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EXHIBIT 4
BLOOMFIELD SHAREHOLDERS AGREEMENT
THIS BLOOMFIELD SHAREHOLDERS AGREEMENT (this "AGREEMENT") is made and
entered into effective as of March 5, 1998, by and among Xxxxxx X. Xxxxx
("XXXXX"), Xxxxxxxxx X. Xxxxx ("XXXXX"), Xxxxxx Xxxxxxxxxx, Xxxxx Xxxxxxx,
Xxxxxxx Xxxxxxx, Xxxxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx, Xxxxx X. Xxxxxxx, Xxxxxxxxx
X. Xxxxxxxx and Xxxxxxx X. Xxxxx (each of whom is referred individually as a
"SHAREHOLDER" and collectively as the "SHAREHOLDERS").
RECITALS
The Shareholders are the owners of certain stock (the "STOCK") of
Xxxxxxx Financial Services Corporation ("XXXXXXX") issued to each of them in
connection with the merger of Bloomfield Acceptance Company, L.L.C. ("BAC") and
Bloomfield Servicing Company, L.L.C. ("BSC"), respectively, with BAC Acquiring
Corp., a Michigan corporation, and BSC Acquiring Corp., a Michigan corporation,
respectively (each of which was a wholly owned subsidiary of Xxxxxxx). The
merger was effected contemporaneously with the execution and delivery of this
Agreement, under and pursuant to an Agreement and Plan of Merger (the "MERGER
AGREEMENT"), dated as of February 17, 1998, by and among all of the foregoing
parties.
Immediately prior to the execution of this Agreement, the Shareholders
have joined in the execution of a Shareholders Agreement (the "XXXXXXX
SHAREHOLDERS AGREEMENT") with Xxxxxxx and Xxxxxxx X. Xxxxxxxx, Xxxx X. Xxxxxxxx,
Xxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxx and Xxxxx X. Xxxxxxxx, to which this
Agreement is subject in all particulars.
NOW THEREFORE, for and in consideration of the foregoing Recitals, the
mutual covenants and agreements contained in this Agreement and other good and
valuable consideration, the receipt and adequacy of which is acknowledged, each
of the Shareholders agrees as follows:
1. TERM. All of the rights and obligations in this Agreement shall
terminate 10 years from the date of this Agreement, or upon the consummation of
a sale of the Stock which has been subject to, and has complied with, the
"tag-along rights" as set forth in Section 2 of the Xxxxxxx Shareholders
Agreement (but in that event, termination shall only be effective with respect
to and to the extent of the shares of Stock included in any such sale), or upon
the dissolution or liquidation of Xxxxxxx, whichever occurs sooner (the "TERM").
2. PERFORMANCE OF XXXXXXX SHAREHOLDERS AGREEMENT. Each of the
Shareholders has executed the Xxxxxxx Shareholders Agreement, and acknowledges
that it is binding on them in accordance with its terms, and that the terms and
provisions of this Agreement are subject to the Xxxxxxx Shareholders Agreement.
Therefore: (i) no action shall be taken by any Shareholder hereunder that will
cause a breach, or violation of or default under any term, provision or
requirement of the Xxxxxxx Shareholders Agreement; and (ii) each Shareholder
hereunder will observe, perform and discharge each and every obligation imposed
on them under the Xxxxxxx Shareholders Agreement.
3. VOTING AGREEMENT. During the term of this Agreement, and to the
extent that any vote, consent or approval is permitted to or required of the
Shareholders (including any action to be taken as a group under the Xxxxxxx
Shareholders Agreement), in connection with which the Shareholders' discretion
is not controlled by the Xxxxxxx Shareholders Agreement, each Shareholder shall
take all action necessary from time to time to vote his or her shares of Stock
(and/or grant his or her approval and/or consent) in accordance with the
determination of the holders of a Majority in Interest of the shares of Stock
subject to this Agreement.
4. SPECIAL VOTING AGREEMENT. For so long as the firm of Xxxxxxx
Xxxxxxxx, P.C. (or any successor to it) shall be performing legal services for
BAC and/or BSC (the "COMPANIES"), Xxxxx X. Xxxxxxx, Xxxxxxxxx X. Xxxxxxxx and
Xxxxxxx X. Xxxxx (together "SZU") shall take all action necessary
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from time to time to accomplish the voting of their respective shares of Stock
in accordance with the determination of the holders of a Majority in Interest of
the shares of Stock subject to this Agreement, determined without first taking
into consideration any Stock held by SZU.
