Exhibit 5
SHAREHOLDERS AGREEMENT
by and among
CHADMOORE WIRELESS GROUP, INC. ,
RECOVERY EQUITY INVESTORS II, L.P.,
and
XXXXXX X. XXXXX
SHAREHOLDERS AGREEMENT, dated as of May 1, 1998, by
and among CHADMOORE WIRELESS GROUP, INC., a Colorado corporation (the
"Company"), RECOVERY EQUITY INVESTORS II, L.P., a Delaware limited
partnership ("REI"), Xxxxxx X. Xxxxx ("Xxxxx"), and any other Person
who executes a Joinder Agreement and thereby becomes a party to this
Agreement. Capitalized terms are used as defined in Article I hereto.
RECITALS
WHEREAS, the Company and REI have entered into that
certain Investment Agreement dated as of May 1, 1998 (as the same may
be amended, supplemented or otherwise modified from time to time the
"Investment Agreement"), pursuant to which, among other things, REI is
acquiring (a) 8,854,662 newly issued shares of Common Stock, par value
$0.001 per share, of the Company (the 'Common Stock"), (b) 10,119,614
newly issued shares of Series C Preferred Stock, par value $0.001 per
share, of the Company and (c) Warrants granting REI the right to
acquire shares of Common Stock;
WHEREAS, immediately following the consummation of
the transactions contemplated by the Investment Agreement, Xxxxx will
beneficially own 2,024,266 shares of Common Stock and options to
acquire an additional 350,000 shares of Common Stock.
WHEREAS, each of the Company, REI and Xxxxx wish to
enter into this Agreement to regulate certain aspects of their
relationship and to provide for, among other things, restrictions on
the transfer or other disposition of certain securities of the Company
and matters relating to the corporate governance of the Company; and
WHEREAS, the Investment Agreement, among other
things, provides that the execution and delivery of this Agreement is a
condition to the consummation of the other transactions contemplated by
the Investment Agreement.
NOW, THEREFORE, in connection with the Investment
Agreement and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
I.1 Definitions. (a) The following defined terms, when used in
this Agreement, shall have the respective meanings set forth below
(such definitions to be equally applicable to both singular and plural
forms of the terms defined):
"Articles of Incorporation" means the Articles of
Incorporation of the Company, as amended as of the date hereof, and as
the same may be amended or restated from time to time after the date
hereof.
"Board' means the Board of Directors of the Company.
"By-Laws" means the By-Laws of the Company, as
amended as of the date hereof, and as the same may be amended or
restated from time to time after the date hereof.
"Closing" has the meaning ascribed to it in the
Investment Agreement.
"Closing Date" has the meaning ascribed to it in the
Investment Agreement.
"Common Stock" has the meaning ascribed to it in the
recitals hereto.
"Company" has the meaning ascribed to it in the
introductory paragraph of this Agreement.
"Competitor" means, as of any date, any Person
regulated, or that has Affiliates regulated, by the Wireless
Telecommunication Bureau or the Common Carrier Bureau of, in each case,
the FCC (other than as a result of the consummation of the transactions
contemplated by Section 3.1(b)).
"Equity Equivalents" means securities which, by their
terms, are or may be exercisable, convertible or exchangeable for or
into Common Stock.
"Exchange Act" means the Securities and Exchange Act
of 1934, as amended from time to time, and the rules and regulations of
the Securities and Exchange Commission thereunder.
"FCC" has the meaning ascribed to it in the
Investment Agreement.
"Fully-Diluted Basis" means, with respect to the
calculation of the number of shares of Common Stock, (a) all shares of
Common Stock outstanding at the time of determination and (b) all
shares of Common Stock issuable upon the exercise, conversion or
exchange of any Equity Equivalents outstanding at the time of
determination.
"Independent Directors" has the meaning ascribed to
it in Section 2.1.
"Investment Agreement" has the meaning ascribed to it
in the recitals hereto.
"Joinder Agreement" means a Joinder Agreement
substantially in the form attached hereto as Exhibit A.
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"Management Directors" has the meaning ascribed to it
in Section 2.1.
