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EXHIBIT 10.3
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated as of the 30th day of June, 2011
(the "Agreement"), is by and between Solar3D, Inc. a Delaware corporation (the
"Company"), and Roland F. Bryan, an individual (the "Purchaser").
WITNESSETH:
WHEREAS, Company owns 100% of the total issued and outstanding capital
stock (the "Stock") of Wideband Detection Technologies, Inc., a Florida
corporation ("WDTI").
WHEREAS, the Company desires to sell to Purchaser and the Purchaser
desires to purchase from the Company all of the Stock under the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and agreements set forth herein, the parties hereto
agree as follows:
ARTICLE I
PURCHASE AND SALE OF STOCK
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1.1 CONVEYANCE OF STOCK. Subject to the terms and conditions set forth
in this Agreement and in reliance upon the representations and warranties of the
Company and Purchaser herein set forth, Purchaser agrees to purchase from the
Company and the Company agrees to sell to the Purchaser, at the Closing (as
hereinafter defined in Section 3.1 of this Agreement), all right, title and
interest in and to the Stock, so that upon the Closing, Purchaser will have good
and marketable title in and to all of the Stock.
ARTICLE II
PURCHASE PRICE, PAYMENT AND RELATED MATTERS
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2.1 PURCHASE PRICE. In consideration for the Stock conveyed to the
Purchaser by the Company at the Closing, Purchaser will pay a purchase price of
one hundred thousand dollars ($100,000) (the "Purchase Price"), by issuing to
the Company at the Closing a Secured Promissory Note in the principal amount of
one hundred thousand dollars ($100,000), bearing simple interest at the rate of
five percent (5%) per annum, and payable principal and accrued interest in full
on a date five (5) years after the Closing Date, as hereinafter defined in
Section 3.1 of this Agreement. The Secured Promissory Note, a copy of which is
attached to this Agreement as Exhibit A, will be secured by a perfected security
interest in ten percent (10%) of the Stock, which will be held by the Company as
collateral for repayment.
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ARTICLE III
THE CLOSING
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3.1 TIME AND PLACE OF CLOSING. The closing of the transactions
contemplated hereby (the "Closing") shall take place at the offices of the
Company and shall be effective as of June 30, 2011 ("Closing Date").
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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The Company represents and warrants to Purchaser that:
4.1 TITLE TO STOCK. Upon consummation of the purchase contemplated
herein, Purchaser will acquire from the Company good and marketable title to the
Stock, free and clear of all liens, third party claims or other encumbrances
excepting only such restrictions upon transfer, if any, as may be imposed by
applicable law.
4.2 DUE AUTHORIZATION. The Company has all requisite power, authority
and approvals required to enter into, execute and deliver this Agreement and to
perform fully the Company's obligations hereunder and thereunder. The Company
has taken all actions necessary to authorize it to enter into and perform fully
its obligations under this Agreement and to consummate the transactions
contemplated herein. This Agreement is, and as of the Closing will be, the
legal, valid and binding obligation of the Company, enforceable in accordance
with its terms.
4.3 NO VIOLATION. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated herein will (a) violate,
conflict with, or constitute a default under any contract or other instrument to
which the Company is a party or by which it or its property is bound; (b)
require the consent of any party to any material contract or other agreement to
which the Company are a party or by which it or its property is bound; or (c)
violate any laws or orders to which the Company or its property is subject.
4.4 NO ADVERSE LITIGATION. The Company is not a party to any pending
litigation which seeks to enjoin or restrict the Company's ability to convey the
Stock hereunder, nor is any such litigation threatened against the Company.
Furthermore, there is no litigation pending or threatened against the Company
which, if decided adversely to the Company, could adversely affect the Company's
ability to consummate the transactions contemplated in this Agreement.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
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Purchaser represents and warrants to the Company that:
5.1 DUE AUTHORIZATION. Purchaser has all requisite power, authority and
approvals required to enter into, execute and deliver this Agreement and to
perform fully Purchaser's obligations hereunder and thereunder. Purchaser has
taken all actions necessary to authorize it to enter into and perform fully its
obligations under this Agreement and to consummate the transactions contemplated
herein. This Agreement is, and as of the Closing, will be, the legal, valid and
binding obligation of Purchaser, enforceable in accordance with its terms.
5.2 NO VIOLATION. Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated herein will (a) violate,
conflict with, or constitute a default under any contract or other instrument to
which Purchaser is a party or by which Purchaser or its property is bound; (b)
require the consent of any party to any material contract or other agreement to
which Purchaser is a party or by which it or its property is bound; or (c)
violate any laws or orders to which Purchaser or its property is subject.
