CBDEF BlueNRGY Group Ltd (CE)

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

FORM 6-K

 

REPORT OF FOREIGN PRIVATE ISSUER

Pursuant to Section 13a-16 or 15(d)-16 of the Securities Exchange Act of 1934

 

For the Month of: November 2015

 

Commission File Number: 001-36136

 

BlueNRGY Group Limited

(Exact name of registrant as specified in its charter)

 

32 Martin Place 

11^th Floor

Sydney 2000 NSW

AUSTRALIA

(Address of principal executive offices)

 

N/A 

(Former name or former address)

 

Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or 40-F. 

Form 20-F ☒            Form 40-F ☐

 

☐	Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1)

 

☐	Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7)

 

 

Entry Into Material Definitive Agreements – Draker Transaction

 

On September 14, 2015, BlueNRGY Group Limited (the “Company”) formed a new U.S. subsidiary that entered into a material definitive agreement pursuant to which it acquired, on September 16, 2015 (the “Draker Transaction”), the monitoring platform, accounts receivable, inventory, plant, property and equipment and certain other assets of Draker, Inc. and Draker Laboratories, Inc. (together “Sellers”), including the Draker name, trademark, and all copyrights then owned by the Sellers. Immediately subsequent to the Draker Transaction, the Company’s acquisition subsidiary changed its name to Draker Corporation and the names of the Sellers were changed to delete the Draker name.

 

With the exception of the Seller’s secured indebtedness to the Vermont Economic Development Authority (“VEDA”), discussed below, Draker Corporation did not assume Seller’s liabilities. Draker Corporation is continuing to supply monitoring services to all customers served on the Draker software platform while it negotiates and documents continuing service agreements with Seller’s customers. The Draker Transaction agreements grant Draker Corporation 90 days from the date of the Draker Transaction to evaluate and, in its sole discretion, assume executory contracts of the Sellers.

 

As a result of the Draker Transaction, we believe the Company is one of the leading independent U.S. companies providing equipment and monitoring services to measure the performance of PV Solar generation installations. Draker Corporation currently receives and compiles operating performance and other pertinent data at more than 2GW of solar PV installations at approximately 2,000 sites in the Americas, Japan and Europe. Solar generation installations monitored by Draker Corporation currently range in size from tens of kW to more than 30MW and clients include individual system owners, developers, asset managers and utilities. It is the Company’s intention to integrate the acquired Draker systems with its own software and service offerings to maintain and build its leadership position in the monitoring and management of renewable power assets. Subsequent to the Draker Transaction, Draker Corporation has hired some personnel previously employed by the Sellers to facilitate the Company’s objectives.

 

Draker Corporation paid approximately $2.24 million to the Sellers and assumed Seller’s secured indebtedness to VEDA of approximately $0.18 million, subject to the negotiation and documentation of a secured note and loan agreement with VEDA that provides for repayment of the debt over a 3-year term at an annual interest rate of 2.0%. As further discussed below under the heading “Issuance of Shares”, the Company issued equity securities in conjunction with the Draker Transaction.

 

The foregoing description of the Draker Transaction is qualified in its entirety by the terms of the document governing the Draker Transaction copy of which is attached hereto as Exhibit 4.1. The Company issued a press release pertaining to the Draker Transaction on September 17, 2015, a copy of which is attached hereto as Exhibit 99.1.

 

Issuance of Shares and Issuance Commitments

 

A.	Issuances In Conjunction With The DOCA. Pursuant to the Company’s reorganization plan that was consummated January 27, 2014, the Company:

 

i.

raised $1.0 million (A$1,247,000 million) at a price of $0.03785 per ordinary share (the “Offering Price”) and paid 100% of the proceeds to the deed fund established for the benefit of the antecedent Company creditors (the “Deed Fund”);

 

ii.

issued 96,028,937 of ordinary shares to the Deed Fund;

 

iii.

issued an aggregate of 150,162,640 of its ordinary shares in conjunction with the Company’s acquisition of BlueNRGY LLC;

 

iv.

issued 18,534,029 ordinary shares at the Offering Price to creditors of Company subsidiaries not subject to the Company reorganization plan, for which such creditors exchanged $701,513 of indebtedness;

 

v.

issued a promissory note to Wind Farm Financing Pty Ltd. in the amount of $900,000 (the “WFF Note”) that was automatically convertible, under certain conditions, at the Offering Price into 23,778,071 ordinary shares;

 

vi.

caused certain of its subsidiaries (Parmac and CIWL) to issue $2.2 million face value and $1.4 million face value of preferred equity securities (“Subsidiary Preferred Shares”) that are convertible into Company ordinary shares at the Offering Price, subject, in the case of the Subsidiary Preferred issued to CIWL to a conversion restriction if the Chatham Island Project contract with Chatham Islands Electricity Limited is terminated;

 

vii.

amended the Terms of the Company’s Series B Preferred Shares (as a condition to the BlueNRGY LLC purchase agreement and action approved by the requisite majority of members of the Company’s Board of Directors (the “Board”) and holders of Series B Preferred Shares) to establish the price at which Series B Preferred Shares could be converted to ordinary shares as $0.05015125 per ordinary share and terminate: (x) the payment of dividends on Series B Preferred Shares after January 31, 2015, (y) the rights of Series B shareholders to appoint a member of the Board and (z) the requirement to issue additional shares to holders Series B Preferred shares under certain conditions.

 

  

 

The foregoing summaries of the share issuances related to the modifications to the terms of our Series B Preferred Shares and the terms of our Subsidiary Preferred Shares are qualified in their entirety by the revised terms set forth in the exhibits to our Form 6-K/A filed on January 29, 2015 pertaining to the deed of company arrangement (“DOCA”) that was effected on January 27, 2015 and the Securities Purchase Agreement pursuant to which the private placement proceeds were raised to effect the DOCA.

