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EXHIBIT 2
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
SAMSTOCK, L.L.C.
AND
XXXXX X. XXXX
DATED MAY 14, 1998
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TABLE OF CONTENTS
Page(s)
ARTICLE I - DEFINITIONS........................................ 1
ARTICLE II - PURCHASE AND SALE OF SHARES....................... 3
Section 2.1 Purchase and Sale........................... 3
Section 2.2 Consideration............................... 3
ARTICLE III - THE CLOSING...................................... 4
Section 3.1 Time and Place.............................. 4
Section 3.2 Deliveries by Shareholder................... 4
Section 3.3 Deliveries by the Purchaser................. 4
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER..... 5
Section 4.1 Title to Stock.............................. 5
Section 4.2 Authority; Noncontravention................. 5
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF PURCHASER........ 6
Section 5.1 Organization................................ 6
Section 5.2 Authority; Noncontravention................. 6
Section 5.3 Investment Intent........................... 6
ARTICLE VI - CERTAIN AGREEMENTS................................ 7
Section 6.1 No Solicitation............................. 7
Section 6.2 Further Action.............................. 7
Section 6.3 Notification of Certain Matters............. 7
Section 6.4 Public Announcements........................ 8
Section 6.5 Other Agreements............................ 8
Section 6.6 Fees and Expenses........................... 8
ARTICLE VII - CONDITIONS....................................... 8
Section 7.1 Conditions to Each Party's Obligation....... 8
Section 7.2 Condition to Obligations of Shareholder..... 9
Section 7.3 Conditions to Obligations of Purchaser...... 9
ARTICLE VIII - TERMINATION, AMENDMENT AND WAIVER............... 9
Section 8.1 Termination................................. 9
Section 8.2 Effect of Termination....................... 10
ARTICLE IX - SURVIVAL; INDEMNIFICATION......................... 10
Section 9.1 Survival.................................... 10
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Section 9.2 Indemnification by Purchaser............... 11
Section 9.3 Third-Party Claims......................... 11
Section 9.4 Termination of Indemnification............. 12
ARTICLE X - MISCELLANEOUS..................................... 12
Section 10.1 Counterparts............................... 12
Section 10.2 Governing Law.............................. 12
Section 10.3 Entire Agreement........................... 12
Section 10.4 Notices.................................... 12
Section 10.5 Assignment................................. 13
Section 10.6 Interpretation............................. 14
Section 10.7 Amendments; Waivers........................ 14
Section 10.8 Severability............................... 14
Section 10.9 Consent to Jurisdiction.................... 14
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is made this 14th day of May, 1998 by and
between Samstock, L.L.C., a Delaware limited liability company ("Purchaser"),
and Xxxxx X. Xxxx, an individual residing in the State of Illinois
("Shareholder").
WITNESSETH:
WHEREAS, Shareholder wishes to sell to Purchaser, and Purchaser wishes to
purchase from Shareholder, 500,000 shares (the "Shares") of common stock, no
par value, of Davel Communications Group, Inc., an Illinois corporation (the
"Company") (such common stock being referred to as "Company Common Stock") and
warrants to purchase 131,250 shares of Company Common Stock (the "Warrants"),
upon the terms and subject to the conditions of this Agreement.
WHEREAS, concurrently herewith, Purchaser and the Company have entered
into a Stock Purchase Agreement pursuant to which the Company has agreed to
issue and sell to Purchaser, and Purchaser has agreed to purchase from the
Company, 1,000,000 newly issued shares of Company Common Stock and warrants to
purchase 218,750 shares of Company Common Stock at an exercise price of $32.00
per share (which shall be exercisable through the fourth anniversary of the
Closing Date) (the "Company Stock Purchase Agreement"), upon the terms and
subject to the conditions set forth in such Agreement.
WHEREAS, concurrently herewith, Purchaser, on the one hand, and certain
directors and members of management of the Company (the "Management
Shareholders"), on the other, have entered into a Stock Purchase Agreement
pursuant to which the Management Shareholders have agreed to sell to Purchaser,
and Purchaser has agreed to purchase from the Management Shareholders, 123,900
shares of Company Common Stock (such Agreement, together with the Company Stock
Purchase Agreement, the "Other Stock Purchase Agreements"), upon the terms and
subject to the conditions set forth in the Management Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 "Affiliate" shall mean, 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
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of management or policies, whether through the ownership of securities or
partnership or other ownership interests, by contract or otherwise.