5. SPECIAL POWER OF ATTORNEY. Each Shareholder hereby makes,
constitutes, and appoints Xxxxx and Xxxxx as their agent and attorney-in-fact in
their name, place and xxxxx, to take the following actions: (i) to negotiate,
settle, compromise and adjust any indemnification claim by Xxxxxxx against the
Shareholders as a group (as opposed to one or more, but less than all, of the
Shareholders - hereafter the "SHAREHOLDER GROUP"), by way of offset under or
pursuant to the provisions of Article 8 of the Merger Agreement; (ii) to
negotiate and agree upon any release of shares of Stock (in whole or in part) to
the Shareholder Group from the Escrow Agreement among the Shareholders, Xxxxxxx
and NBD Bank (as Escrow Agent), dated March 5, 1998, and/or under or pursuant to
the provisions of Article 8 of the Merger Agreement; and (iii) to take any
action (including the giving of consent or approval, or the voting of shares of
Stock) that has been approved or authorized under or pursuant to the terms and
conditions of this Agreement, for which purpose the Shareholders hereby xxxxx
Xxxxx and Xxxxx an irrevocable proxy to vote each of their shares of Stock in
order to execute all actions to be taken hereunder in accordance with the terms,
provisions and requirements of this Agreement. This Power of Attorney is a
special Power of Attorney coupled with an interest, and shall not be revoked and
shall survive the assignment, delivery, or transfer by the Shareholder of any
portion of his or her Stock and, being coupled with an interest, shall survive
the death or disability or cessation of the existence as a legal entity of the
Shareholder. Each Shareholder hereby gives and grants to Xxxxx and Xxxxx, acting
together, full power and authority to do and perform each and every act and
thing whatsoever requisite, necessary or appropriate to be done in or in
connection with this Power of Attorney as fully to all intents and purposes as
he or she might or could do if personally present, hereby ratifying all that
those attorneys shall lawfully do or cause to be done by virtue of this Power of
Attorney. The existence of this Power of Attorney shall not preclude execution
of any such instrument by the Shareholder individually on any such matter, or
the existence and implementation of any other power of attorney under the Escrow
Agreement. Any person dealing with Xxxxxxx, BAC and/or BAC, or their Affiliates,
may conclusively presume and rely on the fact that any such instrument executed
by Xxxxx and Xxxxx pursuant to this Power of Attorney is authorized, regular and
binding without further inquiry. This Power of Attorney may be exercised by
Xxxxx and Xxxxx by a facsimile signatures of both of them or by listing all of
the Shareholders executing any instrument with a single signature by both Xxxxx
and Xxxxx acting as attorney-in-fact for all of them.
6. RESTRICTIONS UPON TRANSFERS AND OTHER RIGHTS DURING LOCK-UP PERIOD.
During the period of time under which any sale, transfer, assignment,
hypothecation, pledge, gift or other disposal of any Stock (each a "TRANSFER")
by any Shareholder would be restricted by the provisions of Section 4.1 of the
Xxxxxxx Shareholders Agreement (the duration of which restrictions thereunder is
hereafter referred to as the "LOCK-UP PERIOD"), no such Transfer shall occur
except in accordance with the provisions and requirements in (i) the Xxxxxxx
Shareholder Agreement and (ii) this Agreement. During the Lock-up Period, all
Shareholders shall be subject to the following:
A. Permitted Transfers. Only the following Transfers shall be
permitted under this Agreement (each a "PERMITTED TRANSFER"):
(1) Transfers among two or more of the Shareholders,
provided that Transfers among SZU shall be first
among them, pro rata (or among those of them who
shall remain Shareholders), to the extent that they
shall determine by agreement among themselves (a copy
of any such agreement must be provided to and be
acceptable to Xxxxxxx and a Majority in Interest of
the Other Shareholders).
(2) Any Shareholder may Transfer all or part of his or
her Stock to a Michigan revocable inter-vivos trust
of which that Shareholder is the grantor, or to
another entity controlled by that Shareholder formed
primarily for estate planning purposes, for the
benefit of that Shareholder (and/or his or her
spouse, children
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and/or grandchildren). Any Transfer in this manner
shall be deemed to be a Transfer within the
Shareholder Group.
