AGREEMENT AND PLAN OF MERGER

Exhibit 2.1

EXECUTION VERSION

AGREEMENT AND PLAN OF MERGER

by and among

JARDEN CORPORATION,

K2 MERGER SUB, INC.

and

K2 INC.

Dated as of April 24, 2007

TABLE OF CONTENTS

 

 

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AGREEMENT AND PLAN OF MERGER

AGREEMENT AND PLAN OF MERGER, dated as of April 24, 2007 (this “ Agreement ”), by and among Jarden Corporation, a Delaware corporation (“ Parent ”), K2 Merger Sub, Inc., a Delaware corporation (“ Merger Sub ”), and K2 Inc., a Delaware corporation (the “ Company ”). Terms used in this Agreement are defined in Section 8.1 hereof.

RECITALS:

WHEREAS, the parties intend that Merger Sub be merged with and into the Company, with the Company surviving that merger on the terms and subject to the conditions set forth herein;

WHEREAS, in the Merger (as hereinafter defined), upon the terms and subject to the conditions of this Agreement, each share of common stock, par value $1.00 per share, of the Company (the “ Common Stock ”) will be converted into the right to receive the Merger Consideration (as hereinafter defined);

WHEREAS, the Board of Directors of the Company (the “ Company Board ”) has unanimously (i) determined that it is in the best interests of the Company and its stockholders, and declared it advisable, to enter into this Agreement with Parent and Merger Sub, (ii) approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, including the Merger and (iii) resolved to recommend adoption of this Agreement by the stockholders of the Company;

WHEREAS, the Board of Directors of Parent (the “ Parent Board ”) has unanimously approved this Agreement and declared it advisable for Parent to enter into this Agreement;

WHEREAS, the Board of Directors of Merger Sub has unanimously approved this Agreement and declared it advisable for Merger Sub to enter into this Agreement;

WHEREAS, concurrently with the execution of this Agreement, as a condition and inducement to Parent’s and Merger Sub’s willingness to enter into this Agreement, Parent, Merger Sub and certain stockholders of the Company are entering into a voting agreement, of even date herewith (the “ Voting Agreement ”), pursuant to which, among other things, such stockholders have agreed, subject to the terms thereof, to vote their Shares (as hereinafter defined) in favor of adoption of this Agreement and the transactions contemplated hereby, including the Merger; and

WHEREAS, the parties desire to make certain representations, warranties, covenants and agreements in connection with the Merger and the other transactions contemplated by this Agreement and also to prescribe certain conditions to the Merger;

NOW, THEREFORE, in consideration of the foregoing and of the representations, warranties, covenants and agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

I. THE MERGER

Section 1.1 The Merger . On the terms and subject to the conditions set forth in this Agreement, and in accordance with the Delaware General Corporation Law (the “ DGCL ”), at the Effective Time, Merger Sub will merge with and into the Company (the “ Merger ”) and the separate corporate existence of Merger Sub will cease. Following the Merger, the Company will continue its corporate existence under the DGCL as the surviving corporation in the Merger (the Company, as such surviving corporation, the “ Surviving Corporation ”).

Section 1.2 Closing . Unless otherwise mutually agreed in writing by the Company and Parent, the closing of the Merger (the “ Closing ”) will take place at the offices of Willkie Farr & Gallagher LLP, 787 Seventh Avenue, New York, New York 10019, at 10:00 a.m. New York time on a date to be specified by the parties hereto, but not later than the fifth Business Day following the date on which the last of the conditions set forth in Article VI shall have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions), provided that the Closing shall not occur on or before July 1, 2007. The date on which the Closing occurs shall be referred to herein as the “ Closing Date ”.

Section 1.3 Effective Time . Subject to the provisions of this Agreement, at the Closing, the Company will cause a certificate of merger (the “ Certificate of Merger ”) to be executed, acknowledged and filed with the Secretary of State of the State of Delaware in accordance with Section 251 of the DGCL. The Merger will become effective at such time as the Certificate of Merger has been duly filed with the Secretary of State of the State of Delaware or at such later date or time as may be agreed by Parent and the Company in writing and specified in the Certificate of Merger in accordance with the DGCL (the effective time of the Merger being referred to herein as the “ Effective Time ”).

Section 1.4 Effects of the Merger . The Merger will generally have the effects set forth in this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing and subject thereto, at the Effective Time, all of the properties, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all debts, Liabilities and duties of the Company and Merger Sub shall become the debts, Liabilities and duties of the Surviving Corporation.

Section 1.5 Organizational Documents . At the Effective Time:

(a) the certificate of incorporation of the Surviving Corporation, as in effect immediately prior to the Effective Time, shall be amended as of the Effective Time so as to contain the provisions contained immediately prior to the Effective Time in the certificate of incorporation of Merger Sub until thereafter amended in accordance with the provisions thereof and as provided by applicable Law, except (i) for Article I thereof, which shall read “The name of the corporation is K2 Inc.”, (ii) that amendments may be made to the extent necessary to comply with the provisions of Section 5.9 hereof and (iii) the provision in the certificate of incorporation of Merger Sub naming its incorporator shall be omitted; and

(b) the bylaws of the Surviving Corporation, as in effect immediately prior to the Effective Time, shall be amended as of the Effective Time so as to contain the provisions contained immediately prior to the Effective Time in the bylaws of Merger Sub until thereafter amended in accordance with the provisions thereof, the provisions of the certificate of incorporation of the Surviving Corporation or by applicable Law, except that (i) references to Merger Sub’s name shall be replaced with references to “K2 Inc.” and (ii) amendments may be made to the extent necessary to comply with Section 5.9.

Section 1.6 Directors and Officers . The directors of Merger Sub and the officers of the Company (other than those officers who Parent determines shall not remain as officers of the Surviving Corporation), in each case, as of the Effective Time shall, from and after the Effective Time, be the directors and officers, respectively, of the Surviving Corporation, until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the certificate of incorporation, bylaws of the Surviving Corporation and applicable Law.

II. EFFECT OF THE MERGER ON CAPITAL STOCK AND OTHER SECURITIES

Section 2.1 Effect of the Merger on Capital Stock . At the Effective Time, as a result of the Merger and without any action on the part of Parent, Merger Sub or the Company or the holder of any capital stock of Parent, Merger Sub or the Company:

(a) Cancellation of Certain Common Stock. Each share of Common Stock that is owned by Parent, Merger Sub (including any Shares acquired by Parent or Merger Sub immediately prior to the Effective

 

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Time pursuant to any agreements with holders of Shares) or the Company (as treasury stock or otherwise) or any of their respective direct or indirect wholly owned Subsidiaries (other than Shares held on behalf of third parties) will automatically be cancelled and retired and will cease to exist, and no consideration will be delivered in exchange therefor.

(b) Conversion of Common Stock. Each share of Common Stock issued and outstanding immediately prior to the Effective Time (each, a “ Share ” and collectively, the “ Shares ”), other than (i) Shares to be cancelled and retired in accordance with Section 2.1(a) and (ii) Dissenting Shares (each, an “ Excluded Share ” and collectively, the “ Excluded Shares ”), will automatically be converted into the right to receive:

(i) A fraction of a share (rounded to four (4) decimal places) of validly issued, fully paid and nonassessable Parent Common Stock at an exchange ratio (the “ Exchange Ratio ”) as determined in accordance with Section 2.1(b)(iii) (the “ Stock Consideration ”); and

(ii) An amount in cash equal to $10.85 (such cash consideration, together with the Stock Consideration and any cash in lieu of fractional shares of Parent Common Stock to be paid pursuant to Section 2.2(g), the “ Merger Consideration ”).

(iii) The Exchange Ratio shall be equal to 0.1086 shares of Parent Common Stock for each Share; provided , however , that:

(A) If the Average Parent Stock Price is greater than or equal to $51.39 (the “ Final Upper Limit ”), then the Exchange Ratio shall be 0.0995 shares of Parent Common Stock for each Share;

(B) If the Average Parent Stock Price is (x) less than the Final Upper Limit, but (y) greater than $47.11 (the “ Initial Upper Limit ”), then the Exchange Ratio shall be equal to a fraction of a share of Parent Common Stock for each Share determined by dividing $5.12 by the Average Parent Stock Price;

(C) If the Average Parent Stock Price is (x) less than $38.55 (the “ Initial Lower Limit ”), but (y) greater than $34.26 (the “ Final Lower Limit ”), then the Exchange Ratio shall be equal to a fraction of a share of Parent Common Stock for each Share determined by dividing $4.19 by the Average Parent Stock Price; and

(D) If the Average Parent Stock Price is lower than or equal to the Final Lower Limit, then the Exchange Ratio shall be 0.1221 shares of Parent Common Stock for each Share.

