UNITED STATES

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): March 10, 2021 (March 4, 2021)

ASCENT SOLAR TECHNOLOGIES, INC.

(Exact name of registrant as specified in its charter)

 

Delaware   001-32919   20-3672603

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

   

12300 Grant Street

Thornton, Colorado

  80241
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code:    (720) 872-5000

Not Applicable

Former name or former address, if changed since last report

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

   
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

     
Title of each class Trading Symbol(s) Name of exchange on which registered
Common ASTI OTC
 

 

 

 

 
 
 

 

Item 1.01 Entry into a Material Definitive Agreement.

 

Private Placement Offering of Common Stock

 

On March 4, 2021, Ascent Solar Technologies, Inc., a Delaware corporation (the “Company”) entered into a securities purchase agreement (“Common Stock SPA”) with Baybridge Capital Fund, LP, a private investor (“BBCF”), for the private placement of 75,000,000 shares of the Company’s Common Stock at a fixed price of $0.04 per share.

 

On March 9, 2021, the Company sold the 75,000,000 common shares to BBCF in exchange for $3,000,000 of gross proceeds.

 

In the Common Stock SPA, the Company has agreed to make commercially reasonable best efforts to register such 75,000,000 common shares on a resale registration statement. The Company expects that such resale registration statement would be filed by the Company shortly after the filing of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020.

 

Settlement of Outstanding Secured Convertible Promissory Note

 

As previously disclosed, on September 9, 2020, the Company entered into a securities exchange agreement with Global Ichiban Limited, a British Virgin Islands corporation (“GI”). Pursuant to the terms of such exchange agreement, GI agreed to surrender and exchange all of its existing outstanding promissory notes with an aggregate principal balance of $6,374,666.57 (including accrued interest). In exchange, the Company issued to GI a secured convertible promissory note with a principal amount of $6,400,000.00 (“GI Secured Note”).

 

On March 9, 2021, the Company entered into a settlement agreement (“GI Settlement Agreement”) with GI regarding the GI Secured Note. Pursuant to the terms of the GI Settlement Agreement, GI agreed to surrender and cancel the GI Secured Note (current principal balance of $5,800,000) in exchange for 168,000,000 shares of the Company’s Common Stock.

 

In connection with the GI Settlement Agreement, the lien and security agreement on substantially all of the Company’s assets securing the GI Secured Note was terminated and cancelled.

 

In the GI Settlement Agreement, the Company has agreed to make commercially reasonable best efforts to register such 168,000,000 common shares (and certain other shares held by GI and its transferees) on a resale registration statement. The Company expects that such resale registration statement would be filed by the Company shortly after the filing of the Company’s Annual Report on Form 10-K for the year ended December 31, 2020.

 

* * * * * *

 

The foregoing description of the Common Stock SPA and the GI Settlement Agreement is a summary and is qualified in its entirety by reference to the documents attached hereto as Exhibits, which documents are incorporated herein by reference.

 

Item 3.02 Unregistered Sales of Equity Securities.

 

All of the securities described in this Current Report on Form 8-K were or will be offered and sold in reliance upon exemptions from registration pursuant to Section 3(a)(9) and Section 4(a)(2) under the Securities Act of 1933, as amended (“Securities Act”), and Rule 506 of Regulation D promulgated thereunder. The offering was made to “accredited investors” (as defined by Rule 501 under the Securities Act).

 

 

Item 9.01 Financial Statements and Exhibits.

 

       
(d) Exhibits    
 

 

Exhibit

Number

  Description
       
  10.1   Common Stock Securities Purchase Agreement dated March 4, 2021
  10.2   Settlement Agreement dated March 9, 2021

  

 

 

 
 
 

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 
                 
                 
        ASCENT SOLAR TECHNOLOGIES, INC.
       
March 10, 2021       By:   /s/ Victor Lee
                Name: Victor Lee
                Title: Chief Executive Officer

 

 

 

 

Exhibit 10.1

 

 

ASCENT SOLAR TECHNOLOGIES, INC.