5.3 NO BROKER. No broker, finder, agent or similar intermediary has
acted for or on behalf of Purchaser or is entitled to a fee or commission in
connection with this Agreement or the transactions contemplated hereby.
5.4 SECURITIES REPRESENTATIONS.
(a) Purchaser is able to bear the economic risk of an
investment in the Stock for an indefinite period of time, can afford the loss of
the entire investment in the Stock, and will, after making an investment in the
Stock, have sufficient means of providing for such Purchaser's current needs and
possible future contingencies. Additionally, Purchaser's overall commitment to
investments which are not readily marketable is not disproportionate to
Purchaser's net worth and this Agreement will not cause such overall commitment
to become excessive.
(b) The Stock will not be sold by Purchaser without
registration under applicable securities acts or a proper exemption from such
registration.
(c) The Stock is being acquired by Purchaser for such
Purchaser's own account and risk, for investment purposes, and not on behalf of
any other person or with a view to, or for resale in connection with, any
distribution thereof within the meaning of the Securities Act of 1933, as
amended. Purchaser is aware that there are substantial restrictions on the
transferability of the Stock.
(d) Purchaser has had access to any and all information
concerning WDTI that such Purchaser and Purchaser's financial, tax and legal
advisors required or considered necessary to make a proper evaluation of this
investment. In making the decision to purchase the Stock herein agreed to,
Purchaser and such Purchaser's advisors have relied upon their own independent
investigations and fully understand that there are no guarantees, assurances or
promises in connection with any investment hereunder, and understand that the
particular tax consequences arising from this investment in WDTI will depend
upon the individual circumstances of Purchaser.
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ARTICLE VI
INDEMNIFICATION
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6.1 INDEMNITY OF THE COMPANY. The Company shall indemnify and hold
harmless Purchaser from and against, and shall reimburse Purchaser with respect
to, all liabilities, losses, costs and expenses, including, without limitation,
reasonable attorneys' fees and disbursements (collectively the "Losses")
asserted against or incurred by the Purchaser by reason of, arising out of, or
in connection with any material breach of any representation or warranty
contained in this Agreement made by the Company or in any document or
certificate delivered by the Company pursuant to the provisions of this
Agreement or in connection with the transactions contemplated thereby.
6.2 INDEMNITY OF THE PURCHASER. The Purchaser agrees to defend,
indemnify and hold harmless the Company and its affiliates from and against, and
to reimburse the Company and its affiliates with respect to, all liabilities,
losses, costs and expenses, including, without limitation, reasonable attorneys'
fees and disbursements, asserted against or incurred by the Company or its
affiliates by reason of, arising out of, or in connection with any material
breach of any representation or warranty contained in this Agreement and made by
Purchaser or in any document or certificate delivered by Purchaser pursuant to
the provisions of this Agreement or in connection with the transactions
contemplated thereby.
6.3 INDEMNIFICATION PROCEDURE. A party (an "Indemnified Party") seeking
indemnification shall give prompt notice to the other party (the "Indemnifying
Party") of any claim for indemnification arising under this Article VI. The
Indemnifying Party shall have the right to assume and to control the defense of
any such claim with counsel reasonably acceptable to such Indemnified Party, at
the Indemnifying Party's own cost and expense, including the cost and expense of
reasonable attorneys' fees and disbursements in connection with such defense, in
which event the Indemnifying Party shall not be obligated to pay the fees and
disbursements of separate counsel for such in such action. In the event,
however, that such Indemnified Party's legal counsel shall determine that
defenses may be available to such Indemnified Party that are different from or
in addition to those available to the Indemnifying Party, in that there could
reasonably be expected to be a conflict of interest if such Indemnifying Party
and the Indemnified Party have common counsel in any such proceeding, or if the
Indemnified Party has not assumed the defense of the action or proceedings, then
such Indemnifying Party may employ separate counsel to represent or defend such
Indemnified Party, and the Indemnifying Party shall pay the reasonable fees and
disbursements of counsel for such Indemnified Party. No settlement of any such
claim or payment in connection with any such settlement shall be made without
the prior consent of the Indemnifying Party which consent shall not be
unreasonably withheld.
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ARTICLE VII
DELIVERIES
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7.1 ITEMS TO BE DELIVERED TO PURCHASER.
(a) Certificate(s) representing all of the Stock registered in the name
of the Purchaser; and
(b) Any other document reasonably requested by Purchaser that Purchaser
deem necessary for the consummation of this transaction.