 

B.	Issuances and Repurchases Following the Reorganization. Subsequent to January 27, 2015 and through the date hereof, excluding the foregoing issuances of our equity securities and equity-linked securities, the Company has:

 

i.

issued 50,792,604 additional ordinary shares at the Offering Price pursuant to applicable exemptions from registration and through subscription agreements having terms substantially equivalent to that filed in connection with capital raised to consummate the DOCA;

 

ii.

converted the WFF Note into 23,778,071 ordinary shares at the Offering Price in accordance with its terms;

 

iii.

converted 2,484 Series B Preferred Shares in accordance with the amended terms of the Series B Shares and issued 51,448,606 ordinary shares to the converting shareholders;

 

iv.

in conjunction with the Draker Transaction, (w) issued 39,630,119 ordinary shares at the Offering Price (x) issued Subsidiary Preferred Shares having a face value of $1.0 million and a conversion price equal to the Offering Price, (y) provided the holder of Subsidiary Preferred Shares an additional investment right expiring December 31, 2015 to purchase up to an additional $1.0 million of Subsidiary Preferred Shares on the same terms, and (z) issued warrants having a term of three years to acquire 26,420,080 ordinary shares at an exercise price of $0.056775 per share, subject to the Company’s nominal value call right if the VWAP for the Company’s ordinary shares exceeds $0.9935625 per share for sixty consecutive days and the average daily trading volume during such period exceeds $100,000. The foregoing summary of the Company securities issued in conjunction with the Draker Transaction is qualified in its entirety by the securities agreements attached hereto as Exhibit 4.1.

 

v.

initiated the repurchase of 83,334 ordinary shares for total consideration of $1.00, the opportunity for which was triggered by the failure of a former executive to meet vesting requirements associated with a prior share grant.

 

As of the date hereof, the Company had outstanding 462,792,384 ordinary shares, Series B Preferred Shares having a face value of $600,000 plus accrued dividends and Subsidiary Preferred Shares having a face value of $ 4,600,000 plus accrued dividends.

 

C.

Company Commitments To Share Issuances. In addition to the foregoing share issuances, the Board has approved the following transactions involving the issuance of ordinary shares:

 

i.

the exchange of approximately $0.8 million of accrued liabilities for ordinary shares at the Offering Price, of which approximately $0.7 million involve amounts due to related parties for deferred compensation. As of the date hereof, the exchange arrangements have not been documented and the shares related thereto have not been issued.

 

ii.

the issuance of up to 500,000 ordinary shares under the Company’s 2014 Equity Plan to qualifying vendors as consideration for their services;

 

iii.

the grant of up to 3,849,350 ordinary shares, some of which are subject to vesting, to 84 employees under the Company’s 2014 Equity Plan;

 

Notwithstanding the Board’s resolution to issue shares related to the foregoing, there is no assurance that the approved but unconsummated share issuances will be accepted by the counterparties (or in the case of share purchase options and warrants exercised by the holders) or effected by the Company.

 

Share Consolidation

 

As previously reported by the Company on Form 6-K dated March 19, 2015, the Company’s shareholders approved a consolidation of the Company’s ordinary shares at a ratio ranging from 1:80 to 1:150, subject to determination by the Company’s Board. The Board unanimously established the consolidation ratio as 1:80 to be effected immediately following the filing of the Company’s FY2015 Annual Report on Form 20-F, or as soon thereafter as requisite approval is granted by the Financial Industry Regulatory Authority. The Company is currently working to finalize the audit of its FY2015 financial statements and will file its FY2015 Annual Report as soon thereafter as practicable. This is expected prior to the end of the 2015 calendar year, but there is a possibility that further delays will be encountered.

 

 

When the share consolidation is consummated, the number of ordinary shares, the conversion price of all of the Company’s outstanding convertible equity securities and the exercise price of its outstanding options and warrants will be adjusted proportionally. Following the 1:80 share consolidation, the number of outstanding ordinary shares will be approximately 5.8 million if no further ordinary shares are issued prior to the effective date of the share consolidation. The exact number of ordinary shares outstanding following the consolidation is indeterminable until after the consolidation is effected and the extinguishment of fractional shares can be tallied.

 

Forward-Looking Statements

 

This Report contains forward-looking statements that involve risks and uncertainties. In some cases, forward-looking statements can be identified by words such as “anticipates,” “expects,” “believes,” “plans,” “predicts,” and similar terms. Risks, uncertainties and assumptions that could affect the Company’s forward looking statements include, among other things the Company’s ability to retain and build its market position in the U.S. and elsewhere as an independent provider of monitoring services for renewable power generation installations, the amount of and schedule for future share issuances and the receipt of approval to effect the share consolidation and the affect thereof. Other risks and uncertainties include, but are not limited to, those discussed under the heading “Risk Factors” in the Company’s Annual Report filed on Form 20-F for its fiscal year ended June 30, 2014. Unless required by law, the Company expressly disclaims any obligation to update publicly any forward-looking statements, whether as result of new information, future events or otherwise.

 

Press Releases

 

On September 17, 2015, the Company issued a press release related to the Draker Transaction, a copy of which is attached to this report on Form 6-K.

 

On October 13, 2015, the Company issued a press release related to the Engagement of PCG Advisory Group for Investor and Corporate Relations, a copy of which is attached to this report on Form 6-K.

 

On November 10, 2015 the Company issued a press release related to the consolidation of its ordinary shares, a copy of which is attached hereto

 

The information contained in the press releases attached as an Exhibits hereto is being furnished to the Commission and shall not be deemed incorporated by reference into any of the Registrant’s registration statements or other filings with the Commission. 

 

Exhibits

 

Exhibit Number		Exhibit Description
4.1		Acquisition Agreement dated September 16, 2015 between BlueD Acquisition Corporation (now known as Draker Corporation) and Draker, Inc. and Draker Laboratories, Inc.
99.1		Announcement of the Draker Transaction
99.2		Announcement of the Engagement of PCG Advisory Group for Investor and Corporate Relations
99.3		Announcement of the Company’s Ordinary Share Consolidation

 

 

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.

 

 

	BlueNRGY Group Limited
November 12, 2015	By:	/s/ William Morro
		William Morro Managing Director

 

5

 

 

Exhibit 4.1

 

ASSET PURCHASE AGREEMENT

 

THIS ASSET PURCHASE AGREEMENT (the “Agreement”) is made and entered into the 16th day of September, 2015, by and between Draker, Inc., a Delaware corporation (“Draker”) and Draker Laboratories, Inc., a Delaware corporation (“Draker Labs” and, together with Draker, the “Seller”) and BlueD Acquisition Corporation, a Delaware corporation (the “Buyer”).

