VOTING AGREEMENT
Exhibit
10.2
This
VOTING AGREEMENT (the “Agreement”)
is
made and entered into as of this 17th
day of
July, 2008, by and among China TransInfo Technology Corp., a Nevada corporation
(the “Company”),
each
of the investors listed on Schedule
A
(the
“Investors”)
and
those certain shareholders of the Company listed on Schedule
B
(the
“Existing
Shareholders”
and
collectively with the Investors, the “Shareholders”).
WHEREAS,
concurrently with the execution of this Agreement, the Company and the Investors
are entering into a Securities Purchase Agreement (the “Purchase
Agreement”)
providing for the sale of shares of the Company’s Common Stock, and in
connection with that agreement, the parties desire to provide the Investors
with
the right, among other rights, to elect certain members of the board of
directors of the Company (the “Board”)
in
accordance with the terms of this Agreement. Defined terms used herein that
are
not defined herein have the meaning as defined in the Purchase Agreement.
WHEREAS,
the Amended and Restated Articles of Incorporation, as amended, of the Company
(the “Restated
Articles”)
provides that the holders of record of the shares of common stock of the
Company, $0.001 par value per share (“Common
Stock”)
and of
any other class or series of voting stock, voting together as a single class,
shall
be
entitled to elect the board of directors of the Company.
WHEREAS,
the Company does not have any voting stock outstanding other than Common Stock.
WHEREAS,
in order to induce the Investors to expend the time and resources required
enter
into the Purchase Agreement, the parties desire to enter into this Agreement
to
set forth their agreements and understandings with respect to how shares of
the
Company’s capital stock held by them will be voted on.
NOW,
THEREFORE, in consideration of the mutual promises made herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Voting
Provisions Regarding Board of Directors.
1.1 Size
of the Board.
During
the Term (as defined below) of this Agreement, each Shareholder agrees to vote,
or cause to be voted, all Shares (as defined below) owned by such Shareholder,
or over which such Shareholder 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 shall be set and remain at seven (7) directors. For purposes of this
Agreement, the term “Shares”
shall
mean and include any securities of the Company the holders of which are entitled
to vote for members of the Board, including without limitation, all shares
of
Common Stock or preferred stock, by whatever name called, now owned or
subsequently acquired by a Shareholder, however acquired, whether through stock
splits, stock dividends, reclassifications, recapitalizations, similar events
or
otherwise.
1.2 Election
of Investor Nominee.
During
the Term of this Agreement, each Shareholder agrees to vote, or cause to be
voted, all Shares owned by such Shareholder, or over which such Shareholder
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 shareholders
at
which an election of directors is held or pursuant to any written consent of
the
shareholders, one individual designated by the Investors, which individual
shall
initially be Xxxxxxx Xx-Xxxx Xxx, shall be elected as a director of the Company.
1.3 Failure
to Designate a Board Member.
In the
absence of any designation from the persons or groups with the right to
designate a director as specified above, the director previously designated
by
them and then serving shall be reelected if still eligible to serve as provided
herein.
1.4 Removal
of Board Members.
Each
Shareholder also agrees to vote, or cause to be voted, all Shares owned by
such
Shareholder, or over which such Shareholder 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 Sections 1.2
or 1.3
of this
Agreement may be removed from office unless (i) such removal is directed or
approved by the affirmative vote of the Investors, entitled under Section 1.2
to
designate that director or (ii) the Investors originally entitled to designate
or approve such director pursuant to Section
1.2
is no
longer so entitled to designate or approve such director; and
(b) any
vacancies created by the resignation, removal or death of a director elected
pursuant to Sections 1.2
or 1.3
shall be
filled pursuant to the provisions of this Section
1
with the
Investors having the right to nominate the director to fill such
vacancy.
1.5 Written
Consent.
All
Shareholders agree to execute any written consents required to perform the
obligations of this Agreement, and the Company agrees at the request of any
party entitled to designate directors to call a special meeting of shareholders
for the purpose of electing directors.
1.6 Further
Assurances.
During
the Term, the Existing Shareholders will take such further actions and execute
such further documents and instruments as may reasonably be requested by the
Investors or the Company to carry out the provisions of this
Agreement.
1.7 No
Liability for Election of Recommended Directors.
No
party, nor any Affiliate 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 Company,
nor
shall any party have any liability as a result of voting for any such designee
in accordance with the provisions of this Agreement.
1.8 Representations
& Warranties.
Each
Existing Shareholders represent and warrants, severally and not jointly, to
the
Investors as follows:
(a) Valid
Title, etc.
With
respect to the Shares beneficially owned by the Existing Shareholders, there
are
no restrictions on the rights of disposition pertaining thereto, except for
any
restrictions contemplated herein, restrictions arising under that certain Make
Good Escrow Agreement, dated May 14, 2007, with certain investors (the “Make
Good Escrow Agreement”) or arising under applicable securities laws, such
Existing Shareholder has exclusive power to vote, exclusive power of disposition
and exclusive power to agree to all of the matters set forth in this Agreement,
in each case with respect to all of such Existing Shareholder’s Shares with no
limitations, qualifications or restrictions on these rights. Each Existing
Shareholder represents that neither it nor any of its Affiliates is party to
or
bound by any agreement with respect to the voting (by proxy or otherwise),
sale
or other disposition of their Shares (other than this Agreement and the Make
Good Escrow Agreement).
(b) Non-Contravention.
The
execution and delivery of this Agreement by such Existing Shareholder and the
performance by such Existing Shareholder of such Existing Shareholder’s
obligations under this Agreement (i) are within such Existing Shareholder’s
powers, have been duly authorized by all necessary action (including any
consultation, approval or other action by or with any other person), (ii)
require no action by or in respect of, or filing with, any governmental body,
agency, official or authority, and (iii) do not and will not contravene or
constitute a default under, or give rise to a right of termination, cancellation
or acceleration of any right or obligation of such Existing Shareholder or
to a
loss of any material benefit of such Existing Shareholder under, any provision
of applicable law or regulation or of any agreement, judgment, injunction,
order, decree, or other instrument binding on him/it or result in the imposition
of any lien on any asset of such Existing Shareholder other than any conflicts,
breaches, violations, defaults, obligations, rights or losses that individually
or in the aggregate would not (A) impair the ability of such Existing
Shareholder to perform its obligations under this Agreement or (B) prevent
or
delay the consummation of any of the transactions contemplated hereby.
(c) Binding
Effect.
This
Agreement has been duly executed and delivered by such Existing Shareholder,
and
this Agreement is the valid and binding agreement of the Existing Shareholder,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors’ rights and remedies generally and to general
principles of equity.
2. Covenants
of the Company
2.1 Initial
Election.
By the
earlier of (i) the two-month anniversary of the date on which the Common Stock
of the Company is first listed on the NASDAQ Capital Market and (ii) September
30, 2008, the Company shall cause the election as new directors of the Company,
Xx. Xxxxxxx Xx-Xxxx Xxx (or such other individual(s) as may be designated in
writing by the Investors) and another individual as may be designed by the
Company; provided that such individual is “independent” as defined by Rule
4200(a)(15) of the Marketplace Rules of The Nasdaq Stock Market, Inc.
2.2 Nomination.
Following the initial election of Xx. Xxx (or such other individual(s) as may
be
designated in writing by the Investors) as a director of the Company in
accordance with the above section and during the Term of this Agreement, the
Company shall use its best efforts (i) to cause such individual(s) as may be
designated in writing by the Investors to be nominated for election at each
annual or special meeting of shareholders at which an election of directors
is
held or pursuant to any written consent of the shareholders for the election
of
directors, and (ii) in the event of the death, removal or resignation of any
director designated by the Investors under this Agreement (including Xx. Xxx)
from the Board of Directors for any reason, to cause the nomination, appointment
or election of such person designated in writing by the Investors to fill the
vacancy.
2.3 Observer
Rights.
Until
the earlier of (i) the fifth anniversary of the date of this Agreement or (ii)
the date that this Agreement terminates in accordance with Section
5
below,
the Company will ensure that the Investor may nominate, at its option, one
person to observe all meetings of the Board of Directors of the Company, whether
held in person or by electronic communication, and will ensure that such person
receives all information and communication that the Company directors receive
in
relation to his or her duties as a director, in the manner and timeframe similar
to the manner and timeframe of the Company directors.
2.3 Further
Covenants of the Company.
The
Company agrees to use its 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 Company’s best efforts to cause the
nomination and election of the directors as provided in this Agreement.
3. Remedies.
3.1 Irrevocable
Proxy.
Each
party to this Agreement hereby constitutes and appoints Xx.
Xxxxxxx Xx-Xxxx Xxx, as representative of the Investors, 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 Xx. Xxx to represent and to vote, if and only if the
party
(i) fails to vote or (ii) attempts to vote (whether by proxy, in
person or by written consent), 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 Company and the parties 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
5
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
5
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.
3.2 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 Company and the Shareholders 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.
3.3 Remedies
Cumulative.
All
remedies, either under this Agreement or by law or otherwise afforded to any
party, shall be cumulative and not alternative.
4. Standstill.
Until
the second anniversary of this Agreement, each of the Existing Shareholders
agrees that neither it nor any of its Affiliates will directly or indirectly
(i)
sell, assign, transfer, pledge, grant a security interest in or lien on or
otherwise dispose of or encumber (collectively, “Sell”)
any of
their Shares or enter into any contract, option or other arrangement or
undertaking to Sell any of their Shares, or (ii) relinquish control of the
voting power with respect to any of their Shares, deposit any of their Shares
into a voting trust, enter into a voting agreement or arrangement or grant
any
proxy with respect to any of their Shares (other than a proxy to vote pursuant
to this Agreement). Notwithstanding the above, during the first year after
the
date of this Agreement, the Existing Shareholders may Sell up to 20% of the
Shares held of record by them on the date of this Agreement (the “Existing
Holdings”);
and
during the second year after the date of this Agreement, may Sell up to 40%
of
their Existing Holdings.
5. Term.
This
Agreement shall be effective as of the date hereof and shall continue in effect
until and shall terminate when
the
Investors beneficially own fewer than 50% of the number of shares of Common
Stock purchased under the Purchase Agreement (as adjusted for any stock splits,
stock dividends, recapitalizations or the like).
6. Miscellaneous.
6.1 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their successors and permitted assigns. The Company and the Existing
Shareholders may not assign this Agreement or any rights or obligations
hereunder without the prior written consent of the Investors. Any Investor
may
assign any or all of its rights under this Agreement to any Person to whom
such
Investor assigns or transfers any Shares, provided such transferee agrees in
writing to be bound, with respect to the transferred Shares, by the provisions
hereof that apply to the “Investors.” In addition, this Agreement is intended
for the benefit of the parties hereto and their respective successors and
permitted assigns and is not for the benefit of, nor may any provision hereof
be
enforced by, any other Person.
6.2. Governing
Law and Waiver of Jury Trial.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each party agrees that all Proceedings
concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether
brought against a party hereto or its respective Affiliates, employees or
agents) shall be commenced exclusively in the New York Courts. Each party hereto
hereby irrevocably submits to the exclusive jurisdiction of the New York Courts
for the adjudication of any dispute hereunder or in connection herewith or
with
any transaction contemplated hereby or discussed herein (including with respect
to the enforcement of the any of the Transaction Documents), and hereby
irrevocably waives, and agrees not to assert in any Proceeding, any claim that
it is not personally subject to the jurisdiction of any such New York Court,
or
that such Proceeding has been commenced in an improper or inconvenient forum.
Each party hereto hereby irrevocably waives personal service of process and
consents to process being served in any such Proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery (with evidence
of
delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
If either party shall commence a Proceeding to enforce any provisions of this
Agreement, then the prevailing party in such Proceeding shall be reimbursed
by
the other party for its reasonable attorneys’ fees and other costs and expenses
incurred with the investigation, preparation and prosecution of such
Proceeding.
EACH
PARTY HERETO HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE OTHER TRANSACTION
DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE
OF
THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT
MAY
BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN
FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT
BE
SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND
REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL,
AND
THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT
MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER WILL APPLY TO
ANY
SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS TO (OR ASSIGNMENTS OF)
THIS
AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL (WITHOUT A JURY) BY THE COURT.
6.3 Counterparts;
Facsimile.
This
Agreement may 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.
6.4 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.
6.5 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 facsimile if sent during
normal business hours of the recipient, and if not so confirmed, then on the
next business day, (c) seven (7) 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 facsimile number or address as subsequently modified by written
notice given in accordance with this Section
6.5.
If
notice is given to the Company, a copy shall also be sent to Xxxxxx Xxxx Xxxxx
Raysman & Xxxxxxx LLP, 000 0xx Xxxxxx XX, Xxxxxxxxxx, X.X. 00000, Facsimile:
(000) 000-0000, Attn.: Xxxxx X. Xxxxxxxxxx, Esq. and if notice is given to
Shareholders, a copy shall also be given to Xxxxxx & Xxxxxxx, Xxxxx 0000,
One Xxxxxxx Xxxxx, 00 Xxxxxxxxx, Xxxx Xxxx, Xxxxxxxxx: x000-0000-0000, Attn:
Liza L.S. Xxxx.
6.6. Amendments;
Waivers; No Additional Consideration.
No
provision of this Agreement may be waived or amended except in a written
instrument signed by the Company, the Investors and the Existing Shareholders.
No waiver of any default with respect to any provision, condition or requirement
of this Agreement shall be deemed to be a continuing waiver in the future or
a
waiver of any subsequent default or a waiver of any other provision, condition
or requirement hereof, nor shall any delay or omission of either party to
exercise any right hereunder in any manner impair the exercise of any such
right. 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.
6.7 Severability.
Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of
this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity, illegality
or
unenforceability shall not affect any other provision of this Agreement or
any
action in any other jurisdiction, but this Agreement shall be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
6.8 Entire
Agreement.
This
Agreement (including the Exhibits hereto), and the other Transaction Documents
(as defined in the 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.
6.9 Stock
Splits, Stock Dividends, etc.
In the
event of any issuance of Shares of the Company’s voting securities hereafter to
any of the Shareholders (including, without limitation, in connection with
any
stock split, stock dividend, recapitalization, reorganization, or the like),
such Shares shall become subject to this Agreement.
6.10 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.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have executed this Voting Agreement as of the
date
first written above.
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By:
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/s/
Xxxxxxx Xxx
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Name:
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Xxxxxxx
Xxx
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Title:
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Chief
Executive Officer
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INVESTORS:
|
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SAIF
Partners III L.P.
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By:
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/s/Xxxxxx
X. Xxx
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Name:
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Xxxxxx
X. Xxx,
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Title:
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Authorized
Signatory
|
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EXISTING
SHAREHOLDERS:
|
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Xxxxxx
Investment Holdings Limited
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By:
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/s/
Xxxxxxx Xxx
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Name:
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Xxxxxxx
Xxx
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Title:
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Director
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Leguna
Verde Investments Limited
|
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By:
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/s/
Xxxxxx Xxxx
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Xxxxxx
Xxxx
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Title:
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Director
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SCHEDULE
A
INVESTORS
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Name and Address
|
Number of Shares Held
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SAIF
Partners III L.P.
Suite
2115-2118, Two Pacific Place
00
Xxxxxxxxx
Xxxxxxxxx,
Xxxx Xxxx
x000-0000-0000
Phone
x000-0000-0000
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2,586,207
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SCHEDULE
B
EXISTING
SHAREHOLDERS
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Name
and Address
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Number
of Shares Held
|
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Xxxxxx
Investment Holdings Limited
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9,566,532
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X.X.
Xxx 0000, Xxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx
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Leguna
Verde Investment Limited
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1,274,960
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X.X.
Xxx 0000, Xxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx
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