BLSP Blue Sphere Corporation (CE)

RISK FACTORS

Investing in our Securities involves a high degree of risk. You should carefully consider the following risk factors before deciding whether to invest in the Company. If any of the events discussed in the risk factors below occur, our business, financial condition, results of operations or prospects could be materially and adversely affected. In such case, the value and marketability of our Securities could decline. Additional risks and uncertainties that we do not presently know or that we currently deem immaterial may also impair our business, financial condition, operating results and prospects.

Risks Relating to Financial Position and Need for Additional Capital

Our independent auditors’ report states that there is substantial doubt that we will be able to continue as a going concern.

Our independent registered public accounting firm, Brightman Almagor Zohar & Co., a member firm of Deloitte Touche Tohmatsu Limited, state in their audit report, dated February 14, 2017, that our recurring losses from operations raise substantial doubt about our ability to continue as a going concern. There is a risk that we will continue to incur expenses without generating significant revenue into the future. Our source of funds to date has been the sale of our common stock and warrants, debt financing, development fees and disbursements from our projects in Italy. Because we cannot ensure that any of our projects currently in development will ever become operational or that we will be able to generate any significant revenue from our operating projects, obtaining new sources of equity or debt financing will be difficult.

We have a limited operating history which makes it difficult to evaluate our business and prospects.

The Company has a limited operating history upon which you can base an evaluation of its business and prospects. Our facility in North Carolina commenced commercial operations on or about November 18, 2016, and our facility in Rhode Island commenced commercial operations on or about June 23, 2017. In December 2015, we acquired four biogas plants in Italy pursuant to the Italy Projects Agreement (as defined below). On June 29, 2017, we entered into share purchase agreements to purchase two operating plants for the production of electricity from vegetal oil located in Udine, Italy and Cantu, Italy, and anticipate closing both acquisitions during the third quarter of 2017. We can provide no assurance that we will successfully acquire such plants. We have also entered into nonbinding letters of intent for the acquisition or development of other projects, but there is no assurance that we will successfully acquire or develop such projects. Accordingly, our business is subject to substantial risks, uncertainties and expenses that are difficult to evaluate. Our ability to generate revenue and become and remain profitable will depend on, among other things:

There can be no assurance that our projects will generate sufficient revenue or that we will have adequate working capital to meet our obligations as they become due. Readers should consider the risks and difficulties frequently encountered by companies like ours, particularly in rapidly evolving markets. We cannot be certain that our business strategy will be successful or that we will successfully address these risks. In the event that we do not successfully address these risks, our business, prospects, financial condition, and results of operations could be materially and adversely affected.

We have a history of losses and can provide no assurance of our future operating results.

As of June 30, 2017, we had working capital deficit of $3,727,000 and stockholders’ equity of $6,481,000. As of December 31, 2015, and 2016, we had working capital deficit of $7,505,000 and $9,669,000, respectively, and stockholders’ deficit of $3,486,000 and $2,224,000, respectively. For the six months ended June 30, 2017, we earned net income of $4,095,000. For the years ended September 30, 2015 and December 31, 2016, we incurred net losses of $7,462,000 and $1,801,000, respectively. For the three months ended December 31, 2015, we incurred net losses of $1,288,000. As of June 30, 2017, and December 31, 2016, we had an aggregate accumulated deficit of $42,398,000 and 46,493,000, respectively. There is a substantial risk that we will incur additional substantial operating losses for the foreseeable future, and we may never achieve or maintain profitability. We anticipate that our expenses will increase as we continue to implement our project development and construction plan and expand our general and administrative operations. As a result, our projects will need to generate significant revenues in order to achieve and maintain profitability. We may not be able to generate these revenues or achieve profitability in the future. Our failure to achieve or maintain profitability could negatively impact the value of our Common Stock.

Any delay in, or failure to, accomplish our acquisition, financing and development plans could adversely affect the ability of our projects to generate revenues and become profitable.

Because of the numerous uncertainties associated with the acquisition, financing, and development of our projects, we are unable to predict the timing of when we will become profitable, if ever. No assurances can be given about if we will close acquisitions of additional biogas plants in Italy, the Netherlands, the United States, the United Kingdom or Israel, or if we will be able to continue to develop a pipeline of projects. We may fail to satisfy the conditions in our acquisition, financing and development agreements, and project construction may not be completed on the schedule or within the budget that we intend, or at all. The foregoing could materially and adversely affect the ability of our projects to generate revenue and become profitable. Even if we do achieve profitability, we may be unable to sustain or increase our profitability in the future.

We will require additional funding, and our future access to capital is uncertain. Insufficient capital may limit our ability to pursue our projects.

All of our current and future projects will require significant amounts of financing from us and/or our partners. We also may seek additional capital due to favorable market conditions or strategic considerations, even if we believe we have sufficient funds for our current or future operating plans. There can be no assurance that additional funds will be available on acceptable terms or at all. We may be required to pursue sources of additional capital through various means, including debt or equity financings. Future financings through equity financings are likely to be dilutive to existing stockholders. Newly issued securities may include preferences, voting rights, warrants or other derivative securities, which may have additional dilutive effects to existing stockholders. Further, we may incur substantial costs to obtain additional funding, including investment banking fees, legal fees, accounting fees, printing and distribution expenses and other costs. We may also be required to recognize non-cash expenses in connection with certain securities we issue, such as convertible notes and warrants, which will adversely impact our financial condition. Our ability to obtain additional funding may be impaired by general market conditions and/or our financial condition, which could impact the availability or cost of future financings. If the amount of capital we are able to raise from financing activities, together with our projects’ future revenues from operations, if any, is not sufficient to satisfy our capital needs, we may not be able to pursue our projects and our business, financial condition and results of operations may be materially and adversely affected.

We have incurred substantial indebtedness.

As of June 30, 2017, we had indebtedness of approximately $13,730,000. Our level of indebtedness increases the possibility that we may not have sufficient cash to pay, when due, the principal, interest or other amounts due in respect of such indebtedness. Our level of indebtedness, combined with other financial obligations and contractual commitments, could:

We may incur additional indebtedness in the future, including through the issuance of convertible notes. If we incur a substantial amount of additional indebtedness, the related risks that we face could become more significant. Additionally, the terms of any future debt that we incur may impose requirements or restrictions that further affect our financial and operating flexibility.

