EXHIBIT 99.1
SETTLEMENT AGREEMENT AND MUTUAL RELEASES
This Settlement Agreement and Mutual Releases, including the Exhibits
described herein and attached hereto, (hereinafter the "Settlement Agreement")
is entered into by and between, on the one hand, TEKGRAF, INC., a Georgia
corporation ("Tekgraf") and, on the other hand, XXXXX LTD., a corporation
organized under the laws of the British Virgin Islands ("Xxxxx"), both of whom
are sometimes collectively referred to herein as the "Settling Parties." In
addition, MICRO ENVIRONMENTS, L.L.C., a Georgia limited liability company of
which Xxxxx is the majority shareholder, ("Micro") and XXXXXXX X. XXXXXXX
("Aginsky") are also parties to certain aspects of this Settlement Agreement, as
set forth herein. The Settling Parties, Micro and Aginsky are sometimes
collectively referred to herein as the "Parties."
RECITALS
WHEREAS, on May 26, 2000, Tekgraf filed in the Superior Court of Xxxxxx
County, Georgia, a Petition for Determination of Fair Value of Shares
Pursuant to O.C.G.A. Section 14-2-1330 (the "Petition"), naming as defendants
Xxxxx, Xxx X. Xxxxxx (Xxxxxx"), Xxxxx Xxxxxx ("Xxxxxx"), Xxxxxxxx X. Xxxxxxxx
("Lightman") and Xxxx X. Xxxxxxx ("Xxxxxxx") (Xxxxx, Bailey, Goletz,
Lightman, and Xxxxxxx are hereinafter referred to as the "Dissenters") and
captioned TEKGRAF, INC. V. XXXXX LTD., ET AL., Civil Action No. 2000 CV 23746
(the "Lawsuit");
WHEREAS, the Dissenters filed their Answer to the Petition on or about July
7, 2000;
WHEREAS, the Petition alleges that Tekgraf held a Special Meeting of
Shareholders on January 21, 2000, at which the Tekgraf shareholders approved the
conversion of all issued and outstanding Tekgraf Class B Common Stock ("B
Shares") into Tekgraf Class A Common Stock ("A Shares") on a one-for-one basis
(the "Reclassification");
WHEREAS, the Petition alleges that the Reclassification occurred on January
21, 2000;
WHEREAS, the Petition alleges that the Dissenters dissented from the
Reclassification in accordance with Article 13 of the Georgia Business
Corporation Code, and that on March 30, 2000, Tekgraf received from each of the
Dissenters a Demand for the payment of fair value for the respective B Shares
held of record by each of them (collectively the "Demands");
WHEREAS, pursuant to the Demands, the Dissenters demanded payment of fair
value for a total number of 1,191,333 B Shares (collectively the "Dissenter's
Shares"), comprised of following aggregate number of B Shares per respective
Dissenter:
DISSENTER AGGREGATE NUMBER
--------- OF CLASS B SHARES
-----------------
Xxxxx 632,000
Xxxxxx 257,000
Xxxxxx 257,000
Lightman 22,667
Xxxxxxx 22,666
TOTAL 1,191,333
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WHEREAS, with regard to Anita's 632,000 Dissenter's Shares:
(a) Xxxxx delivered to Tekgraf with its Demand stock certificate nos.
TB0011, TB0012, TB0093 and TB0096 representing a total of 486,500 B
Shares (the "Delivered Xxxxx Dissenter's Shares"); and
(b) Anita's Demand also demanded payment of fair value for 145,500 B
Shares evidenced by stock certificate nos. TB0013 and TB0014 in the
possession of escrow agents:
(1) 29,100 of which ("Xxxxx IPO Escrow Shares") were held in escrow
pursuant to an October 9, 1997 Escrow Agreement (the "IPO Escrow
Agreement"); and
(2) 116,400 of which ("Xxxxx Pledge Shares") were held in escrow
pursuant to a June 2, 1997 Pledge, Security and Escrow Agreement
(the "Pledge Agreement");
WHEREAS, with regard to Xxxxxx'x 257,000 Dissenter's Shares:
(a) Xxxxxx delivered to Tekgraf with his Demand stock certificate nos.
TB0015 and TB0016 representing a total of 192,750 B Shares; and
(b) Xxxxxx'x Demand also demanded payment of fair value for 64,250 B
Shares evidenced by stock certificate nos. TB0017 and TB0018 in the
possession of escrow agents:
(1) 12,850 of which ("Xxxxxx IPO Escrow Shares") were held in escrow
pursuant to the IPO Escrow Agreement; and
(2) 51,400 of which ("Xxxxxx Pledge Shares") were held in escrow
pursuant to the Pledge Agreement;
WHEREAS, in or before December 2000, Xxxxxx transferred all of his rights,
title and interest in his 257,000 Dissenter's Shares to Xxxxx;
WHEREAS, with regard to Xxxxxx'x 257,000 Dissenter's Shares:
(a) Xxxxxx delivered to Tekgraf with his Demand stock certificate nos.
TB0019 and TB0020 representing a total of 192,750 B Shares; and
(b) Xxxxxx'x Demand also demanded payment of fair value for 64,250 B
Shares evidenced by stock certificate nos. TB0021 and TB0022 in the
possession of escrow agents:
(1) 12,850 of which ("Xxxxxx IPO Escrow Shares") were held in escrow
pursuant to the IPO Escrow Agreement; and
(2) 51,400 of which ("Xxxxxx Pledge Shares") were held in escrow
pursuant to the Pledge Agreement;
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WHEREAS, in or before December 2000, Xxxxxx transferred all of his rights,
title and interest in his 257,000 Dissenter's Shares to Xxxxx;
WHEREAS, with regard to Lightman's 22,667 Dissenter's Shares:
(a) Lightman delivered to Tekgraf with her Demand stock certificate nos.
TB0023 and TB0024 representing a total of 17,000 B Shares, and
(b) Lightman's Demand also demanded payment of fair value for 5,667 B
Shares evidenced by stock certificate nos. TB0025 and TB0026 in the
possession of escrow agents:
(1) 1,134 of which ("Lightman IPO Escrow Shares") were held in escrow
pursuant to the IPO Escrow Agreement; and
(2) 4,533 of which ("Lightman Pledge Shares") were held in escrow
pursuant to the Pledge Agreement;
WHEREAS, in or before December 2000, Lightman transferred all of her
rights, title and interest in her 22,667 Dissenter's Shares to Xxxxx;
WHEREAS, with regard to Xxxxxxx'x 22,666 Dissenter's Shares:
(a) Xxxxxxx delivered to Tekgraf with his Demand stock certificate nos.