 

W I T N E S S E T H:

 

WHEREAS, Seller owns and operates a solar performance and asset management business (the “Business”) headquartered in Burlington, Vermont with additional operations in Austin, Texas; and

 

WHEREAS, Seller desires to sell and transfer to Buyer and Buyer desires to purchase and receive from Seller all of the assets that are utilized by Seller in operation of the Business (except for the Excluded Assets described below) for the consideration and upon the terms and conditions hereinafter set forth;

 

NOW, THEREFORE, FOR AND IN CONSIDERATION of the foregoing premises and of the mutual agreements hereinafter set forth, the parties hereto agree as follows:

 

ARTICLE I. Sale and Purchase of the Business

 

1.1    Purchase of Assets. Upon and subject to the terms and conditions set forth in this Agreement, Seller hereby agrees to sell, transfer, assign, convey and deliver to Buyer on the Effective Date (as defined herein), and Buyer agrees to purchase and assume from Seller, good and valid title to (or leasehold interest in) all assets other than the Excluded Assets of Seller of every kind and type, tangible or intangible, real and personal, that are necessary or reasonably desirable to operate the Business (the “Conveyed Assets”), free and clear of all liens and encumbrances (other than Permitted Liens (as defined below) and liens resulting from indebtedness that will be satisfied or is waived in connection with the Closing), including, without limitation, the following:

 

(1)     All tangible personal property, medical and other equipment, machinery, data processing hardware and software, furniture, furnishings, appliances, vehicles and other tangible personal property of every description and kind and all replacement parts therefor used in connection with the Business including, without limitation, the items listed on Schedule 1.1(1) attached hereto (collectively, the “Equipment and Furnishings”);

 

(2)     All intangible or intellectual property owned, leased, licensed or possessed by Seller or any other person and utilized in connection with the Business, including without limitation, the names “Draker” and “Draker Laboratories” including, without limitation, patents, trademarks, copyrights and copyrighted materials, software and know-how and licensed rights including, without limitation, those set forth on Schedule 1.1(2) (the “Intellectual Property”);

 

 

(3)     The leases, customer contracts, purchase orders, vendor contracts, and other contracts and agreements specifically listed on Schedule 1.1(3) or that Buyer otherwise elects to assume post-Closing pursuant to Section 6.3, (collectively, the “Assumed Contracts”);

 

(4)     All inventory of goods and supplies used or maintained in connection with the Business, including, without limitation, as listed on Schedule 1.1.(4), (collectively, the “Inventory”);

 

(5)     All cash (and cash equivalents) related to the operation of the Business received by Seller after the Closing Date;

 

(6)     All manuals, books and records used in operating the Business (to the extent transferrable pursuant to applicable law), including, without limitation, personnel policies and files (for any employees hired by Buyer and subject to applicable law) and manuals, accounting records, and computer software, as well as copies of any books and records that are not transferrable pursuant to applicable law or otherwise are Excluded Assets;

 

(7)     To the full extent transferable, all licenses, permits, registrations, certificates, consents, accreditations, approvals and franchises necessary to operate and conduct the Business, together with assignments thereof, if required, and all waivers which Seller currently has, if any, of any requirements pertaining to such licenses, permits, registrations, certificates, consents, accreditations, approvals and franchises;

 

(8)     All goodwill, and, to the extent assignable by Seller, all warranties (express or implied) and rights and claims related to the Assets or the operation of the Business;

 

(9)     All prepaid expenses of the Business;

 

(10)   The accounts and notes receivable of the Business including, without limitation, those listed on Schedule 1.1(10), (collectively, the “Accounts Receivable”);

 

(11)  All claims of Seller against any third party, whether in contract or equity, and whether matured or unmatured, fixed or contingent, asserted or unasserted;

 

(12)   All of Seller’s right, title and interest in any partnerships, joint ventures or similar arrangements, subject to Buyer’s approval;

 

(13)   All phone numbers, URL’s, passwords, login information and other communications and access rights of Seller related to or necessary or useful for the use and operation of other Conveyed Assets;

 

(14)   The Seller’s 401(k) plan and similar plans, if any, in each case, as identified in Schedule 1.1(13) (each, a “Plan”); and

 

 

(15)   All of Seller’s right, title and interest in sales and marketing materials, operating manuals, handbooks, procedural documentation, third party reports prepared for or provided to the Seller, materials provided to or from Seller from or by any other party in connection with contemplating a strategic or financial transaction involving Seller, and any correspondence related to the Business (including all hard copies thereof).

 

For purposes of this Agreement, “Permitted Liens” shall mean any (i) statutory or common law liens to secure landlords, lessors or renters under leases or rental agreements confined to the premises rented, (ii) statutory or common law liens in favor of carriers, warehousemen, mechanics and materialmen to secure claims for labor, materials or supplies incurred in the ordinary course of the Company’s business as to which there is no default or breach on the part of the Company, (iii) non-exclusive licenses to Company intellectual property granted to customers in the ordinary course of business and (iv) liens and encumbrances of the Seller arising out of (A) that certain Loan Agreement by and between the Seller and Vermont Economic Development Board (“VEDA”), dated as of October 7, 2010, (and the agreements, schedules and exhibits entered into in connection therewith, including, without limitation the Security Agreement of even date), and (B) that certain Loan Agreement by and between the VEDA, dated as of December 14, 2010, (and the agreements, schedules and exhibits entered into in connection therewith, including, without limitation the Security Agreement of even date).

 

1.2    Excluded Assets. The following items which are related to the Business are not intended by the parties to be a part of the sale and purchase contemplated hereunder (collectively, the “Excluded Assets”): (a) Seller’s corporate and fiscal records and other records that Seller is required by law to retain in its possession; (b) all cash, checks, bank accounts, certificates of deposit and other investments of Seller held by Seller as of the Closing Date; (c) all insurance policies and rights (including, without limitation, rights to proceeds) thereunder and (d) such other assets listed on Schedule 1.2. The Excluded Assets shall not constitute part of the Conveyed Assets.

