VOTING AGREEMENT
VOTING AGREEMENT, made as of the 13th day of April, 2006, by and among
each of the stockholders of LITHIUM NICKEL ASSET HOLDING COMPANY I, INC., a
Delaware corporation having its principal place of business c/o Xxxxxx Xxxxxxx
at 0 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (the "Corporation")
identified on the signature pages hereto (together sometimes collectively
referred to as "STOCKHOLDERS", and each sometimes referred to as a
"STOCKHOLDER").
W I T N E S S E T H :
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WHEREAS, the Stockholders are the record and beneficial owners of all of
the currently issued and outstanding shares of stock of the Corporation
("Shares"); and
WHEREAS, the parties hereto desire to promote their mutual best interest
by establishing and defining their voting rights and obligations and by imposing
certain restrictions and obligations upon their right to vote the Shares, all as
hereinafter more fully set forth.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
it is agreed as follows:
SECTION 1. VOTING BY STOCKHOLDERS. Each Stockholder hereby agrees that at
any annual or special meeting of Stockholders at which directors are to be
elected it will vote its Shares for any slate of directors nominated by Topspin
Partners, L.P.
SECTION 2. MISCELLANEOUS.
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2.1 ENDORSEMENTS ON CERTIFICATES. Upon the execution of
this Agreement, all certificates representing Shares shall be delivered to the
Corporation for endorsement as follows:
"The shares represented by this certificate are subject
to the provisions and restrictions of a Voting Agreement, dated as of April 13,
2006, by and among the initial Stockholders of Lithium Nickel Asset Holding
Company I, Inc." After endorsement, such certificates shall be returned to the
Stockholders who shall, subject to the terms of this Agreement, be entitled to
exercise all rights of ownership of the Shares represented thereby. All
certificates representing Shares hereafter issued to any Stockholder shall bear
the same endorsement.
2.2 REMEDIES UPON BREACH. The parties hereto hereby
agree that, since the non-defaulting parties hereto will be irreparably damaged
in the event of a breach or threatened breach hereof, this Agreement shall be
specifically enforceable. Should any dispute arise concerning the voting of
Shares, a temporary restraining order and/or preliminary injunction may be
issued pending the determination of such controversy. In the event of any
controversy concerning the voting of any such Shares, the provisions of this
Agreement shall be enforceable in a court of equity by a decree of specific
performance. Such remedy shall, however, be cumulative and not exclusive, and
shall be in addition to any other remedy which the parties may have.
2.3 TERM OF AGREEMENT. This Agreement and all rights,
duties and interests of the parties hereunder shall continue for an indefinite
term, so long as the Corporation shall require directors in office.
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2.4 BENEFITS. This Agreement shall be binding upon and
inure to the benefit of the Stockholders and any person to whom Shares are
transferred pursuant to or in violation of the provisions of this Agreement, and
their respective heirs, executors, administrators, successors and assigns.
2.5 CONSTRUCTION; COUNTERPARTS. All matters relating to
this Agreement shall be governed, construed and controlled by and under the laws
of the State of New York. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
2.6 ADDITIONAL ACTS. Each party agrees to perform any
further acts and to execute and deliver any documents which may be reasonably
necessary to carry out the provisions of this Agreement.
2.7 NOTICES. All notices to the Stockholders shall be
sent by registered or certified mail, postage prepaid, to the respective address
indicated on the signature pages hereto, unless the person to whom notice is to
be given had advised the other parties in writing of another address for such
purpose.
2.8 AMENDMENTS. No amendment or modification of this
Agreement shall be effective unless evidenced by writing, signed by all of the
parties hereto.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered, as of the day and year first above written.
TOPSPIN PARTNERS, L.P.
By: Topspin Management, LLC
General Partner
By: /s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
Title: Manager
TOPSPIN ASSOCIATES, L.P.
By: Topspin Management, LLC
General Partner
By: /s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
Title: Manager
SHINING SEA LTD.
By: /s/ Xxxx Xxxx Xxxxxxxxxx
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Name: Xxxx Xxxx Xxxxxxxxxx
Title: Director
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Director
S-7 ASSOCIATES, LLC
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Managing Member
AUBER INVESTMENTS, LTD.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
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