VOTING AGREEMENT
VOTING
AGREEMENT, dated as of September 12, 2007 (this “Agreement”),
by
and among the stockholders of Pure Biofuels Corp., a Nevada corporation (the
“Company”),
listed on the signature page(s) hereto (collectively, the “Stockholders”
and
each individually, a “Stockholder”),
Plainfield Special Situations Master Fund Limited, a Xxxxxx Xxxxxxx Xxxxxxxxxxx
(“XXXX”),
Xxxxxxxxxx Xxxx I LLC, a Delaware limited liability company (“LLCI”),
and
Plainfield Peru II LLC, a Delaware limited liability company (“LLCII”
and
together with PSSM and LLCI, “Plainfield”).
RECITALS
WHEREAS,
as of the date hereof, the Stockholders beneficially own an aggregate of
10,806,463 shares of common stock of the Company, par value $0.001 per share
(the “Common
Stock”),
as
set forth on Schedule
I
hereto
(such shares, or any other voting or equity securities of the Company hereafter
acquired by any Stockholder prior to the termination of this Agreement, being
referred to herein collectively as the “Shares”);
WHEREAS,
concurrent with the execution of this Agreement, Pure Biofuels del Peru S.A.C.
and Palma Industrial S.A.C., each a subsidiary of the Company, as Borrowers,
and
the Company, as Guarantor, are entering into a Loan Agreement with PSSM, dated
as of the date hereof (the “Loan
Agreement”)
pursuant to which, upon the terms and subject to the conditions thereof,
Plainfield will make available to the Borrower borrowings in the aggregate
amount of $20,000,000;
WHEREAS,
concurrent with the execution of this Agreement, the Company is entering into
a
Securities Purchase Agreement with LLCI and LLCII, dated as of the date hereof
(the “Securities
Purchase Agreement”
and,
together with the Loan Agreement, the “Financing
Agreements”),
pursuant to which, upon the terms and subject to the conditions thereof, the
Company will issue to LLCI and LLCII 11,000,000 shares of common stock of the
Company, $10,000,000 aggregate principal amount of 10%/12% Convertible PIK
Election Notes, convertible into 16,666,6667 shares of Common Stock (the
“Notes”)
and
warrants representing the right to purchase shares of Common Stock of the
Company representing in the aggregate 34.4% of the Company’s fully diluted
Common Stock (the “Warrants”);
WHEREAS,
the conversion of the Notes and the exercise of the Warrants are conditioned
upon the receipt of stockholder approval of a proposal to
increase the number of authorized shares of common stock of the Company from
93,750,000 to a number sufficient to support the issuance of the common stock
underlying the Note and the Warrants;
and
WHEREAS,
as a condition to the willingness of Plainfield to enter into the Financing
Agreements, Plainfield has required that the Stockholders agree, and in order
to
induce Plainfield to enter into the Financing Agreements, the Stockholders
are
willing, to enter into this Agreement.
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. Voting
of Shares.
The
Stockholders shall vote all Common Stock beneficially owned by each (including
any Common Stock hereafter acquired) at any regular or special meeting of the
stockholders of the Company, or in any written consent executed in lieu of
such
a meeting of stockholders, in favor of a proposal to (i) increase the number
of
authorized shares of common stock of the Company from 93,750,000 to a number
sufficient to support the issuance of the common stock underlying the Notes
(including any Notes issued in lieu of interest thereon) and the Warrants and
(ii) delete Article 15 (“Stockholder Appraisal Rights in Business Combinations”)
from the Articles of Incorporation of the Company.
Section
2. Term.
2.1 This
Agreement shall terminate upon the earlier of stockholder approval of the
actions set forth in Section 1 hereof and January 31, 2008.
Section
3. Covenants
of the Stockholders.
3.1 Disposition
of Stock by Stockholders.
The
Stockholders shall not, directly or indirectly, prior to stockholder approval
of
the actions set forth in Section 1 hereof, sell, dispose of or otherwise
transfer record or beneficial ownership of any shares of Common Stock subject
to
this Agreement owned of record or beneficially by the Stockholders as of the
date hereof unless:
(a) Such
sale, disposition or transfer is effected after the record date for determining
holders of Common Stock who will be entitled to notice of and to vote on the
actions set forth in Section 1 hereof; or
(b) Any
person acquiring any share of Common Stock of the Stockholders prior to the
record date set forth in Section 3.1(a), by accepting it, (i) agrees to be
subject to all the terms and conditions of this Agreement as if such person
signed this Agreement as a Stockholder, and (ii) either (A) agrees to execute
an
irrevocable proxy in substantially the form attached hereto as Exhibit
1,
or (B)
is notified that such Stockholder has executed an irrevocable proxy in
substantially the form attached hereto as Exhibit
2
by
placing a legend on such stock certificates.