 

COMMON STOCK PURCHASE AGREEMENT

 

THIS COMMON STOCK PURCHASE AGREEMENT (the “Agreement”) is entered into as of the 4th day of March, 2021 (the “Effective Date”) by and among ASCENT SOLAR TECHNOLOGIES, INC., a Delaware corporation (the “Company”), and the persons or entities named on the executed counterpart signature pages attached hereto (the “Purchaser”).

 

RECITALS

 

WHEREAS, the Company has authorized the sale and issuance of up to an aggregate of 75,000,000 shares of its Common Stock (the “Shares”); and

 

WHEREAS, the Company desires to issue and sell the Shares to Purchaser on the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the foregoing, and the representations, warranties, covenants and conditions set forth below, the Company and each Purchaser, intending to be legally bound, hereby agree as follows:

 

1. AGREEMENT TO SELL AND PURCHASE.

 

1.1               Authorization of Shares. The Company has authorized the sale and issuance to the Purchaser of the Shares. The Shares have the rights, preferences, privileges and restrictions set forth in the Company’s Certificate of Incorporation, as amended to date (the “Charter”).

 

1.2               Sale and Purchase. Subject to the terms and conditions hereof, at the Closing (as defined below), the Company hereby agrees to issue and sell to Purchaser, and Purchaser agrees to purchase from the Company, 75,000,000 Shares, at a purchase price of $0.04 per share (the “Purchase Price”).

 

2. THE CLOSING.

 

2.1               Closing Date. The closing of the sale and purchase of the Shares (the “Closing”) shall be held on or before March 10, 2021 (the “Closing Date”).

 

2.2               Delivery. At the Closing, subject to the terms and conditions hereof, the Company will deliver to the Purchaser a Book Entry statement representing the number of Shares to be purchased at such Closing by the Purchaser, against payment of the Purchase Price therefor by check or wire transfer made in accordance with the Company’s instructions.

 

2.3               Registration Rights. The Company hereby agrees to make commercially reasonable best efforts to (i) prepare and file one or more a resale registration statements (the “Resale Registration”) with the Securities Exchange Commission (“SEC”) promptly following the Company’s filing with the SEC of its Forms 10-Q for the quarters ended March 31, 2020, June 30, 2020 and September 30, 2020, and its Form 10-K for the year ended December 31, 2020, (ii) cause such Resale Registration to be declared effective by the SEC as soon as reasonably practicably after the filing thereof, and (iii) cause such Resale Registration to remain effective until such time as all of the registered shares (x) have been sold pursuant to the Resale Registration or (y) may be sold without volume or manner-of-sale securities law restrictions and without the requirement for the Company to be in compliance with the current public information requirements under applicable securities laws. The Resale Registration shall register all of the Shares.

 

 

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3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.

 

Except as set forth in the SEC Reports or the Disclosure Schedules, which SEC Reports and Disclosure Schedules shall be deemed a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding section of the SEC Reports and Disclosure Schedules, the Company hereby makes the following representations and warranties to the Purchaser as follows:

 

3.1               Organization, Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company has all requisite corporate power and authority to own and operate its properties and assets, to execute and deliver this Agreement, to issue and sell the Shares, to carry out the provisions of this Agreement, and to carry on its business as presently conducted and as presently proposed to be conducted.

 

3.2               Authorization. All corporate action on the part of the Company, its directors and its stockholders necessary for the authorization, execution, delivery and performance of this Agreement by the Company and the performance of the Company’s obligations hereunder, including the issuance and delivery of the Shares, has been taken or will be taken prior to the issuance of the Shares. This Agreement, when executed and delivered by the Company, shall constitute valid and binding obligations of the Company enforceable in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency, the relief of debtors and, with respect to rights to indemnity, subject to federal and state securities laws.

 

3.3             Capitalization. The capitalization of the Company is as set forth on the Disclosure Schedule. Except as set forth on the Disclosure Schedule, the Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Shares. The Shares, when issued, paid for and delivered in accordance with the terms of this Agreement, will be duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights.

 

3.4               Governmental Consents. All consents, approvals, orders, or authorizations of, or registrations, qualifications, designations, declarations, or filings with, any governmental authority, required on the part of the Company in connection with the valid execution and delivery of this Agreement, the offer, sale or issuance of the Shares or the consummation of any other transaction contemplated hereby shall have been obtained and will be effective at the Closing.

