AGREEMENT
Exhibit 10.1
AGREEMENT
This Agreement (this “Agreement”) is made and entered into as of this 15th day of February, 2008, by and among Georgia Gulf Corporation, a Delaware corporation (the “Company”), and Sun Capital Securities Fund, LP, a Delaware limited partnership (“SCSF”).
RECITALS
WHEREAS, each of SCSF Equities, LLC, a Delaware limited liability company, Sun Capital Securities Offshore Fund, Ltd., a Cayman Islands corporation, Sun Capital Securities Fund, LP, a Delaware limited partnership, Sun Capital Securities Advisors, LP, a Delaware limited partnership, Sun Capital Securities, LLC, a Delaware limited liability company, Marc J. Leder and Rodger R. Krouse (collectively, the “Sun Parties”) is the Beneficial Owner of the shares of common stock, par value $0.01 per share (“Common Stock”), of the Company set forth in the Statement on Schedule 13D, initially filed jointly by the Sun Parties with the Securities and Exchange Commission (the “SEC”) on April 30, 2007 (as amended through the date hereof, the “Schedule 13D”), which shares represent approximately 12.5% of the outstanding shares of Common Stock (the term “Beneficial Owner” as used in this Agreement having the meaning ascribed to such term in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”));
WHEREAS, the Board of Directors of the Company (the “Board”) is committed to maintaining high standards of corporate governance and identifying and attracting highly qualified individuals with appropriate experience, skill sets, business acumen and diversity to become members of the Board and, in furtherance thereof, the Board (upon the unanimous recommendation of the Nominating and Corporate Governance Committee of the Board (the “Nominating Committee”)) has unanimously determined that it is in the best interests of the Company and the holders of Common Stock to appoint a designee of the Sun Parties to the Board effective immediately following the Company’s 2008 Annual Meeting of Stockholders; and
WHEREAS, SCSF and the Company are entering into this Agreement to set forth the terms upon which (i) the Sun Parties shall have the right to designate and have appointed to the Board one member of the Board, (ii) the Sun Parties have designated Bud Terry as their designee for these purposes, (iii) the Board will appoint such designee as a Class II director to serve until the 2010 Annual Meeting of Stockholders (and, for clarity, not cause him to stand for election at the 2008 Annual Meeting), and (iii) the Sun Parties will agree to vote, in their capacities as holders of Company Common Stock, for the election of each of the Board’s nominees at the 2008 Annual Meeting of Stockholders of the Company and to refrain from nominating any competing candidates.
NOW, THEREFORE, in consideration of the premises and mutual promises herein made, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and SCSF hereby agree as follows:
1. Board Representation.
(a) In accordance with the Company’s Certificate of Incorporation (the “Charter”), Amended and Restated Bylaws (the “Bylaws”), Corporate Governance Guidelines (the “Corporate Governance Guidelines”) and Nominating Committee Charter (the “Nominating Committee Charter”), the Company agrees that, immediately following the 2008 Annual Meeting, the Board, at a duly convened meeting of directors, will take the necessary action upon the recommendation of the Nominating Committee providing that: (i) the size of the Board shall be increased by one Class II seat and the size of the Board shall be adjusted appropriately; (ii) Bud Terry or another person designated by the Sun Parties and reasonably acceptable to the Board (the “Sun Designee”) shall be appointed as a director of the Company effective immediately to fill the newly-created directorship (and vacancy) resulting from such increase in the size of the Board (and, for clarity, not be required to stand for election at the 2008 Annual Meeting); and (iii) the Sun Designee shall be appointed to serve as a member of the Nominating Committee. In the event that a vacancy is created on the Board at any time prior to the 2010 Annual Meeting by the death, disability, retirement or resignation of Bud Terry, the Sun Parties, the Company, the Nominating Committee and the Board shall take all such actions as necessary or appropriate to result in the prompt election or appointment to the Board of a new individual designated by the Sun Parties and shall take all of the actions referred to in the immediately preceding sentence with respect to such new individual designated by the Sun Parties, as applicable. As promptly as reasonably practicable after the date hereof, the Sun Parties shall provide the Company with all such information as the Company shall reasonably request, including, without limitation, all information about the Sun Designee as would be required (including under Schedule 14A, Regulation 14A and Regulation S-K promulgated under the Securities Act of 1933, as amended, and the Exchange Act (collectively, the “Proxy Rules”)) to be included in a proxy statement with respect to the nomination and election of directors.
