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 duly adopted resolutions (i) approving this Agreement, the Offer and the Merger (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 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 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 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Financial --------- Advisor") that the proposed consideration to be received by the holders of ------- shares of Common Stock pursuant to the Offer and the Merger is fair to such holders 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)). 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ -------------- (b) The Company shall use its reasonable best efforts to file with the SEC, concurrently with the filing of the Offer Documents with the SEC, and in any event the Company shall file within five days thereafter, a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from time to time, the "Schedule 14D-9") -------------- containing the recommendations described in the first sentence of Section ------- (a) (subject to the last sentence of Section 1.3(a) and shall mail the ------ -------------- Schedule 14D-9 to the stockholders of the Company. To the extent practicable, the Company shall cooperate with Purchaser in 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 a reasonable opportunity to review and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange 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 contain 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, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Purchaser or Merger Sub for inclusion in the Schedule 14D-9. Each of the Company, Purchaser and Merger Sub agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the holders of shares of Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide Purchaser and Merger Sub and their counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. (c) In connection with the Offer, the Company shall cause its transfer agent to furnish promptly to Merger Sub mailing labels containing the names and addresses of the record holders of Common Stock as of a recent date and of those persons becoming record holders subsequent to such date, and to furnish copies of other information in the Company's possession or control regarding the beneficial owners of Common Stock, and shall furnish to Merger Sub such information and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub may reasonably request in communicating the Offer to the Company's stockholders. Subject to the requirements of law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver to the Company all copies of such information then in their possession or under their control. (d) Subject to the terms and conditions of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that would, in the absence of action by the Company or the Board, prevent Merger Sub, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be taken.

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 (as defined in Section 2.1)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 antitakeover 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 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated Credit Suisse First Boston Corporation (the "Financial --------- Advisor") that to the proposed consideration effect that, as of the date ----------------- of this Agreement, the Offer Consideration to be received by the holders of ------- shares of Common Stock pursuant to in the Offer and the Merger by the holders of Common Stock is fair to such holders fair, from a financial point of view 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)). 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ -------------- (b) The Company shall use its reasonable best efforts to file with the SEC, concurrently with the filing of the Offer Documents with the SEC, and in any event the Company shall file within five days thereafter, a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from time to time, the "Schedule 14D-9") -------------- containing the recommendations described in the first sentence of Section ------- (a) (subject to the last sentence of Section 1.3(a) and shall mail the ------ -------------- Schedule 14D-9 to the stockholders of the Company. To the extent practicable, the Company shall cooperate with Purchaser in 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 a reasonable opportunity to review and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange 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 contain 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, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Purchaser or Merger Sub for inclusion in the Schedule 14D-9. Each of the Company, Purchaser and Merger Sub agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the holders of shares of Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide Purchaser and Merger Sub and their counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. (c) In connection with the Offer, the Company shall cause its transfer agent to furnish promptly to Merger Sub mailing labels containing the names and addresses of the record holders of Common Stock as of a recent date and of those persons becoming record holders subsequent to such date, and to furnish copies of other information in the Company's possession or control regarding the beneficial owners of Common Stock, and shall furnish to Merger Sub such information and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub may reasonably request in communicating the Offer to the Company's stockholders. Subject to the requirements of law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver to the Company all copies of such information then in their possession or under their control. (d) Subject to the terms and conditions of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that would, in the absence of action by the Company or the Board, prevent Merger Sub, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be taken.

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 held, unanimously duly adopted resolutions (i) approving and declaring the advisability of this Agreement, the Offer (ii) approving this Agreement and the Merger Transactions (as defined such approval having been made in accordance with the DGCL, including for purposes of Section 2.1203 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 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. The Company hereby consents to the inclusion in the Offer and the Merger, (ii) taking all action necessary to render Section 203 Documents 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, Company Board Recommendation to the extent permitted by lawsuch 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, not the Company hereby consents to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" the inclusion of such recommendation, as so amended or other form of corporate antitakeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or modified, in the Tender AgreementOffer Documents. The Company further also represents and warrants that (A) the Company Board of Directors has received the written opinion of ▇▇▇▇▇▇ ▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Co. Incorporated (the "“Company Financial --------- Advisor") that ”), dated the proposed 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 holders of ------- shares of Common Stock pursuant to Company Stockholders in the Offer and the Merger is fair to such holders from a financial point of view and (the "Fairness Opinion"). Subject to the ---------------- last sentence of this Section 1.3(a), B) the Company hereby has obtained or will timely obtain all necessary consents to (including the inclusion in the Offer Documents authorization 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 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(b)) and the Proxy Statement (as defined in Section 8.2(b)withheld or delayed). 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) provided Offer and 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ --------------Offer Documents may so state. (b) The On the Offer Commencement Date, the Company shall use its reasonable best efforts to file with the SEC, concurrently SEC and (contemporaneously with the filing initial dissemination of the Offer Documents with to holders of Company Common Shares to the SEC, and in any event the extent required by applicable federal securities Laws) disseminate to holders of Company shall file within five days thereafter, Common Shares a Solicitation/Recommendation Statement on Schedule 14D-9 (together with respect to any amendments or supplements thereto, the Offer (such “Schedule 14D-9”) that, as amended from time to time, the "Schedule 14D-9") -------------- containing the recommendations described in the first sentence of Section ------- (a) (subject to the last sentence of Section 1.3(a) and 8.03, shall mail the ------ -------------- Schedule 14D-9 to the stockholders of the Company. To the extent practicable, contain the Company shall cooperate Board Recommendation. Except in connection with Purchaser an Adverse Recommendation Change made in mailing or otherwise disseminating the Schedule 14D-9 accordance with the appropriate Offer Documents to the Company's stockholders. Purchaser Section 8.03, Parent and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC. The Company shall: (x) as promptly as reasonably practicable provide Parent and its counsel with a copy of any written comments and a description of any oral comments received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9, (y) except with respect to any disclosure made relating to an Adverse Recommendation Change in accordance with Section 8.03, give Parent and its counsel a reasonable opportunity to review and comment on any response formulated in connection with such comments prior to the filing thereof with the SEC and (z) respond promptly to any such comments. The Company agrees that the Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange Act and, on the date filed with the SEC and on the date first published, sent or given to the Company's stockholdersCompany Stockholders, shall not contain 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, in the light of the circumstances under which they were made, not misleading; provided, except that no representation covenant is made by the Company with respect to information supplied by or on behalf of Parent or Purchaser or Merger Sub for inclusion or incorporation by reference in the Schedule 14D-9. Each To the extent required by the applicable requirements of the CompanyExchange Act: (A) each of Parent, Purchaser and Merger Sub agrees the Company shall promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent such information shall have become false or misleading in any material respect, respect and (B) the Company further agrees to shall take all steps necessary to cause the Schedule 14D-9 14D-9, as so corrected supplemented or amended to correct such information, to be filed with the SEC and and, if required, to be disseminated to the holders of shares of Company Common Stock, in each case as Shares. Parent and Purchaser shall promptly furnish to the extent required by applicable federal securities laws. The Company agrees to provide all information concerning Parent or Purchaser and Merger Sub and their counsel that may be reasonably requested in writing connection with any comments action contemplated by this Section 2.03(b). To the Company or its counsel may receive from extent requested by the SEC or its staff with respect to Company, Parent shall cause the Schedule 14D-9 promptly after to be mailed or otherwise disseminated to the receipt of such commentsCompany Stockholders together with the Offer Documents disseminated to the Company Stockholders. (c) In connection with the Offer, the Company shall cause instruct its transfer agent to furnish promptly to Merger Sub mailing labels containing Purchaser a list, as of the names and addresses most recent practicable date, of the record holders of Company Common Stock Shares and their addresses, as of a recent date well as mailing labels containing such names and of those persons becoming record holders subsequent to addresses. The Company will furnish Purchaser with such date, and to furnish copies of other additional information (including any security position listings in the Company's ’s possession or control regarding reasonably obtainable by the beneficial owners of Common Stock, and shall furnish to Merger Sub such information Company) and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub Purchaser may reasonably request in for purposes of communicating the Offer to the Company's stockholdersrecord holders and beneficial holders of Company Common Shares. Subject to All information furnished in accordance with this Section 2.03(c) shall be held in confidence by Parent and Purchaser in accordance with the requirements of lawthe Confidentiality Agreement, and except for such steps as are necessary to disseminate the Offer Documents shall be used by Parent and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the communication of the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver dissemination of any Proxy/Information Statement relating to the Merger to the holders of Company all copies of such information then in their possession or under their controlCommon Shares. (d) Subject The Company shall as promptly as reasonably practicable furnish to Parent and Purchaser all information concerning the terms and conditions of this Agreement, if there shall occur a change in law Company that may be required by applicable securities Laws or in a binding judicial interpretation of existing law that would, reasonably requested by Parent or Purchaser for inclusion in the absence of action by Schedule TO and the Company or the Board, prevent Merger Sub, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be takenOffer Documents.

