VOTING AGREEMENT
THIS
VOTING AGREEMENT (this “Agreement”),
is
made as of June 13, 2008, by and between Consolidated Energy Holdings, LLC,
a
Louisiana limited liability company (“Purchaser”)
and
the undersigned stockholder (“Stockholder”)
of
Allegro Biodiesel Corporation, a Delaware corporation (“Seller”).
RECITALS
WHEREAS,
Purchaser and Seller are presently negotiating a Securities Purchase Agreement
by and between Purchaser and Seller in the form attached hereto as Exhibit
A
(the
“Purchase
Agreement”);
WHEREAS,
on the terms and subject to the conditions of the Purchase Agreement, Seller
will sell and Purchaser will purchase 100% of the outstanding membership
interests (the “Membership
Interests”)
of
Vanguard Synfuels, L.L.C., a Louisiana limited liability company (the
“Company”);
WHEREAS,
as of the date hereof, Stockholder, owns the equity securities of Seller (the
“Securities”)
set
forth on Stockholder’s signature page hereto; and
WHEREAS,
Stockholder is entering into this Agreement to vote its Securities in favor
of
the sale of the Membership Interests as contemplated by the Purchase Agreement,
in order to induce Purchaser to enter into the Purchase Agreement and consummate
the transactions contemplated thereby.
NOW,
THEREFORE, in consideration of the mutual agreements and covenants contained
herein and other good and valuable consideration, the parties hereto agree
as
follows:
ARTICLE
I
AGREEMENT
TO VOTE SHARES
Section
1.1 Agreement
to Vote.
(a) Stockholder
hereby agrees that during the time this Agreement is in effect, at any meeting
of the stockholders of Seller, however called, and in any action by consent
of
the stockholders of Seller, Stockholder will vote or cause to be voted in favor
of the sale of the Membership Interests to Purchaser or its wholly-owned
subsidiary as contemplated by the Purchase Agreement (the “Sale”):
(i) all
Securities owned legally or beneficially by Stockholder and
(ii) any and all Securities acquired by Stockholder on or after the date
hereof.
(b) Stockholder
acknowledges that (i) Stockholder has reviewed and understands the Purchase
Agreement and the transactions contemplated thereby, (ii) Stockholder is
sophisticated in financial matters and is able to evaluate the risks and
benefits of the transactions contemplated by the Purchase Agreement, (iii)
Stockholder has carefully considered and has, to the extent Stockholder believes
such discussion necessary, discussed the transactions contemplated by the
Purchase Agreement with Stockholder’s professional legal, tax and financial
advisers, (iv) Seller has made available to Stockholder the opportunity to
ask
questions of, and receive answers from, Seller concerning the terms and
conditions of the Sale, and to obtain any additional information which Seller
had in its possession or was able to acquire without unreasonable effort or
expense and Stockholder has availed itself of such opportunity to the extent
that it desired.
1
Section
1.2 Adjustment
Upon Changes In Capitalization.
In the
event of any change in the Securities, by reason of any stock dividends, splits,
mergers, recapitalizations or other changes in the corporate or capital
structure of Seller, the number and kind of Securities subject to this Agreement
shall be appropriately adjusted.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES
OF
STOCKHOLDER
Stockholder
hereby represents and warrants to Purchaser as follows:
Section
2.1 Title
to Equity Securities.
As of
the date hereof, Stockholder is the record or beneficial owner of the number
of
Securities set forth on Stockholder’s signature page hereto. Such Securities,
are and will be on the Closing Date (as defined in the Purchase Agreement)
owned
free and clear of any security interests, liens, claims, pledges, options,
rights of first refusal, agreements, limitations on voting rights, charges
or
other encumbrances of any nature whatsoever other than pursuant to this
Agreement, except as disclosed to Purchaser prior to the execution and delivery
of this Agreement in writing. Stockholder has not appointed or granted any
proxy, which appointment or grant is still in effect, with respect to such
Securities.
Section
2.2 Authority
Relative to This Agreement.
If the
Stockholder is an entity, (i) Stockholder has all requisite power and authority
to execute and deliver this Agreement, to perform its obligations hereunder
and
to consummate the transactions contemplated hereby and (ii) the execution and
delivery of this Agreement by Stockholder and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
proceedings on the part of Stockholder necessary to authorize this Agreement
or
to consummate such transactions. This Agreement has been duly and validly
executed and delivered by Stockholder and constitutes a legal, valid and binding
obligation of Stockholder, enforceable in accordance with its terms, subject
to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors’ rights and remedies generally,
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in
equity).
Section
2.3 No
Conflict.