 

3.5               Compliance with Laws. To its knowledge, the Company is not in violation of any applicable statute, rule, regulation, order or restriction of any domestic or foreign government or any instrumentality or agency thereof in respect of the conduct of its business or the ownership of its properties, which violation of which would materially and adversely affect the business, assets, liabilities, financial condition, operations or prospects of the Company.

 

 

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3.6               Compliance with Other Instruments. The Company is not in violation or default of any term of the Charter or its bylaws, or of any provision of any mortgage, indenture or contract to which it is a party and by which it is bound or of any judgment, decree, order or writ, other than such violation(s) that would not have a material adverse effect on the Company. The execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby or thereby will not result in any such violation or be in conflict with, or constitute, with or without the passage of time and giving of notice, either a default under any such provision, instrument, judgment, decree, order or writ or an event that results in the creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture, or nonrenewal of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.

 

3.7 Offering

 (a)                Assuming the accuracy of the representations and warranties of the Purchasers contained in Section 4 hereof, the offer, issue, and sale of the Shares are and will be exempt from the registration and prospectus delivery requirements of the Securities Act of 1933, as amended (the “Act”), and have been registered or qualified (or are exempt from registration and qualification) under the registration, permit, or qualification requirements of all applicable state securities laws.

 

(b)                No “Bad Actor” Disqualification. The Company has exercised reasonable care to determine whether any Company Covered Person (as defined below) is subject to any of the “bad actor” disqualifications described in Rule 506(d)(1)(i) through (viii), as modified by Rules 506(d)(2) and (d)(3), under the Securities Act (“Disqualification Events”). To the Company’s knowledge, no Company Covered Person is subject to a Disqualification Event. The Company has complied, to the extent required, with any disclosure obligations under Rule 506(e) under the Securities Act. For purposes of this Agreement, “Company Covered Persons” are those persons specified in Rule 506(d)(1) under the Securities Act; provided, however, that Company Covered Persons do not include (a) any Purchaser, or (b) any person or entity that is deemed to be an affiliated issuer of the Company solely as a result of the relationship between the Company and any Purchaser.

 

3.8 SEC Filings; Financial Statements.

 

(a)                Except as set forth on the Disclosure Schedule, the Company has timely filed all forms, reports and documents (including all exhibits) required to be filed by it with the SEC since January 1, 2019 (the “SEC Reports”). The SEC Reports (i) were prepared in accordance with the requirements of the Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder and (ii) did not at the time they were filed contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.

 

(b)                Each of the financial statements (including, in each case, any notes thereto) contained in the SEC Reports was prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) and the Company’s books and records, and each fairly presented the financial position, results of operations and cash flows of the Company as at the respective dates thereof and for the respective periods indicated therein except as otherwise noted therein (subject, in the case of unaudited statements, to normal year-end adjustments which individually or in the aggregate did not have, and would not reasonably be expected to have, a material adverse effect on the business, operations, assets, liabilities, financial condition or results of operations of the Company). The books and records of the Company have been, and are being, maintained in accordance with applicable legal and accounting requirements in all material respects.

 

 

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3.9               Further Assurances. The Company agrees and covenants that at any time and from time to time it will promptly execute and deliver to the Purchaser such further instruments and documents and take such further action as the Purchaser may reasonably require in order to carry out the full intent and purpose of this Agreement and to comply with state or federal securities laws or other reasonable requests that the Purchaser may require.

 

4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.

 

Purchaser hereby represents and warrants to the Company as follows (provided that such representations and warranties do not lessen or obviate the representations and warranties of the Company set forth in this Agreement):

 

4.1               Purchase for Own Account. Purchaser represents that it is acquiring the Shares for its own account and not with a view towards, or for resale in connection with, a public sale or distribution thereof in violation of applicable securities laws, except pursuant to sales registered or exempted under the Act; notwithstanding the forgoing, by making the representations herein, Purchaser does not agree, or make any representation or warranty, to hold any of the Shares for any minimum or other specific term and reserves the right to dispose of the Shares at any time in accordance with or pursuant to a registration statement or an applicable exemption under the Act. Purchaser does not presently have any agreement or understanding, directly or indirectly, with any Person to distribute any of the Shares in violation of applicable securities laws.

