VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement"), dated as of September , 1997,
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is made and entered into by and among XXXXXX X. XXXXXX, an individual person
("Xxxxxx"), TRANSITION PARTNERS, LTD., a Colorado corporation, and PANTHEON
CAPITAL LTD., (Transition Partners, Ltd. and Pantheon Capital Ltd. shall be
individually referred to as the "Shareholder" and collectively referred to as
the "Shareholders").
RECITALS
The Shareholders and eSoft, Inc. (the "Company") desire to act in concert
with regards to (i) the election of directors, (ii) matters relating to
financing the future growth of the Company's business operations and (iii) other
matters that may come before the vote of the shareholders of the Company during
the term of this Agreement.
IN CONSIDERATION of the mutual representations, warranties, covenants,
agreements, terms and conditions contained herein the parties hereby covenant
and agree as follows:
AGREEMENT
1. AGREEMENT TO VOTE. Xxxxxx agrees to vote all 950,000 shares of eSoft,
Inc. common stock owned and held by him (the "Shares") at any meeting of the
shareholders of the Company (a) for the election as directors of the Company
Messrs. Xxxxx Xxxxxx, Xxxx Xxxxxxxx, Xxxx Xxxxx and Xxxxxx X. Xxxxxx and, upon
expansion of the size of the Board to five members for another director
recommended for election by a majority of the directors then acting and (b) in
any other
matter brought before the shareholders in accordance with the proposal or
recommendation of the majority of the board of directors of the Company. This
agreement to vote shall be deemed irrevocable and coupled with an interest. This
agreement to vote shall be effective until the earlier of the consummation of an
Initial Public Offering of the Company' s common stock, 11:59 p.m. MST on
December 31, 1998 (the "Termination Date") or the termination of this Agreement
in accordance with its terms.
2. REPRESENTATIONS AND WARRANTIES OF XXXXXX. Xxxxxx hereby represents and
warrants to the Shareholders, as follows:
(a) Xxxxxx is the record and beneficial owner of the Shares. The
Shares are free and clear of any and all claims, liens, charges, encumbrances
and security interests and are not subject to any proxy, voting trust or other
agreement or arrangement with respect to the voting of the Shares, other than
pursuant to this Agreement; and
(b) Xxxxxx has all necessary power and authority to enter into this
Agreement and the execution of this Agreement by him does not, and the
performance by him of his obligations hereunder will not, constitute a violation
of, conflict with or result in a default under any contract, commitment,
agreement, understanding, arrangement, statute or restriction of any kind to
which he is a party or by which he or any of his property is bound or any
judgment, decree or order applicable to him.
3. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each Shareholder
hereby represents and warrants to Xxxxxx, as to itself only, as follows:
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(a) This Agreement has been duly authorized by all necessary
corporate action or pursuant to the legal authority granted to the Shareholder
and is the valid and binding agreement of such Shareholder, enforceable against
it in accordance with its terms.
(b) The execution of this Agreement by such Shareholder does not,
and the performance by it of its obligations hereunder will not, constitute a
violation of, conflict with or result in a default under any contract,
commitment, agreement, understanding, arrangement, statute or restriction of any
kind to which the Shareholder is a party or by which the Shareholder or any of
its property is bound or any judgment, decree or order applicable to the
Shareholder.
4. COVENANT OF XXXXXX. Xxxxxx hereby agrees that he will not, during the
term of this Agreement, grant any proxies or enter into any voting trust or
other agreement or arrangement with respect to the voting of any Shares or any
shares of common stock of the Company subsequently acquired by Xxxxxx.
5. COVENANT OF THE SHAREHOLDERS. Each of the Shareholders hereby agrees,
as to itself only, that during the term of this Agreement, such Shareholder will
vote all of its shares of the Company's common stock at any shareholder meeting
for the election of the directors named and described in paragraph 1, above.
6. REMEDIES. The parties hereto agree that if for any reason Xxxxxx or any
Shareholder shall have failed to perform their obligations under this Agreement,
then any party hereto seeking to enforce this Agreement shall be entitled to
specific performance and injunctive and other equitable relief, and the parties
hereto further agree to waive any requirement for the securing or posting of any
bond in connection with obtaining such injunctive or other equitable relief.
This provision is without
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prejudice to any other rights that the parties hereto may have against each
other to perform their respective obligations under this Agreement.
7. MISCELLANEOUS.
(a) ASSIGNMENT. Neither this Agreement nor the rights and
obligations hereunder shall be assignable by the parties hereto. This Agreement
shall be binding upon each of the parties and such party's heirs, distributees,
successors and assigns by will or by the laws of descent.
(b) AMENDMENTS. This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
(c) TERMINATION. This Agreement shall terminate in its entirety upon
the earlier of the Termination Date or by written consent of all the parties.
(d) GOVERNING LAW. This agreement shall be governed by and construed
and enforced in accordance with the substantive laws of the state of Colorado
without giving effect to the principles of conflict of laws thereof.
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SIGNATURES
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first above written.
XXXXXX X. XXXXXX:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
TRANSITION PARTNERS, LTD.:
By: /s/ W. Xxxxxxxx Xxxxxxxx
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W. Xxxxxxxx Xxxxxxxx, Managing Director
PANTHEON CAPITAL LTD.
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx, Director
RECEIPT OF NOTICE
eSoft, Inc. hereby acknowledges that it has received notice of the
execution of this Voting Agreement and agrees to take no action which would
interfere with the parties performance of the Agreement.
eSOFT, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President
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