ACLEW 8-K
Alternus Clean Energy, Inc. (ACLEW)
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Title of each class
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The OTC Markets
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Exhibit No.
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Description
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4.1
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4.2
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10.1
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10.2
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104
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Cover Page Interactive Data File (embedded within the Inline XBRL document)
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ALTERNUS CLEAN ENERGY, INC.
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By:
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/s/ Vincent Browne
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Vincent Browne
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Chief Executive Officer, Interim Chief
Financial Officer and Chairman of the
Board of Directors
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Exhibit 4.1
CERTIFICATE OF DESIGNATION
OF
SERIES D CONVERTIBLE PREFERRED STOCK
OF
ALTERNUS CLEAN ENERGY, INC.
Alternus Clean Energy, Inc., a Delaware corporation (the "Company") certifies that pursuant to the authority contained in ARTICLE IV of its Certificate of Incorporation, as amended (the "Certificate of Incorporation"), the Board of Directors of the Company (the "Board of Directors"), by unanimous written consent in lieu of a meeting effective [*], duly approved and adopted the following resolution, which resolution shall be in full force and effect on [*] hereof:
RESOLVED, that pursuant to the authority vested in the Board of Directors by the Certificate of Incorporation, the Board of Directors does hereby authorize and provide for the issue of a series of preferred stock, having a par value of $0.0001 per share, which shall be designated as Series D Convertible Preferred Stock, and which shall have the voting powers, designations, preferences, limitations, restrictions, and relative rights as follows:
CERTIFICATE OF DESIGNATION OF
SERIES D CONVERTIBLE PREFERRED STOCK
OF ALTERNUS CLEAN ENERGY, INC.
1. Designation, Amount and Rank.
a. The Preferred Stock authorized under this Certificate of Designation shall be designated as the Series D Convertible Preferred Stock (the “Series D Convertible Preferred”), and the number of shares so designated shall be 20,000 having a value of One Thousand Dollars ($1,000.00) per share and $0.0001 par value per share and, subject to adjustment for any stock splits, stock dividends or similar transactions affecting the Series D Convertible Preferred or the underlying Common Stock, and which number shall not be subject to increase without the consent of each holder of the Series D Convertible Preferred (each, a “Holder”, and collectively, the “Holders”).
b. The Series D Convertible Preferred shall, with respect to dividends and distributions upon liquidation, dissolution or winding up of the Company, rank senior to the Series A Super Voting Preferred Stock, pari passu with the Series B and Series C Convertible Preferred Stock and all classes of Common Stock (the “Parity Securities”) and junior to any other series of Preferred Stock that is not, expressly by its terms, made junior to the Series D Convertible Preferred.
2. Dividends. The Holders of the Series D Convertible Preferred shall not be entitled to receive any dividend payment.
3. Voting Rights. On any matter presented to the stockholders of the Corporation for their action or consideration at any meeting of stockholders of the Corporation (or by written consent of stockholders in lieu of meeting), each holder of outstanding shares of Series D Preferred Stock shall be entitled to cast the number of votes equal to the number of whole shares of Common Stock into which the shares of Series D Preferred Stock held by such holder are convertible as of the record date for determining stockholders entitled to vote on such matter. (For avoidance of doubt, voting rights are on an ‘as-converted’ basis.) Except as provided by law or by the other provisions of the Certificate of Incorporation, holders of Series D Preferred Stock shall vote together with the holders of Common Stock as a single class.
4. Liquidation.
a. Upon any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary (“Liquidation”), the holders of record of the shares of the Series D Preferred Stock shall be entitled to receive assets and funds on parity with the Parity Securities. If, upon such Liquidation, the assets of the Corporation available for distribution to the holders of Series D Preferred Stock and any Parity Securities shall be insufficient to permit payment in full to the holders of the Series D Preferred Stock and Parity Securities, then the entire assets and funds of the Corporation legally available for distribution to such holders and the holders of the Parity Securities then outstanding shall be distributed ratably among the holders of the Series D Preferred Stock and Parity Securities based upon the proportion the total amount distributable on each share upon Liquidation bears to the aggregate amount required to be distributed, but for the provisions of this sentence, on all shares of the Series D Preferred Stock, on an as converted basis, and of such Parity Securities.
b. The Company shall mail written notice of any such Liquidation, not less than 45 days prior to the payment date stated therein, to each Holder.
5. Mechanics of Conversion.
a. Holder’s Conversion Rights. Each single one (1) share of Series D Preferred shall convert into a number of fully paid and non-assessable shares of Common Stock equal to the value of each share (provided in Section 1a) divided by the Conversion Price in effect at the time of conversion as defined below, at the option of the Holder thereof at or after one (1) year from the Original Issue Date. The Conversion Price shall be $0.10 per share, subject to adjustment in accordance with this Certificate of Designation (the “Conversion Price”).
b. A Holder shall effect conversions by surrendering to the Company the certificate or certificates representing the shares of Series D Preferred to be converted, together with a copy of the form of conversion notice attached hereto as Exhibit A (the “Conversion Notice”). Each Conversion Notice shall specify the Holder, the number of shares of Series D Preferred to be converted and the date on which such conversion is to be effected, which date may not be prior to the date the Holder delivers such Conversion Notice by electronic mail (the “Conversion Date”). If no Conversion Date is specified in a Conversion Notice the Conversion Date shall be the date that the Conversion Notice is deemed delivered pursuant to Section 11. Subject to Section 5(b) hereof, each Conversion Notice, once given, shall be irrevocable.
c. Restriction on Conversion by Either the Holder(s) or the Company. Notwithstanding anything herein to the contrary, in no event shall the Holder(s) have the right or the Company be required to convert, as applicable, shares of Series D Preferred if as a result of such conversion the aggregate number of shares of Common Stock beneficially owned by such Holder(s) and its Affiliates and any other persons whose beneficial ownership of Common Stock would be aggregated with the shareholder(s) for purposes of Section 13(d) of the 1934 Act, would exceed 9.99% of the outstanding shares of the Common Stock following such conversion (including for such purpose the shares of Common Stock issuable upon such conversion). For purposes of this Section, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. The limitations contained in this paragraph shall apply to a successor Holder of Preferred Stock. If the Company is restricted pursuant to this paragraph, the Company shall convert shares of Series D Convertible Preferred on the next available trading day after such beneficial ownership has fallen below 9.99%.
6. Restriction on Sales by the Holders. Beginning on the month after the Holder is able to convert the Series D Convertible Preferred Stock and utilize an exemption under SEC Rule 144, the Holder(s) may sell a maximum amount of Common Shares per month not to exceed the average daily volume of the Company’s common stock in the prior month.