(iv) For purposes of this Agreement, “ Average Parent Stock Price ” means an amount equal to the average closing price of the Parent Common Stock on the NYSE, as reported in The Wall Street Journal, Northeastern edition, for the ten (10) consecutive trading days ending on and including the second (2 ^nd ) complete trading day prior to the Closing Date (as adjusted for any reclassification, recapitalization, subdivision, split-up, combination, exchange of shares or readjustment of, or a stock dividend on, the Parent Common Stock as provided in Section 2.4).

(c) Cancellation of Shares . At the Effective Time, all Shares will no longer be outstanding and all Shares will automatically be cancelled and retired and will cease to exist, and, in the case of book-entry shares (“ Book-Entry Shares ”), the names of the former registered holders shall be removed from the registry of holders of such shares, and, subject to Section 2.3, each holder of a certificate formerly representing any such Shares (each, a “Certificate”) and each holder of a Book-Entry Share will cease to have any rights with respect thereto, except the right to receive the Merger Consideration, without interest, in accordance with Section 2.2.

(d) Conversion of Merger Sub Capital Stock . Each share of common stock, par value $0.01 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time will automatically be converted into one share of common stock, par value $0.01 of the Surviving Corporation.

Section 2.2 Surrender of Certificates and Book-Entry Shares .

(a) Paying Agent . Prior to the Effective Time, for the benefit of the holders of Shares (other than Excluded Shares) Parent will designate, or cause to be designated, a bank or trust company that is

 

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reasonably acceptable to the Company (the “ Paying Agent ”) to act as agent for the payment of the Merger Consideration in respect of Certificates upon surrender of such Certificates (or effective affidavits of loss in lieu thereof) and Book-Entry Shares in accordance with this Article II from time to time after the Effective Time. Prior to or simultaneously with the Effective Time, Parent or Merger Sub will deposit, or cause to be deposited, with the Paying Agent cash and shares of Parent Common Stock in amounts and at the times necessary for the payment of the Merger Consideration pursuant to Section 2.1(b) upon surrender of such Certificates or Book-Entry Shares (such cash being herein referred to as the “Payment Fund”). Parent and the Company will enter into a paying agent agreement at or to prior to the Effective Time on customary terms, which terms shall be in form and substance reasonably acceptable to Parent and the Company. The Payment Fund shall be invested by the Paying Agent as directed by the Surviving Corporation; provided , however , that such investments shall be in obligations of or guaranteed by the United States of America or any agency or instrumentality thereof and backed by the full faith and credit of the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Moody’s Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1,000,000,000 (based on the most recent financial statements of such bank which are then publicly available). Any net profit resulting from, or interest or income produced by, such investments shall be property of and payable to the Surviving Corporation.

(b) Payment Procedures . Promptly after the Effective Time, the Surviving Corporation will instruct the Paying Agent to mail to each holder of record of Shares (other than Excluded Shares) a letter of transmittal in customary form as reasonably agreed by Parent and the Company specifying that delivery will be effected, and risk of loss and title to Certificates and Book-Entry Shares will pass, only upon proper delivery of Certificates (or effective affidavits of loss in lieu thereof) or evidence of Book-Entry Shares, as the case may be, to the Paying Agent and instructions for use in effecting the surrender of the Certificates (or effective affidavits of loss in lieu thereof) and evidence of Book-Entry Shares in exchange for the Merger Consideration. Upon the proper surrender of a Certificate (or effective affidavit of loss in lieu thereof) or evidence of Book-Entry Share to the Paying Agent, together with a properly completed letter of transmittal, duly executed, and such other documents as may reasonably be requested by the Paying Agent, the holder of such Certificate or Book-Entry Share will be entitled to receive in exchange therefor cash and shares of Parent Common Stock in the amount (after giving effect to any required tax withholdings) that such holder has the right to receive pursuant to this Article II, and the Certificate or Book-Entry Share so surrendered will forthwith be cancelled. No interest will be paid or accrued on any amount payable upon due surrender of the Certificates or Book-Entry Shares. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, the cash and Parent Common Stock to be paid and issued upon due surrender of the Certificate or Book-Entry Share may be paid to such a transferee if the Certificate or evidence of Book-Entry Share formerly representing such Shares is presented to the Paying Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer Taxes have been paid or are not applicable.

(c) Withholding Taxes . The Surviving Corporation and the Paying Agent will be entitled to deduct and withhold from amounts otherwise payable pursuant to this Agreement to any holder of Shares, Stock Options or Other Stock Awards any amounts that are required to be deducted and withheld with respect to such payments under the Code and the rules and Treasury Regulations promulgated thereunder, or any provision of state, local or foreign Tax Law. Any amounts so deducted and withheld will be treated for all purposes of this Agreement as having been paid to the holder of the Shares, Stock Options or Other Stock Awards, as the case may be, in respect of which such deduction and withholding was made.

(d) No Further Transfers . After the Effective Time, there will be no transfers on the stock transfer books of the Company of Shares that were outstanding immediately prior to the Effective Time other than to settle transfers of Shares that occurred prior to the Effective Time. If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Paying Agent, they will be cancelled and exchanged for the Merger Consideration as provided in this Article II.

 

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(e) Termination of Payment Fund . Any portion of the Payment Fund that remains undistributed to the holders of the Certificates or Book-Entry Shares one year after the Effective Time will be delivered to the Surviving Corporation, on demand, and any holder of a Certificate or Book-Entry Share who has not theretofore complied with this Article II will thereafter look only to the Surviving Corporation for payment of his or her claims for Merger Consideration. Notwithstanding the foregoing, none of Parent, Merger Sub, the Company, the Surviving Corporation, the Paying Agent or any other Person will be liable to any former holder of Shares, Stock Options or Other Stock Awards for any amount delivered to a public official pursuant to applicable abandoned property, escheat or similar Laws.

(f) Lost, Stolen or Destroyed Certificates . In the event any Certificate has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such Person of a bond in customary amount and upon such terms as the Surviving Corporation may determine are reasonably necessary as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration pursuant to this Agreement.

(g) Fractional Shares . No fractional shares of Parent Common Stock shall be issued upon the surrender for exchange of Certificates or evidence of Book Entry Shares, and such fractional share interests will not entitle the owner thereof to vote or to have any rights of a stockholder of Parent or a holder of shares of Parent Common Stock. Notwithstanding any other provision of this Agreement, each holder of shares of Common Stock exchanged pursuant to the Merger who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock (after taking into account all Certificates and Book Entry Shares delivered by such holder) shall receive, in lieu thereof, cash (without interest) in an amount equal to the product of (i) such fractional part of a share of Parent Common Stock multiplied by (ii) the Parent Closing Price. As promptly as practicable after the determination of the amount of cash, if any, to be paid to holders of fractional interests, the Paying Agent shall so notify Parent, and Parent shall cause the Paying Agent to forward payments to such holders of fractional interests subject to and in accordance with the terms hereof.