"Xxxxx" has the meaning ascribed to it in the
introductory paragraph of this Agreement.
"Xxxxx Shareholders" means (a) Xxxxx and (b) any
Person who is a transferee of Restricted Securities held by a Xxxxx
Shareholder pursuant to Section 3.1, in each case, (i) for so long as
such Person shall hold Restricted Securities and (ii) the provisions of
this Agreement applicable to Xxxxx Shareholders are applicable to such
Person.
"Person" means an individual, partnership,
corporation, trust, unincorporated organization, limited liability
company, joint venture, government (or any agency or political
subdivision thereof) or any other entity of any kind.
"Projections" has the meaning ascribed to it in the
Investment Agreement.
"REI" has the meaning ascribed to it in the
introductory paragraph of this Agreement.
"REI Directors" has the meaning ascribed to it in
Section 2.1.
"REI Shareholders" means (a) REI and (b) any Person
who is a transferee of Restricted Securities held by an REI Shareholder
pursuant to Section 3.1, in each case, (i) for so long as such Person
shall hold Restricted Securities and (ii) the provisions of this
Agreement applicable to REI Shareholders are applicable to such Person.
"Restricted Securities" means the Common Stock, any
Equity Equivalents and any securities issued with respect thereto as a
result of any stock dividend, stock split, reclassification,
recapitalization, reorganization, merger, consolidation or similar
event or upon the conversion, exchange or exercise thereof.
"Securities Act" means the Securities Act of 1933, as
amended from time to time, and the rules and regulations of the
Securities and Exchange Commission thereunder.
"Shareholders" means the Xxxxx Shareholders and the
REI Shareholders.
"Transfer" means sell, transfer, assign, pledge,
hypothecate, give away or in any manner dispose of, or enter into any
voting agreement with respect to, any shares of Restricted Securities.
"Triggering Event" means an "Event of Default" as
defined in the Warrant, dated the date hereof, to purchase up to
4,000,000 shares of Common Stock (subject to adjustment) issued to REI
by the Company and shall also include a material shortfall from the
Projections.
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"Voting Securities" means the shares of Common Stock
and other securities (including voting preferred stock) issued by the
Company which are entitled to vote generally for the election of
directors of the Company, whether currently outstanding or hereafter
issued (other than securities having such powers only upon the
occurrence of a contingency).
"Warrants" has the meaning ascribed to it in the
Investment Agreement.
ARTICLE II
CORPORATE GOVERNANCE
II.1 Board of Directors. Except as contemplated by
this Agreement or as otherwise agreed to by the REI Shareholders,
neither the Company nor any of the Shareholders shall take or recommend
to the Company's shareholders any action which would cause the Board to
consist of more or less than six members or, if an additional director
is designated as provided herein, seven members.
Except as contemplated by this Agreement or as
otherwise agreed to by the REI Shareholders and Xxxxx, the Company and
each of the Shareholders shall take all action necessary to cause the
Board to consist of the following individuals: (i) two individuals (the
"REI Directors") to be designated by the REI Shareholders and (ii) two
individuals (the "Management Directors") to be designated by the Chief
Executive Officer of the Company. In addition, the Company shall take
all action necessary to cause the Board to have two additional members,
to be determined by a majority of the Board of Directors, each of whom
is not a direct or indirect Affiliate, officer or director of the
Company or any Subsidiary of the Company or any direct or indirect
Affiliate or family member of any of the foregoing (the "Independent
Directors"), provided, however, that at any time after the date hereof,
either the REI Directors or the Management Directors may, by notice to
the others, elect to increase the number of Independent Directors to
three with the individual to be so designated to be qualified and to be
determined as specified above. Upon the Closing, the Board shall
consist of six members, (x) Xxxxxx X. Xxxx-Xxxx and Xxxxxxx X. Xxxxxx
as REI Directors, (y) Xxxxxx X. Xxxxx and Jan S. Zwaik as Management
Directors and (z) Xxxx Xxxxxxxx and Xxxxxx Xxxxxx as Independent
Directors. In furtherance and not in limitation of the foregoing, the
Company shall recommend to its shareholders that any Person designated
as described herein be included in the slate of nominees recommended
for election to the Board at each meeting of the Company held for such
purpose. The Company has taken all necessary steps to ensure that upon
the Closing the Board will consist of the individuals identified
herein.