 

4.2               Information and Sophistication. Purchaser hereby: (i) acknowledges that it has received all the information it has requested from the Company and it considers necessary or appropriate for deciding whether to acquire the Shares, (ii) represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Shares and to obtain any additional information necessary to verify the accuracy of the information given the Purchaser and (iii) further represents that it has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of this investment.

 

4.3               Ability to Bear Economic Risk. Purchaser acknowledges that investment in the Shares involves a high degree of risk, and represents that it is able, without materially impairing its financial condition, to hold the Shares for an indefinite period of time and to suffer a complete loss of its investment.

 

4.4               Rule 144. Purchaser acknowledges and agrees that the Shares are “restricted securities” as defined in Rule 144 promulgated under the Act as in effect from time to time and must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration is available. Purchaser has been advised or is aware of the provisions of Rule 144, which permits limited resale of shares purchased in a private placement subject to the satisfaction of certain conditions. Purchaser acknowledges that the Company has no obligation to register the Shares for resale.

 

4.5               Legends. Purchaser acknowledges and agrees that the Shares may bear one or all of the following legends:

 

(a)                “THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION

 

 

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OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933 AS AMENDED.”

 

(b)                Any legend required by the state securities laws of any U.S. state to the extent such laws are applicable to the shares represented by the certificate so legended.

 

4.6               Accredited Investor Status. At the time Purchaser was offered the Shares, it was, and as of the date hereof it is, either (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act.

 

4.7               No “Bad Actor” Disqualification. Purchaser represents and warrants that neither (A) the Purchaser nor (B) any entity that controls the Purchaser or is under the control of, or under common control with, the Purchaser, is subject to any Disqualification Event, except for Disqualification Events covered by Rule 506(d)(2)(ii) or (iii) or (d)(3) under the Securities Act and disclosed in writing in reasonable detail to the Company. The Purchaser represents that the Purchaser has exercised reasonable care to determine the accuracy of the representation made by the Purchaser in this paragraph, and agrees to notify the Company if the Purchaser becomes aware of any fact that makes the representation given by the Purchaser hereunder inaccurate.

 

4.8               Residence. If Purchaser is an individual, then Purchaser resides in the jurisdiction identified in the address of Purchaser set forth on the executed counterpart signature page attached hereto. If Purchaser is a partnership, corporation, limited partnership, limited liability company or other entity, then the office or offices of Purchaser in which its investment decision was made is located at the address or addresses of Purchaser set forth on the executed counterpart signature page attached hereto.

 

4.9               Further Assurances. Purchaser agrees and covenants that at any time and from time to time it will promptly execute and deliver to the Company such further instruments and documents and take such further action as the Company may reasonably require in order to carry out the full intent and purpose of this Agreement and to comply with state or federal securities laws or other regulatory approvals.

 

5. CONDITIONS TO CLOSING.

 

5.1               Conditions to Purchasers’ Obligations at the Closing. Purchaser’s obligations to purchase the Shares at the Closing are subject to the satisfaction, at or prior to the Closing Date, of the following conditions:

 

(a)                Representations and Warranties True; Performance of Obligations. The representations and warranties made by the Company in Section 3 hereof shall be true and correct in all material respects as of the Closing with the same force and effect as if they had been made as of the Closing, and the Company shall have performed all obligations and conditions herein required to be performed or observed by it on or prior to the Closing.

 

(b)                Consents, Permits, and Waivers. The Company shall have obtained any and all consents, permits and waivers necessary or appropriate for consummation of the transactions contemplated by the Agreement, except for such as may be properly obtained subsequent to the Closing.

 

(c)                Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated at the Closing hereby and all documents and instruments incident to such transactions shall be reasonably satisfactory in substance and form to Purchasers, and Purchasers shall

 

 

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have received all such counterpart originals or certified or other copies of such documents as they may reasonably request.