TB0027 and TB0028 representing a total of 17,000 B Shares; and
(b) Xxxxxxx'x Demand also demanded payment of fair value for 5,666 B
Shares evidenced by stock certificate nos. TB0029 and TB0030 in the
possession of escrow agents:
(1) 1,133 of which ("Xxxxxxx IPO Escrow Shares") were held in escrow
pursuant to the IPO Escrow Agreement; and
(2) 4,533 of which ("Xxxxxxx Pledge Shares") were held in escrow
pursuant to the Pledge Agreement;
WHEREAS, in or before December 2000, Xxxxxxx transferred all of his rights,
title and interest in his 22,666 Dissenter's Shares to Xxxxx;
WHEREAS, "IPO Escrow Shares" refers herein to 57,067 Dissenter's Shares
comprised of the Xxxxx IPO Escrow Shares, the Xxxxxx IPO Escrow Shares, the
Xxxxxx IPO Escrow Shares, the Lightman IPO Escrow Shares and the Xxxxxxx IPO
Escrow Shares, recognizing that Bailey, Goletz, Lightman and Xxxxxxx transferred
each of their respective rights, title and interest in their respective IPO
Escrow Shares to Xxxxx in or before December 2000;
WHEREAS, "Pledge Shares" refers herein to 228,266 Dissenter's Shares
comprised of the Xxxxx Pledge Shares, the Xxxxxx Pledge Shares, the Xxxxxx
Pledge Shares, the Lightman Pledge Shares and the Xxxxxxx Pledge Shares,
recognizing that Bailey, Goletz, Lightman and Xxxxxxx transferred each of their
respective rights, title and interest in their respective Pledge Shares to Xxxxx
in or before December 2000;
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WHEREAS, "Dissenter's Rights" refers herein to any and all rights accorded
to the Dissenters with regard to the Dissenter's Shares by Article 13 of the
Georgia Business Corporation Code, including but not limited to, any and all
rights to receive fair value for such shares, interest thereon, and attorney's
and/or experts' fees and expenses, which, among other things, are the subject of
the Lawsuit;
WHEREAS, pursuant to the Reclassification that occurred on January 21,
2000, all of the Dissenter's Shares were converted to A Shares;
WHEREAS, in addition to the Dissenters Shares above, Xxxxx currently
beneficially owns and controls 75,000 A Shares and 75,000 warrants (collectively
the "Xxxxx A Shares");
WHEREAS, effective as of October 31, 2000, Tekgraf, Xxxxx and Micro entered
into an Asset Purchase Agreement, which was in partial settlement of the Lawsuit
with respect to certain Dissenter's Shares;
WHEREAS, in accordance with the Asset Purchase Agreement, Micro and Xxxxx
paid for the Purchased Assets (as defined in the Asset Purchase Agreement) by,
among other things, relinquishing in favor of Tekgraf any and all rights, title
and interest to 293,334 Dissenter's Shares;
WHEREAS, the Asset Purchase Agreement provides that the number of
Dissenter's Shares paid for the Purchased Assets shall be adjusted in accordance
with the Section 2.2 of the Asset Purchase Agreement regarding "Share
Adjustment;"
WHEREAS, Tekgraf has delivered to Micro and Xxxxx by letter to Aginsky on
or about November 21, 2000 a closing statement requesting that, pursuant to
Section 2.2 of the Asset Purchase Agreement, Micro and Xxxxx relinquish an
additional 82,418 Dissenter's Shares to Tekgraf, (the "October 31 Closing
Statement") bringing the total number of Dissenter's Shares to be relinquished
under the Asset Purchase Agreement to 375,752 Dissenter's Shares;
WHEREAS, a December 22, 1999 "Demand to Take Action under O.C.G.A.
Section 14-2-742" was delivered to Tekgraf on behalf of Xxxxx (the
"Derivative Demand"), stating among other things, that the Derivative Demand
"was to serve as written notice to and demand upon Tekgraf and its Board of
Directors prior to the commencement of a derivative action by Xxxxx as a
shareholder of Tekgraf";
WHEREAS, in 1997, Crescent Computers, Inc., a Georgia corporation,
(sometimes referred to herein as the "Purchaser") and its shareholders, Xxxxx,
Bailey, Goletz, Lightman and Xxxxxxx (the "Crescent Shareholders," also referred
to herein as the "Dissenters"), entered into certain Stock Purchase Agreements
dated as of May 1, 1997, and amended on or about June 2, 1997, (collectively the
"Purchase Agreements") as follows:
(1) With Computer Graphics Distributing Company, a Maryland corporation,
and its shareholders, A. XXXXXX XXXXXXXXX, XXXXXXX XXXXXXXXX, XXXX XXXXXX,
XXXXX X. XXXXXXXX, XXXX X. XXXXXXXXX and XXXXXXX X. XXXXXXX (collectively
the "CGD Shareholders");
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(2) With tekgraf, inc., a Texas corporation, and its sole shareholder,
XXXXXX X. XXXXXX ("Xxxxxx");
(3) With Microsouth, Inc., a Georgia corporation, and its sole shareholder
J. XXXXXX XXXXXXX ("Xxxxxxx");
(4) With G&R Marketing, Inc., an Illinois corporation, and its
shareholders, XXXXXXX X. XXXXXX ("Xxxxxx") and XXXXXX X. XXXX ("Xxxx")
(collectively the "G&R Shareholders"); and
(5) With Intelligent Products Marketing, Inc., a California corporation,
and IG Distributing, Inc., a California corporation, and their
shareholders, XXXXXX X.X. XXXXX, XXXXXXXX X. XXXXX, E. XXXXXXX XXXXX, XXXXX
XXXXX, XXXXXXXXXXX X. XXXXX, XXXXX XXXXX, XXXXXXX X. XxXXXXXXXX, AND
XXXXXXXX XXXXX-XxXXXXXXXX (collectively the "IGD Shareholders").