Actions by the Company. (a) The Company hereby approves of and consents to the Amended Offer and represents and warrants that (i) the Board by vote of Directors all directors at a meeting duly called and held has duly adopted resolutions held, has, in light of and subject to the terms and conditions set forth herein, unanimously (ix) approving this Agreement, determined that each of the Amended Offer and the Merger (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 of the Company and recommending that the Company's stockholders accept the Offer and tender all of their shares of Common Stock to Merger Sub and approve (y) approved this Agreement and the transactions contemplated hereby, including the Amended Offer and the Merger, and recommends acceptance of the Amended Offer and approval and adoption of this Agreement and the Merger by the stockholders of the Company and (ii) taking all action necessary to render 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 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 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇ & Co. ("▇▇▇▇▇▇▇ & ▇▇▇▇▇") and ▇▇▇▇▇▇ Incorporated Brothers Inc. ("▇▇▇▇▇▇ Bros."), the "Financial --------- Advisor") Company's financial advisors, have rendered to the Board their respective opinions that the proposed consideration to be received by the holders stockholders of ------- shares of Common Stock the Company pursuant to the Amended Offer and the Merger is fair to such holders stockholders 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)). 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ --------------view. (b) The Company shall use its reasonable best efforts to agrees that it shall, on the same day that Purchaser and Praxair file with the SECCommission an amendment to the Initial Offer Documents pursuant to Section 1.1 hereof, concurrently file with the filing of the Offer Documents with the SEC, and in any event the Company shall file within five days thereafter, a Commission an amendment to its Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, dated November 16, 1995 (including exhibits, as so amended, and as amended from time to time, the "Amended Schedule 14D-9"), which amendment shall include (i) -------------- containing subject to the recommendations described proviso in the first second sentence of Section -------1.2(c), the recommendation described in Section 1.2(a) hereof and (ii) the information with respect to the Company and its officers and directors, (including any directors to be elected or appointed pursuant to Section 1.3 hereof) in form and substance satisfactory to Praxair and its counsel, that is required under Section 14(f) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and Rule 14f-1 promulgated thereunder. In such connection, Praxair and Purchaser shall promptly furnish the Company with all information concerning their designees required by Section 14(f) of the Exchange Act and Rule 14f-1 thereunder. Praxair and Purchaser shall have the opportunity to review the Amended Schedule 14D-9 prior to its being filed with the Commission. (ac) (subject to the last sentence The Company agrees that copies of Section 1.3(a) and shall mail the ------ -------------- such Schedule 14D-9 (excluding exhibits), shall be enclosed with the Amended Offer Documents to be mailed by Purchaser to the stockholders of the Company. To the extent practicable, the Company shall cooperate with Purchaser in mailing or otherwise disseminating the Schedule 14D-9 connection with the appropriate Offer Documents to the Company's stockholders. Purchaser and its counsel shall be given a reasonable opportunity to review and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange 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 contain 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, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Purchaser or Merger Sub for inclusion in the Schedule 14D-9Amended Offer. Each of the Company, Purchaser one the one hand, and Merger Sub Praxair and Purchaser, on the other hand, agrees promptly to correct any information provided by it either of them for use in the Amended Schedule 14D-9 14D- 9 if and to the extent such information that it shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Amended Schedule 14D-9 as so corrected to be filed with the SEC Commission and to be disseminated to the holders stockholders of shares of Common Stockthe Company, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide Purchaser and Merger Sub and their counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect ; provided, however, that, subject to the Schedule 14D-9 promptly provisions of Article IX, such recommendation may be withdrawn, modified or amended to the extent that the Board deems it necessary to do so in the exercise of its fiduciary and other legal obligations after the receipt of such comments. (c) being so advised by outside counsel. In connection with the Amended Offer, the Company shall cause its transfer agent to will furnish promptly to Merger Sub Praxair and Purchaser with such information, including lists of the stockholders of the Company, mailing labels containing the names and addresses lists of the record holders of Common Stock as of a recent date and of those persons becoming record holders subsequent to such datesecurity positions, and to furnish copies of other information in the Company's possession such assistance as Praxair or control regarding the beneficial owners of Common Stock, and shall furnish to Merger Sub such information and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub Purchaser or their agents may reasonably request in communicating the Amended Offer to the Company's stockholders. Subject to the requirements of law, record and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver to the Company all copies of such information then in their possession or under their control. (d) Subject to the terms and conditions of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that would, in the absence of action by the Company or the Board, prevent Merger Sub, were it to acquire a specified percentage beneficial holders of the shares of Common Stock then outstanding, from adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be takenShares.

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 resolutions (i) approving this Agreement, the Offer (if made) and the Merger (as defined in Section 2.1)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 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 antitakeover 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 ▇▇M▇▇▇▇▇ Lynch, Pierce, S▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated Co. Inc. (the "Financial --------- Advisor") that the proposed consideration to be received by the holders of ------- shares of Common Stock pursuant to the Offer (if made) and the Merger is fair to such holders from a financial point of 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)). 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ --------------Statement. (b) The Company shall use its reasonable best efforts to file On the date the Offer Documents are filed with the SEC, concurrently with the filing of the Offer Documents with the SEC, and in any event the Company shall file within five days thereafter, with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from time to time, the "Schedule 14D-9") -------------- containing the recommendations described in the first sentence of Section ------- (a) (subject to the last sentence of Section 1.3(a5.3(a) and shall mail disseminate the ------ -------------- Schedule 14D-9 to the stockholders of the CompanyCompany as required by Rule 14d- 9 promulgated under the Exchange Act. To the extent practicable, the Company shall cooperate with Purchaser in 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 a reasonable an opportunity to review and comment upon the Schedule 14D-9 (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange 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 contain 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, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Purchaser or Merger Sub for inclusion in the Schedule 14D-9. Each of the Company, Purchaser and Merger Sub agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the holders of shares of Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide Purchaser and Merger Sub and their counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. (c) In connection with the Offer, the Company shall cause its transfer agent to furnish promptly to Merger Sub with mailing labels containing the names and addresses of the record holders of Common Stock as of a recent date and of those persons becoming record holders subsequent to such date, and to furnish together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company's possession or control regarding the beneficial owners of Common Stock, and shall furnish to Merger Sub such information and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub may reasonably request in communicating the Offer to the Company's stockholders. Subject to the requirements of law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver to the Company all copies of such information then in their possession or under their control. (d) Subject to the terms and conditions of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that which would, in the absence of action by the Company or the Board, prevent Merger Sub, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from approving and adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its reasonable best efforts to promptly take or cause such action to be taken.

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 duly adopted resolutions held, unanimously (i) approving adopted and approved this AgreementAgreement and approved the transactions contemplated hereby, including the Offer and the Merger, in accordance with the DGCL; (ii) declared that the Offer and the Merger (as defined in Section 2.1), determining that and the Merger is advisable and that ----------- the terms of the Offer and Merger 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 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 rescinded or modified as 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 antitakeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreementdate hereof. The Company further represents and warrants that the Board of Directors has received the written opinion of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Financial --------- Advisor") that the proposed consideration to be received by the holders of ------- shares of Common Stock pursuant to the Offer and the Merger is fair to such holders 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 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 ▇▇▇▇▇▇▇, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheld) ▇▇▇▇▇ & 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(b)amended, supplemented or modified, the “Proxy/Information Statement”). 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) 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ --------------. (b) The On the Offer Commencement Date, the Company shall use its reasonable best efforts to file with the SEC, concurrently SEC and (following or contemporaneously with the filing initial dissemination of the Offer Documents with to holders of Company Common Shares to the SEC, and in any event the extent required by applicable federal securities laws) disseminate to holders of Company shall file within five days thereafter, Common Shares a Solicitation/Recommendation Statement on Schedule 14D-9 14D−9 (together with respect to the Offer (such Schedule 14D-9, as amended from time to timeany amendments or supplements thereto, the "“Schedule 14D-9"14D−9”) -------------- containing the recommendations described in the first sentence of Section ------- (a) (that, subject to the last sentence of Section 1.3(a) and 8.03, shall mail the ------ -------------- Schedule 14D-9 to the stockholders of the Company. To the extent practicable, contain the Company shall cooperate Board Recommendation. Except in connection with Purchaser an Adverse Recommendation Change made in mailing or otherwise disseminating the Schedule 14D-9 accordance with the appropriate Offer Documents to the Company's stockholders. Purchaser Section 8.03, Parent and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule 14D-9 14D−9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC. The Company shall: (i) promptly provide Parent and its counsel with a copy of any written comments and a description of any oral comments received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9 14D−9 and (ii) except with respect to any disclosure made relating to an Adverse Recommendation Change in accordance with Section 8.03, give Parent and its counsel a reasonable opportunity to review and comment on any response formulated in connection with such comments prior to the filing thereof with the SEC. The Company shall respond as promptly as reasonably practicable to any comments of the SEC or its staff with respect to the Schedule 14D−9. The Company shall cause the Schedule 14D−9 to (i) comply as to form in all material respects with the requirements of the Exchange Act and, and (ii) on the date filed with the SEC and on the date first published, sent or given to the Company's stockholdersCompany Stockholders, shall not contain 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, in the light of the circumstances under which they were made, not misleading; provided, except however, that no representation covenant is made by the Company with respect to information supplied by or on behalf of Parent or Purchaser or Merger Sub for inclusion or incorporation by reference in the Schedule 14D-9. Each To the extent required by the applicable requirements of the CompanyExchange Act and the rules and regulations thereunder: (A) each of Parent, Purchaser and Merger Sub agrees the Company shall promptly to correct any information provided by it for use in the Schedule 14D-9 14D−9 if and to the extent such information shall have become false or misleading in any material respect, respect and (B) the Company further agrees shall use reasonable best efforts to take all steps necessary to promptly cause the Schedule 14D-9 14D−9, as so corrected supplemented or amended to correct such information, to be filed with the SEC and to be disseminated to the holders of shares of Company Common Stock, in each case as Shares. Parent and Purchaser shall promptly furnish to the extent Company all information relating to Parent and Purchaser required by applicable federal securities lawsthe Exchange Act to be set forth in the Schedule 14D−9. The Company agrees To the extent requested by the Company, Parent shall cause the Schedule 14D−9 to provide Purchaser and Merger Sub and their counsel in writing with any comments be mailed or otherwise disseminated to the Company or its counsel may receive from Stockholders together with the SEC or its staff with respect Offer Documents disseminated to the Schedule 14D-9 promptly after the receipt of such commentsCompany Stockholders. (c) In connection with the Offer, the Company shall cause instruct its transfer agent to promptly furnish promptly to Merger Sub mailing labels containing Purchaser a true and correct list, as of the names and addresses most recent practicable date, of the record holders of Company Common Stock Shares and their addresses, as of a recent date well as mailing labels containing such names and of those persons becoming record holders subsequent to addresses. The Company will furnish Purchaser with such date, and to furnish copies of other additional information (including any security position listings in the Company's ’s possession or control regarding reasonably obtainable by the beneficial owners of Common Stock, Company and shall furnish to Merger Sub such information and assistance (including any updated lists of stockholders, mailing labels and security position listings positions) and computer files) assistance as Merger Sub Purchaser may reasonably request in for purposes of communicating the Offer to the Company's stockholdersrecord holders and beneficial holders of Company Common Shares. Subject to All information furnished in accordance with this Section 2.03(c) shall be held in confidence by Parent and Purchaser in accordance with the requirements of lawthe Confidentiality Agreement, and except for such steps as are necessary to disseminate the Offer Documents shall be used by Parent and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the communication of the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver dissemination of any Proxy/Information Statement relating to the Company all copies of such information then in their possession or under their control. (d) Subject Merger to the terms and conditions holders of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that would, in the absence of action by the Company or the Board, prevent Merger Sub, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be takenShares.