In the event that any member of the Board designated
as provided herein shall cease to serve as a director for any reason,
the vacancy resulting therefrom shall be filled as soon as practicable
with a Person designated as provided herein. Neither the Company nor
any Shareholder shall take any action inconsistent with the provisions
of this Section 2.1, including, without limitation, recommending the
removal of any member of the Board without the consent of Persons
entitled to designate such member.
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II.2 Voting. (a) During the period from the Closing
Date through and until the third anniversary thereof, (x) each of the
Shareholders (other than, in the case of REI, if a Triggering Event has
occurred and is continuing) shall take all such action as may be
required so that all Voting Securities beneficially owned by such
Shareholder are voted (in person or in proxy or by written consent) for
the election of the REI Directors and the Management Directors and (y)
without the prior written consent of the REI Directors, the Board shall
not establish any committee that has more than three members or that
does not have at least one REI Director as a member.
(b) Each of the Shareholders shall be present, in
person or by proxy, at all duly held meetings of the shareholders of
the Company so that all Voting Securities held by the Shareholders may
be counted for the purposes of determining the presence of a quorum at
such meetings.
II.3 No Duty to Designate. Nothing contained in this
Article II shall be construed as requiring the REI Shareholders to
designate any REI Director or to require any REI Director to continue
to serve in office if such REI Director elects to resign.
II.4 Directors and Officers Insurance Policy. The
Company shall cause the REI Directors and the Management Directors to
be covered by directors and officers liability insurance to the same
extent and in the same amount as any Independent Director.
ARTICLE III
TRANSFER RESTRICTIONS
III.1 Transfers of Securities. Subject to the next
succeeding sentence, during the period from and after the Closing Date
through and until the third anniversary thereof, each of the REI
Shareholders and each of the Xxxxx Shareholders shall have the right to
Transfer any Restricted Securities held by them to any Person, provided
that such Person shall have executed and delivered a Joinder Agreement.
Notwithstanding the foregoing, no REI Shareholder or Xxxxx Shareholder
shall transfer any Restricted Securities to a Competitor, except (a)
with the approval of a majority of the members of the Board, (b)
pursuant to a tender offer or exchange offer to all holders of Common
Stock by a Competitor, after the consummation of which, such Competitor
would, directly or indirectly, be the beneficial owner of more than
fifty percent of the Common Stock on a Fully Diluted Basis, or (c) in
the case of the REI Shareholders, only, if a Triggering Event has
occurred and is continuing.
III.2 Legend. Each certificate representing
Restricted Securities of the Shareholders shall be endorsed with the
legends set forth in Exhibit B hereto and such other legends as may be
required by applicable state securities laws. Any certificate issued at
any time in exchange or substitution for any certificate bearing such
legends (except a new certificate issued upon the completion of a
Transfer pursuant to a registered public offering under the Securities
Act and made in accordance with the Securities Act) shall also bear
such legends, unless the such Restricted
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Securities represented thereby are no longer subject to the provisions
of this Agreement or, in the opinion of the Company (with advice from
counsel to the Company, as the Company may deem appropriate), the
restrictions imposed under the Securities Act or any state securities
law, in which case the applicable legend (or legends) may be removed.
ARTICLE IV
CERTAIN COVENANTS OF THE PARTIES
IV.1 Amendment to Articles of Incorporation. Subject
to obtaining all necessary approvals from the FCC, the Company shall
take all action necessary for an amendment to the Articles of
Incorporation, in the form of Exhibit C hereto, to be presented to the
shareholders of the Company for their approval as soon as reasonably
practicable at an annual meeting and each Shareholder shall take all
such actions as may be required so that all Voting Securities
beneficially owned by such Shareholder are voted (in person or by
proxy) for the approval of such amendment.
