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
MASTER
SETTLEMENT AGREEMENT
among
KRAFT
ELEKTRONIKAI ZRT
ZOLTAN
KISS
AMELIO
SOLAR, INC.
and
RENEWABLE
ENERGY SOLUTIONS, INC.
dated
as of August 12, 2008
MASTER SETTLEMENT
AGREEMENT
THIS
MASTER SETTLEMENT,
dated
as of August 12, 2008 (the “Agreement”),
is
made and entered into by and among SOLAR
THIN FILMS, INC., a
Delaware corporation (the “Company”);
KRAFT
ELEKTRONIKAI 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”).
The
Company, Kraft, Amelio, RESI and Z. Kiss are hereinafter sometimes individually
referred to as a “Party”
and
collectively as the “Parties.”
Except
as otherwise provided herein, capitalized terms and terms in quotes are defined
in Article I unless otherwise defined in the text.
INTRODUCTION
This
Agreement is made and entered into by the Parties with reference to the
following:
A. Reference
is made to: (i) a certain Cooperative R&D Contract, dated December 19, 2006
between RESI and the Company (the “R&D
Contract”);
and
(ii) a certain Marketing and Manufacturing Facility Turn On Function Contract,
dated January 30, 2007 between RESI and the Company (the “Marketing
and Turn-On Contract”).
B RESI,
an
Affiliate of Z. Kiss, is currently indebted to the Company and/or its
Subsidiaries for goods and services rendered to or on behalf of RESI in the
aggregate amount of the “RESI
Debt.”
C. Certain
issues and disputes have arisen between the Company, RESI and Z. Kiss with
respect to various matters, involving the respective legal rights and
obligations of the parties, certain claims in respect of actions take or omitted
by the Parties and for amounts allegedly owed and certain other matters (all
of
the foregoing, collectively, referred to as the “Disputed
Issues”).
D.
The
Amelio Group has prior to the “Closing
Date”
succeeded to the assets and businesses of RESI constituting the “PV
Technology”
and
all
related rights thereto relating to the design, development, manufacture and
sale
of PV Equipment and PV Modules, including all “a-Si
Technology”
and
“CIGS
Technology”
as
such
terms are defined herein or in the Collateral Documents.
E. The
Parties hereto desire, pursuant to this Agreement and the “Collateral
Documents”
to
(i)
resolve and release all of the Disputed Claims and any and all other claims
that
among the Parties as provided for in the “Mutual
Releases”,
(ii)
arrange for the purchase by the Company or its designee of all of the shares
of
“Company
Common Stock”
owned
by Z. Kiss in the Company pursuant to the “Stock
Purchase Agreement”,
and
(iii) establish an ongoing working relationship between the STF Group and Amelio
with respect to the future manufacture, sale and distribution of PV Equipment,
PV Modules, “Turnkey
PV Module Manufacturing Facilities”
using
all PV Technology developed or acquired by the STF Group or the Amelio Group,
pursuant to the “Strategic
Alliance and Cross License Agreement”.
NOW,
THEREFORE,
in
consideration of the mutual covenants and agreements hereinafter contained,
the
Parties hereto intending to be bound thereby, hereby agree as
follows:
ARTICLE
I
DEFINITIONS
In
addition to the other terms defined elsewhere in this Agreement, the following
capitalized terms shall have the meanings specified below.
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.
Amelio
Group. The
term
“Amelio Group” shall mean and include Amelio, RESI and Z. Kiss, and any direct
and indirect Subsidiaries or Affiliates of such Persons, whether now existing
or
hereafter formed or acquired.
Amelio
Group Releases. The
term
“Amelio Group Releases” shall mean the general release(s) to be executed and
delivered on the Closing Date by each member of the Amelio Group to the STF
Group, in the form of Exhibit
II
annexed
hereto and made a part hereof.
Amelio
Undertaking.
The
term “Amelio Undertaking” has the meaning set forth in Section
3.4(b).
Business
Day.
The term
“Business Day”
shall
mean
any day
on which the banks in New York City, New York, are open for business (excluding
Saturday, Sunday and federal holidays).
CG
Solar. The
term
“CG Solar” shall mean 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 Contract. The
term
“CG Solar Contract” shall mean the agreement dated ____________ among RESI, the
Company and CG Solar, pursuant to which RESI and the Company (through its Kraft
Subsidiary) have been engaged as contractors to manufacture and install a
TurnKey PV Module Manufacturing Facility in WeHai Shangdong, China for CG Solar
or its Affiliate(s).
CG
Solar Resolution. The
term
“CG Solar Resolution” means satisfactory resolution of any open contractual
issues between or among CG Solar and any of the Parties hereto.
Closing. The
term
“Closing” shall mean the date of delivery of this Agreement and the Collateral
Documents and the consummation of the transactions specified in Article
III.
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Closing
Date. The
term
“Closing Date” shall mean the date of Closing; provided, that without the prior
written consent of the Amelio Group, the Closing Date shall not occur later
than
the Outside Closing Date.
Collateral
Documents.
The
term
“Collateral Documents” means the collective reference to the Mutual Releases,
the Stock Purchase Agreement and the Strategic Alliance and Cross License
Agreement.
Common
Stock. The
term
“Common Stock” shall mean the shares of common stock, $0.01 par value per share
of the Company.
Contemplated
Transaction.
The term
“Contemplated Transaction” shall mean all of the transactions contemplated by
this Agreement, including the execution, delivery, and performance of the
Collateral Documents and any exhibits thereto, and any other documents delivered
pursuant hereto and thereto.
Existing
Agreements.