(3) Each such Permitted Transfer shall be subject to the
following conditions and requirements: (i) all Stock
so Transferred shall remain subject to the terms and
conditions of this Agreement and the Xxxxxxx
Shareholders Agreement; (ii) the Permitted Transferee
shall make no Transfers of that Stock except in
accordance with the terms of this Agreement and the
Xxxxxxx Shareholders Agreement; (iii) Xxxxxxx and the
Other Shareholders shall have received at least ten
(10) days prior written notice of the proposed
Transfer together with those organizational and
transfer documentation pertaining to the proposed
transfer that Xxxxxxx, Xxxxx and/or Xxxxx shall
request; and (iv) Xxxxxxx and the Other Shareholders
(as defined in Paragraph 11.A. below) shall have
received the written agreement of the Permitted
Transferee to be bound in all respects by this
Agreement and the Xxxxxxx Shareholders Agreement.
B. Termination of Employment. In the event that a Shareholder who
is an Employee of either of the Companies shall voluntarily
terminate his or her employment with such Company or
Companies, or whose employment shall be terminated for any
reason (other than by reason of death or Permanent
Disability), in either case on or before the date when the
Lock-up Period shall expire, the following options, rights and
obligations shall arise:
(1) Voluntary Termination or Termination for Cause. In
the event of a voluntary termination by a
Shareholder, or a discharge for Cause, the Other
Shareholders shall have the option to purchase all of
the shares of Stock then held by that Shareholder,
for the lesser of (i) the Share Price as of the
effective date of termination of Employment or (ii)
the Share Price as of the date when the Lock-up
Period shall expire. The Other Shareholders shall
give written notice of their intention to exercise
this option within five Business Days after the end
of the Lock-up Period, and if exercised shall
complete the purchase of all such Stock for cash (or
in other good funds) within that five day period.
(2) Share Price. The Share Price shall be determined by
taking the average of the mean between the bid and
ask closing quotations for the five trading days
immediately prior to the applicable dates (or, if
available, the closing prices) of such shares of
Stock on the NASD Over the Counter Bulletin Board (or
an equivalent trading market on which those shares
are then traded).
(3) Registration Postponement. In the event that any
shares of Stock that are subject to the foregoing
option are not then registered as provided under
Section 3 of the Xxxxxxx Shareholders Agreement, the
closing of the sale (but not the effective date for
valuation of the Share Price) shall be postponed, at
the option of a Majority in Interest of the Other
Shareholders exercising the option to purchase,
elected within 30 days after their exercise of their
option to purchase the shares of Stock, until those
shares become registered (as defined in Section
3.1[a] of that Agreement), but no shall such
postponement extend for longer than 120 days in the
aggregate.
(4) Forfeit of Earnout. The terminating Shareholder shall
cease to have any rights in or with respect to any
Additional Consideration under or pursuant to Section
1.3 of the Merger Agreement, and the Additional
Consideration that would have been allocated to that
Shareholder shall be reallocated prorata among the
Other Shareholders who then retain rights to
Additional Consideration under the Merger Agreement.
The pro-rata share of the Additional Consideration to
be reallocated to those Other Shareholders shall be
determined for each Other Shareholder by
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using a fraction, the numerator of which is the total
number of shares of Stock originally issued for the
benefit of each such Other Shareholders as Initial
Consideration, Special Consideration and/or
Additional Consideration (after the award of all
Additional Consideration but without the shares of
Stock to be reallocated hereunder), and the
denominator of which is the total number of shares of
all Stock issued to all Other Shareholders as Initial
Consideration, Special Consideration and the
Additional Consideration as it shall be earned under
Section 1.3 of the Merger Agreement but without the
shares of Stock to be reallocated hereunder). In each
case, the number of shares in the numerator or
denominator shall be adjusted to reflect any shares
of Stock that have been Transferred pursuant to a
Transfer permitted under or pursuant to the Xxxxxxx
Shareholders Agreement (i.e., to reflect shares of
Stock no longer held within the Shareholder Group).
(5) Definition of Permanent Disability. For the purpose
of this Agreement, the definition of "PERMANENT
DISABILITY" shall be as follows: (i) A period of 180
consecutive days during which a Shareholder (as an
employee) fails to perform his or her customary
duties under employment arrangements with the
Companies as a result of incapacity due to physical
or mental illness; or (ii) any other physical or
mental condition for which the respective Board of
Directors of the Company or Companies approves that
Shareholder's retirement from active employment based
on a condition that they specifically recognize by
written Board Resolution to be a permanent
disability.
