AMENDMENT AGREEMENT
THIS
AGREEMENT made
as
of the 30th day of November, 2006.
AMONG:
XXXXXXXXXX
XXXX,
of
Route
de
Xxxxx-Xxxxxx 000 XX-0000 Xxxx-xxx-Xxxxxx, Xxxxxxxxxxx
(“Erne”)
AND:
XXXX-XXXXXXXXXX
XXXXXX,
of
Xxxxx
xx
Xxxxx-Xxxxxx 000 XX-0000 Xxxx-xxx-Xxxxxx, Xxxxxxxxxxx
(“Xxxxxx”)
AND:
XXXXXXX
XXX,
of
Xxxxx
xx
Xxxxx-Xxxxxx 000 XX-0000 Xxxx-xxx-Xxxxxx, Xxxxxxxxxxx
(“Rey”)
AND:
SES
SOLAR INC.,
a Nevada
corporation with an executive office at Xxxxx
xx
Xxxxx-Xxxxxx 000 XX-0000 Xxxx-xxx-Xxxxxx, Xxxxxxxxxxx
(“SES”)
AND:
XXXXX
XXXXXX LLP,
of 800
- 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, XX X0X 0X0
(the
“Escrow
Agent”)
WHEREAS:
X. Xxxx,
Xxxxxx and Rey (collectively, the “Shareholders”)
in
addition to SES and the Escrow Agent entered into a Credit Line Escrow Agreement
dated September 1, 2006 (the “Escrow
Agreement”),
whereby the Escrow Agent agreed to accept, hold and deliver 24,143,410 shares
of
common stock of SES (the “Shares”)
in
connection with the closing of the Share Exchange Agreement dated August 31,
2006, among the Shareholders, SES and Société
D’energie Solaire S.A., a Swiss company;
B. Pursuant
to the terms of the Escrow Agreement, the Escrow Agent was required to, among
other things, hold the Shares in escrow and to:
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(i)
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deliver
the Shares into a subsequent escrow in accordance with the terms
of the
Long Term Escrow Agreement dated September 1, 2006, among the
Shareholders, SES and the Escrow Agreement if SES closes a financing
of at
least CHF12,000,000 on or prior to October 31, 2006
(the “Financing”),
or
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(ii)
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deliver
the Shares to SES for immediate cancellation if SES does not close
the
Financing on or prior to October 31,
2006;
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C. The
parties to the Escrow Agreement entered into an Amendment Agreement dated
October 27, 2006, whereby the parties agreed to extend the closing date of
the
Financing from October 31, 2006 to November 30, 2006; and
D. The
parties to the Escrow Agreement, as amended, wish to enter into this Agreement
to amend the terms of the Escrow Agreement, as amended, and extend the date
by
which SES must close the Financing from November 30, 2006 to November 30,
2007.
NOW
THEREFORE THIS AGREEMENT WITNESSES that in consideration of covenants and
agreements set forth herein and of the sum of $10.00 paid by each of the
Shareholders to SES and the Escrow Agent, the receipt of which is hereby
acknowledged, the parties hereto agree each with the other as
follows:
1.
AMENDMENT
TO SECTION 3.2
1.1 Section
3.2 of the Escrow Agreement, as amended, is hereby amended by deleting Section
3.2 in its entirety and by substituting the following:
“3.2 The
Escrow Agent will hold the Shares and the PAs in escrow and will, unless
prohibited by an order of a court of competent jurisdiction:
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(a)
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deliver
(i) the Shares into a subsequent escrow in accordance with the terms
of
the Long Term Escrow Agreement dated September 1, 2006, among the
Shareholders, SES and the Escrow Agent and (ii) the PAs to each of
the
Shareholders, if SES closes a financing of at least CHF12,000,000
on or
prior to November 30, 2007 (the “Financing”);
or
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(b)
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deliver
the Shares and the PAs to SES for immediate cancellation if SES does
not
close the Financing on or prior to November 30,
2007.”
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-2-
2.
GENERAL
2.1 The
Escrow Agreement, as amended, and this Agreement will be read and construed
as
one agreement.
2.2 The
Escrow Agreement, as amended and modified hereby, will remain in full force
and
effect.
2.3 Except
as
herein otherwise provided, no subsequent alteration, amendment, change, or
addition to this Agreement will be binding upon the parties hereto unless
reduced to writing and signed by the parties.
