Exhibit 10.1
WAIVER AND AGREEMENT
This
Amendment Agreement (the “ Agreement ”), dated
as of September 17, 2009, is by and among ICP Solar
Technologies, Inc. , a Nevada corporation (the “
Company ”) and the investors signatory hereto (each, a
“ Buyer ” and collectively, the “
Buyers ”).
WHEREAS , on or about June 13, 2008, the Company and the
Buyers entered into a Securities Purchase Agreement (the
“Securities Purchase Agreement” );
WHEREAS, pursuant to the SPA each Buyer purchased the
aggregate principal amount of the Company’s 11% Senior
Secured Convertible Debenture Due June 13, 2010 (the “
Debentures ”) and associated “A” Warrants,
“B” Warrants and “C” Warrants (collectively
the “ Warrants ”) as set forth in the Schedule
of Buyers to the SPA.
WHEREAS , on or about December 31, 2008, the Company and
the Buyers entered into an Amendment Agreement (the “December
31, 2008 Amendment”) pursuant to which, among other things,
the Company issued to each of the Buyers an Amended and Restated
11% Senior Secured Convertible Debenture Due June 13, 2010 (the
“Amended and Restated Debentures ”);
WHEREAS, on or about May 31, 2009, the Company and the
Buyers entered into a letter agreement (the “May 31, 2009
Agreement” ); and
WHEREAS, the parties hereto wish to waive
certain terms, and amend certain terms, of the Transaction
Documents, as defined in the SPA.
NOW, THEREFORE, IN CONSIDERATION
of the mutual covenants contained in
this Agreement, and for good and valuable consideration the receipt
and adequacy of which are hereby acknowledged, the Buyers and the
Company agree as follows:
(1)
Deferral or Waiver of Certain
Covenants . Each of the
Buyers hereby agree not to issue a notice of default to the Company
for violating the portion of the Operating Covenant of Section
10(s) of the Amended and Restated Debentures requiring that
“it shall be an event of Default if the Company’s
revenues for the quarter ending July 31, 2009 are less than
$2,000,000 or the Company’s EBITDA for the fiscal quarter
ending July 31, 2009 is less than negative
$125,000.”
Furthermore, Section 10(t) of the Debentures
provides that is shall be an event of default if the
Company’s accounts payable balance shall have exceeded
$1,750,000 at any time from the date of issuance of the Debentures
to the Maturity Date. Each of the Buyers hereby agrees not to issue
a notice of default to the Company for violations of Section 10(t)
of the Debenture which are based upon the Company’s accounts
payable balance having exceeded $1,750,000 for the period ended
July 31, 2009 to date.
1
In addition, the Buyers agree not to issue a
notice of default to the Company for non payment of the Monthly
Redemption Amount (as defined in the Debentures) for the Redemption
Dates (as defined in the Debentures) otherwise due on June 1, July
1, August 1, and September 1 2009 (the “Redemption
Payments”), provided that the principal amount represented by
the Redemption Payments shall remain part of the outstanding
principal amount of the Debentures and shall be due upon maturity
of the Debenture. The Buyers agree to waive their rights to any
Mandatory Redemption (as defined in the Debentures) for the
Company’s failure to pay the Redemption Payments otherwise
due on due on June 1, July 1, August 1, and September 1 2009 prior
to the maturity date of the Debenture and shall not consider this
event a Payment Failure (as defined in the Debentures), provided
that the Buyers do not hereby waive the right to issue notices of
default for the Company’s failure to make timely payments of
any other payments that are due or become due under the
Debentures.
(2)
Adjustments to Debentures and
Warrants . In
consideration for the terms hereof, the Parties agree that the
Conversion Price of the Debentures shall be adjusted downward to
$0.10 per share, effective September 17, 2009 (the
“Debenture Conversion Price Adjustment” ). The
Company also agrees and acknowledges that that the Exercise Price
of the Warrants of each of the Buyers were each adjusted downward
to $0.14 and the number of each such Warrant was increased pursuant
to the May 31, 2009 Agreement. The Company and the Buyers agree
that the Company shall not be required to adjust the exercise price
of the Warrants downward to $0.10 pursuant to Section 5(e) of the
Warrants by reason of the Debenture Conversion Price Adjustment and
the Buyers hereby waive any right to have the Exercise Price of the
Warrants adjusted to $0.10 by virtue of the Debenture Conversion
Price Adjustment, provided that the Buyers expressly reserve and do
not waive the rights to any other past, present or future
adjustments of the Warrant Exercise Price to which it would be
entitled under the terms of the Warrants that would be triggered by
any event other than the Debenture Conversion Price Adjustment to
$0.10 under this Agreement. Prior to and as a condition to the
effectiveness of this Agreement, the Company shall deliver to the
Holders fully executed amended and restated Debentures reflecting
the adjusted conversion prices referred to above and shall deliver
to the Holders fully executed amended and restated Warrants
reflecting the reduced Exercise Prices and the increased number of
shares reflected in the May 31, 2009 Agreement.
(3)
Lockup . Prior to and as a condition to the
effectiveness of this Agreement, the Company agrees to deliver to
the Holders Lockup Agreements, in substantially the form of Exhibit
A hereto, (i) whereby Sass Peress, President, CEO and Chairman of
the Company agrees not to sell any common stock of the Company
anytime from the date hereof and for so long as any of the
Debentures or Warrants remain outstanding and (ii) whereby Joel
Cohen, Board Member, agrees not to sell any common stock of the
Company anytime during the two (2) month period following the date
hereof (the “Lockup Period” ).
(4)
Equity Dilution Adjustment to Number of
Warrants . In
consideration of the terms hereof, from the date hereof through and
so long as and Debentures or Warrants remain outstanding, anytime
that the Company issues equity securities or securities that are
convertible or exchangeable into equity securities (as applicable,
a “Triggering Issuance” ), including but not
limited to securities issued in an Exempt Issuance (as defined
below) and immediately following any such offering, the sum of all
of the Holders’ Augmented Fully Diluted Amounts (as defined
below) is less than 70 % of Company Fully Diluted
Amount (as defined below), the Company shall issue to each Holder a
number of warrants (the “Makeup Warrants” )
equal to (a) the Holder’s Pro Rata Share (as defined below)
of the Minimum Fully Diluted Amount, where the “Minimum
Fully Diluted Amount” shall mean 70 % of
the Company Fully Diluted Amount (as defined below) immediately
following the Triggering Issuance, less (b) the Holder’s
Augmented Fully Diluted Amount immediately prior to the Triggering
Issuance.
2
For purposes hereof,
“Company Fully Diluted
Amount” shall mean
the fully diluted number of shares of common stock of the Company
at the time in question, including b
