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):
June 2, 2015
SOLAR WIND ENERGY TOWER INC.
(Exact name of registrant as specified in
its charter)
| Nevada |
|
000-53035 |
|
82-6008752 |
|
(State or other jurisdiction of
incorporation) |
|
(Commission File Number) |
|
(IRS Employer
Identification No.) |
1997 Annapolis Exchange Pkwy., Suite 300
Annapolis, MD 21401
(Address of principal executive offices)
(Zip Code)
Registrant’s telephone number, including
area code: (410) 972 - 4713
N/A
(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
(see General Instruction A.2. below):
| ☐ |
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) |
Item 1.01 Entry Into a Material Definitive Agreement
On June 2, 2015, the Company entered into
certain exchange agreements (the “Exchange Agreements”) with Ronald Pickett, Stephen Sadle and Robert Crabb, the current
directors and officers of the Company (the “Holders”), respectively, pursuant to which the Holders agreed to cancel
their current promissory notes and warrants issued by the Company, in exchange for newly issued shares of the Company’s
preferred stock, par value $0.0001 per share, designated as Series A Convertible Preferred Stock of the Company (the “Series
A Stock”). The number of shares of the Series A Stock issued to the Holders shall be determined by dividing (i) the principal
amount plus all accrued but unpaid interest on the notes to the date thereof by (ii) $1.00. No fractional shares of the Series
A Stock shall be issued and shall be round up to the next share. The warrants shall be cancelled and deemed void.
As a result, Mr. Pickett cancelled his
promissory note in the amount of $200,000 plus $4,377.77 accrued but unpaid interest thereon and warrants to purchase 30,864,198
shares of the common stock of the Company, in exchange for the issuance of 204,378 shares of Series A Stock. Mr. Sadle cancelled
his promissory note in the amount of $150,000 plus $3,283.33 accrued but unpaid interest thereon and warrants to purchase
23,148,148 shares of the common stock of the Company, in exchange for the issuance of 153,284 shares of Series A Stock. Mr. Crabb
cancelled his promissory note in the amount of $35,000 plus $766.11 accrued but unpaid interest thereon and warrants to
purchase 5,401,235 shares of the common stock of the Company, in exchange for the issuance of 35,767 shares of Series A Stock.
The forgoing description, including rights
and preferences, of the Series A Stock as set forth in Item 5.03 of this Current Report on Form 8-K is incorporated by reference
in this Item 1.01.
The foregoing description of the Exchange
Agreements is qualified, in its entirety, by the full text of the form of the exchange agreement, attached to this Current Report
on Form 8-K as Exhibit 10.1, and incorporated by reference herein.
Item
3.02 Unregistered Sale of Equity Securities
The forgoing description, including rights
and preferences, of the Series A Stock as set forth in Item 5.03 of this Current Report on Form 8-K is incorporated by reference
in this Item 3.02.
On June 1, 2015, the Board of Directors
of the Company authorized the issuance of an aggregate of 393,429 shares of Series A Stock to the Holders in exchange for the cancellation
of the notes and warrants.
The foregoing securities were offered and
sold without registration under the Securities Act of 1933 (the “Securities Act”) in reliance on the exemptions provided
by Section 4(a)(2) of the Securities Act.
Item 5.03 Amendments to Articles of Incorporation or Bylaws
On June 1, 2015, our board of directors
approved a Certificate of Designation, Preferences, and Rights of the Series A Convertible
Preferred Stock (the “Certificate of Designation”). Such Certificate of Designation was filed with the Nevada State
of Secretary on June 2, 2015. This newly designation class of preferred stock consists of five hundred thousand (500,000) shares.
Series A Super Voting Preferred Stock votes together with our common stock at a rate of ten thousand (10,000) votes for each preferred
share held. In any liquidation, holders of our Series A Super Voting Preferred Stock will receive liquidation preference. Shares
of Series A Super Voting Preferred Stock have no dividend rights.
The Series A Stock is convertible, at the
option of the holder, into that number of shares of the Company’s Common Stock, at a conversion price of $0.00648 per share,
meaning for every one (1) Series A Stock share shall convert into 154.32 shares of common stock of the Company. No fractional shares
shall be issued and shall be round up to the next share. Further, the Series A Stock shall have the right to twenty (20) votes
for each share of common stock into which such Series A Stock could be converted.
