PURE BIOFUELS CORP.
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
THIS AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this "Agreement") is
entered into effective as of March 26, 2008 by and among Pure Biofuels Corp., a
Nevada Corporation (the "Company"), Plainfield Peru I LLC, a Delaware limited
liability company ("LLC1"), Plainfield Peru II LLC, a Delaware limited liability
company ("LLC2" and together with LLC1, "Plainfield") and the stockholders of
the Company listed on the signature page(s) hereto (collectively, the
"Stockholders" and each individually, a "Stockholder").
WITNESSETH:
WHEREAS, the Company, LLC1, LLC2 and the Stockholders previously entered
into a Stockholders Agreement, dated as of September 12, 2007 (the "Original
Agreement");
WHEREAS, concurrent with the execution of this Agreement, the Company is
entering into a First Amendment to Securities Purchase Agreement with LLC1 and
LLC2, dated as of the date hereof (the "First Amendment to Securities Purchase
Agreement"), pursuant to which, upon the terms and subject to the conditions
thereof, the Company will issue to LLC1 and LLC2 $5,000,000 aggregate principal
amount of 10%/12% Convertible PIK Election Notes, convertible into 16,666,667
shares of Common Stock (the "Additional Notes");
WHEREAS, as a condition to the willingness of Plainfield to enter into the
First Amendment to Securities Purchase Agreement, Plainfield has required that
the Stockholders agree, and in order to induce Plainfield to enter into the
First Amendment to Securities Purchase Agreement, the Stockholders are willing,
to enter into this Agreement;
WHEREAS, Section 5(a) of the Agreement provides that the parties thereto
may, amend the Original Agreement by an instrument in writing signed by each of
the parties thereto; and
WHEREAS, the Company, LLC1, LLC2 and the Stockholders desire to amend and
restate the Original Agreement in its entirety as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree, severally and not jointly, as follows:
Section 1. Definitions. As used in this Agreement:
"Affiliate" means with respect to any Person, any other Person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with,
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such Person. The term "control" means the possession, directly or indirectly, of
the power to direct or cause direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Board of Directors" means the board of directors of the Company.
"Common Stock" means the common stock of the Company, par value 0.001 per
share.
"Director" means the Persons serving on the Board of Directors of the
Company.
"Equity Securities" means all classes of equity securities of the Company,
including but not limited to the Common Stock.
"Investor Designator" has the meaning ascribed to such term in Section
2(a).
"Observer" has the meaning ascribed to such term in Section 2(f) of this
Agreement.
"Person" includes an individual, a corporation, a limited liability
company, a partnership, a trust or any other organization or entity.
"Plainfield" has the meaning ascribed to such term in the opening paragraph
of this Agreement.
"Plainfield Director" has the meaning ascribed to such term in Section 2(a)
of this Agreement.
"Stockholders" means any Person who is signatory to this Agreement and who
owns Equity Securities of the Company and any other persons or entities who
become parties to this Agreement as "Stockholders" pursuant to the terms of this
Agreement, and their respective heirs, legal representatives, administrators and
successors.
Section 2. Voting Agreement.
(a) During the term of this Agreement, each Stockholder holding
voting Equity Securities of the Company will vote all of such Stockholder's
Equity Securities and take all other necessary or desirable actions (in its
capacity as a Stockholder of the Company), and the Company will take all
necessary or desirable actions, as are reasonably requested to cause up to a
total of three individuals, (each a "Plainfield Director"), designated by
Plainfield or any permitted transferee of more than 50% of the Notes held by
Plainfield (the "Investor Designator"), to be elected to the Company's Board of
Directors, whether such election occurs at an annual or special meeting of the
Stockholders, or by written consent in lieu thereof, and whether or not such
election shall occur because of the existence of a vacancy on such Board arising
for any reason whatsoever.
(b) Each Stockholder will vote all of such Stockholder's Equity
Securities, and the Company will take all necessary or desirable actions, as are
necessary to prevent the
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removal, without "Cause", as defined below, of a Plainfield Director without the
prior written consent of the Investor Designator. If the position of any
Plainfield Director becomes vacant for any reason, each Stockholder will vote
all of the Stockholder's Equity Securities, and the Company will take all
necessary or desirable actions, as are necessary to immediately cause an
alternative Plainfield Director, as applicable, to be elected to the Company's
Board of Directors. "Cause" shall mean if (i) the director has been convicted of
an indictable offence under the United States criminal code, or (ii) the
director has committed willful misconduct or gross misconduct in carrying out
his duties.
