ICP Solar Technologies, Inc. - Exhibit 10.1 - Prepared By TNT Filings
Inc.



  
 


AMENDMENT AGREEMENT

 


This Amendment Agreement (the “Agreement”), dated as of
December 31, 2008, is by and among ICP Solar Technologies, Inc., a Nevada
corporation (the “Company”) and the investors signatory hereto (each, a “Buyer”
and collectively, the “Buyers”).

 


WHEREAS, on or about June 13, 2008, the
Company and the Buyers entered into a Securities Purchase Agreement (the 
“SPA”);

 


WHEREAS,  pursuant to the SPA each
Buyer purchased the aggregate principal amount of the Company’s 11% Senior
Secured Convertible Debenture Due June 13, 2010 (the “Debentures”) and
associated “A” Warrants, “B” Warrants and “C” Warrants (collectively the “Warrants”)
as set forth in the Schedule of Buyers to the SPA.  

 


WHEREAS, the parties hereto wish to
amend certain terms of the Transaction Documents, as defined in the SPA.

 


NOW, THEREFORE, IN CONSIDERATION of the
mutual covenants contained in this Agreement, and for good and valuable
consideration the receipt and adequacy of which are hereby acknowledged, the
Buyers and the Company agree as follows:

 

 


ARTICLE I


DEFINITIONS

 


  Capitalized terms not defined in this Agreement shall have the
meanings ascribed to such terms in the SPA.

 


ARTICLE II


AMENDMENTS AND OTHER AGREEMENTS

 


Section 2.1 Amendment of the
Debentures 

 


The Debentures are amended and restated in the form attached
hereto as Exhibit A.   The Company and the Buyers expressly agree and
acknowledge that in consideration for the terms of this Agreement, the principal
balance of the amended and restated Debenture constitutes 115% of the sum of (i)
the principal amount of the Debentures that was outstanding immediately prior to
the date of this Agreement plus (ii) all accrued and unpaid interest through
December 31, 2008.  The Company and the Buyers agree and acknowledge that,
immediately following the execution of this Agreement, the outstanding principal
amount of each Buyer’s Debenture will be as set forth below:

 
1



 

	

Name of Buyer

	
  
  Outstanding Principal Amount of Buyer’s Debenture Immediately
  Following the Execution of this Agreement


	
   


BridgePointe Master Fund Ltd.

	
   


$1,476,844.18


	
   


Platinum Long Term Growth VI, LLC

	
   


$984,562.79


	
   


Gemini Master Fund, Ltd.

	
   


$492,281.40




 

 


Section 2.2


 Amendment to the Exercise Price of the Warrants

 


The Warrants are amended as follows:  The amended and restated
Warrants shall be in the form attached hereto as Composite Exhibit B.   

 


(a)  


The first sentence of Section 3 of the Series A Warrants is
hereby deleted and replaced with the following:


“The Exercise Price (“Exercise
Price”) shall initially equal $0.50 
per share (the “Initial Exercise Price”),
provided that as of December 31, 2008, the Exercise Price shall be reduced, but
not increased, to $0.25 per share, all subject to adjustment pursuant to the
terms hereof, including but not limited to Section 5 below.”  


(b)  


The first sentence of Section 3 of the Series B Warrants is
hereby deleted and replaced with the following:


“The Exercise Price (“Exercise
Price”) shall initially equal $1.00 
per share (the “Initial Exercise Price”),
provided that as of December 31, 2008, the Exercise Price shall be reduced, but
not increased, to $0.25 per share, all subject to adjustment pursuant to the
terms hereof, including but not limited to Section 5 below.”  


(c)  


The first sentence of Section 3 of the Series C Warrants is
hereby deleted and replaced with the following:


“The Exercise Price (“Exercise
Price”) shall initially equal $1.00 
per share (the “Initial Exercise Price”),
provided that as of December 31, 2008, the Exercise Price shall be reduced, but
not increased, to $0.50 per share, all subject to adjustment pursuant to the
terms hereof, including but not limited to Section 5 below.”


