) shall be terminated and all the
outstanding balances of management fees payable to the Seller or any Seller’s Group
Undertaking shall be fully settled between Alternus Energy Group Plc and each Project Company
prior to Closing, and included in the calculation of the Purchase Price as a Leakage.. Upon
termination of the Management Services Agreements the Seller shall confirm to the Buyer that
there are no other management fees due to Alternus Energy Group Plc, or any other claims
towards any of the Project Company under any of the Management Services Agreements, in particular
under-accrued management fees for 2023 or years prior to 2023; and |
| 5.1.9 | if
prior to the Completion Date, the Purchase Price Tranche 1 increased by the Shareholder Loan
Amounts pursuant to the provisions herein (including verification procedure included in Clause
3.5) ( the “Release Amount”) is calculated, and such calculated Release
Amount is lower than EUR 52,000,000 (fifty two million euro), the Seller shall procure that
the Solis Bond Trustee issues uncinditional and irrevocable statement accepting such Release
Amount in the lower amount which shall be made in the form and contents in accordance with
Clause 2.4. of the Solis Pay-off Letter. For the avoidance of any doubts, if the Release
Amount so calculated amounts to at least EUR 52,000,000 (fifty two million), this provision
shall be deemed as not reserved at all and shall not constitute a Condition. |
| 5.2 | All
of the Conditions are reserved for the benefit of the Buyer, and the Buyer shall have the
right, but not obligation to waive any of the Conditions. The Buyer may, in its absolute
discretion, waive any and all the Conditions by written notice to the Seller on or prior
to the Longstop Date. |
| 5.3 | The
Seller shall use its best endeavors to satisfy the Conditions as soon as possible and in
any event no later than by the Longstop Date. |
| 5.4 | The
Seller is obliged to notify the Buyer in writing of the status of the performance of the
Conditions in respect of each Project and/or Project Company not later than 3 (three) Business
Days following the fulfilment of each Condition. For the avoidance of doubts the Conditions
are deemed satisfied upon confirmation thereof by the Buyer. |
| 5.5 | If
any of the Conditions is not satisfied on or before the Longstop Date, the Buyer shall have
a right to rescind (odstąpić) this Agreement with immediate effect in
writing within the period of 10 (ten) Business Days after the Longstop Date. If the
right to rescind this Agreement is exercised pursuant to this Clause 5.5, this Agreement
shall cease to exist, and each Party’s further rights and obligations shall cease immediately,
except for the Surviving Provisions. Rescission of the Agreement shall remain without prejudice
to any rights and liabilities of the Parties which have accrued before such rescission (including
the right to claim damages or guarantee amounts, if any). |
| 6.1 | If
the Conditions are satisfied (or waived) on or before the Longstop Date, the Completion shall
take place on the 10th (tenth) Business Day following the date on which the Buyer confirms
the last Condition is satisfied (“Completion Date”). Completion will take
place at the offices of the Buyer’s Lawyers. The Completion will start at 10.00 a.m.
CET, unless otherwise agreed by the Parties in writing or in documentary form (forma dokumentowa)
within the meaning set forth in the Civil Code (i.e. including via e-mail). |
| 6.2 | On
the Completion Date, the Parties undertake to take the following actions in the sequence
as provided in this Clause 6.2 (“Completion Actions”): |
| 6.2.1 | the
Seller shall procure that the Solis Bond Trustee or its relevant attorney shall present the
originals of duly executed Solis Pay-off Letter with Release Instructions executed in the
written form and Solis Release Letter executed in the written form with the signature certified
by a notary public and certified by Apostille to the Buyer and Buyer’s Lawyers; without
prejudice to Clause 6.5 such relevant attorney shall be present until the end of the
Completion; |
| 6.2.2 | the
Buyer shall review the Solis Release Letter, the Solis Pay-off Letter, and the Release Instructions
to check if these are in the agreed form, |
| 6.2.3 | the
Seller shall procure that each Project Company shall execute the Solis Pay-off Letter already
executed by the Solis Bond Trustee; |
| 6.2.4 | the
Seller shall hold an extraordinary shareholders’ meeting of each of the Project Companies
and adopt resolutions on: (i) the appointment of the following persons as the new management
board members of each of the Project Companies: Fei Yang and (ii) the dismissal of the remaining
(former) management board member(s) of each Project Company (unless they provide a resignation
letter) in line with the form attached to this Agreement as Schedule 6.2.4. The
resolutions on the dismissals and appointments and/or the acceptance of the resignation letters
shall be effective upon the transfer of title to the Shares to the Buyer; |
| 6.2.5 | the
Seller shall provide the Buyer with: (i) a written proof that all powers of attorney, including
commercial proxy (prokura), issued or granted by the Project Companies are terminated
and crossed off court register and/or (ii) copies of the applications to National Court Register
on crossing-out commercial proxies; |
| 6.2.6 | the
Seller shall deliver to the Buyer consents for the transfer of the Shares in each of the
Project Companies, in the form of the resolution of the shareholders’ meeting of each
Project Company; |
| 6.2.7 | the
Seller shall deliver to the Buyer up-to-date Tax Certificates for each of the Project Companies,
each issued no earlier than 50 (fifty) days prior to the Completion Date and no later than
3 (three) days prior to the Completion Date; |
| 6.2.8 | the
Seller shall provide a statement signed by the former management board members of each of
the Project Companies waiving all possible claims resulting from holding said position, in
the form attached to this Agreement as Schedule 6.2.8; |
| 6.2.9 | the
Seller shall sign a statement under which the Seller waives any and all claims against all
of the Project Companies and confirming that the Seller’s Group Undertaking have no
claims against all the Project Companies in line with the form attached as Schedule 6.2.9; |
| 6.2.10 | the
Parties will execute the Final Agreement with respect to the Shares in each Project Company; |
| 6.2.11 | the
Parties and the relevant Project Company will enter into the Subrogation Agreement in respect
of the Shareholder Loans in the form attached to this Agreement as Schedule 1.1(L); |
| 6.2.12 | the
Buyer shall pay to the Solis Bond Restricted Bank Account the Purchase Price Tranche 1 and
Shareholder Loans Amount and the Solis Bond Restricted Bank Account shall be credited with
the Purchase Price Tranche 1 and Shareholder Loans Amount; |
| 6.2.13 | the
Seller shall procure that the originals of the Solis Release Letter are handed over to the
Buyer’s Lawyers together with the Release Instruction and the Buyer’s Lawyers
shall act as an escrow agent for the Release Letter and Solis Pay-off Letter; |
| 6.2.14 | the
Seller shall confirm in writing the crediting of the Solis Bond Restricted Bank Account with
the Purchase Price Tranche 1 and Shareholder Loans Amount in line with the form attached
as Schedule 6.2.14; |
| 6.2.15 | the
Seller shall procure that the Solis Bond Trustee shall instruct the Buyer’s Lawyers
to release the originals of the Solis Release Letter to the Buyer; |
| 6.2.16 | the
Buyer’s Lawyers shall release the originals of the Solis Release Letter to the Buyer; |
| 6.2.17 | the
Buyer and the Seller shall submit to each Project Company notification confirming the sale
and transfer of the Shares from the Seller to the Buyer, as well as notifying each Project
Company that the Buyer has become the sole shareholder of the Project Company exercising
a dominant position in respect thereof, such notification to be executed in the form of Schedule
6.2.17; |
| 6.2.18 | the
Buyer shall procure that each Project Company shall provide a statement addressed to the
former member(s) of the management board of each of the Project Companies waiving all possible
claims towards them, in the form attached to this Agreement as Schedule 6.2.18; |
| 6.2.19 | the
parties to the NDA shall terminate the NDA effective as of Completion in the form attached
to this Agreement as Schedule 6.2.19. |
| 6.3 | The
Completion shall be considered to have taken place when all (unless the Parties agree otherwise
in documentary form (including via e-mail)) of the Completion Actions have been duly performed. |
| 6.4 | No
Party is required to complete a Completion Action required of such Party unless the other
Party complies with all of the preceding Completion Actions for which it is responsible. |
| 6.5 | In
the event that not all of the actions contemplated in Clause 6.2 are actually completed within
1 (one) Business Day, the Parties shall continue to proceed with the Completion on the next
Business Day falling immediately after such Business Day or on any other Business Day, if
agreed in documentary form (including via e-mail). |
| 6.6 | If
despite satisfaction of the Conditions (or their waiver by the Buyer) the Completion does
not take place on the Completion Date because the Seller or the Buyer fails to comply with
any of its obligations under Clause 6.2, the non-breaching Party may by notice to the
defaulting Party: |
| 6.6.1 | proceed
to Completion to the extent reasonably practicable (without limiting its rights under this
Agreement); or |
| 6.6.2 | postpone
the Completion to such date as the non-breaching Party may specify, which shall be no earlier
than 5 (five) and no later than 10 (ten) Business Days after the date first set for Completion
(“Postponed Completion Date”). |
| 6.7 | If
the non-breaching Party postpones the Completion to the Postponed Completion Date in accordance
with Clause 6.6, the provisions of this Agreement shall apply as if the Postponed Completion
Date was the Completion Date. |
| 6.8 | If
the Completion is postponed by the non-breaching Party in accordance with Clause 6.6 and
the Completion does not take place on such Postponed Completion Date due to the failure of
the defaulting Party to comply with any of its obligations under Clause 6.2, the non-breaching
Party shall be entitled to, at its own choice, either: |
| 6.8.1 | to
seek specific performance of the Agreement before courts or guarantee payment, at its sole
discretion or |
| 6.8.2 | shall
have a right to rescind (odstąpić) this Agreement with immediate effect
in writing within the period of 5 (five) Business Days after the lapse of period indicated
in Clause 6.6.2; if the right to rescind this Agreement is exercised pursuant to this Clause
6.8.2, this Agreement shall cease to exist, and each Party’s further rights and obligations
shall cease immediately, except for this Clause and the Surviving Provisions. |
| 6.9 | In
the event the non-breaching Party rescinds the Agreement in accordance with Clause 6.8.2,
the breaching Party shall pay to the non-breaching Party a guarantee payment in the amount
equal to 20% of the Total Consideration within 7 (seven) Business Days to the bank account
specified by the non-breaching Party in a written demand delivered to the breaching Party;
should the loss of the non-breaching Party be higher than the guarantee payment set forth
in this Clause, the non-breaching Party shall be entitled to claim damages exceeding the
amount of such guarantee payment. |
| 7. | SELLER’S
POST COMPLETION UNDERTAKING |
| 7.1 | The
Seller shall, before and following the Completion, submit an application to the DSO for the
extension of the relevant distribution Agreement and use its best endeavours to receive extension
of such relevant distribution Agreement with respect to the following Projects: |
| 7.1.1 | Gościeszyn
(no later than until the Longstop Date); |
| 7.1.2 | Rakowiec
(no later than until 31 January 2024); |
| 7.1.3 | SSW7,
SSW8, SSW9, SSW10, SSW11, SSW12, SSW13, SSW14, SSW15, SSW16 (no later than until 11 March
2024). |
| 7.2 | Following
the Completion, the Seller and the Buyer shall cooperate in good faith with each other in
order to redirect any mail or documents received, which belong to the other Party or any
Project Company. |
| 7.3 | Following
the Completion, not later than 7 (seven) Business Days from the Completion Date, the Seller
shall provide the Buyer with service providers’ name list and the documentation custody
list prepared by such service providers and the Seller regarding the Project Companies which
is in possession of the Seller or held by any third parties on its behalf. The list of documents
to be handed over by the Seller to the Buyer constitute Schedule 7.3 hereto.
The documentation which is in the possession of Seller shall be handed over to Buyer with
20 (twenty) days after the Completion. |
| 7.4 | The
Project Companies shall withhold and pay to the Tax Authority a withholding tax calculated
at the rate of 20% on interest payments made in connection with the Shareholder Loans which
were paid during the period between 1 October 2023 and 31 December 2023 without any gross-up.
The Seller shall apply to the relevant Tax Authority for the refund of the relevant WHT Refund
and shall procure that the relevant WHT Refund is awarded by a final and non-appealable decision
of a relevant Tax Authority or repaid to the bank account maintained for the Seller or for
any of the Project Companies. The Seller shall provide the Buyer with the relevant evidence,
i.e. the decisions or excerpts from the bank account evidencing the relevant refund of the
WHT Refund Amount within 2 (two) Business Days from the earlier of: (i) the Seller’s
bank account is credited with the relevant WHT Refund, or (ii) the decision awarding the
relevant WHT Refund Amount becomes final and non-appealable (“WHT Evidence”).
