STOCK PURCHASE AGREEMENT among SOLAR THIN FILMS, INC. ZOLTAN KISS GREGORY JOSEPH KISS and MARIA GABRIELLA KISS dated as of August 12, 2008
among
ZOLTAN
KISS
▇▇▇▇▇▇▇
▇▇▇▇▇▇ KISS
and
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
dated
as of August 12, 2008
STOCK
PURCHASE AGREEMENT,
dated
as of August 12, 2008 (the “Agreement”),
by
and among SOLAR
THIN FILMS, INC., a
Delaware corporation (the “Company”),
and
ZOLTAN
KISS,
an
individual (“Z.
Kiss”),
▇▇▇▇▇▇▇
▇▇▇▇▇▇ KISS,
an
individual (“G.
Kiss”),
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
an
individual (“M.
Kiss”),
and
▇▇▇▇▇▇
▇. ▇▇▇▇▇,
an
individual (“Gifis”).
Z.
Kiss, G. Kiss and M. Kiss are hereinafter sometimes individually referred to
as
a “Seller”
and
collectively, as the “Sellers”
and
Gifis is hereinafter sometimes referred to as the “Sellers’
Agent.”
The
Company and any person, firm or corporation designated by the Company on or
prior to the Closing Date to purchase all or a portion of the “Subject
Shares”
(as
hereinafter defined) from the Sellers is hereinafter referred to as the
“Buyer.”
The
Buyer, the Sellers and the Sellers’ Agent are hereinafter sometimes individually
referred to as a “Party”
and
collectively as the “Parties.”
Subject
to the terms and conditions set forth in this Agreement, Buyer desires to
purchase from Sellers, and Sellers desire to sell to the Buyer, an aggregate
of
Eighteen
Million (18,000,000)
shares
(the “Subject
Shares”)
of
common stock, $.01 par value per share of the Company (the “Common
Stock”).
Accordingly,
the Parties hereby agree as follows:
ARTICLE
I
PURCHASE
AND SALE OF THE SHARES
1.1. Purchase
and Sale of the Subject Shares.
(a) Stock
Ownership and Certain Transfers and Sales. As
at the
date of this Agreement (i) Z. Kiss is the record and beneficial owner of
10,951,575 shares of Common Stock of the Company; (ii) G. Kiss is the record
and
beneficial owner of 4,050,000 shares of Common Stock of the Company, and (iii)
M. Kiss is the record and beneficial owner of 5,092,000 shares of Common Stock
of the Company. Prior to the Closing Date, Z. Kiss shall transfer 951,575 shares
of Common Stock of the Company to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ to settle indebtedness owed
by
Z. Kiss to ▇.▇. ▇▇▇▇▇▇ & Associates, L.P. (“▇▇▇▇▇▇”).
In
addition, prior or subsequent to the Closing Date, (A) G. Kiss will undertake
to
sell in prevailing market transactions, an aggregate of 50,000 shares of Company
Common Stock, (B) M. Kiss will undertake to sell in prevailing market
transactions, an aggregate of 92,000 shares of Company Common Stock, and (C)
▇▇▇▇▇▇ ▇▇▇▇▇ will (on behalf of ▇▇▇▇▇▇) undertake to sell in prevailing market
transactions, an aggregate of 500,000 shares of Company Common Stock; which
transfer and all of which sales are agreed to by the Company. As a result of
the
foregoing transfer and sales, on the Closing Date, (x) Z. Kiss shall be the
record and beneficial owner of not less than 10,000,000 shares of Common Stock
of the Company, (y) G. Kiss shall be the owner of not less than 4,000,000 shares
of Common Stock of the Company, and (z) M. Kiss shall be the owner of not less
than 5,000,000 shares of Common Stock of the Company. In addition, Nadja Kiss,
the wife of Z. Kiss is the record and beneficial owner of 1,050,000 shares
of
Common Stock of the Company which shares are not subject to the terms and
conditions of this Agreement.
(b) Sale
of the Subject Shares. On
the
terms and subject to the conditions of this Agreement, at the Closing referred
to in Section 1.5 hereof, each Seller shall sell, convey, assign, transfer
and
deliver, or cause to be sold, transferred or delivered, to the Buyer and/or
pursuant to the “Financing”
hereinafter described, designees of the Buyer, and the Buyer and/or its
designees shall purchase, acquire and accept delivery of, all of the Subject
Shares owned of record or beneficially by such Seller as are set forth below
in
this Section 1.1.
|
Name
of Seller
|
Number
of Subject Shares to be Sold
|
|
|
Z.
Kiss
|
10,000,000
Subject Shares
|
|
|
G.
Kiss
|
4,000,000
Subject Shares
|
|
|
M.
Kiss
|
4,000,000
Subject Shares
|
(c) Ownership
After Sale of the Subject Shares. The
10,000,000 Subject Shares to be sold by Z. Kiss shall constitute 100% of the
issued and outstanding shares of capital stock of the Company that shall be
owned of record and beneficially by Z. Kiss as at the Closing Date. After giving
effect to the sale and purchase of the 4,000,000 Subject Shares to be sold
by G.
Kiss and the 4,000,000 Subject Shares to be sold by M. Kiss, such Parties shall
be the record and beneficially of not more than 50,000 and 1,000,000 shares
of
Company Common Stock, respectively. In addition, 451,575 shares of Company
Common Stock shall be retained by ▇▇▇▇▇▇ ▇▇▇▇▇.
(d) Absence
of Liens. On
the
Closing Date, the Sellers shall deliver to the Buyer all of the 18,000,000
Subject Shares, free and clear of any and all liens, mortgages, adverse claims,
charges, security interests, or other encumbrances whatsoever (collectively,
“Liens”).
(e) Deliveries. To
effect
the transfers contemplated by the Section
1.1,
at the
Closing, each Seller shall deliver or cause to be delivered to the Buyer,
against payment therefor in accordance with Section
1.3
hereof,
stock certificates representing all, and not less than all, the Subject Shares
in the amounts set forth opposite the name of such Seller in Section 1.1(a)
above; in each case, accompanied by stock powers duly executed in blank and
with
the signatures of the record holders guaranteed by a national bank or member
firm of the New York Stock Exchange.
