Common use of Actions by the Company Clause in Contracts

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Board of Directors at a meeting duly called and held has by a unanimous vote duly adopted resolutions (i) approving this Agreement, the Offer and the Merger, determining that the Merger is advisable and that the terms of the Offer and Merger are fair to, and in the best interests of, the Company's stockholders and recommending that the Company's stockholders accept the Offer and tender all of their shares of Common Stock to Merger Sub and approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, (ii) taking all action necessary to render the restrictions set forth in Section 203 of the Delaware General Corporation Law, as amended (the "DGCL"), inapplicable to the Offer, the Merger, this ---- Agreement, the Tender Agreement and any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreement. The Company further represents and warrants that the Board of Directors has received the opinion of Credit Suisse First Boston Corporation (the "Financial Advisor") to the effect that, as of the date ----------------- of this Agreement, the Offer Consideration to be received in the Offer and the Merger by the holders of Common Stock is fair, from a financial point of view, to such holders (other than Purchaser and its affiliates) (the "Fairness -------- Opinion"). Subject to the last sentence of this Section 1.3(a), the Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the recommendation of the Board of Directors described in the first sentence of this Section 1.3(a). -------------- The Company hereby represents and warrants that it has been authorized by the Financial Advisor to permit the inclusion of the Fairness Opinion and references thereto, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheld) in the Offer Documents, the Schedule 14D-9 (as defined in Section 1.3(b)) and the Proxy Statement (as defined in Section 8.2(b)), if -------------- -------------- applicable. The Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Common Stock owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do so), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal (as defined in Section 8.8) if the Company has complied with the terms of Section 8.8 and ----------- ----------- Section 10.1(e). --------------

Actions by the Company. Neither the Board of Directors of the Company nor any committee thereof shall (ai) The (A) withdraw (or modify in a manner adverse to GameStop), or publicly propose to withdraw (or modify in a manner adverse to GameStop), the approval recommendation or declaration of advisability by such Board of Directors or any such committee thereof of this Agreement, the Company hereby approves Merger or the other transactions contemplated by this Agreement or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) approve or recommend, or allow the Company or any of and consents its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or related to any Company Takeover Proposal (other than a confidentiality agreement referred to in Section 5.2(a)). Notwithstanding the Offer and represents and warrants foregoing, if, prior to obtaining the Company Stockholder Approval, (I) (1) the Board of Directors of the Company shall have determined in good faith, after consultation with outside counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fulfillment of its fiduciary duties or any other obligations under applicable Law, (2) the Company provides written notice (a “Notice of Company Adverse Recommendation”) advising GameStop that the Board of Directors at of the Company has made the determination described in clause (1) above, (3) for a meeting duly called and held has by period of five Business Days following GameStop’s receipt of a unanimous vote duly adopted resolutions (i) approving this AgreementNotice of Company Adverse Recommendation, the Offer and the Merger, determining that the Merger is advisable and that Company negotiates with GameStop in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Offer and Merger are fair to, and in the best interests of, the Company's stockholders and recommending that the Company's stockholders accept the Offer and tender all Company to proceed with its recommendation of their shares of Common Stock to Merger Sub and approve this Agreement and the transactions contemplated herebyMergers and not make such Company Adverse Recommendation Change, including and (4) at the Offer end of such five-Business Day period the Board of Directors of the Company maintains its determination described in clause (1) above (after taking into account such proposed adjustments to the terms and conditions of this Agreement), or (II) (v) the MergerCompany receives a Company Takeover Proposal, (iiw) taking all action necessary to render the restrictions set forth in Section 203 Board of Directors of the Delaware General Corporation Company shall have determined in good faith, after consultation with outside counsel, that the failure to make a Company Adverse Recommendation Change would be inconsistent with the fulfillment of its fiduciary duties or any other obligations under applicable Law, as amended (x) the "DGCL"), inapplicable to the Offer, the Merger, this ---- Agreement, the Tender Agreement and any Company provides GameStop with a Notice of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreement. The Company further represents and warrants Adverse Recommendation advising GameStop that the Board of Directors of the Company has received made the opinion determination described in clause (w) above, (y) for a period of Credit Suisse First Boston Corporation (five Business Days following GameStop’s receipt of a Notice of Company Adverse Recommendation, the "Financial Advisor") Company negotiates with GameStop in good faith to make such adjustments to the effect thatterms and conditions of this Agreement as would enable the Company to proceed with its recommendation of this Agreement and the Mergers and not make such Company Adverse Recommendation Change, as and (z) at the end of such five-Business Day period the Board of Directors of the date ----------------- Company maintains its determination described in clause (w) above (after taking into account such proposed adjustments to the terms and conditions of this Agreement), then the Offer Consideration to be received Board of Directors of the Company may (A) make a Company Adverse Recommendation Change and (B), in the Offer and case of clause (II) above where the Merger by the holders of Common Stock is fairCompany receives a Company Takeover Proposal, from a financial point of view, to such holders (other than Purchaser and its affiliates) (the "Fairness -------- Opinion"). Subject to the last sentence upon termination of this Agreement in accordance with Section 1.3(a8.1(d)(iii), and concurrent payment of the Company ------- -------------- hereby consents Termination Fee in accordance with Section 8.3(b), approve and enter into an agreement relating to a Company Takeover Proposal that constitutes a Company Superior Proposal. No Company Adverse Recommendation Change shall change the inclusion in the Offer Documents of the recommendation approval of the Board of Directors described in the first sentence of this Section 1.3(a). -------------- The Company hereby represents and warrants that it has been authorized by the Financial Advisor to permit the inclusion of the Fairness Opinion and references theretoCompany for purposes of causing the Company’s certificate of incorporation, subject to prior review and consent by any state takeover Law (including Section 203 of the Financial Advisor (such consent not DGCL) or other state Law to be unreasonably withheld) in inapplicable to the Offer Documents, the Schedule 14D-9 (as defined in Section 1.3(b)) Mergers and the Proxy Statement (as defined in Section 8.2(b)), if -------------- -------------- applicable. The Company has been advised other transactions contemplated by each of its directors and executive officers that each such person intends to tender all shares of Common Stock owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do so), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal (as defined in Section 8.8) if the Company has complied with the terms of Section 8.8 and ----------- ----------- Section 10.1(e). --------------Agreement.

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Board of Directors at a meeting duly called and held has by a unanimous vote duly adopted resolutions (i) approving this Agreement, the Offer and the MergerMerger (as defined in Section 2.1), determining that the Merger is advisable and that ----------- the terms of the Offer and Merger are fair to, and in the best interests of, the Company's stockholders and recommending that the Company's stockholders accept the Offer and tender all of their shares of Common Stock to Merger Sub and approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, (ii) taking all action necessary to render the restrictions set forth in Section 203 of the Delaware General Corporation Law, as amended (the "DGCL"), inapplicable to ---- the Offer, the Merger, this ---- Agreement, the Tender Agreement and any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover antitakeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreement. The Company further represents and warrants that the Board of Directors has received the written opinion of Credit Suisse First Boston Corporation Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the "Financial --------- Advisor") to that the effect that, as of the date ----------------- of this Agreement, the Offer Consideration proposed consideration to be received in by the holders of ------- shares of Common Stock pursuant to the Offer and the Merger by the is fair to such holders of Common Stock is fair, from a financial point of view, to such holders (other than Purchaser and its affiliates) view (the "Fairness -------- Opinion"). Subject to the ---------------- last sentence of this Section 1.3(a), the Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the recommendation of the Board of Directors described in the first sentence of this Section 1.3(a). -------------- The Company hereby -------------- represents and warrants that it has been authorized by the Financial Advisor to permit the inclusion of the Fairness Opinion and references thereto, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheld) in the Offer Documents, the Schedule 14D-9 (as defined in Section 1.3(b)) and the Proxy Statement (as defined in Section 8.2(b)), if -------------- -------------- applicable. The -------------- ------------- Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Common Stock owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do so)) provided that the disclosure of the receipt of an Acquisition Proposal (as defined in Section ------- 8.11) and the fact that the Board of Directors is considering such Acquisition ---- Proposal or reviewing it with its advisors shall not by itself constitute such a withdrawal, modification or amendment, except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal (as defined in Section 8.88.11) if the Company has complied with ------------ the terms of Section 8.8 8.11 and ----------- ----------- Section 10.1(e10.1(d). ------------ --------------