Section 1.2 "Agreement" shall mean this Agreement.
Section 1.3 "Closing" shall have the meaning set forth in Section 3.1
hereof.
Section 1.4 "Closing Date" shall have the meaning set forth in Section
3.1 hereof.
Section 1.5 "Company" shall have the meaning set forth in the introductory
clauses hereto.
Section 1.6 "Company Common Stock" shall have the meaning set forth in the
introductory clauses hereto.
Section 1.7 "Company Stock Purchase Agreement" shall have the meaning set
forth in the introductory clauses hereto.
Section 1.8 "Governmental Entity" shall mean any federal, state or local
government or any court, administrative agency or commission or other
governmental authority or agency.
Section 1.9 "HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
Section 1.10 "Investment Agreement" shall mean the Investment Agreement
substantially in the form of Exhibit A to the Company Stock Purchase Agreement.
Section 1.11 "Liens" shall mean all pledges, claims, liens, charges,
encumbrances and security interests of any kind or nature whatsoever.
Section 1.12 "Losses and Expenses" shall have the meaning set forth in
Section 10.2 hereof.
Section 1.13 "Management Shareholders" shall have the meaning set forth in
the introductory clauses hereto.
Section 1.14 "Other Stock Purchase Agreements" shall have the meaning set
forth in the introductory clauses hereto.
Section 1.15 "person" shall mean any individual, corporation, partnership,
limited liability company, joint venture, Governmental Entity or other entity.
Section 1.16 "Purchase Price shall have the meaning set forth in Section
2.2 hereof.
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Section 1.17 "Purchaser" shall have the meaning set forth in the
introductory clauses hereto.
Section 1.18 "SEC" shall mean the Securities and Exchange Commission.
Section 1.19 "Shareholder" shall have the meaning set forth in the
introductory clauses hereto.
Section 1.20 "Shareholder Agreement" shall mean the Shareholders Agreement
substantially in the form of Exhibit B to the Company Stock Purchase Agreement.
Section 1.21 "Shares" shall have the meaning set forth in the introductory
clauses hereto.
Section 1.22 "Subsidiary" of any person shall mean another person, an
amount of the voting securities or other voting ownership or voting partnership
interests of which is sufficient to elect at least a majority of its board of
directors or other governing body (or, if there are no such voting interests,
50% or more of the equity interests of which) is owned directly or indirectly
by such first person.
Section 1.23 "Surviving Provisions" shall have the meaning set forth in
Section 9.2 hereof.
Section 1.24 "takeover proposal" shall have the meaning set forth in
Section 6.2 hereof.
Section 1.25 "Warrant Agreement" shall mean an agreement to be entered
into by Purchaser and Shareholder pursuant to which Shareholder shall issue to
Purchaser the Warrants, which agreement, in form and substance, shall be
reasonably acceptable to Purchaser.
ARTICLE II
PURCHASE AND SALE OF SHARES
Section 2.1 Purchase and Sale. Upon the terms and subject to the
conditions set forth in this Agreement, at the Closing, Shareholder shall sell,
and Purchaser shall purchase from Shareholder, the Shares and the Warrants.
Section 2.2 Consideration. Upon the terms and subject to the conditions
set forth in this Agreement, at the Closing, Purchaser shall pay to Shareholder
$14,000,000 (the "Purchase Price").
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ARTICLE III
THE CLOSING
Section 3.1 Time and Place. Upon the terms and subject to the conditions
set forth in this Agreement, the closing of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of Xxxxxxxxx &
Xxxxxxxxxxx, P.C., 0 X. Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx at 10:00 a.m. (local
time) on the fifth business day following the date on which all of the
conditions to each party's obligations hereunder have been satisfied or waived
or at such other place or time as Purchaser and Shareholder may agree. The
date and time at which the Closing actually occurs is hereinafter referred to
as the "Closing Date."
Section 3.2 Deliveries by Shareholder. At the Closing, Shareholder shall
deliver the following to Purchaser.
