VOTING AGREEMENT
THIS
VOTING AGREEMENT (this “Agreement”),
is
made as of January 26, 2007, by and between SunFuels, Inc., a Colorado
corporation (the “SunFuels”)
and
the undersigned stockholder (“Stockholder”)
of
M-Wave, Inc., a Delaware corporation (“MWAV”).
RECITALS
WHEREAS,
SunFuels and MWAV are presently negotiating a Merger Agreement in the form
attached hereto as Exhibit
A
(“Merger
Agreement”),
by
and among MWAV, Ocean Merger Sub, Inc., a Delaware corporation and wholly owned
subsidiary of the MWAV (“Merger
Sub”),
SunFuels, and Blue Sun Biodiesel LLC, a Colorado limited liability company
and
subsidiary of SunFuels (“Blue
Sun”);
WHEREAS,
on the terms and subject to the conditions of the Merger Agreement, (i) upon
the
consummation of the Company Merger (as defined in the Merger Agreement), Merger
Sub will be merged with and into SunFuels, with SunFuels as the surviving
corporation, and the separate existence of Merger Sub will cease, and (ii)
upon
the completion of the Blue Sun Merger (as defined in the Merger Agreement),
Blue
Sun will be merged with and into SunFuels, with SunFuels as the surviving
corporation, and the separate existence of Blue Sun will cease (collectively,
the “Mergers”);
WHEREAS,
as of the date hereof, Stockholder, owns the equity securities of MWAV (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 Parent Stockholder Approvals (as defined in the Merger Agreement), in order
to induce SunFuels to consummate the Mergers and 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 MWAV, however called, and in any action by consent of
the
stockholders of MWAV, Stockholder will vote or cause to be voted in favor of
the
Parent Stockholder Approvals: (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 Merger
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 Merger Agreement, (iii)
Stockholder has carefully considered and has, to the extent Stockholder believes
such discussion necessary, discussed the Mergers with Stockholder’s professional
legal, tax and financial advisers, (iv) SunFuels has made available to
Stockholder the opportunity to ask questions of, and receive answers from,
SunFuels concerning the terms and conditions of the Mergers, and to obtain
any
additional information which SunFuels had in its possession or was able to
acquire without unreasonable effort or expense and (v) Stockholder has reviewed
the SunFuels Confidential Private Placement Memorandum dated October 6, 2006
and
the Supplement thereto dated January 15, 2007.
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 MWAV, 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 SunFuels as follows:
Section
2.1 Title
to Equity Securities.
As of
the date hereof, Stockholder is the record and beneficial owner of the number
of
Securities set forth on Stockholder’s signature page hereto. Such Securities,
are and will be on the Effective Date (as defined in the Merger 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 SunFuels 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.
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. 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 THE COMPANY
Section
4.1 Other
Agreements.
SunFuels
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 MWAV stockholders to vote, or pursuant to which one or more MWAV
stockholders agrees to vote, in favor of approving the Parent Stockholder
Approvals 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 MWAV obtains stockholder approval of the Parent Stockholder Approvals
in
accordance with the Delaware Business Corporations Act, and (b) the date on
which SunFuels notifies Stockholder in writing that it has abandoned the Mergers
for any reason other than as the result of a breach of this Agreement by
Stockholder.
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) 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:
|
At
such address as is set forth on its signature page
hereto.
|
|
If
to SunFuels:
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SunFuels,
Inc.
|
|
0000
X. 000xx
Xxx., Xxxxx 000
|
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Xxxxxxxxxxx,
XX 00000
|
|
Attention:
[Xxxx Xxxxxx]
|
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Telephone
No.: (000) 000-0000
|
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Facsimile
No.: (000) 000-0000
|
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With
a copy to:
|
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Faegre
& Xxxxxx LLP
|
|
0000
00xx Xxxxxx
|
|
Xxxxxxx,
XX 00000
|
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Attention:
Xxxxx X. Xxxxxxx, Esq.
|
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Telephone
No.: (000) 000-0000
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Facsimile
No.: (000) 000-0000
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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 Parent Stockholder
Approvals.
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 Colorado, 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 Colorado;
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
Signatures.
Any
signature page delivered pursuant to this Agreement via facsimile 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.
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SUNFUELS,
INC.
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||||
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By:
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/s/
Xxxxxx Xxxxx
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|||
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Name:
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Xxxxxx
Xxxxx
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|||
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Title:
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Chief
Financial Officer
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|||
[Counterpart
Stockholder Signature Page Follows]
IN
WITNESS WHEREOF, the undersigned has executed this Voting Agreement, effective
as of the date first written above.