 

1.3     Assumed Liabilities of Seller. Buyer assumes only (i) liabilities of the Seller and the Business under the Assumed Contracts (A) to the extent arising after the Closing Date, or (B) existing as of the Closing Date as a result of on-going, ordinary course obligations under the Assumed Contract, but excluding any liability arising out of or relating to any breach of any such Assumed Contract that occurred prior to the Closing; (ii) liabilities of the Seller and Business expressly set forth on Schedule 1.3 (the “Assumed Liabilities”).

 

1.4     Excluded Liabilities.

 

(1)     Except for the Assumed Liabilities, it is expressly agreed and understood by each of the parties to this Agreement that Buyer does not assume, and shall not be liable for, any debt, liability or obligation of Seller or any other person, of any type or description whatsoever, whether related or unrelated to the Assets, the Business or the transactions contemplated within this Agreement and that Seller or any other person shall remain liable and responsible for the payment or performance, as the case may be, of all debts, liabilities, obligations, contracts, leases, notes payable, accounts payable, commitments, agreements, suits, claims, indemnities, mortgages, taxes, contingent liabilities and other obligations of Seller or any other person including, without limitation, any and all investment tax credit recapture, depreciation recapture, all impositions of income tax and other taxes, including, without limitation, payroll related taxes; all employee wages, salaries and benefits including, without limitation, COBRA and WARN obligations, sick pay and accrued vacation, and other accrued employee benefits including rights of Seller’s retirees to participate in Seller’s medical plans.

 

 

(2)     Without limiting the foregoing:

 

(a)      Seller retains all liability for, and shall pay or perform when due all liabilities, indebtedness and obligations listed on Schedule 2(a) within one (1) business day after the Closing Date;

 

(b)      Seller retains all liability for all liabilities, indebtedness and obligations arising on, before and following the Effective Date related to the Excluded Assets and its Business; and

 

(c)      Buyer assumes no liability for any contract, agreement or obligation of Seller pursuant to this Agreement except for such contracts, agreements or obligations which are Conveyed Assets, and Buyer shall not be liable in any way for any amounts owed by Seller as of the Effective Date which are not specifically defined Assumed Liabilities.

 

1.5    Third Party Consents; Assumed Contracts. Seller and Buyer shall act in good faith and use their diligent, commercially reasonable efforts to obtain all waivers, permits, consents and approvals and to effect all registrations, filings and notices with or to third parties that are necessary to consummate the transactions contemplated by this Agreement on the Closing Date. Seller and Buyer will use commercially reasonable efforts to assign each Assumed Contract and each Plan. Notwithstanding anything to the contrary in this Agreement. in the event that assignment from Seller to Buyer is prohibited by the terms of such Assumed Contract or Plan or any counterparty thereto, Seller shall use commercially reasonable efforts to assist Buyer in transferring or otherwise making available to Buyer, as applicable, the benefit of such Assumed Contract or Plan, as applicable, without assigning such Assumed Contract or Plan, as applicable, in breach thereof and shall use commercially reasonable efforts to assist Buyer in having such Assumed Contract or Plan, as applicable, assigned after Closing, provided that Seller shall have no liability if such Assumed Contracts or Plan, as applicable, is not able to be assigned because of the actions of any counterparties parties thereto.

  

ARTICLE II. Purchase Price

 

2.1    Purchase Price. The consideration to be paid by Buyer to the Seller shall be the sum of $2,157,526.75 (the “Purchase Price”), which consideration shall be payable in immediately available funds at the Closing.

 

2.2    Allocation of Consideration. The Purchase Price shall be allocated among the Conveyed Assets in accordance with an allocation schedule to be created by Buyer’s accountants following Closing.

 

 

ARTICLE III. The Closing

 

3.1    Closing Date. The documents governing the sale and purchase provided in this Agreement shall be executed concurrently with this Agreement at such time and place as the parties may agree (the “Closing” or “Closing Date”). For all purposes hereunder, the effective date of the sale and purchase provided in this Agreement shall be the close of business on the date hereof, September 16, 2015 (the “Effective Date”).

 

3.2    Actions of Seller at Closing. At the Closing, Seller shall deliver to Buyer a general Bill of Sale and Assumption of Liabilities, which will convey all of the Conveyed Assets to Buyer free and clear from all claims, liens and encumbrances (other than Permitted Liens and liens resulting from indebtedness that will be satisfied or is waived in connection with the Closing) and Buyer will assume the Assumed Liabilities (“Bill of Sale”) in the form of attached as hereto as Exhibit A.

 

3.3    Actions of Buyer at Closing. At the Closing, Buyer shall deliver to Seller the payment of the Purchase Price in immediately available funds by wire transfer to an account designated by Seller (or to the Seller’s creditors as directed in writing by Seller).

 

ARTICLE IV. Representations and Warranties of the Seller

 

Seller represents and warrants unto Buyer that, as of and including the Effective Date (unless a different date is set forth below), except as set forth on Schedule 4 (the “Disclosure Schedule”):

 

4.1    Organization; Corporate Power, Absence of Conflicts with Other Agreements. Each of Draker and Draker Labs is a corporation duly organized, validly existing and in good standing in the State of Delaware. Except for the Permitted Liens, Seller owns the Conveyed Assets free and clear of all recorded liens, security interests and encumbrances, except for such debts, liens, and encumbrances as will be discharged by Seller prior to or as of the Effective Date. Except for the Assumed Contracts, the execution and delivery by the Seller of all agreements required to be executed and delivered by it pursuant to this Agreement and the consummation of the transactions contemplated hereby do not or will not violate, result in the breach of, or conflict with any agreement to which the Seller is a party or by which the Seller is or may be bound, the terms of any judgment, rule or order by which the Seller is bound, or the Seller’s Articles of Incorporation or Bylaws. Except for Draker, no other person or entity owns or holds, has any interest in, whether legal, equitable or beneficial, or has the right to purchase, any capital stock or other security of Draker Labs and neither Draker nor Draker Labs owns any other capital stock, security, interest or other right, or any option or warrant convertible into the same, of any corporation, partnership, joint venture or other business enterprise. Seller has the full right, power and authority to execute, deliver and carry out the terms of this Agreement and all documents and agreements necessary to give effect to the provisions of this Agreement and to consummate the transactions contemplated on the part of Seller hereby.