(a) (i) one or more stock certificates representing the Shares; and
(ii) any other documents that are necessary to transfer to Purchaser good
and marketable title to the Shares free and clear of any Lien;
(b) a duly executed counterpart of the Investment Agreement;
(c) a duly executed counterpart of the Shareholders Agreement;
(d) a duly executed counterpart of the Warrant Agreement; and (ii)
any other documents that are necessary to transfer to Purchaser good and
marketable title to the Warrants free and clear of any Lien; and
(e) all other documents, instruments and writings required to be
delivered by Shareholder at or prior to the Closing Date pursuant to this
Agreement.
Section 3.3 Deliveries by the Purchaser. At the Closing, Purchaser shall
deliver the following to Shareholder:
(a) the Purchase Price by interbank transfer of immediately
available funds to an account designated by Shareholder or by such other
means as may be agreed upon in writing by Shareholder and Purchaser;
(b) a duly executed counterpart of the Investment Agreement;
(c) a duly executed counterpart of the Shareholders Agreement;
(d) a duly executed counterpart of the Warrant Agreement; and
(e) all other documents, instruments and writings required to be
delivered by Purchaser at or prior to the Closing Date pursuant to this
Agreement.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
Shareholder represents and warrants to Purchaser as follows:
Section 4.1 Title to Stock. Shareholder owns the Shares free and clear of
all Liens. At the Closing, Purchaser will acquire good and marketable title to
the Shares and the Warrants, free and clear of all Liens. Upon issuance of
shares of Company Common Stock pursuant to the Warrants, such shares will be
duly authorized, validly issued, fully paid and non-assessable, and Purchaser
will acquire good and marketable title to such shares.
Section 4.2 Authority; Noncontravention. Shareholder has the requisite
power and authority to enter into this Agreement and, subject to Shareholder
Approval (as defined in the Company Stock Purchase Agreement), to consummate
the transactions contemplated by this Agreement. This Agreement has been duly
executed and delivered by Shareholder and constitutes a valid and binding
obligation of Shareholder, enforceable against Shareholder in accordance with
its terms, subject to general principles of equity as may be limited by
bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights
generally. The execution and delivery of this Agreement by Shareholder do not,
and the consummation of the transactions contemplated by this Agreement and
compliance with the provisions of this Agreement will not, conflict with, or
result in any violation of, or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to loss of a material benefit under, or
result in the creation of any Lien upon any of the properties or assets of
Shareholder under (i) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise
or license applicable to Shareholder or his properties or assets or (ii)
subject to the governmental filings and other matters referred to in the
following sentence, any judgment, order, decree, statute, law, ordinance, rule
or regulation applicable to Shareholder or his properties or assets of which
Shareholder is aware, other than, in the case of clauses (ii) and (ii), any
such conflicts, violations, defaults, rights or Liens, that individually or in
the aggregate, would not (y) prevent Shareholder from performing his
obligations under this Agreement in any material respect or (z) prevent or
delay in any material respect the consummation of the transactions contemplated
by this Agreement. No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity, is required
by or with respect to Shareholder in connection with the execution and delivery
of this Agreement by Shareholder or the consummation by Shareholder of the
transactions contemplated by this Agreement, except (i) the filing of a
notification and report form by Shareholder as the ultimate parent entity of
the Company under the HSR Act, (ii) the filing with the SEC of such reports
under Section 13(a) of the Exchange Act as may be required in connection with
this Agreement and the transactions contemplated hereby and (iii) such other
consents, approvals, orders, authorizations, registrations, declarations and
filings which, if not obtained or made, would not prevent or delay in any
material respect the consummation of the
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transactions contemplated by this Agreement or otherwise prevent Shareholder
from performing his obligations under this Agreement in any material respect.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Shareholder as follows:
Section 5.1 Organization. Purchaser is a limited liability company duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized.
Section 5.2 Authority; Noncontravention. Purchaser has the requisite
power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. The execution and delivery of
this Agreement by Purchaser and the consummation by Purchaser of the
transactions contemplated by this Agreement have been duly authorized by all
necessary action on the part of Purchaser. This Agreement has been duly
executed and delivered by Purchaser and constitutes a valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms, subject to general principles of equity as may be limited by bankruptcy,
insolvency, moratorium or similar laws affecting creditors' rights generally.