(d)


The Buyers hereby waive any “Milestone Adjustments” (as defined
in the Warrants) that were required under the terms of the Warrants prior to
December 31, 2008, provided that it is agreed and understood that nothing herein
shall prevent any downward adjustment of the Exercise Price of any of the
Warrants in accordance with their terms, including but not limited to “Milestone
Adjustments” as defined in the Warrants, occurring after December 31, 2008.


 


2




(e)


The Company and the Buyers each agree and acknowledge that the
reduction of the Exercise Price of the Series A Warrant to $0.25 per share on
December 31, 2008 will result in an adjustment to the number of Warrant Shares
as described in the Series A Warrant, including but not limited to Section 5(k)
thereof.  The Company and the Buyers agree and acknowledge that, immediately
following the reduction of the Exercise Price of the Series A Warrants to $0.25
on December 31, 2008, the number of outstanding Series A Warrants of each Buyer
will be as set forth below (unless such number is
already greater than the number set forth below by virtue of a prior
adjustment):


 

	
  
   


Name of Buyer

	
  
  Number of Series A Warrants Held by Buyer Immediately Following
  the Execution of this Agreement


	
  
   


BridgePointe Master Fund Ltd.

	
  
   


6,666,668


	
  
   


Platinum Long Term Growth VI, LLC

	
  
   


4,444,444


	
  
   


Gemini Master Fund, Ltd.

	
  
   


2,222,220





Notwithstanding the above, if the Exercise Price of the Series A
Warrants is adjusted to a price lower than $0.25 under its terms, then the
number of Series A Warrants shall be further increased accordingly.   


(f)


The Company and the Buyers each agree and acknowledge that the
reduction of the Exercise Price of the Series B Warrant to $0.25 per share on
December 31, 2008, will result in an adjustment to the number of Warrant Shares
as described in the Series B Warrant, including but not limited to Section 5(k)
thereof.  The Company and the Buyers agree and acknowledge that, immediately
following the reduction of the Exercise Price of the Series B Warrants to $0.25
on December 31, 2008, the number of outstanding Series B Warrants of each Buyer
will be as set forth below (unless such number is already greater than the
number set forth below by virtue of a prior adjustment):


 

	

Name of Buyer

	
  
  Number of Series B Warrants Held by Buyer Immediately Following
  the Execution of this Agreement


	
  
   


BridgePointe Master Fund Ltd.

	
  
   


13,333,336


	
  
   


Platinum Long Term Growth VI, LLC

	
  
   


8,888,888


	
  
   


Gemini Master Fund, Ltd.,

	
  
   


4,444,440





 


3




 


Notwithstanding the above, if the Exercise Price of the Series B
Warrants is adjusted to a price lower than $0.25 under its terms, then the
number of Series B Warrants shall be further increased accordingly.


(g)


The Company and the Buyers each agree and acknowledge that the
reduction of the Exercise Price of the Series C Warrant to $0.50 per share on
December 31, 2008 will result in an adjustment to the number of Warrant Shares
as described in the Series C Warrant, including but not limited to Section 5(k)
thereof.  The Company and the Buyers agree and acknowledge that, immediately
following the reduction of the Exercise Price of the Series C Warrants to $0.50
on December 31, 2008, the number of outstanding Series C Warrants of each Buyer
will be as set forth below (unless such number is already greater than the
number set forth below by virtue of a prior adjustment):


 

	

 


Name of Buyer

	
  
  Number of Series C Warrants Held by Buyer Immediately Following
  the Execution of this Agreement


	
  
   


BridgePointe Master Fund Ltd.

	
  
   


6,666,668


	
  
   


Platinum Long Term Growth VI, LLC

	
  
   


4,444,444


	
  
   


Gemini Master Fund, Ltd.,

	
  
   


2,222,220





Notwithstanding the above, if the Exercise Price of the Series C
Warrants is adjusted to a price lower than $0.50 under its terms, then the
number of Series C Warrants shall be further increased accordingly.


(h) Within five (5) Business Days of any increase of the number
of Warrants held by the Buyer, including but not limited to an increase
occurring as a result of a price adjustment on December 31, 2008, the Company
shall issue to Buyer additional warrant certificates  representing such
increased number of Warrants, it being understood that the Warrants represented
by such additional warrant certificates shall be deemed issued and paid for on
June 13, 2008 for all purposes, including but not limited to Rule 144 under the
Securities Act .