Section 2.3 Dissenting Shares . Notwithstanding any provision of this Agreement to the contrary and to the extent available under the DGCL, any Shares outstanding immediately prior to the Effective Time that are held by a stockholder (a “ Dissenting Stockholder ”) who has neither voted in favor of the adoption of this Agreement nor consented thereto in writing and who has demanded properly in writing appraisal for such Shares and otherwise properly perfected and not withdrawn or lost his or her rights (the “ Dissenting Shares ”) in accordance with Section 262 of the DGCL will not be converted into, or represent the right to receive, the Merger Consideration. Such Dissenting Stockholders will be entitled to receive payment of the appraised value of Dissenting Shares held by them in accordance with the provisions of such Section 262 except that all Dissenting Shares held by stockholders who have failed to perfect or who effectively have withdrawn or lost their rights to appraisal of such Dissenting Shares pursuant to Section 262 will thereupon be deemed to have been converted into, and represent the right to receive, the Merger Consideration in the manner provided in Article II and will no longer be Excluded Shares. Notwithstanding anything to the contrary contained in this Section 2.3, if the Merger is rescinded or abandoned, then the right of any stockholder to be paid the fair value of such stockholder’s Dissenting Shares pursuant to the provisions of the DGCL will cease. The Company will give Parent and Merger Sub prompt notice of any written demands for appraisal, attempted withdrawals of such demands, and any other instruments served pursuant to applicable Law received by the Company relating to stockholders’ rights of appraisal. The Company will give Parent and Merger Sub the opportunity to participate in all negotiations and proceedings with respect to demands for appraisal. The Company will not, except with the prior written consent of Parent and Merger Sub, which consent shall not be unreasonably withheld, conditioned or delayed, make any payment with respect to any demands for appraisals of Dissenting Shares, offer to settle or settle any such demands or approve any withdrawal or other treatment of any such demands.

Section 2.4 Changes in Capitalization . The Exchange Ratio shall be adjusted to reflect fully: (a) the effect of any reclassification, stock split, reverse split, stock dividend (including any dividend or distribution of securities

 

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convertible into Parent Common Stock), reorganization, recapitalization or other like change with respect to Parent Common Stock occurring (or for which a record date is established) after the date hereof and prior to the Effective Time; and (b) the effect of any reclassification, stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into Common Stock), reorganization, recapitalization or other like change with respect to Common Stock occurring (or for which a record date is established) after the date hereof and prior to the Effective Time.

Section 2.5 Treatment of Stock Options and Other Equity Based Awards .

(a) The Company shall take such action as shall be required:

(i) with respect to each option (the “ Stock Options ”) to purchase Common Stock granted under any Company Benefit Plans outstanding immediately prior to the Effective Time, to cause (A) the vesting of any unvested portion of such Stock Options to be accelerated in full, and (B) the removal of any restriction placed upon such Stock Options, each effective immediately prior to the Effective Time;

(ii) to cause each Stock Option outstanding immediately prior to the Effective Time with an exercise price per share of Common Stock less than the sum of (A) the Exchange Ratio multiplied by the Parent Closing Price plus (B) $10.85 (the “ In-the-Money Stock Options ”) to be (A) exercised for shares of Common Stock prior to the Effective Time or (B) converted into Units in accordance with the first sentence of Section 2.5(b) as of or immediately prior to the Effective Time;

(iii) to cause: (A) the holder of each Stock Option with an exercise price per share of Common Stock greater than or equal to the sum of (x) the Exchange Ratio multiplied by the Parent Closing Price plus (y) $10.85 (the “ Out-of-the-Money Stock Options ”) to have a reasonable period of time to exercise any such Out-of-the-Money Stock Options prior to the Effective Time, with any such exercise conditioned upon the consummation of the Merger, and (B) any Out-of-the-Money Stock Options not so exercised to be cancelled as provided for in Section 2.5(c); and

(iv) to cause all shares of restricted Common Stock granted under the Company Benefit Plans (and any other shares of Common Stock and restricted stock units subject to vesting or future issuance under the Company Benefit Plans) (collectively, “ Other Stock Awards ”) outstanding immediately prior to the Effective Time to vest and be issued by the Company immediately prior to the Effective Time and to be treated as Shares at the Effective Time.

(b) Each holder of an In-the-Money Stock Option outstanding immediately prior to the Effective Time shall receive from Parent, in respect and in consideration of each In-the-Money Stock Option held by such holder, upon surrender of such In-the-Money Stock Option, a number of Units per share of Common Stock subject to such In-the-Money Stock Option equal to a fraction (i) the numerator of which is (A) the Exchange Ratio multiplied by the Parent Closing Price plus (B) $10.85 less (C) the exercise price per share of Common Stock subject to such In-the-Money Stock Option, and (ii) the denominator of which is (A) the Exchange Ratio multiplied by the Parent Closing Price plus (B) $10.85. Each “Unit” shall consist of (x) a fraction of a share of Parent Common Stock equal to the Exchange Ratio plus (y) $10.85 in cash.

(c) Each Out-of-the-Money Stock Option outstanding immediately prior to the Effective Time and not conditionally exercised as provided for in Section 2.5(a)(iii) shall be cancelled.

(d) Prior to the Effective Time, the Company will adopt such resolutions and take such other actions as are necessary in order to effectuate the actions contemplated by this Section 2.5, to the extent practicable, without paying any consideration or incurring any debts or obligations on behalf of the Company or the Surviving Corporation, provided that such resolutions and actions shall expressly be conditioned upon the consummation of the Merger and the other transactions contemplated hereby and shall be of no effect if this Agreement is terminated.

(e) The shares of Parent Common Stock forming a portion of the consideration to be issued upon conversion of In-the-Money Stock Options and the shares of Parent Common Stock forming a portion of the

 

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Merger Consideration issued in exchange for Other Stock Awards shall not be subject to any restrictions, terms or other conditions (in each case, other than those imposed by applicable Law). The shares of Parent Common Stock forming a portion of the consideration to be issued upon conversion of any In-the-Money Stock Options and all shares of Parent Common Stock forming a portion of the Merger Consideration issued in exchange for Other Stock Awards shall be registered by Parent under the Securities Act by means of the Registration Statement.

(f) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person who is a holder of a Stock Option a letter describing the treatment of such Stock Option pursuant to this Section 2.5 and providing instructions for use in (i) exercising such Stock Option for shares of Common Stock prior to the Effective Time or (ii) if not exercised prior to the Effective Time, receiving Parent Common Stock and cash pursuant to Section 2.5(b), if applicable, in exchange for the cancellation of such Stock Option.

Section 2.6 Treatment of Warrant . From and after the Effective Time, as provided for in the Warrant, the Warrant will represent the right to acquire and receive, upon exercise thereof in accordance with its terms, the Merger Consideration payable in respect of the number of shares of Common Stock issuable upon exercise of the Warrant immediately prior to the Effective Time. In accordance with the applicable terms of the Warrant, Parent shall take all corporate action necessary to reserve for issuance a sufficient number of shares of Parent Common Stock for delivery upon exercise of the Warrant as provided for in this Section 2.6.

Section 2.7 Treatment of Debentures . From and after the Effective Time, as provided for in the Debenture Indenture, each Debenture will represent the right to acquire and receive, upon conversion thereof in accordance with its terms, the Merger Consideration payable in respect of the number of shares of Common Stock issuable upon conversion of such Debenture immediately prior to the Effective Time. To the extent required by the provisions of the Debentures and the Debenture Indenture in connection with the transactions contemplated by this Agreement, (a) Parent and the Company shall enter into a supplemental indenture to the Debenture Indenture providing for the assumption by Parent of the obligation of the Company to issue shares of Parent Common Stock to holders of the Debentures as a portion of the Merger Consideration issuable upon conversion thereof, (b) Parent shall cause its counsel to deliver to the “Trustee” under the Debenture Indenture all legal opinions deliverable to such trustee in connection with such supplemental indenture, and (c) Parent shall take all corporate action necessary to reserve for issuance a sufficient number of shares of Parent Common Stock for delivery upon conversion of the Debentures in accordance with the terms of the Debenture Indenture.

III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except as disclosed in the Company SEC Documents filed with the SEC by the Company, in each case to the extent publicly available, prior to the date of this Agreement and except as set forth in the corresponding sections or subsections of the disclosure letter (the “ Company Disclosure Letter ”) delivered by the Company to Parent and Merger Sub concurrently with the execution of this Agreement (it being understood that any matter disclosed in any section of the Company Disclosure Letter will be deemed to be disclosed in any other section of the Company Disclosure Letter to the extent that it is readily apparent on the face of such disclosure that such disclosure is applicable to such other section), the Company hereby represents and warrants to Parent and Merger Sub as of the date hereof and as of the Closing Date as follows:

Section 3.1 Organization; Power; Qualification . The Company and each of its Subsidiaries is a corporation, limited liability company or other legal entity duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization. Each of the Company and its Subsidiaries has the requisite corporate or similar power and authority to own, lease and operate its assets and to carry on its business as now conducted. Each of the Company and its Subsidiaries is duly qualified or licensed to do business as a foreign corporation, limited liability company or other legal entity and is in good standing in each jurisdiction where the character of

 

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the assets and properties owned, leased or operated by it or the nature of its business makes such qualification or license necessary, except where the failure to be so qualified or licensed or in good standing would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Subsidiary is in violation of its organizational or governing documents.

