PURE BIOFUELS CORP. STOCKHOLDERS AGREEMENT
THIS
STOCKHOLDERS AGREEMENT
(this
“Agreement”)
is
entered into effective as of September 12, 2007 by and among Pure
Biofuels Corp.,
a
Nevada Corporation (the “Company”),
Plainfield
Peru I LLC,
a
Delaware limited liability company (“LLC1”),
Plainfield
Peru II LLC,
a
Delaware limited liability company (“LLC2”
and
together with LLC1, “Plainfield”)
and
the stockholders of the Company listed on the signature page(s) hereto
(collectively, the “Stockholders”
and
each individually, a “Stockholder”).
WITNESSETH:
WHEREAS,
concurrent with the execution of this Agreement, the Company is entering into
a
Securities Purchase Agreement with LLC1 and LLC2, dated as of the date hereof
(the “Securities
Purchase Agreement”),
pursuant to which, upon the terms and subject to the conditions thereof, the
Company will issue to LLC1 and LLC2 11,000,000 shares of common stock of the
Company, $10,000,000 aggregate principal amount of 10%/12% Convertible PIK
Election Notes, convertible into 16,666,667 shares of Common Stock (the
“Notes”)
and
warrants representing the right to purchase shares of Common Stock of the
Company representing in the aggregate 34.4% of the Company’s fully diluted
Common Stock (the “Warrants”);
and
WHEREAS,
as a condition to the willingness of Plainfield to enter into the Securities
Purchase Agreement, Plainfield has required that the Stockholders agree, and
in
order to induce Plainfield to enter into the Securities Purchase Agreement,
the
Stockholders are willing, to enter into this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree, severally and not jointly, as follows:
Section
1. Definitions.
As used in this Agreement:
“Affiliate”
means
with respect to any Person, any other Person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with, such Person. The term “control”
means
the possession, directly or indirectly, of the power to direct or cause
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
“Board
of Directors”
means
the board of directors of the Company.
“Common
Stock”
means
the common stock of the Company, par value 0.001 per share.
“Director”
means
the Persons serving on the Board of Directors of the Company.
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“Equity
Securities”
means
all classes of equity securities of the Company, including but not limited
to
the Common Stock.
“Investor Designator”
has
the
meaning ascribed to such term in Section 2(a).
“Observer”
has
the
meaning ascribed to such term in Section 2(f) of this Agreement.
“Person”
includes an individual, a corporation, a limited liability company, a
partnership, a trust or any other organization or entity.
“Plainfield”
has
the
meaning ascribed to such term in the opening paragraph of this
Agreement.
“Plainfield
Director”
has
the
meaning ascribed to such term in Section 2(a)of this Agreement.
“Stockholders”
means
any Person who is signatory to this Agreement and who owns Equity Securities
of
the Company and any other persons or entities who become parties to this
Agreement as “Stockholders”
pursuant to the terms of this Agreement, and their respective heirs, legal
representatives, administrators and successors.
Section
2. Voting Agreement.
(a) During
the term of this Agreement, each Stockholder holding voting Equity Securities
of
the Company will vote all of such Stockholder’s Equity Securities and take all
other necessary or desirable actions (in its capacity as a Stockholder of the
Company), and the Company will take all necessary or desirable actions, as
are
reasonably requested to cause one individual, (the “Plainfield
Director”),
designated by Plainfield or any permitted transferee of more than 50% of the
Notes held by Plainfield (the “Investor
Designator”),
to be
elected to the Company’s Board of Directors, whether such election occurs at an
annual or special meeting of the Stockholders, or by written consent in lieu
thereof, and whether or not such election shall occur because of the existence
of a vacancy on such Board arising for any reason whatsoever.
(b) Each
Stockholder will vote all of such Stockholder’s Equity Securities, and the
Company will take all necessary or desirable actions, as are necessary to
prevent the removal, without “Cause”, as defined below, of the Plainfield
Director without the prior written consent of the Investor Designator. If the
position of the Plainfield Director becomes vacant for any reason, each
Stockholder will vote all of the Stockholder’s Equity Securities, and the
Company will take all necessary or desirable actions, as are necessary to
immediately cause an alternative Plainfield Director, as applicable, to be
elected to the Company’s Board of Directors. “Cause” shall mean if (i) the
director has been convicted of an indictable offence under the United States
criminal code, or (ii) the director has committed willful misconduct or gross
misconduct in carrying out his duties.
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(c) Each
Stockholder will retain at all times the right to vote the Stockholder’s Equity
Securities in his or her sole discretion on all matters presented to the
Company’s Stockholders for a vote other than the matters set forth in Section
2(a) and (b) above.
(d) No
Stockholders may, directly or indirectly, during the term of this agreement,
sell, dispose of or otherwise transfer record or beneficial ownership of any
shares of Equity Securities subject to this Agreement owned of record or
beneficially by such Stockholders unless the transferee agrees in writing to
be
bound by the terms hereof by execution (together with such Person’s spouse if
applicable) of an Adoption Agreement in the form attached as Exhibit
A
hereto.
Any purported transfer which does not comply with this provision shall be null
and void; provided,
however,
that a
Stockholder may sell up to 10% of the Common Stock held by such Stockholder
as
of the date hereof free from any restriction or requirement imposed by this
Section 2(d) or otherwise.
(e) The
Stockholders shall not enter into any agreement or grant any proxy or power
of
attorney with respect to their respective Equity Securities that is inconsistent
with the terms hereof.
