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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, grant a lien
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 o
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