June 1, 2009 MKM Opportunity Master Fund, Ltd. MKM SP1, LLC c/o MKM Capital Advisors, LLC New York, New York 10170 Attn: Mr. David Skriloff, Portfolio Manager Steven Posner Irrevocable Trust u/t/a dated June 17, 1965 10800 Biscayne Boulevard, Suite...
Exhibit 10.1
MKM SP1,
LLC
c/o MKM
Capital Advisors, LLC
000
Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xx.
Xxxxx Xxxxxxxx, Portfolio Manager
Xxxxxx
Xxxxxx Irrevocable Trust u/t/a dated June 17, 1965
00000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx,
Xxxxxxx 00000
Gentlemen:
This letter sets forth certain
agreements involving Hague Corp., a Nevada corporation (“Hague”), and its
wholly-owned subsidiary, Solterra Renewable Technologies, Inc., a Delaware
corporation (“Solterra”), on the
one hand, and MKM Opportunity Master Fund, Ltd., MKM SP1, LLC and Xxxxxx Xxxxxx
Irrevocable Trust, on the other hand (collectively, the “Noteholders”), as it
pertains to the Noteholders’ 8% senior secured convertible debentures (and
related security interests) in the aggregate principal amount of $1.5 million
(the “Notes”),
as more fully outlined below.
1. (a) The
Noteholders will give Hague and its guarantor, Solterra, a 120-day standstill
period from the date hereof (the “Standstill Period”),
pursuant to which the Noteholders shall not pursue any of their rights under the
Notes, Security Agreements, Guarantee, Pledge Agreement and other related
Transaction Documents, as those terms are defined in the Securities Purchase
Agreement, dated November 4, 2008. If Solterra cannot raise at least $2.0
million by the end of the Standstill Period, then the Noteholders’ existing
rights and remedies shall go back into full force and effect. Hague
and Solterra acknowledge that the Noteholders have no obligation to make any
capital contributions or raise any capital or do anything further from the date
hereof to or for Hague or any of its subsidiaries.
(b) In
consideration for the Noteholders not taking any action during the Standstill
Period, Hague shall issue to the Noteholders warrants to purchase an aggregate
of 1,000,000 shares of Hague common stock at an exercise price of $0.25 per
share for a period of 18 months, with cashless exercise provisions which shall
apply in the event no registration statement as to those warrant shares is
effective at the time of exercise.
(c) Hague
acknowledges and agrees that the 2,000,000 freely-tradable shares of Hague
common stock held by Xxxxxx Xxxxxx, which were acquired in January 2009 in a
private transaction with a third party, are legally issued, fully paid and
non-assessable, and are not subject to forfeiture or cancellation by Hague or,
to its knowledge, any other party.
(d) Promptly
following the execution of this letter agreement, Oceanus Capital LLC agrees to
transfer and surrender to Hague, through Xxxxxxxxx Xxxxxxx, LLP, (and Hague
agrees to redeem and cancel) 2,350,000 shares of Hague common stock, which it
acquired since the completion of the Hague “reverse merger.” As
consideration for such transfer, and participation in the transactions
contemplated in this letter agreement, Hague shall issue to Oceanus Capital LLC
2,350,000 “unregistered” shares of Hague common stock, each bearing an
appropriate restrictive legend, which shall be duly authorized, legally issued,
fully paid, non-assessable and binding obligations of Hague. If and
to the extent Oceanus Capital LLC, Xxxxxxx Xxxxxxx and/or Xxxxx Xxxx receive or
purchase shares of Hague common stock from any third party after the date
hereof, Oceanus Capital LLC, Xxxxxxx Xxxxxxx and/or Xxxxx Xxxx, as the case may
be, will transfer and surrender such shares to Hague for “unregistered” shares
of Hague common stock, each bearing an appropriate restrictive legend, exchanged
on a one-for-one basis.
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(e) Sound
Capital, Inc. represents to the Company that it has pledged 440,000 shares of
Hague common stock to a third party. Sound Capital, Inc. agrees not to publicly
sell or otherwise transfer or assign these 440,000 shares (except pursuant to
the terms of the Pledge Agreement) for a period of 120 days from the date
hereof.
(f) The
warrants and shares being issued hereunder are issued irrevocably,
notwithstanding any termination of this letter agreement pursuant to the terms
of Section 13 below.