 

5.2               Conditions to Obligations of the Company. The Company’s obligation to issue and sell the Shares at the Closing is subject to the satisfaction, at or prior to the Closing Date, of the following conditions:

 

(a)                Representations and Warranties True. The representations and warranties in Section 4 made by the Purchaser acquiring Shares hereof shall be true and correct in all material respects at the date of the Closing, with the same force and effect as if they had been made on and as of said date.

 

(b)                Consents, Permits, and Waivers. The Company shall have obtained any and all consents, permits and waivers necessary or appropriate for consummation of the transactions contemplated by this Agreement, except for such as may be properly obtained subsequent to the Closing.

 

6. MISCELLANEOUS.

 

6.1               Use of Proceeds. The Company agrees that the proceeds of the sale of the Shares will be used for working capital and general corporate purposes of the Company. The Company shall not use any such proceeds to make any distributions on, or payments in respect of, any outstanding equity securities of the Company.

 

6.2               Binding Agreement. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, expressed or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

 

6.3               Governing Law. This Agreement shall be governed by and construed under the laws of the State of Delaware, without giving effect to conflicts of laws principles.

 

6.4               Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

6.5               Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

 

6.6               Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed telex, electronic mail or facsimile if sent during normal business hours of the recipient, if not, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the Company and to the Purchaser at the address set forth on the executed counterpart signature pages attached hereto or at such other address as the Company or a Purchaser may designate by ten (10) days advance written notice to the other parties hereto.

 

6.7               Modification; Waiver. No modification or waiver of any provision of this Agreement or consent to departure therefrom shall be effective unless in writing and approved by the Company and the Purchaser. Any such amendment or modification shall be binding on all parties hereto.

 

6.8               Expenses. The Company and the Purchaser shall each bear its respective expenses and legal fees incurred with respect to this Agreement and the transactions contemplated herein.

 

 

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6.9               Delays or Omissions. It is agreed that no delay or omission to exercise any right, power or remedy accruing to the Purchaser, upon any breach or default of the Company under this Agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach or default, or any acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. It is further agreed that any waiver, permit, consent or approval of any kind or character by the Purchaser of any breach or default under this Agreement, or any waiver by the Purchaser of any provisions or conditions of this Agreement must be in writing and shall be effective only to the extent specifically set forth in writing and that all remedies, either under this Agreement, or by law or otherwise afforded to the Purchaser, shall be cumulative and not alternative.

 

6.10           Entire Agreement. This Agreement constitutes the full and entire understanding and agreement between the parties with regard to the subjects hereof and no party shall be liable or bound to any other party in any manner by any representations, warranties, covenants and agreements except as specifically set forth herein.

 

[Remainder of page intentionally left blank. Signature page follows.]

 

 

 

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IN WITNESS WHEREOF, the parties have executed this STOCK PURCHASE AGREEMENT as of the date first written above.

 

ASCENT SOLAR TECHNOLOGIES, INC.

 

 

By: /s/ Victor Lee        

Name: Victor Lee

Title: President & CEO

 

12300 Grant Street

Thornton, CO 80241

Email: [***]

 

 

 

BAYBRIDGE CAPITAL FUND, LP

 

By:  /s/ David E. Price          

Name: David E. Price

Title: Authorized Signatory

 

Address:#3 Bethesda Metro Center Suite 700

Bethesda, Md 20814

[***]

 

 

 

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Exhibit 10.2

 

 

SETTLEMENT AGREEMENT

 

THIS SETTLEMENT AGREEMENT (this “Agreement”) is entered into and effective as of March 9, 2021 (the “Effective Date”) by and between Ascent Solar Technologies, INC., a Delaware corporation (the “Company”) and GLOBAL ICHIBAN LIMITED, a British Virgin Islands corporation (hereinafter, the “Holder”). Each of the Company and the Holder may be referred to individually as a “Party” and collectively as the “Parties”.

