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EXHIBIT 5
SHAREHOLDERS AGREEMENT
This SHAREHOLDERS AGREEMENT ("Agreement") is dated as of June 29, 1998, by
and among Samstock, L.L.C., a Delaware limited liability company ("Investor"),
Xxxxx X. Xxxx, an individual residing in the State of Illinois ("Shareholder"),
and, solely for purposes of Sections 2(a), 2(b), 3, 4, 6 and 8 through 19 of
this Agreement, Davel Communications Group, Inc., an Illinois corporation (the
"Company").
W I T N E S S E T H
WHEREAS, Investor and the Company are parties to a Stock Purchase
Agreement dated May 14, 1998 (the "Company Stock Purchase Agreement") pursuant
to which, among other things, the Company has agreed to issue and sell, and
Investor has agreed to purchase from the Company, 1,000,000 shares of common
stock, no par value, of the Company ("Common Stock");
WHEREAS, Investor and Shareholder are parties to a Stock Purchase
Agreement dated May 14, 1998 (the "Shareholder Stock Purchase Agreement")
pursuant to which, among other things, Shareholder has agreed to sell, and
Investor has agreed to purchase from Shareholder, 500,000 shares of Common
Stock;
WHEREAS, Investor and certain directors and members of management of the
Company (the "Management Shareholders") are parties to a Stock Purchase
Agreement pursuant to which, among other things, the Management Shareholders
have agreed to sell, and Investor has agreed to purchase from the Management
Shareholders, 123,900 shares of Common Stock (such Stock Purchase Agreement,
together with the Company Stock Purchase Agreement and the Shareholder Stock
Purchase Agreement, the "Stock Purchase Agreements");
WHEREAS, the closing of the transactions contemplated by each of the Stock
Purchase Agreements is occurring concurrently with the execution and delivery
of this Agreement;
WHEREAS, it is a condition to the obligations of Investor to effect the
transactions contemplated by the Company Stock Purchase Agreement that this
Agreement be executed and delivered by Investor and Shareholder;
WHEREAS, giving effect to the closing of the transactions contemplated by
each of the Stock Purchase Agreements, each of Investor and Shareholder
beneficially owns the number of shares of Common Stock, and options to purchase
shares of Common Stock, set forth opposite its name on Exhibit A hereto; and
WHEREAS, capitalized terms used and not otherwise defined herein shall
have the meanings assigned thereto in the Investment Agreement.
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NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties agree as
follows: Section 1. Certain Definitions.
"Affiliate" means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with such first Person. As used in
this definition "control" (including, with correlative meanings, "controlled
by" and "under common control with") shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of management or
policies, whether through the ownership of securities or partnership or other
ownership interests, by contract or otherwise.
"business day" means any day that is not a Saturday, a Sunday or a legal
holiday on which banking institutions in the State of Illinois are not required
to be open.
"Investment Agreement" means the Investment Agreement dated as of the date
hereof among the Company, Investor and Shareholder.
"Market Price" means the average of the closing prices of the Common Stock
on the Nasdaq Stock Market (or, if not trading on the Nasdaq Stock Market, such
other securities exchange or over the counter market on which the Common Stock
is then trading) on the 20 consecutive Trading Days immediately preceding the
date of determination.
"Permitted Transferee" means:
(i) with respect to the Transfer of Shares by Investor, any person
that is an Affiliate of Xxxxxx Xxxx or an Affiliate of any one or more
trusts established for the benefit of Xxxxxx Xxxx and/or members of his
family; and
(ii) with respect to any Transfer of Shares by Shareholder, (A) any
Shareholder Family Entity, (B) any charitable organization as defined
under Section 501(c)(3) of the Internal revenue Code of 1986, as amended,
and (C) any other charitable organization(s), provided Shareholder does
not Transfer to any such other charitable organization(s) in the
aggregate over the term of this Agreement more than ten percent (10%) of
the Shares in any single Transfer or series (related or unrelated) of
Transfers.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, governmental entity or other entity.
"Public Sale" means a bona fide sale of Shares either (i) in "broker's
transactions" within the meaning of Section 4(4) of the Securities Act of 1933,
as amended (the "Securities Act"), (ii) in transactions directly with a "market
maker" as that term in defined in Section 3(a)(38) of the Securities Exchange
Act of 1934, as amended, (iii) otherwise pursuant to Rule 144 of the Securities
Act, or (iv) through a
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registered offering pursuant to an effective registration statement under the
Securities Act.