2. Phoenix
Alliance Corp. will use its best efforts to raise up to $10.0 million for
Solterra through the sale of Common Stock and Warrants (the “Private Offering”)
and/or Sthe receipt of grants for Solterra during the Standstill
Period. Any Private Offering by Solterra with terms that value
Solterra (on a pre-money basis) at less than $7.0 million shall require the
prior consent of the Noteholders. Likewise, any private placement by
Hague during the Standstill Period with terms that include a common stock price
of less than $0.20 per share, or warrant exercise price of less than $0.20 per
share (or similar convertible, exercisable or exchangeable security with a price
or implied price of less than $0.20 per share), whether on the face of such
securities or pursuant to any reset, adjustment or other price protection
provision, shall require the prior consent of the Noteholders. The
Noteholders shall have no obligation to invest in the Private Offering by
Solterra or any private placement by Hague.
3. During
the Standstill Period, at such time as the Solterra financing described in
Section 2 above successfully raises at least $2.0 million from the sale of
securities pursuant to the Private Offering and/or the receipt of grants, then
the Noteholders shall be provided with a 10-day written notice (sent by
confirmed e-mail, fax or overnight courier) disclosing that at least $2.0
million has been received and stating Hague’s intention to retire the principal
amount of the Notes and accrued interest thereon. The Noteholders, during this
10-day time period, shall each have the opportunity to convert their Notes in
Hague by moving the Notes in their entirety down to Solterra and converting the
principal amount of the Notes and accrued interest thereon in their entirety
into common stock of Solterra at a 25% discount to the Private Offering common
stock price per share, and receiving a proportional number of warrants and/or
any other securities sold in the Private Offering at a similar discount,
pursuant to which the $2.0 million is raised (ignoring the terms under which any
monies are received pursuant to grants in which no equity securities are
issued). [Note: the word
proportional is to be based upon the terms of the private placement. This means
if the investors in the private placement offering receive one warrant for every
share purchased, then the Noteholders can receive one share and one warrant upon
conversion. If the investors in the private placement offering receive one
warrant for every two shares of common stock purchased, then proportional means
that for every two shares received upon conversion of the notes, the Noteholders
will receive one warrant.] Immediately following the 10-day notice period, if
any of the Noteholders do not otherwise accept such offer, or immediately
following an earlier response rejecting the opportunity to convert the principal
amount of their Notes and accrued interest thereon in their entirety, Hague or
Solterra shall pay in cash the full outstanding principal balance of the Notes
and accrued interest thereon to such Noteholders. In such event, all the rights
under the Transaction Documents and this letter agreement shall terminate;
however, the Noteholders shall continue to own their existing common stock in
Hague and the warrants granted under Section 1 above. During the
Standstill Period, no interest shall be paid (but will be accrued) to the
Noteholders by Hague. If Solterra does not successfully raise at least $2.0
million from the sale of securities pursuant to the Private Offering and/or
receipt of grants during the Standstill Period, then Hague shall have seven (7)
business days following the termination of the Standstill Period to deliver all
accrued and unpaid interest to the Noteholders in accordance with the terms of
the Transaction Documents. In the event of conversion, all shares of common
stock and warrants will be rounded up or down to the nearest whole
number.
4. At
the option of Solterra, Phoenix Alliance Corp. and/or its designees will invest
up to $400,000 into Solterra upon the execution of this letter
agreement. These investments will be in the form of a Convertible
Note, convertible at a 50% discount to the Private Offering common stock price
per share without any value being attributable to the warrants. [Note: In the event
that a portion of the $2.0 million is raised from equity grants, then the
parties shall ignore the terms under which any monies are received pursuant to
grants in which no equity securities are issued]. These Notes will be
subordinated to the rights of the Noteholders.
5. Xxxxx
Xxxxxx shall resign from Hague’s Board upon the execution of this letter
agreement and the Board shall replace him, if requested by the Noteholders, with
Xxxxx Xxxxxxxx. Xx. Xxxxxx shall not seek the vote of other Board members for
him to remain on Hague’s Board by contacting other board
members. Solterra has agreed to consider adding Xx. Xxxxxx as a
member of its Board of Directors, in the discretion of Xxxxxxx Xxxxxxx, at such
time as the Noteholders convert the principal amount of the Notes and accrued
interest thereon into securities of Solterra in accordance with Section 3
above.
