Exhibit 10.9
VOTING AGREEMENT
VOTING AGREEMENT, dated as of October 15, 2009 (this "
Agreement "), by and among Zoom Technologies, Inc., a
Delaware corporation (the " Company "), and the stockholders
listed on the signature pages hereto under the heading "
Stockholders " (each, a " Stockholder " and
collectively, the " Stockholders ").
WHERE AS, the Company and certain
investors (each, an " Investor ", and collectively, the "
Investors ") have entered into a Securities Purchase
Agreement, dated as October 15, 2009 (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 agreed to purchase, (i) shares of the Company's
common stock, par value $0.01 per share (the " Common Stock
"); and (ii) five series of warrants which will be exercisable to
purchase shares of Common Stock.
WHEREAS, as of the date hereof, the Stockholders own
collectively 3,946,559 shares of Common Stock, which represent in
the aggregate approximately 63% of the total issued and outstanding
capital stock of the Company; and
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 each
Stockholder agrees, and in order to induce the Investors to enter
into the Securities Purchase Agreement, each 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
Stockholders and any other securities, if any, which such
Stockholder is currently entitled to vote, or after the date
hererof, becomes entitled to vote, at any meeting of 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, each 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, each of the Stockholders 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 3.1(a) 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 Securities Purchase Agreement or
which could result in any of the conditions to the Company's
obligations under the Securities Purchase Agreement not being
fulfilled. Each Stockholder acknowledges receipt and review of a
copy of the Securities Purchase Agreement and the other Transaction
Documents (as defined in the Securities Purchase Agreement). The
obligations of the Stockholders under this Section 1.01 shall
terminate immediately following the occurrence of the Stockholder
Approval.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
Each Stockholder hereby represents and warrants, severally but
not jointly, to each of the Investors as follows:
SECTION 2.01. Authority Relative to This Agreement
. Each Stockholder has all necessary legal capacity, power and
authority to execute and deliver this Agreement, to perform his or
its obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and
delivered by such Stockholder and constitutes a legal, valid and
binding obligation of such Stockholder, enforceable against such
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, (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, and (c) where rights to indemnity and contribution
thereunder may be limited by applicable law and public policy.
SECTION 2.02. No Conflict . (a) The execution and
delivery of this Agreement by such Stockholder does not, and the
performance of this Agreement by such Stockholder shall not, (i)
conflict with or violate any federal, state or local law, statute,
ordinance, rule, regulation, order, judgment or decree applicable
to such Stockholder or by which the Common Stock or the Other
Securities owned by such 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 such Stockholder pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which such
Stockholder is a party or by which such Stockholder or the Common
Stock or Other Securities owned by such Stockholder are bound.
(b) The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such
Stockholder shall not, require any consent, approval, authorization
or permit of, or filing with or notification to, any governmental
entity by such Stockholder.
SECTION 2.03. Title to the Stock . As of the date
hereof, each Stockholder is the owner of the n