"Shares" means all shares of Company Voting Securities, whether now owned
or hereafter acquired.
"Shareholder Family Entity" means Shareholder's spouse and descendants and
any corporation, partnership, limited liability company, trust, or other legal
entity controlled by Shareholder and wholly owned beneficially and of record by
Shareholder and/or Shareholder's spouse, children, grandchildren, parents,
siblings, in-laws, nieces and/or nephews or a trust established for any of
their benefit, provided such trust is controlled by Shareholder or
Shareholder's representative, or principal heir or legatee.
"Trading Day" means any day on which the Nasdaq Stock Market is open for
trading.
"Transfer" means any voluntary or involuntary, direct or indirect,
transfer, sale, assignment, donation, pledge, hypothecation, issuance, grant of
a security interest in or other disposition or attempted disposition of Shares
or any right or interest whatsoever therein, including, without limitation, by
operation of law or otherwise, whether with or without consideration or value,
and whether for cash, other securities or other property and specifically
including any share for share or similar exchange; provided, however, that:
(i) any pledge or hypothecation of or grant of security interest in
Shares by Shareholder which is either approved by Investor in writing
prior to the pledge, hypothecation or grant of security interest or is
effected by Investor or any Affiliate of Investor shall not constitute a
"Transfer" of Shares for any purpose under this Agreement; and
(ii) any Transfer effected as a result of Shareholder's death,
pursuant to the laws of descent and distribution, by operation of law or
otherwise, to Shareholder's spouse, children, grandchildren, parents,
siblings, in-laws, nieces and/or nephews or a trust established for any
of their benefit, shall not constitute a "Transfer" of Shares for any
purpose under this Agreement, provided each transferee of Shares executes
a counterpart to this Agreement, whereupon such transferee shall hold
such Shares subject to all of the provisions of this Agreement, as if the
transferor were the holder of Shares held by the transferee.
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Section 2. Restrictions on Transfer and Related Matters / Permitted
Transferees.
(a) Neither Investor nor Shareholder shall Transfer any Shares except for
a Transfer to a Permitted Transferee pursuant to Section 2(b) or, subject to
Section 6, a Transfer pursuant to Section 3, 4, or 5, as applicable, or
pursuant to the exercise of registration rights under Section 5.3 of the
Investment Agreement. If any Transfer is made or attempted contrary to the
provisions of this Agreement, such purported Transfer shall be void ab initio;
and the Company shall refuse to recognize any such purported transferee of
Shares as a holder of such Shares for any purpose. Notwithstanding anything to
the contrary in this Agreement, the rights of Investor and Shareholder to
acquire any Shares pursuant to their respective rights in Section 3 and 4 shall
be subject to compliance with their respective obligations under Article III of
the Investment Agreement.
(b) Notwithstanding anything to the contrary in Section 2(a) hereof, for
purposes of this Agreement, Shareholder and Investor may Transfer Shares to a
Permitted Transferee of Shareholder and Investor, respectively, without
complying with the provisions of Sections 3, 4, 5 or 6. As a condition to the
effectiveness of any Transfer of Shares to a Permitted Transferee, the
Permitted Transferee shall execute a counterpart to this Agreement, whereupon
the Permitted Transferee shall hold Shares subject to all of the provisions of
this Agreement, as if the Permitted Transferee was the Person who transferred
the Shares actually held by the Permitted Transferee.
Section 3. Right of First Offer on Private Transfer. In the event either
Shareholder or Investor (in either case, the "Offeror") wishes to sell for cash
in a bona fide transaction with an independent third party, whether or not any
third party has made an offer to purchase any of the Offeror's Shares, all or
any portion of the Shares now owned or hereafter acquired by the Offeror, other
than in a Public Sale, the Offeror shall first notify Investor or Shareholder,
as the case may be (in either case, the "Offeree") and the Company in writing
(the "Notice of Intended Sale") of the number of Shares for sale by the Offeror
(the "Offered Shares") and the terms of sale other than the purchase price.
