STOCK OPTION AGREEMENT, dated as of June 11, 1999 (the "Agreement"), by
and between SUPERIOR SERVICES, INC., a Wisconsin corporation ("Issuer") and
VIVENDI, a societe anonyme organized under the laws of France ("Grantee").
RECITALS
A. Issuer, Grantee and Onyx Solid Waste Acquisition Corp., a Wisconsin
corporation and an indirect wholly-owned subsidiary of Grantee ("Merger Sub"),
have entered into an Agreement and Plan of Merger, dated as of the date hereof
(the "Merger Agreement"; defined terms used but not defined herein have the
meanings set forth in the Merger Agreement), providing for, among other things,
an Offer by Merger Sub for all the outstanding Shares of Issuer and, subsequent
thereto, assuming the Offer is consummated on the terms set forth in the Offer
Documents and all the other conditions to the Merger are satisfied or waived,
the Merger of Merger Sub with and into Issuer with Issuer as the surviving
corporation in the Merger, pursuant to which Issuer will become a wholly-owned
subsidiary of Grantee; and
B. As a condition and inducement to each of Grantee's and Merger Sub's
willingness to enter into the Merger Agreement, Grantee has requested that
Issuer agree, and Issuer has agreed, to grant Grantee the Option (as defined
below).
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, Issuer
and Grantee agree as follows:
1. Grant of Option. Subject to the terms and conditions set forth herein,
Issuer hereby grants to Grantee an irrevocable option (the "Option") to purchase
up to 6,440,653 (as adjusted as set forth herein) shares (the "Option Shares"),
of Common Stock, par value $0.01 per share ("Issuer Common Stock"), of Issuer at
a purchase price of $* (as adjusted as set forth herein) per Option Share (the
"Purchase Price"); provided, however, that in no event shall the number of
Option Shares exceed 19.9% of the capital stock entitled to vote generally for
the election of directors of Issuer that is issued and outstanding at the time
of exercise (without giving effect to the Option Shares issued or issuable under
the Option) (the "Maximum Applicable Percentage"). The number of Option Shares
purchasable upon exercise of the Option and the Option Price are subject to
adjustment as set forth herein and subject to Section 9(b).
2. Exercise of Option. (a) Grantee may exercise the Option, with respect
to any or all of the Option Shares at any time, subject to the provisions of
Section 2(d), after the occurrence of any event as a result of which the Grantee
is entitled to receive a termination fee pursuant to Section 9.05(b) of the
Merger Agreement (a "Purchase Event"); provided, however, that (i) except as
provided in the last sentence of this Section 2(a), the Option will terminate
and be of no further force and effect upon the earliest to occur of (A) the
Effective Time, (B) 12 months after the first occurrence of a Purchase Event,
and (C) termination of the Merger Agreement in accordance with its terms prior
to the occurrence of a Purchase Event, and (ii) any purchase of Option Shares
upon exercise of the Option will be subject to compliance with the HSR Act and
the obtaining or making of any consents, approvals, orders, notifications,
filings, expiration of applicable waiting periods or authorizations, the failure
of which to have obtained or made would have the effect of making the purchase
of Option Shares by Grantee illegal (the "Regulatory Approvals").
Notwithstanding the termination of the Option, Grantee will be entitled to
purchase the Option Shares if it has exercised the Option in accordance with the
terms hereof prior to the termination of the Option and the termination of the
Option will not affect any rights hereunder which by their terms do not
terminate or expire prior to or as of such termination.
(b) Grantee shall exercise the Option, with respect to that number of
Option Shares equal to the Applicable Amount (as defined below), subject to the
provisions of Section 2(d) and to clause (ii) of the proviso of Section 2(a), if
(a) Merger Sub shall have accepted Shares for payment pursuant to the terms of
the Offer and (b) Grantee and Merger Sub shall own at least 61 percent of the
then outstanding Shares (determined on a fully-diluted basis, but excluding
Shares subject to the Option granted hereunder); provided that Grantee shall not
be required to exercise the Option pursuant to this Section 2(b) if Grantee and
Merger Sub shall own at least 75 percent of the then outstanding Shares
(determined on a fully-diluted basis, but excluding Shares subject to the Option
granted hereunder)); and provided, further, that in
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no event shall Grantee be required to exercise the Option prior to Merger Sub's
acceptance of Shares for payment pursuant to the terms of the Offer. The
"Applicable Amount" shall be that number of Shares which, when added to the
number of Shares owned by Grantee and Merger Sub immediately prior to its
exercise of the Option, would result in Purchaser Merger Sub owning immediately
after its exercise of the Option that number of Shares that provides Grantee
Merger Sub with at least 50.1% of the votes represented by outstanding Shares
(determined on a fully diluted basis).
