CONSENT,
WAIVER AND AMENDMENT
THIS
CONSENT, WAIVER AND AMENDMENT (this
“ Agreement ”) , dated as of
January 28, 2009, is entered into by and among Celsia Technologies,
Inc., a Nevada corporation (the “ Company
”), and the persons identified as “Holders” on
the signature pages hereto (the “ Holders
”). Defined terms not otherwise defined herein
shall have the meanings set forth in the Existing Purchase
Agreement (as defined below).
WHEREAS,
pursuant
to a Securities Purchase Agreement, dated May 25, 2007 (the “
Existing Purchase Agreement ”), among the
Company and the Holders, the Holders were issued an aggregate of
$8,897,783 in principal amount of 8% Secured Convertible Debentures
due May 25, 2010, as amended on March 26, 2008 (the “
Existing Debentures ”) and were issued warrants
(the “ Existing Warrants ”) exercisable
for shares of Common Stock of the Company.
WHEREAS
,
pursuant to a Securities Purchase Agreement dated on or about the
date hereof in the form attached as Exhibit A hereto (the
“ New Purchase Agreement ”) among the
Company and the purchasers identified on the signature pages
thereto (collectively, the “ New Investors
”), the New Investors will be purchasing debentures (the
“ New Debentures ”) together with
warrants exercisable for shares of common stock for an aggregate
purchase price of up to $2,000,000 (the offer and sale of such
debentures and warrants pursuant to the New Purchase Agreement are
hereafter referred to as the “ New Financing
”).
WHEREAS
, the
Company desires to obtain acknowledgements, waivers and consents
from the Holders with respect to certain provisions and other
matters contained in the Transaction Documents (as defined herein)
to ensure the consummation of the New Financing any other
transactions related thereto.
NOW
THEREFORE , for
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, each Holder hereby agrees as
follows:
(a) Subject
to the terms and conditions hereunder, each Holder hereby waives
the restrictions set forth in Sections 7(a) and 7(b) of the
Existing Debentures with respect to the issuance of the New
Debentures and granting the New Investors a lien pursuant to the
security agreement attached as an exhibit to the New Purchase
Agreement. Further, subject to the terms and conditions
hereunder, to the extent required under the Existing Purchase
Agreement, each Holder signatory hereto hereby consents to the New
Financing.
(b) Subject
to the terms and conditions herein, each Holder hereby waives any
and all rights such holder was granted under the Security Agreement
and the Existing Debentures, including, without limitation,
pursuant to Section 8 of the Security Agreement and Section 8 of
the Existing Debentures, to exercise any rights or remedies
conferred upon such holder thereunder solely in connection the
Company’s relocation of its engineering and pilot line
facilities and the Collateral incidental thereto (the “
Transferred Assets ”) from Korea to
Taiwan.
(c) Notwithstanding
anything to the contrary contained in any of the Transaction
Documents, each undersigned Holder hereby consents to the Company
and Celsia Technologies Taiwan, Inc. entering into and delivering
the trust agreement with Chinatrust Commercial Bank
attached hereto as Exhibit B (the “ Trust
Agreement ”), for the purpose of securing the
obligations of the Company to the undersigned with respect to the
Transferred Assets pursuant to the Security Documents and the
Debentures.
(d) Each
undersigned Holder hereby acknowledges that Midsummer Ventures,
L.P., a limited partnership organized and existing under the laws
of Bermuda (“ Midsummer ”), acting on
behalf of and for the benefit of the undersigned is hereby
authorized to send the payments due and payable to the undersigned
as contemplated by Section 5.1.1 of the Trust Agreement to the bank
account set forth in the wire instructions on the signature page
hereto. Further, the undersigned hereby designates
Midsummer as collateral agent under the Trust Agreement, and
acknowledges and agrees that Midsummer’s rights,
responsibilities and immunities as collateral agent thereunder
shall be as set forth in Annex B to the Security
Agreement.
(e) Each
Holder hereby waives any and all rights such Holder was granted
under Section 4.13(b) of the Existing Purchase Agreement, to
receive the Pre-Notice (as defined in the Existing Purchase
Agreement) from the Company in connection with New
Financing.
(a) The
exercise price of the Existing Warrants held by each Holder that
invests in the New Financing (each, a “ Participating
Holder ”) in an amount equal to the lesser of
$250,000 or the individual amounts set forth on Schedule A
hereto (but not the exercise price of Existing Warrants held by
Holders that do not participate in the New Financing (each, a
“ Non-Participating Holder ”) is hereby
amended and reduced to $0.10 per share, and the aggregate number of
shares of Common Stock underlying such warrants is hereby increased
in the individual amounts set forth on Schedule A hereto,
each subject to further adjustment therein.
(b) The
date in the definition of “Maturity Date” in the first
sentence of the second paragraph of the Existing Debentures which
reads “May 25, 2010” is hereby amended and replaced
with “December 31, 2010”.
(c) The
conversion price of the Existing Debentures held by each
Participating Holder (but not the conversion price of the Existing
Debentures held by a Non-Participating Holder) is hereby amended
and reduced to $0.10, subject to further adjustment
therein.
(d) The
definition of “Change of Control Redemption Amount” in
Section 1 of the Existing Debentures held by each Participating
Holder is hereby amended and replaced in its entirety with the
following:
““
Change of Control Redemption Amount ” shall equal the
sum of (i) 400% of the then outstanding principal amount of this
Debenture, plus all accrued and unpaid interest thereon, plus (ii)
all other amounts, costs, expenses and liquidated damages due in
respect of this Debenture.”