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Hague has
received an estimate of $39,000 for directors and officers liability insurance
per year. However, the condition of obtaining same is that Hague must have cash
(or equivalents) of at least $250,000 in the bank at the time that the policy is
issued. As promptly as Hague satisfies the foregoing conditions, Hague will
obtain and maintain in force, for a period of at least three years, a directors
and officers liability insurance policy in an amount of not less than $2.0
million. Additionally, Hague shall indemnify Xx. Xxxxxxxx (should he
join the Board) to the fullest extent allowed by Nevada law (as it now exists
and as may be amended).
6. On
or before Solterra’s acceptance of the Private Offering, it shall assign its
License Agreement with Rice University to Hague and it shall obtain the written
permission of Rice University if required by the agreement. Simultaneously,
Hague shall grant Solterra the exclusive worldwide right under the Rice License
Agreement to purchase the quantum dots for solar purposes, including the right
to grant sublicenses. Hague shall be the sole supplier of the quantum dots to
Solterra and to its sublicensees. Solterra shall pay a licensing fee
to Hague in an amount necessary to retire the Notes (principal and accrued but
unpaid interest) in full (unless the Noteholders agree to have Solterra assume
these obligations from Hague and convert into common stock in accordance with
Section 3), plus the sum of $1.0 million. It is understood that
Solterra will be the solar sub and Hague shall produce and sell the quantum dots
and shall have the right to grant sublicenses for all other
purposes. Solterra is currently in discussions with a non-affiliated
party for the grant of money in an amount to be negotiated and for possible
additional financing. The rights of Hague and Solterra will be
subject to the final agreements and understandings with this non-affiliated
party, including any rights of first refusal granted to it. During
the Standstill Period and thereafter, except as outlined above, Hague shall not
transfer and/or sell any of its assets without the express prior written consent
of the Noteholders, unless the Notes have been repaid or converted in accordance
with Section 3 above. Nothing contained herein shall be construed to prohibit
Hague or Solterra from licensing its Intellectual Property or selling its
quantum dots in a business unrelated to solar to third parties in arm’s-length
transactions.
7. Hague
has a contract with Arizona State University pursuant to which certain
technology is being developed at a cost of approximately $845,000. This
technology will remain with Hague.
8. Solterra
will remain a wholly-owned operating subsidiary and its operations will be
maintained as they currently exist until it receives the proceeds from the
Private Offering, which may consist of funds of less than $2.0 million. It may
also receive grants of money irrespective of amount.
9. Upon
conversion of the Noteholders’ Notes into Solterra common stock or the repayment
of the Notes in full, the following shall occur: (i) all security interests,
registration rights and other such rights and obligations of the Noteholders (as
noteholders only and in no other capacity) shall be terminated, (ii) Xxxxxxx
Xxxxxx and, if elected Xx. Xxxxxxxx, shall resign from the Board of Directors of
Hague, and (iii) the Noteholders, Hague and Solterra shall exchange general
releases which shall pertain to all past actions of the Noteholders, as
Noteholders, stockholders or security holders in Hague or Solterra, as the case
may be. The intent here is that all past causes of action that the Noteholders
may allegedly have as Noteholders or stockholders shall be
extinguished.
10. The
Hague Board shall agree, commencing upon the execution of this letter agreement,
to hold board meetings no less frequently than monthly, until the completion of
the Private Offering and/or grants of at least $2.0 million. During this time
period, Xxxxxxx Xxxxxxx will direct Hague’s Chief Financial Officer to provide
to each Board member monthly budgets (including cash receipts), copies of all
agreements and summaries of all transactions being negotiated, any operating
plans, settlements of trade or other debt, financial statements, changes in
customer, vendor or employment relationships, and press releases and other
public communications, among other matters. It is further agreed that
Hague shall adopt a “Directors Manual: Public Corporation Governance and
Guidelines,” which includes a Code of Business Ethics, in the form customarily
adopted by smaller public companies and comply with all applicable provisions of
the Xxxxxxxx-Xxxxx Act of 2002.
11. After
the completion of Solterra’s financing efforts, it will endeavor to become an
independent public entity through a self-directed offering. Solterra’s Board
will be expanded to include additional directors. Xx. Xxxxxxx will remain Chief
Executive Officer of one of these two companies with a new Chief Executive
Officer to be identified and hired on commercially reasonable terms to run the
other company. Xx. Xxxxxxx shall serve as Chairman of the Board of Directors of
the company in which he is Chief Executive Officer and he shall serve as a
director of the other company. In the interim, until a new Chief Executive
Officer is found for the company in which he chooses not to serve as Chief
Executive Officer, he will serve as interim Chief Executive Officer until his
replacement is hired.