C. Effect of Continuing Escrow. In the event that at the
expiration of the Lock-Up Period any portion or all of the
Stock continues to be held under and pursuant to the terms of
the Escrow Agreement, then the sale and purchase of Stock
under the provisions of the foregoing Paragraph 6.B shall be
postponed until the final resolution of all disputes
thereunder and the release of the Stock (or that portion
thereof to be released) therefrom. This delay shall not,
however, affect the determination of the sale price, which
shall be established without regard to this delay, but shall
be subject to reduction to reflect any shares of the Stock
that are offset by Xxxxxxx under the terms of the Escrow
Agreement and Article 8 of the Merger Agreement.
7. POST LOCK-UP PERIOD TRANSFERS AND RESTRICTIONS. After the
expiration of the Lock-up Period, no Shareholder shall Transfer any portion or
all of his or her Stock (except in connection with a Permitted Transfer under
Paragraph 6.A) without fully complying with the following:
A. Minimum Required Holding. Without the approval of the Board of
Directors of BAC or BSC (as applicable), no Shareholder (other
than Xxxxx Xxxxxxxx or Xxxxxxxx Xxxxxxxxx) who is an Employee
or Affiliate of the Companies shall Transfer more than 50% of
his or her Stock to any person (in one or more Transfers on
cumulative basis, determined taking into account all Stock
originally held by that Shareholder and/or acquired hereafter
in relation to that Stock), but not taking into account Stock
that is not subject to this Agreement. This requirement is
hereafter referred to as the "MINIMUM REQUIRED HOLDING" and it
shall apply to all other provisions of this Agreement after
the expiration of the Lock-Up Period. An "EMPLOYEE" is any
person who is actually employed on a full or part time basis
by one or both of the Companies, Xxxxxxx or any other
Affiliate of Xxxxxxx. An "AFFILIATE OF THE COMPANIES" is any
person who provides goods or services to one or both of the
Companies, Xxxxxxx or any other Affiliate of Xxxxxxx. An
"AFFILIATE OF XXXXXXX" is any business entity in which
Xxxxxxx, directly or indirectly, holds or controls 50% or more
of the equity securities entitled to vote on governance
matters generally.
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B. Option to Purchase. Subject to the Minimum Required Holding
provisions in the foregoing Paragraph 7.A, in the event that
any Shareholder desires to Transfer any portion of or interest
in his or her Stock, to a person other than a Permitted
Transferee, the Other Shareholders shall have the first option
to purchase all such Stock, at a price and upon terms of
payment hereinafter provided.
(1) Notice and Exercise. The Transferring Shareholder
shall give Xxxxxxx and the Other Shareholders written
notice of his or her intention to Transfer, and the
Other Shareholders, within five Business Days after
receiving that notice (the "NOTICE PERIOD"), shall
notify the Transferring Shareholder in writing as to
their intention with respect to the exercise of this
option and, if exercising this option, shall complete
the purchase of all such Stock for cash (or in other
good funds) within the Notice Period.
(2) Terms of Sale. The exact terms of the proposed
Transfer shall be fully and accurately communicated
to the Other Shareholders with the notice required
under this paragraph, and the same terms shall be
provided to the Other Shareholders if they exercise
their option to purchase (the "PROPOSED TERMS"). An
exact copy of all written agreements and memoranda of
the proposed Transfer shall be delivered to the Other
Shareholders together with a complete written summary
of their terms and all other terms and provisions
which have any material bearing thereon, regardless
of whether or not included in any such memorandum or
agreement. If the Transfer is to take place through a
market trade on a public exchange, the price shall be
the higher price of the Stock as of the close of
trading on the date when the notice is received by
Xxxxx and Xxxxx, or on the date of the Other
Shareholders' exercise of the foregoing option to
purchase. The market price shall be determined by
taking the average of the mean between the bid and
ask closing quotations (or, if available, the closing
prices) of such shares of Stock on the NASD Over the
Counter Bulletin Board (or an equivalent trading
market on which those shares are then traded).
(3) Sale To Outside Parties. If the Other Shareholder(s)
do not exercise their option and consummate their
purchase within the Notice Period, the Transferring
Shareholder shall be free to Transfer his or her
Stock pursuant to the terms and provisions of the
Proposed Terms, subject nevertheless to the Minimum
Required Holding and the Xxxxxxx Shareholder
Agreement.
(4) Registration and Postponement. In the event that any
shares of Stock that are subject to the foregoing
option are not then registered as provided under
Section 3 of the Xxxxxxx Shareholders Agreement, the
closing of the sale (but not the effective date for
valuation of the Share Price) shall be postponed, at
the option of a Majority in Interest of the Other
Shareholders exercising the option to purchase,
elected within 30 days after their exercise of their
option to purchase the shares of Stock, until those
shares become registered (as defined in Section
3.1[a] of that Agreement), but no shall such
postponement extend for longer than 120 days in the
aggregate.