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 duly adopted resolutions held, unanimously (i) approving adopted and approved this AgreementAgreement and approved the transactions contemplated hereby, including the Offer and the Merger, in accordance with the DGCL; (ii) declared that the Offer and the Merger (as defined in Section 2.1), determining that and the Merger is advisable and that ----------- the terms of the Offer and Merger 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 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 rescinded or modified as 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 antitakeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreementdate hereof. The Company further represents and warrants that the Board of Directors has received the written opinion of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Financial --------- Advisor") that the proposed consideration to be received by the holders of ------- shares of Common Stock pursuant to the Offer and the Merger is fair to such holders 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 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 ▇▇▇▇▇▇▇, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheld) ▇▇▇▇▇ & 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(b)amended, supplemented or modified, the “Proxy/Information Statement”). 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) 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ --------------. (b) The On the Offer Commencement Date, the Company shall use its reasonable best efforts to file with the SEC, concurrently SEC and (following or contemporaneously with the filing initial dissemination of the Offer Documents with to holders of Company Common Shares to the SEC, and in any event the extent required by applicable federal securities laws) disseminate to holders of Company shall file within five days thereafter, Common Shares a Solicitation/Recommendation Statement on Schedule 14D-9 (together with respect to any amendments or supplements thereto, the Offer (such “Schedule 14D-9”) that, as amended from time to time, the "Schedule 14D-9") -------------- containing the recommendations described in the first sentence of Section ------- (a) (subject to the last sentence of Section 1.3(a) and 8.03, shall mail the ------ -------------- Schedule 14D-9 to the stockholders of the Company. To the extent practicable, contain the Company shall cooperate Board Recommendation. Except in connection with Purchaser an Adverse Recommendation Change made in mailing or otherwise disseminating the Schedule 14D-9 accordance with the appropriate Offer Documents to the Company's stockholders. Purchaser Section 8.03, Parent and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC. The Company shall: (i) promptly provide Parent and its counsel with a copy of any written comments and a description of any oral comments received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9 and (ii) except with respect to any disclosure made relating to an Adverse Recommendation Change in accordance with Section 8.03, give Parent and its counsel a reasonable opportunity to review and comment on any response formulated in connection with such comments prior to the filing thereof with the SEC. The Company shall respond as promptly as reasonably practicable to any comments of the SEC or its staff with respect to the Schedule 14D-9. The Company shall cause the Schedule 14D-9 to (i) comply as to form in all material respects with the requirements of the Exchange Act and, and (ii) on the date filed with the SEC and on the date first published, sent or given to the Company's stockholdersCompany Stockholders, shall not contain 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, in the light of the circumstances under which they were made, not misleading; provided, except however, that no representation covenant is made by the Company with respect to information supplied by or on behalf of Parent or Purchaser or Merger Sub for inclusion or incorporation by reference in the Schedule 14D-9. Each To the extent required by the applicable requirements of the CompanyExchange Act and the rules and regulations thereunder: (A) each of Parent, Purchaser and Merger Sub agrees the Company shall promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent such information shall have become false or misleading in any material respect, respect and (B) the Company further agrees shall use reasonable best efforts to take all steps necessary to promptly cause the Schedule 14D-9 14D-9, as so corrected supplemented or amended to correct such information, to be filed with the SEC and to be disseminated to the holders of shares of Company Common Stock, in each case as Shares. Parent and Purchaser shall promptly furnish to the extent Company all information relating to Parent and Purchaser required by applicable federal securities lawsthe Exchange Act to be set forth in the Schedule 14D-9. The Company agrees to provide Purchaser and Merger Sub and their counsel in writing with any comments To the Company or its counsel may receive from extent requested by the SEC or its staff with respect to Company, Parent shall cause the Schedule 14D-9 promptly after to be mailed or otherwise disseminated to the receipt of such commentsCompany Stockholders together with the Offer Documents disseminated to the Company Stockholders. (c) In connection with the Offer, the Company shall cause instruct its transfer agent to promptly furnish promptly to Merger Sub mailing labels containing Purchaser a true and correct list, as of the names and addresses most recent practicable date, of the record holders of Company Common Stock Shares and their addresses, as of a recent date well as mailing labels containing such names and of those persons becoming record holders subsequent to addresses. The Company will furnish Purchaser with such date, and to furnish copies of other additional information (including any security position listings in the Company's ’s possession or control regarding reasonably obtainable by the beneficial owners of Common Stock, Company and shall furnish to Merger Sub such information and assistance (including any updated lists of stockholders, mailing labels and security position listings positions) and computer files) assistance as Merger Sub Purchaser may reasonably request in for purposes of communicating the Offer to the Company's stockholdersrecord holders and beneficial holders of Company Common Shares. Subject to All information furnished in accordance with this Section 2.03(c) shall be held in confidence by Parent and Purchaser in accordance with the requirements of lawthe Confidentiality Agreement, and except for such steps as are necessary to disseminate the Offer Documents shall be used by Parent and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the communication of the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver dissemination of any Proxy/Information Statement relating to the Company all copies of such information then in their possession or under their control. (d) Subject Merger to the terms and conditions holders of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that would, in the absence of action by the Company or the Board, prevent Merger Sub, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be takenShares.

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 held, unanimously duly adopted resolutions (i) approving and declaring the advisability of this Agreement, the Offer (ii) approving this Agreement and the Merger Transactions (as defined such approval having been made in accordance with the DGCL, including for purposes of Section 2.1203 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 herebyTransactions (the “Company Board Recommendation”); provided, including however, that the Company Board may withdraw, modify or amend the Company Board Recommendation as provided by Section 6.3(e). The Company hereby consents to the inclusion in the Offer and the Merger, (ii) taking all action necessary to render Section 203 Documents 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, Company Board Recommendation to the extent permitted by law, such Company Board Recommendation is not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" withheld or other form of corporate antitakeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreementwithdrawn in accordance with Section 6.3(e). The Company further also represents and warrants that (A) the Company Board of Directors has received the written opinion Fairness Opinion of ▇▇▇▇▇▇▇ LynchImperial Capital, Piercedated the date of this Agreement, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (to the "Financial --------- Advisor") that effect that, as of such date, and subject to the proposed various assumptions and qualifications set forth therein, the consideration to be received by the holders of ------- shares of Common Stock pursuant to Company Stockholders in the Offer and the Merger is fair to such holders from a financial point of view and (the "Fairness Opinion"). Subject to the ---------------- last sentence of this Section 1.3(a), B) the Company hereby has obtained or will timely obtain all necessary consents to (including the inclusion in the Offer Documents authorization 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 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(b)) and the Proxy Statement (as defined in Section 8.2(b)withheld or delayed). 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) provided Offer and 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ --------------Offer Documents may so state. (b) The On the Offer Commencement Date, the Company shall use its reasonable best efforts to file with the SEC, concurrently SEC and contemporaneously with the filing initial dissemination of the Offer Documents with the SEC, and in any event the to holders of Company shall file within five days thereafter, Common Stock disseminate to holders of Company Common Stock a Solicitation/Recommendation Statement on Schedule 14D-9 (together with respect to any amendments or supplements thereto, the Offer (such “Schedule 14D-9”) that, as amended from time to time, the "Schedule 14D-9") -------------- containing the recommendations described in the first sentence of Section ------- (a) (subject to the last sentence of Section 1.3(a) and 6.3(e), shall mail the ------ -------------- Schedule 14D-9 to the stockholders of the Company. To the extent practicable, contain the Company shall cooperate with Purchaser in mailing or otherwise disseminating the Schedule 14D-9 with the appropriate Offer Documents to the Company's stockholdersBoard Recommendation. Purchaser Parent and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC. The Company shall: (i) as promptly as reasonably practicable provide Parent and its counsel with a copy of any written comments and a description of any oral comments received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9, (ii) give Parent and its counsel a reasonable opportunity to review and comment on any response formulated in connection with such comments prior to the filing thereof with the SEC and (iii) respond promptly to any such comments. The Company agrees that the Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange Act and, on the date filed with the SEC and on the date first published, sent or given to the Company's stockholdersCompany Stockholders, shall not contain 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, in the light of the circumstances under which they were made, not misleading; provided, except that no representation covenant is made by the Company with respect to information supplied by Purchaser or on behalf of Parent or Merger Sub for inclusion or incorporation by reference in the Schedule 14D-9. Each To the extent required by the applicable requirements of the CompanyExchange Act: (A) each of Parent, Purchaser and Merger Sub agrees and the Company shall promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent such information shall have become false or misleading in any material respect, respect and (B) the Company further agrees to shall take all steps necessary to cause the Schedule 14D-9 14D-9, as so corrected supplemented or amended to correct such information, to be filed with the SEC and and, if required, to be disseminated to the holders of shares of Company Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide Purchaser Parent and Merger Sub and their counsel shall promptly furnish to the Company all information concerning Parent or Merger Sub that may be reasonably requested in writing connection with any comments action contemplated by this Section 1.3(b). To the Company or its counsel may receive from extent requested by the SEC or its staff with respect to Company, Parent shall cause the Schedule 14D-9 promptly after to be mailed or otherwise disseminated to the receipt of such commentsCompany Stockholders together with the Offer Documents disseminated to the Company Stockholders. (c) In connection with the Offer, the Company shall cause instruct its transfer agent to furnish promptly to Merger Sub mailing labels containing a list, as of the names and addresses most recent practicable date, of the record holders of shares of Company Common Stock and their addresses, as of a recent date well as mailing labels containing such names and of those persons becoming record holders subsequent to addresses. The Company will furnish Merger Sub with such date, and to furnish copies of other additional information (including any security position listings in the Company's ’s possession or control regarding reasonably obtainable by the beneficial owners of Common Stock, and shall furnish to Merger Sub such information Company) and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub may reasonably request in for purposes of communicating the Offer to the Company's stockholdersrecord holders and beneficial holders of shares of Company Common Stock. Subject to All information furnished in accordance with this Section 1.3(c) shall be held in confidence by Parent and Merger Sub in accordance with the requirements of lawthe Confidentiality Agreement, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser shall be used by Parent and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the communication of the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver dissemination of any Proxy/Information Statement relating to the Merger to the holders of shares of Company all copies of such information then in their possession or under their controlCommon Stock. (d) Subject The Company shall as promptly as reasonably practicable furnish to Parent and Merger Sub all information concerning the terms and conditions of this Agreement, if there shall occur a change in law Company that may be required by applicable securities Laws or in a binding judicial interpretation of existing law that would, reasonably requested by Parent or Merger Sub for inclusion in the absence of action by Schedule TO and the Company or the Board, prevent Merger Sub, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be takenOffer Documents.

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 resolutions (i) approving this Agreement, the Offer (if made) and the Merger (as defined in Section 2.1)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 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 antitakeover 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 ▇▇▇▇▇▇ ▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated Co. Inc. (the "Financial --------- Advisor") that the proposed consideration to be received by the holders of ------- shares of Common Stock pursuant to the Offer (if made) and the Merger is fair to such holders from a financial point of 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)). 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ --------------Statement. (b) The Company shall use its reasonable best efforts to file On the date the Offer Documents are filed with the SEC, concurrently with the filing of the Offer Documents with the SEC, and in any event the Company shall file within five days thereafter, with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from time to time, the "Schedule 14D-9") -------------- containing the recommendations described in the first sentence of Section ------- (a) (subject to the last sentence of Section 1.3(a5.3(a) and shall mail disseminate the ------ -------------- Schedule 14D-9 to the stockholders of the CompanyCompany as required by Rule 14d- 9 promulgated under the Exchange Act. To the extent practicable, the Company shall cooperate with Purchaser in 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 a reasonable an opportunity to review and comment upon the Schedule 14D-9 (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange 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 contain 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, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Purchaser or Merger Sub for inclusion in the Schedule 14D-9. Each of the Company, Purchaser and Merger Sub agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the holders of shares of Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide Purchaser and Merger Sub and their counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. (c) In connection with the Offer, the Company shall cause its transfer agent to furnish promptly to Merger Sub with mailing labels containing the names and addresses of the record holders of Common Stock as of a recent date and of those persons becoming record holders subsequent to such date, and to furnish together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company's possession or control regarding the beneficial owners of Common Stock, and shall furnish to Merger Sub such information and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub may reasonably request in communicating the Offer to the Company's stockholders. Subject to the requirements of law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver to the Company all copies of such information then in their possession or under their control. (d) Subject to the terms and conditions of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that which would, in the absence of action by the Company or the Board, prevent Merger Sub, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from approving and adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its reasonable best efforts to promptly take or cause such action to be taken.

