WAIVER AND AMENDMENT
This
WAIVER AND AMENDMENT (hereinafter, the “Waiver and Amendment”) is made and
entered into as of July 30, 2009 by and among:
(1) Premier
Power Renewable Energy, Inc., a corporation organized under the laws of the
State of Delaware with its principal place of business at 0000 Xxxxxxxx Xxxxx,
Xxxxx 000, Xx Xxxxxx Hills, California 95762, United States of America
("PPRW");
(2) Rupinvest
Sarl, a corporation duly organized and existing under the laws of the country of
Luxembourg (“LUX”) with its address for notice at 0 Xxx Xxxx-Xxxxxx Xxxxxx,
X-0000 Xxxxxxxxxx;
(3) Esdras
Ltd., a corporation duly organized and existing under the laws of Cyprus (“CYP”)
with its address for notice at Campobasso Italy, Via San Giovanni in Golfo
205/e; (the above named three corporations being known collectively as the
“Companies”), and
(4) Capita
Trust Company Limited, a private limited company incorporated in England and
Wales with registered number 00239726 (the "Escrow Agent", and together with the
Companies, the “Parties”).
All
capitalized terms not otherwise defined herein shall have the meaning set forth
in the Share Exchange Agreement entered into on June 3, 2009 by the Companies
(the “Share Exchange Agreement”) and, if not defined in the Share Exchange
Agreement, then the Escrow Agreement entered into on July 9, 2009 by the Parties
(the “Escrow Agreement”).
RECITALS
WHEREAS,
pursuant to the Escrow Agreement, the Parties agreed to certain escrow
deliverables prior to the Share Exchange Deliveries Deadline;
WHEREAS,
pursuant to this Waiver and Amendment, the Parties agree to waive certain escrow
deliverables by LUX and PPRW IT prior to the Share Exchange Deadline;
and
WHEREAS,
pursuant to this Waiver and Amendment, the Parties agree to amend the definition
of the Escrow Opening Date defined in recitals of the Escrow
Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of foregoing premises, the Parties agree to the
following:
|
A.
|
the
Parties hereby agree to waive the following escrow deliverables by LUX and
PPRW IT (as defined below) prior to the Share Exchange Deliveries
Deadline:
|
|
|
1.
|
Letters
of resignation from all executive officers and directors of LUX, with such
resignations each confirming that he has no claim against LUX in respect
of any outstanding remuneration or fees of whatever nature as of the
Escrow Opening Date.
|
|
|
2.
|
Resolutions
duly adopted by the Board of Directors or Shareholders of LUX approving
the following events or actions, as
applicable:
|
|
|
(a)
|
adoption
of LUX bylaws in the form agreed by the
Companies;
|
|
|
(b)
|
the
appointment of Xxxx X. Xxxxx as Chairman of the board of directors to
serveon
LUX’s board of directors;
|
|
|
(c)
|
the
appointment of the persons to be chosen and designated by PPRW as the
requisite
officers of LUX (the “LUX
Officers”).
|
|
|
3.
|
Resolutions
duly adopted by the Board of Directors or Shareholders of Arco Energy Srl,
the wholly owned subsidiary of LUX (“PPRW IT”), approving the following
events or actions, as applicable,
|
|
|
(a)
|
requiring
PPRW IT to execute, deliver and perform under the terms of the
ShareExchange
Agreement; and
|
|
|
(b)
|
the
Share Exchange Transaction and the terms
thereof.
|
|
B.
|
This
Waiver and Amendment constitutes written notice on behalf of PPRW, LUX and
CYP to the Escrow Agent that complete delivery of all of, respectively,
the PPRW Deliveries, and the LUX and CYP Deliveries (all such deliveries
being, together, the “Escrow
Deliveries”), either has been made or waived pursuant to Section
4.1 of the Escrow Agreement. Electronic delivery of the Escrow
Deliveries is an acceptable means of delivery to the
Companies.
|
|
C.
|
The
Parties agree to amend the last recital of the Escrow Agreement in its
entirety to read as follows:
|
“WHEREAS,
pursuant to the Share Exchange Agreement, Escrow opened on July 9, 2009 (the
“Escrow Opening Date”).”
[Signature
Page Follows]
IN
WITNESS WHEREOF, the Parties have executed this Waiver and Amendment to be duly
executed by its representative thereunto duly authorized as of the day and year
first written above.
|
By:
|
/s/ Xxxx X. Xxxxx
|
|
|
Name:
|
Xxxx
X. Xxxxx
|
|
|
Title:
|
Chief
Executive Officer and President
|
|
|
RUPINVEST
SARL
|
||
|
By:
|
/s/ Xxxxxxxx Xxxxxxx
|
|
|
Name:
|
Xxxxxxxx
Xxxxxxx
|
|
|
Title:
|
Gerant
|
|
|
By:
|
/s/ Xxxxxx de Anquin
|
|
|
Name:
|
Xxxxxx
de Anquin
|
|
|
Title:
|
Xxxxxx
|
|
|
XXXXXX
LTD.
|
||
|
By:
|
/s/ Xxxxxxx Xxxxxxx
|
|
|
Name:
|
Xxxxxxx
Xxxxxxx
|
|
|
Title:
|
Procuratore
|
|
|
CAPITA
TRUST COMPANY LIMITED
|
||
|
By:
|
/s/ Xxxxx Xxxxx
|
|
|
Name:
|
Xxxxx
Xxxxx
|
|
|
Title:
|
Director
|
|
|
By:
|
/s/ Xxxxx Xxxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxxx
|
|
|
Title:
|
Director
|
|