The execution and delivery of this Agreement by Purchaser do not, and the
consummation of the transactions contemplated by this Agreement and compliance
with the provisions of this Agreement will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time, or both)
under (i) the organizational documents of Purchaser or (ii) subject to the
governmental filings and other matters referred to in the following sentence,
any judgment , order, decree, statute, law, ordinance, rule or regulation
applicable to Purchaser or its properties or assets of which Purchaser is
aware, other than, in the case of clause (ii), any such conflicts, violations
or defaults that, individually or in the aggregate, would not (x) prevent
Purchaser from performing its obligations under this Agreement in any material
respect or (y) prevent or delay in any material respect the consummation of the
transactions contemplated by this Agreement. No consent, approval, order or
authorization of, or registration, declaration or filing with, any Governmental
Entity, is required by or with respect to Purchaser in connection with the
execution and delivery of this Agreement by Purchaser or the consummation by
Purchaser of the transactions contemplated by this Agreement, except (i) the
filing of a notification and report form by Purchaser under the HSR Act and
(ii) such other consents, approvals, orders, authorizations, registrations,
declarations and filings which, if not obtained or made, would not prevent or
delay in any material respect the consummation of the transactions contemplated
by this Agreement or otherwise prevent Purchaser from performing its
obligations under this Agreement in any material respect.
Section 5.3 Investment Intent. Purchaser is purchasing the Shares for
investment, and not with a view toward, or for sale in connection with, any
distribution thereof, nor with
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any present intention of distributing or selling the Shares. Purchaser is an
"accredited investor" as defined in Rule 501 of Regulation D adopted by the SEC
under the Securities Act of 1993, as amended.
ARTICLE VI
CERTAIN AGREEMENTS
Section 6.1 No Solicitation Shareholder agrees that he shall not, and
shall not authorize any investment banker, attorney or other advisor or
representative of Shareholder, to (i) solicit, initiate or encourage the
submission of any takeover proposal (as defined below), (ii) enter into any
agreement with respect to any takeover proposal or (iii) participate in any
discussions or negotiations regarding, or furnish to any person any information
with respect to, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes, or may reasonably be expected to lead
to, any takeover proposal. For purposes of this Agreement, "takeover proposal"
means any proposal for a merger, consolidation or other business combination
involving the Company or any of its Subsidiaries or any proposal or offer to
acquire from the Company or Shareholder in any manner, directly or indirectly,
more than 10% of any class of voting securities of the Company or any of the
Company's Subsidiaries, or assets representing more than 20% of the total
assets of the Company and its Subsidiaries, taken as a whole, as reflected on
the Company's balance sheet as of March 31, 1998, other than the transactions
contemplated by this Agreement. Shareholder will immediately cease and cause
to be terminated any existing activities, discussions or negotiations by
Shareholder or any investment bankers, attorneys or other advisors or
representatives of Shareholder with any parties conducted heretofore on
Shareholder's behalf with respect to any of the foregoing.
Section 6.2 Further Action. Upon the terms and subject to the
satisfaction of the conditions contained in this Agreement, each of the parties
hereto shall use its reasonable best efforts to take, or cause to be taken, all
appropriate action, and to do or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement. From time to time
after the Closing Date, without further consideration, Shareholder will, at his
own expense, execute and deliver such documents to Purchaser as Purchaser may
reasonably request in order more effectively to vest in Purchaser good and
marketable title to the Shares.
Section 6.3 Notification of Certain Matters. Shareholder shall give
prompt notice to Purchaser, and Purchaser shall give prompt notice to
Shareholder, of (i) the occurrence or nonoccurrence of any event the occurrence
or nonoccurrence of which would be likely to cause any representation or
warranty contained in this Agreement to be untrue or inaccurate and (ii) any
failure of Shareholder or Purchaser, as the case may be, to comply with or
satisfy any covenant, condition or agreement to be complied with or satisfied
by it or him hereunder; provided, however, that the delivery of any notice
pursuant to this Section 6.2 shall not limit or otherwise affect the remedies
available hereunder to the party receiving such notice.
