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EXHIBIT 7
SHAREHOLDER VOTING AGREEMENT
This Shareholder Voting Agreement ("Agreement") is made and entered
into as of November 1, 1999, by and between XXXXXX X. XXXX and XXXXXXX X.
XXXXXX (each a "Shareholder," and collectively the "Shareholders"), each of
whom is shareholder of Tekgraf, Inc., a Georgia corporation (the
"Corporation").
Each Shareholder is the record holder and beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934) of the number of shares of
the Class A Common Stock, $.001 par value (the "Class A Stock") of the
Corporation and the Class B Common Stock, $.001 par value of the Corporation
(the "Class B Stock") indicated beside each Shareholder's name on the signature
page (such shares of Class A Stock and Class B Stock being hereinafter referred
to as the "Shares"). Management of the Corporation has proposed that all
outstanding Class B Stock be reclassified into Class A Stock 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. The Shareholders acknowledge that
certain benefits would accrue to them and to the other shareholders of the
Corporation were the Reclassification to occur, and each Shareholder desires
that the other Shareholder enter into this Agreement to insure that as many of
the Shares as possible are voted in favor of the Reclassification if it is
presented to the shareholders for approval.
THEREFORE, in consideration of the benefits accruing to each
Shareholder 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 shareholders of Corporation with respect
to the Reclassification, each Shareholder shall cause such
Shareholder's Shares to be voted, or such action to be taken or
approval given, in favor of the Reclassification.
(b) Each Shareholder 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 each Shareholder acknowledges
that he will cause his Shares to be voted in accordance with
the preceding subsection (a) in any way recommended by the
Corporation's Board of Directors as necessary or appropriate to
effect the Reclassification.
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(c) Each Shareholder also agrees to vote the 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. For purposes of this Agreement, the term
"Shares" shall be deemed to include any other securities of the
Corporation that the Shareholder currently or hereafter owns or
controls that are then entitled to vote, including, but not limited
to, common stock and preferred stock. The Shareholders agree that
any securities that they purchase or receive, or with respect to
which they otherwise acquire beneficial ownership after the
execution of this Agreement by reason of or on account of their
ownership of the 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 Shares.
2. Irrevocable Proxy. Concurrently with the execution of this Agreement,
each Shareholder agrees to deliver to the other a proxy, substantially
in the form attached hereto as Exhibit A (the "Proxy"), appointing the
other as an attorney-in-fact and proxy of the Shareholder with respect
to the Shares, which Proxy shall be irrevocable to the fullest extent
permitted by law. If the Proxy becomes ineffective for any reason, the
Shareholders shall immediately execute a substitute proxy that is
effective, and during any period that the Proxy is not in effect, the
Shareholders agree to attend all meetings of shareholders, and to vote
their Shares and take all other actions as provided in Section 1 hereof.
A copy of each executed Proxy shall be submitted to the Corporation.
3. Representations And Warranties Of The Shareholder. Each Shareholder
represents and warrants that such Shareholder (i) is the beneficial
owner of the Shares, which as of the date hereof are free and clear of
any liens, encumbrances or security interests of any kind; (ii) does not
beneficially own any shares of capital stock of the Corporation other
than the Shares; and (iii) has absolute and unrestricted power, capacity
and authority to make, enter into and perform the obligations imposed
pursuant to the terms of this Agreement.
4. Additional Documents. Each Shareholder hereby covenants and agrees to
execute and deliver any additional documents necessary to carry out the
intent of this Agreement.
5. Termination. This Agreement 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 Agreement shall terminate, or (ii) the fifth
anniversary of the date of this Agreement.
6. Miscellaneous.
6.1 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, as the case may be, shall remain
in full force and effect and shall in no way be affected, impaired
or invalidated.
6.2 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
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rights, interests or obligations of the parties hereto may be
assigned by any party without the prior written consent of the
other parties. Each Shareholder further agrees not to transfer any
Class B Stock now owned or hereafter acquired by such Shareholder
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 Class B Stock by a Shareholder
without such an agreement by the intended transferee shall be null
and void.
6.3 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 the Shareholders. If requested
by a Shareholder, the other Shareholder 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.
6.4 Legend. Upon execution of this Agreement, the Shareholders
shall submit their certificates representing the shares of Class B
Stock 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, A SHAREHOLDER VOTING AGREEMENT
DATED AS OF NOVEMBER 1, 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 Shareholder 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 Shares.
6.5 Amendments and Modification. This Agreement may not be amended
or supplemented except in writing by the parties hereto.
6.6 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that each Shareholder 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 a Shareholder set forth herein.
Therefore, it is agreed that, in addition to any other remedies
that may be available to a Shareholder upon any such violation,
each Shareholder 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.
6.7 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 Shareholder's signature below, or to such other
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address and fax number of which a party has given notice to the
other party as provided in this Section 6.7.
6.8 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 Corporation and the Shareholders 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.
6.9 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.
6.10 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.
6.11 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or
interpretation of this Agreement.
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SIGNATURES
The parties have executed and delivered this Agreement on the date stated on
the first page.
Number of Shares Beneficially Owned: /s/ Xxxxxx X. Xxxx
-----------------------------
Xxxxxx X. Xxxx
Class A Common: 40,216 000 Xxxxx Xxxxxxx Xxxxx
Class B Common: 376,625 Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Number of Shares Beneficially Owned: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Xxxxxxx X. Xxxxxx
Class A Common: 117,893 000 Xxxxxxxxx Xxxxx Xxxxxxx
Class B Common: 284,942 Xxxxxx Xxxxx, XX 00000
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CUSIP No. 000000000
EXHIBIT A
IRREVOCABLE PROXY
The undersigned, each being a shareholder of Tekgraf, Inc., a Georgia
corporation (the "Corporation"), hereby irrevocably appoints the other
undersigned shareholder as his attorney-in-fact and proxy, with full power of
substitution and resubstitution, to the full extent of each of the
undersigned's rights with respect to the shares of capital stock of the
Corporation beneficially owned by the undersigned, which shares are listed
beside each of 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 "Shares"), to
vote the Shares for the purposes stated in Section 1.1 of the Shareholder
Voting Agreement dated as of the date hereof between the undersigned
shareholders (the "Voting Agreement"). Upon the execution hereof, all prior
proxies given by the undersigned with respect to the Shares, and any of them,
are hereby revoked. The undersigned Shareholder hereby agrees that he will not
give any subsequent proxies with respect to the Shares without the express
prior written consent of the other undersigned Shareholder.
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 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 1.1 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) the fifth anniversary of the date hereof.
Any obligation of the undersigned hereunder shall be binding upon the
successors, representatives and assigns of the undersigned.
Dated: November 1, 1999
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CUSIP No. 000000000
Number of Shares Beneficially Owned: /s/
-----------------------------
Class A Common: 40,216 Xxxxxx X. Xxxx
Class B Common: 376,625 000 Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Number of Shares Beneficially Owned: /s/
-----------------------------
Class A Common: 117,893 Xxxxxxx X. Xxxxxx
Class B Common: 284,942 000 Xxxxxxxxx Xxxxx Xxxxxxx
Xxxxxx Xxxxx, XX 00000
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