The foregoing description of the Series
A Stock is qualified, in its entirety, by the full text of the Certificate of Designations, attached to this Current Report on
Form 8-K as Exhibit 3.1, and incorporated by reference herein.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Exhibit No. |
|
Description |
| |
|
|
| 3.1 |
|
Certificate of Designation |
| 10.1 |
|
Form of Exchange Agreement |
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.
| |
Solar Wind Energy Tower, Inc. |
|
| |
|
|
|
| Date: June 4, 2015 |
By: |
/s/ Ronald Pickett |
|
| |
|
Ronald Pickett |
|
| |
|
Chief Executive Officer |
|
Exhibit 3.1
| SOLAR WIND ENERGY TOWER INC. |
|
Job: C20150602-1953 |
| 1997 ANNAPOLIS EXCHANGE PKWY SUITE 300 |
|
June 2, 2015 |
| ANNAPOLIS, MD 21401 |
|
|
Special Handling Instructions:
24hr DESG EMAILED 06.02.15 RMS
Charges
| Description |
Document Number |
Filing Date/Time |
Qty |
Price |
Amount |
| Designation |
20150250707-69 |
6/2/2015 12:26:41 PM |
1 |
$175.00 |
$175.00 |
| 24 Hour Expedite |
20150250707-69 |
6/2/2015 12:26:41 PM |
1 |
$125.00 |
$125.00 |
| Total |
|
|
|
|
$300.00 |
Payments
| Type |
Description |
Amount |
| Credit |
289479|15060275997100 |
$300.00 |
| Total |
|
$300.00 |
Credit Balance: $0.00
Job Contents:
File
Stamped Copy(s): 1
SOLAR WIND ENERGY TOWER INC.
1997 ANNAPOLIS EXCHANGE PKWY SUITE 300
ANNAPOLIS, MD 21401
Certificate of Designation
For
Nevada Profit Corporations
(Pursuant to NRS 78.1955)
1.
Name of corporation:
Solar
Wind Energy Tower, Inc.
2. By resolution of the board of directors pursuant to a provision in the articles of incorporation
this certificate establishes the following regarding the voting powers, designations, preferences, limitations, restrictions and
relative rights of the following class or series of stock.
Pursuant to the authority conferred upon the Board of Directors
by the Articles of Incorporation, the Board of Directors hereby designates ten million (10,000,000) shares of Preferred Stock authorized
in the Articles of Incorporation (the "Preferred Stock"), a Series of the Preferred Stock consisting of Five Hundred
Thousand (500,000) shares, $0.0001 par value per share, to be designated "Series A Convertible Preferred Stock and the qualifications,
limitations and restrictions thereof, be, and they hereby are, as set forth in this certificate of designation (this "Certificate
of Designation"), and in connection therewith, the officers of the Corporation be, and each of them hereby is, authorized,
empowered and directed on behalf of the Corporation and in its name to execute and to file this Certificate of Designation with
the Secretary of State of the State of Nevada.
See attached Certificate of Designation of Series A Preferred Stock
3. Effective date of filing:
(optional) June 2, 2015
4. Signature:
CERTIFICATE OF THE DESIGNATIONS,
POWERS
PREFERENCES AND RIGHTS
OF THE
SERIES A CONVERTIBLE PREFERRED STOCK
($0.0001 PAR VALUE PER SHARE)
OF
SOLAR WIND ENERGY TOWER, INC.
A NEVADA CORPORATION
------------------------------------
Pursuant to Section 78.1955
of the
Nevada Revised Statutes
------------------------------------
Solar
Wind Energy Tower, Inc., a corporation organized and existing under the Nevada Revised Statutes (the "Company"),
DOES
HEREBY CERTIFY that, pursuant to authority conferred upon the Board of Directors of the Company (the "Board") by
the Articles of Incorporation of, and pursuant to the provisions of SECTION 78.1955 of the Nevada Revised Statutes, there hereby
is created out of the ten million (10,000,000) shares of Preferred Stock authorized in the Articles of Incorporation (the
"Preferred Stock"), a Series of the Preferred Stock consisting of Five Hundred Thousand (500,000) shares, $0.0001 par
value per share, to be designated "Series A Convertible Preferred Stock," and to that end the Board adopted a resolution
providing for the designation, powers, preferences and rights, and the qualifications, limitations and restrictions, of the Series
A Convertible Preferred Stock, which resolution is as follows:
RESOLVED,
that the Certificate of the Designations, Powers, Preferences and Rights of the Series A Convertible Preferred Stock ("Certificate
of Designation") be and is hereby authorized and approved, which Certificate of Designation shall be filed with the Nevada
Secretary of State in the form as follows:
1. DESIGNATIONS
AND AMOUNT. Five Hundred Thousand (500,000) shares of the Preferred Stock of the Company, $0.0001 par value per share, shall
constitute a class of Preferred Stock designated as "Series A Convertible Preferred Stock" (the "Series A Stock")
with a face value of $0.0001 per share (the "Face Amount"). The Holder will be issued shares of the Series A Stock in
denominations of not less than 1 shares. After the initial issuance of shares of Series A Stock, no additional shares of Series
A Stock may be issued by the Company except as provided herein.
