Exhibit 10.73
ESCROW
AGREEMENT
THIS ESCROW AGREEMENT
(this “ Agreement
”) is made and entered into as of March 11, 2005 by
LITHIUM TECHNOLOGY CORPORATION, a Delaware corporation (the
“ Company ”); CORNELL CAPITAL PARTNERS,
LP, a Delaware limited partnership (the “ Investor
”); and DAVID GONZALEZ, ESQ. (the “ Escrow
Agent ”).
BACKGROUND
WHEREAS , the Company and the Investor have entered into
a Standby Equity Distribution Agreement (the “ Standby
Equity Distribution Agreement ”) dated as of the date
hereof, pursuant to which the Investor will purchase the
Company’s Common Stock, par value US $0.01 per share (the
“ Common Stock ”), at a price per share equal to
the Purchase Price, as that term is defined in the Standby Equity
Distribution Agreement, for an aggregate price of up to Fifteen
Million U.S. Dollars ($15,000,000). The Standby Equity Distribution
Agreement provides that on each Advance Date the Investor, as that
term is defined in the Standby Equity Distribution Agreement, shall
deposit the Advance pursuant to the Advance Notice in a segregated
escrow account to be held by Escrow Agent and the Company shall
deposit shares of the Company’s Common Stock, which shall be
purchased by the Investor as set forth in the Standby Equity
Distribution Agreement, with the Escrow Agent, in order to
effectuate a disbursement to the Company of the Advance by the
Escrow Agent and a disbursement to the Investor of the shares of
the Company’s Common Stock by Escrow Agent at a closing to be
held as set forth in the Standby Equity Distribution Agreement (the
“ Closing ”).
WHEREAS , Escrow Agent has agreed to accept, hold, and
disburse the funds and the shares of the Company’s Common
Stock deposited with it in accordance with the terms of this
Agreement.
WHEREAS , in order to establish the escrow of funds and
shares to effect the provisions of the Standby Equity Distribution
Agreement, the parties hereto have entered into this
Agreement.
NOW THEREFORE
, in consideration of the foregoing,
it is hereby agreed as follows:
1. Definitions . The
following terms shall have the following meanings when used
herein:
a. “ Escrow Funds
” shall mean the Advance funds deposited with the Escrow
Agent pursuant to this Agreement.
b. “ Joint Written
Direction ” shall mean a written direction executed by
the Investor and the Company directing Escrow Agent to disburse all
or a portion of the Escrow Funds or to take or refrain from taking
any action pursuant to this Agreement.
c. “ Common Stock Joint
Written Direction ” shall mean a written direction
executed by the Investor and the Company directing Investor’s
Counsel to disburse all or a portion of the shares of the
Company’s Common Stock or to refrain from taking any action
pursuant to this Agreement.
2. Appointment of and Acceptance
by Escrow Agent .
a. The Investor and the Company
hereby appoint Escrow Agent to serve as Escrow Agent hereunder.
Escrow Agent hereby accepts such appointment and, upon receipt by
wire transfer of the Escrow Funds in accordance with Section 3
below, agrees to hold, invest and disburse the Escrow Funds in
accordance with this Agreement.
b. The Investor and the Company
hereby appoint the Escrow Agent to serve as the holder of the
shares of the Company’s Common Stock which shall be purchased
by the Investor. The Escrow Agent hereby accepts such appointment
and, upon receipt via D.W.A.C or the certificates representing of
the shares of the Company’s Common Stock in accordance with
Section 3 below, agrees to hold and disburse the shares of the
Company’s Common Stock in accordance with this
Agreement.
c. The Company hereby acknowledges
that the Escrow Agent is general counsel to the Investor, a partner
of the general partner of the Investor and counsel to the Investor
in connection with the transactions contemplated and referenced
herein and will be acting as the escrow agent for shares of the
Company’s Common Stock as outlined herein. The Company agrees
that in the event of any dispute arising in connection with this
Escrow Agreement or otherwise in connection with any transaction or
agreement contemplated and referenced herein, the Escrow Agent
shall be permitted to continue to represent the Investor and the
Company will not seek to disqualify such counsel.
3. Creation of Escrow
Account/Common Stock Account .
a. On or prior to the date of this
Agreement the Escrow Agent shall establish an escrow account for
the deposit of the Escrow Funds entitled as follows: Lithium
Technology Corporation/Cornell Capital Partners, LP. The Investor
will wire funds to the account of the Escrow Agent as
follows:
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Bank:
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Wachovia, N.A. of New Jersey
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Routing
#:
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031201467
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Account
#:
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2000014931134
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Name on
Account:
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David Gonzalez Attorney Trust
Account
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Name on
Sub-Account:
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Lithium Technology Corporation/Cornell Capital
Partners, LP Escrow account
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b. On or prior to the date of this
Agreement the Escrow Agent shall establish on account for the
D.W.A.C. of the shares of Common Stock. The Company will D.W.A.C.
shares of the Company’s Common Stock to the account of the
Escrow Agent as follows:
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Brokerage
Firm:
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Sloan Securities Corp.
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Clearing
House:
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Fiserv
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Account
#:
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56887298
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DTC
#:
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0632
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Name on
Account:
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David Gonzalez Escrow Account
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4. Deposits into the Escrow
Account. The Investor agrees that it shall promptly deliver all
monies for the payment of the Common Stock to the Escrow Agent for
deposit in the Escrow Account.