ARTICLE V
MISCELLANEOUS
V.1 Governing Law. This Agreement shall be governed
and construed in accordance with the laws of the State of New York
without giving effect to any choice of law or conflict of law provision
or rule that would cause the application of the laws of any
jurisdiction other than the State of New York, except to the extent
that the Colorado Business Corporation Act applies as a result of the
Company being incorporated in the State of Colorado, in which case such
Colorado Business Corporation Act shall apply.
V.2 Entire Agreement; Amendments. This Agreement
constitutes the entire agreement of the parties hereto with respect to
the subject matter hereof and this Agreement may be amended, modified
or supplemented only by a written instrument duly executed by the
Company, Xxxxx and REI Shareholders which then hold in the aggregate
more than 50% of the aggregate shares of Restricted Securities on a
Fully-Diluted Basis then held by all REI Shareholders. In the event of
an amendment, modification or supplement of this Agreement in
accordance with its terms, the Shareholders shall take all action
necessary or appropriate, within 30 calendar days following such
amendment, modification or supplement, or as soon thereafter as is
practicable, to cause the adoption of any amendment to the Articles of
Incorporation or By-Laws of the Company that may be required as a
result of such amendment, modification or supplement to this Agreement.
The Shareholders hereby agree to vote their shares of Restricted
Securities to approve each such amendment to the Articles of
Incorporation or By-Laws of the Company.
V.3 Term. Except for the provisions of this Article V
(and subject to the next succeeding sentence), this Agreement shall
automatically and without further action terminate upon the earliest to
occur of (a) any transaction pursuant to which any Person or group
(within the meaning of Rule 13d under the Exchange Act) other than the
Shareholders acquire a majority of the
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outstanding Voting Securities of the Company or (b) the written
agreement of (i) REI Shareholders which then hold in the aggregate more
than 50% of the aggregate shares of Restricted Securities on a
Fully-Diluted Basis then held by all REI Shareholders and (ii) Xxxxx.
V.4 Certain Actions. Unless otherwise expressly
provided herein, whenever any action is required under this Agreement
by:
(a) the REI Shareholders (as a group, as opposed to
the exercise by a REI Shareholder of its individual rights hereunder),
it shall be by the affirmative vote of the holders of Restricted
Securities representing more than 50% of the Common Stock on a
Fully-Diluted Basis then held by the REI Shareholders as a group, or as
otherwise agreed in writing by the REI Shareholders as a group (a copy
of such writing to be supplied to Xxxxx Shareholders by the Company or
the REI Shareholders);
(b) the Xxxxx Shareholders (as a group, as opposed to
the exercise by a Xxxxx Shareholder of its individual rights
hereunder), it shall be affirmative vote of Xxxxx; or
(c) the Shareholders (as a group, as opposed to the
exercise by a Shareholder of its individual rights hereunder), it shall
be by the joint votes of the REI Shareholders (acting pursuant to
clause (a) above) and Xxxxx Shareholders (acting pursuant to clause (b)
above).
V.5 Inspection. For so long as this Agreement shall
remain in effect, this Agreement shall be made available for inspection
by any Shareholder at the principal executive offices of the Company.
V.6 Waivers. No waiver by any party hereto of any
term or condition of this Agreement, in one or more instances, shall be
valid unless in writing, and no such waiver shall be deemed to be
construed as a waiver of any subsequent breach or default of the same
or any other term or condition hereof.
V.7 Successors and Assigns. Except as otherwise
expressly provided herein, this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
successors and permitted assigns (including transferees of Restricted
Securities pursuant to Article III); provided, however, that (i)
nothing contained herein shall be construed as granting any Shareholder
the right to Transfer any of its Restricted Securities except in
accordance with this Agreement, (ii) any Person that acquires
Restricted Securities from a Shareholder shall be bound by, and
entitled to the benefits of, the provisions of this Agreement that were
applicable to the transferee thereof and (iii) notwithstanding any
Transfer of Restricted Securities by any Shareholder to another
Shareholder, only the provisions of this Agreement which were expressly
applicable to REI Shareholders or Xxxxx, respectively, shall be
applicable to such REI Shareholder transferee or Xxxxx Shareholder
transferee.