 


Section 2.3


  Amended and
Restated Registration Rights Agreement


 


The Registration Rights Agreement delivered pursuant to, and as
defined in, the SPA, is amended and restated in the form attached hereto as 
Exhibit C.   


 


Section 2.4


Securities Purchase Agreement

 


(a) The following is hereby considered to be added as item (e) in
the definition of “Exempt Issuance” in Section 1(a) of the SPA:


(e) any Common Stock, up to a maximum aggregate amount of
3,000,000 shares,  issued or issuable in lieu of payment for monies or fees
owing as a result to an existing obligation or of a renegotiation of an existing
obligation to pay such monies or fees owing.”  

 


4




(b)  


The following is hereby added immediately following Section 4(r)
of the SPA:


 


“(s)     EPOD Note Payments.  The Company acknowledges and
represents that, pursuant to the debenture (together with any accompanying
promissory notes or other agreements related to such debt, collectively referred
to as the “EPOD Note”) issued pursuant to the Second Amendment to the Share
Purchase Agreement, which Share Purchase Agreement is dated May 9, 2007, by and
between the Company and EPD Solar, Inc., a corporation organized under the laws
of British Columbia, Canada (“EPOD”)(which agreement was assumed from ISE LLC),
EPOD owes at least $2,241,200 to the Company, $1,060,600 of which is required to
be paid to the Company by EPOD in cash, in monthly payments of  $40,000 (the
“EPOD Monthly Payments”) commencing on April 18, 2008 until the balance is paid
in full.  The Company agrees, concurrently with the execution of this Agreement,
to deliver to Roswell Capital Partners, LLC, as collateral agent for the Buyers
(the “Collateral Agent”) the original of the EPOD Note and a bond power (the
“Bond Power”)(executed and medallion guaranteed, as necessary, in the manner
required to effect assignment of the EPOD Note under applicable law) whereby the
Company assigns all of its right, title and interest in the EPOD Note to the
Collateral Agent for the pro rata benefit of the Buyers .  In the event that a
non-assignment clause in the EPOD Note prohibits such assignment, then the
Company shall use its best efforts to have EPOD waive such prohibitions and
allow such assignment.  If, after the Company’s best efforts, the Company cannot
effect the assignment of the EPOD Note by January 9, 2009 because EPOD still
refuses to waive any prohibitions, then the Company shall nevertheless promptly
thereafter but in any event not later than January 15, 2009, send the original
EPOD Note and a Bond Power to the Collateral Agent to hold as security, in order
to perfect the Buyers’ security interest in the EPOD Note.


Following the completion of the assignment of all of the
Company’s right, title and interest in the EPOD Note to the Collateral Agent for
the pro rata benefit of the Buyers, the principal amount of each Buyer’s
Debenture shall be reduced by an amount equal to such Buyer’s Pro Rata Portion
of any amounts paid by EPOD to the Collateral Agent and subsequently paid to the
Buyers in an amount equal to their Pro Rata Portion of the EPOD Note.  For
purposes hereof, Pro Rata Portion shall have the meaning set forth in the table
below for each of the respective Buyers:

 


5



 

	

Name of Buyer

	

Pro Rata Portion


	
  
   


BridgePointe Master Fund Ltd.

	
  
   


1/2


	
  
   


Platinum Long Term Growth VI, LLC

	
  
   


1/3


	
  
   


Gemini Master Fund, Ltd.

	
  
   


1/6




 


In the event that the Company pays off the balance of all of the
Debentures in full, and any portion of the EPOD Note remains outstanding, the
Collateral Agent shall assign the remainder of the EPOD Note back to the
Company.


 


In the event that, notwithstanding the Company’s best efforts,
the Company has not been able to effect the assignment of its right, title and
interest in the EPOD Note to the Collateral Agent for the pro rata benefit of
the Buyers by January 15, 2009, then the Company shall, to the fullest extent
allowed under the terms of the EPOD Note, within thirty days of a written
request given by the Collateral Agent anytime thereafter that EPOD has not made
all  payments due under the terms of the EPOD Note, either (i) commence an
action in an appropriate state or federal court to collect all amounts past due
on the EPOD Note and use its best efforts to pursue such action through judgment
and collection, or (ii) execute an assignment of claims, whereby the Company
assigns to the Collateral Agent for the benefit of the Buyers its rights to
pursue a collection action against EPOD on the EPOD Note.  