(b) The Company agrees that, pending Mr. Terry’s appointment to the Board, the Company shall (i) invite Mr. Terry to participate in all meetings of the Board of Directors of the Company in a nonvoting observer capacity, (ii) give Mr. Terry the same notice of any such meeting that it provides to its directors at the same time the Company provides such notice to its directors, (iii) permit Mr. Terry, at his election, to attend such meetings telephonically, (iv) give Mr. Terry copies of all notices, minutes, consents, reports and other material that the Company provides to its directors when such material is provided to the directors, (v) permit Mr. Terry, during normal business hours and after receipt of prior written notice, to have reasonable access to the properties, books, records and contracts of the Company so long as such access is not disruptive to the Company’s operations, and (vi) provide Mr. Terry the opportunity to consult with senior management of the Company from time to time as reasonably requested by him regarding the Company, and its operations, properties, financial condition and affairs.
(c) Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not be required to nominate the Sun Designee or otherwise perform its obligations under this Section 1 with respect to the Sun Designee
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unless at all times after the date hereof and prior to the 2008 Annual Meeting the Sun Parties satisfy the Minimum Condition. “Minimum Condition” shall mean the beneficial ownership by the Sun Parties of at least an aggregate of 8% of the shares of Common Stock, adjusted proportionally in all cases to reflect any stock dividend or distribution, stock split, reverse stock split, combination, recapitalization or similar transaction affecting the outstanding shares of Common Stock after the date hereof; provided, however, that the Minimum Condition shall not be breached by any reduction in the percentage of beneficial ownership caused by any increase in the Company’s shares outstanding.
(d) If, at any time within the two year period after the Sun Designee is appointed to the Board, the Sun Parties shall fail to satisfy the Minimum Condition, the Sun Parties shall notify the Company promptly (and in any event within three business days) and shall cause the Sun Designee on the Board to resign immediately by executing and delivering an irrevocable resignation as a member of the Board.
2. Voting for Board Nominees and Sun Designee at Annual Meeting. At the 2008 Annual Meeting, the Sun Parties shall cause all of the shares of Common Stock beneficially owned by them to be present in person or represented by proxy at the 2008 Annual Meeting for quorum purposes and to be voted at the 2008 Annual Meeting (i) for the election (or re-election) of each of the Company’s existing directors, provided they are nominated by the Nominating Committee and the Board; (ii) against any stockholder nominations for election as director that are not approved by the Board; (iii) in favor of retaining the Company’s independent auditors as proposed by the board; and (iv) either in a manner consistent with the recommendations of the Board or as an abstention for any other matters to come before the 2008 Annual Meeting.
3. Compensation. The Sun Designee shall be compensated for his service as a director and shall be reimbursed for his expenses on the same basis as all other non-employee directors of the Company are compensated and shall be eligible to be granted stock options (or other stock-based compensation) on the same basis as all other non-employee directors of the Company; provided that the Company may prohibit the exercise of any stock options granted to the Sun Designee (and may prohibit the receipt of other stock-based compensation by the Sun Designee) if such exercise (or receipt) would result in any person or persons becoming an “Acquiring Person,” as defined in the Amended and Restated Rights Agreement, dated as of December 5, 2000, between Georgia Gulf and EquiServe Trust Company, N.A., as amended (the “Rights Agreement”). In the event the Company prohibits the exercise of any stock options granted to the Sun Designee as contemplated in the proviso to the immediately preceding sentence, in lieu of any such stock option, the Company shall grant to the Sun Designee a stock appreciation right (“SAR”) that is settled only in cash, with the base price of the SAR to be equivalent to the exercise price that would otherwise have been applicable if a stock option were granted, and that otherwise has terms as similar as reasonably practicable to terms that would have applied if an option were granted and, if the Company provides other stock-based compensation to its non-employee directors the receipt of which by the Sun Designee is prohibited by the Company in accordance with the proviso to the immediately preceding sentence, the Company shall provide to the Sun
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Designee, in lieu thereof, phantom stock or other stock units that are settled only in cash and that otherwise have terms as similar as reasonably practicable to terms applicable to such stock-based compensation.