3.2 No
Inconsistent Agreement.
The
Stockholders shall not enter into any agreement or grant any proxy or power
of
attorney with respect to their respective Common Stock that is inconsistent
with
the terms hereof.
Section
4. Representations
and Warranties of the Stockholders.
The
Stockholders hereby severally and not jointly represent and warrant to
Plainfield as follows:
4.1 Authority.
This
Agreement has been duly executed and delivered by each of the Stockholders
and
this Agreement constitutes valid and binding obligations of each of the
Stockholders enforceable in accordance with its terms except as enforcement
may
be limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors’ rights generally and except that the availability of
equitable remedies, including specific performance, is subject to the discretion
of the court before which any proceeding therefore may be brought.
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4.2 The
Common Stock.
The
Stockholders have good and marketable title to, and sole voting rights with
respect to, their respective Common Stock.
Section
5. Representations
and Warranties of Plainfield.
Plainfield has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Plainfield and the consummation by Plainfield
of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Plainfield. This Agreement has been
duly executed and delivered by Plainfield and this Agreement constitutes valid
and binding obligations of Plainfield enforceable in accordance with its terms
except as enforcement may be limited by bankruptcy, insolvency or other similar
laws affecting the enforcement of creditors’ rights generally and except that
the availability of equitable remedies, including specific performance, is
subject to the discretion of the court before which any proceeding therefor
may
be brought.
Section
6. Miscellaneous.
6.1 Specific
Performance.
Since a
breach of the provisions of this Agreement could not adequately be compensated
by money damages, any party shall be entitled, in addition to any other right
or
remedy available to it, to an injunction restraining such breach or a threatened
breach and to specific performance of any such provision of this Agreement,
and
in either case no bond or other security shall be required in connection
therewith, and the parties hereby consent to such injunction and to the ordering
of specific performance.
6.2 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.
6.3 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.
6.4 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 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.
3
6.5 Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same
instrument.
6.6 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, see Schedule I
4
(ii) if
to
Pure Biofuels to:
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:
Plainfield
Special Situations Master Fund Limited
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
6.7 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.
6.8 Assignment.
Except
as provided in Section 3 hereof, neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned or delegated,
in
whole or in part, by operation of law or otherwise by any of the parties hereto
without the prior written consent of the other parties and any such assignment
without such prior written consent shall be null and void. Subject to the
preceding sentence, this Agreement shall be binding upon, inure to the benefit
of, and be enforceable by, the parties hereto and their respective successors
and permitted assigns.
5
6.9 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.
6.10 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 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.
6.11 WAIVER
OF JURY TRIAL.
PLAINFIELD AND EACH STOCKHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL
BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT
OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THE ACTIONS OF PLAINFIELD OR EACH STOCKHOLDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT.
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IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
signed individually or by its respective duly authorized officer as of the
date
first written above.
| PLAINFIELD PERU I LLC | ||
| |
|
|
| By: /s/ Xxxxxx Xxxxxxxx | ||
|
Name: Xxxxxx Xxxxxxxx |
||
| Title: Authorized Individual | ||
[Signature
page to Voting Agreement]
| PLAINFIELD PERU II LLC | ||
| |
|
|
| By: /s/ Xxxxxx Xxxxxxxx | ||
|
Name: Xxxxxx Xxxxxxxx |
||
| Title: Authorized Individual | ||
[Signature
page to Voting Agreement]
| |
|
|
| By: /s/ Xxxxx Xxxxxxx | ||
|
Name: Xxxxx Xxxxxxx |
||
[Signature
page to Voting Agreement]
| TRIMARINE CORPORATION | ||
| |
|
|
| By: /s/ Xxxxx Xxxxxxx | ||
|
Name: Xxxxx Xxxxxxx |
||
| Title: Authorized Signatory | ||
[Signature
page to Voting
Agreement]
|
TECHNOVALE
LTD
|
||
| |
|
|
| By: /s/ | ||
|
Name: |
||
| Title: | ||
[Signature
page to Voting
Agreement]
|
CTH
ONE LP
|
||
| |
|
|
| By: /s/ | ||
|
Name: |
||
| Title: | ||
[Signature
page to Voting
Agreement]