Section 3.2 Corporate Authorization; Enforceability .

(a) The Company has all requisite corporate power and authority to enter into and to perform its obligations under this Agreement and, subject to adoption of this Agreement by the Requisite Company Vote, to consummate the transactions contemplated by this Agreement. The Company Board, at a duly held meeting, has unanimously (i) determined that this Agreement and the transactions contemplated hereby (including the Merger) are in the best interests of the Company and its stockholders, and has declared it advisable to enter into this Agreement with Parent and Merger Sub, (ii) approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, including the Merger, and (iii) resolved to recommend that the stockholders of the Company adopt this Agreement (the “ Company Board Recommendation ”) and directed that such matter be submitted for consideration of the stockholders of the Company at the Company Stockholders Meeting. The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement have been duly and validly authorized by all necessary corporate action on the part of the Company, subject to the Requisite Company Vote.

(b) This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by Parent and Merger Sub, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or law) and an implied covenant of good faith and fair dealing.

Section 3.3 Capitalization .

(a) The Company’s authorized capital stock consists solely of 110,000,000 shares of Common Stock and 12,500,000 shares of preferred stock, par value $1.00 per share (the “ Preferred Stock ”). As of the close of business on April 19, 2007 (the “ Measurement Date ”), (i) 49,442,856 shares of Common Stock were issued and outstanding and no shares of Preferred Stock were issued or outstanding, (ii) 763,140 shares of Common Stock were held in the treasury of the Company or by any of its Subsidiaries and (iii) there were available for grant pursuant to the Company Stock Award Plans, Stock Options representing an aggregate of 2,029,523 shares of Common Stock. As of the Measurement Date, (A) Stock Options to purchase 4,828,053 shares of Common Stock were outstanding, with a weighted average exercise price of $11.42 per share, (B) there were 483,785 shares of Common Stock subject to outstanding Other Stock Awards, (C) 524,329 shares of Common Stock were issuable upon exercise of the Warrant with an exercise price of $11.92 per share, (D) 5,706,458 shares of Common Stock were issuable upon conversion of the Debentures at a conversion price $13.143 per share and (E) other than such Stock Options, Other Stock Awards, Warrant and Debentures, there were no outstanding options, warrants or other rights to acquires capital stock of the Company. Except as set forth in Section 3.3(a) of the Company Disclosure Letter, since the Measurement Date, other than in connection with the issuance of Shares pursuant to the exercise of Stock Options or the Warrant or the conversion of Debentures, in each case to the extent outstanding on the Measurement Date, there has been no change in the number of outstanding shares of capital stock of the Company or the number of outstanding options, warrants or other rights to acquire capital stock of the Company. Section 3.3(a) of the Company Disclosure Letter sets forth for each Stock Option and Other Stock Award issued or outstanding pursuant to the Company Stock Award Plans, the number of Stock Options and Other Stock Awards, the number of shares of Common Stock issuable thereunder and the grant date and exercise or conversion price thereof. Except as provided above, there are no shares of capital stock or securities or other rights convertible or exchangeable into or exercisable for shares of capital stock of the Company or such

 

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securities or other rights (which term, for purposes of this Agreement, will be deemed to include “phantom” stock or other commitments that provide any right to receive value or benefits similar to such capital stock, securities or other rights). Since the Measurement Date, there have been no issuances of any securities of the Company or any of its Subsidiaries that would have been in breach of Section 5.1(c) if made after the date of this Agreement.

(b) All outstanding Shares are duly authorized, validly issued, fully paid and non-assessable and are not subject to any pre-emptive rights and, all shares of Common Stock issuable upon exercise of Stock Options or the Warrant, vesting of Other Stock Awards or conversion of the Debentures, when issued in accordance with the terms thereof, will be duly authorized, validly issued, fully paid and non-assessable and will not be subject to any pre-emptive rights.

(c) Other than the Company Stock Award Plans as disclosed in the Company SEC Documents, neither the Company nor any of its Subsidiaries has, or is party to or bound by, any stock award, stock incentive, stock purchase or similar plan or arrangement providing for the issuance of any shares of capital stock or other equity securities or any rights to acquire any capital stock or other equity securities of the Company or any of its Subsidiaries.

(d) Except for this Agreement, the Company Rights Agreement, the Warrant and any outstanding Stock Options, Other Stock Awards, and Debentures, there are no outstanding obligations of the Company or any of its Subsidiaries (i) to issue, sell, or otherwise transfer to any Person, or to repurchase, redeem or otherwise acquire from any Person, any Shares, Preferred Stock, capital stock or other equity securities of the Company or any of its Subsidiaries, or securities or other rights convertible or exchangeable into or exercisable for shares of capital stock or other equity securities of the Company or any of its Subsidiaries or such securities or other rights or (ii) to provide any funds to or make any investment in (A) any Subsidiary of the Company, (B) any Company Joint Venture or (C) any other Person.

(e) Since the Measurement Date, the Company has not declared or paid any dividend or distribution in respect of any of the Company’s securities, and, other than the issuance of Shares upon exercise of Stock Options or the Warrant or upon conversion of the Debentures, neither the Company nor any Subsidiary has issued, sold, repurchased, redeemed or otherwise acquired any of the Company’s securities, and their respective boards of directors (or similar governing bodies) have not authorized any of the foregoing.

Section 3.4 Subsidiaries and Company Joint Ventures . Exhibit 23.1 to the Company Annual Report sets forth a true, accurate and complete list of each Subsidiary of the Company. Section 3.4 of the Company Disclosure Letter sets forth a true, accurate and complete list of each Company Joint Venture. All equity interests of each of the Company’s Significant Subsidiaries, and to the Knowledge of the Company, all equity interests of each of the Company’s other Subsidiaries (to the extent that such Subsidiary is material to the Company) and the Company Joint Ventures (to the extent that such equity interests of the Company Joint Ventures are held by the Company or any of its Subsidiaries), are validly issued, fully paid and non-assessable and were not issued in violation of any preemptive or similar rights, purchase option, call or right of first refusal or similar rights. All such equity interests of the Company’s Significant Subsidiaries, and to the Knowledge of the Company, all such equity interests of the Company’s other Subsidiaries and the Company Joint Ventures, are free and clear of any Liens or any other limitations or restrictions on such equity interests (including any limitation or restriction on the right to vote, pledge or sell or otherwise dispose of such equity interests) other than Permitted Liens. The Company has furnished to Parent complete and correct copies of (a) all Company Organizational Documents of the Company and its Significant Subsidiaries and (b) to the extent in the possession of the Company or any of its Subsidiaries, all Organizational Documents of the Company’s other Subsidiaries. During the year ended December 31, 2005, the Company Joint Venture identified in Item 2 of Section 3.4 of the Company Disclosure Letter had total earnings of less than €250,000.

Section 3.5 Governmental Authorizations . The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement do not and will not require any consent, approval or other authorization of, or filing with or notification to, any

 

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international, national, federal, state, provincial or local governmental, regulatory or administrative authority, agency, commission, board, court, tribunal, arbitral body, self-regulated entity or similar body, whether domestic or foreign (each, a “ Governmental Entity ”), other than: (i) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware; (ii) applicable requirements of the Securities Exchange Act of 1934, as amended and the rules and regulations promulgated thereunder (the “ Exchange Act ”); (iii) the filing with the Securities and Exchange Commission (the “ SEC ”) of a registration statement on Form S-4, which includes the Company’s proxy statement (the “ Company Proxy Statement ”) relating to the special meeting of the stockholders of the Company to be held to consider the adoption of this Agreement (the “ Company Stockholders Meeting ”), or any amendment or supplement thereto pursuant to which shares of Parent Common Stock constituting Merger Consideration are registered under the Securities Act (the “ Registration Statement ”) and the declaration of the effectiveness of such Registration Statement by the SEC; (iv) any filings required by, and any approvals required under, the rules and regulations of the New York Stock Exchange (“ NYSE ”); (v) the pre-merger notifications and approvals required under (A) the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “ HSR Act ”), and (B)the competition or merger control Laws of any applicable jurisdiction other than the United States; and (vi) any other material consent, approval or other authorization of, or filing with or notification to, any Governmental Entity that is identified in Section 3.5(vi) of the Company Disclosure Letter.

