|
VOTING TRUST AGREEMENT
NO CERTIFICATE IN THE VOTING TRUST ESTABLISHED HEREBY
HAS BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE
SECURITIES LAW OF ANY STATE, EACH SUCH CERTIFICATE BEING ACQUIRED
BY THE HOLDER THEREOF IN A TRANSACTION EXEMPT FROM THE REGISTRATION
PROVISIONS OF SUCH LAWS.
THIS VOTING TRUST AGREEMENT (the
"Voting Trust Agreement") is made and entered into as of this __
day of _______________, 2007, by and among the shareholders set
forth on the signature page (collectively, the "Shareholders"),
each a holder of "Shares" (as hereinafter defined) issued by Malibu
Minerals, Inc., a Nevada corporation (the "Company"), together with
such other present and/or future shareholders of the Company as may
hereafter become parties hereto or holders of Voting Trust
Certificates (all of the foregoing being hereinafter being
individually referred to as a "Shareholder" and collectively
referred to as the "Shareholders"), on the one hand and Sichenzia
Ross Friedman Ference LLP with offices at 1065 Avenue of the
Americas, 21st Floor, New York, NY 10018, and any successor or
successors in trust (the "Trustee"), on the other hand.
WHEREAS, the Company is a
corporation organized and existing under the laws of the State of
Nevada, with authorized capital of 100,000,000 shares of common
stock, $.001 par value (the "Common Stock");
WHEREAS, the Stockholders own an
aggregate of ________________ shares of Common Stock;
WHEREAS, pursuant to an
Acquisition Agreement (the "Acquisition Agreement") dated December
___, 2006 between the Company, Flex Fuels Energy Limited, a company
registered in England and Wales under company number 6003328 ("Flex
Fuels"), and the shareholders of Flex Fuels, the Company acquired
15% all of the entire issued share capital of Flex Fuels in
consideration for payment of $1,500,000, and intends to further
acquire the balance, 85%, of the issued share capital of Flex Fuels
pursuant to the terms of the Acquisition Agreement;
WHEREAS, pursuant to the
Acquisition Agreement, each of the Shareholders has entered into a
Lock-up Agreement (the "Lock-up Agreement") dated as of the
respective date of execution with the Company and Flex Fuels
pursuant to which each Shareholder agreed not to, during the period
beginning on the date of the Acquisition Agreement and ending on
the date 12 months after the Completion Date (as defined in the
Acquisition Agreement), sell, assign, give, pledge, encumber,
dispose or otherwise transfer ownership of any right, title or
interest to all or any portion of the Shares (as defined below)
held by each respective Shareholder, unless permitted under the
Lock-up Agreement;
WHEREAS, in order to insure
continuity and stability of policy and management and for the
benefit and protection of the present and future holders of Common
Stock, the Company requires the deposit hereunder with the Voting
Trustee, of the shares of Common Stock being so deposited, and each
of the Stockholders deems the deposit of its shares of Common Stock
hereunder to be in its interest;
WHEREAS, the Trustee has
consented to act under this Voting Trust Agreement for the purposes
herein provided.
NOW, THEREFORE, in consideration
of the premises and the mutual covenants contained herein, the
parties hereto agree as follows:
1
1. Transfer of Stock to Trustee. Each of the Shareholders hereby assigns and transfers to the
Voting Trust the number of shares of Common Stock (the "Shares" or
the "Securities") set forth opposite such Shareholders name on
Exhibit A hereto and herewith deposits with the Voting Trust the
certificate or certificates representing such shares, duly endorsed
in blank or accompanied by a proper instrument of assignment duly
executed in blank, and in either case with all requisite transfer
tax stamps attached. Each of the Shareholders shall so assign,
transfer and deposit any other shares of Common Stock and the
certificates therefore hereafter acquired by such Shareholders,
including, without limitation, pursuant to the exercise of options
or warrants, immediately upon such acquisition. Upon receipt by the
Voting Trust of the certificates representing any shares of Common
Stock, the Voting Trust shall hold such shares subject to the terms
and conditions of this Agreement and shall deliver or cause to be
delivered to each Shareholders certificates (the "Voting Trust
Certificates") representing the shares of Common Stock so deposited
by such Shareholder.
All certificates of Securities transferred and
delivered to the Trustee pursuant to this Voting Trust Agreement
shall be surrendered by the Trustee to the Company and cancelled,
and new certificates therefor shall be issued to and held by the
Trustee in the name of "Richard A. Friedman as Trustee under the
Voting Trust Agreement, dated ______________ ____, 2007" and shall
have the following legend placed on the certificate
therefor:
"The shares represented by this certificate are
subject to the terms of a Voting Trust Agreement dated
______________ ____, 2007, as amended from time to time, a copy of
which is on file at the office of Sichenzia Ross Friedman Ference
LLP"
This legend shall be in addition to any other
legends which are required by federal or state laws (including, but
not limited to any legend required by the Securities Act of 1933 or
the "blue sky" laws of any state, or any rule or regulation
thereunder) or as otherwise may be reasonably required by the
Trustee.
2. Voting Trust Certificates. The Voting Trust Certificates to be issued and delivered by the
Trustee in respect of the Securities deposited with the Trustee
("Voting Trust Certificates") shall be in substantially the form of
Exhibit B attached hereto.