Risks Relating to Business and Industry

Project construction and development requires significant outlays of capital and is subject to numerous risks.

The construction and development of our projects involves numerous risks. We are required to outlay significant capital for preliminary engineering, permitting, legal, and other expenses before we can determine whether a project is feasible or economically attractive. In order to successfully construct and develop our projects, we need to negotiate satisfactory engineering, procurement and construction agreements and feedstock supply and power purchase agreements, receive all required governmental permits and approvals, obtain financing, and timely implement construction and development. Successful completion of a particular project may be adversely affected by numerous factors, including: (i) failure or delay in obtaining required government permits and approvals with acceptable conditions; (ii) unavailability of financing; (iii) uncertainties relating to land costs for projects; (iv) engineering problems; (v) construction delays and contractor performance shortfalls; (vi) work stoppages; (vii) cost over-runs; (viii) failure of equipment and materials supply; (ix) adverse weather conditions; and (x) environmental and geological conditions.

Our power purchase agreements, which we expect to be the primary source of future revenue for our projects, require us to meet certain milestones and other performance criteria.

Our power purchase agreements typically require us to meet certain milestones and other performance criteria, including the commencement of a project’s commercial operations by a certain date. Our failure to meet these milestones and other criteria, including minimum quantities once we have achieved commercial operations, may result in termination of these contracts, in which case we would lose any future cash flow from the relevant project and may be required to pay fees and penalties to our counterparty. We cannot assure you that we will be able to perform our obligations under such contracts or that we will have sufficient funds to pay any fees or penalties thereunder. In the past, our projects have been subject to fees and penalties under the Amended and Restated Renewable Energy Purchase Agreement, dated October 12, 2012 and amended on April 25, 2013, January 31, 2014, January 29, 2015 and September 30, 2016, by and between OEC and Duke Energy Carolinas, LLC (as amended, the “Duke PPA”), and the Power Purchase Agreement, dated May 26, 2011 and amended on April 11, 2013, December 9, 2013, January 9, 2015 and May 27, 2016, by and between OERI and The Narragansett Electric Company d/b/a National Grid (as amended, the “National Grid PPA”) to extend certain milestones. The Duke PPA and National Grid PPA required us to commence commercial operations of the North Carolina Facility and the Rhode Island Facility, respectively, by December 31, 2015. Because commercial operations of the North Carolina Facility were not commenced within 60 days of December 31, 2015, OEC was required to pay $500,000 of liquidated damages to Duke Energy pursuant to the Duke PPA during the first quarter of 2016; York Renewable Energy Partners LLC (“York”), our joint venture partner in the North Carolina and Rhode Island projects, was responsible for contributing these funds to OEC. Because commercial operations of the Rhode Island Facility were not commenced by December 31, 2015, OERI paid an additional “Development Period Security” payment of $22,500 pursuant to the National Grid PPA; York was responsible for contributing these funds to OERI. On May 27, 2016, National Grid agreed to modify the date to commence commercial operations to June 30, 2017. As an incentive and evidence of good faith to achieve commercial operation, OERI posted additional collateral in the amount of $22,500, such funds having been contributed to OERI by York. Although York was responsible for these amounts, we are heavily dependent on the Duke PPA and National Grid PPA as the expected primary source of future revenue for our North Carolina and Rhode Island projects, respectively.

We are heavily dependent on fixed price power purchase agreements as the expected primary source of revenue for our projects.

We have entered into fixed price power purchase agreements with respect to our current projects. Currently, we are heavily dependent on the Duke PPA, National Grid PPA and SPVs PPA as the expected primary source of future revenue for our North Carolina Facility, Rhode Island Facility and SPV Facilities, respectively. A material decrease in the output to these purchasers, a material adverse change in the terms of the purchase and sale of energy by these purchasers, or a material adverse change in the financial condition of these purchasers could significantly reduce the revenues of our projects and reduce our earnings.

Our business model depends on performance by third parties under contractual arrangements.

Our businesses depend on third parties to, among other things, own and/or operate our projects, purchase energy produced by our projects, and supply and deliver the goods and services necessary for the construction and operation of our projects. Specifically, the design, development and delivery of the North Carolina Facility and the Rhode Island Facility is performed by Auspark LLC, an affiliate of Austep, and the operation of our North Carolina Facility, are performed by Austep USA Inc., an affiliate of Austep. Assuming that the BULA becomes effective, whereby Austep will transfer all of its United States operations and, accordingly, the agreements relating to the operation of our North Carolina Facility and Rhode Island Facility, Andion will become our contractual partner at the North Carolina Facility and the Rhode Island Facility. In addition, La Fenice is presently operating and supervising the SPV Facilities pursuant to the Interim Operation Agreement, and we anticipate entering into a long-term agreement with a new operator in the near future. If we are unable to enter into a long-term agreement with a new operator in the near future on terms as favorable to us as the former Plant EBITDA Agreements, our financial results could be adversely impacted. For more information concerning the termination of our former Plant EBITDA Agreements, see the subsection entitled “Change in Operator in Italy and Transfer of North Carolina and Rhode Island Project Agreements” in the “Prospectus Summary” section of this prospectus.

The viability of our projects depends significantly upon the performance of these third parties in accordance with long-term contracts. If these third parties cannot or will not perform their contractual obligations, whether due to their financial condition, force majeure events, changes in laws or regulations, or otherwise, we may not be able to secure alternate arrangements on substantially the same terms or at all for the goods and services provided under such contracts. In addition, some of the owners and operators of our projects may be smaller companies that are more likely to experience financial and operational difficulties than relatively larger, well-established companies, which could result in interruptions or delays in the operation of our projects. Any of the foregoing could have a material adverse effect on our business, financial condition and results of operations.

Austep is in the process of liquidation/restructuring, and we can provide no assurances that the Company’s ongoing efforts to mitigate the impact and maintain continuity of performance at our affected facilities will be successful, or that it will not have a material effect on our business, financial condition and results of operations.

