INSIDER PLEDGE AND ESCROW AGREEMENT
THIS INSIDER PLEDGE AND ESCROW AGREEMENT (the "Agreement") is made and
entered into as of December 30, 2005 (the "Effective Date") by and among CORNELL
CAPITAL PARTNERS, LP ("Cornell" or the "Pledgee"), EARTHSHELL CORPORATION, a
Delaware corporation (the "Company"), XXXXXX XXXXXXXX (the "Pledgor") and XXXXX
XXXXXXXX, ESQ., as escrow agent ("Escrow Agent").
RECITALS:
WHEREAS, on March 23, 2005, Cornell, the Company, the Pledgor, and the
Escrow Agent entered into a Pledge and Escrow Agreement, as amended on May 26,
2005 (the "Pledge and Escrow Agreement") pursuant to which the Pledgor pledged
shares of common stock of Composite Technology Corporation ("CTC") to secure a
loan made by the Pledgee to the Company in a principal amount of $2,500,000. The
parties desire to terminate the Pledge and Escrow Agreement and replace it with
this Agreement;
WHEREAS, in connection with the Securities Purchase Agreement (the
"Securities Purchase Agreement") dated the date hereof among the Pledgee and the
Company, the Company shall issue and sell to the Pledgee up to Four Million Five
Hundred Thousand Dollars ($4,500,000) of secured convertible debentures (the
"Convertible Debentures");
WHEREAS, in connection with the transactions contemplated by the
Securities Purchase Agreement, on the date hereof the Pledgee and the Company
entered into an Investor Registration Rights Agreement ("Registration Rights
Agreement"), an Escrow Agreement ("Escrow Agreement"), an Amended Security
Agreement ("Security Agreement"), a Pledge and Escrow Agreement ("Company Pledge
Agreement"), and Irrevocable Transfer Agent Instructions ("Transfer Agent
Instructions") (the Convertible Debentures, Securities Purchase Agreement,
Registration Rights Agreement, Escrow Agreement, Security Agreement, Company
Pledge Agreement, and Transfer Agent Instructions are collectively referred to
as the "Transaction Documents"); and
WHEREAS, the Pledgor has agreed to irrevocably pledge to the Pledgee Five
Million (5,000,000) shares of common stock of CTC which are beneficially owned
by the Pledgor (the "Pledged Shares") in order to secure the repayment of the
first Two Million Five Hundred Thousand Dollars $2,500,000 (whether at the
stated maturity, by acceleration or otherwise) of the Company's obligations (the
"Obligations") to the Pledgee or any successor to the Pledgee under the
Convertible Debentures and the Transaction Documents.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
warranties, and representations herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
TERMS AND CONDITIONS
1. Pledge and Transfer of Pledged Shares. The Pledgor hereby grants to
Pledgee an irrevocable, first priority security interest in all Pledged Shares
as security for the repayment of the first Two Million Five Hundred Thousand
Dollars $2,500,000 of the Obligations. On or before the date hereof, the Pledgor
shall deliver to the Escrow Agent stock certificates representing the Pledged
Shares, together with duly executed stock powers or other appropriate transfer
documents with medallion bank guarantees and executed in blank by the Pledgor
(the "Transfer Documents"). Such stock certificates and Transfer Documents
(collectively the "Pledged Materials") shall be held by the Escrow Agent until
the Escrow Agent is notified to release such Pledged Materials pursuant to
Section 3 hereof. the repayment of the first Two Million Five Hundred Thousand
Dollars $2,500,000 (whether by conversion, repayment, or otherwise) of all
Obligations due to the Pledgee under the Transaction Documents, including the
repayment of all amounts owed by the Company to the Pledgee under the
Convertible Debentures (whether outstanding principal, interest, legal fees, or
any other amounts owed to the Pledgee by the Company).
2. Rights Relating to Pledged Shares. Upon the occurrence of an Event of
Default (as defined herein), the Pledgee shall be entitled to vote the Pledged
Shares, receive dividends and other distributions thereon, and enjoy all other
rights and privileges incident to the ownership of the number of Pledged Shares
actually released from escrow in accordance with Section 5 hereof.
3. Release of Pledged Shares from Pledge. Upon the repayment of the first
Two Million Five Hundred Thousand Dollars $2,500,000 (whether by conversion,
repayment, or otherwise) of the Obligations, the parties hereto shall notify the
Escrow Agent to such effect in writing. Promptly upon receipt of such written
notice, the Escrow Agent shall return to the Pledgor the Pledged Materials,
whereupon any and all rights of Pledgee in the Pledged Materials shall be
terminated.