If the Seller is challenged by the Tax Authority, resulting a given Project Company would
be a party to the proceedings to the relevant refund of the WHT Refund, the Buyer shall procure
that the relevant Project Company informs the Seller on receiving the WHT Evidence within
2 (two) Business Days from such an event and provides the Buyer with WHT Evidence within
the same deadline. Subject to Seller bearing any and all costs related thereto, each Project
Company shall cooperate with the Seller in a manner not hindering the Seller from procuring
the relevant refund of the WHT Refund, in particular but not limited to, it shall provide
the Seller with reasonably requested information, documents and powers of attorney. For the
avoidance of any doubts, the Seller shall bear all costs and expenses related to any such
proceedings, and the Seller and his respective lawyers or tax advisors will be responsible
for leading and managing the relevant procedures. |
| 7.5 | Notwithstanding
the above, the Seller may at any time following the Completion pay all or any part of the
WHT Maximum Amount to the relevant Tax Authority and deliver an evidence that such payment
has been made and duly credited with the account of the relevant bank account of appropriate
Tax Authority (“WHT Repayment Evidence”). If this is the case, such WHT
Repayment Evidence shall be delivered to the Buyer within 2 (two) Business Days upon the
receipt thereof by the Seller. |
| 7.6 | The
Seller shall procure that the entire FY22 CIT Refund Amount is refunded to the relevant Project
Company by the relevant Tax Authority. The Seller shall provide the Buyer with the relevant
evidence, i.e. the final and non-appealable decisions of a relevant Tax Authority awarding
the relevant Project Company with the repayment of the FY22 CIT Refund Amount and/or excerpt
from the relevant Project Company’s Bank Account confirming that the relevant FY22
CIT Refund Amount has been repaid to the bank account maintained for the relevant Project
Company within 2 (two) Business Days from the earlier of: (i) the relevant bank account of
a given Project Company is credited with the relevant FY22 CIT Refund Amount, or (ii) the
decision awarding the relevant FY22 CIT Refund Amount becomes final and non-appealable; if
there would be proceedings after the Completion, the Buyer shall procure that the Project
Company informs the Seller on receiving the abovementioned decision or repayment within 2
(two) Business Days from such an event and provides the Seller with the relevant evidence
within the same deadline) (“FY22 CIT Evidence”). In the event the Tax Authority
challenges the relevant refund of FY22 CIT Refund Amount, the relevant Project Company shall,
subject to the Seller bearing all costs and expenses related thereto, cooperate with the
Seller in a manner not hindering the Seller from procuring the receipt of the FY22 CIT Refund
Amount, in particular but not limited to, it shall provide the Seller with requested information
and documents. For the avoidance of any doubts, the Seller shall bear all costs and expenses
related to any such proceedings, and the Seller and his respective lawyers or tax advisors
will be responsible for leading and managing the relevant procedures. |
| 7.7 | The
Seller undertakes that, for the period starting from the Completion, and until the date,
when the access to operate the relevant Project Companies’ Bank Accounts can be and
is effectively transferred to the Buyer’s representatives, however no longer than until
the lapse of 6 (six) months following the Completion, it shall procure that the relevant
Project Company shall: (i) operate the relevant Project Company’s Bank Account in accordance
with instructions of the Buyer, and (ii) obtain prior written consent from the Buyer for
any operation on the relevant Project Company’s Bank Account (the consent request should
include all details of the bank account operation, including the value, currency, other party
of the transaction, title of the transfer, date and the legal basis and reason for the transfer.
Moreover, at the same time of the access to operate the Project Companies’ Bank Account
is being transferred to the Buyer, the Seller shall provide the Buyer with a statement from
the relevant Bank that the access granted to Former Representatives has been permanently
deactivated. In the event any transfer is made without a consent and causes a Loss for the
relevant Project Company or for the Seller (in particular any example of payment listed in
the definition of Leakage) (“Unauthorised Transfer”), the Seller shall be
liable towards the Buyer, and shall indemnify the Buyer, on 1 EUR for 1 EUR basis and pay
in cash the amount equal to the value or the cash equivalent, in the same way as agreed for
the event of the Leakage. |
| 8. | THE
SELLER’S WARRANTIES |
| 8.1 | The
Seller warrants to the Buyer that, save as Fairly Disclosed, each of the statements set out
in Part A of Schedule 8.1 is true, accurate and not misleading (zgodne ze
stanem faktycznym lub prawnym, rzetelne i niewprowadzające w błąd)
as at Execution Date and as at Completion. |
| 8.2 | The
Seller warrants to the Buyer that, save as Fairly Disclosed, each of the statements set out
in Part B and Part C of Schedule 8.1 is true, accurate and not misleading (zgodne
ze stanem faktycznym lub prawnym, rzetelne i niewprowadzające w błąd)
as at Execution Date and as at Completion. |
| 8.3 | The
rules of liability of the Seller for Breach of Warranties as well as for any Claims are set
forth in Schedule 8.3 hereto. For the avoidance of doubt, the Seller is not liable
for Breach of Warranties unless the Completion occurs. |
| 8.4 | Pursuant
to Article 558 § 1 of the Civil Code, the Parties hereby agree that the Seller’s liability
for warranty (rękojmia za wady) (set out in Articles 556 through 576 of the
Civil Code) in connection with this Agreement and the sale of the Shares shall be excluded
entirely (and likewise excluded are any other types of remedy and rights under the Civil
Code; of contractual, tort or any other character, and under other agreements or otherwise).
The Parties agree that the provisions of this Agreement and the other Transaction Documents
constitute the sole and exclusive agreements among the Parties regarding the Seller’s liability
in relation to the Transaction. |
| 9.1 | Notwithstanding
that the Buyer becomes aware at any time that there has been a breach of any provision of
this Agreement, the Buyer shall not be entitled to rescind or terminate this Agreement or
treat this Agreement as rescinded or terminated but shall be entitled only to claim damages
in respect of such matter on the terms and conditions set out in this agreement and, accordingly,
the Buyer waives all and any rights of rescission or termination it may have in respect of
any such matter (howsoever arising or deemed to arise). This is however without prejudice
to Buyer’s right set out in Clause 8.26.8.2 of this Agreement. |
| 10. | THE
BUYER’S WARRANTIES AND UNDERTAKINGS |
| 10.1 | The
Buyer warrant to the Seller that: |
| 10.1.1 | the
Buyer is a société à responsibilité limitée (limited liability
company), duly incorporated in Luxembourg and has full corporate power and capacity to enter
into legal transactions including this Agreement, any other Transaction Document and to perform
the Transaction, and has obtained all corporate approvals for the purchase of the Shares
from the Seller; |
| 10.1.2 | the
Buyer is not: (i) subject to any winding-up, bankruptcy or other insolvency proceedings,
(ii) insolvent within the meaning of the Applicable Law relevant to its country of incorporation,
(iii) unable to pay its debts as they fall due (nor has it stopped paying his debts as they
fall due), or (iv) to its knowledge, threatened with insolvency; |
| 10.1.3 | the
Buyer is duly represented in the conclusion of this Agreement and any other Transaction Documents; |
| 10.1.4 | the
Buyer has the right, power and authority, and has taken all action necessary, to execute,
deliver and exercise its rights and perform its obligations under this Agreement and each
Transaction Document to be executed at or before Completion to which it is expressed to be
a party (“Completion Documents”); |
| 10.1.5 | the
Buyer’s obligations under this Agreement and the Completion Documents are, or when
the relevant Completion Document is executed will be, enforceable in accordance with their
respective terms; |
| 10.1.6 | no
action was taken, no claim was raised, and no proceedings were initiated against or involving
the Buyer, nor is there any threat of any of actions that could have an impact on the validity,
effectiveness or enforceability of this Agreement and any other Transaction Document being
taken or initiated; |
| 10.1.7 | the
Buyer has and will have on the Completion Date immediately available the necessary cash resources
to meet its obligations under this Agreement and the Buyer’s Completion Documents including
payment of the Purchase Price Tranche 1 and the Shareholder Loan Amounts; |
| 10.1.8 | on
Completion the SINO-CEE Fund Guarantee will be in full force and effect and has been executed
by and is legal, binding and enforceable upon all the parties thereto in accordance with
its terms; |
| 10.1.9 | the
execution and delivery of, and the performance by the Buyer its obligations under, this Agreement
will not: |
| (a) | result
in a breach of any provision of the statutes or articles of association or by-laws or equivalent
constitutional documents of the Buyer; |
| (b) | result
in a breach of, or constitute a default under, any contract or instrument to which the Buyer
is a party or by which the Buyer is bound; |
| (c) | result
in a breach of any order, judgment or decree of any court or governmental agency to which
the Buyer is a party or by which the Buyer is bound or submits to; |
| (d) | result
in any harm to any creditors of the Buyer and prevent, either wholly or partially, the Buyer
from satisfying a claim of any person; or |
| (e) | require
the Buyer to obtain any consent or approval of, or give any notice to or make any registration
with, any Governmental Authority which has not been obtained or made at the date hereof both
on an unconditional basis and on a basis which cannot be revoked (save pursuant to any legal
or regulatory entitlement to revoke the same other than by reason of any misrepresentation
or misstatement); |
| (f) | the
Buyer acknowledges that it and its advisors: (i) have conducted a legal, tax and financial
due diligence of the Project Companies, and have obtained and reviewed to the Buyer’s satisfaction,
all the documents and information on the Project Companies that the Buyer, Buyer’s Group
Undertaking, or their respective advisers have requested, before entering into this Agreement,
and (ii) have been afforded an access to the management of the Project Companies and the
advisors of the Seller prior to the date hereof (including to discuss, obtain clarifications
or raise questions on such documents and information); and; |
| (g) | the
Buyer has no actual knowledge as at the date of this Agreement of any fact, matter or circumstance
which might entitle the Buyer either at Completion or with the passing of time to make a
Claim against the Seller. |
| 10.2 | The
Buyer irrevocably commits to vote (or procures that any other person being a shareholder
votes) at each Project Company’s relevant annual shareholders’ meeting held after each
Completion for the business year 2023 in favour of resolutions acknowledging the fulfilment
of duties (udzielenie absolutorium) in respect of the management board members of
the Project Companies for the period until the Completion (except in the case of their fraud,
gross negligence (rażące niedbalstwo) or willful misconduct (wina umyślna)
or other legal constraints). |
| 10.3 | For
a period of one (1) year starting on the Completion Date, the Buyer will cooperate with the
Seller upon the written request provided in advance in the event an information relating
to each Project Company is reasonably required by the Seller to enable the preparation of
quarterly, half-yearly or annual accounts of the Seller for the financial years ending last
before and next after the Completion Date. In such event the Seller will provide the Buyer
with written request indicating at least scope of required information and respective Project
Company. The Buyer will respond without undue delay to such request and will provide and/or
enable the Seller to obtain such information upon Buyer’s discretion. The Seller shall
bear any costs related to such cooperation. |
| 10.4 | The
Buyer shall procure that each Project Company, for a period of one (1) year after Completion
shall retain and allow during such period the Seller or the Seller’s representatives to have
(during normal business hours and following reasonable notice) reasonable access to (and
copies of) the books, records, documents and information relating to each Project Company
to the extent they relate to the period prior to and immediately following the Completion
and to the extent reasonably required by any Seller’s Group Undertaking to comply with any
Applicable Law or to make any financial statements or Tax returns or other returns or reports
required by Applicable Law. In such event the Seller or the Seller’s representatives will
sign a non-disclosure agreement prior to such access. The Seller shall bear any costs related
to such cooperation. |
| 11. | INTERIM
PERIOD COVENANTS |
| 11.1 | Subject
to Clause 11.5 below, the Seller undertakes to cause each Project Company not to take
any of the following actions during the Interim Period, unless with the prior consent of
the Buyer granted in accordance with Clause 11.2, which consent shall not be unreasonably
withheld, delayed or conditioned: |
| 11.1.1 | allow
or cause any Project Company to fail to maintain each and all the Permits including making
timely payments for any fees and costs in connection with such approvals and not in compliance
with any conditions attached to such approvals; |
| 11.1.2 | to
take any act that would affect the validity, effectiveness or have any other material negative
impact on any of the Permits; |
| 11.1.3 | allow
or cause any Project Company to fail to continue to operate in the Ordinary Course of Business
(including, without limitation, with respect to the management of its working capital) and
to apply for its winding-up or liquidation or similar proceedings; |
| 11.1.4 | allow
or cause any Project Company to enter into any transaction other than in the Ordinary Course
of Business; |
| 11.1.5 | allow
or cause any Project Company to incur any liability other than in the Ordinary Course of
Business; |
| 11.1.6 | allow
or cause any Project Company to issue or to agree to issue, any Shares or other securities
in each Project Company, and or pass or agree to pass any resolution for the increase or
reduction of each Project Company’s capital, or for the creation of any securities; |
| 11.1.7 | allow
or cause any Project or Shares to be Encumbered or disposed; |
| 11.1.8 | allow
or cause any resolutions to be passed by the shareholder or management board member of each
Project Company except such resolutions: (i) as may be necessary to give effect to this Agreement
or any other Transaction Documents or (ii) as are passed in the Ordinary Course of Business; |
| 11.1.9 | allow
or cause any Project Company to carry on the business not in compliance with Applicable Law; |
| 11.1.10 | allow
or cause any Project Company to initiate, suspend, stay, challenge, contest or settle any
legal or administrative proceedings. |
| 11.2 | Any
request for the Buyer’s consent with respect to the actions specified in Clauses 11.1.1-11.1.10
shall be delivered to the representative of the Buyer as set forth in Clause 18.3, and
the Buyer’s response shall be delivered to the representative of the Seller as set
forth in Clause 18.3. The Buyer undertakes to respond as soon as practically possible
and in no event later than within 5 (five) Business Days from the receipt of such request.