The Holder(s) shall deliver third party brokerage reports providing all the Holder(s) sales information on the Company’s Common Stock (“Sales Reports”) and the Holder(s) beneficial ownership reports to the Company prior to or concurrent with each Conversion Notice and on a monthly basis as soon as such reports are available. If the Sales Reports are not received by the Company in accordance with the above schedule, the Company has the right to disregard any subsequent Conversion Notice(s) until such Sales Reports are properly provided to the Company.
7. Reservation of Shares. The Company covenants that it will at all times reserve and keep available out of its authorized and unissued Common Stock, solely for the purpose of issuance upon conversion of the Series D Convertible Preferred and free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holders of Series D Convertible Preferred , not less than 100% of such number of shares of Common Stock as shall be issuable (taking into account the adjustments of Section 8) upon the conversion of all outstanding shares of Series D Convertible Preferred (without regard to any limitations on conversion). The Company shall, from time to time in accordance with Delaware law, take all steps necessary to increase the authorized amount of its Common Stock if at any time the authorized number of shares of Common Stock remaining unissued shall not be sufficient to permit the conversion of all of the shares of the Series D Convertible Preferred. The Company covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and non-assessable.
8. Adjustment of Conversion Price.
a. Down Round Anti-Dilution Protection. If, from the Original Issue Date to twelve (12) months after the Original Issue Date, the Company has issued any shares of Common Stock or convertible preferred stock (or any securities convertible into or exercisable for Common Stock) at a price per share less than the then-effective Conversion Price (the "Original Conversion Price") of the Series D Preferred Stock (a "Dilutive Issuance"), then the Original Conversion Price shall be reduced to the lowest price per share of Common Stock or convertible preferred stock issued during this period.
b. Common Stock Dividends; Common Stock Splits; Reclassification. If the Company, at any time after the Original Issue Date shall (a) subdivide outstanding shares of Common Stock into a larger or smaller number of shares or (b) issue by reclassification of shares of Common Stock any shares of capital stock of the Company, then the Conversion Price shall be multiplied by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding before such event and the denominator of which shall be the number of shares of Common Stock outstanding after such event. Any adjustment made pursuant to this Section 8(b) shall become effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or re-classification.
Simultaneously with any adjustment to the Conversion Price, the number of shares of Common Stock that may be purchased upon conversion of the Series D Convertible Preferred Stock shall be increased or decreased proportionately, so that after such adjustment the aggregate Conversion Price payable hereunder for the adjusted number of Common Shares shall be the same as the aggregate Conversion Price in effect immediately prior to such adjustment (without regard to any limitations on conversion contained herein).
c. Rounding. All calculations under this Section 8 shall be made to the nearest cent or the nearest l/l00th of a share, as the case may be.
d. Notice of Adjustment. Whenever the Conversion Price is adjusted pursuant to this Section 7 the Company shall promptly mail to the Holders a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Such notice shall be signed by the chairman, president or chief financial officer of the Company.
e. Notice of Certain Events. If:
(i) the Company shall declare a dividend (or any other distribution) on its Common Stock;
(ii) the Company shall declare a special nonrecurring cash dividend on or a redemption of its Common Stock;
(iii) the Company shall authorize the granting to the holders of its Common Stock rights, options or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights;
(iv) the approval of any shareholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property; or
(v) the Company shall authorize the Liquidation of the affairs of the Company;
then the Company shall cause to be filed at each office or agency maintained for the purpose of the conversion of the Series D Convertible Preferred , and shall cause to be delivered to the Holders at the address specified herein, at least 30 (thirty) calendar days prior to the applicable record or effective date hereinafter specified, a notice (provided such notice shall not include any material non-public information) stating (a) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, or granting of options, rights or warrants, or if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distributions, redemption, rights, options or warrants are to be determined or (b) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of record of Common Stock shall be entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided, however, that the failure to mail such notice or any defect therein or in the mailing thereof shall not affect the validity of the corporate action required to be specified in such notice. Nothing herein shall prohibit the Holders from converting shares of Series D Convertible Preferred held by such Holder during the 30-day period commencing on the date of such notice to the effective date of the event triggering such notice.
9. Transferability. The holders of the Series D Convertible Preferred shall be entitled, at their option and at any time, to transfer the Series D Convertible Preferred to a third party, provided that such third party is an accredited investor and shall accept all terms and conditions set forth in this Designation of Series D Convertible Preferred Stock.
10. Redemption. Neither the Corporation nor the holders of the Series D Preferred Stock shall have any right at any time to require the redemption of any of the shares of Series D Preferred Stock, except upon and by reason of any liquidation, dissolution or winding-up of the Corporation, as and to the extent herein provided.
11. Definitions. For the purposes hereof, the following terms shall have the following meanings:
“Affiliate” of any Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person. For the purposes of this definition, “control” when used with respect to any Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the foregoing.
“Common Stock” means the Company’s common stock, $.0001 par value per share, and stock of any other class into which such shares may hereafter have been reclassified or changed.
“Original Issue Date” shall mean the date of the actual issuance of shares of the Series D Convertible Preferred to a particular Person, regardless of the number of transfers of any particular shares of Series D Convertible Preferred and regardless of the number of certificates which may be issued to evidence such Series D Convertible Preferred.
“Person” means a corporation, an association, a partnership, organization, a business, an individual, a government or political subdivision thereof or a governmental agency.
“Underlying Shares” means the number of shares of Common Stock into which the Series D Convertible Preferred are convertible in accordance with the terms hereof.
“Per Share Market Price” means on the date the Conversion Notice is received by the Company (the “Date”), the closing price of the Common Stock on such exchange, quotation system or over-the-counter market, and provided that all determinations of the Per Share Market Price shall be appropriately adjusted for any stock dividends, stock splits or other similar transactions during such period.
12. Notices. Except as otherwise provided in the event of conversion of shares of Series D Convertible Preferred, all notices or other communications required hereunder shall be in writing and shall be deemed to have been received (a) upon hand delivery (receipt acknowledged) or delivery by electronic mail (with confirmation) at the email address designated below (if received by 6:00 p.m. EST where such notice is to be received), or the first business day following such delivery (if received after 6:00 p.m. EST where such notice is to be received) or (b) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur; and shall be regarded as properly addressed if sent to (i) the Company, to Alternus Clean Energy, Inc., 17 State Street, Suite 4000, New York, NY 10004, email: [email protected] and (ii) if the Holder, at its respective addresses set forth in the books and records of the Company, or such other address as any of the above may have furnished to the other parties in writing by registered mail, return receipt requested.