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 adopted, by unanimous vote, resolutions (i) approving this Agreement, the Offer and the Merger (as defined in Section 2.1hereinafter 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 (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 antitakeover 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 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated Co. (the "Financial --------- AdvisorFINANCIAL ADVISOR") that the proposed consideration to be received by the holders of ------- shares of Common Stock pursuant to the Offer and the Merger is fair to such holders from a financial point of 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)). 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ --------------. (b) The Company shall use its reasonable best efforts to file On the date the Offer Documents are filed with the SEC, concurrently with the filing of the Offer Documents with the SEC, and in any event the Company shall file within five days thereafter, with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from time to time, the "Schedule SCHEDULE 14D-9") -------------- containing the recommendations described in the first sentence of Section ------- paragraph (a) (subject to the last sentence of Section 1.3(a) above and shall mail the ------ -------------- Schedule 14D-9 to the stockholders of the Company. To the extent practicable, the Company shall cooperate with Purchaser in 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 a reasonable an opportunity to review and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange 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 contain 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, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Purchaser or Merger Sub for inclusion in the Schedule 14D-9. Each of the Company, Purchaser and Merger Sub agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the holders of shares of Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide Purchaser and Merger Sub and their counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such commentscomments and with copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel. (c) In connection with the Offer, the Company shall cause its transfer agent to furnish promptly to Merger Sub with mailing labels containing the names and addresses of the record holders of Common Stock as of a recent date and of those persons becoming record holders subsequent to such date, and to furnish together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company's possession or control regarding the beneficial owners of Common Stock, and shall furnish to Merger Sub such information and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub may reasonably request in communicating the Offer to the Company's stockholders. Subject to the requirements of law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver to the Company all copies of such information then in their possession or under their controlpossession. (d) Subject to the terms and conditions of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that which would, in the absence of action by the Company or the Board, prevent the Merger Sub, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from approving and adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be taken.

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 duly adopted resolutions (i) approving this Agreement, the Offer and the Merger (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 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 antitakeover 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 U.S. Bancorp Pipe▇ ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated . (the "Financial --------- Advisor") that the proposed consideration to be received by the holders of ------- shares of Common Stock pursuant to the Offer and the Merger is fair to such the holders of Common Stock (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)). 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ -------------- (b) The Company shall use its reasonable best efforts to file with the SEC, concurrently with the filing of the Offer Documents with the SEC, and in any event the Company shall file within five days thereafter, a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from time to time, the "Schedule 14D-9") -------------- containing the recommendations described in the first sentence of Section ------- (a) (subject to the last sentence of Section 1.3(a) and shall mail the ------ -------------- Schedule 14D-9 to the stockholders of the Company. To the extent practicable, the Company shall cooperate with Purchaser in 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 a reasonable opportunity to review and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange 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 contain 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, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Purchaser or Merger Sub for inclusion in the Schedule 14D-9. Each of the Company, Purchaser and Merger Sub agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the holders of shares of Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide Purchaser and Merger Sub and their counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. (c) In connection with the Offer, the Company shall cause its transfer agent to furnish promptly to Merger Sub mailing labels containing the names and addresses of the record holders of Common Stock as of a recent date and of those persons becoming record holders subsequent to such date, and to furnish copies of other information in the Company's possession or control regarding the beneficial owners of Common Stock, and shall furnish to Merger Sub such information and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub may reasonably request in communicating the Offer to the Company's stockholders. Subject to the requirements of law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver to the Company all copies of such information then in their possession or under their control. (d) Subject to the terms and conditions of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that would, in the absence of action by the Company or the Board, prevent Merger Sub, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be taken.The

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 duly adopted resolutions (i) approving this Agreement, the Offer and the Merger (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 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 antitakeover 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 a written opinion opinion) of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated Inc. (the "Financial --------- Advisor") that to the proposed effect that, as of the date of this Agreement, the consideration to be received by the holders of ------- shares of Common Stock pursuant to in the Offer and the Merger by the holders of shares of Common Stock (other than Purchaser and its affiliates) is fair to such holders fair, from a financial point of view view, to such holders (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) 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 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 8.118.9) if the Company has complied in accordance and full compliance with ------------ the terms of Section 8.11 8.9 and Section 10.1(d10.1(h). ------------ --------------. (b) The Company shall use its reasonable best efforts to file with the SEC, concurrently with the filing of the Offer Documents with the SEC, and in any event the Company shall file within five days thereafter, a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended or supplemented from time to time, the "Schedule 14D-9") -------------- containing the recommendations described in the first sentence of Section ------- (a1.3(a) (subject to the last sentence of Section 1.3(a)) and shall mail the ------ -------------- Schedule 14D-9 to the stockholders of the Company. To the extent practicable, the Company shall cooperate with Purchaser in 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 a reasonable opportunity to review and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange 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 contain 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, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Purchaser or Merger Sub for inclusion in the Schedule 14D-9. Each of the Company, Purchaser and Merger Sub agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the holders of shares of Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide Purchaser and Merger Sub and their counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. (c) To the extent required by applicable federal securities law, each party hereto shall file all written communications, that are made public or otherwise supplied to third parties, with the SEC on or prior to the date the communication is first used. All such communications shall comply as to form and content, including bearing the appropriate legends, in all material respects with the applicable provisions of the federal securities laws. Each party agrees that, prior to any such filing or use of written communications, such party will provide the other party and their counsel the reasonable opportunity to review and comment on such communications and filings. (d) In connection with the Offer, the Company shall cause its transfer agent to furnish promptly to Merger Sub mailing labels containing the names and addresses of the record holders of Common Stock as of a recent date and of those persons becoming record holders subsequent to such date, and to furnish copies of other information in the Company's possession or control regarding the non-objecting beneficial owners of Common Stock, and shall furnish to Merger Sub such information and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub may reasonably request in communicating the Offer to the Company's stockholders. Subject to the requirements of law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver to the Company all copies of such information then in their possession or under their control. (d) Subject to the terms and conditions of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that would, in the absence of action by the Company or the Board, prevent Merger Sub, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be taken.

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 duly adopted resolutions held, has, by unanimous vote 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 Merger and approving and adopting this Agreement, (as defined in Section 2.1), 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 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 antitakeover 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 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Financial --------- Advisor") that the proposed consideration to be received by the holders of ------- shares of Common Stock pursuant to the Offer and the Merger is fair to such holders 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 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)). 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 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(daffiliates). ------------ --------------. (b) The Company shall use its reasonable best efforts to file with As soon as reasonably practicable on the SEC, concurrently with the filing date of the Offer Documents with commencement of the SECOffer, and in any event the Company shall file within five days thereafter, with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from time to timetogether with all amendments and supplements thereto, the "Schedule SCHEDULE 14D-9") -------------- containing the recommendations of the Company Board and the Special Committee described in the first sentence of Section ------- (a) (subject to the last sentence of Section 1.3(aSECTION 1.3(A) and shall mail disseminate the ------ -------------- Schedule 14D-9 to the stockholders of the CompanyCompany to the extent required by Rule 14d-9 promulgated under the Exchange Act and any other applicable federal or state securities laws. To the extent practicable, the Company shall cooperate with Purchaser and/or Parent in mailing or otherwise disseminating the Schedule 14D-9 with the appropriate Offer Documents to the Company's stockholders. Parent, Purchaser and its their counsel shall be given a reasonable an opportunity to review and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange Act and, on Act. On the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, the Schedule 14D-9 shall not contain 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, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Parent or Purchaser or Merger Sub for inclusion in the Schedule 14D-9. Each of the Company, Purchaser and Merger Sub The Company agrees promptly to correct promptly, and each of Parent and Purchaser agrees to notify the Company promptly as to, any information provided by it for use in the Schedule 14D-9 14D-9, if and to the extent such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to all of the holders of shares of Common StockShares, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide Parent and Purchaser and Merger Sub and their counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company agrees to use its reasonable best efforts, after consultation with Parent, to respond promptly to all such comments of and requests by the SEC. The Company shall provide Parent copies of any written responses and telephonic notification of any verbal responses by the Company and its counsel. (c) In connection with the Offer, the Company shall promptly, or shall cause its transfer agent to promptly, furnish promptly to Merger Sub Purchaser with mailing labels containing the names and addresses of the record holders of Common Stock Shares, each as of a the most recent date and of those persons becoming record holders subsequent to such date, and to furnish together with copies of all lists of stockholders and security position listings and all other information in the Company's possession or control regarding the beneficial owners of Common Stock, and shall furnish to Merger Sub Purchaser such information and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub Purchaser may reasonably request in communicating the Offer to the Company's stockholders. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Parent and Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminatedterminated in accordance with Section 8.1, shall promptly deliver to the Company all copies of such information then in their possession or under their controlpossession. (d) Subject to the terms and conditions of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that which would, in the absence of action by the Company or the Company Board, prevent Merger Subthe Purchaser, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from approving and adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be taken.

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 duly adopted resolutions held, has, by unanimous vote 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 Merger and approving and adopting this Agreement, (as defined in Section 2.1), 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 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 antitakeover 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 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Financial --------- Advisor") that the proposed consideration to be received by the holders of ------- shares of Common Stock pursuant to the Offer and the Merger is fair to such holders 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 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)). 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 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(daffiliates). ------------ --------------. (b) The Company shall use its reasonable best efforts to file with As soon as reasonably practicable on the SEC, concurrently with the filing date of the Offer Documents with commencement of the SECOffer, and in any event the Company shall file within five days thereafter, with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from time to timetogether with all amendments and supplements thereto, the "Schedule 14D-9") -------------- containing the recommendations of the Company Board and the Special Committee described in the first sentence of Section ------- (a) (subject to the last sentence of Section 1.3(a) and shall mail disseminate the ------ -------------- Schedule 14D-9 to the stockholders of the CompanyCompany to the extent required by Rule 14d-9 promulgated under the Exchange Act and any other applicable federal or state securities laws. To the extent practicable, the Company shall cooperate with Purchaser and/or Parent in mailing or otherwise disseminating the Schedule 14D-9 with the appropriate Offer Documents to the Company's stockholders. Parent, Purchaser and its their counsel shall be given a reasonable an opportunity to review and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange Act and, on Act. On the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, the Schedule 14D-9 shall not contain 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, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Parent or Purchaser or Merger Sub for inclusion in the Schedule 14D-9. Each of the Company, Purchaser and Merger Sub The Company agrees promptly to correct promptly, and each of Parent and Purchaser agrees to notify the Company promptly as to, any information provided by it for use in the Schedule 14D-9 14D-9, if and to the extent such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to all of the holders of shares of Common StockShares, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide Parent and Purchaser and Merger Sub and their counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company agrees to use its reasonable best efforts, after consultation with Parent, to respond promptly to all such comments of and requests by the SEC. The Company shall provide Parent copies of any written responses and telephonic notification of any verbal responses by the Company and its counsel. (c) In connection with the Offer, the Company shall promptly, or shall cause its transfer agent to promptly, furnish promptly to Merger Sub Purchaser with mailing labels containing the names and addresses of the record holders of Common Stock Shares, each as of a the most recent date and of those persons becoming record holders subsequent to such date, and to furnish together with copies of all lists of stockholders and security position listings and all other information in the Company's possession or control regarding the beneficial owners of Common Stock, and shall furnish to Merger Sub Purchaser such information and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub Purchaser may reasonably request in communicating the Offer to the Company's stockholders. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Parent and Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminatedterminated in accordance with Section 8.1, shall promptly deliver to the Company all copies of such information then in their possession or under their controlpossession. (d) Subject to the terms and conditions of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that which would, in the absence of action by the Company or the Company Board, prevent Merger Subthe Purchaser, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from approving and adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be taken.. ARTICLE 2

