VOTING AGREEMENT
VOTING AGREEMENT, dated as of May 13, 2005 ("Agreement"), between HydroGen
LLC, an Ohio limited liability company ("Company"), and Xxxxxxx Reverse Merger
Fund, LLC, a Delaware limited liability company ("Shareholder").
WHEREAS, as of the date hereof, Shareholder owns beneficially of record or
has the power to vote, or direct the vote of, 7,545,000 shares of common stock
("Chiste Common Stock"), of Chiste Corporation, a Nevada corporation ("Chiste");
WHEREAS, the Company proposes to enter into a Exchange Agreement, dated as
of even date herewith ("Exchange Agreement"; capitalized terms used but not
defined in this Agreement shall have the meanings ascribed to them in the
Exchange Agreement), which provides, upon the terms and subject to the
conditions thereof, for the contribution by the members of the Company of their
membership interests to Chiste in exchange for a substantial amount of Chiste
Series B Preferred Stock ("Exchange"); and
WHEREAS, as a condition to the Company and Chiste entering into the
Exchange Agreement, the Company, for itself and the members of the Company, has
requested that the Shareholder agree, and, in order to induce Company to enter
into the Exchange Agreement, the Shareholder has agreed, to enter into this
Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Exchange Agreement, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
TRANSFER AND VOTING OF CHISTE COMMON STOCK
SECTION 1.01 Transfer of Chiste Common Stock. Shareholder shall not,
directly or indirectly, (a) sell, pledge or otherwise dispose of any or all of
Shareholder's Chiste Common Stock, (b) deposit any of its Chiste Common Stock
into a voting trust or enter into a voting agreement or arrangement with respect
to any of its Chiste Common Stock or grant any proxy with respect thereto (other
than as contemplated hereunder), or (c) enter into any contract, option or other
arrangement or undertaking (other than the Exchange Agreement) with respect to
the direct or indirect acquisition or sale, assignment, transfer or other
disposition of any its Chiste Common Stock.
SECTION 1.02 Vote in Favor of Exchange. Shareholder, solely in such
Shareholder's capacity as a Shareholder of Chiste, agrees to vote (or cause to
be voted) all of its Chiste Common Stock currently beneficially owned by
Shareholder, and all Chiste Common Stock which such Shareholder acquires in the
future, at any meeting of the Shareholders of Chiste, and in any action by
written consent of the Shareholders of Chiste, (i) in favor of the adoption of
the Exchange Agreement and approval of the Exchange and the other transactions
contemplated by the Exchange Agreement or necessary or pertinent to the
Exchange, (ii) against any merger, consolidation, sale of assets,
recapitalization or other business combination involving Chiste (other than the
Exchange) or any other action or agreement that would result in a breach of any
covenant, representation or warranty or any other obligation or agreement of
Chiste under the Exchange Agreement or that would result in any of the
conditions to Chiste's obligations under the Exchange Agreement not being
fulfilled, and (iii) in favor of any other matter relating to consummation of
the transactions contemplated by the Exchange Agreement. This agreement to vote
extends to no other matter, except as specifically enumerated above.
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SECTION 1.03 Grant of Proxy; Further Assurances. (a) Shareholder, by this
Agreement, with respect to all Chiste Common Stock over which it has voting
authority and any Chiste Common Stock hereinafter acquired by such Shareholder
over which it may have voting authority, does hereby irrevocably constitute and
appoint Xxxxxx Xxxxxxxx and/or Xxxxxx Xxxxxx , acting individually or jointly,
or any nominee, with full power of substitution, as his or its true and lawful
attorney and proxy, for and in his or its name, place and stead, to vote each of
such Chiste Common Stock as such Shareholder's proxy, at every annual, special
or adjourned meeting of the Shareholders of Chiste (including the right to sign
his or its name (as Shareholder) to any consent, certificate or other document
relating to Chiste that may be permitted or required by applicable law) (i) in
favor of the adoption of the Exchange Agreement and approval of the Exchange and
the other transactions contemplated by the Exchange Agreement, (ii) against any
merger, consolidation, sale of assets, recapitalization or other business
combination involving Chiste (other than the Exchange) or any other action or
agreement that would result in a breach of any covenant, representation or
warranty or any other obligation or agreement of Chiste under the Exchange
Agreement or that would result in any of the conditions to Chiste's obligations
under the Exchange Agreement not being fulfilled, and (iii) in favor of any
other matter relating to consummation of the transactions contemplated by the
Exchange Agreement. Shareholder acknowledges receipt and review of a copy of the
Exchange Agreement. This proxy extends to no other matter, except as enumerated
above.
