SHARE PURCHASE AGREEMENT
THIS
AGREEMENT is
made
as of the 3rd day of August,
2007
AMONG:
SOLAR
THIN FILMS, INC. (F/K/A AMERICAN UNITED GLOBAL, INC.),
a
corporation formed pursuant to the laws of the State of Delaware and having
an
office for business located at 00 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxx, Xxx Xxxx
00000.
(“Solar
Thin”)
AND:
FRASER
EUROPEAN, LTD.,
a
shareholder of Xxxxx, Xx.
(the
“Kraft Shareholder”)
WHEREAS:
A. The
Kraft
Shareholder owns 225 registered ordinary shares, HUF 10,000 par value each
of
Kraft, constituting HUF 50,000,000 registered capital of Kraft, being 4.5%
of
the presently issued and outstanding ordinary shares of Kraft;
B. SOLAR
THIN is a reporting company whose common stock is quoted on the OTC Bulletin
Board (“OTCBB”); and
C. The
Board
of Directors of Solar Thin, and the Kraft Shareholder deem it advisable and
in
the best interests for Solar Thin to acquire the Kraft Shares (the
“Acquisition”) pursuant to this Agreement.
D. The
Kraft
Shareholder has entered into purchase agreements with various purchasers (the
“Buyer” or “Buyers”) which have been executed simultaneously
herewith.
E. The
Kraft
Shareholder, Solar Thin and Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP (“SRFF” or the
“Escrow Agent”) entered into an Escrow Agreement whereby it was agreed that the
Escrow Agent would hold the purchase price paid by each Buyer in escrow until
the Escrow Agent received stock certificates representing the shares to be
purchased by each Buyer, at which time it was agreed that the Purchase Price
would be released to the Seller.
NOW
THEREFORE THIS AGREEMENT WITNESSETH THAT
in
consideration of the premises and the mutual covenants, agreements,
representations and warranties contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto hereby agree as follows:
-2-
ARTICLE
1
DEFINITIONS
AND INTERPRETATION
1.1 In
this
Agreement the following terms will have the following meanings:
| (a) |
“Acquisition”
means the Acquisition, at the Closing, of the Kraft Shareholder’s 4.5%
interest in Kraft by Solar Thin pursuant to this Agreement;
|
| (b) |
“Acquisition
Shares”
means the 1,575,000 Solar Thin Common Shares to be issued to the Kraft
Shareholder at Closing pursuant to the terms of the
Acquisition;
|
| (c) |
“Agreement”
means this share purchase agreement among Solar Thin, and the Kraft
Shareholder;
|
| (d) |
“Solar
Thin Business”
means all aspects of any business conducted by Solar Thin and its
subsidiaries;
|
| (e) |
“Solar
Thin Common Shares”
means the shares of common stock in the capital of Solar
Thin;
|
| (f) |
“Kraft
Shares”
means the 225 registered ordinary shares of Kraft, representing a 4.5%
interest in Kraft, currently held by the Kraft
Shareholder
|
| (g) |
“Closing”
means the completion, on the Closing Date, of the transactions
contemplated hereby in accordance with Article 9
hereof;
|
| (h) |
“Closing
Date”
means the day on which all conditions precedent to the completion of
the
transaction as contemplated hereby have been satisfied or waived, but
in
any event no later than July 27, 2007;
|
| (i) |
“Place
of Closing”
means the offices of Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, or such other
place as Solar Thin and the Kraft Shareholder may mutually agree
upon;
|
Any
other
terms defined within the text of this Agreement will have the meanings so
ascribed to them.
1.2 The
headings and section references in this Agreement are for convenience of
reference only and do not form a part of this Agreement and are not intended
to
interpret, define or limit the scope, extent or intent of this Agreement or
any
provision thereof.
1.3 Any
reference to a particular “Article”, “section”, “paragraph”, “clause” or other
subdivision is to the particular Article, section, clause or other subdivision
of this Agreement.
1.4 If
any
part of this Agreement is declared or held to be invalid for any reason, such
invalidity will not affect the validity of the remainder which will continue
in
full force and effect and be construed as if this Agreement had been executed
without the invalid portion, and it is hereby declared the intention of the
parties that this Agreement would have been executed without reference to any
portion which may, for any reason, be hereafter declared or held to be
invalid.
-3-
ARTICLE
2
THE
ACQUISITION
2.1 The
Kraft
Shareholder hereby agrees to sell to Solar Thin the Kraft Shares in exchange
for
the Acquisition Shares on the Closing Date and to transfer to Solar Thin on
the
Closing Date a 100% undivided interest in and to the Kraft Shares free from
all
liens, mortgages, charges, pledges, encumbrances or other burdens with all
rights now or thereafter attached thereto.