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Board board of Directors directors of the Company (the “Company Board”), at a meeting duly called and held has by a unanimous vote held, unanimously duly adopted resolutions (i) approving and declaring the advisability of this Agreement, the Offer (ii) approving this Agreement and the MergerTransactions (such approval having been made in accordance with the DGCL, including for purposes of Section 203 thereof), (iii) determining that this Agreement and the Merger is advisable and that the terms of the Offer and Merger are Transactions to be advisable, fair to, to and in the best interests ofof the Company and the stockholders of the Company (the “Company Stockholders”) and (iv) recommending that, on the terms and subject to the conditions set forth herein, the Company's stockholders and recommending that Company Stockholders accept the Company's stockholders accept Offer, tender their Company Common Shares pursuant to the Offer and tender all of their shares of Common Stock to Merger Sub and approve adopt this Agreement and the transactions contemplated herebyTransactions, including the Offer and the Merger, (ii) taking all action necessary to render the restrictions set forth in Section 203 of the Delaware General Corporation Law, as amended if required (the "DGCL"“Company Board Recommendation”); provided, inapplicable to however, that the OfferCompany Board may withdraw, modify or amend the Merger, this ---- Agreement, the Tender Agreement and any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted Company Board Recommendation as provided by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender AgreementSection 8.03. The Company further represents and warrants that the Board of Directors has received the opinion of Credit Suisse First Boston Corporation (the "Financial Advisor") to the effect that, as of the date ----------------- of this Agreement, the Offer Consideration to be received in the Offer and the Merger by the holders of Common Stock is fair, from a financial point of view, to such holders (other than Purchaser and its affiliates) (the "Fairness -------- Opinion"). Subject to the last sentence of this Section 1.3(a), the Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the Company Board Recommendation to the extent such Company Board Recommendation is not withheld or withdrawn in accordance with Section 8.03. To the extent the foregoing recommendation has been amended or modified in accordance with Section 8.03, the Company hereby consents to the inclusion of the Board of Directors described such recommendation, as so amended or modified, in the first sentence of this Section 1.3(a)Offer Documents. -------------- The Company hereby also represents and warrants that it (A) the Company Board has been authorized received the opinion of Xxxxxx Xxxxxxx & Co. Incorporated (the “Company Financial Advisor”), dated the date of this Agreement, to the effect that, as of such date, and subject to the various assumptions and qualifications set forth therein, the consideration to be received by the Company Stockholders in the Offer and the Merger is fair to such holders from a financial point of view and (B) the Company has obtained or will timely obtain all necessary consents (including the authorization of the Company Financial Advisor Advisor) to permit the inclusion of the Fairness Opinion such opinion in its entirety and references theretothereto in the Offer Documents, the Schedule 14D-9 and the proxy statement or information statement relating to the Merger (as amended, supplemented or modified, the “Proxy/Information Statement”), subject to prior review and consent by the Company Financial Advisor (such consent not to be unreasonably withheld) in the Offer Documents, the Schedule 14D-9 (as defined in Section 1.3(bwithheld or delayed)) and the Proxy Statement (as defined in Section 8.2(b)), if -------------- -------------- applicable. The Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Company Common Stock Shares owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do so), except Offer and that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal (as defined in Section 8.8) if the Company has complied with the terms of Section 8.8 and ----------- ----------- Section 10.1(e). --------------Offer Documents may so state.

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Board of Directors Company Board, at a meeting duly called and held has by a unanimous vote duly adopted resolutions held, unanimously (i) approving adopted and approved this AgreementAgreement and approved the transactions contemplated hereby, including the Offer and the Merger, determining in accordance with the DGCL; (ii) declared that the Merger is advisable and that the terms of the Offer and the Merger and the other transactions contemplated by this Agreement are fair to, and in the best interests of, the Company's Company and the stockholders and of the Company (the “Company Stockholders”); (iii) adopted resolutions recommending that the Company's stockholders Company Stockholders accept the Offer, tender their Company Common Shares pursuant to the Offer and tender all of their shares of Common Stock to Merger Sub and approve adopt this Agreement and the transactions contemplated hereby, including the Offer and approve the Merger, if required (iithe “Company Board Recommendation”); provided, however, that the Company Board may withdraw, modify or amend the Company Board Recommendation as provided by Section 8.03 of this Agreement; and (iv) adopted resolutions taking all action other actions necessary to render the restrictions set forth in Section 203 of the Delaware General Corporation Law, as amended (DGCL and the "DGCL"), Rights inapplicable to each of the Offer, the Merger, Merger and the other transactions contemplated by this ---- Agreement, the Tender Agreement and any . None of the transactions contemplated hereby and thereby and (iii) electingaforesaid actions by the Company Board has been amended, to the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" rescinded or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreement. The Company further represents and warrants that the Board of Directors has received the opinion of Credit Suisse First Boston Corporation (the "Financial Advisor") to the effect that, modified as of the date ----------------- of this Agreement, the Offer Consideration to be received in the Offer and the Merger by the holders of Common Stock is fair, from a financial point of view, to such holders (other than Purchaser and its affiliates) (the "Fairness -------- Opinion")hereof. Subject to the last sentence of this Section 1.3(a), the The Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the Company Board Recommendation to the extent such Company Board Recommendation is not withheld or withdrawn in accordance with Section 8.03 of this Agreement. To the extent the foregoing recommendation has been amended or modified in accordance with Section 8.03 of this Agreement, the Board Company hereby consents to the inclusion of Directors described such recommendation, as so amended or modified, in the first sentence of this Section 1.3(a)Offer Documents. -------------- The Company hereby represents and warrants that it has been authorized by the Financial Advisor obtained all necessary consents to permit the inclusion in its entirety of the Fairness Opinion and references theretofairness opinion of Xxxxxxx, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheld) Xxxxx & Co. in the Offer Documents, the Schedule 14D-9 (as defined below) and, in Section 1.3(b)each case, as necessary, the proxy statement (including the form of proxies) and or information statement relating to the Proxy Statement vote of the Company Stockholders with respect to this Agreement (as defined in Section 8.2(bamended, supplemented or modified, the “Proxy/Information Statement”)), if -------------- -------------- applicable. The Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Company Common Stock Shares owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do so), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal (as defined in Section 8.8) if the Company has complied with the terms of Section 8.8 and ----------- ----------- Section 10.1(e). --------------.

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that Neither the Board of Directors at a meeting duly called and held has by a unanimous vote duly adopted resolutions of the Company nor any committee thereof shall (i) approving this Agreement(A) withdraw (or modify in a manner adverse to Parent), or publicly propose to withdraw (or modify in a manner adverse to Parent), the Offer and the Mergerapproval, determining that the Merger is advisable and that the terms recommendation or declaration of the Offer and Merger are fair to, and in the best interests of, the Company's stockholders and recommending that the Company's stockholders accept the Offer and tender all of their shares of Common Stock to Merger Sub and approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, (ii) taking all action necessary to render the restrictions set forth in Section 203 of the Delaware General Corporation Law, as amended (the "DGCL"), inapplicable to the Offer, the Merger, this ---- Agreement, the Tender Agreement and any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted advisability by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreement. The Company further represents and warrants that the such Board of Directors has received the opinion of Credit Suisse First Boston Corporation (the "Financial Advisor") to the effect that, as of the date ----------------- or any such committee thereof of this Agreement, the Offer Consideration Merger or the other transactions contemplated by this Agreement or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) approve or recommend, or propose publicly to approve or recommend, or allow the Company or any of the Company Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or related to, or that is intended to or would reasonably be received in the Offer and the Merger by the holders of Common Stock is fairexpected to lead to, from a financial point of view, to such holders any Company Takeover Proposal (other than Purchaser and its affiliatesa confidentiality agreement referred to in Section 4.2(a)) (the "Fairness -------- Opinion"an “Acquisition Agreement”). Subject Notwithstanding the foregoing, if, prior to the last sentence of this Section 1.3(a), obtaining the Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the recommendation of Stockholder Approval, the Board of Directors described in the first sentence of this Section 1.3(a). -------------- The Company hereby represents and warrants that it has been authorized by the Financial Advisor to permit the inclusion of the Fairness Opinion and references thereto, subject Company determines in good faith that failure to prior review and consent by the Financial Advisor (such consent not do so would be reasonably likely to be unreasonably withheld) in a violation of its fiduciary duties to the Offer Documentsstockholders of the Company under applicable Delaware Law, the Schedule 14D-9 Company may (as defined in A) terminate this Agreement pursuant to Section 1.3(b)7.1(d)(iii) and cause the Proxy Statement (as defined in Section 8.2(b)), if -------------- -------------- applicable. The Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Common Stock owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do so), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement Acquisition Agreement with respect to a Superior Proposal (which was made after the date hereof and did not otherwise result from a breach of this Section 4.2) or (B) make a Company Adverse Recommendation Change, if: (i) the Company provides written notice (a “Notice of Adverse Recommendation”) advising Parent that the Board of Directors of the Company intends to take such action and specifying the reasons therefor, including, if applicable, the terms and conditions of any Superior Proposal that is the basis of the proposed action by the Board of Directors (it being understood and agreed that any amendment to the amount of consideration or any other material term of such Superior Proposal shall require a new Notice of Adverse Recommendation); (ii) for a period of three Business Days following Parent’s receipt of a Notice of Adverse Recommendation the Company negotiates with Parent in good faith to make such adjustments to the terms and conditions of this Agreement as defined in Section 8.8would enable the Company to proceed with its recommendation of this Agreement and the Merger and not make such Company Adverse Recommendation Change (it being understood that such negotiation need not be exclusive); and (iii) if applicable, at the end of such three Business Day period, the Board of Directors of the Company has complied with continues to believe that the Company Takeover Proposal, if any, constitutes a Superior Proposal (after taking into account such adjustments to the terms and conditions of Section 8.8 and ----------- ----------- Section 10.1(ethis Agreement). --------------No Company Adverse Recommendation Change shall change the approval of the Board of Directors of the Company for purposes of causing any state takeover Law (including Section 203 of the DGCL) or other state Law to be inapplicable to the Merger and the other transactions contemplated by this Agreement.

