Exhibit 99.(c)(3)
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 $23.75 (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 no event shall Grantee be
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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
Grantee and Merger Sub owning immediately after its exercise of the Option that
number of Shares that provides Grantee and 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 reorganization, consolidation, merger, issuance of
rights, dissolution or sale of assets, or by any other voluntary 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: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Directeur General
SUPERIOR SERVICES, INC.
By: /s/ G. Xxxxxxx Xxxxxxxx
--------------------------------
Name: G. Xxxxxxx Xxxxxxxx
Title: President and CEO
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