VOTING AGREEMENT
VOTING
AGREEMENT
THIS
VOTING AGREEMENT (the “Agreement”) is made
and entered into as of this ___ day of ______ 2009 (the “Effective Date”) by and
among China Holdings Acquisition Corp., a Delaware corporation (including any
successor, the “Parent”), China
Ceramics Co., Ltd., a British Virgin Islands company (the “Purchaser”), Xx. Xxxx
Kung Tok (the “Seller”), the owner
of 100% of the equity interests of Success Winner Limited (the “Company”), the
owner of 100% of the equity interests of Stand Best Creation Limited, which owns
100% of the equity interests of Jinjiang Hengda Ceramics Co., Ltd. (“Hengda”),
Hengda and those certain stockholders of the Parent listed on Schedule A hereto
(together with any subsequent stockholders, or any transferees, who become
parties hereto as “Stockholders” pursuant to Section 4.1 and 4.2 below, the
“Stockholders”. The
Parent, the Purchaser, Hengda, the Seller and the Stockholders are sometimes
individually referred to herein as a “Party” and are
sometimes collectively referred to herein as the “Parties.”
RECITALS
A. The
Company, the Purchaser, Hengda, the Parent and the Seller have entered into that
certain Stock Purchase Agreement dated August 19, 2009 (the “Stock Purchase
Agreement”), pursuant to which the Purchaser will acquire all of the
outstanding securities of the Company from the Seller, and following such
acquisition, Parent will merge with and into the Purchaser.
B. The
Parties’ desire to enter into this Agreement to set forth their agreements and
understandings with respect to how shares of Parent’s capital stock held by them
will be voted on in connection with, and following, the transactions
contemplated by the Stock Purchase Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and the mutual promises contained
herein, the Parties agree as follows.
1. Voting Provisions Regarding
Board of Directors
1.1 Size of the
Board. Each Stockholder and the Seller agree to vote, or cause
to be voted, all Shares (as defined below) owned by such Stockholder or the
Seller, or over which such Stockholder or the Seller has voting control, from
time to time and at all times, in whatever manner as shall be necessary to
ensure that the size of the Board of Directors of the Purchaser after the
closing of the transaction contemplated by the Stock Purchase Agreement (the
“Board”) shall
be set and remain until April 30, 2012 (the “End Date”), at five
(5) directors. For purposes of this Agreement, the term “Shares” shall mean
and include any securities of the Parent the holders of which are entitled to
vote for members of the Board, now owned or subsequently acquired by a
Stockholder, however acquired, whether through stock splits, stock dividends,
reclassifications, recapitalizations, similar events or
otherwise.
1.2 Board
Composition.
(a) Until
the End Date, the Seller Designees and the Parent Designees, each as defined
below, will be the only nominees of Parent to the Board presented by the Parent
to its stockholders for election at a meeting, pursuant to any written consent,
or otherwise.
(b) Each
Stockholder and the Seller agree to vote, or cause to be voted, all Shares owned
by such Stockholder or the Seller, or over which such Stockholder or the Seller
has voting control, from time to time and at all times, in whatever manner as
shall be necessary to ensure that at each annual or special meeting of
stockholders at which an election of directors is held or pursuant to any
written consent of the stockholders, two (2) members designated by the Parent,
who shall initially be Xxxx Xxxxx and Xxxxx Xxxxx (the “Parent Designees”)
and three (3) members designated by the Seller, of which one (1) designee shall
qualify as an independent director pursuant to the rules of any stock exchange
on which the Purchaser may be listed (the “Seller Designees”),
shall be elected to the Board.