2.2 The
Kraft
Shareholder agrees that they are acquiring the Acquisition Shares for investment
purposes and will not offer, sell or otherwise transfer, pledge or hypothecate
any of the Acquisition Shares issued to them (other than pursuant to an
effective Registration Statement under the Securities
Act of 1933,
as
amended) directly or indirectly unless:
| (a) |
the
sale is to Solar Thin;
|
| (b) |
the
sale is made pursuant to the exemption from registration under the
Securities
Act of 1933, as amended,
provided by Rule 144 thereunder; or
|
| (c) |
the
Acquisition Shares are sold in a transaction that does not require
registration under the Securities
Act of 1933, as amended,
or
any applicable United States state laws and regulations governing the
offer and sale of securities, and the vendor has furnished to Solar
Thin
an opinion of counsel to that effect or such other written opinion
as may
be reasonably required by Solar Thin.
|
The
Kraft
Shareholder acknowledge that the certificates representing the Acquisition
Shares shall bear the following legend:
NO
SALE,
OFFER TO SELL, OR TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE SHALL
BE MADE UNLESS A REGISTRATION STATEMENT UNDER THE FEDERAL SECURITIES ACT OF
1933, AS AMENDED, IN RESPECT OF SUCH SHARES IS THEN IN EFFECT OR AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF SAID ACT IS THEN IN FACT APPLICABLE TO
SAID SHARES.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES
OF
SOLAR THIN
3.1 Solar
Thin hereby represents and warrants in all material respects to the Kraft
Shareholder, with the intent that the Kraft Shareholder will rely thereon in
entering into this Agreement and in approving and completing the transactions
contemplated hereby, that:
| (a) |
Incorporation.
Solar Thin is a corporation duly incorporated and upon filing and paying
the franchise tax with the state of Delaware Solar Thin will be validly
subsisting under the laws of the State of Delaware and in good standing
with the office of the Secretary of State for the State of
Delaware;
|
| (b) |
Carrying
on Business.
Solar Thin conducts the business described in its filings with the
Securities and Exchange Commission and does not conduct any other
business;
|
-4-
| (c) |
Corporate
Capacity.
Solar Thin has the corporate power, capacity and authority to own the
Solar Thin Assets and to enter into and complete this
Agreement;
|
| (d) |
Reporting
Status; Listing.
Solar Thin is required to file current reports with the Securities
and
Exchange Commission pursuant to section 15(d) of the Securities Exchange
Act of 1934, the Solar Thin Common Shares are quoted on the OTCBB,
and all
reports required to be filed by Solar Thin with the Securities and
Exchange Commission or NASD have been filed;
|
| (e) |
Acquisition
Shares.
The Acquisition Shares when delivered to the Kraft Shareholder pursuant
to
the Acquisition shall be validly issued and outstanding as fully paid
and
non-assessable shares and the Acquisition Shares shall be transferable
upon the books of Solar Thin, in all cases subject to the provisions
and
restrictions of all applicable securities
laws.
|
3.2 The
representations and warranties of Solar Thin contained herein will be true
at
and as of Closing in all material respects as though such representations and
warranties were made as of such time. Notwithstanding the completion of the
transactions contemplated hereby, the waiver of any condition contained herein
(unless such waiver expressly releases a party from any such representation
or
warranty) or any investigation made by the Kraft Shareholder, the
representations and warranties of Solar Thin shall survive the Closing.
ARTICLE
4
COVENANTS
OF SOLAR THIN
4.1 Solar
Thin covenants and agrees with the Kraft Shareholder that until the Closing,
it
will take all reasonable steps required to obtain, prior to Closing, any and
all
third party consents required to permit the Acquisition.
4.2 Solar
Thin covenants and agrees with the Kraft Shareholder that if the concurrent
sale
of all of the Acquisition Shares, pursuant to the terms and conditions of the
share purchase agreements by and between the Kraft Shareholder and the parties
desiring to purchase the Acquisition Shares (the “Purchasers”), is not completed
by July 27, 2007, this agreement shall be deemed null and void and Solar Thin
shall promptly exchange all Acquisition Shares for shares of Xxxxx, Xx. and
return them to the Kraft Shareholder.
4.3 The
covenants set forth in this Article shall survive the Closing for the benefit
of
the Kraft Shareholder.
