VOTING AGREEMENT
Exhibit 99.10
VOTING AGREEMENT, dated as of April 27, 2006 (this “Agreement”), by and among Qiao Xing
Universal Telephone, Inc., a company incorporated under the laws of the British Virgin Islands (the
“Company”) and Xxx Xxxx Wu (the “Stockholder”).
WHEREAS, the Company, Qiao Xing Mobile Communications Co. Ltd. (“QX Mobile”) and certain
investors (each, an “Investor”, and collectively, the “Investors”) have entered into a Securities
Purchase Agreement, dated as of the date hereof (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, severally but not jointly, agreed to purchase (i) convertible notes of the Company
(the “Notes”) which Notes shall be, in accordance with the terms of the Notes, in whole or in part,
(A) convertible and/or redeemable into shares of the common stock of the Company, par value $.001
per share or (B) in the event of an initial public offering of QX Mobile, exchangeable into shares
(the “Common Shares”) of the common stock of QX Mobile, par value $.01 per share (the “Common
Stock”) (as exchanged and/or redeemed, the “Exchange Shares”), and (ii) warrants (the “Warrants”),
which will be exercisable to purchase shares of Common Stock (as exercised collectively, the
“Warrant Shares”).
WHEREAS, as of the date hereof, the Stockholder owns shares of Common Stock, which represents
(i) approximately 1.7% of the total issued and outstanding Common Stock of the Company, and (ii)
approximately 1.7% 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) as described in Section 4(n) 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 the capacity
to execute and deliver this Agreement, to perform his obligations hereunder and to consummate the
transactions contemplated hereby. 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, foreign, 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.
SECTION 2.03. Title to the Stock. As of the date hereof, the Stockholder is the
owner of 400,000 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 1.7% of the outstanding stock and approximately 1.7% 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. Such Common Stock is owned free and
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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. 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 or 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.
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.
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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
British Virgin Islands, without giving effect to any choice of law or conflict of law provision or
rule (whether of the British Virgin Islands or any other jurisdictions) that would cause the
application of the laws of any jurisdictions other than the British Virgin Islands. 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. The Company hereby appoints Xxxxxx X.
Xxxxxxxxx, Esq., with offices at 0000 XXX Xxxxxxx, Xxxxx 000 Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000, as
its agent for service of process. 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. Third-Party Beneficiaries. The Investors shall be intended third party
beneficiaries of this Agreement to the same extent as if they were parties hereto, and shall be
entitled to enforce the provisions hereof.
SECTION 4.08. Termination. This Agreement shall terminate immediately following the
occurrence of the Stockholder Approval or upon the mutual consent of the Stockholder and the
Investors holding at least a majority of the aggregate principal amount of Notes outstanding.
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IN WITNESS WHEREOF, the Stockholder and the Company has duly executed this Agreement.
| THE COMPANY: QIAO XING UNIVERSAL TELEPHONE, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Address: | Qiao Xing Universal Telephone, Inc. Qiao Xing Science Industrial Park Xxxx Xxxx Huizhou City, Guangdong, People’s Republic of China 516023 |
| STOCKHOLDER: XXX XXXX WU |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Address: |
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