US SOLARTECH, INC. SECURITIES PURCHASE AGREEMENT
Exhibit
10.12
US
SOLARTECH, INC.
THE
SECURITIES OFFERED PURSUANT TO THIS PURCHASE AGREEMENT AND THE SECURITIES
ISSUABLE UPON CONVERSION OR EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”). ALL SUCH SECURITIES
MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED TO ANY
PERSON AT ANY TIME IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT COVERNG
SUCH SECURITIES UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY’S MANAGER TO THE EFFECT THAT SUCH REGISTRATION IS NOT
NECESSSARY.
INVESTMENT
IN THE COMPANY IS HIGHLY SPECULATIVE AND INVOLVES SUBSTANTIAL RISK, INCLUDING,
BUT NOT LIMITED TO THE RISKS SET FORTH IN THE SECTION ENTITLED “RISK FACTORS” IN
THE PRIVATE PLACEMENT MEMORANDUM ATTACHED HERETO. YOU SHOULD REACH THE PRIVATE
PLACEMENT MEMORANDUM CAREFULLY BEFORE INVESTING.
This
Securities Purchase Agreement (“Purchase Agreement”) is
entered into as of September 30, 2009; by and between US SolarTech, Inc., a
Delaware corporation with an executive office located at 000 Xxxx Xxxxxx Xxxxx
000, Xxxxx Xxxxxx, Xxx Xxxx 00000 (the “Company”), and ________________with
their primary residence at ________________ (“Purchaser”). As used herein, the
Company and the Purchaser are individually and respectively referred to as a
“Party” and collectively
as the “Parties.” Terms
not otherwise defined herein shall have the meanings ascribed to them in the
Private Placement Memorandum, as amended and attached hereto as Exhibit A (the “Private Placement
Memorandum”).
1.
Purchase
The
Purchaser offers and agrees to purchase, and the Company agrees to issue a (i)
subordinated convertible note bearing 7.5% and maturing on September 30, 2011,
substantially in the form of Exhibit B in the principal amount set forth on the
signature page hereto, and (ii) a warrant to purchase the number of shares of
the Company’s common stock, par value $.0001 per share, set forth on the
signature page hereto, substantially in the form of Exhibit C hereto (such note
and warrant together being the “Securities”), in consideration
of the Purchaser remitting the dollar amount designated as the investment amount
on the signature page hereto (the “Investment Amount”) to
the Company
2.
Payment
Simultaneous
with the execution of this Agreement, Purchaser shall be deemed to have
transmitted in a wire transfer an amount equal to the Investment Amount in
accordance with the wiring instructions set forth below.
Bank: Citibank
NA
Branch 180
000 Xxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
ABA: 000-0000-00
Account: US
SolarTech, Inc.
Account# 99-47167584
3. The
Offering
Purchaser
understands that the details of the offering described in the Private Placement
Memorandum (the “Offering”) are set forth in
the Private Placement Memorandum. The Offering will terminate on, or prior to,
September 30, 2009, subject to extension and/or modification in the sole
discretion of the Company, and may be extended or modified, including its terms,
without notice.
Purchaser
understands that this Purchase Agreement is not binding upon the Company unless
and until such time as (i) Payment of the Investment Amount is transferred to
the Company and (ii) the Company accepts Purchaser’s offer to purchase in
writing (the “Closing
Date”).
Purchaser
acknowledges that the Company reserves the right, in its sole discretion, to
accept or reject any Purchase Agreement.
Purchaser
acknowledges that Purchaser has received, read, understands and is familiar with
this Purchase Agreement, any attachments, including but not limited to the
Private Placement Memorandum, and together with any other filed regulatory and
bankruptcy court documents and (collectively “Offering Material”), Purchaser
further acknowledges that Purchaser has not relied upon any information
concerning the Offering, written or oral, other than those contained in this
Purchase Agreement and the Offering Material. Purchaser further understands that
any other information or literature, regardless of whether distributed prior to,
simultaneously with, or subsequent to, the date of this Purchase Agreement shall
not be relied upon by Purchaser in determining whether to make an investment in
the Securities and Purchaser expressly acknowledges, agrees and affirms that
Purchaser has not relied upon any such information or literature in making
Purchaser’s determination to make an investment in the Securities and that
Purchaser understands that the Company is under no obligation to (and that
Purchaser does not expect it to) update, revise, amend or add to any of the
information heretofore furnished to Purchaser.