13. Lost or Stolen Certificates. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of any stock certificates representing the shares of Series D Convertible Preferred, and, in the case of loss, theft or destruction, of any indemnification undertaken by the Holder to the Company in customary form and, in the case of mutilation, upon surrender and cancellation of such Series D Convertible Preferred stock certificate(s), the Company shall execute and deliver new preferred stock certificate(s) of like tenor and date; provided, however, the Company shall not be obligated to re-issue preferred stock certificates if the Holder contemporaneously requests the Company to convert such Series D Convertible Preferred into Common Stock.
14. Remedies Characterized; Other Obligations, Breaches and Injunctive Relief. The remedies provided in this Certificate of Designation shall be cumulative and in addition to all other remedies available under this Certificate of Designation, at law or in equity (including a decree of specific performance and/or other injunctive relief), but not including the Subscription Agreement, whose terms, conditions and remedies shall not be a part of the rights of the Holders as holders of Series D Convertible Preferred . No remedy contained herein shall be deemed a waiver of compliance with the provisions giving rise to such remedy and nothing herein shall limit a Holder’s right to pursue actual damages for any failure by the Company to comply with the terms of this Certificate of Designation. The Company covenants to each Holder of Series D Convertible Preferred that there shall be no characterization concerning this instrument other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments, conversion and the like (and the computation thereof) shall be the amounts to be received by the Holder thereof and shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof). The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holders of the Series D Convertible Preferred and that the remedy at law in the event of any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the Holders of the Series D Convertible Preferred shall be entitled, in addition to all other available remedies, to an injunction restraining any breach, without the necessity of showing economic loss and without any bond or other security being required.
15. Specific Shall Not Limit General; Construction. No specific provision contained in this Certificate of Designation shall limit or modify any more general provision contained herein. This Certificate of Designation shall be deemed to be jointly drafted by the Company and all Holders and shall not be construed against any Person as the drafter hereof.
16. Failure or Indulgence Not Waiver. No failure or delay on the part of a Holder of Series D Convertible Preferred in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege.
17. Fractional Shares. Upon a conversion hereunder, the Company shall not be required to issue stock certificates representing fractions of shares of Common Stock, but may if otherwise permitted, make a cash payment in respect of any final fraction of a share based on the Per Share Market Value at such time. If the Company elects not, or is unable, to make such a cash payment, the Holder of a share of Series D Convertible Preferred shall be entitled to receive, in lieu of the final fraction of a share, one whole share of Common Stock.
18. Payment of Tax Upon Issue of Transfer. The issuance of certificates for shares of the Common Stock upon conversion of the Series D Convertible Preferred Shares shall be made without charge to the Holders thereof for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such certificate, provided that the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such certificate upon conversion in a name other than that of the Holders so converted, and the Company shall not be required to issue or deliver such certificates unless or until the Person or Persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid.
19. Shares Owned by Company Deemed Not Outstanding. In determining whether the Holders of the outstanding shares of Series D Convertible Preferred have concurred in any direction, consent or waiver under this Certificate of Designation, shares of Series D Convertible Preferred which are owned by the Company or any other obligor thereof shall be disregarded and deemed not to be outstanding for the purpose of any such determination; provided, that any Series D Convertible Preferred owned by the Holders shall be deemed outstanding for purposes of making such a determination. Shares of the Series D Convertible Preferred so owned which have been pledged in good faith may be regarded as outstanding if (i) the pledgee establishes to the satisfaction of the Holders and the Company the pledgee’s right so to act with respect to such shares and (ii) the pledgee is not the Company or any other obligor of the Company.
20. Communications. The holders of the Series D Convertible Preferred shall be entitled to receive, and the Company shall deliver pursuant to Section 11 hereof, all communications sent by the Company to the holders of the Common Stock.
21. Reacquired Shares. Any shares of Series D Convertible Preferred purchased, converted or otherwise acquired by the Company in any manner whatsoever shall not be reissued as part of the Company’s Series D Convertible Preferred and shall be retired promptly after the acquisition thereof. All such shares shall become, upon their retirement (and the filing of any certificate required in connection therewith pursuant to the General Corporation Law of the state of Delaware), authorized but unissued shares of Preferred Stock.
22. Effect of Headings. The section headings herein are for convenience only and shall not affect the construction hereof.
IN WITNESS WHEREOF, Alternus Clean Energy, Inc. has caused this Certificate of Designation to be signed by its Chief Executive Officer on this __ day of March, 2026.
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By: _______________________ Name: Vincent Browne Title: Chief Executive Officer |
EXHIBIT A
NOTICE OF CONVERSION
AT THE ELECTION OF HOLDER
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(To be Executed by the Registered Holder in order to Convert shares of Series D Convertible Preferred Stock) |
The undersigned hereby elects to convert the number of shares of Series D Convertible Preferred Stock indicated below, into shares of common stock, par value $0.0001 per share (the “Common Stock”), of Alternus Clean Energy, Inc. (the “Company”) according to the conditions hereof, as of the date written below. If shares are to be issued in the name of a person other than undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as reasonably requested by the Company in accordance therewith. No fee will be charged to the Holder for any conversion, except for such transfer taxes, if any.
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Exhibit 4.2
CERTIFICATE OF DESIGNATION
OF
SERIES E CONVERTIBLE PREFERRED STOCK
OF
ALTERNUS CLEAN ENERGY, INC.
Alternus Clean Energy, Inc., a Delaware corporation (the "Company") certifies that pursuant to the authority contained in ARTICLE IV of its Certificate of Incorporation, as amended (the "Certificate of Incorporation"), the Board of Directors of the Company (the "Board of Directors"), by unanimous written consent in lieu of a meeting effective March 31, 2026, duly approved and adopted the following resolution, which resolution shall be in full force and effect on [*]:
RESOLVED, that pursuant to the authority vested in the Board of Directors by the Certificate of Incorporation, the Board of Directors does hereby authorize and provide for the issue of a series of preferred stock, having a par value of $0.0001 per share, which shall be designated as Series E Convertible Preferred Stock, and which shall have the voting powers, designations, preferences, limitations, restrictions, and relative rights as follows:
CERTIFICATE OF DESIGNATION OF
SERIES E CONVERTIBLE PREFERRED STOCK
OF ALTERNUS CLEAN ENERGY, INC.