 

4.2    No Warranty on Conveyed Assets. All of the Conveyed Assets are sold by Seller and purchased by Buyer in their present condition on the Closing Date, “AS IS, WHERE IS”, with NO WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, with Seller hereby disclaiming any and all of such warranties (both express and implied.)

 

 

4.3    Due Authority. The execution, delivery and consummation of this Agreement, and all other agreements and documents executed in connection herewith by Seller, have been duly authorized by all necessary action on the part of Seller. No other action, consent or approval on the part of Seller or any other person or entity is necessary to authorize Seller’s due and valid execution, delivery and consummation of this Agreement and all other agreements and documents executed in connection hereto. This Agreement and all other agreements and documents executed in connection herewith by Seller, upon due execution and delivery thereof, shall constitute the valid and binding obligations of Seller, enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by general principles of equity.

 

4.4    No Omissions or Misstatements. None of the information included in this Agreement and exhibits and schedules hereto, or other documents furnished or to be furnished by Seller, or any of its representatives, contains any untrue statement of a material fact or is misleading in any material respect or omits to state any material fact necessary in order to make any of the statements herein or therein not misleading in light of the circumstances in which they were made. Copies of all documents referred to in any exhibit or schedule hereto have been delivered or made available to Buyer and constitute true, correct and complete copies thereof and include all amendments, exhibits, schedules, appendices, supplements or modifications thereto or waivers thereunder.

 

4.5    Liabilities Under Plans. Schedule 4.5 sets forth any liabilities under the Plans that are accrued as of Closing.

 

ARTICLE V. Representations and Warranties of the Buyer

 

Buyer represents and warrants to Seller that, as of and including the Effective Date (unless a different date is set forth below):

 

5.1    Organization, Corporate Power, Absence of Conflicts with Other Agreements. Buyer is a corporation duly organized, validly existing. The purchase of the Conveyed Assets pursuant to this Agreement, and the execution, delivery and performance of any agreements required to be executed, delivered and performed by the Buyer pursuant to this Agreement hereunder do not violate the Certificate of Incorporation or bylaws of Buyer or any agreement to which the Buyer is a party, or any law, rule, order, or judgment by which Buyer is bound, and are enforceable in accordance with their terms.

 

5.2    Due Authority. The execution, delivery and consummation of this Agreement, and all other agreements and documents executed in connection herewith by Buyer, have been duly authorized by all necessary action on the part of Buyer. No other action, consent or approval on the part of Buyer or any other person or entity is necessary to authorize Buyer’s due and valid execution, delivery and consummation of this Agreement and all other agreements and documents executed in connection hereto. This Agreement and all other agreements and documents executed in connection herewith by Buyer, upon due execution and delivery thereof, shall constitute the valid and binding obligations of Buyer, enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by general principles of equity.

 

 

ARTICLE VI. Post-Closing Covenants

 

6.1   Seller agrees to cooperate with Buyer in the preparation and filing of any federal, state or other governmental tax returns due for periods ending on or before the Effective Date and in the preparation and filing of any other reports or filings required to be filed by Buyer as a result of or with respect to the transactions contemplated hereby. Each such return, report or filing shall be reviewed by the Seller, and its truth and accuracy confirmed, to the best of Seller’s knowledge, in writing, such that the return may be timely filed by the Buyer.

 

6.2    The parties agree, after the Closing, to do, execute, acknowledge, and deliver all such further acts, deeds, transfers, conveyances, powers of attorney, and assurances as may be reasonably required to consummate the transactions contemplated hereby. Further, the Buyer agrees to provide reasonable access to the records of the Business transferred to Buyer and any former Seller employees hired by Buyer, as may be reasonably necessary to assist Seller with an orderly wind down of its operations after Closing.

 

6.3    The parties agree that, after the Closing for a period of ninety (90) days, Buyer shall have the option (but not the obligation) to assume any of the contracts and agreements of Seller not listed on Schedule 1.1(3) (even if listed on Schedule 1.2), including, without limitation, any of the contracts and agreements listed on Schedule 6.3, by delivering to Seller, at any time during such ninety (90) day period, written notices electing to assume any of such contracts and agreements. Any such notice shall serve as written evidence of the assumption, without further action by the parties. Notwithstanding the foregoing, the parties further agree to cooperate with each other and to take all action necessary to effectuate the intent to assign the Assumed Contracts to Buyer.

 

6.4    Seller shall, within one (1) business day following Closing, make such filings and take such actions as necessary to change the corporate names of Draker and Draker Labs to not use any name included or associated with the Conveyed Assets.

 

6.5    Power of Attorney. Buyer is hereby irrevocably made, constituted and appointed the true and lawful attorney for Seller (without requiring it to act as such) with full power of substitution to execute in the name of Seller any schedules, assignments, instruments, documents, and statements that Buyer determines in its sole discretion and in good faith is reasonably necessary to effectuate the terms of this Agreement. This power of attorney shall be irrevocable and coupled with an interest.

 

6.6    Seller shall, within three (3) business days of receipt, pay over to Buyer any cash received by Seller following Closing.

 

ARTICLE VII. Miscellaneous

 

7.1    Subject to the terms and conditions hereof, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors, and assigns.

 

7.2    Any notice, request, instruction, or other document to be given hereunder to any party shall be in writing and delivered personally or sent by nationally recognized overnight delivery service, facsimile transmission if the original thereof is delivered promptly by Certified United States Mail, postage prepaid, return receipt requested, as follows:

 

  

	If to Seller:	Everett McGinley
		C/O Draker

431 Pine Street, Suite 114

Burlington VT 05401

 

with a copy to:

 

Robert V. Housley

Kastner Huggins Reddien Gravelle LLP

801 West 5th Street | Suite 105 | Austin, Texas 78703

 

 

	If to the Buyer:	BlueD Acquisition Corporation
		c/o BlueNRGY Group, Limited

110 E. Broward Blvd. 19th Floor

Fort Lauderdale FL 33301

Attn: William Morro

 

with a copy to:

 

Harwell Howard Hyne Gabbert & Manner, P.C.