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4. Acceptance
of Purchase.
Purchaser
understands that this Purchase Agreement is not binding upon the Company unless
and until such time as (i) Payment of the Investment Amount clears and is
credited to the Company’s bank account at Citibank pursuant to Section 2 hereof
and (ii) the Company accepts Purchaser’s subscription in writing (the “Acceptance Date”). Purchaser
also understands and agrees that the Securities will be issued to Purchaser
within thirty (30) days of the Acceptance Date.
5. Representations
and Warranties of Purchaser.
In
order to induce the Company to accept Purchaser’s subscription, Purchaser
further represents and warrants to the Company, its Affiliates, as defined in
the Securities Act of 1933 (the “Securities Act”), and counsel
to the Company (the “Company’s
Counsel”), and their respective agents and representatives as
follows:
(a)
PURCHASER HAS READ THE PRIVATE PLACEMENT MEMORANDUM AND EXAMINED THE RISK
FACTORS SET FORTH THEREIN, AND UNDERSTANDS THE SPECULATIVE NATURE OF AND
SUBSTANTIAL RISK INVOLVED IN INVESTMENT IN THE COMPANY.
(b) If
Purchaser has chosen to do so, Purchaser has been represented by such legal and
tax counsel and other professionals, each of whom has been personally selected
by Purchaser, as Purchaser has found necessary to consult concerning the
purchase of the Securities, and such representation has included an examination
of all applicable documents and an analysis of all tax, financial, and
securities law aspects thereof deemed to be necessary. Purchaser, together with
Purchaser’s counsel, Purchaser’s advisors, and such other persons, if any, with
whom Purchaser has found it necessary or advisable to consult, have sufficient
knowledge and experience in business and financial matters to evaluate the
information set forth in this Purchase Agreement and in the Offering Material
and the risks of the investment and to make an informed investment decision with
respect thereto. Further, Purchaser has been given the opportunity for a
reasonable time period prior to the date hereof to ask questions of, and receive
answers from, the Company or its representatives concerning the terms and
conditions of the Offering and other matters pertaining to this investment and
has been given the opportunity for a reasonable time period prior to the date
hereof to verify the accuracy of the Company’s information.
(c) With
respect to the United States federal, state and foreign tax aspects of
Purchaser’s investment, Purchaser is relying solely upon the advice of
Purchaser’s own tax advisors, and/or upon Purchaser’s own knowledge with respect
thereto. Purchaser has not relied, and will not rely upon, any information with
respect to this offering other than the information contained herein and in the
Offering Material.
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(d)
Purchaser understands that no person has been authorized to make representations
or to give any information or literature with respect to this offering that is
inconsistent with the information that is set forth herein and in the Offering
Material.
(e)
Purchaser understands that, other than as provided herein, no covenants,
representations, or warranties have been authorized by or will be binding upon
the Company, with regard to this Subscription Agreement, the performance of the
Company or any expectation of investment returns, including any representations,
warranties or agreements contained or made in any written document or oral
communication received from or had with the Company, its Affiliates, Company
Counsel or any of their respective representatives or agents. Purchaser has not
relied upon any information or representation that may be or have been made or
given except as permitted under this paragraph.