A failure of the Buyer to respond within the deadline referred to above will be deemed to
be the consent having been given by the Buyer for the performance of a given action. |
| 11.3 | The
Seller undertakes or shall procure that each of the Project Companies shall, prepare complete
statutory transfer pricing documentation and benchmarking study for each of the Project Companies
for the financial year ended on 31 December 2022. |
| 11.4 | The
Seller further undertakes that each Project Company will not: |
| 11.4.1 | reduce
its share capital or purchase or redeem its own Shares; |
| 11.4.2 | create
any Encumbrance over the Shares; |
| 11.4.3 | agree
to amend its articles of associations or other constitutional documents (except as required
by Applicable Law); |
| 11.4.4 | take
any other actions (including the exercise of any voting rights attaching to the Shares) to
cause the variation of any rights attaching to the Shares; |
| 11.4.5 | grant
any indemnity or security; |
| 11.4.6 | waive
any right of the relevant Project Company; |
| 11.4.7 | (directly
or indirectly in any form) pay any dividend (if any) or make any other distribution of its
assets to the Seller or Seller’s Group Undertaking; and |
| 11.4.8 | create
any Encumbrance over any of its Projects or assets. |
| 11.5 | Clause
11.1 and 11.4 shall not operate so as to restrict, prevent or limit any of the
following actions or matters by the Seller and/or each Project Company: |
| 11.5.1 | any
action undertaken at the request, or with the prior written consent of the Buyer; |
| 11.5.2 | any
action or matter required or contemplated by this Agreement or Transaction Documents; |
| 11.5.3 | any
action which a Company is required to take, or omit to take, as a result of, or in order
to comply with, any applicable Law or regulation of any applicable Governmental Authority; |
| 11.5.4 | completion
or performance of any obligation pursuant to any contract or arrangement entered into by
any Project Company before the Execution Date and Fairly Disclosed; |
| 11.5.5 | any
action reasonably taken in response to events which require urgent response, in each case
to the extent taken with the intention of minimizing the adverse effect of those events on
the business of any Project Company or the Projects. |
| 12. | THE
BUYER’S POST-COMPLETION UNDERTAKING |
| 12.1 | The
Parties agreed with the VPPA Counterparty that the Buyer will provide the Seller Credit Support
(as defined in the VPPA) in the form of a bank guarantee within 4 (four) months from the
Completion Date. Unitl then, the bank guarantee issued by the Bank of Ireland dated 13 January
2022 and provided by the Seller (“Seller’s VPPA Security”) will remain
valid as the Seller Credit Support under the VPPA. Once the Buyer provides the bank guarantee
to the VPPA Counterparty, the Seller shall procure the VPPA Counterparty to waive the Seller’s
VPPA Security so that the Seller will be able to effectively require the Bank of Ireland
to release the Seller’s VPPA Security. If the foregoing does not occur within 4 (four)
months from the Completion Date, the Buyer shall reimburse to the Seller: (i) the amount
equal to the cash deposit of the Seller paid to the Bank of Ireland for issuing the Seller’s
VPPA Security (“Seller’s Cash Deposit”) as well as (ii) the amount
of any additional costs of maintaining the Seller’s VPPA Security after the Completion
Date. the Seller will procure the Bank of Ireland releases the Seller’s Cash Deposit
to the Seller and upon receipt the Seller will transfer the Seller’s Cash Deposit to
the Buyer. If the Seller cannot receive the Seller’s Cash Deposit from the Bank of
Ireland or although it has received from the Bank of Ireland the amounts referred to above,
does not transfer the Seller’s Cash Deposit to the Buyer within 12 (twelve) months
from the Completion Date, the amount of the Seller’s Cash Deposit will reduce the Retained
Amount payable by the Buyer to the Seller pursuant to Clause 3.6.2. |
| 13. | CONFIDENTIAL
INFORMATION |
| 13.1 | Subject
to Clause 13.2 and Clause 14, the Seller undertakes to the Buyer, the Buyer acting
for itself and as a representative for each Project Company, and the Buyer undertakes to
the Seller, the Seller acting for itself and as a representative for each other Seller’s
Group Undertaking, that it shall treat as confidential all information received or obtained
prior to, as a result of entering into or performing this Agreement, which relates to: |
| 13.1.1 | the
other Party including, where that other Party is a Seller, the Seller’s Group Undertaking
and where that other party is the Buyer, each Buyer’s Group Undertaking, SINO-CEE FUND II
and GP, LP, AIFM, depositary bank of SINO-CEE FUND II; |
| 13.1.2 | the
provisions or the subject matter of this Agreement or any other Transaction Documents and
any claim or potential claim thereunder; and/or |
| 13.1.3 | the
negotiations relating to this Agreement or any other Transaction Document. |
| 13.2 | Clause 13.1
does not apply to disclosure of any such information as is referred to in Clause 13.1: |
| 13.2.1 | which
is required to be disclosed by Applicable Law, by a rule of a listing authority or stock
exchange to which any party including Buyer’s Group Undertakings and Seller’s Group Undertakings,
is subject or submits or by a Governmental Authority or other authority with relevant powers
to which any party including Buyer’s Group Undertakings and Seller’s Group Undertakings is
subject or submits, whether or not the requirement has the force of law provided that the
disclosure shall, so far as is practicable, be made after consultation with the other party
and after taking into account the other party’s including Buyer’s Group Undertakings and
Seller’s Group Undertakings reasonable requirements as to its timing, content and manner
of making or despatch; |
| 13.2.2 | to
an adviser for the purpose of advising in connection with the Transaction provided that such
disclosure is essential for these purposes and is on the basis that Clause 13.1 applies
to the disclosure by the adviser; |
| 13.2.3 | to
an officer or employee of any Buyer’s Group Undertaking or an officer or employee of SINO-CEE
FUND or its GP, LP, AIFM, deporistary bank or of any Seller’s Group Undertaking whose function
requires it to have the relevant confidential information (in which event the disclosing
party will procure the recipient complies with Clause 14.1 in relation to such information); |
| 13.2.4 | to
the extent that the information has been made public by, or with the consent of, the other
party; or |
| 13.2.5 | is
necessary for a party to enforce its rights under any Transaction Document. |
| 13.3 | The
restrictions contained in this Clause 11 shall continue to apply for a period of two
(2) years from the Execution Date. |
| 14.1 | Subject
to Clause 14.2, neither Party may, before, at or after Completion, make or issue a public
announcement, communication or circular concerning the Transactions unless it has first obtained
the other Party’s written consent, which may not be unreasonably withheld or delayed. |
| 14.2 | Clause 14.1
does not apply to a public announcement, communication or circular: |
| 14.2.1 | made
or issued by any Buyer’s Group Undertaking after Completion to a customer, client or supplier
of a Project Company informing it of the Buyer’s purchase of the Shares and to any Governmental
Authority, including Chinese Governmental Authority, concerning this Agreement or the Transaction
for advertising purpose; |
| 14.2.2 | required
by Applicable Law, by a rule of a listing authority or stock exchange to which either the
Buyer’s Group Undertakings and Seller’s Group Undertakings is subject or submits or by a
Governmental Authority or other authority with relevant powers to which Buyer’s Group Undertakings
and Seller’s Group Undertakings is subject or submits, whether or not the requirement has
the force of law provided that the public announcement, communication or circular shall,
so far as is practicable, be made after consultation with the other party and after taking
into account the reasonable requirements of the other party as to its timing, content and
manner of making or despatch; or |
| 14.2.3 | which
the other party has given its prior written approval to, such approval not to be unreasonably
withheld or delayed. |
| 14.3 | The
restrictions contained in this Clause 14 shall continue to apply for a period of three
(3) years from the Execution Date. |
| 15.1 | Except
where this Agreement provides otherwise, each Party shall pay its own costs (and costs incurred
by advisors engaged by that party) relating to the negotiation, preparation, execution and
performance by it of this Agreement and of each document referred to in it. |
| 16.1 | A
variation of this Agreement is valid only if it is in writing with the signatures confirmed
by a notary. |
| 16.2 | The
failure to exercise or delay in exercising a right or remedy provided by this Agreement or
by law does not impair or constitute a waiver of the right or remedy or an impairment of
or a waiver of other rights or remedies. |
| 16.3 | Each
Parties’ rights and remedies contained in this Agreement are cumulative and not exclusive
of rights or remedies provided by the Applicable Law. |
| 16.4 | Except
to the extent that they have been performed and except where this Agreement provides otherwise,
the obligations contained in this Agreement remain in force after Completion. |
| 16.5 | Any
payment made by the Seller to the Buyer in respect of any Claim shall be treated as a reduction
in the Total Liability Amount. |
| 16.6 | If
at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable
under the laws of any jurisdiction, that shall not affect: |
| 16.6.1 | the
legality, validity or enforceability in that jurisdiction of any other provision of this
Agreement; or |
| 16.6.2 | the
legality, validity or enforceability under the laws of any other jurisdiction of that or
another provision of this Agreement. |
| 16.7 | Subject
to the provisions of Clause 16.8, the Transaction Documents constitute the entire agreement
between the Parties. They supersede any previous agreements relating to the subject matter
of the Transaction Documents, and set out the complete legal relationship of the Parties
arising from or connected with that subject matter. |
| 16.8 | The
Buyer agrees that its only rights and remedies in respect of any representations are those
rights and remedies set out in the Transaction Documents. |
| 16.9 | Nothing
in this Agreement shall have the effect of limiting any liability arising from fraud. |
| 17.1 | Neither
Party shall assign any of its rights under this Agreement whether in whole or in part without
the other Party’s consent. |
| 18.1 | A
notice or other communication under or in connection with this Agreement (“Notice”)
shall be: |
| 18.1.2 | in
the English language; and |
| 18.1.3 | delivered
personally or sent by registered post or by e-mail to the party due to receive the Notice
to the address set out in Clause 18.3 or to an alternative address, person or e-mail
address specified by that party and received by the other party before the Notice was despatched. |
| 18.2 | Unless
there is evidence that it was received earlier, the Notice is deemed given if: |
| 18.2.1 | delivered
personally, when left at the address referred to in Clause 18.3; |
| 18.2.2 | sent
by registered mail, except air mail, four (4) Business Days after posting it; and |
| 18.2.3 | sent
by e-mail, when confirmation of delivery has been received by the sender. |
| 18.3 | The
address referred to in Clause 18.1.3 is: |
Name of party |
|
Address |
|
Email address |
|
Marked for the attention of |
The Seller: |
|
C/O Suite 9 & 10, Plaza 212, Blanchardstown Corporate Park 2, Dublin D15 R504, Ireland |
|
td@alternusenergy.com, Alt_Corp_Legal@alternusenergy.com |
|
Tali Durant, Chief Legal Officer |
The Buyer: |
|
Luxembourg 80 Route d’Esch, 1470 Luxembourg |
|
yangfei@sinoceef.com |
|
Francis Yang |
| 19. | GOVERNING
LAW AND DISPUTE RESOLUTION |
| 19.1 | This
Agreement and all non-contractual or other obligations arising out of or in connection with
it are governed by, and shall be construed in accordance with, Polish law. |
| 19.2 | All
disputes arising out of, or in connection with this Agreement, including a breach, termination
or invalidity thereof, shall be finally settled by the Court of Arbitration at the Polish
Chamber of Commerce (Krajowa Izba Gospodarcza) in Warsaw. The place of arbitration
shall be Warsaw (Poland). The language to be used in the arbitral proceedings shall be English. |
| 20.1 | This
Agreement is drawn up in the English language. If this Agreement is translated into another
language, the English language text prevails. |
| 21.1 | This
Agreement may be executed in any number of counterparts with each signature confirmed by
a notary public, each of which when executed and delivered is an original and all of which
together evidence the same agreement. |
EXECUTED
by the Parties:
Signed
for and on behalf of the Seller: |
|
Signed
for and on behalf of the Buyer: |
|
|
|
/s/
Witold Kurek |
|
/s/
Fei Yang |
Witold Kurek, attorney-in-fact |
|
Fei Yang, sole manager (gérant
unique) |
SCHEDULE
1.1(E)
PROJECT COMPANIES
No |
Project |
Project
Company (current name) |
Relevant
projects being developed
by
the Project Company |
1 |
Witnica |
Solarark
Samas spółka z ograniczoną odpowiedzialnością with its
registered office in Warsaw, address: ul. Garażowa 5A, 02-651 Warsaw, entered in the
commercial register of the National Court Register kept by the district court the Capital
City of Warsaw in Warsaw, 13th Commercial Division of the National Court Register under number
KRS: 0000584357 (“SolarPark Samas”)