(c) Each Stockholder will retain at all times the right to vote the
Stockholder's Equity Securities in his or her sole discretion on all matters
presented to the Company's Stockholders for a vote other than the matters set
forth in Section 2(a) and (b) above.
(d) No Stockholders may, directly or indirectly, during the term of
this Agreement, sell, dispose of or otherwise transfer record or beneficial
ownership of any shares of Equity Securities subject to this Agreement owned of
record or beneficially by such Stockholders unless the transferee agrees in
writing to be bound by the terms hereof by execution (together with such
Person's spouse if applicable) of an Adoption Agreement in the form attached as
Exhibit A hereto. Any purported transfer which does not comply with this
provision shall be null and void; provided, however, that a Stockholder may sell
up to 10% of the Common Stock held by such Stockholder as of the date hereof
free from any restriction or requirement imposed by this Section 2(d) or
otherwise.
(e) The Stockholders shall not enter into any agreement or grant
any proxy or power of attorney with respect to their respective Equity
Securities that is inconsistent with the terms hereof.
(f) If at any time Plainfield has the right to nominate a director
pursuant to this Section 2 but fails to exercise this right, then Plainfield or
its Affiliates shall have the right to appoint one (1) representative for each
Director not so nominated (the "Observer"). The Observer(s) shall have the right
to attend meetings of the Board of Directors in a nonvoting observer capacity,
to receive notice of such meetings and to receive the information provided by
the Company to the Board of Directors.
(g) Plainfield will have a right to effectuate its rights pursuant
to this Section 2 so long as any Notes remain outstanding or Plainfield holds at
least 5% of the Company's outstanding Common Shares.
(h) A quorum of the Board of Directors shall require the presence
of the Plainfield Directors.
(i) The Company will not increase the number of Directors above
six.
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Section 3. Specific Performance. The parties hereto agree that the remedy
at law for any breach of this Agreement may be inadequate, and if any
Stockholder or other person shall fail to comply with the provisions of Section
2 hereof, each non-defaulting party shall be entitled to specific performance in
addition to any other appropriate relief or remedy. Such party may, in its sole
discretion, apply to a court of competent jurisdiction for specific performance
or injunctive or such other relief as such court may deem just and proper in
order to enforce this Agreement, or prevent any violation hereof, and, to the
extent permitted by law, each party waives any objection to the imposition of
such relief.
Section 4. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed duly delivered (i) three business days after
being sent by hand delivery in writing, by facsimile or electronic transmission,
by registered or certified mail, return receipt requested, postage prepaid, or
(ii) one business day after being sent for next business day delivery, fees
prepaid, via a reputable nationwide overnight courier service, in each case to
the intended recipient as set forth below:
(i) if to any Stockholder, to its address set forth on the
signature pages hereto.
(ii) if to Pure Biofuels to:
Pure Biofuels Corp.
0000 Xxxxxx Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile No: 000-000-0000
(ii) With a copy (which shall not constitute notice) to:
DLA Piper US LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile No: 000-000-0000
(iii) if to Plainfield to:
0
Xxxxxxxxxx Xxxx I LLC
Plainfield Peru II LLC
c/o Plainfield Asset Management LLC
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Telephone: 000-000-0000
Facsimile: 000-000-0000
(iv) With a copy (which shall not constitute notice) to:
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
Section 5. Miscellaneous.
(a) Entire Agreement; Amendments and Modification. This Agreement
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, between the parties with respect thereto. This Agreement
may not be amended, modified or rescinded except by an instrument in writing
signed by each of the parties hereto.
(b) Assignment. Except as permitted herein, neither this Agreement
nor any right, interest or obligation hereunder may be assigned by any of the
parties without the prior written consent of Plainfield and any attempt to do so
shall be null and void; provided, however, that no assignment by any of the
parties of any of its rights, interests or obligations hereunder shall relieve
such party of its obligations under this Agreement.
