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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