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 adopted, by unanimous vote, resolutions (i) approving this Agreement, the Offer and the Merger (as defined in Section 2.1hereinafter 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 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 antitakeover 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 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Financial --------- Advisor") that the proposed consideration to be received by the holders of ------- shares of Common Stock pursuant to the Offer and the Merger is fair to such holders 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 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)). 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ --------------. (b) The Company shall use its reasonable best efforts to file On the date the Offer Documents are filed with the SEC, concurrently with the filing of the Offer Documents with the SEC, and in any event the Company shall file within five days thereafter, with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from time to time, the "Schedule SCHEDULE 14D-9") -------------- containing the recommendations described in the first sentence of Section ------- paragraph (a) (subject to the last sentence of Section 1.3(a) above and shall mail the ------ -------------- Schedule 14D-9 to the stockholders of the Company. To the extent practicable, the Company shall cooperate with Purchaser in 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 a reasonable an opportunity to review and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange 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 contain 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, in the light of the circumstances under circumstance ▇▇▇▇▇▇ which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Purchaser or Merger Sub for inclusion in the Schedule 14D-9. Each of the Company, Purchaser and Merger Sub agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the holders of shares of Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide Purchaser and Merger Sub and their counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments.Sub (c) In connection with the Offer, the Company shall cause its transfer agent to furnish promptly to Merger Sub with mailing labels containing the names and addresses of the record holders of Common Stock as of a recent date and of those persons becoming record holders subsequent to such date, and to furnish together with copies of all lists of stockholders, security position listings and computer files and all other information in the Company's possession or control regarding the beneficial owners of Common Stock, and shall furnish to Merger Sub such information and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub may reasonably request in communicating the Offer to the Company's stockholders. Subject to the requirements of law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver to the Company all copies of such information then in their possession or under their controlpossession. (d) Subject to the terms and conditions of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that which would, in the absence of action by the Company or the Board, prevent Merger the merger Sub, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from approving and adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be taken.

Actions by the Company. (a) The Company hereby approves of and consents to the Amended Offer and represents and warrants that (i) the Board by vote of Directors all directors at a meeting duly called and held has duly adopted resolutions held, has, in light of and subject to the terms and conditions set forth herein, unanimously (ix) approving this Agreement, determined that each of the Amended Offer and the Merger (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 of the Company and recommending that the Company's stockholders accept the Offer and tender all of their shares of Common Stock to Merger Sub and approve (y) approved this Agreement and the transactions contemplated hereby, including the Amended Offer and the Merger, and recommends acceptance of the Amended Offer and approval and adoption of this Agreement and the Merger by the stockholders of the Company and (ii) taking all action necessary to render 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 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 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇ & Co. ("▇▇▇▇▇▇▇ & ▇▇▇▇▇") and ▇▇▇▇▇▇ Incorporated Brothers Inc. ("▇▇▇▇▇▇ Bros."), the "Financial --------- Advisor") Company's financial advisors, have rendered to the Board their respective opinions that the proposed consideration to be received by the holders stockholders of ------- shares of Common Stock the Company pursuant to the Amended Offer and the Merger is fair to such holders stockholders 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)). 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ --------------view. (b) The Company shall use its reasonable best efforts to agrees that it shall, on the same day that Purchaser and Praxair file with the SECCommission an amendment to the Initial Offer Documents pursuant to Section 1.1 hereof, concurrently file with the filing of the Offer Documents with the SEC, and in any event the Company shall file within five days thereafter, a Commission an amendment to its Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, dated November 16, 1995 (including exhibits, as so amended, and as amended from time to time, the "Amended Schedule 14D-9"), which amendment shall include (i) -------------- containing subject to the recommendations described proviso in the first second sentence of Section -------1.2(c), the recommendation described in Section 1.2(a) hereof and (ii) the information with respect to the Company and its officers and directors, (including any directors to be elected or appointed pursuant to Section 1.3 hereof) in form and substance satisfactory to Praxair and its counsel, that is required under Section 14(f) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and Rule 14f-1 promulgated thereunder. In such connection, Praxair and Purchaser shall promptly furnish the Company with all information concerning their designees required by Section 14(f) of the Exchange Act and Rule 14f-1 thereunder. Praxair and Purchaser shall have the opportunity to review the Amended Schedule 14D-9 prior to its being filed with the Commission. 5 (ac) (subject to the last sentence The Company agrees that copies of Section 1.3(a) and shall mail the ------ -------------- such Schedule 14D-9 (excluding exhibits), shall be enclosed with the Amended Offer Documents to be mailed by Purchaser to the stockholders of the Company. To the extent practicable, the Company shall cooperate with Purchaser in mailing or otherwise disseminating the Schedule 14D-9 connection with the appropriate Offer Documents to the Company's stockholders. Purchaser and its counsel shall be given a reasonable opportunity to review and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange 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 contain 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, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Purchaser or Merger Sub for inclusion in the Schedule 14D-9Amended Offer. Each of the Company, Purchaser one the one hand, and Merger Sub Praxair and Purchaser, on the other hand, agrees promptly to correct any information provided by it either of them for use in the Amended Schedule 14D-9 14D- 9 if and to the extent such information that it shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Amended Schedule 14D-9 as so corrected to be filed with the SEC Commission and to be disseminated to the holders stockholders of shares of Common Stockthe Company, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide Purchaser and Merger Sub and their counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect ; provided, however, that, subject to the Schedule 14D-9 promptly provisions of Article IX, such recommendation may be withdrawn, modified or amended to the extent that the Board deems it necessary to do so in the exercise of its fiduciary and other legal obligations after the receipt of such comments. (c) being so advised by outside counsel. In connection with the Amended Offer, the Company shall cause its transfer agent to will furnish promptly to Merger Sub Praxair and Purchaser with such information, including lists of the stockholders of the Company, mailing labels containing the names and addresses lists of the record holders of Common Stock as of a recent date and of those persons becoming record holders subsequent to such datesecurity positions, and to furnish copies of other information in the Company's possession such assistance as Praxair or control regarding the beneficial owners of Common Stock, and shall furnish to Merger Sub such information and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub Purchaser or their agents may reasonably request in communicating the Amended Offer to the Company's stockholders. Subject to the requirements of law, record and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver to the Company all copies of such information then in their possession or under their control. (d) Subject to the terms and conditions of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that would, in the absence of action by the Company or the Board, prevent Merger Sub, were it to acquire a specified percentage beneficial holders of the shares of Common Stock then outstanding, from adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be takenShares.

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 adopted, by unanimous vote (with one director not present), resolutions (i) approving this Agreement, the Offer and the Merger 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, (as defined in ii) approving the Voting Agreements for the purposes of Section 2.1)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 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 Section 203 of the Delaware General Corporation Law, as amended (the "DGCL"), inapplicable to ---- the Offer, the Merger, this Agreement; provided, that such recommendations may be withdrawn, modified or amended following receipt of an Acquisition Proposal (as defined in Section 8.1) if the Tender Agreement and any Company has complied with the provisions 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 antitakeover 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 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇Hamb▇▇▇▇▇ & ▇uis▇, ▇▇▇▇ Incorporated C (the "Financial --------- Advisor") that that, as of the date of such opinion and subject to the limitations set forth therein, the proposed consideration Merger Consideration (as defined below) or the Offer Consideration (as defined below), as the case may be, to be received by the holders of ------- shares of Common Stock pursuant to the Offer Merger and the Merger Offer is fair to such holders from a financial point of 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)). 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 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ -------------- (b) The Company shall use its reasonable best efforts to file with the SEC, concurrently with the filing of the Offer Documents with the SEC, and in any event the Company shall file within five days thereafter, a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from time to time, the "Schedule 14D-9") -------------- containing the recommendations described Fairness Opinion in the first sentence of Section ------- (a) (subject to the last sentence of Section 1.3(a) and shall mail the ------ -------------- Schedule 14D-9 to the stockholders of the Company. To the extent practicable, the Company shall cooperate with Purchaser in 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 a reasonable opportunity to review and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange 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 contain 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, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Purchaser or Merger Sub for inclusion in the Schedule 14D-9. Each of the Company, Purchaser and Merger Sub agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the holders of shares of Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide Purchaser and Merger Sub and their counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such commentsProxy Statement. (c) In connection with the Offer, the Company shall cause its transfer agent to furnish promptly to Merger Sub mailing labels containing the names and addresses of the record holders of Common Stock as of a recent date and of those persons becoming record holders subsequent to such date, and to furnish copies of other information in the Company's possession or control regarding the beneficial owners of Common Stock, and shall furnish to Merger Sub such information and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub may reasonably request in communicating the Offer to the Company's stockholders. Subject to the requirements of law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver to the Company all copies of such information then in their possession or under their control. (d) Subject to the terms and conditions of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that would, in the absence of action by the Company or the Board, prevent Merger Sub, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be taken.