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Board of Directors of the Company (the "Board of Directors" or the "Board") at a meeting duly called and held has by a unanimous vote duly adopted resolutions (i) approving this Agreement, the Offer (if made) and the Merger, determining that the Merger is advisable and that the terms of the Offer (if made) and the Merger are fair to, and in the best interests of, the Company and the Company's stockholders and recommending that the Company's stockholders accept the Offer and tender all of their shares of Common Stock to Merger Sub (if made) and approve the Merger and this Agreement Agreement, and the transactions contemplated hereby, including the Offer and the Merger, (ii) taking all action necessary to render the restrictions set forth in so that Section 203 of the Delaware General Corporation LawDGCL and the Company's Rights Agreement, dated as of October 24, 1989, between the Company and First Chicago Trust Company of New York, as amended rights agent (the "DGCLRights Agreement"), are and, through the Effective Time, will be inapplicable to to, and have no adverse effect on, Purchaser and Merger Sub, the Offer, the Merger, this ---- Agreement, the Tender Agreement and or any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreementhereby. The Company further represents and warrants that the Board of Directors has received the written opinion of Credit Suisse First Boston Corporation Mxxxxx Sxxxxxx & Co. Inc. (the "Financial Advisor") to that the effect that, as of the date ----------------- of this Agreement, the Offer Consideration proposed consideration to be received in the Offer and the Merger by the holders of shares of Common Stock pursuant to the Offer (if made) and the Merger is fair, fair to such holders from a financial point of view, to such holders (other than Purchaser and its affiliates) view (the "Fairness -------- Opinion"). Subject to the last sentence of this Section 1.3(a), the The Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the recommendation of the Board of Directors described in the first sentence of this Section 1.3(a5.3(a). -------------- The Company hereby represents and warrants that it has been authorized by the Financial Advisor to permit the inclusion of the Fairness Opinion and references thereto, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheld) ), in the Offer Documents, the Schedule 14D-9 (as defined in Section 1.3(b)) and the Proxy Statement (as defined in Section 8.2(b)), if -------------- -------------- applicable. The Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Common Stock owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do so), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal (as defined in Section 8.8) if the Company has complied with the terms of Section 8.8 and ----------- ----------- Section 10.1(e). --------------Statement.

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that Neither the Board of Directors at a meeting duly called and held has by a unanimous vote duly adopted resolutions of the Company nor any committee thereof shall (i) approving this Agreement(A) withdraw (or modify in a manner adverse to Parent), or publicly propose to withdraw (or modify in a manner adverse to Parent), the Offer and the Mergerapproval, determining that the Merger is advisable and that the terms recommendation or declaration of the Offer and Merger are fair to, and in the best interests of, the Company's stockholders and recommending that the Company's stockholders accept the Offer and tender all of their shares of Common Stock to Merger Sub and approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, (ii) taking all action necessary to render the restrictions set forth in Section 203 of the Delaware General Corporation Law, as amended (the "DGCL"), inapplicable to the Offer, the Merger, this ---- Agreement, the Tender Agreement and any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted advisability by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreement. The Company further represents and warrants that the such Board of Directors has received the opinion of Credit Suisse First Boston Corporation (the "Financial Advisor") to the effect that, as of the date ----------------- or any such committee thereof of this Agreement, the Offer Consideration Merger or the other transactions contemplated by this Agreement or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Company Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) approve or recommend, or propose publicly to approve or recommend, or allow the Company or any of the Company Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or related to, or that is intended to or could reasonably be received in the Offer and the Merger by the holders of Common Stock is fairexpected to lead to, from a financial point of view, to such holders any Company Takeover Proposal (other than Purchaser and its affiliatesa confidentiality agreement referred to in Section 4.2(a)) (the "Fairness -------- Opinion"an “Acquisition Agreement”). Subject Notwithstanding anything in this Agreement to the last sentence of this Section 1.3(a)contrary, if, prior to obtaining the Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the recommendation of Stockholder Approval, the Board of Directors described in the first sentence of this Section 1.3(a). -------------- The Company hereby represents and warrants that it has been authorized by the Financial Advisor to permit the inclusion of the Fairness Opinion and references thereto, subject Company determines in good faith that the failure to prior review and consent by the Financial Advisor (such consent not do so would be reasonably likely to be unreasonably withheldinconsistent with its fiduciary duties under applicable Law, it may (A) in the Offer Documents, the Schedule 14D-9 (as defined in terminate this Agreement pursuant to Section 1.3(b)7.1(d)(ii) and cause the Proxy Statement (as defined in Section 8.2(b)), if -------------- -------------- applicable. The Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Common Stock owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do so), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement Acquisition Agreement with respect to a Superior Proposal (which was made after the date hereof and did not otherwise result from a breach of this Section 4.2) or (B) make a Company Adverse Recommendation Change, if: (i) the Company provides written notice (a “Notice of Adverse Recommendation”) advising Parent that the Board of Directors of the Company intends to take such action and specifying the reasons therefor, including, if applicable, the terms and conditions of any Superior Proposal that is the basis of the proposed action by the Board of Directors (it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new Notice of Adverse Recommendation); (ii) for a period of five Business Days following Parent’s receipt of a Notice of Adverse Recommendation the Company negotiates with Parent in good faith to make such adjustments to the terms and conditions of this Agreement as defined in Section 8.8would enable the Company to proceed with its recommendation of this Agreement and the Merger and not make such Company Adverse Recommendation Change (it being understood that such negotiation need not be exclusive); and (iii) if applicable, at the end of such five Business Day period, the Board of Directors of the Company has complied with continues to believe that the Company Takeover Proposal, if any, constitutes a Superior Proposal (after taking into account such adjustments to the terms and conditions of Section 8.8 and ----------- ----------- Section 10.1(ethis Agreement). --------------No Company Adverse Recommendation Change shall change the approval of the Board of Directors of the Company for purposes of causing any state takeover Law (including Article 13.03 of the TBCA or Section 21.606 of the TBOC) or other similar state Law that purports to limit or restrict business combinations to be inapplicable to the Merger and the other transactions contemplated by this Agreement.

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Board of Directors of the Company (the "BOARD OF DIRECTORS" or the "BOARD") at a meeting duly called and held has duly adopted, by a unanimous vote duly adopted vote, resolutions (i) approving this Agreement, the Offer and the MergerMerger (as hereinafter defined), determining that the Merger is advisable and that the terms of the Offer and Merger are fair to, and in the best interests of, the Company's stockholders and recommending that the Company's stockholders accept the Offer and tender all of their shares of Common Stock to approve the Merger Sub and approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, (ii) taking all action necessary to render the restrictions set forth in Section 203 of the Delaware General Corporation Law, as amended (the "DGCL"), inapplicable to the Offer, the Merger, Merger and this ---- Agreement, the Tender Agreement and or any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreementthereby. The Company further represents and warrants that the Board of Directors has received the opinion of Credit Suisse First Boston Corporation (the "Financial Advisor") to the effect that, as of the date ----------------- of this Agreement, the Offer Consideration to be received in the Offer and the Merger by the holders of Common Stock is fair, from a financial point of view, to such holders (other than Purchaser and its affiliates) (the "Fairness -------- Opinion"). Subject to the last sentence of this Section 1.3(a), the Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the recommendation of the Board of Directors described in the first sentence of this Section SECTION 1.3(a). -------------- The (b) On the date the Offer Documents are filed with the SEC, the Company hereby represents and warrants that it has been authorized by shall file with the Financial Advisor SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to permit the inclusion of the Fairness Opinion and references thereto, subject to prior review and consent by the Financial Advisor Offer (such consent not Schedule 14D-9, as amended from time to be unreasonably withheldtime, the "SCHEDULE 14D-9") containing the recommendations described in the Offer Documents, paragraph (a) above and shall mail the Schedule 14D-9 (as defined to the stockholders of the Company. To the extent practicable, the Company shall cooperate with Purchaser in Section 1.3(b)) mailing or otherwise disseminating the Schedule 14D-9 with the appropriate Offer Documents to the Company's stockholders. Purchaser and its counsel shall be given an opportunity to review and comment upon the Proxy Statement (as defined in Section 8.2(b)), if -------------- -------------- applicableSchedule 14D-9 prior to the filing thereof with the SEC. The Company has been advised by each of its directors and executive officers that each such person intends Schedule 14D-9 shall comply as to tender form in all shares of Common Stock owned by such person pursuant to material respects with the Offer, except to the extent of any restrictions created by Section 16(b) requirements of the Exchange Act. The Board of Directors Act and, on the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not withdrawcontain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, modify or amend its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do so)light of the circumstance xxxxxx which they were made, not misleading, except that no representation is made by the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement Company with respect to a Superior Proposal (as defined information supplied by Purchaser or Merger Sub for inclusion in Section 8.8) if the Company has complied with Schedule 14D-9. Each of the terms of Section 8.8 Company, Purchaser and ----------- ----------- Section 10.1(e). --------------Merger Sub

