AMENDMENT to MASTER SETTLEMENT AGREEMENT among SOLAR THIN FILMS, INC. KRAFT ELEKTRONIKAI ZRT ZOLTAN KISS AMELIO SOLAR, INC. and RENEWABLE ENERGY SOLUTIONS, INC. -and- AMENDMENT TO STOCK PURCHASE AGREEMENT among SOLAR THIN FILMS, INC. ZOLTAN KISS MARLA...
AMENDMENT
to
among
KRAFT
ELEKTRONIKAI ZRT
ZOLTAN
KISS
AMELIO
SOLAR, INC.
and
RENEWABLE
ENERGY SOLUTIONS, INC.
-and-
AMENDMENT
TO STOCK PURCHASE AGREEMENT
among
ZOLTAN
KISS
XXXXX
XXXXXXXXX XXXX
and
XXXXXXX
XXXXXX KISS
dated
as of December 22, 2008
AMENDMENT TO MASTER SETTLEMENT
AGREEMENT
AND
STOCK PURCHASE AGREEMENT
THIS AMENDMENT (“Amendment”) is made and entered into
this 22nd day of
December 2008, amends certain of the terms of a MASTER SETTLEMENT AGREEMENT,
dated as of August 12, 2008 (the “Settlement
Agreement”), and a STOCK
PURCHASE AGREEMENT, dated as of August 12, 2008 (the “Purchase
Agreement”, and with the Settlement Agreement, the “Agreements”),
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”), XXXXX XXXXXXXXX
XXXX, an individual
(“M.
Kiss”) and XXXXXXX
XXXXXX KISS, an individual (“G.
Kiss”).
Z.
Kiss, M. Kiss and G. Kiss are hereinafter sometimes referred to as the “Sellers”
and the Company, Kraft, Amelio, RESI and the Sellers are hereinafter sometimes
individually referred to as a “Party”
and collectively as the “Parties.” Except
as otherwise defined herein, capitalized terms and terms in quotes shall have
the same meaning as are defined in the Settlement Agreement and the Purchase
Agreement.
1. Amendment
to Definitions.
(a) The
definition of “Outside Closing
Date” as defined in Article I of the Settlement Agreement is hereby
amended and superseded in its entirety by the following:
“Outside
Closing Date. The term “Outside Closing
Date” shall mean 5:00 p.m. (Eastern Standard Time) on May 31,
2009.”
(b) The
definition of “RESI
Debt” as defined in Article I of the Settlement Agreement is hereby
amended and superseded in its entirety by the following:
“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 $831,863 owed by RESI to the Company or its Affiliates
as of the Closing Date; provided, that if the Transferred CG Solar Equity is not
delivered to the Company by December 31, 2008, the RESI Debt shall be an amount
not to exceed $1,331,863.”
(c) The
definition of “RESI Debt
Settlement Deliverables” as defined in Article I of the Settlement
Agreement is hereby amended and superseded in its entirety by the
following:
“RESI Debt
Settlement Deliverables. The term
“RESI Debt Settlement Deliverables” means the documents specified in Section 1.4 to be
delivered by Z.Kiss and RESI on or before December 31, 2008 and at or following
the Closing Date.”
2. Amendment to RESI Debt
Settlement Payment and Deliverables
Section 1.4 of the Settlement Agreement
is hereby deleted in its entirety, and the following Section 1.4 is substituted
in lieu thereof.
“1.4 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. Such RESI Debt shall be paid as follows:
(a) On
or before December 31, 2008, 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”).
(b) The
$831,863 balance of the RESI Debt (the “RESI Debt Balance”)
shall be settled and paid on or following the Closing Date, as
follows:
(i) to
the extent not previously paid in full, as set forth in Section 1.4(b)(ii)
below, out of the net proceeds received by him from the public or private sale
of all or a portion of his 10,000,000 Subject Shares under the Stock Purchase
Agreement as amended hereby, Z. Kiss shall pay to the Company a total of up to
$434,315 of the RESI Debt Balance, such amount to be appropriately pro-rated
based upon $0.0434315 to be paid for each of such 10,000,000 Subject Shares
sold; and
(ii) unless
a portion of the RESI Debt Balance shall have been paid by Z. Kiss in accordance
with Section
1.4(b)(i) above, the entire RESI Debt Balance (or any unpaid portion
thereof) shall be paid to the Company by Amelio on the earlier to
occur of: (i) receipt of net proceeds of a financing by Amelio (the “Amelio Financing”) of
not less than $10,000,000; or (ii) receipt of payment by RESI or Amelio from CG
Solar - the customer for whom the a-Si equipment giving rise to the RESI Debt
was shipped. To the extent that the RESI Debt Balance shall be paid
in whole or in part by Kiss, as set forth in Section 1.4(b)(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.
