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EXHIBIT 4
AGREEMENT
This ("Agreement") is made and entered into as of December 1, 1999, by
and between XXXXXXX X. XXXXXX ("Xxxxxx") and XXXX XXXXXX ("Xxxxxx").
WHEREAS, Sabato has, on the date hereof, sold to Xxxxxx the number of
shares of the Class B Common Stock, $.001 par value ("Class B Stock") of
Tekgraf, Inc. (the "Corporation") set forth on Exhibit A hereto (the
"Transferred Shares");
Whereas, Sabato is also the owner of the number of shares of Class B
Stock set forth on Exhibit B hereto (the "Retained Shares") which will be
retained by Sabato after the date hereof;
Whereas, management of the Corporation (including Xxxxxx) has proposed
that all outstanding Class B Stock be reclassified into the Class A Common
Stock, $.001 par value ("Class A Stock") of the Corporation on a one-to-one
basis, which reclassification would be submitted to the shareholders of the
Corporation for their approval (the "Reclassification"). If so submitted, the
Reclassification must be approved by the affirmative vote of a majority of the
votes entitled to be cast by holders of Class A Stock and by holders of Class B
Stock, voting as separate voting groups, as well as the affirmative vote of a
majority of the votes entitled to be cast by holders of Class A Stock and Class
B Stock voting together as a voting group;
Whereas, Sabato acknowledges that Xxxxxx purchased the Transferred
Shares to facilitate the Reclassification and that certain benefits would
accrue to Sabato as regards the Retained Shares were the Reclassification to
occur, and desires to enter into the voting agreements with Xxxxxx set forth
herein and to xxxxx Xxxxxx the irrevocable proxy contemplated hereby;
THEREFORE, in consideration of the benefits accruing to each of the
parties hereto as a result of this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows.
1. Agreement to Vote Shares
1.1. Agreement To Vote Shares.
(a) At every meeting of the shareholders of the Corporation at which
the Reclassification is submitted for approval, and at every
adjournment thereof, and on every action or approval by written
consent of the shareholder s of Corporation with respect to the
Reclassification, Sabato shall cause Sabato's Retained Shares to be
voted, or such action to be taken or approval given, in favor of
the Reclassification.
(b) Sabato understands that the Reclassification may be effected by an
amendment to the Corporation's Articles of Incorporation, or by
other corporate actions submitted to the shareholders for approval,
and Sabato acknowledges that Sabato will cause the Retained Shares
to be voted in accordance with the preceding subsection (a) in any
way recommended by Xxxxxx as necessary or appropriate to effect the
Reclassification.
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(c) Sabato also agrees to vote the Retained Shares against, and
refrain from taking any other action with respect to, any proposal to any of
the shareholders of the Corporation which if approved could prevent or delay
the implementation of the Recapitalization.
1.2. Additional Securities. Sabato agrees that any securities that
Sabato purchases or receives, or with respect to which Sabato otherwise
acquires ownership (beneficial or otherwise) after the execution of this
Agreement by reason of or on account of their ownership of the Retained Shares,
including any securities of a corporation that survives a merger with the
Corporation or to which substantially all of the Corporation's assets are
transferred, shall be subject to the terms and conditions of this Agreement to
the same extent as if they constituted Retained Shares.
2. Irrevocable Proxy. Concurrently with the execution of this Agreement, Sabato
agrees to deliver to Xxxxxx a proxy, substantially in the form attached hereto
as Exhibit C (the "Proxy"), appointing Xxxxxx as an attorney-in-fact and proxy
of Sabato with respect to the Retained Shares, which Proxy shall be irrevocable
to the fullest extent permitted by law. If the Proxy becomes ineffective for
any reason, Sabato shall immediately execute a substitute proxy that is
effective, and during any period that the Proxy is not in effect, Sabato agrees
to attend all meetings of shareholders, and to vote Sabato's Retained Shares
and take all other actions as provided in Section 1 hereof. A copy of the
executed Proxy shall be submitted to the Corporation.
3. Agreement to Vote Shares and Proxy Termination. The obligations of Sabato
under Section 1 hereof and the Proxy shall terminate and shall have no further
force or effect as of the earlier to occur of (i) an agreement of the parties
that the same shall terminate, or (ii) December 1, 2000.