On June 20, 2017, Austep, S.p.A. was put in voluntary liquidation by shareholders’ resolution pursuant to Article 2484 of the Italian Civil Code. On June 30, 2017, Austep filed a petition in the Bankruptcy Court of Milan (the “Milan Court”) for a creditors’ settlement procedure pursuant to Article 161, paragraph VI of the Italian Bankruptcy Law, seeking permission to submit a restructuring plan to the court contemplating a partial continuity of its operations within one hundred and twenty (120) days, which will then need to be approved by a majority of Austep’s creditors and by the court. On June 29, 2017, Austep entered into a Business Unit Lease Agreement with Andion S.r.l (the “BULA”). providing for, among other things, the transfer of its entire United States operations and, accordingly, the agreements relating to the operation of the North Carolina Facility and the Rhode Island Facility; specifically, the NC Turnkey Agreement, NC O&M Agreement and RI Turnkey Agreement. The SPV Facilities were not transferred under the BULA. All information stated above was obtained by the Company from the Official Records of the Companies’ Register in Italy. If the BULA does not become effective or if Austep’s restructuring is unsuccessful, it could have an adverse impact on the operations and financial results of the North Carolina Facility and the Rhode Island Facility.

The SPV Facilities in Italy

In response to the liquidation/restructuring of Austep and the subsequent shut-down of the SPV Facilities by its personnel, on July 14, 2017 the Company notified Austep’s liquidator that it had taken over direct management and supervision of the SPV Facilities, and thereafter on July 18, 2017, the Company terminated all four Plant EBITDA Agreements. Notwithstanding the foregoing, the SPV Facilities are currently operating, the Company has put in place a new operator to perform interim operations, and the Company is receiving bids to enter into definitive agreements for long-term operations of the SPV Facilities from other operators. The Company believes that the termination of the Plant EBITDA agreements and the engagement of a new long-term operator will result in the SPV Facilities being operated under terms that are more advantageous to the Company, which the Company believes will improve profitability, and thus that there will ultimately be no material negative impact resulting from this change in operating partner. However, we can make no assurances that the Company will be successful in entering into any such definitive agreements with a new operator, or that it will be successful in negotiating terms and conditions more favorable to the Company than the terms of the Plant EBITDA Agreements. If the interim operator is unable to operate the SPV facilities as profitably as Austep, if the engines at the SPV facilities are shut down or do not timely achieve full generation, or if we are unable to enter into a long-term agreement with a new operator in the near future on terms as favorable to us as the former Plant EBITDA Agreements, it could have an adverse impact on the operations and financial results of the SPVs.

The North Carolina Facility and The Rhode Island Facility

Presently, the NC Turnkey Agreement, NC O&M Agreement and RI Turnkey Agreement are validly in force, and the parties continue to develop, operate, maintain, and supervise the North Carolina Facility and the Rhode Island Facility in accordance with the terms of such agreements. The BULA will become effective upon execution by all parties, and is subject to finalization of negotiations with unions regarding all employees who will not be transferred with the BULA. If and when the BULA becomes effective, we anticipate that the BULA will become effective, and that Andion will continue to develop, operate, maintain, and supervise the North Carolina Facility and the Rhode Island Facility pursuant to the NC Turnkey Agreement, NC O&M Agreement and RI Turnkey Agreement, as applicable, for the foreseeable future. However, we can make no assurances that the BULA will become effective, that the NC Turnkey Agreement, NC O&M Agreement and RI Turnkey Agreement will be transferred and performed by Andion, or that such transfer will ultimately be a viable long-term solution. If the BULA does not become effective or if Andion cannot assume or perform the NC Turnkey Agreement, NC O&M Agreement and RI Turnkey Agreement as effectively as Austep USA or Auspark LLC, as applicable, it could have an adverse impact on the operations and financial results of the North Carolina Facility and the Rhode Island Facility.

For more information concerning the foregoing, see the subsection entitled “Change in Operator in Italy and Transfer of North Carolina and Rhode Island Project Agreements” in the “Prospectus Summary” section of this prospectus.

Any of the foregoing matters could have a material effect on our business, financial condition and results of operations.

We are a minority owner in our North Carolina and Rhode Island projects.

We are the owner of 25% of the North Carolina project and 22.75% of the Rhode Island project through certain joint ventures, and therefore are minority owners of these projects. The partnerships have contracted for the design, construction and operation of the North Carolina Facility and for the design and construction of the Rhode Island Facility. Our share of any net earnings (losses) generated by the North Carolina and Rhode Island projects is earned in accordance with our ownership of these projects. See the section of this prospectus entitled “Description of Business” for definitions and further information. As minority owners in the North Carolina and Rhode Island projects, we do not have full authority to control or make decisions concerning the development, contracting, ultimate operations of or sale of these projects. In addition, our right to receive distributions from each project is subject to certain priorities in favor of York, including, among other things, with respect to distributions from the North Carolina project and distributions upon a liquidation event for the Rhode Island project, York’s right to receive repayment its unrecovered capital contributions to each project, plus an annual rate of return of nine percent (9%) on such unrecovered capital contributions. Any of the foregoing could have a material adverse effect on our business, financial condition and results of operations.

The SPV Financing Agreement is an off-balance sheet arrangement that is secured by the assets of the SPVs.

The SPVs, Banca IMI S.p.A. (“the SPVs’ lender”) and Intesa San Paolo S.p.A. are party to a certain €22,080,000 Financing Agreement, dated February 25, 2013 (the “SPV Financing Agreement”). As of June 30, 2017, €16,823,626 was outstanding under the SPV Financing Agreement. Because our former Plant EBITDA Agreements between the SPVs and Austep, whereby Austep operated, maintained and supervised each biogas plant, prevented us from exercising a controlling influence over operating policies of the SPVs, we applied the equity method of accounting for the investments in the SPVs and the amounts owed under the SPV Financing Agreement are not reflected on our consolidated balance sheet. However, if we were to apply another method of accounting we could be required to consolidate the SPVs and the associated debt at that time, which could negatively affect our financial condition. On July 18, 2017, we terminated the Plant EBITDA Agreements and Austep is no longer operating the SPV Facilities. It is uncertain at this time whether the new long-term agreements currently being negotiated will require us to apply another method of accounting, because the accounting treatment will be dependent upon the terms of the definitive long-tern agreement. For more information concerning the termination of the Plant EBITDA Agreements, see the subsection entitled “Change in Operator in Italy and Transfer of North Carolina and Rhode Island Project Agreements” in the “Prospectus Summary” section of this prospectus.