1. Designation, Amount and Rank.
a. The Preferred Stock authorized under this Certificate of Designation shall be designated as the Series E Convertible Preferred Stock (the “Series E Convertible Preferred”), and the number of shares so designated shall be 20,000 having a value of One Thousand Dollars ($1,000.00) per share and $0.0001 par value per share and, subject to adjustment for any stock splits, stock dividends or similar transactions affecting the Series E Convertible Preferred or the underlying Common Stock, and which number shall not be subject to increase without the consent of each holder of the Series E Convertible Preferred (each, a “Holder”, and collectively, the “Holders”).
b. The Series E Convertible Preferred shall, with respect to dividends and distributions upon liquidation, dissolution or winding up of the Company, rank senior to the Series A Super Voting Preferred Stock, junior to any series of Preferred Stock that is made, expressly by its terms, junior to the Series E Convertible Preferred, and pari passu with all classes of Common Stock and all other series of Preferred Stock (the “Parity Securities”).
2. Dividends. The Holders of the Series E Convertible Preferred shall not be entitled to receive any dividend payment.
3. Voting Rights. On any matter presented to the stockholders of the Corporation for their action or consideration at any meeting of stockholders of the Corporation (or by written consent of stockholders in lieu of meeting), each holder of outstanding shares of Series E Preferred Stock shall be entitled to cast the number of votes equal to the number of whole shares of Common Stock into which the shares of Series E Preferred Stock held by such holder are convertible as of the record date for determining stockholders entitled to vote on such matter. (For avoidance of doubt, voting rights are on an ‘as-converted’ basis.) Except as provided by law or by the other provisions of the Certificate of Incorporation, holders of Series E Preferred Stock shall vote together with the holders of Common Stock as a single class.
4. Liquidation.
a. Upon any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary (“Liquidation”), the holders of record of the shares of the Series E Preferred Stock shall be entitled to receive assets and funds on parity with the Parity Securities. If, upon such Liquidation, the assets of the Corporation available for distribution to the holders of Series E Preferred Stock and any Parity Securities shall be insufficient to permit payment in full to the holders of the Series E Preferred Stock and Parity Securities, then the entire assets and funds of the Corporation legally available for distribution to such holders and the holders of the Parity Securities then outstanding shall be distributed ratably among the holders of the Series E Preferred Stock and Parity Securities based upon the proportion the total amount distributable on each share upon Liquidation bears to the aggregate amount required to be distributed, but for the provisions of this sentence, on all shares of the Series E Preferred Stock, on an as converted basis, and of such Parity Securities.
b. The Company shall mail written notice of any such Liquidation, not less than 45 days prior to the payment date stated therein, to each Holder.
5. Mechanics of Conversion.
a. Holder’s Conversion Rights. Each single one (1) share of Series E Preferred shall automatically convert into a number of fully paid and non-assessable shares of Common Stock equal to the value of each share (provided in Section 1a) divided by the Conversion Price in effect at the time of conversion as defined below, at at the option of the Holder thereof at or after the Original Issue Date. The Conversion Price shall be $0.10 per share, subject to adjustment in accordance with this Certificate of Designation (the “Conversion Price”).
b. A Holder shall effect conversions by surrendering to the Company the certificate or certificates representing the shares of Series E Preferred to be converted, together with a copy of the form of conversion notice attached hereto as Exhibit A (the “Conversion Notice”). Each Conversion Notice shall specify the Holder, the number of shares of Series E Preferred to be converted and the date on which such conversion is to be effected, which date may not be prior to the date the Holder delivers such Conversion Notice by electronic mail (the “Conversion Date”). If no Conversion Date is specified in a Conversion Notice the Conversion Date shall be the date that the Conversion Notice is deemed delivered pursuant to Section 11. Subject to Section 5(b) hereof, each Conversion Notice, once given, shall be irrevocable.
c. Restriction on Conversion by Either the Holder(s) or the Company. Notwithstanding anything herein to the contrary, in no event shall the Holder(s) have the right or the Company be required to convert, as applicable, shares of Series E Preferred if as a result of such conversion the aggregate number of shares of Common Stock beneficially owned by such Holder(s) and its Affiliates and any other persons whose beneficial ownership of Common Stock would be aggregated with the shareholder(s) for purposes of Section 13(d) of the 1934 Act, would exceed 4.99% of the outstanding shares of the Common Stock following such conversion (including for such purpose the shares of Common Stock issuable upon such conversion). For purposes of this Section, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. The limitations contained in this paragraph shall apply to a successor Holder of Preferred Stock. If the Company is restricted pursuant to this paragraph, the Company shall convert shares of Series E Convertible Preferred on the next available trading day after such beneficial ownership has fallen below 4.99%.
6. Piggyback Registration Rights
The Company shall (i) promptly (but in no event less than ten (10) Business Days before the anticipated filing date of a registration statement with the Securities and Exchange Commission on Form S-1 (the “Registration Statement”) give to each Holder confidential written notice of such proposed filing (the “Piggyback Registration Notice”), such Piggyback Registration Notice shall (A) describe the amount and type of securities to be included in such offering, the intended method(s) of distribution and the name of the proposed Underwriter(s), if any, in such offering and (B) offer to the Holder of the Series E the opportunity to register the sale of such number of Common Stock as would be converted hereunder as of the date of the Piggyback Registration Notice within five (5) days after receipt of the Piggyback Registration Notice; and (ii) include in such Registration (and any related qualification under state securities laws or other similar compliance), and in any Underwritten Offering involved therein, all the Common Stock specified in a written request or requests made within five (5) days after receipt of a Piggyback Registration Notice by the Holder.
7. Reservation of Shares. The Company covenants that it will at all times reserve and keep available out of its authorized and unissued Common Stock, solely for the purpose of issuance upon conversion of the Series E Convertible Preferred and free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holders of Series E Convertible Preferred , not less than 100% of such number of shares of Common Stock as shall be issuable (taking into account the adjustments of Section 8) upon the conversion of all outstanding shares of Series E Convertible Preferred (without regard to any limitations on conversion). The Company shall, from time to time in accordance with Delaware law, take all steps necessary to increase the authorized amount of its Common Stock if at any time the authorized number of shares of Common Stock remaining unissued shall not be sufficient to permit the conversion of all of the shares of the Series E Convertible Preferred. The Company covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and non-assessable.
8. Adjustment of Conversion Price.
a. Down Round Anti-Dilution Protection. If, from the Original Issue Date to twelve months thereafter, the Company has issued any shares of Common Stock or convertible preferred stock (or any securities convertible into or exercisable for Common Stock) at a price per share less than the then-effective Conversion Price (the "Original Conversion Price") of the Series E Preferred Stock (a "Dilutive Issuance"), then the Original Conversion Price shall be reduced to the lowest price per share of Common Stock or convertible preferred stock issued during this period.
b. Common Stock Dividends; Common Stock Splits; Reclassification. If the Company, at any time after the Original Issue Date shall (a) subdivide outstanding shares of Common Stock into a larger or smaller number of shares or (b) issue by reclassification of shares of Common Stock any shares of capital stock of the Company, then the Conversion Price shall be multiplied by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding before such event and the denominator of which shall be the number of shares of Common Stock outstanding after such event. Any adjustment made pursuant to this Section 8(b) shall become effective immediately after the record date for the determination of shareholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision or re-classification.