(f)
Purchaser understands that this offering has not been, and it is not anticipated
that the same will be, registered under the 1933 Securities Act, or pursuant to
the provisions of the securities or other laws of any other applicable
jurisdictions, but is being made in reliance upon the provisions of Section 4(2)
and/or 4(6) of the 1933 Securities Act and/or Regulation D and the other rules
and regulations promulgated thereunder, and/or upon such other exemption from
the registration requirements of the 1933 Securities Act as may be available
with respect to any or all of the investments in securities to be made
hereunder. Purchaser is fully aware that the Securities subscribed for by
Purchaser are to be sold to Purchaser in reliance upon such safe harbor based
upon Purchaser’s representations, warranties, and agreements as set forth
herein. Purchaser is fully aware of the restrictions on sale, transferability
and assignment of the Securities, and that Purchaser must bear the economic risk
of Purchaser’s investment herein for an indefinite period of time because the
offering has not been registered under the Securities Act and, therefore, the
Securities cannot be offered or sold unless such offer is subsequently
registered under the Securities Act or an exemption from such registration is
available to Purchaser.
(g)
Purchaser is a sophisticated Purchaser (as described in Rule 506(b) (2) (ii) of
Regulation D promulgated under the Securities Act and/or an accredited Purchaser
(as defined in Rule 501 of Regulation D promulgated under the Securities
Act).
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(h)
Purchaser’s execution and delivery of this Purchase Agreement has been duly
authorized by all necessary action and all necessary consents have been
obtained. Purchaser has no present intention to sell, distribute, pledge,
assign, or otherwise transfer the Securities, which Purchaser acquires pursuant
to this offering. Purchaser is making the investment hereunder solely for
Purchaser’s own account and not for the account of others and for investment
purposes only and not with a view to or for the transfer, assignment, resale or
distribution thereof, in whole or in part. Purchaser has no present
plans to enter into any such contract, undertaking, agreement, or
arrangement.
(i)
Purchaser agrees that Purchaser will not cancel, terminate or revoke this
Subscription Agreement, which has been executed by Purchaser, and that this
Purchase Agreement shall survive any sale, assignment or other transfer of
control over, or of all or substantially all of Purchaser’s assets or business
and Purchaser’s bankruptcy, except as otherwise provided pursuant to the laws of
any applicable jurisdiction.
(j)
Purchaser has substantial investment experience and is familiar with investments
of the type contemplated by this Subscription Agreement. Purchaser confirms that
although one of Purchaser’s motivations for investing in the Company is to
derive economic benefits therefrom, Purchaser is aware that purchase of the
Securities is a speculative investment involving a high degree of risk and there
is no guarantee that Purchaser will realize any gain from Purchaser’s investment
or realize any tax benefits therefrom and Purchaser is further aware that
Purchaser may lose all or a substantial part of Purchaser’s investment.
Purchaser understands that there are substantial restrictions on the
transferability of, and there is no existing public market for, the Securities
and it may not be possible to liquidate an investment in the Securities.
Purchaser affirms that Purchaser acknowledges that this investment is highly
speculative, involves a high degree of risk and, accordingly, Purchaser can
afford to lose the entire investment.
(k) The
address set forth herein is Purchaser’s true and correct address and Purchaser
has no present intention of becoming a resident of any other country, state, or
jurisdiction prior to, or after, Purchaser’s purchase of the
Securities.
(l)
Purchaser understands the meaning and legal consequences of the foregoing
representations and warranties, which are true and correct as of the date hereof
and will be true and correct as of the date of Purchaser’s purchase of the
Securities subscribed for herein. Each such representation and warranty shall
survive such purchase.
(m)
Purchaser acknowledges and agrees that it shall not be a defense to a suit for
damages for any misrepresentation or breach of covenant or warranty made by
Purchaser that the Company, its Affiliates, the Company’s Counsel and their
respective agents or representatives knew or had reason to know that any such
covenant, representation or warranty in this Purchase Agreement or furnished or
to be furnished to the Company by Purchaser contained untrue statements. The
foregoing shall survive any investigation of Purchaser’s representations and
warranties in this Purchase Agreement made by the Company, its Affiliates, the
Company’s Counsel and their respective agents or representatives.