Section 3.6 Non-Contravention . The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement, including the Merger, do not and will not: (i) contravene or conflict with, or result in any violation or breach of, any provision of the Company Organizational Documents; (ii) contravene or conflict with, or result in any violation or breach of, any Laws or Orders applicable to the Company or any of its Subsidiaries or by which any assets of the Company or any of its Subsidiaries (“ Company Assets ”) are bound (assuming that all consents, approvals, authorizations, filings and notifications described in Section 3.5 have been obtained or made); (iii) result in any violation or breach of or loss of a benefit under, or constitute a default (with or without notice or lapse of time or both) under, any Company Contract; (iv) require any consent, approval or other authorization of, or filing with or notification to, any Person under any Company Contract; (v) give rise to any termination, cancellation, amendment, modification or acceleration of any rights or obligations under any Company Contracts, including any obligation to purchase, license or sell assets or securities; or (vi) cause the creation or imposition of any Liens on any Company Assets, except, in the cases of clauses (ii) through (vi), as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

Section 3.7 Voting .

(a) The Requisite Company Vote is the only vote of the holders of any class or series of the capital stock of the Company or any of its Subsidiaries necessary (under the Company Organizational Documents, the DGCL, other applicable Laws or otherwise) to approve and adopt this Agreement and approve the Merger and the other transactions contemplated thereby.

(b) There are no voting trusts, proxies or similar agreements, arrangements or commitments to which the Company or any of its Subsidiaries is a party or of which the Company has Knowledge with respect to the voting of any shares of capital stock or other equity interests of the Company or any of its Subsidiaries, other than the Voting Agreement. Other than the Warrant and the Debentures, there are no outstanding bonds, debentures, notes or other instruments of indebtedness of the Company or any of its Subsidiaries that have the right to vote, or that are convertible or exchangeable into or exercisable for securities or other rights having the right to vote, on any matters on which stockholders of the Company may vote.

Section 3.8 Financial Reports and SEC Documents .

(a) The Company has made available to Parent each registration statement, report, proxy statement or information statement prepared by it since January 1, 2004 and filed with the SEC, each in the form (including exhibits, annexes and any amendments thereto) filed with the SEC. The Company has filed or furnished all forms, statements, reports and documents required to be filed or furnished by it with the SEC

 

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pursuant to applicable securities statutes, regulations, policies and rules since January 1, 2004 (the forms, statements, reports and documents filed or furnished with the SEC since January 1, 2004 and those filed or furnished with the SEC subsequent to the date of this Agreement, if any, including any amendments thereto, the “ Company SEC Documents ”). Each of the Company SEC Documents filed or furnished on or prior to the date of this Agreement, at the time of its filing (except as and to the extent such Company SEC Document has been modified or superseded in any subsequent Company SEC Document filed and publicly available prior to the date of this Agreement), complied, and each of the Company SEC Documents filed or furnished after the date of this Agreement and at or prior to the Effective Time will comply, in all material respects with, to the extent in effect at the time of filing, the applicable requirements of each of the Exchange Act and the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “ Securities Act ”), and complied or will comply, as applicable, in all material respects with the then-applicable accounting standards. As of their respective dates, except as and to the extent modified or superseded in any subsequent Company SEC Document filed and publicly available prior to the date of this Agreement, the Company SEC Documents did not, and any Company SEC Documents filed or furnished with the SEC subsequent to the date of this Agreement and at or prior to the Effective Time will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading. The Company SEC Documents filed or furnished on or prior to the date of this Agreement included, and if filed or furnished after the date of this Agreement and at or prior to the Effective Time, will include all certifications required to be included therein pursuant to Sections 302 and 906 of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated thereunder (“ SOX ”), and the internal control over financial reporting report and attestation of the Company’s outside auditors to the extent required by Section 404 of SOX. As of the date of this Agreement, there are no outstanding or unresolved comments in any comment letters received from the SEC staff with respect to the Company SEC Documents. To the Knowledge of the Company, none of the Company SEC Documents is the subject of an SEC review.

(b) Each of the consolidated balance sheets included in or incorporated by reference into the Company SEC Documents (including the related notes and schedules) fairly presents or, in the case of the Company SEC Documents filed or furnished after the date of this Agreement and at or prior to the Effective Time, will fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of its date, and each of the consolidated statements of income, changes in shareholders’ equity and cash flows included in or incorporated by reference into the Company SEC Documents (including any related notes and schedules) fairly presents or, in the case of the Company SEC Documents filed or furnished after the date of this Agreement, will fairly present in all material respects the net income, total shareholders’ equity and net increase (decrease) in cash and cash equivalents, as the case may be, of the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to the absence of notes and normal year-end audit adjustments that will not be material in amount or effect), in each case in accordance with U.S. generally accepted accounting principles (“ GAAP ”) consistently applied during the periods involved, except as may be noted therein.

(c) The Company has (i) implemented and maintained a system of internal accounting controls and financial reporting (as required by Rule 13a-15(a) under the Exchange Act) that are designed to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements in accordance with GAAP, and (ii) disclosed, based on its most recent evaluation under Section 404 of SOX, to the Company’s outside auditors and the audit committee of the Company Board (A) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) which are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial data and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. Since January 1, 2004, any material change in internal control over financial reporting or failure or inadequacy of disclosure controls required to be disclosed in any Company SEC Document has been so disclosed.

 

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(d) Since January 1, 2004, to the Knowledge of the Company, (i) none of the Company or any of its Subsidiaries, or any director, officer, employee, auditor, accountant or representative of the Company or any of its Subsidiaries, has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company or any of its Subsidiaries or their respective internal accounting controls relating to periods after January 1, 2004, including any material complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices (except for any of the foregoing that are not material to the Company or that have been resolved without any material impact on the Company, and except for any of the foregoing that have no reasonable basis), and (ii) no attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a material violation of securities Laws, breach of fiduciary duty or similar violation, relating to periods after January 1, 2004, by the Company or any of its officers, directors, employees or agents to the Company Board or any committee thereof or, to the Knowledge of the Company, to any director or officer of the Company.

Section 3.9 Undisclosed Liabilities . Except (i) as and to the extent disclosed or reserved against on the balance sheet of the Company dated as of December 31, 2006 (including the notes thereto) included in the Company SEC Documents or (ii) as incurred since the date thereof in the ordinary course of business consistent with past practice, neither the Company nor any of its Subsidiaries has any material liabilities required to be disclosed in the liabilities column of a balance sheet prepared in accordance with GAAP.

Section 3.10 Absence of Certain Changes . Other than in connection with or arising out of this Agreement and the transactions contemplated by this Agreement, since December 31, 2006, the Company and each of its Subsidiaries have conducted their business only in the ordinary course consistent with past practices, and:

(a) there has not been any Company Material Adverse Effect or any change, event or development that, individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect; and

(b) there has not been any action or event that, if taken on or after the date of this Agreement, would have constituted a violation or breach of the provisions of Section 5.1, except for any such violation or breach that, individually or in the aggregate, has not resulted, or would not reasonably be expected to result, in a Company Material Adverse Effect.

Section 3.11 Litigation . Except as set forth in Section 3.11 of the Company Disclosure Letter, there are no claims (including claims of injury relating to products), actions, suits, demand letters, judicial, administrative or regulatory proceedings, or hearings, notices of violation, or investigations (each, a “ Legal Action ”) pending or, to the Knowledge of the Company, threatened, against the Company or any of its Subsidiaries or any officer or director (or Persons in similar positions) of the Company or any of its Subsidiaries or pending that would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as set forth in Section 3.11 of the Company Disclosure Letter, there is no outstanding Order against the Company or any of its Subsidiaries or by which any property, asset or operation of the Company or any of its Subsidiaries is bound or affected that would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, neither the Company nor any Subsidiary of the Company, nor any officer, director (or Person in a similar position) or employee of the Company or any such Subsidiary, is under any investigation by any Governmental Entity related to the conduct of the Company’s or any such Subsidiary’s business.

