Attached files
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8-K - Solar Thin Films, Inc. | v168485_8k.htm |
SECOND
AMENDMENT
To
MASTER
SETTLEMENT AGREEMENT
Among
SOLAR
THIN FILMS, INC.
KRAFT
ELEKTRONIKAI ZRT
ZOLTAN
KISS
AMELIO
SOLAR, INC
And
RNEWABLE
ENERGY SOLUTIONS, INC.
Dated
as of December 4, 2009
-and-
SECOND
AMENDMENT TO AUGUST 12, 2008 STOCK PURCHASE AGREEMENT
among
SOLAR
THIN FILMS, INC.
ZOLTAN
KISS
MARLA
GABRIELLA KISS
And
GREGORY
JOSEPH KISS
Dated
as of December 22, 2008
-and-
TERMINATION
OF STRATEGIC ALLIANCE AND CROSS LICENSE AGREEMENT
by
and among
SOLAR
THIN FILMS, INC.
KRAFT
ELEKTRONIKAI ZRT
And
AMELIO
SOLAR, INC.
Dated
as of August 12, 2008
1
THIS SECOND AMENDMENT (“Second
Amendment”) is made and entered into
and effective as of this 4th day of
December 2009 to amend certain of the terms of a MASTER SETTLEMENT AGREEMENT,
dated as of August 12, 2008 (the “Master Settlement
Agreement”) and a STOCK
PURCHASE AGREEMENT, dated as of August 12, 2008 (as amended December 22,
2008) (the “Purchase
Agreement”, and to terminate a Strategic Alliance and Cross
License Agreement dated as of August 12, 2008, (Collectively the
“Prior Agreements”). This
Amendment is made and entered into by and among SOLAR THIN FILMS, INC., a
Delaware corporation (the “Company” or “STF”); KRAFT ELEKTRONKAI ZRT, a
corporation organized and existing under the laws of Hungary (“Kraft”);
AMELIO SOLAR, INC., a
Delaware corporation (“Amelio”);
RENEWABLE ENERGY SOLUTIONS,
INC., a Delaware corporation (“RESI”);
and ZOLTAN KISS, an individual (“Z.
Kiss”), MARLA GABRIELLA KISS, an individual (“M. KISS”) and GREGORY JOSEPH KISS, an
individual (“G.
Kiss”).
Z. Kiss, M. Kiss and G. Kiss are
hereinafter sometimes referred to as the “Sellers” and the
Company, Kraft, Amelio, RESI and the Sellers are hereinafter sometimes
individually referred to as a “Party”
and collectively as the “Parties.”
Except as otherwise defined herein, capitalized terms and terms in quotes shall
have the same meaning as are defined in the Settlement Agreement and the
Purchase Agreement. Due to the merger of RESI and Amelio as of
January 2009 all references to RESI shall be deemed to refer to
Amelio.
1. Amendment
to Definitions.
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(a)
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The
definition of “Outside
Closing Date” as defined in Article I of the Settlement Agreement
is hereby amended and superseded in its entirety by the
following:
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“Outside Closing Date. The term
“Outside Closing Date” shall mean 5:00 p.m. (Eastern Standard Time) on December
4, 2009.”
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(b)
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The
definition of “RESI
Debt” as defined in Article I of the Settlement Agreement is hereby
amended and superseded in its entirety by the
following:
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“RESI
Debt. The term “RESI Debt” means the net amount of indebtedness, not to
exceed $831,863 owed by RESI to the Company or its Affiliates as of the Closing
Date; together with accrued interest thereon”.
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(c)
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The
definition of “ RESI Debt Settlement Deliverables” as defined in Article I
of the Settlement Agreement is hereby amended and superseded in its
entirety by the following:
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“RESI Debt
Settlement Deliverables. The term “RESI Debt Settlement
Deliverables” means the documents specified in Section 2.4 to be
delivered by Z. Kiss, M. Kiss, and G. Kiss and Amelio on or before December 31,
2009 and at or following the Closing Date.”
2. Amendment
to RESI Debt Settlement Payment and Deliverables
Section
2.4 of the Master Settlement Agreement is hereby deleted in its entirety, and
the following Section 2.4 is substituted in lieu thereof.
“2.4 RESI Debt
Settlement Payment and Deliverables. The parties
hereto acknowledge that as of the date of this Agreement, RESI is currently
indebted to the Company or its Subsidiary in the principal amount of $
831,863.00 in respect to the RESI Debt. Such RESI Debt shall be fully and
finally satisfied as follows:
2
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(a)
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Z.
Kiss hereby surrenders all of his STF shares (2, 000,000 post-split) to
STF.
