|
ESCROW
AGREEMENT
This Agreement is dated as of the
10th day of June, 2008 among ICP Solar Technologies, Inc.a
Nevada corporation (the "Company" ), the Buyers
identified on the Schedule of Buyers attached as Schedule A
hereto (each a “Buyer” and collectively
“Buyers” ), and the law firm of Burns
& Levinson LLP (the "Escrow Agent"
):
W I T N E S S E
T H :
WHEREAS, the Company and Buyers have
entered into a Securities Purchase Agreement calling for the sale
by the Company to the Buyer of the Company’s 11% Senior
Secured Convertible Debentures, Due June 13, 2010, and Warrants for
an aggregate purchase price of up to $3,000,000 in the respective
amounts set forth on Schedule A hereto; and
WHEREAS, the parties hereto require
the Company to deliver certificates representing the Debentures
being purchased by each Buyer (the “Debenture
Certificates” ), and Warrants (as defined below) against
payment therefor, with such Debenture Certificates, Warrants and
the Escrowed Funds to be delivered to the Escrow Agent to be held
in escrow and released by the Escrow Agent in accordance with the
terms and conditions of this Agreement; and
WHEREAS, the Escrow Agent is willing
to serve as escrow agent pursuant to the terms and conditions of
this Agreement;
NOW THEREFORE, the parties agree as
follows:
ARTICLE I
INTERPRETATION
1.1
Definitions
. Capitalized terms used and not otherwise
defined herein that are defined in the Securities Purchase
Agreement shall have the meanings given to such terms in the
Securities Purchase Agreement. Whenever used in this
Agreement, the following terms shall have the following respective
meanings:
“Agreement” means this Agreement and all amendments made hereto and thereto
by written agreement between the parties;
“Buyer Documents”
shall mean the Securities Purchase Agreement, and
the Security Agreement, each duly executed by the Buyer.
“Company
Documents” shall mean: (1) the
Securities Purchase Agreement, Security Agreement, Subsidiary
Guarantee, Debentures, Intellectual Property Security Agreement and
Warrants, each duly executed by the Company, (2) the
Officer’s Certificate and Closing Certificate, each signed by
a duly authorized officer of the Company, (3) the Security
Agreement and Subsidiary Guarantee, each duly executed by each of
the Company’s Subsidiaries, (4) the Legal Opinion, signed by
the Company’s outside law firm and (5) the Voting Agreement
Letter (as defined in the Securities Purchase Agreement), signed by
Sass Peress.
1
"Escrowed Funds"
means any funds sent into the Escrow Accout by a
Buyer toward the purchase of Debentures and Warrants;
"Securities Purchase
Agreement" means the Securities Purchase
Agreement (and the exhibits thereto) entered into or to be entered
into by the Company and Buyers in reference to the sale and
purchase of the Debentures and Warrants.
1.2
Entire Agreement
. This Agreement along with the Company
Documents and the Buyer Documents constitute the entire agreement
between the parties hereto pertaining to the Company Documents and
Buyer Documents and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or
written, of the parties. There are no warranties,
representations and other agreements made by the parties in
connection with the subject matter hereof except as specifically
set forth in this Agreement, the Company Documents and the Buyer
Documents.
1.3
Extended Meanings
. In this Agreement words importing the
singular number include the plural and vice versa; words importing
the masculine gender include the feminine and neuter genders.
The word "person" includes an individual, body
corporate, partnership, trustee or trust or unincorporated
association, executor, administrator or legal
representative.
1.4
Waivers and Amendments
. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument
signed by all parties, or, in the case of a waiver, by the party
waiving compliance. Except as expressly stated herein, no
delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall
any waiver on the part of any party of any right, power or
privilege hereunder preclude any other or future exercise of any
other right, power or privilege hereunder.
1.5
Headings . The division of this Agreement into articles, sections,
subsections and paragraphs and the insertion of headings are for
convenience of reference only and shall not affect the construction
or interpretation of this Agreement.
1.6
Law Governing this
Agreement . This Agreement shall be
governed by and construed in accordance with the laws of the State
of New York without regard to conflicts of laws principles that
would result in the application of the substantive laws of another
jurisdiction. Any action brought by either party against the
other concerning the transactions contemplated by this Agreement
shall be brought only in the state courts of New York or in the
federal courts located in the state of New York. Both parties
and the individuals executing this Agreement and other agreements
on behalf of the Company agree to submit to the jurisdiction of
such courts and waive trial by jury. The prevailing party
(which shall be the party which receives an award most closely
resembling the remedy or action sought) shall be entitled to
recover from the other party its reasonable attorney's fees and
costs. In the event that any provision of this Agreement or
any other agreement delivered in connection herewith is invalid or
unenforceable under any applicable statute or rule of law, then
such provision shall be deemed inoperative to the extent that it
may conflict therewith and shall be deemed modified to conform with
such statute or rule of law. Any such provision which may
prove invalid or unenforceable under any law shall not affect the
validity or enforceability of any other provision of any
agreement.