(b) Shareholder shall perform such further acts and execute such further
documents and instruments as may reasonably be required to vest in the Company
the power to carry out the provisions of this Agreement.
SECTION 1.04 Termination. The obligations of the Shareholder pursuant to
this Article I (including the grant of the proxy in Section 1.03) shall
terminate upon the earlier of (i) the consummation of the Exchange, or (ii) the
date of the termination of the Exchange Agreement.
SECTION 1.05 Obligations as Director and/or Officer. If Shareholder or any
of its affiliates or nominees is a member of the board of directors of Chiste (a
"Director") or an officer of Chiste (an "Officer"), nothing in this Agreement
shall be deemed to limit or restrict the Director or Officer acting in his or
her capacity as a Director or Officer of Chiste, as the case may be, and
exercising his or her fiduciary duties and responsibilities, it being agreed and
understood that this Agreement shall apply to Shareholder solely in his or her
capacity as a shareholder of Chiste and shall not apply to his or her actions,
judgments or decisions as a Director or Officer of Chiste.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES;
COVENANTS OF THE SHAREHOLDER
Shareholder hereby severally represents warrants and covenants to Company
as follows:
SECTION 2.01 Organization; Authorization. Shareholder has full legal
capacity and authority to enter into this Agreement and to carry out its
obligations hereunder. This Agreement has been duly executed and delivered by
Shareholder, and (assuming due authorization, execution and delivery by the
Company) this Agreement constitutes a legal, valid and binding obligation of
Shareholder, enforceable against Shareholder in accordance with its terms.
SECTION 2.02 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by Shareholder do not,
and the performance of this Agreement by Shareholder will not, (i) conflict with
or violate any Legal Requirement applicable to Shareholder or by which any
property or asset of Shareholder is bound or affected, or (ii) result in any
breach of or constitute a default (or an event which with notice or lapse of
time or both would become a default) under, or give to others any right of
termination, amendment, acceleration or cancellation of, or result in the
creation of any encumbrance on any property or asset of Shareholder, including,
without limitation, the Chiste Common Stock, pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation. There is no beneficiary or holder of a voting
trust certificate or other interest of any trust of which Shareholder is a
trustee whose consent is required for the execution and delivery of this
Agreement or the consummation by Shareholder of the transactions contemplated by
this Agreement.
(b) The execution and delivery of this Agreement by Shareholder does not,
and the performance of this Agreement by such Shareholder will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority, domestic or foreign, except (i)
for applicable requirements, if any, of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and (ii) where the failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or materially delay the performance by
Shareholder of Shareholder's obligations under this Agreement. Except pursuant
to this Agreement, Shareholder does not have any understanding with a third
party in effect with respect to the voting of any Chiste Common Stock.
SECTION 2.03 Litigation. There is no private or governmental action, suit,
proceeding, claim, arbitration or investigation pending before any agency, court
or tribunal, foreign or domestic, or, to the knowledge of Shareholder or any of
Shareholder's affiliates, threatened against Shareholder or any of Shareholder's
affiliates or any of their respective properties or any of their respective
officers or directors, in the case of a corporate entity (in their capacities as
such) that, individually or in the aggregate, would reasonably be expected to
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materially delay or impair Shareholder's ability to consummate the transactions
contemplated by this Agreement. There is no judgment, decree or order against
such Shareholder or any of Shareholder's affiliates, or, to the knowledge of
such Shareholder of any of Shareholder's affiliates, any of their respective
directors or officers, in the case of a corporate entity (in their capacities as
such), that would prevent, enjoin, alter or materially delay any of the
transactions contemplated by this Agreement, or that would reasonably be
expected to have a material adverse effect on Shareholder's ability to
consummate the transactions contemplated by this Agreement.
SECTION 2.04 Title to Chiste Common Stock. Shareholder is the legal or
beneficial owner of its Chiste Common Stock free and clear of all encumbrances.
Except for this Agreement, there are no voting trusts, shareholder agreements,
proxies or other agreements or understandings in effect with respect to the
voting or transfer of such Chiste Common Stock. Such Chiste Common Stock is all
the securities of Chiste owned of record or beneficially by Shareholder on the
date of this Agreement.
