\nARTICLE 10 GENERAL PROVISIONS…………………………
\n 10.1 Nonsurvival of Representations and Warranties…….
\n 10.2 Notices………………………………………
\n 10.3 Definitions…………………………………..
\n 10.4 Interpretation………………………………..
\n 10.5 Counterparts………………………………….
\n 10.6 Entire Agreement; No Third-Party Beneficiaries……
\n 10.7 Governing Law…………………………………
\n 10.8 Assignment……………………………………
\n 10.9 Enforcement…………………………………..
\n 10.10 Severability………………………………….
\n<\/c><\/s><\/caption>\n<\/table>\n 5<\/p>\n
AGREEMENT AND PLAN OF MERGER<\/p>\n
THIS AGREEMENT AND PLAN OF MERGER (the “Agreement”) is entered into as of
\nOctober 19, 2000 by and between Berkshire Hathaway Inc., a Delaware corporation
\n(“Investor”), SII Acquisition, Inc., a Georgia corporation and, at the time of
\nexecution of this Agreement, a wholly owned direct subsidiary of Investor
\n(“Merger Sub”) and Shaw Industries, Inc., a Georgia corporation (the “Company”).<\/p>\n
RECITALS<\/p>\n
WHEREAS, each of the Board of Directors of the Company and the Special
\nCommittee (as defined in Section 4.19) has determined that it is in the best
\ninterests of the Company and its stockholders for the Company to merge with
\nMerger Sub pursuant to the terms and conditions set forth herein;<\/p>\n
WHEREAS, the Board of Directors of the Company has heretofore taken the
\nactions referred to in Section 4.14 relating to the Takeover Statutes (as
\ndefined in Section 4.14) and the actions referred to in Section 4.15 relating to
\nthe Company Rights Agreement (as defined in Section 4.15);<\/p>\n
WHEREAS, the Board of Directors of each of Merger Sub and the Company has
\napproved, and deems it advisable, that Merger Sub merge with and into the
\nCompany, with the result that each holder of a share of Common Stock, no par
\nvalue per share, of the Company (the “Common Stock”), together with the
\nassociated rights (the “Rights”) under the Company Rights Agreement (as defined
\nin Section 4.15) (throughout this Agreement, each reference to a share of Common
\nStock referring to such share of Common Stock together with the associated
\nRights), issued and outstanding immediately prior to the Effective Time (as
\ndefined in Section 1.1(b)) will be entitled to receive a cash payment in
\nexchange for such share, upon the terms and subject to the conditions set forth
\nherein (except for shares of Common Stock owned by the Company or any subsidiary
\nof the Company or by Merger Sub, which, as provided in Section 3.2(a), shall be
\ncancelled without any such payment);<\/p>\n
WHEREAS, the Merger and this Agreement require the approval thereof by a
\nmajority of the votes entitled to be cast thereon by holders of the outstanding
\nshares of Common Stock entitled to vote thereon, voting together as a single
\nclass (the “Company Stockholder Approval”);<\/p>\n
WHEREAS, the Board of Directors of the Company recommends approval and
\nadoption of the Merger and this Agreement by the holders of the outstanding
\nshares of Common Stock entitled to vote thereon;<\/p>\n
WHEREAS, in order to induce Merger Sub and Investor to enter into this
\nAgreement, as a condition to, and concurrently with the execution of, this
\nAgreement, certain beneficial owners of Common Stock are entering into a voting
\nagreement with Merger Sub and Investor (the “Voting Agreement”) in the form
\nattached hereto as Exhibit A;<\/p>\n
WHEREAS, in order to induce Investor to enter into this Agreement, as a
\ncondition to, and concurrently with the execution of, this Agreement, certain
\nbeneficial owners of Common Stock and certain holders of Company Stock Options
\n(as defined in Section 3.2(d)) are entering into a Contribution and
\nParticipation Agreement (the “Contribution Agreement”) with Investor, in the
\nform attached hereto as Exhibit B; and<\/p>\n
WHEREAS, concurrently with the execution of this Agreement, the Voting
\nAgreement and the Contribution Agreement, Investor is entering into a voting
\nagreement with the Company (the “Investor Voting Agreement”), in the form
\nattached hereto as Exhibit C, with respect to certain shares of Common Stock
\nwhich are subject to the Contribution Agreement and for which Investor is being
\ngranted a proxy pursuant to the Voting Agreement;<\/p>\n
1
\n 6<\/p>\n
NOW, THEREFORE, in consideration of the representations, warranties,
\ncovenants and agreements contained in this Agreement, the parties agree as
\nfollows:<\/p>\n
ARTICLE 1<\/p>\n
THE MERGER; CLOSING<\/p>\n
1.1 The Merger.<\/p>\n
(a) Upon the terms and subject to the conditions set forth in this
\n Agreement and in accordance with the Georgia Business Corporation Code (the
\n “GBCC”), at the Effective Time, Merger Sub shall be merged with and into
\n the Company (the “Merger”) and the Company shall be the surviving
\n corporation in the Merger (sometimes hereinafter referred to as the
\n “Surviving Corporation”) and shall continue its corporate existence under
\n the laws of the State of Georgia.<\/p>\n
(b) Upon the terms and subject to the conditions of this Agreement, on
\n the Closing Date (as defined below), the Company and Merger Sub shall cause
\n a certificate of merger (the “Certificate of Merger”) to be executed and
\n filed with the Secretary of State of the State of Georgia in accordance
\n with the GBCC. The Merger shall become effective at such time as the
\n Certificate of Merger is filed with the Secretary of State of the State of
\n Georgia in accordance with the GBCC, or at such later time as may be agreed
\n to by Merger Sub and the Company and specified in the Certificate of Merger
\n in accordance with applicable law. The date and time when the Merger shall
\n become effective is referred to herein as the “Effective Time.”<\/p>\n
1.2 Closing. Unless this Agreement shall have been terminated and the
\ntransactions herein contemplated shall have been abandoned pursuant to Section
\n9.1, and subject to the satisfaction or waiver of the conditions set forth in
\nArticle 8, the closing (the “Closing”) of the Merger will take place at 10:00
\na.m. local time on the second business day immediately following the date on
\nwhich the last of the conditions set forth in Article 8 hereof is satisfied or
\nwaived (the “Closing Date”), at the offices of Powell, Goldstein, Frazer & Murphy LLP, Sixteenth Floor, 191 Peachtree, N.E., Atlanta, Georgia 30303, unless
\nanother date, time or place is agreed to in writing by the parties hereto.<\/p>\n
ARTICLE 2<\/p>\n
EFFECTS OF THE MERGER<\/p>\n
2.1 Effects of the Merger. The Merger shall have the effects set forth in
\nthe GBCC.<\/p>\n
2.2 Articles of Incorporation; Bylaws. The Articles of Incorporation of
\nthe Company as in effect at the Effective Time shall be the Articles of
\nIncorporation of the Surviving Corporation but shall be amended, immediately
\nafter the filing of the Certificate of Merger, to conform to the Articles of
\nIncorporation of Merger Sub, and shall be the Articles of Incorporation of the
\nSurviving Corporation until thereafter changed or amended as provided therein or
\nby applicable law. The Bylaws of Merger Sub as in effect at the Effective Time
\nshall be the Bylaws of the Surviving Corporation until thereafter changed or
\namended as provided therein or in the Articles of Incorporation or by applicable
\nlaw.<\/p>\n
2.3 Directors. The directors of Merger Sub immediately prior to the
\nEffective Time shall be the directors of the Surviving Corporation as of the
\nEffective Time until the earlier of their resignation or removal or until their
\nrespective successors are duly appointed or elected in accordance with
\napplicable law.<\/p>\n
2.4 Officers. The officers of the Company immediately prior to the
\nEffective Time shall be the officers of the Surviving Corporation as of the
\nEffective Time until the earlier of their resignation or removal or until their
\nrespective successors are duly appointed or elected in accordance with
\napplicable law.<\/p>\n
2
\n 7<\/p>\n
ARTICLE 3<\/p>\n
EFFECT OF THE MERGER ON SECURITIES OF THE COMPANY AND MERGER SUB<\/p>\n
3.1 Merger Sub Stock. At the Effective Time, by virtue of the Merger, each
\nshare of the common stock of Merger Sub outstanding immediately prior to the
\nEffective Time shall be converted into and shall become one share of common
\nstock of the Surviving Corporation.<\/p>\n
3.2 Effect on the Common Stock. At the Effective Time, by virtue of the
\nMerger and without any action on the part of the holder of any shares of the
\nCommon Stock:<\/p>\n
(a) Cancellation of Treasury Stock and Merger Sub-Owned Common
\n Stock. Each share of Common Stock that is owned by the Company or any
\n subsidiary of the Company and each share of Common Stock that is owned by
\n Merger Sub shall automatically be canceled and retired and shall cease to
\n exist, and no cash or other consideration shall be delivered or deliverable
\n in exchange therefor.<\/p>\n
(b) Conversion of the Common Stock. Except as otherwise provided
\n herein and subject to Sections 3.3 and 3.4, at the Effective Time each
\n issued and outstanding share of Common Stock shall be converted into and
\n represent the right to receive cash in the amount of $19.00 (the “Per Share
\n Amount”) payable to the holder thereof, without interest.<\/p>\n
(c) Cancellation and Retirement of the Common Stock. All shares of
\n the Common Stock issued and outstanding immediately prior to the Effective
\n Time shall no longer be outstanding and shall automatically be canceled and
\n retired and shall cease to exist, and each holder of a certificate
\n representing any such shares of Common Stock shall cease to have any rights
\n with respect thereto, except, other than for shares referred to in Section
\n 3.2(a) and Section 3.4, the right to receive cash in accordance with
\n Section 3.2(b) to be paid in consideration therefor upon surrender of such
\n certificate in accordance with Section 3.3.<\/p>\n
(d) Stock Option Plans.<\/p>\n
(i) The Company shall take all actions necessary to provide that,
\n immediately prior to the Effective Time, (x) each outstanding option to
\n acquire shares of Common Stock (the “Company Stock Options”) granted
\n under any of the Company’s 1987 Incentive Stock Option Plan, 1992
\n Incentive Stock Option Plan, 1997 Stock Incentive Plan, or 2000 Stock
\n Incentive Plan (collectively, the “Option Plans”), whether or not then
\n exercisable or vested, shall become fully exercisable and vested, (y)
\n each Company Stock Option which is then outstanding shall be canceled
\n and (z) in consideration of such cancellation, and except to the extent
\n that Merger Sub and the holder of any Company Stock Option otherwise
\n agree in writing, the Company (or, at Merger Sub’s election, the
\n Surviving Corporation) shall pay in cash to each holder of Company Stock
\n Options an amount in respect thereof equal to the product of (A) the
\n excess, if any, for each Company Stock Option, of the Per Share Amount
\n over the per share exercise price thereof and (B) the number of shares
\n of Common Stock subject thereto (such payment to be net of applicable
\n withholding taxes).<\/p>\n
(ii) (A) The Option Plans, the Company Stock Options and any other
\n plan, program, agreement or arrangement providing for the issuance or
\n grant of any interest in respect of the capital stock of the Company or
\n any subsidiary (collectively, the “Stock Plans”) shall terminate as of
\n the Effective Time, and (B) the Company shall ensure that following the
\n Effective Time no holder of a Company Stock Option nor any party to or
\n participant in any of the Stock Plans shall have any right thereunder to
\n acquire equity securities of the Company, the Surviving Corporation or
\n any of their respective subsidiaries.<\/p>\n
3.3 Exchange of Certificates.<\/p>\n
(a) Exchange Agent. Prior to the mailing of the Proxy Statement (as
\n defined in Section 7.1(a)) to the Company’s stockholders, Merger Sub shall
\n designate and appoint a bank or trust company reasonably satisfactory to
\n the Company to act as exchange agent (the “Exchange Agent”) to receive the
\n funds necessary to make the payments contemplated by Section 3.2(b).
\n Immediately following the<\/p>\n
8<\/p>\n
Effective Time, the Surviving Corporation shall cause the aggregate
\n consideration to which the holders of shares of Common Stock are entitled
\n pursuant to Section 3.2(b) to be deposited (the “Exchange Fund”) with the
\n Exchange Agent for the benefit of such holders, for exchange in accordance
\n with this Article 3. The Exchange Agent shall, pursuant to irrevocable
\n instructions, deliver such consideration out of the Exchange Fund to
\n holders of shares of Common Stock in accordance with this Article 3.<\/p>\n
(b) Exchange Procedures. As soon as practicable but no later than
\n three (3) business days after the Effective Time, the Surviving Corporation
\n shall cause the Exchange Agent to mail to each holder of an outstanding
\n certificate or certificates which prior thereto represented shares of
\n Common Stock (i) a letter of transmittal (which shall specify that delivery
\n shall be effected, and risk of loss and title to such certificate shall
\n pass, only upon delivery of such certificates to such Exchange Agent), and
\n (ii) instructions for use in effecting the surrender of the certificates
\n for the aggregate Per Share Amount relating thereto. Upon proper surrender
\n to the Exchange Agent of such certificates for cancellation, the holder of
\n such certificates shall after the Effective Time be entitled only to
\n payment in cash of the aggregate Per Share Amount relating thereto. The
\n Exchange Agent shall accept such certificates upon compliance with such
\n reasonable terms and conditions as the Exchange Agent may impose to effect
\n an orderly exchange thereof in accordance with normal exchange practices.