WHEREAS, Xxxxxxx and Xxxxxx, and each of the G&R Shareholders, the CGD
Shareholders and the IGD Shareholders, are each a "Selling Shareholder" and are
collectively the "Selling Shareholders," as defined in the Purchase Agreements
and the Pledge Agreement, for purposes of this Settlement Agreement;
WHEREAS, on or about June 2, 1997, pursuant to the Purchase Agreements, the
Purchaser, the Crescent Shareholders, and the Selling Shareholders entered into
the Pledge Agreement, which provided that it was entered into in order to secure
the payment and performance of certain "Obligations" of the Purchaser regarding
certain "Indemnified Claims," as Obligations and Indemnified Claims are defined
in the Pledge Agreement;
WHEREAS, the Settling Parties desire to avoid the substantial burden and
expense of further litigation between them, wish to fully compromise and settle
all disputes and potential disputes between or among them, including but not
limited to the matters they have raised or could have raised in the Lawsuit and
the Derivative Demand, on the terms and conditions set forth herein, without any
admission of liability by any of the Settling Parties;
NOW, THEREFORE, in consideration of the payments and mutual promises,
agreements, releases, representations and warranties exchanged herein, the
receipt and sufficiency of which are hereby acknowledged, THE PARTIES AGREE AS
FOLLOWS:
CLOSING
1. This Settlement Agreement shall be effective upon Closing. The Closing
shall occur when Tekgraf and the Dissenters exchange copies of this Settlement
Agreement and its Exhibits duly executed as provided herein and Tekgraf delivers
the Closing Payment described below.
2.1. Subject to the terms and conditions contained herein, Tekgraf shall
pay Xxxxx the total amount of $2,043,750.00, comprised of $1,875,000.00 for the
Remaining Dissenter's
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Shares (defined below) and $168,750.00 for the Xxxxx A Shares. At Closing,
Tekgraf shall deliver to Xxxxx, Xxxxxxxx & Xxxxxxx, LLP (a) a copy of this
Settlement Agreement executed by Tekgraf, (b) "Mutual Releases" executed by
Tekgraf, Xxxxxx and Gust as provided for in PARAGRAPH 13, (c) "Mutual Releases"
executed by Xxxxxx and Xxxx as provided for in XXXXXXXXX 00, (x) the Promissory
Note as defined in PARAGRAPH 8 herein (the "Note"); and (e) the Closing Payment
as defined in PARAGRAPH 2.2 herein. In exchange therefore, Xxxxx and Aginsky
shall deliver to Xxxxxxx, Carton & Xxxxxxx at Closing (a) a copy of this
Settlement Agreement executed by Xxxxx, Micro and Aginsky, (b) duly executed
Stock Power(s) as provided for in PARAGRAPHS 3, 4 & 6, (c) Letters of
Instruction in accordance with PARAGRAPHS 3 AND 6 for the IPO Escrow Shares and
the Pledge Shares, (d) "Mutual Releases" executed by Bailey, Goletz, Lightman
and Xxxxxxx as provided for in PARAGRAPH 13 AND 16; and (e) "Mutual Releases"
executed by Xxxxx and Aginsky as provided for in PARAGRAPHS 14 AND 15.
2.2. At Closing and upon the exchange of the executed documents described
in PARAGRAPH 2.1., Tekgraf shall deliver to Xxxxx, Xxxxxxxx & Xxxxxxx, LLP a
certified or bank check of immediately available funds in the amount of
$275,000.00 payable to "Xxxxx, Xxxxxxxx & Xxxxxxx, LLP on behalf of Xxxxx Ltd."
(this check being the "Closing Payment"). Tekgraf thereafter will pay the total
remaining balance of $1,768,750.00, which is due under this Settlement Agreement
and the Note, by making the installment payments provided for in the Note
described in PARAGRAPH 8 (a copy of which is attached hereto as EXHIBIT D) at
the times and in the amounts set forth in the Note. In the event of a Tekgraf
Default, as defined in PARAGRAPH 2.3, all such unpaid amounts under this
paragraph and under the Note shall become immediately due and payable as
provided for in the Note and, as further provided for in the Note, interest
shall accrue on all remaining unpaid installments from the date of default until
paid at a rate of interest equal to the Prime Rate, as defined in the Note, plus
two percent (2%). As further provided in the Note, Tekgraf may prepay the Note
in whole or in part at any time or from time to time without any penalty
thereunder.
2.3 The following shall constitute a Tekgraf Default under the Settlement
Agreement and the Note: (a) Tekgraf fails to make any installment payment when
and as due under Paragraph 2.2 or under the Note (defined in the Note as an
Event of Default thereunder); and/or (b) Tekgraf breaches any representation or
warranty contained in the Settlement Agreement.
2.4 The following shall constitute an Xxxxx/Xxxxxxx Default under the
Settlement Agreement: (a) Xxxxx or Aginsky breaches any of its or his
representations or warranties contained in the Settlement Agreement and/or (b)
Xxxxx or Xxxxxxx fails to perform any of Anita's or Aginsky's obligations under
Paragraph 7.1.
2.5 After Closing, Xxxxx and Tekgraf agree to execute and exchange such
documents, and complete such other acts, as may be reasonably necessary to fully
effectuate Anita's delivery of all rights, title and interests in the
Dissenter's Shares to Tekgraf, including but not limited to, any further Joint
Instructions or similar documents related to the IPO Escrow Shares or the Pledge
Shares.
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IPO ESCROW SHARES
3. At Closing, Xxxxx shall relinquish in favor of Tekgraf any and all of
its rights, title and interest to the IPO Escrow Shares and shall deliver to
Tekgraf a fully executed Stock Power in the form attached hereto as EXHIBIT A
and a fully executed Joint Letter of Instruction in the form attached hereto as
EXHIBIT B.
ADDITIONAL ASSET PURCHASE AGREEMENT SHARES
4. Micro and Xxxxx agree to accept at Closing the October 31 Closing
Statement and to relinquish an additional 82,418 of the Delivered Xxxxx
Dissenter's Shares to Tekgraf pursuant to the "Share Adjustment" provisions of
the Asset Purchase Agreement. Xxxxx will deliver at Closing a fully executed
Stock Power in the form attached hereto as EXHIBIT A by which it will transfer
and assign to Tekgraf all of its rights, title and interest to 82,418 of the
Delivered Xxxxx Dissenter's Shares. This will further reduce the number of
Delivered Xxxxx Dissenter's Shares to 110,748. Tekgraf, Micro and Xxxxx agree
that the additional 82,418 shares relinquished to Tekgraf shall be subject to
all applicable provisions of the Asset Purchase Agreement. Tekgraf, Micro and
Xxxxx also agree that, after giving effect to the foregoing acceptance by Micro
and Xxxxx of the October 31 Closing Statement, (a) the provisions of the Asset
Purchase Agreement shall remain in full force and effect, and (b)
NOTWITHSTANDING the releases and covenants not to xxx contained in PARAGRAPHS
11, 12.1 AND 12.2 herein, Micro, Xxxxx and Tekgraf shall each retain their
respective rights to enforce the provisions of the Asset Purchase Agreement
through litigation or otherwise, and neither Tekgraf, Micro nor Xxxxx shall be
barred by this Settlement Agreement from making claims and/or filing suit
related to the provisions of the Asset Purchase Agreement as modified by the
foregoing acceptance by Micro and Xxxxx of the October 31 Closing Statement.
