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 SNB Associates, LLC, a Kansas 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 and proposed actions, (a) 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 into shares of capital stock
of Orion, (b) the amendment to Orion’s Articles of Incorporation to increase the
number of authorized shares of capital stock of Orion, and (c) the designation
of shares of Series A 8% Convertible Preferred Stock of Orion (such listed
and
unlisted actions, being collectively referred to herein as the “Merger”);
WHEREAS,
Stockholder directly or indirectly owns and holds shares of capital stock of
Orion (“Shares”)
which are or may become eligible to vote for certain actions proposed in
connection with the Merger and as contemplated by the Merger Agreement;
and
WHEREAS,
as an inducement to Orion, OEI and GreenHunter to enter into the Merger
Agreement, the Parties wish to establish and memorialize certain voting
obligations of Stockholder in connection with the Merger.
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 Stockholder.
Stockholder hereby agrees to vote, or to cause to be voted, all Shares that
are
owned and/or held, beneficially or otherwise, by Stockholder 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 Orion with respect to the
adoption and approval of the Merger at every meeting of stockholders of Orion
(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 and/or held, beneficially or
otherwise, by Stockholder against (or to withhold, or to cause to be withheld,
consents with respect to such Shares for) 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 No
Voting Trusts or Transfers.
Stockholder will not, and will not permit any person with any voting or
dispositive power over the Shares owned and/or held, beneficially or otherwise,
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 or any other agreement entered into in
furtherance of the Merger; (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. Notwithstanding the foregoing, this Section 1.2 shall
not
prohibit a distribution by the Stockholder of the Shares to the members of
the
Stockholder, nor shall it prohibit a subsequent transfer of 5,000,000 of the
Shares by certain of such members to EcoGen Invest LLC so long as, in each
such
case, a joinder agreement is entered into by the transferees in accordance
with
Section 1.3 below.
1.3 Joinder
Agreement.
Stockholder 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.
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.
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 operating 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.
2.3 Ownership
of Shares.
Stockholder is the sole record and beneficial owner of 24,807,057 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.
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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,
Waiver of Jury Trial.
(a) 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.
(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):
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To
Orion and/or OEI
|
000
Xxxxx Xxxx Xxxxxx
Xxxxx,
Xxxxxx 00000
Attention:
Chief Financial Officer
Telephone
(000) 000-0000
Facsimile:
(000) 000-0000
|
|
To
Stockholder:
|
SNB
Associates, LLC
c/o
Orion Ethanol, Inc.
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
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
|
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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.
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:_____________________________
SNB
ASSOCIATES, LLC
By:_____________________________
Name:___________________________
Its:_____________________________
|
[Signature
Page to SNB Associates Voting Agreement]
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