Attached files
| file | filename |
|---|---|
| EX-10.1 - SOLAR ENERTECH CORP | v171000_ex10-1.htm |
| EX-10.3 - SOLAR ENERTECH CORP | v171000_ex10-3.htm |
| EX-10.4 - SOLAR ENERTECH CORP | v171000_ex10-4.htm |
| EX-10.2 - SOLAR ENERTECH CORP | v171000_ex10-2.htm |
| EX-10.5 - SOLAR ENERTECH CORP | v171000_ex10-5.htm |
| EX-99.1 - SOLAR ENERTECH CORP | v171000_ex99-1.htm |
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C.
20549
FORM 8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of
1934
Date
of report (Date of earliest event reported): January 7, 2010
SOLAR ENERTECH
CORP.
(Exact
name of Company as specified in Charter)
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Delaware
(State
or other jurisdiction of
incorporation or
organization)
|
000-51717
(Commission File
No.)
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98-0434357
(IRS
Employee Identification No.)
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444
Castro Street, Suite #707
Mountain
View, California 94041
(Address
of Principal Executive Offices)
(650) 688-5800
(Issuer
Telephone number)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the Company under any of the following
provisions (see General Instruction A.2 below).
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17
CFR240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b)).
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13(e)-4(c))
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Item
1.01
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Entry
into a Material Definitive
Agreement.
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Series A and
Series B Notes Conversion Agreement and Amendment of
the Series A Notes and Series B Notes
As
previously reported, on March 7, 2007, Solar EnerTech Corp., a Delaware
corporation (the “Company”), entered
into a Securities Purchase Agreement (the “2007 Securities Purchase
Agreement”) with certain institutional accredited investors (the “2007 Note Holders”)
for a private placement of $8,300,000 of convertible notes and warrants
consisting of $5,000,000 principal amount of its Series A Notes (the “Series A Notes”) and
warrants to purchase up to 7,246,377 shares of its common stock (the “Series A Warrants”)
and $3,300,000 principal amount of its Series B Notes (the “Series B Notes”, and
with the Series A Notes, the “Notes”) and warrants
to purchase up to 5,789,474 shares of its common stock (the “Series B Warrants”)
for aggregate gross proceeds of $8,000,000 and the conversion of $300,000 of
outstanding indebtedness (the “2007
Financing”). As previously reported, on March 20, 2007, the
Company sold an additional $9,000,000 principal amounts of Series B Notes to
“institutional” accredited investors and issued to such investors an additional
15,789,474 Series B Warrants.
On
January 7, 2010, the Company entered into a Series A and Series B Notes
Conversion Agreement (the “Conversion
Agreement”) with the holders of the Notes representing at least
seventy-five percent of the aggregate principal amounts outstanding under the
Notes (the “Required
Holders”). Under the Conversion Agreement, the Notes have been
amended and election has been taken such that all outstanding principal and
accrued but unpaid interest with respect to all of the outstanding Notes have
been automatically converted into shares of the Company’s common stock (the
“Conversion”)
at a conversion price per share of common stock of $0.15 effective as of January
7, 2010 (the “Conversion
Date”). Approximately 78,289,723 shares of the Company’s
common stock are issuable in the Conversion. As of the Conversion
Date, no further payments are owing or payable under the Notes. As of
the Conversion Date, each Note no longer represents a right to receive any cash
payments (including, but not limited to, interest payments) and only represents
a right to receive the shares of common stock into which such Note has been
automatically converted into.
A copy of
the Conversion Agreement is furnished with this report on Form 8-K as Exhibit
10.1.
Amendment
to the Series A, Series B and Series C Warrants
In
addition to the Series A Warrants and the Series B Warrants described above, as
previously reported, on January 11, 2008, pursuant to a Securities Purchase
Agreement dated January 11, 2008, the Company sold 24,318,181 share of its
common stock and issued warrants to purchase up to 24,318,181 shares of its
common stock (the “Series C Warrants”,
and together with the Series A Warrants and Series B Warrants, collectively the
“Warrants”) to
“institutional” accredited investors.
