VOTING AGREEMENT
Voting Agreement, dated as of October
22, 2009, by and between Xxxxxx Partners, LP (“Xxxxxx”), and Xxxxxxx Xx (“WU”),
Xxxxxx and WU being referred to collectively as the “Parties” and each,
individually, as a “Party.”
WITNESSETH:
WHEREAS, pursuant to a securities
purchase agreement (the “Purchase Agreement”) dated on or about the date of this
Voting Agreement, Xxxxxx is purchasing from China Wind Systems, Inc., a Delaware
corporation (the “Company”), 1,500,000 shares (the “Preferred Shares”) of the
Company’s Series A Convertible Preferred Stock, par value $0.001 per share,
which is convertible into shares (the “Conversion Shares”) of common stock, par
value $0.001 per share, at the Conversion Ratio, as defined in and determined in
accordance with, the certificate of designation relating to the Series A
Convertible Preferred Stock; and
WHEREAS, as a condition to the sale
of the Preferred Shares to Xxxxxx, Xxxxxx agreed that, as long as Xxxxxx owns
any of the Preferred Shares or Conversion Shares (collectively, the “Covered
Shares”), WU shall have the right to vote such shares;
WHEREFORE, the parties do hereby
agree as follows:
1. Agreement to
Vote.
(a) Xxxxxx
hereby agrees that at any meeting of the stockholders of the Company, however
called, and in any action by consent of the stockholders of the Company, with
regards to the “Covered Shares,” Xxxxxx shall vote or cause to be voted or
execute a written consent in favor of all Covered Matters, as hereinafter
defined, in accordance with instructions from WU.
(b) For
purposes of this Agreement, “Covered Matters” shall mean any of the
following:
(i) the
election of directors; and
(ii) any
other matter for which the vote or consent of stockholders of the Company is
obtained.
(c) Nothing
contained in this Agreement shall be deemed to vest in WU any direct or indirect
ownership with respect to the Covered Shares, and, notwithstanding anything in
this Agreement to the contrary, Xxxxxx shall retain any and all of its rights,
powers and authorities as a holder of the Covered Shares.
(d) At
the request of XX, Xxxxxx shall execute an irrevocable proxy in favor of WU with
respect to any Covered Shares which are entitled to vote or grant
consent. Such irrevocable proxy shall be satisfactory in form and
substance to WU.
2. Effect of
Transfer.
(a) Nothing
in this Agreement shall be deemed to limit or restrict the ability of Xxxxxx to
sell, hold, dispose, transfer and/or encumber all or any portion of the Covered
Shares.
(b) In
the event of any sale or other transfer or disposition (any such transaction
being referred to as a “sale”) by which Xxxxxx conveys ownership of any Covered
Shares (other than to an affiliate, as defined in Rule 144 of the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended), the
transferee shall take the transferred Covered Shares free from any obligation
under this Agreement. From and after any such sale, WU shall have no
voting rights with respect to the transferred Covered Shares.
3. Representations and
Warranties. Xxxxxx and WU each represents and warrants to other Party
hereto as follows:
(a) Such
Party has the legal capacity and the power to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by such Party and constitutes
the valid, binding and enforceable obligation of such Party.
(b) The
execution, delivery and performance by such Party of this Agreement and the
consummation by such Party of the transactions contemplated hereby will not,
with or without the giving of notice or the lapse of time, or both, conflict
with or violate (i) any provision of law, rule or regulation to which such Party
is subject, (ii) any order, judgment or decree applicable to such Party or (iii)
any provision of any agreement, contract or other instrument to which such Party
is a party or by which he or it is bound. The execution and delivery of this
Agreement by such Party does not, and the performance of this Agreement by such
Party shall not, require any consent, approval, authorization or permit of, or
filing with or notification to, any court or arbitrator or any governmental
body, agency or official, except for such filings as may be required under the
Securities Exchange Act of 1934, as amended.
(c) Xxxxxx
has not (i) entered into any other voting agreement with respect to any Covered
Shares or (ii) granted any proxy or power of attorney with respect to any
Covered Shares.
4. No Inconsistent
Agreements. Xxxxxx hereby covenants and agrees that, except as
contemplated by this Agreement, as long as this Agreement remains in effect,
Xxxxxx (a) shall not enter into any other voting agreement with respect to the
Covered Shares and (b) shall not grant a proxy or power of attorney with respect
to any Covered Shares which is inconsistent with its obligations pursuant to
this Agreement.