 


(t)


   Lockbox Account.  


(i)


Lockbox Account.   By no later than
January 15, 2009, the Company shall enter into a standard Lockbox Agreement (as
defined below), in a form acceptable to the Buyers, with the Buyers and with a
reputable national bank. For purposes hereof,  
“Lockbox Agreement” shall mean an agreement between the Company, the
Buyers and a reputable national bank, whereby the bank (the “Lockbox
Agent”) agrees to receive payments directly from the Company’s
customers and payors, including but not limited to EPOD, agrees to process such
remittances and to deposit them directly into a specified account (the 
“Lockbox Account”) and agrees to sweep the
deposited funds into a Sweep Account, as described in subsection (iv) below.


(ii)


Lockbox Invoices to Customers.  The
Company agrees to deliver  instructions (each,  
“Lockbox Payment Instructions”) by not later than January 15, 2009,
to each of the Company’s existing customers requiring each customer to remit all
payments made to the Company on or after February 1, 2009 through and including
all payments made, or due to be made, to the Company for so long as any
Debentures remain outstanding, directly to the Lockbox Account and to deliver
such Lockbox Payment Instructions to EPOD requiring EPOD to make all future EPOD
Monthly Payments on the EPOD Note directly to the Lockbox Account (until such
time, if any, as the assignment of the EPOD Note to the Buyers has been
completed).  Furthermore, the Company agrees to send Lockbox Payment
Instructions to each future customer within five (5) Business Days of the
Company’s first contract or purchase order with the customer. Upon shipment of
product to a customer, the Company shall provide the customer with an invoice
requiring that payments on the receivables be remitted directly to the Lockbox
Account (each, a “Lockbox Invoice”).
The Company shall promptly provide each of the Buyers with a copy of each
Lockbox Payment Instruction and each Lockbox Invoice, together with evidence
that each has been delivered to the applicable customer, by not later than five
(5) Business Days of the date that such instructions are required to be
delivered to the applicable customer.  The parties agree and acknowledge that a
failure by the Company to timely provide Lockbox Payment Instructions and
Lockbox Invoices to any customer as required above, or a failure to provide the
Buyers with a copy of each Lockbox Payment Instruction and Lockbox invoice as
required above, shall constitute an Event of Default under the Debentures.


 


 


6



 


(iii)  Return of Misdelivered Funds to the Lockbox Account.
 In the event that, anytime on or after January 1, 2009, the Company shall
receive any payment from a customer or shall receive any payment from EPOD
(each, a  “Misdelivered Payment” and
collectively, “Misdelivered Payments”),
the Company shall hold such Misdelivered Payments in trust for the Buyers and
shall promptly, but in any event within two (2) business days of the date that
the Company received such funds, forward such Payments to the Lockbox Account
for processing.  The parties agree and acknowledge that a failure by the Company
to timely forward Misdelivered Payments to the Lockbox Account shall constitute
an Event of Default under the Debentures, shall constitute a breach of fiduciary
duties  and shall constitute an act of civil theft.


 


(iv)