The Offeree shall promptly engage in discussions with the Offeror, for a period
not to exceed ten (10) business days from the date of receipt by the Offeree
and the Company of the Notice of Intended Sale, to mutually agree on a purchase
price for the Offered Shares. No later than the end of such ten (10) business
day period, the Offeree shall notify the Offeror in writing of the price the
Offeree proposes to pay for all, but not less than all, of the Offered Shares
(the "Offeree Proposed Price"). Within two (2) business days of the receipt of
notice of the Offeree Proposed Price, the Offeror shall notify the Offeree in
writing whether it or he will sell the Offered Shares to the Offeree at the
Offeree Proposed Price in cash and on the other proposed terms of sale. If,
within three (3) business days of receipt by the Offeree and the Company of the
Notice of Intended Sale, the Offeree notifies the Offeror and the Company that
it or he does not wish to purchase the Offered Shares, then the Company shall
promptly (i) notify the Offeror that it does not wish to purchase the Offered
Shares, or (ii) engage in discussions with the Offeror, for a period not to
exceed ten (10) business days from the
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date of receipt of such notice from the Offeree, to mutually agree on a
purchase price for the Offered Shares. No later than the end of such ten (10)
business day period, the Company shall notify the Offeror in writing of the
price the Company proposes to pay for all, but not less than all, of the
Offered Shares (the "Company Proposed Price"). Within two (2) business days of
the receipt of notice of the Company Proposed Price, the Offeror shall have the
right to notify the Company in writing whether it or he will sell the Offered
Shares to the Company at the Company Proposed Price in cash and on the other
proposed terms of sale. If the Company notifies the Offeror that it does not
wish to purchase the Offered Shares or if the Company does wish to purchase the
Offered Shares, and the Offeror does not wish to sell all (and not less than
all) of the Offered Shares to the Company at the Company Offered Price, the
Offeror shall be free for a period of ninety (90) days thereafter to complete a
sale of all (but not less than all) of the Offered Shares to any Person at a
price that exceeds either the Offeree Proposed Price or the Company Proposed
Price, as the case may be, if any, in cash and on substantially the same terms
as set forth in the Offeror's Notice of Intended Sale. If such a sale is not
consummated within such ninety (90) day period by the Offeror, the Offered
Shares shall again be subject to a right of first offer by the Offeree and the
Company under the provisions of this Section 3. Except as provided herein,
Investor and Shareholder shall be bound by the restrictions and limitations
imposed by this Agreement after any Notice of Intended Sale is given and
whether or not any sale pursuant thereto actually occurs. In the event any
Offeree exercises its or his rights to purchase shares of Common Stock pursuant
to any Notice of Intended Sale, the Offeree and the Offeror shall, as promptly
as practicable and as a condition to their respective obligations hereunder,
enter into such agreements and deliver such documents to one another as shall
be necessary for the sale of Shares as contemplated hereby.
Section 4. Right of First Offer on Public Sale. In the event that either
Investor or Shareholder (in either case, the "Offeror") wishes to sell for cash
in a Public Sale all or any portion of the Shares now owned or hereafter
acquired by the Offeror, whether or not any third party has made an offer to
purchase any of the Offeror's Shares, the Offeror shall first notify Investor
or Shareholder, as the case may be (the "Offeree"), and the Company in writing
(the "Notice of Intended Sale") of the number of Shares for sale by the Offeror
(the "Offered Shares"). The Offeree thereupon shall have the right to purchase
all or any part of the Offered Shares for cash at their Market Price determined
as of the last Trading Day immediately prior to the date of the Offeree's
receipt of the Notice of Intended Sale. In order to exercise the purchase
rights, within three (3) business days (one (1) business day in the event of a
proposed Public Sale of no more than 10,000 Shares in the aggregate) after
receiving the Notice of Intended Sale from the Offeror, the Offeree shall
deliver to the Offeror and the Company a written election ("Election Notice")
to purchase so many of the Offered Shares as it or he may desire to purchase.