The term
“Existing Agreements” shall mean the collective reference to the Existing RESI
Agreements and the Kiss Consulting Agreement.
Existing
RESI Agreements. The
term
“Existing RESI Agreements” shall mean the collective reference to the R&D
Contract and the Marketing and Turn-On Contract referred in Paragraph A of
the
INTRODUCTION to this Agreement, and any modifications or amendments
thereto.
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 (i) the sale of all or a portion
of the 18,000,000 Subject Shares for the account of the Sellers, and (ii) the
sale of additional shares of Common Stock for the account of the Company;
provided,
that:
(a) the
sale
and issuance by the Company of its Common Stock or other securities convertible
into or exercisable for shares of Company Common Stock shall be at a price
per
share or conversion or exercise price per share of $3.30 or more;
and
(b) such
Financing shall contemplate the purchase by the Company and/or one or more
Persons designated by the Company (including public investors) of an aggregate
of 18,000,000 shares of Company Common Stock from Z. Kiss, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Kiss
and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ pursuant to the Stock Purchase Agreement.
Governmental
Entity.
The
term
“Governmental
Entity”
shall
mean any (a) nation, state, county, city, town, village, district, or other
jurisdiction of any nature; (b)federal, state, local, municipal, foreign, or
other government; (c) governmental or quasi-governmental authority of any nature
(including any governmental agency, branch, department, official, or entity
and
any court or other tribunal); (d) multi-national organization or body; or (e)
body exercising, or entitled to exercise, any administrative, executive,
judicial, legislative, police, regulatory, or taxing authority or power of
any
nature.
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Kiss
Consulting Agreement. The
term
“Kiss Consulting Agreement” shall mean that certain consulting agreement, dated
__________ between the Company and Z. Kiss and any modifications or amendments
thereto.
Mutual
Releases. The
term
“Mutual Releases” means the comprehensive releases to be executed by the Parties
at the Closing, including the Amelio
Group Releases
in the
form attached as Exhibit
II
to this
Agreement and the STF
Group Releases
in the
form attached as Exhibit
III
to this
Agreement.
Outside
Closing Date. The
term
“Outside Closing Date” shall mean 5:00 p.m. (Eastern Standard Time) on November
30, 2008 provided,
however,
that
(i) such Outside Closing Date may be extended by mutual agreement of the Company
and the Sellers’ Agent (as defined in the Stock Purchase Agreement), 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
defined and described in the Stock Purchase Agreement, that in their judgment
such Financing will be consummated, the Sellers’ Agent shall
extend
the Outside Closing Date to January 31, 2009.
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.
PV. The
term
“PV” shall mean photovoltaic.
PV
Equipment. The
term
“PV Equipment” shall mean a-Si Equipment, CIGS Equipment and all other items of
machinery, equipment, parts, components and Software deploying PV Technologies
that are used or useful to manufacture and produce equipment to enable an owner
or operator of such equipment to manufacture or produce PV Modules.
PV
Modules. The
term
“PV Modules” shall mean PV cells or modules, whether based on a-Si Technology,
CIGS Technology or other PV Technologies.
PV
Technologies. The
term
“PV Technologies” shall mean the collective reference to (i) a-Si Technology,
(ii) CIGS Technology, (iii) microcrystalline a-Si Technology, or (iv) any other
development, improvements, additions or technologies now or hereafter developed
that are used as a coating or other material to deposit the active layer on
PV
Modules or in PV Equipment.
Qualified
Financing.
The
term
“Qualified Financing” has the meaning set forth in Section 3.5.
RESI
Debt.
The
term “RESI Debt” means the net amount of indebtedness, net of fees payable under
the Existing Agreements to the Closing Date, and not to exceed $1,331,863 owed
by RESI to the Company or its Affiliates as of the Closing Date.
RESI
Debt Settlement Deliverables.
The
term
“RESI Debt Settlement Deliverables” means the documents specified in
Section
3.5
to be
delivered by Z.Kiss and RESI at the Closing.
4
Stock
Purchase Agreement.
The
term
“Stock Purchase Agreement” means that certain stock purchase agreement among the
Company, Z. Kiss, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Kiss, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
as Sellers’ Agent, in the form attached as Exhibit
I
hereto.
Strategic
Alliance and Cross License Agreement.
The
term
“Strategic Alliance and Cross License Agreement” is attached hereto as
Exhibit
IV
and has
the meaning therein.
STF
Group. The
term
“STF Group” shall mean and include the Company, together with its wholly-owned
Subsidiaries, Kraft and Superior Ventures Corp. and its majority-owned
Subsidiary, Solar Thin Power, Inc., and any future direct and indirect
Subsidiaries or Affiliates of the Company.
STF
Group Releases. The
term
“STF Group Releases” shall mean the general release(s) to be executed and
delivered on the Closing Date by the STF Group to each member of the Amelio
Group and their respective officers, directors and stockholders, in the form
of
Exhibit
III
annexed
hereto and made a part hereof,
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 any other Person.
Turnkey
PV Module Manufacturing Facilities.
The term
“Turnkey PV Module Manufacturing Facilities” shall mean the collective reference
to all PV Equipment and related components and software that are installed
in
any facility owned and operated by any Person to enable such Person to produce
PV Modules in all PV Technologies.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE PARTIES
Except
as
set forth on a referenced “Schedule” to this ARTICLE II, each of the Parties
hereby represents and warrants to the other Parties as follows:
2.1. Organization
and Good Standing.
