Exhibit 99.2
TERMINATION AGREEMENT
TERMINATION AGREEMENT, dated as of July 24, 2000 (this "Agreement"), among
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MOHAWK CORP., a Delaware corporation ("Parent"), MOHAWK ACQUISITION CORP., a New
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York corporation and a wholly owned subsidiary of Parent ("Purchaser"), and PSC
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Inc., a New York corporation ("PSC").
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WHEREAS, Parent, Purchaser and PSC are parties to an Agreement and Plan of
Merger, dated as of June 5, 2000, as amended on July 17, 2000 (the "Merger
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Agreement"; capitalized terms used but not otherwise defined herein have the
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meanings assigned to such terms in the Merger Agreement);
WHEREAS, Section 9.01(a) of the Merger Agreement provides that the Merger
Agreement may be terminated at any time prior to the Effective Time by mutual
written consent duly authorized by the Boards of Directors of Parent, Purchaser
and PSC; and
WHEREAS, the Board of Directors of each of Parent, Purchaser and PSC has
determined that it is in the best interests of their respective companies and
stockholders to terminate the Merger Agreement, and has authorized the
termination of the Merger Agreement pursuant to Section 9.01(a) thereof, upon
the terms and subject to the conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective covenants
and agreements set forth in this Agreement, the parties hereto agree as follows:
SECTION 1. Termination. Effective immediately upon execution of this Agreement,
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the Merger Agreement is hereby terminated pursuant to Section 9.01(a) of the
Merger Agreement by the mutual written consent of the parties thereto.
SECTION 2. Effect of Termination; Mutual Discharge and Waiver. (a) Except
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as expressly provided in this Agreement and notwithstanding Section 9.02 of the
Merger Agreement, as a result of the termination of the Merger Agreement
pursuant hereto, the Merger Agreement shall become void, and there shall be no
liability under the Merger Agreement on the part of any party hereto or any of
their respective affiliates, subsidiaries, directors, officers, stockholders,
employees, agents, financial and legal advisors and other representatives, and
all rights and obligations of each party thereto shall cease, including, without
limitation, the rights and obligations set forth in Section 9.03 of the Merger
Agreement and any liability for the willful or intentional breach of any
representations, warranties, covenants or agreements contained therein.
(b) All costs and expenses incurred in connection with this Agreement, the
Merger Agreement or the transactions contemplated hereby and thereby shall be
paid by the party incurring such expenses.
(c) Each party hereto, on behalf of itself and, to the extent permitted by law,
its affiliates, subsidiaries, directors, officers, stockholders, employees,
agents, financial and legal advisors and other representatives, and the
successors and assigns of each of them (each, a "Releasing Party"), hereby
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releases each other party hereto and each of their respective affiliates,
subsidiaries directors, officers, stockholders, employees, agents, financial and
legal advisors and other representatives, and the successors and assigns of each
of them, from any and all liabilities and obligations, claims, causes of action
and suits, at law or in equity, whether now known or
unknown, whether arising under any United States federal, state or local or any
foreign law or otherwise, that any Releasing Party has, has had or may have in
the future arising out of, relating to, or in connection with the Merger
Agreement, the Stockholders Agreement and the transactions contemplated thereby,
including, without limitation, any liability or obligation set forth in Section
9.03 of the Merger Agreement and any liability or obligation arising out of any
breach or alleged breach of any representation, warranty, covenant or agreement
contained in the Merger Agreement, provided that nothing in this Section 2 shall
impair the survival and full force of the terms of the Confidentiality
Agreements (as defined in Section 5 below).
SECTION 3. Termination of the Offer. Effective immediately upon the
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execution of this Agreement and the issuance of the press release attached
hereto at Addendum A, the Offer is hereby terminated by Parent and Purchaser.
SECTION 4. Acknowledgement of Termination of Stockholders Agreement. Parent,
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Purchaser and PSC each acknowledge that, by virtue of the termination of the
Merger Agreement pursuant to Section 1 hereof and the termination of the Offer
pursuant to Section 3 hereof, the Stockholders Agreement is simultaneously
terminated in accordance with its terms and no obligations, rights,
responsibilities or other encumbrances or restrictions of any kind shall result
or arise therefrom.
