AMENDED AND RESTATED
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Agreement") is made as of June 12, 2001 by and
between Access Power, Inc. (the "Company"), Grandview Court, LLC (the
"Investor") and Xxxxxx X. XxXxxxx, Esq., with an office at 00 Xxxxxx Xxxxxx,
Xxxxx 000, Xxx Xxxxxx, XX 00000 (the "Escrow Agent").
W I T N E S S E T H:
WHEREAS, Company will be selling shares of its common stock (the
"Shares"), to Investor upon terms as set forth in the Investment Agreement and
related documents (the "Transaction Documents") entered into by the Company and
Investor; and
WHEREAS, Company and Investor have requested that the Escrow Agent hold
the Shares and funds ("Funds") being used to purchase the Shares in escrow
pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the covenants and mutual promises
contained herein and other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged and intending to be legally
bound hereby, the parties agree as follows:
ARTICLE 1
TERMS OF THE ESCROW
1.1 The parties hereby agree to have Xxxxxx X. XxXxxxx, Esq. act
as Escrow Agent whereby the Escrow Agent shall receive the Shares and Funds in
escrow and distribute the same as set forth in this Agreement. Any capitalized
terms not defined herein shall have the meaning ascribed to them in the
Transaction Documents.
1.2 The Company agrees that it will not be entitled to deliver a
Put Notice to Investor and Investor will not be required to honor a Put Notice,
until after the Effective Date and subject to the terms of the Transaction
Documents. The Company represents that its transfer agent has agreed to accept a
representation letter (See copy of form of representation letter attached to the
Investment Agreement as Exhibit G) from the Investor's broker after the
Effective Date and after the sale of Shares pursuant to a Put Notice, which
representation letter shall state that the Shares were sold in compliance with
the prospectus delivery requirements of the Registration Statement. The Company
represents that on or before the receipt by the transfer agent of the
representation letter, it will instruct its counsel to issue an opinion letter
to the transfer agent for the issuance of the Shares being sold and the Company
will instruct its transfer agent to issue the appropriate number of Shares in
the name of the Investor, or in the broker's street name if so requested by
Investor, so that the Shares being purchased from the Company after a Put Notice
will bear no legend and not be subject to stop transfer instructions.
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1.3 Prior to each Closing Date the Investor shall wire to the
Escrow Agent the dollar amount necessary to purchase the Shares on the Closing
Date as required by the Transaction Documents (the "Purchase Amount").
1.4 On each Closing Date the Escrow Agent shall forward the Shares
being purchased to the Investor, per Investor's instructions, and wire the
amount necessary to purchase the Shares, pursuant to the Transaction Documents,
to the Company. Subject to the terms set forth in the Transaction Documents, the
Investor is required to purchase the lesser of (a) the Dollar Amount set forth
in the Put Notice and (b) 15% of the total Volume Weighted Average Price during
the applicable Purchase Period. The Escrow Agent shall deduct from the Funds he
receives in escrow from the Investor the following amounts:
(a) 5% of the Purchase Amount on each Closing Date, to be
wired to the Investor per its instructions (or
deducted by the Investor, at its sole option, from
the Purchase Amount being wired to the Escrow Agent)
(b) On each Closing Date Escrow Agent shall deduct from
the Purchase Amount as an escrow fee the sum of $500
for each Put Notice respective to such Closing Date
up to $25,000; $1,000 for each Put Notice respective
to such Closing Date up to $50,000; $1,500 for each
Put Notice respective to such Closing Date up to
$75,000 and $2,000 for each Put Notice respective to
such Closing Date in excess of $75,000; which amount
the Escrow Agent may deduct from the proceeds
received in escrow from the Investor.
1.5 Any excess Shares held by the Escrow Agent after disbursement
of the appropriate number of Shares to the Investor shall be promptly returned
to the Company or its transfer agent, as instructed by the Company.
1.6 This Agreement may be altered or amended only with the written
consent of all of the parties hereto. Should Company attempt to change this
Agreement in a manner which, in the Escrow Agent's discretion, shall be
undesirable, the Escrow Agent may resign as Escrow Agent by notifying Company
and Investor in writing. In the case of the Escrow Agent's resignation or
removal pursuant to the foregoing, his only duty, until receipt of notice from
Company and Investor that a successor escrow agent has been appointed, shall be
to hold and preserve the Shares and Funds that are in his possession. Upon
receipt by the Escrow Agent of said notice from Company and Investor of the
appointment of a successor escrow agent, the name of a successor escrow account
and a direction to transfer the Shares and Funds, the Escrow Agent shall
promptly thereafter transfer all of the Shares and Funds that he is still
holding in escrow, to said successor escrow agent. Immediately after said
transfer of the Shares and Funds, the Escrow Agent shall furnish Company and
Investor with proof of such transfer. The Escrow Agent is authorized to
disregard any notices, requests, instructions or demands received by it from
Company or Investor after notice of resignation or removal has been given.