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V.8 Remedies. In the event of a breach by any party
to this Agreement of its obligations under this Agreement, any party
hereto injured by such breach, in addition to being entitled to
exercise all rights granted by law, including recovery of damages and
costs (including reasonable attorneys' fees), will be entitled to
specific performance of its rights under this Agreement. The parties
hereto agree that the provisions of this Agreement shall be
specifically enforceable, it being agreed by the parties hereto that
the remedy at law, including monetary damages, for breach of any such
provision will be inadequate compensation for any loss and that any
defense in any action for specific performance that a remedy at law
would be adequate is waived. Such equitable remedies and all other
remedies are cumulative and not exclusive and shall be in addition to
any remedies which any party hereto may have under this Agreement or
otherwise.
V.9 Invalid Provisions. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under any
present or future law, and if the rights or obligations of any party
hereto under this Agreement will not be materially and adversely
affected thereby, (a) such provision will be fully severable, (b) this
Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof, (c) the
remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom and (d) in lieu of
such illegal, invalid or unenforceable provision, there will be added
automatically as a part of this Agreement a legal, valid and
enforceable provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible.
V.10 Headings; Certain Conditions. The headings of
the various Articles and Sections of this Agreement are for convenience
of reference only and shall not define, limit or otherwise affect any
of the terms or provisions hereof. Unless the context otherwise
expressly requires, (a) all references herein to Articles, Sections and
Exhibits, are to Article and Sections of, and Exhibits to, this
Agreement, (b) the words "herein," "hereunder" and "hereof" and words
of similar import refer to this Agreement as a whole and not to any
particular Section or provision and (c) the words "include," "includes"
and "including" shall be deemed to be followed by the phrase "without
limitation".
V.11 Further Assurances. Each party hereto shall
cooperate and shall take such further action and shall execute and
deliver such further documents as may be reasonably requested by any
other party hereto in order to carry out the provisions and purposes of
this Agreement.
V.12 Counterparts. This Agreement may be executed in
any number of counterparts, each of which will be deemed an original,
but all of which together will constitute one and the same instrument.
V.13 Notices. All notices, requests and other
communications hereunder must be in writing and will be deemed to have
been duly given only if delivered personally against written receipt or
by facsimile transmission against facsimile confirmation or mailed (by
registered or certified
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mail, postage prepaid, return receipt requested) or delivered by
reputable overnight courier, fee prepaid, to the parties hereto at the
following addresses or facsimile numbers:
If to any Xxxxx Shareholder, to:
Xxxxxx X. Xxxxx
c/o Chadmoore Wireless Group, Inc.
0000 Xxxx Xxxxxxx Xxxx
Xxxxx X
Xxx Xxxxx, Xxxxxx 00000
Facsimile No.: (000) 000-0000
If to any REI Shareholder, to:
Recovery Equity Investors II, L.P.
000 Xxxxxxx'x Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxx-Xxxx
Xxxxxxx X. Xxxxxx
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxx Xxxxx, Esq.
If to the Company, to:
Chadmoore Wireless Group, Inc.
0000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, President & CEO
with a copy to:
Xxxxxx & Xxxxx LLP
000 Xxxxxxx Xxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
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All such notices, requests and other communications will be deemed
delivered upon receipt. Any party hereto may from time to time change
its address, facsimile number or other information for the purpose of
notices to such party by giving notice specifying such change to the
other parties hereto in accordance with this Section.
V.14 Waiver of Jury Trial. EACH OF THE PARTIES HERETO
HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. EACH OF
THE PARTIES HERETO ALSO WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH
BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF SUCH PARTY. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL
DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT
MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS,
TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS. EACH OF THE PARTIES HERETO FURTHER WARRANTS AND
REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND
THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL
BY THE COURT.
[Signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have executed
and delivered this Agreement as of the date first above written.
CHADMOORE WIRELESS GROUP, INC.
By:
--------------------------------
Name:
Title:
--------------------------------
XXXXXX X. XXXXX
RECOVERY EQUITY INVESTORS II, L.P.,
By Recovery Equity Partners II, L.P.,
its general partner
By:
--------------------------------
Name: Xxxxxx X. Xxxx-Xxxx
Title: General Partner
By:
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
[Shareholders Agreement]
Exhibit A
Form of Joinder Agreement
CHADMOORE WIRELESS GROUP, INC.