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF
THE
KRAFT SHAREHOLDER
5.1 The
Kraft
Shareholder hereby jointly and severally represents and warrants in all material
respects to Solar Thin, with the intent that it will rely thereon in entering
into this Agreement and in approving and completing the transactions
contemplated hereby, that:
| (a) |
Ownership
of Kraft Shares.
The Kraft Shareholder will be at Closing the registered and beneficial
owners of 225 Kraft Shares, which represents a 4.5% interest in Kraft.
The
Kraft Shares owned by the Kraft Shareholder will on Closing be free
and
clear of any and all liens, charges, pledges, encumbrances, restrictions
on transfer and adverse claims whatsoever;
and
|
| (b) |
No
Restrictions.
There are no restrictions on the transfer, sale or other disposition
of
Kraft Shares contained in the charter documents of Kraft or under any
agreement;
|
-5-
| (c) |
Authorization
and Enforceability.
The execution and delivery of this Agreement, and the completion of
the
transactions contemplated hereby, have been duly and validly authorized
by
all necessary corporate action on the part of the Kraft
shareholder;
|
| (d) |
No
Violation or Breach.
The execution and performance of this Agreement will
not
|
| (i) |
violate
the charter documents of the Kraft Shareholder or result in any breach
of,
or default under, any loan agreement, mortgage, deed of trust, or any
other agreement to which the Kraft Shareholder is a
party,
|
| (ii) |
give
any person any right to terminate or cancel any agreement or any right
or
rights enjoyed by the Kraft Shareholder,
|
| (iii) |
result
in any alteration of the Kraft Shareholder’s obligations under any
agreement to which the Kraft Shareholder is a
party,
|
| (iv) |
result
in the creation or imposition of any lien, encumbrance or restriction
of
any nature whatsoever in favor of a third party upon or against the
Kraft
Shareholder’s assets,
|
| (v) |
result
in the imposition of any tax liability to the Kraft Shareholder relating
to the Kraft Shareholder’s assets or the Kraft Shares,
or
|
| (vi) |
violate
any court order or decree to which the Kraft Shareholder is subject;
|
5.2 The
representations and warranties of the Kraft Shareholder contained herein will
be
true at and as of Closing in all material respects as though such
representations and warranties were made as of such time. Notwithstanding the
completion of the transactions contemplated hereby, the waiver of any condition
contained herein (unless such waiver expressly releases a party from any such
representation or warranty) or any investigation made by Solar Thin, the
representations and warranties of the Kraft Shareholder shall survive the
Closing.
5.3 The
Kraft
Shareholder agrees to indemnify and save harmless Solar Thin from and against
any and all claims, demands, actions, suits, proceedings, assessments,
judgments, damages, costs, losses and expenses, including any payment made
in
good faith in settlement of any claim (collectively, the “Claims”) (subject to
the right of the Kraft Shareholder to defend any such claim), resulting from
the
breach by any of them of any representation or warranty of such party made
under
this Agreement or from any misrepresentation in or omission from any certificate
or other instrument furnished or to be furnished by the Kraft Shareholder to
Solar Thin hereunder; provided, however, the Kraft Shareholder shall not be
required to indemnify Solar Thin for any such Claims in excess of the value
of
the Kraft Shares.
ARTICLE
6
COVENANTS
OF KRAFT AND
THE
KRAFT SHAREHOLDER
6.1 The
Kraft
Shareholder covenants and agrees with Solar Thin that they will take all
reasonable steps required to obtain, prior to Closing, any and all third party
consents required to permit the Acquisition;
-6-
6.2 By the signing of the present agreement, the Kraft Shareholder hereby declares that its claim stipulated in the share purchase agreement dated March 6, 2007, including its right based on the Act on Business Associations to demand the purchase of its Kraft shares has been fulfilled and renounces its right to enforce any claims against any person at any time based on this legal title at any time in the future.
6.3 The
covenants set forth in this Article shall survive the Closing for the benefit
of
Solar Thin.
ARTICLE
7
CONDITIONS
PRECEDENT
7.1 Solar
Thin’s obligations to carry out the transactions contemplated hereby are subject
to the fulfillment of each of the following conditions precedent on or before
the Closing:
| (a) |
all
documents or copies of documents required to be executed and delivered
to
Solar Thin hereunder will have been so executed and
delivered;
|
| (b) |
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by the Kraft Shareholder at or prior to the Closing
will
have been complied with or performed;
|
| (c) |
title
to the Kraft Shares held by the Kraft Shareholder will be free and
clear
of all mortgages, liens, charges, pledges, security interests,
encumbrances or other claims whatsoever, save and except as disclosed
herein, and the Kraft Shares shall be duly transferred to Solar
Thin;
|
| (d) |
the
transactions contemplated hereby shall have been approved by all other
regulatory authorities having jurisdiction over the subject matter
hereof,
if any
|
| (e) |
the
transactions contemplated hereby shall have been approved by the
shareholders of Kraft.
|
7.2 The
conditions precedent set out in the preceding section are inserted for the
exclusive benefit of Solar Thin and any such condition may be waived in whole
or
in part by Solar Thin at or prior to the Closing by delivering to the Kraft
Shareholder a written waiver to that effect signed by Solar Thin. In the event
that the conditions precedent set out in the preceding section are not satisfied
on or before the Closing, Solar Thin shall be released from all obligations
under this Agreement.