4. Stockholder Capacity. The Company acknowledges and agrees that SCSF is executing this Agreement for itself and on behalf of the Sun Parties solely in their capacities as the Beneficial Owners of the shares of Common Stock set forth in the Statement on Schedule 13D, and nothing in this Agreement shall limit or restrict any partner, member, director, officer, employee or affiliate (as such term is defined in Rule 12b-2 under the Exchange Act) of any of the Sun Parties who is or becomes during the term hereof a member of the Board from acting, omitting to act or refraining from taking any action, solely in such person’s capacity as a member of the Board consistent with his or her fiduciary duties in such capacity as required by applicable law. In furtherance of this acknowledgement, and in connection with approving this Agreement, the Company’s Board of Directors has passed a resolution substantially in the form attached hereto as Annex A relating to the waiver of the corporate opportunity doctrine with respect to the Sun Designee’s service on the Board.
5. Confidential Information.
(a) As soon as reasonably practicable following the execution and delivery of this Agreement, the Sun Designee and the Company will enter into an appropriate confidentiality agreement for the purpose of allowing the Company to integrate the Sun Designee into the business and affairs of the Company in anticipation of his appointment to the Board after the 2008 Annual Meeting.
(b) The Sun Parties acknowledge their obligations under applicable law in connection with the Sun Designee’s membership on the Board as contemplated by this Agreement, including, without limitation, their respective obligations under the Exchange Act and Regulation FD thereunder, and the Sun Parties agree to maintain any material non-public information relating to the Company that they may possess in confidence, until such time as such information is no longer material and non-public, except as may be required by law.
6. Standstill.
(c) The Sun Parties hereby acknowledge and agree that through the Expiration Date (as defined below), neither the Sun Parties, nor their respective Representatives, will on the Sun Parties’ behalf (and neither the Sun Parties nor their respective Representatives on the Sun Parties’ behalf will assist, provide or arrange financing to or for others or encourage others to), directly or indirectly, acting alone or in concert with others (including by forming, joining or entering a group (within the meaning of Section 13(d)(4) of the Exchange Act)), unless specifically requested in writing in advance by the Company’s Board of Directors:
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(i) with respect to the Company or its Common Stock, make, engage or in any way participate in, directly or indirectly, any “solicitation” (as such term is used in the proxy rules of the SEC) of proxies or consents (whether or not relating to the election or removal of directors); seek to advise, encourage or influence any person with respect to the voting of any Common Stock (other than Affiliates);
(ii) except as specifically and expressly set forth in this Agreement, seek, alone or in concert with others, election or appointment to, or representation on, or nominate or propose the nomination of any candidate to, the Board;
(iii) initiate, propose or otherwise “solicit” (as such term is used in the proxy rules of the SEC) shareholders of the Company for the approval of shareholder proposals whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt to cause or encourage any other person to initiate any such shareholder proposal, regardless of its purpose, otherwise communicate with the Company’s shareholders or others pursuant to Rule 14a-1(l)(2)(iv)(A) under the Exchange Act;
(iv) seek or propose to influence or control the management or policies of the Company (provided that the actions of the Sun Designee as a member of the Board shall not be deemed to violate the foregoing);
(v) form, join in or in any other way participate in a “partnership, limited partnership, syndicate or other group” within the meaning of Section 13(d)(3) of the Exchange Act with respect to the Common Stock or deposit any shares of Common Stock in a voting trust or similar arrangement or subject any shares of Common Stock to any voting agreement or pooling arrangement, other than solely with other Sun Parties or one or more Affiliates of a Sun Party pursuant to this Agreement;
(vi) acquire or agree, offer, seek or propose to acquire ownership (including, but not limited to, Beneficial Ownership) of any assets or businesses of the Company or any equity securities issued by the Company, or any rights or options to acquire such ownership (including from a third party); provided, however, that the Sun Parties and their Affiliates may acquire or agree, offer, seek or propose to acquire Beneficial Ownership of additional shares of Common Stock and rights or options to acquire Common Stock, but only to the extent that ownership of such Common Stock and rights or options to acquire Common Stock would not result in the Beneficial Ownership by the Sun Parties and their Affiliates of an aggregate 15.0% or more of the outstanding shares of Common Stock;
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(vii) propose or enter into, directly or indirectly, any merger, share exchange, consolidation, recapitalization, business combination or other similar transaction involving the Company or any of its Affiliates;
(viii) enter into any discussions, negotiations, arrangements, agreements or understandings with any third party with respect to any of the foregoing, or otherwise advise, assist or encourage any other third party in connection with any of the foregoing; and
(ix) seek or request permission to do any of the foregoing, request to amend or waive any provision of this paragraph, or make or seek permission to make any public announcement with respect to any of the foregoing.