1.2. Cancellation
of Options.
On the
terms and subject to the conditions of this Agreement, at the Closing referred
to in Section 1.5 hereof, each unexercised option, warrant or other right that
any of the Sellers may have to acquire shares of Common Stock of the Company
(each an “Option”),
whether vested, unvested, exercisable or otherwise, shall be cancelled and
rendered null and void, ab initio.
1.3. Payment
for Subject Shares.
(a) As
payment in full for the Subject Shares being sold by the Sellers hereunder
and
payment in full of any consideration payable under Section
1.2
above in
respect of cancelled Options, the Buyer or its designees shall pay, in the
manner set forth in this Section
1.3,
a price
per share equivalent to Forty One and 139/1000 ($0.4139) cents (the
“Per
Share Price”),
or an
aggregate of Seven Million Four Hundred and Fifty Thousand and Two Hundred
($7,450,200) for all of the Subject Shares (the “Purchase
Price”).
Such
Purchase Price, less
the
$434,315 cash portion of the “Settlement
Payment”
referred to in Section 1.4 below (which shall be paid by Z. Kiss), shall be
allocated and payable to each Seller in the pro-rata amounts set forth
below:
|
Name
of Seller
|
Amount
of Purchase Price
|
|
|
Z.
Kiss
|
$3,704,685
|
|
|
G.
Kiss
|
$1,655,600
|
|
|
M.
Kiss
|
$1,655,600
|
2
(b) At
the
Closing, the $7,450,200 Purchase Price, less the $434,315 cash portion of the
Settlement Payment referred to in Section
1.4
below,
shall be paid to each of the Sellers in the amounts specified in Section
1.3(a)
above,
by wire transfer or official certified bank check of immediately available
funds
to one or more bank accounts specified by each Seller in writing at least three
(3) Business Days prior to the Closing Date. As used herein, the term
“Business
Day”
shall
mean any day, other than a Saturday or a Sunday or other day on which banks
in
New York, New York are authorized or required by law to close.
1.4. RESI
Debt and Settlement Payment.
(a) The
Parties hereto acknowledge that Renewable
Energy Solutions, Inc.,
an
Affiliate of Z. Kiss (“RESI”),
is
currently indebted to the Company or its Subsidiary in the amount of $1,331,863
(the “RESI
Debt”).
On
the Closing Date, pursuant to the Strategic
Alliance Agreement
(as that
term is hereinafter defined), the parties thereto have, inter
alia,
agreed
to settle the RESI Debt as at the Closing Date, as follows:
(i) Z.
Kiss
shall pay to the Company (out of the proceeds received by him from the sale
of
his 10,000,000 Subject Shares) the aggregate sum of $434,315 (the “Settlement
Payment”);
(ii) Z.
Kiss
shall cause RESI to transfer to the Company an aggregate number of shares of
CG
Solar, formerly known as Weihai Blue Star Terra Photovoltaic Company, a
corporation organized under the laws of the People’s Republic of China
(“CG
Solar”)
representing five (5%) of the issued and outstanding capital shares of CG Solar,
and having an agreed upon value of $500,000; and
(iii) the
remaining $397,548 would be paid to the Company directly by CG Solar, but shall
be guaranteed as to payment by Amelio.
(b) On
the
Closing Date, each of the Company, RESI, Amelio and Z. Kiss shall execute and
deliver the Strategic Alliance Agreement in the form attached hereto as
Exhibit
A
and made
a part hereof.
1.5. Closing
Date, Time and Place.
(a) Subject
to the terms and conditions hereof, the closing (the “Closing”)
of the
purchase and sale of the Subject Shares shall be held at the offices of ▇▇▇▇▇▇▇
▇▇▇▇, LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, counsel to the Company,
at
10:00 a.m., on the Business Day after the conditions to Closing shall have
been
satisfied or waived (or such other date and time as the Parties may mutually
agree). The date on which the Closing occurs is referred to herein as the
“Closing
Date.”
(b) Subject
to the terms and conditions hereof, at the Closing:
(i) Subject
to Section
1.5(b)(ii),
each
Seller will deliver the certificates representing the Subject Shares owned
by
such Seller being purchased hereunder, accompanied by stock powers or other
instruments of transfer or assignment, dated the Closing Date, and duly endorsed
in blank;
(ii) Each
Seller owning Subject Shares represented by a certificate which has been lost,
stolen or destroyed, shall deliver an affidavit of such Seller stating that
such
certificate has been lost, stolen or destroyed, and such other documentation
(including an indemnity, in form and substance satisfactory to the Company,
against any claim that may be made against the Company with respect to such
certificate) that the Company shall require, and shall deliver an instrument
of
transfer or assignment, dated the Closing date, and duly endorsed in blank,
with
respect to the Subject Shares formerly represented by such lost, stolen or
destroyed certificate;
3
(iii) Each
Option shall be cancelled; and
(c) The
Buyer
will remit or cause to be remitted the Purchase Price less the Settlement
Payment in the manner provided in Section
1.3(b)
above.
1.6. Kiss
Group Releases. Each
of
the Sellers acknowledge and agree that, as a material inducement to cause each
of the Sellers to sell the Subject Shares to the Buyer, Z. Kiss, Amelio and
RESI
have negotiated and entered into the Strategic Alliance Agreement, which shall
become effective as at the Closing Date and consummation of the sale of the
Subject Shares to the Buyer. By reason of the fact that the transactions
contemplated by such Strategic Alliance Agreement and this Agreement are
intended to settle all potential claims and disputes among the Parties and
their
respective Affiliates as at the Closing Date and permits Amelio, RESI and its
Affiliates to engage in business activities that may be competitive with the
business activities of the Company and its Subsidiaries, each of the Sellers
do
hereby agree that, as at the Closing Date, such Sellers, RESI, Amelio and all
of
their respective Affiliates (collectively, the “Kiss
Group”)
shall
jointly and severally irrevocably waive and release the Company and each of
its
Subsidiaries from all claims, causes of action, demands, costs, expenses or
other obligations (collectively, “Claims”)
that
any one or more members of the Kiss Group may individually or collectively
have
as at the Closing Date against the Company and any of its Subsidiaries, whether
in their capacities as shareholders or officers of the Company or as contracting
parties with or consultants to the Company, and shall release the Company and
each of its Subsidiaries from all such Claims, except
only
with respect to (a) the obligations of the Company and its Subsidiaries under
the Strategic Alliance Agreement, and (b) the rights that G. Kiss, M. Kiss
and
Nadja Kiss may have following the Closing Date with respect to the maximum
of
2,555, 000 shares of Company Common Stock that such Persons, solely in their
capacities as stockholders, will retain in the Company following the Closing
Date. On the Closing Date, each of the ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and RESI shall execute
and deliver to the Buyer the general releases in the form of Exhibit
B-1
annexed
hereto and made a part hereof (the “Kiss
Group Releases”).