\n After the Effective Time, there shall be no further transfer on the records
\n of the Company or its transfer agent of certificates representing shares of
\n Common Stock and if such certificates are presented to the Company for
\n transfer, they shall be canceled against delivery of cash as provided in
\n Section 3.2(b) and this Section 3.3(b). If a payment of cash pursuant
\n hereto is to be remitted to a name other than that in which the certificate
\n for Common Stock surrendered for exchange is registered, it shall be a
\n condition of such exchange that the certificate so surrendered shall be
\n properly endorsed, with signature guaranteed, or otherwise in proper form
\n for transfer and that the person requesting such exchange shall pay to the
\n Surviving Corporation or its transfer agent any transfer or other taxes
\n required by reason of the remittance of cash in a name other than that of
\n the registered holder of the certificate surrendered, or establish to the
\n satisfaction of the Surviving Corporation or its transfer agent that such
\n tax has been paid or is not applicable. Until surrendered as contemplated
\n by this Section 3.3(b), except as provided in Section 3.4 hereof, each
\n certificate for shares of Common Stock shall be deemed at any time after
\n the Effective Time to represent only the right to receive upon such
\n surrender the aggregate Per Share Amount relating thereto. No interest will
\n be paid or will accrue on the aggregate Per Share Amount payable pursuant
\n to this Agreement.<\/p>\n
(c) No Further Ownership Rights in Common Stock. All cash paid
\n pursuant to Section 3.3(b) upon the surrender for exchange of certificates
\n representing shares of Common Stock in accordance with the terms of this
\n Article 3 shall be deemed to have been paid in full satisfaction of all
\n rights pertaining to the shares of Common Stock theretofore represented by
\n such certificates.<\/p>\n
(d) Termination of Exchange Fund. Any portion of the Exchange Fund
\n which remains undistributed to the holders of the certificates representing
\n shares of the Common Stock for twelve months after the Effective Time shall
\n be delivered to the Surviving Corporation, upon demand, and any holders of
\n shares of Common Stock who have not theretofore complied with this Article
\n 3 shall thereafter look only to the Surviving Corporation and only as
\n general creditors thereof for payment of their claim for the applicable Per
\n Share Amount.<\/p>\n
(e) No Liability. None of Merger Sub, the Company or the Exchange
\n Agent shall be liable to any person in respect of any cash from the
\n Exchange Fund delivered to a public official pursuant to any applicable
\n abandoned property, escheat or similar law. If any certificates
\n representing shares of Common Stock shall not have been surrendered prior
\n to five years after the Effective Time (or immediately prior to such
\n earlier date on which any cash payable pursuant to Section 3.2(b) would
\n otherwise escheat to or become the property of any Governmental Entity (as
\n defined in Section 4.4(a)), any such cash in respect of such certificate
\n shall, to the extent permitted by applicable law, become the property of
\n the Surviving Corporation, free and clear of all claims or interest of any
\n person previously entitled thereto.<\/p>\n
9<\/p>\n
(f) Investment of Exchange Fund. The Exchange Agent shall invest the
\n cash included in the Exchange Fund as directed by the Surviving Corporation
\n on a daily basis. Any interest and other income resulting from such
\n investments shall be paid to the Surviving Corporation.<\/p>\n
(g) Lost Certificates. If any certificate that prior to the Effective
\n Time represented shares of Common Stock shall have been lost, stolen or
\n destroyed, upon the making of an affidavit of that fact by the person
\n claiming such certificate to be lost, stolen or destroyed and, if required
\n by the Surviving Corporation, the posting by such person of a bond in such
\n reasonable amount as the Surviving Corporation may direct as indemnity
\n against any claim that may be made against it with respect to such
\n certificate, the Exchange Agent will deliver in exchange for such lost,
\n stolen or destroyed certificate the applicable Per Share Amount payable
\n pursuant to this Agreement with respect to the shares of Common Stock
\n formerly represented by such certificate.<\/p>\n
3.4 Dissenting Shares. Notwithstanding anything in this Agreement to the
\ncontrary, shares of Common Stock which are issued and outstanding immediately
\nprior to the Effective Time and which are held by holders of such shares of
\nCommon Stock who have properly exercised dissenter’s rights with respect thereto
\n(“Dissenting Common Stock”) in accordance with Sections 14-2-1321 and 14-2-1323
\nof the GBCC, shall not be exchangeable for the right to receive cash pursuant to
\nSection 3.2(b), and holders of such shares of Dissenting Common Stock shall be
\nentitled to receive payment of the fair value of such shares of Dissenting
\nCommon Stock in accordance with the provisions of Article 13 of the GBCC unless
\nand until such holders fail to perfect or effectively withdraw or otherwise lose
\ntheir rights to demand payment under the GBCC. If, after the Effective Time, any
\nsuch holder fails to perfect or effectively withdraws or loses such right, such
\nshares of Dissenting Common Stock shall thereupon be treated as if they had been
\nconverted into and have become exchangeable for, at the Effective Time, the
\nright to receive the aggregate Per Share Amount relating thereto, without any
\ninterest thereon. Notwithstanding anything to the contrary contained in this
\nSection 3.4, if the Merger is rescinded or abandoned, then the right of any
\nstockholder to be paid the fair value of such stockholder’s Dissenting Common
\nStock pursuant to Article 13 of the GBCC shall cease. The Company shall give
\nInvestor prompt notice of any demands received by the Company for payment for
\nshares of Dissenting Common Stock. The Company shall not, except with the prior
\nwritten consent of Investor, make any payment with respect to any demands for
\nappraisals or offer to settle or settle any such demands.<\/p>\n
ARTICLE 4<\/p>\n
REPRESENTATIONS AND WARRANTIES OF THE COMPANY<\/p>\n
The Company represents and warrants to Merger Sub and Investor as follows:<\/p>\n
4.1 Corporate Organization. Each of the Company and its subsidiaries is a
\ncorporation duly organized, validly existing and in good standing under the laws
\nof the jurisdiction of its organization and has the requisite corporate power
\nand authority to own or lease all of its properties and assets and to carry on
\nits business as it is now being conducted. Each of the Company and its
\nSignificant Subsidiaries (as defined below) is duly licensed or qualified to do
\nbusiness in each jurisdiction in which the nature of the business conducted by
\nit or the character or location of the properties and assets owned or leased by
\nit makes such licensing or qualification necessary, except where the failure to
\nbe so licensed or qualified would not reasonably be expected to have, when
\naggregated with all other such failures, a Material Adverse Effect (as defined
\nbelow) on the Company (“Company Material Adverse Effect”). As used in this
\nAgreement, the term “Material Adverse Effect” means, a material adverse effect
\non the business, operations or financial condition of such party and its
\nsubsidiaries taken as a whole or a material adverse effect on the party’s
\nability to consummate the transactions contemplated hereby; provided, however,
\nthat a “Material Adverse Effect” shall not include any of the following or any
\ncombination of the following: any change or effect resulting from or
\nattributable to (A) general national, international or regional economic or
\nfinancial conditions, (B) other developments which are not unique to such party
\nand its subsidiaries, but also affect other persons who engage in the lines of
\nbusiness in which such party or its subsidiaries are engaged, or (C) the
\nannouncement or pendency of this Agreement or the transactions contemplated
\nhereby (including, if resulting therefrom, employee attrition and delay,
\nreduction or cancellation or change in the terms of orders or purchases from or
\nother transactions with
\n 10<\/p>\n
the Company or its subsidiaries). As used in this Agreement, (i) the word
\n“subsidiary” when used with respect to any party means any corporation,
\npartnership or other organization, whether incorporated or unincorporated, of
\nwhich at least a majority of the securities or other interests having by their
\nterms voting power to elect a majority of the Board of Directors or others
\nperforming similar functions with respect to such corporation or other
\norganization is directly or indirectly beneficially owned or controlled by such
\nparty or by any one or more of its subsidiaries, or by such party and one or
\nmore of its subsidiaries, and (ii) “Significant Subsidiary” has the meaning
\ngiven such term in Rule 405 of the Securities Act of 1933, as amended (the
\n“Securities Act”). The copies of the Articles of Incorporation and Bylaws of the
\nCompany (the “Company Articles” and “Company Bylaws”), as most recently filed
\nwith the Company’s SEC Documents (as hereinafter defined), are true, complete
\nand correct copies of such documents as in effect as of the date of this
\nAgreement.<\/p>\n
4.2 Capitalization.<\/p>\n
(a) The authorized capital stock of the Company consists of
\n 500,000,000 shares of Common Stock and 250,000 shares of preferred stock,
\n no par value per share (“Preferred Stock”), of which 200,000 shares are
\n designated Series A Participating Preferred Stock. At the close of business
\n on September 30, 2000, there were 123,983,208 shares of Common Stock issued
\n and outstanding, no shares of Preferred Stock issued and outstanding, and
\n 5,728,866 shares of Company Common Stock issuable upon the exercise of
\n outstanding Company Stock Options pursuant to the Option Plans. Except as
\n set forth in Section 4.2(a) of the disclosure schedule of the Company
\n delivered to Merger Sub concurrently herewith (the “Company Disclosure
\n Schedule”), all of the issued and outstanding shares of Common Stock have
\n been duly authorized and validly issued and are fully paid, nonassessable
\n and free of preemptive rights. Except as set forth in Section 4.2(a) of the
\n Company Disclosure Schedule or pursuant to the Company’s Outside Directors
\n Stock Plan, since December 31, 1999, the Company has not issued any shares
\n of its capital stock or any securities convertible into or exercisable for
\n any shares of its capital stock, other than pursuant to the exercise of
\n Company Stock Options pursuant to the Option Plans. Except as set forth
\n above or in Section 4.2(a) of the Company Disclosure Schedule, as of the
\n date of this Agreement there are not and, as of the Effective Time there
\n will not be, any shares of capital stock issued and outstanding or any
\n subscriptions, options, warrants, calls, commitments or agreements of any
\n character calling for the purchase or issuance of any securities of the
\n Company, including any securities representing the right to purchase or
\n otherwise receive any Common Stock (other than the Rights).<\/p>\n
(b) Except as set forth in Section 4.2(b) of the Company Disclosure
\n Schedule, the Company owns, directly or indirectly, all of the issued and
\n outstanding shares of capital stock of each of its Significant
\n Subsidiaries, free and clear of any liens, charges, encumbrances, adverse
\n rights or claims and security interests whatsoever (“Liens”) which would
\n reasonably be expected to have, in the aggregate, a Company Material
\n Adverse Effect, and all of such shares are duly authorized and validly
\n issued and are fully paid, nonassessable and free of preemptive rights.