(f) If
at any
time Plainfield has the right to nominate a director pursuant to this Section
2
but fails to exercise this right, then Plainfield or its Affiliates shall have
the right to appoint one (1) representative (the “Observer”).
The
Observer shall have the right to attend meetings of the Board of Directors
in a
nonvoting observer capacity, to receive notice of such meetings and to receive
the information provided by the Company to the Board of Directors.
(g) Plainfield
will have a right to effectuate its rights pursuant to this Section 2 so long
as
any Notes remain outstanding or Plainfield holds at least 5% of the Company’s
outstanding Common Shares.
(h) A
quorum
of the Board of Directors shall require the presence of the Plainfield
Director.
(i) The
Company will not increase the number of Directors above six.
Section
3. Specific Performance.
The
parties hereto agree that the remedy at law for any breach of this Agreement
may
be inadequate, and if any Stockholder or other person shall fail to comply
with
the provisions of Section 2 hereof, each non-defaulting party shall be entitled
to specific performance in addition to any other appropriate relief or remedy.
Such party may, in its sole discretion, apply to a court of competent
jurisdiction for specific performance or injunctive or such other relief as
such
court may deem just and proper in order to enforce this Agreement, or prevent
any violation hereof, and, to the extent permitted by law, each party waives
any
objection to the imposition of such relief.
Section
4. Notices.
All
notices and other communications hereunder shall be in writing and shall be
deemed duly delivered (i) three business days after being sent by hand delivery
in writing, by facsimile or electronic transmission, by registered or certified
mail, return receipt requested, postage prepaid, or (ii) one business day after
being sent for next business day delivery, fees prepaid, via a reputable
nationwide overnight courier service, in each case to the intended recipient
as
set forth below:
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(i) if
to any
Stockholder, to its address set forth on the signature pages hereto.
(ii) if
to
Pure Biofuels to:
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Attention:
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Facsimile
No: ▇▇▇-▇▇▇-▇▇▇▇
(ii) With
a
copy (which shall not constitute notice) to:
DLA
Piper US LLP
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Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile
No: ▇▇▇-▇▇▇-▇▇▇▇
(iii) if
to
Plainfield to:
Plainfield
Peru I LLC
Plainfield
Peru II LLC
c/o
Plainfield Asset Management LLC
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Attention:
General Counsel
Telephone:
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Facsimile:
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(iv) With
a
copy (which shall not constitute notice) to:
White
& Case LLP
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Attn:
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Telephone:
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Facsimile:
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Section
5. Miscellaneous.
(a) Entire
Agreement; Amendments and Modification.
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect thereto.
This Agreement may not be amended, modified or rescinded except by an instrument
in writing signed by each of the parties hereto.
(b) Assignment.
Except
as permitted herein, neither this Agreement nor any right, interest or
obligation hereunder may be assigned by any of the parties without the prior
written consent of Plainfield and any attempt to do so shall be null and void;
provided,
however,
that no
assignment by any of the parties of any of its rights, interests or obligations
hereunder shall relieve such party of its obligations under this
Agreement.
(c) Governing
Law; Submission to Jurisdiction.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW
THEREOF.
ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN
THE
COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK,
AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO HEREBY
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH PARTY HERETO
HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL
JURISDICTION OVER IT, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION
OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT BROUGHT IN ANY OF THE AFOREMENTIONED
COURTS, THAT SUCH COURTS LACK PERSONAL JURISDICTION OVER IT. EACH PARTY HERETO
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS ADDRESS
SET FORTH SECTION 6.6, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH
MAILING. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH
SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREE NOT TO PLEAD OR
CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER THAT SERVICE OF PROCESS
WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT
OF
ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANOTHER PARTY IN ANY
OTHER JURISDICTION. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE
AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT BROUGHT IN THE COURTS REFERRED TO ABOVE AND HEREBY FURTHER IRREVOCABLY
WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
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(d) No
Third Party Beneficiaries.
This
Agreement is not intended, and shall not be deemed, to confer any rights or
remedies upon any person other than the parties hereto and their respective
successors and permitted assigns.
(e) 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.
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 a
mutually acceptable manner in order that the terms of this Agreement remain
as
originally contemplated to the fullest extent possible.
(f) Interpretation.
When
reference is made in this Agreement to a Section, such reference shall be to
a
Section of this Agreement, unless otherwise indicated. The headings contained
in
this Agreement are for convenience of reference only and shall not affect in
any
way the meaning or interpretation of this Agreement. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction shall be applied
against any party. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural, and vice
versa. Any reference to any federal, state, local or foreign statute or law
shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. Whenever the words “include,”
“includes” or “including” are used in this Agreement, they shall be deemed to be
followed by the words “without limitation.” No summary of this Agreement
prepared by the parties shall affect in any way the meaning or interpretation
of
this Agreement.
(g) Headings.
The
headings in this Agreement are solely for convenience of reference and shall
be
given no effect in the construction or interpretation of this
Agreement.
(h) Counterparts.
This
Agreement may be executed in counterparts and by the different parties in
separate counterparts, each of which when so executed shall be deemed an
original and all of which taken together shall constitute one and the same
agreement.
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IN
WITNESS WHEREOF, the parties hereto have executed this Stockholders Agreement
as
of the day and year first above written.
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
Print
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Chief Executive ▇▇▇▇▇▇▇
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▇▇▇▇ I LLC
By:
/s/
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Print
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Authorized Signatory
PLAINFIELD
PERU II LLC
By:
/s/
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Print
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Authorized Signatory
NEWY1\8164595.2
Stockholders
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/s/
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