Exhibit 5
STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT (this "Agreement") is entered into as of
this ____ day of May, 1997, among Anicom, Inc., a Delaware corporation (the
"Company"), Xxxxx X. Xxxxxxx ("Anixter") and each of the persons listed on the
signature page hereto under the caption "Purchasers" (collectively, the
"Purchasers").
RECITALS
The Company and the Purchasers have entered into that certain Stock
Purchase Agreement (as amended from time to time, the "Stock Purchase
Agreement"), dated May ___, 1997, pursuant to which the Company has agreed to
sell, and the Purchasers have agreed to purchase, in the aggregate, 27,000
shares (the "Covered Shares") of Series A Convertible Preferred Stock, par value
of $.01 per share (the "Preferred Stock"), which shall be convertible into a
number of shares of Anicom's common stock, par value of $.001 per share (the
"Common Stock") (as converted, the "Conversion Shares"), in accordance with the
terms of the Certificate of Designations, Preferences and Rights of Series A
Convertible Preferred Stock of Anicom, Inc. (the "Certificate of Designations")
and except as otherwise provided hereunder. The purchase price for the Preferred
Stock is $1,000.00 per share.
As a condition to the obligations set forth in the Stock Purchase
Agreement, each of the parties hereto has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises herein contained and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Company, Anixter and the
Purchasers agree as follows:
Tag-Along Rights.
Right to Sell Proportionate Number of Shares of
Common Stock. Anixter agrees that, if he shall receive and determine to accept
any bona fide written offer (a "Notice of Offer") from a Buyer to purchase or
otherwise acquire for value, in one transaction or a series of related
transactions, shares of Common Stock (the "Offer Shares") beneficially owned by
him and representing 20% or more of all of the then issued and outstanding
Common Stock of the Company beneficially owned by Anixter, each of the
Purchasers shall have the right to participate in such transaction in the manner
set forth in this Agreement. The term "Buyer", as used herein, means a person or
entity, other than Anixter or any other person or entity directly or indirectly
controlling, controlled by or under direct or indirect common control with
Anixter, that has offered to purchase or otherwise acquire for value shares of
Common Stock of the Company (other than in connection with a registered public
offering).
Notifications. Anixter shall, promptly after his
receipt of a Notice of Offer (and in any event not later than 10 days after such
receipt), send a copy thereof to the Company and to each of the Purchasers. The
delivery of such Notice of Offer shall be effected not less than 60 days prior
to the closing of such proposed sale or other acquisition. Upon receipt of a
Notice of Offer, each Purchaser shall have 30 days to deliver a written notice
of its election to participate in such sale or other acquisition and of the
number of its Covered Shares to be included in such sale or other acquisition,
which Covered Shares shall be converted into Conversion Shares, subject to and
effective upon the closing of such sale or other acquisition; provided, however,
that such number of Conversion Shares to be included shall not exceed the number
determined in Section 1.3 below. If such written notice of election is not
received from a Purchaser within the 30-day period specified above, Anixter
shall have the right to sell or otherwise transfer the aforesaid Common Stock to
the Buyer without any participation by such Purchaser, but only (a) on the terms
and conditions stated in the Notice of Offer and (b) if the sale or other
transfer is consummated not later than 60 days after the end of the aforesaid
60-day period.
Selling a Proportionate Number of Shares of Common
Stock. Each Purchaser shall have the right to sell or transfer, pursuant to the
Notice of Offer, Conversion Shares representing the same percentage of the
Conversion Shares into which all Covered Shares owned by such Purchaser are then
convertible as the Offer Shares are of all shares of Common Stock then
beneficially owned by Anixter. In the event the number of Conversion Shares for
which Purchasers elect to exercise such right, along with the Offer Shares and
any other shares of the Company to be sold or transferred by other shareholders
of the Company pursuant to any similar rights granted to such other shareholders
prior to the date hereof, exceed the number of shares which the Buyer is willing
to purchase, the number of shares to be sold or transferred to the Buyer by each
transferor shall be reduced so that each transferor is entitled to sell or
transfer the same percentage of its shares as each other transferor.
Purchase Price of Covered Shares. The purchase price
for each Conversion Share ("Purchase Price") of the Purchasers under this
Agreement and the terms of the purchase or other acquisition thereof shall be
the same as are applicable to the purchase or other acquisition of each share of
Common Stock of Anixter and shall be as set forth in such Notice of Offer;
provided, however, that the Purchasers shall not be required to provide any
representation, warranty or other undertaking other than with respect to their
ownership of, and authority to sell or transfer, such Conversion Shares free of
any liens or encumbrances.
Closing of Sale. Each Purchaser in respect of a
Notice of Offer shall deliver to the Buyer in respect of such Notice of Offer,
against payment of the total purchase price for the Covered Shares to be
purchased (at the price per share specified above in Section 1.4), on the
closing date specified in such Notice of Offer, a certificate or certificates
representing the number of such Covered Shares which it has elected to sell
pursuant to this Agreement, together with appropriate instruments of transfer
duly endorsed in blank.
Entire Agreement. This Agreement and the other documents
referenced herein contain the entire agreement between the parties with respect
to the subject matter hereof and supersede any and all prior arrangements and
understandings, both written and oral, with respect thereto.
Severability. It is the desire and intent of the parties that
the provisions of this Agreement be enforced to the fullest extent permissible
under the law and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, in the event that any provision of this
Agreement would be held in any jurisdiction to be invalid, prohibits or
unenforceable for any reason, such provision, as to such jurisdiction, shall be
ineffective, without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction. Notwithstanding the foregoing, if such provision could be more
narrowly drawn so as not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
Governing Law. This Agreement shall be construed in accordance
with and governed by the law of the State of Delaware, without giving effect to
the principles of conflict of laws thereof.
Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereof and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
Notice. Whenever a party to this Agreement is required to give
notice to any other party hereunder, such notice shall be given at the address
set forth next to such party's name on the signature page of this Agreement or
at such other address as the parties designate to each by giving notice
hereunder, and such notice shall be made in writing and deemed to have been duly
delivered when (a) delivered by hand (b) one day after upon confirmation of
delivery by a nationally recognized overnight delivery service or (c) three days
after sent by Certified U.S. Mail, return receipt requested. A copy of any such
notices delivered to Anixter or the Company shall also be delivered to:
Xxxxxx Xxxxxx & Zavis
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
ANICOM, INC. PURCHASERS:
By: __________________________
XXXXXX, XXXXXXX STRATEGIC
Xxxxx X. Xxxxxxx, Chairman PARTNERS FUND, L.P.
and Chief Executive Officer By: XXXXXX, XXXXXXX STRATEGIC
PARTNERS, L.P., its
general partner
------------------------------
Xxxxx X. Xxxxxxx By: _________________________
Xxxxx X. Xxxxxxx, a
general partner
Address: Xxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attn:Xxxxx Xxxxxxx
Xxxxxxxxx Xxx (Xxxx)
With a copy to: Xxxxxx, Xxxxxx & Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
STRATEGIC ASSOCIATES, L.P.
By: XXXXXX, XXXXXXX & COMPANY,
L.L.C., a managing member
By:______________________
Xxxxx X. Xxxxxxx, a
managing member
Address: Xxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Xxxxxxxxx Xxx (Xxxx)
With a copy to: Xxxxxx, Xxxxxx & Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
XXXXXXX US DISCOVERY FUND III, L.P.
By: XXXXXXX US DISCOVERY
PARTNERS, L.P., its
general partner
By: XXXXXXX US DISCOVERY,
LLC, its general partner
By: ___________________
Xxxxxx X. Xxxx,
member
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxx
Xxxxx Xxxxx
Xxxxx Xxxxxxx
With a copy to: Morgan, Lewis, Bockius, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
XXXXXXX US DISCOVERY OFFSHORE FUND III, L.P.
By: XXXXXXX US DISCOVERY
PARTNERS, L.P., its
general partner
By: XXXXXXX US DISCOVERY,
LLC, its general partner
By: ___________________
Xxxxxx X. Xxxx,
member
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxx
Xxxxx Xxxxx
Xxxxx Xxxxxxx
With a copy to: Morgan, Lewis, Bockius, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx
____________________________________________
Xxxxx X. Xxxxxxxx
____________________________________________
Xxxxx X. Xxxxxxxx
XXXXX X. XXXXXXXX TESTAMENTARY TRUST
By:_________________________________
Its:_______________________
XXXXX XXXXXXXX TRUST
By:_________________________________
Its:_______________________
XXXXX XXXXXXXX TRUST
By:_________________________________
Its:_______________________
XXXXX XXXXXXXX XX. TRUST
By:_________________________________
Its:_______________________
XXXXXXX XXXX XXXXXXXX TRUST
By:_________________________________
Its:_______________________
In each case, c/o Huizenga Capital Management
Address: 0000 Xxxx Xxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxx Xxx
With a copy to: Hlustik, Xxxxxxxx &
Vander Woude
00 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx Woude
SUMMER HILL PARTNERS, L.P.
By: Summer Hill, Inc., its general partner
By:__________________________________
Xxxxxxx X. Xxxxxxx, President
SUMMER XXXX X.X. ENTERPRISES LIMITED PARTNERSHIP
By: Summer Hill, Inc., its general partner
By:__________________________________
Xxxxxxx X. Xxxxxxx, President
GARFAM INVESTORS LLC
By:____________________________________________________
Xxxxxx Xxxxxxx, Treasurer
S. XXXXX XXXXXX
By:__________________________________
Name:
Title:
Address: 0000 X. 00xx Xxx.
Xxxxxxxxx, XX 00000
With a copy to:
XXXX XXXXXX
By:___________________________________
Name:
Title:
Address: 0000 X. 00xx Xxx.
Xxxxxxxxx, XX 00000
With a copy to:
XXXX XXXXXX
By:___________________________________
Name:
Title:
Address: 0000 X. 00xx Xxx.
Xxxxxxxxx, XX 00000
With a copy to:
KA TRADING
By:___________________________________
Xxx Xxxxxxx
Title:
Address: 0000 Xxxxxxx Xxxxxxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Xxxxxxx Xxxxx
KA MANAGEMENT
By:___________________________________
Xxx Xxxxxxx
Title:
Address: 0000 Xxxxxxx Xxxxxxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Xxxxxxx Xxxxx
With a copy to:
CEW PARTNERS
By:___________________________________
Name:
Title:
Address: 00 Xxxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
With a copy to:
TRUST INVESTMENTS, INC.
By:___________________________________
Name:
Title:
Address: 00 Xxxxxx Xxxx
Xxxxx, XX 00000
Attn: M. Xxxxxxx Xxxxxxx
With a copy to:
THE LINCOLN FUND, L.P.
By: MATLINS FINANCIAL
CONSULTING, INC., its
general partner
By:_________________________
Xxxx Xxxxxxx, President
0 Xxxx Xxx Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
THE LINCOLN FUND TAX
ADVANTAGE, L.P.
By: MATLINS FINANCIAL
CONSULTING, INC., its
general partner
By: _________________________
Xxxx Xxxxxxx, President
0 Xxxx Xxx Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
THE XXXXXX FUND, L.P.
By: LIGHTHOUSE CAPITAL
MANAGEMENT, L.L.C.
By: _________________________
Xxxx Xxxxxxx, President
0 Xxxx Xxx Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
