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, Xxxxxx has proposed to enter into stock purchase
agreements with the Shareholders pursuant to which Xxxxxx would purchase an
aggregate of 125,000 shares of Common Stock currently owned beneficially and
of record by them in consideration for the payment of $2.00 per share of
Common Stock purchased from such persons (the "Purchased Shares"); 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 by such Shareholder, agrees to grant
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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,
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. Each Shareholder further
agrees that such legend may not be removed unless: (i) the Subject Shares are
sold, transferred, assigned, or otherwise disposed of to a person other than
a member of such Shareholder's "immediate family," as such term is defined in
Rule 16a-1(e), 17 C.F.R. Section 240.16a-1(e), promulgated pursuant to the
Securities Exchange Act of 1934, as amended, or a trust for the benefit of
any member of such Shareholder's immediate family; or (ii) this Agreement is
terminated; provided, however, that in the event of the pledge or
hypothecation of the Subject Shares to any person, the legend shall not be
removed.
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
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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 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
following conditions:
(a) The Stock Purchase Agreement shall have been executed; and
(b) Xxxxxx shall have purchased the Purchased Shares from the
Shareholders.
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 on the
earlier of: (i) three years from the later of the date of execution of the
Stock Purchase Agreement or the date that Xxxxxx purchases the Purchased
Shares from the Shareholders; or (ii) the date upon which any Subject Shares
are sold, transferred, assigned, or otherwise disposed of (except a pledge
thereof) by a Shareholder to a person other than: (A) a member of such
Shareholder's "immediate family," as such term is defined in Rule 16a-1(e)
promulgated pursuant to the Securities Exchange Act of 1934, as amended, 17
C.F.R. Section 240.16a-1(e), or (B) a trust for the benefit of any member of
such Shareholder's immediate family; provided, however, that the termination
provided in this section 8(ii) shall apply only to such Subject Shares as are
sold, transferred, assigned, or otherwise disposed of as provided herein.
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.
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(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 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
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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/ Xxxxxxxxxxx X. Xxxxxxxx
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Xxxxxxxxxxx X. Xxxxxxxx
/s/ Xxx. X. Xxxxx
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Xxx. X. Xxxxx
/s/ Xxxxx X. Loud
------------------------------
Xxxxx X. Loud
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[Exhibit omitted]