(a) Neither
the execution and delivery of this Agreement nor the consummation by Stockholder
of the transactions contemplated hereby will (i) conflict with or violate
any law, rule, regulation, order, judgment or decree applicable to Stockholder
or by which its Securities are bound or affected or (ii) conflict with, or
constitute a violation of, or constitute a default under, or give to others
any
rights of termination, amendment, acceleration or cancellation of, or result
in
the creation of a lien or encumbrance on any of its Securities, 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 its Securities are bound or affected, except for any
such conflicts, violations, breaches, defaults or other occurrences that would
not prevent or delay the performance by Stockholder of its obligations under
this Agreement.
2
(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, except where the failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications would not prevent or delay the performance by Stockholder of
its
obligations under this Agreement.
ARTICLE
III
COVENANTS
OF THE STOCKHOLDERS
Section
3.1 No
Inconsistent Agreements.
Stockholder covenants and agrees that, except as contemplated by this Agreement,
Stockholder shall not enter into any voting agreement or grant a proxy or power
of attorney with respect to its Securities that is inconsistent with this
Agreement.
Section
3.2 Transfer
Of Title.
Stockholder hereby covenants and agrees that, so long as this Agreement is
in
effect, Stockholder will not transfer record or beneficial ownership of any
of
its Securities unless the transferee agrees in writing to be bound by the terms
and conditions of this Agreement.
ARTICLE
IV
COVENANTS
OF PURCHASER
Section
4.1 Other
Agreements.
Purchaser
hereby covenants that it shall not amend, waive, forgive performance of or
terminate any agreement it now has or hereafter enters into obligating one
or
more Seller stockholders to vote, or pursuant to which one or more Seller
stockholders agrees to vote, in favor of approving the sale of the Membership
Interests as contemplated by the Purchase Agreement and that it shall enforce
any rights it has pursuant to any such agreement.
ARTICLE
V
TERMINATION
Section
5.1 Termination.
This
Agreement shall terminate automatically upon the earlier of (a) the date on
which Purchaser notifies Stockholder in writing that it has abandoned the
Purchase Agreement for any reason other than as the result of a breach of this
Agreement by Stockholder and (b) the date on which Seller terminates the
Purchase Agreement pursuant to Section 9.1(e) thereof.
Section
5.2 Effect
of Termination.
In the
event of the termination of this Agreement pursuant to Section 5.1
hereof,
this Agreement shall forthwith become void and have no effect, without liability
on the part of any party hereto or its trustees, partners, beneficiaries,
directors, officers, stockholders or affiliates.
3
ARTICLE
VI
MISCELLANEOUS
Section
6.1 Notices.
All
notices, requests, claims, demands and other communications under this Agreement
shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed as delivered) or sent by overnight courier
(providing proof of delivery) to the parties at the following addresses (or
at
such other address for a party as shall be specified by like
notice):
|
If
to Stockholder:
If
to Purchaser:
|
At
such address as is set forth on its signature page hereto.
Consolidated
Energy Holdings, LLC
000
Xxxxxx Xxxxxx
Xxxxx
#000
Xxxxxxxxxx,
XX 00000
Attn :
Xxxxxxx Xxxxxx
Telephone
No.: (000) 000-0000
Facsimile
No.: (000) 000-0000
with
a copy to:
Xxxxxx
Xxxxxx LLP
City
Plaza
000
Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx
Xxxxx , XX 00000
Attention:
Xxxxxxx Xxxxxxx
Telephone
No.: (000) 000-0000
Facsimile
No.: (000) 000-0000
|
Any
party
from time to time may change its address for the purposes of notices hereunder
by giving written notice to the other parties hereto of such new
address.
Section
6.2 Entire
Agreement.
This
Agreement constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof and replaces and supersedes all prior agreements
or
understandings, both written and oral, between the parties hereto, relating
to
the voting of Stockholder’s Securities with respect to the sale of the
Membership Interests as contemplated by the Purchase Agreement.
Section
6.3 Stockholder
Capacity.
Stockholder signs solely in its capacity as the record holder and beneficial
owner of the Securities set forth on its signature page hereto.
Section
6.4 Specific
Performance.
The
parties agree that irreparable damage would occur in the event that any of
the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches
of
this Agreement and to enforce specifically the terms and provisions of this
Agreement in any state or federal court of the United States located in the
State of California, this being in addition to any other remedy to which they
are entitled at law or in equity. In addition, each of the parties hereto:
(a) consents to submit such party to the personal jurisdiction of any state
or federal court in the event any dispute arises out of this Agreement or any
of
the transactions contemplated hereby; (b) agrees that such party will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court; (c) agrees that such party will not bring
any action relating to this Agreement or the transactions contemplated hereby
in
any court other than a state or federal court sitting in the State of
California; and (d) waives any right to trial by jury with respect to any
claim or proceeding related to or arising out of this Agreement or any of the
transactions contemplated hereby.
4
Section
6.5 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
and shall not in any way be affected or impaired thereby so long as the economic
or legal substance of this Agreement is not affected in any manner materially
adverse to any party.
Section
6.6 Amendment.
This
Agreement may be amended only by a written instrument signed by each of the
parties hereto.