In addition, amounts outstanding under the SPV Financing Agreement are secured by the assets of the SPVs. If the SPVs were to default under the SPV Financing Agreement, and the SPVs’ lender were to foreclose on the secured assets, this could have a material effect on our business, financial condition and results of operations.

We may not be able to obtain feedstock or other inputs at acceptable prices, which could increase our operating costs significantly and harm our financial condition and results of operations.

We believe we have all definitive agreements needed to supply all feedstock needed for operation of our current projects, including an Organic Waste Delivery Agreement, dated October 13, 2016, between OERI and Renewable Organics Management LLC, for the supply of feedstock upon commencement of operations at our Rhode Island project. Although we and our third party operators can obtain certain project inputs pursuant to fixed price arrangements, we and they are vulnerable to the availability and price fluctuations of certain raw materials and utilities, such as feedstock and electricity. Our and our third party operators’ ability to operate our projects is dependent upon the availability of feedstock and utilities at reasonable prices. Market conditions can impact the availability and price of these inputs, and our and our third party operators’ suppliers may be unable to deliver our requirements for these inputs at acceptable prices or at all. During periods when availability of these inputs decreases or their prices increase, we or our third party operators may incur significant increases in operating costs without being able to increase the selling price of our projects’ energy output under fixed price power purchase agreements. This could have a material adverse effect on our financial condition and results of operations.

Our operations in foreign markets could cause us to incur additional costs and risks associated with doing business internationally.

Our operations in markets outside the United States subject us to additional costs and risks, including:

Our failure to manage the risks associated with international operations could limit the future growth of our business and adversely affect our business, financial condition and results of operations. We may be required to make a substantial financial investment and expend significant management efforts in connection with our international operations.

We conduct our operations in Israel, and therefore our results may be adversely affected by political, economic and military instability in Israel and its region.

Although our principal executive office is in the United States, a substantial part of our business and management is based in Israel and some of our officers, employees, consultants and directors are residents of Israel. Therefore, our business, financial condition and results of operations could be adversely affected by political, economic and military instability in Israel. Since the establishment of the State of Israel in 1948, a number of armed conflicts have taken place between Israel and its Arab neighbors. Any hostilities involving Israel or the interruption or curtailment of trade within Israel or between Israel and its trading partners could adversely affect our operations and could make it more difficult for us to raise capital.

Operations in the developing world could cause us to incur additional costs and risks associated with doing business in developing markets.

We are seeking to operate in the developing world (such as, e.g., countries in Eastern Europe), which would make us vulnerable to political, economic and social instability in such areas. Many areas of the developing world have experienced political, economic and social uncertainty in recent years, including an economic crisis characterized in some cases by increased inflation, high domestic interest rates, negative economic growth, reduced consumer purchasing power and high unemployment. Currently, many of the countries in the developing world where we have been or may be pursuing projects have been pursuing economic stabilization policies, including the encouragement of foreign trade and investment and other reforms, but there is no guarantee these policies will be successful or stay in place. Political, economic and social instability in these countries may have an adverse effect on our business, financial condition and results of operations.

Acquisition, financing, construction and development of new projects and project expansions may not commence as anticipated or at all.

Our strategy is to continue to expand in the future, including through acquisition of additional projects. From time to time we enter into nonbinding letters of intent for projects that we are evaluating. However, until the negotiations are finalized and the parties have executed a definitive agreement, there can be no assurance that we will be able to enter into any development or acquisition transaction, on the terms in the applicable letter of intent or at all, or any other similar arrangements.

The acquisition, financing, construction and development of new projects involves numerous risks, including:

In addition, new projects have no operating history and may employ recently developed technology and equipment. A new project may be unable to fund principal and interest payments under its debt service obligations or may operate at a loss. In certain situations, if a project fails to achieve commercial operation, at certain levels or at all, termination rights in the agreements governing the project financing may be triggered, rendering all of the project’s debt immediately due and payable. As a result, the project may be rendered insolvent and we may lose our interest in the project.

Some of our projects require a relatively long development and/or construction cycle, and are subject to regulatory, planning and market changes, all of which can affect our ability to finish the projects.

Some of our projects may require a relatively long development and or construction cycle. These long periods of development can subject us to certain regulatory, municipal planning and financial market changes after having invested capital into the development phases of the projects. These changes could have an adverse effect on our ability to finish such projects.

Changes in climate conditions could materially affect our business and prospects.

Significant changes in weather patterns and volatility could have a positive or negative influence on our existing business and our prospects for growth. Such changes may cause episodic events (such as floods or storms) that are difficult to predict or prepare for, or longer-term trends (such as droughts or sea-level rise). These or other meteorological changes could lead to increased operating costs, capital expenses, disruptions in facility operations or supply chains, changes in waste generation and interruptions in waste deliveries, and changes in energy pricing, among other effects.

We may face intense competition and may not be able to successfully compete.

There are a number of other companies operating in the renewable energy and waste-to-energy markets. These include service or equipment providers, consultants, managers, buyers and/or investors. In contrast to the standard market approach in these markets, we seek to provide a one-stop shop, turn-key solution to project owners.

We may not have the resources to compete with our existing competitors or with any new competitors. Most of our competitors have significantly greater personnel, financial and managerial resources than we have, and we may fail to maintain or expand our business. Moreover, as the demand for renewable energy increases, new companies may enter the market, and the influx of added competition will pose an increased risk to us. Increased competition could harm our business, prospects, financial condition and results of operations.

We rely on key personnel, and if we are unable to retain or hire qualified personnel, we may not be able to maintain or expand our business.

The development of our business will continue to place a significant strain on our limited personnel, management, and other resources. Our future success depends upon the continued services of our executive officers and the engagement of key employees and contractors who have critical industry experience and relationships that we will rely on to implement our business plan. The loss of the services of any of our officers or the lack of availability of other skilled personnel would negatively impact our ability to maintain or expand our business, which could adversely affect our business, prospects, financial condition and results of operations. In order to support our projected growth, we will be required to effectively recruit, hire, train and retain additional qualified management personnel. Our inability to attract and retain the necessary personnel could have a material adverse effect on us. We have no “key man” insurance on any of our key employees.

