Execution Version
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
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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.
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
XXXXX XX XXX XXXX XX
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XX XXX XXXXXX XXXXXX 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.
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
(ii) if to Pure Biofuels to:
Pure Biofuels Corp.
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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.
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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.
[remainder of page left blank intentionally]
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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: Senior Vice President
[Signature page to Voting Agreement]
PLAINFIELD PERU II LLC
By: /s/ Xxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
[Signature page to Voting Agreement]
PLAINFIELD SPECIAL SITUATIONS
MASTER FUND LIMITED
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]
By: /s/ Xxx Xxxxxxx
--------------------------
Name: Xxx Xxxxxxx
[Signature page to Voting Agreement]
By: /s/ Xxxxxxx Xxxxxx
--------------------------
Name: Xxxxxxx Xxxxxx
[Signature page to Voting Agreement]
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxxxx
[Signature page to Voting Agreement]
By: /s/ Xxxx Xxxxx Xxxxxxxx
--------------------------
Name: Xxxx Xxxxx Xxxxxxxx
[Signature page to Voting Agreement]
By: /s/ Xxxxxxx Xxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxx
[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: General Manager
[Signature page to Voting Agreement]
TECHNOVALE LTD
By: /s/
----------------------------
Name: Authorized Signatories
Title: COS International
Limited as Sole Director
[Signature page to Voting Agreement]
CTH ONE LP
By: /s/
----------------------------
Name: Authorized Signatory
Title: Manager Citi Holdings LLC
GP of CTH One, LP
[Signature page to Voting Agreement]
SCHEDULE I
NUMBER OF
SHARES OF
STOCKHOLDER NAME ADDRESS COMMON STOCK
---------------------- --------------------------------------------- ----------------
Xxxxx Xxxxxxx 000 Xxxxxx Xxxx 0,000,000
X. Xxxxxxxxx, XX Xxxxxx X0X 0X0
Xxx Xxxxxxx 0000-000 Xxxxx Xxxxxxxx 0,000,000
X. Xxxxxxxxx, XX Xxxxxx X0X 0X0
Xxxxxxx Xxxxxx 000 Xxxx 00 Xxx 000,000
Xxxxxxxxx, XX Xxxxxx X0X 0X0
Xxxxxxx Xxxxxxxxxx Xxxxx Xxx Xxxxxxxx 000 XXXX 000 000,000
Xxxxxxxxxx Xxxxx, Xxxx Xxxx 33
Xxxx Xxxxx Xxxxxxxx Xx Xx Xxxxxx 000 000,000
Xxxxx, Xxxx, Xxxx 33
Xxxxxxx Xxxxxxx Calle Los Euchariz 150 DPTO 201 990,990
Monterrico Surco, Lima, Per 33
Xxxxx Xxxxxxx 0000-000 Xxxxxxxx Xxxxxx 000,000
Xxxxxxxxx, XX Xxxxxx X0X 0X0
Trimarine Corporation Xxxxx Xxxxxxx 000 xx 000 Xxxxxxxxxxx 000,000
Xxxx, Xxxx 18
Technovale Ltd. 00 Xxxxxxxxx Xx. Xxxxxx Xxxxxx, XX00XX 250,000
Jersey, Channel Islands
CTH One LP 000 X. Xxxx Xx #0000, Xxx Xxxxxxx, XX 00000 416,667
----------------
Total Number of Shares 10,806,463
================
EXHIBIT 1
FORM OF IRREVOCABLE PROXY
Reference is made to that certain Voting Agreement (the "Voting
Agreement")dated as of September 12, 2007 by and among the stockholders of Pure
Biofuels Corp. party thereto, Plainfield Special Situations Master Fund Limited,
Plainfield Peru I LLC and Plainfield Peru II LLC.
Pursuant to the terms of the Voting Agreement, the acquisition by the
undersigned of the shares of common stock referred to below is conditioned upon
execution and delivery of this Proxy.
The undersigned, being the record owner of [number] shares of common stock,
$.001 par value per share, of Pure Biofuels Corp., does hereby appoint [Name of
Stockholder] as my proxy to attend any meeting of the stockholders of Pure
Biofuels Corp. referred to in Section 1 of the Voting Agreement, with full power
to act for me in the same manner and extent that the undersigned might if
personally present at such meeting.
[Name of Stockholder] shall have full power to substitute another person as
his proxy and to revoke the appointment of any such substitute person.
This Proxy is irrevocable until January 31, 2008 and coupled with an
interest.
-----------------------------------
[Name of transferee of Stockholder]
EXHIBIT 2
FORM OF IRREVOCABLE PROXY
Reference is made to that certain Voting Agreement (the "Voting
Agreement")dated as of September 12, 2007 by and among the stockholders of Pure
Biofuels Corp. party thereto, Plainfield Special Situations Master Fund Limited,
Plainfield Peru I LLC and Plainfield Peru II LLC.
The execution and delivery of the Voting Agreement and this Proxy is a
condition to the willingness of Plainfield to enter into the Financing
Agreements (as defined in the Voting Agreement).
The undersigned, being the record owner of [number] shares of common stock,
$.001 par value per share, of Pure Biofuels Corp., does hereby appoint
[_________________] as my proxy to attend any meeting of the stockholders of
Pure Biofuels Corp. referred to in Section 1 of the Voting Agreement, with full
power to act for me in the same manner and extent that the undersigned might if
personally present at such meeting.
[_________________] shall have full power to substitute another person as
his proxy and to revoke the appointment of any such substitute person.
This Proxy is irrevocable until January 31, 2008 and coupled with an
interest.
-----------------------------------
[Name of Stockholder]