1.3 Removal of Board
Members. Each Stockholder and the Seller also agree to vote,
or cause to be voted, all Shares owned by such Stockholder or the Seller, or
over which such Stockholder or the Seller has voting control, from time to time
and at all times, in whatever manner as shall be necessary to ensure
that:
(a) no
director elected pursuant to Section 1.2 of this
Agreement may be removed from office prior to the End Date other than for cause
unless (i) such removal is directed or approved by the affirmative vote of the
person, or of the holders of a majority of the shares of voting stock, entitled
under Section
1.2 to designate that director or (ii) the person(s) originally entitled
to designate or approve such director or occupy such Board seat pursuant to
Section 1.2 is no longer so entitled to designate or approve such director or
occupy such Board seat; and
(b) any
vacancies created by the resignation, removal or death of a director elected
pursuant to Sections
1.2 shall be filled in accordance with Section
1.2.
All
Stockholders and the Seller agree to execute any written consents required to
perform the obligations of this Agreement, and the Parent agrees at the request
of any person entitled to designate directors to call a special meeting of
stockholders for the purpose of electing directors.
1.4 No Liability for Election of
Recommended Directors. No Party, nor any officer, director,
stockholder, partner, employee or agent of any such Party, shall have any
liability as a result of designating a person for election as a director for any
act or omission by such designated person in his or her capacity as a director
of the Purchaser, nor shall any Party have any liability as a result of voting
for any such designee in accordance with the provisions of this
Agreement.
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2. Remedies.
2.1 Covenants of the Parent and
the Seller. The Parent, the Company and the Seller agree to
use their best efforts, within the requirements of applicable law, to ensure
that the rights granted under this Agreement are effective and that the Parties
enjoy the benefits of this Agreement. Such actions include, without
limitation, the use of the Parent’s and the Seller’s best efforts to cause the
nomination and election of the directors as provided above.
2.2 Irrevocable
Proxy. Each Party to this Agreement hereby constitutes and
appoints the other Parties hereto, and each of them, with full power of
substitution, as the proxies of the Party with respect to the matters set forth
herein, including without limitation, election of persons as members of the
Board in accordance with Section 1 hereto, and
hereby authorizes each of them to represent and to vote, if and only if the
Party attempts to vote (whether by proxy, in person or by written consent), or
to fail to vote, in a manner which is inconsistent with the terms of this
Agreement, all of such Party’s Shares in favor of the election of persons as
members of the Board determined pursuant to and in accordance with the terms and
provisions of this Agreement. The proxy granted pursuant to the
immediately preceding sentence is given in consideration of the agreements and
covenants of the Parent and the Seller and the Parties hereto in connection with
the transactions contemplated by this Agreement and, as such, is coupled with an
interest and shall be irrevocable unless and until this Agreement terminates or
expires pursuant to Section 3
hereof. Each Party hereto hereby revokes any and all previous proxies
with respect to the Shares and shall not hereafter, unless and until this
Agreement terminates or expires pursuant to Section 3 hereof,
purport to grant any other proxy or power of attorney with respect to any of the
Shares, deposit any of the Shares into a voting trust or enter into any
agreement (other than this Agreement), arrangement or understanding with any
person, directly or indirectly, to vote, grant any proxy or give instructions
with respect to the voting of any of the Shares, in each case, with respect to
any of the matters set forth herein.
2.3 Specific
Enforcement. Each Party acknowledges and agrees that each
Party hereto will be irreparably damaged in the event any of the provisions of
this Agreement are not performed by the Parties in accordance with their
specific terms or are otherwise breached. Accordingly, it is agreed
that each of the Parent and the Stockholders shall be entitled to an injunction
to prevent breaches of this Agreement and to specific enforcement of this
Agreement and its terms and provisions in any action instituted in any court of
the United States or any state having subject matter jurisdiction.
2.4 Remedies
Cumulative. All remedies, either under this Agreement or by
law or otherwise afforded to any Party, shall be cumulative and not
alternative.
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3. Term. This
Agreement shall be effective as of the date hereof and shall continue in effect
until and shall terminate upon the earliest to occur of (a) April 30, 2012, and
(b) termination of this Agreement in accordance with Section 4.8
below.