(c) In the event that Grantee is required to, or is entitled to and
wishes to exercise the Option, it will send to Issuer a written notice (an
"Exercise Notice"; the date of which being herein referred to as the "Notice
Date") to that effect which Exercise Notice also specifies the number of Option
Shares, if any, Grantee wishes to purchase pursuant to this Section 2(c), the
number of Option Shares, if any, with respect to which Grantee wishes to
exercise its Cash-Out Right (as defined herein) pursuant to Section 7(c), the
denominations of the certificate or certificates evidencing the Option Shares
which Grantee wishes to purchase pursuant to this Section 2(c) and a date (an
"Option Closing Date"), subject to the following sentence, not later than (i) 20
business days, in the event of an exercise of the Option pursuant to Section
2(a) and (ii) 3 business days in the event of an exercise of the Option pursuant
to Section 2(b), from the Notice Date for the closing of such purchase (an
"Option Closing"). Any Option Closing will be at an agreed location and time in
New York, New York on the applicable Option Closing Date or at such later date
as may be necessary so as to comply with the provisions of Section 2(d).
(d) Notwithstanding anything to the contrary contained herein, any
exercise of the Option and purchase of Option Shares shall be subject to
compliance with applicable laws and regulations, which may prohibit the purchase
of any or all of the Option Shares specified in the Exercise Notice without
first obtaining or making certain Regulatory Approvals. In such event, if the
Option is otherwise exercisable and Grantee wishes or is required to exercise
the Option, the Option may be exercised in accordance with Section 2(c) and
Grantee shall acquire the maximum number of Option Shares specified in the
Exercise Notice that Grantee is then permitted to acquire under the applicable
laws and regulations, and if Grantee thereafter obtains the
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Regulatory Approvals to acquire the remaining balance of the Option Shares
specified in the Exercise Notice, then Grantee shall be entitled to or shall to
the extent required acquire such remaining balance. Issuer agrees to use its
reasonable best efforts to assist Grantee in seeking the Regulatory Approvals
and Grantee agrees to use its reasonable best efforts to obtain such Regulatory
Approvals as promptly as practicable.
In the event (i) Grantee exercised the Option pursuant to Section 2(a),
(ii) Grantee receives official notice that a Regulatory Approval required for
the purchase of any Option Shares will not be issued or granted or (iii) such
Regulatory Approval has not been issued or granted within six months of the date
of the Exercise Notice, Grantee shall have the right to exercise its Cash- Out
Right pursuant to Section 7(c) with respect to the Option Shares for which such
Regulatory Approval will not be issued or granted or has not been issued or
granted.
3. Payment and Delivery of Certificates. (a) At any Option Closing,
Grantee will pay to Issuer in immediately available funds by wire transfer to a
bank account designated in writing by Issuer an amount equal to the Purchase
Price multiplied by the number of Option Shares to be purchased at such Option
Closing.
(b) At any Option Closing, simultaneously with the delivery of
immediately available funds as provided in Section 3(a), Issuer will deliver to
Grantee a certificate or certificates representing the Option Shares to be
purchased at such Option Closing, which Option Shares will be free and clear of
all liens, claims, charges and encumbrances of any kind whatsoever. If at the
time of issuance of the Option Shares hereunder, the Issuer shall have issued
any rights or other securities which are attached to or otherwise associated
with the Issuer Common Stock, then each Option Share shall also represent such
rights or other securities with terms substantially the same as, and at least as
favorable to the Grantee as are provided under any shareholder rights agreement
or similar agreement of the Issuer then in effect.