(d) As used in this Agreement:
“Affiliate” means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with the person specified.
“Expiration Date” means the earliest to occur of (a) the day immediately following the first anniversary of the date of the election of Mr. Terry to the Board, (b) the date that (i) a third party independently makes a public announcement of its intention to or commences a tender or exchange offer or other such offer or process with respect to a majority of the voting securities of the Company without the prior approval of the board of directors of the Company or (ii) the Company publicly announces that it has entered into a definitive agreement with respect to a merger, acquisition or sale of all or substantially all of its assets with a third party or is pursuing such an agreement, (c) May 31, 2009 or (d) such earlier time as may be determined by a majority of the Board of Directors.
“Representatives” means, with respect to any person, such person’s directors, officers, managers, employees, investment bankers, financial advisors, accountants, attorneys, agents and other representatives.
7. Representations and Warranties of the Company. The Company hereby represents and warrants to the Sun Parties as follows:
(a) The Company has the corporate power and authority to execute, deliver and carry out the terms and provisions of this Agreement and to consummate the transactions contemplated hereby.
(b) This Agreement has been duly and validly authorized, executed and delivered by the Company, constitutes a valid and binding obligation and agreement of the Company, and is enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws affecting the rights of creditors and subject to general equity principles.
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(c) The execution, delivery and performance of this Agreement by the Company does not and will not (i) violate or conflict with any law, rule, regulation, order, judgment or decree applicable to it or (ii) result in any breach or violation of any of its organizational documents.
8. Representations and Warranties of SCSF. SCSF hereby represents and warrants to the Company, on behalf of itself and the Sun Parties, as follows:
(a) SCSF has the entity power and authority, as applicable, to execute, deliver and carry out the terms and provisions of this Agreement and to consummate the transactions contemplated hereby.
(b) This Agreement has been duly and validly authorized, executed, and delivered by SCSF on behalf of itself and each of the Sun Parties, constitutes a valid and binding obligation and agreement of each of the Sun Parties, and is enforceable against each of the Sun Parties in accordance with its terms, except as enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws affecting the rights of creditors and subject to general equity principles.
(c) The execution, delivery and performance of this Agreement by SCSF does not and will not (i) violate or conflict with any law, rule, regulation, order, judgment or decree applicable to any Sun Party or (ii) result in any breach or violation of any of any of the Sun Parties’ organizational documents.
9. Miscellaneous.
(a) This Agreement may not be amended except by an instrument in writing signed by each of the parties hereto. The failure or delay by any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights nor shall any single or partial exercise by any party to this Agreement of any of its rights under this Agreement preclude any other or further exercise of such rights or any other rights under this Agreement. Any waiver shall be effective only in the specific instance and for the specific purpose for which the waiver is given and shall not constitute a waiver to any subsequent or other exercise of any right, remedy, power or privilege hereunder.