Simultaneously with any adjustment to the Conversion Price, the number of shares of Common Stock that may be purchased upon conversion of the Series E Convertible Preferred Stock shall be increased or decreased proportionately, so that after such adjustment the aggregate Conversion Price payable hereunder for the adjusted number of Common Shares shall be the same as the aggregate Conversion Price in effect immediately prior to such adjustment (without regard to any limitations on conversion contained herein).
c. Rounding. All calculations under this Section 8 shall be made to the nearest cent or the nearest l/l00th of a share, as the case may be.
d. Notice of Adjustment. Whenever the Conversion Price is adjusted pursuant to this Section 7 the Company shall promptly mail to the Holders a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Such notice shall be signed by the chairman, president or chief financial officer of the Company.
e. Notice of Certain Events. If:
(i) the Company shall declare a dividend (or any other distribution) on its Common Stock;
(ii) the Company shall declare a special nonrecurring cash dividend on or a redemption of its Common Stock;
(iii) the Company shall authorize the granting to the holders of its Common Stock rights, options or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights;
(iv) the approval of any shareholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property; or
(v) the Company shall authorize the Liquidation of the affairs of the Company;
then the Company shall cause to be filed at each office or agency maintained for the purpose of the conversion of the Series E Convertible Preferred , and shall cause to be delivered to the Holders at the address specified herein, at least 30 (thirty) calendar days prior to the applicable record or effective date hereinafter specified, a notice (provided such notice shall not include any material non-public information) stating (a) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, or granting of options, rights or warrants, or if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distributions, redemption, rights, options or warrants are to be determined or (b) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of record of Common Stock shall be entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided, however, that the failure to mail such notice or any defect therein or in the mailing thereof shall not affect the validity of the corporate action required to be specified in such notice. Nothing herein shall prohibit the Holders from converting shares of Series E Convertible Preferred held by such Holder during the 30-day period commencing on the date of such notice to the effective date of the event triggering such notice.
9. Transferability. The holders of the Series E Convertible Preferred shall be entitled, at their option and at any time, to transfer the Series E Convertible Preferred to a third party, provided that such third party is an accredited investor and shall accept all terms and conditions set forth in this Designation of Series E Convertible Preferred Stock.
10. Redemption. Neither the Corporation nor the holders of the Series E Preferred Stock shall have any right at any time to require the redemption of any of the shares of Series E Preferred Stock, except upon and by reason of any liquidation, dissolution or winding-up of the Corporation, as and to the extent herein provided.
11. Definitions. For the purposes hereof, the following terms shall have the following meanings:
“Affiliate” of any Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person. For the purposes of this definition, “control” when used with respect to any Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the foregoing.
“Common Stock” means the Company’s common stock, $.0001 par value per share, and stock of any other class into which such shares may hereafter have been reclassified or changed.
“Original Issue Date” shall mean the date of the original issuance of shares of the Series E Convertible Preferred to a holder, regardless of the number of transfers of any particular shares of Series E Convertible Preferred and regardless of the number of certificates which may be issued to evidence such Series E Convertible Preferred.
“Person” means a corporation, an association, a partnership, organization, a business, an individual, a government or political subdivision thereof or a governmental agency.
“Underlying Shares” means the number of shares of Common Stock into which the Series E Convertible Preferred are convertible in accordance with the terms hereof.
12. Notices. Except as otherwise provided in the event of conversion of shares of Series E Convertible Preferred, all notices or other communications required hereunder shall be in writing and shall be deemed to have been received (a) upon hand delivery (receipt acknowledged) or delivery by electronic mail (with confirmation) at the email address designated below (if received by 6:00 p.m. EST where such notice is to be received), or the first business day following such delivery (if received after 6:00 p.m. EST where such notice is to be received) or (b) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur; and shall be regarded as properly addressed if sent to (i) the Company, to Alternus Clean Energy, Inc., 17 State Street, Suite 4000, New York, NY 10004, email: [email protected] and (ii) if the Holder, at its respective addresses set forth in the books and records of the Company, or such other address as any of the above may have furnished to the other parties in writing by registered mail, return receipt requested.
13. Lost or Stolen Certificates. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of any stock certificates representing the shares of Series E Convertible Preferred, and, in the case of loss, theft or destruction, of any indemnification undertaken by the Holder to the Company in customary form and, in the case of mutilation, upon surrender and cancellation of such Series E Convertible Preferred stock certificate(s), the Company shall execute and deliver new preferred stock certificate(s) of like tenor and date; provided, however, the Company shall not be obligated to re-issue preferred stock certificates if the Holder contemporaneously requests the Company to convert such Series E Convertible Preferred into Common Stock.
14. Remedies Characterized; Other Obligations, Breaches and Injunctive Relief. The remedies provided in this Certificate of Designation shall be cumulative and in addition to all other remedies available under this Certificate of Designation, at law or in equity (including a decree of specific performance and/or other injunctive relief), but not including the Subscription Agreement, whose terms, conditions and remedies shall not be a part of the rights of the Holders as holders of Series E Convertible Preferred . No remedy contained herein shall be deemed a waiver of compliance with the provisions giving rise to such remedy and nothing herein shall limit a Holder’s right to pursue actual damages for any failure by the Company to comply with the terms of this Certificate of Designation. The Company covenants to each Holder of Series E Convertible Preferred that there shall be no characterization concerning this instrument other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments, conversion and the like (and the computation thereof) shall be the amounts to be received by the Holder thereof and shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof). The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holders of the Series E Convertible Preferred and that the remedy at law in the event of any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the Holders of the Series E Convertible Preferred shall be entitled, in addition to all other available remedies, to an injunction restraining any breach, without the necessity of showing economic loss and without any bond or other security being required.
15. Specific Shall Not Limit General; Construction. No specific provision contained in this Certificate of Designation shall limit or modify any more general provision contained herein. This Certificate of Designation shall be deemed to be jointly drafted by the Company and all Holders and shall not be construed against any Person as the drafter hereof.
16. Failure or Indulgence Not Waiver. No failure or delay on the part of a Holder of Series E Convertible Preferred in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege.