2.4 All
undefined terms used herein shall have their respective meanings as set out
in
the Escrow Agreement, as amended.
2.5 This
Agreement will enure to the benefit of and be binding upon the parties and
their
respective heirs, executors, administrators and successors.
2.6 The
parties will execute and deliver all such further documents, do or cause to
be
done all such further acts and things, and give all such further assurances
as
may be necessary to give full effect to the provisions and intent of this
Agreement.
2.7 This
Agreement will be governed by and construed in accordance with the laws of
the
State of Delaware.
2.8 Any
notice required or permitted to be given under this Agreement will be in writing
and may be given by delivering, sending by electronic facsimile transmission
or
other means of electronic communication capable of producing a printed copy,
or
sending by prepaid registered mail, the notice to the following address:
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(a)
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If
to the Shareholders:
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c/o
Société d’Energie Solaire S.A.
Xxxxx
xx
Xxxxx-Xxxxxx 000
XX-0000
Xxxx-xxx-Xxxxxx
Switzerland
Attention: Xxxx-Xxxxxxxxxx
Xxxxxx
Telephone: x00
00
000 00 00
Facsimile: x00
00
000 00 00
-3-
With
a
copy (which will not constitute notice) to:
Etude
d’avocats Poggia & Rudermann
Rue
de
Beaumont 11
1206
Geneve
Suisse
Attention: Me
Mauro
Poggia
Telephone: x00
00
000 00 00
Facsimile: x00
00
000 00 00
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(b)
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If
to SES:
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Xxxxx
xx
Xxxxx-Xxxxxx 000
XX-0000
Xxxx-xxx-Xxxxxx
Switzerland
Attention: Xxxx-Xxxxxxxxxx
Xxxxxx
Facsimile: x00
00
000 00 00
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(c)
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If
to the Escrow Agent:
|
Xxxxx
Xxxxxx LLP
Barristers
and Solicitors
800
- 000
Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxxx Xxxxxxxx
Xxxxxx
X0X 0X0
Attention: Cam
McTavish
Fax: (000)
000-0000
(or
to
such other address as any party may specify by notice in writing to another
party). Any notice delivered or sent by electronic facsimile transmission or
other means of electronic communication capable of producing a printed copy
on a
business day will be deemed conclusively to have been effectively given on
the
day the notice was delivered, or the electronic communication was successfully
transmitted, as the case may be. Any notice sent by prepaid registered mail
will
be deemed conclusively to have been effectively given on the third business
day
after posting; but if at the time of posting or between the time of posting
and
the third business day thereafter there is a strike, lockout, or other labour
disturbance affecting postal service, then the notice will not be effectively
given until actually delivered.
2.9 Time
is
of the essence of this Agreement.
2.10 It
is
understood and agreed by the parties to this Agreement that the only duties
and
obligations of the Escrow Agent are those specifically stated in the Escrow
Agreement, as amended and modified hereby, and no other.
-4-
2.11 This
Agreement may be executed in one or more counterparts, all of which will be
considered one and the same agreement and will become effective when one or
more
counterparts have been signed by each of the parties and delivered to the other
parties, it being understood that all parties need not sign the same
counterpart. This Agreement may be executed by delivery of executed signature
pages by fax and such fax execution will be effective for all
purposes.
IN
WITNESS WHEREOF the parties have caused this Agreement to be executed as of
the
day and year first written above.
Per:
Name:
Xxxx-Xxxxxxxxxx Xxxxxx
Title:
Chief Executive Officer
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EXECUTED
by XXXXXXXXXX
XXXX
in
the presence of:
Signature
Print
Name
Address
Occupation
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XXXXXXXXXX
XXXX
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EXECUTED
by XXXX-XXXXXXXXXX
XXXXXX
in
the presence of:
Signature
Print
Name
Address
Occupation
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)
)
)
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XXXX-XXXXXXXXXX
XXXXXX
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-5-
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EXECUTED
by XXXXXXX
XXX
in
the presence of:
Signature
Print
Name
Address
Occupation
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)
)
)
)
)
)
)
)
)
)
)
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)
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XXXXXXX
XXX
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XXXXX
XXXXXX LLP
Per:
Partner
-6-