(a) NO
REISSUANCE OF SERIES A STOCK. The Articles of Incorporation of the Company may be appropriately, amended from time to time
to effect the corresponding reduction in the Company's authorized capital stock.
(b) In
the event of any taking by the Company of a record of the holders of any class of securities for the purpose of determining the
holders thereof who are entitled to receive any dividend or other distribution, any right to subscribe for, purchase or otherwise
acquire any shares of stock of any class or any other securities or property, or to receive any other right, the Company shall
mail to each holder of Series A Stock, at least 20 days prior to the date specified therein, a notice specifying the date on which
any such record is to be taken for the purpose of such dividend, distribution or right, and the amount and character of such dividend,
distribution or right.
(c) The
Company shall pay all documentary, stamp or other transactional taxes attributable to the issuance or delivery of shares of capital
stock of the Company; provided, however, that the Company shall not be required to pay any taxes which may be payable in respect
of any transfer involved in the issuance or delivery of any certificate for such shares in a name other than that of the holder
of the shares of Series A Stock in respect of which such shares are being issued.
2. RANK.
Except as specifically provided below, the Series A Stock shall, with respect to dividend rights, rights on redemption and
rights on liquidation, winding up and dissolution, rank senior to (i) all classes of Common Stock, $0.0001 par value per share,
of the Company (the "Common Stock") and (ii) any class or series of capital stock of the Company hereafter created (unless,
with the consent of the Holder(s) of Series A Stock).
3. LIQUIDATION
PREFERENCE
(a) If
the Company shall commence a voluntary case under the U.S. Federal bankruptcy laws or any other applicable bankruptcy, insolvency
or similar law, or consent to the entry of an order for relief in an involuntary case under any law or to the appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of the Company or of any substantial
part of its property, or make an assignment for the benefit of its creditors, or admit in writing its inability to pay its debts
generally as they become due, or if a decree or order for relief in respect of the Company shall be entered by a court having
jurisdiction in the
premises in an involuntary case under the U.S. Federal bankruptcy laws or any other applicable bankruptcy, insolvency or similar
law resulting in the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official)
of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and any such
decree or order shall be unstayed and in effect for a period of sixty (60) consecutive days and, on account of any such event,
the Company shall liquidate, dissolve or wind up, or if the Company shall otherwise liquidate, dissolve or wind up (a "Liquidation
Event"), no distribution shall be made to the Holders of any shares of capital stock of the Company (other than Senior Securities)
upon liquidation, dissolution or winding up unless prior thereto the Holders of shares of Series A Stock shall have received the
Liquidation Preference with respect to each share.
(b) The
purchase or redemption by the Company of stock of any class, in any manner permitted by law, shall not, for the purposes hereof,
be regarded as a liquidation, dissolution or winding up of the Company. Neither the consolidation nor merger of the Company
with or into any other entity nor the sale or transfer by the Company of less than substantially all of its assets shall, for
the purposes hereof, be deemed to be a liquidation, dissolution or winding up of the Company.
(c) The
"Liquidation Preference" with respect to a share of Series A Stock means an amount equal to the Face Amount thereof.
The Liquidation Preference with respect to any other security shall be as set forth in the Certificate of Designation filed in
respect thereof.
4. DIVIDENDS.
The holders of shares of Series A Stock shall not be entitled to receive dividends with respect thereto ("Preferred Dividends")
if, as and when declared by the Board of Directors of the Company (the "Board") out of assets of the Company legally
available for payment thereof.
5. CONVERSION.
The Series A Stock shall be convertible, at the option of the holder, into Common Stock as specifically set forth below:
(a) Conversion
Price. The "Conversion Price" shall be $0.00648 per share, meaning for every one (1) Preferred A Stock share shall convert
into 154,32 shares of Common Stock of the Company. No fractional shares shall be issued and shall be round up to the next share.