C. Seizure Of Stock. The seizure or Transfer of any shares of
Stock of any Shareholder under any legal process whatsoever or
by operation of law or by court order, by or to any person or
by any receiver, trustee or officer appointed by any court to
take over the assets of that Shareholder shall constitute a
prohibited Transfer of that Stock (a "SEIZURE"). The person
Seizing those shares of Stock shall, for the purpose of this
Agreement, be subject to all of the restrictions in connection
with any proposed Transfer of those shares of Stock contained
in this Agreement as if a Shareholder originally joining in
the execution of this Agreement. The Other Shareholder(s)
shall be entitled to the same rights and options provided in
this
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Paragraph 7, except that their option to purchase may be
exercised at any time up to 90 days after the Seizure.
8. MAJORITY IN INTEREST. Wherever this Agreement calls for the
approval or vote of a "MAJORITY IN INTEREST" that vote, consent or approval
shall require the affirmative vote of Shareholders, the Other Shareholders, or
those Other Shareholders then exercising an option to purchase (as the case may
be), who in the aggregate own more than 50% of the Stock then subject to this
Agreement (in the case of any action not relating to the exercise of an option
to purchase Stock hereunder), or in connection with the exercise of any such
Option, 50% of the Stock then subject to this Agreement that is then held by or
for the benefit of the Other Shareholders (including holders who have received
their shares of Stock by way of a Permitted Transfer within the Shareholder
Group). However, no Shareholder shall have voting, consent or approval rights in
the event that he or she is in default of any provision of this Agreement.
9. AFTER-ACQUIRED STOCK. This Agreement shall be construed to
extend to all shares of Stock issued for the benefit of any of the Shareholders
as Initial Consideration, Special Consideration and/or Additional Consideration
under the Merger Agreement, and cover any additional shares of Stock in Xxxxxxx
which may hereafter be issued to or acquired by any Shareholder by reason of any
stock spilt, distribution or other transaction attributable to the Stock
originally obtained by the Shareholders. This Agreement shall not apply to
shares of the securities of Xxxxxxx acquired by any Shareholder in any public
market, through the exercise of options granted by the Companies or Xxxxxxx
and/or in a separate transaction with Xxxxxxx or any of its Affiliates.
10. SPECIFIC PERFORMANCE. The Shareholders acknowledge that they
will be irreparably damaged in the event this Agreement is not specifically
enforced, and it is the intention of the Shareholders that this Agreement be
enforceable by a decree of specific performance. That remedy, however, shall be
cumulative and not exclusive and shall be in addition to any other remedy which
the parties may have by law.
11. OTHER SHAREHOLDERS. Except where expressly stated otherwise in
this Agreement, wherever by the terms of this Agreement an option may be
exercised by more than one Shareholder, the following rules shall apply:
A. The Shareholders (the "OTHER SHAREHOLDERS") entitled to
exercise the option shall be those Shareholders whose shares
of Stock are not then subject to sale under that option; and
B. The option shall be exercised in proportion to the relative
holdings of the Stock by each such Other Shareholder on the
date of the first exercise thereof. However, if an Other
Shareholder does not exercise an option to acquire the full
amount of stock available to that Other Shareholder, the
remaining Other Shareholders shall have the right to acquire
those shares for which the option is unexercised (in similarly
proportionate amounts if there are two or more Other
Shareholders desiring to purchase).
In all events, each option granted by this Agreement must be exercised for all
shares available to the Other Shareholders (irrespective of their allocable
portions thereof) at the date of the exercise thereof.
12. CONTRIBUTION. Each Shareholder shall indemnify hold the other
Shareholders harmless from and against any and all claims, losses, damages,
liability, costs and expenses incurred by those other Shareholders by reason of
the a successful claim asserted by Xxxxxxx based on any untrue representation by
that Shareholder under Article 2 of the Merger Agreement with respect to which
that Shareholder had actual knowledge, or had actual knowledge of the potential
or probable loss, liability or damage without disclosing that knowledge to
Xxxxxxx or the other Shareholders on or prior to the Closing.