1.7 The Escrow Agent shall be reimbursed by Company and Investor
for any reasonable expenses incurred in the event there is a conflict between
the parties and the
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Escrow Agent shall deem it necessary to retain one counsel, upon whose advice
the Escrow Agent may rely. The Escrow Agent shall not be liable for any action
taken or omitted by him in good faith and in no event shall the Escrow Agent be
liable or responsible except for the Escrow Agent's own negligence. The Escrow
Agent has made no representations or warranties to the Company in connection
with this transaction. The Escrow Agent has no liability hereunder to either
party other than to hold the Shares and Funds received by the Investor and to
deliver them under the terms hereof. Each party hereto agrees to indemnify and
hold harmless the Escrow Agent from and with respect to any suits, claims,
actions or liabilities arising in any way out of this transaction including the
obligation to defend any legal action brought which in any way arises out of or
is related to this Agreement or the investment being made by Investor. The
Company acknowledges and represents that it is not being represented in a legal
capacity by Xxxxxx X. XxXxxxx, and has had the opportunity to consult with its
own legal advisors prior to the signing of this Agreement. The Company
acknowledges that the Escrow Agent is not rendering securities advice to the
Company with respect to this proposed transaction. The Escrow Agent has acted as
legal counsel for the Investor and may continue to act as legal counsel for the
Investor, from time to time, notwithstanding its duties as the Escrow Agent
hereunder. The Company consents to the Escrow Agent acting in such capacity as
legal counsel for the Investor and waives any claim that such representation
represents a conflict of interest on the part of the Escrow Agent. The Company
understands that the Investor and Escrow Agent are relying explicitly on the
foregoing provisions contained in this Section 1.7 in entering into this
Agreement.
1.8 The Escrow Agent shall be obligated only for the performance
of such duties as are specifically set forth herein and may rely and shall be
protected in relying or refraining from acting on any instrument reasonably
believed by the Escrow Agent to be genuine and to have been signed or presented
by the proper party or parties. The Escrow Agent shall not be personally liable
for any act the Escrow Agent may do or omit to do hereunder as the Escrow Agent
while acting in good faith, and any act done or omitted by the Escrow Agent
pursuant to the advice of the Escrow Agent's attorney-at-law shall be conclusive
evidence of such good faith.
1.9 The Escrow Agent is hereby expressly authorized to disregard
any and all warnings given by any of the parties hereto or by any other person
or corporation, excepting only orders or process of courts of law and is hereby
expressly authorized to comply with and obey orders, judgments or decrees of any
court. In case the Escrow Agent obeys or complies with any such order, judgment
or decree, the Escrow Agent shall not be liable to any of the parties hereto or
to any other person, firm or corporation by reason of such decree being
subsequently reversed, modified, annulled, set aside, vacated or found to have
been entered without jurisdiction.
1.10 The Escrow Agent shall not be liable in any respect on account
of the identity, authorities or rights of the parties executing or delivering or
purporting to execute or deliver the Agreement or any documents or papers
deposited or called for hereunder.
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1.11 If the Escrow Agent reasonably requires other or further
documents in connection with this Agreement, the necessary parties hereto shall
join in furnishing such documents.
1.12 It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the documents
or the Funds held by the Escrow Agent hereunder, the Escrow Agent is authorized
and directed in the Escrow Agent's sole discretion (a) to retain in the Escrow
Agent's possession without liability to anyone all or any part of said documents
or the Funds until such disputes shall have been settled either by mutual
written agreement of the parties concerned or by a final order, decree or
judgment of a court of competent jurisdiction after the time for appeal has
expired and no appeal has been perfected, but the Escrow Agent shall be under no
duty whatsoever to institute or defend any such proceedings or (b) to deliver
the Funds and any other property and documents held by the Escrow Agent
hereunder to a state or federal court having competent subject matter
jurisdiction and located in the State of Connecticut in accordance with the
applicable procedure therefor.
ARTICLE 2
MISCELLANEOUS
2.1 No waiver of any breach of any covenant or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision herein contained. No extension of
time for performance of any obligation or act shall be deemed any extension of
the time for performance of any other obligation or act.
2.2 This Agreement shall be binding upon and shall inure to the
benefit of the permitted successors and assigns of the parties hereto.
2.3 This Agreement is the final expression of, and contains the
entire agreement between, the parties with respect to the subject matter hereof
and supersedes all prior understandings with respect thereto. This Agreement may
not be modified, changed, supplemented or terminated, nor may any obligations
hereunder be waived, except by written instrument signed by the parties to be
charged or by its agent duly authorized in writing or as otherwise expressly
permitted herein.
2.4 Whenever required by the context of this Agreement, the
singular shall include the plural and masculine shall include the feminine. This
Agreement may be executed in two or more counterparts, all of which taken
together shall constitute one instrument. Execution and delivery of this
Agreement by exchange of facsimile copies bearing the facsimile signature of a
party shall constitute a valid and binding execution and delivery of this
Agreement by such party. Such facsimile copies shall constitute enforceable
original documents.
2.5 The parties hereto expressly agree that this Agreement shall
be governed by, interpreted under, and construed and enforced in accordance of
the laws of the State of Connecticut. The parties agree that any dispute arising
under or with respect to or in
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connection with this Agreement, whether during the term of this Agreement or at
any subsequent time, shall be resolved fully and exclusively by binding
arbitration in accordance with the commercial rules then in force of the
American Arbitration Association with the proceedings taking place in Stamford,
Connecticut before a panel of three (3) arbitrators.
2.6 Any notice required or permitted hereunder shall be given in
manner provided in the Section headed "NOTICES" in the Transaction Documents,
the terms of which are incorporated herein by reference.
2.7 By signing this Agreement, the Escrow Agent becomes a party
hereto only for the purpose of this Agreement; the Escrow Agent does not become
a party to the Transaction Documents.
2.8 Each party acknowledges and agrees that this Agreement shall
not be deemed prepared or drafted by any one party. In the event of any dispute
between the party concerning this Agreement, the party agree that any rule of
construction, to the effect that any ambiguity in the language of the Agreement
is to be resolved against the drafting party, shall not apply.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the 12th day of June, 2001.
GRANDVIEW COURT, LLC
By:_________________________________
Its:________________________________
ACCESS POWER, INC.
By: Xxxx X. Xxxxx
Its: Chief Executive Officer
XXXXXX X. XXXXXXX, ESCROW AGENT
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. XxXxxxx, Esq.