(c) Certificates for the Option Shares delivered at an Option Closing
will have typed or printed thereon a restrictive legend which will read
substantially as follows:
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
BE REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT
TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCK
OPTION AGREEMENT, DATED AS OF JUNE 11, 1999, A COPY OF WHICH MAY
BE OBTAINED FROM THE SECRETARY OF SUPERIOR SERVICES, INC. AT ITS
PRINCIPAL EXECUTIVE OFFICES."
It is understood and agreed that (i) the reference to restrictions arising under
the Securities Act in the above legend will be removed by delivery of substitute
certificate(s) without such reference if such Option Shares have been registered
pursuant to the Securities Act, such Option Shares have been sold in reliance on
and in accordance with Rule 144 under the Securities Act or Grantee has
delivered to Issuer a copy of a letter from the staff of the SEC, or an opinion
of counsel in form and substance reasonably satisfactory to Issuer and its
counsel, to the effect that such legend is not required for purposes of the
Securities Act and (ii) the reference to restrictions pursuant to this Agreement
in the above legend will be removed by delivery of substitute certificate(s)
without such reference if the Option Shares evidenced by certificate(s)
containing such reference have been sold or transferred in compliance with the
provisions of this Agreement under circumstances that do not require the
retention of such reference.
4. Covenants of Issuer. In addition to its other agreements and covenants
herein, Issuer agrees:
(a) Shares Reserved for Issuance. To maintain, free from
preemptive rights, sufficient authorized but unissued or treasury shares
of Issuer Common Stock so that the Option may be fully exercised without
additional authorization of Issuer Common Stock after giving effect to
all other options, warrants, convertible securities and other rights of
third parties to purchase shares of Issuer Common Stock from Issuer, and
to issue the appropriate number of shares of Issuer Common Stock pursuant
to the terms of this Agreement.
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(b) No Avoidance. Not to avoid or seek to avoid (whether by
charter amendment or through reorganiza tion, consolidation, merger,
issuance of rights, dissolution or sale of assets, or by any other volun
tary act) the observance or performance of any of the covenants,
agreements or conditions to be observed or performed hereunder by Issuer.
5. Representations and Warranties of Issuer. Issuer hereby represents and
warrants to Grantee as follows:
(a) Merger Agreement. Issuer hereby makes each of the
representations and warranties contained in Sections 6.1(b), 6.1(d) and
6.1(j) of the Merger Agreement as they relate to Issuer and this
Agreement, as if such representations and warranties were set forth
herein.
(b) Corporate Authority. Issuer hereby represents and warrants to
Grantee that Issuer has all requisite corporate power and authority and
has taken all corporate action necessary in order to execute, deliver and
perform its obligations under this Agreement and to consummate the
transactions contemplated hereby; the execution and delivery of this
Agreement have been duly authorized by all necessary corporate action on
the part of Issuer, and constitutes a valid and binding agreement of
Issuer enforceable against Issuer in accordance with its terms.
(c) Authorized Stock. Issuer has taken all necessary corporate and
other action to authorize and reserve and, subject to the expiration or
termination of any required waiting period under the HSR Act, to permit
it to issue, and, at all times from the date hereof until the obligation
to deliver Option Shares upon the exercise of the Option terminates,
shall have reserved for issuance, upon exercise of the Option, shares of
Issuer Common Stock necessary for Grantee to exercise the Option, and
Issuer will take all necessary corporate action to authorize and reserve
for issuance all additional shares of Issuer Common Stock or other
securities which may be issued pursuant to Section 7 upon exercise of the
Option. The shares of Issuer Common Stock to be issued upon due exercise
of the Option, including all additional shares of Issuer Common Stock or
other securities which may be issuable
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upon exercise of the Option or any other securities which may be issued
pursuant to Section 7, upon issuance pursuant hereto, will be duly and
validly issued, fully paid and nonassessable (except as provided in
Section 180.0622(2)(b) of the Wisconsin Business Corporation Law), and
will be delivered free and clear of all liens, claims, charges and
encumbrances of any kind or nature whatsoever, including without
limitation any preemptive rights of any shareholder of Issuer.