1.7.
Company
Group Releases. The
Company acknowledges and agrees that, as a material inducement to cause the
Company to enter into this Agreement to purchase the Subject Shares, Z. Kiss,
Amelio and RESI have negotiated and entered into the Strategic Alliance
Agreement. The Company does hereby agree that, as at the Closing Date, the
Company and each of its Subsidiaries (collectively, the “Company
Group”)
shall
jointly and severally irrevocably waive and release the Kiss Group from all
Claims, causes of action, demands, costs, expenses or other obligations
(collectively, “Claims”)
that
any one or more of the Company Group may individually or collectively have
against any member of the Kiss Group as at the Closing Date, and shall release
the Kiss Group from all such Claims, except
only
with respect to (a) the obligations of the Kiss Group under the Strategic
Alliance Agreement and any Exhibits thereto, and (b) the obligations under
the
Lockup Agreements and other Transaction Documents. On the Closing Date, each
of
the Company and its Subsidiaries shall execute and deliver to the Kiss Group
the
general releases in the form of Exhibit
B-2
annexed
hereto and made a part hereof (the “Company
Group Releases”).
1.8.
Expenses.
Each of
the Parties hereto shall pay such Party's Transaction Express in connection
with
this Agreement, other than as a result of the breach hereof by any other party
hereto.
1.9
Termination. This
Agreement may be terminated and the transactions contemplated herein may be
abandoned at any time prior to the Closing:
4
(a) by
mutual
consent of the Sellers (acting together or through the Seller’s Agent
hereinafter described) and the Company;
(b) by
the
Sellers or the Company, if any of the conditions specified in Section
4.4
shall
not have been satisfied by 5:00 P.M. (Eastern Standard Time) on November 30,
2008 (the “Outside
Closing Date”);
provided,
however,
that
(i) such Outside Closing Date may be extended by mutual agreement of the Company
and the Sellers’ Agent (as hereinafter defined), and (ii) if the Company’s
registration statement on Form S-1 has not been declared effective by the
Securities and Exchange Commission by the above November 30, 2008 Outside
Closing Date, if the Sellers’ Agent shall receive reasonable assurances from
Maxim Group LLC or other investment banking firm underwriting securities on
behalf of the Company and the Sellers in the “Financing”,
as
described in Section
4.4(a)(i)
of this
Agreement, that in their judgment such Financing will be consummated, the
Sellers’ Agent shall
extend
the Outside Closing Date to January 31, 2009.
(c) by
the
Company or the Sellers, if the Company shall be unable to obtain by the Outside
Closing Date, a minimum $10,000,000 of “Financing”,
as
hereinafter defined and described in Section
4.4(a)(i)
of this
Agreement and subject at all times to the provisions of Section
4.4(a)(i)
of this
Agreement;
(d) by
the
Company, in the event of the breach of any material representation and warranty
of the Sellers contained herein;
(f) by
the
Sellers, in the event of the breach of any material representation and warranty
of the Company contained herein;
(g) by
either
the Company or by the Sellers upon the failure of the satisfaction of a
condition the obligations of the other Party or Parties to perform all material
obligations and conditions on their part to be performed under this Agreement
on
or before the Closing Date and consummate the transactions contemplated hereby,
all as set forth in Section
4.4
herein,
provided,
however,
that a
Party seeking to so terminate this Agreement pursuant to this Section
1.9 (g)
shall
have made a good faith effort to satisfy any condition precedent on its or
their
part to be performed;
1.10
Rights
of Non-Breaching Party.
(a) A
Party
terminating this Agreement pursuant to this Section shall give written notice
thereof to the other Party hereto, whereupon this Agreement shall terminate
and
the transactions contemplated hereby shall be abandoned without further action
by any Party; provided,
however,
that if
such termination is the result of a breach of this Agreement by the other Party
or Parties, nothing herein shall affect the non-breaching Party’s right to
monetary damages on account of such other Party’s breach.
(b) In
addition to the foregoing, if any member of the Kiss Group fails or refuses
to
perform its agreements and obligations required to be performed by them on
or
before the Closing Date under this Agreement, the Strategic Alliance Agreement
or other Transaction Document, the Parties hereto agree that the Company would
have no adequate remedy at law. Accordingly, the Company or the Buyer may apply
to and obtain such equitable relief, including specific performance of this
Agreement, the Strategic Alliance Agreement or other Transaction Document as
any
court of competent jurisdiction may deem proper and appropriate in the
circumstances.
1.11
Definitions.
Unless
otherwise separately defined herein, all capitalized terms when used in this
Agreement shall have the same meaning as is defined in Article V
hereof.
5
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES RELATING TO
EACH
SELLER AND THE SUBJECT SHARES
Each
Seller, jointly and severally, represents and warrants to Buyer, as
follows:
2.1.
Authorization;
No Conflicts.
(a) Each
Seller has the legal right and capacity to execute and deliver this Agreement,
the “Strategic
Alliance Agreement”
described below, the “Lockup
Agreements”
described below, and each other agreement, document or instrument executed
or to
be executed by such Seller in connection herewith (collectively, the
“Transaction
Documents”),
and
to perform such Seller’s respective obligations hereunder and thereunder. The
execution, delivery and performance of this Agreement and the Transaction
Documents by such Seller have been duly authorized by all necessary action
on
the part of such Seller.
(b) All
of
the Subject Shares shall be delivered to the Buyer free and clear of all
Liens.