In
connection with the Conversion, on January 7, 2010, the Company entered into an
Amendment to the Series A, Series B and Series C Warrants (the “Warrant Amendment”)
with the holders of at least a majority of the common stock underlying each of
the Company’s outstanding Series A Warrants, Series B Warrants and Series C
Warrants. The Warrant Amendment reduces the exercise price for all of
the Warrants to $0.15, removes certain maximum ownership provisions and removes
antidilution provisions for lower-priced security issuances.
A copy of
the Warrant Amendment is furnished with this report on Form 8-K as Exhibit
10.2.
Leo
Shi Young Amended and Restated Executive Employment, Incentive, and Severance
Agreement
In
connection with the Conversion, on January 7, 2010, the Company and Leo Shi
Young, the Company’s Chief Executive Officer and President, entered into an
Amended and Restated Executive Employment, Incentive, and Severance Agreement
(the “Amended Young
Employment Agreement”) which amended and restated that certain Equity
Incentive, Change of Control Retention and Severance Agreement dated August 19,
2008 with Mr. Young. Under the terms of the Amended Young Employment
Agreement, Mr. Young is entitled to receive: (i) an annual base salary of
$250,000; (ii) additional options for a number of shares of the Company’s common
stock to be determined by the Board if the Company reaches certain operating and
financial metrics agreed upon between the Board and Mr. Young; (iii) a severance
arrangement of a lump sum payment in an amount equal to eighteen (18) months of
Mr. Young’s then effective base salary and acceleration of vesting of stock
options and restricted stock under certain conditions; and (iv) other benefits
as set forth in the Amended Young Employment Agreement as furnished with this
report on Form 8-K as Exhibit 10.3.
Steve
Mao Ye Amended and Restated Employment Agreement
In
connection with the Conversion, on January 7, 2010, the Company and Steve Mao
Ye, the Company’s Chief Financial Officer, entered into an Amended and Restated
Employment Agreement (the “Amended Ye Employment
Agreement”) which amended and restated that certain Management Agreement
dated April 2, 2009 with Mr. Ye. Under the terms of the Amended Ye
Employment Agreement, Mr. Ye is entitled to receive (i) an annual salary of
Chinese RMB 600,000 (approximately US$88,000 as of the date hereof), increasing
to Chinese RMB 672,000 (approximately US$98,500 as of the date hereof) to the
extent the Company achieves profitability for each of the quarters ending March
30, 2010 and June 30, 2010; (ii) severance arrangement of a lump sum payment in
an amount equal to six (6) months of Mr. Ye’s then effective base salary and
acceleration of vesting of stock options and restricted stock under certain
conditions; and (iii) other benefits as set forth in the Amended Ye Employment
Agreement as furnished with this report on Form 8-K as Exhibit
10.4.
Voting
Agreement
In
connection with the Conversion, on January 7, 2010, The Quercus Trust, Leo Shi
Young (collectively, the “Stockholders”) and
the Company entered into a Voting Agreement (the “Voting
Agreement”). Under the terms of the Voting Agreement, the
Stockholders agreed to the nominate to the Board:
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·
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two
individuals by the holders of a majority of shares of the Company’s common
stock originally issued to the holders of the Notes at the Conversion (the
“Note
Stockholders”);
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·
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Mr.
Young;
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·
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one
individual designated by Mr. Young;
and
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·
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one
individual designated by the Note Stockholders who shall have a background
appropriate for service on the Company’s audit committee and, if possible,
industry experience.
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A copy of
the Voting Agreement is furnished with this report on Form 8-K as Exhibit
10.5.
The
foregoing summaries do not purport to be complete and are qualified in their
entireties by reference to the full text of the Conversion Agreement, Warrant
Amendment, the Amended Young Employment Agreement, the Amended Ye Employment
Agreement and the Voting Agreement, which are filed herewith as Exhibits 10.1,
10.2, 10.3, 10.4 and 10.5, respectively.
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Item
1.02
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Termination of a Material
Definitive Agreement.
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As
described above in Item 1.01 and incorporated herein by reference, on January 7,
2010, the 2007 Securities Purchase Agreement was terminated pursuant to the
Conversion Agreement. The information required by Item 1.02 is included in Item
1.01 and incorporated herein by reference.
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Item
3.02
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Unregistered Sales of Equity
Securities.
