VOTING AGREEMENT
EXECUTION COPY
VOTING AGREEMENT, dated as of March 13, 2007 (this “Agreement”), among NORSK HYDRO
PRODUKSJON AS, a company organized under the laws of the Kingdom of Norway (“Norsk Hydro”),
XX. XXXXX X. XXXXX (“Xx. Xxxxx”), INICA, INC., a corporation organized under the laws of
the State of Colorado (“Inica”), and ITN ENERGY SYSTEMS, INC., a corporation organized
under the laws of the State of Colorado (“ITN” and, together with Xx. Xxxxx and Inica, the
“Stockholders”).
WHEREAS, concurrently herewith, Ascent Solar Technologies, Inc., a Delaware corporation (the
“Company”), and Norsk Hydro are entering into a Securities Purchase Agreement (the
“Securities Purchase Agreement”; capitalized terms used but not defined in this Agreement
shall have the meanings ascribed to them in the Securities Purchase Agreement), pursuant to which,
upon the terms and subject to the conditions thereof, Norsk Hydro will acquire, on the date hereof,
1,600,000 shares of common stock, par value $0.0001 per share (the “Common Shares”), of the
Company and will have the option to acquire, subject to the terms and conditions of the Securities
Purchase Agreement, including the Stockholder Approval, up to 35% of the Common Shares, Class A
Warrants and Class B Warrants of the Company (the “Investment”);
WHEREAS, ITN is a wholly-owned subsidiary of Inica, which is wholly-owned by Xx. Xxxxx and an
immediate family member of Xx. Xxxxx;
WHEREAS, Xx. Xxxxx is the record owner of 430,000 Common Shares and the beneficial owner of
1,028,000 Common Shares which are held by ITN as the record owner;
WHEREAS, the Stockholders collectively and beneficially own 1,458,000 Common Shares (the
“Owned Shares”; all such Owned Shares and, together with any Common Shares of which any of
the Stockholders acquire beneficial ownership after the date hereof and prior to the termination
hereof, whether by purchase or upon exercise of options, warrants, conversion of other convertible
securities or otherwise, are collectively referred to herein as the “Covered Shares”);
WHEREAS, the Stockholders acknowledge that Norsk Hydro is entering into the Securities
Purchase Agreement in reliance on the representations, warranties, covenants and other agreements
of the Stockholders set forth in this Agreement and would not enter into the Securities Purchase
Agreement if the Stockholders did not enter into this Agreement; and
WHEREAS, concurrently herewith, Norsk Hydro and the Company are entering into a Stockholders’
Agreement (the “Stockholders’ Agreement”), pursuant to which, among other things, the
Company has agreed to cause its Nominating and Governance Committee to recommend for election to
the Company’s board of directors (the “Board”) one director designated by Norsk Hydro.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements
contained herein, and intending to be legally bound hereby, the parties hereby agree as follows:
1.Agreement to Vote.
(a) Prior to any termination of this Agreement, each Stockholder hereby agrees that he or it
shall, and shall cause any other holder of record of any Covered Shares to, at any meeting of the
stockholders of the Company (whether annual or special and whether or not an adjourned or postponed
meeting), however called, or in any action by written consent of the stockholders of the Company:
(i) when a meeting is held, appear at such meeting or otherwise cause the Covered
Shares to be counted as present thereat for the purpose of establishing a quorum;
(ii) vote (or cause to be voted) in person or by proxy all Covered Shares (A) in favor
of the approval of (y) the issuance of the Initial Warrants to Norsk Hydro and (z) the
Tranche 2 Transactions and (B) against any proposal, action or transaction involving the
Company, which proposal, action or transaction would impede, frustrate, prevent or
materially delay the consummation of (y) the issuance of the Initial Warrants to Norsk Hydro
or (z) the Tranche 2 Transactions or the other transactions contemplated by the Securities
Purchase Agreement, the Stockholders’ Agreement or this Agreement or the approval of the
issuance of the Initial Warrants to Norsk Hydro or the Tranche 2 Transactions; and
(iii) vote (or cause to be voted) in person or by proxy all Covered Shares (A) in favor
of the appointment of the Investor Director Designee to the Board and (B) against any
proposal, action or transaction involving the Company, which proposal, action or transaction
would impede, frustrate, prevent or materially delay the appointment of the Investor
Director Designee to the Board.