\n None of the Company’s Significant Subsidiaries has or is bound by any
\n outstanding subscriptions, options, warrants, calls, commitments or
\n agreements of any character calling for the purchase or issuance of any
\n security of such Significant Subsidiary, including any securities
\n representing the right to purchase or otherwise receive any shares of
\n capital stock or any other equity security of such Significant Subsidiary.<\/p>\n
4.3 Authority.<\/p>\n
(a) The Company has all necessary corporate power and authority to
\n execute and deliver this Agreement and, subject to the Company Stockholder
\n Approval with respect to consummation of the Merger, to consummate the
\n transactions contemplated hereby. The execution, delivery and performance
\n by the Company of this Agreement, and the consummation by it of the
\n transactions contemplated hereby, have been duly authorized by its Board of
\n Directors and the Special Committee and, except for obtaining the Company
\n Stockholder Approval with respect to the consummation of the Merger, no
\n other corporate action on the part of the Company is necessary to authorize
\n the execution and delivery by the Company of this Agreement and the
\n consummation by it of the transactions contemplated hereby. This Agreement
\n has been duly executed and delivered by the Company and, assuming due and
\n valid authorization,<\/p>\n
11<\/p>\n
execution and delivery hereof by the other parties thereto, constitutes a
\n valid and binding obligation of the Company enforceable against the Company
\n in accordance with its terms, except that such enforceability (i) may be
\n limited by bankruptcy, insolvency, moratorium or other similar laws
\n affecting or relating to the enforcement of creditors’ rights generally and
\n (ii) is subject to general principles of equity.<\/p>\n
(b) Each of the Board of Directors of the Company and the Special
\n Committee has approved and taken all corporate action required to be taken
\n by the Board of Directors or the Special Committee for the consummation by
\n the Company of the transactions contemplated by this Agreement.<\/p>\n
4.4 Consents and Approvals; No Violations.<\/p>\n
(a) Except for (i) the consents and approvals set forth in Section
\n 4.4(a) of the Company Disclosure Schedule, (ii) the filing with the
\n Securities and Exchange Commission (the “SEC”) of the Proxy Statement,
\n (iii) the filing of the Certificate of Merger with the Secretary of State
\n of the State of Georgia pursuant to the GBCC, and (iv) filings, permits,
\n authorizations, consents and approvals as may be required under, and other
\n applicable requirements of, the Securities Exchange Act of 1934, as amended
\n (the “Exchange Act”), and the Hart-Scott-Rodino Antitrust Improvements Act
\n of 1976, as amended (the “HSR Act”), and any similar requirements of
\n foreign jurisdictions, no consents or approvals of, or filings,
\n declarations or registrations with, any federal, state or local court,
\n administrative or regulatory agency or commission or other governmental
\n authority or instrumentality, domestic or foreign (each a “Governmental
\n Entity”), are necessary for the consummation by the Company of the
\n transactions contemplated hereby, other than such other consents,
\n approvals, filings, declarations or registrations that, if not obtained,
\n made or given, would not reasonably be expected to have, in the aggregate,
\n a Company Material Adverse Effect.<\/p>\n
(b) Except as set forth in Section 4.4(b) of the Company Disclosure
\n Schedule, neither the execution and delivery of this Agreement by the
\n Company nor the consummation by the Company of the transactions
\n contemplated hereby, nor compliance by the Company with any of the terms or
\n provisions hereof, will (i) conflict with or violate any provision of the
\n Company Articles or Company Bylaws or any of the organizational documents
\n of any of its Significant Subsidiaries or (ii) assuming that the
\n authorizations, consents and approvals referred to in Section 4.4(a) and
\n the Company Stockholder Approval are duly obtained in accordance with the
\n GBCC, (x) violate any statute, code, ordinance, rule, regulation, judgment,
\n order, writ, decree or injunction applicable to the Company or any of its
\n subsidiaries or any of their respective properties or assets, or (y)
\n violate, conflict with, result in the loss of any material benefit under,
\n constitute a default (or an event which, with notice or lapse of time, or
\n both, would constitute a default) under, result in the termination of or a
\n right of termination or cancellation under, accelerate the performance
\n required by, or result in the creation of any Lien upon any of the
\n respective properties or assets of the Company or any of its subsidiaries
\n under, any of the terms, conditions or provisions of any note, bond,
\n mortgage, indenture, deed of trust, license, lease, agreement or other
\n instrument or obligation to which the Company or any of its subsidiaries is
\n a party, or by which they or any of their respective properties or assets
\n may be bound or affected, except, in the case of clause (ii) above, for
\n such violations, conflicts, breaches, defaults, losses, terminations of
\n rights thereof, accelerations or Lien creations which, in the aggregate,
\n would not reasonably be expected to have a Company Material Adverse Effect.<\/p>\n
4.5 SEC Documents; Undisclosed Liabilities. The Company has filed all
\nrequired reports, schedules, forms and registration statements with the SEC
\nsince January 1, 1998 (collectively, and in each case including all exhibits and
\nschedules thereto and documents incorporated by reference therein, the “SEC
\nDocuments”). As of their respective dates, the SEC Documents complied in all
\nmaterial respects with the requirements of the Securities Act or the Exchange
\nAct, as the case may be, and the rules and regulations of the SEC promulgated
\nthereunder applicable to such SEC Documents, and none of the SEC Documents
\n(including any and all financial statements included therein) as of such dates
\ncontained any untrue statement of a material fact or omitted to state a material
\nfact required to be stated therein or necessary in order to make the statements
\ntherein, in light of the circumstances under which they were made, not
\nmisleading. The consolidated financial statements of the Company included in the
\nSEC Documents comply as to form in all<\/p>\n
12<\/p>\n
material respects with applicable accounting requirements and the published
\nrules and regulations of the SEC with respect thereto, have been prepared in
\naccordance with generally accepted accounting principles (except, in the case of
\nunaudited consolidated quarterly statements, as permitted by Form 10-Q of the
\nSEC) applied on a consistent basis during the periods involved (except as may be
\nindicated in the notes thereto) and fairly present in all material respects the
\nconsolidated financial position of the Company and its consolidated subsidiaries
\nas of the dates thereof and the consolidated results of their operations and
\ncash flows for the periods then ended (subject, in the case of unaudited
\nquarterly statements, to normal year-end audit adjustments). Except as set forth
\non Section 4.5 of the Company Disclosure Schedule, since December 31, 1999,
\nneither the Company nor any of its subsidiaries, has incurred any liabilities or
\nobligations of any nature (whether accrued, absolute, contingent or otherwise)
\nrequired, if known, to be reflected or reserved against on a consolidated
\nbalance sheet of the Company prepared in accordance with GAAP except (i) as and
\nto the extent set forth or reflected on the audited balance sheet of the Company
\nand its subsidiaries as of December 31, 1999 (including the notes thereto), (ii)
\nas incurred in connection with the transactions contemplated by this Agreement,
\n(iii) as incurred after December 31, 1999 in the ordinary course of business and
\nconsistent with past practice, (iv) as described in the SEC Documents filed
\nsince December 31, 1999 (the “Recent SEC Documents”), or (v) as would not,
\nindividually or in the aggregate, have a Company Material Adverse Effect.<\/p>\n
4.6 Broker’s Fees. Neither the Company nor any subsidiary of the Company
\nnor any of their respective officers or directors on behalf of the Company or
\nsuch subsidiaries, including the Special Committee, has employed any financial
\nadvisor, broker or finder or incurred any liability for any broker’s fees,
\ncommissions or finder’s fees in connection with any of the transactions
\ncontemplated hereby, other than Merrill Lynch & Co., the fees and expenses of
\nwhich will be paid by the Company (pursuant to an engagement letter, a copy of
\nwhich has been furnished to Merger Sub and Investor).<\/p>\n
4.7 Absence of Certain Changes or Events. Except as disclosed in the SEC
\nDocuments filed prior to the date hereof or as set forth in Section 4.7 of the
\nCompany Disclosure Schedule, since December 31, 1999, (a) no events have
\noccurred which would reasonably be expected to have, in the aggregate, a Company
\nMaterial Adverse Effect and (b) the Company and its subsidiaries have carried on
\nand operated their respective businesses in all material respects in the
\nordinary course of business consistent with past practice, except for such
\ndeviations of the Company’s business from the ordinary course of business which
\nwould not reasonably be expected to have, in the aggregate, a Company Material
\nAdverse Effect.<\/p>\n
4.8 Legal Proceedings.<\/p>\n
(a) Except as disclosed in the SEC Documents or in Section 4.8 of the
\n Company Disclosure Schedule, neither the Company nor any of its
\n subsidiaries is a party to any, and there are no pending legal,
\n administrative, arbitral or other proceedings, claims, actions or
\n governmental or regulatory investigations of any nature against the Company
\n or any of its subsidiaries or challenging the validity or propriety of the
\n transactions contemplated hereby, which proceedings, claims, actions, or
\n investigations, in the aggregate, would reasonably be expected to have a
\n Company Material Adverse Effect.<\/p>\n
(b) Except as set forth in the SEC Documents or in Section 4.8 of the
\n Company Disclosure Schedule, there is no injunction, order, judgment,
\n decree or regulatory restriction imposed upon the Company, any of its
\n subsidiaries or the assets of the Company or any of its subsidiaries which,
\n when aggregated with all other such injunctions, orders, judgments, decrees
\n and restrictions, would reasonably be expected to have a Company Material
\n Adverse Effect.<\/p>\n
4.9 Compliance with Applicable Law. Except as disclosed in Section 4.9 of
\nthe Company Disclosure Schedule, the Company and each of its subsidiaries hold
\nall material licenses, franchises, permits and authorizations necessary for the
\nlawful conduct of their respective businesses as presently conducted and are in
\ncompliance with the terms thereof, except where the failure to hold such
\nlicense, franchise, permit or authorization or such noncompliance would not,
\nwhen aggregated with all other such failures or noncompliance, reasonably be
\nexpected to have a Company Material Adverse Effect, and neither the Company nor
\nany of its subsidiaries knows of, or has received notice of, any material
\nviolations of any applicable law, statute, order, rule, regulation, policy
\nand\/or guideline of any Governmental Entity relating to the Company or any of<\/p>\n
13<\/p>\n
its subsidiaries, which, in the aggregate, would reasonably be expected to have
\na Company Material Adverse Effect.<\/p>\n
4.10 Company Information. None of the information supplied or to be
\nsupplied by the Company for inclusion or incorporation by reference in the Proxy
\nStatement or in any other document filed with any other Governmental Entity in
\nconnection herewith at the respective times filed with the SEC or such other
\nGovernmental Entity and first published, sent or given to stockholders of the
\nCompany and, in addition, in the case of the Proxy Statement, at the date it or
\nany amendment or supplement is mailed to holders of the shares of Common Stock,
\nand at the time of the Company Stockholders Meeting (as defined in Section
\n7.1(d) hereof), will contain any untrue statement of a material fact or omit to
\nstate a material fact necessary to make the statements therein, in light of the
\ncircumstances in which they are made, not misleading. No representation is made
\nby the Company with respect to statements made or incorporated by reference
\ntherein based on information supplied in writing by Merger Sub or Investor for
\ninclusion or incorporation by reference in the Proxy Statement. The Proxy
\nStatement will comply as to form in all material respects with the provisions of
\napplicable federal securities law.<\/p>\n
4.11 Opinion of Financial Advisor. The Special Committee has obtained the
\nopinion of Merrill Lynch & Co., dated as of the date of this Agreement and a
\ncopy of which has been provided to Merger Sub and Investor, to the effect that,
\nas of the date hereof, the Per Share Amount to be paid to holders of Common
\nStock (other than holders who are a party to the Contribution Agreement)
\npursuant to this Agreement is fair from a financial point of view to such
\nholders.<\/p>\n
4.12 Employee Matters. The Company has delivered or made available to
\nMerger Sub full and complete copies or descriptions of each material employment,
\nseverance, bonus, change-in-control, profit sharing, compensation, termination,
\nstock option, stock appreciation right, restricted stock, phantom stock,
\nperformance unit, pension, retirement, deferred compensation, welfare or other
\nemployee benefit agreement, trust fund or other arrangement and any union, guild
\nor collective bargaining agreement maintained or contributed to or required to
\nbe contributed to by the Company or any of its ERISA Affiliates (as defined
\nbelow), for the benefit or welfare of any director, officer, employee or former
\nemployee of the Company or any of its ERISA Affiliates (such plans and
\narrangements being collectively the “Company Benefit Plans”). Each of the
\nCompany Benefit Plans is in material compliance with all applicable laws
\nincluding ERISA and the Code except where such noncompliance would not
\nreasonably be expected to have a Company Material Adverse Effect. The Internal
\nRevenue Service has determined that each Company Benefit Plan that is intended
\nto be a qualified plan under Section 401(a) of the Code is so qualified and the
\nCompany is aware of no event occurring after the date of such determination that
\nwould adversely affect such determination. The liabilities accrued under each