(b) Taxes.
The Company shall not be required to pay any tax which may be payable in respect to any transfer involved in the issue and delivery
of shares of Common Stock upon conversion in a name other than that in which the shares of the Series A Stock so converted were
registered, and no such issue or delivery shall be made unless and until the person requesting such issue or delivery has paid
to the Company the amount of any such tax, or has established, to the satisfaction of the Company, that such tax has been paid.
The Company shall withhold from any payment due whatsoever in connection with the Series A Stock any and all required withholdings
and/or taxes the Company, in its sole discretion deems reasonable or necessary, absent an opinion from holder's accountant or
legal counsel, acceptable to the Company in its sole determination, that such withholdings and/or taxes are not required to be
withheld by the Company.
(c) Reservation
of Stock Issuable Upon Conversion. The Company shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock solely for the purpose of effecting the conversion of the shares of the Series A Stock, such number of
its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all then outstanding shares of
the Series A Stock; and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to
effect the conversion of all then outstanding shares of the Series A Stock, the Company will within a reasonable time period make
a good faith effort to take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized
but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose.
(d) Effect
of Conversion. On the date of any conversion, all rights of any holder with respect to the shares of the Series A Stock so converted,
including the rights, if any, to receive distributions of the Company's assets (including, but not limited to, the Liquidation
Preference) or notices from the Company, will terminate, except only for the rights of any such Holder to receive certificates
(if applicable) for the number of shares of Common Stock into which such shares of the Series A Stock have been converted.
6. VOTING
RIGHTS. The holder of each share of Series A Stock shall have the right to twenty (20) votes for each share of Common Stock
into which such Series A Stock could then be converted, and with respect to such vote, such holder shall have full voting rights
and powers equal to the voting rights and powers of the holders of Common Stock, and shall be entitled, notwithstanding any provision
hereof, to notice of any stockholders' meeting in accordance with the Bylaws of this Corporation, and shall be entitled to vote,
together with holders of Common Stock, with respect to any question upon which holders of Common Stock have the right to vote.
7. PROTECTION
PROVISIONS
So
long as any shares of Series A Stock are outstanding, the Company shall not, without first obtaining the approval (by vote or
written consent, as provided by the Business Corporation Law) of the Holders of at least a majority of the then outstanding shares
of Series A Stock:
(a) alter
or change the rights, preferences or privileges of the Series A Stock;
(b) alter
or change the rights, preferences or privileges of any capital stock of the Company so as to affect adversely the Series A Stock;
(c) create
any new class or series of capital stock having a preference over the Series A Stock as to distribution of assets upon liquidation,
dissolution or winding up of the Company (as previously defined, "Senior Securities");
(d) create
any new class or series of capital stock ranking pari passu with the Series A Stock as to distribution of assets upon liquidation,
dissolution or winding up of the Company (as previously defined, "Pafi Passu Securities");
(e) increase
the authorized number of shares of Series A Stock;
(f) issue
any additional shares of Senior Securities; or
If
Holders of at least a majority of the then outstanding shares of Series A Stock agree to allow the Company to alter or change
the rights, preferences or privileges of the shares of Series A Stock pursuant to subsection (a) above, then the Company shall
deliver notice of such approved change to the Holders of the Series A Stock that did not agree to such alteration or change (the
"Dissenting Holders") and the Dissenting Holders shall have the right, for a period of thirty (30) days, to convert
pursuant to the terms of this Certificate of Designation as they existed prior to such alteration or change or to continue to
hold their shares of Series A Stock.
8. MERGER.
CONSOLIDATION. ETC.
(a) If
at any time or from time to time there shall be (i) a merger, or consolidation of the Company with or into another corporation,
(ii) the sale of all or substantially all of the Company's capital stock or assets to any other person, (iii) any other form of
business combination or reorganization in which the Company shall not be the continuing or surviving entity of such business combination
or reorganization, or (iv) any transaction or Series of transactions by the Company in which in excess of 50 percent of
the Company's voting power is transferred (each, a "Reorganization"), then as a part of such Reorganization, provision
shall be made so that the holders of the Series A Stock shall thereafter be entitled to receive upon conversion of the Series
A Stock the same kind and amount of stock or other securities or property (including cash) of the Company, or of the successor
corporation resulting from such Reorganization, to which such holder would have been entitled if such holder had converted its
shares of Series A Stock immediately prior to the effective time .of such Reorganization. In any such case, appropriate adjustment
shall be made in the application of the provisions of this SECTION 8 to the end that the provisions of this SECTION 8 (including
adjustment of the Conversion Value then in effect and the number of shares of Common Stock or other securities issuable upon conversion
of such shares of Series A Stock) shall be applicable after that event in as nearly equivalent a manner as may be practicable.