(c) There
are
no options, agreements (written or oral) or other rights granted by any of
the
Sellers to any third party to purchase or receive any of the Subject
Shares.
(d) The
execution, delivery and performance of this Agreement and the Transaction
Documents by such Seller does not and will not (i) violate any applicable
statue, law, ordinance, rule or regulation of any governmental authority or
instrumentality, domestic or foreign (“Applicable
Law”),
(ii)
conflict with or violate any order, judgment, injunction, award or decree
(“Binding
Order”)
binding upon such Seller, or (iii) result in the creation or imposition of
any
Lien upon any of the Subject Shares.
2.2.
Execution;
Delivery; Enforceability.
This
Agreement has been, and the Transaction Documents to which any Seller is a
party
will be, duly executed and delivered by such Seller and, when duly executed
and
delivered by the other Parties hereto and the other parties thereto, will
constitute the legal, valid and binding obligations of such Seller, enforceable
against such Seller in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency or other laws affecting
creditor’s rights generally and except for equitable remedies.
2.3.
Ownership
of Company Common Stock. As
at the
date of this Agreement and as at the Closing Date, each of the Sellers are
and
shall be the record and beneficial owner of the number of shares of Common
Stock
of the Company set forth in Section
1.1(a)
of this
Agreement.
2.4.
Title
to the Subject Shares.
Each
Seller has good, valid and marketable title to his or her Subject Shares as
set
forth next to such Seller’s name in Section
1.1(a),
free
and clear of all Liens, except for restrictions on transfer as may be imposed
under federal or state securities laws.
2.4 Brokers.
Except
for the payment of approximately $250,000 to ▇▇▇▇▇▇ ▇▇▇▇▇, or his Affiliate,
none of the Sellers is subject to any valid claim of any broker, investment
banker, finder or other intermediary in connection with the transactions
contemplated by this Agreement or the other Transaction Documents. On the
Closing Date, the Sellers shall pay or cause to be paid the aforesaid $250,000
to ▇▇▇▇▇▇ ▇▇▇▇▇ or his Affiliate.
6
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES RELATING TO THE COMPANY AND
THE
BUYER
The
Company, on behalf of itself and any other Buyer, does hereby represent and
warrant to the Sellers as follows:
3.1.
Organization.
Each of
the Company and any other Buyer of the Subject Shares as at the Closing Date
(a)
is duly organized, validly existing and in good standing under the laws of
its
jurisdiction of formation, (b) has the requisite power and authority to carry
on
its business as presently conducted, and (c) is duly qualified and in good
standing to do business in each jurisdiction in which the conduct or nature
of
its business makes such qualification necessary, except such jurisdictions
where
the failure to be so qualified or in good standing would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect.
3.2. Authorization
and Enforceability.
The
Company and any other Buyer of the Subject Shares as at the Closing Date has
the
requisite power and authority to execute and deliver this Agreement and the
Transaction Documents and to perform its obligations hereunder and thereunder.
The execution, delivery and performance of this Agreement and the Transaction
Documents by the Company and any other Buyer of the Subject Shares as at the
Closing Date has, or at the Closing Date will have, been duly authorized by
all
necessary corporate action on the part of such Buyer. This Agreement has been,
and the Transaction Documents will be, duly executed and delivered by the
Company and, when duly executed and delivered by the other Parties hereto and
thereto, will constitute the legal, valid and binding obligation of the Company,
enforceable against it in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency or other laws affecting
creditor’s rights generally and except for equitable remedies.
3.3.
No
Conflicts; Consents.
(a)
Except as set forth on Schedule
3.3(a),
the
execution, delivery and performance by the Company of this Agreement and the
Transaction Documents do not and will not (i) violate any Applicable Law, (ii)
conflict with or violate any Binding Order binding upon the Company or any
Subsidiary, (iii) conflict with or violate the Certificate of Incorporation
or
Bylaws of the Company or any Subsidiary, (iv) constitute a default in any
material respect, or give rise to a right of termination, cancellation or
acceleration of any right or obligation of the Company or any Subsidiary under
any provision of any agreement, contract or other instrument binding upon the
Company or any Subsidiary, or any license, franchise, permit or other similar
authorization held by the Company, or (v) result in the creation or imposition
of any Lien upon any of the assets of the Company or any
Subsidiary.
(b) Except
as
set forth on Schedule
3.3(b),
the
execution, delivery and performance by the Company of this Agreement and the
Transaction Documents and the consummation by the Company of the transactions
contemplated hereby and thereby do not require any consent, approval, license,
permit, order or authorization (“Consent”)
from,
or filing with, any Federal, state, local or foreign government or any court
of
competent jurisdiction, administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign (a “Governmental
Entity”)
or any
third party, except for (i) compliance with filings and notifications under
applicable Environmental Laws, (ii) any Consent or filing that Buyer is required
to obtain or make, and (iii) Consents and filings which, if not obtained or
made, would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect with respect to the Company.
7
3.4. Capitalization.
(a) The
Company.
The
authorized capital stock of the Company consists of: (i) 150,000,000 shares,
$0.01 par value per share, of Common Stock of which 57,607,601 shares of Common
Stock are issued and outstanding, (ii) 1,200,000 shares, $0.01 par value per
share, of Preferred Stock of which no shares are issued and outstanding, (iii)
1,000,000 shares, $0.01 par value per share, of Series B-1 Preferred Stock
of
which 228,652 shares are issued and outstanding, (iv) 232,500 shares, $0.01
par
value per share, of Series B-3 Preferred Stock of which 47,518 shares are issued
and outstanding, and (v) 1,000,000 shares, $0.01 par value per share, of Series
B-4 Preferred Stock of which no shares are issued and outstanding. Except as
listed on Schedule
3.4(a),
there
are no outstanding warrants, options, agreements, subscriptions, convertible
or
exchangeable securities or other binding commitments pursuant to which the
Company is obligated to issue, deliver or sell, or purchase, redeem or otherwise
acquire any shares of capital stock of the Company.
(b) Subsidiaries.