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The
information required by Item 3.02 is included in Item 1.01 and incorporated
herein by reference. The securities issued pursuant to the Conversion
Agreement were offered and sold to investors in private transactions made in
reliance upon exemptions from registration pursuant to Section 4(2) under the
Securities Act of 1933, as amended.
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Item
3.03
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Material Modification to Rights
of Securities Holders.
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The
information required by Item 3.03 is included in Item 1.01 and incorporated
herein by reference.
Item
5.02 Departure
of Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers.
(b)
As
described above in Item 1.01 and incorporated herein by reference, Robert
Coackley and Kevin Koy will resign from the Board effective upon the later of
(i) the Conversion and (ii) the filing of the Company’s Form 10-K for the fiscal
period ended September 30, 2009.
(d)
As
described above in Item 1.01, and incorporated herein by reference, David A.
Field and David Anthony have been appointed as directors to the Board effective
upon the later of (i) the Conversion and (ii) the filing of the Company’s Form
10-K for the fiscal period ended September 30, 2009.
Mr. Field
is President and Chief Executive Officer of Applied Solar, LLC, the successor to
the business and assets of Applied Solar, Inc., which, together with one of its
wholly-owned subsidiaries, Solar Communities I, LLC, filed a voluntary petition
for relief under Chapter 11 of the United States Bankruptcy Code on July 28,
2009. Mr. Field is a director of ThermoEnergy Corporation, a Delaware
corporation. Mr. Field had been President, Chief Executive Officer
and a director of Applied Solar, Inc., positions he had held since October
2007, November 2008 and June 2008, respectively. Prior to
joining Applied Solar, Inc., Mr. Field was a senior executive at Clark Security
Products from January 2005 to August 2006. Previously, he founded and
managed several companies in the energy sector. In June 2001, Mr.
Field founded and was chief executive officer of Clarus Energy Partners, a
leading distributed generation developer, owner and operator that was acquired
by Hunt Power in early 2004. Prior to Clarus Energy, Mr. Field co-founded
Omaha-based Kiewit Fuels, a renewable energy company specializing in the
development of biofuels production. In addition to a career in
sustainable energy development, he also has an extensive background in water
technology and infrastructure development, with companies such as Bechtel, Peter
Kiewit, and Poseidon Resources, as well as in corporate finance with
Citicorp. Mr. Field is 48 years old
Mr.
Anthony is an experienced entrepreneur, venture capitalist, and
educator. He is the Managing Director of 21 Ventures, a position he
has held since 2003, and sits on the boards of ThermoEnergy Corporation, Agent
Video Intelligence, Axion Power International, Inc., 3GSolar, BioPetroClean,
Open Energy and VOIP Logic. Prior to 21 Ventures, Mr. Anthony
launched Notorious Entertainment, a developer of multimedia
brands. Mr. Anthony is 48 years old.
(e)
The
information required by Item 5.02(e) is included in Item 1.01 and incorporated
herein by reference.
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ITEM
8.01
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Other
Events.
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On
January 8, 2010, the Company issued a press release with respect to the
transactions and matters described in this Form 8-K.
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Item
9.01
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Financial
Statement and Exhibits.
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(d)
Exhibits
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Exhibit
No.
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Description
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10.1
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Series
A and Series B Notes Conversion Agreement dated January 7,
2010.
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10.2
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Amendment
to the Series A, Series B and Series C Warrants dated January 7,
2010.
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10.3
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Amended
and Restated Executive Employment, Incentive, and Severance Agreement
dated January 7, 2010 by and between the Company and Leo Shi
Young.
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10.4
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Amended
and Restated Employment Agreement dated January 7, 2010 between the
Company and Steve Mao Ye.
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10.5
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Voting
Agreement dated January 7, 2010 with The Quercus Trust and Leo Shi
Young.
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99.1
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Press
Release dated January 8, 2010.
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SIGNATURES
Pursuant to the requirements of the
Securities Exchange Act of 1934, the Company has duly caused this Current Report
to be signed on its behalf by the undersigned hereunto duly
authorized.
Dated:
January 8, 2010
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SOLAR
ENERTECH CORP.
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By:
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/s/ Leo Shi Young
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Leo
Shi Young, Chief Executive Officer
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