333 Commerce St., Suite 1500

Nashville, TN 37201

Attention: David Cox and Jon Stanley

 

Any party may change its address for purposes of this paragraph by giving notice of such change of address to the other party in the manner herein provided for giving notice. 

 

7.3    This Agreement may be executed in a number of counterparts and all counterparts executed by Buyer and the Seller together shall constitute one and the same Agreement. Each party shall be responsible for their own fees and expenses in connection with this Agreement and the transactions contemplated hereby.

 

7.4    All Schedules hereto are incorporated herein and all statements appearing therein shall be deemed to be representations. All covenants, warranties and representations of the Seller shall survive the Closing indefinitely.

 

7.5   This Agreement shall be governed by the laws of Delaware and the parties hereto consent to the jurisdiction and venue of the courts of Delaware with respect to all claims or controversies arising out of or related to this Agreement.

 

7.6    Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement, or the application thereof to any person or under any circumstances, shall be invalid or unenforceable to any extent under applicable law, and the extent of such invalidity or unenforceability does not cause substantial deviation from the underlying intent of the parties as expressed in this Agreement, then such provision shall be deemed severed from this Agreement with respect to such person or circumstances, without invalidating the remainder of this Agreement or the application of such provision to other persons or circumstances, and a new provision shall be deemed to be substituted in lieu of the provision so severed, which new provision shall, to the extent possible, accomplish the intent of the parties hereto as evidenced by the provision so severed.

 

 

7.7    No provisions of this Agreement, express or implied, are intended or shall be construed to confer upon or give to any person other than the parties hereto, any rights, remedies or other benefits under or by reason of this Agreement, and except as so provided, all provisions hereof shall be personal solely between the parties to this Agreement.

 

7.8    Sellers will not (and will not allow its affiliates) to make any public announcement about this Agreement and the transactions contemplated herein without the prior consent of Buyer.

 

7.9    This Agreement (together with the Confidentiality Agreement dated [•] and the schedules and exhibits hereto and thereto) supersede any other agreement, whether written or oral, that may have been made or entered into by the parties hereto or thereto (or by any representative of any thereof) relating to the matters contemplated hereby and thereby. The Transaction Agreements (together with the schedules and exhibits hereto and thereto) constitute the entire agreement by and among the parties hereto and thereto and there are no agreements or commitments with respect to the subject matter thereof except as expressly set forth herein or therein.

 

7.10  This Agreement may only be amended by written agreement executed by each of the parties hereto.

 

[Signatures Appear on Following Page]

 

 

IN WITNESS WHEREOF, the parties have hereunto executed this Agreement on the day and year first above written.

 

 

 

	SELLER:
	Draker, Inc.
	By:
	Name:
	Title:

 

	Draker Laboratories, Inc.
	By:
	Name:
	Title:

 

	BUYER:
	BlueD Acquisition Corporation
	By:
	Name:
	Title:

 

10

 

 

Exhibit 99.1

 

 

 

BLUENRGY ACQUIRES DRAKER SOLAR ENERGY MONITORING PLATFORM

 

Fort Lauderdale, September 16, 2015 – BlueNRGY Group Limited (OTC:CBDEF) (“BlueNRGY”) today announced that it has completed the acquisition of the monitoring platform and certain other assets of Draker, Inc. (“Draker”), the leading independent provider of monitoring and data management services to the U.S. solar industry. BlueNRGY will continue to offer best-in-class systems and services to measure and optimize the performance of solar power generation facilities under the Draker name.

 

BlueNRGY Executive Chairman William Morro said, “The Draker transaction is an important step in positioning BlueNRGY as the leading independent provider of monitoring and data management services serving the renewable energy sector globally. We continue to redefine the standards in this industry and raise the bar for our competitors. Consistent with Draker’s philosophy, we are committed to ensuring consistent and reliable deliverables across large portfolios and to our customers on all five continents we currently serve. “

 

The closing of the transaction ensures that all Draker customers can continue to receive an uninterrupted flow of data from systems previously installed by Draker. Everett McGinley, Draker’s Executive Chairman, stated, “On behalf of the entire Draker team, I want to thank our customers for their trust and loyalty in recent weeks while Draker’s sale process was pending. I’m proud to say that uninterrupted service has been and will continue to be available for all of our customers and 100% of customer monitoring data has been and will be securely retained and accessible to customers. Moreover, our highly trained staff members will continue to service the Draker customers going forward. These are the core strengths that made Draker a leader in North America and will carry over to the international operations of BlueNRGY.”

 

Draker currently receives and compiles operating performance and other pertinent data at more than 2GW of solar PV installations at approximately 2,000 sites in the Americas, Japan and Europe. Its system monitoring and control solutions have gained wide acceptance for their reliability, durability and accuracy and the capacity of PV solar assets managed with Draker’s systems has more than doubled in the last three years. Draker installations range in size from tens of kW to more than 30MW and clients include individual system owners, developers, asset managers and utilities.

 

The combined BlueNRGY and Draker monitoring and data analytics business for the U.S. will operate from Draker’s current location in Burlington, VT and the substantial majority of the Draker employees located there will be employed by BlueNRGY.

 

 Emmanuel Cotrel, Senior Vice President of BlueNRGY and founder of its leading-edge data monitoring and analytics business, said, “BlueNRGY was created to offer massively scalable, high-impact information solutions to allow customers to efficiently assess and optimize the performance of complex geographically-dispersed renewable energy systems. This transaction will accelerate the availability of those capabilities to Draker customers and will allow them to quickly benefit from significant software upgrades and additional services. It will also allow BlueNRGY to build on Draker’s rich legacy of proprietary firmware, patents and engineering technology that enables data loggers, sensors and field equipment to reliably and accurately acquire data from customer power plants and deliver it to our state-of-the art data analytics engine.”

 

About BlueNRGY Group Limited

 

Established in 1989, BlueNRGY Group Limited is a provider of engineered systems and solutions for distributed power generation and climate control/energy efficiency. As a global leader in delivery of best-in-class technology, BlueNRGY has designed and installed more than 230 MW of solar and wind systems for commercial and utility applications. BlueNRGY’s Parmac division is a leader in climate control systems in the Australian markets it serves. BlueNRGY also provides performance monitoring and life-cycle maintenance and support for systems installed by others. The Company’s data analytics are deployed worldwide and are relied upon by system owners, investment portfolio managers, utilities, government bodies and component manufacturers to deliver mission-critical information.