Actions by the Company. (a) The Company hereby approves of and consents to the Offer (as defined below), the Voting Agreements between Merger Sub and certain of the Company's stockholders pursuant to which, among other things, each such stockholder has agreed to vote all of his or its shares of the Common Stock of the Company, par value $.01 per share (the "Common Stock"), in favor of this Agreement and the Merger (the "Voting Agreements") and the Merger and represents and warrants that the Board of Directors of the Company (the "Board of Directors" or the "Board") at a meeting duly called and held has duly adopted, by a unanimous vote duly adopted (with one director not present), resolutions (i) approving this Agreement, the Offer and the MergerMerger which approval satisfies in full the requirements of the DGCL and the Certificate of Incorporation of the Company with respect to the requisite approval of the board of directors, (ii) approving the Voting Agreements for the purposes of Section 203 of the DGCL, and (iii) determining that the Merger is advisable and that the terms of the Offer and Merger are fair to, and in the best interests of, the Company's stockholders and recommending that the Company's stockholders accept the Offer and tender all approve the Merger and this Agreement; provided, that such recommendations may be withdrawn, modified or amended following receipt of their shares of Common Stock to Merger Sub and approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, an Acquisition Proposal (ii) taking all action necessary to render the restrictions set forth as defined in Section 203 8.1) if the Company has complied with the provisions of the Delaware General Corporation Law, as amended (the "DGCL"), inapplicable to the Offer, the Merger, this ---- Agreement, the Tender Agreement and any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender AgreementSection 8.1. The Company further represents and warrants that the Board of Directors has received the written opinion of Credit Suisse First Boston Corporation Hambxxxxx & Xuisx, XXC (the "Financial Advisor") to the effect that, as of the date ----------------- of this Agreementsuch opinion and subject to the limitations set forth therein, the proposed Merger Consideration (as defined below) or the Offer Consideration (as defined below), as the case may be, to be received in the Offer and the Merger by the holders of shares of Common Stock pursuant to the Merger and the Offer is fair, fair to such holders from a financial point of view, to such holders (other than Purchaser and its affiliates) view (the "Fairness -------- Opinion"). Subject to the last sentence of this Section 1.3(a), the The Company ------- -------------- hereby consents to the inclusion in the Proxy Statement (as defined below) and the Offer Documents (as defined below) of the recommendation of the Board of Directors described in the first sentence of this Section 1.3(a)1.4. -------------- The Company hereby represents and warrants that it has been authorized by the Financial Advisor to permit the inclusion of the Fairness Opinion and references theretopermit, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheld) ), references to the Fairness Opinion in the Offer Documents, Documents and the Schedule 14D-9 (as defined in Section 1.3(b)below) and the Proxy Statement (as defined in Section 8.2(b)), if -------------- -------------- applicable. The Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Common Stock owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) inclusion of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above Fairness Opinion in a manner adverse to Purchaser (or announce publicly its intention to do so), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal (as defined in Section 8.8) if the Company has complied with the terms of Section 8.8 and ----------- ----------- Section 10.1(e). --------------Proxy Statement.

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that (i) the Board board of Directors directors of the Company (the “Company Board”), at a meeting duly called and held has by a unanimous vote held, duly adopted resolutions approving the plan of merger (ias such term is used in Section 302A.611 of the MBCA), a copy of which is attached hereto as Exhibit A (the “Plan of Merger”) approving and this Agreement, (ii) the Company Board, at a meeting duly called and held, duly adopted resolutions approving the Offer and the Merger, (iii) the Company Board, at a meeting duly called and held, duly adopted resolutions determining that the Merger is advisable and that the terms of the Offer and the Merger are fair to, and in the best interests of, the Company's stockholders Company and the shareholders of the Company (the “Company Shareholders”), and (iv) the Company Board, at a meeting duly called and held, duly adopted resolutions recommending that the Company's stockholders Company Shareholders accept the Offer, tender their Shares pursuant to the Offer and, if required, approve the Plan of Merger and tender all this Agreement (the “Company Board Recommendation”); provided, however, that the Company Board may withdraw, modify or amend the Company Board Recommendation in a manner adverse to Parent only prior to the Acceptance Time and, in any case, only in accordance with Section 7.3 of their shares this Agreement. At a meeting duly called and held prior to the execution of Common Stock to this Agreement, the Merger Sub and approve this Option Agreement and the transactions contemplated herebyShareholder Agreement, including a duly authorized special committee of the Offer and the Merger, Company Board consisting solely of “disinterested directors” (ii) taking all action necessary to render the restrictions set forth as defined in Section 203 302A.673 of the Delaware General Corporation LawMBCA) of the Company who also satisfied the requirements of Section 302A.675, as amended (subdivision 2 of the "DGCL"), inapplicable to MBCA duly and unanimously adopted resolutions approving the Offer, the Plan of Merger, this ---- Agreement, the Tender Merger Option Agreement, the Shareholder Agreement and any of the transactions contemplated hereby and thereby for purposes of Sections 302A.673, 302A.671 and (iii) electing, to 302A.675 of the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender AgreementMBCA. The Company further represents and warrants that the Board of Directors has received the opinion of Credit Suisse First Boston Corporation (the "Financial Advisor") to the effect that, as of the date ----------------- of this Agreement, the Offer Consideration to be received in the Offer and the Merger by the holders of Common Stock is fair, from a financial point of view, to such holders (other than Purchaser and its affiliates) (the "Fairness -------- Opinion"). Subject to the last sentence of this Section 1.3(a), the Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the recommendation Company Board Recommendation to the extent such Company Board Recommendation is not withheld or withdrawn in accordance the requirements of the Board fiduciary obligations of Directors described the Company Board. To the extent the foregoing recommendation has been withdrawn, amended or modified in accordance with the requirements of the fiduciary obligations of the Company Board, the Company hereby consents to the inclusion of such recommendation, as so amended or modified, in the first sentence of this Section 1.3(a)Offer Documents. -------------- The Company hereby represents and warrants that it has been authorized by the Financial Advisor shall use its reasonable efforts to obtain all necessary consents to permit the inclusion in its entirety of the Fairness Opinion and references theretofairness opinion of Gxxxxxx, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheld) Sxxxx & Co. in the Offer Documents, the Schedule 14D-9 (as defined below) and, in Section 1.3(b)) and each case, as necessary, the Proxy Proxy/Information Statement (as defined in Section 8.2(b)), if -------------- -------------- applicable. The Company has been advised by each including the form of its directors and executive officers that each such person intends to tender all shares of Common Stock owned by such person pursuant proxies) or information statement relating to the Offer, except to the extent of any restrictions created by Section 16(b) vote of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do so), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement Company Shareholders with respect to a Superior Proposal the Plan of Merger and this Agreement (as defined in Section 8.8) if amended, supplemented or modified, the Company has complied with the terms of Section 8.8 and ----------- ----------- Section 10.1(e“Proxy/Information Statement”). --------------.

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that (i) the Special Committee has recommended that the Company Board of Directors approve the Offer and the Merger, and approve and authorize this Agreement, and the other transactions contemplated hereby and (ii) the Company Board at a meeting duly called and held has by a unanimous vote held, has, based on the recommendation of the Special Committee described in the preceding clause (i), duly adopted resolutions resolutions: (iA) approving this Agreement, the Offer and the MergerMerger and approving and adopting this Agreement, (B) determining that the Merger is advisable and that the terms of the Offer and Merger are fair to, and in the best interests of, the Company and the Company's stockholders stockholders, and (C) recommending that the Company's stockholders accept the Offer and tender all of their shares of Common Stock to and, if approval is required by applicable law, approve the Merger Sub and approve and adopt this Agreement and the transactions contemplated hereby, including the Offer and the Merger, (ii) taking all action necessary to render the restrictions set forth in Section 203 of the Delaware General Corporation Law, as amended (the "DGCL"), inapplicable to the Offer, the Merger, this ---- Agreement, the Tender Agreement and any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreement. The Company further represents and warrants that the Board of Directors has received the opinion of Credit Suisse First Boston Corporation (the "Financial Advisor") to the effect that, as of the date ----------------- of this Agreement, the Offer Consideration to be received in the Offer and the Merger by the holders of Common Stock is fair, from a financial point of view, to such holders (other than Purchaser and its affiliates) (the "Fairness -------- Opinion"). Subject to the last sentence of this Section 1.3(a), the Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board and the recommendation of Directors the Special Committee described in the first sentence of this Section SECTION 1.3(a). -------------- The Company hereby shall provide for inclusion in the Offer Documents any information reasonably requested by Purchaser, and to the extent requested by Purchaser, the Company shall cooperate in the preparation of the Offer Documents. The Company further represents and warrants that it (i) the Special Committee has been duly authorized by and constituted, and (ii) the Financial Advisor Special Committee, at a meeting thereof duly called, determined that this Agreement, the Merger and the Offer are fair to permit and in the inclusion best interests of the Fairness Opinion and references thereto, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheld) in the Offer Documents, the Schedule 14D-9 (as defined in Section 1.3(b)) and the Proxy Statement (as defined in Section 8.2(b)), if -------------- -------------- applicable. The Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Common Stock owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) stockholders of the Exchange Act. The Board of Directors shall not withdraw, modify or amend Company (other than Purchaser and its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do soaffiliates), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal (as defined in Section 8.8) if the Company has complied with the terms of Section 8.8 and ----------- ----------- Section 10.1(e). --------------.