Section 3.12 Contracts .

(a) Except for this Agreement and as set forth in Section 3.12(a) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to or bound by any Contract, arrangement, commitment, agreement, license, permit, bond, mortgage, indenture or understanding (whether written or

 

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oral): (i) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this Agreement that has not been filed in the Company SEC Documents; (ii) which contains any provision that would restrict or affect the ability of the Company, any of its Subsidiaries or any of their respective Affiliates to conduct the respective business of the Company or any of its Subsidiaries as currently conducted; (iii) that, other than in the ordinary course of business, grants any exclusive rights, rights of first refusal, rights of first negotiation or similar rights to any Person, in each case in a manner which is material to the business of the Company or its Subsidiaries; (iv) which was entered into after December 31, 2006 or not yet consummated for the acquisition or disposition, directly or indirectly (by merger or otherwise), of assets or capital stock or other equity interests of another Person for aggregate consideration in excess of $250,000 (other than acquisitions or dispositions of assets in the ordinary course of business); (v) which provides for the Company or any of its Subsidiaries to have any continuing “earn-out” or other deferred payment obligations, in each case, that would reasonably be expected to result in payments in excess of $250,000; or (vi) which, other than in the ordinary course of business, contains any commitment, arrangement, agreement or obligation on the part of the Company or any of its Subsidiaries to contribute capital or loan money to or make investments in any Person that is not a direct or indirect wholly owned Subsidiary of the Company. Each Contract, arrangement, commitment, agreement, instrument, understanding or obligation of the type described in the immediately preceding clauses (i) through (vi) of this Section 3.12(a), whether or not set forth in the Company Disclosure Letter or in the Company SEC Documents, is referred to herein as a “ Company Contract .” The Company has provided or made available to Parent true, correct and complete copies of all Company Contracts and other Contracts set forth in Section 3.12(a) of the Company Disclosure Letter.

(b) (i) Each Company Contract is valid and binding on the Company and any of its Subsidiaries that is a party thereto, as applicable, and in full force and effect, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or law) and an implied covenant of good faith and fair dealing, (ii) the Company and each of its Subsidiaries has performed all obligations required to be performed by it under each Company Contract, and (iii) neither the Company nor, to the Knowledge of the Company, any of its Subsidiaries has received notice of the existence of any event or condition which constitutes, or, after notice or lapse of time or both, will or would constitute, a default or breach on the part of the Company or any of its Subsidiaries under any such Company Contract, except in each case as would not, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse Effect.

Section 3.13 Benefit Plans .

(a) Section 3.13(a) of the Company Disclosure Letter contains a correct and complete list of: (i) each material “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), including multiemployer plans within the meaning of Section 3(37) of ERISA, whether oral or written, in each case under which any past or present director, executive officer or employee of the Company or any of its Subsidiaries has any present or future right to benefits, or under which the Company or any of its Subsidiaries have any liability or obligation, contingent or otherwise; and (ii) each other severance, retention or change-of-control Contract, whether formal or informal, in each case under which any past or present director or executive officer, or Person with the title of Division President or higher, of the Company has any present or future right to benefits, or under which the Company or any of its Subsidiaries have any liability or obligation, contingent or otherwise to any such director, officer or employee. No Company Benefit Plan is a “multiemployer plan” (within the meaning of Section 4001(a)(3) of ERISA) (a “ Multiemployer Plan ”) or a plan that has two or more contributing sponsors at least two of whom are not under common control (within the meaning of Section 4063 of ERISA) (a “ Multiple Employer Plan ”). No entity is a member of the Company’s “controlled group” (within the meaning of Section 414 of the Code) other than the Company and its Subsidiaries.

(b) With respect to each Company Benefit Plan, if applicable, the Company has furnished to Parent correct and complete copies of (i) all plan texts and agreements and related trust agreements (or other

 

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funding vehicles); (ii) the most recent summary plan descriptions and material employee communications (including a description of any material oral communications) concerning the extent of the benefits provided under a Company Benefit Plan; (iii) the most recent annual report (including all schedules); (iv) the most recent annual audited financial statements; (v) if the plan is intended to qualify under Section 401(a) of the Code, the most recent determination letter received from the Internal Revenue Service (the “ IRS ”); and (vi) all material communications with any Governmental Entity given or received since January 1, 2007. Except as set forth in Section 3.13(b) of the Company Disclosure Letter, there is no present intention that any Company Benefit Plan be materially amended, suspended or terminated, or otherwise modified to adversely change benefits (or the level thereof) under any Company Benefit Plan at any time within the twelve months immediately following the date of this Agreement other than as required by applicable Law or as disclosed in the Company SEC Documents.

(c) Except as set forth in Section 3.13(c) of the Company Disclosure Letter, since January 1, 2007, there has not been any (i) amendment or change in interpretation relating to any Company Benefit Plan which would materially increase the cost of such Company Benefit Plan, (ii) grant of any severance or termination pay to any present or former director or executive officer of the Company or any of its Subsidiaries who earned at termination in excess of $100,000 per annum (as measured by annual base salary and annual target bonus), (iii) loan or advance of money or other property by the Company to any of its present or former directors or executive officers, or (iv) establishment, adoption, entrance into, or termination of any Company Benefit Plan (other than as may be required by the terms of an existing Company Benefit Plan, or as may be required by applicable Law or in order to qualify under Sections 401 and 501 of the Code).

(d) With respect to each Company Benefit Plan that is subject to Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code: (i) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived; (ii) no reportable event within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred, and the consummation of the transactions contemplated by this Agreement will not result in the occurrence of any such reportable event; (iii) no liability (other than for premiums to the Pension Benefit Guaranty Corporation (the “ PBGC ”)) under Title IV of ERISA has been incurred by the Company or any of its Subsidiaries; (iv) the PBGC has not instituted proceedings to terminate any such plan or made any inquiry which would reasonably be expected to lead to termination of any such plan, and, to the Knowledge of the Company, no condition exists that presents a material risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such plan; and (v) the funded status of such Company Benefit Plan as reflected in the Company SEC Documents is accurate in all material respects and such Company SEC Documents fairly present, in all material respects, the funded status of each such plan. Neither the Company nor any of its Subsidiaries has, at any time during the last six years, contributed to or been obligated to contribute to any Multiemployer Plan or Multiple Employer Plan other than a plan listed on Section 3.13(a) of the Company Disclosure Letter. Neither the Company nor any of its Subsidiaries has incurred any liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan (as those terms are defined in Part I of Subtitle E of Title IV of ERISA) (a “ Withdrawal Liability ”) that has not been satisfied in full.

(e) Except as set forth in Section 3.13(e) of the Company Disclosure Letter, each Company Benefit Plan which is intended to qualify under Section 401(a) of the Code has been issued a favorable determination letter by the IRS with respect to such qualification and no event has occurred since the date of such qualification that would reasonably be expected to materially and adversely affect such qualification. Each Company Benefit Plan has been established and administered in all material respects accordance with its terms, and in compliance in all material respects with the applicable provisions of ERISA, the Code and other applicable Laws. No event has occurred and no condition exists that would reasonably be expected to, subject the Company by reason of its affiliation with any current or former member of its “controlled group” (within the meaning of Section 414 of the Code) to any (i) Tax, penalty, fine, (ii) Lien (other than a Permitted Lien) or (iii) other material Liability imposed by ERISA, the Code or other applicable Laws.

 

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(f) There are no Company Benefit Plans under which welfare benefits are provided to past or present employees of the Company and its Subsidiaries beyond their retirement or other termination of service, other than coverage mandated by the Consolidated Omnibus Budget Recommendation Act of 1985 (“ COBRA ”), Section 4980B of the Code, Title I of ERISA or any similar state group health plan continuation Laws, except as would not, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse Effect.