THE REMAINING DISSENTER'S SHARES
5. After accounting for the relinquishment of the IPO Escrow Shares
pursuant to PARAGRAPH 3 and the additional 82,418 Delivered Xxxxx Dissenter's
Shares pursuant to PARAGRAPH 4, the total number of Dissenter's Shares is
reduced to 758,514 Dissenter's Shares (the "Remaining Dissenter's Shares"). The
758,514 Remaining Dissenter's Shares include 228,266 Pledge Shares and 530,248
"Non-Pledge" shares.
6. At Closing, Xxxxx shall relinquish in favor of Tekgraf any and all of
its rights, title and interest to the Remaining Dissenter's Shares ( including
those that are Pledge Shares) by delivering to Tekgraf a fully executed Stock
Power(s) in the form attached hereto as EXHIBIT A and a fully executed Joint
Letter of Instruction in the form attached hereto as EXHIBIT C.
XXXXX A SHARES
7.1 Upon Tekgraf's tender to Xxxxx of the March 15, 2001 payment by
certified or bank check of immediately available funds payable to "Xxxxx Ltd.",
pursuant to the Note and this Settlement Agreement, and provided that, at the
time, there is no Tekgraf Default, Xxxxx shall relinquish in favor of Tekgraf
any and all of its respective rights, title and interest to the Xxxxx A Shares
by delivering to Tekgraf, in exchange for the March 15, 2001 payment, the 75,000
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warrants, the stock certificates representing the 75,000 A Shares, and a fully
executed Stock Power in the form attached hereto as EXHIBIT A-1. Xxxxx
represents and warrants that, unless a Tekgraf Default occurs, and except as
provided in this Paragraph regarding delivery of the 75,000 A Shares and 75,000
warrants to Tekgraf, (a) Xxxxx will not sell, transfer, assign or otherwise
encumber in any way (and will not cause any such acts to occur regarding) the
75,000 A Shares or the 75,000 warrants prior to March 16, 2001, and (b) the
representations and warranties provided in PARAGRAPH 23(c) shall remain in full
force and effect until the later of the close of business on March 15, 2001
(5:00 p.m., Atlanta, Georgia time) or the completion of Anita's delivery of the
Xxxxx A Shares to Tekgraf in exchange, as provided or in this paragraph, for the
March 15, 2001 payment made in accordance with the Note.
7.2 In furtherance of Paragraph 7.1, when and after Tekgraf tenders the
March 15, 2001 payment under the Note, Xxxxx and Tekgraf agree to execute and
exchange such documents, and complete such other acts, as may be reasonably
necessary to fully effectuate the delivery of the 75,000 A Shares and the 75,000
warrants to Tekgraf.
THE PROMISSORY NOTE
8. At Closing, Tekgraf shall deliver to Xxxxx, Xxxxxxxx & Xxxxxxx, LLP an
original, duly executed Note in the form attached hereto as EXHIBIT D. It is
expressly understood and agreed that the consideration provided by Tekgraf is
the payments that Tekgraf has agreed to make pursuant to this Settlement
Agreement, as reflected in the Note, and not the Note itself.
DISMISSAL OF THE LAWSUIT
9. Upon Closing and delivery of the Closing Payment and the mutual exchange
of duly executed documents described in PARAGRAPHS 1, 2.1. AND 2.2., the
Settling Parties shall, through their respective counsel in the Lawsuit, work
together as necessary to present to the Court for entry an Order of Dismissal
With Prejudice in the form attached hereto as EXHIBIT E. Such Order shall be
presented by stipulation and/or joint motion, as appropriate, and shall be
presented to the Court no later than three business days after the Closing.
RELEASES
10. The releases contained herein at PARAGRAPHS 11 AND 12.1, the covenants
not to xxx contained in PARAGRAPH 12.2, and the "Mutual Releases" being
delivered herewith pursuant to PARAGRAPHS 13 AND 14 shall be effective upon
Closing, PROVIDED, HOWEVER, that nothing contained in this Settlement Agreement,
including the following releases and covenants not to xxx, shall bar any action
pertaining to the Note, to the obligations, representations and warranties
contained in this Settlement Agreement, or, to the extent provided by PARAGRAPH
4 above, to the provisions of the Asset Purchase Agreement as modified by
PARAGRAPH 4 to give effect to the acceptance of the October 31 Closing
Statement; PROVIDED FURTHER, HOWEVER, that in the event of a Tekgraf Default as
provided in PARAGRAPH 2.3, the releases in PARAGRAPHS 11 AND 12.1 herein and in
PARAGRAPHS 1 AND 2 of EXHIBIT G, as well as the provisions of PARAGRAPH 12.2
shall be immediately and automatically revoked; PROVIDED FURTHER, HOWEVER, that
notwithstanding any such immediate and automatic revocation of releases
(including the Tekgraf Releases contained in PARAGRAPH 11) in the event of a
Tekgraf
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Default, the Mutual Releases (EXHIBIT F) between, Bailey, Goletz, Lightman and
Xxxxxxx, on the one hand, and Tekgraf, Xxxxxx, and Xxxx, on the other hand, as
described in PARAGRAPH 13, shall remain in full force and effect.
