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EXHIBIT 3
STOCK PURCHASE AGREEMENT
BY AND AMONG
SAMSTOCK, L.L.C.,
▇▇▇▇▇▇ ▇. ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.,
▇▇▇▇▇ YORKE,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇,
AND
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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.............................................. 3
Section 3.1 Time and Place....................................... 3
Section 3.2 Deliveries by Management Shareholders................ 4
Section 3.3 Deliveries by the Purchaser.......................... 4
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF MANAGEMENT SHAREHOLDERS. 4
Section 4.1 Title to Stock....................................... 4
Section 4.2 Authority; Noncontravention.......................... 4
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF PURCHASER................ 5
Section 5.1 Organization......................................... 5
Section 5.2 Authority; Noncontravention.......................... 5
Section 5.3 Investment Intent.................................... 6
ARTICLE VI - CERTAIN AGREEMENTS........................................ 6
Section 6.1 No Solicitation...................................... 6
Section 6.2 Further Action....................................... 7
Section 6.3 Notification of Certain Matters...................... 7
Section 6.4 Public Announcements................................. 7
Section 6.5 Fees and Expenses.................................... 7
ARTICLE VII - CONDITIONS............................................... 8
Section 7.1 Conditions to Each Party's Obligation................ 8
Section 7.2 Condition to Obligations of Management Shareholders.. 8
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
Section 9.2 Indemnification by Purchaser.......................... 10
Section 9.3 Third-Party Claims.................................... 11
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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....................................... 13
Section 10.7 Amendments; Waivers.................................. 14
Section 10.8 Severability......................................... 14
Section 10.9 Consent to Jurisdiction.............................. 14
SCHEDULE I
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is made this 14th day of May, 1998 by and
among Samstock, L.L.C., a Delaware limited liability company ("Purchaser"),
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (each such individual being
referred to herein as a "Management Shareholder" and all such individuals being
referred to herein, collectively, as the "Management Shareholders").
WITNESSETH:
WHEREAS, each of the Management Shareholders wishes to sell to Purchaser,
and Purchaser wishes to purchase from each of the Management Shareholders, that
number of shares set forth next to such Management Shareholder's name on
Schedule I hereto (collectively, 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"), 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 and ▇▇▇▇▇ ▇. ▇▇▇▇ ("Hill") have
entered into a Stock Purchase Agreement pursuant to which Hill has agreed to
sell to Purchaser, and Purchaser has agreed to purchase from Hill, 500,000
shares of Company Common Stock and warrants to purchase 131,250 shares of
Company Common Stock (the "Hill Stock Purchase Agreement" and, together with
the Company Stock Purchase Agreement, the "Other Stock Purchase Agreements"),
upon the terms and subject to the conditions set forth in the Hill Stock
Purchase Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties agree as
follows:
ARTICLE IDEFINITIONS
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"
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(including, with correlative meanings, "controlled by" and "under common
control with") shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of management or policies, whether through the
ownership of securities or partnership or other ownership interests, by
contract or otherwise.
Section 1.2 "Agreement" shall mean this Agreement, including the Schedule
attached hereto and incorporated herein by this reference.
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 "Hill" shall have the meaning set forth in the introductory
clauses hereto.
Section 1.10 "HSR Act" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended.
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.
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Section 1.16 "Purchase Price shall have the meaning set forth in Section
2.2 hereof.
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 "Shares" shall have the meaning set forth in the introductory
clauses hereto.
Section 1.20 "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 1.21 "Surviving Provisions" shall have the meaning set forth in
Section 9.2 hereof.
Section 1.22 "takeover proposal" shall have the meaning set forth in
Section 6.2 hereof.
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, the Management
Shareholders shall sell, and Purchaser shall purchase from the Management
Shareholders, the Shares.