13. REQUIRED LEGEND. Simultaneously with the execution of this
Agreement, each Shareholder shall surrender all certificates of stock, except
those certificates representing shares which are or were acquired through
ordinary brokerage transactions, or under stock option plans instituted by
Xxxxxxx, and not
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pursuant to this Agreement, to Xxxxxxx for endorsement with the following
legend, which shall be conspicuously placed on such certificates:
"The sale, transfer, assignment, pledge, hypothecation or
other disposition of the shares represented by this
certificate is restricted by the provisions of the Bloomfield
Shareholders Agreement, dated as of March 5, 1998 (as it may
be amended from time to time), to which the the holder of this
certificate, among others, is Party, a copy of which may be
inspected at the principal office of Xxxxxxx Financial
Services Corporation. The provisions of the Bloomfield
Shareholders Agreement are incorporated herein by reference."
All certificates of stock issued to or acquired by any such Shareholder after
the date of this Agreement, except certificates representing shares which are or
were acquired through ordinary brokerage transactions and not pursuant to this
Agreement or under stock option plans instituted by Xxxxxxx, shall also bear the
foregoing legend; provided, however, that Xxxxxxx shall remove the required
legend from any shares transferred to a third party (i.e., a party other than a
Shareholder or Permitted Transferee) as permitted in this Agreement, so that
such transferee shall not be subject to the requirements contained in this
Agreement.
14. WAIVERS AND AMENDMENTS. With the written consent of a Majority
in Interest of the Shareholders, the obligations of the Shareholders under this
Agreement that are not controlled by the Xxxxxxx Shareholders Agreement may be
waived (either generally or in a particular instance, either retroactively or
prospectively and either for a specified period of time or indefinitely. Upon
the effectuation of each such waiver, consent, agreement of amendment or
modification, the Company promptly shall give written notice thereof to the
record holders of the then outstanding Common Stock. However, neither this
Agreement nor any of its provision may be changed, waived, discharged or
terminated orally, but only by a statement in writing signed by the party
against which enforcement of that change, waiver, discharge or termination is
sought, except to the extent provided in this Paragraph14.
15. GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of Michigan as such laws are applied to
agreements between Michigan residents entered into and to be performed entirely
within Michigan.
16. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
17. ENTIRE AGREEMENT. This Agreement and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
18. NOTICES, ETC. Notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery or upon the second day following mailing by registered
air mail, postage prepaid, addressed to the Shareholders, as indicated on
Schedule 1 attached to the Xxxxxxx Shareholders Agreement, or at such other
address as a Shareholder shall have furnished to Xxxxxxx for notices under that
Agreement, in accordance with the terms of that Agreement. Any such notice to
Xxxxxxx of change of address shall be simultaneously sent to all Shareholders
under this Agreement.
19. DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power or remedy accruing to any Shareholder under this Agreement shall
impair any right, power or remedy of that Shareholder nor shall it be construed
to be a waiver of any breach or default, or an acquiescence therein, or in any
similar breach or default thereafter occurring, nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any Shareholder of any breach or default
under this Agreement, or any waiver on the part of any Shareholder of any
provisions or conditions of this
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Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any holder, shall be cumulative and
not alternative.
20. SEVERABILITY. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, it shall be modified in such manner as to be
valid, legal, and enforceable but so as to most nearly retain the intent of the
parties, and the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby.
21. TITLES AND SUBTITLES. The titles and subtitles of this
Agreement are intended for reference and shall not by themselves determine the
construction or interpretation of this Agreement.
22. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
23. EXPENSES. Each Shareholder shall pay his or her own costs and
expenses in connection with the performance of this Agreement.
In witness whereof, the parties have caused this Shareholders Agreement
to be executed as of the day and year first above written.
/s/ XXXXXX X. XXXXX /s/ XXXXXXXXX X. XXXXX
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XXXXXX X. XXXXX XXXXXXXXX X. XXXXX
/s/ XXXXXX XXXXXXXXXX /s/ XXXXX XXXXXXX
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XXXXXX XXXXXXXXXX XXXXX XXXXXXX
/s/ XXXXXXXX XXXXXXXXX /s/ XXXXXXX XXXXXXX
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XXXXXXXX XXXXXXXXX XXXXXXX XXXXXXX
/s/ XXXXX XXXXXXXX /s/ XXXXX X. XXXXXXX
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XXXXX XXXXXXXX XXXXX X. XXXXXXX
/s/ XXXXXXXXX X. XXXXXXXX /s/ XXXXXXX X. XXXXX
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XXXXXXXXX X. XXXXXXXX XXXXXXX X. XXXXX
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