In the past we have experienced material weaknesses in our internal control over financial reporting, which caused us to restate certain financials in 2016. If we fail to establish and maintain a system of disclosure controls and procedures and an effective system of internal control over financial reporting, we may not be able to accurately and timely disclose information about us and our financial results or prevent fraud. Any inability to accurately and timely disclose information and financial results could harm our business and reputation and cause the value of our Securities to decline.

A system of disclosure controls and procedures is necessary to ensure that information required to be disclosed by us in the reports that we file under the Exchange Act is recorded, processed, summarized and reported, within the time specified in the SEC’s rules and forms. Effective internal control over financial reporting is necessary for us to provide reliable financial reports and prevent fraud. If we cannot disclose required information or provide reliable financial reports, we may not be able to manage our business as effectively as we would if an effective control environment existed, and our business and reputation with investors may be harmed. Due to lack of segregation of duties, limited resources, and lack of a formal audit committee and financial expert on our Board, we concluded that our internal controls over financial reporting were not effective as of December 31, 2016. We have taken certain steps to address these deficiencies, but we continue to determine how best to change our current system and implement a more effective system. There can be no assurance that implementation of any changes will be completed in a timely manner or that they will be adequate once implemented.

As reported in our Annual Report on Form 10-K for the period ended December 31, 2016, our management concluded that our internal control over financial reporting was not effective as of December 31, 2016 in ensuring that (i) information required to be disclosed by us in the reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and (ii) information required to be disclosed by us in the reports that we file or submit under the Exchange Act is accumulated and communicated to our management, including our principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure. As a result, we were required to restate certain financials in 2016.

During 2016, we established an audit committee comprised of only disinterested directors, recruited a seasoned Chief Financial Officer, and began implementing and evaluating new internal controls over financial reporting and disclosure controls and procedures. Although management is still evaluating the design of these new controls and procedures, we believe that our improved processes and procedures will assist in the remediation of our material weaknesses. Once placed in operation for a sufficient period, we will subject these controls and procedures to appropriate tests in order to determine whether they are operating effectively. Management, with oversight from the audit committee, is committed to the remediation of known material weaknesses as expeditiously as possible. If we have continued material weaknesses in our internal financial reporting, our financial condition could be impaired or we may have to restate our financials, which could cause us to expend additional funds and would have a material impact on our ability to generate profits and on the success of our business.

Volatility in foreign exchange currency rates could adversely affect our financial condition and results of operations.

We have significant exposure to revenues, expenses and certain asset and liability balances denominated in Euros. In addition, we conduct transactions in various currencies, which increases our exposure to fluctuations in foreign currency exchange rates relative to the U.S. Dollar. Fluctuations in the exchange rates of the Euro relative to the U.S. Dollar can significantly affect our operating results and equity earnings. Our operating and equity earnings are adversely affected when the U.S. Dollar strengthens relative to other currencies and are positively affected when the U.S. Dollar weakens. In the future, a larger portion of our international revenue may be denominated in foreign currencies, which will subject us to additional risks associated with fluctuations in those foreign currencies. In addition, we may be unable to successfully hedge against any such fluctuations.

If our strategy is unsuccessful, we will not be profitable and our stockholders could lose their investment.

We do not believe there is a track record for companies pursuing our specific strategy, and there is no guarantee that our strategy will be successful or profitable. If our strategy is unsuccessful and our projects do not generate revenue or profit, the value of our Securities could decrease and our stockholders could lose their investments.

We are and may become subject to litigation claims or suits, government investigations, and other proceedings that may result in adverse outcomes.

We are currently party to the Barkats Litigation, in which the New York Court has issued a Temporary Restraining Order in favor of JS Barkats PLLC, prohibiting us and Mr. Shlomo Palas, our Chief Executive Officer, from “transferring or dissipating [our] assets … to the extent of $652,000”. We are also currently party to the Prassas Litigation, in which a complaint was filed against us alleging breach of contract and further (a) seeking unpaid fees in the amount of USD $1,601,317.67 plus interest, (b) seeking issuance of an order of prejudgment attachment and garnishment on our bank accounts, other property held by us and all payments owed to us from third parties, (c) seeking an injunction restraining us from transferring funds or property outside of the court’s jurisdiction or alternatively that the court appoint a receiver to manage, operate, control and take possession of our assets, and (d) seeking a declaration that Prassas Capital, LLC has been granted a contractual right to purchase 53,847 shares of Common Stock at a price of $6.50 per share (after giving effect to the Reverse Stock Split). For more details on the Barkats Litigation and the Prassas Litigation, see the section entitled “Litigation”. In addition, at any given time we may be or may become subject to other litigation claims or suits, government investigations, and other proceedings involving competition, project operations, local regulatory matters, health and safety, hazardous materials usage tax, labor and employment, contract disputes, or other matters. The Barkats Litigation, Prassas Litigation, and any such claims, suits, government investigations, and proceedings are inherently uncertain and their results cannot be predicted with certainty. Regardless of the outcome, such proceedings can have an adverse impact on us because of legal costs, diversion of management resources, and other factors. Determining reserves for our current and pending litigation is a complex, fact-intensive process that requires significant judgment. Defense of any such proceedings could be costly and involve significant time and attention of our management and other resources, may result in monetary liabilities or penalties, and may require us to change our business in an adverse manner. It is possible that a resolution of any such proceedings, including the Barkats Litigation or the Prassas Litigation, could adversely affect our business, consolidated financial position, results of operations, or cash flows in a particular period or the industry as a whole.

These proceedings could also result in reputational harm and/or regulatory sanctions, decrees or orders preventing us from engaging in certain business activity or practices. Any of these consequences could adversely affect our business and results of operations.

Risks Relating to the Regulation of Projects

We may be unable to obtain, modify, or maintain the regulatory permits, approvals and consents required to construct and operate our projects.