          
Sweep of Funds from Lockbox.
 Simultaneously with the execution of the Lockbox Agreement, the Company shall
provide irrevocable instructions to the Lockbox Agent to sweep, on each Sweep
Date (as defined below) an amount of funds equal to the Sweep Amount (as defined
below) out of the Lockbox Account into a separate account (the  
“Sweep Account”)
controlled by the Collateral Agent (as defined in the Security Agreement).  The
parties  agree that the funds received into the Sweep Account shall be disbursed
to the Buyers (pro rata to each Buyer, based upon the principal amount of each
Buyer’s Debenture as of the date hereof) within two (2) business days of each
date that  funds are received into the Lockbox Account (each, a “Sweep Date”),
and such funds shall be applied first toward interest due on the Debentures,
next toward reduction of any due and unpaid Monthly Redemption Amounts (as
defined in the Debentures), next toward reduction of the principal amount of the
Debentures, until paid in full, and any remaining amounts shall be disbursed to
the Company.   For purposes
hereof, up through May 31, 2009, the “Sweep Amount” as of any Sweep Date shall
mean the difference of (x) 10% of all funds received into the Lockbox Account
from its inception up through a given Sweep Date, either directly or indirectly
from the company’s customers, plus 100% of all payments received into the
Lockbox Account from its inception up through a given Sweep Date, either
directly or indirectly from EPOD, minus (y) all amounts that have been swept out
of the Lockbox Account into the Sweep Account from the inception of the Lockbox
Account through the Sweep Date in question (collectively, the “Pre-May 31 Sweep
Amount”), and after May 31, 2009, the “Sweep Amount” as of any Sweep Date shall
mean the greater of (x) the aggregate amount of any Monthly Redemption Amounts
(as defined in the Debentures) that are then due and unpaid to any Buyers plus
the aggregate amount of any Interest (as defined in the Debentures) that is then
due and unpaid to any Buyers (collectively, the “Due Payment Amount”), and (y)
the Pre-May 31 Sweep amount as determined on the Sweep Date in question,
provided that in no event shall a Sweep Amount determined for a Sweep Date after
May 31, 2009 exceed the Due Payment Amount.


 


7




 


(c)  The portion of Section 9(b) of the SPA which currently reads
as follows:



 


With Copy to:


 


Andrew J. Merken, Esq.


Burns & Levinson LLP


125 Summer Street


Boston, Ma. 02110


Telephone:  617-345-3740  


Fax:  617-345-3299  


 


Is hereby amended and replaced with the following:


 


With Copy to:


 


Josef B. Volman, Esq.


Burns & Levinson LLP


125 Summer Street


Boston, Ma. 02110


Telephone:  617-345-3895


Fax:  617-345-3299  


 


Section 2.5


Amended and Restated Security Agreement.


 


The Security Agreement delivered pursuant to, and as defined in,
the SPA, is hereby amended and restated in the form attached hereto as 
Exhibit D.   


 


Section 2.6


Other Agreements.


 


(a) The Company agrees that it has at least 100,000,000
shares of common stock authorized, at least 35,000,000 of which are
currently reserved for issuance upon conversion of the Debentures and upon
exercise of the Warrants.  Promptly following the date
hereof (but in any event by not later than May 1, 2009), the Company will take
all corporate action necessary to authorize and reserve an additional number of
shares, including, without limitation, calling a special meeting of stockholders
to authorize additional shares obtaining stockholder approval of an increase in
such authorized number of shares, such that the number
of shares of Common Stock that are authorized and reserved for issuance upon the
conversion of the Debentures and upon the exercise of the Warrants is at least 
150,000,000 shares, which shares shall be reserved pro rata for each Buyer
based upon the Pro Rata Portion, as defined in Section 2.4(b) of this amendment
Agreement .


 


8




 


(b)  The Company shall deliver the original EPOD Note to the
Collateral Agent (as defined in the Security Agreement), along with any
necessary assignment documents, for the Collateral Agent to hold on behalf of
the Buyers as security for the debt owed under the Debentures.


 


(c) The Company and the Buyers agree that, for purposes of Rule
144(f), it is intended, understood and acknowledged that the Common Stock
issuable upon conversion of the Debenture, and upon an exercise of the Warrants
in a cashless exercise transaction, shall be deemed to have been acquired at the
time that the Debenture and the respective Warrants were originally issued,
notwithstanding the amendments to the Debentures and the Warrants described
herein.  Moreover, it is intended, understood and acknowledged that the holding
period for the Common Stock issuable upon exercise of the Debenture shall be
deemed to have commenced on the date the Debenture was originally issued and the
holding period for the Common Stock issuable upon exercise of the Warrants,
including but not limited to any Warrants evidenced by additional warrant
certificates issued to represent additional warrant shares pursuant to Section
2.2 hereof, in a cashless exercise transaction shall be deemed to have commenced
on the date that the Warrants were originally issued, notwithstanding the
amendments to the Debentures and the Warrants described herein.