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(n) No
representation or warranty that Purchaser has made in this Subscription
Agreement, or in a writing furnished or to be furnished pursuant to this
Subscription Agreement, contains or shall contain any untrue statement of fact,
or omits or shall omit to state any fact which is required to make the
statements contained herein or therein, in light of the circumstances under
which they were made, not misleading. There is no fact relating to Purchaser’s
business, affairs, operations, conditions (financial or otherwise), or
prospects, which would materially adversely affect any of the same which has not
been fully disclosed by Purchaser to the Company in this Subscription
Agreement.
(o)
Purchaser has full right, power, and authority to execute and deliver this
Purchase Agreement and to perform Purchaser’s obligations hereunder. This
Purchase Agreement has been duly authorized, executed and delivered by or on
behalf of Purchaser and is a valid, binding and enforceable obligation of
Purchaser, enforceable against Purchaser in accordance with its terms subject to
bankruptcy, insolvency, reorganization, moratorium or similar laws from time to
time in effect and affecting creditors’ rights generally and to general equity
principles.
(p) The
execution and delivery of this Purchase Agreement by Purchaser will not result
in any violation of, or be in conflict with, or result in the default of, any
term of any material agreement or instrument to which Purchaser is a party or by
which Purchaser is bound, or of any law or governmental order, rule or
regulation which is applicable to Purchaser.
(q)
Purchaser is duly and validly organized, validly existing and in good tax and
corporate standing as a corporation under the laws of the jurisdiction of its
incorporation with full power and authority to purchase the Securities to be
purchased by it and to execute and deliver this Subscription
Agreement.
(r) Purchaser acknowledges and
agrees that he/she did not learn about the offering of the Company’s securities
through the Company’s preliminary registration statement, including such
amendments thereto, filed with the Securities and Exchange Commission and has a
direct or indirect prior relationship with the Company.
(s) To
Purchaser’s knowledge, except for the payment of $XXX to XXX
whose fees, commissions and expenses are the sole responsibility of
Purchaser, all negotiations relative to this Agreement and the transactions
contemplated hereby have been carried out by Purchaser directly with the Company
without the intervention of any person or entity in such manner as to give rise
to any valid claim by any person or entity against Purchaser or the Company for
a finder’s fee, brokerage commission or similar payment. To the extent Purchaser
becomes aware of an additional claim to such fees, commission or payments,
Purchaser shall promptly provide the Company with notice of such claim. To the
extent any person or entity claims to be entitled to a finder’s fee, brokerage
commission, or similar payment in connection with the transactions contemplated
hereby, Purchaser shall be liable for all such fees and expenses related thereto
to the extent any such claims relate to acts or omissions of Purchaser or to
this transaction.
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6. Legend.
Any
certificate representing Purchaser’s interest in the Company shall bear the
following legend:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR BLUE SKY
LAWS IN WHICH THE TRANSFEROR PROVIDES THE COMPANY WITH AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY’S MANAGER TO THE EFFECT THAT REGISTRATION IS
NOT NECESSSARY.
7. Indemnification
by Purchaser.
Purchaser
hereby agrees to indemnify and hold harmless the Company, its Affiliates, the
Company’s Counsel and their respective agents and representatives, from any and
all damages, losses, costs, and expenses (including reasonable attorneys' fees
to collect such amount of damages, losses, costs, expenses) which they, or any
of them, may incur by reason of Purchaser’s failure to fulfill any of the terms
and conditions of this Purchase Agreement or by reason of Purchaser’s breach of
any of Purchaser’s representations and warranties contained in this Subscription
Agreement.
8. Confidential
Information.
For
purposes of this Agreement, the term “Confidential Information” will
mean and refer to any information, technical data or know-how, patentable and
un-patentable, including, but not limited to, software, machinery, research,
product plans, product services, customer lists, marketing materials,
developments, inventions, process designs, finances, or other trade secrets of
the Company or similar items relating to the Company’s business and litigation
activities, or that of any supplier, customer or prospective customer, which
Confidential Information is designated in writing to be confidential or
proprietary, or if given orally, to Purchaser under circumstances reasonably
demonstrating or suggesting the confidential or proprietary nature of such
information.