 

W I T N E S S E T H

 

WHEREAS, between November 2017 and October 2018, the Company issued to the Holder separate Promissory Notes in the aggregate original principal amount totaling $6,492,226.51 (the “Prior Notes”); and

WHEREAS, the Holder exchanged the Prior Notes (then outstanding principal amount plus accrued interest equal to $6,360,340.80) for a Convertible Promissory Note (the “Convertible Note”) in the amount of $6,400,000.00 newly issued by the Company pursuant to an Exchange Agreement dated September 9, 2020 (the “Prior Exchange Agreement”); and

WHEREAS, the current outstanding principal amount of the Convertible Note is $5,800,000; and

WHEREAS, the Holder hereby agrees to exchange the Convertible Note issued by the Company for 168,000,000 shares of the Company’s Common Stock (the “Shares”) to be newly issued by the Company pursuant to this Agreement; and

WHEREAS, the parties to this Agreement intend that the transactions contemplated by this Agreement are such that the offer and exchange of securities by the Company under this Agreement will be exempt from registration under applicable United States securities laws as a result of this exchange offer being undertaken pursuant to Sections 3(a)(9) and 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”).

 

NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt of which is hereby acknowledged it is hereby agreed as follows:

 

1.       Exchange; Release of Lien, Security Agreement, Collateral.

 

(a)       Upon the terms and conditions set forth in this Agreement, the Company hereby agrees to issue to the Holder the Shares in exchange for the Convertible Note. Holder hereby agrees that by this exchange for the Shares, the Convertible Note shall be discharged, cancelled and extinguished in its entirety.

 

(b)       The parties hereby agree that the existing lien, security agreement and all collateral securing the Company’s obligations under the Convertible Note are hereby terminated and released. Following the date of this Agreement, the parties will execute, deliver and file all documents necessary to effect such termination and release.

 

2.       Registration Rights. The Company hereby agrees to make commercially reasonable best efforts to (i) prepare and file one or more a resale registration statements (the “Resale Registration”) with the Securities and Exchange Commission (“SEC”) promptly following the Company’s filing with the SEC of its Forms 10-Q for the quarters ended June 30, 2020 and September 30, 2020, and its Form 10-K for the year ended December 31, 2020, (ii) cause such Resale Registration to be declared effective by the SEC as soon as reasonably practicably after the filing thereof, and (iii) cause such Resale Registration to remain effective until such time as all of the registered shares (x) have been sold pursuant to the Resale Registration or (y) may be sold without volume or manner-of-sale securities law restrictions and without the requirement for the Company to be in compliance with the current public information requirements under applicable securities laws. The Resale Registration shall register (i) all of the Shares and (ii) any additional shares of the Company’s Common Stock currently held by the Holder and its transferees.

 

 
 
 

 

 

3.       Representations, Warranties and Covenants of the Company. Except as set forth in the SEC Reports, which SEC Reports shall be deemed a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding section of the SEC Reports, the Company hereby makes the following representations and warranties to the Holder as follows:

 

(a)       Organization, Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. The Company has all requisite corporate power and authority to own and operate its properties and assets, to execute and deliver this Agreement, to issue and sell the Shares, to carry out the provisions of this Agreement, and to carry on its business as presently conducted and as presently proposed to be conducted.

 

(b)       Authorization. All corporate action on the part of the Company, its directors and its stockholders necessary for the authorization, execution, delivery and performance of this Agreement by the Company and the performance of the Company’s obligations hereunder, including the issuance and delivery of the Shares, has been taken or will be taken prior to the issuance of the Shares. This Agreement, when executed and delivered by the Company, shall constitute valid and binding obligations of the Company enforceable in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency, the relief of debtors and, with respect to rights to indemnity, subject to federal and state securities laws.

 

(c)       Capitalization. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Shares. The Shares, when issued, paid for and delivered in accordance with the terms of this Agreement, will be duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights.

 

(d)       Governmental Consents. All consents, approvals, orders, or authorizations of, or registrations, qualifications, designations, declarations, or filings with, any governmental authority, required on the part of the Company in connection with the valid execution and delivery of this Agreement, the offer, sale or issuance of the Shares or the consummation of any other transaction contemplated hereby shall have been obtained and will be effective at the Closing.

 

(e)       Compliance with Laws. To its knowledge, the Company is not in violation of any applicable statute, rule, regulation, order or restriction of any domestic or foreign government or any instrumentality or agency thereof in respect of the conduct of its business or the ownership of its properties, which violation of which would materially and adversely affect the business, assets, liabilities, financial condition, operations or prospects of the Company.