12. Upon
execution of this letter agreement, the parties will agree on a mutually
acceptable press release and the filing of a Form 8-K.
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13. The
provisions of this letter agreement (except as specified in the second paragraph
of Section 1 of this letter agreement) shall automatically terminate and be of
no further force and effect ab initio, as if this agreement never took place or
upon the happening of one of the following events: (a) the entry of an order for
relief against Hague or Solterra (or equivalent thereof) in any case under title
11 of the United States Code (or in connection with any case or proceeding
involving Hague or Solterra under any state or federal insolvency law, (b) if
Hague or Solterra fails to make any required payments, under the terms of its
agreements with Rice University or Arizona State University, but only where
either university notifies Hague or Solterra that it is in default and that all
opportunities to cure the default have past, or (c) upon a material default
(breach) of this letter agreement by Hague or Solterra and after being given
written notice of such default and at least five business days opportunity to
cure the default.
14. During
the term hereof, Hague, Solterra and the Noteholders hereby agree (a) to
implement this letter agreement in good faith and (b) not engage in any
activities that will in any way impair achieving and implementing a
restructuring of the Hague and Solterra businesses and the repayment or
conversion of the indebtedness under the Noteholders’ Notes. The
relationship of the Noteholders, as lenders, and Hague and Solterra, as
borrowers, is strictly that of a creditor and debtor. The Noteholders
are not partners or joint venturers with Hague or Solterra, nor do the
Noteholders have any fiduciary duties with respect to Hague or
Solterra.
15. Each
party agrees to be responsible for its own expenses in connection with the
transaction contemplated hereby.
16. This
letter agreement may not be amended or modified except in
writing. This letter agreement and all exhibits hereto represent the
entire understanding between Hague, Solterra and the Noteholders relating to the
subject hereof and thereof, and all prior agreements, negotiations and
discussions are merged into it. This letter agreement shall be
governed by and construed in accordance with the laws of the State of New York
without giving effect to conflicts of law principles thereof which might refer
such interpretations to the laws of a different state or
jurisdiction.
If the foregoing correctly sets forth
our letter agreement please acknowledge your acceptance of this letter agreement
by signing and returning a copy of this letter agreement to the
undersigned.
This
letter agreement may be executed by the parties hereto in
counterpart. This letter agreement and all such counterparts so
executed taken together shall be deemed to constitute one and the same
instrument.
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Very
truly yours,
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|
|
By:
|
/s/ Xxxxxxx Xxxxxxx | |
| Xxxxxxx Xxxxxxx | |||
| Chief Executive Officer | |||
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SOLTERRA
RENEWABLE TECHNOLOGIES, INC.
By:
/s/ Xxxxxxx Xxxxxxx
Xxxxxxx
Xxxxxxx
Chief
Executive Officer
ACCEPTED
AND AGREED:
MKM
OPPORTUNITY MASTER FUND, LTD.
By:
/s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
Portfolio
Manager
MKM SP1,
LLC
By:
/s/ Xxxxx Xxxxxxxx
Xxxxx
Xxxxxxxx
Portfolio
Manager
XXXXXX
XXXXXX IRREVOCABLE TRUST U/T/A
DATED
JUNE 17, 1965
By:
/s/ Xxxxxx Xxxxxx
Xxxxxx
Xxxxxx
Trustee
For
Purposes of Section 1(c) Only:
/s/
Xxxxxx Xxxxxx
Xxxxxx
Xxxxxx
For
Purposes of Section 1(d) Only:
OCEANUS
CAPITAL LLC
By:
/s/ Xxxxx X. Xxxx
Xxxxx X.
Xxxx, Managing Director
/s/ Xxxxx
X. Xxxx
Xxxxx X.
Xxxx, Individually
/s/ Xxxxxxx Xxxxxxx,
Individually
Xxxxxxx
Xxxxxxx, Individually
For
Purposes of Section 1(e) Only:
SOUND
CAPITAL, INC.
By: /s/
Xxxxxxx Xxxxxxx, Individually
Xxxxxxx Xxxxxxx, President
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