VOTING AGREEMENT
This
Voting Agreement (this “Agreement”)
is entered into as of May 30, 2007, by and among Orion Ethanol, Inc., a Nevada
corporation (“Orion”),
OEI Acquisition Sub, Inc., a Delaware corporation and Orion’s wholly-owned
subsidiary (“OEI”),
GreenHunter Energy, Inc., a Delaware corporation (“GreenHunter”)
and Investment Hunter, LLC, a Delaware limited liability company (“Stockholder”).
Orion, OEI, GreenHunter and Stockholder are sometimes referred to herein as
the
“Parties”.
PRELIMINARY
STATEMENT
WHEREAS,
Orion, OEI and GreenHunter are parties to that certain Agreement and Plan of
Merger dated of even date herewith (the “Merger
Agreement”)
providing for, among other things, the merger (the “Merger”)
of OEI with and into GreenHunter and the conversion of the shares of capital
stock of GreenHunter outstanding at the time of the Merger (“Shares”)
into the right to receive capital stock of Orion, plus cash in lieu of
fractional shares. As an inducement to Orion, OEI and GreenHunter to enter
into
the Merger Agreement, Stockholder has agreed to enter into this
Agreement.
Accordingly,
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties agree as follows:
1. Agreements
Related to the Shares.
1.1 Vote
of Independent Investors.
The Parties acknowledge and agree that pursuant to Section
5.18
of the Merger Agreement, GreenHunter has agreed to use its best efforts to
cause
West Coast Opportunity Fund, LLC, Centaur Value Fund L.P. and United Centaur
Master Fund (collectively, the “Independent
Investors”)
(a) to vote, or to cause to be voted, all Shares that are owned or held,
beneficially or otherwise, by all such Independent Investors in favor of (or
to
grant, or to cause to be granted, consents with respect to such Shares for)
the
recommendation made by the Board of Directors of GreenHunter with respect to
the
adoption and approval of the Merger Agreement and the Merger at every meeting
of
stockholders of GreenHunter (or any solicitation of consents in lieu thereof)
at
which such matters are considered and at every adjournment or postponement
thereof; and (b) to vote, or to cause to be voted, all Shares that are owned
or
held, beneficially or otherwise, by all such Independent Investors (or to
withhold, or to cause to be withheld, consents with respect to such Shares),
in
accordance with the recommendation of the Board of Directors of GreenHunter,
on
any proposal that would compete or interfere with, or that would in any way
delay or otherwise inhibit the timely consummation of, the Merger and the other
transactions contemplated by the Merger Agreement.
1.2 Vote
of Stockholder.
To the extent that the Independent Investors vote or cause to be voted all
Shares that are owned or held, beneficially or otherwise, by all such
Independent Investors in accordance with Section 1.1 above, Stockholder agrees
(a) to vote or to cause to be voted a proportionately equivalent number of
Shares that are owned or held, beneficially and/or otherwise, by Stockholder
in
a manner and percentage identical to the vote cast by all other holders of
GreenHunter capital stock entitled to vote in connection with the Merger
Agreement and the Merger at every meeting of stockholders of GreenHunter (or
any
solicitation of consents in lieu thereof) at which such matters are considered
and at every adjournment or postponement thereof; and (b) to vote or to cause
to
be voted a proportionately equivalent number of Shares that are owned or held,
beneficially and/or otherwise, by Stockholder (or to withhold or to cause to
be
withheld consents with respect to such shares), in accordance with the
recommendation of the Board of Directors of GreenHunter, on any proposal that
would compete or interfere with, or that would in any way delay or otherwise
inhibit the timely consummation of, the Merger and the other transactions
contemplated by the Merger Agreement.
1.3 No
Voting Trusts or Transfers.
