Form of Voting Agreement between SunFuels, Inc. and certain of the shareholders of M-Wave, Inc

---

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”).

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:

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.

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 Stockholder or its Securities are bound or affected, except for any such conflicts, violations, breaches, defaults or other occurrences that would not prevent or delay the performance by Stockholder of its obligations under this Agreement.

(b)    The execution and delivery of this Agreement by Stockholder does not, and the performance of this Agreement by Stockholder will not, require any consent, approval, authorization or permit of, or filing with or notification to, any governmental or regulatory authority, except where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications would not prevent or delay the performance by Stockholder of its obligations under this Agreement.

Section 3.1     No Inconsistent Agreements. Stockholder covenants and agrees that, except as contemplated by this Agreement, Stockholder shall not enter into any voting agreement or grant a proxy or power of attorney with respect to its Securities that is inconsistent with this Agreement.

Section 3.2     Transfer Of Title. Stockholder hereby covenants and agrees that, so long as this Agreement is in effect, Stockholder will not transfer record or beneficial ownership of any of its Securities unless the transferee agrees in writing to be bound by the terms and conditions of this Agreement.

Section 4.1     Other Agreements. SunFuels hereby covenants that it shall not amend, waive, forgive performance of or terminate any agreement it now has or hereafter enters into obligating one or more MWAV stockholders to vote, or pursuant to which one or more MWAV stockholders agrees to vote, in favor of approving the Parent Stockholder Approvals and that it shall enforce any rights it has pursuant to any such agreement.

Section 5.1     Termination. This Agreement shall terminate automatically upon the earlier of (a) the date on which MWAV obtains stockholder approval of the Parent Stockholder Approvals in accordance with the Delaware Business Corporations Act, and (b) the date on which SunFuels notifies Stockholder in writing that it has abandoned the Mergers for any reason other than as the result of a breach of this Agreement by Stockholder.

Section 5.2     Effect of Termination. In the event of the termination of this Agreement pursuant to Section 5.1 hereof, this Agreement shall forthwith become void and have no effect, without liability on the part of any party hereto or its trustees, partners, beneficiaries, directors, officers, stockholders or affiliates.

Section 6.1     Notices. All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be deemed given if delivered personally, telecopied (which is confirmed) or sent by overnight courier (providing proof of delivery) to the parties at the following addresses (or at such other address for a party as shall be specified by like notice):

If to Stockholder:

At such address as is set forth on its signature page hereto.

If to SunFuels:

SunFuels, Inc.

1400 W. 122nd Ave., Suite 110

Westminster, CO 80234

Attention: [Jeff Probst]

Telephone No.: (303) 865-7700

Facsimile No.: (303) 865-7705

With a copy to:

Faegre & Benson LLP

1900 15th Street

Boulder, CO 80302

Attention: James H. Carroll, Esq.

Telephone No.: (303) 447-7700

Facsimile No.: (303) 447-7800

Any party from time to time may change its address for the purposes of notices hereunder by giving written notice to the other parties hereto of such new address.

Section 6.2     Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and replaces and supersedes all prior agreements or understandings, both written and oral, between the parties hereto, relating to the voting of Stockholder’s Securities with respect to the Parent Stockholder Approvals.

Section 6.3      Stockholder Capacity. Stockholder signs solely in its capacity as the record holder and beneficial owner of the Securities set forth on its signature page hereto.

Section 6.4     Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any state or federal court of the United States located in the State of Colorado, this being in addition to any other remedy to which they are entitled at law or in equity. In addition, each of the parties hereto: (a) consents to submit such party to the personal jurisdiction of any state or federal court in the event any dispute arises out of this Agreement or any of the transactions contemplated hereby; (b) agrees that such party will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court; (c) agrees that such party will not bring any action relating to this Agreement or the transactions contemplated hereby in any court other than a state or federal court sitting in the State of Colorado; and (d) waives any right to trial by jury with respect to any claim or proceeding related to or arising out of this Agreement or any of the transactions contemplated hereby.

Section 6.5     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 and shall not in any way be affected or impaired thereby so long as the economic or legal substance of this Agreement is not affected in any manner materially adverse to any party.