If such
Party is an entity, it is duly organized, validly existing and in good standing
under the laws of the state of its organization, has all requisite power and
authority to own, lease and operate its properties and to carry on its business
as now conducted, is duly qualified or authorized to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction in
which
it owns or leases real property and each other jurisdiction in which the conduct
of its business or the ownership of its properties requires such qualification
or authorization, except where the failure to be so qualified, authorized or
in
good standing does not have and would not reasonably be expected to have
material adverse effect on such Party.
5
2.2. Authorization
of Agreement.
Such
Party has all requisite power and authority (i) to enter into and deliver this
Agreement and the Collateral Documents and other documents provided for herein
to which it is a party and to carry out the transactions contemplated hereby
and
by each other agreement, document, or instrument or certificate contemplated
by
this Agreement, (ii) to enter into and deliver all documents required or
necessary to be executed by it in connection with the consummation of the
transactions contemplated by this Agreement (collectively the “Documents”),
and
(iii) to consummate the contemplated transactions. This Agreement has been
and
the Documents will be when delivered duly and validly executed and delivered
hereunder and (assuming the due authorization, execution and delivery by the
other parties hereto and thereto) this Agreement constitutes and the Documents
will constitute when delivered the legal, valid and binding obligations of
such
Party, enforceable against it in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors’ rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
2.3. No
Conflict. Except
as
set forth on Schedule
2.3 hereto,
neither of the execution and delivery by the Party of this Agreement and of
the
Documents, nor the compliance by such Party with any of the provisions hereof
or
thereof will (i) conflict with, or result in the breach of, any provision of
the
governing documents of such Party , (ii) conflict with, violate, result in
the
breach of, or constitute (with or without due notice, lapse of time or both)
a
default under, result in the acceleration of, create in any Person the rights
to
accelerate, terminate, modify or cancel, or require any notice, consent or
waiver under, any note, bond, mortgage, indenture, license, agreement or other
obligation to which such Party is a party or by which such Party or any of
its
properties or assets are bound or (iii) violate any statute, rule, regulation,
order or decree of any government agency by which such Party is bound, except,
in the case of clauses (ii) and (iii), for such violations, breaches or defaults
as would not, individually or in the aggregate, have a material adverse effect
on such Party.
2.4. Except
as
set forth in Schedule
2.4,
no
consent, waiver, approval, order, permit or authorization of, or declaration
or
filing with, or notification to, any Person or government agency is required
on
the part of such Party in connection with the execution and delivery of this
Agreement or the Documents or the compliance by such Party with any of the
provisions hereof or thereof.
2.5. Litigation.
Except
as would not reasonably be expected to have a materially adverse effect on
the
ability of a Party to close hereunder or as set forth on Schedule
2.5
hereto,
(a) there is no proceeding now in progress or pending or, to the knowledge
of
the Party, threatened against the Party or any Affiliate or the assets or the
business of the Party and (b) such Party is not subject to any order, writ,
injunction or decree of any court or other government agency.
2.6. Compliance
with Laws; Permits.
Except
as provided on Schedule
2.6 hereto,
each Party (a) has complied in all respects with all federal, state, and local
laws, rules, ordinances, codes, consents, authorizations, registrations,
regulations, decrees, directives, judgments and orders applicable to it and
its
business other than where noncompliance would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect and (b)
has
all federal, state, and local governmental permits necessary in the conduct
of
its business as currently conducted and to own and use its assets in the manner
in which such assets are currently owned and used other than where the failure
to possess such permits would not, individually or in the aggregate, reasonably
be expected to have a material adverse effect, such permits are in full force
and effect, and no violations have been recorded in respect of any such permit,
and no proceeding is pending or, to the best knowledge of the Party, threatened
to revoke or limit any such permit.
6
2.7. Brokers.
No
Party nor any of their respective directors, officers, employees or
representatives has employed any broker or finder in connection with the
contemplated transactions.
ARTICLE
III
COVENANTS,
CONDITIONS AND CLOSING
3.1. Consents
and Approvals.
Each
Party hereby covenants and agrees to use its commercially reasonable efforts
to
fulfill its obligations hereunder and under the Collateral Documents. In
addition, the Parties to this Agreement agree to refrain, directly or indirectly
from utilizing any information, materials, or equipment of any kind, or type
in
any way or nature other than as contemplated hereunder. Further, neither Party
will circumvent the intent or spirit of this agreement or a Party by attempting
to take advantage of materials, equipment, or research and development performed
by the other Party. Each of the Parties recognize that the provisions of this
Section
3.1
and
Section
3.2
below
are an essential and material part of this Agreement and the Collateral
Documents.
3.2. Conditions
to Closing.
The
obligations of the Parties to consummate the transaction contemplated by this
Agreement are subject to the satisfaction of each of the following conditions
on
or before the Closing Date:
(a) Representations
and Warranties. The
representations and warranties of the Parties contained in this Agreement shall
have been true and correct in all material respects on the date of this
Agreement and shall be true and correct in all material respects at and as
of
the Closing Date as though made as of the Closing Date, except to the extent
that such representations and warranties shall have been updated to the Closing
Date without material change, or are qualified by the term “material,” or
contain a term such as “Material Adverse Change,” in which case such
representations and warranties (as so written) shall be true and correct in
all
respects on the date of this Agreement and as of the Closing Date;
(b) Covenants. The
Parties shall have duly performed and complied in all material respects with
all
covenants and obligations required by this Agreement to be performed or complied
with by the Parties on or prior to the Closing, except to the extent that such
covenants are qualified by the term “material,” or contain a term such as
“Material Adverse Change,” in which case such covenants (as so written) shall be
true and correct in all respects on or prior to the Closing Date;
(c)
Absence
of Litigation.