“Solarpark
Samas Shares” means 100 shares with a nominal value of PLN 50 (fifty Polish zlotys) each share and the total nominal value
of PLN 5,000 (five thousand Polish zlotys), constituting 100% of all the issued share capital of Solarpark Samas and 100% (one hundred
percent) of the votes at the shareholders’ meeting of Solarpark Samas. |
WITNICA
located in the municipality of Witnica, consisting of: (i) Witnica I with installed capacity 49,9623 MW, (ii) Witnica
II with installed capacity 7,29972 MW, and Witnica III with installed capacity 7,29972 MW) |
2 |
SIG
24 |
RA01
spółka z ograniczoną odpowiedzialnością with its registered
office in Warsaw, address: ul. Garażowa 5A, 02-651 Warsaw, entered in the commercial
register of the National Court Register kept by the district court the Capital City of Warsaw
in Warsaw, 13th Commercial Division of the National Court Register under number KRS: 0000802648
(“RA01”)
“RA01
Shares” means 100 shares with a nominal value of PLN 50 (fifty Polish zlotys) each share and the total nominal value of
PLN 5,000 (five thousand Polish zlotys), constituting 100% of all the issued share capital of RA01 and 100% (one hundred percent)
of the votes at the shareholders’ meeting of RA01. |
RAKOWIEC
located in the municipalities of Rakowiec and Wola Popowa with installed capacity of 0,998 MW |
No |
Project |
Project
Company (current name) |
Relevant
projects being developed
by
the Project Company |
3 |
SIG
24 |
Gardno
PV spółka z ograniczoną odpowiedzialnością with its
registered office in Warsaw, address: ul. Garażowa 5A, 02-651 Warsaw, entered in the
commercial register of the National Court Register kept by the district court the Capital
City of Warsaw in Warsaw, 13th Commercial Division of the National Court Register under number
KRS: 0000765062 (“Gardno PV”)
“Gardno
PV Shares” means 100 shares with a nominal value of PLN 50 (fifty Polish zlotys) each share and the total nominal value
of PLN 5,000 (five thousand Polish zlotys), constituting 100% of all the issued share capital of Gardno PV and 100% (one hundred
percent) of the votes at the shareholders’ meeting of Gardno PV. |
SSW7
located in the municipality of Węgorzyno with installed capacity of 0,998 MW
SSW8
located in the municipality of Węgorzyno with installed capacity of 0,998 MW
SSW9
located in the municipality of Węgorzyno with installed capacity of 0,998 MW
SSW10
located in the municipality of Węgorzyno with installed capacity of 0,998 MW
SSW11
located in the municipality of Węgorzyno with installed capacity of 0,998 MW
SSW12
located in the municipality of Węgorzyno with installed capacity of 0,998 MW |
4 |
SIG
24 |
Gardno2
PV spółka z ograniczoną odpowiedzialnością with its
registered office in Warsaw, address: ul. Garażowa 5A, 02-651 Warsaw, entered in the
commercial register of the National Court Register kept by the district court the Capital
City of Warsaw in Warsaw, 13th Commercial Division of the National Court Register under number
KRS: 0000789820 (“Gardno2 PV”)
“Gardno2
PV Shares” means 100 shares with a nominal value of PLN 50 (fifty Polish zlotys) each share and the total nominal value
of PLN 5,000 (five thousand Polish zlotys), constituting 100% of all the issued share capital of Gardno2 PV and 100% (one hundred
percent) of the votes at the shareholders’ meeting of Gardno2 PV. |
SSW13
located in the municipality of Węgorzyno with installed capacity of 0,998 MW
SSW14
located in the municipality of Węgorzyno with installed capacity of 0,998 MW
SSW15
located in the municipality of Węgorzyno with installed capacity of 0,998 MW
SSW16
located in the municipality of Węgorzyno with installed capacity of 0,998 MW |
No |
Project |
Project
Company (current name) |
Relevant
projects being developed
by
the Project Company |
5 |
SIG
24 |
Elektrownia
PV Komorowo spółka z ograniczoną odpowiedzialnością
with its registered office in Warsaw, address: ul. Garażowa 5A, 02-651 Warsaw, entered
in the commercial register of the National Court Register kept by the district court the
Capital City of Warsaw in Warsaw, 13th Commercial Division of the National Court Register
under number KRS: 0000812542 (“Elektrownia PV Komorowo”)
“Elektrownia
PV Komorowo Shares” means 100 shares with a nominal value of PLN 50 (fifty Polish zlotys) each share and the total nominal
value of PLN 5,000 (five thousand Polish zlotys), constituting 100% of all the issued share capital of Elektrownia PV Komorowo and
100% (one hundred percent) of the votes at the shareholders’ meeting of Elektrownia PV Komorowo. |
GOŚCIESZYN
located in the municipality of Wolsztyn with installed capacity of 0,997 MW
KOMOROWO
I located in the municipality of Wolsztyn with installed capacity of 0,996 MW
KOMOROWO
II located in the municipality of Wolsztyn with installed capacity of 0,997 MW
KOMOROWO
III located in the municipality of Wolsztyn with installed capacity of 0,997 MW
KOMOROWO
IV located in the municipality of Wolsztyn with installed capacity of 0,997 MW
KOMOROWO
V located in the municipality of Wolsztyn with installed capacity of 0,997 MW
KOMOROWO
VI located in the municipality of Wolsztyn with installed capacity of 0,997 MW |
6 |
SIG
24 |
PV
Zachód spółka z ograniczoną odpowiedzialnością
with its registered office in Warsaw, address: ul. Garażowa 5A, 02-651 Warsaw, entered
in the commercial register of the National Court Register kept by the district court the
Capital City of Warsaw in Warsaw, 13th Commercial Division of the National Court Register
under number KRS 0000756677 (“PV Zachód”)
“PV
Zachód Shares” means 1,000 shares with a nominal value of PLN 50 (fifty Polish zlotys) each share and the total nominal
value of PLN 50,000 (fifty thousand Polish zlotys), constituting 100% of all the issued share capital of PV Zachód and 100%
(one hundred percent) of the votes at the shareholders’ meeting of PV Zachód. |
GOŚCIESZOWICE
I located in the municipality of Niegosławice with installed capacity of 0,997
MW
GOŚCIESZOWICE
II located in the municipality of Niegosławice with installed capacity of 0,997 MW
NOWA
KOPERNIA I located in the municipality of Szprotawa with installed capacity of 0,997 MW
NOWA
KOPERNIA II located in the municipality of Szprotawa with installed capacity of 0,997 MW
SULECHÓW
I located in the municipality of Sulechów with installed capacity of 0,996 MW
SULECHÓW
II located in the municipality of Sulechów with installed capacity of 0,996 MW |
SCHEDULE
8.1
SELLER’S WARRANTIES
Part
A – Fundamental Warranties
| 1.1 | The
Seller is a limited liability company duly incorporated in Ireland and has full corporate
power and capacity to enter into legal transactions including this Agreement, any other Transaction
Document and to perform the Transaction, and has obtained all corporate approvals for the
sale of the Shares to the Buyer. |
| 1.2 | The
Seller is not: (i) subject to mandatory winding-up, bankruptcy or other insolvency proceedings,
(ii) insolvent within the meaning of the Applicable Law of its country of incorporation,
(iii) unable to pay its debts as they fall due (nor has he stopped paying his debts as they
fall due), or (iv) to the Seller’s Knowledge, threatened with insolvency. |
| 1.3 | The
Seller is duly represented in the conclusion of this Agreement and any other Transaction
Document. |
| 1.4 | Seller’s
obligations under the Agreement, the Final Agreement and each Transaction Document to be
executed by the Seller at or before the Completion are, or when the relevant document is
executed will be, enforceable in accordance with their respective terms. |
| 1.5 | No
action was taken, no claim was raised, and no proceedings were initiated against or involving
the Seller, nor is there any threat of any of actions that could have an impact on the validity,
effectiveness or enforceability of this Agreement and any other Transaction Document being
taken or initiated. |
| 1.6 | The
execution, delivery and performance by the Seller of the Agreement will not: |
| 1.6.1 | result
in a breach of any provision of the statutes or articles of association or by-laws or equivalent
constitutional documents of the Seller; |
| 1.6.2 | result
in a breach of any order, judgment or decree of any court or governmental agency to which
the Seller is a party or by which the Seller is bound or submits to; |
| 1.6.3 | result
in any harm to any creditors of the Seller in the meaning of Article 527 § 2 of the
Civil Code and will not prevent, either wholly or partially, the Seller from satisfying a
claim of any person; or |
| 1.6.4 | require
the Seller to obtain any consent or approval of, or give any notice to or make any registration
with, any Governmental Authority or other authority which has not been obtained or made at
the date hereof both on an unconditional basis and on a basis which cannot be revoked (save
pursuant to any legal or regulatory entitlement to revoke the same other than by reason of
any misrepresentation or misstatement). |
| 2.1 | The
Seller is the sole legal owner of all the Shares. |
| 2.2 | The
Seller has the right to exercise all voting rights and other rights resulting from the ownership
of the Shares. No person, other than the Seller, is entitled to exercise any voting right
or other corporate rights resulting from the possession of the Shares in any of the Project
Companies. |
| 2.3 | All
the Shares are fully paid up and have been correctly issued and taken up. |
| 2.4 | There
is no Encumbrance, and there is no agreement, arrangement or obligation to create or give
an Encumbrance and no person has claimed to be entitled to any such Encumbrance, in relation
to any of the Shares. |
| 2.5 | Other
than this Agreement, the Final Agreement or other Transaction Documents, neither the Seller
nor any Project Company is a party to any agreement, arrangement or obligation requiring
the issue, transfer or redemption of, or the grant to a person of the right (conditional
or not) to require the issue, transfer or redemption of any shares is the capital of the
Project Company (including, without limitation, an option or right of conversion). |
| 2.6 | Save
for this Agreement, there is no other agreement, arrangement, obligation or commitment: (i)
outstanding which calls for the right to purchase or which grants the right of first refusal,
pre-emption, option or conversion over the Shares and/or (ii) that requires the transfer,
redemption of, or grant to a person of the right (conditional or not) to require the transfer
or redemption of the Shares. |
| 2.7 | There
are no pending court proceedings, including arbitration proceedings, that in any way pertain
to the Shares, and there is no risk that any such proceedings may be instituted and, in particular,
no Shares have been seized in the course of any enforcement procedure and there is no risk
that any such procedure may be instituted. |
| 3.1 | Each
Project Company has been duly incorporated and registered in accordance with the laws of
Poland and has existing continuously since their establishment. |
| 3.2 | None
of the Project Companies has conducted any business activities other than developing and
operating the Projects, is not a party to any contract not related to the Project, does not
own any assets other than related to the Projects. |
| 3.3 | None
of the Project Companies is a party to an agreement or issuer of any document or undertaking
grating any security, guarantee or surety in favor of the Seller, any of the Seller’s
Group Undertakings or any third party. |
| 3.4 | No
shareholders’ resolution has been passed for or regarding the initiation of any insolvency
or restructuring proceedings or the winding-up of any Project Company and none of the Project
Companies meet the conditions for declaring bankruptcy. |
| 3.5 | The
share capital of each Project Company has been correctly and fully paid up, in accordance
with Applicable Law. |
| 3.6 | Each
Project Company is duly organized and validly existing under Applicable Law, and details
concerning each Project Company are specified in Schedule 1.1(E). |
| 3.7 | No
Project Company is subject to: (i) any restructuring proceedings or (ii) any insolvency or
amicable settlement, no trustee or other judicial officer has been appointed in respect of
any Project Company. |
| 3.8 | There
is no resolution of any Project Company’s shareholders’ meeting, or of any other authorized
governing body of the relevant Project Company, regarding (i) the distribution of profits
(whether by payment of dividends, payment of interim dividends, or otherwise), or (ii) the
making of any other payments or capital distributions to shareholders, or (iii) imposing
additional payments or any other performances binding on its shareholders, which have not
already been fully implemented and performed in accordance with their terms. |
| 3.9 | No
resolutions of the governing bodies of any Project Company concerning any profit distributions
or any capital distributions of any Project Company have been adopted that would not be implemented
in accordance with their provisions. |
| 3.10 | Each
Project Company has full power and authority to conduct its business as it is currently conducted
and as it is conducted in the Ordinary Course of Business, and no restrictions or limitations
under a court ruling or an administrative decision exist with respect to the conduct of its
business and no such restrictions or limitations are threatened. |
| 3.11 | Resolutions
of the governing bodies of each Project Company have been passed in accordance with the Applicable
Law and the Seller has not requested that any resolution be invalidated, revoked or rendered
null and void, and the Seller will also not assert any claims if it appears that any resolution
is invalid, null and void or may be subject to revocation, nor will he raise such defense.