(b) The
provisions of this SECTION 8 are in addition to and not in lieu of the provisions of SECTION 6 hereof.
8. NO
IMPAIRMENT. The Company will not, by amendment of its Articles of Incorporation or through any reorganization, recapitalization,
transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek
to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all
times in good faith assist in the carrying out of all the provisions of this Certificate of Designation and in the taking of all
such action as may be necessary or appropriate in order to protect the conversion rights of the holders of the Series A Stock
against impairment.
9. LOST
OR STOLEN CERTIFICATES. Upon receipt by the Company of (i) evidence of the loss, theft, destruction or mutilation of any Preferred
Stock Certificate(s) and (ii) (y) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to the Company,
or (z) in the case of mutilation, upon surrender and cancellation of the Preferred Stock Certificate(s), the Company shall execute
and deliver new Preferred Stock Certificate(s) of like tenor and date.
IN
WITNESS WHEREOF, Solar Wind Energy Tower, Inc. has caused this Certificate of Designation to be executed this June 2nd,
2015.
Solar
Wind Energy Tower, Inc.
By: /s/ Ronald W. Pickett
Ronald W, Pickett, CEO
Exhibit 10.1
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT
(the “Agreement”) is dated this [_] day of June, 2015, by and among Solar Wind Energy Tower, Inc., a Nevada corporation
(the “Company”), and ________________ (the “Holder”).
WHEREAS, the Holder
beneficially owns and holds certain [ ]% Convertible Promissory Notes in the principal amount of $[_______], dated [_______] (the
“Notes”), plus the accrued but unpaid interest thereon and certain Warrants to purchase [____] shares of common stock
of the Company (the “Warrants”); and
WHEREAS, the Holder
desires to exchange the Notes and Warrants for newly issued shares of the class of the Company’s Convertible Preferred Stock,
par value $0.0001 per share, designated as Series A Preferred Stock of the Company as set forth and memorialized on Exhibit
A hereto (the “Exchange Securities”), and the Company desires to issue the Exchange Securities in exchange for
the Notes and Warrants, all on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in
consideration of the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Company and the Holder hereby agree as follows:
Section 1. Exchange.
Subject to and upon the terms and conditions set forth in this Agreement, the Holder agrees to surrender to the Company the Notes
and Warrants and, in exchange therefore, the Company shall issue to the Holder the Exchange Securities (the “Exchange”).
The Holder acknowledges and agrees that, the number of shares of Exchange Securities to be issued to the Holder will be determined
by dividing (i) $[___________], plus all accrued but unpaid interest on the Notes to the date hereof in the amount of $[_________],
by (ii) $1.00. No fractional shares of the Exchange Securities shall be issued and shall be round up to the next share. Therefore,
a total of [____________] Exchange Securities shall be issued to the Holder under this Agreement. The Warrants shall be cancelled
and deemed void.
1.1 Closing.
On the Closing Date (as defined below), the Company will issue and deliver (or cause to be issued and delivered) the Exchange Securities
to the Holder, or in the name of a custodian or nominee of the Holder, or as otherwise requested by the Holder in writing, and
the Holder will surrender to the Company the Notes and Warrants. The closing of the Exchange shall occur by June 30, 2015, or as
soon thereafter as the parties may mutually agree in writing (the “Closing Date”), subject to the provisions of Section
4 and Section 5 herein.
Section 2. Representations
and Warranties of the Company. The Company represents and warrants to the Holder that:
2.1 Organization
and Qualification. The Company and each of the subsidiaries of the Company (the “Subsidiaries”) is an entity duly
incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation
or organization, with the requisite power and authority to own and use its properties and assets and to carry on its business as
currently conducted. Neither the Company, nor any Subsidiary is in violation or default of any of the provisions of its respective
certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries
is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in
which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure
to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material
adverse effect on the legality, validity or enforceability of this Agreement or any documents executed in connection herewith (the
“Transaction Documents”), (ii) a material adverse effect on the results of operations, assets, business, prospects
or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect
on the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document
(any of (i), (ii) or (iii), a “Material Adverse Effect”) and no proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
2.2 Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder.