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that (i) the Special Committee has recommended that the Company Board of Directors approve the Offer and the Merger, and approve and authorize this Agreement, and the other transactions contemplated hereby and (ii) the Company Board at a meeting duly called and held has held, has, by a unanimous vote duly adopted resolutions of all directors and based on the recommendation of the Special Committee described in the preceding clause (i) duly adopted resolutions: (A) approving this Agreement, the Offer and the MergerMerger and approving and adopting this Agreement, (B) determining that the Merger is advisable and that the terms of the Offer and Merger are fair to, and in the best interests of, the Company and the Company's stockholders and stockholders, (C) recommending that the Company's stockholders accept the Offer and tender all of their shares of Common Stock to and, if approval is required by applicable law, approve the Merger Sub and approve and adopt this Agreement Agreement, and the transactions contemplated hereby, including the Offer and the Merger, (iiD) taking all action actions necessary to render the restrictions set forth in Section 203 of the Delaware General Corporation Law, as amended Law (the "DGCL"), ) inapplicable to the Offer, the Merger, this ---- Agreement, the Tender Agreement and or any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreementhereby. The Company further represents and warrants that the Board of Directors has received the opinion of Credit Suisse First Boston Corporation (the "Financial Advisor") to the effect that, as of the date ----------------- of this Agreement, the Offer Consideration to be received in the Offer and the Merger by the holders of Common Stock is fair, from a financial point of view, to such holders (other than Purchaser and its affiliates) (the "Fairness -------- Opinion"). Subject to the last sentence of this Section 1.3(a), the Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board and the recommendation of Directors the Special Committee described in the first sentence of this Section 1.3(aSECTION 1.3(A). -------------- The Company hereby shall provide for inclusion in the Offer Documents any information reasonably requested by Parent or Purchaser, and to the extent requested by Parent or Purchaser, the Company shall cooperate in the preparation of the Offer Documents. The Company further represents and warrants that it (i) the Special Committee has been duly authorized by and constituted, and (ii) the Financial Advisor Special Committee, at a meeting thereof duly called, determined that this Agreement, the Merger and the Offer are fair to permit and in the inclusion best interests of the Fairness Opinion and references thereto, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheld) in the Offer Documents, the Schedule 14D-9 (as defined in Section 1.3(b)) and the Proxy Statement (as defined in Section 8.2(b)), if -------------- -------------- applicable. The Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Common Stock owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) stockholders of the Exchange Act. The Board of Directors shall not withdraw, modify or amend Company (other than the Parent and its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do soaffiliates), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal (as defined in Section 8.8) if the Company has complied with the terms of Section 8.8 and ----------- ----------- Section 10.1(e). --------------.

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Board of Directors of the Company (the "BOARD OF DIRECTORS" or the "BOARD") at a meeting duly called and held has duly adopted, by a unanimous vote duly adopted vote, resolutions (i) approving this Agreement, the Offer and the MergerMerger (as hereinafter defined), determining that the Merger is advisable and that the terms of the Offer and Merger are fair to, and in the best interests of, the Company's stockholders and recommending that the Company's stockholders accept the Offer and tender all of their shares of Common Stock to approve the Merger Sub and approve this Agreement Agreement, and the transactions contemplated hereby, including the Offer and the Merger, (ii) taking all action necessary to render the restrictions set forth in (x) Section 203 of the Delaware General Corporation Law, as amended Law (the "DGCL"), (y) Article IX of the Company's Certificate of Incorporation, and (z) the Company's Rights Agreement, dated as of September 7, 1995, between the Company and First Union Bank of North Carolina, as trustee (the "RIGHTS AGREEMENT") inapplicable to the Offer, the Merger, Merger and this ---- Agreement, the Tender Agreement and or any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreementthereby. The Company further represents and warrants that the Board of Directors has received the written opinion of Credit Suisse First Boston Corporation Xxxxxxx Xxxxx & Co. (the "Financial AdvisorFINANCIAL ADVISOR") to that the effect that, as of the date ----------------- of this Agreement, the Offer Consideration proposed consideration to be received in by the holders of shares of Common Stock pursuant to the Offer and the Merger by the is fair to such holders of Common Stock is fair, from a financial point of view, to such holders (other than Purchaser and its affiliates) view (the "Fairness -------- OpinionFAIRNESS OPINION"). Subject to the last sentence of this Section 1.3(a), the The Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the recommendation of the Board of Directors described in the first sentence of this Section 1.3(aSECTION 1.3(A). -------------- The Company hereby represents and warrants that it has been authorized by the Financial Advisor to permit the inclusion of the Fairness Opinion and references thereto, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheld) in the Offer Documents, the Schedule 14D-9 (as defined in Section 1.3(b)hereinafter defined) and the Proxy Statement (as defined in Section 8.2(bhereinafter defined)), if -------------- -------------- applicable. The Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Common Stock owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do so), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal (as defined in Section 8.8) if the Company has complied with the terms of Section 8.8 and ----------- ----------- Section 10.1(e). --------------.

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Board of Directors of the Company (the "Board of Directors" or the "Board") at a meeting duly called and held has by a unanimous vote duly adopted resolutions (i) approving this Agreement, the Offer (if made) and the Merger, determining that the Merger is advisable and that the terms of the Offer (if made) and the Merger are fair to, and in the best interests of, the Company and the Company's stockholders and recommending that the Company's stockholders accept the Offer and tender all of their shares of Common Stock to Merger Sub (if made) and approve the Merger and this Agreement Agreement, and the transactions contemplated hereby, including the Offer and the Merger, (ii) taking all action necessary to render the restrictions set forth in so that Section 203 of the Delaware General Corporation LawDGCL and the Company's Rights Agreement, dated as of October 24, 1989, between the Company and First Chicago Trust Company of New York, as amended rights agent (the "DGCLRights Agreement"), are and, through the Effective Time, will be inapplicable to to, and have no adverse effect on, Purchaser and Merger Sub, the Offer, the Merger, this ---- Agreement, the Tender Agreement and or any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreementhereby. The Company further represents and warrants that the Board of Directors has received the written opinion of Credit Suisse First Boston Corporation Xxxxxx Xxxxxxx & Co. Inc. (the "Financial Advisor") to that the effect that, as of the date ----------------- of this Agreement, the Offer Consideration proposed consideration to be received in the Offer and the Merger by the holders of shares of Common Stock pursuant to the Offer (if made) and the Merger is fair, fair to such holders from a financial point of view, to such holders (other than Purchaser and its affiliates) view (the "Fairness -------- Opinion"). Subject to the last sentence of this Section 1.3(a), the The Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the recommendation of the Board of Directors described in the first sentence of this Section 1.3(a5.3(a). -------------- The Company hereby represents and warrants that it has been authorized by the Financial Advisor to permit the inclusion of the Fairness Opinion and references thereto, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheld) ), in the Offer Documents, the Schedule 14D-9 (as defined in Section 1.3(b)) and the Proxy Statement (as defined in Section 8.2(b)), if -------------- -------------- applicable. The Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Common Stock owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do so), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal (as defined in Section 8.8) if the Company has complied with the terms of Section 8.8 and ----------- ----------- Section 10.1(e). --------------Statement.