Schedule
3.4(b)
sets
forth for each Subsidiary the amount of its authorized capital stock,
partnership interests, membership interests or other equity interests, as
applicable, the amount of its outstanding equity interests and the record and
beneficial owners of its outstanding equity interests, and the Company, directly
or through one or more of the other Subsidiaries, has good and valid title
to
such equity interests, free and clear of all Liens, except as set forth on
Schedule
3.4(b).
Except
for its interests in the Subsidiaries and except for the ownership interests
set
forth on Schedule
3.4(b),
the
Company does not own, directly or indirectly, any equity interest in, any Person
and has not entered into any agreement or other legal commitment to purchase
any
equity interest in any Person. All the outstanding equity interests of each
Subsidiary have been duly authorized and validly issued and are fully paid
and
non-assessable. Except as set forth on Schedule
3.4(b),
there
are no outstanding warrants, options, agreements, subscriptions, convertible
or
exchangeable securities or other binding commitments pursuant to which any
Subsidiary is obligated to issue, deliver or sell, or purchase, redeem or
otherwise acquire any equity interests of such Subsidiary.
3.5. Public
Filings.
(a) The
Sellers have access to, or the Company has made available to the Sellers, copies
of all annual and periodic reports, including Form 10K-SB, Form 10Q and Form
8-K
that have been filed by the Company with the Securities and Exchange Commission
(“SEC”)
under
the Securities and Exchange Act of 1934, as amended (the “34
Act”)
and all
proxy statements filed under Rule 14A of the 34 Act since 2005 (collectively,
the “SEC
Filings”).
All
of such SEC Filings are true and correct in all material respects, contain
all
material information required to be set forth therein and do not omit any
information that are required to make the statements contained therein not
misleading.
3.6.
Litigation.
Except
as set forth on Schedule
3.6,
there
are no Binding Orders, lawsuits, proceedings, investigations or claims pending
against the Company or any Subsidiary. To the Knowledge of the Company,
Schedule
3.6
also
sets forth all Binding Orders, lawsuits, proceedings, investigations or claims
threatened against the Company or any Subsidiary, or any of their properties,
assets, operations or business, which would reasonably be expected to have
a
Material Adverse Effect other than such lawsuits, claims, proceedings or
investigations as are fully covered (subject to deductibles, co-payments,
retentions, policy limits and the like) by insurance. Neither the Company nor
any Subsidiary is in default under any Binding Order. There are no Binding
Orders, lawsuits, proceedings, investigations or claims pending, or to the
Knowledge of the Company threatened, against the Company or any Subsidiary
that
challenge the legality of this Agreement or any action to be taken in connection
herewith.
8
3.7.
Brokers.
Neither
the Company nor any Subsidiary is subject to any valid claim of any broker,
investment banker, finder or other intermediary in connection with the
transactions contemplated by this Agreement.
3.8 Purchase
for Investment; Exempt Transaction; Independent Evaluation.
Buyer
is acquiring the Subject Shares for investment purposes only, for its own
account and not with a view to, or for offer or sale in connection with, any
distribution thereof in violation of the Securities Act of 1933, as amended
(the
“Securities
Act”),
or
any other securities laws of any jurisdiction. Buyer understands and
acknowledges that it is purchasing the Subject Shares in a transaction exempt
from the registration requirements of Section 5 under the Securities Act. By
reason of its business or financial experience, Buyer has the capacity to
protect its interests in connection with the transactions contemplated by this
Agreement and has conducted an independent investigation, analysis and
evaluation of the Company and the Subsidiaries and their properties, assets,
business and financial condition.
ARTICLE
IV
COVENANTS
AND AGREEMENTS OF THE PARTIES
4.1.
Confidentiality;
Press Releases.
(a)
Except as required by law or legal process, each of the Sellers, on one hand,
and the Company, on the other hand, shall, and shall cause each of its
Affiliates and each of the respective directors, officers, employees, agents,
advisors and representatives (“Representatives”)
to,
(i) maintain in confidence any and all information concerning the Kiss Group
or
the Company and its Subsidiaries provided to any one or more Parties by the
other Party or Parties or their respective Representatives, or otherwise learned
by them in the course of the negotiation of this Agreement and the transactions
contemplated hereby and by the Strategic Alliance Agreement, and (ii) disclose
such information only to Persons which are under the control of the Sellers
or
the Buyer or an Affiliate thereof, to third parties serving as legal,
accounting, environmental, insurance or investment advisors or to the Company
or
its investment banker or investors (who have executed appropriate
confidentiality agreements); provided,
however,
that
such disclosure shall be limited to entities, parties and their personnel whose
duties justify their need to review and know such information for the purpose
of
(i) the negotiation of this Agreement, (ii) the providing of financing to the
Company to enable it to pay the Purchase Price, and (iii) the preparation of
any
registration statement or private placement memorandum in respect of such
financing.
(b) It
is
understood that neither the Kiss Group on one hand or the Company Group on
the
other hand, nor any of their Affiliates shall have any liability hereunder
for
disclosure of any such information which (i) can be shown to have been in the
public domain other than as a result of a disclosure by a Party or any of their
respective Affiliates, or any Representative thereof, (ii) was previously known
to a Party hereto or their Affiliates, or (iii) was later acquired by a Party
from other sources, provided such sources are not known by such Party after
due
inquiry to be bound by any confidentiality agreement with any Party hereto
or
any affiliate thereof. In the event that any Party or any of their respective
Affiliates, or any Representative thereof, is legally compelled to disclose
any
of such information, such Party, will (x) give prompt notice thereof to the
other Party or Parties to enable the Party being notified at their cost to
seek
an appropriate protective order and (y) furnish only such portion of such
information as is legally required to be disclosed and use its reasonable
efforts to obtain a protective order or other reliable assurances that
confidential treatment will be accorded such information.
(c) Each
of
the Kiss Group, on the one hand, and Company Group, on the other hand, agree
that neither they nor their Affiliates will make any statement to the press,
press release or other public announcement regarding this Agreement, the
Transaction Documents or the transactions contemplated hereby or thereby prior
to the Closing Date unless the text and time of the release of any such
statement has been approved by the other Party or Parties or their respective
legal counsel, except where such disclosure is required pursuant to Applicable
Law (in which case such Party will consult with the other Party regarding any
such public statements prior to disclosure to the extent feasible). The Parties
hereto and their respective Affiliates agree to consult with each other prior
to
any press release or other public announcement by them or their Affiliates
relating to this Agreement in connection with the Closing of the transactions
contemplated hereby and agree that such press release or announcement will
not
be made prior to such consultation.