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(b)
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An
option is hereby granted to STF or its assignee/ designee to buy all or
any part of the STF shares held by both M. Kiss (1,018,400 post-split) and
G. Kiss (810,000 post-split) for a period of one year from the date of
execution of this Amendment Agreement or one year from the date that all
stock certificates held by G. Kiss and M. Kiss have been received by the
escrow agent (see 2.4(d)), whichever is later. The exercise of such option
may be had in whole or in part and in multiple transactions provided that
no single transaction shall involve less than 100,000 shares while either
M. Kiss or G. Kiss holds more than 100,000 shares. For a period
of nine (9) months, that option will be at a fixed price of $0.30 (30
cents) per share. Any shares not purchased by STF or its
assignee/ designee at the end of said 9 month term may be purchased for
the higher of 30 cents per share or 75% of the then public trading price
of STF shares as of the close of the market or the day before payment is
made for an additional period of three (3) months. Any shares not
purchased during this one year period shall become free trading shares and
the restrictive legend thereupon shall be
removed
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(c)
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Any
and all STF stock certificates held by Z. Kiss shall be delivered to STF
upon the closing of this Amendment Agreement, signed in
blank, accompanied by stock powers signed in blank,
dated as of the closing date and with signatures of the record
holder duly guaranteed by a national bank or member firm of the New York
Stock Exchange.
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(d)
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Any
and all stock certificates held by G. Kiss and M. Kiss shall be delivered
within thirty (30) days of this Amendment Agreement to Steven H. Gifis,
Attorney in Fact, as escrow agent, accompanied by stock powers signed in
blank and with signatures of the record holders duly guaranteed by a
national bank or member firm of the New York Stock Exchange. Said
certificates shall be held in escrow by Steven H. Gifis. until purchased
by STF or its assignee/designee or for a period of one year after the
execution date of this Amendment Agreement. Upon receipt of such
certificates, Steven H. Gifis, shall certify his receipt of same, and his
agreement to serve as escrow agent for one year, in writing, to STF at its
below noted corporate address. Said certification of Steven H. Gifis shall
be an essential term and condition of this Second
Amendment.
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(e)
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Z.
Kiss, G. Kiss and M. Kiss hereby personally guarantee and warrant that ,
as of the closing date, their respective shares in STF are free and clear
of any and all liens, mortgages, adverse claims, charges, security
agreements or interests, or other liens or encumbrances of any kind or
description and G. Kiss and M. Kiss further warrant that they will take no
actions to cause or permit the creation of any lien or encumbrance to be
placed on or against their STF stock for the entire one year option
period.
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(f)
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Any
rights, options or warrants held by Sellers or any of them to acquire
common stock of the company and unexercised as of the closing date,
whether vested, unvested, exercisable or otherwise, are hereby cancelled
and rendered null and void, ab
initio
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3
3.0
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Prior
Agreements
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(a)
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The
Strategic Alliance and
Cross-License Agreement by and among Solar Thin Films, Inc., Kraft
Elektronikai ZRT and Amelio Solar Inc., dated as of August 12, 2008, is
hereby cancelled.
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(b)
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Any
provisions in the Master
Settlement Agreement among Solar Thin Films, Inc., Kraft
Elektronikai ZRT, Zoltan Kiss, Amelio Solar, Inc., and Renewable Energy
Solutions, Inc., dated as of August 12, 2008, inconsistent with or
superseded by this Amendment Agreement are hereby rendered and declared to
be null, void and of no further effect as of the effective date of this
Amended Agreement.
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(c)
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The
Stock Purchase
Agreement among Solar Thin Films, Inc., Zoltan Kiss, Marla
Gabriella Kiss and Gregory Joseph Kiss, dated August 12, 2008,
and the Amendment to same dated December 22, 2008 are hereby rendered and
declared to be null, void and of no further force or effect as of the
effective date of this Amendment Agreement except that the
portion of said Agreement canceling all indebtedness owed to Robert M.
Rubin and the Rubin Family Irrevocable Trust by Nanergy Solar, Inc. and
the surrender of any and all equity interest of the Rubin Family
Irrevocable Trust in Nanergy remain fully effective , valid and
binding.
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(d)
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All
other, different and prior agreements between and among the parties
including but not limited to the Cooperative R & D Contract dated
December 19, 2006 between RESI and STF, the Marketing and Turn-on Contract
between RESI and STF dated January 30, 2007 and the Consulting Agreement
between Z. Kiss and STF have either expired or are hereby rendered and
declared to be null, void and of no further force and effect as of the
effective date of this Amendment
Agreement.