 



(d)   For so long as any of the Debentures remain outstanding,
the Company shall not issue any Common Stock Equivalents to the extent that,
immediately following such issuance, the fully diluted number of shares that
would be issuable upon the full conversion of all of the Buyers’ outstanding
Debentures and the full exercise of all of the Buyers’ outstanding Warrants (in
each case, without regard to any applicable contractual restrictions on
conversion or exercise), in the aggregate, would be less than X% of the fully
diluted shares of the Company immediately following such issuance, where “X%”
shall equal 60% from the date hereof until December 15, 2010, shall equal 30%
from December 16, 2010 until December 15, 2011, and shall equal 0% thereafter.
 


 


 


ARTICLE III


REPRESENTATIONS AND WARRANTIES


 


Section 3.1    Representations
and Warranties of the Company


 


 The Company hereby represents and warrants to the Buyers that
as of the date of its execution of this Agreement:


 


9




 


(a) Authorization; Enforcement


 


  The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this
Agreement, and the amendments to the Transaction Documents (as defined in the
Securities Purchase Agreement) described herein, and otherwise to carry out its
obligations hereunder and thereunder.  The execution and delivery of this
Agreement and the amendments to the Transaction Documents (as defined in the
Securities Purchase Agreement) described herein, by the Company and the
consummation by it of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of such Company and no further
action is required by such Company, its board of directors or its stockholders
in connection therewith.  This Agreement has been duly executed by the Company
and, when delivered in accordance with the terms hereof will constitute the
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms except (i) as limited by general equitable principles
and applicable bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting enforcement of creditors’ rights generally,
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by applicable law.


 


(b) No Conflicts


 


  The execution, delivery and performance of this Agreement and
the amendments to the other Transaction Documents (as defined in the Securities
Purchase Agreement) by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not: (i) conflict with or
violate any provision of the Company’s certificate or articles of incorporation,
bylaws or other organizational or charter documents, or (ii) conflict with, or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, result in the creation of any lien upon any of
the properties or assets of the Company, or give to others any rights of
termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any material agreement, credit facility, debt or
other material instrument (evidencing Company debt or otherwise) or other
material understanding to which the Company is a party or by which any property
or asset of the Company is bound or affected, or (iii) conflict with or result
in a violation of any law, rule, regulation, order, judgment, injunction, decree
or other restriction of any court or governmental authority to which the Company
is subject (including federal and state securities laws and regulations), or by
which any property or asset of the Company is bound or affected.


 


 


(c) Authorization and Reservation Requirements. The
Company represents that it has at least 100,000,000 authorized shares of
Common Stock and that it has reserved (pro rata as to each Buyer, based upon the
initial principal amount of its Debenture) from its authorized and unissued
Common Stock at least 35,000,000 shares of Common Stock, free from
preemptive rights, to provide for the issuance of Common Stock upon the
conversion of the Debentures and to provide for the issuance of Common Stock
upon the exercise of the Warrants (as defined in the SPA).


 


10




 


(d) Other Representations, Warranties
and Covenants


 


The Company hereby represents and warrants to each Buyer that the
Company’s representations and warranties set forth in the SPA are true and
correct as of the date hereof in all material respects.


 


(e)   Perfection of Liens on Patents.  The Company hereby
represents and warrants to each Buyer that the Company has made all necessary
filings in all appropriate jurisdictions to fully perfect the Buyers’ security
interests in all of the United States patents and patents pending owned by the
Company or any of its subsidiaries, as reflected in the Notices of Recordation
with the United States Patent and Trademark Office, dated June 23, 2008 and June
24, 2008, respectively, each of which is attached hereto as Composite Exhibit
E.


 


(f)     Capitalization Table and Debt Table.  The Company
hereby represents and warrants to each Buyer that the Company’s capitalization
as of the date hereof is as described in the capitalization table attached
hereto as Schedule 3.1(f-1) and that all of the Company’s outstanding
indebtedness is accurately described in the table of indebtedness attached
hereto as Schedule 3.1(f-2).


 


Section 3.2    Representations
and Warranties of the Buyers


 


  The Buyer hereby makes the representations and warranties set
forth below to the Company that as of the date of its execution of this
Agreement:


 


(a) Due Authorization. Such Buyer represents and warrants
that (i) the execution and delivery of this Agreement by it and the consummation
by it of the transactions contemplated hereby have been duly authorized by all
necessary action on its behalf and (ii) this Agreement has been duly executed
and delivered by such Buyer and constitutes the valid and binding obligation of
such Buyer, enforceable against it in accordance with its terms, except (i) as
limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may be
limited by applicable law.


