APPLICABLE TO SOUTHEASTERN OR ITS RESPECTIVE PROPERTIES OR ASSETS,
EXCEPT, IN THE CASE OF CLAUSE (II), AS WOULD NOT, INDIVIDUALLY OR IN THE
AGGREGATE, BE REASONABLY EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT (A) ON
SOUTHEASTERN OR (B) ON THE ABILITY OF SOUTHEASTERN TO PERFORM ITS OBLIGATIONS
UNDER THIS AGREEMENT.
3.3.
CONSENTS.
ALL CONSENTS, APPROVALS, ORDERS AND AUTHORIZATIONS
REQUIRED ON THE PART OF SOUTHEASTERN AND, TO ITS KNOWLEDGE, ON THE PART OF ITS
ADVISORY CLIENTS, IN CONNECTION WITH THE EXECUTION, DELIVERY OR PERFORMANCE OF
THIS AGREEMENT HAVE BEEN OBTAINED AND ARE EFFECTIVE.
3.4.
BENEFICIAL OWNERSHIP.
AS OF THE DATE HEREOF, SOUTHEASTERN
BENEFICIALLY OWNS APPROXIMATELY 28.6% OF THE COMMON STOCK, SUCH PERCENTAGE
INCLUDING CERTAIN SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF CONVERTIBLE
SENIOR NOTES ISSUED BY THE COMPANY.
SOUTHEASTERN HAS NOT FORMED A GROUP WITH
ANY OTHER PERSON OR PERSONS AND IS NOT A MEMBER OF A GROUP.
SOUTHEASTERN SHALL
NOT TAKE ANY ACTIONS SUCH THAT IT AND ANY OTHER PERSON OR PERSONS MAY BE DEEMED
TO BE A GROUP.
3.5.
INVESTMENT COMPANY ACT.
SOUTHEASTERN IS NOT A "PARTICIPANT IN A
JOINT ENTERPRISE", WITHIN THE MEANING OF SECTION 17(D) OF THE INVESTMENT COMPANY
ACT OF 1940, AS AMENDED (THE "1940 ACT") AND RULE 17D-1 THEREUNDER, WITH
LONGLEAF PARTNERS FUND (THE "FUND") AS A CONSEQUENCE OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, AND THE BOARD OF DIRECTORS OF THE FUND,
INCLUDING A MAJORITY OF THE DIRECTORS WHO ARE NOT "INTERESTED PERSONS" (AS THAT
TERM IS DEFINED IN THE 1940 ACT) OF
THE FUND, HAVE FOUND THAT ANY INTEREST OF
SOUTHEASTERN IN A PARTICIPANT IN THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
IS NOT "MATERIAL" WITHIN THE MEANING OF RULE 17D-1(D)(5) UNDER THE 1940 ACT, AND
HAVE RECORDED OR SHALL RECORD THE BASIS FOR THAT FINDING IN THE MINUTES OF THE
MEETING OF ITS BOARD OF DIRECTORS, AND TO THE BEST OF SOUTHEASTERN'S KNOWLEDGE
NO OTHER PERSON IS A PARTY TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR
HAS A DIRECT OR INDIRECT FINANCIAL INTEREST (AS DEFINED IN 17D-1(D)(5)) IN A
PARTY TO SUCH TRANSACTIONS OTHER THAN THE FUND THAT WOULD CAUSE THE EXEMPTION
AFFORDED BY 17D-1(D)(5) IN RESPECT OF THE FUND'S PARTICIPATION TO BE
UNAVAILABLE.
4.
COVENANTS.
4.1.
STANDSTILL.
(A)
DURING THE STANDSTILL PERIOD (AS DEFINED BELOW), SOUTHEASTERN
SHALL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF THE MAJORITY OF THE ENTIRE BOARD
OF DIRECTORS (EXCLUDING ANY
4
REPRESENTATIVES OR DESIGNEES OF SOUTHEASTERN), EITHER DIRECTLY OR INDIRECTLY
(INCLUDING IN A MANNER WILLFULLY DESIGNED TO CIRCUMVENT THE FOLLOWING
PROVISIONS), ALONE OR IN CONCERT WITH OTHERS:
(I)
IN ANY MANNER ACQUIRE, AGREE TO ACQUIRE OR MAKE ANY PUBLIC
PROPOSAL TO ACQUIRE (WHETHER DIRECTLY OR INDIRECTLY, BY PURCHASE, TENDER OR
EXCHANGE OFFER):
A.
ANY MATERIAL ASSETS OF THE COMPANY OR ANY SUBSIDIARY OF THE
COMPANY; OR
B.
ANY COMMON STOCK, VOTING SECURITIES OR DERIVATIVE SECURITIES OF
THE COMPANY (X) OTHER THAN IN OPEN MARKET TRANSACTIONS THAT DO NOT INVOLVE THE
ISSUANCE OF COMMON STOCK BY THE COMPANY AND (Y) UNLESS AFTER GIVING EFFECT TO
SUCH