4. Event of Default. An "Event of Default" shall be deemed to have
occurred under this Agreement upon an Event of Default under Convertible
Debentures which remains uncured for a period of ten (10) days after the Pledgee
provides the Pledgor written notice of an Event of Default under the Convertible
Debentures.
5. Remedies. Upon and anytime after the occurrence of an Event of Default
(as set forth above), so long as the Event of Default has not been previously
cured, the Pledgee shall have the right to provide written notice of such Event
of Default (the "Default Notice") to the Escrow Agent, with a copy to the
Pledgor and the Company. As soon as practicable after receipt of the Default
Notice by the Escrow Agent, the Escrow Agent shall deliver to Pledgee the
Pledged Materials held by the Escrow Agent hereunder. Upon receipt of the
Pledged Materials, the Pledgee shall have the right to (i) sell the Pledged
Shares and to apply the proceeds of such sales, net of any selling commissions,
to the Obligations owed to the Pledgee by the Company under the Transaction
Documents, including, without limitation, outstanding principal, interest, legal
fees, and any other amounts owed to the Pledgee, and exercise all other rights
and (ii) any and all remedies of a secured party with respect to such property
as may be available under the Uniform Commercial Code as in effect in the State
of New Jersey. The Pledgee shall have the absolute right to sell or dispose of
the Pledged Shares in any manner it sees fit and shall have no liability to the
Pledgor, the Company or any other party for selling or disposing of such Pledged
Shares even if other methods of sales or dispositions would or allegedly would
result in greater proceeds than the method actually used. The Escrow Agent shall
have the absolute right to disburse the Pledged Shares to the Pledgee in
batches, which when aggregated with all other common stock of Composite
Technology Corporation beneficially owned by the Pledgee and its affiliates,
will not to exceed 9.9% of the outstanding capital of Composite Technology
Corporation (which limit may be waived by the Pledgee providing not less than 65
days' prior written notice to the Escrow Agent). The Pledgee shall return to the
Pledgor any Pledged Shares released to it and remaining after the Pledgee has
applied the net proceeds to all amounts owed to the Pledgee.
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The Pledgor shall enter into a lockup agreement in connection with this
Agreement.
Each right, power and remedy of the Pledgee provided for in this Agreement
or any other Transaction Document shall be cumulative and concurrent and shall
be in addition to every other such right, power or remedy. The exercise or
beginning of the exercise by the Pledgee of any one or more of the rights,
powers or remedies provided for in this Agreement or any other Transaction
Document or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by the Pledgee
of all such other rights, powers or remedies, and no failure or delay on the
part of the Pledgee to exercise any such right, power or remedy shall operate as
a waiver thereof. No notice to or demand on the Pledgor in any case shall
entitle it to any other or further notice or demand in similar or other
circumstances or constitute a waiver of any of the rights of the Pledgee to any
other further action in any circumstances without demand or notice. The Pledgee
shall have the full power to enforce or to assign or contract is rights under
this Agreement to a third party.
The Pledgor and the Company have no right to require the Pledgee to
marshal its collateral, and agree that the Pledgee may, in addition to its other
rights hereunder, proceed against its collateral in any order that it deems
appropriate in the exercise of its absolute discretion.
6. Representations, Warranties and Covenants.
6.1 The Pledgor represents, warrants and covenants that:
(i) he is, and at the time when pledged hereunder will be, the
legal, beneficial and record owner of, and has (and will have) good and valid
title to, all Pledged Shares pledged by him hereunder, subject to no pledge,
lien, mortgage, hypothecation, security interest, charge, option or other
encumbrance whatsoever;
(ii) he has full power, authority and legal right to pledge
all the Pledged Shares pledged by him pursuant to this Agreement; and
(iii) all the Pledged Shares have been duly and validly
issued, are fully paid and non-assessable and are subject to no options to
purchase or similar rights.
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6.2 The Pledgor covenants and agrees that it will take all
reasonable steps to defend the Pledgee's right, title and security interest in
and to the Pledged Shares and the proceeds thereof against the claims and
demands of all persons whomsoever (other than the Pledgee and the Escrow Agent);
and the Pledgor covenants and agrees that it will have like title to and right
to pledge any other property at any time hereafter pledged to the Pledgee as
Collateral hereunder and will likewise take all reasonable steps to defend the
right thereto and security interest therein of the Pledgee.
6.3 The Pledgor covenants and agrees that it will take no action
which would violate or be inconsistent with any of the terms of any Transaction
Document, or which would have the effect of impairing the position or interests
of the Pledgee under any Transaction Document.
