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EXHIBIT 7.1
VOTING AGREEMENT
This VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
July 24, 2001, by and among Xxxxx X. Xxxxxx, a Texas resident ("XXXXXX"), CLB
Partners, Ltd., a Texas limited partnership ("CLB"), Xxxxxxx Xxxxx, a California
resident ("BLOCH"), and Will Xxxxxxx, a Texas resident ("XXXXXXX").
RECITALS:
WHEREAS, Xxxxxx, CLB, Bloch and Xxxxxxx collectively own the shares set
forth on Schedule A attached hereto (together with all securities of the
Corporation issued or issuable to Xxxxxx, CLB, Bloch or Xxxxxxx, or their
respective assigns, by way of stock dividend, stock split, combination, merger,
conversion, consolidation or other reorganization or hereafter acquired by
Xxxxxx, CLB, Bloch or Xxxxxxx or their respective assigns, the "SUBJECT SHARES")
of the common stock, par value $.0001 per share (the "COMMON STOCK"), of
Ascendant Solutions, Inc., a Delaware corporation (the "CORPORATION");
WHEREAS, Bloch and Xxxxxxx are the limited partners of CLB and control
the general partner of CLB;
WHEREAS, the Xxxxxx, CLB, Bloch and Xxxxxxx desire to enter into a
voting agreement whereby the Subject Shares shall be voted uniformly.
NOW, THEREFORE, in consideration of the premises and the mutual terms,
covenants and conditions contained herein, the parties hereto hereby agree as
follows:
AGREEMENT:
Section 1. VOTING AGREEMENT.
(a) General Rights. From and after the date hereof, on all matters of
the Corporation with respect to which the Subject Shares have the right to vote,
CLB, Xxxxxx, Bloch and Xxxxxxx hereby agree to vote all of the Subject Shares in
the manner designated by the affirmative vote of at least a majority of Xxxxxx,
Bloch and Xxxxxxx (collectively, the "VOTING PANEL"), each with one vote,
subject to the limitations set forth in Section 2 hereof.
(b) Effects of Disposition. For purposes of this Agreement, the term
"Affiliate" has the definition ascribed to it in Rule 405 of the rules and
regulations promulgated under the Securities Act of 1933, as amended.
(i) In the event that the number of Subject Shares actually
held by Xxxxxx or his Affiliates shall decrease, due to a Transfer or
Transfers pursuant to Section 2 hereof, to an amount less than
1,312,500 shares of Common Stock, as adjusted for stock splits, stock
dividends, combinations, mergers, conversions, consolidations or other
reorganizations,
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Xxxxxx shall be removed from the Voting Panel and the affirmative vote
of Bloch and Xxxxxxx shall determine the manner in which the Subject
Shares are to be voted.
(ii) In the event that the number of Subject Shares actually
collectively held by CLB, Bloch, Cureton or their respective Affiliates
shall decrease, due to a Transfer or Transfers pursuant to Section 2
hereof, to an amount less than 1,500,000 shares of Common Stock, as
adjusted for stock splits, stock dividends, combinations, mergers,
conversions, consolidations or other reorganizations, either Bloch or
Xxxxxxx (chosen at the sole discretion of CLB) shall be removed from
the Voting Panel and the affirmative vote of Xxxxxx and member not so
removed shall determine the manner in which the Subject Shares are to
be voted.
(iii) In the event that CLB, Bloch, Cureton or their
respective Affiliates shall cease to own any of the Subject Shares,
then Bloch and Xxxxxxx shall be removed (unless previously removed
pursuant to Section 1(b)(ii) hereof) from the Voting Panel and Xxxxxx
shall have the right to vote all of the Subject Shares.
(c) Procedure. The holders of the rights to vote the Subject Shares
shall (i) notify each member of the Voting Panel, unless the right to receive
such notification has been waived by such member before or after the date on
which such notification is to be received, no later than ten (10) days prior to
the date on which the Subject Shares are to be voted on any matter and (ii)
provide the Voting Panel with any information distributed by the Corporation
regarding the matter. Within five (5) days of receipt of such notice, the Voting
Panel shall then notify the holders of the rights to vote the Subject Shares of
the decision of the Voting Panel.
(d) Death or Disability. For so long as Xxxxxx, Bloch and Xxxxxxx
remain members of the Voting Panel and have not been removed pursuant to the
provisions of Section 1(b) hereto:
(i) In the event of Leslie's death or disability such that he
is unable to perform his duties as a member of the Voting Panel, CLB
shall have the right either, at its sole discretion, to (A) nominate a
replacement member of the Voting Panel or (B) terminate this Agreement
with respect to all of the Subject Shares.
