VOTING AGREEMENT
This
VOTING AGREEMENT (the “Agreement”) is made and
entered into as of this 24th day of
April, 2009, by and among Tree Top Industries, Inc., a Nevada corporation (the
“Company”), BioEnergy
Systems Management, Inc., a Nevada corporation (“Bio”), Wimase Limited, a
Delaware corporation (“Wimase”), Energetic Systems,
Inc., LLC, a Nevada limited liability company (“Energetic”), Xx. Xxxxxxxxx
Xxxxxxxxxx (“Xx.
Xxxxxxxxxx”) and any other stockholder of the Company who becomes a party
hereto (collectively, and together with Bio, Wimase and Energetic and their
respective successors and permitted assigns, the “Stockholders”).
RECITAL
On April
24th, 2009, the Company, the Stockholders and BioEnergy Applied
Technologies, Inc, a Nevada corporation, entered into a stock exchange agreement
(the “Stock Agreement”)
providing for the exchange of shares of Common Stock (as defined in the Stock
Agreement) for shares of BAT Stock (as defined in the Stock Agreement), and in
connection with the Stock Agreement the parties desired to provide Xx.
Xxxxxxxxxx with the right to exercise all of the voting rights (the “Voting Rights”) attached to
the Shareholder Common Stock (as defined in the Stock Agreement) for a period of
two (2) years from the Closing Date (as defined in the Stock Agreement) in
accordance with the terms of this Agreement.
NOW,
THEREFORE, the parties agree as follows:
1. Voting
Provisions.
1.1 Exercise Rights. Each Stockholder agrees
to vote, or cause to be voted, all shares of Shareholder Common Stock owned by
such Stockholder, or over which such Stockholder has voting control, from time
to time and at all times, in whatever manner as directed by Xx.
Xxxxxxxxxx.
1.2 Failure to Vote. In
the absence of the exercise of any Voting Rights by Xx. Xxxxxxxxxx, for any
reason whatsoever, when a shareholder vote is requested by the Board of
Directors of the Company, the Voting Rights shall automatically be transferred
to the Secretary of the Company, or to his or her
assignee.
2. Remedies.
2.1 Covenants of the Company. The Company agrees to
use its best efforts, within the requirements of applicable law, to ensure that
the rights granted under this Agreement are effective and that the parties enjoy
the benefits of this Agreement.
2.2 Specific Enforcement. Each
party acknowledges and agrees that each party hereto will be irreparably damaged
in the event any of the provisions of this Agreement are not performed by the
parties in accordance with their specific terms or are otherwise
breached. Accordingly, it is agreed that each of the Company and the
Stockholders shall be entitled to an injunction to prevent breaches of this
Agreement, and to specific enforcement of this Agreement and its terms and
provisions in any action instituted in any court of the United States or any
state having subject matter jurisdiction.
2.3 Remedies
Cumulative. All remedies, either under this Agreement or by
law or otherwise afforded to any party, shall be cumulative and not
alternative.
3. Term. This
Agreement shall be effective as of the date hereof and shall continue in effect
until and shall terminate two (2) years following the Closing
Date.
4. Miscellaneous.
4.1 Transfers. Each transferee or assignee
of any Shareholder Common Stock subject to this Agreement shall continue to
be subject to the terms hereof, and, as a condition precedent to the
Company’s recognizing such transfer, each transferee or assignee shall
agree in writing to be subject to each of the terms of this Agreement by
executing and delivering an Adoption Agreement substantially in the form
attached hereto as Exhibit
A. Upon the execution and delivery of an Adoption Agreement by
any transferee, such transferee shall be deemed to be a party hereto as if such
transferee were the transferor and such transferee’s signature appeared on the
signature pages of this Agreement and shall be deemed to be a Stockholder for
all purposes under this Agreement. The Company shall not permit the
transfer of the Shares subject to this Agreement on its books or issue a new
certificate representing any such Shares unless and until such transferee shall
have complied with the terms of this Section 4.1. Each
certificate representing the Shares subject to this Agreement if issued on or
after the date of this Agreement shall be endorsed by the Company with the
legend set forth in Section 4.9.
