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EXHIBIT 10.26
EUPHONIX, INC.
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement") is made as of this 22 day of
February 2000 by and among EUPHONIX, INC., a California corporation (the
"Company") and the stockholders of the Company listed on Schedule I hereto (the
"Stockholders").
RECITALS
A. Concurrently with the execution and delivery of this Agreement, the
Company is entering into a Secured Promissory Note (the "Note") with Xxxxxx
Xxxxx, Xxxxxx Xxxxx, Xxxxxxx X. Xxxxxxx and Xxxxxx Xxxxx, each an individual,
and Onset Ventures, a Delaware corporation (collectively, the "Investors");
B. The Note provides for convertibility of the Note into shares of
Common Stock of the Company and warrant shares of Common Stock of the Company
subject to obtaining necessary approvals, including stockholder approval.
C. The Note provides that if the necessary approvals are not obtained by
June 30, 2000, the outstanding principal amount under the Note and the accrued
interest thereon must be repaid in full upon demand (rather than in February
2002) by Note investors representing two-thirds of the then-outstanding
principal amount of the Note; provided that such demand may not be made until
January 1, 2001.
D. In connection with the Company's seeking stockholder approval
pursuant to the terms of the Note, the parties desire to enter into this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth, the parties agree as follows:
AGREEMENT
1. Shares Subject to Agreement. Each Stockholder agrees to hold all of
its shares of Company capital stock, whether now owned or hereafter acquired
(the "Voting Shares"), subject to, and to vote the Voting Shares in accordance
with, the provisions of this Agreement.
2. Agreement to Vote in Favor of Conversion of the Note. At the special
meeting of the Company's stockholders called, or in connection with any other
action (including the execution of written consents) taken, for the purpose of
approving the convertibility of the Note into shares of
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Common Stock of the Company pursuant to the terms of the Note, each Stockholder
agrees to vote all of its Voting Shares in favor of the conversion of the Note
into shares of Common Stock of the Company in accordance with the terms of the
Note.
3. Successors in Interest.
(a) The provisions of this Agreement shall be binding upon the
successors in interest to any of the Voting Shares. The Company shall not permit
the transfer of any of the Voting Shares on its books or issue a new certificate
representing any of the Voting Shares unless and until the person to whom such
security is to be transferred shall have executed a written agreement pursuant
to which such person shall become a party to this Agreement and agrees to be
bound by all the provisions hereof as if such person were a Stockholder.
(b) Each certificate representing any of the Voting Shares shall
be marked by the Company with a legend reading substantially as follows:
"THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A VOTING AGREEMENT (A COPY
OF WHICH MAY BE OBTAINED FROM THE ISSUER) AND BY ACCEPTING ANY INTEREST
IN SUCH SHARES THE PERSON HOLDING SUCH INTEREST SHALL BE DEEMED TO AGREE
TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SAID VOTING
AGREEMENT."
4. Notices. Any notice required or permitted to be given to a party
pursuant to the provisions of this Agreement shall be in writing and shall be
effective upon personal delivery or upon deposit in the U. S. mail, registered
or certified, with postage prepaid and properly addressed to the party to be
notified. Mailed notices shall be addressed and sent to the Company at the
principal offices of the Company and to the Stockholders at their respective
addresses set forth on Schedule I hereto.
5. Severability. If any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, portions of such provision, or such provision in its entirety, to the
extent necessary, shall be severed from this Agreement and the balance of this
Agreement shall be enforceable in accordance with its terms.
6. Applicable Law. This Agreement shall be governed in all respects by
the laws of the State of California without regard to choice of laws or conflict
of laws provisions thereof.
7. Counterparts. This Agreement may be executed in any number of
counterparts and signature pages may be delivered by facsimile, each of which
may be executed by less than all parties, each of which shall be enforceable
against the parties actually executing such counterparts, each of which shall be
deemed an original and all of which together shall constitute one instrument.
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8. Entire Agreement; Amendment. This Agreement constitutes the full and
entire understanding and agreement between the parties regarding the subject
matter hereof, and no provision hereof may be waived or amended except by
written instrument signed by the party to be charged.
9. Specific Performance. Without limiting the rights of each party
hereto to pursue all other legal and equitable rights available to such party
for any other party's failure to perform its obligations under this Agreement,
each such party acknowledges and agrees that the remedy at law for any failure
to perform obligations hereunder would be inadequate and all such parties shall
be entitled to specific performance, injunctive relief or other equitable
remedies in the event of any such failure.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
EUPHONIX, INC.
By:
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Xxxxx Xxxxxxxx
Chief Executive Officer
SIGNATURE PAGE TO VOTING AGREEMENT
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SCHEDULE I
STOCKHOLDERS:
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Xxx Xxxxxx
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Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
SIGNATURE PAGE TO VOTING AGREEMENT