Actions by the Company. (a) The Company hereby approves of this Agreement and recommends and consents to the Offer and represents and warrants that the Company's Supervisory Board and the Company's Board of Directors Management (each, a "Board"), at a meeting meetings duly called and held has held, have duly adopted resolutions resolutions: (i) (1) approving by the Board of Management agreeing to this Agreement, the Offer Agreement and the Merger other transactions contemplated hereby and (as defined in Section 2.1)2) by the Supervisory Board approving the Board of Management's resolution to agree to enter into this Agreement and the other transactions contemplated hereby and to recommend the Offer, (ii) determining that the Merger this Agreement is advisable and that ----------- the terms of the Offer and Merger are fair to, and in the best interests of, the Company's stockholders shareholders and other relevant constituencies, its Subsidiaries and the enterprises carried on by itself and its Subsidiaries and (iii) recommending that the Company's stockholders shareholders 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 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 antitakeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreement. The Company further represents represents, warrants and warrants confirms that the Board of Directors has Boards have received the written opinion of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ Lazard Freres & ▇▇▇▇▇ Incorporated Co. LLC (the "Financial --------- Advisor") that the proposed consideration to be received by the holders of ------- shares of Common Stock Shares pursuant to the Offer and the Merger is fair to such holders 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 DocumentsCompany's Schedule 14D-9. In consultation with the Parent, the Schedule 14D-9 (as defined in Section 1.3(b)) Company shall inform the Trade Unions and request the Proxy Statement (as defined in Section 8.2(b)). 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) advice 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ --------------Works Councils. (b) The Company shall use its reasonable best efforts to file On the date the Offer Documents are filed with the SEC, concurrently with the filing of the Offer Documents with the SEC, and in any event the Company shall file within five days thereafter, with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from time to time, the "Schedule 14D-9") -------------- containing the recommendations described in the first sentence of Section ------- (a) (subject to the last sentence of Section 1.3(a) and shall mail the ------ -------------- Schedule 14D-9 to the stockholders shareholders of the CompanyCompany to the extent required by the Exchange Act. To the extent practicable, the Company shall cooperate with Purchaser in mailing or otherwise disseminating the Schedule 14D-9 with the appropriate Offer Documents to the Company's stockholdersshareholders. Purchaser and its counsel shall be given a reasonable an opportunity to review and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange Act and, on Act. On the date filed with the SEC and on the date first published, sent or given to the Company's stockholdersshareholders, the Schedule 14D-9 shall not contain 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, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Parent, Purchaser or Merger Offer Sub for inclusion in the Schedule 14D-9. Each The Company agrees to correct promptly, and each of the CompanyParent, Purchaser and Merger Offer Sub agrees to notify the Company promptly to correct as to, any information provided by it for use in the Schedule 14D-9 if and to the extent such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to all of the holders of shares of Common StockShares, in each case as and to the extent required by applicable federal securities lawsLaws. The Company agrees to provide Purchaser and Merger Offer Sub and their counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company agrees to use its reasonable best efforts, after consultation with Purchaser, to respond promptly to all such comments of and requests by the SEC. The Company shall provide Purchaser copies of any written responses and telephonic notification of any verbal responses by the Company and its counsel. (c) In connection with the Offer, the Company shall cause its transfer agent to furnish promptly furnish, to Merger the extent available, Offer Sub with mailing labels containing the names and addresses of the record holders of Common Stock Shares as of a recent date and of those persons becoming record holders subsequent to such date, and to furnish together with copies of all lists of shareholders and security position listings and all other information in the Company's possession or control regarding the beneficial owners of Common StockShares, and shall furnish to Merger Offer Sub such information and assistance (including updated lists of stockholdersshareholders, security position listings and computer files) as Merger Offer Sub may reasonably request in communicating the Offer to the Company's stockholders. Subject to the requirements of law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver to the Company all copies of such information then in their possession or under their controlshareholders. (d) Subject to the terms and conditions of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that would, in the absence of action by the Company or the Board, prevent Merger Sub, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be taken.

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 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 Merger (as defined in Section 2.1)other 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 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 Section 203 of the Delaware General Corporation Law, as amended (the "DGCL"), inapplicable to ---- Company accept 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 antitakeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Tender Agreement. The tender their Company further represents and warrants that the Board of Directors has received the written opinion of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Financial --------- Advisor") that the proposed consideration to be received by the holders of ------- shares of Common Stock pursuant to the Offer and adopt this Agreement, the Offer, the Merger is fair to such holders from a financial point of view and the other transactions contemplated by this Agreement, if required (the "Fairness Opinion"“Company Board Recommendation”); provided, however, that the Board of Directors of the Company may withdraw, modify or amend the Company Board Recommendation as provided by Section 6.2. 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 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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 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))14D-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) 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ --------------. (b) The On the Offer Commencement Date, the Company shall use its reasonable best efforts to file with the SEC, concurrently SEC and (following or contemporaneously with the filing initial dissemination of the Offer Documents with to holders of Company Common Stock to the SEC, and in any event the extent required by applicable Laws) disseminate to holders of Company shall file within five days thereafter, Common Stock a Solicitation/Recommendation Statement on Schedule 14D-9 (together with respect to any amendments or supplements thereto, the Offer (such “Schedule 14D-9”) that, as amended from time to time, the "Schedule 14D-9") -------------- containing the recommendations described in the first sentence of Section ------- (a) (subject to Section 6.2, shall (x) contain the last sentence of Company Board Recommendation, (y) reflect that the Merger is governed by Section 1.3(a251(h) and shall mail the ------ -------------- Schedule 14D-9 to the stockholders of the CompanyDGCL and (z) contain the notice and other information (including setting the Stockholder List Date as the record date for purposes of receiving the notice required by Section 262(d)(2) of the DGCL). To the extent practicableExcept in connection with a Company Adverse Recommendation Change made in accordance with Section 6.2, the Company shall cooperate with Purchaser in mailing or otherwise disseminating the Schedule 14D-9 with the appropriate Offer Documents to the Company's stockholders. Purchaser Parent and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC. The Company shall: (i) promptly provide Parent and its counsel with a copy of any written comments and all correspondence and a description of any oral comments received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9, (ii) except with respect to any disclosure made relating to a Company Adverse Recommendation Change in accordance with Section 6.2, give Parent and its counsel a reasonable opportunity to review and comment on any response formulated in connection with such comments prior to the filing thereof with the SEC and (iii) respond promptly to any such comments. The Company agrees that the Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange Act and, on the date filed with the SEC and on the date first published, sent or given to the stockholders of the Company's stockholders, shall not contain 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, in the light of the circumstances under which they were made, not misleading; provided, except that no representation covenant is made by the Company with respect to information supplied by Purchaser or on behalf of Parent or Merger Sub for inclusion or incorporation by reference in the Schedule 14D-9. Each To the extent required by the applicable requirements of the CompanyExchange Act: (A) each of Parent, Purchaser and Merger Sub agrees and the Company shall promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent such information shall have become false or misleading in any material respect, respect and (B) the Company further agrees to shall take all steps necessary to cause the Schedule 14D-9 14D-9, as so corrected supplemented or amended to correct such information, to be filed with the SEC and and, if required, to be disseminated to the holders of shares of Company Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide Purchaser Parent and Merger Sub and their counsel shall promptly furnish to the Company all information concerning Parent or Merger Sub that may be reasonably requested in writing connection with any comments action contemplated by this Section 2.3(b). To the Company or its counsel may receive from extent requested by the SEC or its staff with respect to Company, Parent shall cause the Schedule 14D-9 promptly after to be mailed or otherwise disseminated to the receipt stockholders of such commentsthe Company together with the Offer Documents disseminated to the stockholders of the Company. (c) In connection with the Offer, the Company shall cause instruct its transfer agent to furnish promptly to Merger Sub mailing labels containing a list, as of the names most recent practicable date (the date of the list used to determine the record holders to whom the Offer Documents and addresses the Schedule 14D-9 are first disseminated, the “Stockholder List Date”), of the record holders of Company Common Stock and their addresses, as well as mailing labels, security position listings, non-objecting beneficial owner lists and any other listings or computer files in the Company’s possession or reasonably obtainable by the Company containing the names and address of the record or beneficial owners of the Company Common Stock as of a the most recent date and of those persons becoming record holders subsequent to such practicable date, and to . The Company will furnish copies of other information in the Company's possession or control regarding the beneficial owners of Common Stock, and shall furnish to Merger Sub with such additional information and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub may reasonably request in for purposes of communicating the Offer to the Company's stockholdersrecord holders and beneficial holders of Company Common Stock. Subject to All information furnished in accordance with this Section 2.3(c) shall be held in confidence by Parent and Merger Sub in accordance with the requirements of lawthe Confidentiality Agreement, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser shall be used by Parent and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the communication of the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver to the holders of Company all copies of such information then in their possession or under their control. (d) Subject to Common Stock. The Company shall register the terms and conditions of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that would, in the absence of action by the Company or the Board, prevent Merger Sub, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from adopting this Agreement by its affirmative vote as the holder of a majority transfer of shares of Company Common Stock accepted for payment effective immediately after the time at which Merger Sub accepts for payment shares of Company Common Stock tendered and without not properly withdrawn pursuant to the affirmative vote Offer; provided, that Merger Sub pays for such shares of any other stockholder, the Company will use its best efforts to promptly take Common Stock at or cause immediately after such action to be takentransfer.

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 duly adopted resolutions will: (i) approving this Agreement, the Offer and the Merger (as defined in Section 2.1), determining that the Merger is advisable and that ----------- the terms within ten days of the Offer and Merger are fair toClosing, and file with the applicable Canadian Securities Commissions any reports required to be filed by Securities Laws, including under NI 45-106, 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 connection with this Agreement and the transactions contemplated hereby, including by this Agreement in the Offer and the Merger, required form; and (ii) taking all action necessary to render Section 203 ensure that the distribution of the Delaware General Corporation LawUnits will fully comply, as amended (in all material respects, with the "DGCL"), inapplicable to ---- the Offer, the Merger, this Agreement, the Tender Agreement and any requirements 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 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 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Financial --------- Advisor") that the proposed consideration to be received by the holders of ------- shares of Common Stock pursuant to the Offer and the Merger is fair to such holders 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)). 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ --------------Securities Laws. (b) The Company shall use its reasonable best efforts will, from and including the date of this Agreement through to file with and including the SEC, concurrently with the filing of the Offer Documents with the SEC, and in any event the Company shall file within five days thereafter, a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from time to time, the "Schedule 14D-9") -------------- containing the recommendations described in the first sentence of Section -------Closing: (ai) except (subject to i) as expressly contemplated by this Agreement or (ii) as the last sentence of Section 1.3(a) and Strategic Investor shall mail the ------ -------------- Schedule 14D-9 to the stockholders of the Company. To the extent practicableotherwise consent in writing, the Company shall cooperate conduct its business in the ordinary course of business consistent with Purchaser past practices and with Good Industry Practice; (ii) do all such acts and things necessary to ensure that all of the representations and warranties of the Company contained in mailing this Agreement or otherwise disseminating the Schedule 14D-9 with the appropriate Offer Documents any certificates or documents delivered by it pursuant to the Company's stockholders. Purchaser this Agreement remain true and its counsel shall be given a reasonable opportunity to review and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form correct in all material respects with the requirements (except those representations and warranties which are qualified by materiality or by reference to Material Adverse Effect, which shall be true and correct in all respects) and not do any such act or thing that would render any representation or warranty of the Exchange Act and, on Company contained in this Agreement or any certificates or documents delivered by it pursuant to this Agreement materially untrue or incorrect; (iii) permit the date filed with Strategic Investor and its legal counsel to participate fully in the SEC preparation of any documents relating to this Agreement and on the date first published, sent or given transactions contemplated herein; (iv) promptly send to the Company's stockholdersStrategic Investor and its legal counsel copies of all correspondence and filings to and correspondence from the Canadian Securities Commissions or the CSE relating to the transactions contemplated by this Agreement; and (v) not (A) take any action (including entering into any agreement) in respect of, shall not contain (B) participate in any untrue statement of a material fact discussions or omit negotiations regarding, (C) furnish to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company Person any information with respect to information supplied by Purchaser to, or Merger Sub for inclusion in the Schedule 14D-9. Each of the Company, Purchaser and Merger Sub agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent such information shall have become false or misleading (D) otherwise cooperate in any material respectmanner with, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the holders of shares of Common Stockor assist or participate in, in each case as and to the extent required or facilitate or encourage, an effort or attempt by applicable federal securities laws. The Company agrees to provide Purchaser and Merger Sub and their counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. (c) In connection with the Offer, the Company shall cause its transfer agent to furnish promptly to Merger Sub mailing labels containing the names and addresses of the record holders of Common Stock as of a recent date and of those persons becoming record holders subsequent to such date, and to furnish copies of other information in the Company's possession or control regarding the beneficial owners of Common Stock, and shall furnish to Merger Sub such information and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub may reasonably request in communicating the Offer to the Company's stockholders. Subject to the requirements of law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary Person to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in complete any of such labels, lists and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver to the Company all copies of such information then in their possession or under their controlEquity Financing. (d) Subject to the terms and conditions of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that would, in the absence of action by the Company or the Board, prevent Merger Sub, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be taken.