\nsuch plan are reflected on the latest balance sheet of the Company included in
\nthe Recent SEC Documents in accordance with generally accepted accounting
\nprinciples applied on a consistent basis. No condition exists that is reasonably
\nlikely to subject the Company or any of its subsidiaries to any direct or
\nindirect liability under Title IV of ERISA or to a civil penalty under Section
\n502(j) of ERISA or liability under Section 4069 of ERISA or 4975, 4976, or 4980B
\nof the Code or the loss of a federal tax deduction under Section 280G of the
\nCode or other liability with respect to the Company Benefit Plans that would
\nhave a Company Material Adverse Effect and that is not reflected on such balance
\nsheet. There are no pending or to the Company’s knowledge, threatened, claims
\n(other than routine claims for benefits or immaterial claims) by, on behalf of
\nor against any of the Company Benefit Plans or any trusts related thereto except
\nwhere such claims would not reasonably be expected to have a Company Material
\nAdverse Effect. “ERISA Affiliate” means, with respect to any person, any trade
\nor business, whether or not incorporated, that together with such person would
\nbe deemed a “single employer” within the meaning of Section 4001(a)(15) of the
\nEmployee Retirement Income Security Act of 1974, as amended (“ERISA”).<\/p>\n
4.13 Environmental Matters. Except as set forth on Section 4.13 of the
\nCompany Disclosure Schedule, to the knowledge of the Company (a) there are no
\nlegal, administrative, arbitral or other proceedings, claims, actions, causes of
\naction, required environmental remediation activities, governmental
\ninvestigations of any nature seeking to impose, or that reasonably could be
\nexpected to result in the imposition, on the Company or any of its subsidiaries
\nof any liability or obligations arising under common law standards relating to
\nenvironmental protection, human health or safety, or under any local, state,
\nprovincial, federal or national
\n 14<\/p>\n
environmental statute, regulation or ordinance, including, without limitation,
\nthe Comprehensive Environmental Response, Compensation and Liability Act of
\n1980, as amended, and Mexico’s Ley General del Equilibrium Ecologico y la
\nProteccion al Ambiente (General Law of Ecological Equilibrium and Environmental
\nProtection) (collectively, “Environmental Laws”), pending or threatened, against
\nthe Company or any of its subsidiaries, which liability or obligation would have
\nor would reasonably be expected to have a Company Material Adverse Effect; (b)
\nduring or prior to the period of (i) its or any of its subsidiaries’ ownership
\nor operation of any of their respective current properties, (ii) its or any of
\nits subsidiaries’ participation in the management of any property, or (iii) its
\nor any of its subsidiaries’ holding of a security interest or other interest in
\nany property, there was no release or threatened release of hazardous, toxic,
\nradioactive or dangerous materials or other materials regulated under
\nEnvironmental Laws in, on, under or affecting any such property which would
\nreasonably be expected to have a Company Material Adverse Effect; and (c)
\nneither the Company nor any of its subsidiaries is subject to any agreement,
\norder, judgment, decree, letter or memorandum by or with any court, governmental
\nauthority, regulatory agency or third party imposing any material liability or
\nobligations pursuant to or under any Environmental Law that would have or would
\nreasonably be expected to have a Company Material Adverse Effect.<\/p>\n
4.14 Takeover Statutes. The Company has taken all actions necessary such
\nthat no restrictive provision of any “fair price,” “moratorium,” “control share
\nacquisition,” “interested shareholder” or other similar anti-takeover statute or
\nregulation known to the Company (after consultation with legal counsel) to apply
\nto the Merger or any other transaction contemplated by this Agreement
\n(including, without limitation, Section 14-2-1111 and Section 14-2-1132 of the
\nGBCC) (collectively, “Takeover Statutes”) or restrictive provision of any
\napplicable anti-takeover provision in the governing documents of the Company is,
\nor at the Effective Time will be, applicable to the Company, Merger Sub,
\nInvestor, the shares of Common Stock, the Merger or any other transaction
\ncontemplated by this Agreement.<\/p>\n
4.15 Rights Agreement. The Company has taken all action required so that
\nthe entering into of this Agreement, the Voting Agreement, the Contribution
\nAgreement, the Investor Voting Agreement, and the consummation of the
\ntransactions contemplated hereby and thereby do not and will not enable or
\nrequire the Rights to be separated from the shares of Common Stock with which
\nthe Rights are associated, or to be distributed, exercisable, exercised, or
\nnonredeemable or result in the Rights associated with any Common Stock
\nbeneficially owned by Investor or Merger Sub or any of their respective
\naffiliates or associates (as defined in that certain Amended and Restated Rights
\nAgreement, dated as of April 10, 1999, as amended, between the Company and
\nEquiServ Trust Company, N.A. (the “Company Rights Agreement”)) to be void or
\nvoidable. The Company has delivered to Merger Sub a true and correct copy of the
\nCompany Rights Agreement, as amended in accordance with its terms as necessary
\nto render it inapplicable to this Agreement, the Voting Agreement, the
\nContribution Agreement, the Investor Voting Agreement, the Merger and the other
\ntransactions contemplated by this Agreement, the Voting Agreement, the
\nContribution Agreement and the Investor Voting Agreement.<\/p>\n
4.16 Properties. Except as set forth in Section 4.16 of the Company
\nDisclosure Schedule or disclosed in the Recent SEC Documents and for such
\nmatters which would not have a Company Material Adverse Effect, each of the
\nCompany and its subsidiaries (i) has good and indefeasible title to all the
\nproperties and assets reflected on the latest audited balance sheet included in
\nsuch Recent SEC Documents as being owned by the Company or one of its
\nsubsidiaries or acquired after the date thereof which are, individually or in
\nthe aggregate, material to the Company’s business on a consolidated basis
\n(except properties sold or otherwise disposed of since the date thereof in the
\nordinary course of business), free and clear of (A) all Liens except (1)
\nstatutory liens securing payments not yet due and (2) such imperfections or
\nirregularities of title or other Liens (other than real property mortgages or
\ndeeds of trust) as do not materially affect the use of the properties or assets
\nsubject thereto or affected thereby or otherwise materially impair business
\noperations at such properties, and (B) all real property mortgages and deeds of
\ntrust except such secured indebtedness as is properly reflected in the latest
\naudited balance sheet included in such Recent SEC Documents, and (ii) is the
\nlessee of all leasehold estates reflected in the latest audited financial
\nstatements included in such Recent SEC Documents or acquired after the date
\nthereof which are material to its business on a consolidated basis and is<\/p>\n
15<\/p>\n
in possession of the properties purported to be leased thereunder, and each such
\nlease is valid without material default thereunder by the lessee or, to the
\nCompany’s knowledge, the lessor.<\/p>\n
4.17 Tax Returns and Tax Payments. The Company and its subsidiaries have
\ntimely filed (or, as to subsidiaries, the Company has filed on behalf of such
\nsubsidiaries) all material Tax Returns (as defined below) required to be filed
\nby it, except for such failure that would not result in a Company Material
\nAdverse Effect. The Company and its subsidiaries have paid (or, as to
\nsubsidiaries, the Company has paid on behalf of such subsidiaries) all Taxes (as
\ndefined below) shown to be due on such Tax Returns and has provided (or, as to
\nSubsidiaries, the Company has made provision on behalf of such Subsidiaries)
\nreserves in its financial statements for any Taxes that have not been paid,
\nwhether or not shown as being due on any Tax Returns, except for such Taxes
\nwhich, if unpaid or unreserved, would not result in a Company Material Adverse
\nEffect. Except as set forth in Section 4.17 of the Company Disclosure Schedule,
\nneither the Company nor any of its subsidiaries has granted any request that
\nremains in effect for waivers of the time to assess any Taxes. Except as
\ndisclosed in Section 4.17 of the Company Disclosure Schedule, no claim for
\nunpaid Taxes has been asserted against the Company or any of its Subsidiaries in
\nwriting by a Tax authority which, if resolved in a manner unfavorable to the
\nCompany or any of its Subsidiaries, as the case may be, would result,
\nindividually or in the aggregate, in a Company Material Adverse Effect. There
\nare no Liens for Taxes upon the assets of the Company or any Subsidiary, except
\nfor Liens for Taxes not yet due and payable or for Taxes that are being disputed
\nin good faith by appropriate proceedings and with respect to which adequate
\nreserves have been taken, that could result in a Company Material Adverse
\nEffect. Except as discussed in Section 4.17 of the Company Disclosure Schedule,
\nno audit of any material Tax Return of the Company or any of its subsidiaries is
\nbeing conducted by a Tax authority. None of the Company or any of its
\nsubsidiaries has made an election under Section 341(f) of the Code. Except as
\ndisclosed in Section 4.17 of the Company Disclosure Schedule, neither the
\nCompany nor any of its subsidiaries has any liability for Taxes of any person
\n(other than the Company and its subsidiaries) under Treasury Regulation Section
\n1.1502-6 (or any comparable provision of state, local or foreign law), by
\ncontract or otherwise. As used herein, “Taxes” shall mean all taxes of any kind,
\nincluding, without limitation, those on or measured by or referred to as income,
\ngross receipts, sales, use, ad valorem, franchise, profits, license, employment,
\nwithholding, value added, property or windfall profits taxes, customs, duties or
\nsimilar fees, assessments or charges of any kind whatsoever, together with any
\ninterest and any penalties, additions to tax or additional amounts imposed by
\nany governmental authority, domestic or foreign. As used herein, “Tax Return”
\nshall mean any return, report or statement required to be filed with any
\ngovernmental authority with respect to Taxes. As used herein, “Code” shall mean
\nthe Code and the Treasury Regulations promulgated thereunder.<\/p>\n
4.18 Intellectual Property. Except as set forth in Section 4.18 of the
\nCompany Disclosure Schedule, the Company or its subsidiaries own, or are
\nlicensed or otherwise possess legally enforceable rights to use all patents,
\ntrademarks, trade names, service marks, copyrights and any applications
\ntherefor, technology, know-how, trade secrets, computer software programs or
\napplications, domain names and tangible or intangible proprietary information or
\nmaterials that are used in the respective businesses of the Company and its
\nsubsidiaries as currently conducted, except for any such failures to own, be
\nlicensed or possess that, individually or in the aggregate, have not had and are
\nnot reasonably likely in the future to have a Company Material Adverse Effect.
\nAll patents, registered trademarks and service marks and registered copyrights
\nheld by the Company or its subsidiaries are subsisting and in force except where
\nfailure to be subsisting and in force would not likely cause a Company Material
\nAdverse Effect.<\/p>\n
4.19 Board and Special Committee Recommendations. The Board of Directors
\nof the Company, at a meeting duly called and held, has by unanimous vote of
\nthose directors present (who constituted all of the directors then in office),
\n(i) determined that this Agreement and the transactions contemplated hereby,
\nincluding the Merger, are advisable and are fair to and in the best interests of
\nthe stockholders of the Company, and (ii) resolved to recommend that the holders
\nof the Common Stock approve this Agreement and the transactions contemplated
\nherein, including the Merger. The special committee of independent directors of
\nthe Board of Directors of the Company (the “Special Committee”) has, by
\nunanimous vote, determined that this Agreement and the transactions contemplated
\nhereby, including the Merger, are<\/p>\n
16<\/p>\n
advisable and are fair to and in the best interests of the stockholders and
\napproved this Agreement and the transactions contemplated hereby, including the
\nMerger.<\/p>\n
4.20 Required Vote. The Company Stockholder Approval, being the
\naffirmative vote of a majority of the votes entitled to be cast by holders of
\nthe outstanding shares of Common Stock, is the only vote of the holders of any
\nclass or series of the Company’s securities necessary to approve this Agreement
\nand the Merger and the other transactions contemplated hereby.<\/p>\n
ARTICLE 5<\/p>\n
REPRESENTATIONS AND WARRANTIES OF
\n MERGER SUB AND INVESTOR<\/p>\n
Merger Sub and Investor jointly and severally represent and warrant to the
\nCompany as follows:<\/p>\n
5.1 Corporate Organization. Each of Merger Sub and Investor is a
\ncorporation duly organized, validly existing and in good standing under the laws
\nof the jurisdiction of its organization and has the requisite corporate power
\nand authority to own or lease all of its properties and assets and to carry on
\nits business as it is now being conducted. Each of Merger Sub and Investor is
\nduly licensed or qualified to do business in each jurisdiction in which the
\nnature of the business conducted by it or the character or location of the
\nproperties and assets owned or leased by it makes such licensing or
\nqualification necessary, except where the failure to be so licensed or qualified
\nwould not reasonably be expected to have, when aggregated with all other such
\nfailures, a Material Adverse Effect on Merger Sub or Investor, as applicable.<\/p>\n
5.2 Authority. Each of Merger Sub and Investor has all necessary corporate
\npower and authority to execute and deliver this Agreement and to consummate the
\ntransactions contemplated hereby. The execution, delivery and performance by
\nMerger Sub and Investor of this Agreement, and the consummation of the
\ntransactions contemplated hereby, have been duly authorized and approved by
\ntheir Boards of Directors and by Investor as the sole stockholder of Merger Sub
\nand no other corporate action on the part of Merger Sub or Investor is necessary
\nto authorize the execution and delivery by Merger Sub and Investor of this
\nAgreement and the consummation by them of the transactions contemplated hereby.