The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by
it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company
and no further action is required by the Company, the Board of Directors or the Company’s stockholders in connection herewith
or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which
it is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the
terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance
with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification
and contribution provisions may be limited by applicable law.
2.3 Issuance
of Exchange Securities. The issuance of the Exchange Securities is duly authorized and, upon issuance in accordance with the
terms hereof, the Exchange Securities shall be validly issued, fully paid and non-assessable shares of the common stock of the
Company. Assuming the truth and accuracy of the representations and warranties of the Holder contained in Section 3 of this Agreement,
the issuance by the Company of the Exchange Securities is exempt from registration under the Securities Act.
2.4 No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to
which it is a party, the issuance of the Exchange Securities and the consummation by it of the transactions contemplated hereby
and thereby do not and will not: (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate
or articles of incorporation, bylaws or other organizational or charter documents, (ii) conflict with, or constitute a default
(or an event that with notice or lapse of time or both would become a default) under, result in the creation of any options, contracts,
agreements, liens, security interests, or other encumbrances (“Liens”) upon any of the properties or assets of the
Company or any Subsidiary, or give to others any rights of termination, amendment, acceleration or cancellation (with or without
notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary
debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of
the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation
of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to
which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property
or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could
not have or reasonably be expected to result in a Material Adverse Effect.
2.5 Acknowledgment
Regarding the Exchange. The Company acknowledges and agrees that the Holder is acting solely in the capacity of an arm’s
length third party with respect to this Agreement and the transactions contemplated hereby. The Company further acknowledges the
Holder is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement
and the transactions contemplated hereby, and any advice given by the Holder or any of their representatives or agents in connection
with this Agreement is merely incidental to the Exchange.
2.6 No
Commission; No Other Consideration. The Company has not paid or given, and has not agreed to pay or give, directly or indirectly,
any commission or other remuneration for soliciting the Exchange. The Exchange Securities are being issued exclusively for the
exchange of the Promissory Notes and no other consideration has or will be paid for the Exchange Securities.
2.7 SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents
required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d)
of the Exchange Act, for the two years preceding the date hereof (or such shorter period as the Company was required by law or
regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference
therein, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension
of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their
respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange
Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply
in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto
as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally
accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be
otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain
all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated
Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject,
in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
2.8 Subsidiaries. All
of the direct and indirect subsidiaries of the Company are set forth in the SEC Reports. The Company owns, directly
or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the
issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free
of preemptive and similar rights to subscribe for or purchase securities. If the Company has no subsidiaries, all other
references to the Subsidiaries or any of them in the Transaction Documents shall be disregarded.
2.9 Filings,
Consents and Approvals. Other than as set forth on Schedule 3.1(e), the Company is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state,
local or other governmental authority or other Person in connection with the execution, delivery and performance by the Company
of the Transaction Documents, other than: (i) the notice and/or application(s) to each applicable Trading Market for the issuance
and the listing of the Exchange Securities for trading thereon in the time and manner required thereby, and (ii) the filing of
Form D with the Commission and such filings as are required to be made under applicable state securities laws (collectively, the
“Required Approvals”).
2.10 Capitalization. The
capitalization of the Company is as set forth in the SEC Reports. No Person has any right of first refusal,
preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the
Transaction Documents. There are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for,
or giving any Person any right to subscribe for or acquire any shares of Common Stock, or contracts, commitments,
understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of
Common Stock or Common Stock Equivalents. The issuance of the Exchange Securities will not obligate the Company to issue
shares of Common Stock or other securities to any Person (other than the Purchasers) and will not result in a right of any
holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. 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 of the
Exchange Securities. There are no stockholder agreements or other similar agreements with respect to the
Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of
the Company’s stockholders.
2.11 Compliance. Neither
the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived
that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company
or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or
credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether
or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator
or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental
authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection,
occupational health and safety, product quality and safety and employment and labor matters, except in each case as could not have
or reasonably be expected to result in a Material Adverse Effect.
Section 3. Representations
and Warranties of the Holder. The Holder represents and warrants to the Company that:
3.1 Ownership
of the Promissory Notes. The Holder is the legal and beneficial owner of the Notes and Warrants. The Holder paid for the Notes
and Warrants, and has continuously held the Notes and Warrants since its issuance or purchase. The Holder, individually or through
an affiliate, owns the Notes and Warrants outright and free and clear of any options, contracts, agreements, liens, security interests,
or other encumbrances.