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, 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 Merger and approving and adopting this Agreement, (as defined in Section 2.1), 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 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 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 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Financial --------- Advisor") that the proposed consideration to be received by the holders of ------- shares of Common Stock pursuant to the Offer and the Merger is fair to such holders 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 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)). 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 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(daffiliates). ------------ --------------. (b) The Company shall use its reasonable best efforts to file with As soon as reasonably practicable on the SEC, concurrently with the filing date of the Offer Documents with commencement of the SECOffer, and in any event the Company shall file within five days thereafter, with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 14d-9 with respect to the Offer (such Schedule 14D-914d-9, as amended from time to timetogether with all amendments and supplements thereto, the "Schedule SCHEDULE 14D-9") -------------- containing the recommendations of the Company Board and the Special Committee described in the first sentence of Section ------- (a) (subject to the last sentence of Section SECTION 1.3(a) and shall mail disseminate the ------ -------------- Schedule 14D-9 to the stockholders of the CompanyCompany to the extent required by Rule 14D-9 promulgated under the Exchange Act and any other applicable federal or state securities laws. To the extent practicable, the Company shall cooperate with Purchaser in 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 a reasonable an opportunity to review and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange Act and, on Act. On the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, the Schedule 14D-9 shall not contain 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, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Purchaser or Merger Sub for inclusion in the Schedule 14D-914D- 9. Each of the Company, Purchaser and Merger Sub The Company agrees promptly to correct promptly, and Purchaser agrees to notify the Company promptly as to, any information provided by it for use in the Schedule 14D-9 14D-9, if and to the extent such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to all of the holders of shares of Common StockShares, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide Purchaser and Merger Sub and their its counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company agrees to use its reasonable best efforts, after consultation with Purchaser, to respond promptly to all such comments of and requests by the SEC. The Company shall provide Purchaser copies of any written responses and telephonic notification of any verbal responses by the Company and its counsel. (c) In connection with the Offer, the Company shall promptly, or shall cause its transfer agent to promptly, furnish promptly to Merger Sub Purchaser with mailing labels containing the names and addresses of the record holders of Common Stock Shares, each as of a the most recent date and of those persons becoming record holders subsequent to such date, and to furnish together with copies of all lists of stockholders and security position listings and all other information in the Company's possession or control regarding the beneficial owners of Common Stock, and shall furnish to Merger Sub Purchaser such information and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub Purchaser may reasonably request in communicating the Offer to the Company's stockholders. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminatedterminated in accordance with Section 8.1, shall promptly deliver to the Company all copies of such information then in their possession or under their controlpossession. (d) Subject Contemporaneously with the consummation of the Offer, the Company shall make a loan (the "LOAN") to the terms and conditions of this Agreement, if there shall occur a change extent not prohibited by applicable law to Purchaser in law or in a binding judicial interpretation of existing law that would, in the absence of action by the Company or the Board, prevent Merger Sub, were it an amount sufficient to allow Purchaser to acquire a specified percentage all of the shares of Common Stock then outstanding, from adopting this Agreement by its affirmative vote as pursuant to the holder of a majority of Offer. Purchaser shall pledge all shares of Common Stock held by Purchaser as security for the Loan to the extent such pledge is not prohibited by applicable law and without to the affirmative vote extent such pledge would not render the Loan violative of any other stockholderapplicable law. The Loan will bear interest at a rate equal to the Company's cost of funds which shall be payable in arrears on maturity. The Loan will have a maturity of 120 days, unless extended by the Company will use its best efforts to promptly take or cause such action to be takenand Purchaser.

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 duly adopted resolutions held, has, by vote 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 Merger and approving and adopting this Agreement, (as defined in Section 2.1), 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 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 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 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Financial --------- Advisor") that the proposed consideration to be received by the holders of ------- shares of Common Stock pursuant to the Offer and the Merger is fair to such holders 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 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 ▇▇▇▇▇▇▇▇▇, 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 in Section 8.2(b)Cherry Family Members). 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 Nothing in 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) 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 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 in Section 8.11below) shall have been proposed and if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ -------------- (b) The Company shall use its reasonable best efforts to file with the SEC, concurrently with the filing of the Offer Documents with the SEC, and in any event the Company shall file within five days thereafter, a Solicitation/Recommendation Statement on Schedule 14D-9 with respect thereto the Special Committee or the Board of Directors determines in good faith (after consultation with its legal counsel) that the failure to the Offer (take such Schedule 14D-9, as amended from time to time, the "Schedule 14D-9") -------------- containing the recommendations described in the first sentence of Section ------- (a) (subject to the last sentence of Section 1.3(a) and shall mail the ------ -------------- Schedule 14D-9 action would be inconsistent with its fiduciary duties to the stockholders of the Company. To It is agreed that the extent practicable, the Company shall cooperate with Purchaser in 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 a reasonable opportunity to review and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material respects with the requirements public announcement of the Exchange 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 contain 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, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Purchaser or Merger Sub for inclusion in the Schedule 14D-9. Each of the Company, Purchaser and Merger Sub agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the holders of shares of Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide Purchaser and Merger Sub and their counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. (c) In connection with an Alternative Proposal or that the Offer, the Company shall cause its transfer agent to furnish promptly to Merger Sub mailing labels containing the names and addresses of the record holders of Common Stock as of a recent date and of those persons becoming record holders subsequent to such date, and to furnish copies of other information in the Company's possession or control regarding the beneficial owners of Common Stock, and shall furnish to Merger Sub such information and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub may reasonably request in communicating the Offer to the Company's stockholders. Subject to the requirements of law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver to the Company all copies of such information then in their possession or under their control. (d) Subject to the terms and conditions of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that would, in the absence of action by the Company Special Committee or the BoardBoard of Directors is considering such Alternative Proposal shall not constitute such withdrawal, prevent Merger Sub, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take amendment or cause such action to be takenmodification.

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 resolutions adopted, by unanimous vote, resolutions: (i) approving this Agreement, the Offer and the Merger (as defined in Section 2.1hereinafter 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 (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 antitakeover 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 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated Broadview International LLC (the "Financial --------- AdvisorFINANCIAL ADVISOR") that to the proposed effect that, as of May 25, 1999, the consideration to be received by the holders of ------- shares of Common Stock pursuant to the Offer and the Merger is fair to such holders from a financial point of 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)). 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ --------------. (b) The Company shall use its reasonable best efforts to file On the date the Offer Documents are filed with the SEC, concurrently with the filing of the Offer Documents with the SEC, and in any event the Company shall file within five days thereafter, with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from time to time, the "Schedule SCHEDULE 14D-9") -------------- containing the recommendations described in the first sentence of Section ------- (a) (subject to the last sentence of Section SECTION 1.3(a) and shall mail the ------ -------------- Schedule 14D-9 to the stockholders of the Company. To the extent practicable, the Company shall cooperate with Purchaser in 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 a reasonable an opportunity to review and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange Act and, on Act. On the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, the Schedule 14D-9 shall not contain 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, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Parent, Purchaser or Merger Sub in writing specifically for inclusion in the Schedule 14D-9. Each The Company agrees to correct promptly, and each of the Company, Purchaser and Merger Sub agrees to notify the Company promptly to correct as to, any information provided by it in writing specifically for use inclusion in the Schedule 14D-9 if and to the extent such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to all of the holders of shares of Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide Purchaser and Merger Sub and their its counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. The Company shall use its reasonable best efforts, after consultation with Purchaser, to respond promptly to all such comments of and requests by the SEC. The Company shall provide Purchaser copies of any written responses and telephonic notification of any verbal responses by the Company and its counsel. (c) In connection with the Offer, the Company shall cause its transfer agent to furnish promptly to Merger Sub with mailing labels containing the names and addresses of the record holders of Common Stock as of a recent date and of those persons becoming record holders subsequent to such date, and to furnish together with copies of all lists of stockholders and security position listings and all other information in the Company's possession or control regarding the beneficial owners of Common Stock, and shall furnish to Merger Sub such information and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub may reasonably request in communicating the Offer to the Company's stockholders. Subject to the requirements of law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Parent, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver to the Company all copies of such information then in their possession or under their controland otherwise treat such information as subject to the Confidentiality Agreement, between Purchaser and the Company, dated May 17, 1999 (the "CONFIDENTIALITY AGREEMENT"). (d) Subject to the terms and conditions of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that which would, in the absence of action by the Company or the Board, prevent the Merger Sub, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from approving and adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be taken.