4. Miscellaneous
4.1 Additional
Stockholders. In the event that after the date of this
Agreement, the Purchaser enters into an agreement with any Person to issue
shares of capital stock to such Person other than a public offering of shares of
capital stock of the Purchaser, following which such Person shall hold Shares
constituting one percent (1%) or more of the Purchaser’s then outstanding
capital stock (treating for this purpose all shares of Common Stock issuable
upon exercise of or conversion of outstanding options, warrants or convertible
securities, as if exercised and/or converted or exchanged), then, the Purchaser
shall cause such Person, as a condition precedent to entering into such
agreement, to become a party to this Agreement by executing an Adoption
Agreement in the form attached hereto as Exhibit A, agreeing
to be bound by and subject to the terms of this Agreement as a Stockholder
hereunder and thereafter such person shall be deemed a Stockholder
for all purposes hereunder.
4.2 Successors and
Assigns. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the Parties. Nothing in this Agreement, express or
implied, is intended to confer upon any person other than the Parties or persons
named herein or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
4.3 Counterparts;
Facsimile. This Agreement may also be executed and delivered
by facsimile signature and 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.
4.4 Titles and
Subtitles. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
4.5 Notices. All
notices and other communications given or made pursuant to this Agreement shall
be in writing and shall be deemed effectively given: (a) upon
personal delivery to the Party to be notified, (b) when sent by confirmed
electronic mail or facsimile if sent during normal business hours of the
recipient, and if not so confirmed, then on the next business day, (c) five (5)
days after having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written
verification of receipt. All communications shall be sent to the
respective Parties at their address as set forth on Schedule A or Schedule B hereto, or
to such email address, facsimile number or address as subsequently modified by
written notice given in accordance with this Section
4.5. If notice is given to the Parent, a copy shall also be
sent to Loeb & Loeb LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxxxxx Xxxxxxxx, Esq.
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4.6 Consent Required to Amend,
Terminate or Waive. Except as otherwise provided, this
Agreement may be amended or modified and the observance of any term hereof may
be waived (either generally or in a particular instance and either retroactively
or prospectively) only by a written instrument executed by the Stockholders
holding a majority of the Shares then held by the
Stockholders. Notwithstanding the foregoing:
(a) the
consent of the Stockholders shall not be required for any amendment or waiver if
such amendment or waiver does not apply to the Stockholders;
(b) any
provision hereof may be waived by the waiving Party on such Party’s own behalf,
without the consent of any other Party;
(c) Section 1.2 of this
Agreement shall not be amended or waived without the written consent of the
Seller and the Parent.
The
Company shall give prompt written notice of any amendment, termination or waiver
hereunder to any Party that did not consent in writing thereto. Any
amendment, termination or waiver effected in accordance with this Section 4.8 shall be
binding on each Party and all of such Party’s successors and permitted assigns,
whether or not any such Party, successor or assignee entered into or approved
such amendment, termination or waiver.
4.7 Acts Constituting Consent or
Waiver. No delay or omission to exercise any right, power or
remedy accruing to any Party under this Agreement, upon any breach or default of
any other Party under this Agreement, shall impair any such right, power or
remedy of such non-breaching or non-defaulting Party nor shall it be construed
to be a waiver of any such breach or default, or an acquiescence therein, or of
or in any similar breach or default thereafter occurring; nor shall any waiver
of any single breach or default be deemed a waiver of any other breach or
default previously or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any Party of any
breach or default under this Agreement, or any waiver on the part of any Party
of any provisions or conditions of this Agreement, must be in writing and shall
be effective only to the extent specifically set forth in such
writing.
4.8 Severability. The
invalidity or unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provision.
4.9 Entire
Agreement. This Agreement (including the Exhibits hereto, if
any), and the Certificate of Incorporation and Stock Purchase Agreement and the
Additional Agreements (as defined in the Stock Purchase Agreement) constitute
the full and entire understanding and agreement between the Parties with respect
to the subject matter hereof, and any other written or oral agreement relating
to the subject matter hereof existing between the Parties are expressly
canceled.