4. Representations And Warranties Of Sabato. Sabato represents and warrants
that Sabato (i) was the owner (beneficial or otherwise) of the Transferred
Shares prior to the purchase of the Transferred Shares by Xxxxxx, and that the
Transferred Shares were transferred to Xxxxxx free and clear of any liens,
encumbrances or security interests of any kind; (ii) is the owner (beneficial
or otherwise) of the Retained Shares, which as of the date hereof are free and
clear of any liens, encumbrances or security interests of any kind; (iii) does
not own (beneficially or otherwise) any shares of capital stock of the
Corporation other than the Retained Shares; and (iv) has absolute and
unrestricted power, capacity and authority to make, enter into and perform the
obligations imposed pursuant to the terms of this Agreement.
5. Representations And Warranties Of Xxxxxx. Xxxxxx represents and warrants
that Xxxxxx (i) purchased the Transferred Shares for his own account for
investment purposes only and not with a view to the distribution thereof within
the meaning of the Securities Act of 1933, as amended; and (ii) has absolute
and unrestricted power, capacity and authority to make, enter into and perform
the obligations imposed pursuant to the terms of this Agreement.
6. Additional Documents. Sabato hereby covenants and agrees to execute and
deliver any additional documents necessary to carry out the intent of this
Agreement.
7. Miscellaneous.
7.1. Severability. If any term, provision, covenant or restriction of
this Agreement or the Proxy is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement and/or the Proxy,
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as the case may be, shall remain in full force and effect and shall in no way
be affected, impaired or invalidated.
7.2. Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by any
party without the prior written consent of the other parties. Sabato further
agrees not to transfer any Retained Shares now owned or hereafter acquired by
Sabato unless the transferee thereof agrees in writing to be bound by the terms
of this Agreement. Except as otherwise specifically provided herein, any
attempted assignment of Retained Shares by Sabato without such an agreement by
the intended transferee shall be null and void. Sabato acknowledges that Xxxxxx
has assigned to the Corporation for collateral purposes his rights under this
Agreement and the Proxy.
7.3. Merger or Sale of Assets. Upon the merger of the Corporation or
the transfer of substantially all of the assets of the Corporation (the
surviving entity of such a merger or the transferee of such assets, as
applicable, being hereinafter referred to as the "Surviving Entity"), this
Agreement shall continue in full force and effect with respect to the Surviving
Entity and all securities of the Surviving Entity acquired by Sabato. If
requested by Rychel, Sabato will execute a new shareholder voting agreement and
irrevocable proxy with respect to the securities of the Surviving Entity,
although the execution of such an agreement or proxy shall not be required for
this Agreement and the Proxy to continue in full force and effect.
7.4. Legend. Upon execution of this Agreement, Sabato shall submit
Sabato's certificates representing the Retained Shares to the Corporation so
that the Corporation may add the following legend:
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO
THE TERMS OF, AND RESTRICTIONS ON TRANSFER IMPOSED BY,
AN AGREEMENT DATED AS OF NOVEMBER 30, 1999 AND AN
IRREVOCABLE PROXY, CONTAINING AN IRREVOCABLE APPOINTMENT
OF A PROXY, OF EVEN DATE THEREWITH, COPIES OF BOTH OF
WHICH ARE ON FILE AT THE CORPORATION.
Each of the parties hereto hereby authorizes the Corporation to take such steps
as may be necessary to insure that such legend is added to such certificates,
including but not limited to issuing instructions to that effect to the
transfer agent for the Retained Shares.
7.5. Amendments and Modification. This Agreement may not be amended or
supplemented except in writing by the parties hereto.
7.6. Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Xxxxxx will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Sabato set forth herein. Therefore, it is agreed that, in addition to any other
remedies that may be available to Xxxxxx upon any such violation, Xxxxxx shall
have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available at law or in
equity.
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7.7. Notices. All notices or other communications hereunder shall be
in writing and shall be deemed to have been validly served, given or delivered
(i) five (5) days after deposit in the United States mail, prepaid, by
certified mail, with return receipt requested; (ii) when delivered personally;
(iii) one (1) day after delivery to a nationally recognized overnight courier;
or (iv) when transmitted by fax with telephone confirmation of receipt if a
copy is concurrently transmitted by U.S. mail or overnight courier as stated
above; in all cases, if applicable, with delivery prepaid and addressed to the
party to be notified to the address set forth beneath each party's signature
below, or to such other address and fax number of which a party has given
notice to the other party as provided in this Section 9.7.
7.8. Governing Law.
(a) This agreement shall be governed by and construed in
accordance with the laws of the United States of America and the State of
Georgia.
(b) The parties intend for this Agreement to constitute a voting
agreement under Section 14-2-731 of the Georgia Business Corporation Code.