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Board of Directors at a meeting duly called and held has by a unanimous vote duly adopted resolutions (i) approving this Agreement, the Offer and the MergerMerger (as defined in Section 2.1), determining that the Merger is advisable and that the terms of the Offer and Merger are fair to, and in the best interests of, the Company's stockholders and recommending that the Company's stockholders accept the Offer and tender all of their shares of Common Stock to Merger Sub and approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, (ii) taking all action necessary to render the restrictions set forth in Section 203 of the Delaware General Corporation Law, as amended (the "DGCL"), inapplicable to the Offer, the Merger, this ---- Agreement, the Tender Agreement and any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreement. The Company further represents and warrants that the Board of Directors has received the written opinion of Credit Suisse First Boston Corporation U.S. Bancorp Pipex Xxxxxxx Xxx. (the "Financial Advisor") to that the effect that, as of the date ----------------- of this Agreement, the Offer Consideration consideration to be received in pursuant to the Offer and the Merger by is fair to the holders of Common Stock is fair, from a financial point of view, to such holders (other than Purchaser and its affiliates) from a financial point of view (the "Fairness -------- Opinion"). Subject to the last sentence of this Section 1.3(a), the Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the recommendation of the Board of Directors described in the first sentence of this Section 1.3(a). -------------- The Company hereby represents and warrants that it has been authorized by the Financial Advisor to permit the inclusion of the Fairness Opinion and references thereto, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheld) in the Offer Documents, the Schedule 14D-9 (as defined in Section 1.3(b)) and the Proxy Statement (as defined in Section 8.2(b)), if -------------- -------------- applicable. The Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Common Stock owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do so), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal (as defined in Section 8.8) if the Company has complied with the terms of Section 8.8 and ----------- ----------- Section 10.1(e). --------------The

Actions by the Company. (a) The Company (following the unanimous recommendation of the Special Committee) hereby approves of and consents to the Offer and represents and warrants that the Board of Directors Company Board, at a meeting duly called and held has by a (following the unanimous vote duly adopted resolutions recommendation of the Special Committee), unanimously (i) approving this Agreement, the Offer and the Merger, determining that the Merger is advisable and that the terms of the Offer and Merger are fair to, and in the best interests of, the Company's stockholders and recommending that the Company's stockholders accept the Offer and tender all of their shares of Common Stock to Merger Sub and approve approved this Agreement and approved the transactions contemplated hereby, including the Offer and the Merger, Merger in accordance with the DGCL; (ii) taking all action necessary to render the restrictions set forth in Section 203 of the Delaware General Corporation Law, as amended (the "DGCL"), inapplicable to the Offer, the Merger, this ---- Agreement, the Tender Agreement and any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction declared that may purport to be applicable to this Agreement or the Tender Agreement. The Company further represents and warrants that the Board of Directors has received the opinion of Credit Suisse First Boston Corporation (the "Financial Advisor") to the effect that, as of the date ----------------- of this Agreement, the Offer Consideration to be received in the Offer and the Merger and the other transactions contemplated by this Agreement are fair to, in the holders of Common Stock is fairbest interests of, from a financial point of view, to such holders (other than Purchaser and its affiliates) (the "Fairness -------- Opinion"). Subject to the last sentence of this Section 1.3(a)advisable to, the Company ------- -------------- and the Company Stockholders; (iii) adopted resolutions recommending that the Company Stockholders accept the Offer, tender their Company Common Shares pursuant to the Offer and adopt this Agreement and approve the Merger, if required (the “Company Board Recommendation”); provided, however, that the Company Board may withdraw, modify or amend the Company Board Recommendation as provided by Section 8.03 of this Agreement; and (iv) adopted resolutions taking all other actions necessary to render Section 203 of the DGCL inapplicable to each of the Offer, the Merger and the transactions contemplated by this Agreement. None of the aforesaid actions by the Company Board has been amended, rescinded or modified as of the date hereof. The Company hereby consents to the inclusion in the Offer Documents of the Company Board Recommendation to the extent such Company Board Recommendation is not withdrawn in accordance with Section 8.03 of this Agreement. To the extent the foregoing recommendation is amended or modified in accordance with Section 8.03 of this Agreement, the Board Company hereby consents to the inclusion of Directors described such recommendation, as so amended or modified, in the first sentence of this Section 1.3(a)Offer Documents. -------------- The Company hereby represents and warrants that it has been authorized by the Financial Advisor obtained all necessary consents to permit the inclusion in its entirety of the Fairness Opinion fairness opinions of Bear, Xxxxxxx & Co. Inc. and references theretoXxxxxxxx Xxxxx Xxxxxx & Xxxxx Financial Advisors, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheld) Inc. in the Offer Documents, the Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) and, in each case, as defined in Section 1.3(b)necessary, the proxy statement (including the form of proxies) and the Proxy Statement (as defined in Section 8.2(b)), if -------------- -------------- applicable. The Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Common Stock owned by such person pursuant or information statement relating to the Offer, except to the extent of any restrictions created by Section 16(b) vote of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above in a manner adverse to Purchaser Company Stockholders (or announce publicly its intention to do so), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do soif any) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal this Agreement (as defined in Section 8.8) if amended, supplemented or modified, the Company has complied with the terms of Section 8.8 and ----------- ----------- Section 10.1(e“Proxy/Information Statement”). --------------.

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Board board of Directors directors of the Company (the “Company Board”), at a meeting duly called and held has by a unanimous vote held, unanimously duly adopted resolutions (i) approving and declaring the advisability of this Agreement, the Offer (ii) approving this Agreement and the MergerTransactions (such approval having been made in accordance with the DGCL, including for purposes of Section 203 thereof), (iii) determining that this Agreement and the Merger is advisable and that the terms of the Offer and Merger are Transactions to be advisable, fair to, to and in the best interests ofof the Company and the stockholders of the Company (the “Company Stockholders”) and (iv) recommending that, on the terms and subject to the conditions set forth herein, the Company's stockholders and recommending that the Company's stockholders Company Stockholders accept the Offer and Offer, tender all of their shares of Company Common Stock pursuant to Merger Sub and approve the Offer and, if required by applicable Law, adopt this Agreement and the transactions contemplated hereby, including the Offer and the Merger, (ii) taking all action necessary to render the restrictions set forth in Section 203 of the Delaware General Corporation Law, as amended Transactions (the "DGCL"“Company Board Recommendation”); provided, inapplicable to however, that the OfferCompany Board may withdraw, modify or amend the Merger, this ---- Agreement, the Tender Agreement and any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted Company Board Recommendation as provided by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender AgreementSection 6.3(e). The Company further represents and warrants that the Board of Directors has received the opinion of Credit Suisse First Boston Corporation (the "Financial Advisor") to the effect that, as of the date ----------------- of this Agreement, the Offer Consideration to be received in the Offer and the Merger by the holders of Common Stock is fair, from a financial point of view, to such holders (other than Purchaser and its affiliates) (the "Fairness -------- Opinion"). Subject to the last sentence of this Section 1.3(a), the Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the recommendation of Company Board Recommendation to the extent such Company Board of Directors described Recommendation is not withheld or withdrawn in the first sentence of this accordance with Section 1.3(a6.3(e). -------------- The Company hereby also represents and warrants that it (A) the Company Board has been authorized received the Fairness Opinion of Imperial Capital, dated the date of this Agreement, to the effect that, as of such date, and subject to the various assumptions and qualifications set forth therein, the consideration to be received by the Financial Advisor Company Stockholders in the Offer and the Merger is fair to such holders from a financial point of view and (B) the Company has obtained or will timely obtain all necessary consents (including the authorization of Imperial Capital) to permit the inclusion of the Fairness Opinion such opinion in its entirety and references theretothereto in the Offer Documents, together with a description of the material financial analyses underlying such opinion, in the Schedule 14D-9 and any proxy statement or information statement relating to the Merger (as amended, supplemented or modified, the “Proxy/Information Statement”), subject to prior review and consent by the Financial Advisor Imperial Capital (such consent not to be unreasonably withheld) in the Offer Documents, the Schedule 14D-9 (as defined in Section 1.3(bwithheld or delayed)) and the Proxy Statement (as defined in Section 8.2(b)), if -------------- -------------- applicable. The Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Company Common Stock owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do so), except Offer and that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal (as defined in Section 8.8) if the Company has complied with the terms of Section 8.8 and ----------- ----------- Section 10.1(e). --------------Offer Documents may so state.