In order to construct and operate our projects, we must obtain and modify numerous environmental and other regulatory permits and certifications from federal, state and local agencies and authorities, including air permits and wastewater discharge permits. A number of these permits and certifications must be obtained prior to the start of construction of a project, while other permits are required to be obtained at or prior to the time of first commercial operation or within prescribed time frames following commencement of commercial operations. Any failure to obtain or modify the necessary environmental and other regulatory permits and certifications on a timely basis could delay the construction or commercial operation of our projects. In addition, once a permit or certification has been issued for a project, we must take steps to comply with each permit’s or certification’s conditions, which can include conditions as to timely construction and commencement of the project. Failure to comply with these conditions could result in revocation or suspension of the permit or certification and/or the imposition of penalties or other consequences. We also may need to modify existing permits to reflect changes in project design or requirements, which could trigger a legal or regulatory review under a standard that may be more stringent than when the permits were originally granted.

Obtaining and modifying necessary permits and certifications is a time-consuming and expensive process, and we may not be able to obtain or modify them on a timely basis or at all. In the event that we fail to obtain or modify all necessary permits and certifications, we may be forced to delay construction or operation of a project or abandon the project altogether, which could have a material adverse effect on our business, financial condition and results of operations. In addition, we may be required to make capital expenditures on an ongoing basis to comply with increasingly stringent federal, state, provincial and local environmental, health and safety laws, regulations and permits.

We are subject to environmental laws and potential exposure to environmental liabilities.

Because of the nature of our projects, we are subject to various federal, state and local environmental laws and regulations that govern our operations, including the import, handling and disposal of non-hazardous and hazardous wastes, and emissions and discharges into the environment. Failure to comply with these laws and regulations could result in costs for corrective action, penalties or the imposition of other liabilities. We also are subject to laws and regulations that impose liability and clean-up responsibility for releases of hazardous substances into the environment. Under certain of these laws and regulations, a current or previous owner or operator of property may be liable for the costs of remediating the release or spill of hazardous substances or petroleum products on or from its property, without regard to whether the owner or operator knew of, or caused, the contamination, and such owner or operator may incur liability to third parties impacted by such contamination. Failure to comply with applicable environmental laws and regulations and the imposition of environmental liability could have a material adverse effect on our business, financial condition and results of operations.

Changes in applicable laws and regulations can adversely affect our business, financial condition and results of operations.

There has been substantial debate recently in the United States and abroad in the context of environmental and energy policies affecting climate change, the outcome of which could have a positive or negative influence on our existing business and our prospects for growing our business. Governmental entities that regulate our operations or projects may adopt new laws, regulations or policies, or amend or change the interpretation of existing laws, regulations or policies, at any time. We have no control over these changes, which could potentially have an adverse effect on our business, prospects, financial condition and results of operations.

Our business and reputation could be adversely affected if we or third parties with whom we have a relationship fail to comply with United States or foreign anti-corruption laws or regulations.

Our business and operations may be conducted in countries where corruption has historically penetrated the economy to a greater extent than in the United States. It is our policy to comply, and to require our local partners and those with whom we do business to comply, with all applicable anti-corruption laws, such as the U.S. Foreign Corrupt Practices Act, and with applicable local laws of the foreign countries in which we operate. Our business and reputation may be adversely affected if we or our local partners fail to comply with such laws.

Risk Relating to our Securities and the Offering

Future sales of our Common Stock by existing stockholders could cause the price of our Securities to decline.

If our existing stockholders sell substantial amounts of our Common Stock in the public market, or if there is a perception that our stockholders might sell shares of our Common Stock, the price of our Securities could decrease significantly. If the holders of our convertible notes or warrants elect to convert or exercise, or if we issue additional convertible notes or warrants, the conversion or exercise of these securities into shares of our Common Stock could also decrease the price of our Securities. A decline in the price of our Common Stock might impede our ability to raise capital through the issuance of additional shares of our Common Stock or other securities.

We may allocate net proceeds from this Offering in ways which differ from our estimates based on our current plans and assumptions discussed in the section entitled “Use of Proceeds” and with which you may not agree.

The allocation of net proceeds of the Offering set forth in the section entitled “Use of Proceeds” represents our estimates based upon our current plans and assumptions regarding industry and general economic conditions, our projects’ future revenues and expenditures. The amounts and timing of our actual expenditures will depend on numerous factors, including success of our management’s initiatives, cash generated by our operations and project acquisition and development. We may find it necessary or advisable to use portions of the proceeds from the Offering for other purposes. Circumstances that may give rise to a change in the use of proceeds and the alternate purposes for which the proceeds may be used are discussed in the section entitled “Use of Proceeds”. You may not have an opportunity to evaluate the information on which we base our decisions on how to use the proceeds and may not agree with the decisions made. Additional information is available in the section entitled “Use of Proceeds”.

The market price for our Securities may be particularly volatile given our status as a relatively unknown company, with a limited operating history and lack of profits which could lead to wide fluctuations in our share price. You may be unable to sell your Securities at or above your purchase price, which may result in substantial losses to you.

Our stock price may be particularly volatile when compared to the shares of larger, more established companies that trade on a national securities exchange and have large public floats. The volatility in our share price will be attributable to a number of factors. First, our Common Stock is more sporadically and thinly traded compared to the shares of such larger, more established companies. As a consequence of this limited liquidity, the trading of relatively small quantities of shares by our stockholders may disproportionately influence the price of those shares in either direction. The price for our shares could decline precipitously in the event that a large number of shares of our Common Stock are sold on the market without commensurate demand. Secondly, we are a speculative or “risky” investment due to our limited operating history and lack of profits to date, and uncertainty of future market acceptance for our potential products. As a consequence of this enhanced risk, more risk-adverse investors may, under the fear of losing all or most of their investment in the event of negative news or lack of progress, be more inclined to sell their shares on the market more quickly and at greater discounts than would be the case with the stock of a larger, more established company that trades on a national securities exchange and has a large public float. Many of these factors are beyond our control and may decrease the market price of our Securities, regardless of our operating performance. We cannot make any predictions or projections as to what the prevailing market price for our Securities will be at any time. Moreover, the OTCQB is not a liquid market in contrast to the major stock exchanges. We cannot assure you as to the liquidity or the future market prices of our Securities if a market does develop. If a more active market for our Securities develops, the price of our Securities could be highly volatile. The low and/or volatile price of our Securities may make it difficult for holders to sell our Securities at an acceptable price to them or at all. If an active market for our Securities does not develop, the fair market value of our Securities could be materially adversely affected.