4.2 Successors and Assigns. The
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties. No
party to this Agreement may consolidate with, or merge with or into, or sell,
transfer, lease, convey or otherwise dispose of all or substantially all of its
property or assets to another Person or Persons (a “successor-in-interest”),
whether in a single transaction or series of related transaction, unless such
successor-in-interest expressly assumes such first party’s obligations under
this Agreement in accordance with Section 4.1 above. Except as
provided in the immediately preceding sentence, no party hereto may assign its
rights or obligations under this Agreement without the prior written consent of
the other parties hereto.
4.3 Governing Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, regardless of the laws that might otherwise govern under applicable
principles of conflicts of law.
4.4 Counterparts; Facsimile. This Agreement may be
executed and delivered by facsimile or pdf. and in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
4.5 Titles and Subtitles. The titles and subtitles
used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
4.6 Notices. All
notices and other communications given or made pursuant to this Agreement shall
be in writing and shall be deemed effectively given: (a) upon
personal delivery to the party to be notified, (b) five days after having been
sent by registered or certified mail, return receipt requested, postage prepaid,
or (c) one business day after the business day of deposit with an
internationally recognized overnight courier, specifying next business day
delivery, with written verification of receipt. All communications
shall be sent to the respective parties at their address as set forth on such
party’s signature page hereto, or to such address as subsequently modified by
written notice given in accordance with this Section 4.6. If notice
is given (i) to the Company, a copy shall also be sent to Xxxxxxxxx &
McMurdo, LLP, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000, Facsimile:
(000) 000-0000, Attention: Xxxxxxx XxXxxxx, Esq. or (ii) to the
Stockholders, a copy shall also be sent to Santoro, Driggs, Walch, Kearney,
Xxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000,
Facsimile: (000)000-0000, Attention: Xxxxxxx X. Xxxxxxx, Esq.
4.7 Delays or Omissions. No delay
or omission to exercise any right, power or remedy accruing to any party under
this Agreement, upon any breach or default of any other party under this
Agreement, shall impair any such right, power or remedy of such non-breaching or
non-defaulting party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default previously or
thereafter occurring. Any waiver, permit, consent or approval of any
kind or character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies,
either under this Agreement or by law or otherwise afforded to any party, shall
be cumulative and not alternative.
4.8 Severability. The invalidity or
unenforceability of any provision hereof shall in no way affect the validity or
enforceability of any other provision.
4.9 Legend on Share
Certificates. Each certificate
representing any shares of Shareholder Common Stock issued on or after the date
hereof shall be endorsed by the Company with a legend reading substantially
as follows:
“THE SHARES EVIDENCED HEREBY ARE SUBJECT
TO A VOTING AGREEMENT, AS MAY BE AMENDED FROM TIME TO TIME, (A COPY OF
WHICH MAY BE OBTAINED UPON WRITTEN REQUEST FROM THE COMPANY), AND BY ACCEPTING
ANY INTEREST IN SUCH SHARES THE PERSON ACCEPTING SUCH INTEREST SHALL BE DEEMED
TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF THAT VOTING
AGREEMENT, INCLUDING CERTAIN RESTRICTIONS ON TRANSFER AND OWNERSHIP SET
FORTH THEREIN.”
The
Company, by its execution of this Agreement, agrees that it will cause the
certificates evidencing the shares of Shareholder Common Stock issued on or
after the date hereof to bear the legend required by this Section 4.9 of this
Agreement, and it shall supply, free of charge, a copy of this Agreement to any
holder of a certificate evidencing shares of Shareholder Common Stock upon
written request from such holder to the Company at its principal
office. The parties to this Agreement do hereby agree that the
failure to cause the certificates evidencing the shares of Shareholder Common
Stock to bear the legend required by this Section 4.9 herein and/or the failure
of the Company to supply, free of charge, a copy of this Agreement as provided
hereunder shall not affect the validity or enforcement of this
Agreement.
4.10 Manner of Voting. The exercise of the
Voting Rights pursuant to this Agreement may be effected in person, by proxy, by
written consent or in any other manner permitted by applicable
law.
4.11 Further Assurances. At any
time or from time to time after the date hereof, the parties agree to cooperate
with each other, and at the request of any other party, to execute and deliver
any further instruments or documents and to take all such further action as the
other party may reasonably request in order to evidence or effectuate the
consummation of the transactions contemplated hereby and to otherwise carry out
the intent of the parties hereunder.