(b) All notices, requests, claims, demands, waivers and other communications required or permitted under this Agreement shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, or by telecopy or facsimile, upon confirmation of receipt by the recipient, or (b) on the first business day following the date of dispatch if delivered by a recognized next-day courier service. All notices hereunder shall be delivered addressed to the parties (and shall be deemed delivered only if delivered by one of the means described in the immediately preceding sentence) at the following addresses (or at such other address for a party as shall be specified by notice hereunder):
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| if to any of the Sun Parties, to: |
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| SCSF Equities, LLC |
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| c/o Sun Capital Partners, Inc. |
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| 5200 Town Center Circle, Suite 600 |
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| Boca Raton, Florida 33486 |
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| Attention: | Phil Brown |
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| C. Deryl Couch |
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| Facsimile: | (561) 394-0540 |
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| with a copy (which shall not constitute notice pursuant to this Section 9(b)) to: | |||||
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| Kirkland & Ellis LLP | |||||
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| 200 East Randolph Drive | |||||
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| Chicago, Illinois 60601 | |||||
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| Attention: | Douglas Gessner, P.C. |
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| Gerald T. Nowak |
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| Facsimile: | (312) 861-2200 |
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| if to the Company, to: | |||||
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| Georgia Gulf Corporation | |||||
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| 115 Perimeter Center Place | |||||
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| Atlanta, Georgia 30346 | |||||
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| Attention: | Joel I. Beerman |
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| Facsimile: | (770) 390-9673 |
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| with a copy (which shall not constitute notice pursuant to this Section 9(b)) to: | |||||
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| Jones Day | |||||
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| 1420 Peachtree Street, N.E. | |||||
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| Atlanta, GA 30309-3053 | |||||
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| Attention: | John E. Zamer |
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| Lizanne Thomas |
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| Facsimile: | (404) 581-8330 |
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(c) The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Wherever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. The words “hereof”, “hereto”, “hereby”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The words “date hereof’ shall refer to the date of this Agreement. The term “or” is not exclusive.
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(d) This Agreement may be executed in one or more counterparts (including by facsimile), all of which shall be considered one and the same agreement. This Agreement shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties. Each party need not sign the same counterpart.
(e) This Agreement (i) constitutes the entire agreement and supersedes all prior agreements, understandings and negotiations, both written and oral, among the parties hereto with respect to the subject matter of this Agreement and (ii) is not intended to confer upon any person other than the parties hereto any rights or remedies.
(f) This Agreement shall be governed by, and construed in accordance with, the internal procedural and substantive laws of the State of Delaware, applicable to instruments and agreements made and performed entirely in such state and without regard to the conflicts of law principles of such state.
(g) 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 shall 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 any state court in the State of Delaware, this being in addition to any other remedy to which they are entitled at law or in equity. In addition, each of the parties hereto hereby agrees that any claim, suit, action or other proceeding, directly or indirectly, arising out of, under or relating to this Agreement shall be heard and determined in the Chancery Court of the State of Delaware or the United States Federal District Court for the State of Delaware (and each agrees that no such claim, action, suit or other proceeding relating to this Agreement shall be brought by it or any of its affiliates except in such courts), and the parties hereto hereby irrevocably and unconditionally submit to the exclusive jurisdiction of such courts in any such claim, suit, action or other proceeding and irrevocably and unconditionally waive (and agree not to plead or claim) the defense of an inconvenient forum to the maintenance of any such claim, suit, action or other proceeding. The parties hereto hereby agree that a final judgment in any such claim, suit, action or other proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.
(h) Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of law or otherwise, by any Sun Party, on the one hand, without the prior written consent of the Company nor by the Company, on the other hand, without the prior written consent of SCSF, and any assignment without such consent shall be null and void, except that the Sun Parties may assign their rights hereunder to any affiliate (as such term is defined in Rule 12b-2 under the Exchange Act) to whom any such entity transfers shares of Common Stock, provided that in such case, such affiliate agrees to be bound by the terms and conditions of this Agreement. Any purported assignment in violation of this Section 9(h) shall be void. Subject to the preceding sentences of this Section 9(h), this Agreement shall be binding
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upon, inure to the benefit of and be enforceable by the parties hereto and their respective heirs, personal representatives, successors and assigns.
(i) Each party hereto hereby waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or other proceeding directly or indirectly arising out of, under or in connection with this Agreement.
(j) 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 to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.
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IN WITNESS WHEREOF, each of the undersigned has executed this Agreement as of the date first above written.