In addition, because there is currently a low price for our Common Stock, many brokerage and clearing firms are not willing to effect transactions in our Common Stock or accept our shares for deposit in an account. Many lending institutions will not permit the use of low priced common stock as collateral for loans.

Holders of our Common Stock may incur dilution. Our certificate of incorporation authorizes the issuance of shares of “blank check” preferred stock.

We may issue additional shares of Common Stock or securities convertible into or exchangeable for shares of our Common Stock in order to raise additional capital, which could dilute existing stockholders’ percentage ownership of the Company. Our Board has the authority to cause us to issue additional shares of Common Stock and to determine the rights, preferences and privileges of such shares, without consent of any of our stockholders. Consequently, the stockholders may experience more dilution in their ownership of shares of our Common Stock in the future.

We are authorized to issue up to 1,750,000,000 shares of common stock, par value $0.001 per share, and up to 500,000,000 shares of preferred stock, $0.001 par value, in one or more series and with such rights, preferences and privileges as our Board may determine. Shares of our “blank check” preferred stock provide the Board with broad authority to determine voting, dividend, conversion, and other rights of such shares. As of August 14, 2017, there were 3,682,762 shares of our Common Stock issued and outstanding, no shares of our preferred stock issued and outstanding, up to 300,218 shares of Common Stock reserved and available for issuance under the 2016 Incentive Plan, 5,992 shares of our Common Stock are outstanding and issuable upon the exercise of options granted under our 2010 Incentive Plan, up to 2,085,942 shares of our Common Stock issuable upon exercise of our currently outstanding warrants, up to 225,000 shares of our Common Stock that would be issuable upon exercise of the Debenture Refinance Warrants (we do not, however, anticipate a closing of the Debenture Refinance), up to 255,102 shares of our Common Stock issuable upon exercise of our currently outstanding convertible notes, and up to 53,847 shares of our Common Stock that would be issuable upon exercise of certain warrants that are subject to dispute in the Prassas Litigation. In addition, there were up to 978,091 shares of our Common Stock that will become issuable September 24, 2017 upon full conversion of all of our currently outstanding convertible 2015 Debentures, or in the alternative, upon closing of the Debenture Refinance (which we do not anticipate will happen), up to 1,467,136 shares of our Common Stock that would become issuable upon exercise six-months following issuance of the Convertible Debentures, which will be issued following the closing of this Offering upon certain conditions precedent being met (including repayment of the 2015 Debentures), in both cases, based on a conversion price equal to 80% of the average reported closing price of the Common Stock on the OTCQB Venture Marketplace calculated using the five trading days immediately preceding the date above (in the case of the Convertible Debentures, such formula was assumed because an exercise price is currently indeterminable using the Refinance Price Formula).

Our Board may generally issue common and preferred shares, or convertible securities to purchase those shares, without further approval by our shareholders. Any preferred shares we may issue will have such rights, preferences, privileges and restrictions as may be designated from time-to-time by our Board, including preferential dividend rights, voting rights, conversion rights, redemption rights and liquidation provisions. The issuance of additional securities may cause substantial dilution to our stockholders.

Our Common Stock is a “penny stock”, as defined in the Exchange Act. Trading of our Common Stock may be restricted by the Securities and Exchange Commission’s “penny stock” regulations, which may limit a stockholder’s ability to buy and sell our stock.

Our Common Stock is subject to the regulations of the SEC promulgated under the Exchange Act that require additional disclosure for trading in penny stocks. The SEC regulations generally define penny stocks to be any equity security that is not listed on a national securities exchange and has a market price of less than $5.00 per share, subject to certain exceptions. Unless an exception is available, those regulations require broker-dealers to (i) approve the customer for the specific penny stock transaction and receive from the customer a written agreement to the transaction; (ii) furnish the customer a disclosure document describing the risks of investing in penny stocks; (iii) disclose to the customer the current market quotation, if any, for the penny stock; and (iv) disclose to the customer the amount of compensation the firm and its broker will receive for the trade. In addition, after executing the sale, a broker-dealer must send to its customer monthly account statements showing the market value of each penny stock held in the customer’s account. These disclosure requirements may have the effect of reducing the level of trading activity, if any, in the secondary market for a stock that becomes subject to the penny stock rules. Consequently, these penny stock rules may adversely affect the ability of broker-dealers and stockholders to trade our Common Stock.

As an issuer of “penny stock,” the safe harbor provided by the federal securities laws relating to forward-looking statements does not apply to the Company.

Although federal securities laws provide a safe harbor for forward-looking statements made by a public company that files reports under the federal securities laws, this safe harbor is not available to issuers of penny stocks. As a result, we will not have the benefit of this safe harbor in the event of a private legal action against us based on a claim that any forward-looking statement in our reports contained a material misstatement of fact or omitted a material fact necessary to make the statement not misleading. Such an action, whether successful or not, could have a material adverse effect on our business.

Since we intend to retain any earnings for development of our business for the foreseeable future, you will likely not receive any dividends for the foreseeable future.

We have never paid dividends or made other cash distributions on our Common Stock. We currently intend to retain our future earnings to support operations and to finance expansion, and therefore we do not anticipate paying any cash dividends on our Common Stock in the foreseeable future. 

There is a limited public market for our Common Stock.

Trading in our Common Stock is conducted on the electronic bulletin board in the over-the-counter market. As a result, a holder of our Common Stock may find it difficult to dispose of or to obtain accurate quotations as to the market value of our Common Stock, and our Common Stock may be less attractive for margin loans, investment by financial institutions, as consideration in future capital raising transactions or for other purposes.

We filed an application to have our Common Stock and Warrants listed on The NASDAQ Capital Market. We can provide no assurance that our Common Stock or Warrants will be listed, and if listed, that our Common Stock and Warrants will continue to meet NASDAQ listing requirements. If we fail to comply with the continuing listing standards of The NASDAQ Capital Market, our securities could be delisted.

