VOTING AGREEMENT
VOTING AGREEMENT, dated as of this 6th day of July, 2005
("Agreement"), among Chiste Corporation, a Nevada corporation ("Chiste"),
▇▇▇▇▇▇▇ Reverse Merger Fund, LLC, a Delaware limited liability company ("KRM
Fund"), and each of the persons whose signature appears under the caption
"Shareholders" on the signature page hereof. For purposes of this Agreement, KRM
Fund and each person whose signature appears on the signature page hereof shall
be referred to herein individually as "Shareholder" and collectively as the
"Shareholders".
WHEREAS, as of the date hereof, each Shareholder owns beneficially
of record or has the power to vote, or direct the vote of, shares of common
stock, par value $0.001 per share or shares of Series B Convertible Preferred
Stock, par value $0.001 per share, of Chiste as set forth opposite such
Shareholder's name on Exhibit A hereto (all such shares and any shares of which
ownership of record or the power to vote is hereafter acquired by the
Shareholders, whether by purchase, conversion or exercise, prior to the
termination of this Agreement being referred to herein as the "Shares");
WHEREAS, Chiste, HydroGen, LLC ("HydroGen"), the Shareholders (other
than KRM Fund) and other members of HydroGen have entered into an Exchange
Agreement, dated May 13, 2005 (as the same may be amended from time to time)
(the "Exchange Agreement")) which provides, upon the terms and subject to the
conditions thereof, for the exchange of all of the Interests of HydroGen for the
Buyer's Shares (the "Exchange");
WHEREAS, as a condition to the consummation of the Exchange
Agreement, Chiste has requested that the Shareholders agree, and the
Shareholders have agreed, severally, to enter into this Agreement; and
WHEREAS, the capitalized terms used but not defined in this
Agreement shall have the meanings ascribed to them in the Exchange 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 SHARES FOR DIRECTORS
SECTION 1.01 Transfer of Shares. Except as set forth in this Section
1.01, during the term of this Agreement, no Shareholder shall sell, transfer,
pledge or otherwise dispose of any Shares. Notwithstanding the foregoing, the
following transfers shall be permitted under this Agreement, subject to the
compliance with applicable securities laws: (a) each Shareholder shall be
permitted to, without permission from Chiste or any other Shareholder, directly
or indirectly, to deposit any Shares of the Shareholder into a trust or similar
arrangement of which the Shareholder or his immediate family (or in the case of
a corporate entity its affiliates or owners) are the beneficiaries or principals
in interest or hold the controlling interest, so long as the trust or holding
entity agrees in writing to be bound by the terms of this Agreement, and (b)
transfer the Shares by will or the laws of intestacy, so long as the
administrator or beneficiary agrees in writing to be bound by the terms of this
Agreement. Notwithstanding the foregoing, KRM Fund, shall be permitted to sell,
transfer, pledge or otherwise dispose of any or all of its Shares at any time
without restriction and without permission from Chiste or any other Shareholder.
Each certificate evidencing Shares owned by each Shareholder (other
than KRM Fund) and each certificate issued in exchange for or upon the transfer
of any Shares owned by each Shareholder (other than KRM Fund) shall be stamped
or otherwise imprinted with a legend (the "Legend") in substantially the
following form or to the following effect.
"The securities represented by this certificate are subject to a Voting
Agreement by and among the original holder of such securities, the issuer
of such securities, and ▇▇▇▇▇▇▇ Reverse Merger Fund, LLC and to an
irrevocable proxy granted pursuant to the Voting Agreement. A copy of such
agreement will be furnished without charge by issuer at its corporate
offices, upon written request."
SECTION 1.02 Vote in Favor of the Directors. During the period
commencing on the date hereof and terminating one year thereafter, each
Shareholder, in its capacity as a Shareholder of Chiste (or successor), agrees
to vote (or cause to be voted) all Shares directly or indirectly owned by the
Shareholder or over which the Shareholder has the beneficial ownership or the
right to vote and all Shares which such Shareholder acquires directly or
indirectly or has the beneficial ownership or right to vote in the future, at
any meeting of the Shareholders of Chiste, and in any action by written consent
of the Shareholders of Chiste, in favor of the election of the Director
Designees, as defined herein, to the Board of Directors of Chiste and will not
vote (or cause to be voted) for the removal of the Director Designees from the
Board of Directors. Any Director Designee may be removed from the Board of
Directors in the manner allowed by law and Chiste's governing documents, but
with respect to the Director Designee nominated by KRM Fund pursuant to Section
1.04 (c), in the event such Director Designee is removed as a director of the
Company, KRM Fund shall have the right to designate and nominate such removed
director's replacement.