No proceedings aimed at the invalidation or revocation of any resolutions of governing bodies
of each Project Company were or are pending. |
| 3.12 | Each
Project Company has conducted its business in accordance with the Applicable Law in all material
respects and is not in violation of the Applicable Law. None of the Project Company has received
any notification or information from a court, administrative authority, regulatory body or
tribunal in respect of a possible breach of the Applicable Laws thereby. |
| 3.13 | None
of Project Company does hold any shares or securities in any other Person nor has any branch,
division, or permanent establishment outside Poland and is not obligated to purchase any
shares or other equity interests in any entity. |
| 3.14 | The
entries in the relevant register of the National Court Register relating to each Project
Company are correct and complete. There are no pending proceedings aimed at making an entry
in the relevant register. There are no resolutions to amend the articles of association of
any Project Company, and no decisions or resolutions of the relevant governing bodies have
been adopted, in particular any resolutions to any increase, decrease or otherwise change
the structure of any Project Company’s share capital or on any merger, transformation,
division or reorganization of any Project Company, that have been adopted but not yet registered
or filed for registration. |
| 3.15 | Copies
of the share register of each Project Company were Fairly Disclosed and are up-to-date, accurate
and complete. |
| 3.16 | Each
Project Company has made all material filings required for or in connection with the conducting
of its business in the place and in the manner in which business is now carried on. |
| 3.17 | All
corporate documents of each Project Company which were Fairly Disclosed, in particular resolutions
of each Project Company’s governing bodies and all registers and minute books, are
kept in each Project Company’s registered office and provide true and up-to-date information
on all matters which they describe, and are kept and registered in the relevant registers
in all material respects in accordance with the Applicable Law and there have been no amendments
thereto after the date of their Fairly Disclosure in the Data Room. |
| 3.18 | The
Seller has no claims against any Project Company for the seeking of payment of any dividend
or repayment of any loan or other similar debt facility, except for the Shareholder’s
Loans and the Seller confirms that any other Seller’s Group Undertaking has no claims
against any Project Company for the seeking of payment of any dividend or repayment of any
loan or other similar debt facility. |
| 3.19 | The
composition of each Project Company’s governing bodies has always complied with the
Applicable Law and the applicable internal regulations, and the members of such authorities
were and are duly appointed. |
| 3.20 | None
of the Project Companies holds any shares or stocks in any third entity and is not obligated
to purchase any stocks or shares or other equity interests in any entity. |
| 4.1 | The
Project Companies have obtained all the administrative licenses, permits (including the Zoning
Permits, Environmental Permits and Building Permits), permissions, concessions, decisions,
authorisations, consents and other approvals required for the construction and operation
of the Projects (“Permits”). All such Permits are final, and non-appealable
and binding (prawomocne, ostateczne i wykonalne), and any amendments or corrections of the
Permits (if any) have been made lawfully by the competent authority. Permits have not been
transferred, quashed, stated expired or invalidated. There are no factual or legal grounds
leading to any of the Permits expiring or being challenged, invalidated, withdrawn, terminated,
revoked, invalidated, stated as being expired or otherwise being cancelled. The complete
list of Permits constitutes Appendix 4.1 to this Schedule 8.1. |
| 4.2 | For
the purpose of this point by binding (prawomocne) is understood that either (i) the deadline
for appeal against the decision of second instance administrative authority to the administrative
court has expired and no such appeal was filed, or (ii) if the appeal against the decision
of second instance administrative authority was filed to the administrative court, the ruling
of the voivodeship administrative court upholding the decision was issued and the deadline
for filing the appeal of last resort to the Highest Administrative Court (Najwyższy
Sąd Administracyjny) has expired and no such appeal was filed or (ii) if the appeal
of last resort to the Highest Administrative Court was filed, a ruling of the Highest Administrative
Court upholding the decision was issued. |
| 4.3 | The
Project Companies have not received any notice on any on-going proceedings aimed at declaring
any of the Permits required for the construction of the Projects to be challenged, invalid
or revoked or re-opening the proceedings in which any of them has been issued. |
| 4.4 | The
Project Companies have not received any written notice alleging that any Permits, have not
been obtained. |
| 4.5 | None
of the Projects has been located on the basis of a zoning plan (miejscowy plan zagospodarowania
przestrzennego) and no zoning plan has been adopted with respect to any Property. |
| 4.6 | Each
Project Company has secured access to public roads for the Projects. |
| 4.7 | Each
Project Company has valid, effective, and enforceable rights to all the Projects it develops
and any transfers of rights and obligations to the Projects that took place before signing
this Agreement, have been validly and effectively assigned to the relevant Project Company. |
| 4.8 | Any
and all contracts or Permits obtained or signed by or on behalf of the Seller or by on or
behalf of each Project Company in connection with any of the Projects have been entered into
in accordance with Applicable Law. |
| 4.9 | None
of Project Company has any obligations and/or any liability towards any of the municipality
where Projects are being developed. |
| 4.10 | All
Projects has duly and validly obtained GCC. There are no basis for any amendments, modifications
or corrections of the GCC issued for the Projects and there are no there are no proceedings
pending regarding GCC. |
| 4.11 | All
Project Companies have effectively concluded GCA. There are no basis for to the termination
of the GCA by any of the Project Companies as well as the relevant distribution system operator. |
Part
B
| 1.1 | The
Project Companies have fulfilled all applicable Tax obligations, have paid or accrued all
Tax which it they have become liable to pay, including any advances on Tax (whether or not
shown on any Tax return), and are not liable to pay a penalty, surcharge, fine or interest
in connection with any Tax and does not have any overdue or contingent Tax liabilities. |
| 1.2 | The
Project Companies have withheld or collected and deposited with, or paid over to, the appropriate
Governmental Authorities all Taxes required by the Applicable Law to be withheld or collected
by it. |
| 1.3 | No
Project Company is involved in any material dispute in relation to Tax with any Tax Authority
and has not received from any Governmental Authority any notice of a proposed adjustment,
deficiency or underpayment of any Taxes; and there are no claims that have been asserted
or threatened relating to any Taxes against the relevant Project Company. |
| 1.4 | The
Project Companies keep, in all material respects, books of accounts, documentation and records
as required by Applicable Law, as applied and implemented by the competent Tax Authorities,
has the appropriate records of past events that occurred at any time prior to the Completion
Date and at the Completion Date, and all these records and information are available for
evaluation and analysis in accordance with the requirements of the Applicable Law and every
Tax Authority to make possible the calculation, verification and presentation of all Taxes. |
| 1.5 | No
Project Company is treated for any Tax purpose as resident in a country other than the country
of its incorporation, and no Project Company has received a written claim from any Tax Authority
in a jurisdiction where such Project Company does not file Tax returns that it is or may
be subject to taxation in that jurisdiction and no Project Company had any branch, agency
or permanent establishment in any other jurisdiction for any Tax purposes (and no Tax Authority
has ever sought to assert the same). |
| 1.6 | Any
Project Company has made any payments to non-residents with respect to which a preferential
Tax rate was applied based on double taxation treaties or applicable Polish tax law provisions,
or which were deemed Tax-exempt based on such regulations, to the extend required. |
| 1.7 | No
Project Company is a member of a tax group. |
| 1.8 | Each
Project Company has duly and timely filed with the appropriate Governmental Authorities all
Tax returns required to be filed by or with respect to it, and all such filed Tax returns
are true, complete, accurate and not misleading in all respects. |
| 1.9 | The
Seller has made available to the Purchaser true, complete, accurate and not misleading copies
of all Tax returns filed by or on behalf of each Project Company. |
| 1.10 | Any
Project Company has waived or agreed to any extension of any statute of limitations for any
Taxes, which waivers are currently in effect. |
| 1.11 | There
are no Tax rulings, requests for rulings, or closing agreements for or on behalf of the any
Project Company that could affect the liability for Taxes of the relevant Project Company. |
| 1.12 | No
Project Company has been involved in any scheme, arrangement, structure, transaction or series
of transactions in which the main purpose or one of the main purposes was the evasion, avoidance
or postponement of payment of any Tax. |
| 1.13 | All
notices, computations, documentation, information, returns and registrations of each Project
Company for the purposes of any Tax, which ought to have been submitted to a Tax Authority
by any Project Company, have been properly and duly submitted and all information, notices,
computations, documentation, information and returns submitted to a Tax Authority are true,
complete, accurate and not misleading in all material respects and are not the subject of
any material dispute with a Tax Authority. |
| 1.14 | Each
Project Company has been registered for the purposes of value-added tax (VAT) in accordance
with the Applicable Law in effect on the date of such registration, it has at all times met
and continues to meet all of the obligations imposed on it by the provisions of law governing
VAT obligations. In particular, each Project Company has at all times prepared and maintained,
and continues to prepare and maintain, full, correct and updated documentation required under
the provisions of law governing VAT obligations. |
| 1.15 | None
of the Project Companies has been involved in a VAT fraud. There are no situations that could
bring any Project Company to any dispute or claim resulting from VAT fraud. No collateral,
mortgage or treasury pledge has been established over the assets of any Project Company in
connection with the performance of duties as a taxpayer, tax remitter, collector, legal successor
or third party liable for the Taxes of another entity. In particular, none Project Company
has been required by a relevant Tax Authority to establish any security for the payment of
any Tax. |
| 1.16 | Each
Project Company applied split payment in payments made to service and goods providers in
accordance with Applicable Law and made payments for the services and goods acquired to the
services and goods provider’s bank account listed in the registry of VAT taxpayers published
by the Polish Ministry of Finance (so called ‘white list’) as of the date of
such payment to the extent required by Applicable Law. |
| 1.17 | Each
Project Company has carried out all or any intra-group transactions, within the meaning of
the Applicable Law, on an arm’s-length basis, and hold documentation and calculations to
support this (benchmark analysis, cost base calculations, allocation keys calculations etc.).