7.2 ITEMS TO BE DELIVERED TO THE COMPANY.
(a) Any document reasonably requested by the Company that it deems
necessary for the consummation of this transaction;
(b) The Purchase Price evidenced by a Secured Promissory Note signed by
the Purchaser; and
(c) A certificate evidencing ten percent (10%) of the Stock accompanied
by a signed stock power endorsed for transfer to the Company in the event of a
default by the Purchaser on the Secured Promissory Note, to be held by the
Company until the Secured Promissory Note is paid in full.
ARTICLE VIII
MISCELLANEOUS
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8.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations and warranties and statements made by a party to this Agreement
or in any document or certificate delivered pursuant hereto shall survive the
date of Closing for two years. Each of the parties hereto is executing and
carrying out the provisions of this Agreement in reliance upon the
representations, warranties and covenants and agreements contained in this
Agreement or at the closing of the transactions herein provided for and not upon
any investigation which it might have made or any representations, warranty,
agreement, promise or information, written or oral, made by the other party or
any other person other than as specifically set forth herein.
8.2 FURTHER ASSURANCES. If, at any time after the Closing, the parties
shall consider or be advised that any further deeds, assignments or assurances
in law or any other things are necessary, desirable or proper to complete the
transactions contemplated herein or to vest, perfect or confirm, of record or
otherwise, the title to any property or rights of the parties hereto, the
parties agree that their proper officers and directors shall execute and deliver
all such proper deeds, assignments and assurances in law and do all things
necessary, desirable or proper to vest, perfect or confirm title to such
property or rights and otherwise to carry out the purpose of this Agreement, and
that the proper officers and directors of the parties are fully authorized to
take any and all such action.
8.3 NOTICE. All communications, notices, requests, consents or demands
given or required under this Agreement shall be in writing and shall be deemed
to have been duly given when delivered to, or received by prepaid registered or
certified mail or recognized overnight courier addressed to, or upon receipt of
a facsimile or email sent to, the party for whom intended, as follows, or to
such other address, or facsimile number or email address as may be furnished by
such party by notice in the manner provided herein:
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If to the Company:
Solar3D, Inc.
6500 Hollister Avenue, Suite 130
Goleta, California 93117
Attention: James B. Nelson, Chief Executive Officer
Email: jnelson@solar3d.com
If to Purchaser:
Roland F. Bryan
6500 Hollister Avenue, Suite 130
Goleta, California 93117
Attention: Roland F. Bryan
Email: rbryan@solar3d.com
8.4 ENTIRE AGREEMENT. This Agreement, and any instruments and
agreements to be executed pursuant to this Agreement, sets forth the entire
understanding of the parties hereto with respect to the Agreement's subject
matter, merges and supersedes all prior and contemporaneous understandings with
respect to its subject matter and may not be waived or modified, in whole or in
part, except by a writing signed by each of the parties hereto. No waiver of any
provision of this Agreement in any instance shall be deemed to be a waiver of
the same or any other provision in any other instance. Failure of any party to
enforce any provision of this Agreement shall not be construed as a waiver of
its rights under such provision.
8.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon,
enforceable against and inure to the benefit of, the parties hereto and their
respective heirs, administrators, executors, personal representatives,
successors and assigns, and nothing herein is intended to confer any right,
remedy or benefit upon any other person.
8.6 GOVERNING LAW. This Agreement shall in all respects be governed by
and construed in accordance with the laws of the State of California, without
giving effect to any conflicts of law principles of that jurisdiction.
8.7 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.8 CONSTRUCTION. Headings contained in this Agreement are for
convenience only and shall not be used in the interpretation of this Agreement.
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As used herein, the singular includes the plural, and the masculine, feminine
and neuter gender each includes the others where the context so indicates.
8.9 SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, this Agreement
shall be interpreted and enforceable as if such provision were severed or
limited, but only to the extent necessary to render such provision and this
Agreement enforceable.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first above written.
COMPANY: Solar3D, Inc.
By:________________________________________
James B. Nelson, Chief Executive Officer
PURCHASER: Roland F. Bryan
By:________________________________________
Roland F. Bryan, An Individual
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EXHIBIT A
SECURED PROMISSORY NOTE PAYABLE TO SOLAR3D, INC.
SECURED PROMISSORY NOTE
$100,000 June 30, 2011
Santa Barbara, California
FOR VALUE RECEIVED, Roland J. Bryan, an individual (the "Maker") hereby
promises to pay to the order of Solar3D, Inc., a Delaware corporation ("Payee")
at 6500 Hollister Avenue, Suite 130, Goleta, California 93117, the principal sum
of One Hundred Thousand Dollars U.S. ($100,000) plus simple interest at the rate
of 5% per annum, payable principal and all accrued interest in full on or before
June 30, 2016.
