AMENDED AND RESTATED ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Agreement") is made as of September 19, 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, 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 Boulder Hill, Inc.
(b) On each Closing Date, the Company shall pay the
Escrow Agent the sum of $500 for each Put Notice up
to $50,000 and $1,000 for each Put Notice in excess
of $50,000; 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 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
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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.
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
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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 not be assignable.
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 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.
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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 19th day of September, 2001.
GRANDVIEW COURT, LLC
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By: Navigator Management, Ltd.
By: /s/ Xxxxxx XxXxxxxx
Its: Assistant Secretary
By: /s/ Xxxxx Xxxxxx
Authorized Signatory
ACCESS POWER, INC.
------------------------------------
By: /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Its: Chief Executive Officer
XXXXXX X. XXXXXXX, ESCROW AGENT
By: /s/ Xxxxxx X. XxXxxxx
Xxxxxx X. XxXxxxx, Esq.
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