(ii) In the event of either Xxxxx'x or Xxxxxxx'x death or
disability such that either one is unable to perform his duties as a
member of the Voting Panel, CLB shall have the right to nominate a
replacement member of the Voting Panel.
(iii) In the event of the death or disability of any two or
more members of the Voting Panel such that each is unable to perform
his duties as a member of the Voting Panel, this Agreement shall
terminate with respect to all of the Subject Shares and be of no
further effect.
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Section 2. RESTRICTIONS ON TRANSFERS.
(a) General Rights. In addition to any restrictions on the Transfer (as
hereinafter defined) of the Corporation's Common Stock that are imposed under
applicable securities laws, CLB, Xxxxxx, Bloch and Xxxxxxx shall not Transfer or
Pledge (as each such term is hereinafter defined) all or any part of the Subject
Shares other than in a private sales transaction exempt from registration under
federal or state securities laws, unless each of the parties hereto consents to
such Transfer or Pledge. For purposes of this Agreement, the term "TRANSFER"
means any sale, assignment or other disposition of the Subject Shares, other
than a Pledge, and the term "PLEDGE" means any pledge of an interest in, or
other encumbrance placed upon, the Subject Shares as security for indebtedness
or for other purposes.
(b) Excluded Transfers. The provisions of this Section 2 do not apply
to the Transfer of 76,000 shares of Common Stock (the "EXCLUDED SHARES") by
Xxxxxxx, and, upon such Transfer, the Excluded Shares shall no longer be Subject
Shares.
(c) Transferred Shares. Notwithstanding the foregoing, any of the
Subject Shares Transferred or Pledged by a party hereto in accordance with
Section 2 (a) hereof shall remain Subject Shares, and the individuals or
entities to whom the Subject Shares are Transferred or Pledged (the "SUBJECT
STOCKHOLDERS") shall be bound by and subject to the terms and conditions of this
Agreement and shall have no rights whatsoever with respect to the voting of the
Subject Shares on any matter. Prior to receiving any such Subject Shares, the
Subject Stockholders shall sign and deliver a written acknowledgement agreeing
to be bound by the terms of this Agreement.
Section 3. TERMINATION. Unless otherwise provided herein, this
Agreement shall terminate upon the earlier of (i) the date upon which the
closing price of the Common Stock shall have been at least $5.00 per share, as
adjusted for stock splits, stock dividends, combinations, mergers, conversions,
consolidations or other reorganizations, for sixty (60) consecutive trading
days, (ii) the third anniversary of the date hereof, unless extended by the
parties hereto or (iii) the date on which all of the members of the Voting Panel
consent in writing to the termination of this Agreement.
Section 4. MISCELLANEOUS.
(a) Governing Law. This Agreement and the rights and duties of the
parties hereto shall be governed by and construed in accordance with the laws of
the State of Delaware.
(b) Number. Words in the singular shall be construed to include the
plural and vice versa, unless the context otherwise requires.
(c) Headings. The headings appearing in this Agreement are inserted
only for convenience of reference and in no way shall be construed to define,
limit or describe the scope or intent of any provision of this Agreement.
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(d) Severability. Every provision in this Agreement is intended to be
severable. In the event that any provision in this Agreement shall be held
invalid, the same shall not affect in any respect whatsoever the validity of the
remaining provisions of this Agreement; provided, however, that if any such
provision may be made enforceable by limitation thereof, then such provision
shall be deemed to be so limited and shall be enforceable to the maximum extent
permitted by applicable law.
(e) Assignment. Subject to the terms of Section 2(c) hereof, neither
this Agreement, nor any of the rights, interests or obligations under this
Agreement shall be assigned or delegated, in whole or in part, by any of the
parties hereto without the prior written consent of all of the other parties
hereto.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute but one and the same document.
(g) Entirety and Modification. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and may not
be modified, supplemented or amended in any respect except by written instrument
executed by all parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
/s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
/s/ Will Xxxxxxx
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Name: Will Xxxxxxx
CLB PARTNERS, LTD.,
By: CLB Holdings, LLC, its general
partner
By: /s/ Will Xxxxxxx
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Will Xxxxxxx, President
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Schedule A
Name Number of Shares Number of Options
---- ---------------- -----------------
Xxxxx X. Xxxxxx 2,625,000* -0-
CLB Partners, Ltd. 3,000,000 -0-
Will Xxxxxxx 76,000 -0-
Xxxxxxx Xxxxx -0- -0-
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Total 5,701,000 -0-
* Includes 40,000 shares held by UGMA accounts, of which Xx. Xxxxxx is
custodian, for the benefit of Xx. Xxxxxx'x children.
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