4.12 Dispute Resolution. The parties (a) hereby
irrevocably and unconditionally submit to the jurisdiction of New York County in
the State of New York for the purpose of an arbitration proceeding arising out
of or based upon this Agreement and (b) agree not to commence any suit or action
or other proceeding arising out of or based upon this Agreement. If
arbitration is necessary to enforce or interpret the terms of any of this
Agreement, the prevailing party shall be entitled to reasonable attorney’s fees,
costs and necessary disbursements in addition to any other relief to which such
party may be entitled.
4.13 Costs of Enforcement. If any
party to this Agreement seeks to enforce its rights under this Agreement by
legal proceedings, the non-prevailing party shall pay all costs and expenses
incurred by the prevailing party, including, without limitation, all reasonable
attorneys’ fees.
4.14 No Third Party Beneficiaries.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
{Remainder of page left intentionally
blank. Signature page(s) to follow.}
COUNTERPART
SIGNATURE PAGE TO
IN
WITNESS WHEREOF, the undersigned has executed this Voting Agreement as of the
date first written above.
By:
Name:
Title:
Address
for Notice Purposes:
000 Xxxxx
Xxxxxx
Xxxxx
000
Xxx Xxxx,
Xxx Xxxx 00000
Facsimile
Number: 000-000-0000
COUNTERPART
SIGNATURE PAGE TO
IN
WITNESS WHEREOF, the undersigned has executed this Voting Agreement as of the
date first written above.
XX. XXXXXXXXX XXXXXXXXXX
______
Address
for Notice Purposes:
00000
Xxxxxxx Xxxxx
Xxx
Xxxxx, Xxxxxx 00000
Facsimile
Number: 000-000-0000
BIOENERGY SYSTEMS MANAGEMENT,
INC.
Address
for Notice Purposes:
00000
Xxxxxxx Xxxxx
Xxx
Xxxxx, Xxxxxx 00000
Attention:
Xx. Xxxxxxxxx Xxxxxxxxxx, President
Facsimile
Number: 000-000-0000
WIMASE LIMITED
______
Address
for Notice Purposes:
0000
Xxxxxxxx Xxxxx
Xxxxxx,
Xxxxx 00000
Attention:
the President
Facsimile
Number: 000-000-0000
ENERGETIC SYSTEMS INC.,
LLC
______
Address
for Notice Purposes:
0000
Xxxxxxxx Xxxx
Xxxxx
000
Xxxxxx,
Xxxxxxxx 00000
Facsimile
Number: 000-000-0000
EXHIBIT
A
ADOPTION
AGREEMENT
This
Adoption Agreement (“Adoption
Agreement”) is executed on April 24th, by the
undersigned (the “Holder”) pursuant to the terms
of that certain Voting Agreement dated as of April 24th, 2009 (the “Agreement”), by and among Tree
Top Industries, Inc., a Nevada corporation (the “Company”), Xx. Xxxxxxxxx
Xxxxxxxxxx and Xxxxx Xxxxxx, as such Agreement may be amended or amended and
restated hereafter. Capitalized terms used but not defined in this
Adoption Agreement shall have the respective meanings ascribed to such terms in
the Agreement. By the execution of this Adoption Agreement, the
Holder agrees as follows.
1.1 Acknowledgement. Holder
acknowledges that Holder is acquiring certain shares of the capital stock of the
Company (the “Stock”) by
transfer from a party bound by the Agreement and agrees to be bound by the
Agreement as a Stockholder.
1.2 Agreement. Holder
hereby (a) agrees that the Stock shall be bound by and subject to the
terms of the Agreement and (b) adopts the Agreement with the same force and
effect as if Holder were originally a party thereto.
1.3 Notice. Any notice required or
permitted by the Agreement shall be given to Holder at the address listed below
Holder’s signature hereto.
_____________________________________________
[PRINT
NAME OF HOLDER]
By:
Name:
Title:
Address
for Notice Purposes:
_____________________________________________________________________________________
_____________________________________________________________________________________
Accepted and
Agreed:
By:
Name:
Title:
