VOTING AGREEMENT
EXHIBIT
10.2
VOTING
AGREEMENT, dated as of December 24, 2009 (this "Agreement"), by and among
General Steel Holdings, Inc., a Nevada corporation (the "Company"), and the
stockholders listed on the signature pages hereto under the heading "Stockholders" (each, a "Stockholder" and collectively,
the "Stockholders").
WHEREAS, the Company and certain
investors (each, an "Investor", and collectively, the "Investors") have entered into a Securities
Purchase Agreement, dated as December __, 2009 (the "Securities Purchase
Agreement"), pursuant to
which, among other things, the Company has agreed to issue and sell to the
Investors and the Investors have agreed to purchase, (i) shares of the
Company's common stock,
par value $0.001 per share (the "Common
Stock"); and (ii) warrants which will be exercisable to purchase
shares of Common Stock.
WHEREAS,
as of December 24, 2009, the Stockholders owned collectively shares of
Common Stock, which represented in the aggregate approximately 62%of the total
issued and outstanding capital stock of the Company on December 24, 2009
and
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 each Stockholder agrees, and in order to induce the Investors
to enter into the Securities Purchase Agreement, each 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 Stockholders and any other securities, if
any, which such Stockholder is currently entitled to vote, or after the date
hererof, becomes entitled to vote, at any meeting of 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, each 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, each of the Stockholders shall vote the
Common Stock and the Other Securities: (a) in favor of the
Shareholder Approval (as defined in the Securities Purchase Agreement) as
described in Section 3.1(a) 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 Securities Purchase Agreement
or which could result in any of the conditions to the Company's obligations
under the Securities Purchase Agreement not being fulfilled. Each
Stockholder acknowledges receipt and review of a copy of the Securities Purchase
Agreement and the other Transaction Documents (as defined in the Securities
Purchase Agreement). The obligations of the Stockholders under this
Section 1.01 shall terminate immediately following the occurrence of the
Shareholder Approval.
ARTICLE
II
REPRESENTATIONS AND
WARRANTIES OF THE STOCKHOLDER
Each
Stockholder hereby represents and warrants, severally but not jointly, to each
of the Investors as follows:
SECTION
2.01. Authority
Relative to This Agreement. Each Stockholder has all necessary
legal capacity, power and authority to execute and deliver this Agreement, to
perform his or its obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by such Stockholder and constitutes a legal, valid and binding
obligation of such Stockholder, enforceable against such 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, (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, and (c) where rights to
indemnity and contribution thereunder may be limited by applicable law and
public policy.
SECTION
2.02. No
Conflict. (a) The execution and delivery of this
Agreement by such Stockholder does not, and the performance of this Agreement by
such Stockholder shall not, (i) conflict with or violate any federal, state or
local law, statute, ordinance, rule, regulation, order, judgment or decree
applicable to such Stockholder or by which the Common Stock or the Other
Securities owned by such 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 such Stockholder pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which such Stockholder is a party or by which such
Stockholder or the Common Stock or Other Securities owned by such Stockholder
are bound.
(b) The
execution and delivery of this Agreement by such Stockholder does not, and the
performance of this Agreement by such Stockholder shall not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental entity by such Stockholder.
SECTION
2.03. Title to the
Stock. As of the date hereof, each Stockholder is the owner of
the number of shares of Common Stock set forth opposite its name on Appendix A attached
hereto, entitled to vote, without restriction, on all matters brought before
holders of capital stock of the Company, which Common Stock represent on the
date hereof the percentage of the outstanding stock and voting power of the
Company set forth on such Appendix. Such Common Stock are all the
securities of the Company owned, either of record or beneficially, by such
Stockholder. Such Common Stock are owned free and clear of all
security interests, liens, claims, pledges, options, rights of first refusal,
agreements, limitations on such Stockholder's voting rights, charges and other
encumbrances of any nature whatsoever. No Stockholder has appointed
or granted any proxy, which appointment or grant is still effective, with
respect to the Common Stock or Other Securities owned by such
Stockholder.
2
ARTICLE
III
COVENANTS
SECTION
3.01. No Disposition
or Encumbrance of Stock. Each Stockholder hereby covenants and
agrees that, until the Shareholder Approval has been obtained, except as
contemplated by this Agreement, such 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 such Stockholder's voting rights, charge or other
encumbrance of any nature whatsoever ("Encumbrance") with respect to
the Common Stock or Other Securities, directly or indirectly, initiate, solicit
or encourage any person to take actions which could reasonably be expected to
lead to the occurrence of any of the foregoing; provided, however, that any
such Shareholder may assign, sell or transfer any Common Stock or Other
Securities provided that any such recipient of the Common Stock or Other
Securities has delivered to the Company and each Investor a written agreement in
a form reasonably satisfactory to the Investors that the recipient shall be
bound by, and the Common Stock and/or Other Securities so transferred, assigned
or sold shall remain subject to this Agreement.
SECTION
3.02. Company
Cooperation. The Company hereby covenants and agrees that it
will not, and such 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 or agreement on any of the Common
Stock or Other Securities subject to this Agreement unless the provisions of
Section 3.01 have been complied with. The Company agrees to use its
reasonable best efforts to ensure that at any time in which any Shareholder
Approval is required pursuant to Section 3.1(a) of the Securities Purchase
Agreement, it will cause holders of Common Stock or Other Securities
representing the percentage of outstanding capital stock required to vote in
favor of the Transaction in order for the Company to comply with its obligations
under Section 3.1(a) of the Securities Purchase Agreement to become party to and
bound by the terms and conditions of this Agreement and the Common Stock and
Other Securities held by such holders to be subject to the terms and conditions
of this Agreement.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01. Further
Assurances. Each Stockholder will 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 Stockholders with respect to the subject matter hereof
and supersedes all prior agreements and understandings, both written and oral,
among the Company and the Stockholders with respect to the subject matter
hereof.
SECTION
4.04. Amendment. The
provisions of this Agreement may not be amended or waived, nor may this
Agreement be terminated by the Company other than pursuant to the provisions of
Section 4.07.
SECTION
4.05. Severability. If
any provision of this Agreement is prohibited by law or otherwise determined to
be invalid or unenforceable by a court of competent jurisdiction, the provision
that would otherwise be prohibited, invalid or unenforceable shall be deemed
amended to apply to the broadest extent that it would be valid and enforceable,
and the invalidity or unenforceability of such provision shall not affect the
validity of the remaining provisions of this Agreement so long as this Agreement
as so modified continues to express, without material change, the original
intentions of the parties as to the subject matter hereof and the prohibited
nature, invalidity or unenforceability of the provision(s) in question does not
substantially impair the respective expectations or reciprocal obligations of
the parties or the practical realization of the benefits that would otherwise be
conferred upon the parties. The parties will endeavor in good faith
negotiations to replace the prohibited, invalid or unenforceable provision(s)
with a valid provision(s), the effect of which comes as close as possible to
that of the prohibited, invalid or unenforceable provision(s).
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 New York, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of New York or
any other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of New York. 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 each 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. The Company and
each Stockholder hereby appoints Xxxxx & Xxxxxxxx LLP, with offices at 000
Xxxxxx Xxxxxx, Xxxxxx, XX 00000, as its agent for service of process in New
York. 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.
4
SECTION
4.07. Termination. This
Agreement shall terminate immediately following the occurrence of the
Shareholder Approval.
[Signature
Page Follows]
5
IN
WITNESS WHEREOF, each Stockholder and the Company has duly executed this
Agreement.
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THE
COMPANY:
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GENERAL
STEEL HOLDINGS, INC.
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By:
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/s/ Xxxxxxxx Xx | |
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Name:
Xxxxxxxx Xx
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Title:
Chief Executive
Officer
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Dated:
December 24,
2009
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Address:
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General
Steel Holdings, Inc.
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Room
2315, Kuntai International
Mansion
Building,
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Yi
Xx. 00, Xxxxxxxxxxxxxx Xxx.
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Xxxxxxxx
Xxxxxxxx, Xxxxxxx, Xxxxx
100020
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STOCKHOLDERS:
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| /s/ Xxxxxxxx Xx | |||
| Xxxxxxxx Xx | |||
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Dated: December
24, 2009
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Address:
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STOCKHOLDERS:
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| Victory New Holdings Limited | |||
| /s/ Xxxx Xxxxxx | |||
| Xxxx Xxxxxx | |||
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Dated: December
24, 2009
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Address:
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APPENDIX
A
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Stockholder
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Capital
Stock
Owned
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Percentage of Stock
Outstanding
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Voting Percentage
of Stock
Outstanding
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Xxxxxxxx
Xx
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21,108,900
shares of common stock
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46.0% of common stock |
32.0%
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Victory
New Holdings Limited
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3,092,899
shares of Series A Preferred Stock
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100%
of Series A Preferred Stock
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30.0%
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