SECTION 2.05 Absence of Claims. Shareholder has no knowledge of any causes
of action or other claims that could have been asserted by the Shareholder
against Chiste or any of its predecessors, successors, assigns, directors,
employees, agents or representatives arising out of facts or circumstances
occurring at any time on or prior to the date hereof and in any way relating to
any duty or obligation of Chiste or any Shareholder. Shareholder further
represents and warrants that it will not bring for itself or cause to be
asserted any claims or other actions against Chiste based on any fact or
circumstance occurring at anytime prior to the Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES;
COVENANTS OF COMPANY
Company hereby represents, warrants and covenants to the Shareholder as
follows:
SECTION 3.01 Organization; Authorization. The Company is a limited
liability corporation duly incorporated, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as it is now being conducted. The Company has all
necessary corporate power and authority to execute and deliver this Agreement
and to perform its obligations hereunder and to consummate the transactions
contemplated by this Agreement. The execution and delivery of this Agreement by
the Company and the consummation by the Company of the transactions contemplated
by this Agreement has been duly and validly authorized by all necessary
corporate action and no other corporate proceedings on the part of the Company
is necessary to authorize this Agreement and the other transactions contemplated
by this Agreement. This Agreement has been duly and validly executed and
delivered by the Company and, assuming the due authorization, execution and
delivery by the Shareholder, constitutes a legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms.
SECTION 3.02 No Conflict; Required Filings and Consents.
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(a) The execution and delivery of this Agreement by the Company and the
performance of this Agreement by the Company does not, and the performance of
this Agreement will not, (i) conflict with or violate any of the terms of the
incorporating and operating documentation of the Company, or (ii) conflict with
or violate any Legal Requirement applicable to the Company or by which the
Company or any of its property or assets is bound or affected.
(b) The execution and delivery of this Agreement by the Company and the
performance of this Agreement by the Company will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
Governmental Authority, except (i) for applicable requirements, if any, of the
Exchange Act and state securities laws, and (ii) where the failure to obtain
such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not reasonably be expected to prevent or materially delay
the consummation of the transactions contemplated by this Agreement.
ARTICLE IV
GENERAL PROVISIONS
SECTION 4.01 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be given (and shall be deemed to
have been duly given upon receipt) by delivery in person, by overnight courier
service, by telecopy, or by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other addresses as shall be specified by notice given in accordance
with this Section 4.01):
(a) if to the Company:
HydroGen LLC
0000 Xxxxx 00 Xxxxx
Xxxxxxxxx Xxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx, President/Managing Member
(b) if to Shareholder:
Xxxxxxx Reverse Merger Fund, LLC
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxxxxx Xxxxxxx, XX XXX 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx, Manager
SECTION 4.02 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 4.03 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 so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. 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 an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
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SECTION 4.04 Entire Agreement. This Agreement constitutes the entire
agreement of the parties and supersedes all prior agreements and undertakings,
both written and oral, between the parties, or any of them, with respect to the
subject matter hereof. This Agreement may not be amended or modified except in
an instrument in writing signed by, or on behalf of, the parties hereto.
SECTION 4.05 Assignment. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, provided that no party may assign, delegate or
otherwise transfer any of its rights, interests or obligations under this
Agreement without the prior written consent of the other parties hereto.
SECTION 4.06 Fees and Expenses. Except as otherwise provided herein, all
costs and expenses (including, without limitation, all fees and disbursements of
counsel, accountants, investment bankers, experts and consultants to a party)
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such costs and expenses.
SECTION 4.07 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
SECTION 4.08 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Colorado applicable to
contracts executed in and to be performed in that State.
SECTION 4.09 Disputes. All actions and proceedings arising out of or
relating to this Agreement shall be heard and determined exclusively in any
Colorado state or federal court sitting in the County of Denver, Colorado.
SECTION 4.10 No Waiver. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 4.11 Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
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SECTION 4.12 Waiver of Jury Trial. Each of the parties hereto irrevocably
and unconditionally waives all right to trial by jury in any action, proceeding
or counterclaim (whether based in contract, tort or otherwise) arising out of or
relating to this Agreement or the Actions of the parties hereto in the
negotiation, administration, performance and enforcement thereof.
SECTION 4.13 Exchange Agreement. All references to the Exchange Agreement
herein shall be to such agreement as may be amended by the parties thereto from
time to time.
[Signature page(s) follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
HydroGen LLC
By: /s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx, President/Managing Member
Xxxxxxx Reverse Merger Fund, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Manager
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