Section 2.2 Consideration. Upon the terms and subject to the conditions
set forth in this Agreement, at the Closing, Purchaser shall pay to the
Management Shareholders $3,469,200 in the aggregate, in the individual amounts
set forth next to such Management Shareholder's name on Schedule I hereto (the
"Purchase Price").
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 ▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇▇▇, P.C., ▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 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 the Management Shareholders may
agree. The date and time at which the Closing actually occurs is hereinafter
referred to as the "Closing Date."
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Section 3.2 Deliveries by Management Shareholders. At the Closing, the
Management Shareholders shall deliver the following to Purchaser.
(a) (i) 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; and
(b) all other documents, instruments and writings required to
be delivered by the Management Shareholders 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 the Management Shareholders:
(a) the Purchase Price, allocated among the Management
Shareholders as set forth on Schedule I hereto, by interbank
transfer of immediately available funds to accounts designated by
each Management Shareholder, respectively; and
(b) all other documents, instruments and writings required to
be delivered by Purchaser at or prior to the Closing Date pursuant
to this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF MANAGEMENT SHAREHOLDERS
Each of the Management Shareholders, severally and not jointly, represents
and warrants to Purchaser as follows:
Section 4.1 Title to Stock. On the Closing Date, such Management
Shareholder will own the Shares to be transferred by such Management
Shareholder hereunder, free and clear of all Liens. At the Closing, Purchaser
will acquire good and marketable title to the Shares being transferred by such
Management Shareholder, free and clear of all Liens.
Section 4.2 Authority; Noncontravention. Such Management 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 such Management Shareholder and constitutes
a valid and binding obligation of such Management Shareholder, enforceable
against such Management 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 such Management 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,
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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 such Management Shareholder under (i) any loan or credit agreement,
note, bond, mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise or license applicable to such Management Shareholder or
such Management Shareholder's 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 such Management Shareholder or such Management Shareholder's
properties or assets of which such Management Shareholder is aware, other than,
in the case of clauses and (ii), any such conflicts, violations, defaults,
rights or Liens, that individually or in the aggregate, would not (y) prevent
such Management 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 such
Management Shareholder in connection with the execution and delivery of this
Agreement by such Management Shareholder or the consummation by such Management
Shareholder of the transactions contemplated by this Agreement, except (i) the
filing of a notification and report form by Hill 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 transactions contemplated by this
Agreement or otherwise prevent such Management Shareholder from performing such
Management Shareholder's obligations under this Agreement in any material
respect.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Management Shareholders 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
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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 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 1933, as amended.
ARTICLE VI
CERTAIN AGREEMENTS
Section 6.1 No Solicitation. Each Management Shareholder agrees that he
shall not, and shall not authorize any investment banker, attorney or other
advisor or representative of such Management 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 Hill 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
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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. Each of the Management Shareholders will immediately cease and
cause to be terminated any existing activities, discussions or negotiations by
such Management Shareholder or any investment bankers, attorneys or other
advisors or representatives of such Management Shareholder with any parties
conducted heretofore on such Management 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, each of the Management
Shareholders will, at such Management Shareholder's 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. The Management Shareholders
shall give prompt notice to Purchaser, and Purchaser shall give prompt notice
to the Management Shareholders, 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 any Management 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.
Section 6.4 Public Announcements. The Management Shareholders 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 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 the fees and expenses of the Management
Shareholders may be paid by the Company.
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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 no Management Shareholder or
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.
Section 7.2 Condition to Obligations of Management Shareholders. The
obligations of the Management Shareholders 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
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date), and the Management Shareholders shall have received a certificate
signed on behalf of Purchaser by an executive officer thereof to such
effect.
(b) The Management Shareholders shall have received an opinion of
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, P.C., in form and substance reasonably
satisfactory to the Management Shareholders.
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) The Management Shareholders shall have performed in all material
respects all agreements and covenants required to be performed by the
Management Shareholders under this Agreement at or prior to the Closing
Date, and the representations and warranties of each Management
Shareholder contained in this Agreement that are qualified as to
materiality shall be true and correct and the representations and
warranties of each Management 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 each of the Management Shareholders
to such effect.