11. TEKGRAF RELEASES. Tekgraf, on behalf of itself, and, except for the
Selling Shareholders, each of its present and former agents, employees,
officers, directors, shareholders, partners, attorneys, heirs, legal
representatives, estates, executors, corporate affiliates, including parent and
subsidiary corporations, successors and assigns, (collectively the "Tekgraf
Releasing Parties") hereby forever releases and discharges each of the
Dissenters and Aginsky, and, except for the Selling Shareholders, each of their
present and former agents, employees, officers, directors, shareholders,
partners, (in their capacity as agents, employees, officers, directors,
shareholders or partners of Xxxxx, all other capacities and personally) and each
of their attorneys, heirs, legal representatives, estates, executors, corporate
affiliates, including parent and subsidiary corporations, successors and
assigns, including but not limited to Micro and Alongal Extrusions, Inc., (the
"Dissenters Released Parties") of and from any and all actions, causes of
action, claims, debts, liabilities, damages, costs, loss of services, expenses,
compensation, notices, demands and/or suits of any kind or nature whatsoever,
whether known or unknown, in law or in equity, arising from the beginning of
time to the Closing, including but not limited to, any and all actions, causes
of action, claims, debts, liabilities, damages, costs, loss of services,
expenses, compensation, notices, demands and/or suits of any kind or nature
whatsoever, whether known or unknown, in law or in equity, arising from or
connected in any manner to the Lawsuit and all claims that were raised or could
have been raised in the Lawsuit or in response to any derivative notices,
demands, actions or the Derivative Demand, EXCEPT AS OTHERWISE PROVIDED IN
PARAGRAPHS 4 AND 10.
12.1. AGINSKY AND XXXXX RELEASES. Xxxxx and Aginsky, on behalf of
themselves, and each of their present and former agents, employees, officers,
directors, shareholders, partners, attorneys, heirs, legal representatives,
estates, executors, corporate affiliates, including parent and subsidiary
corporations, successors and assigns, including but not limited to Micro and
Alongal Extrusions, Inc., (the "Dissenters Releasing Parties") hereby forever
release and discharge Tekgraf and, except for the Selling Shareholders, each of
its present and former agents, employees, officers, directors, shareholders,
partners, (in their capacity as agents, employees, officers, directors,
shareholders or partners of Tekgraf, all other capacities and personally) and
each of its attorneys, heirs, legal representatives, estates, executors,
corporate affiliates, including parent and subsidiary corporations, successors
and assigns, (the "Tekgraf Released Parties") of and from any and all actions,
causes of action, claims, debts, liabilities, damages, costs, loss of services,
expenses, compensation, demands and/or suits of any kind or nature whatsoever,
whether known or unknown, in law or in equity, arising from the beginning of
time to the Closing, including but not limited to, any and all Dissenter's
Rights, actions, causes of action, claims, debts, liabilities, damages, costs,
loss of services, expenses, compensation, notices, demands, shareholder
derivative notices, shareholder derivative demands, shareholder derivative
actions and/or suits of any kind or nature whatsoever, whether known or unknown,
in law or in equity, arising from or connected in any manner to the Lawsuit and
all claims that were raised or could have been raised in the Lawsuit or the
Derivative Demand, EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPHS 4, 10 AND 12.2;
PROVIDED, HOWEVER, that, unless and until Tekgraf makes the March 15, 2001
payment as provided under the Note described in PARAGRAPH 8, Xxxxx and Xxxxxxx
are not releasing any rights it or he may have as a result of its or his
ownership or
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control of the Xxxxx A Shares and warrants of Tekgraf, but any such rights are
subject to PARAGRAPH 12.2. in its entirety, including the immediate and
automatic revocation of the covenants and agreements contained in PARAGRAPH
12.2. in the event of a Tekgraf Default.
12.2. AGINSKY AND XXXXX COVENANTS NOT TO XXX. Xxxxx and Xxxxxxx hereby
covenant and agree not to xxx or otherwise threaten, assert or bring against
Tekgraf or any of its present and former agents, employees, officers, directors,
shareholders, partners, attorneys, heirs, legal representatives, estates,
executors, corporate affiliates, including parent and subsidiary corporations,
successors and assigns, any actions, causes of action, claims, debts,
liabilities, damages, costs, loss of services, expenses, compensation, notices,
demands and/or suits of any kind or nature whatsoever, whether known or unknown,
in law or in equity, including but not limited to any shareholder derivative
notices, demands and actions, arising in any manner out of, or connected in any
manner to, any facts, events or circumstances that have occurred or that may
arise after the Closing, despite the fact that such future facts, events and
circumstances may be unknown at this time, EXCEPT AS OTHERWISE PROVIDED WITH
REGARD TO XXXXX AND XXXXXXX IN PARAGRAPH 4; PROVIDED, HOWEVER, that, in the
event of a Tekgraf Default, the covenants and agreements contained in this
Paragraph shall be immediately and automatically revoked.
MUTUAL RELEASES PERTAINING TO THE SELLING SHAREHOLDERS AND OTHERS
13. At Closing, Xxxxx and Aginsky shall deliver "Mutual Releases" (copies
of which are attached hereto as EXHIBIT F) fully executed by Bailey, Goletz,
Lightman and Xxxxxxx, and Tekgraf shall deliver the same Mutual Releases fully
executed by Tekgraf, Xxxxxx and Gust. These Mutual Releases shall be effective
between Bailey, Goletz, Lightman and Xxxxxxx, on the one hand, and Tekgraf,
Xxxxxx and Gust, on the other hand, upon Closing.
14. At Closing, Xxxxx and Xxxxxxx shall deliver "Mutual Releases" (copies
of which are attached hereto as EXHIBIT G) fully executed by Xxxxx and Aginsky,
and Tekgraf shall deliver the same Mutual Releases fully executed by Xxxxxx and
Xxxx. These Mutual Releases shall be effective between Xxxxx and Aginsky, on the
one hand, and Xxxxxx and Xxxx, on the other hand, upon Closing, subject to
immediate and automatic revocation of the releases contained therein as provided
in PARAGRAPH 10 and EXHIBIT G.
15. At Closing, Xxxxx and Aginsky shall deliver "Mutual Releases" (copies
of which are attached hereto as EXHIBIT H) between Xxxxx and Xxxxxxx, on the one
hand, and the Remaining Selling Shareholders (defined below), on the other hand,
fully executed by Xxxxx and Aginsky. These Mutual Releases shall be effective as
provided in PARAGRAPH 17.
16. At Closing, Xxxxx and Xxxxxxx shall deliver "Mutual Releases" (copies
of which are attached hereto as EXHIBIT I) between Bailey, Goletz, Lightman and
Xxxxxxx, on the one hand, and the Remaining Selling Shareholders (defined
below), on the other hand, fully executed by Bailey, Goletz, Lightman and
Xxxxxxx. These Mutual Releases shall be effective as provided in PARAGRAPH 17.
