Exhibit 10.47
VOTING AGREEMENT
VOTING AGREEMENT, dated as of June 1, 1999 (this "Agreement"), by and
among ViaGrafix Corporation, an Oklahoma corporation ("ViaGrafix"), and the
stockholders of 7th Level Corporation ("7th") who are signatories hereto (the
"Stockholders").
R E C I T A L S:
WHEREAS, 7th and ViaGrafix have entered into an Agreement and Plan of
Merger, dated as of the date hereof (the "Merger Agreement"), relating to the
merger (the "Merger") of 7th and ViaGrafix;
WHEREAS, the Stockholders beneficially own shares of the common stock,
par value $.01 per share, of 7th (the "7th Common Stock") and/or shares of the
Series D Preferred Stock of 7th (the "Preferred Stock"); and
WHEREAS, the Stockholders believe that the Merger is in their best
interests and accordingly, wish to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. VOTING. Each of the Stockholders agrees to vote all shares of 7th
Common Stock and Preferred Stock beneficially owned by him (other than as set
forth on the signature page hereto) for the approval of the Merger Agreement (in
the form executed as of the date hereof, with such changes thereto as the
parties hereto may agree prior to such changes), and each of the transactions
contemplated therein.
2. TERM. This Agreement shall terminate on the earlier of (x) a
termination of the Merger Agreement pursuant to Section 8.01(a) or (y) the 120th
day after the date hereof; provided, however if the Registration Statement on
Form S-4 (or Proxy Statement/Prospectus which forms a part thereof) is filed
with the Securities and Exchange Commission on or prior to the 60th day from the
date hereof, this Agreement shall terminate on the earlier of (x) a termination
of the Merger Agreement pursuant to Section 8.01 (a) or (y) December 31, 1999.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Each of the Stockholders hereby, severally and not
jointly, represents and warrants as follows:
(i) Such stockholder is the beneficial owner of his
or its shares of 7th Common Stock and Preferred Stock subject hereto, free and
clear of all liens, charges and encumbrances whatsoever.
(ii) Such stockholder has all necessary power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of such stockholder. This
Agreement has been duly executed and delivered by such stockholder and
constitutes the legal, valid and binding obligation of such stockholder,
enforceable against such stockholder in accordance with its terms, except as may
be limited by bankruptcy, reorganization, moratorium, fraudulent conveyance and
insolvency laws and by other laws affecting the rights of creditors generally
and except as may be limited by the availability of equitable remedies.
(iii) No consent, approval, order or authorization of
any third party (including any federal, state or local governmental authority)
is required by or with respect to such stockholder to validly execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
(b) Each of the Stockholders agrees that, until this Agreement
has been terminated, such stockholder will not sell, transfer, assign or
otherwise dispose of any of his or its shares of 7th Common Stock or Preferred
Stock, unless the proposed transferee of such shares becomes a signatory to this
Agreement.
4. FURTHER ASSURANCES. Each party hereto shall perform such further
acts and execute such further documents as may be required to carry out the
provisions of this Agreement.
5. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
6. SPECIFIC PERFORMANCE. 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 each party shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
he/it is entitled at law or in equity, and the parties waive any requirement to
post any bond as a condition to seeking or obtaining equitable relief.
7. NOTICES. Any notice, demand, request, waiver, or other communication
under this Agreement shall be in writing (including facsimile or similar
writing) and shall be deemed to have been duly given (a) on the date of service
if personally served, (b) on the third day after mailing if mailed to the party
to whom notice is to be given, by first class mail, registered, return
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receipt requested, postage prepaid, (c) on the next day after sending, if sent
by overnight service, or (d) on the date sent if sent by facsimile, to the
parties at the following addresses or facsimile numbers with a copy sent by mail
as aforesaid on the same date (or at such other address or facsimile number for
a party as shall be specified by like notice):
If to ViaGrafix:
ViaGrafix Corporation
Xxx Xxxxxxxx Xxx
Xxxxx, Xxxxxxxx 00000
Attention: President
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to any Stockholder, at his address set forth on
the signature page hereto.
8. SEVERABILITY. In the event that any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, in whole or in part, the validity of the
remaining provisions shall not be affected and the remaining portion of any
provision held to be invalid, illegal or unenforceable shall in no way be
affected, prejudiced or disturbed thereby.
9. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, and all of which together shall constitute
a single agreement.
10. GOVERNING LAW. This Agreement shall be construed in accordance
with, and governed by, the internal laws of the State of New York, without
giving effect to the principles of conflict of laws thereof. Any legal action,
suit or proceeding arising out of or relating to this Agreement may be
instituted in any state or federal court located within the County of New York,
State of New York, and each party hereto agrees not to assert, by way of motion,
as a defense, or otherwise, in any such action, suit or proceeding, any claim
that it is not subject personally to the jurisdiction of such court or that such
court is an inconvenient forum, that the venue of the action, suit or proceeding
is improper or that this Agreement or the subject matter hereof may not be
enforced in or by such court. Each party hereto further irrevocably submits to
the jurisdiction of any such court in any such action, suit or proceeding.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth above.
ViaGrafix Corporation
By:
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Name:
Title:
Name of Stockholder:
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By:
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Name:
Address:
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Telephone:
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Fax:
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Number of shares of 7th Common Stock (if less than
all):_____________
Number of shares of Preferred Stock (if less than
all):_____________
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SCHEDULE A
NUMBER OF SHARES OF NUMBER OF SHARES OF
NAME 7TH COMMON PREFERRED
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