(c) Amelio
hereby agrees to guaranty payment of the RESI Debt Balance to the
Company.”
3.
Amendment to Purchase
Agreement.
(a) Notwithstanding
anything to the contrary, express or implied, contained in the Purchase
Agreement, in the event that any time or from time to time prior to the Outside
Closing Date, any of the Sellers shall receive a bona fide written offer (the
“Offer”)
from any one or more financially credible individual or institutional
purchaser(s), to purchase as a principal (and not acting as a broker or agent)
in a private transaction, all or any portion of the Subject Shares, then and in
such event, such Seller(s) give written notice to the Company (the “Notice”). Such
Notice shall include the Offer, set forth the name of the prospective
purchaser(s) and all of the terms and conditions of the Offer. The
Company shall have the right, but not the obligation, at any time within thirty
(30) days from receipt of the Notice, to purchase that number of Subject Shares
proposed to be purchased in the Offer (the “Offered
Shares”) and at the same price per share and payment terms as is set
forth in the Offer. In the event that the Company does not elect to
purchase the Offered Shares by the expiration of such thirty (30) day period,
then the Seller(s) receiving the Offer may accept the Offer and sell the Offered
Shares to the purchaser(s), but only upon the terms and conditions set forth in
the Notice.
2
(b) The
remaining Subject Shares not sold in accordance with Section (a) above, shall
remain subject to all of the terms and conditions of the Purchase Agreement and
the Agreements.
4. Agreement
as to Nanergy Solar Inc.
There shall be added to the Settlement
Agreement, the following additional provision:
“By his
execution of this Amendment, Xxxxxx X. Xxxxx and The Xxxxx Family Irrevocable
Stock Trust (the “Trust”)
do hereby agree that all indebtedness owed to Xxxxxx X. Xxxxx and the Trust by
Nanergy Solar, Inc. (“Nanergy”),
an Affiliate of Z. Kiss is hereby deemed to be fully paid and satisfied, and
each of Xxxxxx X. Xxxxx and the Trust do hereby agree to relinquish all capital
stock and other equity in Nanergy. To the extent that any of such
Persons shall have received notes or stock certificates of Nanergy, the same
shall be returned to Nanergy on or before December 31, 2008, marked cancelled
and with blank stock powers duly executed.”
5. Miscellaneous
Except as otherwise expressly provided
in this Amendment, all of the terms and conditions set forth in the Agreements
and in the Settlement and
Strategic Alliance Agreement, dated as of September 12, 2008 (the “Strategic
Alliance Agreement”) among certain of the Parties hereto, shall remain in full
force and effect and are incorporated herein by this
reference.
The
balance of this page intentionally left blank – signature page
follows
3
IN WITNESS WHEREOF, the
Parties have caused this Amendment to be duly executed as of the date first
written above.
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AMELIO
SOLAR, 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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RENEWABLE
ENERGY SOLUTIONS, INC..
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By:
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/s/ Zoltan Kiss
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Name:
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Zoltan
Kiss
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Title:
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President
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/s/ Zoltan Kiss
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ZOLTAN
KISS
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/s/ Xxxxxxx Xxxxxx Kiss
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XXXXXXX
XXXXXX KISS
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/s/ Xxxxx Xxxxxxxxx Xxxx
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XXXXX
XXXXXXXXX XXXX
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By
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/s/ Xxxxxx X. Xxxxx
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Name:
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Xxxxxx
X. Xxxxx
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Title:
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Chairman
and CFO
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KRAFT
ELEKTRONIKAI ZRT
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By
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/s/ Xxxxxx X. Xxxxx
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Name:
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Xxxxxx
X. Xxxxx,
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Title:
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Chairman
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/s/ Xxxxxx X. Xxxxx
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XXXXXX
X. XXXXX
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THE
XXXXX FAMILY IRREVOCABLE STOCK TRUST
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By:
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/s/ Xxxxxxx Xxxxx
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Xxxxxxx
Xxxxx, Trustee
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