\nThis Agreement has been duly executed and delivered by Merger Sub and Investor,
\nand, assuming due and valid authorization, execution and delivery hereof by the
\nCompany, is a valid and binding obligation of each of Merger Sub and Investor,
\nenforceable against each of them in accordance with its terms, except that such
\nenforceability (i) may be limited by bankruptcy, insolvency, moratorium or other
\nsimilar laws affecting or relating to the enforcement of creditors’ rights
\ngenerally and (ii) is subject to general principles of equity.<\/p>\n
5.3 Consents and Approvals; No Violation.<\/p>\n
(a) Except for (i) the filing with the SEC of the Proxy Statement, (ii)
\n the filing of the Certificate of Merger with the Secretary of State of the
\n State of Georgia pursuant to the GBCC, and (iii) filings, permits,
\n authorizations, consents and approvals as may be required under, and other
\n applicable requirements of, the Exchange Act, the HSR Act and any similar
\n requirements of foreign jurisdictions, and the Securities Act, no consents
\n or approvals of, or filings, declarations or registrations with, any
\n Governmental Entity are necessary for the consummation by each of Merger
\n Sub and Investor of the transactions contemplated hereby, other than such
\n other consents, approvals, filings, declarations or registrations that, if
\n not obtained, made or given, would not reasonably be expected to have, in
\n the aggregate, a Material Adverse Effect on Merger Sub or Investor,
\n respectively.<\/p>\n
(b) Neither the execution and delivery of this Agreement by Merger Sub
\n or Investor, nor the consummation by Merger Sub or Investor of the
\n transactions contemplated hereby, nor compliance by Merger Sub or Investor
\n with any of the terms or provisions hereof, will (i) conflict with or
\n violate any provision of the Articles of Incorporation or Bylaws of Merger
\n Sub or Investor, or (ii) assuming that the authorizations, consents and
\n approvals referred to in Section 5.3(a) are obtained, (x) violate any
\n statute, code, ordinance, rule, regulation, judgment, order, writ, decree
\n or injunction applicable to Merger Sub or Investor or any of their
\n respective subsidiaries, properties or assets, or (y) violate, conflict
\n with, result in<\/p>\n
17<\/p>\n
the loss of any material benefit under, constitute a default (or an event
\n which, with notice or lapse of time, or both, would constitute a default)
\n under, result in the termination of or a right of termination or
\n cancellation under, accelerate the performance required by, or result in
\n the creation of any Lien upon any of the respective properties or assets of
\n Merger Sub or Investor or any of their respective subsidiaries under, any
\n of the terms, conditions or provisions of any note, bond, mortgage,
\n indenture, deed of trust, license, lease, agreement or other instrument or
\n obligation to which Merger Sub or Investor or any of their respective
\n subsidiaries is a party, or by which Merger Sub or Investor or any of their
\n respective properties or assets may be bound or affected, except, in the
\n case of clause (ii) above, for such violations, conflicts, breaches,
\n defaults, losses, terminations of rights thereof, accelerations or Lien
\n creations which, in the aggregate, would not reasonably be expected to have
\n a Material Adverse Effect on Merger Sub or Investor, respectively.<\/p>\n
5.4 Broker’s Fees. Neither Investor nor any subsidiary of Investor nor any
\nof their respective officers or directors on behalf of Investor or such
\nsubsidiaries has employed any financial advisor, broker or finder in a manner
\nthat would result in any liability of the Company for any broker’s fees,
\ncommissions or finder’s fees in connection with any of the transactions
\ncontemplated hereby.<\/p>\n
5.5 Merger Sub’s Operation. Merger Sub was formed solely for the purpose
\nof engaging in the transactions contemplated hereby and has not engaged in any
\nbusiness activities or conducted any operations other than in connection with
\nthe transactions contemplated hereby.<\/p>\n
5.6 Merger Sub and Investor Information. None of the information supplied
\nor to be supplied by Merger Sub or Investor for inclusion or incorporation by
\nreference in the Proxy Statement or in any other document filed with any other
\nGovernmental Entity in connection herewith, at the respective time filed with
\nthe SEC or such other Governmental Entity and, in addition, in the case of the
\nProxy Statement, at the date it or any amendment or supplement is mailed to
\nholders of the Common Stock and at the time of the Company Stockholders Meeting,
\nwill contain any untrue statement of a material fact or omit to state a material
\nfact necessary to make the statements therein, in light of the circumstances in
\nwhich they are made, not misleading.<\/p>\n
5.7 Financing. Merger Sub and Investor have each entered into the
\nContribution Agreement with the other investors named therein, dated as of the
\ndate of this Agreement, pursuant to which the Investor and such other investors
\nhave agreed, on the terms and subject to the conditions contained therein, to
\nprovide consideration sufficient to pay pursuant to the Merger for all
\noutstanding shares of Common Stock other than shares of Common Stock to be
\ncancelled pursuant to Section 3.2(a). A true and correct copy of the
\nContribution Agreement has been provided to the Company. Investor has sufficient
\nfunds to enable it to perform its obligations under the Contribution Agreement.<\/p>\n
5.8 Capitalization of Merger Sub. As of the date of this Agreement, the
\nauthorized capital stock of Merger Sub consists of 100 shares of common stock,
\n$0.01 par value per share, of which 100 shares are issued and outstanding and
\nowned beneficially and of record by Investor free and clear of any liens. All of
\nthe issued and outstanding shares of capital stock of Merger Sub have been duly
\nauthorized and validly issued and are fully paid, nonassessable and free of
\npreemptive rights.<\/p>\n
5.9 Stock Ownership. As of the date of this Agreement, except (i) for
\nshares of Common Stock that Merger Sub may be deemed to own pursuant to the
\nContribution Agreement and (ii) as set forth in Section 5.9 of the disclosure
\nschedule of Merger Sub and Investor delivered to the Company concurrently
\nherewith, neither Merger Sub nor Investor beneficially owns any shares of Common
\nStock.<\/p>\n
ARTICLE 6<\/p>\n
COVENANTS<\/p>\n
6.1 Conduct of Businesses Prior to the Effective Time. Except as set forth
\nin Section 6.1 of the Company Disclosure Schedule, as expressly contemplated or
\npermitted by this Agreement, or as required by applicable law, rule or
\nregulation, during the period from the date of this Agreement to the Effective
\nTime,<\/p>\n
18<\/p>\n
unless Investor otherwise agrees in writing, the Company shall, and shall cause
\nits subsidiaries to, in all material respects, (i) conduct its business in the
\nusual, regular and ordinary course consistent with past practice and (ii) use
\nall reasonable efforts to maintain and preserve intact its business organization
\nand the good will of those having business relationships with it and retain the
\nservices of its present officers and key employees. Without limiting the
\ngenerality of the foregoing, and except as set forth in Section 6.1 of the
\nCompany Disclosure Schedule, as expressly contemplated or permitted by this
\nAgreement, or as required by applicable law, rule or regulation, during the
\nperiod from the date of this Agreement to the Effective Time, the Company shall
\nnot, and shall not permit any of its subsidiaries to, without the prior written
\nconsent of Investor:<\/p>\n
(a) (i) issue, sell, grant, dispose of, pledge or otherwise encumber,
\n or authorize or propose the issuance, sale, disposition or pledge or other
\n encumbrance of (A) any additional shares of its capital stock or any
\n securities or rights convertible into, exchangeable for, or evidencing the
\n right to subscribe for any shares of its capital stock, or any rights,
\n warrants, option, calls, commitments or any other agreements of any
\n character to purchase or acquire any shares of its capital stock or any
\n securities or rights convertible into, exchangeable for, or evidencing the
\n right to subscribe for, any shares of its capital stock or (B) any other
\n securities in respect of, in lieu of, or in substitution for, any shares of
\n its capital stock outstanding on the date hereof, other than pursuant to
\n the exercise of Company Stock Options outstanding as of the date hereof;
\n (ii) redeem, purchase or otherwise acquire, or propose to redeem, purchase
\n or otherwise acquire, any of its outstanding shares of capital stock; or
\n (iii) split, combine, subdivide or reclassify any shares of its capital
\n stock or declare, except for quarterly cash dividends in the amount of
\n $0.05 per share, consistent with past practice, set aside for payment or
\n pay any dividend, or make any other actual, constructive or deemed
\n distribution, in respect of any shares of its capital stock or otherwise
\n make any payments to its stockholders in their capacity as such;<\/p>\n
(b) other than in the ordinary course of business consistent with past
\n practice, incur any indebtedness for borrowed money or guarantee any such
\n indebtedness or make any loans, advances or capital contributions to, or
\n investments in, any other person other than the Company or its
\n subsidiaries;<\/p>\n
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of
\n its properties or assets that are material, individually or in the
\n aggregate, to the Company and its subsidiaries, taken as a whole, to any
\n individual, corporation or other entity other than a direct or indirect
\n wholly owned subsidiary, or cancel, release or assign any indebtedness to
\n any such person or any claims held by any such person that is material to
\n the Company and its subsidiaries, taken as a whole, except in each case (i)
\n in the ordinary course of business consistent with past practice, or (ii)
\n pursuant to contracts or agreements in force at the date of this Agreement;<\/p>\n
(d) make any material acquisition or investment in a business either
\n by purchase of stock or securities, merger or consolidation, contributions
\n to capital, property transfers, or purchases of any property or assets of
\n any other individual, corporation or other entity other than a wholly owned
\n subsidiary thereof, or, other than in the ordinary course of business
\n consistent with past practice, purchase or enter into any agreement to
\n purchase equipment, materials, supplies, or services for an amount that is
\n material to the Company and its subsidiaries, taken as a whole;<\/p>\n
(e) increase in any manner the compensation of any of its directors,
\n officers or employees or enter into, establish, amend or terminate any
\n employment, consulting, retention, change in control, collective
\n bargaining, bonus or other incentive compensation, profit sharing, health
\n or other welfare, stock option or other equity, pension, retirement,
\n vacation, severance, deferred compensation or other compensation or benefit
\n plan, policy, agreement, trust, fund or arrangement with, for or in respect
\n of, any stockholder, officer, director, other employee, agent, consultant
\n or affiliate other than (i) as required pursuant to the terms of agreements
\n in effect on the date of this Agreement, and (ii) increases in salaries,
\n wages and benefits of employees who are not directors or officers of the
\n Company made in the ordinary course of business and in a manner consistent
\n with past practice;<\/p>\n
(f) amend the Company Articles or the Company Bylaws or similar
\n governing documents;<\/p>\n
19<\/p>\n
(g) change any material accounting principle used by it, except for
\n such changes as may be required to be implemented following the date of
\n this Agreement pursuant to generally accepted accounting principles or
\n rules or regulations of the SEC promulgated following the date hereof;<\/p>\n
(h) take any action that would, or is reasonably likely to, result in
\n any of its representations and warranties in this Agreement becoming
\n untrue, or in any of the conditions to the Merger set forth in Article 8
\n not being satisfied;<\/p>\n
(i) except in the ordinary course of business and consistent with past
\n practice, make any tax election or settle or compromise any federal, state,
\n local or foreign income tax liability;<\/p>\n
(j) waive or fail to enforce any provision of any confidentiality or
\n standstill agreement to which it is a party; or<\/p>\n
(k) make any commitment to take any of the actions prohibited by this
\n Section 6.1.<\/p>\n
ARTICLE 7<\/p>\n
ADDITIONAL AGREEMENTS<\/p>\n
7.1 Preparation of the Proxy Statement; Stockholder Meeting.<\/p>\n
(a) Promptly following the date of this Agreement, the Company shall
\n prepare, in consultation with Investor, and file with the SEC a Proxy
\n Statement on Schedule 14A (the “Proxy Statement”). The Company shall use
\n all reasonable efforts to respond to comments from the SEC and to cause the
\n Proxy Statement to be mailed to the Company’s stockholders at the earliest
\n practicable time. The Company shall not mail, amend, or supplement the
\n Proxy Statement unless the Proxy Statement or any amendment or supplement
\n thereof is satisfactory in content to Investor in the exercise of its
\n reasonable judgment. The Proxy Statement shall comply with Rule 13e-3 of
\n the Exchange Act.<\/p>\n
(b) Promptly following the date of this Agreement, Investor and the
\n Company shall file with the SEC, and shall use all reasonable efforts to
\n cause any of their respective affiliates engaging in this transaction to
\n file with the SEC, a Rule 13e-3 Transaction Statement on Schedule 13E-3
\n (the “Schedule 13E-3 Transaction Statement”) with respect to the Merger.
