VOTING AGREEMENT
Exhibit
10.6
VOTING
AGREEMENT, dated as of January 21, 2010 (this "Agreement"), by and among
Kandi Technologies, Corp., a Delaware corporation (the "Company") and Excelvantage
Group Limited, a company organized under the laws of the British Virgin Islands
(the "Stockholder").
WHEREAS,
as of the date hereof, the Stockholder owns shares of Common Stock, which
represents (i) approximately 60.12% of the total issued and outstanding Common
Stock of the Company, and (ii) approximately 60.12% of the total voting power of
the Company;
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 the Stockholder agree, and in order to induce the Investors
to enter into the Securities Purchase Agreement, the 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 Stockholder is currently entitled to vote, or after the date hereof
becomes entitled to vote, at any meeting of the 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, the 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, the Stockholder shall vote the Common
Stock and the Other Securities: (a) in favor of the Stockholder
Approval (as defined in the Securities Purchase Agreement), the Resolutions (as
defined in the Securities Purchase Agreement) and the Stockholder Consent (as
defined in the Securities Purchase Agreement), as applicable, as described in
Section 4(v) 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 Transaction Documents (as defined in the
Securities Purchase Agreement) or which could result in any of the conditions to
the Company's obligations under the Transaction Documents not being
fulfilled. The Stockholder acknowledges receipt and review of a copy
of the Securities Purchase Agreement and the other Transaction
Documents. The obligations of the Stockholder under this Section 1.01
shall terminate immediately following the occurrence of the Stockholder
Approval.
ARTICLE
II
REPRESENTATIONS AND
WARRANTIES OF THE STOCKHOLDER
The
Stockholder hereby represents and warrants to the Company and each of the
Investors as follows:
SECTION
2.01. Authority Relative to this
Agreement. The Stockholder has all requisite power and
authority to execute, deliver and perform its obligations under this
Agreement. This Agreement has been duly executed and delivered by the
Stockholder and constitutes a legal, valid and binding obligation of the
Stockholder, enforceable against the 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 and (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.
SECTION
2.02. No
Conflict. (a) The execution and delivery of this
Agreement by the Stockholder does not, and the performance of this Agreement by
the Stockholder shall not, (i) conflict with or violate any federal, state or
local law, statute, ordinance, rule, regulation, order, judgment or decree
applicable to the Stockholder or by which the Common Stock or the Other
Securities owned by the 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 the Stockholder pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which the Stockholder is a party or by which the
Stockholder or the Common Stock or Other Securities owned by the Stockholder is
bound.
(b) The
execution and delivery of this Agreement by the Stockholder does not, and the
performance of this Agreement by the Stockholder shall not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
governmental entity by the Stockholder.
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SECTION
2.03. Title
to the Stock. As of the date hereof, the Stockholder is the
owner of 12,000,000 shares of Common Stock, entitled to vote, without
restriction, on all matters brought before holders of capital stock of the
Company, which Common Stock represents on the date hereof approximately 60.12%
of the outstanding stock and approximately 60.12% of the voting power of the
Company. Such Common Stock is all the securities of the Company
owned, either of record or beneficially, by the Stockholder. Except
as provided in the Pledge Agreement (as defined in the Securities Purchase
Agreement), such Common Stock is owned free and clear of all security interests,
liens, claims, pledges, options, rights of first refusal, agreements,
limitations on the Stockholder's voting rights, charges and other encumbrances
of any nature whatsoever. The Stockholder has not appointed or
granted any proxy, which appointment or grant is still effective, with respect
to the Common Stock or Other Securities owned by the Stockholder.
ARTICLE
III
COVENANTS
SECTION
3.01. No
Disposition or Encumbrance of Stock. Except with respect to a
transfer of any Common Stock or Other Securities to any of the Buyers in
accordance with the Pledge Agreement or any Encumbrance (as defined below) on
any Common Stock or Other Securities created in favor of any Buyer pursuant to
the Pledge Agreement (the “Pledge Encumbrance”), the
Stockholder hereby covenants and agrees that the 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 Stockholders' voting rights, charge or other
encumbrance of any nature whatsoever ("Encumbrance") with respect to
the Common Stock or Other Securities, directly or indirectly, or initiate,
solicit or encourage any person to take actions which could reasonably be
expected to lead to the occurrence of any of the foregoing.
SECTION
3.02. Company
Cooperation. The Company hereby covenants and agrees that it
will not, and the 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 (other than the Pledge Encumbrance)
or agreement (other than the Pledge Agreement) on any of the Common Stock or
Other Securities subject to this Agreement.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01. Further
Assurances. The Stockholder shall 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 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.
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SECTION
4.03. Entire
Agreement. This Agreement constitutes the entire agreement
among the Company and the Stockholder (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 Stockholder 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 Delaware, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of Delaware or
any other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of Delaware. 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 the 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. Termination. This
Agreement shall terminate immediately following the occurrence of the
Stockholder Approval.
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remainder of the page is intentionally left blank]
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IN
WITNESS WHEREOF, the Stockholder and the Company has duly executed this
Agreement.
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THE
COMPANY:
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KANDI
TECHNOLOGIES, CORP.
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By:
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Name:
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Title:
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Address:
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Kandi
Technologies, Corp.
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Jinhua
City Industrial Zone
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Jinhua,
Zhejiang Province
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People’s
Republic of China
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Post
Code 321016
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STOCKHOLDER:
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EXCELVANTAGE
GROUP LIMITED
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By:
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Name:
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Title:
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Address:
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x/x
Xx Xxx Xxx
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Xxxxxx
Xxxx Xxxxxxxxxx Xxxx
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Xxxxxx,
Xxxxxxxx Xxxxxxxx
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People’s
Republic of China
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Post
Code 321016
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