9
4.2.
Termination
of Prior Agreements.
Effective as of the Closing, except for the Strategic Alliance Agreement, the
Lockup Agreements and each of the Transaction Documents, each of the Company
Group and the Kiss Group do hereby agree to terminate each of the (a) the
Cooperative R&D Contract, dated December 19, 2006 (the “R&D
Contract”)
between RESI and the Company; (b) the Marketing and Manufacturing Facility
Turn
On Function Contract, dated January 30, 2007 ( the “Marketing
and Turn-On Contract”)
between RESI and the Company; (c) the consulting agreement, dated
_______________ between the Company and Z. Kiss (the “Kiss
Consulting Agreement”),
and
(d) all other agreements and understandings among Z. Kiss, RESI, Amelio, the
Company and each of its Subsidiaries, written or oral, that may exist as at
the
Closing Date. (collectively, the “Prior
Agreements”);
all
of which Prior Agreements shall be deemed to be null and void as at the Closing
Date.
4.3.
Payment
of Certain Taxes. The
Sellers shall be solely responsible to pay all income, capital gains, transfer
and other taxes relating to the sale of the Subject Shares and the other
transactions contemplated by this Agreement.
4.4.
Conditions
to Closing.
(a) The
Buyer. The
Buyer’s obligation to purchase the Subject Shares under this Agreement are
subject to the satisfaction, on or before the Closing Date, of all of the
following conditions, any one or more of which may be waived in writing by
the
Company on or prior to the Closing:
(i) The
Company shall have consummated the Financing
(as that
term is hereinafter defined); provided,
that
although
the Company agrees to make good faith efforts to obtain the requisite Financing
contemplated hereby as soon as reasonably practicable, nothing contained in
this
Agreement or in any other Transaction Document, express or implied, shall
require the Company to issue any previously authorized and unissued securities
of the Company in connection with any Financing that either (A) provides for
at
a per share price for shares of Company Common Stock that is lower than $3.30
per share, or a conversion price or exercise price of any convertible Company
securities or warrants that is lower than $3.30 per share, or (B) contains
other
terms and conditions that are not otherwise acceptable to the board of directors
of the Company in the exercise of its sole discretion. In such connection,
each
of the Sellers shall cooperate with the Company in connection with the
Financing, including acting as selling shareholders in a registered sale of
the
Subject Shares in the Financing; provided, that except for the accurate listing
of their names and number of Subject Shares to be sold by the Sellers in such
registration statement, the Sellers shall not incur any other statutory
liability under the Securities Act of 1933, as amended, and the Company shall
indemnify, defend and hold harmless each of the Sellers from and against any
such liability, to the fullest extent provided by law.
(ii) Each
of
the Kiss Group who are parties to the Strategic Alliance Agreement shall have
executed and delivered such Strategic Alliance Agreement.
(iii) Each
of
G. Kiss, M. Kiss, Nadja Kiss and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall have executed and
delivered the Lock-up Agreement in the form of Exhibit
C
annexed
hereto and made a part hereof.
10
(iv) Each
of
the members of the Kiss Group shall have executed and delivered the Kiss Group
Releases in the form of Exhibit
B-1
annexed
hereto and made a part hereof.
(v) Z.
Kiss,
RESI and Amelio shall have entered into the Non-Competition and Non-Solicitation
Agreement; which Non-Competition and Non-Solicitation Agreement shall (A)
contain non-competition and non-solicitation covenants and agreements of each
of
Z. Kiss, RESI and their Affiliates, (B) acknowledge this Agreement, the Purchase
Price paid hereunder and that the non-competition and non-solicitation covenants
and agreements of Z. Kiss contained therein are a material inducement to cause
the Buyer to purchase or arrange for the purchase of the Subject Shares pursuant
to this Agreement; (C) name the Buyer as an express third party beneficiary
of
such non-competition and non-solicitation covenants and agreements with all
of
the rights to enforce the same that are otherwise available to Amelio; and
(D)
be in form and content (as to such non-competition covenants and agreements
and
the Buyer’s rights with respect thereto) as shall be satisfactory to the Buyer,
in the exercise of its sole discretion.
(vi) Each
of
the Sellers shall have delivered a closing certificate concerning their
representations and warranties and such other matters in form and substance
reasonably satisfactory to the Company and its legal counsel.
(vii) Each
of
the Sellers shall deliver or cause to be delivered to the Buyer, against payment
therefor in accordance with Section
1.3
hereof,
stock certificates representing all, and not less than all, the Subject Shares
in the amounts set forth opposite the name of such Seller in Section 1.1(a)
above; in each case, accompanied by stock powers duly executed in blank and
with
the signatures of the record holders guaranteed by a national bank or member
firm of the New York Stock Exchange.
(b) The
Sellers. The
Sellers obligation to sell and deliver the Subject Shares under this Agreement
are subject to the satisfaction, on or before the Closing Date, of all of the
following conditions, any one or more of which may be waived in writing by
the
Seller’s Agent on or prior to the Closing.
(i) The
Company shall have paid to each of the Sellers their allocable share of the
Purchase Price for the Subject Shares as contemplated by Section
1.3(a)
of this
Agreement.
(ii) Each
of
the Company Group who are parties to the Strategic Alliance Agreement shall
have
executed and delivered such Strategic Alliance Agreement;
(iii) Each
of
the members of the Company Group shall have executed and delivered the Company
Group Releases in the form of Exhibit
B-2
annexed
hereto and made a part hereof.
(1v) The
Company shall have delivered a closing certificate concerning their
representations and warranties and such other matters in form and substance
reasonably satisfactory to the Company and its legal counsel.
11
4.5.
Sellers’
Agent.