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Section 6.4 Public Announcements. Shareholder and Purchaser shall consult
with each other before issuing any press release or otherwise making any public
statements with respect to this Agreement or the transactions contemplated
hereby and shall not issue any such press release or make any such public
statement prior to such consultation, except as may be required by law or by
the rules and regulations of the National Association of Securities Dealers,
Inc.
Section 6.5 Other Agreements. Shareholder and Purchaser shall execute and
deliver each of the Investment Agreement and the Shareholders Agreement at or
prior to the Closing.
Section 6.6 Fees and Expenses. All fees and expenses incurred in
connection with the transactions contemplated by this Agreement shall be paid
by the party incurring such fees or expenses, whether or not such transactions
are consummated; provided that Shareholder's fees and expenses may be paid by
the Company.
ARTICLE VII
CONDITIONS
Section 7.1 Conditions to Each Party's Obligation. The respective
obligation of each party to effect the transactions contemplated by this
Agreement is subject to the satisfaction or waiver at or prior to the Closing
Date of the following conditions:
(a) The waiting periods (and any extensions thereof) applicable to
the transactions contemplated by this Agreement under the HSR Act shall
have been terminated or shall have expired.
(b) No statute, rule, regulation, executive order, decree, ruling,
injunction or other order (whether temporary, preliminary or permanent)
shall have been enacted, promulgated or enforced by any Governmental
Entity of competent jurisdiction which prohibits, restrains, enjoins or
restricts the consummation of the transactions contemplated by this
Agreement; provided, however, that each of the parties shall have used
its reasonable best efforts to cause any such decree, ruling, injunction
or other order to be vacated or lifted.
(c) There shall not be pending any suit, action or proceeding by any
Governmental Entity seeking to impose, and neither Shareholder nor
Purchaser shall be subject to any order, decree, ruling or injunction
(whether temporary, preliminary or permanent) which would impose,
limitations on the ability of Purchaser to acquire or hold, or exercise
full rights of ownership of, the Shares, including the right to vote the
Shares on all matters properly presented to the shareholders of the
Company.
(d) The closing of the transactions contemplated by the Other Stock
Purchase Agreements shall be occurring concurrently with the Closing.
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Section 7.2 Condition to Obligations of Shareholder. The obligations of
Shareholder to effect the transactions contemplated by this Agreement are
further subject to the satisfaction or waiver at or prior to the Closing Date
of the following additional conditions:
(a) Purchaser shall have performed in all material respects all
agreements and covenants required to be performed by it under this
Agreement at or prior to the Closing Date, and the representations and
warranties of Purchaser contained in this Agreement that are qualified as
to materiality shall be true and correct and the representations and
warranties of Purchaser contained in this Agreement that are not so
qualified shall be true and correct in all material respects, in each
case as of the date of this Agreement and as of the Closing Date, except
to the extent any such representation or warranty expressly relates to an
earlier date (in which case as of such date), and Shareholder shall have
received a certificate signed on behalf of Purchaser by an executive
officer thereof to such effect.
(b) Shareholder shall have received an opinion of Xxxxxxxxx &
Xxxxxxxxxxx, P.C., in form and substance reasonably satisfactory to
Shareholder.
Section 7.3 Conditions to Obligations of Purchaser. The obligations of
Purchaser to effect the transactions contemplated by this Agreement are further
subject to the satisfaction or waiver at or prior to the Closing Date of the
following additional conditions:
(a) Shareholder shall have performed in all material respects all
agreements and covenants required to be performed by him under this
Agreement at or prior to the Closing Date, and the representations
and warranties of Shareholder contained in this Agreement that are
qualified as to materiality shall be true and correct and the
representations and warranties of Shareholder contained in this
Agreement that are not so qualified shall be true and correct in
all material respects, in each case as of the date of this
Agreement and as of the Closing Date, except to the extent any such
representation or warranty expressly relates to an earlier date (in
which case as of such date), and Purchaser shall have received a
certificate signed by Shareholder to such effect.