(d) Takeover Statutes. Issuer's board of directors has taken all
appropriate and necessary actions such that Sections 180.1140 to 180.1144
of the WBCL and Article IV of the Company's Restated Articles are
inapplicable to the execution and delivery of this Agreement and to the
consummation of the transactions contemplated hereby. No other Takeover
Statute as in effect on the date hereof is applicable to the execution
and delivery of this Agreement, the Issuer Common Stock issuable
hereunder or to the other transactions contemplated by this Agreement. No
anti-takeover provision contained in Issuer's Restated Articles or
by-laws is applicable to the execution and delivery of this Agreement,
the Issuer Common Stock issuable hereunder or to the other transactions
contemplated by this Agreement.
6. Representations and Warranties of Grantee. Grantee hereby represents
and warrants to Issuer that:
Purchase Not for Distribution. Any Option Shares or other
securities acquired by Grantee upon exercise of the Option will not be
transferred or otherwise disposed of except in a transaction registered,
or exempt from registration, under the Securities Act.
7. Adjustment upon Changes in Capitalization, Etc. (a) In the event of
any change in the Issuer Common Stock by reason of a stock dividend, split-up,
reverse stock split, merger, recapitalization, combination, exchange of shares,
or similar transaction, the type and number of shares or securities subject to
the Option, and the Purchase Price thereof, will be adjusted appropriately, and
proper provision will be made in the agreements governing such transaction, so
that Grantee will receive upon exercise of the Option the number and class of
shares or other
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securities or property that Grantee would have received in respect of Issuer
Common Stock if the Option had been exercised immediately prior to such event or
the record date therefor, as applicable. Subject to Section 1, and without
limiting the parties' relative rights and obligations under the Merger
Agreement, if any additional shares of Issuer Common Stock are issued after the
date of this Agreement (other than pursuant to an event described in the first
sentence of this Section 7(a)), the number of shares of Issuer Common Stock
subject to the Option will be adjusted so that, after such issuance, it equates
the Maximum Applicable Percentage.
(b) Without limiting the parties' relative rights and obligations under
the Merger Agreement, in the event that Issuer enters into an agreement (i) to
consolidate with or merge into any person, other than Grantee or one of its
subsidiaries, and Issuer will not be the continuing or surviving corporation in
such consolidation or merger, (ii) to permit any person, other than Grantee or
one of its subsidiaries, to merge into Issuer and Issuer will be the continuing
or surviving corporation, but in connection with such merger, the shares of
Issuer Common Stock outstanding immediately prior to the consummation of such
merger will be changed into or exchanged for stock or other securities of Issuer
or any other person or cash or any other property, or the shares of Issuer
Common Stock outstanding immediately prior to the consummation of such merger
will, after such merger, represent less than 50% of the outstanding voting
securities of the merged company, or (iii) to sell or otherwise transfer all or
substantially all of its assets to any person, other than Grantee or one of its
subsidiaries, then, and in each such case, the agreement governing such
transaction will make proper provision so that the Option will, upon the
consummation of any such transaction and upon the terms and conditions set forth
herein, be converted into, or exchanged for, an option with identical terms
appropriately adjusted to acquire the number and class of shares or other
securities or property that Grantee would have received in respect of Issuer
Common Stock if the Option had been exercised immediately prior to such
consolidation, merger, sale, or transfer, or the record date therefor, as
applicable, and make any other necessary adjustments.
(c) If, at any time during the period commencing on a Purchase Event and
ending on the termination of the
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Option in accordance with Section 2, Grantee sends to Issuer an Exercise Notice
indicating Grantee's election to exercise its right (the "Cash-Out Right")
pursuant to this Section 7(c), then Issuer shall pay to Grantee, on the Option
Closing Date, in exchange for the cancellation of the Option with respect to
such number of Option Shares as Grantee specifies in the Exercise Notice, an
amount in cash equal to such number of Option Shares multiplied by the
difference between (i) the average closing price, for the 10 NASDAQ/National
Market System ("NASDAQ/NMS") trading days commencing on the 12th NASDAQ/NMS
trading day immediately preceding the Notice Date, per share of Issuer Common
Stock as reported on the NASDAQ/NMS (or, if not listed on the NASDAQ/NMS, as
reported on any other national securities exchange or national securities
quotation system on which the Issuer Common Stock is listed or quoted, as
reported in The Wall Street Journal (Northeast edition), or, if not reported
therein, any other authoritative source) (the "Closing Price") and (ii) the
Purchase Price. Notwithstanding the termination of the Option, Grantee will be
entitled to exercise its rights under this Section 7(c) if it has exercised such
rights in accordance with the terms hereof prior to the termination of the
Option.