RECOVERY EQUITY INVESTORS II, L.P.
XXXXXX X. XXXXX
Ladies & Gentlemen:
In consideration of the transfer to the undersigned
of [describe security being transferred] of CHADMOORE WIRELESS GROUP,
INC. a Colorado corporation (the "Company"), the undersigned represents
that [he] [she] [it] is a Transferee of [Insert name of transferor] and
agrees that, as of the date written below, [he] [she] [it] shall become
a party to that certain Shareholders' Agreement, dated as of
, 1998 (as such agreement may have been amended, supplemented or
modified from time to time, the "Agreement"), among the Company and the
persons named therein, and shall be fully bound by, and subject to, all
of the covenants, terms and conditions of the Agreement that are
applicable to the undersigned's transferor, as though an original party
thereto and shall be deemed a [Xxxxx Shareholder] [REI Shareholder] for
all purposes thereof.
Executed as of the day of , .
SIGNATORY:
------------------------
Address:
------------------------
------------------------
------------------------
ACKNOWLEDGED AND ACCEPTED:
CHADMOORE WIRELESS GROUP, INC.
By:
-------------------------------
Name:
Title:
----------------------------------
XXXXXX X. XXXXX
RECOVERY EQUITY INVESTORS II, L.P.
By Recovery Equity Partners II, L.P.,
its general partner
By:
-------------------------------
Name: Xxxxxx X. Xxxx-Xxxx
Title: General Partner
By:
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
Exhibit B
Legends
-------
Shares of Restricted Securities shall bear the following
legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
THE RESTRICTIONS ON TRANSFER IN THE SHAREHOLDERS AGREEMENT
DATED AS OF MAY , 1998 (A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE ISSUER HEREOF). NO REGISTRATION OF TRANSFER
OF SUCH SECURITY WILL BE MADE ON THE BOOKS OF THE ISSUER AND
NO SHARES SHALL BE ISSUED TO ANY PERSON OTHER THAN THE
REGISTERED HOLDER OF THIS SECURITY UNLESS AND UNTIL ALL
APPLICABLE RESTRICTIONS ON TRANSFER CONTAINED IN SUCH
SHAREHOLDERS AGREEMENT SHALL HAVE BEEN COMPLIED WITH.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). THESE SECURITIES MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO (A) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT OR (B) AN APPLICABLE EXEMPTION FROM REGISTRATION
THEREUNDER AND AN OPINION OF COUNSEL REASONABLY SATISFACTORY
TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED.
B-1
TABLE OF CONTENTS
Page
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ARTICLE I CERTAIN DEFINITIONS...............................................1
1.1 Definitions................................................1
ARTICLE II CORPORATE GOVERNANCE.............................................4
2.1 Board of Directors.........................................4
2.2 Voting.....................................................4
2.3 No Duty to Designate.......................................5
2.4 Directors and Officers Insurance Policy....................5
ARTICLE III TRANSFER RESTRICTIONS...........................................5
3.1 Transfers of Securities....................................5
3.2 Legend.....................................................5
ARTICLE IV CERTAIN COVENANTS OF THE PARTIES.................................6
4.1 Amendment to Articles of Incorporation.....................6
ARTICLE V MISCELLANEOUS.....................................................6
5.1 Governing Law..............................................6
5.2 Entire Agreement; Amendments...............................6
5.3 Term.......................................................6
5.4 Certain Actions............................................7
5.5 Inspection.................................................7
5.6 Waivers....................................................7
5.7 Successors and Assigns.....................................7
5.8 Remedies...................................................7
5.9 Invalid Provisions.........................................8
5.10 Headings; Certain Conditions...............................8
5.11 Further Assurances.........................................8
5.12 Counterparts...............................................8
5.13 Notices....................................................8
5.14 Waiver of Jury Trial......................................10
Exhibit A Form of Joinder Agreement for Permitted Transferees
Exhibit B Legends
Exhibit C Amendment
-i-