(b) Purchaser shall have received an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, 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 the Management
Shareholders; or
(b) by either Purchaser or the Management Shareholders:
(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);
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(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 the Management
Shareholders) 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 the Management Shareholders 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 any
of the Management Shareholders 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 the
Management Shareholders to Purchaser in this Agreement and the representations
and warranties given by Purchaser to the Management Shareholders in this
Agreement shall survive the Closing indefinitely and shall not terminate.
Section 9.2 Indemnification by Purchaser or Management Shareholders: (a)
From and after the Closing Date, Purchaser shall indemnify and hold harmless
the Management Shareholders and each of the Management Shareholders' heirs,
executors, successors and assigns from and against any and all damages, claims,
losses, expenses, costs, obligations and
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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, the Management Shareholders 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 (collectively, the
"Purchaser Group") 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 any Management 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 any Management Shareholder contained in this
Agreement. Notwithstanding the foregoing, in no event shall any Management
Shareholder be required to indemnify and hold harmless any member of the
Purchaser Group for a breach of any representation, warranty, covenant or
agreement of any other Management Shareholder.
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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15
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):
12
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16
(a) If to Purchaser:
Samstock, L.L.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: F. ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: 312.454.1671
with a copy to:
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy Number: 312.454.0335
(b) If to the Management Shareholders, to:
Davel Communications Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
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 ▇▇▇▇▇▇ ▇▇▇▇ or an Affiliate of any one or more trusts
established for the benefit of ▇▇▇▇▇▇ ▇▇▇▇ and/or members of his family without
the consent of any other party; provided that such assignment shall not relieve
Purchaser of its 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.
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 anyway the meaning or interpretation of this Agreement. All
references to a Section, Article, schedule or Exhibit contained herein mean
Sections, Articles, Schedules or Exhibits of this Agreement unless otherwise
stated. All capitalized terms defined herein are equally applicable to both
the singular and plural forms of such terms.
Whenever the words "include", "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation".
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17
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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18
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 ▇▇▇▇ General Partnership, Inc.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, individually
▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, individually
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.,
individually
▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ Yorke, individually
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, individually
▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, individually
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, individually
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19
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 ▇▇▇▇ General Partnership, Inc.
By:
--------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, individually
▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, individually
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.,
individually
▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ Yorke, individually
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, individually
▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, individually
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, individually
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20
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 ▇▇▇▇ General Partnership, Inc.
By:
--------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, individually
▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, individually
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.,
individually
▇▇▇▇▇ YORKE
/s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ Yorke, individually
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, individually
▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, individually
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, individually
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21
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 ▇▇▇▇ General Partnership, Inc.
By:
--------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, individually
▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, individually
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.,
individually
▇▇▇▇▇ YORKE
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇, individually
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, individually
▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, individually
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, 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 ▇▇▇▇ General Partnership, Inc.
By:
--------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, individually
▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, individually
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.,
individually
▇▇▇▇▇ YORKE
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇, individually
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, individually
▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, individually
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, individually
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23
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 ▇▇▇▇ General Partnership, Inc.
By:
--------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, individually
▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, individually
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.
-----------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇.,
individually
▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ Yorke, individually
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, individually
▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, individually
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, individually
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24
SCHEDULE I
Name No. of Shares Purchase Price
---- ------------- --------------
▇▇▇▇▇▇ ▇. ▇▇▇▇ 38,000 $1,064,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ 5,900 165,200
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. 8,000 224,000
▇▇▇▇▇ ▇▇▇▇▇ 18,000 504,000
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 22,550 631,400
▇▇▇▇▇▇▇ ▇▇▇▇▇ 21,450 600,600
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 10,000 280,000
------------- --------------
Total 123,900 $3,469,200
Page 85 of 134