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EXHIBIT 2.6
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.
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Xxxxxxx, Xxxxxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxx (together "SZU") shall take
all action necessary 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
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purposes, for the benefit of that Shareholder (and/or his or
her spouse, children 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 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
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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 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 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 )
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,
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holds or controls 50% or more of the equity securities
entitled to vote on governance matters generally.
B. Option to Purchase. Subject to the Minimum Required Holding
provisions in the foregoing Paragraph , 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
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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
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.
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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 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
___, 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 Paragraph 12.
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,
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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 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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