exv10w7



 







Exhibit 10.7




VOTING AGREEMENT




          VOTING AGREEMENT, dated as of March ___, 2006 (this “Agreement”), by and among Touchstone
Resources USA, Inc., a Delaware corporation (the “Company”), and the stockholders listed on the
signature pages hereto under the heading “Stockholders” (each a “Stockholder” and collectively, the
“Stockholders”).




          WHEREAS, the Company and certain investors (each, an “Investor”, and collectively, the
“Investors”) have entered into a Securities Purchase Agreement, dated as of the date hereof (the
“Securities Purchase Agreement”), pursuant to which, among other things, the Company has agreed to
issue and sell to the Investors and the Investors have agreed to purchase, (i) convertible notes of
the Company which will, among other things, be convertible into shares of the Company’s common
stock, par value $0.001 per share (the “Common Stock”) and (ii) two series of warrants to acquire
shares of Common Stock.




          WHEREAS, as of the date hereof, the Stockholders own collectively ___shares of Common
Stock, which represent in the aggregate approximately ___% of the total issued and outstanding
capital stock of the Company; and




          WHEREAS, as a condition to the willingness of the Investors to enter into the Securities
Purchase Agreement and to consummate the transactions contemplated thereby (collectively, the
“Transaction”), the Investors have required that each Stockholder agree, and in order to induce the
Investors to enter into the Securities Purchase Agreement, each Stockholder has agreed, to enter
into this Agreement with respect to all the Common Stock now owned and which may hereafter be
acquired by the Stockholder and any other securities, if any, which such Stockholder is currently
entitled to vote, or after the date hereof, becomes entitled to vote, at any meeting of
stockholders of the Company (the “Other Securities”).




          NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as
follows:




ARTICLE I




VOTING AGREEMENT OF THE STOCKHOLDER




          SECTION 1.01. Voting Agreement. Subject to the last sentence of this Section 1.01,
each Stockholder hereby agrees that at any meeting of the stockholders of the Company, however
called, and in any action by written consent of the Company’s stockholders, each of the
Stockholders shall vote the Common Stock and the Other Securities: (a) in favor of the Stockholder
Approval (as defined in the Securities Purchase Agreement), including the Capital Increase (as
defined in the Securities Purchase Agreement), as described in Section 4(q) of the Securities
Purchase Agreement; and (b) against any proposal or any other corporate action or agreement that
would result in a breach of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Securities Purchase Agreement or which could result in any of
the conditions to the Company’s obligations under the Securities Purchase Agreement not being
fulfilled. Each Stockholder acknowledges receipt and review of a copy of the Securities Purchase
Agreement and the other Transaction Documents (as defined in




 









 







the Securities Purchase Agreement). The obligations of the Stockholders under this Section
1.01 shall terminate immediately following the occurrence of the Stockholder Approval.




ARTICLE II




REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER




          Each Stockholder hereby represents and warrants, severally but not jointly, to each of the
Investors as follows:




          SECTION 2.01. Authority Relative to This Agreement. Each Stockholder has all
necessary power and authority to execute and deliver this Agreement, to perform his or its
obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has
been duly executed and delivered by such Stockholder and constitutes a legal, valid and binding
obligation of such Stockholder, enforceable against such Stockholder in accordance with its terms,
except (a) as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws now or hereafter in effect
relating to, or affecting generally the enforcement of creditors’ and other obligees’ rights, (b)
where the remedy of specific performance or other forms of equitable relief may be subject to
certain equitable defenses and principles and to the discretion of the court before which the
proceeding may be brought, and (c) where rights to indemnity and contribution thereunder may be
limited by applicable law and public policy.




          SECTION 2.02. No Conflict. (a) The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such Stockholder shall not, (i)
conflict with or violate any federal, state or local law, statute, ordinance, rule, regulation,
order, judgment or decree applicable to any Stockholder or by which the Common Stock or the Other
Securities owned by such Stockholder are bound or affected or (ii) result in any breach of or
constitute a default (or an event that with notice or lapse of time or both would become 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 the Common Stock or the Other Securities
owned by such Stockholder pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which such Stockholder is a
party or by which such Stockholder or the Common Stock, Class B Common Stock or Other Securities
owned by such Stockholder are bound.