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4.0
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Consent
to Jurisdiction. Each of the Parties do hereby
irrevocably submits to the exclusive jurisdiction of (a) the Supreme Court
of the State of New York sitting in New York County, and (b) the United
States District Court for the Southern District of New York, for the
purposes of any suit, action or other proceeding arising out of this
Agreement. Each of the Parties irrevocably consent to service
of process out of such courts in any action or proceeding by the mailing
of copies thereof by registered or certified mail, postage prepaid, or by
recognized overnight courier or delivery service, to the Parties at their
respective addresses set forth herein. Each of the Parties irrevocably
waives any objection which it may now or hereafter have to the laying of
venue of any of the aforesaid actions or proceedings arising out of or in
connection with this Agreement brought in the courts referred to above and
hereby further irrevocably waives and agrees, to the full extent permitted
by Applicable Law, not to plead or claim in any such court that any such
action or proceeding brought in any such court has been brought in any
inconvenient forum.
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4.1
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Governing Law.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York applicable to agreements made and
to be performed entirely within the State of New York, without regard to
the conflicts of law principles of such
state.
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5.0
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Severability. If any provision
of this Agreement or the application of any such provision to any Person
or circumstance shall be held invalid, illegal or unenforceable in any
respect by a court of competent jurisdiction, such invalidity, illegality
or unenforceability shall not affect any other provision hereof and the
Parties hereto shall negotiate in good faith to modify this Agreement, so
as to effect the original intent of the Parties as closely as possible in
a mutually acceptable manner in order that the transactions contemplated
hereby may be consummated as originally
contemplated.
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4
6.0
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Waiver. Waiver of any term
or condition of this Agreement by any Party shall only be effective if in
a writing signed by the Party against whom such waiver is asserted. Any
such waiver shall not be construed as a waiver of any subsequent breach or
failure of the same term or condition, or a waiver of any other term of
this Agreement. No failure or delay by any Party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege.
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7.0
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Notices. All
notices and other communications given under this Agreement shall be in
writing and shall be deemed duly given (a) on the date of
delivery, if delivered personally, (b) on the date of transmission, if
sent via facsimile transmission to the facsimile number given below, and
telephonic or written confirmation of receipt is obtained promptly after
completion of transmission, (c) the Business Day after the date of
delivery to a reputable and recognized next-day express courier service,
or (d) three (3) Business Days after (or, in the case of a notice or
communication sent overseas, ten (10) Business Days after) being mailed by
registered or certified mail (return receipt requested), postage prepaid,
to the Parties at the following addresses ( or at such other address for a
party as shall be specified by like
notice):
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If
to STF, to:
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Solar
Thin Films, Inc.
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116
John Street, Suite# 1120
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New
York, NY 10038
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Attn:
Gary Maitland, Esq.
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Vice
President &
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General
Counsel
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Tel:
(212) 629-4970
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Fax:
(212) 268-0544
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Email:Gary.Maitland@solarthinfilms.com
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With
a required copy to:
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Hodgon
Russ LLP
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1540
Broadway
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New
York, New York 10036
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Attention: Stephen
A. Weiss, Esq.
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Tel:
(212) 751-4300
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Facsimile:
(212) 751-0928
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Email:
sweiss@hodgonruss.com
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If
to Amelio , to:
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Amelio
Solar, Inc.
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200
Ludlow Drive, Suite C
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Ewing,
NJ 08638
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Attention:
Zoltan J. Kiss, CEO
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Tel:
(609) 434-0600
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Facsimile:
(609) 434-0602
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Email:
zjkts@aol.com
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With
a required copy to:
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Day
Pitney LLP
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7
Times Square Tower
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New
York, New York 10036
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Attention:
Sabino (Rod) Rodriguez, III
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5
If
to Z. Kiss, G. Kiss or M. Kiss to:
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Steven
H. Gifis, Attorney In Fact
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2705
Main Street
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Lawrence,
NJ 08648
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Tel:
609-937-0484
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Fax:
609-434-0602
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Email:
shg68@aol.com
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IN WITNESS WHEREOF, the
Parties have caused this Amendment to be duly executed as of the date first
written above.
AMELIO
SOLAR, INC. (for itself and RESI)
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By:
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/s/ Zoltan J.
Kiss
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Name: Zoltan
J. Kiss
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Title:
Chief Executive Officer
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/s/ Zoltan J.
Kiss
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ZOLTAN
J. KISS
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/s/ Gregory Joseph
Kiss
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GREGORY
JOSEPH KISS
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/s/ Marla Gabriella
Kiss
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MARLA
GABRIELLA KISS
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SOLAR
THIN FILMS, INC.
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By:
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/s/ Robert M.
Rubin
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Name:
Robert M. Rubin
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Title:
Chief Executive Officer
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KRAFT
ELEKTRONKAI ZRT
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By:
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/s/ Robert M.
Rubin
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Name:
Robert M. Rubin
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Title:
Chairman
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/s/ Robert M.
Rubin
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ROBERT
M. RUBIN
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THE
RUBIN FAMILY IRREVOCABLE STOCK TRUST
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/s/ Margery
Rubin
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By:
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Margery
Rubin, Trustee
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6