 

 
 
 

 

 

(f)       Compliance with Other Instruments. The Company is not in violation or default of any term of its charter or its bylaws, or of any provision of any mortgage, indenture or contract to which it is a party and by which it is bound or of any judgment, decree, order or writ, other than such violation(s) that would not have a material adverse effect on the Company. The execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated hereby or thereby will not result in any such violation or be in conflict with, or constitute, with or without the passage of time and giving of notice, either a default under any such provision, instrument, judgment, decree, order or writ or an event that results in the creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture, or nonrenewal of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.

 

(g)       Offering.

 

(i)       Assuming the accuracy of the representations and warranties of the Holders contained in Section 4 hereof, the offer, issue, and sale of the Shares are and will be exempt from the registration and prospectus delivery requirements of the Securities Act, and have been registered or qualified (or are exempt from registration and qualification) under the registration, permit, or qualification requirements of all applicable state securities laws.

 

(ii)       No “Bad Actor” Disqualification. The Company has exercised reasonable care to determine whether any Company Covered Person (as defined below) is subject to any of the “bad actor” disqualifications described in Rule 506(d)(1)(i) through (viii), as modified by Rules 506(d)(2) and (d)(3), under the Securities Act (“Disqualification Events”). To the Company’s knowledge, no Company Covered Person is subject to a Disqualification Event. The Company has complied, to the extent required, with any disclosure obligations under Rule 506(e) under the Securities Act. For purposes of this Agreement, “Company Covered Persons” are those persons specified in Rule 506(d)(1) under the Securities Act; provided, however, that Company Covered Persons do not include (a) any Holder, or (b) any person or entity that is deemed to be an affiliated issuer of the Company solely as a result of the relationship between the Company and any Holder.

 

(h)       SEC Filings; Financial Statements.

 

(i)       The Company has filed with the SEC its Form 10-K for the year ended December 31, 2019 and its Form 10-Q for the quarter ended March 31, 2020 (the “SEC Reports”). The Company has not yet filed with the SEC its (i) Forms 10-Q for the quarters ended June 30, 2020 and September 30, 2020 and (ii) Form 10-K for the year ended December 31, 2020. The SEC Reports (i) were prepared in accordance with the requirements of the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder and (ii) did not at the time they were filed contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.

 

(ii)       Each of the financial statements (including, in each case, any notes thereto) contained in the SEC Reports was prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) and the Company’s books and records, and each fairly presented the financial position, results of operations and cash flows of the Company as at the respective dates thereof and for the respective periods indicated therein except as otherwise noted therein (subject, in the case of unaudited statements, to normal year-end adjustments which individually or in the aggregate did not have, and would not reasonably be expected to have, a material adverse effect on the business, operations, assets, liabilities, financial condition or results of operations of the Company). The books and records of the Company have been, and are being, maintained in accordance with applicable legal and accounting requirements in all material respects.

 

 
 
 

 

 

4.       Representations, Warranties and Covenants of the Holder. The Holder hereby represents and warrants to the Company as follows (provided that such representations and warranties do not lessen or obviate the representations and warranties of the Company set forth in this Agreement):

 

(a)       Purchase for Own Account. Holder represents that it is acquiring the Shares solely for its own account and beneficial interest for investment and not for sale or with a view to distribution of the Shares or any part thereof, has no present intention of selling (in connection with a distribution or otherwise), granting any participation in, or otherwise distributing the same, and does not presently have reason to anticipate a change in such intention.

 

(b)       Information and Sophistication. Holder hereby: (i) acknowledges that it has received all the information it has requested from the Company and it considers necessary or appropriate for deciding whether to acquire the Shares, (ii) represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Shares and to obtain any additional information necessary to verify the accuracy of the information given the Holder and (iii) further represents that it has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of this investment.

 

(c)       Ability to Bear Economic Risk. Holder acknowledges that investment in the Shares involves a high degree of risk, and represents that it is able, without materially impairing its financial condition, to hold the Shares for an indefinite period of time and to suffer a complete loss of its investment.