\n Each of the parties hereto agrees to use all reasonable efforts to
\n cooperate and to provide each other with such information as any of such
\n parties may reasonably request in connection with the preparation of the
\n Proxy Statement and the Schedule 13E-3 Transaction Statement. The Schedule
\n 13E-3 Transaction Statement shall be filed with the SEC concurrently with
\n the filing of the Proxy Statement.<\/p>\n
(c) Each party hereto agrees promptly to supplement, update and
\n correct any information provided by it for use in the Proxy Statement or
\n the Schedule 13E-3 Transaction Statement if and to the extent that such
\n information is or shall have become incomplete, false or misleading.<\/p>\n
(d) The Company will, as promptly as practicable following the date of
\n this Agreement, duly call, give notice of, convene and hold a meeting of
\n its stockholders (the “Company Stockholders Meeting”) for the purpose of
\n approving this Agreement and the transactions contemplated by this
\n Agreement. The Company will, through its Board of Directors and the Special
\n Committee, recommend to its stockholders approval of the foregoing matters,
\n as set forth in Section 4.19. Such recommendation, together with a copy of
\n the opinion referred to in Section 4.11, shall be included in the Proxy
\n Statement. The Company will use reasonable efforts to hold such meeting as
\n soon as practicable after the date hereof.<\/p>\n
(e) The Company will cause its transfer agent to make stock transfer
\n records relating to the Company available to Investor, Merger Sub and the
\n Exchange Agent to the extent reasonably necessary to effectuate the intent
\n of this Agreement.<\/p>\n
7.2 Indemnification.<\/p>\n
(a) The Surviving Corporation shall indemnify, defend, protect and
\n hold harmless each person who is now, or has been at any time prior to the
\n date of this Agreement or who becomes such prior to the<\/p>\n
20<\/p>\n
Effective Time, an officer or director of the Company or any of its
\n subsidiaries (the “Indemnified Parties”) against (i) all losses, claims,
\n damages, costs, expenses, liabilities or judgments or amounts that are paid
\n in settlement with the approval of the indemnifying party (which approval
\n shall not be unreasonably withheld) of or in connection with any claim,
\n action, suit, proceeding or investigation based in whole or in part on or
\n arising in whole or in part out of the fact that such person is or was a
\n director or officer of the Company or any of its subsidiaries, whether
\n pertaining to any matter existing or occurring at or prior to the Effective
\n Time and whether asserted or claimed prior to, or at or after, the
\n Effective Time (“Indemnified Liabilities”), and (ii) all Indemnified
\n Liabilities based in whole or in part on, or arising in whole or in part
\n out of, or pertaining to this Agreement or the transactions contemplated
\n hereby; provided, however, that such indemnification shall only be to the
\n fullest extent a corporation is permitted under the GBCC to indemnify its
\n own directors and officers. To the extent the Surviving Corporation is
\n unable to satisfy such obligation to indemnify the Indemnified Parties or
\n is restricted from indemnifying the Indemnified Parties pursuant to the
\n foregoing proviso, Investor shall indemnify, defend, protect and hold
\n harmless each of the Indemnified Parties against all Indemnified
\n Liabilities on the same basis set forth in the foregoing clauses (i) and
\n (ii), provided, however, that such indemnification shall not be applicable
\n to any claims made against the Indemnified Parties (A) arising out of,
\n based upon or attributable to the gaining in fact of any personal profit or
\n advantage to which they were not legally entitled or (B) arising out of,
\n based upon or attributable to the committing in fact of any criminal or
\n deliberate fraudulent act.<\/p>\n
(b) Without limiting the foregoing, in the event any such claim,
\n action, suit, proceeding or investigation is brought against any
\n Indemnified Party (whether arising before or after the Effective Time), (i)
\n the Indemnified Parties may retain counsel satisfactory to them and the
\n Surviving Corporation and Investor, (ii) the Surviving Corporation (and, if
\n applicable, Investor) shall pay all reasonable fees and expenses of such
\n counsel for the Indemnified Parties promptly as such statements therefor
\n are received; and (iii) the Surviving Corporation (and, if applicable,
\n Investor) will use all reasonable efforts to assist in the vigorous defense
\n of any such matter, provided that the Surviving Corporation (and, if
\n applicable, Investor) shall not be liable for any settlement of any claim
\n effected without its written consent, which consent, however, shall not be
\n unreasonably withheld or delayed. Any Indemnified Party wishing to claim
\n indemnification under this Section 7.2, upon learning of any such claim,
\n action, suit, proceeding or investigation, shall notify the Surviving
\n Corporation and Investor (but the failure so to notify an indemnifying
\n party shall not relieve it from any liability which it may have under this
\n Section 7.2 except to the extent such failure materially prejudices such
\n party), and shall deliver to the Surviving Corporation and Investor the
\n undertaking contemplated by Section 14-2-853(a)(2) of the GBCC. The
\n Indemnified Parties as a group may retain only one law firm to represent
\n them with respect to each such matter unless there is, under applicable
\n standards of professional conduct, a conflict on any significant issue
\n between the positions of any two or more Indemnified Parties.<\/p>\n
(c) Subject to applicable law, the Company Articles and Company Bylaws
\n shall not be amended, including by operation of Section 2.2, in a manner
\n which adversely affects the rights of the Indemnified Parties under any
\n provisions regarding indemnification or exculpation from liability set
\n forth therein or in this Section 7.2. All rights to indemnification and\/or
\n advancement of expenses contained in any agreement with any Indemnified
\n Parties as in effect on the date hereof with respect to matters occurring
\n at or prior to the Effective Time (including the transactions contemplated
\n by this Agreement) shall survive the Merger and continue in full force and
\n effect.<\/p>\n
(d) If the Surviving Corporation or any of its successors or assigns
\n (i) consolidates with or merges into any other person and shall not be the
\n continuing or surviving corporation or entity of such consolidation or
\n merger, or (ii) transfers or conveys all or substantially all of its
\n properties and assets to any person, then, and in each such case, to the
\n extent necessary, proper provision shall be made so that the successors and
\n assigns of the Surviving Corporation shall assume the obligations set forth
\n in this Section 7.2.<\/p>\n
(e) The provisions of this Section 7.2 are intended to be for the
\n benefit of, and shall be enforceable by, each Indemnified Party, his or her
\n heirs and representatives.<\/p>\n
21<\/p>\n
7.3 Expenses. Except as specifically contemplated herein, whether or not
\nthe Merger is consummated, all costs and expenses incurred in connection with
\nthis Agreement and the transactions contemplated hereby shall be paid by the
\nparty incurring such expenses.<\/p>\n
7.4 No Solicitation.<\/p>\n
(a) The Company shall immediately cease any discussions or
\n negotiations with any parties that may be ongoing with respect to a
\n Takeover Proposal (as hereinafter defined) and shall seek to have returned
\n to the Company any confidential information that has been provided in any
\n such discussions or negotiations. From the date hereof, the Company shall
\n not, nor shall it permit any of its subsidiaries to, nor shall it authorize
\n or permit any of its officers, directors or employees or any affiliate,
\n investment banker, financial advisor, attorney, accountant or other
\n representative retained by it or any of its subsidiaries to, directly or
\n indirectly, (i) solicit, initiate or knowingly encourage (including by way
\n of furnishing information which has not been previously publicly
\n disseminated), or take any other action designed to facilitate, any
\n inquiries or the making of any proposal which constitutes, or may
\n reasonably be expected to lead to, any Takeover Proposal or (ii)
\n participate in any discussions or negotiations regarding any Takeover
\n Proposal; provided, however, that if, prior to obtaining the Company
\n Stockholder Approval and following the receipt of a Superior Proposal (as
\n hereinafter defined), or a proposal which is reasonably expected to lead to
\n a Superior Proposal, that was made (and not solicited) after the date
\n hereof in circumstances not otherwise involving a breach of this Agreement,
\n the Board of Directors of the Company (or any special committee thereof to
\n which such responsibility shall have been properly delegated in accordance
\n with the requirements of applicable law) determines in good faith, after
\n considering applicable provisions of state law and after consultation with
\n outside counsel, that a failure to do so would constitute a breach of its
\n fiduciary duties to the Company’s stockholders under applicable law, the
\n Company may, in response to such Takeover Proposal and subject to
\n compliance with Section 7.4(c), (x) furnish information with respect to the
\n Company to the party making such Takeover Proposal pursuant to a customary
\n confidentiality agreement, provided that (i) such confidentiality agreement
\n must include a provision prohibiting solicitation of key employees of the
\n Company or its subsidiaries, such provision lasting at least one year, and
\n may not include any provision calling for an exclusive right to negotiate
\n with the Company and (ii) the Company advises Investor of all such
\n nonpublic information delivered to such person concurrently with its
\n delivery to the requesting party, and (y) participate in negotiations with
\n such party regarding such Takeover Proposal. It is agreed that any
\n violation of the restrictions set forth in the preceding sentence by any
\n executive officer of the Company or any of its subsidiaries or any
\n affiliate, director or investment banker, attorney or other advisor or
\n representative of the Company or any of its subsidiaries shall be deemed to
\n be a breach of this Section 7.4(a) by the Company.<\/p>\n
(b) Except as expressly permitted in this Section 7.4, neither the
\n Board of Directors of the Company nor any committee thereof shall (i)
\n withdraw or modify, or propose publicly to withdraw or modify, in a manner
\n adverse to Merger Sub and\/or Investor, the approval, determination of
\n advisability, or recommendation by such Board of Directors or such
\n committee of this Agreement and the transactions contemplated hereby,
\n including the Merger, (ii) approve, determine to be advisable, or
\n recommend, or propose publicly to approve, determine to be advisable, or
\n recommend, any Takeover Proposal or (iii) cause the Company to enter into
\n any letter of intent, agreement in principle, acquisition agreement or
\n other similar agreement related to any Takeover Proposal. Notwithstanding
\n the foregoing, in the event that prior to obtaining the Company Stockholder
\n Approval the Board of Directors of the Company (or any special committee
\n thereof to which such responsibility shall have been properly delegated in
\n accordance with the requirements of applicable law) determines in good
\n faith, in response to a Superior Proposal that was made (and not solicited)
\n after the date hereof in circumstances not otherwise involving a breach of
\n this Agreement, after considering applicable provisions of state law and
\n after consultation with outside counsel, that the failure to do so would
\n constitute a breach of its fiduciary duties to the Company’s stockholders
\n under applicable law, the Board of Directors of the Company and the Special
\n Committee may (subject to this and the following sentences and to
\n compliance with Section 7.4(a)) (x) withdraw or modify its approval,
\n determination, or recommendation of this Agreement and the<\/p>\n
22<\/p>\n
transactions contemplated hereby, including the Merger, or (y) approve,
\n determine to be advisable, or recommend a Superior Proposal, provided,
\n however, that any actions described in clause (y) may be taken only at a
\n time that is after the second business day following Investor’s receipt of
\n written notice from the Company advising Investor that the Board of
\n Directors of the Company has received a Superior Proposal, specifying the
\n material terms and conditions of such Superior Proposal, identifying the
\n person making such Superior Proposal and providing notice of the
\n determination of the Board of Directors of the Company (or special
\n committee thereof, if applicable) of what action referred to in clause (y)
\n the Board of Directors of the Company (or special committee thereof, if
\n applicable) has determined to take.<\/p>\n
(c) In addition to the obligations of the Company set forth in
\n paragraphs (a) and (b) of this Section 7.4, the Company shall promptly
\n advise Investor orally and in writing of any request for confidential
\n information or of any Takeover Proposal, the material terms and conditions
\n of such request or the Takeover Proposal and the identity of the person
\n making such request or Takeover Proposal and shall keep Investor reasonably
\n informed of the status and details of any such request or Takeover
\n Proposal.<\/p>\n
(d) Nothing contained in this Section 7.4 shall prohibit the Company
\n from taking and disclosing to its stockholders a position contemplated by
\n Rule 14e-2(a) promulgated under the Exchange Act or from making any
\n disclosure to the Company’s stockholders; provided, however, neither the
\n Company nor its Board of Directors nor any committee thereof shall, except
\n as in accordance with Section 7.4(b), withdraw or modify, or propose
\n publicly to withdraw or modify, its approval, determination or
\n recommendation with respect to the Merger and the other transactions
\n contemplated by this Agreement or approve, determine to be advisable, or
\n recommend, or propose publicly to approve, determine to be advisable, or
\n recommend, a Takeover Proposal.<\/p>\n
(e) For purposes of this Agreement:<\/p>\n
(i) “Takeover Proposal” means any inquiry, proposal or offer from
\n any person (other than Investor and its subsidiaries, affiliates, and
\n representatives) relating to any direct or indirect acquisition or
\n purchase of 15% or more of the assets of the Company and its
\n subsidiaries or 15% or more of any class of equity securities of the
\n Company or any of its Significant Subsidiaries, any tender offer or
\n exchange offer that if consummated would result in any person
\n beneficially owning 15% or more of any class of equity securities of the
\n Company or any of its Significant Subsidiaries, or any merger,
\n consolidation, share exchange, business combination, recapitalization,
\n liquidation, dissolution or similar transaction involving the Company or
\n any of its Significant Subsidiaries, other than the transactions
\n contemplated by this Agreement.<\/p>\n
(ii) For purposes of this Agreement, a “Superior Proposal” means a
\n bona fide written offer from any person (other than Investor and its
\n subsidiaries, affiliates and representatives) for a direct or indirect
\n acquisition or purchase of 50% or more of the assets of the Company or
\n any of its Significant Subsidiaries or 50% or more of any class of
\n equity securities of the Company or any of its Significant Subsidiaries,
\n any tender offer or exchange offer that if consummated would result in
\n any person (other than Investor and its subsidiaries, affiliates and
\n representatives) beneficially owning 50% or more of any class of equity
\n securities of the Company or any of its Significant Subsidiaries, or any
\n merger, consolidation, share exchange, business combination,
\n recapitalization, liquidation, dissolution or similar transaction
\n involving the Company or any of its Significant Subsidiaries, other than
\n the transactions contemplated by this Agreement, (A) which provides for
\n consideration on a per share basis to the stockholders of the Company
\n with a value (taking into account, among other things, the likelihood of
\n such offer resulting in a consummated transaction) exceeding the Per
\n Share Amount, (B) which, considering all relevant factors, is more
\n favorable to the Company and its stockholders than the Merger, and (C)
\n for which the third party has demonstrated that financing is likely to
\n be obtained, in each case as determined by the Board of Directors in its
\n good faith judgment (based on the advice of independent financial
\n advisors and outside counsel). Any Superior Proposal is a Takeover
\n Proposal.<\/p>\n
23<\/p>\n
7.5 Publicity. The initial press release with respect to the execution of
\nthis Agreement shall be a joint press release reasonably acceptable to Investor
\nand the Company. Thereafter, so long as this Agreement is in effect, none of the
\nCompany, Investor or Merger Sub nor any of their respective affiliates shall
\nissue or cause the publication of any press release or other announcement with
\nrespect to the Merger, this Agreement or the other transactions contemplated
\nhereby without the prior consultation of the other party, except as may be
\nrequired by law or by any listing agreement with a national securities exchange
\nas determined in the good faith judgment of the party wanting to make such
\nrelease.<\/p>\n
7.6 Notification of Certain Matters. The Company shall give prompt notice
\nto Investor, and Investor shall give prompt notice to the Company, of (i) the
\noccurrence or non-occurrence of any event the occurrence or non-occurrence of
\nwhich would cause any representation or warranty contained in this Agreement to
\nbe untrue or inaccurate in any material respect at or prior to the Effective
\nTime and (ii) any material failure of the Company, on the one hand, or Merger
\nSub or Investor, on the other hand, to comply with or satisfy any covenant,
\ncondition or agreement to be complied with or satisfied by it hereunder;
\nprovided, however, that the delivery of any notice pursuant to this Section 7.6
\nshall not limit or otherwise affect the remedies available hereunder to the
\nparty receiving such notice.<\/p>\n
7.7 Contribution Agreement. Merger Sub and Investor agree that they will
\nnot, without the prior consent of the Company, enter into any amendment to, or
\nmodification or waiver of, the Contribution Agreement if such amendment,
\nmodification or waiver would (i) reduce the value of the consideration (cash and
\nshares of Common Stock with such shares valued for this purpose at $19.00 per
\nshare) committed under the Contribution Agreement, (ii) add additional
\nconditions to the consummation of the transactions contemplated by the
\nContribution Agreement or (iii) have a material adverse effect on the
\nconsummation of the Merger. Merger Sub and Investor shall enforce to the fullest
\nextent permitted under applicable law, the provisions of the Contribution
\nAgreement, including but not limited to obtaining injunctions to enforce
\nspecifically the terms and provisions thereof in any court having jurisdiction.