 

With regional headquarters in Sydney, Fort Lauderdale and London, BlueNRGY serves customers operating in Australia, Asia, North America and Europe.

 

For more information, visit www.BlueNRGY.com.

 

Caution Concerning Forward-Looking Statements

 

This news release contains ‘forward-looking statements.’ Such forward-looking statements can be identified by, amongst other things, the use of forward-looking language, such as the words ‘plan’, ‘believe’, ‘expect’, ‘anticipate’, ‘intend’, ‘estimate’, ‘project’, ‘may’, ‘would’, ‘could’, ‘should’, ‘seeks’, or ‘scheduled to’, or other similar words, or the negative of these terms, or other variations of these terms or comparable language, or by discussion of strategy or intentions.

 

Such forward-looking statements are subject to various risks including, but not limited to, those set forth in BlueNRGY’s most recent annual report filed on Form 20-F and other filings with the U.S. Securities and Exchange Commission and involve assumptions, estimates, and uncertainties that reflect current internal projections, expectations or beliefs. Such statements include expectations about servicing of current Draker customers and utilizing Draker’s technology in conjunction with BlueNRGY’s technology. There can be no assurance that such statements will prove to be accurate, and actual results and future events could differ materially from those anticipated in such statements. All forward-looking statements contained in this news release are qualified in their entirety by these cautionary statements and the risk factors described above. Furthermore, all such statements are made as of the date of this release, and BlueNRGY assumes no obligation to update or revise these statements unless otherwise required by law.

 

Contact: investor@bluenrgy.com

 

 

 

Exhibit 99.2

 

  

BLUENRGY RETAINS PCG ADVISORY GROUP FOR INVESTOR AND CORPORATE RELATIONS

 FORT LAUDERDALE, FL – October 13, 2015) - BlueNRGY Group Limited (OTC: CBDEF) ("BlueNRGY"), a global renewable energy company providing solutions to optimize renewable energy infrastructure investments, today announced that the Company has renewed the appointment of PCG Advisory Group (PCG) as its Investor and Corporate Relations Agency of Record. PCG Advisory will serve the Company for capital markets advisory services, strategic and tactical digital and social media communications and public relations advisory services.

BlueNRGY Executive Chairman William Morro said, "We look forward to continuing the relationship with Jeff Ramson and the team at PCG Advisory as we strive to position BlueNRGY as the leading independent provider of asset management technology and services for the renewable energy sector globally. PCG’s senior team has strong contacts across key U.S. capital markets and extensive experience in relevant public and social media."

Jeff Ramson, founder and CEO of PCG Advisory, stated, “BlueNRGY has created proprietary system design, performance monitoring and management solutions to maximize profitability for any solar PV or wind installation. BlueNRGY has a great story that needs to be heard by an extensive stakeholder audience.”

About BlueNRGY

Innovation is the spark behind BlueNRGY. We integrate the best available technology from leading and proven component suppliers to match the site-specific needs of our clients. Our engineers and solutions specialists are constantly evaluating new technologies and products and our proprietary monitoring platform gives us and our customers empirical perspective on actual performance that few other solutions providers can offer. Hence, our system and solutions designs, maintenance protocols and upgrades incorporate proven innovations of the technology leaders in our industry so that our customers can minimize energy bills and maximize the financial benefits of their generation and storage systems.

BLUENRGY PROVIDES CLIENTS WITH:

·

Design and installation of systems for generating electricity from solar and other renewable sources

·

A variety of solutions to improve energy efficiency and reduce consumption, including energy storage and climate control systems

·

Proprietary, best-in-class data management tools to maximize system performance over life-cycles up to 25 years

·

System servicing, upgrades and support to ensure consistent and reliable results throughout system lives.

 

 

About PCG Advisory 

Founded in 2008, PCG Advisory Group is dedicated to the delivery of top tier capital markets advisory services, strategic and tactical digital and social media communications and cutting edge media and public relations for public and privately held companies. The team at PCG has extensive experience with life sciences and healthcare, high technology, metals and mining, financial services and emerging growth companies from around the globe.

PCG’s Capital Markets Advisory Services include overall investor strategy development to increase and leverage investor awareness, visibility and credibility.

PCG’s Social and Digital Media services include leveraging social and professional digital media sites to effectively and accurately communicate client stories. As an aggregation, distribution, and engagement platform, PCG reaches thousands of individual, retail and institutional investors using proprietary techniques, search engine optimization, online marketing, website development and our proprietary and extensive distribution network. PCG’s Media and Public Relations services are a strategic and integral component of all Corporate Communications. The media and public relations team works with print, broadcast, online news sites and bloggers to communicate the best client story at the right time. PCG also has the capabilities to assist a company during a merger, acquisition or crisis.

Communicating the client’s story accurately and effectively is tantamount to maximizing exposure to its current and potential stakeholders.

Caution Concerning Forward-Looking Statements

This news release contains 'forward-looking statements.' Such forward-looking statements can be identified by, amongst other things, the use of forward-looking language, such as the words 'plan,' 'believe,' 'expect,' 'anticipate,' 'intend,' 'estimate,' 'project,' 'may,' 'would,' 'could,' 'should', 'seeks,' or 'scheduled to,' or other similar words, or the negative of these terms, or other variations of these terms or comparable language, or by discussion of strategy or intentions.

Such forward-looking statements are subject to various risks including, but not limited to, those set forth in BlueNRGY's most recent annual report filed on Form 20-F and other filings with the U.S. Securities and Exchange Commission and involve assumptions, estimates, and uncertainties that reflect current internal projections, expectations or beliefs, including without limitation the competitive position of BlueNRGY and its service offerings targeting asset management of power generation facilities All forward-looking statements contained in this news release are qualified in their entirety by these cautionary statements and the risk factors described above. Furthermore, all such statements are made as of the date of this release, and BlueNRGY assumes no obligation to update or revise these statements unless otherwise required by law.