(b) Purchaser shall have received an opinion of Xxxxxxxx & Xxxxx, in
form and substance reasonably satisfactory to Purchaser.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
Section 8.1 Termination. This Agreement may be terminated and the
transactions contemplated by this Agreement may be abandoned at any time prior
to the Closing Date:
(a) by mutual written consent of Purchaser and Shareholder; or
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(b) by either Purchaser or Shareholder:
(i) if the transactions contemplated by this Agreement shall
not have been consummated by October 31, 1998 (other than due to
the failure of the party seeking to terminate this Agreement to
perform its or his obligations under this Agreement required to be
performed at or prior to the Closing Date);
(ii) if any Governmental Entity shall have issued an order,
decree or ruling or taken any other action permanently enjoining,
restraining or otherwise prohibiting the transactions contemplated
by this Agreement and such order, decree, ruling or other action
shall have become final and non-appealable;
(iii) in the event of a breach by the other party of any
representation, warranty, covenant or other agreement contained in
this Agreement which (A) would give rise to the failure of a
condition set forth in Section 7.2(a) or 7.3(a), as applicable, and
(B) cannot be or has not been cured within 30 days after the giving
of written notice to the breaching party of such breach (provided
that the terminating party is not then in breach of any
representation, warranty, covenant or other agreement that would
give rise to a failure of a condition as described in clause (A)
above); or
(iv) in the event that (A) all the conditions to the
obligation of such party to effect the transactions contemplated by
this Agreement set forth in Section 7.1 shall have been satisfied
and (B) any condition to the obligation of such party to effect
such transactions set forth in Section 7.2 (in the case of
Shareholder) or Section 7.3 (in the case of Purchaser) is not
capable of being satisfied prior to the end of the period referred
to in subsection (b)(ii) above.
Section 8.2 Effect of Termination. In the event of termination of this
Agreement by either Purchaser or Shareholder as provided in Section 8.1 hereof,
this Agreement shall forthwith become void (except as set forth in this Section
8.2, in Section 6.3 and Article X (other than Section 10.5) hereof, which shall
survive such termination (the "Surviving Provisions")) and there shall be no
liability on the part of Purchaser or Shareholder except for any breach of any
of its obligations under the Surviving Provisions. Notwithstanding the
foregoing, no party hereto shall be relieved from liability for any material
breach of this Agreement.
ARTICLE IX
SURVIVAL; INDEMNIFICATION
Section 9.1 Survival. The representations and warranties given by
Shareholder to Purchaser in this Agreement and the representations and
warranties given by Purchaser to Shareholder in this Agreement shall survive
the Closing indefinitely and shall not terminate.
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Section 9.2 Indemnification by Purchaser or Shareholder: (a) From and
after the Closing Date, Purchaser shall indemnify and hold harmless Shareholder
and each of Shareholder's heirs, executors, successors and assigns from and
against any and all damages, claims, losses, expenses, costs, obligations and
liabilities including without limiting the generality of the foregoing,
liabilities for all reasonable attorneys' fees and expenses (including attorney
and expert fees and expenses incurred to enforce the terms of this Agreement)
(collectively, "Losses and Expenses") suffered or incurred by any such
indemnified person arising from, relating to or otherwise in respect of, (i)
any breach of, or inaccuracy in, any representation or warranty of Purchaser
contained in this Agreement or in the certificate delivered pursuant to Section
7.2(a) of this Agreement; and (ii) any breach of any covenant of Purchaser
contained in this Agreement.
(b) From and after the closing date, Shareholder shall indemnify and hold
harmless Purchaser, Purchaser's Affiliates, each of their respective directors,
officers, employees and agents, and each of the heirs, executors, successors
and assigns of any of the foregoing from and against any and all Losses and
Expenses suffered or incurred by any such indemnified person arising from,
relating to or otherwise in respect of, (i) any breach of, or inaccuracy in,
any representation or warranty of Shareholder contained in this Agreement or in
the certificate delivered pursuant to Section 7.3(a) of this Agreement and (ii)
any breach of any covenant of Shareholder contained in this Agreement.
Section 9.3 Third-Party Claims. If a claim by a third party is made
against an indemnified person hereunder, and if such indemnified person intends
to seek indemnity with respect thereto under this Article, such indemnified
person shall promptly notify the indemnifying person in writing of such claims
setting forth such claims in reasonable detail, provided that failure of such
indemnified person to give prompt notice as provided herein shall not relieve
the indemnifying person of any of its obligations hereunder, except to the
extent that the indemnifying person is materially prejudiced by such failure.