No
action or proceeding shall be pending by or before any court or other
Governmental Entity seeking to restrain, prohibit or invalidate the Contemplated
Transactions;
(d) Additional
Agreements/Documents.
Execution and delivery of the Stock Purchase Agreement, Amelio Group Release,
STF Group Release, and the Strategic Alliance and Cross License Agreement,
all
in the form attached hereto as Exhibits
I, II, III, and IV;
7
(e) Non-Competition
and Non-Solicitation Agreement.
Execution and delivery of a non-competition and non-solicitation agreement
between Amelio, Z. Kiss and RESI (“Non-Competition
and Non-Solicitation Agreement”)
containing non-competition and non-solicitation covenants and agreements of
RESI
and Z. Kiss; which Non-Competition and Non-Solicitation Agreement shall
expressly name STF as a third party beneficiary to such non-competition and
non-solicitation covenants and agreements, and shall (as to such provisions)
be
in form and content acceptable to STF in the exercise of its sole
discretion.
(f) Financing. Consummation
of the Financing by the Company; and
(g)
General.
All
actions to be taken by the Parties in connection with consummation of the
transactions contemplated hereby and all other documents required to effect
the
transactions contemplated hereby will be reasonably satisfactory in form and
substance to the Parties.
3.3. Closing.
As
a part
of a simultaneous Closing, on the Closing Date the Parties shall execute and
exchange the following Collateral Documents:
(a) Amelio.
Amelio
shall deliver fully executed copies of the Collateral Documents to which it
is a
party, including:
(i) Amelio
Group Releases; and
(ii) Strategic
Alliance and Cross License Agreement.
(b) STF
Group.
The
applicable members of the STF Group shall deliver fully executed copies of
the
Collateral Documents to which they are a party, including.
(i) STF
Group
Releases;
(ii) Stock
Purchase Agreement; and
(iii) Strategic
Alliance and Cross License Agreement.
(c) Z.
Kiss and RESI.
Z. Kiss
and RESI shall deliver fully executed copies of the following Collateral
Documents to which they are a party:
(i) Amelio
Group Releases;
(ii) Stock
Purchase Agreement; and
(iii) RESI
Debt
Settlement Deliverables.
3.4. RESI
Debt Settlement Payment and Deliverables.
The
Parties hereto acknowledge that as at the date of this Agreement, RESI is
currently indebted to the Company or its Subsidiary in the amount of $1,331,863
in respect to the RESI Debt. On the Closing Date, the RESI Debt shall be settled
and paid, as follows:
8
(a) Z.
Kiss
shall pay to the Company (out of the proceeds received by him from the sale
of
his 10,000,000 Subject Shares under the Stock Purchase Agreement) the aggregate
sum of $434,315 and, to the extent not previously paid, an additional amount
equal to the “RESI Debt Balance” described in Section
3.4(c)
below
(the “Settlement
Payment”);
(b) 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 (the “Transferred
CG Solar Equity”);
and
(c) If
not
paid prior to the Closing Date, the remaining $397,548 (the “RESI
Debt Balance”)
shall
be paid to the Company on the earliest
to occur
of: (i) on the Closing Date as an additional deduction from the proceeds
otherwise payable to Z. Kiss as the purchase price under the Stock Purchase
Agreement from the sale of his 10,000,000 shares of Common Stock of the Company;
(ii) out of the net proceeds of a financing by Amelio (the “Amelio
Financing”);
provided,
that
such Amelio Financing shall be not less than $10,000,000; or (iii) January
31,
2009. To the extent that the RESI Debt Balance shall be paid on the Closing
Date
pursuant to Section
3.4(c)(i)
above,
then Amelio shall issue to Z. Kiss its promissory note due and payable on the
earlier to occur consummation of the Amelio Financing or one year from the
Closing Date. Amelio hereby agrees to guaranty payment of the RESI Debt Balance
to the Company.
3.5. Termination
of Existing Agreements.
As at
the Closing Date, all of the Existing Agreements, including, without limitation,
the R&D Contract and the Marketing and Turn-On Contract are hereby
terminated and rendered null and void. Except as expressly provided in the
Strategic Alliance and Cross License Agreement, no Party to any of the Existing
Agreements shall have any further rights or obligations thereunder from and
after the Closing Date, and all financial obligations, if any, of any of the
Parties to the Existing Agreements shall be deemed fully paid and
extinguished.
3.6. Termination
of All Disputed Issues. On
the
Closing Date, all Disputed Issues among any or all of the Parties hereto or
their Affiliates shall be deemed to be fully resolved and settled.
3.7. Simultaneous
Closings. Consummation
of the transactions contemplated by this Agreement shall occur simultaneous
with, and is subject to and conditioned upon, the consummation of the
transactions contemplated by the Stock Purchase Agreement and the execution
and
delivery of all of the Exhibits to this Agreement.
ARTICLE
IV
ADDITIONAL
AGREEMENTS OF THE PARTIES
4.1. Limited
Scope of Collateral Agreements. Subject
at all times to the continued compliance by RESI and Z. Kiss of their
obligations under the restrictive covenants set forth in Section
3.2
of this
Agreement, it is expressly understood and agreed among all Parties hereto that,
each of the Amelio Group and the STF Group may individually (a) engage, directly
or with third Persons, in the development, design and exploitation of a-Si
Technology, microcrystalline a-SI Technology or any development, improvements,
additions or technologies now or hereafter developed (other than CIGS
Technology) that are used as a coating or other material to deposit the active
layer on PV Modules or in PV Equipment; and (b) manufacture, sell, distribute
or
otherwise deal in PV Equipment, PV Modules, Turnkey PV Module Manufacturing
Facilities or power plants or projects, that use any PV Technologies, other
than
CIGS Technology, without regard to this Agreement or any obligation to any
other
Party or Parties to this Agreement.