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Board of Directors of the Company, at a meeting duly called and held has by a unanimous vote held, duly adopted resolutions (i) approving and declaring the advisability of this Agreement, (ii) approving the Offer, the Merger and the other transactions contemplated by this Agreement, (iii) determining this Agreement, the Offer Offer, the Merger and the Mergerother transactions contemplated by this Agreement to be advisable, determining that the Merger is advisable and that the terms of the Offer and Merger are fair to, to and in the best interests ofof the Company and the stockholders of the Company and (iv) recommending that, on the terms and subject to the conditions set forth herein, the Company's stockholders and recommending that of the Company's stockholders Company accept the Offer, tender their Company Common Stock pursuant to the Offer and tender all of their shares of Common Stock to Merger Sub and approve adopt this Agreement and the transactions contemplated herebyAgreement, including the Offer and the Merger, (ii) taking all action necessary to render the restrictions set forth in Section 203 of the Delaware General Corporation Law, as amended (the "DGCL"), inapplicable to the Offer, the Merger, Merger and the other transactions contemplated by this ---- Agreement, if required (the Tender Agreement and any of the transactions contemplated hereby and thereby and (iii) electing“Company Board Recommendation”); provided, to the extent permitted by lawhowever, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreement. The Company further represents and warrants that the Board of Directors has received the opinion of Credit Suisse First Boston Corporation (the "Financial Advisor") to the effect that, as of the date ----------------- of this AgreementCompany may withdraw, the Offer Consideration to be received in the Offer and the Merger by the holders of Common Stock is fair, from a financial point of view, to such holders (other than Purchaser and its affiliates) (the "Fairness -------- Opinion"). Subject to the last sentence of this Section 1.3(a), modify or amend the Company ------- -------------- Board Recommendation as provided by Section 6.2. The Company hereby consents to the inclusion in the Offer Documents of the Company Board Recommendation to the extent such Company Board Recommendation is not withheld or withdrawn in accordance with Section 6.2. To the extent the foregoing recommendation has been amended or modified in accordance with Section 6.2, the Company hereby consents to the inclusion of the Board of Directors described such recommendation, as so amended or modified, in the first sentence of this Section 1.3(a)Offer Documents. -------------- The Company hereby represents and warrants that it has been authorized by the Financial Advisor obtained all necessary consents to permit the inclusion in its entirety of the Fairness Opinion and references theretofairness opinion of Xxxxxxxx Xxxxx Capital, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheld) Inc. in the Offer Documents, the Schedule 14D-9 (as defined in Section 1.3(b)) and the Proxy Statement (as defined in Section 8.2(b)), if -------------- -------------- applicable14D-9. The Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Company Common Stock owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do so), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal (as defined in Section 8.8) if the Company has complied with the terms of Section 8.8 and ----------- ----------- Section 10.1(e). --------------.

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Board of Directors at a meeting duly called and held has by a unanimous vote duly adopted resolutions (i) approving this Agreement, the Offer and the MergerMerger (as defined in SECTION 2.1), determining that the Merger is advisable and that the terms of the Offer and Merger are fair to, and in the best interests of, the Company's stockholders and recommending that the Company's stockholders accept the Offer and tender all of their shares of Common Stock to Merger Sub and approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, (ii) taking all action necessary to render the restrictions set forth in Section 203 of the Delaware General Corporation Law, as amended (the "DGCL"), inapplicable to the Offer, the Merger, this ---- Agreement, the Tender Agreement Agreements and any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender AgreementAgreements. The Company further represents and warrants that the Board of Directors has received the oral opinion (which opinion will be confirmed by delivery of Credit Suisse First Boston Corporation a written opinion) of Xxxxxxx Xxxxx Xxxxxx Inc. (the "Financial AdvisorFINANCIAL ADVISOR") to the effect that, as of the date ----------------- of this Agreement, the Offer Consideration consideration to be received in the Offer and the Merger by the holders of shares of Common Stock (other than Purchaser and its affiliates) is fair, from a financial point of view, to such holders (other than Purchaser and its affiliates) (the "Fairness -------- OpinionFAIRNESS OPINION"). Subject to the last sentence of this Section SECTION 1.3(a), the Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the recommendation of the Board of Directors described in the first sentence of this Section SECTION 1.3(a). -------------- The Company hereby represents and warrants that it has been authorized by the Financial Advisor to permit the inclusion in its entirety of the Fairness Opinion and references thereto(and, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheldAdvisor, references thereto) in the Offer Documentsto Purchase, the Schedule 14D-9 (as defined in Section SECTION 1.3(b)) and the Proxy Statement (as defined in Section SECTION 8.2(b)), if -------------- -------------- applicable. The Company has been advised by each of its directors and executive officers who owns shares of Common Stock that each such person intends to tender all shares of Common Stock owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do so), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal (as defined in Section 8.8SECTION 8.9) if the Company has complied in accordance and full compliance with the terms of Section 8.8 SECTION 8.9 and ----------- ----------- Section 10.1(eSECTION 10.1(h). --------------.

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Board of Directors at a meeting duly called and held has by a unanimous vote duly adopted resolutions (i) approving this Agreement, the Offer and the MergerMerger (as defined in Section 2.1), determining that the Merger is advisable and that the terms of the Offer and Merger are fair to, and in the best interests of, the Company's stockholders and recommending that the Company's stockholders accept the Offer and tender all of their shares of Common Stock to Merger Sub and approve this Agreement and the transactions contemplated hereby, including the Offer and the Merger, (ii) taking all action necessary to render the restrictions set forth in Section 203 of the Delaware General Corporation Law, as amended (the "DGCL"), inapplicable to the Offer, the Merger, this ---- Agreement, the Tender Agreement Agreements and any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender AgreementAgreements. The Company further represents and warrants that the Board of Directors has received the oral opinion (which opinion will be confirmed by delivery of Credit Suisse First Boston Corporation a written opinion) of Xxxxxxx Xxxxx Xxxxxx Inc. (the "Financial Advisor") to the effect that, as of the date ----------------- of this Agreement, the Offer Consideration consideration to be received in the Offer and the Merger by the holders of shares of Common Stock (other than Purchaser and its affiliates) is fair, from a financial point of view, to such holders (other than Purchaser and its affiliates) (the "Fairness -------- Opinion"). Subject to the last sentence of this Section 1.3(a), the Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the recommendation of the Board of Directors described in the first sentence of this Section 1.3(a). -------------- The Company hereby represents and warrants that it has been authorized by the Financial Advisor to permit the inclusion in its entirety of the Fairness Opinion and references thereto(and, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheldAdvisor, references thereto) in the Offer Documentsto Purchase, the Schedule 14D-9 (as defined in Section 1.3(b)) and the Proxy Statement (as defined in Section 8.2(b)), if -------------- -------------- applicable. The Company has been advised by each of its directors and executive officers who owns shares of Common Stock that each such person intends to tender all shares of Common Stock owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do so), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal (as defined in Section 8.88.9) if the Company has complied in accordance and full compliance with the terms of Section 8.8 8.9 and ----------- ----------- Section 10.1(e10.1(h). --------------.

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Board board of Directors directors of the Company (the "BOARD OF DIRECTORS" or the "BOARD"), at a meeting duly called and held held, has duly adopted, by a unanimous vote duly adopted resolutions vote, resolutions: (i) approving this Agreement, the Offer and the MergerMerger (as hereinafter defined), (ii) determining that the Merger is advisable and that the terms of the Offer and Merger are fair to, and in the best interests of, the Company's stockholders and stockholders, (iii) recommending that the Company's stockholders accept the Offer and tender all of their shares of Common Stock to approve the Merger Sub and approve this Agreement and the transactions contemplated hereby, including the Offer and the MergerAgreement, (iiiv) taking all action necessary to render the restrictions set forth in (x) Section 203 of the Delaware General Corporation Law, as amended Law (the "DGCL") and (y) the Company's Amended and Restated Rights Agreement, dated as of September 18, 1998, between the Company and BankBoston, N.A., as rights agent (the "RIGHTS AGREEMENT"), inapplicable to the Offer, the Merger, this ---- the Tender and Option Agreement, dated as of May 27, 1999, among Purchaser, Merger Sub and each of the Tender persons listed on Schedule A thereto (the "OPTION AGREEMENT"), this Agreement and or any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreementthereby. The Company further represents and warrants that the Board of Directors has received the written opinion of Credit Suisse First Boston Corporation Broadview International LLC (the "Financial AdvisorFINANCIAL ADVISOR") to the effect that, as of the date ----------------- of this AgreementMay 25, 1999, the Offer Consideration consideration to be received in by the holders of shares of Common Stock pursuant to the Offer and the Merger by the is fair to such holders of Common Stock is fair, from a financial point of view, to such holders (other than Purchaser and its affiliates) view (the "Fairness -------- OpinionFAIRNESS OPINION"). Subject to the last sentence of this Section 1.3(a), the The Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the recommendation of the Board of Directors described in the first sentence of this Section SECTION 1.3(a). -------------- The Company hereby represents and warrants that it has been authorized by the Financial Advisor to permit the inclusion of the Fairness Opinion and references thereto, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheld) in the Offer Documents, the Schedule 14D-9 (as defined in Section 1.3(b)hereinafter defined) and the Proxy Statement (as defined in Section 8.2(bhereinafter defined)), if -------------- -------------- applicable. The Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Common Stock owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do so), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal (as defined in Section 8.8) if the Company has complied with the terms of Section 8.8 and ----------- ----------- Section 10.1(e). --------------.

