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Exhibit
10.2
VOTING
AGREEMENT
VOTING AGREEMENT, dated as of
this 30th day of July 2007 (“Agreement”), among each of
the persons listed under the caption “Ascend Group” on
the Signature Page hereto (the “Ascend Group”), ePak
Holdings Ltd. (“EPH”), each of the persons listed under
the caption “ePak Group” on the Signature Page hereto
(collectively with EPH, the “ePAK Group”), Ascend
Acquisition Corp. (“Ascend”) and Ascend Company Limited
(“Company”). Each of the Ascend Group and the ePak
Group (as defined above) is sometimes referred to herein as a
“Group.” For purposes of this Agreement, each person
who is a member of either the Ascend Group or the ePAK Group is
referred to herein individually as a “Shareholder” and
collectively as the “Shareholders.”
WHEREAS, as of even date
herewith, each of the Company, the Company’s parent
corporation, Ascend, e.Pak Resources (S) Pte. Ltd.
(“EPR”) and EPR’s parent company, EPH, entered
into an Agreement and Plan of Reorganization (the
“Reorganization Agreement”) that provided, inter
alia , upon the terms and subject to the conditions thereof,
for the amalgamation of Ascend and the Company, with the resultant
continuing corporation (“Continuing Corporation”)
continuing as a publicly traded Bermuda limited company after the
amalgamation, the exchange of all of Ascend’s common stock
and warrants for common shares and warrants of the Continuing
Corporation, and the purchase by the Continuing Corporation from
EPH of all the outstanding capital shares of EPR so that EPR became
a wholly owned subsidiary of the Continuing Corporation
(collectively, the “Transactions”).
WHEREAS, after giving effect
to the consummation of the Transactions, each Shareholder will own
beneficially and of record certain ordinary shares of the
Continuing Corporation (all such shares and any shares of which
ownership of record or the power to vote is hereafter acquired by
any of the Shareholders, whether by purchase, conversion or
exercise, prior to the termination of this Agreement, and any
shares of the common stock of Ascend prior to the amalgamation with
the Company, being referred to herein as the
“Shares”);
WHEREAS, capitalized terms
used but not defined in this Agreement shall have the meanings
ascribed to them in the Reorganization Agreement.
NOW, THEREFORE, in
consideration of the premises and of the mutual agreements and
covenants set forth herein and in the Reorganization Agreement and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby agree to be legally bound as follows:
ARTICLE I
VOTING OF SHARES FOR
DIRECTORS
SECTION 1.01 Board
Composition . The Continuing Corporation and the Shareholders
shall take all necessary and desirable actions within their
respective control during the term of this Agreement to provide for
(i) the Continuing Corporation’s Board of
Directors
(the “Board”) to be
comprised of five members, (ii) to enable the election of the
Director Designees (as defined herein) to the Board and
(iii) the Board to be comprised of three classes of directors
– Class A, Class B and Class C – with Class A
first coming up for reelection at the first annual meeting of
stockholders following consummation of the Transactions, Class B
first coming up for reelection at the second annual meeting of
stockholders following consummation of the Transactions and Class C
first coming up for reelection at the third annual meeting of
stockholders following consummation of the Transactions. For the
purposes of this Agreement, all references herein to any
“Group” shall mean the holders of a majority of the
voting shares of EPH, Ascend or the Continuing Corporation, as the
case may be, held by the Shareholders comprising such Group. The
Director Designees shall be chosen by the applicable Group (such
determination in the case of the ePAK Group shall be made by the
consent of the holders of a majority of the Shares held by the
members of the ePAK Group and such determination in the case of the
Ascend Group shall be made by the consent of the holders of a
majority of the Shares held by the members of the Ascend Group) and
identified in writing by the Group Representative to the other
Group Representative. For purposes hereof, “Group
Representative” shall mean Don Rice with respect to the
Ascend Group and Steven Dezso with respect to the ePak
Group.
SECTION 1.02 Selection of
Directors . Each Shareholder agrees to vote the Shares he, she
or it now owns, or will hereafter acquire prior to the termination
of this Agreement, for the election and re-election of the
following persons as directors of Ascend (the “Director
Designees”):
(a) Two (2) persons
(together, the “Ascend Directors”), each of whom shall
be designees of the Ascend Group; with one such designee being a
Class B director (and qualifying as an “independent”
director within the meaning of the Nasdaq rules); and one such
designee being a Class C director, in each case such designee shall
be subject to the good faith approval of the ePAK Group, which
approval or disapproval shall be given within five business days of
the date such designee is identified as required to the Group
Representative of ePak; and it being agreed that each of Don Rice
and Warren “Budd” Florkiewicz are acceptable to the
ePak Group;
(b) Two (2) persons
(together, the “ePak Directors”), each of whom shall be
the designee of the ePak Group; with one such designee being a
Class B Director (and qualifying as an “independent”
director within the meaning of the Nasdaq rules); and one such
designee being as Class C Director, in each case such designee
shall be subject to the good faith approval of the Ascend Group,
which approval or disapproval shall be given within five business
days of the date such designee is identified as required to the
Group Representative of Ascend; and it being agreed that each of
Steven Dezso and Hock Voon Loo are acceptable to the Ascend Group;
and
(c) One person whom shall be
mutually designated by the Ascend Group and ePak Group, or if they
are unable or unwilling to mutually select such designee, a
designee mutually selected by the ePak Directors and Ascend
Directors designated in clauses (a) and (b) of this
Section 1.03, which designee in all cases shall qualify as an
“independent director” within the meaning of the Nasdaq
rules and shall serve as a Class A director, who shall
initially be Steve San Filippo.
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SECTION 1.03 Removal .
Any Director Designee may be removed from the Board of Directors in
the manner allowed by law and the Company’s governing
documents except that each Shareholder agrees that he, she or it
will not, as a stockholder, vote for the removal of any director
without the mutual consent of the Group or Groups entitled to
designate such director pursuant to Section 1.02. If a
director designated under Section 1.02 is removed or resigns
from office, his successor shall be appointed by the Group or
Groups that were entitled to designate such removed or resigned
director pursuant to Section 1.02.
SECTION 1.04 No
Representations . Neither the Shareholders, nor any of the
officers, directors, stockholders, members, managers, partners,
employees or agents of any Shareholder, makes any representation or
warranty as to the fitness or competence of any 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 designee pursuant to this Agreement.
SECTION 1.05 Term of
Agreement . The obligations of the Shareholders pursuant to
this Agreement shall terminate immediately following the election
or re-election of directors at the annual meeting of the Company
that will be held in 2010.
SECTION 1.06 Obligations
as Director and/or Officer . Nothing in this Agreement shall be
deemed to
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