Stockholder will not, and will not permit any person with any voting or
dispositive power over the Shares owned or held by Stockholder to: (a) deposit
any Shares beneficially owned by it in a voting trust or subject any Shares
to
any arrangement with respect to the voting of such Shares other than this
Agreement ; (b) sell, assign, pledge, xxxxx x xxxx on, or security interest
in,
or otherwise transfer any of its interests in, any Shares to any person; or
(c)
take any action that would make any representation or warranty of Stockholder
contained herein untrue or incorrect or have the effect of limiting, preventing
or disabling Stockholder from performing its obligations under this
Agreement.
1.4 Joinder
Agreement.
GreenHunter agrees that any person who is not a party to this Agreement and
who
acquires Shares after the date hereof, shall, upon consummation of, and as
a
condition precedent to the consummation of, such acquisition, execute and agree
to be bound by terms of this Agreement and shall thereafter be deemed a
Stockholder, with all of the obligations of Stockholder for all purposes of
this
Agreement.
1.5 Irrevocable
Proxy.
At the written request of Orion, Stockholder will appoint or will cause to
be
appointed the Chief Executive Officer of GreenHunter (the “Proxy
Holder”)
as its true and lawful attorney and proxy, in the name, place and stead of
Stockholder, to vote (in a manner and number consistent with this Agreement)
as
the proxy of Stockholder, the Shares beneficially owned by Stockholder at any
and all meetings of Stockholders of GreenHunter, or any adjournments thereof,
at
which votes of GreenHunter’s stockholders will be taken in connection with the
Merger or in connection with any proposal that would compete or interfere with,
or that would in any way delay or otherwise inhibit the timely consummation
of,
the Merger and the other transactions contemplated by the Merger Agreement,
giving and granting to such designated Proxy Holder all the powers Stockholder
would possess if personally present. Such appointment also will authorize such
Proxy Holder to execute (or to withhold) one or more written consents solicited
in lieu of any such meeting of stockholders of GreenHunter. Such proxy is
coupled with an interest and will be irrevocable until the date on which this
Agreement terminates.
2. Representations
and Warranties of Stockholder.
Stockholder represents and warrants to Orion, OEI and GreenHunter
that:
2.1 Due
Authority.
Stockholder has all requisite corporate power and authority and has taken all
corporate action necessary in order to execute and deliver, and to perform
its
obligations under this Agreement. This Agreement has been duly executed and
delivered by or on behalf of Stockholder and is a valid and binding agreement
of
Stockholder enforceable against it in accordance with its terms, subject, as
to
enforcement, to laws relating to or affecting generally the enforcement of
creditors rights, including, without limitation, bankruptcy and insolvency
laws
and to general principles of equity.
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2.2 No
Conflict; Consents.
The execution and delivery of this Agreement by Stockholder does not, and the
performance by Stockholder of the obligations under this Agreement and the
compliance by Stockholder with the provisions hereof does not, (i) conflict
with
or violate any law, statute, rule, regulation, order, writ, judgment or decree
applicable to Stockholder or any Shares directly or indirectly owned or held
by
Stockholder; (ii) conflict with or violate Stockholder's certificate of
formation, limited liability company agreement, charter, bylaws, partnership
agreement, trust agreement or other similar organizational documents; or (iii)
result in any breach of or constitute a default (or an event that with notice
or
lapse of time or both would become a default) under, or grant to others any
rights of termination, amendment, acceleration or cancellation of, or result
in
the creation of a lien or encumbrance on any of Stockholder's shares pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which Stockholder is
a
party or by which Stockholder or Stockholder's shares are bound.
(b) The
execution and delivery of this Agreement by Stockholder does not, and the
performance of this Agreement by Stockholder will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
governmental or regulatory authority by Stockholder, and except where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, could not prevent or delay the performance
by Stockholder of his, her or its obligations under this Agreement in any
material respect.
2.3 Ownership
of Shares.
Stockholder is the sole record and beneficial owner of 14,560,000 Shares, all
of
which Shares are, on the date hereof, and will at all times during the term
will
be, held free and clear of any liens, claims, options, charges, proxies or
voting restrictions or other encumbrances.
2.4 Additional
Documents.