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4.10 Stock Splits, Stock
Dividends, etc. In the event of any issuance of Shares of the
Parent’s voting securities hereafter to any of the Stockholders (including,
without limitation, in connection with any stock split, stock dividend,
recapitalization, reorganization, or the like), such Shares shall become subject
to this Agreement.
4.11 Manner of
Voting. The voting of Shares pursuant to this Agreement may be
effected in person, by proxy, by written consent or in any other manner
permitted by applicable law.
4.12 Further
Assurances. At any time or from time to time after the date
hereof, the Parties agree to cooperate with each other, and at the request of
any other Party, to execute and deliver any further instruments or documents and
to take all such further action as the other Party may reasonably request in
order to evidence or effectuate the consummation of the transactions
contemplated hereby and to otherwise carry out the intent of the Parties
hereunder.
4.13 Costs of
Enforcement. If any Party to this Agreement seeks to enforce
its rights under this Agreement by legal proceedings, the non-prevailing Party
shall pay all costs and expenses incurred by the prevailing Party, including,
without limitation, all reasonable attorneys’ fees.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the Parties have executed this Voting Agreement as of the date
first written above.
| CHINA HOLDINGS ACQUISITION CORP. | ||
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By:
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Name: Xxxx
X. Xxxxx
Title: Chairman
and Chief Executive Officer
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| CHINA CERAMICS CO., LTD. | ||
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By:
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Name: Xxxx
X. Xxxxx
Title:
Director
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JINJIANG
HENGDA CERAMICS CO. LTD.
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By:
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Name:
Xxxxx Xxx Dong
Title:
Chairman
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| SELLER | ||
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| Xxxx Kung Tok | ||
| STOCKHOLDERS: | ||
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Name:
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Name:
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SCHEDULE
A
STOCKHOLDERS
Name/Address Amount
of Shares Held
ix
EXHIBIT
A
This
Adoption Agreement (“Adoption
Agreement”) is executed on ________________, 20__, by the undersigned
(the “Holder”) pursuant
to the terms of that certain Voting Agreement dated as of [_____ __, 20___] (the
“Agreement”), by and
among the Parent, the Purchaser, Hengda the Seller and certain of the Parent’s
Stockholders, as such Agreement may be amended or amended and restated
hereafter. Capitalized terms used but not defined in this Adoption
Agreement shall have the respective meanings ascribed to such terms in the
Agreement. By the execution of this Adoption Agreement, the Holder
agrees as follows.
1.1 Acknowledgement. Holder
acknowledges that Holder is acquiring certain shares of the capital stock of the
Purchaser (the “Stock”)[ or options,
warrants or other rights to purchase such Stock (the “Options”)], for one
of the following reasons (Check the correct box):
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¨
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as
a transferee of Shares from a Party in such Party’s capacity as
“Stockholder” bound by the Agreement, and after such transfer, Holder
shall be considered a “Stockholder” for all purposes of the
Agreement.
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¨
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in
accordance with Section 4.1 of the Agreement, as a new Party, in which
case Holder will be a “Stockholder” for all purposes of the
Agreement.
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1.2 Agreement. Holder
hereby (a) agrees that the Stock [Options], and any other shares of capital
stock or Shares required by the Agreement to be bound thereby, shall be bound by
and subject to the terms of the Agreement, (b) makes the representations and
warranties to the other Parties to the Agreement that are set forth in Section 2
thereof, and (b) adopts the Agreement with the same force and effect as if
Holder were originally a Party thereto.
1.3 Notice. Any
notice required or permitted by the Agreement shall be given to Holder at the
address or facsimile number listed below Holder’s signature hereto.
| Accepted and Agreed: |
HOLDER:
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| CHINA CERAMICS CO., LTD. | ||||
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By:
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By:
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Name
and Title of Signatory
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Title:
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Address:
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Facsimile:
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x