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| THE COMPANY: | ||||
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| GEORGIA GULF CORPORATION | ||||
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| By: | /s/ Joel I. Beerman | |||
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| Name: | Joel I. Beerman | |||
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| Title: | Vice President & General Counsel | |||
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| SCSF: | ||||
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| SCSF EQUITIES, LLC | ||||
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| By: | /s/ Philip E. Brown | |||
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| Name: | Philip E. Brown | |||
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| Its: | Vice President | |||
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ANNEX A — RESOLUTIONS RE: CORPORATE OPPORTUNITIES
WHEREAS, Bud Terry, a Director of the Corporation, is affiliated with Sun Capital Partners, Inc. (“Sun Capital”); and
WHEREAS, Mr. Terry will be appointed to serve as a director pursuant to that certain Agreement, dated as of February , 2008, by and among the Corporation and certain affiliates of Sun Capital (the “Agreement”); and
WHEREAS, Mr. Terry is the Sun Parties’ (as defined in the Agreement) designee for purposes of the Agreement; and
WHEREAS, the Board acknowledges that affiliates of Sun Capital may now or in the future engage in (i) the same or similar activities or related lines of business as those in which the Corporation, directly or indirectly, engages, and/or (ii) other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage, and/or (iii) other transactions, potential transactions, business opportunities, activities or lines of business in which the Corporation may have an expectancy, interest or desire to engage (together, “Opportunities”); and
WHEREAS, the Board desires to renounce any expectancy or interest in the Opportunities pursuant to Section 122(17) of the Delaware General Corporation Law;
RESOLVED, that (i) no transaction, potential transaction, business opportunity, activity or line of business that is presented to Sun Capital or any of its affiliates and for which the recipient or contact at Sun Capital or any such affiliate is a person other than Mr. Terry (or his successor designee) shall constitute or be deemed to constitute an Opportunity for the Corporation, (ii) the Board hereby renounces, in the name and on behalf of the Corporation and to the fullest extent legally permissible, any and all expectancy and interest in any such transaction, potential transaction, business opportunity, activity or line of business, (iii) neither Sun Capital nor any of its affiliates shall have any duty to communicate or offer any such transaction, potential transaction, business opportunity, activity or line of business to the Corporation as a result of Mr. Terry’s (or his successor’s) service as a Director of the Corporation, and (iv) neither Sun Capital nor any of its affiliates shall have any duty to refrain therefrom (directly, indirectly or through any assignee or transferee) as a result of Mr. Terry’s (or his successor’s) service as a Director of the Corporation; and
FURTHER RESOLVED, that if any transaction, potential transaction, business opportunity, activity or line of business is presented
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directly to Mr. Terry (or his successor designee) as recipient or contact, in each case other than as a direct result of Mr. Terry’s (or his successor’s) service as a Director of the Corporation or in his capacity as such a Director, then (i) no such transaction, potential transaction, business opportunity, activity or line of business shall constitute or be deemed to constitute an Opportunity for the Corporation, and the Board hereby renounces, in the name and on behalf of the Corporation and to the fullest extent legally permissible, any and all expectancy and interest in any such transaction, potential transaction, business opportunity, activity or line of business, (ii) neither Mr. Terry (or his successor designee) nor any of his affiliates (including Sun Capital or any of its affiliates) shall have any duty to communicate or offer any such transaction, potential transaction, business opportunity, activity or line of business to the Corporation, and (iii) neither Mr. Terry (or his successor designee) nor any of his affiliates (including Sun Capital or any of its affiliates shall have any duty to refrain therefrom (directly, indirectly or through any assignee or transferee) as a result of Mr. Terry’s (or his successor’s) service as a Director of the Corporation;
FURTHER RESOLVED, that, in addition to, and notwithstanding, the foregoing resolutions, a transaction, potential transaction, business opportunity, activity or line of business (i) that the Corporation is not financially able, contractually permitted, or legally able to undertake, or (ii) that is, from its nature, not in the line of the Corporation’s business, is of no practical advantage to the Corporation, or is one in which the Corporation has no interest or reasonable expectancy, shall not in any such case (i) or (ii), be deemed to constitute a corporate opportunity belonging to the Corporation, and the Corporation hereby renounces any and all interest therein to the fullest extent permitted by law; and
FURTHER RESOLVED, that the Board shall not modify, amend or revoke (in whole or in part) either of the foregoing resolutions unless it gives Mr. Terry (or his successor designee) written notice received by him within one (1) business day following such action that any such modification, amendment or revocation has taken place, setting forth in full the specific action taken in respect thereof.
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