SHAREHOLDERS' VOTING AGREEMENT
AND IRREVOCABLE PROXY
This SHAREHOLDERS' VOTING AGREEMENT AND IRREVOCABLE PROXY (this
"Agreement") made as of the 1st day of October, 1997 by and among Xxxxxxx X.
Xxxxxx ("Xxxxxx") and each of the individuals listed on Schedule A attached
hereto (hereinafter referred to individually as a "Shareholder" and collectively
as the "Shareholders").
WHEREAS, each Shareholder is the owner of (a) the number of shares of
common stock, par value $0.001 per share (the "Common Stock"), of Rocky Mountain
Internet, Inc. (the "Company") set forth opposite his name on Schedule A
attached hereto; (b) the number of shares of Series A Convertible Preferred
Stock, par value $0.001 per share, of the Company (the "Series A Stock" and
collectively with the Common Stock, the "Capital Stock"), which are convertible
into the number of shares of Common Stock set forth opposite his name on
Schedule A attached hereto; and/or (c) the number of options, warrants,
debentures, notes, and other securities (collectively, the "Derivative
Securities") set forth opposite his name on Schedule A attached hereto, which
Derivative Securities are exercisable or exchangeable for or convertible into,
the number of shares of Common Stock set forth opposite his name on Schedule A
attached hereto (the shares of Capital Stock, together with any other shares of
Capital Stock of the Company acquired by such Shareholders after the date hereof
and during the term of this Agreement (including, without limitation, through
the conversion, exchange, or exercise of Derivative Securities) being
collectively referred to herein as the "Subject Shares"); and
WHEREAS, Xxxxxx has proposed to enter into a stock purchase agreement with
the Company (the "Company Stock Purchase Agreement") providing for the issuance
to Xxxxxx of 1,225,000 shares of Common Stock in consideration for the payment
of $2,450,000 in cash; and
WHEREAS, it being in the best interests of the Company and the
Shareholders, the Shareholders desire to enter into an agreement to be
specifically enforceable against each Shareholder pursuant to which each
Shareholder agrees to vote his Subject Shares in the manner and for the purposes
specified herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and for other valuable consideration, the receipt and sufficiency of which are
confessed and acknowledged by the parties hereto, Xxxxxx and the Shareholders
hereby agree as follows:
1. VOTING AGREEMENT. Each Shareholder, individually and on behalf of all
of his respective heirs, executors, administrators, and other legal
representatives, and with respect to any Subject Shares beneficially owned,
directly or indirectly but such Shareholder, agrees to grant to Xxxxxx the
absolute right to vote all Subject Shares of the Company held by such
Shareholder on any and all matters that are presented to the Company's
shareholders for a vote.
2. IRREVOCABLE PROXY. In order to insure the voting of the Shareholders
in accordance with this Agreement, each Shareholder hereby irrevocably grants
to, and appoints, Xxxxxx such Shareholder's proxy and attorney-in-fact (with
full power of substitution), for and in the name,
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place and stead of such Shareholder, to vote such Shareholder's Subject Shares
on any and all matters that are presented to the Company's shareholders for a
vote or to execute and deliver written consents in respect of all Subject Shares
currently owned or hereinafter acquired.
Each Shareholder hereby affirms that each such irrevocable proxy is coupled
with an interest and may under no circumstances be revoked. Each Shareholder
hereby ratifies and confirms all that the holder of each irrevocable proxy may
lawfully do or cause to be done by virtue hereof. Each such irrevocable proxy
is executed and intended to be irrevocable in accordance with the provisions of
Section 212(e) of the Delaware General Corporation Law (the "DGCL"); provided,
that each such irrevocable proxy shall terminate pursuant to Section 8 hereof.
3. LEGENDED CERTIFICATES. Each Shareholder agrees to the placement of a
legend on each of his certificates representing shares of Capital Stock covered
by this Agreement stating that such Shareholder's Subject Shares are restricted
by this Agreement, provided that, as to Xxx X. Xxxxxx, such requirement shall
apply to all of such Shareholder's certificates except 25,000 shares of Common
Stock. Each Shareholder further agrees that such legend may not be removed
until this Agreement is terminated.
In furtherance of the Shareholders' obligations set forth in this Section
3, each Shareholder shall deliver to Xxxxxx, upon the execution of this
Agreement by such Shareholder, or as soon as practicable thereafter,
certificates representing all of such Shareholder's Capital Stock and Derivative
Securities solely for the purpose of the placement of such legend thereon.
4. CHANGES IN COMMON STOCK. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization, or other change in the
capital structure of the Company affecting the Company's Common Stock, or the
acquisition of additional shares of Common Stock or other voting securities of
the Company by any Shareholder, the number of Subject Shares listed in Schedule
A beside the name of such Shareholder shall be adjusted appropriately and this
Agreement and the obligations hereunder shall attach to any additional shares of
the Company's Common Stock or other voting securities of the Company issued to
or acquired by such Shareholder.