(c) Governing Law; Submission to Jurisdiction. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF. ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS
OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO HEREBY IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH PARTY HERETO
HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL
JURISDICTION OVER IT, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION OR
PROCEEDING WITH
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RESPECT TO THIS AGREEMENT BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH
COURTS LACK PERSONAL JURISDICTION OVER IT. EACH PARTY HERETO FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS ADDRESS SET FORTH SECTION 6.6,
SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH PARTY HERETO
HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER
IRREVOCABLY WAIVES AND AGREE NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING
COMMENCED HEREUNDER THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR
INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST ANOTHER PARTY IN ANY OTHER JURISDICTION. EACH PARTY
HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT IN THE COURTS
REFERRED TO ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(d) No Third Party Beneficiaries. This Agreement is not intended,
and shall not be deemed, to confer any rights or remedies upon any person other
than the parties hereto and their respective successors and permitted assigns.
(e) Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in a mutually acceptable manner in order that the
terms of this Agreement remain as originally contemplated to the fullest extent
possible.
(f) Interpretation. When reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement, unless
otherwise indicated. The headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any party.
Whenever the context may require, any pronouns used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of nouns and pronouns shall include the plural, and vice versa. Any
reference to any federal, state, local or foreign statute or law shall be deemed
also to
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refer to all rules and regulations promulgated thereunder, unless the context
requires otherwise. Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation." No summary of this Agreement prepared by the parties shall
affect in any way the meaning or interpretation of this Agreement.
(g) Headings. The headings in this Agreement are solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
(h) Counterparts. This Agreement may be executed in counterparts and
by the different parties in separate counterparts, each of which when so
executed shall be deemed an original and all of which taken together shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated
Stockholders Agreement as of the day and year first above written.
PURE BIOFUELS CORP.
By: /s/ Xxxx Xxxxxxxx
--------------------------
Print Name: Xxxx Xxxxxxxx
Title: Xxxxx Xxxxxxxxx Xxxxxxx
0
XXXXXXXXXX XXXX I LLC
By: /s/ Xxxxxx Xxxxxxxx
--------------------------
Print Name: Xxxxxx Xxxxxxxx
Title: Authorized Individual
PLAINFIELD PERU II LLC
By: /s/ Xxxxxx Xxxxxxxx
--------------------------
Print Name: Xxxxxx Xxxxxxxx
Title: Authorized Individual
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STOCKHOLDERS
XXXX XXXXXXXX
/s/ Xxxx Xxxxxxxx
------------------------------
Address:______________________
______________________________
______________________________
______________________________
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EXHIBIT A
Adoption Agreement
This Adoption Agreement is executed pursuant to the terms of that certain
Amended and Restated Stockholders Agreement dated as of March 26, 2008 by and
among Pure Biofuels Corp., a Nevada corporation (the "Company"), Plainfield Peru
I LLC, a Delaware limited liability company, Plainfield Peru II LLC, a Delaware
limited liability company and the Stockholders party thereto ("Stockholders").
By the execution of this Adoption Agreement, the undersigned agrees as follows:
1. Acknowledgment. The undersigned acknowledges that it is acquiring
certain shares of the Common Stock, par value $0.001 of the Company, subject to
the conditions of the terms and conditions of the Amended and Restated
Stockholders Agreement.
2. Agreement. The undersigned (i) agrees that the shares of the Common
Stock acquired by it shall be bound by and subject to the terms of the Amended
and Restated Stockholders Agreement, and (ii) hereby adopts the Amended and
Restated Stockholders Agreement with the same force and effect as if the
undersigned were originally a party thereto and named as a Stockholder therein.
3. Notice. Any notice required as permitted by the Amended and Restated
Stockholders Agreement shall be given to the undersigned at the address listed
beside the undersigned's signature below.
4. Joinder. The spouse of the undersigned, if applicable, executes this
Adoption Agreement to acknowledge its fairness and that it is in such spouse's
best interests and to bind such spouse's community interest, if any, in any
shares of the Common Stock of the Company, to the terms of the Amended and
Restated Stockholders Agreement.
[Signature pages to follow]
EXECUTED and DATED as of ____________________, ____.
PURCHASER OR TRANSFEREE:
By:
--------------------------
Name: ________________________
Address:______________________
______________________________
[Signature Page to Adoption Agreement]