If the Offeree does not exercise the purchase rights with respect to all of the
Offered Shares within the time period as provided herein or fails to deliver
the Election Notice within the time period provided, the Company shall have the
right to purchase all (but not less than all) of the Offered Shares at the
proposed price in cash and on the other proposed terms of sale. In order to
exercise its purchase rights,
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within three (3) business days (one (1) business day in the event of a proposed
sale of no more than 10,000 Shares in the aggregate) after the expiration of
the time period applicable to the Offeree, the Company shall deliver to the
Offeror a written election (the "Election Notice") to purchase all of the
Offered Shares. If the Company does not exercise its purchase rights with
respect to all (and not less than all) of the Offered Shares within the time
period as provided herein with respect to all of the Offered Shares, or fails
to deliver the Election Notice within the time period provided, the Offeror
shall be free for a period of twenty (20) Trading Days thereafter to complete a
Public Sale of that number of Offered Shares with respect to which the Offeree
and the Company failed to exercise their purchase rights. If such Public Sale
is not consummated within such twenty (20) Trading Day period by the Offeror,
the Offered Shares shall again be subject to a right of first offer by the
Offeree and the Company under the provisions of this Section 4. Except as
provided herein, Investor and Shareholder shall be bound by the restrictions
and limitations imposed by this Agreement after any Notice of Intended Sale is
given and whether or not any sale pursuant thereto actually occurs. In the
event any Offeree exercises its or his rights to purchase shares of Common
Stock pursuant to any Notice of Intended Sale, the Offeree and the Offeror
shall, as promptly as practicable and as a condition to their respective
obligations hereunder, enter into such agreements and deliver such documents to
one another as shall be necessary for the sale of Shares as contemplated
hereby. Notwithstanding anything to the contrary in this Section 4, in the
event that after the Offeree's receipt of the Notice of Intended Sale and prior
to the earlier of (i) the Offeror's receipt of the Election Notice or (ii) 5:00
p.m. Eastern Time on the fourth (4th) day following the Offeree's receipt of
the Notice of Intended Sale, the Market Price of the Shares increases or
decreases by ten percent (10%) or more as compared to the Market Price on the
last Trading Day immediately prior to the date of the Offeree's receipt of the
Notice of Intended Sale, the Offeror shall have the right to withdraw its
Notice of Intended Sale by written notice to the Offeree and the Company, in
which event the Notice of Intended Sale actually delivered by the Offeror to
the Offeree and the Company shall be deemed for all purposes under this Section
4 as never having been delivered to the Offeree and the Company.
Section 5. Co-Sale Rights. In addition to the rights of Investor,
Shareholder and the Company set forth in Section 3 above, in the event that
either Investor or Shareholder (in either case, the "Selling Holder") enters
into an agreement to sell to any person other than a Permitted Transferee (and
other than with the Company pursuant to Section 3 or Section 4) or group of any
such persons, in a single transaction or related series of transactions, other
than a Public Sale, such number of Shares as equals or exceeds more than ten
percent (10%) of the Shares held by the Selling Holder as of the date hereof
(giving effect to the closing of the transactions contemplated by the Stock
Purchase Agreements), the Selling Holder shall first notify Investor or
Shareholder, as the case may be (the "Tag-Along Holder"), in writing, of the
identity of the proposed purchaser(s), the number of Shares proposed to be
sold, the proposed purchase price and terms of sale and an estimate of the
Transaction Costs (as defined below) (which estimate shall be a reasonably
determined estimate but otherwise shall
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not be binding on the Selling Holder and shall have no effect on Investor's or
Shareholder's rights or obligations under this Section 5). The Tag-Along Holder
thereupon shall have the right to participate in the proposed sale at the same
net price per share and other terms and conditions of sale as offered to the
Selling Holder. In order to exercise the co-sale rights, the Tag-Along Holder,
within ten (10) business days after receiving notice from the Selling Holder,
shall deliver to the Selling Holder a written election to participate in the
sale to the extent allowed by this Section 5. If the Tag-Along Holder has
elected to participate in the proposed sale, the Tag-Along Holder shall be
entitled to sell in the proposed sale a number of Shares equal to the product
of (i) the quotient (the "Co-Sale Fraction") determined by dividing the number
of Shares owned by the Tag-Along Holder by the aggregate number of Shares owned
by the Selling Holder and the Tag-Along Holder multiplied by (ii) the total
number of Shares to be sold by them in the proposed sale. Notwithstanding
anything to the contrary in this Section 5, the sale proceeds to which the
Tag-Along Holder would otherwise be entitled by reason of its or his
participation in a sale pursuant to this Section 5 shall be reduced by an
amount equal to the product of the Tag-Along Holder's Co-Sale Fraction
multiplied by the sum of any costs, fees and expenses, including, without
limitation, attorneys', accountants' and investment bankers' fees and expenses
(collectively, "Transaction Costs"), reasonably incurred by the Selling Holder
in connection with the sale or the exercise of the Tag-Along Holder's rights
under this Section 5. The Tag-Along Holder shall, as promptly as practicable
and as a condition to its or his participation, enter into such agreements as
shall be reasonably requested by the Selling Holder for the sale of its or his
Shares in the proposed sale; provided that the Selling Holder shall use
reasonable efforts to negotiate indemnities on a several, and not joint, basis,
and that in all events any indemnity by the Tag-Along Holder will be limited to
the net proceeds received by the Tag-Along Holder (it being understood that if
either or both of these points are not successfully negotiated, the Tag-Along
Holder may withdraw its notice of its election to participate in the sale).
