CONSENT AND WAIVER AGREEMENT
THIS
CONSENT AND WAIVER AGREEMENT (the "Agreement") is made
and entered into on November 2, 2009, by and between Master Silicon
Carbide Industries, Inc. (formerly known as Paragon Semitech USA, Inc.), a
Nevada corporation (the “Company”), and the
holders of the Company’s Series A Preferred Stock, as defined below, listed on
the signature pages below (collectively, the “Holders”).
RECITALS
A. On
or about September 2, 2008, Master Silicon Carbide Industries, Inc., a Delaware
corporation (“MSCI
Delaware”) and the Holders entered into a certain Stock Purchase
Agreement (the "2008
Stock Purchase Agreement") pursuant to which the Holders purchased from
MSCI Delaware a total of 996,186 shares of Series A Convertible Preferred Stock,
par value $0.001 per share (the "Series A Preferred
Stock") and warrants to purchase an aggregate of 2,490,465 shares of the
Common Stock of MSCI Delaware (the “Warrants”). The
rights, preferences and privileges of the Series A Preferred Stock are set forth
in the Certificate of Designation attached as an exhibit to the 2008 Stock
Purchase Agreement (the “Series A
COD”).
B. On
or around September 21, 2009, MSCI Delaware and the Holders entered into that
certain Note Purchase Agreement (the "2009 Stock Purchase
Agreement"), pursuant to which the Holder purchased from the Company a
promissory note in principal amount of $10,000,000, which will be automatically
converted into 920,267 shares of Series B Preferred Stock of the Company (the
"Series B Preferred
Stock") within three business days of the Reincorporation, as defined
below. The rights, preferences and privileges of the Series B
Preferred Stock are set forth in the Certificate of Designation attached
hereto (the “Series B COD”) as
Exhibit A.
C. On
or around November 2, 2009, MSCI Delaware merged into the Company and all
outstanding Common Stock and Series A Preferred Stock of MSCI
Delaware were automatically converted into the Common Stock and Series A
Preferred Stock of the Company (the “Reincorporation”).
D. The
Holders are the current owners of all of the outstanding Series A Preferred
Stock of the Company.
E. The
Series A COD provides that any equity security of any kind which the Company or
any subsidiary shall at any time issue or be authorized to issue shall be junior
to the Series A Preferred Stock as to payment of dividends and amounts payable
on liquidation. Under the Series B COD, the Series B Preferred Stock
ranks on a parity with the Series A Preferred Stock as to payment of amounts
payable on liquidation and if the assets of the Company are insufficient to pay
in full such amounts, then the entire assets to be distributed shall be
distributed among the holders of Series A Preferred Stock and Series B Preferred
Stock ratably in accordance with the respective amounts that would otherwise be
payable on such shares. The Series A COD provides that the consent of all of the
Holders is required in order to issue any securities that rank on a parity with
the Series A Preferred Stock as to dividends or upon liquidation, dissolution or
winding up.
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants of the parties contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Consent of
Holders. The
Holders hereby consent to issuance by the Company of the Series B Preferred
Stock in accordance with its terms as set forth in the Series B COD and agree
that that the Series B Preferred Stock shall rank on a parity with the Series A
Preferred Stock as to payment of amounts payable in liquidation and if the
assets of the Company are insufficient to pay in full such amounts, then the
entire assets to be distributed to the holders of Series A Preferred Stock and
Series B Preferred Stock shall be distributed among such
holders ratably in accordance with the respective amounts that would
be otherwise be payable on such shares.
2. Miscellaneous
Provisions.
2.1 Binding
Effect. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors, and assigns. Each party shall notify its
respective transferees or assignees that this Agreement is in effect. Each party
shall notify the other in writing of any such assignment or
transfer.
2.2
Waiver. Failure of any party at any
time to require performance of any provision of this Agreement shall not limit
such party’s right to enforce such provision, nor shall any waiver of any breach
of any provision of this Agreement constitute a waiver of any succeeding breach
of such provision or a waiver of such provision itself.
2.3
Amendment. This
Agreement may not be modified or amended except by the written agreement of the
parties. No attempted waiver of any provision of this Agreement shall be binding
unless in writing and signed by the party to be bound.
2.4
Severability. If
any term or provision of this Agreement or the application thereof to any person
or circumstance shall to any extent be held invalid or unenforceable, the
remainder of this Agreement and the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby, and each term or provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by
law.
2.5
Integration.
This Agreement contains the entire agreement and understanding of the
parties with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements among them with respect to such
matters.
2.6 Governing
Law. This Agreement shall be governed by and
construed in accordance with the laws of the state of New York without reference
to conflict of laws principles.
2.7 Construction and
Interpretation. The headings or titles of the
sections of this Agreement are intended for ease of reference only and shall
have no effect whatsoever on the construction or interpretation of any provision
of this Agreement. All provisions of this Agreement have been negotiated at arms
length, each party having legal counsel, and this Agreement shall not be
construed for or against any party by reason of the authorship or alleged
authorship of any provision hereof, notwithstanding that each party may have
signed a separate signature page. The language in this Agreement shall be
construed as to its fair meaning and not strictly for or against any
party.
2.8
Counterparts. This Agreement may be
executed in one or more counterparts, all of which taken together shall
constitute one and the same instrument, notwithstanding that one or more parties
may have signed a separate signature page.
2.9 No Third Party
Beneficiaries. This Agreement and the terms and
provisions hereof are solely for the benefit of the parties hereto and their
respective successors and permitted assigns and shall not in any way benefit any
other person.
[Signature
Page Follows]
IN WITNESS WHEREOF, the
parties have executed this Consent and Waiver Agreement as of the date first
above written.
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By:
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/s/ Xxxx X. Xxxxx
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Name:
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Xxxx
X. Xxxxx
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Title:
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Chief
Executive Officer and President
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HOLDERS:
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NEW
WORLD POWER, LLC
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By:
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/s/ Xxxx X. Xxxxx
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Name:
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Xxxx
X. Xxxxx
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Title:
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Member
and Manager
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VICIS
CAPITAL MASTER FUND
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By:
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/s/ Xxxxxxx Xxxxxxxx
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Name:
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Xxxxxxx
Xxxxxxxx
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Title:
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Member
and COO
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By:
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/s/ Xxxx X. Xxxxxxx
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Xxxx
X. Xxxxxxx
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By:
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/s/ Xxxxx Xxx
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Xxxxx
Xxx
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By:
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/s/ Xxxx Xxxx
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Xxxx
Xxxx
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EXHIBIT
A
CERTIFICATE
OF DESIGNATION
OF
SERIES
B CONVERTIBLE PREFERRED STOCK