17. Fractional Shares. Upon a conversion hereunder, the Company shall not be required to issue stock certificates representing fractions of shares of Common Stock, but may if otherwise permitted, make a cash payment in respect of any final fraction of a share based on the Per Share market closing price at such time. If the Company elects not, or is unable, to make such a cash payment, the Holder of a share of Series E Convertible Preferred shall be entitled to receive, in lieu of the final fraction of a share, one whole share of Common Stock.
18. Payment of Tax Upon Issue of Transfer. The issuance of certificates for shares of the Common Stock upon conversion of the Series E Convertible Preferred Shares shall be made without charge to the Holders thereof for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such certificate, provided that the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such certificate upon conversion in a name other than that of the Holders so converted, and the Company shall not be required to issue or deliver such certificates unless or until the Person or Persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid.
19. Shares Owned by Company Deemed Not Outstanding. In determining whether the Holders of the outstanding shares of Series E Convertible Preferred have concurred in any direction, consent or waiver under this Certificate of Designation, shares of Series E Convertible Preferred which are owned by the Company or any other obligor thereof shall be disregarded and deemed not to be outstanding for the purpose of any such determination; provided, that any Series E Convertible Preferred owned by the Holders shall be deemed outstanding for purposes of making such a determination. Shares of the Series E Convertible Preferred so owned which have been pledged in good faith may be regarded as outstanding if (i) the pledgee establishes to the satisfaction of the Holders and the Company the pledgee’s right so to act with respect to such shares and (ii) the pledgee is not the Company or any other obligor of the Company.
20. Communications. The holders of the Series E Convertible Preferred shall be entitled to receive, and the Company shall deliver pursuant to Section 11 hereof, all communications sent by the Company to the holders of the Common Stock.
21. Reacquired Shares. Any shares of Series E Convertible Preferred purchased, converted or otherwise acquired by the Company in any manner whatsoever shall not be reissued as part of the Company’s Series E Convertible Preferred and shall be retired promptly after the acquisition thereof. All such shares shall become, upon their retirement (and the filing of any certificate required in connection therewith pursuant to the General Corporation Law of the state of Delaware), authorized but unissued shares of Preferred Stock.
22. Effect of Headings. The section headings herein are for convenience only and shall not affect the construction hereof.
IN WITNESS WHEREOF, Alternus Clean Energy, Inc. has caused this Certificate of Designation to be signed by its Chief Executive Officer on this 1st day of April, 2026.
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By: /s/ Vincent Browne Name: Vincent Browne Title: Chief Executive Officer |
EXHIBIT A
NOTICE OF CONVERSION
AT THE ELECTION OF HOLDER
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(To be Executed by the Registered Holder in order to Convert shares of Series E Convertible Preferred Stock) |
The undersigned hereby elects to convert the number of shares of Series E Convertible Preferred Stock indicated below, into shares of common stock, par value $0.0001 per share (the “Common Stock”), of Alternus Clean Energy, Inc. (the “Company”) according to the conditions hereof, as of the date written below. If shares are to be issued in the name of a person other than undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as reasonably requested by the Company in accordance therewith. No fee will be charged to the Holder for any conversion, except for such transfer taxes, if any.
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Exhibit 10.1
SUBSCRIPTION AGREEMENT
Alternus Clean Energy, Inc.
17 State Street, Suite 4000
New York, NY 10004
Gentlemen:
The undersigned (“Investor”) hereby enters into this Subscription Agreement (this “Agreement”) with Alternus Clean Energy, Inc., a Delaware company (the “Company”), in connection with Investor’s subscription for shares of Series D Convertible Preferred Stock, with such terms and conditions as set forth in the Certificate of Designation attached hereto and incorporated herein as Exhibit A (the “Securities”) in exchange for the amount set forth on the signature page hereof (the “Principal Amount”), offered by the Company pursuant to the terms and conditions set forth therein.
1. Subscription. Subject to the terms and conditions set forth in this Agreement, Investor, intending to be legally bound, hereby irrevocably subscribes for the Securities in the Principal Amount set forth on the signature page hereof.
2. Acceptance of Subscription. Investor agrees that this subscription shall be considered accepted by the Company upon the Company’s full execution of this Agreement.
3. Delivery of Subscription Payments. At the time of the Company’s acceptance of Investor’s subscription, Investor will be required to wire the Principal Amount to the Company’s account.
4. Representations and Warranties. Investor hereby represents, warrants, and agrees as follows:
The Investor represents and warrants to the Company, with the intent that the Company will rely thereon in accepting this Subscription, that:
a) Organization; Authority. The undersigned, if not an individual, is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with the requisite power and authority to enter into and to consummate the transactions contemplated by this Subscription Agreement and otherwise to carry out its obligations hereunder. The purchase by Investor of the Securities hereunder has been duly authorized by all necessary action on the part of Investor. This Subscription Agreement has been duly executed by Investor, and when delivered by Investor in accordance with the terms hereof, will constitute the valid and legally binding obligation of Investor, enforceable against it in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors' rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
b) Accredited or Non-U.S. Purchaser. The Purchaser is either (i) an “accredited investor” as that term is defined in Regulation D promulgated under the Securities Act, or (ii) not a U.S. Person as defined in Rule 902 of Regulation S promulgated under the Securities Act;
c) Non-U.S. Purchaser. If the Investor is not a U.S. Person, such Purchaser hereby represents the following:
i. the Purchaser is not a U.S. Person;
ii. the Purchaser is outside the United States when receiving and executing this Subscription Agreement;
iii. the Purchaser is not acquiring the Securities for the account or benefit of, directly or indirectly, any U.S. Person;
iv. the Purchaser is acquiring the Securities as principal for investment only and not with a view to, or for, resale, distribution or fractionalization thereof, in whole or in part, and, in particular, it has no intention to distribute either directly or indirectly any of the Securities or underlying Common Shares in the United States or to U.S. Persons;
v. the Purchaser understands and agrees not to engage in any hedging transactions involving any of the Common Shares underlying the Securities unless such transactions are in compliance with the provisions of the 1933 Act and in each case only in accordance with applicable state securities laws;
vi. the Purchaser acknowledges that it has not acquired the Securities as a result of, and will not itself engage in, any "directed selling efforts" (as defined in Regulation S under the 1933 Act) in the United States in respect of any of the Shares which would include any activities undertaken for the purpose of, or that could reasonably be expected to have the effect of, conditioning the market in the United States for the resale of any of the Common Shares underlying the Securities; provided, however, that the Purchaser may sell or otherwise dispose of any of the Common Shares underlying the Securities pursuant to registration of any of the Common Shares pursuant to the 1933 Act and any applicable state securities laws or under an exemption from such registration requirements and as otherwise provided herein; the Purchaser acknowledges that he/she/it may not resell his/her/its Common Shares within twelve months from the date this Subscription Agreement is accepted by the Company unless the following conditions are met: (1) the purchaser of those shares certifies that it is not a U.S. Person and is not acquiring the shares for the account or benefit of any U.S. Person, and (2) the resale of such securities is only made in accordance with the provisions of Regulation S, pursuant to registration under the Securities Act, or pursuant to an available exemption from registration.