17. After Closing, Tekgraf shall use reasonable, good faith efforts to
obtain Mutual Releases referenced in PARAGRAPHS 15 AND 16 duly executed by the
"Remaining Selling Shareholders" (after accounting for the Mutual Releases
delivered by Xxxxxx and Gust), namely
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J. Xxxxxx Xxxxxxx, Xxxxxx X. Xxxxxx, A. Xxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxxx,
Xxxx Xxxxxx, Xxxxx X. Xxxxxxxx, Xxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxxx
X.X. Xxxxx, Xxxxxxxx X. Xxxxx, E. Xxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxxx X.
Xxxxx, Xxxxx Xxxxx, Xxxxxxx X. XxXxxxxxxx, and Xxxxxxxx Xxxxx-XxXxxxxxxx (each a
"Remaining Selling Shareholder"). Each of these Mutual Releases with respect to
a Remaining Selling Shareholder (hereinafter a "Mutual Release") shall become
effective if, and only if, a Remaining Selling Shareholder properly executes the
Mutual Release and delivers a copy thereof to Tekgraf and Xxxxx in accordance
with the delivery instructions contained in the Mutual Release, at which time it
shall be effective with regard to that Remaining Selling Shareholder as provided
in the Mutual Release regardless of whether any other Remaining Selling
Shareholder executes a Mutual Release and properly delivers a copy thereof to
Tekgraf and Xxxxx. When Tekgraf receives such an executed copy of a Mutual
Release from any Remaining Selling Shareholder, it shall advise Xxxxx and
Aginsky of such receipt by having its counsel provide a copy of the executed
Mutual Release (and a counterpart original of the executed Mutual Release,
promptly after receiving such a counterpart original) to Xxxx X. Xxxxxxxxx, Esq.
at Xxxxx, Xxxxxxxx & Xxxxxxx, LLP, in Atlanta, Georgia. When Xxxxx receives such
an executed copy of a Mutual Release from any Remaining Selling Shareholder, it
shall advise Tekgraf of such receipt by having its counsel provide a copy (and,
if available, a counterpart original) of the executed Mutual Release to Xxxxxxx
X. Xxxxxx, Esq. at Xxxxxxx, Carton & Xxxxxxx in Chicago, Illinois.
INDEMNIFICATION WITH REGARD TO THE REMAINING SELLING SHAREHOLDERS
18. Upon Closing and thereafter, Tekgraf agrees to indemnify, defend and
hold harmless the Dissenters Released Parties from and against all claims,
liabilities, damages, deficiencies, judgments, settlements, costs of
investigation or other expenses (including interest, penalties and reasonable
attorney's fees and disbursements) whenever arising which are asserted by or on
behalf of any Remaining Selling Shareholder(s) against a Dissenters Released
Party for or relating to any alleged failure of Tekgraf or the Dissenters to
comply with any alleged "NAV Obligations" as defined in PARAGRAPH 19(a)
(hereinafter a "Claim"). PROVIDED, HOWEVER, that Tekgraf's obligation to
indemnify, defend and hold harmless shall terminate with respect to any Claim(s)
by or on behalf of a Remaining Selling Shareholder who executes a Mutual Release
and delivers a copy thereof to Tekgraf and to Xxxxx and shall so terminate when
the copy of the executed Mutual Release is received by Tekgraf and by Xxxxx in
accordance with the delivery instructions contained in the attached Mutual
Release.
19. For purposes of the indemnification provision in PARAGRAPH 18:
(a) "NAV Obligations" shall mean any alleged "Obligations" to a Selling
Shareholder(s), as an alleged "Indemnifiable Claim" pursuant to
Article V of the Purchase Agreements or as an alleged "Indemnified
Claim" pursuant to the Pledge Agreement, that relates to the
Purchaser's representation and warranty in Section 2.2(e) of the
Purchase Agreements regarding the Purchaser's "Actual Net Tangible
Asset Value" or "NAV," including but not limited to the alleged
Indemnifiable Claim or alleged Indemnified Claim referenced in the
July 31, 1999 letter from J. Xxxxxx Xxxxxxx, representing himself to
be sending the letter on behalf of all "Beneficiaries" who had
notified the Purchaser of a claim under the Pledge Agreement, to
Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx as Escrow Agent
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under the Pledge Agreement, in the amount of $180,000.00 ("the
$180,000.00 Claim"). For purposes of this Settlement Agreement,
"Beneficiary" and "Beneficiaries" shall have the meaning ascribed to
them in the Pledge Agreement, and "the $180,000.00 Claim" shall be
deemed to include the notification of the Purchaser referenced in the
foregoing letter from J. Xxxxxx Xxxxxxx and the Certificate attached
to that letter. A copy of the letter and the Certificate attached to
the letter are attached hereto for reference as EXHIBIT J; and
(b) For purposes of this Settlement Agreement, "Obligations" and
"Indemnified Claims" shall have the meaning ascribed to them in the
Pledge Agreement, and "Selling Shareholders," "Indemnifiable Claims,"
and "Actual Net Tangible Asset Value" (or "NAV") shall have the
meaning ascribed to them in the Purchase Agreements.
20. In the event of an indemnifiable Claim against a Dissenters Released
Party as described in PARAGRAPH 18, the Dissenters Released Party shall notify
Tekgraf promptly and in sufficient time so as not to prejudice the defense of
the Claim against the Dissenters Released Party. The Dissenters Released Party
shall notify Tekgraf of such Claim in writing to Xxxxxxx X. Xxxxxx, Tekgraf,
Inc., 000 Xxxxxxxxx Xxxxx Xxxxxxx, Xxxxxx Xxxxx, XX 00000, and shall provide a
copy of such written notification to Xxxxxxx X. Xxxxxx, Esq., Xxxxxxx, Carton &
Xxxxxxx, 000 X. Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000. Tekgraf expressly
acknowledges that it has notice and actual knowledge of the $180,000.00 Claim
insofar as it sought the release to the Beneficiaries of Escrowed Property (as
defined in the Pledge Agreement) worth $180,000.00, as set forth in EXHIBIT J.