(c) The parties irrevocably consent to the exclusive jurisdiction
and venue of the courts of any county in the State of Georgia and the United
States District Court for the Northern District of Georgia, in any judicial
proceeding brought to enforce this Agreement. The parties agree that any forum
other than the State of Georgia is an inconvenient forum and that a lawsuit (or
non-compulsory counterclaim) brought by one party against another party, in a
court of any jurisdiction other than the State of Georgia should be forthwith
dismissed or transferred to a court located in the State of Georgia.
7.9. Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the voting of the securities
referred to herein, and supersedes all prior negotiations and understandings
between the parties with respect to the voting of the securities referred to
herein.
7.10. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
7.11. Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of
this Agreement.
SIGNATURES
The parties have executed and delivered this Agreement on the date stated on
the first page.
/s/ Xxxx Xxxxxx
-----------------------------------
Xxxx Xxxxxx
00 Xxxxxxxx Xxxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
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Xxxxxxx X. Xxxxxx
000 Xxxxxxxxx Xxxxx Xxxxxxx
Xxxxxx Xxxxx, XX 00000
ACKNOWLEDGED as of the date hereof and AGREED that Tekgraf, Inc. hereby
releases, acquits and forever discharges Xxxx Xxxxxx and her successors,
assigns, agents, and attorneys from any and all claims, of any kind or nature
whatsoever, known or unknown, foreseen or unforeseen, matured or unmatured,
developed or undeveloped, discoverable or undiscoverable, which exist as of or
after the date hereof, based on or arising from the transactions contemplated
hereby (including the Reclassification):
TEKGRAF, INC.
By: /s/ Xxxx Xxxx
--------------------------
Its: CFO
--------------------------
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EXHIBIT A
TRANSFERRED SHARES
Certificate No. Number of Shares
--------------- ----------------
Class A Stock N/A
Class B Stock 12,750
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EXHIBIT B
RETAINED SHARES
Certificate No. Number of Shares
--------------- ----------------
Class A Stock N/A
Class B Stock 4,250
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EXHIBIT C
IRREVOCABLE PROXY
The undersigned, being a shareholder of Tekgraf, Inc., a Georgia
corporation (the "Corporation"), hereby irrevocably appoints Xxxxxxx X. Xxxxxx
as her attorney-in-fact and proxy, with full power of substitution and
resubstitution, to the full extent of the undersigned's rights with respect to
the shares of capital stock of the Corporation owned (beneficially or
otherwise) by the undersigned, which shares are listed beside the undersigned's
signatures below, and any other securities of the Corporation that the
undersigned currently or hereafter own or control that are then entitled to
vote, including shares or securities of another corporation issued to the
undersigned in connection with a merger of the Corporation or the transfer of
substantially all of the Corporation's assets (all of such shares and other
securities being referred to as the "Retained Shares"), to vote the Retained
Shares for the purposes stated in Section 2 of the Agreement dated as of the
date hereof between the undersigned and Xxxxxxx X. Xxxxxx (the "Voting
Agreement"). Upon the execution hereof, all prior proxies given by the
undersigned with respect to the Retained Shares, and any of them, are hereby
revoked. The undersigned hereby agrees that the undersigned will not give any
subsequent proxies with respect to the Retained Shares without the express
prior written consent of Xxxxxxx X. Xxxxxx.
This proxy is granted pursuant to the Voting Agreement and is granted
in consideration of the benefits accruing to the undersigned from the Voting
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged. This proxy is coupled with an
interest and is irrevocable. The attorney-in-fact and proxy named above will be
empowered to exercise all voting and other rights (including, without
limitation, the power to execute and deliver written consents with respect to
the Retained Shares) at every annual, special or adjourned meeting of the
shareholders of Corporation, and in every written consent in lieu of such a
meeting, or otherwise, for the purposes stated in Section 2 of the Voting
Agreement. This proxy shall terminate and shall have not further force or
effect as of the earlier to occur of (i) an agreement of all the undersigned
that the proxy shall terminate, or (ii) December 1, 2000.
Any obligation of the undersigned hereunder shall be binding upon the
successors, representatives and assigns of the undersigned.
Dated as of: December 1, 1999
Number of Shares Owned (beneficially or /s/
------------------------------
Otherwise): XXXX XXXXXX
00 XXXXXXXX XXXXXXX
Class A Common: X/X XXXXXXXX, XXX XXXXXX 00000
Class B Common: 4,250
ACKNOWLEDGED: /s/
------------ ------------------------------
XXXXXXX X. XXXXXX
000 Xxxxxxxxx Xxxxx Xxxxxxx
Xxxxxx Xxxxx, XX 00000
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