Stockholder hereby covenants and agrees to execute and deliver any additional
documents necessary to carry out the intent of this Agreement.
3. Miscellaneous.
3.1 Governing
Law.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH AND SUBJECT
TO
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO CONFLICTS OF LAWS
PRINCIPLES.
3.2 Venue.
The Parties hereby irrevocably submit to the jurisdiction of the courts of
the
State of Texas and the federal court of the United States of America located
in
the State of Texas solely in respect of the interpretation and enforcement
of
the provisions of this Agreement and of the documents referred to in this
Agreement and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof or of any such document, that
it is
not subject thereto or that such action, suit or proceeding may not be brought
or is not maintainable in such courts or that the venue thereof may not be
appropriate or that this Agreement or any such document may not be enforced
in
or by such courts, and the Parties irrevocably agree that all claims with
respect to such action or proceeding will be heard and determined in such a
Texas state or federal court. Each Party consents to and grants any such court
jurisdiction over the person of such Party and over the subject matter of such
dispute and agrees that mailing of process or other papers in connection with
any such action or proceeding in the manner provided in Section 3.3 herein
or in
such other manner as may be permitted by law will be valid and sufficient
service thereof.
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(b) Each
Party acknowledges and agrees that any controversy that may arise under this
agreement is likely to involve complicated and difficult issues, and therefore
each such Party hereby irrevocably and unconditionally waives any right such
Party may have to a trial by jury in respect of any litigation directly or
indirectly arising out of or relating to this agreement, or the transactions
contemplated by this agreement. Each Party certifies and acknowledges that
(i)
no representative, agent or attorney of any other Party has represented,
expressly or otherwise, that such other Party would not, in the event of
litigation, seek to enforce the foregoing waiver, (ii) each Party understands
and has considered the implications of this waiver, (iii) each Party makes
this
waiver voluntarily, and (iv) each Party has been induced to enter into this
agreement by, among other things, the mutual waivers and certificates in this
paragraph (b).
3.3 Notices.
All notices, requests, claims, demands and other communications required or
permitted to be given or made pursuant to this Agreement will be in writing
and
will be deemed given (i) on the first business day following the date received,
if delivered personally or by telecopy (with telephonic confirmation of receipt
by the addressee), (ii) on the business day following timely deposit with an
overnight courier service, if sent by overnight courier specifying next day
delivery and (iii) on the first business day that is at least five days
following deposit in the mails, if sent by first class mail, to the Parties
at
the following addresses (or at such other address for a Party as will be
specified by like notice):
|
To
Orion and/or OEI
|
000
Xxxxx Xxxx Xxxxxx
Xxxxx,
Xxxxxx 00000
Attention:
Chief Financial Officer
Telephone
(000) 000-0000
Facsimile:
(000) 000-0000
|
|
with
copies to:
|
Xxxxxx
Xxxx Xxxxx Raysman & Xxxxxxx LLP
000
0xx Xxxxxx
Xxxxx
000
Xxxxxxxxxx,
X.X. 00000
Attn:
Xxxxxx X. Xxxxx, Xx. and Xxxxx X. Xxxxxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
|
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|
To
Investment Hunter
|
_______________________________
_______________________________
_______________________________
Attn:
Xxxx Xxxxx
Telephone
(_____) __________
Facsimile:
(_____) __________
|
|
To
GreenHunter:
|
GreenHunter
Energy Inc.
0000
Xxxx Xxx Xxxxx
Xxxxxxxxx,
Xxxxx 00000
Attn:
Xxxxxxx X. Xxxxxx, President
Telephone
(000) 000-0000
Facsimile:
(000) 000-0000
|
|
with
copies to:
|
GreenHunter
Energy Inc.
0000
Xxxx Xxx Xxxxx
Xxxxxxxxx,
Xxxxx 00000
Attn:
Xxxxxx X. Xxxxxxxx, Vice President, General Counsel and
Secretary
Telephone
(000) 000-0000
Facsimile:
(000) 000-0000
and
Fulbright
& Xxxxxxxx L.L.P.