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The
restrictions in this Section shall not apply to information, which (i) prior to
or after the time of disclosure becomes part of the public knowledge or
literature, not as a result of any inaction or action of Purchaser; (ii) must be
delivered in response to a valid order by a court or governmental body, (iii)
became or becomes generally available to the recipient on a non-confidential
basis from a source other than the Company; or (iv) is approved by the Company,
in writing, for release. Purchaser covenants and agrees not to use any
Confidential Information for Purchaser’s own use or benefit (directly or
indirectly), or for the benefit of any party other than Company. Purchaser may
not disclose Confidential Information to third parties except employees,
consultants, or professional advisers of the Company in connection with Company
business who are required to have the information in order to carry out their
duties for the Company. Purchaser agrees that it will take all reasonable
measures to protect the secrecy of and avoid disclosure or use of Confidential
Information of the Company in order to prevent the Confidential Information from
falling into the public domain or the possession of persons other than those
persons authorized hereunder to have such information, which measures shall
include the highest degree of care that Purchaser uses to protect Purchaser’s
own Confidential Information of a similar nature. Purchaser agrees to
immediately notify the Company in writing of any misuse or misappropriation of
the Confidential Information, which may come to Purchaser’s attention. All
proceeds from a misuse or disclosure of the Company’s Confidential Information
will be recoverable from Purchaser responsible for such misuse or disclosure,
which Purchaser shall be liable to the Company to the fullest extent of the
law.
9. General
Provisions.
(a) Headings. The
headings contained in this Purchase Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this
Subscription Agreement.
(b) Enforceability. If
any provision, which is contained in this Subscription Agreement, for any
reason, should be held to be invalid or unenforceable in any respect under the
laws of any State of the United States or any other jurisdiction, such
invalidity or unenforceability shall not affect any other provision of this
Subscription Agreement. Instead, this Purchase Agreement shall be construed as
if such invalid or unenforceable provisions had not been contained
herein.
(c) Notices. Any notice
or other communication required or permitted hereunder (“Notice”) must be in writing
and sent by either (i) registered or certified mail, postage prepaid, return
receipt requested, (ii) overnight delivery with confirmation of delivery, or
(iii) confirmed facsimile transmission, in each case addressed as
follows:
To the
Company: US
Solar Tech, Inc.
Att:
Xxxxxx Xxxxxxxx
Chief
Financial Officer/Treasurer
000 Xxxx
Xxxxxx - Xxxxx 000
Xxx Xxxx,
XX 00000
Facsimile
No: 000-000-0000
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Purchaser:
___________________
___________________
___________________
Copy to:
Attention:
________________
Facsimile
No: ______________
or in
each case to such other address and facsimile number as shall have last been
furnished by like Notice. If mailing by registered or certified mail
is impossible due to an absence of postal service, and if the other methods of
sending Notice set forth in this Section 0 are not otherwise available, Notice
shall be in writing and personally delivered to the aforesaid addresses. Each
Notice or communication shall be deemed to have been given as of the date so
mailed or delivered, as the case may be; provided, however, that any
Notice sent by facsimile shall be deemed to have been given as of the date sent
by facsimile.
(d).
Governing Law;
Disputes. This Purchase Agreement shall in all respects be construed,
governed, applied and enforced with the laws of the State of New York without
giving effect to the principles of conflicts of laws in New York or under
applicable international laws or treaties and be deemed to be an agreement
entered into in the State of New York and made pursuant to the laws, and between
residents of the State of New York. The Parties hereby consent to and
irrevocably submit to personal jurisdiction over each of them by the applicable
State or Federal Courts of the State of New York in any action or proceeding,
irrevocably waive trial by jury and personal service of any and all process and
other documents and specifically consent that in any such action or proceeding,
any service of process may be effectuated upon any of them by certified mail,
return receipt requested, in accordance with this Section
9.
