Exhibit 10.2
VOTING AGREEMENT
This
VOTING AGREEMENT (the “
Agreement ”)
is made and entered into as of this 17
th day
of July, 2008, by and among China TransInfo Technology Corp., a
Nevada corporation (the “
Company ”),
each of the investors listed on
Schedule A (the
“
Investors ”)
and those certain shareholders of the Company listed on
Schedule B (the
“
Existing Shareholders ”
and collectively with the Investors, the “
Shareholders ”).
WHEREAS,
concurrently with the execution of this Agreement, the Company
and the Investors are entering into a Securities Purchase
Agreement (the “
Purchase Agreement ”)
providing for the sale of shares of the Company’s Common
Stock, and in connection with that agreement, the parties desire to
provide the Investors with the right, among other rights, to elect
certain members of the board of directors of the Company (the
“
Board ”)
in accordance with the terms of this Agreement. Defined terms used
herein that are not defined herein have the meaning as defined in
the Purchase Agreement.
WHEREAS,
the Amended and Restated Articles of Incorporation, as
amended, of the Company (the “
Restated Articles ”)
provides that the holders of record of the shares of common stock
of the Company, $0.001 par value per share (“
Common Stock ”)
and of any other class or series of voting stock, voting together
as a single class, shall be
entitled to elect the board of directors of the
Company.
WHEREAS,
the Company does not have any voting stock outstanding other
than Common Stock.
WHEREAS,
in order to induce the Investors to expend the time and
resources required enter into the Purchase Agreement, the
parties desire to enter into this Agreement to set forth their
agreements and understandings with respect to how shares of
the Company’s capital stock held by them will be voted
on.
NOW,
THEREFORE, in consideration of the mutual promises made herein
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1.
Voting Provisions Regarding Board of Directors
.
1.1
Size of the Board .
During
the Term (as defined below) of this Agreement, each Shareholder
agrees to vote, or cause to be voted, all Shares (as defined below)
owned by such Shareholder, or over which such Shareholder has
voting control, from time to time and at all times, in whatever
manner as shall be necessary to ensure that the size of the Board
shall be set and remain at seven (7) directors. For purposes of
this Agreement, the term “
Shares ”
shall mean and include any securities of the Company the holders of
which are entitled to vote for members of the Board, including
without limitation, all shares of Common Stock or preferred stock,
by whatever name called, now owned or subsequently acquired by a
Shareholder, however acquired, whether through stock splits, stock
dividends, reclassifications, recapitalizations, similar events or
otherwise.
1.2
Election of Investor Nominee .
During
the Term of this Agreement, each Shareholder agrees to vote, or
cause to be voted, all Shares owned by such Shareholder, or over
which such Shareholder has voting control, from time to time and at
all times, in whatever manner as shall be necessary to ensure that
at each annual or special meeting of shareholders at which an
election of directors is held or pursuant to any written consent of
the shareholders, one individual designated by the Investors, which
individual shall initially be Brandon Ho-Ping Lin, shall be elected
as a director of the Company.
1.3
Failure to Designate a Board Member .
In the absence of any designation from the persons or groups with
the right to designate a director as specified above, the director
previously designated by them and then serving shall be reelected
if still eligible to serve as provided herein.
1.4
Removal of Board Members .
Each
Shareholder also agrees to vote, or cause to be voted, all Shares
owned by such Shareholder, or over which such Shareholder has
voting control, from time to time and at all times, in whatever
manner as shall be necessary to ensure that:
(a)
no
director elected pursuant to
Sections 1.2 or 1.3 of
this Agreement may be removed from office unless (i) such removal
is directed or approved by the affirmative vote of the Investors,
entitled under
Section 1.2 to
designate that director or (ii) the Investors originally entitled
to designate or approve such director pursuant to
Section 1.2 is
no longer so entitled to designate or approve such director;
and
(b)
any
vacancies created by the resignation, removal or death of a
director elected pursuant to
Sections 1.2 or 1.3 shall
be filled pursuant to the provisions of this
Section 1 with
the Investors having the right to nominate the director to fill
such vacancy.
1.5
Written Consent .