5. Legends. Each
certificate representing the Covered Shares held by Xxxxxx shall bear the legend
set forth below, which shall be removed upon a sale and shall not be placed upon
the certificate issued to the transferee:
"THE
SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT DATED OCTOBER 22, 2009
BY AND BETWEEN XXXXXXX XX AND XXXXXX PARTNERS LP, A COPY OF WHICH MAY BE
OBTAINED FROM THE COMPANY."
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6. Notice. All notices
provided for in this Agreement shall be in writing signed by the party giving
such notice, and delivered personally or sent by overnight courier, mail or
messenger against receipt thereof or sent by registered or certified mail,
return receipt requested, or by facsimile transmission or similar means of
communication if receipt is confirmed. Notices shall be deemed to have been
received on the date of delivery or attempted personal delivery if sent by
registered or certified mail, by messenger or by an overnight courier services
which provides evidence of delivery or attempted delivery, of if sent by
telecopier, upon the date of receipt provided that receipt is acknowledge by the
recipient. Notices shall be sent to the parties at their respective addresses
set forth on the signature page of this Agreement, in each case to the attention
of the person who executed this Agreement on behalf of such party. A copy of
any notice to the Company shall be sent to Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP,
00 Xxxxxxxx, 00xx xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention Xxxxx X. Xxxxxxxx P.C., telecopier: (000)
000-0000, e-mail: xxxxxxxxx@xxxx.xxx.
Any party may, by like notice, change the address, person or telecopier number
to which notice shall be sent.
7. Entire Agreement.
This Agreement, together with any documents, instruments and certificates
explicitly referred to herein, constitutes the entire agreement among the
parties and supersedes any and all prior communications, agreements and
understandings, written and oral, with respect to the subject matter hereof.
This Agreement may not be amended or modified at any time, nor may any right be
waived except by a written instrument executed by each Party in the case of an
amendment or modification or by the Party granting the waiver, in the case of a
waiver. No failure or delay on the part of any party hereto in the exercise of
any right hereunder will impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement herein,
nor will any single or partial exercise of any such right preclude any other or
further exercise thereof or of any other right. No waiver by any party will be
effective unless such waiver is specifically contained in a writing signed by
such waiving party.
8. Term of the
Agreement. This Agreement shall expire upon the fifth anniversary of the
date hereof.
9. Miscellaneous.
(a) This
Agreement shall be governed and construed in accordance with the laws of the
State of New York applicable to agreements executed and to be performed wholly
within such State, without regard to any principles of conflicts of law. Each
of the parties hereby (i) irrevocably consents and agrees that any legal or
equitable action or proceeding arising under or in connection with this
Agreement may be brought in the federal or state courts located in the County of
New York in the State of New York, (ii) by execution and delivery of this
Agreement, irrevocably submits to and accepts the jurisdiction of said courts,
(iii) waives any defense that such court is not a convenient forum, and (iv)
consent that any service of process may be made (x) in the manner set forth in
Section 6 of this Agreement (other than by telecopier or e-mail), or (y) by any
other method of service permitted by law.
(b) This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the Parties hereto and their respective successors, assigns, heirs, legal
representatives and personal representatives, subject to the provisions of
Section 2 of this Agreement.
(c) This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
[Signatures
on following page]
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IN WITNESS WHEREOF, this Agreement
has been executed and delivered by the parties hereto as of the day and year
first above written.
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Address,
Telecopier and e-mail
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Signature
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Xxxxxx
Partners XX
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XXXXXX
PARTNERS, L.P.
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000
Xxxxx Xxxxxx, 00xx
Xxxxx
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By: XXXXXX
CAPITAL ADVISORS LLP
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Xxx
Xxxx, Xxx Xxxx 00000
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General
Partner
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Telecopier:
(000) 000-0000
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e-mail:
xxx@xxxxxxxxxxxxxx.xxx
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By:
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/s/ Xxxxxx Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx Xxxxxx,
President
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No.
9 Yanyu Middle Road
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Qianzhou
Village, Huishan District, Wuxi City
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/s/ Xxxxxxx Xx
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Jiangsu
Province, People’s Republic of China
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Xxxxxxx
Xx
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Telecopier:
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e-mail:
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