3.2 No
Public Sale or Distribution. The Holder is acquiring the Exchange Securities in the ordinary course of business for its own
account and not with a view toward, or for resale in connection with, the public sale or distribution thereof; provided, however,
that by making the representations herein, the Holder does not agree to hold any of the Exchange Securities for any minimum or
other specific term and reserves the right to dispose of the Exchange Securities at any time in accordance with an exemption from
the registration requirements of the Securities Act and applicable state securities laws. The Holder does not presently have any
agreement or understanding, directly or indirectly, with any person to distribute, or transfer any interest or grant participation
rights in, the Promissory Notes or the Exchange Securities.
3.3 Accredited
Investor and Affiliate Status. The Holder is an “accredited investor” as that term is defined in Rule 501 of Regulation
D under the Securities Act.
3.4 Reliance
on Exemptions. The Holder understands that the Exchange is being made in reliance on specific exemptions from the registration
requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy
of, and the Holder’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of
the Holder set forth herein in order to determine the availability of such exemptions and the eligibility of the Holder to complete
the Exchange and to acquire the Exchange Securities.
3.5 Information.
The Holder has been furnished with all materials relating to the business, finances and operations of the Company and materials
relating to the Exchange which have been requested by the Holder. The Holder has been afforded the opportunity to ask questions
of the Company. Neither such inquiries nor any other due diligence investigations conducted by the Holder or its representatives
shall modify, amend or affect the Holder’s right to rely on the Company’s representations and warranties contained
herein. The Holder acknowledges that all of the documents filed by the Company with the SEC under Sections 13(a), 14(a) or 15(d)
of the Exchange Act that have been posted on the SEC’s EDGAR site are available to the Holder, and the Holder has not relied
on any statement of the Company not contained in such documents in connection with the Holder’s decision to enter into this
Agreement and the Exchange.
3.6 Risk.
The Holder understands that its investment in the Exchange Securities involves a high degree of risk. The Holder is able to bear
the risk of an investment in the Exchange Securities including, without limitation, the risk of total loss of its investment. The
Holder has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision
with respect to the Exchange. There is no assurance that the Exchange Securities or any securities into which the Exchange Securities
may convert will continue to be quoted, traded or listed for trading or quotation on the OTCBB or on any other organized market
or quotation system.
3.7 No
Governmental Review. The Holder understands that no United States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement in connection with the Exchange or the fairness or suitability of
the investment in the Exchange Securities nor have such authorities passed upon or endorsed the merits of the Exchange Notes.
3.8 Organization;
Authorization. The Holder is duly organized, validly existing and in good standing under the laws of its state of formation
and has the requisite organizational power and authority to enter into and perform its obligations under this Agreement.
3.9 Validity;
Enforcement. This Agreement has been duly and validly authorized, executed and delivered on behalf of the Holder and shall
constitute the legal, valid and binding obligations of the Holder enforceable against the Holder in accordance with its terms.
The execution, delivery and performance of this Agreement by the Holder and the consummation by the Holder of the transactions
contemplated hereby (including, without limitation, the irrevocable surrender of the Notes and Warrants) will not result in a violation
of the organizational documents of the Holder.
3.10 Prior
Investment Experience. The Holder acknowledges that it has prior investment experience, including investment in securities
of the type being exchange, including the Promissory Notes or the Exchange Securities, and has read all of the documents furnished
or made available by the Company to it and is able to evaluate the merits and risks of such an investment on its behalf, and that
it recognizes the highly speculative nature of this investment.
3.11 Tax
Consequences. The Holder acknowledges that the Company has made no representation regarding the potential or actual tax consequences
for the Holder which will result from entering into the Agreement and from consummation of the Exchange. The Holder acknowledges
that it bears complete responsibility for obtaining adequate tax advice regarding the Agreement and the Exchange.
Section 4. Conditions
Precedent to Obligations of the Company. The obligation of the Company to consummate the transactions contemplated by this
Agreement is subject to the satisfaction of each of the following conditions, provided that these conditions are for the Company’s
sole benefit and may be waived by the Company at any time in its sole discretion by providing the Holder with prior written notice
thereof:
4.1 the Holder
shall have delivered to the Company the Notes and the Warrants;
4.2 no order
of any court, arbitrator, or governmental or regulatory authority shall be in effect which purports to enjoin or restrain any of
the transactions contemplated by this Agreement; and
4.3 the accuracy
in all material respects when made and on the applicable Closing Date of the representations and warranties of the Holder contained
herein (unless as of a specific date therein).
