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VOTING AGREEMENT

Voting Agreement

VOTING AGREEMENT | Document Parties: APPLIED SPECTRUM TECHNOLOGIES INC | KI Equity Partners III, LLC | XIA Pharmaceutical Inc You are currently viewing:
This Voting Agreement involves

APPLIED SPECTRUM TECHNOLOGIES INC | KI Equity Partners III, LLC | XIA Pharmaceutical Inc

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Title: VOTING AGREEMENT
Governing Law: New York     Date: 11/17/2006
Law Firm: Anslow & Jaclin, LLP;    

VOTING AGREEMENT, Parties: applied spectrum technologies inc , ki equity partners iii  llc , xia pharmaceutical inc
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VOTING AGREEMENT

 

This VOTING AGREEMENT, dated as of this 15 th day of September 2006 (“Agreement”), is by and among KI Equity Partners III, LLC, a Delaware limited liability company (“KI Equity”), XIA Pharmaceutical Inc., an international business company incorporated in the British Virgin Islands and the majority shareholder of the Company (as defined below) and each of the other persons whose signature appears under the caption (collectively, the “Shareholders”) on the signature page hereof. For purposes of this Agreement, KI Equity and each person whose signature appears on the signature page hereof shall be referred to herein individually as “Shareholder” and collectively as the “Shareholders”.

 

WHEREAS, as of the date hereof, each Shareholder owns beneficially of record or has the power to vote, or direct the vote of, shares of common stock, $.001 par value per share (“Common Stock”) or shares of the Common Stock, $.001 par value per share (“Common Stock”), of Applied Spectrum Technologies, Inc. (“Applied Spectrum”), a Delaware corporation, as set forth opposite such Shareholder’s name on Exhibit A hereto (all such shares of Common Stock and Preferred Stock and any shares of which ownership of record or the power to vote is hereafter acquired by the Shareholders, whether by purchase, conversion or exercise, prior to the termination of this Agreement being referred to herein as the “Shares”);

 

WHEREAS, Applied Spectrum, Ever Leader Holdings, Limited., a company incorporated under the laws of Hong Kong SAR (the "Company") and the Shareholders have entered into an Exchange Agreement, dated September 7, 2006 (as the same may be amended from time to time) (the “Exchange Agreement”) which provides, upon the terms and subject to the conditions thereof, for the exchange of all of the Shares of the Company for Applied Spectrum’s shares of Common Stock (the “Exchange”);

 

WHEREAS, as a condition to the consummation of the Exchange Agreement, KI Equity has requested that the Shareholders agree, and the Shareholders have agreed, severally, to enter into this Agreement; and

 

WHEREAS, the capitalized terms used but not defined in this Agreement shall have the meanings ascribed to them in the Exchange Agreement;

 

NOW, THEREFORE, in consideration of the premises and of the mutual agreements and covenants set forth herein and in the Exchange Agreement, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

 

ARTICLE I

VOTING OF SHARES FOR DIRECTORS

 

SECTION 1.01    Vote in Favor of the Directors . During the period commencing on the date hereof and terminating one year thereafter, each Shareholder, in its capacity as a Shareholder of Applied Spectrum (or successor), agrees to vote (or cause to be voted) all Shares directly or indirectly owned by the Shareholder or over which the Shareholder has the beneficial ownership or the right to vote and all Shares which such Shareholder acquires directly or indirectly or has the beneficial ownership or right to vote in the future, at any meeting of the Shareholders of Applied Spectrum, and in any action by written consent of the Shareholders of Applied Spectrum, in favor of the election of the Director Designees, as defined herein, to the Board of Directors of Applied Spectrum and will not vote (or cause to be voted) for the removal of the Director Designees from the Board of Directors. Any Director Designee may be removed from the Board of Directors in the manner allowed by law and Applied Spectrum’s governing documents, but with respect to the Director Designee pursuant to Section 1.03 (c), in the event such Director Designee is removed as a director of the Company, KI Equity shall have the right to approve the designation and nomination such removed director's replacement.

 

 

 


 

SECTION 1.02    Size of Board of Directors . The Shareholders agree that the Board of Directors of Applied Spectrum shall consist of five (5) persons during the term hereof, and the Shareholders will take all such action to set the number of directors consistent with this section 1.02.

 

SECTION 1.03    Director Designees . The Director Designees will be as follows:

 

(a)    so long as Yiqing Wan, Ruilu Song and Jingbo Wu are employed by or a shareholder of Applied Spectrum, for Yiqing Wan, Ruilu Song and Jingbo Wu (or a person designated by such person in substitution for himself), provided, however, that within ninety (90) days following the Closing, the board composition shall consist of a majority of independent directors and, accordingly, one of the foregoing persons shall resign as a director and be replaced by an independent director who shall be designated by Applied Spectrum; and

 

(b)    for one person designated by Keating Investments, LLC, who shall be an independent director,

 

(c)    so long as KI Equity is a shareholder of Applied Spectrum, for one person designated by KI Equity, which person shall be an independent director.

 

Neither the Shareholders, nor any of the officers, directors, shareholders, members, managers, partners, employees or agents of any Shareholder, makes any representation or warranty as to the fitness or competence of any Director Designee to serve on the Board of Directors by virtue of such party’s execution of this Agreement or by the act of such party in designating or voting for such Director Designee pursuant to this Agreement.

 

SECTION 1.04    Term of Agreement . The obligations of the Shareholders pursuant to this Article I shall terminate on the first anniversary of the date of this Agreement.

 

ARTICLE II

VOTING FOR CORPORATE ACTIONS

 

SECTION 2.01    Vote in Favor of Corporate Matters . During the term of this Agreement, each Shareholder hereby agrees and covenants to vote or cause to be voted all of his Shares then owned by him, or over which he has voting power, and all Shares which such Shareholder acquires directly or indirectly or has the beneficial ownership or right to vote in the future, at any regular or special meeting of shareholders, or, in lieu of any such meeting, to give his written consent in any action by written consent of the shareholders, in favor of each of the following items (“Actions”):

 

 

 


 

(a)    To approve the change of the name of Applied Spectrum to a name selected by the Board;

 

(b)    All such other actions as shall be necessary or desirable in connection with or related to the foregoing actions in (a) above including, without limitation, any amendment to the articles of incorporation of Applied Spectrum to effect the foregoing.

 

SECTION 2.02    Grant of Proxy; Further Assurance . In the event that, in connection with any regular or special meeting of shareholders, or, in lieu of any such meeting, with a written consent in any action by written consent of the shareholders, within five (5) days following a written request thereof by Keating Investments, LLC (or a representative thereof), a Shareholder fails to vote or cause to be voted all of his Shares in favor of the Actions in accordance with the instructions set forth in such written request, or to execute a written consent in connection therewith, each Shareholder, by this Agreement, with respect to all Shares over which it has voting authority and any Shares hereinafter acquired by such Shareholder over which it may have voting authority, does hereby irrevocably constitute and appoint Keating Investments, LLC, or any nominee, with full power of substitution, as his or its true and lawful attorney and proxy, for and in his or its name, place and stead, to vote each of such Shares as such Shareholder’s proxy, at every annual, specia


 
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