(e) Further Assurances.
The Parties agree to execute any and all such other and further instruments and
documents, and to take any and all such further actions, which are reasonably
required to effectuate this Purchase Agreement and the intents and purposes
hereof.
(f) Binding Agreement.
This Purchase Agreement shall be binding upon and inure to the benefit of the
Parties hereto and their heirs, executors, administrators, personal
representatives, successors and assigns.
(g) Waiver. Except as
otherwise expressly provided herein, no waiver of any covenant, condition, or
provision of this Purchase Agreement shall be deemed to have been made unless
expressly set forth in writing and signed by the Party against whom such waiver
is charged; and, (i) the failure of any Party to insist in any one or more cases
upon the performance of any of the provisions, covenants, or conditions of this
Purchase Agreement or to exercise any option herein contained, shall not be
construed as a waiver or relinquishment for the future of any such provisions,
covenants, or conditions; (ii) the acceptance of performance of anything
required by this Purchase Agreement to be performed with knowledge of the breach
or failure of a covenant, condition, or provision hereof shall not be deemed a
waiver of such breach or failure; and, (iii) no waiver by any Party of one
breach by another Party shall be construed as a waiver with respect to any other
or subsequent breach.
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(h) Counterparts. This
Purchase Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
(i) Entire Agreement. The
Parties have not made any representations, warranties, or covenants with respect
to the subject matter hereof, orally or in writing, which are not expressly set
forth herein, and this Subscription Agreement, together with any instruments or
other agreements executed simultaneously herewith, constitutes the entire
agreement between them with respect to the subject matter hereof. All
understandings and agreements heretofore had between the Parties with respect to
the subject matter hereof are merged in this Subscription Agreement, which alone
fully and completely express their agreement. This Purchase Agreement may not be
changed, modified, extended, terminated, or discharged orally, but only by an
agreement in writing, which is signed by all of the Parties to this Subscription
Agreement.
(j) Offer to Purchase
Irrevocable. Except as set forth herein, this offer to purchase is
irrevocable, is subject to all of the terms and provisions contained in the
Purchase Agreement, and will survive the death, dissolution, or disability of
the Purchaser.
(k) Limited Liability.
The Company, its Affiliates, the Company’s Counsel and the Company’s applicable
agents and representatives shall not be liable for taking any action pursuant to
this Purchase Agreement in the absence of their respective willful misconduct or
fraud.
(l).
Assignability.
This Agreement is not transferable or assignable by the
undersigned.
10. Certification.
Certification
with respect to Federal Interest Payments; Backup Withholding in Lieu of
Internal Revenue Service Form W-9 - Under penalties of perjury Purchaser
certifies as follows:
If it has
been provided, the number shown below, as Purchaser’s taxpayer’s identification
number is Purchaser’s correct taxpayer identification number. Purchaser is not
subject to backup withholding either because Purchaser has not been notified by
the Internal Revenue Service that Purchaser is subject to backup withholding as
a result of a failure to report all interest or dividends, or the Internal
Revenue Service has notified Purchaser that it is no longer subject to backup
withholding.
[REMAINDER
OF PAGE INTENTIONALLY BLANK]
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IN
WITNESS WHEREOF, the Parties have executed this Purchase Agreement as of the
dates set forth below.
Accepted
and agreed to as of this 30 day of September, 2009
______________________
Purchaser
Taxpayer
ID Number: ________________
|
Note Principal
Amount
Number of Shares
Issuable Upon Warrant Exercise
Warrant Exercise
Price
Investment
Amount
|
$_______
________
$_______
$_______
|
US
SOLARTECH, INC.
By:
_____________________________________
Name: Xxxxxx Xxxxxxxx
Title: Chief Financial
Officer/Treasurer
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EXHIBIT
A
PRIVATE
PLACEMENT MEMORANDUM
EXHIBIT
B
FORM
OF CONVERTIBLE NOTE
EXHIBIT
C
FORM
OF WARRANT