8. Registration Rights. Issuer will, if requested by Grantee at any time
and from time to time within two years of the exercise of the Option, as
expeditiously as possible prepare and file up to two registration statements
under the Securities Act if such registration is necessary in order to permit
the sale or other disposition of any or all Option Shares or securities that
have been acquired by or are issuable to Grantee upon exercise of the Option in
accordance with the intended method of sale or other disposition stated by
Grantee, including a "shelf" registration statement under Rule 415 under the
Securities Act or any successor provision, and Issuer will use its reasonable
best efforts to qualify such Option Shares or other securities under any
applicable state securities laws. Grantee agrees to use reasonable best efforts
to cause, and to cause any underwriters of any sale or other disposition to
cause, any sale or other disposition pursuant to such registration statement to
be effected on a widely distributed basis so that upon consummation thereof no
purchaser or transferee will own beneficially more than 4.9% of the
then-outstanding voting power of Issuer. Issuer will use reasonable best efforts
to cause each such registration statement to become effective, to obtain all
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consents or waivers of other parties which are required therefor, and to keep
such registration statement effective for such period not in excess of 90
calendar days from the day such registration statement first becomes effective
as may be reasonably necessary to effect such sale or other disposition. The
obligations of Issuer hereunder to file a registration statement and to maintain
its effectiveness may be suspended for up to 60 calendar days in the aggregate
if the Board of Directors of Issuer shall have determined in good faith that the
filing of such registration statement or the maintenance of its effectiveness
would require premature disclosure of material nonpublic information that would
materially and adversely affect Issuer or otherwise interfere with or adversely
affect any pending or proposed offering of securities of Issuer or any other
material transaction involving Issuer. Any registration statement prepared and
filed under this Section 8, and any sale covered thereby, will be at Issuer's
expense, except for underwriting discounts or commissions, brokers' fees and the
fees and disbursements of Grantee's counsel related thereto. Grantee will
provide all information reasonably requested by Issuer for inclusion in any
registration statement to be filed hereunder. If, during the time periods
referred to in the first sentence of this Section 8, Issuer effects a
registration under the Securities Act of Issuer Common Stock for its own account
or for any other shareholders of Issuer (other than on Form S-4 or Form S-8, or
any successor form), it will allow Grantee the right to participate in such
registration, and such participation will not affect the obligation of Issuer to
effect demand registration statements for Grantee under this Section 8;
provided, that, if the managing underwriters of such offering advise Issuer in
writing that in their opinion the number of shares of Issuer Common Stock
requested to be included in such registration exceeds the number which can be
sold in such offering or could materially impact the marketing or prices of such
offering, Issuer will include the shares requested to be included therein by
Grantee pro rata with the shares intended to be included therein by Issuer. In
connection with any registration pursuant to this Section 8, Issuer and Grantee
will provide each other and any underwriter of the offering with customary
representations, warranties, covenants, indemnification, and contribution in
connection with such registration.
9. Limitation on Profit. (a) Notwithstanding any other provision of this
Agreement, in no event shall
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Grantee's Total Profit (as defined below) plus any Termination Fee and
Reimbursement Fee paid to Grantee pursuant to Section 9.05(b) of the Merger
Agreement exceed in the aggregate $31.5 million and, if the total amount that
otherwise would be received by Grantee would exceed such amount, Grantee, at its
sole election, shall either (i) reduce the number of shares of Issuer Common
Stock subject to the Option, (ii) deliver to the Issuer for cancellation Option
Shares previously purchased by Grantee against the refund of the purchase price
therefore, (iii) pay cash to the Issuer or (iv) any combination thereof, so that
Grantee's actually realized Total Profit, when aggregated with such Termination
Fee and Reimbursement Fee so paid to Grantee, shall not exceed $31.5 million
after taking into account the foregoing actions.