Each Project Company has complete transfer pricing documentation relating to intra-group
transaction where required by the Applicable Law. |
| 1.18 | All
documents to which each Project Company is a party on which stamp duty (or the tax on legal
transactions, as appropriate) is payable has had such duty duly paid by each Project Company
and the registration of relevant documentation has been properly filed with the competent
Tax Authorities. |
Part
C
| 1.1.1 | were
prepared in accordance with the requirements of the Accounting Act; |
| 1.1.2 | show,
in all material respects, a true, complete and fair view of the financial position of each
relevant Project Company as at the relevant Accounting Date and the results of the operations
and cash flows for the financial period then ended; |
| 1.1.3 | make
appropriate specific provisions for all assets and liabilities and for all capital and financial
commitments of each Project Company, whether actual, contingent, qualified, disputed or otherwise,
as at or on the relevant Accounting Date; and |
| 1.1.4 | have
been prepared on the basis of principles corresponding to the principles that were adopted
for the purposes of the preparation of the financial statements of each Project Company for
the previous accounting periods and in compliance with such principles, and there were no
changes in the accounting principles concerning the preparation of the financial statements
of each Project Company in the three financial years preceding the relevant Accounting Date. |
| 1.2 | The
Accounts were approved and submitted to the relevant authorities in accordance with Applicable
Law. |
| 2. | CHANGES
SINCE THE LOCKED BOX DATE |
| 2.1 | Since
the Locked Box Date: |
| 2.1.1 | the
Project Companies’ business has been operated in the Ordinary Course of Business so as to
maintain it as a going concern and without any material interruption or material alteration
in its nature or scope; |
| 2.1.2 | to
the Seller’s Knowledge and save for matters affecting similar businesses generally, there
has been no adverse change in the financial or trading position of the Project Companies; |
| 2.1.3 | no
Project Company has declared, paid or made a dividend, advance payment against expected dividend
or other distribution of capital, except (i) as provided in the Accounts and (ii) distributions
to another Project Company; and |
| 2.1.4 | no
Project Company has issued, acquired or redeemed share capital or otherwise returned capital
or made an agreement or arrangement, undertaken an obligation or granted authorization to
do any of those things. |
| 3.1 | Project
Companies are indebted to the Seller and on account of and in the amounts of as indicated
in Appendix 1.1(G) hereto. |
| 3.2 | The
Seller has the exclusive ownership of the rights under relevant Shareholder’s Loans
as indicated in Appendix 1.1(G) hereto |
| 3.3 | There
are no arrears or other claims under Shareholder Loans other than for repayment of the outstanding
amounts listed in Appendix 1.1(G) hereto. |
| 3.4 | Appendix
1.1(G) is a true and accurate list and description of the Shareholder Loans as at the date
hereof and there are no other intra-group loan agreements with any Project Company to which
the Seller and/or Seller’s Group Undertakings is a party as the lender that have not
been included in such list. |
| 3.5 | The
Seller’s title to the rights under relevant Shareholder Loans to which the Seller is
a party is free and clear of any Encumbrances. |
| 3.6 | Each
of the Project Companies has not established or agreed to establish any Encumbrance in favour
of any person in relation to the Shareholder Loans. |
| 3.7 | Except
for the Shareholder Loans there are no agreements creating any borrowing or indebtedness
of any Project Company. |
| 3.8 | The
Seller’s rights under the Shareholder’s Loans are fully transferable, and there
are no restrictions on the disposal of such rights, by law, by contract, or as a result of
any court judgment, arbitration award or administrative decision. |
| 4.1 | The
Project Companies own or have the right to use each Asset used by them, which is necessary
to perform their activities in the Ordinary Course of Business, as carried on by them at
the Execution Date. |
| 4.2 | Where
Assets are not owned by the Project Companies, but used on the basis of a contractual arrangement,
no notification from a third party has been received by any of the Project Companies for
the termination of the agreement for the use of such Assets. |
| 4.3 | There
is no Encumbrance except for those arising by operation of Applicable Law and there is no
agreement, arrangement or obligation to create or give an Encumbrance, in relation to any
Asset owned by any of the Project Companies. |
| 5.1 | None
of the Project Companies is the owner or a perpetual usufructuary (użytkownik wieczysty)
of any agricultural real property. |
| 5.2 | Each
Project Company has a valid and proper legal title as well as uninterrupted access to the
Property on which Projects and all Projects’ infrastructure such as energy cable lines
and substations are located. This legal title is secured under Land Lease Agreements (as
listed in Appendix 5.2 to Schedule 8.1), transmission easement agreements
(“TEAs”) or other relevant agreements that secure the Project Companies
rights to the Properties, which are currently in full force and effect, have not been terminated
or suspended and there are no grounds for such termination or suspension. All the Land Lease
Agreements, TEAs and other relevant agreements are valid and binding and were not terminated
or breached by any of Project Company or respective landowners. |
| 5.3 | Each
Project Company has in its possession uninterrupted access to all the Properties covered
by the Land Lease Agreements. |
| 5.4 | With
respect to Land Lease Agreements, TEAs and other relevant agreements that secure the Project
Companies rights to the Properties: |
| 5.4.1 | all
obligations of any Project Company thereunder were duly performed by each Project Company
and there are no overdue liabilities or payments due thereon; and |
| 5.4.2 | to
the Seller’s Knowledge there are no circumstances which could entitle or require any third
person (including, without limitation, a landlord or licensor) to forfeit or enter, or take
possession of, or occupy, any Property. |
| 5.5 | None
of the Project Companies occupies or uses or possess any Property without a valid title. |
| 5.6 | There
are no leases, tenancy agreements or other agreements that entitle or may entitle any other
person to use the Properties which are used for the purposes of the Projects. |
| 5.7 | Each
Project Company has used the Properties in compliance with the Land Lease Agreements, TEAs
and other relevant agreements that secure the Project Companies rights to the Properties
and in compliance with Applicable Law. |
| 5.8 | No
third party’s claims, including potential third party’s claims relating to any
of the Properties have been notified to any Project Company. |
| 5.9 | There
are no disputes between any Project Company and the owners or possessors of the Properties
which are used for the purposes of the Projects and the owners or occupiers of any neighboring
properties or any property adjacent to the Properties concerning borders, emissions, easements,
access rights or means, or any other rights or obligations concerning the Property. |
| 5.10 | No
termination notice has been received by the any Project Company in respect to any of the
Land Lease Agreements, TEAs and other relevant agreements that secure the Project Companies
rights to the Properties. |
| 5.11 | None
of the Project Companies received any notice of expected material change in rent with respect
to any Property. |
| 5.12 | None
of the easements or other Encumbrances disclosed in the relevant LMR established over the
Properties for benefit of third parties restrict or impede in any way proper conduct of business
as it is conducted by each Project Company at the date hereof, and will not restrict or impede
in any way development, construction or operation of the Projects and will not restrict or
impede in the future having in consideration the envisaged activity in particular for the
production and sale of electricity. |
| 5.13 | There
are no plans regarding construction of new roads or the expansion of existing roads, power
grids, natural gas grids, pipelines or any other public purpose use of the Properties on
which the Projects are located, as well as of the neighboring plots of land within a 20-meter
zone (measured from each boarder of the part of the Property on which a Projects are located)
and the Seller is not aware of any such plans as at the date hereof. |
| 5.14 | The
Properties are not located in the areas at risk of flooding as referred to in Article 169
section 1 of the of the Water Act and if the need for its construction results from the developed
geotechnical project (badania geotechniczne) prepared for the relevant Properties,
have an appropriate system for drainage water. |
| 5.15 | The
Properties at which the Projects will be constructed and operated do not contain any: (i)
explosives, radioactive or otherwise hazardous materials; (ii) hazardous waste, pollutants,
or contaminants; (iii) fossils, coins, articles of value or antiquity, or other archaeological
items; (iv) other obstructions or concealed physical conditions of an unusual nature; which
would have an adverse effect on the Project construction and/or development. |
| 6.1 | The
Project Companies hold valid legal title to all the Intellectual Property Rights used by
them, and such Intellectual Property Rights are held by the each Project Company to the furthest
extent allowed by the Applicable Laws and sufficient to operate the Projects, including software
rights for the operation and monitoring system for each Project and design rights concerning
the project (design) documentation concerning each Project. |
| 6.2 | All
renewal fees payable in respect of the registered Intellectual Property Rights have been
paid. |
| 6.3 | The
Project Companies have not granted and are not obliged to grant a license, assignment or
other right in respect of any of the Intellectual Property Rights. |
| 6.4 | No
Project Company has received written notice that it infringes any Intellectual Property rights
of any other person and no Project Company is infringing the Intellectual Property rights
of any other person. |
| 6.5 | To
the Seller’s Knowledge, no other person is infringing the Intellectual Property Rights and
no proceedings regarding the infringement of the Intellectual Property Rights by any other
person have been instituted or are pending, nor are there grounds for instituting such proceedings. |
| 7.1 | The
Data Room contains copies of all Material Contracts as listed in Appendix 7.1 to this
Schedule 8.1. |
| 7.2 | Each
Material Contract remains in full effect and is validly entered into by the relevant Project
Company. To the Seller’s Knowledge, no party to a Material Contract has or has threatened
to terminate or requested to amend the conditions of such agreement. |
| 7.3 | No
party with whom any of the Project Companies have entered into a Material Contract has given
notice to any of the Project Companies of its intention to terminate or has sought to rescind
such Material Contract. |
| 7.4 | No
Material Contract has been rescinded or terminated by any of the Project Companies and, to
the Seller’s Knowledge, as at the Execution Date there are no circumstances which would result
or could be reasonably expected to result in such rescission or termination. |
| 7.5 | The
Data Room contains copies of all Intragroup Agreements. |
| 7.6 | Other
than Fairly Disclosed there are no existing contracts or arrangements material to the business
of any Project Company between, on the one hand, any Project Company and, on the other hand,
the Seller or any of Seller’s Group Undertakings. Neither the Seller nor any of Seller’s
Group Undertakings is entitled to raise a claim of any nature against any Project Company. |
| 7.7 | Subject
to the VPPA, conclusion of this Agreement and transfer of Shares does not stand in contradiction
to and does not constitute a breach under any Material Agreements, nor is any consent or
notification of any other parties to such agreements required in this respect. |
| 7.8 | None
of the Material Agreements which the each Project Company is a party to contains any clauses
which restrict the capacity of each Project Company to undertake its commercial activity. |
| 7.9 | There
are no outstanding claims against any Project Company arising out of any Material Agreement,
understanding or arrangement to which each Project Company is a party. There is no event,
occurrence, error or omission that might give rise to any such claim against any Project
Company |
| 7.10 | Other
than Fairly Disclosed there are no agreements concluded between any Project Company and the
Seller or Seller’s Group Undertaking that are still in force or binding for the Group
Company and there are no outstanding claims or other obligations of the parties resulting
from or related to such agreement. |
| 7.11 | None
of the Project Company is a party to any agreement or arrangement which was concluded or
is being performed in any manner other than in the Ordinary Course of Business, nor is it
a party to any agreement or arrangement which: |
| 7.11.1 | was
concluded on any terms other than at arm’s length; |
| 7.11.2 | cannot
be fulfilled or duly performed by it on time or without unreasonable and extraordinary costs
or outlays; |
| 7.11.3 | is
intended to restrict competition or results in the restriction of competition, and that may,
in full or in part, breach the applicable competition and consumer protection or public aid
laws or similar legal regulations; |
| 7.11.4 | restricts
its freedom to conduct business activity or use assets in such manner as it deems appropriate; |
| 7.11.5 | contains
material contractual penalties that could be due from the Project Company, minimum purchase
requirements or provisions surviving the termination of the contract (other than confidentiality
obligations); |
| 7.11.6 | subject
to the VPPA, may be rescinded or amended or may result in any other adverse consequences
for the respective Project Company if the Agreement is performed and, in particular, contains
any “change of control” clauses; |
| 7.11.7 | subject
to the VPPA, requires the other party to be notified of any direct or indirect changes in
the shareholding structure of the respective Project Company; |
| 7.11.8 | concerns
any put or call option or obligation to sell or purchase any material assets or any similar
agreement that affects any material assets; |
| 7.11.9 | concerns
any derivatives or similar instruments, or |
| 7.11.10 | concerns
the provision of management or similar services to any Project Company. |
| 8.1 | Except
for SolarPark Samas which has two employees, no Project Company has ever employed any employee
on the basis of an employment contract (umowa o pracę) and consequently each
Project Company has no outstanding liabilities towards the Social Insurance Office (Zakład
Ubezpieczeń Społecznych) or to any third party in this respect. |
| 8.2 | There
were no inspections by the Polish Labour Inspector or other controlling authorities carried
out in any Project Company. |
| 8.3 | No
third parties have submitted any claims against any Project Company in the scope of labour
law that have not been satisfied in full. |
| 8.4 | No
labour law procedures are pending with participation of any Project Company |
| 9. | COMPLIANCE
AND LITIGATION |
| 9.1 | No
Project Company is engaged in any Litigation and there is no threat of such proceedings. |
| 9.2 | The
business activity of each Project Company has always been conducted in compliance with the
Applicable Law in all material respects. |
| 9.3 | Each
Project Company has no liability under, and is not engaged in, any agreement, arrangement,
concerted practice or conduct, which is prohibited by any Applicable Law of any jurisdiction
governing the conduct of businesses or individuals in relation to restrictive or other anticompetitive
agreements or practices, public procurement, dominant or monopoly market positions and the
control of mergers, acquisitions and joint ventures, including the Competition and Consumer
Protection Act, and the Treaty on the Function of the European Union. |
| 9.4 | The
signing and delivery of this Agreement and/or Transaction Documents and the performance of
any of the transactions contemplated by this Agreement and/or Transaction Documents will
not materially contravene or constitute a material default under any provision contained
in any Applicable Law, judgment, order, licence, permit or consent by which the Seller or
any of Seller’s Group Undertaking or their respective assets is bound or affected. |
| 10.1 | The
Project Companies have: |
| 10.1.1 | obtained
each Environmental Permit; |
| 10.1.2 | complied
in all material respects with the terms and conditions on which any Environmental Permit
has been given to them; and |
| 10.1.3 | complied
in all material respects with any notification or claim made within the three years ending
on the Completion Date by any relevant authority in respect of any breach of Environmental
Law. |
| 10.2 | No
Project Company is under investigation or enquiry by any relevant authority in relation to
any breach of Environmental Law or the failure to comply with the terms and conditions of
any Environmental Permit. |
| 10.3 | No
land or other asset owned, occupied, possessed or used by any Project Company on or at any
time before the Execution Date is referred to or listed in a register of polluted or contaminated
land. |
| 10.4 | Each
Project Company in all material respect, conducts its activities in compliance with the energy
Applicable Laws and the environmental protection Applicable Laws, including specifically
those concerning waste management, protection of the earth surface, water, air, protected
species and protected wildlife habitats, as well as protection against noise. |
| 11.1 | The
insurance policies taken out for the benefit of the Project Companies for the period up to
the Completion Date have been disclosed in the Data Room, remain in full effect and are valid. |
| 11.2 | All
premiums on the insurance policies taken out for the benefit of the Project Companies for
the period up to the Completion Date due and payable under these policies before the Completion
Date have been paid. |
SCHEDULE
8.3
LIMITATIONS ON THE SELLER’S LIABILITY
None
of these Clauses below on limitation of Seller’s liability shall be applicable to Seller’s obligation of the proper performance
of the Completion Actions on Completion. The liability of the Parties in respect of performance of the obligations in relation to the
Completion actions shall be based on the general rules of Polish law.