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that (i) the Special Committee has recommended that the Company Board of Directors approve the Offer and the Merger, and approve and authorize this Agreement, and the other transactions contemplated hereby and (ii) the Company Board at a meeting duly called and held has held, has, by a unanimous vote duly adopted resolutions of all directors and based on the recommendation of the Special Committee described in the preceding clause (i) duly adopted resolutions: (A) approving this Agreement, the Offer and the MergerMerger and approving and adopting this Agreement, (B) determining that the Merger is advisable and that the terms of the Offer and Merger are fair to, and in the best interests of, the Company and the Company's stockholders (other than the Purchaser and the Cherry Family Members), and (C) recommending that the Company's stockholders (other than the Purchaser and the Cherry Family Members) accept the Offer and tender all of their shares of Common Stock to and, if approval is required by applicable law, approve the Merger Sub and approve and adopt this Agreement and the transactions contemplated hereby, including the Offer and the Merger, (ii) taking all action necessary to render the restrictions set forth in Section 203 of the Delaware General Corporation Law, as amended (the "DGCL"), inapplicable to the Offer, the Merger, this ---- Agreement, the Tender Agreement and any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreement. The Company further represents and warrants that the Board of Directors has received the opinion of Credit Suisse First Boston Corporation (the "Financial Advisor") to the effect that, as of the date ----------------- of this Agreement, the Offer Consideration to be received in the Offer and the Merger by the holders of Common Stock is fair, from a financial point of view, to such holders (other than Purchaser and its affiliates) (the "Fairness -------- Opinion"). Subject to the last sentence of this Section 1.3(a), the Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board and the recommendation of Directors the Special Committee described in the first sentence of this Section SECTION 1.3(a). -------------- The Company hereby shall provide for inclusion in the Offer Documents any information reasonably requested by Xxxxxxxxx, and to the extent requested by Purchaser, the Company shall cooperate in the preparation of the Offer Documents. The Company further represents and warrants that it (i) the Special Committee has been duly authorized by and constituted, and (ii) the Financial Advisor Special Committee, at a meeting thereof duly called, determined that this Agreement, the Merger and the Offer are fair to permit and in the inclusion best interests of the Fairness Opinion and references thereto, subject to prior review and consent by stockholders of the Financial Advisor Company (such consent not to be unreasonably withheld) in other than the Offer Documents, the Schedule 14D-9 (as defined in Section 1.3(b)) Purchaser and the Proxy Statement (as defined Cherry Family Members). Nothing in Section 8.2(b)), if -------------- -------------- applicable. The Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Common Stock owned by such person pursuant to this Agreement shall limit the Offer, except to the extent of any restrictions created by Section 16(b) right of the Exchange Act. The Board of Directors shall not withdraw, modify Special Committee or amend its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do so), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation of the Offer, the Merger or this Agreement (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to if a Superior Proposal (as defined below) shall have been proposed and if with respect thereto the Special Committee or the Board of Directors determines in Section 8.8good faith (after consultation with its legal counsel) if that the Company has complied failure to take such action would be inconsistent with its fiduciary duties to the terms stockholders of Section 8.8 and ----------- ----------- Section 10.1(e)the Company. --------------It is agreed that the public announcement of the receipt of an Alternative Proposal or that the Special Committee or the Board of Directors is considering such Alternative Proposal shall not constitute such withdrawal, amendment or modification.

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that (i) the Special Committee has recommended that the Company Board of Directors approve the Offer and the Merger, and approve and authorize this Agreement, and the other transactions contemplated hereby and (ii) the Company Board at a meeting duly called and held has held, has, by a unanimous vote duly adopted resolutions of all directors and based on the recommendation of the Special Committee described in the preceding clause (i) duly adopted resolutions: (A) approving this Agreement, the Offer and the MergerMerger and approving and adopting this Agreement, (B) determining that the Merger is advisable and that the terms of the Offer and Merger are fair to, and in the best interests of, the Company and the Company's stockholders and stockholders, (C) recommending that the Company's stockholders accept the Offer and tender all of their shares of Common Stock to and, if approval is required by applicable law, approve the Merger Sub and approve and adopt this Agreement Agreement, and the transactions contemplated hereby, including the Offer and the Merger, (iiD) taking all action actions necessary to render the restrictions set forth in Section 203 of the Delaware General Corporation Law, as amended Law (the "DGCL"), ) inapplicable to the Offer, the Merger, this ---- Agreement, the Tender Agreement and or any of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreementhereby. The Company further represents and warrants that the Board of Directors has received the opinion of Credit Suisse First Boston Corporation (the "Financial Advisor") to the effect that, as of the date ----------------- of this Agreement, the Offer Consideration to be received in the Offer and the Merger by the holders of Common Stock is fair, from a financial point of view, to such holders (other than Purchaser and its affiliates) (the "Fairness -------- Opinion"). Subject to the last sentence of this Section 1.3(a), the Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board and the recommendation of Directors the Special Committee described in the first sentence of this Section 1.3(a). -------------- The Company hereby shall provide for inclusion in the Offer Documents any information reasonably requested by Parent or Purchaser, and to the extent requested by Parent or Purchaser, the Company shall cooperate in the preparation of the Offer Documents. The Company further represents and warrants that it (i) the Special Committee has been duly authorized by and constituted, and (ii) the Financial Advisor Special Committee, at a meeting thereof duly called, determined that this Agreement, the Merger and the Offer are fair to permit and in the inclusion best interests of the Fairness Opinion and references thereto, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheld) in the Offer Documents, the Schedule 14D-9 (as defined in Section 1.3(b)) and the Proxy Statement (as defined in Section 8.2(b)), if -------------- -------------- applicable. The Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Common Stock owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) stockholders of the Exchange Act. The Board of Directors shall not withdraw, modify or amend Company (other than the Parent and its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do soaffiliates), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal (as defined in Section 8.8) if the Company has complied with the terms of Section 8.8 and ----------- ----------- Section 10.1(e). --------------.

Actions by the Company. (a) The Company hereby approves of and consents to the Offer and represents and warrants that that, by unanimous vote, (i) the Board of Directors Company Board, at a meeting duly called and held has by a unanimous vote held, duly adopted resolutions (i) approving this AgreementAgreement and the consummation by the Company of the Transactions (to the extent contemplated to be completed by the Company), (ii) the Company Board, at a meeting duly called and held, duly adopted resolutions approving the Offer and the Merger, (iii) the Company Board, at a meeting duly called and held, duly adopted resolutions determining that the Merger is advisable and that the terms of the Offer and the Merger are fair to, and in the best interests of, the Company's Company and the stockholders of the Company (the “Company Stockholders”), and (iv) the Company Board, at a meeting duly called and held, duly adopted resolutions recommending that the Company's stockholders Company Stockholders accept the Offer and tender all of their shares of Company Common Stock Shares pursuant to Merger Sub and approve this Agreement and the transactions contemplated hereby, including the Offer and (the Merger“Company Board Recommendation”); provided, (ii) taking all action necessary to render however, that the restrictions set forth in Section 203 board of directors of the Delaware General Corporation LawCompany may withdraw, as amended (modify or amend the "DGCL"), inapplicable to Company Board Recommendation if required by the Offer, the Merger, this ---- Agreement, the Tender Agreement and any fiduciary obligations of the transactions contemplated hereby and thereby and (iii) electing, to the extent permitted by law, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" or other form of corporate anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender AgreementCompany Board. The Company further represents and warrants that the Board of Directors has received the opinion of Credit Suisse First Boston Corporation (the "Financial Advisor") to the effect that, as of the date ----------------- of this Agreement, the Offer Consideration to be received in the Offer and the Merger by the holders of Common Stock is fair, from a financial point of view, to such holders (other than Purchaser and its affiliates) (the "Fairness -------- Opinion"). Subject to the last sentence of this Section 1.3(a), the Company ------- -------------- hereby consents to the inclusion in the Offer Documents of the recommendation Company Board Recommendation to the extent such Company Board Recommendation is not withheld or withdrawn in accordance the requirements of the Board fiduciary obligations of Directors described the Company Board. To the extent the foregoing recommendation has been withdrawn, amended or modified in accordance with the requirements of the fiduciary obligations of the Company Board, the Company hereby consents to the inclusion of such recommendation, as so amended or modified, in the first sentence of this Section 1.3(a)Offer Documents. -------------- The Company hereby represents and warrants that it has been authorized by the Financial Advisor obtained all necessary consents to permit the inclusion in its entirety of the Fairness Opinion and references theretofairness opinion of Harpeth Capital, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheld) LLC in the Offer Documents, the Schedule 14D-9 (as defined in Section 1.3(bbelow)) and the Proxy Statement (as defined in Section 8.2(b)), if -------------- -------------- applicable. The Company has been advised by each of its directors and executive officers that each such person intends to tender all shares of Common Stock owned by such person pursuant to the Offer, except to the extent of any restrictions created by Section 16(b) of the Exchange Act. The Board of Directors shall not withdraw, modify or amend its recommendations described above in a manner adverse to Purchaser (or announce publicly its intention to do so), except that the Board of Directors shall be permitted to withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement or the Merger in a manner adverse to Purchaser or approve or recommend or enter into an agreement with respect to a Superior Proposal (as defined in Section 8.8) if the Company has complied with the terms of Section 8.8 and ----------- ----------- Section 10.1(e). --------------.