EXHIBIT
10.1
LOCK-UP AND VOTING
AGREEMENT
This
LOCK-UP AND VOTING AGREEMENT (this
“Agreement”) is dated as of January ____, 2009, by and
between the undersigned holder (“Stockholder”) of
Common Stock, par value $0.01 per share, of Zoom Technologies,
Inc., a Delaware corporation (“Zoom”), and Tianjin Tong
Guang Group Digital Communication Co., Ltd, a company organized
under the laws of the PRC (“TCB Digital”). All
capitalized terms used but not defined herein shall have the
meanings assigned to them in the Share Exchange Agreement (as
defined below).
WHEREAS
,
concurrently with the execution of this Agreement, Zoom, Zoom
Telephonics, Inc., Lei Gu, Gold Lion Holding Limited and TCB
Digital are entering into a Share Exchange Agreement (as such
agreement may be subsequently amended or modified, the “Share
Exchange Agreement”), pursuant to which the controlling
stockholder of TCB Digital shall become the controlling stockholder
of Zoom and TCB Digital shall become a subsidiary of
Zoom;
WHEREAS
,
Stockholder beneficially owns and has sole or shared voting power
with respect to the number of shares of Zoom Common Stock
identified on Exhibit A hereto (such shares, together
with all shares of Zoom Common Stock subsequently acquired by
Stockholder during the term of this Agreement, including through
the exercise of any stock option or other equity award, warrant or
similar instrument, being referred to as the “Shares”),
and holds stock options or other rights to acquire the number of
shares of Zoom Common Stock identified on Exhibit A
hereto; and
WHEREAS
, it is
a condition to the willingness of TCB Digital to enter into the
Share Exchange Agreement that Stockholder execute and deliver this
Agreement.
NOW,
THEREFORE , in consideration
of, and as a condition to, TCB Digital entering into the Share
Exchange Agreement and proceeding with the transactions
contemplated thereby, and in consideration of the expenses incurred
and to be incurred by TCB Digital in connection therewith,
Stockholder and TCB Digital agree as follows:
S
ECTION
1.
Restriction
on Transfer . Stockholder agrees not to offer,
sell, contract to sell, assign, transfer, hypothecate, pledge or
grant a security interest in, hedge or otherwise dispose of, or
enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition of (whether by
actual disposition or effective economic disposition due to cash
settlement or otherwise by Zoom or any affiliate of Zoom or any
person in privity with Zoom or any affiliate of Zoom), directly or
indirectly, any of the Shares from the period commencing on the
date hereof and expiring on the earlier of the Closing or
termination of the Share Exchange Agreement, except the following
transfers shall be permitted:
(a) transfers
by will or operation of law, in which case this Agreement shall
bind the transferee;
(b) transfers
pursuant to any pledge agreement existing on the date hereof,
subject to the pledgee agreeing in writing to be bound by the terms
of this Agreement;
(c) such transfers as TCB Digital may otherwise
permit in its sole discretion; and
(d)
sales of Shares upon the exercise of stock options to the extent
necessary to pay the exercise price and taxes related to such
exercise of stock options.
Any
transfer or other disposition in violation of the terms of this
Section 1 shall be null and void.
S
ECTION
2.
Agreement to
Vote Shares . Stockholder agrees that, while
this Agreement is in effect, at any meeting of stockholders of
Zoom, however called, or at any adjournment thereof, or in any
other circumstances in which Stockholder is entitled to vote,
consent or give any other approval, except as otherwise agreed to
in writing in advance by TCB Digital, Stockholder shall:
(a) appear at
each such meeting or otherwise cause the Shares to be counted as
present thereat for purposes of calculating a
quorum; and
(b) vote (or
cause to be voted), in person or by proxy, all the Shares that are
beneficially owned by Stockholder or as to which Stockholder has,
directly or indirectly, the right to vote or direct the voting,
(i) in favor of adoption and approval of the Share Exchange
Agreement and the transactions contemplated thereby;
(ii) against any action or agreement that would result in a
breach of any covenant, representation or warranty or any other
obligation or agreement of Zoom contained in the Share Exchange
Agreement or of Stockholder contained in this Agreement; and
(iii) against any Zoom Takeover Proposal or any other action,
agreement or transaction that is intended, or could reasonably be
expected, to materially impede, interfere or be inconsistent with,
delay, postpone, discourage or materially and adversely affect
consummation of the transactions contemplated by the Share Exchange
Agreement or of this Agreement.
S
ECTION
3.
Irrevocable Proxy . Subject to the last
sentence of this Section 3, by execution of this Agreement,
Stockholder does hereby appoint TCB Digital with full power of
substitution and resubstitution, as Stockholder’s true and
lawful attorney and irrevocable proxy, to the full extent of
Stockholder’s rights with respect to the Shares, to vote, if
Stockholder is unable to perform his or her obligations under this
Agreement, each of such Shares that Stockholder shall be entitled
to so vote with respect to the matters set forth in Section 2
hereof at any meeting of the stockholders of Zoom, and at any
adjournment or postponement thereof, and in connection with any
action of the stockholders of Zoom taken by written consent.
Stockholder intends this proxy to be irrevocable and coupled with
an interest hereafter until the termination of this Agreement
pursuant to the terms of Section 7 hereof and hereby revokes
any proxy previously granted by Stockholder with respect to the
Shares. Notwithstanding anything contained herein to the contrary,
this irrevocable proxy shall automatically terminate upon the
termination of this Agreement.
S
ECTION
4.
Representations
and Warranties of Stockholder . Stockholder
represents and warrants to and agrees with TCB Digital as
follows:
(a) Stockholder
has all requisite capacity and authority to enter into and perform
his or her obligations under this Agreement.
(b) This
Agreement has been duly executed and delivered by Stockholder, and
assuming the due authorization, execution and delivery by TCB
Digital, constitutes t