The indemnifying person shall have twenty (20) days after receipt of such
notice to undertake, through counsel of its own choosing, subject to the
reasonable approval of such indemnified person, and at its own expense, the
settlement or defense thereof, and the indemnified person shall cooperate with
it in connection therewith; provided, however, that the indemnified person may
participate in such settlement or defense through counsel chosen by such
indemnified person, provided that the fees and expenses of such counsel shall
be borne by such indemnified person. If the indemnifying person shall assume
the defense of a claim, it shall not settle such claim without the prior
written consent of the indemnified person, (i) unless such settlement includes
as an unconditional term thereof the giving by the claimant of a release of the
indemnified person from all liability with respect to such claim or (ii) if
such settlement involves the imposition of equitable remedies or the imposition
of any material obligations on such indemnified person other than financial
obligations for which such indemnified party will be indemnified hereunder. If
the indemnifying person shall assume the defense of a claim, the fees of any
separate counsel retained by the indemnified person shall be borne by such
indemnified person unless there exists a conflict between them as to their
respective legal defenses (other than one that is of a monetary nature), in
which case the
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indemnified person shall be entitled to retain separate counsel, the reasonable
fees and expenses of which shall be reimbursed by the indemnifying person. If
the indemnifying person does not notify the indemnified person within thirty
(30) days after the receipt of the indemnified person's notice of a claim of
indemnity hereunder that it elects to undertake the defense thereof, the
indemnified person shall have the right to contest, settle or compromise the
claim but shall not thereby waive any right to indemnity therefor pursuant to
this Agreement.
Section 9.4 Termination of Indemnification. The obligations to indemnify
and hold harmless a party hereto, (a) with respect to any breach of, or
inaccuracy in, any representation or warranty contained in this Agreement shall
terminate when the applicable representation or warranty terminates and (b)
with respect to any breach of covenant or agreement set forth in this Agreement
shall not terminate; provided, however, that as to clause (a) above such
obligation to indemnify and hold harmless shall not terminate with respect to
any item as to which the person to be indemnified shall have, before the
expiration of the applicable period, previously made a claim by delivering a
notice (stating in reasonable detail the basis of such claim) to the
indemnifying party.
ARTICLE X
MISCELLANEOUS
Section 10.1 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 10.2 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 laws thereof.
Section 10.3 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 any rights or remedies.
Section 10.4 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):
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(a) If to Purchaser:
Samstock, L.L.C.
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: F. Xxxxxx Xxxxx
Telecopy Number: 312.454.1671
with a copy to:
Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopy Number: 312.454.0335
(b) If to Shareholder, to:
Xxxxx X. Xxxx
000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Telecopy: 217.243.6016
With a copy to:
Davel Communications Group, Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxxx, Xx.
Telecopy Number: 813.626.9610
Section 10.5 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 Purchaser 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 or all of his
rights and obligations under this Agreement to one or more Shareholder Family
Entities (as defined in the Shareholders Agreement) that executes a joinder at
the time of transfer; provided, in each case, that such assignment shall not
relieve Purchaser or Shareholder, as the case may be, of its or his obligations
hereunder. 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.
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Section 10.6 Interpretation. The table of contents and headings contained
in this Agreement are inserted for convenience of reference only and shall not
affect in any way 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 10.7 Amendments; Waivers. (a) This Agreement may not be modified
or amended except by an instrument or instruments in writing signed by each
party hereto.
(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 10.8 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 10.9 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 located 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, this Agreement has been signed by or on behalf of each
of the parties as of the date first above written.
SAMSTOCK, L.L.C.
by SZ Investments, L.L.C.
by Xxxx General Partnership, Inc.
By: /s/ Xxx Xxxxxxxx
--------------------------------
Name:
Title:
XXXXX X. XXXX
-----------------------------------
Xxxxx X. Xxxx, individually
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IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties as of the date first above written.
SAMSTOCK, L.L.C.
by SZ Investments, L.L.C.
by Xxxx General Partnership, Inc.
By:
--------------------------------
Name:
Title:
XXXXX X. XXXX
/s/ Xxxxx X. Xxxx
-----------------------------------
Xxxxx X. Xxxx, individually
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