6.4 The Pledgor represents, warrants and covenants that (i) he has
been the beneficial owner of the Pledged Shares for a period of not less than
two (2) years as computed in accordance with Rule 144(d) promulgated under the
Securities Act of 1933, as amended, (ii) he has fully paid for the Pledged
Shares at the time he became the beneficial owner (which was more than two (2)
years ago) and (iii) this Agreement is made with recourse. Upon an Event of
Default, the Pledgee shall be deemed to have acquired the Pledged Shares on the
date they were acquired by the Pledgor.
6.5 The Pledgor represents, warrants and covenants that (i) the
Pledgor waives any rights to seek any remedy in equity, (ii) the Pledgor's sole
remedy against the Pledgee shall be to xxx for monetary damages, and (iii) the
Pledgor shall not challenge any instructions or directions given by the Pledgee
to CTC's transfer agent regarding any transfers or sales of the Pledged Shares
or otherwise challenge any such transfer or sale. The Pledgor's exclusive remedy
for any wrongdoing or alleged wrongdoing under this Section 6.5 shall be to seek
monetary damages against the Pledgee, which damages the Pledgor expressly
acknowledges are an adequate remedy under applicable law.
7. Concerning the Escrow Agent.
7.1. The Escrow Agent undertakes to perform only such duties as are
expressly set forth herein and no implied duties or obligations shall be read
into this Agreement against the Escrow Agent.
7.2. The Escrow Agent may act in reliance upon any writing or
instrument or signature which it, in good faith, believes to be genuine, may
assume the validity and accuracy of any statement or assertion contained in such
a writing or instrument, and may assume that any person purporting to give any
writing, notice, advice or instructions in connection with the provisions hereof
has been duly authorized to do so. The Escrow Agent shall not be liable in any
manner for the sufficiency or correctness as to form, manner, and execution, or
validity of any instrument deposited in this escrow, nor as to the identity,
authority, or right of any person executing the same; and its duties hereunder
shall be limited to the safekeeping of such certificates, monies, instruments,
or other document received by it as such escrow holder, and for the disposition
of the same in accordance with the written instruments accepted by it in the
escrow.
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7.3. Pledgee and the Pledgor hereby agree, to defend and indemnify
the Escrow Agent and hold it harmless from any and all claims, liabilities,
losses, actions, suits, or proceedings at law or in equity, or any other
expenses, fees, or charges of any character or nature which it may incur or with
which it may be threatened by reason of its acting as Escrow Agent under this
Agreement; and in connection therewith, to indemnify the Escrow Agent against
any and all expenses, including attorneys' fees and costs of defending any
action, suit, or proceeding or resisting any claim (and any costs incurred by
the Escrow Agent pursuant to Section 6.4 hereof). The Escrow Agent shall be
vested with a lien on all property deposited hereunder, for indemnification of
attorneys' fees and court costs regarding any suit, proceeding or otherwise, or
any other expenses, fees, or charges of any character or nature, which may be
incurred by the Escrow Agent by reason of disputes arising between the makers of
this escrow as to the correct interpretation of this Agreement and instructions
given to the Escrow Agent hereunder, or otherwise, with the right of the Escrow
Agent, regardless of the instructions aforesaid, to hold said property until and
unless said additional expenses, fees, and charges shall be fully paid. Any fees
and costs charged by the Escrow Agent for serving hereunder shall be paid by the
Company.
7.4. If any of the parties shall be in disagreement about the
interpretation of this Agreement, or about the rights and obligations, or the
propriety of any action contemplated by the Escrow Agent hereunder, the Escrow
Agent may, at its sole discretion deposit the Pledged Materials with the Clerk
of the United States District Court of New Jersey, sitting in Newark, New
Jersey, and, upon notifying all parties concerned of such action, all liability
on the part of the Escrow Agent shall fully cease and terminate. The Escrow
Agent shall be indemnified by the Pledgor, the Company and Pledgee for all
costs, including reasonable attorneys' fees in connection with the aforesaid
proceeding, and shall be fully protected in suspending all or a part of its
activities under this Agreement until a final decision or other settlement in
the proceeding is received.
7.5. The Escrow Agent may consult with counsel of its own choice
(and the costs of such counsel shall be paid by the Pledgor and Pledgee) and
shall have full and complete authorization and protection for any action taken
or suffered by it hereunder in good faith and in accordance with the opinion of
such counsel. The Escrow Agent shall not be liable for any mistakes of fact or
error of judgment, or for any actions or omissions of any kind, unless caused by
its willful misconduct or gross negligence.