(b) Notwithstanding any other provision of this Agreement, the Option may
not be exercised for a number of Option Shares as would, as of the date of
exercise, result in a Notional Total Profit (as defined below) which, together
with any Termination Fee and Reimbursement Fee theretofore paid to Grantee, and
after giving effect to any election made by Grantee under Section 9(a), would
exceed $31.5 million; provided, that nothing in this sentence shall restrict any
exercise of the Option permitted hereby on any subsequent date.
(c) As used herein, the term "Total Profit" shall mean the aggregate
amount (before taxes) of the following: (i) the amount received by Grantee
pursuant to Issuer's repurchase of the Option (or any portion thereof) pursuant
to Section 7(c), (ii)(x) the net cash amounts or the fair market value of any
property received by Grantee pursuant to the sale of Option Shares (or (A) any
other securities into which such Option Shares are converted or exchanged or (B)
any property, cash or other securities received pursuant to adjustments under
Section 7 or delivered pursuant to Section 3(b) ("Additional Property") to any
unaffiliated party, but in no case less than the fair market value of such
Option Shares, less (y) the Grantee's purchase price of such Option Shares, and
(iii) the net cash amounts received by Grantee on the transfer (in accordance
with Section 13(g) hereof) of the Option (or any portion thereof) to any
unaffiliated party.
(d) As used herein, the term "Notional Total Profit" with respect to any
number of Option Shares as to
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which Grantee may propose to exercise the Option shall be the Total Profit
determined as of the date of such proposal assuming for such purpose that the
Option were exercised on such date for such number of Option Shares and assuming
that (i) such Option Shares (or any other securities into which such Option
Shares are converted or exchanged), together with all other Option Shares held
by Grantee and its affiliates as of such date, were sold for cash at the closing
market price on the NASDAQ/NMS for the Issuer Common Stock as of the close of
business on the preceding trading day (less customary brokerage commissions) and
(ii) the Additional Property is disposed of for fair market value.
10. Transfers. The Option Shares may not be sold, assigned, transferred,
or otherwise disposed of except (i) in an underwritten public offering as
provided in Section 8 or (ii) to any purchaser or transferee who would not, to
the knowledge of the Grantee after reasonable inquiry, immediately following
such sale, assignment, transfer or disposal beneficially own more than 4.9% of
the then-outstanding voting power of the Issuer; provided, however, that Grantee
shall be permitted to sell any Option Shares if such sale is made pursuant to a
tender or exchange offer that has been approved or recommended by a majority of
the members of the Board of Directors of Issuer.
11. Listing. If Issuer Common Stock or any other securities to be
acquired upon exercise of the Option are then listed on the NASDAQ/NMS (or any
other national securities exchange or national securities quotation system),
Issuer, upon the request of Grantee, will promptly file an application to list
the shares of Issuer Common Stock or other securities to be acquired upon
exercise of the Option on the NASDAQ/NMS (and any other such national securities
exchange or national securities quotation system) and will use reasonable best
efforts to obtain approval of such listing as promptly as practicable.
12. Loss or Mutilation. Upon receipt by Issuer of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this
Agreement, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Agreement, if mutilated, Issuer will execute and deliver a new Agreement of like
tenor and date. Any such new agreement executed and delivered will constitute an
additional contractual obligation on the part
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of Issuer, whether or not the Agreement so lost, stolen, destroyed, or mutilated
shall at any time be enforceable by anyone.
13. Miscellaneous.
(a) Expenses. Except as otherwise provided in the Merger Agreement, each
of the parties hereto will bear and pay all costs and expenses incurred by it or
on its behalf in connection with the transactions contemplated hereunder,
including fees and expenses of its own financial consultants, investment
bankers, accountants, and counsel.
(b) Amendment. This Agreement may not be amended, except by an instrument
in writing signed on behalf of each of the parties.
