WAIVER AND CONSENT SILICA TECH, LLC
SILICA
TECH, LLC
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1.
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Membership. The
undersigned (“Investor”) represents
that it is a member of Silica Tech, LLC, a Connecticut limited liability
company (the “Company”) which is
governed by the limited liability company agreement dated as of August 25,
2008, as amended (the “LLC
Agreement”). Investor’s capital account in the Company
as of the date hereof is set forth on Exhibit
A.
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2.
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Consent to
Conversion. The undersigned acknowledges that the
Company intends to convert the Company into a Delaware corporation
pursuant to the Delaware General Corporate Law (such conversion being the
“Conversion” and
such successor entity being the “Corporation”) and to
file a registration statement on Form S-1. In connection
therewith, Investor hereby irrevocably consents to the Conversion and the
S-1 filing on the following terms and conditions and agrees that such
conversion is fair and in the best interests of the Company and the
Company’s members:
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a.
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The
Company will effect the Conversion at a Company valuation of USD
$20,000,000 and that the Corporation will issue a total of 13,333,333
shares of the Corporation’s common stock (“Common Stock”)
(including common stock issuable upon conversion of preferred stock, if
any) in exchange for all outstanding membership interests in the Company,
for a per share valuation of USD $1.50 per share (the “Conversion
Price”);
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b.
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Accordingly,
pursuant the Conversion, Investor’s membership interest in the Company
shall be converted into the number of shares of Common Stock set forth on
Exhibit
A;
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c.
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To
effect the Conversion, the Company shall have the right to issue a
different number of aggregate shares in exchange for such interests,
adjusting the Conversion Price and number of shares received by Investor
pro rata, while
retaining the same total valuation and Investor’s proportionate interest
as of the date hereof;
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d.
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The
Corporation shall issue to Investor warrants to purchase the number of
shares of the Corporation’s common stock specified on Exhibit A as
shares issuable upon exercise of warrants, with a per share exercise price
which is equal to the Conversion Price (the “Warrants”), provided, however, that
in the event that the Conversion Price is not equal to USD $1.50, the
warrants shall instead entitle the holder to purchase such number of
shares which when multiplied by the Conversion Price shall equal 15% of
Investor’s investment amount; and
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e.
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All warrants shall
expire on the third anniversary of the date of issue and shall contain
customary terms and
conditions;
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3.
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Waiver. Without
limitation, in connection with the Conversion, Investor hereby waives any
proprietary rights to preferential payments, priority or other rights set
forth in the LLC Agreement, the Company’s offering memorandum, or the
subscription agreement between the company and Investor, and affirms that
the Conversion and the issuance of the Warrants to the Investor, together
with other good and valuable consideration, constitute sufficient
consideration for Investor’s consent and waiver
hereunder.
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4.
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Entire
Agreement. This document contains the entire agreement
of the parties with respect to the subject matter hereof, and shall
supersede any and all other
agreement.
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5.
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Cooperation. Investor agrees to execute any and all other
documents, and to take any other action or corporate proceedings, which
may be necessary or desirable to effect the
Conversion.
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6.
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Governing Law and Dispute
Resolution. This Waiver and Consent shall in all respects be
governed by and construed in accordance with, the laws of the State of
Delaware. Any controversy, claim or dispute arising out of or
relating to the construction, interpretation, performance, breach,
termination, enforceability or validity of this Agreement or the
arbitration provisions contained herein, including without limitation the
determination of whether a party has waived its rights to arbitration
hereunder or the enforceability of the arbitration provisions hereunder,
shall be determined by arbitration in accordance with the rules of the
American Arbitration Association. The arbitration shall take
place in New York, New York.
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7.
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Release. In
respect of the above consideration, Investor, for itself and its
executors, agents, administrators and representatives, hereby voluntarily,
irrevocably and unconditionally releases, acquits and forever discharges
the Company and Silica Tech Holdings LLC, its present sole manager, and
its present and former subsidiaries, affiliates and divisions, and their
respective present and former officers, directors, employees,
shareholders, consultants, attorneys, advisors, agents, successors and
representatives, and all persons acting by, through, under or in concert
with any of them, and any successors and assigns (whether any of the
aforementioned individuals were acting as agents for the Company or its
subsidiaries, affiliates or divisions, or in their individual capacities)
(collectively, the “Released Parties”) from
any and all claims, demands, and causes of action which Investor or its
heirs, executors, administrators or personal representatives now have,
ever had or may hereafter have, whether known or unknown, suspected or
unsuspected, in each case to the extent relating to the consummation of
the Conversion, other than with respects to enforcement of the rights of
Investor described herein as rights of Investor in connection with the
Conversion.
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8.
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REPRESENTATION
BY COUNSEL. INVESTOR ACKNOWLEDGES THAT INVESTOR HAS BEEN REPRESENTED BY
SUCH LEGAL AND TAX COUNSEL AND OTHER PROFESSIONALS, EACH OF WHOM HAS BEEN
PERSONALLY SELECTED BY INVESTOR, AS INVESTOR HAS FOUND NECESSARY TO
CONSULT CONCERNING THE TERMS AND CONDITIONS SET FORTH HEREIN, AND SUCH
REPRESENTATION HAS INCLUDED AN EXAMINATION OF ALL APPLICABLE DOCUMENTS AND
AN ANALYSIS OF ALL TAX, FINANCIAL, AND SECURITIES LAW ASPECTS THEREOF
DEEMED TO BE NECESSARY. INVESTOR, TOGETHER WITH INVESTOR’S COUNSEL,
INVESTOR’S ADVISORS, AND SUCH OTHER PERSONS, IF ANY, WITH WHOM INVESTOR
HAS FOUND IT NECESSARY OR ADVISABLE TO CONSULT, HAVE SUFFICIENT KNOWLEDGE
AND EXPERIENCE IN BUSINESS AND FINANCIAL MATTERS TO EVALUATE THE TERMS AND
CONDITIONS SET FORTH IN THIS WAIVER AND CONSENT TO MAKE AN INFORMED
INVESTMENT DECISION WITH RESPECT
THERETO.
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ALTERNATIVELY,
INVESTOR HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL AND ADVISORS AND HAS
DECLINED TO DO SO. INVESTOR HAS BEEN GIVEN THE OPPORTUNITY FOR A REASONABLE TIME
PERIOD PRIOR TO EVALUATE THIS WAIVER AND CONSENT AND ASK QUESTIONS OF THE
COMPANY IN CONNECTION THEREWITH.
[REMAINDER
INTENTIONALLY BLANK]
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IN
WITNESS WHEREOF, Xxxxxxxx has executed this Waiver and Consent as of the date
set forth below.
[Investor
Name]
____________________
Date:___________
Investor
Address:
____________________
____________________
____________________
____________________
Silica
Tech, LLC xxxxxx agrees to provide the consideration described hereunder to
Investor pursuant to the terms and conditions set forth herein.
SILICA
TECH, LLC
/s/
Xxxxxx Xxxxxxxx
By:
Managing Director
Date:
10/22/08
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Exhibit
A
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Investor
Name:
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Investment
Amount
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$
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$
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Number
of Shares of Common Stock to be received by Investor at the
Conversion:
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Round
of Investment in which
Investor
Participated:
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Amount
of Investor Premium:
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$
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Timing
of Premium Payment:
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Total
Number of Shares issuable upon exercise of Investor’s
Warrants:
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