2
1.7
Specific Enforcement, Consent to
Jurisdiction . The Company and
Buyer acknowledge and agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be
entitled to an injuction or injunctions to prevent or cure breaches
of the provisions of this Agreement and to enforce specifically the
terms and provisions hereof or thereof, this being in addition to
any other remedy to which any of them may be entitled by law or
equity. Subject to Section 1.6 hereof, each of the Company
and Buyer hereby waives, and agrees not to assert in any such suit,
action or proceeding, any claim that it is not personally subject
to the jurisdiction of such court, that the suit, action or
proceeding is brought in an inconvenient forum or that the venue of
the suit, action or proceeding is improper. Nothing in this
Section shall affect or limit any right to serve process in any
other manner permitted by law.
ARTICLE II
DELIVERIES TO THE ESCROW
AGENT
2.1
Company Deliveries
. On or before the Closing Date, the Company
shall deliver the Company Documents to the Escrow Agent. Upon
receipt of the Company documents, the Escrow Agent shall confirm
such receipt to the Buyer.
2.2
Buyer Deliveries.
On or before the Closing Date, each Buyer
shall deliver to the Escrow Agent such Buyer’s Purchase Price
and Buyer Documents. The Escrowed Funds will be delivered
pursuant to the following wire transfer instructions (the
“Escrow Account” ):
Bank of America
Boston, MA
ABA#011 000 138
Account Name: Burns & Levinson LLP
IOLTA
Account #9429273539
F/B/O: Client #41648.0
2.3
Intention to Create Escrow Over
Company Documents and Buyer Documents .
The Buyer and Company intend that the Company Documents and
Buyer Documents shall be held in escrow by the Escrow Agent
pursuant to this Agreement for their benefit as set forth
herein.
2.4
Escrow Agent to Deliver Company
Documents and Buyer Documents . The
Escrow Agent shall hold and release the Company Documents and Buyer
Documents only in accordance with the terms and conditions of this
Agreement.
3
ARTICLE III
RELEASE OF COMPANY DOCUMENTS AND
BUYER DOCUMENTS
3.1
Release of Escrow Upon
Closing . Subject to the provisions
of Section 4.2, following the receipt of (i) all of the Company
Documents, (ii) all of the Buyer Documents, and (iii) at least the
Minimum Offering Amount (as defined in the Securities Purchase
Agreement) into the Escrow Account, the Escrow Agent shall release
the Company Documents and Buyer Documents as follows:
(a)
On each Closing Date, upon receipt
by the Escrow Agent of joint written instructions ( "Joint
Instructions" ) signed by the Company and BridgePointe Master
Fund Ltd. (the “Lead Buyer” ), it will
simultaneously release the Company Documents to the Buyer, and
shall release the Buyer Documents to the Company, and shall release
the Escrow Funds as set forth in Section 3.2 below.
(b)
All funds to be delivered to the
Company shall be delivered pursuant to the wire instructions to be
provided in writing by the Company to the Escrow Agent.
(c)
Notwithstanding the above, if the
offering of the Debentures has not closed by June 15, 2008 ,
the Escrow Agent shall return the Buyer Documents and the Escrowed
Funds to the Buyers, and shall return the Company documents to the
Company.
(d)
Notwithstanding the above, upon
receipt by the Escrow Agent of a final and non-appealable judgment,
order, decree or award of a court of competent jurisdiction (a
"Court Order" ), the Escrow Agent shall deliver the Company
Documents and Buyer Documents in accordance with the Court Order.
Any Court Order shall be accompanied by an opinion of counsel
for the party presenting the Court Order to the Escrow Agent (which
opinion shall be satisfactory to the Escrow Agent) to the effect
that the court issuing the Court Order has competent jurisdiction
and that the Court Order is final and non-appealable.
3.2
Release of Escrowed
Funds . The Escrow Agent shall
immediately return a Buyer’s Escrowed Funds to the sending
Buyer, upon a written request from BridgePointe Master Fund Ltd.,
if there has not been a Closing with respect to that Buyer within
two (2) business days of the date that the Buyer’s funds were
first received into the Escrow Account. No Closing shall occur
until an aggregate amount of funds equal to at least the Minimum
Amount have been received into the Escrow Account from the Buyers.
The Escrow Agent shall not release any Buyer’s Purchase Price
to t
| 