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4.2. Competition. Except
only to the extent expressly provided in Section
3.2
of this
Agreement and in the Collateral Documents, it is expressly understood and agreed
that each of the Amelio Group and the STF Group are free to engage in activities
that may or shall compete with the other throughout the world.
ARTICLE
V
MISCELLANEOUS
5.1. Expenses.
Whether
or not the transactions contemplated hereby are consummated, each Party shall
bear its own costs and expenses incurred in connection with this Agreement
and
the transactions contemplated hereby
5.2. 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.
5.3. 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.
5.4. Amendments.
No
amendment to or modification of this Agreement shall be effective unless it
shall be in writing and signed by Amelio, acting on behalf of all of the members
of the Amelio Group, and by the Company, acting on behalf of all members of
the
STF Group.
5.5. 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):
10
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If
to the STF Group, to:
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|
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▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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Attn:
▇▇▇▇▇ ▇▇▇▇▇, Chief Executive Officer
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Tel:
(▇▇▇) ▇▇▇-▇▇▇▇
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Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
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Email:
▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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with
a required copy to:
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▇▇▇▇▇▇▇
▇▇▇▇ LLP
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▇▇▇▇
▇▇▇▇▇▇▇▇
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▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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Tel:
(▇▇▇) ▇▇▇-▇▇▇▇
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Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
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email:
▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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If
to Amelio Group, to:
|
|
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Amelio
Solar, Inc.
|
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▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
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▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Attention:
▇▇▇▇▇ ▇▇▇▇▇, CEO
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Tel:
▇▇▇-▇▇▇-▇▇▇▇
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Facsimile:▇▇▇-▇▇▇-▇▇▇▇
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email:
▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
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with
a required copy to:
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▇▇▇
▇▇▇▇▇▇ LLP
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▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Attention:
▇▇▇▇▇▇ (▇▇▇) ▇▇▇▇▇▇▇▇▇ III
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Tel:
(▇▇▇) ▇▇▇-▇▇▇▇
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Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
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email:
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
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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).
11
5.6. 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 Collateral 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.
5.7. Dispute
Resolution Procedure.
(a) General.
The
parties desire to resolve disputes arising out of this Agreement without
litigation. Accordingly, the parties agree to use the dispute resolution
procedures set forth in this Section
5.7
(the
“Dispute
Resolution Procedures”)
as
their sole means of adjudication with respect to any controversy or claim
arising out of or relating to this Agreement or its breach, unless otherwise
specified herein.
(b) Dispute
Notice.
At the
written request of any Party (a “Dispute
Notice”),
the
Parties to the dispute will, within seven Business Days of the Dispute Notice,
appoint knowledgeable, responsible representatives of the Parties to the
dispute, to meet and negotiate in good faith to resolve any dispute arising
under this Agreement. The Parties intend that these negotiations be conducted
by
business representatives, including at least one senior executive of each Party
to the dispute. The representatives shall meet and confer, in person, not later
than such seventh Business Day after the date of the Dispute Notice. The
location, format, frequency, duration and conclusion of these discussions shall
be left to the discretion of the representatives; provided that, the duration
shall not exceed 30 days from the date of the Dispute Notice (an “Action
Date”)
unless
extended by mutual written agreement of the parties setting forth a new Action
Date. The Dispute Notice and any extension shall specify the Action Date. The
Dispute Notice shall set forth the nature of the dispute, in reasonable detail.
Discussion and correspondence among the representatives for purposes of these
negotiations shall be treated as confidential information developed for purposes
of settlement, exempt from discovery and production, and shall not be admissible
in the mediation or arbitration described below. Documents identified in or
provided with such communications, which are not prepared for purposes of the
negotiations, are not so exempted and may, if otherwise admissible, be admitted
in evidence in the arbitration. If the Parties are unable to resolve any
disputes arising under or relating to this Agreement (each a “Dispute”)
using
the process described in this Section
5.7(b)
within
the time period provided, including without limitation disputes regarding a
breach or default under this Agreement, the Parties shall mediate such dispute
pursuant to the mediation provisions set forth in Section
5.7(c).
12
(c)
Mediation.
Within
20 days of the Action Date, the Parties shall select a mediator for non-binding
mediation. If the parties are unable to mutually agree on a mediator, each
Party
shall select a mediator and those selected mediators shall intern select the
single mediator to mediate over the disputes referenced in the Dispute Notice.
The mediation shall continue for no more than 30 days from the selection of
the
mediator, unless the Parties mutually agree to extend the mediation for an
additional fixed period of time. If the Parties are unable to resolve any
Disputes using the process described in this Section
5.7(b)
within
the time period provided, including without limitation disputes regarding a
breach or default under this Agreement, the Parties shall arbitrate such dispute
pursuant to the arbitration provisions set forth in Section
5.7(d).
(d) Arbitration.
Any
Dispute that has not been resolved within the time period provided for in
Section
5.7(c)
shall be
resolved by a single arbitrator in binding arbitration. The Dispute Notice
shall
automatically serve as a written notice of a request to submit the Dispute
for
arbitration if there has not been a resolution of the Dispute by the Mediation
Action Date, and the Parties agree to submit the Dispute to a single arbitrator
who shall be appointed within 30 days after the expiration of the Mediation
Action Date (the “Submission Period”). During the Submission Period, the Parties
shall appoint the arbitrator in accordance with the Commercial Arbitration
Rules
(then in effect) of the American Arbitration Authority (“AAA”),
as
modified below. No punitive damages (or any other amount awarded for the purpose
of imposing a penalty) will be awarded for a breach of this
Agreement.