Section 6. Transfers of Company Voting Securities. (a) Except as
the same may be approved by a majority of the Disinterested Directors in a
specific resolution to such effect adopted prior to the taking of such
action, no member of the Investor Group shall, directly or indirectly,
sell, transfer or otherwise dispose of any Company Voting Securities to any
person or group (other than to another member of the Investor Group) prior
to the third anniversary of the Effective Date in a transaction that would,
to the knowledge of the Investor Group, upon consummation of such sale,
transfer or disposition, result in such person or group beneficially owning
Company Voting Securities that would represent 5% or more of the Combined
Voting Power of all Company Voting Securities; provided, however, that any
member of the Investor Group shall be entitled to pledge or hypothecate any
number of Company Voting Securities to any bank or other financial
institution in connection with any bona fide financing transaction
involving any member of the Investor Group or any of its Affiliates and,
upon any realization of the collateral represented by such pledge or
hypothecation, the pledgee shall take and own such Company Voting
Securities free and clear of, and
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not subject to any of the restrictions set forth in, this agreement.
Notwithstanding the foregoing, on and after the eleventh business day
following commencement of a tender or exchange offer made by a person who
is not a member of the Investor Group for outstanding Company Voting
Securities, any member of the Investor Group may tender or exchange any
Company Voting Securities beneficially owned by it pursuant to such tender
or exchange offer if such tender or exchange offer shall have been approved
or recommended by a majority of the Disinterested Directors.
(b) Except as the same may be approved by a majority of the
Disinterested Directors in a specific resolution to such effect adopted
prior to the taking of such action, no member of the Shareholder Group
shall, directly or indirectly, sell, transfer or otherwise dispose of any
Company Voting Securities to any person or group (other than to another
member of the Shareholder Group) prior to the third anniversary of the
Effective Date in a transaction that would, to the knowledge of the
Shareholder Group, upon consummation of such sale, transfer or disposition,
result in such person or group beneficially owning Company Voting
Securities that would represent 5% or more of the Combined Voting Power of
all Company Voting Securities; provided, however, that any member of the
Shareholder Group shall be entitled to pledge or hypothecate any number of
Company Voting Securities to any bank or other financial institution in
connection with any bona fide financing transaction involving any member of
the Shareholder Group or any of its Affiliates and, upon any realization of
the collateral represented by such pledge or hypothecation, the pledgee
shall take and own such Company Voting Securities free and clear of, and
not subject to any of the restrictions set forth in, this Agreement.
Notwithstanding the foregoing, on and after the eleventh business day
following commencement of a tender or exchange offer made by a person who
is not a member of the Shareholder Group for outstanding Company Voting
Securities, any member of the Shareholder Group may tender or exchange any
Company Voting Securities beneficially owned by it pursuant to such tender
or exchange offer if such tender or exchange offer shall have been approved
or recommended by a majority of the Disinterested Directors.
Section 7. Board Seats. So long as Shareholder is entitled to
designate directors in accordance with the provisions of Section 4.5 of the
Investment Agreement, Investor shall vote all Company Voting Securities
owned of record by Investor or with respect to which Investor has voting
control in favor of the election of Shareholder's nominees to the Company's
Board of Directors and the Independent Director nominees chosen in
accordance with the terms of the Investment Agreement. So long as Investor
is entitled to designate directors in accordance with the provisions of
Section 4.4 of the Investment Agreement, Shareholder shall vote all Company
Voting Securities owned of record by Shareholder or with respect to which
Shareholder has voting control in favor of the election of Investor's
nominees to the Company's Board of Directors and the
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Independent Director nominees chosen in accordance with the terms of the
Investment Agreement.
Section 8. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally, sent
by documented overnight delivery service or, to the extent receipt is
confirmed, telecopy, to the appropriate address or telecopy number set
forth below (or at such other address or telecopy number for a party as
shall be specified by like notice):
if to Investor:
Samstock, L.L.C.
Two X. Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: F. Xxxxxx Xxxxx
Telecopy Number: (000) 000-0000
with a copy to:
Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Two X. Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telecopy Number: (000) 000-0000
if to the Company:
Davel Communications Group, Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Telecopy Number: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxx
000 X. Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: R. Xxxxx Xxxx
Telecopy Number: (000) 000-0000
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with an additional copy to:
Davel Communications Group, Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxxx, Xx.