          (b) The execution and delivery of this Agreement by such Stockholder does not, and the
performance of this Agreement by such Stockholder shall not, require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental entity by such
Stockholder.




          SECTION 2.03. Title to the Stock. As of the date hereof, each Stockholder is the
owner of the number of shares of Common Stock set forth opposite its name on Appendix A
attached hereto, entitled to vote, without restriction, on all matters brought before holders of
capital stock of the Company, which Common Stock represent on the date hereof the percentage of the
outstanding stock and voting power of the Company set forth on such Appendix. Such Common Stock
are all the securities of the Company owned, either of record or beneficially, by such Stockholder.
Such Common Stock are owned free and clear of all security interests, liens, claims, pledges,
options, rights of first refusal, agreements, limitations on such Stockholder’s




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voting rights, charges and other encumbrances of any nature whatsoever. No Stockholder has
appointed or granted any proxy, which appointment or grant is still effective, with respect to the
Common Stock or Other Securities owned by such Stockholder.




ARTICLE III




COVENANTS




          SECTION 3.01. No Disposition or Encumbrance of Stock. Each Stockholder hereby
covenants and agrees that, until Stockholder Approval, except as contemplated by this Agreement,
such Stockholder shall not offer or agree to sell, transfer, tender, assign, hypothecate or
otherwise dispose of, grant a proxy or power of attorney with respect to, or create or permit to
exist any security interest, lien, claim, pledge, option, right of first refusal, agreement,
limitation on such Stockholder’s voting rights, charge or other encumbrance of any nature
whatsoever (“Encumbrance”) with respect to the Common Stock or Other Securities, directly or
indirectly, initiate, solicit or encourage any person to take actions which could reasonably be
expected to lead to the occurrence of any of the foregoing; provided, however, that
any such Stockholder may assign, sell or transfer any Common Stock or Other Securities provided
that any such recipient of the Common Stock or Other Securities has delivered to the Company and
each Investor a written agreement in a form reasonably satisfactory to the Investors that the
recipient shall be bound by, and the Common Stock and/or Other Securities so transferred, assigned
or sold shall remain subject to this Agreement.




          SECTION 3.02. Company Cooperation. The Company hereby covenants and agrees that it
will not, and each Stockholder irrevocably and unconditionally acknowledges and agrees that the
Company will not (and waives any rights against the Company in relation thereto), recognize any
Encumbrance or agreement on any of the Common Stock or Other Securities subject to this Agreement
unless the provisions of Section 3.01 have been complied with. The Company agrees to use its
reasonable best efforts to ensure that at any time in which any Stockholder Approval is required
pursuant to Section 4(q) of the Securities Purchase Agreement, it will cause holders of Common
Stock or Other Securities representing the percentage of outstanding capital stock required to vote
in favor of the Transaction in order for the Company to comply with its obligations under Section
4(q) of the Securities Purchase Agreement to become party to and bound by the terms and conditions
of this Agreement and the Common Stock and Other Securities held by such holders to be subject to
the terms and conditions of this Agreement.




ARTICLE IV




MISCELLANEOUS




          SECTION 4.01. Further Assurances. Each Stockholder will execute and deliver such
further documents and instruments and take all further action as may be reasonably necessary in
order to consummate the transactions contemplated hereby.




          SECTION 4.02. Specific Performance. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in accordance with the
terms hereof and that any Investor (without being joined by any other Investor) shall be entitled
to specific performance of the terms hereof, in addition to any other




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remedy at law or in equity. Any Investor shall be entitled to its reasonable attorneys’ fees
in any action brought to enforce this Agreement in which it is the prevailing party.