All Shareholders agree to execute any written consents required to
perform the obligations of this Agreement, and the Company agrees
at the request of any party entitled to designate directors to call
a special meeting of shareholders for the purpose of electing
directors.
1.6
Further Assurances .
During the Term, the Existing Shareholders will take such further
actions and execute such further documents and instruments as may
reasonably be requested by the Investors or the Company to carry
out the provisions of this Agreement.
1.7
No Liability for Election of Recommended Directors
.
No party, nor any Affiliate of any such party, shall have any
liability as a result of designating a person for election as a
director for any act or omission by such designated person in his
or her capacity as a director of the Company, nor shall any party
have any liability as a result of voting for any such designee in
accordance with the provisions of this Agreement.
1.8
Representations & Warranties .
Each Existing Shareholders represent and warrants, severally and
not jointly, to the Investors as follows:
(a)
Valid Title, etc. With
respect to the Shares beneficially owned by the Existing
Shareholders, there are no restrictions on the rights of
disposition pertaining thereto, except for any restrictions
contemplated herein, restrictions arising under that certain Make
Good Escrow Agreement, dated May 14, 2007, with certain investors
(the “Make Good Escrow Agreement”) or arising under
applicable securities laws, such Existing Shareholder has exclusive
power to vote, exclusive power of disposition and exclusive power
to agree to all of the matters set forth in this Agreement, in each
case with respect to all of such Existing Shareholder’s
Shares with no limitations, qualifications or restrictions on these
rights. Each Existing Shareholder represents that neither it nor
any of its Affiliates is party to or bound by any agreement with
respect to the voting (by proxy or otherwise), sale or other
disposition of their Shares (other than this Agreement and the Make
Good Escrow Agreement).
(b)
Non-Contravention .
The execution and delivery of this Agreement by such Existing
Shareholder and the performance by such Existing Shareholder of
such Existing Shareholder’s obligations under this Agreement
(i) are within such Existing Shareholder’s powers, have been
duly authorized by all necessary action (including any
consultation, approval or other action by or with any other
person), (ii) require no action by or in respect of, or filing
with, any governmental body, agency, official or authority, and
(iii) do not and will not contravene or constitute a default under,
or give rise to a right of termination, cancellation or
acceleration of any right or obligation of such Existing
Shareholder or to a loss of any material benefit of such Existing
Shareholder under, any provision of applicable law or regulation or
of any agreement, judgment, injunction, order, decree, or other
instrument binding on him/it or result in the imposition of any
lien on any asset of such Existing Shareholder other than any
conflicts, breaches, violations, defaults, obligations, rights or
losses that individually or in the aggregate would not (A) impair
the ability of such Existing Shareholder to perform its obligations
under this Agreement or (B) prevent or delay the consummation of
any of the transactions contemplated hereby.
(c)
Binding Effect .
This Agreement has been duly executed and delivered by such
Existing Shareholder, and this Agreement is the valid and binding
agreement of the Existing Shareholder, enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors’ rights and remedies
generally and to general principles of equity.
2.
Covenants of the Company
2.1
Initial Election .
By the earlier of (i) the two-month anniversary of the date on
which the Common Stock of the Company is first listed on the NASDAQ
Capital Market and (ii) September 30, 2008, the Company shall cause
the election as new directors of the Company, Mr. Brandon Ho-Ping
Lin (or such other individual(s) as may be designated in writing by
the Investors) and another individual as may be designed by the
Company; provided that such individual is “independent”
as defined by Rule 4200(a)(15) of the Marketplace Rules of The
Nasdaq Stock Market, Inc.
2.2
Nomination .
Following the initial election of Mr. Lin (or such other
individual(s) as may be designated in writing by the Investors) as
a director of the Company in accordance with the above section and
during the Term of this Agreement, the Company shall use its best
efforts (i) to cause such individual(s) as may be designated in
writing by the Investors to be nominated for election at each
annual or special meeting of shareholders at which an election of
directors is held or pursuant to any written consent of the
shareholders for the election of directors, and (ii) in the event
of the death, removal or resignation of any director designated by
the Investors under this Agreement (including Mr. Lin) from the
Board of Directors for any reason, to cause the nomination,
appointment or election of such person designated in writing by the
Investors to fill the vacancy.
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