7.6. The Escrow Agent may resign upon ten (10) days' written notice
to the parties in this Agreement. If a successor Escrow Agent is not appointed
within this ten (10) day period, the Escrow Agent may petition a court of
competent jurisdiction to name a successor.
7.7. Conflict Waiver. The Pledgor hereby acknowledges that the
Escrow Agent is general counsel to the Pledgee, a partner in the general partner
of the Pledgee, and counsel to the Pledgee in connection with the transactions
contemplated and referred herein. The Pledgor agrees that in the event of any
dispute arising in connection with this Agreement or otherwise in connection
with any transaction or agreement contemplated and referred herein, the Escrow
Agent shall be permitted to continue to represent the Pledgee and the Pledgor
will not seek to disqualify such counsel and waives any objection Pledgor might
have with respect to the Escrow Agent acting as the Escrow Agent pursuant to
this Agreement.
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7.8. Notices. Unless otherwise provided herein, all demands,
notices, consents, service of process, requests and other communications
hereunder shall be in writing and shall be delivered in person or by overnight
courier service, or mailed by certified mail, return receipt requested,
addressed:
If to the Company, to: EarthShell Corporation
0000 Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx, LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Escrow Agent: Xxxxx Xxxxxxxx, Esq.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Pledgee: Cornell Capital Partners LP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copy to: Cornell Capital Partners, LP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esquire
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Pledgor, to: Xxxxxx Xxxxxxxx
0000 XxXxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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Any such notice shall be effective (a) when delivered, if delivered by hand
delivery or overnight courier service, or (b) five (5) days after deposit in the
United States mail, as applicable.
8. Binding Effect. All of the covenants and obligations contained herein
shall be binding upon and shall inure to the benefit of the respective parties,
their successors and assigns.
9. Governing Law; Venue; Service of Process. The validity, interpretation
and performance of this Agreement shall be determined in accordance with the
laws of the State of New Jersey applicable to contracts made and to be performed
wholly within that state except to the extent that Federal law applies. The
parties hereto agree that any disputes, claims, disagreements, lawsuits, actions
or controversies of any type or nature whatsoever that, directly or indirectly,
arise from or relate to this Agreement, including, without limitation, claims
relating to the inducement, construction, performance or termination of this
Agreement, shall be brought in the state superior courts located in Xxxxxx
County, New Jersey or Federal district courts located in Newark, New Jersey, and
the parties hereto agree not to challenge the selection of that venue in any
such proceeding for any reason, including, without limitation, on the grounds
that such venue is an inconvenient forum. The parties hereto specifically agree
that service of process may be made, and such service of process shall be
effective if made, pursuant to Section 8 hereto.
10. Enforcement Costs. If any legal action or other proceeding is brought
for the enforcement of this Agreement, or because of an alleged dispute, breach,
default or misrepresentation in connection with any provisions of this
Agreement, the successful or prevailing party or parties shall be entitled to
recover reasonable attorneys' fees, court costs and all expenses even if not
taxable as court costs (including, without limitation, all such fees, costs and
expenses incident to appeals), incurred in that action or proceeding, in
addition to any other relief to which such party or parties may be entitled.
11. Remedies Cumulative. No remedy herein conferred upon any party is
intended to be exclusive of any other remedy, and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law, in equity, by statute, or
otherwise. No single or partial exercise by any party of any right, power or
remedy hereunder shall preclude any other or further exercise thereof.
12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute the same instrument.
13. No Penalties. No provision of this Agreement is to be interpreted as a
penalty upon any party to this Agreement.
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14. JURY TRIAL. EACH OF THE PLEDGEE AND THE PLEDGOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT WHICH IT MAY HAVE TO A TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION BASED HEREON, OR ARISING
OUT OF, UNDER OR IN ANY WAY CONNECTED WITH THE DEALINGS BETWEEN PLEDGEE AND
PLEDGOR, THIS PLEDGE AND ESCROW AGREEMENT OR ANY DOCUMENT EXECUTED IN CONNECTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO OR THERETO IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR
OTHERWISE.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Insider
Pledge and Escrow Agreement as of the date first above written.
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Portfolio Manager
/s/ Xxxxxx Xxxxxxxx
--------------------------------------------
XXXXXX XXXXXXXX
EARTHSHELL CORPORATION
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Financial Officer
ESCROW AGENT
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxx, Esq.
FOR VALUE RECEIVED, this Agreement is made with recourse.
/s/ Xxxxxx Xxxxxxxx
--------------------------------------------
XXXXXX XXXXXXXX
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