1. SECURITY. This Note is secured by a first priority security interest
in ten percent (10%) of the outstanding shares of the common stock of Wideband
Detection Technologies, Inc. ("WDTI") owned by Maker (the "Shares"). Upon full
payment of this Note, as provided elsewhere in this Note, Payee shall
immediately execute all documents and take all actions necessary or appropriate
in order to release the security interest of this Note in the Shares. While the
Shares are pledged as security for this Note, Payee may foreclose on the Shares
in the event of a default by Maker under this Note, subject to the conditions in
Paragraph 3 herein. Notwithstanding anything else herein to the contrary, as
this Note is repaid, Maker shall have the option of having a pro rata portion of
the Shares released from the security interest, exercisable at any time during
the term of this Note.
2. RIGHT OF PREPAYMENT. Maker has the right to prepay all or any
portion of this Note at any time during its term without penalty. Such
prepayments shall be applied first to interest and then to principal.
3. DEFAULT. Any of the following shall constitute a default by Maker
hereunder:
(a) The failure of Maker to make any payment of principal or
interest required hereunder within 30 days of the due date for
such payment, as it may properly be extended pursuant to the
terms of this Note; or
(b) The failure of Maker to fully perform any other material
covenants and agreements under this Note and continuance of
such failure for a period of 30 days after written notice of
the default by Payee to the Maker.
Upon the occurrence of a default hereunder, Payee may, at its option, declare
immediately due and payable the entire unpaid principal sum of this Note
together with all accrued and unpaid interest owing at the time of such
declaration pursuant to this Note.
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4. COSTS OF COLLECTIONS. Payee shall be entitled to collect reasonable
attorney's fees and costs from Maker, as well as other costs and expenses
reasonably incurred, in curing any default or attempting collection of any
payment due on this Note.
5. INSPECTION RIGHTS. Payee, individually or through its agent, shall
have the right, upon reasonable notice and at its expense, to review and inspect
the books and records of WDTI at Maker's office during reasonable business
hours.
6. RESTRICTION ON TRANSFER. This Note shall be subject to the following
restrictions:
"This Note has been purchased by means of a private placement exempt from
Federal securities registration pursuant to Section 4(2) and Rule 506 of the
Securities Act of 1933, as amended, and exempt from California securities
registration pursuant to Section 25102(f) of the California Corporate Securities
Act of 1968, as amended, for offerings not involving any public offering or
solicitation. This Note may not be sold, assigned, transferred or otherwise
disposed of to any person or entity until the Note has been registered under an
effective registration statement filed with the Securities and Exchange
Commission, or an opinion of counsel or other evidence acceptable to Maker has
been obtained to the effect that such registration is not required."
7. PAYMENT. This Note shall be payable in lawful money of the United
States.
8. PLACE OF PAYMENT. All payments on this Note are to be made or given
to Payee at the address provided to Maker or to such other place as Payee may
from time to time direct by written notice to Maker.
9. WAIVER. Maker, for itself and its successors, transfers and assigns,
waives presentment, dishonor, protest, notice of protest, demand for payment and
dishonor in nonpayment of this Note, bringing of suit or diligence of taking any
action to collect any sums owing hereunder or in proceeding against any of the
rights and properties securing payment hereunder.
10. SEVERABILITY. If any provision of this Note or the application
thereof to any persons or entities or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Note shall not be deemed
affected thereby and every provision of this Note shall be valid and enforceable
to the fullest extent permitted by law.
11. NO PARTNER. Payee shall not become or be deemed to be a partner or
joint venturer with Maker by reason of any provision of this Note. Nothing
herein shall constitute Maker and Payee as partners or joint venturers or
require Payee to participate in or be responsible or liable for any costs,
liabilities, expenses or losses of Maker.
12. NO WAIVER. The failure to exercise any rights herein shall not
constitute a waiver of the right to exercise the same or any other right at any
subsequent time in respect of the same event or any other event.
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13. GOVERNING LAW. This Note shall be governed by and construed solely
in accordance with the laws of the State of California.
IN WITNESS WHEREOF, Maker has executed this Note as of the date first
hereinabove written.
MAKER:
_______________________________________________
Roland F. Bryan
PAYEE: Solar3D, Inc., a Delaware corporation
By:
____________________________________________
James B. Nelson, Chief Executive Officer
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