(i) During
the Submission Period, the Parties may submit a request for discovery to the
arbitrator, who shall determine whether the scope of the requested discovery
is
appropriate or useful for the resolution of the Dispute and order the discovery
in their discretion; provided that such discovery process shall be concluded
not
later than 30 days following the Submission Period (the “Discovery
Close Date”).
(ii) The
arbitration hearing shall be fixed by the arbitrator to be not sooner than
20
days nor later than 45 days after the Discovery Close Date (the “Hearing
Date”).
The
hearing shall be located at a neutral site as mutually agreed by the Parties,
or
if the Parties cannot so agree, then the location of the arbitration shall
be
held in New York City, New York. The Federal Rules of Evidence shall apply
to
the arbitration hearing. The Party bringing a particular claim or asserting
an
affirmative defense will have the burden of proof with respect thereto. Each
Party shall bear the burden of persuasion with respect to its proposal for
resolution of the matter. The arbitration proceedings and all testimony,
filings, documents and information relating to or presented during the
arbitration proceedings shall be deemed to be information subject to the
confidentiality provisions of this Agreement. The arbitrator shall set he rules
for document length, response times, and witnesses. The arbitrators will have
no
power or authority, pursuant to the rules of the AAA or otherwise, to relieve
the Parties from their agreement hereunder to arbitrate or otherwise to amend
or
disregard any provision of this Agreement, including without limitation the
provisions of Section
3.2
and this
Section.
(iii) Should
an
arbitrator refuse or be unable to proceed with arbitration proceedings as called
for by this Section, the Arbitrator shall be replaced pursuant to the rules
of
the AAA. If an arbitrator is replaced after the arbitration hearing has
commenced, then a rehearing shall take place in accordance with this Section
and
the rules of the AAA.
(iv) Within
fifteen (15) days after completion of the arbitration proceedings, the
Arbitrator will prepare and distribute to the Parties a writing setting forth
the arbitrator’s reasons for the determination. The findings and conclusions and
the award, if any, shall be deemed to be confidential information of the
Parties. Neither Party may disclose such information to any third Party other
than their professional advisors or as required by law or regulations, except
in
connection with an action to enforce the award.
13
(v) The
arbitrator is instructed to schedule promptly all discovery and other procedural
steps and otherwise to assume case management initiative and control to effect
an efficient and expeditious resolution of the Dispute. The arbitrators are
authorized to issue monetary sanctions against either Party if, upon a showing
of good cause, such Party is unreasonably delaying the proceeding.
(vi) Any
award
rendered by the arbitrators will be final, conclusive, and binding upon the
Parties and any judgment thereon may be entered and enforced in any court of
competent jurisdiction.
(vii) The
non-prevailing Party to an arbitration shall pay its own expenses, the fees
of
the arbitrator, the administrative fee of the AAA, and the expenses, including
without limitation, reasonable attorneys’ fees and costs, and expert and witness
fees and costs, incurred by the other Party to the arbitration. In the case
of a
decision which partially favors each Party, expenses shall be paid as determined
by the arbitrator. In connection with any judicial proceeding to compel
arbitration pursuant to this Agreement or to confirm, vacate or enforce any
award rendered by the arbitrator, the prevailing Party in such a proceeding
shall be entitled to recover reasonable attorney’s fees and expenses incurred in
connection with such proceedings, in addition to any other relief to which
it
may be entitled.
(e) Injunctive
Relief.
Notwithstanding anything to the contrary, no Party to this Agreement shall
have
any obligation to arbitrate claims for injunctive relief, as to which any Party
shall be entitled to seek and obtain relief exclusively from the state or
federal courts sitting in New York City, New York, and each Party hereby
irrevocably submits to the jurisdiction of any such court; provided that, any
and all claims for damages shall remain subject to arbitration.
5.8. 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.
5.9. Waiver.
Waiver
of any term or condition of this Agreement by any Party shall be effective
if in
a writing signed by the Party 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.
14
5.10. 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.
5.11. Entire
Agreement.
This
Agreement, including the Collateral Documents, other Exhibits and the other
documents delivered pursuant hereto and thereto, 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.
5.12. 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.
5.13. Time
is of the Essence.
Time is
of the essence in the performance of this Agreement.
[the
balance of this page intentionally left blank – signature
page
follows]
15
IN
WITNESS WHEREOF,
the
Parties have caused this Agreement to be duly executed as of the date first
written above.
|
By:
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/s/
▇▇▇▇▇ ▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇▇▇▇▇
|
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Title:
Chief Executive Officer
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RENEWABLE
ENERGY SOLUTIONS, INC.
|
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By:
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/s/
Zoltan Kiss
|
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Name:
Zoltan Kiss
|
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Title:
Director
|
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/s/
Zoltan Kiss
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ZOLTAN
KISS
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By
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
Chairman and CFO
|
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KRAFT
ELEKTRONIKAI ZRT
|
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By
|
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
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Exhibit
I
Stock
Purchase Agreement
[separate
document]
-17-
Exhibit
II
Form
of Amelio Group Release
AMELIO
GROUP RELEASE
This
Amelio Group Release (the “Amelio
Release”)
is
entered into as of August __, 2008, by and among AMELIO
SOLAR, INC.
(“Amelio”),
RENEWABLE
ENERGY SOLUTIONS, INC.,
(“RESI”),
▇▇▇▇▇▇
KISS
(“Z.