 


11



 


ARTICLE IV


MISCELLANEOUS


 


Section 4.1    Notices  


 


Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be made in accordance with
the provisions of the SPA.


 


Section 4.2    Survival


 


 All warranties and representations (as of the date such
warranties and representations were made) made herein or in any certificate or
other instrument delivered by it or on its behalf under this Agreement shall be
considered to have been relied upon by the parties hereto and shall survive the
transactions contemplated hereby. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties;
provided however that no party may assign this Agreement or the obligations and
rights of such party hereunder without the prior written consent of the other
parties hereto.


 


Section 4.3    Counterparts;
Signatures By Facsimile


 


 This Agreement may be executed in one or more counterparts, all
of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party. This Agreement, once executed by a party, may be delivered to the
other party hereto by facsimile transmission of a copy of this Agreement bearing
the signature of the party so delivering this Agreement.


 


Section 4.4


                        
Severability


 


 If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement or the
validity or enforceability of this Agreement in any other jurisdiction. 


 


 


Section 4.5


                         Filing of Form 8-K  


 


Within 4 Trading Days of the date hereof, the Company shall issue
a Current Report on Form 8-K, reasonably acceptable to each Buyer disclosing the
material terms of the transactions contemplated hereby, which shall include this
Agreement, and the schedules hereto, as an attachment thereto.  Each Buyer
undertakes to provide approval or final comments within two (2) business days of
being presented with a draft of the Company’s current report on Form 8-K.


 


Section 4.6   Entire Agreement  


 


The Agreement, together with the exhibits and schedules thereto,
contain the entire understanding of the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, oral or
written, with respect to such matters, which the parties acknowledge have been
merged into such documents, exhibits and schedules.


 


12



 


Section 4.7   Construction


 


 The headings herein are for convenience only, do not constitute
a part of this Agreement and shall not be deemed to limit or affect any of the
provisions hereof.  The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party.


 


Section 4.8    Independent
Nature of Buyers’ Obligations and Rights


 


 The obligations of each Buyer hereunder are several and not
joint with the obligations of any other Buyers hereunder, and no Buyer shall be
responsible in any way for the performance of the obligations of any other Buyer
hereunder. Nothing contained herein or in any other agreement or document
delivered at any closing, and no action taken by any Buyer pursuant hereto,
shall be deemed to constitute the Buyers as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption that the
Buyers are in any way acting in concert with respect to such obligations or the
transactions contemplated by this Agreement. Each Buyer shall be entitled to
protect and enforce its rights, including without limitation the rights arising
out of this Agreement, and it shall not be necessary for any other Buyer to be
joined as an additional party in any proceeding for such purpose.


   


Section 4.9



                          Further Assurances  


Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.


Section 4.10     


                           No Strict Construction  


The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party.


Section 4.11    Effect
on the SPA 


The foregoing consents and waivers are given solely in respect of
the transactions described herein. Except as expressly set forth herein, all of
the other terms and conditions of the Transaction Documents shall continue in
full force and effect after the execution of this Agreement, and shall not be in
any way changed, modified or superseded by the terms set forth herein. 


 


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Section 4.12


Governing Law


 


 All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be determined pursuant to
the Governing Law provision of the SPA.

 

 


IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.


 


 


ICP SOLAR TECHNOLOGIES, INC.,


 


 


 By:


_______________________________


 


Name:


 


Title:


 


 


[BUYER SIGNATURE PAGES COMMENCE ON THE NEXT PAGE]

 

 
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BUYER SIGNATURE PAGES


TO


 ICP SOLAR TECHNOLOGIES, INC., 
AMENDMENT  AGREEMENT


 DATED DECEMBER 31 2008


 


 


IN WITNESS WHEREOF, the undersigned
have caused this Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.

 


Name of Buyer:
________________________________________________________________


 


Signature of Authorized Signatory of Buyer:
__________________________________________


 


Name of Authorized Signatory:
____________________________________________________


 


Title of Authorized Signatory:
_____________________________________________________


 


Email Address of Buyer:
_________________________________________________________


 


Address for Notice of Buyer:


 

 
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