Telecopy Number: (000) 000-0000
If to Shareholder:
Xx. Xxxxx X. Xxxx
000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Telecopy Number: (000) 000-0000
Section 9. Termination. Unless this Agreement specifically provides
for earlier or later termination with respect to any particular right or
obligation, this Agreement shall terminate and be of no further force and
effect (i) in the case of Investor, if Investor and its Permitted
Transferees shall, at any time, cease to own in the aggregate Company
Voting Securities representing at least five percent (5%) of all Company
Voting Securities outstanding or (ii) in the case of Shareholder, if
Shareholder and its Permitted Transferees shall, at any time, cease to own
in the aggregate Company Voting Securities representing at least five
percent (5%) of all Company Voting Securities outstanding.
Section 10. Remedies. Any party having rights under this Agreement
may enforce such rights specifically to recover damages caused by reason of
any breach of any provision of this Agreement and to exercise all other
rights granted by law. The parties agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of
this Agreement and, accordingly, in addition to all other remedies
available to any party, such party may in its sole discretion apply to any
court of law or equity of competent jurisdiction for specific performance
and/or injunctive relief in order to enforce, or prevent any violation of,
the provisions of this Agreement.
Section 11. Entire Agreement. This Agreement (including the
documents referred to herein) (a) constitutes the entire agreement, and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter of this Agreement
and (b) is not intended to confer upon any Person other than the parties
rights or remedies.
Section 12. Amendments; Waivers. (a) This Agreement may not be
modified or amended except by an instrument or instruments in writing
signed by each party hereto.
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(b) The failure of any party hereto to comply with any representation,
warranty, covenant or agreement contained in this Agreement may be waived
only by a written instrument signed by the party granting such waiver. No
action taken pursuant to this Agreement, including any investigation by or
on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representation, warranty,
covenant or agreement contained in this Agreement, and no failure by any
party to take any action with respect to any breach of this Agreement or
default by any other party shall constitute a waiver of such party's right
to enforce any provision hereof or to take any such action. The waiver by
any party hereto of a breach of any provision hereunder shall not operate
as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
Section 13. Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same
Agreement, and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other parties.
Section 14. Severability. Any provision hereof which is invalid or
unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions
hereof.
Section 15. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Illinois regardless
of the laws that might otherwise govern under applicable principles of
conflicts of law thereof.
Section 16. Binding Effect; Benefit, Non-circumvention. This
Agreement shall inure to the benefit of and be binding upon the parties
hereto, and their successors and permitted assigns. Nothing in this
Agreement, express or implied, is intended to confer on any Person other
than the parties hereto, and their respective successors and permitted
assigns any rights, remedies, obligations or liabilities under or by reason
of this Agreement. No shareholder shall take any action, alone or in
concert with any other Person, to circumvent any of the provisions of this
Agreement.
Section 17. Assignment. Neither this Agreement nor any of the
rights, interest or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise by any of the parties
without the prior written consent of the other parties, except that
Investor may assign any of or all of its rights and obligations under this
Agreement to any person that is an Affiliate of Xxxxxx Xxxx or an Affiliate
of any one or more trusts established for the benefit of Xxxxxx Xxxx and/or
members of his family without the consent of any other party, and
Shareholder may assign any of or all of his rights and obligations under
this Agreement to one or more Affiliates of Shareholder (including any
Shareholder Family Entity) without the consent of any other party; provided
that, in each case, such person or persons shall have executed and
delivered a joinder to this
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Agreement and agreed to be bound by the terms and conditions hereof. Subject to
the preceding sentence, this Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns.
Section 18. Interpretation. The headings contained in this Agreement
are inserted for convenience of reference only and shall not affect in
anyway the meaning or interpretation of this Agreement. All references to
a Section, Article, Schedule or Exhibit contained herein mean Sections,
Articles, Schedules or Exhibits of this Agreement unless otherwise stated.
All capitalized terms defined herein are equally applicable to both the
singular and plural forms of such terms.
Whenever the words "include", includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation".
Section 19. Consent to Jurisdiction. Each party hereto irrevocably
submits to the nonexclusive jurisdiction of (a) the state courts of the
State of Illinois and (b) any federal district court in the State of
Illinois for the purposes of any suit, action or other proceeding arising
out of this Agreement or any transaction contemplated hereby.
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IN WITNESS WHEREOF, the undersigned have executed this Shareholders
Agreement as of the day and year first above written.
SAMSTOCK, L.L.C.
By:____________________________________
_______________________________________
Xxxxx X. Xxxx, individually
DAVEL COMMUNICATIONS GROUP, INC.
____________________________________
By:
Page 119 of 134