(a)
Each Seller hereby irrevocably appoints ▇▇▇▇▇▇
▇. ▇▇▇▇▇
as the
sole representative (the “Sellers’
Agent”)
of
such Seller to act as the agent on behalf of such Seller for all purposes under
this Agreement, including for the purposes of: (i) acceptance of the pro rata
portions of the Purchase Price payable to the Sellers and any other amounts
payable to each Seller under this Agreement or any Transaction Document and
delivery of wire instructions to Buyer in connection therewith; (ii) determining
whether the conditions to closing have been satisfied and supervising the
Closing, including waiving any such condition if Sellers’ Agent, in his sole
discretion, determines that such waiver is appropriate; (iii) taking any action
that may be necessary or desirable, as determined by Sellers’ Agent in his sole
discretion, in connection with the termination of this Agreement and the other
Transaction Documents; (iv) taking any and all actions that may be necessary
or
desirable, as determined by Sellers’ Agent in his sole discretion, in connection
with any amendment of this Agreement or any waiver of any of the provisions
of
this Agreement; (v) taking any and all actions that may be necessary or
desirable, as determined by Sellers’ Agent in his sole discretion, in connection
with the consummation of the transactions contemplated by this Agreement and
the
other Transaction Documents; (vi) taking any and all actions that may be
necessary or desirable, as determined by Sellers’ Agent in his sole discretion,
in connection with indemnification under Article V; (vii) taking any and all
actions that may be necessary or desirable, as determined by Sellers’ Agent in
his sole discretion, in connection with enforcement or termination of the Prior
Agreements; (viii) accepting notices on behalf of each Seller; (ix) taking
any
and all actions that may be necessary or desirable, as determined by Sellers’
Agent in his sole discretion, in connection with the payment of the costs and
expenses of the Sellers incurred hereunder; (x) delivering or causing to be
delivered to Buyer at the Closing certificates representing the Subject Shares
to be sold by such Seller hereunder; (xi) executing and delivering, in Sellers’
Agent’s capacity as the representative of such Seller, any and all notices,
documents or certificates to be executed by Sellers’ Agent, on behalf of such
Seller, in connection with this Agreement and the transactions contemplated
hereby; (xii) granting any consent or approval on behalf of such Seller under
this Agreement; and (xiii) taking any and all actions that may be necessary
or
desirable, as determined by the Sellers’ Agent in his sole discretion in
connection with, and dealing with any other issues relating to, this Agreement
or any Transaction Document. As the representative of Sellers, Sellers’ Agent
shall act as the agent for all such Persons, shall have authority to bind each
such Person in accordance with this Agreement, and Buyer may rely on such
appointment and authority until the receipt of notice of the appointment of
a
successor upon five (5) days’ prior written notice to Buyer.
(b) Each
Seller hereby irrevocably appoints Sellers’ Agent as such Seller’s true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, in such Seller’s name, place and stead, in any and all
capacities, in connection with the transactions contemplated by this Agreement,
granting unto said attorney-in-fact and agent, full power and authority to
do
and perform each and every act and thing requisite and necessary to be done in
connection with the sale of such Seller’s Subject Shares as fully to all intents
and purposes as such Seller might or could do in Person, including, without
limitation, to extend the Outside Closing Date to such date as the Sellers’
Agent deems appropriate.
4.6.
Reasonable
Efforts.
On and
after the Closing, the Company shall, and shall cause each of its Subsidiaries
and the Company’s and its Subsidiaries’ management to, take all actions as shall
be reasonably requested by the Sellers’ Agent in connection with carrying out
the agreements and provisions contemplated hereby, including but not limited
to
any actions requested to be taken or omitted with respect to Article IV
hereof.
4.7 Sale
of Certain Shares. Following
the expiration of the 180 day period under the Lock-Up Agreement, each of G.
Kiss, M. Kiss, Nadja Kiss and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ shall have the right to publicly
or privately sell their shares of Company Common Stock under the applicable
provisions of Rule 144, as promulgated under the Securities Act of 1933, as
amended.
4.8
Failure
to Sell or Purchase the Subject Shares. In
the
event that the Company shall fail to consummate the Financing or otherwise
purchase the Subject Shares by the Outside Closing Date (as the same may be
extended pursuant to this Agreement), then and in such event each of the Sellers
shall have the right to publicly or privately sell all of the Subject Shares
under the applicable provisions of Rule 144, as promulgated under the Securities
Act of 1933, as amended.
12
ARTICLE
V
ADDITIONAL
DEFINITIONS
As
used
in this Agreement, capitalized terms not otherwise defined herein, shall have
the meanings as are defined in this Article V.
Affiliate.
The term
“Affiliate” shall mean, with respect to any Person, any other Person
controlling, controlled by or under common control with such Person. The term
“control” as used in the preceding sentence means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
or
policies of such Person, whether through the ownership of voting securities,
by
agreement or otherwise; provided,
however,
that
any full-time employee of the Company or any of its Subsidiaries (including
officers) who is not otherwise Affiliated with or has any another business
or
financial relationship with any of the Sellers or their Affiliates (excluding
his or her employment with the Company or its Subsidiaries) shall not, for
purposes of this Agreement, be deemed to be an Affiliate of the
Sellers.
Amelio.
The
term “Amelio” shall mean Amelio Solar, Inc., a Delaware corporation.
Financing.
The
term
“Financing” shall mean the public or private sale of $10,000,000 or more of
units of securities (the “Units”)
consisting of shares of Company Common Stock and/or warrants to purchase Company
Common Stock, but which Financing shall include (a) the sale of all or a portion
of the 18,000,000 Subject Shares for the account of the Sellers, and (b) the
sale of additional shares of Common Stock for the Company.
Governmental
Authorities.
The
term “Governmental Authorities” shall mean any nation or country (including but
not limited to the United States) and any commonwealth, territory or possession
thereof and any political subdivision of any of the foregoing, including but
not
limited to courts, departments, commissions, boards, bureaus, agencies,
ministries or other instrumentalities.
Knowledge
of the Sellers.
The
term “Knowledge of the Sellers” or any derivative thereof shall refer only to
the actual knowledge of the Sellers or any one of them.
Material
Adverse Effect.
The
term “Material Adverse Effect” shall mean a material adverse effect on the
business, operations, assets, properties or financial condition of the Company
and its Subsidiaries, when taken as a consolidated whole, other
than
with
respect to any adverse effects which, directly or indirectly, relate to or
result from (a) public or industry knowledge regarding the transactions
contemplated by this Agreement or (b) past, existing or prospective economic,
regulatory or other conditions generally affecting the industries and markets
in
which the Company and the Subsidiaries compete.