(c) Extension; Waiver. Any agreement on the part of a party to waive any
provision of this Agreement, or to extend the time for performance, will be
valid only if set forth in an instrument in writing signed on behalf of such
party. The failure of any party to this Agreement to assert any of its rights
under this Agreement or otherwise will not constitute a waiver of such rights.
(d) Entire Agreement; No Third-Party Beneficiaries. This Agreement, the
Merger Agreement (including the documents and instruments attached thereto as
exhibits or schedules or delivered in connection therewith), the Shareholder
Tender Agreement and the Confidentiality Agreement (as amended) (i) constitute
the entire agreement, and supersede all prior agreements and understandings,
both written and oral, between the parties with respect to the subject matter of
this Agreement, and (ii) except as provided in Section 10.9(b) of the Merger
Agreement, are not intended to confer upon any person other than the parties any
rights or remedies.
(e) Governing Law. This Agreement shall be deemed to be made in and in
all respects shall be interpreted, construed and governed by and in accordance
with the law of the State of Delaware applicable to contracts to be performed
wholly in such state.
(f) Notices. All notices, requests, claims, demands, and other
communications under this Agreement must be in writing and will be deemed given
if delivered
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personally, telecopied (which is confirmed), or sent by overnight courier
(providing proof of delivery) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
if to Grantee:
Vivendi
00, Xxxxxx xx Xxxxxxxxx
00000 Xxxxx Cedex 08
France
Attention: Xxxxx Xxxxxxx
fax: (000) 00-000-00-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx, Esq. and
Xxxxx X. Xxxxxxx, Esq.
fax: (000) 000-0000
(000) 000-0000)
if to the Issuer:
Superior Services, Inc.,
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxx and
Xxxxx X. Xxxxxx
fax: (000) 000-0000
with a copy to:
Xxxxx & Lardner
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
fax: (000) 000-0000
(g) Assignment. Neither this Agreement, the Option nor any of the rights,
interests, or obligations under this Agreement may be assigned or delegated, in
whole or in part, by operation of law or otherwise, by Issuer or Grantee without
the prior written consent of the other. Any assignment or delegation in
violation of the preceding sentence will be void. Subject to the first and
second
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sentences of this Section 13(g), this Agreement will be binding upon, inure to
the benefit of, and be enforceable by, the parties and their respective
successors and assigns.
(h) Further Assurances. In the event of any exercise of the Option by
Grantee, Issuer and Grantee will execute and deliver all other documents and
instruments and take all other actions that may be reasonably necessary in order
to consummate the transactions provided for by such exercise.
(i) Enforcement; Venue; Waiver of Jury Trial. (a) The parties agree that
irreparable damage would occur and that the parties would not have any adequate
remedy at law in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties will be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any Federal court located in the
State of Delaware or in Delaware state court, the foregoing being in addition to
any other remedy to which they are entitled at law or in equity. The parties
hereby irrevocably submit to the jurisdiction of the courts of the State of
Delaware and the Federal courts of the United States of America located in the
State of Delaware solely in respect of the interpretation and enforcement of the
provisions of this Agreement and of the documents referred to in this Agreement
and in respect of the transactions contemplated hereby, and hereby waive, and
agree not to assert, as a defense in any action, suit or proceeding for the
interpretation or enforcement hereof or of any such document, that it is not
subject thereto or that such action, suit or proceeding may not be brought or is
not maintainable in said courts or that the venue thereof may not be appropriate
or that this Agreement or any such document may not be enforced in or by such
courts, and the parties hereto irrevocably agree that all claims with respect to
such action or proceeding shall be heard and determined in such a Delaware State
or Federal court. The parties hereby consent to and grant any such court
jurisdiction over the person of such parties and over the subject matter of such
dispute and agree that mailing of process or other papers in connection with any
such action or proceeding in the manner provided in Section 13(f) or in such
other manner as may be permitted by law shall be valid and sufficient service
thereof.
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(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 13(i)(b).
14. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the fullest
extent possible.
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IN WITNESS WHEREOF, Issuer and Grantee have caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the day and
year first written above.
VIVENDI
By: _________________________
Name:
Title:
SUPERIOR SERVICES, INC.
By: _________________________
Name:
Title:
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