Section
6.7 Assignment.
Except
as required by operation of law, this Agreement shall not be assignable by
the
parties hereto without the prior written consent of the other party. This
Agreement will be binding upon, inure to the benefit of and be enforceable
by
the parties and their respective successors and permitted assigns.
Section
6.8 Governing
Law.
This
Agreement shall be governed by the internal laws of the State of
Delaware.
Section
6.9 Counterparts.
This
Agreement may be executed 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.
Section
6.10 Facsimile
or Email Signatures.
Any
signature page delivered pursuant to this Agreement, any Related Agreement
or
any other document delivered pursuant hereto via facsimile or by email of pdf
signature pages shall be binding to the same extent as an original signature.
Any party who delivers such a signature page agrees to later deliver an original
counterpart to any party that requests it.
[Signature
Page Follows]
5
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first written above.
| CONSOLIDATED ENERGY HOLDINGS, LLC | ||
| |
|
|
| By: | /s/ Xxxx Xxxxx | |
|
Name:
Xxxx Xxxxx
Title:
Member Authorized by the
Manager
|
||
[Counterpart
Stockholder Signature Page Follows]
6
|
Monarch
Pointe Fund Ltd.
By:
M.A.G. CAPITAL, LLC
Its:
General Partner
By:
__________________________
Name:
Title:
By:
__________________________
Name:
Title:
Shares
of Series A Preferred Stock: 8,194,108
Shares
of Series B Preferred Stock: 0
Shares
of Common Stock: 3,348,397
|
Mercator
Momentum Fund, L.P.
By:
M.A.G. CAPITAL, LLC
Its:
General Partner
By:
__________________________
Name:
Title:
By:
__________________________
Name:
Title:
Shares
of Series A Preferred Stock: 1,309,251
Shares
of Series B Preferred Stock: 0
Shares
of Common Stock: 23,051
|
|
M.A.G.
Capital, LLC
By:
__________________________
Name:
Title:
By:
__________________________
Name:
Title:
Shares
of Series A Preferred Stock: 0
Shares
of Series B Preferred Stock: 14,139
Shares
of Common Stock: 0
|
Mercator
Momentum Fund III, L.P.
By:
M.A.G. CAPITAL, LLC
Its:
General Partner
By:
__________________________
Name:
Title:
By:
__________________________
Name:
Title:
Shares
of Series A Preferred Stock: 2,528,210
Shares
of Series B Preferred Stock: 0
Shares
of Common Stock: 25,150
|
7
|
Asset
Managers International Limited
By:
__________________________
Its:
__________________________
By:
__________________________
Name:
Title:
By:
__________________________
Name:
Title:
Shares
of Series A Preferred Stock: 6,771,990
Shares
of Series B Preferred Stock: 0
Shares
of Common Stock: 815,675
|
Pentagon
Dollar Satellite Fund, Ltd.
By:
__________________________
Its:
__________________________
By:
__________________________
Name:
Title:
By:
__________________________
Name:
Title:
Shares
of Series A Preferred Stock: 2,257,330
Shares
of Series B Preferred Stock: 0
Shares
of Common Stock: 0
|
8
|
St.
Cloud Capital Partners, LP
By:
__________________________
Name:
Title:
Shares
of Series A Preferred Stock: 2,390,566
Shares
of Series B Preferred Stock: 0
Shares
of Common Stock: 0
|
9
|
Ocean
Park Advisors, LLC
By:
__________________________
Name:
W. Xxxxx Xxxxx III
Title:
Managing Director
Shares
of Series A Preferred Stock: 0
Shares
of Series B Preferred Stock: 0
Shares
of Common Stock: 5,144,497
|
10
|
/s/
Xxxxxxx X.
Xxxxxx
Xxxxxxx
X. Xxxxxx
Shares
of Series A Preferred Stock: 0
Shares
of Series B Preferred Stock: 0
Shares
of Common Stock: 6,978,630
|
/s/
Xxx X.
Xxxxxxx
Xxx
X. Xxxxxxx
Shares
of Series A Preferred Stock: 0
Shares
of Series B Preferred Stock: 0
Shares
of Common Stock: 4,131,370
|
11
| INDIVIDUAL(S): | |
| (Print Name of Member) | |
| Dated: | |
| (Signature of Member) | |
|
(Print
Name of Co-Member)
|
|
| Dated: | |
| (Signature of Co-Member) | |
| ENTITY: | |
| (Print Name of Member) | |
| By: | Dated: |
|
(Signature
of Authorized Signatory)
|
|
| (Print Name and Title of Authorized Signatory) | |
|
By:
|
Dated: |
|
(Signature
of Required Authorized Co-Signatory)
|
|
| (Print Name and Title of Authorized Co-Signatory) |
Signature
Page to
Securities Purchase Agreement
12
EXHIBIT
A
PURCHASE
AGREEMENT
EXHIBIT
A
13