\nMerger Sub and Investor shall use all reasonable efforts to fulfill all of their
\nobligations under the Contribution Agreement and to cause all conditions to
\nfunding under the Contribution Agreement (other than conditions to funding that
\nare conditions to consummation of the Merger under this Agreement) to be
\nfulfilled as promptly as reasonably practicable. Merger Sub and Investor shall
\ngive the Company prompt written notice of (i) any material breach or threatened
\nmaterial breach by any party of the terms or provisions of the Contribution
\nAgreement, or (ii) any termination or threatened termination of the Contribution
\nAgreement. Investor agrees that, subject to the fulfillment of the conditions
\nset forth in Sections 8.1 and 8.3 of the Contribution Agreement (including,
\nwithout limitation, the satisfaction of the Minimum Contribution Requirement, as
\nsuch term is defined in the Contribution Agreement), Investor shall contribute
\nto Merger Sub the amount of cash and shares of Common Stock specified on
\nSchedule A to the Contribution Agreement.<\/p>\n
7.8 Access to Information.<\/p>\n
(a) Upon reasonable notice and subject to applicable laws relating to
\n the exchange of information, the Company shall, and shall cause each of its
\n subsidiaries to, afford to the officers, employees, accountants, counsel
\n and other representatives of Merger Sub and Investor, during normal
\n business hours during the period prior to the Effective Time, reasonable
\n access to all its properties, books, contracts, commitments and records,
\n and to its officers, employees, accountants, counsel and other
\n representatives and, during such period, the Company shall, and shall cause
\n its subsidiaries to, make available to Merger Sub and Investor (i) a copy
\n of each report, schedule, registration statement and other document filed
\n or received by it during such period pursuant to the requirements of
\n federal securities laws and (ii) all other information concerning its
\n business, properties and personnel as such other party may reasonably
\n request.<\/p>\n
(b) No investigation by any of the parties or their respective
\n representatives shall affect the representations, warranties, covenants or
\n agreements of the other set forth herein.<\/p>\n
(c) The information provided pursuant to Section 7.8(a) will be used
\n solely for the purpose of the transactions contemplated hereby, and unless
\n and until the Merger is consummated, such information will be kept secret
\n and confidential by Merger Sub and Investor, except that the information
\n provided pursuant to Section 7.8(a) or portions thereof may be disclosed to
\n those of Merger Sub’s and Investor’s<\/p>\n
24<\/p>\n
or their affiliates’ directors, officers, employees, agents and advisors
\n (collectively, the “Representatives”) who (a) need to know such information
\n for the purpose of the transactions contemplated hereby, (b) shall be
\n advised by Merger Sub or Investor, as the case may be, of this provision,
\n (c) agree to hold the information provided pursuant to Section 7.8(a) as
\n secret and confidential and (d) agree with Merger Sub and Investor to be
\n bound by the provisions hereof. Merger Sub and Investor jointly agree to be
\n responsible for any breach of this section by any of their Representatives.
\n If this Agreement is terminated, Investor shall, and shall cause Merger Sub
\n and each of their Representatives to, return or destroy (and certify
\n destruction of) all information provided pursuant to Section 7.8(a).<\/p>\n
7.9 Further Assurances.<\/p>\n
(a) Subject to the terms and conditions of this Agreement, each of
\n Investor and the Company shall, and shall cause its subsidiaries to, use
\n all reasonable efforts (i) to take, or cause to be taken, all actions
\n necessary, proper or advisable to comply promptly with all legal
\n requirements which may be imposed on such party or its subsidiaries with
\n respect to the Merger and, subject to the conditions set forth in Article 8
\n hereof, to consummate the transactions contemplated by this Agreement,
\n including, without limitation, the Merger, as promptly as practicable and
\n (ii) to obtain (and to cooperate with the other party to obtain) any
\n consent, authorization, order or approval of, or any exemption by, any
\n Governmental Entity and any other third party which is required to be
\n obtained by the Company or Investor or any of their respective subsidiaries
\n in connection with the Merger and the other transactions contemplated by
\n this Agreement, and to comply with the terms and conditions of any such
\n consent, authorization, order or approval.<\/p>\n
(b) Subject to the terms and conditions of this Agreement, each of
\n Investor and the Company shall use all reasonable efforts to take, or cause
\n to be taken, all actions, and to do, or cause to be done, all things
\n necessary, proper or advisable to consummate and make effective, as soon as
\n practicable after the date of this Agreement, the transactions contemplated
\n hereby, including, without limitation, using all reasonable efforts to lift
\n or rescind any injunction or restraining order or other order adversely
\n affecting the ability of the parties to consummate the transactions
\n contemplated hereby and using all reasonable efforts to defend any
\n litigation seeking to enjoin, prevent or delay the consummation of the
\n transactions contemplated hereby or seeking material damages.<\/p>\n
7.10 Additional Agreements. In case at any time after the Effective Time
\nany further action is necessary or desirable to carry out the purposes of this
\nAgreement or to vest the Surviving Corporation with full title to all
\nproperties, assets, rights, approvals, immunities and franchises of any of the
\nparties to the Merger, the proper officers and directors of each party to this
\nAgreement and their respective subsidiaries shall take all such necessary action
\nas may be reasonably requested by, and at the sole expense of, the Surviving
\nCorporation.<\/p>\n
7.11 Takeover Statutes. If any “fair price,” “moratorium,” “control share
\nacquisition” or other form of antitakeover statute or regulation shall become
\napplicable to the transactions contemplated hereby, the parties hereto and the
\nmembers of their respective Boards of Directors shall grant such approvals and
\ntake such actions as are reasonably necessary so that the transactions
\ncontemplated hereby may be consummated as promptly as practicable on the terms
\ncontemplated hereby and otherwise act to eliminate or minimize the effects of
\nsuch statute or regulation on the transactions contemplated hereby.<\/p>\n
7.12 Employee Benefits. Merger Sub agrees that, for a minimum period of
\ntwo (2) years following the Effective Time, the employees of the Surviving
\nCorporation will continue to be provided with employee benefit plans (other than
\nstock option or other plans involving the potential issuance of securities of
\nthe Surviving Corporation) which in the aggregate are substantially comparable
\nto those currently provided by the Company to such employees.<\/p>\n
25<\/p>\n
ARTICLE 8<\/p>\n
CONDITIONS PRECEDENT<\/p>\n
8.1 Conditions to Each Party’s Obligation To Effect the Merger. The
\nrespective obligation of each party to effect the Merger is subject to the
\nsatisfaction or waiver on or prior to the Closing Date of the following
\nconditions:<\/p>\n
(a) Company Stockholder Approval. The Company Stockholder Approval
\n shall have been obtained.<\/p>\n
(b) HSR Act. The waiting period (and any extension thereof)
\n applicable to the Merger under the HSR Act shall have been terminated or
\n shall have expired.<\/p>\n
(c) No Injunctions or Restraints. No temporary restraining order,
\n preliminary or permanent injunction or other order issued by any court of
\n competent jurisdiction or other legal restraint or prohibition preventing
\n the consummation of the Merger shall be in effect; provided, however, that
\n the parties hereto shall use their best efforts to have any such
\n injunction, order, restraint or prohibition vacated.<\/p>\n
(d) Foreign Government Consents. If required to be obtained under
\n applicable law prior to the consummation of the Merger, the consent or
\n approval of any Government Entity in any foreign jurisdiction shall have
\n been received.<\/p>\n
8.2 Conditions to Obligation of Merger Sub. The obligation of Merger Sub
\nto effect the Merger is further subject to the following conditions:<\/p>\n
(a) Representations and Warranties. The representations and
\n warranties of the Company set forth in this Agreement shall be true and
\n correct, unless the failure of such representations and warranties to be so
\n true and correct, in the aggregate, has not had and would not reasonably be
\n expected to have a Company Material Adverse Effect (ignoring, for purposes
\n of this Section 8.2(a), any materiality standard expressly included in such
\n representations or warranties) as of the date of this Agreement and as of
\n the Closing Date as though made on and as of the Closing Date. Investor and
\n Merger Sub shall have received a certificate signed on behalf of the
\n Company by the chief executive officer and the chief financial officer of
\n the Company to such effect.<\/p>\n
(b) Performance of Obligations of the Company. The Company shall have
\n performed in all material respects the obligations required to be performed
\n by it under this Agreement at or prior to the Closing Date, and Merger Sub
\n and Investor shall have received a certificate signed on behalf of the
\n Company by the chief executive officer and the chief financial officer of
\n the Company to such effect.<\/p>\n
(c) Consents, etc. Investor and Merger Sub shall have received
\n evidence, in form and substance reasonably satisfactory to them, that such
\n licenses, permits, consents, approvals, authorizations, qualifications and
\n orders of governmental authorities and other third parties as are necessary
\n in connection with the transactions contemplated hereby have been obtained,
\n other than where the failure to so obtain any such licenses, permits,
\n consents, approvals, authorizations, qualifications or orders would not
\n reasonably be expected to have, in the aggregate, a Company Material
\n Adverse Effect.<\/p>\n
(d) Dissenters’ Rights. The aggregate number of shares of Dissenting
\n Common Stock at the Effective Time of the Merger shall not equal 10% or
\n more of the shares of Common Stock outstanding as of the record date for
\n the meeting of stockholders of the Company to vote on the Merger.<\/p>\n
(e) Legal Opinion. Investor and Merger Sub shall have received the
\n opinion of Powell, Goldstein, Frazer & Murphy LLP, counsel to the Company,
\n in form and substance customary for transactions of this type and
\n reasonably satisfactory to Investor and Merger Sub, dated as of the Closing
\n Date, as to the authorization, validity and enforceability of this
\n Agreement with respect to the Company.<\/p>\n
(f) Contribution Agreement. The closing of the transactions under the
\n Contribution Agreement shall have occurred.<\/p>\n
26<\/p>\n
8.3 Conditions to Obligation of the Company. The obligation of the Company
\nto effect the Merger is further subject to the following conditions:<\/p>\n
(a) Representations and Warranties. The representations and
\n warranties of each of Merger Sub and Investor set forth in this Agreement
\n shall be true and correct, unless the failure of such representations and
\n warranties to be so true and correct, in the aggregate, has not had and
\n would not reasonably be expected to have a Material Adverse Effect on
\n Merger Sub or Investor, respectively (ignoring, for purposes of this
\n Section 8.3(a), any materiality standard expressly included in such
\n representations or warranties), as of the date of this Agreement and as of
\n the Closing Date as though made on and as of the Closing Date (except for
\n such representations and warranties which are made as of a particular date,
\n which shall be true and correct (subject to the above qualification) as of
\n such date). The Company shall have received a certificates signed on behalf
\n of each of Merger Sub and Investor by the chief executive officer and the
\n chief financial officer of each of Merger Sub and Investor to such effect.<\/p>\n
(b) Performance of Obligations of Merger Sub and Investor. Each of
\n Merger Sub and Investor shall have performed in all material respects the
\n obligations required to be performed by it under this Agreement at or prior
\n to the Closing Date, and the Company shall have received certificates
\n signed on behalf of each of Merger Sub and Investor by the chief executive
\n officer and the chief financial officer of each of Merger Sub and Investor
\n to such effect.<\/p>\n