(b) Except as set forth in clause (a) of this Xxxxxxx 0, xxxx of the Stockholders
shall be restricted from voting in favor of, against or abstaining with respect to any matter
presented to the stockholders of the Company.
2. Termination. This Agreement shall terminate upon the earliest of (a) the later
of the Initial Warrants Closing and the Second Closing, (b) the termination of the Securities
Purchase Agreement in accordance with its terms and (c) written notice of termination of this
Agreement by Norsk Hydro to the Stockholders, such earliest date being referred to herein as the
“Termination Date”; provided, however, that (i) the provisions set forth in
Section 1(a)(iii) shall survive the termination of this Agreement and shall terminate only
when the Investor beneficially owns less than fifteen percent (15%) of the Company’s Common Shares
and (ii) if the Stockholder Approval has not been obtained by the date that is four (4) months from
the date hereof, the provisions set forth in Section 1(a)(iii) shall survive the
termination of this Agreement until the second (2nd) anniversary of the date hereof;
provided further, however, that termination of this Agreement shall not
prevent any party hereto from seeking any remedies (at law or in equity) against any other party
hereto for such party’s breach of any of the terms of this Agreement prior to termination in
accordance with this Section 2.
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3. Representations and Warranties.
(a) Representations and Warranties of Norsk Hydro. Norsk Hydro hereby represents and
warrants to the Stockholders as follows:
(i) Organization and Authority. Norsk Hydro is a corporation duly incorporated
and validly existing under the laws of the Kingdom of Norway and has all necessary corporate
power and authority to enter into, execute and deliver this Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Norsk Hydro, the performance by Norsk Hydro of its
obligations hereunder and the consummation by Norsk Hydro of the transactions contemplated
hereby have been duly authorized by all requisite corporate action on the part of Norsk
Hydro. This Agreement has been duly executed and delivered by Norsk Hydro, and, assuming
due authorization, execution and delivery by the other parties hereto, this Agreement is a
legal, valid and binding obligation of Norsk Hydro, enforceable against it in accordance
with its terms.
(ii) Consents; No Conflicts. Except for the applicable requirements of the
Exchange Act, the execution, delivery and performance by Norsk Hydro of this Agreement do
not and will not (A) require any consent, approval, authorization or other order of, action
by, filing with, or notification to, any Governmental Authority, (B) violate, conflict with
or result in the breach of any provision of the organizational documents of Norsk Hydro, (C)
conflict with or violate any Law or Governmental Order applicable to Norsk Hydro or its
assets, properties or businesses or (D) conflict with, result in any breach of, constitute a
default (or event which with the giving of notice or lapse of time, or both, would become a
default) under, require any consent under, or give to others any rights of termination,
amendment, acceleration, suspension, revocation or cancellation of, any note, bond, mortgage
or indenture, contract, agreement, lease, sublease, license, permit, franchise or other
instrument or arrangement to which Norsk Hydro is a party, except, in the case of clauses
(C) and (D), as would not materially and adversely affect the ability of Norsk Hydro to
carry out its obligations under, and to consummate the transactions contemplated by, this
Agreement.
(b) Representations and Warranties of the Stockholders. The Stockholders hereby
jointly and severally represent and warrant to Norsk Hydro as follows:
(i) Ownership of Securities. As of the date of this Agreement, (A) Xx. Xxxxx
is the record and/or beneficial owner of, and has sole voting power and sole power of
disposition with respect to, 430,000 of the Owned Shares, and (B) the Stockholders are the
beneficial owners of, and have shared voting power and shared power of disposition with
respect to, 1,028,000 of the Owned Shares, in each case free and clear of Liens, proxies,
powers of attorney, voting trusts or agreements (other than (Y) any Lien or proxy created by
this Agreement or pursuant to any pledge in existence as of the date hereof and (Z) a
lock-up agreement with Xxxxxxx Investment Company, Inc., the underwriter of the Company’s
initial public offering, none of which would materially and adversely affect the ability of
the Stockholders to carry out the Stockholders’ obligations under, and to consummate the
transactions contemplated by, this Agreement). As used in this
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Agreement, the terms “beneficial owner”, “beneficial ownership”, “beneficially owns” or
“owns beneficially”, with respect to any securities, refer to the beneficial ownership of
such securities as determined under Rule 13d-3(a) of the Exchange Act.