SECTION 1.03 Size of Board of Directors. The Shareholders agree that
the Board of Directors of Chiste shall consist of five persons during the term
hereof, provided that the number of directors only may be increased or decreased
with the written consent of the KRM Fund during the term of this Agreement, and
the Shareholders will take all such action to maintain the number of directors
at five or the number as agreed by KRM Fund.
SECTION 1.04 Director Designees. The Director Designees will be as
follows:
(a) so long as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is employed by and a
shareholder of Chiste, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and one person designated by ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, provided, however, that if ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ elects, he may designate an
additional director in substitution for himself;
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(b) so long as ▇▇▇ Blomen is employed by and a shareholder of
▇▇▇▇▇▇, ▇▇▇ Blomen and one person designated by ▇▇▇ Blomen, provided, however,
that if ▇▇▇ Blomen elects, he may designate an additional director in
substitution for himself; and
(c) for one person designated by KRM Fund.
Neither the Shareholders, nor any of the officers, directors,
shareholders, members, managers, partners, employees or agents of any
Shareholder, makes any representation or warranty as to the fitness or
competence of any Director Designee to serve on the Board of Directors by virtue
of such party's execution of this Agreement or by the act of such party in
designating or voting for such Director Designee pursuant to this Agreement.
SECTION 1.05 Term of Agreement. The obligations of the Shareholders
pursuant to this Article I shall terminate on the first anniversary of the date
of this Agreement.
ARTICLE II
VOTING FOR CORPORATE ACTIONS
SECTION 2.01 Vote in Favor of Corporate Matters. During the term of this
Agreement, each Shareholder hereby agrees and covenants to vote or cause to be
voted all of his Shares then owned by him, or over which he has voting power, at
any regular or special meeting of shareholders, or, in lieu of any such meeting,
to give his written consent in any action by written consent of the
shareholders, in favor of each of the following items ("Actions"):
(a) To approve a 1 for 25 reverse stock split with special treatment
for certain of Chiste's stockholders to preserve round lot stockholders
("Reverse Split");
(b) To approve the change of the name of Chiste;
(c) All such other actions as shall be necessary or desirable in
connection with or related to the foregoing actions in (a) through (b) above
including, without limitation, any amendment to the articles of incorporation of
Chiste to effect the foregoing.
SECTION 2.02 Grant of Proxy; Further Assurance. Each Shareholder, by this
Agreement, with respect to all Shares over which it has voting authority and any
Shares hereinafter acquired by such Shareholder over which it may have voting
authority, does hereby irrevocably constitute and appoint ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and/or
▇▇▇ Blomen, 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 Shares 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) in favor of the adoption and approval of each of
the Actions. This proxy extends to no other matter, except for the Actions as
enumerated above. Each Shareholder shall perform such further acts and execute
such further documents and instruments as may reasonably be required to vest in
Chiste the power to carry out the provisions of this Agreement
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SECTION 2.03 Termination. The obligations of each Shareholder pursuant to
this Article II (including the grant of the proxy in Section 2.02) shall
terminate upon the adoption and approval of the Actions by the shareholders of
Chiste.
SECTION 2.04 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.
ARTICLE III
REPRESENTATIONS AND WARRANTIES;
COVENANTS OF THE SHAREHOLDERS
Each Shareholder hereby severally represents warrants and covenants to
Chiste and the other Shareholders as follows:
SECTION 3.01 Authorization. Such Shareholder has full legal capacity and
authority to enter into this Agreement and to carry out such person's
obligations hereunder. This Agreement has been duly executed and delivered by
such Shareholder, and (assuming due authorization, execution and delivery by
Chiste and the other Shareholders) this Agreement constitutes a legal, valid and
binding obligation of such Shareholder, enforceable against such Shareholder in
accordance with its terms.
SECTION 3.02 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by such Shareholder
does not, and the performance of this Agreement by such Shareholder will not,
(i) conflict with or violate any Legal Requirement applicable to such
Shareholder or by which any property or asset of such 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
such Shareholder, including, without limitation, the Shares, pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation.
(b) The execution and delivery of this Agreement by such 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
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such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or materially delay the performance by such
Shareholder of such Shareholder's obligations under this Agreement.
SECTION 3.03 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 such Shareholder or
any of such Shareholder's affiliates, threatened against such Shareholder or any
of such 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 materially delay or impair such Shareholder's ability
to consummate the actions contemplated by this Agreement. There is no judgment,
decree or order against such Shareholder or any of such Shareholder's
affiliates, or, to the knowledge of such Shareholder of any of such
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 actions contemplated by this
Agreement, or that would reasonably be expected to have a material adverse
effect on such Shareholder's ability to consummate the actions contemplated by
this Agreement.
SECTION 3.04 Title to Shares. Such Shareholder is the legal and beneficial
owner of its Shares free and clear of all Encumbrances.
