WAIVER AGREEMENT
THIS WAIVER AGREEMENT (this
“Waiver”) is
made and entered into as of August 15, 2008, among PSi TECHNOLOGIES, INC., (the
“Company”),
PSi TECHNOLOGIES HOLDINGS,
INC., (“Holdings”) and XXXXXXX XXXXX GLOBAL EMERGING
MARKETS PARTNERS, LLC (“MLGEMP”).
RECITALS:
A. The
Company has issued that certain Exchangeable Senior Subordinated Note, dated as
of June 2, 2005 (as amended, restated, supplemented or otherwise modified from
time to time, the “Note”) for the
benefit of MLGEMP.
B. In
connection with the Note, the Company, Holdings and MLGEMP entered into (i) that
certain Purchase Agreement, dated as of June 2, 2005 (the “Purchase Agreement”)
and (ii) that certain Exchange Agreement, dated as of June 2, 2005 (the “Exchange Agreement”
and, together with the Note and the Purchase Agreement, the “2005
Documents”).
C. Concurrently
with this Waiver, (i) the Company and MLGEMP are entering into that certain
Third Amendment to Exchangeable Senior Subordinated Note, dated as of the date
hereof (the “2003 Note
Amendment”) and (ii) the Company, Holdings and MLGEMP are entering into
that certain Amended and Restated Exchange Agreement, dated as of the date
hereof (the “Amended
Exchange Agreement”, together with the 2003 Note Amendment, the “2003 Amendment
Documents”).
D. The
Company and Holdings are now requesting that MLGEMP waive the Event of Default
(as hereinafter defined), which the Lender is willing to do on the terms and
conditions provided for herein.
In
consideration of the premises herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties, intending to be legally bound, agree as follows:
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1.
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Waiver. Subject
to the conditions and upon the terms set forth in this Waiver, MLGEMP
hereby waives the event of default that will or may arise as of the date
hereof as a result of Holdings’ failure to comply with Section 4(a)(ii),
Section 4(a)(iii) and Section 6(a) of the Exchange Agreement (the “Event of
Default”) upon entering into or performance of the Amended Exchange
Agreement (but only to the extent such Event of Default relates to a
deficiency in the number of shares of authorized but unissued Common Stock
available to satisfy an Exchange Right (as defined in the Exchange
Agreement) following satisfaction of an Exchange Right (as defined in the
Amended Exchange Agreement)); provided, that, such waiver shall be in
effect only for so long as Holdings is in compliance with its obligations
under Section 6(a)(ii) of the Amended Exchange
Agreement.
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2.
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Continuing Effect; No
Other Waivers. Except as expressly waived hereby, all of
the terms and provisions of the 2005 Documents are and shall remain in
full force and effect.
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The
waiver provided for herein is limited to the extent specified herein and
shall not constitute a waiver of, or an indication of MLGEMP’s willingness
at any other time to waive any other provisions of, the 2005
Documents.
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3.
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Severability. Any
provision of this Waiver held by a court of competent jurisdiction to be
invalid or unenforceable shall not impair or invalidate the remainder of
this Waiver and the effect thereof shall be confined to the provision so
held to be invalid or
unenforceable.
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4.
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Successors and
Assigns. This Waiver is binding upon and shall inure to
the benefit of the Company, Holdings and MLGEMP and their respective
successors and assigns.
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5.
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Governing
Law. This Waiver will be governed by, and construed in
accordance with, the laws of the State of New York. In any
action or proceeding arising out of, related to, or in connection with
this Waiver, the Company and Holdings consent to be subject to
the jurisdiction and venue of (a) the Supreme Court of the State of New
York in and for the County of New York, and (b) the United States District
Court for the Southern District of New York. The Company and
Holdings consent to the service of process in any action commenced
hereunder by any method or service acceptable under federal law or the
laws of the State of New York.
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6.
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WAIVER OF JURY
TRIAL. THE COMPANY, HOLDINGS AND MLGEMP HEREBY WAIVE, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THEY MAY HAVE TO
A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF UNDER OR, IN CONNECTION WITH THIS
WAIVER.
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7.
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Headings
Descriptive. The headings of the several sections and
subsections of this Amendment are inserted for convenience only and shall
not in any way affect the meaning or construction of any provision of this
Waiver.
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8.
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Counterparts. This
Waiver may be executed in two or more counterparts, each of which shall
constitute an original but all of which when taken together shall
constitute but one contract. Delivery of an executed
counterpart of a signature page to this Waiver by telecopy shall be as
effective as delivery of a manually executed counterpart of this
Waiver.
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[REMAINDER
OF PAGE LEFT INTENTIONALLY BLANK]
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IN
WITNESS WHEREOF, the parties hereto have caused this Waiver to be duly executed
by their respective authorized officers as of the day and year first above
written.
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XXXXXXX
XXXXX GLOBAL EMERGING
MARKETS
PARTNERS, LLC
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By:
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Xxxxxxx Xxxxx Global Emerging Markets Partners, L.P., as its Managing Member | |||
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By:
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Xxxxxxx Xxxxx Global Capital, L.L.C., as its General Partner | |||
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By:
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Xxxxxxx Xxxxx Global Partners, Inc., as its Managing Member | |||
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By: | /s/ | ||
| Name: | ||||
| Title: | ||||
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PSI
TECHNOLOGIES HOLDINGS, INC.
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By: | /s/ | ||
| Name: | Xxxxxx X. Xxxxx, Xx. | |||
| Title: | Chairman of the Board and Chief | |||
| Executive Officer | ||||
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PSI
TECHNOLOGIES, INC.
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By: | /s/ | ||
| Name: | Xxxxxx X. Xxxxx, Xx. | |||
| Title: | Chairman of the Board and Chief | |||
| Executive Officer | ||||