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 duly adopted resolutions (following the unanimous recommendation of the Special Committee), unanimously (i) approving this Agreement, the Offer and the Merger (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 approved this Agreement and approved the transactions contemplated hereby, including the Offer and the Merger, Merger in accordance with the DGCL; (ii) declared that the Offer and the Merger and the other transactions contemplated by this Agreement are fair to, in the best interests of, and 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 action other actions necessary to render Section 203 of the Delaware General Corporation Law, as amended (the "DGCL"), DGCL inapplicable to ---- each of the Offer, the MergerMerger 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 Tender Agreement and any of the transactions contemplated Company hereby and thereby and (iii) electing, consents to the extent permitted by lawinclusion of such recommendation, not to be subject to any "moratorium," "control share acquisition," "business combination," "fair price" as so amended or other form of corporate antitakeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or modified, in the Tender AgreementOffer Documents. The Company further represents and warrants that it has obtained all necessary consents to permit the Board inclusion in its entirety of Directors has received the written opinion fairness opinions of Bear, ▇▇▇▇▇▇▇ Lynch, Pierce, & Co. Inc. and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Financial --------- Advisor") that the proposed consideration to be received by the holders of ------- shares of Common Stock pursuant to the Offer and the Merger is fair to such holders from a financial point of view (the "Fairness Opinion"). Subject to the ---------------- last sentence of this Section 1.3(a)Advisors, the Company hereby consents to the inclusion Inc. 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)). 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ -------------- (b) The Company shall use its reasonable best efforts to file with the SEC, concurrently with the filing of the Offer Documents with the SEC, and in any event the Company shall file within five days thereafter, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) and, in each case, as necessary, the proxy statement (including the form of proxies) or information statement relating to the vote of the Company Stockholders (if any) with respect to the Offer this Agreement (such Schedule 14D-9as amended, as amended from time to timesupplemented or modified, the "Schedule 14D-9") -------------- containing the recommendations described in the first sentence of Section -------“Proxy/Information Statement”). (a) (subject to On the last sentence of Section 1.3(a) and shall mail the ------ -------------- Schedule 14D-9 to the stockholders of the Company. To the extent practicableOffer Commencement Date, the Company shall cooperate file with Purchaser in mailing the SEC and (following or otherwise disseminating contemporaneously with the initial dissemination of the Offer Documents to holders of Company Common Shares to the extent required by applicable federal securities laws) disseminate to holders of Company Common Shares the Schedule 14D-9 that, subject to Section 8.03, shall contain the Company Board Recommendation. Except in connection with the appropriate Offer Documents to the Company's stockholders. Purchaser an Adverse Recommendation Change made in accordance with Section 8.03, Parent and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule 14D-9 (including any amendment or supplement thereto) prior to the filing thereof with the SEC. The Company shall, except with respect to any disclosure made relating to an Adverse Recommendation Change in accordance with Section 8.03: (i) promptly provide Parent and its counsel with a copy of any written comments and a description of any oral comments received by the Company (or its counsel) from the SEC or its staff with respect to the Schedule 14D-9, (ii) give Parent and its counsel a reasonable opportunity to review and comment on any response formulated in connection with such comments prior to the filing thereof with the SEC, and (iii) respond promptly to any such comments. The Company agrees that the Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange Act and, on the date filed with the SEC and on the date first published, sent or given to the Company's stockholdersCompany Stockholders, shall not contain 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, in the light of the circumstances under which they were made, not misleading, except ; provided that no representation covenant is made by the Company with respect to information supplied by or on behalf of Parent or Purchaser or Merger Sub for inclusion or incorporation by reference in the Schedule 14D-9. Each To the extent required by the applicable requirements of the CompanyExchange Act and the rules and regulations thereunder: (A) each of Parent, Purchaser and Merger Sub agrees the Company shall promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent such information shall have become false or misleading in any material respect, and (B) the Company further agrees to shall take all steps necessary to cause the Schedule 14D-9 14D-9, as so corrected supplemented or amended to correct such information, to be filed with the SEC and SEC. The Buyer Parties shall promptly furnish to the Company all information concerning Parent or Purchaser that may be reasonably requested in connection with any action contemplated by this Section 2.03(a). To the extent requested by the Company, Parent shall cause the Schedule 14D-9 to be mailed or otherwise disseminated to the holders of shares of Common Stock, in each case as and Company’s Stockholders together with the Offer Documents disseminated to the extent required by applicable federal securities laws. The Company agrees to provide Purchaser and Merger Sub and their counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such commentsCompany’s Stockholders. (cb) In connection with the Offer, the Company shall cause instruct its transfer agent to furnish promptly to Merger Sub mailing labels containing Purchaser a list, as of the names and addresses most recent practicable date, of the record holders of Company Common Stock Shares and their addresses, as of a recent date well as mailing labels containing such names and of those persons becoming record holders subsequent to addresses. The Company will furnish Purchaser with such date, and to furnish copies of other additional information (including any security position listings in the Company's ’s possession or control regarding reasonably obtainable by the beneficial owners of Common Stock, and shall furnish to Merger Sub such information Company) and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub Purchaser may reasonably request in for purposes of communicating the Offer to the Company's stockholdersrecord holders and beneficial holders of Company Common Shares. Subject to All information furnished in accordance with this Section 2.03(b) shall be held in confidence by the Buyer Parties in accordance with the requirements of lawthe Confidentiality Agreement, and except for such steps as are necessary to disseminate shall be used by the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information Buyer Parties only in connection with the communication of the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver dissemination of any Proxy/Information Statement relating to the Company all copies of such information then in their possession or under their control. (d) Subject Merger to the terms and conditions holders of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that would, in the absence of action by the Company or the Board, prevent Merger Sub, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be takenShares.

Actions by the Company. (a) The Company hereby approves of and consents to the Amended Offer and represents and warrants that (i) the Board by vote of Directors all directors at a meeting duly called and held has duly adopted resolutions held, has, in light of and subject to the terms and conditions set forth herein, unanimously (ix) approving this Agreement, determined that each of the Amended Offer and the Merger (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 of the Company and recommending that the Company's stockholders accept the Offer and tender all of their shares of Common Stock to Merger Sub and approve (y) approved this Agreement and the transactions contemplated hereby, including the Amended Offer and the Merger, and recommends acceptance of the Amended Offer and approval and adoption of this Agreement and the Merger by the stockholders of the Company and (ii) taking all action necessary to render Section 203 of the Delaware General Corporation Law, as amended Merr▇▇▇ ▇▇▇c▇ & ▇o. (the "DGCLMerr▇▇▇ ▇▇▇c▇") ▇nd Lehm▇▇ ▇▇▇thers Inc. ("Lehm▇▇ ▇▇▇s."), inapplicable to ---- the OfferCompany's financial advisors, the Merger, this Agreement, the Tender Agreement and any of the transactions contemplated hereby and thereby and (iii) electing, have rendered 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 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 Board their respective opinions that the Board of Directors has received the written opinion of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Financial --------- Advisor") that the proposed consideration to be received by the holders stockholders of ------- shares of Common Stock the Company pursuant to the Amended Offer and the Merger is fair to such holders stockholders 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)). 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 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 8.11) if the Company has complied with ------------ the terms of Section 8.11 and Section 10.1(d). ------------ --------------view. (b) The Company shall use its reasonable best efforts to agrees that it shall, on the same day that Purchaser and Praxair file with the SECCommission an amendment to the Initial Offer Documents pursuant to Section 1.1 hereof, concurrently file with the filing of the Offer Documents with the SEC, and in any event the Company shall file within five days thereafter, a Commission an amendment to its Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, dated November 16, 1995 (including exhibits, as so amended, and as amended from time to time, the "Amended Schedule 14D-9"), which amendment shall include (i) -------------- containing subject to the recommendations described proviso in the first second sentence of Section -------1.2(c), the recommendation described in Section 1.2(a) hereof and (ii) the information with respect to the Company and its officers and directors, (including any directors to be elected or appointed pursuant to Section 1.3 hereof) in form and substance satisfactory to Praxair and its counsel, that is required under Section 14(f) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and Rule 14f-1 promulgated thereunder. In such connection, Praxair and Purchaser shall promptly furnish the Company with all information concerning their designees required by Section 14(f) of the Exchange Act and Rule 14f-1 thereunder. Praxair and Purchaser shall have the opportunity to review the Amended Schedule 14D-9 prior to its being filed with the Commission. (ac) (subject to the last sentence The Company agrees that copies of Section 1.3(a) and shall mail the ------ -------------- such Schedule 14D-9 (excluding exhibits), shall be enclosed with the Amended Offer Documents to be mailed by Purchaser to the stockholders of the Company. To the extent practicable, the Company shall cooperate with Purchaser in mailing or otherwise disseminating the Schedule 14D-9 connection with the appropriate Offer Documents to the Company's stockholders. Purchaser and its counsel shall be given a reasonable opportunity to review and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange 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 contain 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, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Purchaser or Merger Sub for inclusion in the Schedule 14D-9Amended Offer. Each of the Company, Purchaser on the one hand, and Merger Sub Praxair and Purchaser, on the other hand, agrees promptly to correct any information provided by it either of them for use in the Amended Schedule 14D-9 if and to the extent such information that it shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Amended Schedule 14D-9 as so corrected to be filed with the SEC Commission and to be disseminated to the holders stockholders of shares of Common Stockthe Company, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide Purchaser and Merger Sub and their counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect ; provided, however, that, subject to the Schedule 14D-9 promptly provisions of Article IX, such recommendation may be withdrawn, modified or amended to the extent that the Board deems it necessary to do so in the exercise of its fiduciary and other legal obligations after the receipt of such comments. (c) being so advised by outside counsel. In connection with the Amended Offer, the Company shall cause its transfer agent to will furnish promptly to Merger Sub Praxair and Purchaser with such information, including lists of the stockholders of the Company, mailing labels containing the names and addresses lists of the record holders of Common Stock as of a recent date and of those persons becoming record holders subsequent to such datesecurity positions, and to furnish copies of other information in the Company's possession such assistance as Praxair or control regarding the beneficial owners of Common Stock, and shall furnish to Merger Sub such information and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub Purchaser or their agents may reasonably request in communicating the Amended Offer to the Company's stockholders. Subject to the requirements of law, record and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver to the Company all copies of such information then in their possession or under their control. (d) Subject to the terms and conditions of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that would, in the absence of action by the Company or the Board, prevent Merger Sub, were it to acquire a specified percentage beneficial holders of the shares of Common Stock then outstanding, from adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be takenShares.

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 duly adopted resolutions (i) approving this Agreement, the Offer and the Merger (as defined in Section 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 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 antitakeover 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 a written opinion opinion) of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated Inc. (the "Financial --------- AdvisorFINANCIAL ADVISOR") that to the proposed effect that, as of the date of this Agreement, the consideration to be received by the holders of ------- shares of Common Stock pursuant to in the Offer and the Merger by the holders of shares of Common Stock (other than Purchaser and its affiliates) is fair to such holders fair, from a financial point of view view, to such holders (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) 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 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 8.11SECTION 8.9) if the Company has complied in accordance and full compliance with ------------ the terms of Section 8.11 SECTION 8.9 and Section 10.1(dSECTION 10.1(h). ------------ --------------. (b) The Company shall use its reasonable best efforts to file with the SEC, concurrently with the filing of the Offer Documents with the SEC, and in any event the Company shall file within five days thereafter, a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended or supplemented from time to time, the "Schedule SCHEDULE 14D-9") -------------- containing the recommendations described in the first sentence of Section ------- (aSECTION 1.3(a) (subject to the last sentence of Section SECTION 1.3(a)) and shall mail the ------ -------------- Schedule 14D-9 to the stockholders of the Company. To the extent practicable, the Company shall cooperate with Purchaser in 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 a reasonable opportunity to review and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange 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 contain 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, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Purchaser or Merger Sub for inclusion in the Schedule 14D-9. Each of the Company, Purchaser and Merger Sub agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to the holders of shares of Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide Purchaser and Merger Sub and their counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. (c) To the extent required by applicable federal securities law, each party hereto shall file all written communications, that are made public or otherwise supplied to third parties, with the SEC on or prior to the date the communication is first used. All such communications shall comply as to form and content, including bearing the appropriate legends, in all material respects with the applicable provisions of the federal securities laws. Each party agrees that, prior to any such filing or use of written communications, such party will provide the other party and their counsel the reasonable opportunity to review and comment on such communications and filings. (d) In connection with the Offer, the Company shall cause its transfer agent to furnish promptly to Merger Sub mailing labels containing the names and addresses of the record holders of Common Stock as of a recent date and of those persons becoming record holders subsequent to such date, and to furnish copies of other information in the Company's possession or control regarding the non-objecting beneficial owners of Common Stock, and shall furnish to Merger Sub such information and assistance (including updated lists of stockholders, security position listings and computer files) as Merger Sub may reasonably request in communicating the Offer to the Company's stockholders. Subject to the requirements of law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser and Merger Sub and each of their affiliates and associates shall hold in confidence the information contained in any of such labels, lists and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement is terminated, shall promptly deliver to the Company all copies of such information then in their possession or under their control. (d) Subject to the terms and conditions of this Agreement, if there shall occur a change in law or in a binding judicial interpretation of existing law that would, in the absence of action by the Company or the Board, prevent Merger Sub, were it to acquire a specified percentage of the shares of Common Stock then outstanding, from adopting this Agreement by its affirmative vote as the holder of a majority of shares of Common Stock and without the affirmative vote of any other stockholder, the Company will use its best efforts to promptly take or cause such action to be taken.