In the event of any future assertion of any indemnifiable Claim related to the
$180,000.00 Claim against a Dissenters Released Party (as opposed to a claim
against or to the Escrowed Property to which the Dissenters Released Party will
have no rights or claim after Closing), the Dissenters Released Party shall
notify Tekgraf in accordance with this Paragraph, at which time Tekgraf shall
proceed to engage counsel for the Dissenters Released Party as provided in
PARAGRAPH 21.
21. Upon receiving notice of any indemnifiable Claim as provided in
PARAGRAPH 20, Tekgraf shall engage competent and independent legal counsel (not
otherwise engaged by or representing Tekgraf and reasonably acceptable to the
Xxxxx, Aginsky and the Dissenters Released Party or Parties against whom such
Claim has been asserted) on the Dissenters Released Party's behalf and shall pay
all costs and expenses of said counsel along with all other reasonable costs and
expenses associated with the Claim including, but not limited to expert's fees,
court reporter fees, expenses, and court costs. During the pendency of any such
Claim, Dissenters Released Party agrees that he, she or it will provide Tekgraf
with such reasonable assistance and cooperation as may be necessary to assert a
meritorious defense thereto. The Dissenters Released Party shall not, without
written consent of Tekgraf (which written consent shall not be unreasonably
withheld), pay, compromise or settle any such Claim. Notwithstanding the
foregoing, the Dissenters Released Party shall have the right to otherwise pay,
settle or compromise such Claim, provided that in such event he, she or it shall
waive any right to indemnity hereunder for such Claim.
REPRESENTATIONS AND WARRANTIES REGARDING
THE DISSENTER'S SHARES AND THE XXXXX A SHARES
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22. Aginsky represents and warrants to Tekgraf that, assuming the
consummation of the transactions contemplated herein and except to the extent,
if any, that Xxxxx constitutes an Affiliate or Associate of Aginsky, neither he
nor any of his Affiliates or Associates (as defined in the regulations
promulgated under the Securities Act of 1933) has any ownership interest
(whether beneficial or of record) in any Tekgraf shares or warrants of any kind,
including the Dissenter's Shares or the Xxxxx A Shares.
23. Xxxxx represents and warrants to Tekgraf:
(a) that Bailey, Goletz, Lightman and Xxxxxxx each transferred all of
their respective rights, title and interest in their respective
Dissenter's Shares to Xxxxx in or before December 2000; and
(b) that, other than as provided in the IPO Escrow Agreement and the
Pledge Agreement, and other than the fact that some of the Dissenter's
Shares may still be standing in the name of Bailey, Goletz, Lightman
or Xxxxxxx on the books of Tekgraf despite the transfer of rights,
title and interest referenced in PARAGRAPH 23(a), Xxxxx is the sole
record and beneficial owner of all of the Dissenter's Shares, and that
such shares are owned free and clear of all claims, liens (including
any tax lien), option, right of first refusal or offer, preemptive
right, buy-sell agreement, shareholder agreements, voting agreement or
trust or proxy, pledge, charge, mortgage security interest, or other
restriction on use, transfer, receipt of income or exercise of any
other attribute of ownership or any encumbrance or right of any third
party; and
(c) that Xxxxx is the sole beneficial and controlling owner of all of the
Xxxxx A Shares, and that Xxxxx can and will (subject to the conditions
contained in PARAGRAPH 7.1) deliver such shares to Tekgraf free and
clear of all claims, liens (including any tax lien), option, right of
first refusal or offer, preemptive right, buy-sell agreement,
shareholder agreements, voting agreement or trust or proxy, pledge,
charge, mortgage security interest, or other restriction on use,
transfer, receipt of income or exercise of any other attribute of
ownership or any encumbrance or right of any third party; and
(d) that, assuming the consummation of the transactions contemplated
herein, neither Xxxxx nor any of its Affiliates or Associates (as
defined in the regulations promulgated under the Securities Act of
1933) (1) owns any Tekgraf shares of any kind other than the
Dissenter's Shares described herein and the Xxxxx A Shares and (2) has
any other interests (whether beneficial or of record) of any kind in
Tekgraf shares or warrants of any kind.
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AGREEMENT TO MANNER OF PAYMENT
24. Xxxxx expressly agrees to the delivery of payments in the manner set
forth in PARAGRAPH 2.2., and forever releases the Tekgraf Released Parties from
any and all obligations and liabilities of any kind whatsoever with regard to
the disposition or distribution of those funds once Tekgraf delivers them as
provided in PARAGRAPH 2.2 and pursuant to the Note.
ADDITIONAL PROVISIONS
25. Xxxxx and Xxxxxxx agree that, for so long as no Tekgraf Default
(including an Event of Default under the Note) exists hereunder, they will not,
individually, collectively or through another entity, purchase, acquire or
obtain any Tekgraf stock of any kind or any beneficial ownership therein, and
will not participate in any group or proxy solicitation therefore, for a period
of five (5) years from the date of Closing, provided, however, that nothing
herein shall be construed to prohibit Xxxxx or Aginsky from holding an interest
in any publicly-traded fund of which, at the date of purchase of such fund, the
shares of Tekgraf comprise less than five percent (5%) of the total value of the
fund.
26. Xxxxx and Xxxxxxx agree that, for so long as no Tekgraf Default
(including an Event of Default under the Note) exists hereunder, for a period of
five (5) years from the date of Closing, they will not participate,
individually, collectively or through another entity, in any group for purposes
of buying Tekgraf or making an offer to buy Tekgraf.
27. Xxxxx and Aginsky agree to refrain (1) from disparaging Tekgraf, its
business, or any of its current and former officers and directors, and (2) from
taking any action which brings Tekgraf, its business, or any of its current and
former officers and directors into public ridicule or disrepute; PROVIDED
HOWEVER, that this paragraph shall not apply in litigation involving this
Settlement Agreement, the Note described in PARAGRAPH 8, or the Asset Purchase
Agreement.
28. Tekgraf agrees to refrain (1) from disparaging Xxxxx; its business; any
of its current and former officers, directors or trustees; and Aginsky and (2)
from taking any action which brings Xxxxx; its business; any of its current and
former officers, directors, or trustees; and Aginsky into public ridicule or
disrepute, PROVIDED HOWEVER, that this paragraph shall not apply in litigation
involving this Settlement Agreement, the Note described in PARAGRAPH 8, or the
Asset Purchase Agreement.