d) General Solicitation. The Investor is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.
e) Irrevocability of Subscription. Investor agrees that the Investor's execution of this Subscription Agreement shall be irrevocable by Investor, and that, except as required by applicable law, Investor shall not be otherwise entitled to cancel, terminate or revoke this Subscription Agreement or any of Investor's obligations hereunder.
f) No Additional Representations. The Investor has not made any other representations or warranties to the undersigned with respect to the Company except as contained herein. The Company has not rendered any investment advice to the undersigned with respect to the Company.
g) Experience of Investor. The Investor has not authorized any person or institution to act as his Purchaser Representative (as that term is defined in Regulation D of the General Rules and Regulations under the Securities and Exchange Act of 1933 (the "Act") in connection with this transaction. The Investor has such knowledge and experience in financial, investment and business matters that he is capable of evaluating the merits and risks of the prospective investment in the Securities. The Investor has consulted with such independent legal counsel or other advisers as he has deemed appropriate to assist the undersigned in evaluating his proposed investment in the Securities.
h) Investor Finances. The Investor represents that he (i) has adequate means of providing for his current financial needs and possible personal contingencies, and has no need for liquidity of investment in the Securities; (ii) can afford to (a) hold unregistered securities for an indefinite period of time as required and (b) sustain a complete loss of the entire amount of the investment; and (iii) has not made an overall commitment to investments which are not readily marketable which is disproportionate so as to cause such overall commitment to become excessive. The Investor has sufficient liquid assets to sustain a loss of the Investor 's entire investment.
i) Access to Information. The Investor has been afforded the opportunity to ask questions of, and receive answers from, the officers and/or directors of the Company concerning the Company, the terms and conditions of the Offering and the Securities and to obtain any additional information, to the extent that the Company possesses such information or can acquire it without unreasonable effort or expense, necessary to verify the accuracy of the information furnished; and has availed himself of such opportunity to the extent he considers appropriate in order to permit him to evaluate the merits and risks of an investment in the Securities. Investor acknowledges and agrees that all documents, records and books pertaining to this investment have been made available for inspection upon request.
j) Investment Decision. Investor represents and warrants to the Company that he has not based his investment decision on any research or other report regarding the Company prepared by any third party ("Third Party Reports"). Investor understands and acknowledges that (i) the Company does not endorse any Third Party Reports and (ii) its actual results may differ materially from those projected in any Third Party Report.
k) Investor Representation. Investor acknowledges that the Securities has not been registered under the Securities Act and has been issued in reliance on an exemption for transactions by an issuer not involving a public offering, and further understands that they are purchasing the Securities without being furnished any prospectus setting forth all of the information that would be required to be furnished under the Act. The undersigned further acknowledges that this Offering has not been passed upon or the merits thereof endorsed or approved by any state or federal authorities.
l) No Distribution. The Securities being subscribed for are being acquired solely for the account of the undersigned and not with a view to, or for resale in connection with, any distribution in any jurisdiction where such sale or distribution would be precluded. By such representation, the undersigned means that no other person has a beneficial interest in the Securities subscribed for hereunder, and that no other person has furnished or will furnish directly or indirectly, any part of or guarantee the payment of any part of the consideration to be paid to the Company in connection therewith. The undersigned does not intend to dispose of all or any part of the Securities except in compliance with the provisions of the Act and applicable state securities laws and understands that the Securities are being offered pursuant to a specific exemption under the provisions of the Act, which exemption depends, among other things, upon compliance with the provisions of the Act.
m) Accuracy of Statements. The Investor understands and acknowledges that (i) the Securities are offered and sold without registration under the Securities Act in a private placement that is exempt from the registration provisions of the Securities Act and (ii) the availability of such exemption depends in part on, and that the Company and its counsel will rely upon, the accuracy and truthfulness of the foregoing representations and Investor hereby consents to such reliance.
n) Finder's Fee/Commissions. The Investor represents that it neither is nor will be obligated for any finders' fee or commission in connection with this transaction or the purchase of the Securities. The Investor agrees to indemnify and to hold harmless the Company from any liability for any commission or compensation in the nature of a finders' fee (and the costs and expenses of defending against such liability or asserted liability) for which such Investor is responsible.
5. Indemnification. Investor hereby agrees to indemnify the Company and its affiliates, partners, officers, controlling persons, employees, counsel, accountants, and representatives for any and all losses, damages, liabilities, costs, and expenses (including attorneys’ fees and expenses) incurred or sustained by reason of or in connection with any breach of any representation, warranty, covenant, or agreement of Investor contained in this Agreement.
6. Miscellaneous.
(a). This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its conflicts of law rules and principles. Any dispute arising out of or in connection with this Agreement or Securities, including the relationship of the parties hereunder, shall be referred to and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be New York, United States. The language to be used in the arbitration shall be English.
(b). This Agreement constitutes the entire agreement between the Company and Investor with respect to Investor’s subscription for the Securities. No amendment, alteration, or modification of this Agreement shall be valid, unless such amendment, alteration, or modification is expressed in a written instrument duly executed and delivered by the Company and Investor.
(c). This Agreement shall not be assignable by Investor without the prior consent of the Company. This Agreement shall survive the death, incompetency, or disability of Investor and shall be binding upon Investor’s heirs, executors, administrators, and successors and assigns.
(d). This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original instrument, but all of which together shall constitute one and the same instrument.
(e). If any provision contained in this Agreement shall be held to be unenforceable, invalid, or illegal for any reason by a court of competent jurisdiction, the Company and Investor hereby direct the court so holding to reform this Agreement (by deleting such provision or otherwise) to the minimum extent necessary so that thereafter this Agreement is fully enforceable, valid, and legal.
(f). Investor’s representations, warranties, covenants, and indemnification and other agreements contained in this Agreement shall survive the acceptance of this subscription and the issuance, sale, and delivery of the Securities.
INVESTOR SIGNATURE PAGE FOR ALTERNUS CLEAN ENERGY INC. FOR SUBSCRIPTION AGREEMENT
(All Parties Must Sign)
The undersigned investor hereby certifies that he (i) has received and relied solely upon the Disclosure Documents and this Subscription Agreement and their respective exhibits and schedules, (ii) agrees to all the terms, conditions, representations, warranties and covenants of the Investor in this Subscription Agreement, (iii) meets the suitability standards set forth herein and (iv) is a resident of the state or foreign jurisdiction indicated below.