Section 5. Conditions
Precedent to Obligations of the Holder. The obligation of the Holder to consummate the transactions contemplated by this Agreement
is subject to the satisfaction of each of the following conditions, provided that these conditions are for the Holder’s sole
benefit and may be waived by the applicable Holder at any time in its sole discretion by providing the Company with prior written
notice thereof:
5.1 no order
of any court, arbitrator, or governmental or regulatory authority shall be in effect which purports to enjoin or restrain any of
the transactions contemplated by this Agreement;
5.2 the accuracy
in all material respects when made and on the applicable Closing Date of the representations and warranties of the Company contained
herein (unless as of a specific date therein); and
5.3 all obligations,
covenants and agreements of the Company required to be performed at or prior to the applicable Closing Date shall have been performed.
Section 6. Governing
Law; Jurisdiction; Waiver of Jury Trial. This Agreement shall be construed under the laws of the state of New York, without
regard to principles of conflicts of law or choice of law that would permit or require the application of the laws of another jurisdiction.
The Company and the Holder each hereby agrees that all actions or proceedings arising directly or indirectly from or in connection
with this Agreement shall be litigated only in the Supreme Court of the State of New York or the United States District Court for
the Southern District of New York located in New York County, New York. The Company and the Holder each consents to the exclusive
jurisdiction and venue of the foregoing courts and consents that any process or notice of motion or other application to either
of said courts or a judge thereof may be served inside or outside the State of New York or the Southern District of New York by
generally recognized overnight courier or certified or registered mail, return receipt requested, directed to such party at its
or his address set forth below (and service so made shall be deemed “personal service”) or by personal service or in
such other manner as may be permissible under the rules of said courts. THE COMPANY AND THE HOLDER EACH HEREBY WAIVES ANY RIGHT
TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION PURSUANT TO THIS AGREEMENT.
Section 7. 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; provided that a facsimile
signature shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if
the signature were an original, not a facsimile signature.
Section 8. Headings.
The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this
Agreement.
Section 9. Severability.
If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability
of any provision of this Agreement in any other jurisdiction.
Section 10. Entire
Agreement; Amendments. This Agreement supersedes all other prior oral or written agreements between the Holder, the Company,
their affiliates and persons acting on their behalf with respect to the matters discussed herein, and this Agreement and the instruments
referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except
as specifically set forth herein or therein, neither the Company nor either Holder makes any representation, warranty, covenant
or undertaking with respect to such matters. No provision of this Agreement may be amended other than by an instrument in writing
signed by the Company and the Holder. No provision hereof may be waived other than by an instrument in writing signed by the party
against whom enforcement is sought.
Section 11. Notices.
Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must
be in writing and will be deemed to have been delivered: (a) upon receipt, when delivered personally; (b) upon receipt, when sent
by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending
party); or (c) one calendar day (excluding Saturdays, Sundays, and national banking holidays) after deposit with an overnight courier
service, in each case properly addressed to the party to receive the same.
The addresses and facsimile numbers for
such communications shall be:
If to the Company:
Solar Wind Energy Tower, Inc.
1997 Annapolis Exchange Parkway
Annapolis, MD 21401
Attn: Ronald W. Pickett, CEO
If to the Holders:
[Name]
[Address]
or to such other address and/or facsimile
number and/or to the attention of such other person as the recipient party has specified by written notice given to each other
party five (5) days prior to the effectiveness of such change.
Section 12. Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and
assigns, including any purchasers of the Exchange Securities. The Holder may assign some or all of its rights hereunder without
the consent of the Company, in which event such assignee shall be deemed to be the Holder hereunder with respect to such assigned
rights.
Section 13. No Third
Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
Section 14. Survival
of Representations. The representations and warranties of the Company and the Holder contained in Sections 2 and 3, respectively,
will survive the closing of the transactions contemplated by this Agreement.
Section 15. Further
Assurances. Each party 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 any other party may reasonably request
in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have executed
this Exchange Agreement as of the date first written above.
Solar Wind Energy Tower,
Inc.
By: _____________________________
Name:
Title:
Holder:
By: ___________________________
Name:
Exhibit
A