5. REPRESENTATIONS OF SHAREHOLDERS. Each Shareholder hereby represents
and warrants to each of the other Shareholders and to Xxxxxx that (i) Schedule A
attached hereto includes all Capital Stock and Derivative Securities owned
beneficially, directly or indirectly by him and that he has the right to vote
all of the shares of Capital Stock set forth therein; (ii) he has full power to
enter into this Agreement and has not, prior to the date of this Agreement,
executed or delivered any proxy or entered into any other voting agreement or
similar arrangement other than one that has expired or terminated prior to the
date hereof; and (iii) he will not take any action inconsistent with the
purposes and provisions of this Agreement.
6. FURTHER ASSURANCES. Each Shareholder will, from time to time, execute
and deliver, or cause to be executed and delivered, such additional or further
consents, documents
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and other instruments as Xxxxxx may reasonably request for the purpose of
effectively carrying out the purposes and provisions of this Agreement.
7. CONDITIONS TO EFFECTIVENESS OF AGREEMENT. The obligations of the
Shareholders to consummate the transactions to be performed by them and to
perform their obligations hereunder are subject to satisfaction of the condition
that the Stock Purchase Agreement shall have been executed.
8. TERM; TERMINATION. This Agreement shall become effective upon
execution and delivery by all of the parties hereto, and this Agreement and all
rights and obligations of the parties hereunder, shall terminate upon the final
adjournment of the first meeting of shareholders of the Company at which
directors have been elected to occur after the date hereof.
9. GENERAL PROVISIONS.
(a) All of the covenants, agreements, and obligations contained in
this Agreement shall be binding upon, and inure to the benefit of, the
respective parties and their heirs, executors, administrators, and other legal
representatives, as the case may be. Each Shareholder agrees that this
Agreement and the obligations hereunder shall attach to such Shareholder's
Subject Shares and shall, unless terminated pursuant to Section 8 hereof, be
binding upon any person to which legal or beneficial ownership of such Subject
Shares shall pass, whether by operation of law or otherwise, including without
limitation such Shareholder's heirs, guardians, administrators or successors.
(b) This Agreement may be executed in any number of counterparts, each
of which shall be enforceable against the parties actually executing such
counterparts, and all of which together shall constitute one instrument.
Execution of a facsimile copy of this Agreement by any party and delivery of a
copy of this Agreement bearing the facsimile signature of any party shall
constitute the valid and binding execution and delivery of this Agreement, and
facsimile copies of this Agreement bearing the facsimile signature of any party
shall constitute an original document enforceable against such party.
(c) All notices, requests, demands, claims, and other communications
hereunder will be in writing. Any notice, request, demand, claim, or other
communication hereunder shall be deemed duly given upon the earlier of actual
delivery to the intended recipient or the first attempted delivery by personal
delivery, expedited courier, messenger service, or registered or certified mail,
return receipt requested, postage prepaid, and addressed to the intended
recipient as set forth in Schedule A attached hereto. Any attempted delivery by
any of the methods set forth above may be verified by the person attempting
personal delivery, the courier, the messenger service, or the United States
Postal Service, as the case may be, through whom or which such delivery was
attempted. Any party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including telecopy, telex, ordinary mail, or electronic
mail), but no such notice, request, demand, claim, or other communication shall
be deemed to have been duly given unless and until, in the case of ordinary
mail, it actually is received by the intended recipient, and, in the
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case of delivery by telecopier, telex, or electronic mail, on the date of such
delivery and verified by confirmation of such transmission.
(d) If any provision of this Agreement shall be declared null, void or
unenforceable by any court or administrative board, such provision shall be
deemed to have been severed from the remainder of this Agreement and this
Agreement shall continue in all other respects to be valid and enforceable.
(e) The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
(f) No waivers of any breach of this Agreement extended by any party
hereto to any other party shall be construed as a waiver of any rights or
remedies of any other party hereto or with respect to any subsequent breach.
(g) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware regardless of the laws that might
otherwise govern under applicable principles of conflicts of law thereof.
10. ENFORCEMENT. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in the United States District Court
for the District of Colorado or in any Colorado state court having jurisdiction
over the subject matter, this being in addition to any other remedy to which
they are entitled at law or in equity. In addition, each of the parties hereto
(i) consents to submit such party to the personal jurisdiction of United States
District Court for the District of Colorado and every Colorado state court
having jurisdiction over the subject matter in the event any dispute arises out
of this Agreement or any of the transactions contemplated hereby, (ii) agrees
that such party will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court, (iii) agrees that such
party will not bring any action relating to this Agreement or the transactions
contemplated hereby in any court other than in the United States District Court
for the District of Colorado or in a Colorado state court having jurisdiction
over the subject matter and (iv) waives any right to trial by jury with respect
to any claim or proceeding related to or arising out of this Agreement or any of
the transactions contemplated hereby.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the
date first above written.
XXXXXX:
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
SHAREHOLDERS:
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
/s/ Xxxx Xxxx
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Xxxx Xxxx
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
/s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx
/s/ Xxx Xxxxxxx
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Xxx Xxxxxxx
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
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[Exhibit omitted]