SECTION 5. Survival of Confidentiality Agreements. Notwithstanding anything
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contained in this Agreement or in the Merger Agreement to the contrary, the
provisions of the Confidentiality Agreement dated as of December 16, 1999,
between Xxxxx Xxxxx Data Collection, Inc. ("WADC") and PSC, the Confidentiality
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and Non-Waiver Agreement, dated as of January 19, 2000, between WADC and PSC and
the Confidentiality and Non-Waiver Agreement, dated as of April 6, 2000, between
WADC and PSC (collectively, the "Confidentiality Agreements") shall survive and
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remain in full force and effect in accordance with their terms. By July 28,
2000, pursuant to the Confidentiality Agreements, WADC, Parent, Purchaser and
the Company agree to return to the other party all Proprietary Information and
Investigative Analysis Information (both as defined in the Confidentiality
Agreements) held by it or any of its affiliates, directors, officers, employees,
agents, financing sources, financial advisors, legal advisors, accountants or
controlling persons (the "Representatives"), and to destroy all other documents,
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memoranda, notes, summaries, analyses, extracts, compilations, studies or other
material prepared by or in the possession of the other party or their
Representatives, based on the Proprietary Information. By July 28, 2000, WADC,
Parent, Purchaser and the Company agree to provide a written certification,
executed by an officer of the party certifying that the party and their
Representatives have returned or destroyed all Proprietary Information and
Investigative Analysis Information in their possession.
SECTION 6. Governing Law. This Agreement shall be governed by, and construed in
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accordance with, the laws of the State of New York applicable to contracts
executed in and to be performed in that State. All actions and proceedings
arising out of or relating to this Agreement shall be heard and determined
exclusively in any New York state court sitting in the Fifth Judicial District
or Seventh Judicial District of the New York Supreme Court or any federal court
sitting in the Northern District of the State of New York or the Western
District of the State of New York. The parties hereto hereby (a) submit to the
exclusive jurisdiction of any New York state court sitting in the Fifth Judicial
District or Seventh Judicial District of the New York Supreme Court or any
federal court sitting in the Northern District of the State of New York or the
Western District of the State of New York for the purpose of any Action arising
out of or
relating to this Agreement brought by any party hereto, and (b)
irrevocably waive, and agree not to assert by way of motion, defense, or
otherwise, in any such Action, any claim that it is not subject personally to
the jurisdiction of the above-named courts, that its property is exempt or
immune from attachment or execution, that the Action is brought in an
inconvenient forum, that the venue of the Action is improper, or that this
Agreement may not be enforced in or by any of the above-named courts.
SECTION 7. Waiver of Jury Trial. Each of the parties hereto hereby waives
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to the fullest extent permitted by applicable law any right it may have to a
trial by jury with respect to any litigation directly or indirectly arising out
of, under or in connection with this Agreement or the Merger Agreement.
SECTION 8. Specific Performance. The parties hereto agree that irreparable
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damage would occur in the event any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 9. Headings. The descriptive headings contained in this Agreement
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are included for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 10. Miscellaneous. This Agreement may be modified or amended only be a
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writing signed by the parties hereto. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first written above by their respective officers thereunto duly
authorized.
MOHAWK CORP.
By: /s/ X. X. Xxxxxxxx
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Name: X. X. Xxxxxxxx
Title: Vice President, Chief Financial Officer
MOHAWK ACQUISITION CORP.
By: /s/ X. X. Xxxxxxxx
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Name: X. X. Xxxxxxxx
Title: Vice President, Chief Financial Officer
PSC INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President, Chief Financial Officer
The undersigned executes this Agreement so as to be bound by all applicable
provisions, in particular the provisions of Section 5 hereto, and agrees to
abide by the terms of this Agreement as if a party to the foregoing agreement.
XXXXX XXXXX DATA COLLECTION, INC.
By: /s/ X. X. Xxxxxxxx
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Name: X. X. Xxxxxxxx
Title: Chief Financial Officer