SECTION 3.05 Absence of Claims. Each Shareholder has no knowledge of any
causes of action or other claims that could have been or in the future might be
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.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES;
COVENANTS OF CHISTE
Chiste hereby represents, warrants and covenants to the Shareholders as
follows:
SECTION 4.01 Organization; Authorization. Chiste is a 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. Chiste 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.
SECTION 4.02 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by Chiste does not,
and the performance of this Agreement by Chiste will not, (i) conflict with or
violate any Legal Requirement applicable to Chiste or by which any of its
property or assets are 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,
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amendment, acceleration or cancellation of, or result in the creation of any
encumbrance on any property or assets, including, without limitation, any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation.
(b) The execution and delivery of this Agreement by Chiste does not,
and the performance of this Agreement by Chiste 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 Chiste
of its obligations under this Agreement.
SECTION 4.03 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 Chiste, threatened
against Chiste or any of its properties or any of its officers or directors (in
the capacities as such) that, individually or in the aggregate, would reasonably
be expected to materially delay or impair Chiste's ability to consummate the
actions contemplated by this Agreement. There is no judgment, decree or order
against Chiste, or, to the knowledge of Chiste, any of its directors or officers
(in the capacities as such), that would prevent, enjoin, alter or materially
delay any of the actions contemplated by this Agreement, or that would
reasonably be expected to have a Material Adverse Effect on Chiste's ability to
consummate the actions contemplated by this Agreement.
ARTICLE V
GENERAL PROVISIONS
SECTION 5.01 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 5.01):
(a) If to Chiste:
Chiste Corporation
Attention, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇
with a mandatory copy to
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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(b) If to any Shareholder (other than KRM Fund):
HydroGen, LLC
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: _______________
(c) If to KRM Fund:
▇▇▇▇▇▇▇ Reverse Merger Fund, LLC
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Manager
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 5.02 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 5.03 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.
SECTION 5.04 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 5.05 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 5.06 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.
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SECTION 5.07 Disputes. All actions and proceedings arising out of or
relating to this Agreement shall be heard and determined exclusively in any
state or federal court in Colorado.
SECTION 5.08 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 5.09 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.
SECTION 5.10 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 5.11 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.
CHISTE CORPORATION
By:______________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
▇▇▇▇▇▇▇ REVERSE MERGER FUND, LLC
By:______________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Manager
SHAREHOLDERS: SHAREHOLDERS:
FuelCell Holdings, LLC HMR, LP
By: _______________________________ _____________ By: __________________________
Title: __________________________________________ Title: _________________________
------------------------------------------------- ------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ Blomen
------------------------------------------------- ------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------------- ------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
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COUNTERPART SIGNATURE PAGE TO VOTING AGREEMENT
FOR SHAREHOLDERS
This Voting Agreement, dated as of this 6th day of July, 2005
("Agreement"), among Chiste Corporation, a Nevada corporation ("Chiste"),
▇▇▇▇▇▇▇ Reverse Merger Fund, LLC, a Delaware limited liability company ("KRM
Fund"), and each of the persons whose signature appears under the caption
"Shareholders" on the signature page hereof, may be signed in one or more
counterparts, each of which shall be deemed to be an original copy of this
Agreement and all of which, when taken together, shall be deemed to constitute
one and the same Agreement.
IN WITNESS WHEREOF, the undersigned, being a Shareholder of Chiste has
executed this Agreement on and effective for all purposes as of the date first
written above.
SHAREHOLDER:
---------------------------
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EXHIBIT A
SHAREHOLDERS
Name of Shareholder Number of Shares Owned Beneficially and Number of Options/Warrants
of Record (1)
-------------
▇▇▇▇▇▇▇ Reverse Exchange Fund LLC 7,545,000 Common Stock 0
FuelCell Holdings, LLC 97,644 Series B Preferred Stock (2) 0
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 70,012 Series B Preferred Stock (2) 0
▇▇▇ Blomen 53,059 Series B Preferred Stock (2) 0
▇▇▇▇▇▇ ▇▇▇▇▇▇ 35,004 Series B Preferred Stock (2) 0
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 7,727 Series B Preferred Stock (2) 0
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 7,222 Series B Preferred Stock (2) 0
HMR, LP 14,444 Series B Preferred Stock (2) 0
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 11,838 Series B Preferred Stock (2) 2,726,682 Common Stock Options
▇▇▇▇▇ ▇▇▇▇▇▇ 14,039 Series B Preferred Stock (2) 0
(1) Prior to giving effect to the Reverse Split.
(2) Each share of Series B Preferred Stock is convertible into 185.35215
shares of Chiste's common stock, with preferred stockholders voting with
common stockholders on an as converted basis.