(g) Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (either alone or in combination with another event) (i) result in any payment becoming due, or increase the amount of any compensation or benefits due, to any current or former employee of the Company and its Subsidiaries or with respect to any Company Benefit Plan; (ii) increase any benefits otherwise payable under any Company Benefit Plan; (iii) result in the acceleration of the time of payment or vesting of any such compensation or benefits; (iv) result in a non-exempt “prohibited transaction” within the meaning of Section 406 of ERISA or section 4975 of the Code; (v) limit or restrict the right of the Company to merge, amend or terminate any of the Company Benefit Plans; or (vi) except as set forth in Section 3.13(g) of the Company Disclosure Letter, result in the payment of any amount that would, individually or in combination with any other such payment, reasonably be expected to constitute an “excess parachute payment,” as defined in Section 280G(b)(1) of the Code.

(h) Except as set forth in Section 3.13(h) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries or any Company Benefit Plan, nor to the Knowledge of the Company any “disqualified person” (as defined in Section 4975 of the Code) or “party in interest” (as defined in Section 3(18) of ERISA), has engaged in any non-exempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which, individually or in the aggregate, has resulted or would reasonably be expected to result in any material liability to the Company or any of its Subsidiaries. Except as set forth in Section 3.13(h) of the Company Disclosure Letter, with respect to any Company Benefit Plan, (i) no material Legal Actions (including any administrative investigation, audit or other proceeding by the Department of Labor or the Internal Revenue Service other than routine claims for benefits in the ordinary course) are pending or, to the Knowledge of the Company, threatened, and (ii) to the Knowledge of the Company, no events or conditions have occurred or exist that would reasonably be expected to give rise to any such material Legal Actions.

(i) All Company Benefit Plans subject to the laws of any jurisdiction outside of the United States (i) have been maintained in all material respects in accordance with all applicable requirements, (ii) if they are intended to qualify for special tax treatment, meet the qualification requirements for such treatment in all material respects, and (iii) if they are intended to be funded and/or book-reserved, are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions.

(j) Each “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) of the Company has been operated since January 1, 2005 in good faith compliance with Section 409A of the Code and the Treasury Regulations and other guidance issued thereunder.

Section 3.14 Labor Relations .

(a) Except as set forth in Section 3.14(a) of the Company Disclosure Letter, (i) none of the employees of the Company or its Subsidiaries is represented by a union and, to the Knowledge of the Company, no union organizing efforts have been conducted since January 1, 2006 or are now being conducted and (ii) neither the Company nor any of its Subsidiaries is a party to or presently negotiating any collective bargaining agreement or other labor Contract. There is no pending and, to the Knowledge of the Company, there is no threatened material strike, picket, work stoppage, work slowdown or other organized labor dispute affecting the Company or any of its Subsidiaries.

(b) Since January 1, 2006, the Company and each of its Subsidiaries have been in compliance in all material respects with all applicable Laws relating to the employment of labor, including all applicable Laws relating to wages, hours, collective bargaining, employment discrimination, civil rights, safety and

 

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health, workers’ compensation, pay equity, classification of employees, and the collection and payment of withholding and/or social security Taxes. No material unfair labor practice charge or complaint is pending or, to the Knowledge of the Company, threatened. Neither the Company nor any of its Subsidiaries has incurred any liability or obligation under the Worker Adjustment and Retraining Notification Act (“ WARN ”) or any similar state or local Law which remains unsatisfied, and neither the Company nor any of its Subsidiaries has planned or announced any “plant closing” or “mass layoff” as contemplated by the WARN Act affecting any site of employment or facility of the Company or any of its Subsidiaries.

Section 3.15 Taxes . Except as set forth in Section 3.15 of the Company Disclosure Letter and except for failures, violations, inaccuracies, omissions or proceedings that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect:

(a) All Tax Returns required to be filed by or with respect to the Company or any of its Subsidiaries have been properly prepared and timely filed, and all such Tax Returns (including information provided therewith or with respect thereto) are correct and complete in all respects.

(b) The Company and its Subsidiaries have fully and timely paid all Taxes (whether or not shown to be due on a Tax Return) due and payable and have made adequate provision in all respects for any Taxes that are not yet due and payable for all taxable periods, or portions thereof, ending on or before December 31, 2006 on the most recent financial statements contained in the Company SEC Documents to the extent required by GAAP.

(c) There are no outstanding agreements extending or waiving the statutory period of limitations applicable to any claim for, or the period for the collection, assessment or reassessment of, Taxes due from the Company or any of its Subsidiaries for any taxable period and, to the Knowledge of the Company, no request for any such waiver or extension is currently pending.

(d) No audit or other proceeding by any Governmental Entity is pending or, to the Knowledge of the Company, threatened with respect to any Taxes due from or with respect to the Company or any of its Subsidiaries.

(e) There are no Liens on any of the assets of the Company or its Subsidiaries that arose in connection with any failure (or alleged failure) to pay Taxes, except for Permitted Liens.

(f) Neither the Company nor any of its Subsidiaries has any liability for any Tax or any portion of a Tax (or any amount calculated with reference to any portion of a Tax) of any Person (other than the Company and its Subsidiaries), including under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law), as transferee or successor, by contract or otherwise.

(g) The Company and its Subsidiaries have withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party, except for such Taxes as to which the failure to pay or withhold is not, individually or in the aggregate, material to the Company.

(h) Neither the Company nor any of its Subsidiaries has been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the five-year period ending on the date of this Agreement.

(i) No claim has been made by any authority in any jurisdiction in which neither the Company nor any of its Subsidiaries files Tax Returns that the Company or any of its Subsidiaries may be subject to Tax by such jurisdiction.

(j) Neither the Company nor any of its Subsidiaries is a party to any Tax sharing or similar Tax agreement (other than an agreement exclusively between or among the Company and its Subsidiaries) pursuant to which it will have any obligation to make any payments after the Closing Date, other than agreements entered into in the ordinary course of business.

 

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(k) Within the past five (5) years, neither the Company nor any of its Subsidiaries has distributed stock of another Person or had its stock distributed by another Person in a transaction that was intended to be governed in whole or in part by Section 355 or 361 of the Code.

(l) Neither the Company nor any of its Subsidiaries has engaged in any transaction that has given rise to a disclosure obligation as a “reportable transaction” under Section 6011 of the Code and the regulations promulgated thereunder.

(m) Neither the Company nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in method of accounting for a taxable period ending on or prior to the Closing Date, (ii) “closing agreement” as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign income Tax Law) executed on or prior to the Closing Date, (iii) installment sale or open transaction disposition made on or prior to the Closing Date or (iv) prepaid amount received on or prior to the Closing Date.

Section 3.16 Environmental Matters . Except as set forth in Section 3.16 of the Company Disclosure Letter and except for failures, violations, inaccuracies, omissions or proceedings that would not, individually or in the aggregate, have a Company Material Adverse Effect: (i) the Company and each of its Subsidiaries is and has been in compliance, in all respects, with all applicable Environmental Laws and has obtained and is in compliance with all Environmental Permits necessary for their operations as currently conducted; (ii) there have been no Releases of any Hazardous Materials that could be reasonably likely to form the basis of any Environmental Claim against the Company or any of its Subsidiaries; (iii) there are no Environmental Claims pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries; (iv) neither the Company, nor any of its Subsidiaries is subject or party to any agreement, order, judgment or decree by or with any Governmental Entity or third party pursuant to which the Company or any of its Subsidiaries has assumed, incurred or suffered any liability or obligation under any Environmental Law; (v) neither the Company nor any of it Subsidiaries has manufactured for sale, marketed or distributed any product incorporating asbestos; (vi) neither the Company nor any of it Subsidiaries has sent or arranged for the transport of any Hazardous Material to any site that could be reasonably likely to form the basis of any Environmental Claim against the Company or any of its Subsidiaries; (vii) the transactions contemplated by this Agreement will not require the Company or any of its Subsidiaries to transfer or amend any Environmental Permit or require any submissions to a Governmental Entity; and (viii) there is no currently existing fact, event, condition, circumstance, activity, practice, incident, action or plan which would, in the ordinary course of business or properties reasonably be expected to cause either the Company or any of its Subsidiaries to incur capital expenditures to maintain compliance with Environmental Laws for the next five years. To the Knowledge of the Company, complete and accurate copies of all environmental site assessment reports (including any Phase I or Phase II report), investigation, remediation or compliance studies, audits, assessments or similar documents which are in the possession, custody or control of either the Company or any of its Subsidiaries and relate to the environmental conditions at any property currently or formerly owned or leased by either the Company or any of its Subsidiaries have been provided to Parent.