Section 6.6      Amendment. This Agreement may be amended only by a written instrument signed by each of the parties hereto.

Section 6.7     Assignment. Except as required by operation of law, this Agreement shall not be assignable by the parties hereto without the prior written consent of the other party. This Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.

Section 6.8      Governing Law. This Agreement shall be governed by the internal laws of the State of Delaware.

Section 6.9      Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

Section 6.10   Facsimile Signatures. Any signature page delivered pursuant to this Agreement via facsimile shall be binding to the same extent as an original signature. Any party who delivers such a signature page agrees to later deliver an original counterpart to any party that requests it.

[Signature Page Follows]

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.

	SUNFUELS, INC.
	By:		/s/ Justin Bzdek
	Name:		Justin Bzdek
	Title:		Chief Financial Officer

 

[Counterpart Stockholder Signature Page Follows]

 

IN WITNESS WHEREOF, the undersigned has executed this Voting Agreement, effective as of the date first written above.

INDIVIDUAL:
Joseph A. Turek
(Print or Type Name of Individual)
/s/ Joseph A. Turek
(Signature of Individual)

ENTITY:
(Print or Type Name of Entity)
By:
		(Signature of Authorized Signatory)
Name:
		(Print or Type Name of Authorized Signatory)
Title:
		(Print or Type Title of Authorized Signatory)

ADDRESS FOR NOTICES:		11533 Franklin Avenue
		2nd Floor
		Franklin Park, IL 60131
		Fax No.:	(630) 396-9100

EQUITY SECURITIES OF MWAV OWNED		344,750	shares of Common Stock
BY STOCKHOLDER:
			shares of Series A Preferred Stock
			shares of Series B Preferred Stock

 

IN WITNESS WHEREOF, the undersigned has executed this Voting Agreement, effective as of the date first written above.

INDIVIDUAL:
(Print or Type Name of Individual)
(Signature of Individual)

ENTITY:
Asset Managers International Limited
(Print or Type Name of Entity)
By:		/s/ Carolynn D. Hiron
		(Signature of Authorized Signatory)
Name:		Carolynn D. Hiron
		(Print or Type Name of Authorized Signatory)
Title:		Director
		(Print or Type Title of Authorized Signatory)

ADDRESS FOR NOTICES:		Pentagon Capital Management PLC
		One Knightsbridge, London SW1X 7LX
		United Kingdom
		Fax No.:	+44 203 100 9960

EQUITY SECURITIES OF MWAV OWNED		151,375	shares of Common Stock
BY STOCKHOLDER:
			shares of Series A Preferred Stock
			shares of Series B Preferred Stock

 

Monarch Pointe Fund Ltd.			Mercator Momentum Fund, L.P.
By:	M.A.G. CAPITAL, LLC		By:	M.A.G. CAPITAL, LLC
Its:	General Partner		Its:	General Partner
By:	/s/ Harry Aharonian		By:	/s/ Harry Aharonian
	Harry Aharonian			Harry Aharonian
	Portfolio Administrator			Portfolio Administrator
By:	/s/ Todd Bomberg		By:	/s/ Todd Bomberg
	Todd Bomberg			Todd Bomberg
	Chief Investment Officer			Chief Investment Officer
Shares of Series A Preferred Stock: 3,375			Shares of Series A Preferred Stock: 5,375
Shares of Series B Preferred Stock: 22,400			Shares of Series B Preferred Stock: 7,100
Shares of Common Stock: 148,429			Shares of Common Stock: 59,609
M.A.G. Capital, LLC			Mercator Momentum Fund III, L.P.
			By:	M.A.G. CAPITAL, LLC
			Its:	General Partner
By:	/s/ Harry Aharonian		By:	/s/ Harry Aharonian
	Harry Aharonian			Harry Aharonian
				Portfolio Administrator
By:	/s/ Todd Bomberg		By:	/s/ Todd Bomberg
	Todd Bomberg			Todd Bomberg
	Chief Investment Officer			Chief Investment Officer
Shares of Common Stock: 39,464			Shares of Series A Preferred Stock: 3,750
			Shares of Series B Preferred Stock: 40,148
			Shares of Common Stock: 102,213

 

 

 

---