3. Transfer of Certificates. The
Voting Trust Certificates shall be transferable at the office of
the Trustee, located at 1065 Avenue of The Americas, 21st Floor,
New York, NY 10018 (or at such other office as the Trustee may
designate by an instrument in writing signed by the Trustee and
sent by mail to the registered holders of Voting Trust
Certificates), on the books of the Trustee, by the registered owner
thereof, either in person or by his duly authorized attorney, in
accordance with the terms of this Voting Trust Agreement, and
according to the rules established for that purpose by the Trustee
and upon surrender of such Voting Trust Certificates. The Trustee
may treat the registered holder as owner thereof for all purposes
whatsoever, but the Trustee shall not be required to deliver
certificates of Securities hereunder without the surrender of such
Voting Trust Certificates. The Trustee shall not be required to
recognize any transfer of a Voting Trust Certificate not made in
accordance with the provisions hereof.
If a Voting Trust Certificate is lost, stolen,
mutilated or destroyed, the Trustee, in the Trustee's discretion,
may issue a duplicate of such certificate upon receipt of: (a)
evidence of such fact satisfactory to the Trustee; (b) indemnity
satisfactory to the Trustee; (c) the existing certificate, if
mutilated; and (d) reasonable fees and expenses in connection with
the issuance of a new trust certificate.
4. Restrictions. No Shareholder
shall sell, assign, give, pledge, encumber, dispose or otherwise
transfer ownership of any right, title or interest to all or any
portion of his Securities or Voting Trust Certificates in the
Company, by operation of law or otherwise, except in accordance
with and as provided by this Voting Trust Agreement, the Lock-up
Agreement (as defined below) and except in compliance with all
applicable Federal and state securities laws, rules and
regulations.
5. Restrictions on Transfers. Voting Trust Certificates issued hereunder shall be freely
transferable by the holders thereof without restriction other than
compliance with all federal and state securities laws and all other
applicable laws, rules and regulations. Certificates for the
Securities deposited hereunder in the name of the Trustee shall not
be transferable at any time during the term hereof. Accordingly,
during the term hereof, no such Securities may be transferred,
conveyed, assigned, encumbered or hypothecated in any manner
whatsoever by the Trustee or the holder of the related Voting Trust
Certificate. The Shareholders further acknowledge that each of the
shareholders has also entered into or intends to enter into a
Lock-up Letter Agreement with the Company (the "Lock-up Agreement")
with respect to the Shares set forth opposite such
Shareholder’s name on Exhibit A hereto.
2
6. Voting of Shares. (a) Until
the Termination Date, the Trustee shall cause all Shares of Common
Stock held by the Voting Trust to be voted in accordance with the
decision of the Majority Directors.
(b) For purposes of this Voting Trust Agreement,
a "Majority Directors" shall mean an affirmative vote of a majority
of the votes cast by the Directors on a particular matter at a
meeting of the Directors at which a majority of the Directors is
present in person or by proxy, with each Director entitled to one
vote.
7. Agreement. A copy of this
Voting Trust Agreement, and of every agreement extending,
supplementing or amending this Voting Trust Agreement, shall be
filed in the principal office of the Company and shall be open to
the inspection of any Shareholder or any beneficiary of the trust
established under this Voting Trust Agreement. All Voting Trust
Certificates issued under this Voting Trust Agreement shall be
issued, received and held subject to the terms of this Voting Trust
Agreement. Every person, firm, or corporation entitled to receive
Voting Trust Certificates representing Securities, and their
transferees and assigns, upon accepting the Voting Trust
Certificates issued hereunder, shall be bound by the provisions of
this Voting Trust Agreement and shall be considered a Shareholder
for purposes of this Voting Trust Agreement. This Voting Trust
Agreement shall be governed under the laws of the State of New
York.
8. Termination of Agreement. Except as otherwise provided in this Voting Trust Agreement,
the Trust created by this Voting Trust Agreement is hereby
expressly declared to be irrevocable. This Voting Trust Agreement
shall terminate and be of no further force and effect twelve (12)
months after the Completion Date (as defined in the Acquisition
Agreement) (the "Termination Date").
9. Termination Procedure. Upon
the termination of this Voting Trust Agreement as provided in
Section 7 hereof, the Trustee, at such time as the Trustee may
choose during the period commencing twenty (20) days before and
ending twenty (20) days after such termination, shall mail written
notice of such termination to the registered owners of the Voting
Trust Certificates, at the addresses appearing on the transfer
books of the Trustee. From the date specified in any such notice
(which date shall be fixed by the Trustee), the Voting Trust
Certificates shall cease to have any effect, and the holders of
such Voting Trust Certificates shall have no further rights under
this Voting Trust Agreement other than to receive certificates for
the Securities or other property to the extent distributable under
the terms of this Voting Trust Agreement.
Within thirty (30) days after the termination of
this Voting Trust Agreement, the Trustee shall instruct the
Company’s transfer agent (the "Transfer Agent") to deliver to
the registered holders of all Voting Trust Certificates,
certificates for the number of shares of the Securities represented
thereby or other property as specified under the terms hereof, upon
the surrender of such Voting Trust Certificates properly endorsed,
such delivery to be made in each case at the designated office of
the Trustee; provided that the Trustee shall not be held liable for
the Company’s refusal to provide to the Transfer Agent any
documents requested by the Transfer Agent to effect the issuance or
delivery of the aforementioned certificates.
At any time subsequent to thirty (30) days after
the termination of this Voting Trust Agreement, the Trustee may
deposit Securities with the Company equal to the number of
Securities represented by the Voting Trust Certificates then
outstanding, with authority in writing to the Company to deliver
the Securities in exchange for such Voting Trust Certificates. Upon
such deposit, all further liability of the Trustee for the delivery
of the Securities and the delivery or payment of dividends upon
surrender of the Voting Trust Certificates shall cease, and the
Trustee shall not be required to take any further action
hereunder.
10. Dividends and Other Distributions.
If any dividend or other distribution in respect of
the Securities deposited with the Trustee is paid,
|