7.3 The
obligations of the Kraft Shareholder to carry out the transactions contemplated
hereby are subject to the fulfillment of each of the following conditions
precedent on or before the Closing:
| (a) |
all
documents or copies of documents required to be executed and delivered
to
the Kraft Shareholder hereunder will have been so executed and
delivered;
|
| (b) |
all
of the terms, covenants and conditions of this Agreement to be complied
with or performed by Solar Thin at or prior to the Closing will have
been
complied with or performed;
|
-7-
| (c) |
Solar
Thin will have delivered the Acquisition Shares to be issued pursuant
to
the terms of the Acquisition to the Kraft Shareholder at the Closing
and
the Acquisition Shares will be registered on the books of Solar Thin
in
the name of the holder of Kraft Shares at the time of
Closing;
|
| (d) |
title
to the Acquisition Shares will be free and clear of all mortgages,
liens,
charges, pledges, security interests, encumbrances or other claims
whatsoever;
|
|
(f)
|
the
transactions contemplated hereby shall have been approved by all other
regulatory authorities having jurisdiction over the subject matter
hereof,
if any;
|
|
(g)
|
the
transactions contemplated hereby shall have been approved by the Board
of
Directors of Solar Thin.
|
7.4 The
conditions precedent set out in the preceding section are inserted for the
exclusive benefit of the Kraft Shareholder and any such condition may be waived
in whole or in part by the Kraft Shareholder at or prior to the Closing by
delivering to Solar Thin a written waiver to that effect signed by the Kraft
Shareholder. In the event that the conditions precedent set out in the preceding
section are not satisfied on or before the Closing, the Kraft Shareholder shall
be released from all obligations under this Agreement.
7.5 The
conditions precedent set forth in this Article are conditions of completion
of
the transactions contemplated by this Agreement and are not conditions precedent
to the existence of a binding agreement. Each party acknowledges receipt of
the
sum of $1.00 and other good and valuable consideration as separate and distinct
consideration for agreeing to the conditions of precedent in favor of the other
party or parties set forth in this Article.
7.6 Notwithstanding
any provision herein to the contrary, if the Closing does not occur on or before
July 15, 2007 (the “Termination Date”), this Agreement will be at an end and
will have no further force or effect, unless otherwise agreed upon by the
parties in writing.
7.7 Notwithstanding
any provision herein to the contrary, the parties hereto agree that the
existence and terms of this Agreement are confidential and that if this
Agreement is terminated pursuant to the preceding section the parties agree
to
return to one another any and all financial, technical and business documents
delivered to the other party or parties in connection with the negotiation
and
execution of this Agreement and shall keep the terms of this Agreement and
all
information and documents received from the Kraft shareholder and Solar Thin
and
the contents thereof confidential and not utilize nor reveal or release same,
provided, however, that Solar Thin will be required to issue a news release
regarding the execution and consummation of this Agreement and file a Current
Report on Form 8-K with the Securities and Exchange Commission respecting the
proposed Acquisition contemplated hereby together with such other documents
as
are required to maintain the currency of Solar Thin’s filings with the
Securities and Exchange Commission.
ARTICLE
8
CLOSING
Closing
8.1 The
Acquisition and the other transactions contemplated by this Agreement will
be
closed at the Place of Closing on Closing Date in accordance with the closing
procedure set out in this Article.