 

(d)       Rule 144. Holder acknowledges and agrees that the Shares are “restricted securities” as defined in Rule 144 promulgated under the Act as in effect from time to time and must be held indefinitely unless they are subsequently registered under the Act or an exemption from such registration is available. Holder has been advised or is aware of the provisions of Rule 144, which permits limited resale of shares purchased in a private placement subject to the satisfaction of certain conditions. Holder acknowledges that the Company has no obligation to register or qualify the Shares for resale.

 

(e)       Legends. Holder acknowledges and agrees that the Shares may bear one or all of the following legends:

 

(i)       “THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933 AS AMENDED.”

 

(ii)       Any legend required by the state securities laws of any U.S. state to the extent such laws are applicable to the shares represented by the certificate so legended.

 

(f)       Accredited Investor Status. At the time Holder was offered the Shares, it was, and as of the date hereof (i) is an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act, (ii) is a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act, or (iii) is not a U.S. Person as defined under Regulation S.

 

 
 
 

 

 

(g)       No “Bad Actor” Disqualification. Holder represents and warrants that neither (A) the Holder nor (B) any entity that controls the Holder or is under the control of, or under common control with, the Holder, is subject to any Disqualification Event, except for Disqualification Events covered by Rule 506(d)(2)(ii) or (iii) or (d)(3) under the Securities Act and disclosed in writing in reasonable detail to the Company. The Holder represents that the Holder has exercised reasonable care to determine the accuracy of the representation made by the Holder in this paragraph, and agrees to notify the Company if the Holder becomes aware of any fact that makes the representation given by the Holder hereunder inaccurate.

 

(h)       Residence. The Holder is an entity, and the office or offices of Holder in which its investment decision was made is located in Singapore.

 

(i)       Further Assurances. Holder agrees and covenants that at any time and from time to time it will promptly execute and deliver to the Company such further instruments and documents and take such further action as the Company may reasonably require in order to carry out the full intent and purpose of this Agreement and to comply with state or federal securities laws or other regulatory approvals.

 

5.       Miscellaneous.

 

(a)                Notices. All notices or other communications required or permitted by this Agreement or by law to be served on or given to either party to this Agreement by the other party shall be in writing and shall be deemed duly served when personally delivered to the party at an address agreed upon by both parties.

 

(b)                Assignment. This Agreement and all the provisions hereof will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

 

(c)                Governing Law. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Colorado, without giving effect to the principles of conflict of laws. All parties to this Agreement shall hereby submit to the personal and subject matter jurisdiction and venue of the state or federal courts located in Denver, Colorado and irrevocably waive any trial by jury. If either party commences an action arising out of this Agreement, the prevailing party shall, in addition to any other damages and costs awarded, be entitled to reasonable legal fees incurred in connection with the prosecution or defense of such action.

 

(d)                Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such provision or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

 

(e)                Amendment; Waiver. In the event either party wishes to amend this Agreement, the Agreement may only be amended or waived in a writing executed by the both parties.

 

(f)                 Complete Agreement. This Agreement contains the complete agreement between the parties hereto and supersedes any prior understandings, agreements or representations by or between the parties, written or oral, which may have related to the subject matter hereof in any way.

 

 
 
 

 

(g)                Further Assurances. The parties shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other parties hereto may reasonably request in order to carry out the intent an accomplish the purposes of this Agreement, if requested.

 

(h)                Counterparts. This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. In the event that any signature is delivered by facsimile transmission or by an e-mail which contains a portable document format (.pdf) file of an executed signature page, such signature page shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.

 

[ Remainder of Page Intentionally Left Blank; Signature Page to Follow ]

 

 

 

 

 
 

 

IN WITNESS WHEREOF, the parties hereby have executed this Settlement Agreement as of the date first written above.

 

 

 

Ascent Solar Technologies, INC.

 

   

 

 

 

  By:   /s/ Victor Lee
    Name: Victor Lee
    Title: President & CEO
     

 

 

 

 

GLOBAL ICHIBAN LIMITED

BY: ITUS ASSET MANAGEMENT PTE LTD

ITS: Corporate Director

 

 
   

 

 

 

 
  By:   /s/ B.T. Chua  
    Name: B.T. Chua  
    Title: Authorized Signatory