(c) Legal Opinion. The Company shall have received the opinion of
\n Munger Tolles & Olson LLP, counsel to Merger Sub and Investor, in form and
\n substance customary for transactions of this type and reasonably
\n satisfactory to the Company, dated as of the Closing Date, as to the
\n authorization, validity and enforceability of this Agreement with respect
\n to Merger Sub and Investor.<\/p>\n
ARTICLE 9<\/p>\n
TERMINATION, AMENDMENT AND WAIVER<\/p>\n
9.1 Termination. This Agreement may be terminated and abandoned at any
\ntime prior to the Effective Time, whether before or after obtaining the Company
\nStockholder Approval:<\/p>\n
(a) by mutual written consent of Investor and the Company; or<\/p>\n
(b) by either Investor or the Company if any Governmental Entity shall
\n have issued an order, decree or ruling or taken any other action
\n permanently enjoining, restraining or otherwise prohibiting the Merger and
\n such order, decree, ruling or other action shall have become final and
\n nonappealable; or<\/p>\n
(c) by either Investor or the Company if the Merger shall not have
\n been consummated on or before March 31, 2001 (other than due to the failure
\n of the party seeking to terminate this Agreement to perform its obligations
\n under this Agreement required to be performed at or prior to the Effective
\n Time); or<\/p>\n
(d) by either Investor or the Company, if the Company Stockholder
\n Approval shall not have been obtained by reason of the failure to obtain
\n the required vote upon a vote held at a duly held meeting of stockholders
\n or at any adjournment thereof; or<\/p>\n
(e) by Investor, if (i) the Board of Directors of the Company shall
\n have (A) withdrawn, modified or amended, or proposed publicly to withdraw,
\n modify or amend, in a manner adverse to Investor or Merger Sub, its
\n approval or recommendation of this Agreement or the Merger, or failed to
\n reconfirm its recommendation within five (5) business days after a written
\n request to do so, (B) failed to include in the Proxy Statement such
\n recommendation, or (C) approved or recommended, or proposed publicly to
\n approve or recommend, any Takeover Proposal from a person other than Merger
\n Sub or Investor, (ii) the Company shall have failed as soon as practicable
\n (after receipt of all necessary information from Merger Sub and Investor)
\n to mail the Proxy Statement, containing the recommendation by the Board of
\n Directors of the Company of this Agreement and the Merger, to its
\n stockholders, (iii) the Special<\/p>\n
27<\/p>\n
Committee shall have withdrawn, or proposed publicly to withdraw, in a
\n manner adverse to Merger Sub or Investor, its approval of this Agreement or
\n the Merger; or (iv) (x) a Takeover Proposal that is publicly disclosed
\n shall have been commenced, publicly proposed or communicated to the Company
\n which contains a proposal as to price (without regard to whether such
\n proposal specifies a specific price or a range of potential prices) and (y)
\n the Company shall not have rejected such proposal within 10 business days
\n of the earlier of its receipt or the date its existence first becomes
\n publicly disclosed; or<\/p>\n
(f) by the Company, if it concurrently enters into a definitive
\n agreement providing for a Superior Proposal entered into in accordance with
\n Section 7.4(b); or<\/p>\n
(g) by Investor, if any of the conditions set forth in Section 8.2
\n shall fail to be met and any such failure that is reasonably capable of
\n being cured has not been cured by the date specified in Section 9.1(c); or<\/p>\n
(h) by the Company, if any of the conditions set forth in Section 8.3
\n shall fail to be met and any such failure that is reasonably capable of
\n being cured has not been cured by the date specified in Section 9.1(c).<\/p>\n
9.2 Effect of Termination. In the event of termination of this Agreement
\nby either the Company or Investor as provided in Section 9.1, this Agreement
\nshall forthwith become void and have no effect, without any liability or
\nobligation on the part of Investor, Merger Sub or the Company, other than
\npursuant to the provisions of Section 7.3. Nothing contained in this Section
\nshall, however, relieve any party of liability for any breach of the
\nrepresentations, warranties, covenants or agreements set forth in this Agreement
\nprior to any such termination.<\/p>\n
9.3 Amendment. This Agreement may be amended by the parties at any time
\nbefore or after the Company Stockholder Approval; provided, however, that after
\nsuch approval, there shall be made no amendment that by law requires further
\napproval by such stockholders without the further approval of such stockholders.
\nThis Agreement may not be amended except by an instrument in writing signed on
\nbehalf of each of the parties.<\/p>\n
9.4 Extension; Waiver. At any time prior to the Effective Time, the
\nparties may (a) extend the time for the performance of any of the obligations or
\nother acts of the other parties, (b) waive any inaccuracies in the
\nrepresentations and warranties contained in this Agreement or in any document
\ndelivered pursuant to this Agreement or (c) subject to the proviso of Section
\n9.3, waive compliance with any of the agreements or conditions contained in this
\nAgreement. Any agreement on the part of a party to any such extension or waiver
\nshall be valid only if set forth in an instrument in writing signed on behalf of
\nsuch party. The failure of any party to this Agreement to assert any of its
\nrights under this Agreement or otherwise shall not constitute a waiver of such
\nrights.<\/p>\n
ARTICLE 10<\/p>\n
GENERAL PROVISIONS<\/p>\n
10.1 Nonsurvival of Representations and Warranties. None of the
\nrepresentations and warranties in this Agreement or in any instrument delivered
\npursuant to this Agreement shall survive the Effective Time. This Section 10.1
\nshall not limit any covenant or agreement of the parties which by its terms
\ncontemplates performance after the Effective Time.<\/p>\n
10.2 Notices. All notices, requests, claims, demands and other
\ncommunications under this Agreement shall be in writing and shall be deemed
\ngiven when received if delivered personally, on the next business day if sent by
\novernight courier for next business day delivery (providing proof of delivery),
\nwhen confirmation is received, if sent by facsimile or in 5 business days if
\nsent by U.S. registered or certified mail, postage prepaid<\/p>\n
28<\/p>\n
(return receipt requested) to the other parties at the following addresses (or
\nat such other address for a party as shall be specified by like notice):<\/p>\n
(a) if to Investor or Merger Sub, to:<\/p>\n
Berkshire Hathaway Inc.
\n 1440 Kiewit Plaza
\n Omaha, Nebraska 68131
\n Attn: Warren E. Buffett
\n Facsimile No. (402) 346-3375<\/p>\n
with a copy to:<\/p>\n
Munger, Tolles & Olson LLP
\n 355 South Grand Avenue
\n Los Angeles, California 90071
\n Attn: Robert E. Denham
\n Facsimile No. (213) 687-3702<\/p>\n
(b) if to the Company, to:<\/p>\n
Shaw Industries, Inc.
\n 616 East Walnut Avenue
\n Dalton, Georgia 30722
\n Attn: Robert E. Shaw
\n Facsimile No. (706) 275-1985<\/p>\n
and<\/p>\n
Special Committee of the Board of Directors
\n c\/o Shaw Industries, Inc.
\n 616 East Walnut Avenue
\n Dalton, Georgia 30722
\n Facsimile No. (706) 275-1985<\/p>\n
with copies to:<\/p>\n
Shaw Industries, Inc.
\n 616 East Walnut Avenue
\n Dalton, Georgia 30722
\n Attn: General Counsel
\n Facsimile No. (706) 275-1985<\/p>\n
Powell, Goldstein, Frazer & Murphy LLP
\n Sixteenth Floor
\n 191 Peachtree Street, N.E.
\n Atlanta, Georgia 30303
\n Attn: G. William Speer
\n Facsimile No. (404) 572-6999<\/p>\n
and<\/p>\n
Winston & Strawn
\n 35 West Wacker Drive
\n Chicago, Illinois 60601
\n Attn: Terrence R. Brady
\n Facsimile No. (312) 558-5626<\/p>\n
29<\/p>\n
10.3 Definitions. For purposes of this Agreement:<\/p>\n
(a) an “affiliate” of any person means another person that directly or
\n indirectly, through one or more intermediaries, controls, is controlled by,
\n or is under common control with, such first person; and<\/p>\n
(b) “person” means an individual, corporation, partnership, joint
\n venture, association, trust, unincorporated organization or other entity.<\/p>\n
10.4 Interpretation. A reference made in this Agreement to an Article,
\nSection, Exhibit or Schedule, shall be to an Article or Section of, or an
\nExhibit or Schedule to, this Agreement unless otherwise indicated. The table of
\ncontents and headings contained in this Agreement are for reference purposes
\nonly and shall not affect the meaning or interpretation of this Agreement.
\nWhenever the words “include,” “includes” or “including” are used in this
\nAgreement, they shall be deemed to be followed by the words “without
\nlimitation.”<\/p>\n
10.5 Counterparts. This Agreement may be executed in one or more
\ncounterparts, all of which shall be considered one and the same agreement and
\nshall become effective when one or more counterparts have been signed by each of
\nthe parties and delivered to the other parties.<\/p>\n
10.6 Entire Agreement; No Third-Party Beneficiaries. This Agreement
\n(including the documents and instruments referred to herein) constitutes the
\nentire agreement between the parties, and supersedes all prior agreements and
\nunderstandings, both written and oral, between the parties with respect to the
\nsubject matter hereof. Except as provided in Section 7.2, this Agreement is not
\nintended to confer upon any person other than the parties hereto any rights or
\nremedies.<\/p>\n
10.7 Governing Law. This Agreement shall be governed by, and construed in
\naccordance with, the laws of the State of Georgia regardless of the laws that
\nmight otherwise govern under applicable principles of conflicts of laws thereof.<\/p>\n
10.8 Assignment. Neither this Agreement nor any of the rights, interests
\nor obligations under this Agreement shall be assigned, in whole or in part, by
\noperation of law or otherwise, by any of the parties without the prior written
\nconsent of the other parties. Any assignment in violation of the preceding
\nsentence shall be void. Subject to the preceding two sentences, this Agreement
\nwill be binding upon, inure to the benefit of, and be enforceable by, the
\nparties and their respective successors and assigns.<\/p>\n
10.9 Enforcement. The parties agree that irreparable damage would occur in
\nthe event that any of the provisions of this Agreement were not performed in
\naccordance with their specific terms or were otherwise breached. It is
\naccordingly agreed that the parties shall be entitled to an injunction or
\ninjunctions to prevent breaches of this Agreement and to enforce specifically
\nthe terms and provisions of this Agreement in any court of the State of Georgia
\nor of the United States located in the State of Georgia in the event any dispute
\narises out of this Agreement or any of the transactions contemplated by this
\nAgreement, and each party agrees (a) it will not attempt to deny or defeat
\npersonal jurisdiction or venue in any such court by motion or other request for
\nleave from any such court and (b) it will not bring any action relating to this
\nAgreement or any of the transactions contemplated by this Agreement in any court
\nother than any such court.<\/p>\n
10.10 Severability. Whenever possible, each provision or portion of any
\nprovision of this Agreement will be interpreted in such manner as to be
\neffective and valid under applicable law but if any provision or portion of any
\nprovision of this Agreement is held to be invalid, illegal or unenforceable in
\nany respect under any applicable law or rule in any jurisdiction, such
\ninvalidity, illegality or unenforceability will not affect any other provision
\nor portion of any provision in such jurisdiction, and this Agreement will be
\nreformed, construed and enforced in such jurisdiction as if such invalid,
\nillegal or unenforceable provision or portion of any provision had never been
\ncontained herein, so long as the economic and legal substance of the
\ntransactions contemplated hereby are not affected in a manner materially adverse
\nto any party hereto.<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6889],"corporate_contracts_industries":[9446],"corporate_contracts_types":[9622,9626],"class_list":["post-43112","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-berkshire-hathaway-inc","corporate_contracts_industries-insurance__property","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43112","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43112"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43112"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43112"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43112"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}