The undersigned hereby irrevocably offers to subscribe for the Securities ([*] shares of Series [*] Convertible Preferred Stock), on the terms and conditions of this Agreement and agrees to deliver herewith a wire transfer in the sum of ([*]) made payable to the Company.
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Passport #: _______________ ID#: ____________________ ID Type: _________________ |
The investor agrees to the terms of this Subscription Agreement and, as required by the Regulations pursuant to the Internal Revenue Code, certifies under penalty of perjury that (1) the Social Security Number or Taxpayer Identification Number and address provided above is correct, (2) the investor is not subject to backup withholding and (3) the investor (unless, the Foreign Person box above is checked) is not a nonresident alien, foreign partnership, foreign trust or foreign estate.
AGREED AND ACCEPTED THIS ____ DAY OF MARCH ___, 2026.
Alternus Clean Energy, Inc.
| By: Vincent Browne | |
| Title: Director |
Exhibit 10.2
PUT OPTION AGREEMENT
This Put Option Agreement (this “Agreement”), effective as of March 27, 2026 (the “Effective Date”), by and between Alternus Clean Energy Inc., a Delaware company with headquarters located at 17 State Street, Suite 4000, New York, NY 10004 (the “Company”) and [*], the holder of Two Thousand One Hundred Fifty (2,150) shares of the Company’s Series D Convertible Preferred Stock, par value $0.0001 per share (the “Series D”) and as set forth on the signature page hereto (the “Stockholder”).
WHEREAS, the Stockholder desires to have the right to sell to the Company up to a maximum of One Thousand One Hundred Fifty (1,150) shares of the Series D (the “Shares”) held by the Stockholder as set forth on Exhibit A hereto, and the Company desires to grant such right to the Stockholder, pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual and dependent covenants hereinafter set forth, the parties agree as follows:
1. Grant of Put Option.
(a) Right to Sell. Subject to the terms and conditions of this Agreement, for a period commencing immediately after the date on which the sum of all proceeds received by the Company from a capital raise equals or exceeds $8,000,000 (the “PIPE”) and ending at the close of business twelve (12) months from the Effective Date (the “Put Exercise Period”), the Stockholder shall have the right (the “Put Right”), but not the obligation, to cause the Company to purchase all or a portion of the Shares at the Put Purchase Price (as defined in Section 2 of this Agreement).
(b) Procedures.
(i) If the Stockholder desires to sell any of the Shares pursuant to Section 1(a), the Stockholder shall deliver to the Company a written, unconditional and irrevocable notice (the “Put Exercise Notice”) exercising the Put Right and specifying the number of Shares to be sold (the “Put Shares”) by the Stockholder.
(ii) By delivering the Put Exercise Notice, the Stockholder represents and warrants to the Company that (A) the Stockholder has full right, title and interest in and to the Shares, (B) the Stockholder has all the necessary power and authority to sell such Shares as contemplated by this Section 1, and (C) the Shares are free and clear of any and all mortgages, pledges, security interests, options, rights of first offer, encumbrances or other restrictions or limitations of any nature whatsoever other than those arising as a result of or under the terms of this Agreement.
(iii) Subject to Section 1(c) below, the closing of any sale of Shares pursuant to this Section 1 shall take place no later than ninety (90) days following receipt by the Company of the Put Exercise Notice. The Company shall give the Stockholder at least three (3) business days’ written notice of the date of closing (the “Put Right Closing Date”).
(iv) In the event the Stockholder does not deliver a Put Exercise Notice to the Company during the Put Exercise Period, any rights provided to Stockholder to require the Company to purchase the Shares pursuant to this Agreement shall terminate and be of no further force or effect.
(c) Consummation of Sale. The Company will pay the Put Purchase Price for the Shares by the Put Right Closing Date.
(d) Cooperation. The Company and the Stockholder each shall take all actions as may be reasonably necessary to consummate the sale contemplated by this Section 1, including, without limitation, entering into agreements and delivering certificates and instruments and consents as may be deemed necessary or appropriate.
(e) Closing. At the closing of any sale and purchase pursuant to this Section 1, the Stockholder shall deliver to the Company a certificate or certificates representing the Shares to be sold (if any), accompanied by stock powers and all necessary stock transfer taxes paid and stamps affixed, if necessary, against receipt of the Put Purchase Price.
2. Put Purchase Price. In the event Stockholder exercises the Put Right hereunder, the purchase price per share at which the Company shall be required to purchase the Put Shares (the “Put Purchase Price”) shall be One Thousand Dollars ($1,000) per Share of Series D as set forth on Exhibit A hereto. The Put Purchase Price shall be paid in cash via wire transfer to an account designated in writing by the Stockholder.
3. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses indicated below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 3).
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If to the Company: |
17 State Street, Suite 4000 New York, NY 10004 E-mail: [email protected] Attention: Vincent Browne, Chief Executive Officer |
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If to the Stockholder: |
At the address specified for the Stockholder on Exhibit A hereto |
4. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
5. Successor and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. However, neither this Agreement nor any of the rights of the parties hereunder may otherwise be transferred or assigned by any party hereto, except (a) that if the Company shall merge or consolidate with or into, or sell or otherwise transfer substantially all its assets to, another company which assumes the Company’s obligations under this Agreement, the Company may assign its rights hereunder to that company, or (b) the Shares are transferred by Stockholder by will or by the laws of intestate succession, to Stockholder’s executors, administrators, testamentary trustees, legatees or beneficiaries. Any attempted transfer or assignment in violation of this Section 5 shall be void.
6. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
7. Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
8. Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
9. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
10. Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of New York. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the courts of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
11. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby. Each party to this Agreement certifies and acknowledges that (a) no representative of any other party has represented, expressly or otherwise, that such other party would not seek to enforce the foregoing waiver in the event of a legal action; (b) such party has considered the implications of this waiver; (c) such party makes this waiver voluntarily; and (d) such party has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 11.
12. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall together be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
13. Compliance with Laws and Regulations. The exercise of the Put Option shall be subject to compliance by the Company and the Stockholder with all applicable requirements of law, including federal and state securities laws.
14. No Strict Construction. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties, and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Put Option Agreement on the date first written above.
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ALTERNUS CLEAN ENERGY INC. |
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By: |
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Name: |
Vincent Browne |
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Title: |
Chief Executive Officer |
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STOCKHOLDER |
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By: |
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Name: |
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Signature Page to Put Option Agreement