0000
Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Attn:
Xxxxx X. Xxxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
|
3.4 Severability.
The provisions of this Agreement will be deemed severable and the invalidity
or
unenforceability of any provision will not affect the validity or enforceability
of the other provisions hereof. If any provision of this Agreement, or its
application to any person or any circumstance, is invalid or unenforceable,
(i)
a suitable and equitable provision will be substituted therefor in order to
carry out, so far as may be valid and enforceable, the intent and purpose of
such invalid or unenforceable provision and (ii) the remainder of this Agreement
and the application of such provision to other persons or circumstances will
not
be affected by such invalidity or unenforceability, nor will such invalidity
or
unenforceability affect the validity or enforceability of such provision, or
the
application thereof, in any other jurisdiction.
3.5 Counterparts.
This Agreement may be executed in any number of counterparts, each of which
will
be deemed to be an original and all of which will together constitute the same
agreement.
3.6 Termination;
Survival.
This Agreement will terminate upon (i) the mutual written consent of all
Parties; (ii) the time the Merger becomes effective; or (iii) the termination
of
the Merger Agreement in accordance with its terms, and all the provisions of
this Agreement will terminate at such time.
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3.7 Captions.
All captions in this Agreement are for convenience of reference only and are
not
part of this Agreement, and no construction or reference will be derived
therefrom.
3.8 Specific
Performance.
Each Party acknowledges that it will be impossible to measure in money the
damage to the other Parties if such Party fails to comply with any of the
obligations imposed by this Agreement, that each such obligation is material
and
that, in the event of any such failure, the other Party will not have an
adequate remedy at law or damages. Accordingly, each Party agrees that
injunctive relief or any other equitable remedy, in addition to remedies at
law
or damages, is the appropriate remedy for any such failure and will not oppose
the granting of such relief on the basis that the other Party has an adequate
remedy at law or in the form of damages. Each Party agrees that it will not
seek, and agrees to waive any requirement for, the securing or posting of a
bond
in connection with any other Party’s seeking or obtaining such equitable
relief.
3.9 Successors
and Assigns.
This Agreement will be binding upon and inure to the benefit of the Parties
and
their respective successors and permitted assigns and will not be assignable
without the written consent of all other Parties hereto.
3.10 Entire
Agreement; Amendment; Waiver.
This Agreement (including any schedules hereto) and the Merger Agreement
(including any exhibits and schedules thereto) supersede all prior agreements,
written or oral, among the Parties with respect to the subject matter hereof
and
contain the entire agreement among the Parties with respect to the subject
matter hereof. This Agreement may not be amended, supplemented or modified,
and
no provision hereof may be modified or waived, except by an instrument in
writing signed by all the Parties or, in the case of a waiver, each Party
granting such waiver. No waiver of any provision hereof by any Party will be
deemed a waiver of any other provision hereof by any such Party, nor will any
such waiver be deemed a continuing waiver of any provision hereof by such
Party.
3.11 Further
Assurances.
The Parties will execute and deliver such additional instruments and other
documents and will take such further actions as may be necessary or appropriate
to effectuate, carry out and comply with all of the terms of this Agreement
and
the transactions contemplated hereby.
3.12 Third
Party Beneficiaries.
Nothing in this Agreement, express or implied, is intended to confer upon any
third party any rights or remedies of any nature whatsoever under or by reason
of this Agreement.
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IN
WITNESS WHEREOF, the parties have executed this agreement as of the date first
written above.
| ORION ETHANOL | |
|
By:_____________________________
Name:___________________________
Its:_____________________________
OEI
ACQUISITION SUB, INC.
By:_____________________________
Name:___________________________
Its:_____________________________
GREENHUNTER
ENERGY, INC.
By:_____________________________
Name:___________________________
Its:_____________________________
INVESTMENT
HUNTER LLC
By:_____________________________
Name:___________________________
Its:_____________________________
|
[Signature
Page to Investment Hunter Voting Agreement]
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