29. This Settlement Agreement, including the exhibits hereto, the Note and
the Asset Purchase Agreement referred to herein constitute the entire agreement
between the Parties, relating to the subject matters thereof and are the final,
complete and exclusive expression of the terms and conditions thereof. All prior
agreements, representations, negotiations and understandings of the Parties,
oral or written, expressed or implied, are superseded and merged herein and into
the Note and the Asset Purchase Agreement. This Settlement Agreement shall not
be altered or varied except by a writing duly signed by all of the Parties
hereto or their properly authorized agents or representatives. No waiver of any
rights hereunder shall be effective unless fully set forth in writing and signed
by the waiving party.
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30. Each of the Settling Parties denies liability with respect to the
claims and allegations asserted in the Lawsuit against each other and the
matters being settled and released by this Settlement Agreement. The Settling
Parties each expressly recognize and agree that this Settlement Agreement and
the settlement, mutual releases, exchanges of consideration and other terms set
forth herein shall in no way whatsoever be considered or construed as an
admission by any person or entity of any liability or wrongdoing of any kind
whatsoever or of the merit or lack of merit of any claim or defense in the
Lawsuit.
31. The Parties expressly acknowledge and agree that they will each bear
their own costs and attorneys' fees with respect to the Lawsuit, the negotiation
and execution of this Settlement Agreement and the Asset Purchase Agreement, and
the dismissal of the Lawsuit as provided for herein.
32. This Settlement Agreement shall be governed by and construed in
accordance with the internal laws of the State of Georgia, without giving effect
to any choice or conflict of law provisions or rules (whether of the State of
Georgia or otherwise) that would cause the application of the laws of any
jurisdiction other than the State of Georgia.
33. Any action arising out of or relating to this Settlement Agreement, the
Note provided for in PARAGRAPH 8, the Asset Purchase Agreement or the alleged
breach of any or all of them shall be brought in any federal or state court
sitting in Xxxxxx County, Georgia. For purposes of any such action, the Parties
hereby submit to the jurisdiction of the federal and state courts in Xxxxxx
County, Georgia, and the Parties hereby consent to service of process by any
means authorized by Georgia or federal law.
34. The Parties have negotiated the terms of this Settlement Agreement
through their respective counsel, and this Settlement Agreement shall be
construed as a whole and not strictly for or against any of them. Each provision
of this Settlement Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law. However, if any term or provision of
this Settlement Agreement or the application thereof to any person, entity or
circumstance shall, to any extent, be invalid or unenforceable, the remainder of
this Settlement Agreement or the application of such term or provision to
persons, entities or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Settlement Agreement shall be valid and shall be enforced to
the fullest extent permitted by law.
35. The undersigned warrant and represent that they have read this
Settlement Agreement and have been fully informed and have full knowledge of the
terms, conditions, and effects of this Settlement Agreement; that they have,
either personally or through their attorney or attorneys, fully investigated to
their full satisfaction the facts surrounding the various claims, controversies
and disputes, and understand and are fully satisfied with the terms and effects
of this Settlement Agreement, all of which are contractually binding; that they
agree that no promise or inducement has been offered or made except as herein
set forth; and that this Settlement Agreement is executed of their free act and
deed without reliance on any statement or representation except as herein set
forth.
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36. Each of the undersigned represents and warrants that he or it has full
right, title, power, and authority to execute this Settlement Agreement and
release the claims herein released by his or her signature and that the claims
herein released have not been assigned or otherwise transferred.
37. Each of the undersigned represents and warrants that (a) his or its
execution of this Settlement Agreement does not and will not conflict with,
result in a breach of or constitute a default under any applicable articles of
incorporation, by-laws, indenture or other agreement to which the undersigned is
a party, and (b) that he or it has not assigned or transferred to any person or
entity any claims or other matters being released herein.
38. The Parties each represent and warrant to each other and agree with the
other that:
(a) Each party has received independent legal advice from attorneys of
their own choice with respect to the advisability of executing this
Settlement Agreement, and each party's attorney has reviewed this
Settlement Agreement prior to that party's execution of this
Settlement Agreement.
(b) The terms of this Settlement Agreement, including its Recitals, are
contractual, and this Settlement Agreement is the result of
negotiations between the parties.
(c) Each person executing this Settlement Agreement has carefully read and
understood the contents hereof, and has freely signed this Settlement
Agreement.
39. Tekgraf represents and warrants that, as of the date of execution of
this Settlement Agreement, it has a reasonable, good faith belief that it can
make and intends to make all of the payments, when due, as provided for in
PARAGRAPH 2.2 and in the Note described in PARAGRAPH 8.
40. With the exception of certain Selling Shareholders as provided above,
this Settlement Agreement is binding upon and inures to the benefit of each of
the Parties and to each of their officers, directors, employees, participants,
beneficiaries, administrators, agents, servants, attorneys, other
representatives, insurers, shareholders, partners, principals, joint venturers,
affiliates, subsidiary corporations, predecessors, successors, assigns and
heirs.
41. This Settlement Agreement may be executed in two or more counterparts,
each of which shall be deemed an original instrument, and all of which together
shall constitute a single agreement.
42. Executed copies of this Settlement Agreement and its Exhibits, other
than the Note and Stock Powers provided for herein, may be provided to the other
Parties by facsimile transmission, in which case, the facsimile transmission of
the executed copy shall be for all purposes treated, and shall have the same
effect, as an original. PROVIDED, HOWEVER, that in such cases the executing
Parties agree to provide after Closing the original executed signature page(s)
to be substituted for the facsimile transmission(s).
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43. No Party may assign its rights, interests or obligations hereunder
without the prior written consent of the other Parties.
44. In the event of a breach of this Settlement Agreement or the exhibits
hereto, the non-breaching party shall be entitled to recover from the breaching
party or parties its expenses of enforcing the Settlement Agreement, including
but not limited to expenses of litigation and reasonable attorneys' fees.
IN WITNESS WHEREOF, each of the undersigned Parties have executed this
Settlement Agreement as of the date set forth below their respective signatures.
TEKGRAF, INC. XXXXX, LTD.
BY: /s/ Xxxxxx X. Xxxxx BY: /s/ Xxxxxxx X. Xxxxxxx
------------------------------ ----------------------------
ITS: Chief Financial Officer ITS: Attorney in Fact
DATED: December 21, 2000 DATED: December 21, 2000
MICRO ENVIRONMENTS, L.L.C. XXXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
------------------------------ ---------------------------
ITS: Director DATED: December 21, 2000
DATED: December 21, 2000
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