(ii) Organization and Authority. With respect to ITN and Inica, both are
companies duly organized, validly existing and in good standing under the laws of the State
of Colorado. The execution and delivery of this Agreement by ITN and Inica and the
consummation by ITN and Inica of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action, and no other corporate proceedings on
the part of ITN and Inica are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. Xx. Xxxxx has all necessary power and capacity to enter
into, execute and deliver this Agreement, to carry out his obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Stockholders, and, assuming due authorization, execution and delivery by
Norsk Hydro, this Agreement is a legal, valid and binding obligation of the Stockholders,
enforceable against the Stockholders in accordance with its terms.
(iii) Consents; No Conflicts. Except for the applicable requirements of the
Exchange Act, the execution, delivery and performance by the Stockholders of this Agreement
do not and will not (A) with respect to ITN and Inica, conflict with or violate their
respective organizational documents, (B) require any consent, approval, authorization or
other order of, action by, filing with, or notification to, any Governmental Authority, (C)
conflict with or violate any Law or Governmental Order applicable to the Stockholders or the
Stockholders’ respective assets, properties or businesses or (D) conflict with, result in
any breach of, constitute a default (or event which with the giving of notice or lapse of
time, or both, would become a default) under, require any consent under, or give to others
any rights of termination, amendment, acceleration, suspension, revocation or cancellation
of, any note, bond, mortgage or indenture, contract, agreement, lease, sublease, license,
permit, franchise or other instrument or arrangement to which any of the Stockholders is a
party, except, in the case of clauses (C) and (D), as would not materially and adversely
affect the ability of any of the Stockholders to carry out their respective obligations
under, and to consummate the transactions contemplated by, this Agreement.
4. Restriction on Transfer, Proxies. Each Stockholder hereby agrees, while this
Agreement is in effect, not to (a) except as set forth in Section 7 hereof or pursuant to
pledges in existence as of the date hereof (none of which would materially and adversely affect the
ability of any of the Stockholders to carry out their respective obligations under, and
to consummate the transactions contemplated by, this Agreement), sell, transfer, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance, assignment or other
disposition of, any of the Owned Shares, (b) grant any proxies or powers of attorney, deposit any
Owned Shares into a voting trust or enter into a voting agreement with respect to any Owned Shares
or (c) take any action that would make any representation or warranty of any of the Stockholders
contained herein untrue or incorrect or have the effect of preventing or disabling any of the
Stockholders from performing its obligations under this Agreement.
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5. Further Assurances. From time to time, at another party’s request and without
further consideration, each party hereto shall take such reasonable further action as may
reasonably be necessary or desirable to consummate and make effective the transactions contemplated
by this Agreement.
6. Fiduciary Duties. Notwithstanding anything in this Agreement to the contrary:
(a) the Stockholders make no agreement or understanding herein in any capacity other than in their
capacity as a record holder and/or beneficial owner of Covered Shares and (b) nothing herein shall
be construed to limit or affect any action or inaction by Xx. Xxxxx acting in his capacity as a
director or officer of the Company in a manner consistent with the Securities Purchase Agreement.
7. Permitted Transfers. Notwithstanding anything in this Agreement to the contrary,
Xx. Xxxxx may transfer any or all of the Covered Shares (i) in accordance with provisions of
applicable Law, to his spouse, ancestors, descendants or any trust controlled by Xx. Xxxxx for any
of their benefit or (ii) with the prior written consent of Norsk Hydro; provided,
however, that, prior to and as a condition to the effectiveness of such transfer, each
person to which any of such Covered Shares or any interest in any of such Covered Shares is or may
be transferred shall have executed and delivered to Norsk Hydro a counterpart of this Agreement
pursuant to which such person shall be bound by all of the terms and provisions of this Agreement,
and shall have agreed in writing with Norsk Hydro to hold such Covered Shares or interest in such
Covered Shares subject to all of the terms and provisions of this Agreement.
8. Amendment. This Agreement may not be amended except by an instrument in writing
signed by each of the parties hereto.
9. Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be deemed given if delivered personally, telecopied (which
is confirmed) or sent by overnight courier (providing proof of delivery) to the parties at the
following addresses (or at such other address for a party as shall be specified in a notice given
in accordance with this Section 9):
(a) if to Norsk Hydro:
Norsk Hydro Produksjon AS
Xxxxxxxxxxxxx 000
X-0000 Xxxx
Xxxxxx
Facsimile: + 47 22 53 27 25
Attention: Xxxxxxx X. Xxxxxxx
Xxxxxxxxxxxxx 000
X-0000 Xxxx
Xxxxxx
Facsimile: + 47 22 53 27 25
Attention: Xxxxxxx X. Xxxxxxx
with a copy to:
Shearman & Sterling LLP
Broadgate West
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Broadgate West
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
0
Xxxxxx Xxxxxxx
Facsimile: x00 (0)000 000-0000
Attention: Xxxxxx Xxxxxxxxxx
Facsimile: x00 (0)000 000-0000
Attention: Xxxx X. Xxxxxxxxxxx
Facsimile: x00 (0)000 000-0000
Attention: Xxxxxx Xxxxxxxxxx
Facsimile: x00 (0)000 000-0000
Attention: Xxxx X. Xxxxxxxxxxx
(b) if to the Stockholders:
Xx. Xxxxx X. Xxxxx
c/o ITN Energy Systems, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Xxxxxx Xxxxxx
Facsimile: x0 (000) 000-0000
c/o ITN Energy Systems, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Xxxxxx Xxxxxx
Facsimile: x0 (000) 000-0000
with a copy to:
Ireland, Xxxxxxxxx, Xxxxx & Xxxxxx, P.C.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxx
Facsimile: x0 (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxx
Facsimile: x0 (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
10. Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of Law or public policy, all other conditions
and provisions of this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby are not affected in any manner
materially adverse to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, 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 be consummated
as originally contemplated to the fullest extent possible.
11. Entire Agreement; Assignment. This Agreement (together with the Securities
Purchase Agreement and the Stockholders’ Agreement to the extent referred to herein) (a)
constitutes the entire agreement among the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and undertakings, both written and oral, among the parties
hereto with respect to the subject matter hereof and (b) shall not be assigned by operation of law
or otherwise without the prior written consent of the other parties hereto; provided,
however, that the Investor may assign its right, title and interest under this Agreement to
any of its affiliates.
12. Specific Performance. The parties hereto agree that irreparable damage would
occur in the event any provision of this Agreement were not performed in accordance with the terms
hereof and that the parties hereto shall be entitled to specific performance of the terms hereof,
in addition to any other remedy at law or equity.
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13. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the Laws of the State of Delaware. All actions and proceedings arising out of or relating to
this Agreement shall be heard and determined exclusively in any Delaware state or federal court, in
each case sitting in the City of Wilmington, New Castle County. The parties hereto hereby (a)
submit to the exclusive jurisdiction of any Delaware state or federal court, in each case sitting
in the City of Wilmington, New Castle County, for the purpose of any Action arising out of or
relating to this Agreement brought by any party hereto and (b) irrevocably waive, and agree not to
assert by way of motion, defense or otherwise, in any such Action, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that its property is exempt or immune
from attachment or execution, that the Action is brought in an inconvenient forum, that the venue
of the Action is improper or that this Agreement or the Transactions may not be enforced in or by
any of the above-named courts.
14. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HERETO HEREBY (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER,
AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 14.
15. Headings. The descriptive headings contained in this Agreement are included
for convenience of reference only and shall not affect in any way the meaning or interpretation of
this Agreement.
16. Counterparts. This Agreement may be executed and delivered (including by
facsimile transmission) in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| /s/ Xxxxx X. Xxxxx | ||||
| Xx. Xxxxx. X. Xxxxx | ||||
| INICA, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xx. Xxxxx X. Xxxxx | |||
| Title: | President | |||
| ITN ENERGY SYSTEMS, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxx | |||
| Name: | Xx. Xxxxx X. Xxxxx | |||
| Title: | President | |||
| NORSK HYDRO PRODUKSJON AS |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Authorized Representative | |||
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