Non-Competition
and Non-Solicitation Agreement. The
term
“Non-Competition and Non-Solicitation Agreement” shall mean the non-competition
and non-solicitation agreement,
to be dated as at the Closing Date, among Amelio, Z. Kiss and RESI, and which
shall incorporate the concepts and provisions of Section
4.1(a)(iv)
of this
Agreement in a manner satisfactory to the Buyer.
Person.
The
term “Person” shall mean any individual, partnership, joint venture, firm,
corporation, association, limited liability company, trust or other enterprise
or any governmental or political subdivision or any agency, department or
instrumentality thereof.
Strategic
Alliance Agreement.
The term
“Strategic Alliance Agreement” shall mean the collective reference to that
certain Settlement Agreement and Strategic Alliance and Cross License Agreement,
both dated of even date herewith, among RESI, Z. Kiss, Amelio and the Company.
13
Subsidiary.
The
term “Subsidiary” shall mean any Person of which a majority of the outstanding
voting securities or other voting equity interests are owned, directly or
indirectly, by the Company.
ARTICLE
VI
MISCELLANEOUS
6.1. Expenses.
Whether
or not the transactions contemplated hereby are consummated, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by (a) the Buyer, with respect to such costs
and expenses incurred by it, and (b) the Sellers, with respect to such costs
and
expenses incurred by the Sellers.
6.2.
Construction
of this Agreement.
All of
the Parties to this Agreement have participated jointly in the negotiation
and
drafting of this Agreement. In the event any ambiguity or question of
interpretation arises, this Agreement and the other documents and instruments
executed in connection with this Agreement shall be construed as if drafted
jointly, and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any provision of this
Agreement or such other documents and instruments. Any item disclosed on a
disclosure schedule to this Agreement shall be deemed disclosed for and
incorporated into all other disclosure schedules to which such item is
applicable. The term “including” in this Agreement shall mean “including without
limitation”. All references to immediately available funds or dollar amounts
contained in this Agreement shall mean United States dollars. The headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. References to
“schedules” or “sections” herein shall be deemed to refer to the applicable
disclosure schedule or section of this Agreement.
6.3. Assignment.
This
Agreement and the rights and obligations of the Parties hereunder shall not
be
assigned, delegated or otherwise transferred by the Sellers without the prior
written consent of the Company. The Company may assign its rights under this
Agreement to purchase the Subject Shares to any one or more Persons providing
Financing to the Company.
6.4.
Successors
and Assigns.
This
Agreement shall inure to the benefit of, and be binding upon and enforceable
against, the successors and permitted assigns of the respective Parties hereto.
6.5.
Amendments.
No
amendment to or modification of this Agreement shall be effective unless it
shall be in writing and signed by each of the Parties (or, in the case of
Sellers, the Sellers’ Agent) to this Agreement.
6.6.
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 Business Days after (or, in the case of a notice
or communication sent overseas, ten 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):
|
If
to Company, to:
|
||
|
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
|
||
|
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
|
||
|
Attn:
|
▇▇▇▇▇
▇▇▇▇▇, Chief Executive Officer
|
|
|
Tel:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
Fax:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
Email:
|
▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
|
14
|
with
a required copy to:
|
▇▇▇▇▇▇▇
▇▇▇▇ LLP
|
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇
|
||
|
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
||
|
Attention:
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, Esq.
|
|
|
Tel:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
Facsimile:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
email:
|
▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
|
|
If
to Sellers and Sellers Agent to:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
|
as
agent for Zoltan Kiss, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
|
||
|
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Kiss
|
||
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇,
|
||
|
▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
||
|
Tel:
|
▇▇▇-▇▇▇-▇▇▇▇
|
|
|
email:
|
▇▇▇▇▇@▇▇▇.▇▇▇
|
|
|
with
a required copy to:
|
▇▇▇
▇▇▇▇▇▇ LLP
|
|
|
▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
|
||
|
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
||
|
Attention:
|
▇▇▇▇▇▇
(Rod) ▇▇▇▇▇▇▇▇, III
|
|
|
Tel:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
Facsimile:
|
(▇▇▇)
▇▇▇-▇▇▇▇
|
|
|
email:
|
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
|
|
Such
addresses may be changed, from time to time by means of a notice given in the
manner provided in this Section (provided that no such notice shall be effective
until it is received by the other Parties hereto).
6.7.
Consent
to Jurisdiction.
Each of
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
and the Transaction Documents or any transaction contemplated hereby or thereby,
except in each case with respect to any matters related to title or possession
of real property, and any other matters that are justiciable only under the
jurisdiction of another court. 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.
6.8.
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.
15
6.9.
Waiver.
Waiver
of any term or condition of this Agreement by any Party shall be effective
if in
a writing signed by the Party (or, in the case of Sellers, the Sellers’ Agent)
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.
6.10.
Counterparts.
This
Agreement may be executed in any number of counterparts, all of which shall
be
considered one and the same agreement, and shall become effective when one
or
more such counterparts have been signed by each of the Parties to this Agreement
and delivered to the other Parties, it being understood that all Parties need
not sign the same counterpart.
6.11.
Entire
Agreement.
This
Agreement, including the disclosure schedules hereto and the other documents
delivered pursuant to this Agreement, contains the entire agreement and
understanding between the Parties hereto with respect to the subject matter
hereof and supersede all prior and contemporaneous agreements, negotiations,
correspondence, undertakings and understandings, oral or written, relating
to
such subject matter.
6.12.
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.
[the
balance of this page intentionally left blank - signature page
follows]
16
IN
WITNESS WHEREOF,
the
Parties have caused this Agreement to be duly executed as of the date first
written above.
|
/s/
Zoltan Kiss
|
|
|
ZOLTAN
KISS
|
|
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Kiss
|
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇ KISS
|
|
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
|
|
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
|
|
|
As
the Sellers’ Agent
|
|
|
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
|
By
|
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
|
|
|
Title:
Chairman and CFO
|
|