Kiss”),
and
their existing and future direct and indirect Subsidiaries or Affiliates and
are
hereinafter sometimes collectively referred to as the “Amelio
Group”
in
favor of SOLAR
THIN FILMS, INC. (“STF”),
together with its wholly-owned Subsidiaries, KRAFT
ELEKTRONIKAI ZRT (“Kraft”) and
SUPERIOR
VENTURES CORP. (“Superior”)
and its
majority-owned Subsidiary, SOLAR
THIN POWER, INC. (“STP”),
and
the Company’s future direct and indirect Subsidiaries or Affiliates and are
hereinafter sometimes collectively referred to collectively as the “STF
Group.”
The
foregoing parties are hereinafter sometimes also referred to collectively as
the
“Parties”
or
individually as a “Party”.
Defined terms used herein but not otherwise defined herein shall have the
meaning attributed to them in the Master Settlement Agreement (as defined
below).
RECITALS
WHEREAS,
the Parties entered into a Master Settlement Agreement, on the same date hereof,
to resolve all claims and controversies among the Parties; (the “Settlement
Agreement”);
WHEREAS,
STF, KRAFT, and AMELIO entered into a Strategic Alliance and Cross License
Agreement, dated the same date hereof, for the purposes of defining their future
cooperation and obligations to one another;
WHEREAS,
the members of the Amelio Group wish to release the members of the STF Group
from all claims, causes of action, demands, costs, expenses or other
obligations;
NOW
THEREFORE, in consideration, the receipt and sufficiency of which are hereby
acknowledged, the Amelio Group hereby stipulates and agrees as
follows:
AGREEMENT
1. Amelio
Group Release
In
consideration of the terms and conditions of the Settlement Agreement,
incorporated herein by reference, and other good and valuable consideration,
the
receipt and sufficiency of which are hereby acknowledged, the
general release(s) by each member of the Amelio Group to each member of the
STF
Group pursuant to which, inter
alia,
each
member of the Amelio Group shall jointly and severally irrevocably release
each
member of the STF Group, and all of their respective officers, directors and
stockholders, from all claims, causes of action, demands, costs, expenses or
other obligations (collectively, “Claims”)
that
any one or more members of the Amelio Group may individually or collectively
have as of the Closing Date against the STF Group and/or their respective
officers, directors or stockholders, including, without limitation, all Claims
under the Existing Contracts, and shall release each member of the STF Group
and
their respective officers, directors or stockholders from all such Claims;
provided,
however, that
the
foregoing shall not be deemed to constitute a release with respect to (a) the
ongoing obligations of the STF Group under the Settlement Agreement, the
Exhibits thereto, and the Collateral Documents, and (b) certain rights that
the
children of Z. Kiss may have following the Closing Date with respect to their
ownership of shares of Company Common Stock that such Persons, solely in their
capacities as stockholders, will retain in the Company following the Closing
Date.
-18-
2. Confidentiality
It
is
understood by the Parties that this Amelio Release is a requirement under the
Settlement Agreement . None of the Parties shall, directly or indirectly,
disclose, cause to be disclosed or permit to be disclosed, the existence or
contents and terms of this Amelio Release, except as necessary to disclose
to
the disclosing Party’s auditors, lawyers and agents, or if disclosure is
required by law.
3. Enforcement
Nothing
in this Amelio Release shall prevent any Party from commencing an action to
enforce the terms, conditions and obligations of the Settlement Agreement.
4. Joint
Drafting
This
Amelio Release reflects the joint drafting efforts of all Parties hereto and
any
ambiguities herein shall not be construed against any Party hereto.
5. Amendments
This
Amelio Release may not be amended, revoked or modified, in whole or in part,
except by a writing executed by all of the Parties.
6. Governing
Law and Jurisdiction
This
Amelio Release shall be governed by and interpreted under the laws of the State
of New York, without giving effect to principles of conflicts of law. The
Parties agree that any dispute or default arising out of and/or relating in
any
manner to the terms or provisions of this Amelio Release may be brought in
any
court of competent jurisdiction in the State of New York, and by execution
and
delivery of this Amelio Release, each party (i) accepts, generally and
unconditionally, the jurisdiction of such courts and any related appellate
court, and irrevocably agrees to be bound by any judgment rendered thereby
in
connection with this Amelio Release and (ii) irrevocably waives any objection
it
may now or hereafter have as to the venue of any such suit, action or proceeding
brought in such a court or that such court is an inconvenient forum.
-19-
7. Execution
This
Amelio Release may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
and
the same instrument.
8. Unenforceability
If
any
term, provision and/or obligation of this Amelio Release shall be adjudicated
by
the Court to be unenforceable in any situation and/or as to any Party, person
and/or entity, the remaining terms, conditions and obligations shall remain
enforceable to the maximum extent in all other situations and as to all other
Parties, persons and/or entitles.
9. Authorization
The
Parties hereto represent and acknowledge that the persons signing this Amelio
Release are fully authorized to enter into this Amelio Release on their
behalf.