| 1. | LIABILITY
FOR BREACH OF WARRANTIES |
| 1.1 | If
any of the Sellers’ Warranties turns out to be untrue, inaccurate and/or misleading
(niezgodne ze stanem faktycznym lub prawnym, nierzetelne lub wprowadzające w błąd)
on the date of this Agreement and on the Completion Date (“Breach of Warranty”),
the Seller will pay, at the Buyer’s request, the amount of the Losses (“Warranty
Claim”) to the Buyer, or, upon the Buyer’s sole discretion and instruction,
to the Project Companies or reinstate the status which would have existed had the given Breach
of Warranty not occurred. |
| 1.2 | The
Seller’s liability for breach of any Seller’s Warranty is based on guarantee
principle (odpowiedzialność gwarancyjna) and shall mean that the Seller bears
liability for any Breach of Warranties, respectively: (a) irrespective of the Seller’s
fault and (b) irrespective of whether the Seller was or was not aware of a relevant Seller’s
Warranty being untrue, inaccurate and/or misleading unless the particular Warranty or part
of Warranty is given to the Seller’s Knowledge. |
| 1.3 | The
Buyer shall immediately without undue delay, but no later than thirty (30) days after the
Buyer has knowledge of the facts underlying the matter, give notice to the Seller of the
matter (such notice being a “Warranty Claim Notice”) describing reasonable
details of the relevant Warranty Claim resulting therefrom, to the extent feasible, set forth
the estimated amount of such Warranty Claim and shall consult with the Seller with respect
to the matter. |
| 2.1 | Save
for Clause 4 (Leakage) of this Agreement, and subject to the successful Completion, the Seller’s
total liability under this Agreement shall be limited to the Amount of the Retained Amount,
that shall cover only those Loses stipulated in Clause 3.8 of this Agreement. |
| 2.2 | The
Buyer shall not be entitled to claim for loss of profit (utracone korzyści),
but only for actual damage (szkoda rzeczywista) under or in connection with this Agreement
or the Transaction Documents and shall be computed without regard to any multiple, valuation
factor, price-earnings or equivalent ratio implicit in negotiating and/or settling the Total
Liability Amount. |
| 2.3 | The
Seller is not liable for, and the Buyer is not entitled to any Warranty Claims against the
Seller to the extent that the matter or circumstance giving rise to a Warranty Claim for
a Breach of Warranties has been Fairly Disclosed in the Data Room and/or in the Disclosure
Letter (in accordance with terms and conditions stipulated therein). |
| 3.1 | The
Seller shall not be liable for any Claim to the extent that the facts, matters, event or
circumstances giving rise to that Claim have been fully remedied by or at the expense of
the Seller within thirty (30) days of the date on which written notice of the Claim is given
to the Seller. |
| 4.1 | The
Seller is not liable in respect of a Claim: |
| 4.1.1 | to
the extent that the matter giving rise to the Claim would not have arisen but for: |
| (a) | an
Event after Completion in respect of the Project Companies by or involving a Buyer’s Group
Undertaking or a director, employee or agent of a Buyer’s Group Undertaking, otherwise than: |
| (i) | pursuant
to and in accordance with a legally binding obligation of any Project Company which was in
force on or before the Completion Date; or |
| (ii) | in
the Ordinary Course of Business; |
| (b) | the
passing of, or a change in, Applicable Law, rule, regulation, interpretation of Applicable
Law or administrative practice of a government, governmental department, agency or regulatory
body after the date of this Agreement or an increase in the Tax rates or an imposition of
Tax, in each case not actually in force at the Execution Date; |
| 4.1.2 | to
the extent that the matter giving rise to the Claim arises wholly or partially from an Event
before or after the date of this Agreement at the request or with the consent of the Buyer; |
| 4.1.3 | to
the extent that the matter giving rise to the Claim is an amount for which a Project Company
has a right of recovery against, or an indemnity from, a person other than a Seller’s Group
Undertaking, whether under a provision of the Applicable Law, insurance policy or otherwise
howsoever or would have had that right but for a change in law or the terms of its insurance
after Completion; |
| 4.1.4 | the
matter giving rise to and/or the amount of such Claim has already been taken into account
in any of the other provisions of or amounts payable under any of the Transaction Documents; |
| 4.1.5 | if
a Buyer’s Group Undertaking fails to act in accordance with paragraph 7 of this
Schedule 8.3 in connection with the matter giving rise to the Claim unless and to the
extent that in the absence of the failure the Buyer would still have had a Claim; |
| 4.1.6 | the
Claim is for Tax which arises in respect of the Ordinary Course of Business of any Project
Company after the Completion Date; |
| 4.1.7 | the
matter giving rise to the Claim would not have arisen but for a claim, election, surrender
or disclaimer made, or notice or consent given, or another thing done, after Completion (other
than one the making, giving or doing of which was taken into account in computing a provision
for Tax in the Accounts) under, or in connection with, a provision of an enactment or regulation
relating to Tax by a Buyer’s Group Undertaking; |
| 4.1.8 | the
Claim would not have arisen but for a change after Completion in the accounting bases, methods
or policies of a Project Company (including any change of the date to which a Project Company
makes up its accounts), a change in manner by which any Project Company values its assets,
unless such change will have been needed to comply with the provisions of Applicable Law; |
| 4.1.9 | the
Claim is for Tax which would not have arisen or would have been reduced or eliminated but
for a failure on the part of any Project Company to make any claim, election, surrender or
disclaimer or give any notice or consent or do anything after Completion the making, giving
or doing of which was taken into account or provided for in the Accounts; |
| 4.1.10 | the
matter giving rise to the Claim is for Tax against which a Relief arising on or before Completion
is available for set-off; and |
| 4.1.11 | to
the extent that the matter giving rise to the Claim was taken into account in computing the
amount of an allowance, provision or reserve in the Accounts (and only to the extent of such
allowance, provision or reserve). |
| 5.1 | The
Buyer is not entitled to recover more than once in respect of any one matter giving rise
to a Claim. |
| 6.1 | To
the extent that a Claim is based upon a liability, which is a contingent liability, the Seller
shall not be liable to make a payment to the Buyer in respect thereof unless and until such
time as the contingent liability becomes an actual liability to make a payment. This paragraph 6
is without prejudice to the obligation of the Buyer to notify the Seller of the Claim and
to issue and serve proceedings in respect thereof in accordance with paragraphs 2.2
and 7 of this Schedule 8.3. |
| 7. | CONDUCT
OF RELEVANT CLAIMS |
| 7.1 | If
the Buyer becomes aware of a matter which constitutes a Claim is brought against the Buyer
and/or any of the Project Companies (“Third Party Claim”), and subject to
the Seller and if necessary, its relevant advisors signs non-disclosure undertaking toward
the Buyer and the relevant Project Company: |
| 7.1.1 | the
Buyer shall, within fifteen (15) days after the date of receipt of the written notice relating
to the Third Party Claim by the Buyer and/or the respective Project Company inform the Seller
of the matter providing reasonable details of the Third Party Claim (“Claim Notice”); |
| 7.1.2 | if
necessary and justified, at the Seller’s expense, the Buyer will provide to the Seller
and its advisers with reasonable access to documents and records within the power or control
of the Buyer for the purposes of investigating the Third Party Claim and enabling the Seller
to take the action referred to in paragraph 7.1.4(a) of this Schedule 8.3
and keep the Seller informed in relation to the Third Party Claim, including its progress; |
| 7.1.3 | the
Seller (at its cost) may take copies of the documents or records, and photograph the premises
or assets, referred to in paragraph 7.1.2 of this 0; |
| 7.1.4 | the
Buyer shall, and shall ensure that each Project Company will: |
| (i) | avoid,
dispute, resist, appeal, compromise, defend, remedy or mitigate the Third Party Claim; or |
| (ii) | enforce
against a person the rights of a Buyer’s Group Undertaking in relation to the Third Party
Claim; |
| (A) | in
connection with proceedings related to the Third Party Claim, if the Seller requests, allow
the Seller, at the Seller’s own costs and expenses, to participate in or to lead the
proceedings, on the basis that the Seller indemnifies the Buyer on demand against any and
all costs which the Buyer may incur as a result of the Seller taking such conduct of the
proceedings and in the event the Buyer agreed that the Seller takes exclusive conduct of
the proceedings, the Seller shall bear all risk related to such Third Party Claim and shall
indemnify the Buyer in full in relation to such Third Party Claim; |
| 7.1.5 | the
Buyer shall not, and shall ensure that no Project Company will, admit liability in respect
of, or compromise or settle, the Third Party Claim without the prior written consent of the
Seller, such consent should not to be unreasonably withheld or delayed; |
| 7.1.6 | in
relation to the conduct of the Third Party Claim and its progress, the Buyer shall: |
| (a) | consult
with the Seller, in advance, in relation to any proposed course of conduct of the Third Party
Claim and any material changes proposed to such course of conduct and, in implementing and/or
deciding whether to implement such proposed course of conduct and/or such material changes,
take due and reasonable account of the views of the Seller prior to any such implementation; |
| (b) | consult
with the Seller, in advance, in relation to any proposed material actions (including the
proposed institution of proceedings and/or any proposed admission of liability, compromise
and/or settlement of the Third Party Claim) and, in implementing and/or deciding whether
to implement such proposed actions, take due and reasonable account of the views of the Seller
prior to any such implementation; and |
| (c) | keep
the Seller promptly informed of all material facts, matters and circumstances relevant to
the Third Party Claim, its conduct and its progress. |
| 7.2 | In
assessing any damages or other amounts recoverable for a Claim there shall be taken into
account any corresponding savings by, or net benefit to, a Buyer’s Group Undertaking (such
as a Tax deduction or insurance payment). |
| 7.3 | If,
in respect of any matter which constitutes or would or might give rise to a Claim, any Buyer’s
Group Undertaking has a right of action or other right of recovery against, or indemnification
from, a person under the Applicable Law, an insurance policy, contract or otherwise then
the Buyer should (prior to the making or bringing of such Claim) exercise and enforce such
rights of recovery and/or indemnification in full, and for this purpose, the time during
which such rights are being exercised and/or enforced by or on behalf of the Buyer shall
be disregarded for the purposes of calculating the period referred to in paragraph 2.2
of this Schedule 8.3 unless such recovery may bear a reputational and/or relational
risk for the Buyer. |
| 8. | RECOVERY
FROM ANOTHER PERSON |
| 8.1 | If
the Seller pays to a Buyer’s Group Undertaking an amount in respect of a Claim and a Buyer’s
Group Undertaking subsequently recovers from another person an amount which is referable
to the matter giving rise to the Claim: |
| 8.1.1 | if
the amount paid by the Seller in respect of the Claim is more than the Sum Recovered, the
Buyer shall immediately pay to the Seller the Sum Recovered; and |
| 8.1.2 | if
the amount paid by the Seller in respect of the Claim is less than or equal to the Sum Recovered,
the Buyer shall immediately pay to the Seller an amount equal to the amount paid by the Seller. |
| 8.2 | For
the purposes of paragraph 8.1 of this Schedule 8.3, “Sum Recovered”
means an amount equal to the total of the amount recovered from the other person plus
any interest in respect of the amount recovered from the person less any Tax computed by
reference to the amount recovered from the person payable by a Buyer’s Group Undertaking
and less all reasonable costs incurred by a Buyer’s Group Undertaking in recovering the amount
from the other person. |
| 9.1 | The
Buyer should take reasonable steps and reasonable endeavors but on Seller’s costs and
expenses to mitigate any loss or damage incurred by it in respect of which it may have a
Claim. |
| 10.1 | The
Warranties are qualified by: |
| 10.1.1 | the
events, facts and circumstances contained or referred to in: (i) this Agreement, (ii) the
Transaction Documents, (iii) the Data Room, provided that any such events, facts and circumstances
have been Fairly Disclosed; |
| 10.1.2 | information
disclosed in the following excerpts from the following public registers maintained for the
members of the Group obtained and/or available to the public as of the date falling 5 Business
Days before the Execution Date: (a) the register of entrepreneurs of National Court Register
(rejestr przedsiębiorców krajowego rejestru sądowego), (b) the
Register of Pledges (rejestr zastawów), (c) the Patent Office of the Republic
of Poland (Urząd Patentowy Rzeczpospolitej Polskiej), (d) the European Union
Intellectual Property Office and the World Intellectual Property Organization. |
| 11.1 | Nothing
in this Schedule 8.3 shall have the effect of limiting or restricting any liability
of the Seller in respect of a Claim arising as a result of any fraud. |
SCHEDULE
1.1(C)
FORM OF FINAL AGREEMENT
FINAL
SHARE TRANSFER AGREEMENT
THIS
TRANSFER AGREEMENT (“Agreement”) is concluded in Warsaw on [●] and made between:
THE
PARTIES:
| (1) | SOLIS
BOND COMPANY DESIGNATED ACTIVITY COMPANY, a private limited company incorporated in Ireland
on 16 March 2022 under registration number 679734 with its registered office at Suite 9/10,
212, Blanchardstown Corporate Park 2, Dublin 15, Ireland (“Seller”), |
and
| (2) | DONAU
INVESTMENT S.À R.L., with its registered office in Luxembourg, 80 Route d’Esch,
1470 Luxembourg, entered into the business register of the Luxembourg Business Registers
G.I.E under the number B233537 (“Buyer”). |
The
Seller and the Buyer are hereinafter referred to jointly as the “Parties”.