On January 20, 2017, we filed an application to have our Common Stock and Warrants listed on The NASDAQ Capital Market. Listing of our Common Stock on The NASDAQ Capital Market is a condition to consummation of the Offering. The Pre-Funded Warrants are not and will not be listed on a national securities exchange. We anticipate that our Common Stock and Warrants will be eligible to be listed on The NASDAQ Capital Market, subject to actions which may be required to meet the exchange’s listing requirements. However, we can provide no assurance that our application will be approved, and, if approved, that an active trading market for our Common Stock and Warrants will develop and continue. As a result, you may find it more difficult to purchase and dispose of our Common Stock and Warrants and to obtain accurate quotations as to the value of our Common Stock. For our Common Stock and Warrants to be listed on The NASDAQ Capital Market, we must meet the current NASDAQ Capital Market initial and continued listing requirements. If we were unable to meet these requirements, our Common Stock and Warrants could be delisted from The NASDAQ Capital Market. Our Common Stock could continue to trade on the over-the-counter bulletin board following any delisting from The NASDAQ Capital Market. Any such delisting of our Common Stock and Warrants could have an adverse effect on the market price of, and the efficiency of the trading market for, our Common Stock and Warrants, not only in terms of the number of shares that can be bought and sold at a given price, but also through delays in the timing of transactions and less coverage of us by securities analysts, if any. Also, if in the future we were to determine that we need to seek additional equity capital, it could have an adverse effect on our ability to raise capital in the public or private equity markets.

We completed the Reverse Stock Split in order to meet the initial listing requirements of The NASDAQ Capital Market. However, we cannot assure you that we will be able to comply with the minimum price requirements of The NASDAQ Capital Market.

We completed the Reverse Stock Split in order to achieve the requisite increase in the market price of our Common Stock to be in compliance with the minimum price requirements of The NASDAQ Capital Market. We cannot assure you that the market price of our Common Stock following the Reverse Stock Split will remain at the level required for the period of time required for listing or for continuing compliance with that requirement. It is not uncommon for the market price of a company’s common stock to decline in the period following a reverse stock split. If the market price of our Common Stock declines following the effectuation of a reverse stock split, the percentage decline may be greater than would occur in the absence of a reverse stock split. In any event, other factors unrelated to the number of shares of our Common Stock outstanding, such as negative financial or operational results, could adversely affect the market price of our Common Stock and jeopardize our ability to obtain or maintain The NASDAQ Capital Market’s minimum price requirements. In addition to specific listing and maintenance standards, The NASDAQ Capital Market has broad discretionary authority over the initial and continued listing of securities, which it could exercise with respect to the listing of our Common Stock and Warrants.

Despite completion of the Reverse Stock Split, there can be no assurance that we will be able to comply with other initial or continued listing standards of The NASDAQ Capital Market, and therefore our application may not be accepted for other reasons.

Even if the market price of our Common Stock continues to comply with the minimum bid price requirement following the Reverse Stock Split, we cannot assure you that we will be able to comply with the other standards that we are required to meet in order to achieve or maintain a listing of our Common Stock and Warrants on The NASDAQ Capital Market, and therefore our application may not be accepted for other reasons. The listing of our Common Stock on The NASDAQ Capital Market is a condition to consummation of the Offering. Even if our application is approved, our failure to meet these requirements could result in our Common Stock and Warrants being delisted from The NASDAQ Capital Market, irrespective of our compliance with the minimum bid price requirement.

The Reverse Stock Split may decrease the liquidity of the shares of our Common Stock.

The liquidity of the shares of our Common Stock may be affected adversely by the Reverse Stock Split given the reduced number of shares that are outstanding following the Reverse Stock Split, especially if the market price of our Common Stock does not increase as a result of the Reverse Stock Split.

The market price of our Common Stock resulting from the Reverse Stock Split may not attract new investors, including institutional investors, and may not satisfy the investing requirements of those investors. Consequently, the trading liquidity of our Common Stock may not improve.

Although we believe that a higher market price of our Common Stock may help generate greater or broader investor interest, we cannot assure you that the Reverse Stock Split will result in a share price that will attract new investors.

We are classified as an “emerging growth company” as well as a “smaller reporting company” and we cannot be certain if the reduced disclosure requirements applicable to emerging growth companies and smaller reporting companies will make our Common Stock less attractive to investors.

We are an “emerging growth company,” as defined in the JOBS Act, and we may take advantage of certain exemptions from various reporting requirements that are applicable to other public companies, including, but not limited to, not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved. We cannot predict if investors will find our Common Stock less attractive because we may rely on these exemptions. If some investors find our Common Stock less attractive as a result, there may be a less active trading market for our Common Stock and our stock price may be more volatile.

We have elected to use the extended transition period provided in Section 7(a)(2)(B) of the Securities Act for complying with new or revised accounting standards that have different effective dates for public and private companies until the earlier of the date that we (i) are no longer an emerging growth company or (ii) affirmatively and irrevocably opt out of the extended transition period provided in Section 7(a)(2)(B).

We could remain an “emerging growth company” for up to five years from the last day of our fiscal year in which the first sale of our common equity securities occurred pursuant to an effective registration statement under the Securities Act, or until the earliest of (i) the last day of the first fiscal year in which our annual gross revenues exceed $1 billion, (ii) the date that we become a “large accelerated filer” as defined in Rule 12b-2 under the Exchange Act, which would occur if the market value of our Common Stock that is held by non-affiliates exceeds $700 million as of the last business day of our most recently completed second fiscal quarter, and (iii) the date on which we have issued more than $1 billion in non-convertible debt during the preceding three-year period.

Notwithstanding the above, we are also currently a “smaller reporting company.” Specifically, similar to “emerging growth companies,” “smaller reporting companies” are able to provide simplified executive compensation disclosures in their filings; are exempt from the provisions of Section 404(b) of the Sarbanes-Oxley Act requiring that independent registered public accounting firms provide an attestation report on the effectiveness of internal control over financial reporting; and have certain other decreased disclosure obligations in their SEC filings. Decreased disclosures in our SEC filings due to our status as an “emerging growth company” or “smaller reporting company” may make it harder for investors to analyze our results of operations and financial prospects.