          SECTION 4.03. Entire Agreement. This Agreement constitutes the entire agreement among
the Company and the Stockholders (other than the Securities Purchase Agreement and the other
Transaction Documents) with respect to the subject matter hereof and supersedes all prior
agreements and understandings, both written and oral, among the Company and the Stockholders with
respect to the subject matter hereof.




          SECTION 4.04. Amendment. This Agreement may not be amended except by an instrument in
writing signed by the parties hereto.




          SECTION 4.05. 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 this Agreement 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 in a mutually
acceptable manner in order that the terms of this Agreement remain as originally contemplated to
the fullest extent possible.




          SECTION 4.06. Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by the internal laws of the
State of New York, without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdictions) that would cause the application of
the laws of any jurisdictions other than the State of New York. The parties hereby agree that all
actions or proceedings arising directly or indirectly from or in connection with this Agreement
shall be litigated only in the Supreme Court of the State of New York or the United States District
Court for the Southern District of New York located in New York County, New York. The parties
consent to the jurisdiction and venue of the foregoing courts and consent that any process or
notice of motion or other application to any of said courts or a judge thereof may be served inside
or outside the State of New York or the Southern District of New York by registered mail, return
receipt requested, directed to the party being served at its address set forth on the signature
ages to this Agreement (and service so made shall be deemed complete three (3) days after the same
has been posted as aforesaid) or by personal service or in such other manner as may be permissible
under the rules of said courts. Each of the Company and each Stockholder irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or hereafter have to the laying
of the venue of any such suit, action, or proceeding brought in such a court and any claim that
suit, action, or proceeding has been brought in an inconvenient forum. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.




          SECTION 4.07. Third-Party Beneficiaries. The Investors shall be intended third party
beneficiaries of this Agreement to the same extent as if they were parties hereto, and shall be
entitled to enforce the provisions hereof.




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          SECTION 4.08. Termination. This Agreement shall terminate immediately following the
occurrence of the Stockholder Approval or upon the mutual consent of each Stockholder and the
Investors.




[Signature Page Follows]




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     IN WITNESS WHEREOF, each Stockholder and the Company has duly executed this
Agreement.



	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	THE COMPANY:	 	 
	 
	 	 	 	 	 	 
	 	 	TOUCHSTONE RESOURCES USA, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	      Name:	 	 
	 

	 	 	 	      Title:	 	 
	 
	 	 	 	 	 	 
	Dated: March___, 2006
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Address
	 	: 1600 Smith Street,	 	 
	 

	 	 	 	Houston, TX 77002	 	 






 









 






	 	 	 	 	 
	 

	 	 	 	 
	 

	 	STOCKHOLDER:	 	 
	 

	 	ROGER ABEL	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Dated: March ___, 2006
	 	 	 	 
	 
	 	 	 	 
	 

	 	Address:	 	 






 









 






	 	 	 	 	 
	 

	 	STOCKHOLDER:	 	 
	 

	 	STEPHEN P. HARRINGTON	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Dated: March ___, 2006
	 	 	 	 
	 
	 	 	 	 
	 

	 	Address:	 	 






 









 






	 	 	 	 	 
	 

	 	STOCKHOLDER:	 	 
	 

	 	STEPHEN C. HAYNES	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Dated: March ___, 2006
	 	 	 	 
	 
	 	 	 	 
	 

	 	Address:	 	 






 









 






	 	 	 	 	 
	 

	 	STOCKHOLDER:	 	 
	 

	 	[OTHER STOCKHOLDERS]	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Dated: March ___, 2006
	 	 	 	 
	 
	 	 	 	 
	 

	 	Address:	 	 






 









 






APPENDIX A




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Voting Percentage	 
	 	 	Common Stock	 	 	Percentage of Stock	 	 	of Stock	 
	Stockholder	 	Owned	 	 	Outstanding	 	 	Outstanding	 
	Roger Abel
	 	 	 	 	 	 	 	 	 	 	 	 
	Stephen P. Harrington
	 	 	 	 	 	 	 	 	 	 	 	 
	Stephen C. Haynes
	 	 	 	 	 	 	 	 	 	 	 	 
	[OTHER STOCKHOLDERS]