CONTACTS:

Corporate:

Contact: investor@bluenrgy.com

PCG Advisory Group:

Investors: Stephanie Prince

Managing Director

Phone: 646-762-4518

Media: Sean Leous

Managing Director

Phone: 646-863-8998

 

Exhibit 99.3

 

 

BLUENRGY GROUP LIMITED ANNOUNCES COMMON SHARE CONSOLIDATION

FY 2015 Annual Report Filing To Be Delayed

Sydney, November 10, 2015 – BlueNRGY Group Limited (OTCBB:CBDEE) (“BlueNRGY” or "Company"), a global provider of engineered systems and solutions for distributed power generation and climate control/energy efficiency, today announced the final consolidation ratio for its common shares as 1:80. As previously reported in its March 19, 2015 filing with the U.S. Securities and Exchange Commission (the “SEC”), the Company has already received shareholder approval for a share consolidation between 1:80 and 1:150. The share consolidation is among the remaining steps required for BlueNRGY to relist on the Nasdaq Capital Market.

 

As reported on its Report on Form 6-K filed today, BlueNRGY had 462,792,384 ordinary shares outstanding. This share number reflects the recent conversion of 2,484 convertible preferred shares representing approximately 81% of the outstanding convertible share value. Assuming no additional issuances of ordinary shares prior to the share consolidation, the Company expects to have approximately 5.8 million ordinary shares outstanding when it is completed. The exact number is not determinable until the share consolidation is effected and the extinguishment of fractional shares is assessed. The consolidation will be effected as soon as the necessary Financial Industry Regulatory Authority (“FINRA”) and other U.S. regulatory approvals are received, which BlueNRGY expects will be immediately following the filing of its Annual Report on Form 20-F for its fiscal year ending June 30, 2015.

 

The Company’s shares are currently trading on the U.S. over-the-counter market under the ticker “CBDEE.” FINRA granted approval for trading of the Company’s shares to resume on September 9, 2015 under the ticker CBDEF and subsequently changed by FINRA to CBDEE. BlueNRGY was formerly known as CBD Energy Limited and changed its name to BlueNRGY Group Limited following the January 2015 acquisition of BlueNRGY LLC, a provider of performance monitoring and data analytics for the renewable energy sector.

 

William Morro, BlueNRGY’s Executive Chairman and CEO stated, “Maintaining access to trading on a respected national exchange is fundamental to our growth plans and the realization of value and liquidity for all of our stakeholders. This share consolidation is the next step towards demonstrating that the Company again complies with NASDAQ’s listing requirements. Meeting the expectations of investors is a priority for BlueNRGY and we are very pleased to be making progress toward qualifying our securities to trade on the NASDAQ Capital Market.”

 

“Regaining compliance with SEC reporting requirements and the resumption of trading of our ordinary shares in September were major milestones for our Company. It was achieved through many months of hard work by BlueNRGY’s finance team to restate the financial statements for our fiscal years ending June 30, 2012 and 2013 and accurately reflect them in the FY 2014 annual report filed in June. With that task accomplished, our staff and independent auditor have only recently been able to focus attention on the complex accounting associated with the Company’s reorganization that was effected in January 2015. Consequently, the completion of our FY 2015 audit and the filing of our FY 2015 annual report will be delayed for several weeks past the statutory filing date of November 2, 2015. However, our entire management team is committed to rectifying this delinquency as quickly as possible, maintaining full compliance with SEC reporting requirements and satisfying investor information needs going forward,” concluded Mr. Morro.

 

When the Company’s FY 2015 annual report is filed, the stock ticker is expected to return to CBDEF. BlueNRGY’s application for relisting on the NASDAQ Capital Market remains pending and its acceptance is subject to the Company meeting all of the NASDAQ listing standards, including the requirement that its ordinary share price be at or above $4.00 per share following the share consolidation.

 

 

 

 

About BlueNRGY Group Limited,

Established in 1989, BlueNRGY Group Limited is a leader in engineered solutions for the management of distributed power generation and climate control/energy efficiency systems. It’s data analytics and life-cycle maintenance and support capabilities are deployed worldwide and are relied upon by system owners, financial institutions, utilities, government bodies and component manufacturers to deliver mission-critical information. As a global leader in delivery of best-in-class technology, BlueNRGY has designed and installed more than 230 MW of solar and wind systems for commercial and utility applications. The company’s Parmac division is a leader in energy-efficient climate control systems in its served Australian markets.

With regional headquarters in Sydney and Fort Lauderdale and personnel in France, BlueNRGY is positioned to serve its customers operating in Australia/Asia, North America and Europe. For more information, visit www.BlueNRGY.com.

Caution Concerning Forward-Looking Statements

This news release contains 'forward-looking statements. Such forward-looking statements can be identified by, amongst other things, the use of forward-looking language, such as the words 'plan', 'believe', 'expect', 'anticipate', 'intend', 'estimate', 'project', 'may', 'would', 'could', 'should', 'seeks', or 'scheduled to', or other similar words, or the negative of these terms, or other variations of these terms or comparable language, or by discussion of strategy or intentions.

Such forward-looking statements are subject to various risks, as well as those set forth in the Company's most recent annual report on Form 20-F and other filings with the SEC, and involve assumptions, estimates, and uncertainties that reflect current internal projections, expectations or beliefs. Such statements include expectations about relisting on the NASDAQ Capital Market, maintaining the Company’s listing status, achieving and maintaining a minimum share price that meets the listing requirements of the NASDAQ Capital Market, meeting investor expectations and realizing returns for investors and achieving growth or growth plans. There can be no assurance that such statements will prove to be accurate, and actual results and future events could differ materially from those anticipated in such statements. All forward-looking statements contained in this news release are qualified in their entirety by these cautionary statements and the risk factors described above. Furthermore, all such statements are made as of the date of this release, and BlueNRGY Group Limited assumes no obligation to update or revise these statements unless otherwise required by law.

CONTACTS:

Corporate:

investor@bluenrgy.com

 

PCG Advisory Group:

Investors: Stephanie Prince

Managing Director

Phone: 646-762-4518

 

Media: Sean Leous

Managing Director

Phone: 646-863-8998