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INDIVIDUAL:
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||
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Xxxxxx
X. Xxxxx
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||
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(Print
or Type Name of Individual)
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||
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/s/
Xxxxxx X. Xxxxx
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||
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(Signature
of Individual)
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ENTITY:
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|||
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(Print
or Type Name of Entity)
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|||
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By:
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|||
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(Signature
of Authorized Signatory)
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|||
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Name:
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|||
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(Print
or Type Name of Authorized Signatory)
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|||
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Title:
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|||
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(Print
or Type Title of Authorized Signatory)
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|||
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ADDRESS
FOR NOTICES:
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00000
Xxxxxxxx Xxxxxx
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|||
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||||
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0xx
Xxxxx
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||||
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Xxxxxxxx
Xxxx, XX 00000
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||||
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||||
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Fax
No.:
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(000)
000-0000
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|||
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EQUITY
SECURITIES OF MWAV OWNED
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344,750
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shares
of Common Stock
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||
| BY STOCKHOLDER: |
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|||
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shares
of Series A Preferred Stock
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||||
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shares
of Series B Preferred Stock
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IN
WITNESS WHEREOF, the undersigned has executed this Voting Agreement, effective
as of the date first written above.
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INDIVIDUAL:
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||
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(Print
or Type Name of Individual)
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||
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(Signature
of Individual)
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ENTITY:
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Asset
Managers International Limited
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|||
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(Print
or Type Name of Entity)
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By:
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/s/
Xxxxxxxx X. Xxxxx
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(Signature
of Authorized Signatory)
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|||
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Name:
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Xxxxxxxx
X. Xxxxx
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(Print
or Type Name of Authorized Signatory)
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|||
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Title:
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Director
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(Print
or Type Title of Authorized Signatory)
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|||
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ADDRESS
FOR NOTICES:
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Pentagon
Capital Management PLC
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|||
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Xxx
Xxxxxxxxxxxxx, Xxxxxx XX0X 0XX
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||||
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Xxxxxx
Xxxxxxx
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||||
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||||
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Fax
No.:
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x00
000 000 0000
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|||
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EQUITY
SECURITIES OF MWAV OWNED
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151,375
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shares
of Common Stock
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||
| BY STOCKHOLDER: | ||||
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shares
of Series A Preferred Stock
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||||
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|
||||
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shares
of Series B Preferred Stock
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Monarch
Pointe Fund Ltd.
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Mercator
Momentum Fund, L.P.
|
||||
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By:
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M.A.G.
CAPITAL, LLC
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By:
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M.A.G.
CAPITAL, LLC
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||
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Its:
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General
Partner
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Its:
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General
Partner
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By:
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/s/
Xxxxx Xxxxxxxxx
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By:
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/s/
Xxxxx Xxxxxxxxx
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Xxxxx
Xxxxxxxxx
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Xxxxx
Xxxxxxxxx
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||||
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Portfolio
Administrator
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Portfolio
Administrator
|
||||
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By:
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/s/
Xxxx Xxxxxxx
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By:
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/s/
Xxxx Xxxxxxx
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||
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Xxxx
Xxxxxxx
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Xxxx
Xxxxxxx
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||||
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Chief
Investment Officer
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Chief
Investment Officer
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||||
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Shares
of Series A Preferred Stock: 3,375
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Shares
of Series A Preferred Stock: 5,375
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||||
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Shares
of Series B Preferred Stock: 22,400
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Shares
of Series B Preferred Stock: 7,100
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||||
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Shares
of Common Stock: 148,429
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Shares
of Common Stock: 59,609
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||||
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M.A.G.
Capital, LLC
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Mercator
Momentum Fund III, L.P.
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||||
| By: | M.A.G. CAPITAL, LLC | ||||
| Its: | General Partner | ||||
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By:
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/s/
Xxxxx Xxxxxxxxx
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By:
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/s/
Xxxxx Xxxxxxxxx
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||
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Xxxxx
Xxxxxxxxx
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Xxxxx
Xxxxxxxxx
|
||||
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Portfolio
Administrator
|
|||||
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By:
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/s/
Xxxx Xxxxxxx
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By:
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/s/
Xxxx Xxxxxxx
|
||
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Xxxx
Xxxxxxx
|
Xxxx
Xxxxxxx
|
||||
|
Chief
Investment Officer
|
Chief
Investment Officer
|
||||
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Shares
of Common Stock: 39,464
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Shares
of Series A Preferred Stock: 3,750
|
||||
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Shares
of Series B Preferred Stock: 40,148
|
|||||
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Shares
of Common Stock: 102,213
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|||||
EXHIBIT
A
MERGER
AGREEMENT