WHEREAS:
| (A) | The
Seller holds [●] shares, with a nominal value of PLN [●] each (jointly “Shares”),
in the share capital of the following companies: [●] [corporate data of the each Project
Company to be indicated] (jointly “Companies”). |
| (B) | On
[●] 2023, the Seller and the Buyer entered into a preliminary sale and purchase agreement
(“PSPA”) pursuant to which the Buyer and Seller each undertook to execute
this Agreement which shall provide for the sale of the Shares by the Seller to the Buyer
(umowa przyrzeczona), subject to the terms and conditions set forth in the SPA. |
| (C) | As
of the date hereof the Parties wish to complete the Transaction contemplated in the PSPA
by concluding this Agreement. |
NOW,
THEREFORE, the Parties hereby agree as follows:
| 1.1. | Capitalized
terms not otherwise defined in this Agreement shall have the meanings ascribed to them in the PSPA. |
| 2. | TRANSFER
OF THE SOLD SHARES |
| 2.1. | In
performance of the obligations of the Seller and the Buyer resulting from the PSPA and pursuant to the terms and conditions of the
PSPA, the Seller hereby sells and transfers the full legal title to the Shares together with all rights attached thereto to the
Buyer while the Buyer buys and accepts the transfer of the Shares together with all rights attached thereto, for the Purchase Price,
i.e. the amount of [●] which has been calculated in accordance with Clause 3.1 to PSPA and which shall be paid in accordance
with Clause 3.6 to SPA. The exact allocation of the Purchase Price between the respective Shares in the Project Companies is indicated
in Schedule 3.1 to the PSPA. |
| 2.2. | The
Parties agree that the transfer of the full legal title to the Shares will occur upon payment by the Buyer and crediting of the Purchase
Price Tranche 1 amounting to [●] and the Shareholder Loan Amounts amounting to [●] on the Solis Bond Restricted Bank Account. |
| 3.1. | The
Parties acknowledge and agree that this Agreement is entered into for the sole purpose of
transferring the legal title to the Shares. The terms and conditions of the PSPA continue
to fully apply to the sale and transfer of the Shares under this Agreement. Any liability
of the Seller and the Buyer shall arise solely under and be subject to the terms and conditions
of the PSPA, and the Buyer shall have no additional rights, and hereby waives any and all
additional claims, against the Seller in connection with the sale and transfer of the Shares
to the Buyer pursuant to this Agreement. |
| 4.1. | No
variation, supplement, modification to, deletion or waiver of this Agreement shall be binding
unless made in writing and signed by each of the Parties with notarized signatures. |
| 4.2. | If
any provision of this Agreement is held to be illegal, invalid or unenforceable, the validity
and enforceability of the remaining provisions shall not in any way be affected or impaired,
but any such provision shall be applied with such modifications as may be necessary to make
it valid, binding and enforceable, provided that the so modified provision is consistent
with the meaning and the purpose of this Agreement. |
| 4.3. | This
Agreement and all matters (including, without limitation, any contractual or non-contractual
obligation) arising from or connected with it are governed by, and will be construed in accordance
with, Polish law, exclusive of its conflict of law rules. |
| 4.4. | Clauses
11, 14, 15, 16, 17, 18 and 19 of the PSPA shall apply
mutatis mutandis to this Agreement. |
| 4.5. | All
disputes arising out of, or in connection with this Agreement, including a breach, termination
or invalidity thereof, shall be finally settled by the Court of Arbitration at the Polish
Chamber of Commerce (Krajowa Izba Gospodarcza) in Warsaw. The place of arbitration
shall be Warsaw (Poland). The language to be used in the arbitral proceedings shall be English. |
| 4.6. | This
Agreement has been made in the English language in two counterparts, each of which is an
original but all of which taken together shall constitute one and the same instrument. |
EXECUTED
by the Parties:
Signed for and on behalf of the
Seller: |
|
Signed for and on behalf of the
Buyer: |
|
|
|
|
|
|
signature / name / position |
|
signature / name / position |
|
|
|
|
|
|
signature
/ name / position |
|
signature / name / position |
SCHEDULE
1.1(I)
SUBROGATION AGREEMENT
THIS
AGREEMENT (“Agreement”) is concluded in Warsaw on [●] and made between:
PARTIES:
| (1) | SOLIS
BOND COMPANY DESIGNATED ACTIVITY COMPANY, a private limited company incorporated in Ireland
under registration number 679734 with its registered office at Suite 9/10, 212, Blanchardstown
Corporate Park 2, Dublin 15, Ireland (“Seller”), |
| (2) | [●],
with its registered office in [●], entered into the business register of the [●]
under the number [●] (“Company”), |
and
| (3) | DONAU
INVESTMENT S.À R.L., with its registered office in Luxembourg, 80 Route d’Esch,
1470 Luxembourg, entered into the business register of the Luxembourg Business Registers
G.I.E under the number B233537 (“Buyer”). |
The
Seller, the Company and the Buyer are hereinafter referred to jointly as the “Parties”.
WHEREAS:
| (A) | Seller
holds [●] shares, with a nominal value of PLN [●] each (“Shares”),
in the share capital of the Company incorporated under the laws of Poland, having its registered
office at [●], registered with the National Court Register under KRS number [●]. |
| (B) | On
[●] 2023, the Seller and the Buyer entered into a preliminary sale and purchase agreement
(“PSPA”) pursuant to which the Buyer is to acquire the Shares from the Seller
in accordance with the SPA. |
| (C) | The
Company is a party, as the borrower, to [certain Shareholder Loan Agreements] extended by
the Seller, as the lender. |
NOW,
THEREFORE, the Parties hereby agree as follows:
Capitalized
terms not otherwise defined in this Agreement shall have the meanings ascribed to them in the PSPA.
| 2.1. | The
Company hereby confirms to the Buyer and the Seller that the outstanding combined principal,
interest and all other amounts required to be repaid under the Shareholder Loans extended
by the Seller to the Company as at close of business on [Completion], is as set out in the
table below (“Total Repayment Amount”): |
Agreement |
Outstanding
amount as at the [Completion Date] |
Shareholder
Loan agreement of [●] between the Company (as borrower) and the Seller (as lender) |
PLN
[●] |
[●] |
PLN
[●] |
[●] |
PLN
[●] |
Bank
account no E94CHAS93090379609605 opened in J.P. Morgan SE, Dublin Branch |
PLN
[●] |
Total
Repayment Amount |
PLN
[●] |
| 2.2. | The
Company hereby requests the Buyer to repay, on behalf of the Company, the Total Repayment
Amount to the Seller. This is without prejudice to the terms and conditions of the sale of
the Shares as agreed in the PSPA. |
| 2.3. | The
Company hereby agrees and accepts that all the [Shareholder Loan(s)] may be settled by the
Buyer on the basis of Article 518 paragraph 1 point 3 of the Civil Code (wstąpienie
w prawa wierzyciela). |
| 2.4. | The
Seller hereby agrees and accepts that all or part of the Shareholder Loan(s) may be settled
at any time by the Buyer by reference to Article 518 paragraph 2 of the Civil Code (zgoda
wierzyciela na przyjęcie zapłaty od osoby trzeciej dla wierzytelności
niewymagalnych) |
| 2.5. | The
Buyer shall become the creditor of the Company under the Shareholder Loans upon signing of
this Agreement and payment of the Total Repayment Amount. |
| 2.6. | The
Shareholder Loan(s) shall be settled by the Buyer in PLN. |
| 3.1. | No
variation, supplement, modification to, deletion or waiver of this Agreement shall be binding
unless made in writing and signed by each of the Parties. |
| 3.2. | If
any provision of this Agreement is held to be illegal, invalid or unenforceable, the validity
and enforceability of the remaining provisions shall not in any way be affected or impaired,
but any such provision shall be applied with such modifications as may be necessary to make
it valid, binding and enforceable, provided that the so modified provision is consistent
with the meaning and the purpose of this Agreement. |
| 3.3. | This
Agreement and all matters (including, without limitation, any contractual or non-contractual
obligation) arising from or connected with it are governed by, and will be construed in accordance
with, Polish law, exclusive of its conflict of law rules. |
| 3.4. | Clauses
12, 13, 14, 15, 16, 17 and 18 of the PSPA shall apply mutatis mutandis to this Agreement. |
| 3.5. | All
disputes arising out of, or in connection with this Agreement, including a breach, termination
or invalidity thereof, shall be finally settled by the Court of Arbitration at the Polish
Chamber of Commerce (Krajowa Izba Gospodarcza) in Warsaw. The place of arbitration
shall be Warsaw (Poland). The language to be used in the arbitral proceedings shall be English. |
| 3.6. | This
Agreement has been made in the English language in three counterparts, each of which is an
original but all of which taken together shall constitute one and the same instrument. |
EXECUTED
by the Parties:
Signed
for and on behalf of the Seller: |
|
Signed
for and on behalf of the Company: |
|
|
|
|
|
|
signature
/ name / position |
|
signature
/ name / position |
|
|
|
|
|
|
signature
/ name / position |
|
signature
/ name / position |
Signed
for and on behalf of the Buyer: |
|
|
|
|
|
signature
/ name / position |
|
|
|
|
|
signature
/ name / position |
|
SCHEDULE
6.2.17
NOTICE OF DOMINANT POSITION
[Headed
paper of the Buyer]
| From: | SOLIS
BOND COMPANY DESIGNATED ACTIVITY COMPANY, a private limited company incorporated in Ireland on under registration number 679734 with
its registered office at Suite 9/10, 212, Blanchardstown Corporate Park 2, Dublin 15, Ireland (“Seller”), |
and
DONAU
INVESTMENT S.À R.L., with its registered office in Luxembourg, 80 Route d’Esch, 1470 Luxembourg, entered into the business
register of the Luxembourg Business Registers G.I.E under the number B233537 (the “Buyer”)
| To: | The
Management Board of [name of Company]
[address] |
[DATE]
Acquisition
of Shares in [the name of Company] (the “Company”)
Pursuant
to Article 187 of the Polish Commercial Companies Code (“CCC”), we notify you that we have acquired [●] [words]
shares in the Company constituting 100% (one hundred per cent) of the Company’s share capital and the same voting power at
the Company’s Shareholders’ Meeting. Furthermore, acting in accordance with Article 6 § 1 of the CCC, we inform you
that [details of the Buyer] is now the dominant shareholder of the Company.
We
enclose copies of the share transfer agreement.
Yours
faithfully,
[Authorised
signatories of the Buyer and the Seller]
Enclosures:
A copy of the share transfer agreement.
***
CONFIRMATION
OF RECEIPT OF THE NOTIFICATION
Acting
in the name and on behalf of the Company, I hereby confirm receipt of the Notification concerning the acquisition of shares in the Company’s
share capital and establishment of a dominant position towards the Company through acquisition of 100 % (one hundred per cent) of shares
in the Company’s share capital by [●].
[Authorised
signatories of the Company]
57
Exhibit 99.1
Affiliate Sells 88.5MW Polish Operating Assets
Reference is made to the press release issued
by Alternus Energy Group Plc (OSE: ALT) (“AEG” or the “Company”) on 27 November 2023 and the update issued on
22 December 2023, regarding the planned sale of its operating solar projects in Poland. AEG and its indirect wholly owned subsidiary,
Solis Bond Company DAC (“Solis”), an indirect, wholly owned subsidiary of Alternus Clean
Energy, Inc. (NASDAQ: ALCE) (“ALCE” or “Alternus”), a majority owned subsidiary of AEG, has completed the
sale of 100% of the share capital in six of its subsidiary project companies (“SPVs”) holding a portfolio of
88.5 MW solar farms projects in Poland.
The total remuneration consisted of the purchase
price and the repayment of shareholder’s loans granted to SPVs in line with what the Company previously announced on 27 November
2023 and was used to pay down the Solis Bond.
The
Company elected to sell the Polish assets at this time as part of its strategic review of options to optimize the balance sheet and
to reshape the business to best capture the opportunities in hand. Alternus expects to book a net gain on the sale to improve
balance sheet equity and to reduce existing high yield debt and ultimately deliver better debt/EBITDA ratios from the remaining
asset portfolio.
About Alternus Energy Group
(AEG):
AEG is a transatlantic clean
energy independent power producer (IPP). 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 3 GW of operating projects within 5 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.
AEG operates primarily through Alternus Clean Energy, Inc (Nasdaq: ALCE). AEG is listed on the Euronext Growth Oslo and headquartered
in Ireland while Alternus Clean Energy, Inc. is listed on Nasdaq and headquartered in the US. They remain as two separate legal entities.
Forward-Looking Statements
Certain
information contained in this notice, 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 notice The Company undertakes no obligation to update these statements for revisions or changes after the date of
this release, except as required by law.
For More Information:
Alternus Energy Group
ir@alternusenergy.com
+1 (913) 815-1557
or
The Blueshirt Group
alternus@blueshirtgroup.com
+1 (323) 240-5796
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