5. Disbursements from the Escrow
Account .
a. At such time as Escrow Agent has
collected and deposited instruments of payment in the total amount
of the Advance and has received such Common Stock via D.W.A.C from
the Company which are to be issued to the Investor pursuant to the
Standby Equity Distribution Agreement, the Escrow Agent shall
notify the Company and the Investor. The Escrow Agent will continue
to hold such funds until the Investor and Company execute and
deliver a Joint Written Direction directing the Escrow Agent to
disburse the Escrow Funds pursuant to Joint Written Direction at
which time the Escrow Agent shall wire the Escrow Funds to the
Company. In disbursing such funds, Escrow Agent is authorized to
rely upon such Joint Written Direction from Company and may accept
any signatory from the Company listed on the signature page to this
Agreement and any signature from the Investor that Escrow Agent
already has on file. Simultaneous with delivery of the executed
Joint Written Direction to the Escrow Agent the Investor and
Company shall execute and deliver a Common Stock Joint Written
Direction to the Escrow Agent directing the Escrow Agent to release
via D.W.A.C to the Investor the shares of the Company’s
Common Stock. In releasing such shares of Common Stock the Escrow
Agent is authorized to rely upon such Common Stock Joint Written
Direction from Company and may accept any signatory from the
Company listed on the signature page to this Agreement and any
signature from the Escrow Agent has on file.
In the event the Escrow Agent does
not receive the amount of the Advance from the Investor or the
shares of Common Stock to be purchased by the Investor from the
Company, the Escrow Agent shall notify the Company and the
Investor.
In the event that the Escrow Agent
has not received the Common Stock to be purchased by the Investor
from the Company, in no event will the Escrow Funds be released to
the Company until such shares are received by the Escrow Agreement.
For purposes of this Agreement, the term “Common Stock
certificates” shall mean Common Stock certificates to be
purchased pursuant to the respective Advance Notice pursuant to the
Standby Equity Distribution Agreement.
6. Deposit of Funds . The
Escrow Agent is hereby authorized to deposit the wire transfer
proceeds in the Escrow Account.
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7. Suspension of Performance:
Disbursement Into Court .
a. Escrow Agent . If at any
time, there shall exist any dispute between the Company and the
Investor with respect to holding or disposition of any portion of
the Escrow Funds or the Common Stock or any other obligations of
Escrow Agent hereunder, or if at any time Escrow Agent is unable to
determine, to Escrow Agent’s sole satisfaction, the proper
disposition of any portion of the Escrow Funds or Escrow
Agent’s proper actions with respect to its obligations
hereunder, or if the parties have not within thirty (30) days of
the furnishing by Escrow Agent of a notice of resignation pursuant
to Section 9 hereof, appointed a successor Escrow Agent to act
hereunder, then Escrow Agent may, in its sole discretion, take
either or both of the following actions:
i. Suspend the performance of any of
its obligations (including without limitation any disbursement
obligations) under this Escrow Agreement until such dispute or
uncertainty shall be resolved to the sole satisfaction of Escrow
Agent or until a successor Escrow Agent shall be appointed (as the
case may be); provided however, Escrow Agent shall continue to
invest the Escrow Funds in accordance with Section 8 hereof;
and/or
ii. Petition (by means of an
interpleader action or any other appropriate method) any court of
competent jurisdiction in any venue convenient to Escrow Agent, for
instructions with respect to such dispute or uncertainty, and to
the extent required by law, pay into such court, for holding and
disposition in accordance with the instructions of such court, all
funds held by it in the Escrow Funds, after deduction and payment
to Escrow Agent of all fees and expenses (including court costs and
attorneys’ fees) payable to, incurred by, or expected to be
incurred by Escrow Agent in connection with performance of its
duties and the exercise of its rights hereunder.
iii. Escrow Agent shall have no
liability to the Company, the Investor, or any person with respect
to any such suspension of performance or disbursement into court,
specifically including any liability or claimed liability that may
arise, or be alleged to have arisen, out of or as a result of any
delay in the disbursement of funds held in the Escrow Funds or any
delay in with respect to any other action required or requested of
Escrow Agent.
8. Investment of Escrow Funds
. The Escrow Agent shall deposit the Escrow Funds in a non-interest
bearing money market account.
If Escrow Agent has not received a
Joint Written Direction at any time that an investment decision
must be made, Escrow Agent may retain the Escrow Fund, or such
portion thereof, as to which no Joint Written Direction has been
received, in a non-interest bearing money market
account.
9. Resignation and Removal of
Escrow Agent . Escrow Agent may resign from the performance of
its duties hereunder at any time by giving thirty (30) days’
prior written notice to the parties or may be removed, with or
without cause, by the parties, acting jointly, by furnishing a
Joint Written Direction to Escrow Agent, at any time by the giving
of ten (10) days’ prior written notice to Escrow Agent as
provided herein below. Upon any such notice of resignation or
removal, the representatives of the Investor and the Company
identified in Sections 13a.(iv)
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and 13b.(iv), below, jointly shall appoint a
successor Escrow Agent hereunder, which shall be a commercial bank,
trust company or other financial institution with a combined
capital and surplus in excess of US $10,000,000.00. Upon the
acceptance in writing of any appointment of Escrow Agent hereunder
by a successor Escrow Agent, such successor Escrow Agent shall
thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Escrow Agent, and the
retiring Escrow Agent shall be discharged from its duties and
obligations under this Escrow Agreement, but shall not
be