-8-
Documents
to be Delivered by the Kraft Shareholder
8.2 On
or
before the Closing, the Kraft Shareholder will deliver or cause to be delivered
to Solar Thin:
| (a) |
all
reasonable consents or approvals required to be obtained by the Kraft
Shareholder for the purposes of completing the
Acquisition;
|
| (b) |
an
acknowledgement from the Kraft Shareholder of the satisfaction of the
conditions precedent set forth in section 7.3
hereof;
|
| (c) |
the
certificates or other evidence of ownership of the Kraft Shares, together
with such other documents or instruments required to effect transfer
of
ownership of the Kraft Shares to Solar Thin;
and
|
| (d) |
such
other documents as Solar Thin may reasonably require to give effect
to the
terms and intention of this Agreement.
|
Documents
to be Delivered by Solar Thin
8.3 On
or
before the Closing, Solar Thin shall deliver or cause to be delivered to the
Kraft Shareholder:
| (a) |
share
certificates representing the Acquisition Shares duly registered in
the
names of the holders of shares of Kraft Common
Stock;
|
| (b) |
certified
copies of such resolutions of the directors of Solar Thin as are required
to be passed to authorize the execution, delivery and implementation
of
this Agreement;
|
| (c) |
an
acknowledgement from Solar Thin of the satisfaction of the conditions
precedent set forth in section 7.1
hereof;
|
| (d) |
such
other documents as the Kraft shareholder may reasonably require to
give
effect to the terms and intention of this Agreement;
and
|
ARTICLE
9
GENERAL
PROVISIONS
9.1 The
parties hereto shall attempt to resolve any dispute, controversy, difference
or
claim arising out of or relating to this Agreement by negotiation in good faith.
If such good negotiation fails to resolve such dispute, controversy, difference
or claim within fifteen (15) days after any party delivers to any other party
a
notice of its intent to submit such matter to arbitration, then any party to
such dispute, controversy, difference or claim may submit such matter to
arbitration in the City of New York, New York.
9.2 Any
notice required or permitted to be given by any party will be deemed to be
given
when in writing and delivered to the address for notice of the intended
recipient by personal delivery, prepaid single certified or registered mail,
or
telecopier. Any notice delivered by mail shall be deemed to have been received
on the fourth business day after and excluding the date of mailing, except
in
the event of a disruption in regular postal service in which event such notice
shall be deemed to be delivered on the actual date of receipt. Any notice
delivered personally or by telecopier shall be deemed to have been received
on
the actual date of delivery.
9.3 The
address for service of notice of each of the parties hereto is as
follows:
-9-
|
(a)
|
Solar
Thin:
|
|
00
Xxxxxxxx Xxxxxxxxx
|
|
|
Xxx
Xxxxx, Xxx Xxxx 00000
|
|
|
With
a copy to:
|
|
|
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
|
|
|
00
Xxxxxxxx, 00xx Xxxxx
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Attn:
Xxxxxxx X. Xxxxxxxx, Esq.
|
|
|
Phone:
(000) 000-0000
|
|
|
Telecopier:
(000) 000-0000
|
|
|
(b)
|
the
Kraft Shareholder:
|
|
Tamás
Niklai
|
|
|
Fraser
European Ltd.
|
|
|
Mahe,
Crystal Offices
|
|
|
OT
Center
|
|
|
Victoria,
Republic of Seychelles
|
9.4 Any
party
may, by notice to the other parties change its address for notice to some other
address in North America and will so change its address for notice whenever
the
existing address or notice ceases to be adequate for delivery by hand. A post
office box may not be used as an address for service.
9.5 Each
of
the parties will execute and deliver such further and other documents and do
and
perform such further and other acts as any other party may reasonably require
to
carry out and give effect to the terms and intention of this
Agreement.
9.6 Time
is
expressly declared to be the essence of this Agreement.
9.7 The
provisions contained herein constitute the entire agreement among the Kraft
Shareholder and Solar Thin respecting the subject matter hereof and supersede
all previous communications, representations and agreements, whether verbal
or
written, among the Kraft Shareholder and Solar Thin with respect to the subject
matter hereof.
9.8 This
Agreement will enure to the benefit of and be binding upon the parties hereto
and their respective heirs, executors, administrators, successors and permitted
assigns.
9.9 This
Agreement is not assignable without the prior written consent of the parties
hereto.
9.10 This
Agreement may be executed in counterparts, each of which when executed by any
party will be deemed to be an original and all of which counterparts will
together constitute one and the same Agreement. Delivery of executed copies
of
this Agreement by telecopier will constitute proper delivery, provided that
originally executed counterparts are delivered to the parties within a
reasonable time thereafter.
9.11 This
Agreement is subject to the laws of the State of New York.
-10-
[Remainder
of page intentionally left blank.]
-11-
IN
WITNESS WHEREOF
the
parties have executed this Agreement effective as of the day and year first
above written.
By:/s/
Xxxxx
Xxxxx
Xxxxx
Xxxxx, CEO
FRASER
EUROPEAN, LTD.,
By:/s/
Tamás
Niklai
Tamás
Niklai
With
respect to Section 6.2 only:
/s/
Tamás
Niklai
Tamás
Niklai
