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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
Stockholde
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