[Remainder
of page intentionally left blank]
-20-
IN
WITNESS WHEREOF, the Parties hereto have caused this Amelio Release to be
executed as of the date indicated above.
|
AMELIO
SOLAR, INC.
|
||
|
By:
|
||
|
Name:
Title:
|
||
|
RENEWABLE
ENERGY SOLUTIONS, INC.
|
||
|
By:
|
||
|
Name:
Title:
|
||
|
|
ZOLTAN
KISS
|
|
-21-
Exhibit
III
STF
Group Release
STF
GROUP RELEASE
This
STF
Group Release (the “STF
Release”)
is
entered into as of August __, 2008, by and among SOLAR
THIN FILMS, INC. (“STF”),
together with its wholly-owned Subsidiaries, KRAFT
ELEKTRONIKAI ZRT (“Kraft”) and
SUPERIOR
VENTURES CORP. (“Superior”)
and its
majority-owned Subsidiary, SOLAR
THIN POWER, INC. (“STP”),
and
the Company’s future direct and indirect Subsidiaries or Affiliates and are
hereinafter sometimes collectively referred to collectively as the “STF
Group”
in
favor of AMELIO
SOLAR, INC.
(“Amelio”),
RENEWABLE
ENERGY SOLUTIONS, INC.,
(“RESI”),
▇▇▇▇▇▇
KISS
(“Z.
Kiss”),
and
their existing and future direct and indirect Subsidiaries or Affiliates and
are
hereinafter sometimes collectively referred to as the “Amelio
Group”.
The
foregoing parties are hereinafter sometimes also referred to collectively as
the
“Parties”
or
individually as a “Party”.
Defined terms used herein but not otherwise defined herein shall have the
meaning attributed to them in the Master Settlement Agreement (as defined
below).
RECITALS
WHEREAS,
the Parties entered into a Master Settlement Agreement, on the same date hereof,
to resolve all claims and controversies among the Parties; (the “Settlement
Agreement”);
WHEREAS,
STF, KRAFT, and AMELIO entered into a Strategic Alliance and Cross License
Agreement, dated the same date hereof, for the purposes of defining their future
cooperation and obligations to one another;
WHEREAS,
the members of the STF Group wish to release the members of the Amelio Group
from all claims, causes of action, demands, costs, expenses or other
obligations;
NOW
THEREFORE, in consideration, the receipt and sufficiency of which are hereby
acknowledged, the STF Group hereby stipulates and agrees as
follows:
AGREEMENT
1. STF
Group Release
In
consideration of the terms and conditions of the Settlement Agreement,
incorporated herein by reference, and other good and valuable consideration,
the
receipt and sufficiency of which are hereby acknowledged, the
general release(s) by each member of the STF Group to each member of the Amelio
Group pursuant to which, inter
alia,
each
member of the STF Group shall jointly and severally irrevocably release each
member of the Amelio Group and all of their respective officers, directors
and
stockholders, from all claims, causes of action, demands, costs, expenses or
other obligations (collectively, “Claims”)
that
any one or more members of the STF Group may individually or collectively have
as of the Closing Date against the Amelio Group and/or their respective
officers, directors or stockholders, including, without limitation, all Claims
under the Existing Contracts, and shall release each member of the Amelio Group
and their respective officers, directors or stockholders from all such Claims;
provided,
however, that
the
foregoing shall not be deemed to constitute a release with respect to the
ongoing obligations of the Amelio Group under the Settlement Agreement, the
Exhibits thereto, and the Collateral Documents.
-22-
2. Confidentiality
It
is
understood by the Parties that this STF Release is a requirement under the
Settlement Agreement . None of the Parties shall, directly or indirectly,
disclose, cause to be disclosed or permit to be disclosed, the existence or
contents and terms of this STF Release, except as necessary to disclose to
the
disclosing Party’s auditors, lawyers and agents, or if disclosure is required by
law.
3. Enforcement
Nothing
in this STF Release shall prevent any Party from commencing an action to enforce
the terms, conditions and obligations of the Settlement Agreement.
4. Joint
Drafting
This
STF
Release reflects the joint drafting efforts of all Parties hereto and any
ambiguities herein shall not be construed against any Party hereto.
5. Amendments
This
STF
Release may not be amended, revoked or modified, in whole or in part, except
by
a writing executed by all of the Parties.
6. Governing
Law and Jurisdiction
This
STF
Release shall be governed by and interpreted under the laws of the State of
New
York, without giving effect to principles of conflicts of law. The Parties
agree
that any dispute or default arising out of and/or relating in any manner to
the
terms or provisions of this STF Release may be brought in any court of competent
jurisdiction in the State of New York, and by execution and delivery of this
STF
Release, each party (i) accepts, generally and unconditionally, the jurisdiction
of such courts and any related appellate court, and irrevocably agrees to be
bound by any judgment rendered thereby in connection with this STF Release
and
(ii) irrevocably waives any objection it may now or hereafter have as to the
venue of any such suit, action or proceeding brought in such a court or that
such court is an inconvenient forum.
7. Execution
This
STF
Release may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
-23-
8. Unenforceability
If
any
term, provision and/or obligation of this STF Release shall be adjudicated
by
the Court to be unenforceable in any situation and/or as to any Party, person
and/or entity, the remaining terms, conditions and obligations shall remain
enforceable to the maximum extent in all other situations and as to all other
Parties, persons and/or entitles.
9. Authorization
The
Parties hereto represent and acknowledge that the persons signing this STF
Release are fully authorized to enter into this STF Release on their
behalf.
[Remainder
of page intentionally left blank]
-24-
IN
WITNESS WHEREOF, the Parties hereto have caused this Amelio Release to be
executed as of the date indicated above.
|
By
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman
and CFO
|
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KRAFT
ELEKTRONIKAI ZRT
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||
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By
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||
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Title: Chairman
|
||
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SUPERIOR
VENTURES CORP.
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||
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By
|
||
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Title: Chairman
|
||
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SOLAR
THIN POWER, INC.
|
||
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By
|
||
|
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Title: Chairman
|
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Exhibit
IV
Strategic
Alliance and Cross License Agreement