Section 3.17 Title to Real Properties . Except as set forth in Section 3.17 of the Company Disclosure Letter, the Company Annual Report sets forth a true, accurate and complete list of all real property that is owned, and all material real property that is leased, by the Company or any of its Subsidiaries. The Company and each of its Subsidiaries has good and valid title in fee simple to all its owned real property as reflected in the most recent balance sheet included in the audited financial statements included in the Company SEC Documents (except for properties and assets that have been disposed of in the ordinary course of business since the date of such balance sheet) free and clear of all Liens, except for Permitted Liens. The Company and each of its Subsidiaries have good and valid leasehold interests in all real property leased by them. All leases under which the Company or any of its Subsidiaries leases any real or personal property are, in all material respects, in good standing, valid and effective against the Company or such Subsidiaries and the counterparties thereto in accordance with their respective terms, and there is not, under any of such leases, any existing default by the Company or any such

 

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Subsidiaries or counterparties, or any event which, with notice or lapse of time or both, would become such a default, other than any defaults under such leases which, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect.

Section 3.18 Permits; Compliance with Laws .

(a) Each of the Company and its Subsidiaries is in possession of all authorizations, licenses, consents, certificates, registrations, approvals and other permits of any Governmental Entity (“ Permits ”) necessary for it to own, lease and operate its properties and assets or to carry on its business as it is now being conducted (collectively, the “ Company Permits ”), and all such Company Permits are in full force and effect, except where the failure to hold such Company Permits, or the failure to be in full force and effect, would not be reasonably expected to result in a Company Material Adverse Effect. No suspension or cancellation of any of the Company Permits is pending or, to the Knowledge of the Company, threatened, except where such suspension or cancellation would not be reasonably expected to result in a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries is in violation or breach of, or default under, any Company Permit, except where such violation, breach or default would not be reasonably expected to result in a Company Material Adverse Effect. No event or condition has occurred or exists which would result in a violation of, breach, default or loss of a benefit under, or acceleration of an obligation of the Company or any of its Subsidiaries under any Company Permit (in each case, with or without notice or lapse of time or both), except for violations, breaches, defaults, losses or accelerations that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. No such suspension, cancellation, violation, breach, default, loss of a benefit, or acceleration of an obligation will result from the transactions contemplated by this Agreement, except for violations, breaches, defaults, losses or accelerations that would not would not reasonably be expected to result in a Company Material Adverse Effect.

(b) Neither the Company nor any of its Subsidiaries is, and since January 1, 2005, neither the Company nor any of its Subsidiaries has been in conflict with, or in default or violation of, (i) any Laws applicable to the Company or such Subsidiary or by which any of the Company Assets is bound or (ii) any Company Permit, except for any such conflict, violation or default that, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect.

Section 3.19 Intellectual Property .

(a) Section 3.19(a) of the Company Disclosure Letter sets forth a true, accurate and complete list of trademarks of the Company and its Subsidiaries that, individually or in the aggregate, are material to the respective businesses or operations of the Company or its Subsidiaries (collectively, the “ Material Marks ”).

(b) Except as set forth in Section 3.19(b) of the Company Disclosure Letter, with respect to the Material Marks: (i) the Company and/or one or more of its Subsidiaries owns all right, title and interest (subject to Permitted Liens) in and to, or has valid licenses to use, all such Material Marks in the manner in which the Company and one or more Subsidiaries, as the case may be, currently use the Material Marks in their primary business in the United States, the European Union and Japan; (ii) the use of such Material Marks by the Company and its Subsidiaries, as the case may be, in the manner in which the Company and one or more Subsidiaries, as the case may be, currently use the Material Marks in their primary business in the United States, the European Union and Japan does not infringe, misappropriate or otherwise violate any third-party Intellectual Property right; (iii) except for allegations that have since been resolved, since January 1, 2004, neither the Company nor any of its Subsidiaries has received any written notice from any Person alleging that the use of any of the Material Marks in the manner in which the Company and one or more Subsidiaries, as the case may be, currently use the Material Marks in their primary business in the United States, the European Union and Japan or the operation of the Company’s or its Subsidiaries’ businesses infringes, dilutes, or otherwise violates the Intellectual Property of such Person; (iv) no material written claims, charges or demands are currently pending or, to the Knowledge of the Company, threatened by any Person with respect to any such Material Marks; and (v) there are no pending material Legal Actions

 

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by the Company or any of its Subsidiaries alleging or asserting that any third party has violated, misappropriated or infringed any Material Marks nor, to the Knowledge of the Company, is there any basis for any such claim

(c) With respect to the Company Intellectual Property other than the Material Marks, except as has not had and would not reasonably be expected to have a Company Material Adverse Effect: (i) the Company and/or one or more of its Subsidiaries owns all right, title and interest (subject to Permitted Liens) in and to, or has valid licenses to use, all such Company Intellectual Property in the manner in which the Company and one or more Subsidiaries, as the case may be, currently use the Company Intellectual Property in the United States, the European Union and Japan; (ii) to the Knowledge of the Company, the use of such Company Intellectual Property by the Company and its Subsidiaries, as the case may be, in the manner in which the Company and one or more Subsidiaries, as the case may be, currently use the Company Intellectual Property in the United States, the European Union and Japan does not infringe, misappropriate or otherwise violate any third-party Intellectual Property right; (iii) except for allegations that have since been resolved, neither the Company nor any of its Subsidiaries has received any written notice from any Person alleging that the use of any of such Company Intellectual Property in the manner in which the Company and one or more Subsidiaries, as the case may be, currently use the Company Intellectual Property in the United States, the European Union and Japan or the operation of the Company’s or its Subsidiaries’ businesses infringes, dilutes (in the case of trademarks), or otherwise violates the Intellectual Property of such Person; (iv) no written claims, charges or demands are currently pending or, to the Knowledge of the Company, threatened by any Person with respect to any such Company Intellectual Property; and (v) there are no pending Legal Actions by the Company or any of its Subsidiaries alleging or asserting that any third party has violated, misappropriated or infringed any such Company Intellectual Property nor, to the Knowledge of the Company, is there any basis for any such claim.

(d) The Company has taken all actions that it has reasonably determined are appropriate to protect the Company Intellectual Property and to maintain the confidentiality of its material trade secrets.

Section 3.20 Indebtedness . Section 3.20 of the Company Disclosure Letter sets forth a list of the Indebtedness of the Company and its Subsidiaries outstanding as of March 31, 2007, as well as the principal amount, the maturity date, the collateral or security thereunder and the administrative agent or Person serving in a similar capacity with respect thereto, and, since such date through the date hereof, neither the Company nor any of its Subsidiaries has incurred a material amount of additional Indebtedness. The Company has made available to Parent true, accurate and complete copies of each Contract (as amended and in effect) with respect to the Indebtedness listed in Section 3.20 of the Company Disclosure Letter and, neither the Company nor any of its Subsidiaries is in breach or default with respect to any such Contract and, to the Knowledge of the Company, no other party thereto is in breach or default with respect to any such Contract (in each case except for such breaches or defaults that would not reasonably be expected to be material to the Company or any of its Subsidiaries), and no event has occurred which, with due notice or lapse of time or both, would constitute any such breach or default (except for such breaches or defaults that would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole). Neither the Company nor any of its Subsidiaries has received any written notice of any material breach or default with respect to any such Contract which remains uncured. As of immediately prior to the Closing, neither the Company nor any of its Subsidiaries will have, or will otherwise be liable in any respect for, any Indebtedness other than (a) the Indebtedness set forth in Section 3.20 of the Company Disclosure Letter, (b) Indebtedness incurred after the date hereof in accordance with Section 5.1 and (c) in the case of the Company, Indebtedness to one or more direct or indirect wholly owned Subsidiaries of the Company and, in the case of any Subsidiary of the Company, Indebtedness to the Company or one or more direct or indirect wholly owned Subsidiaries of the Company. Without limiting, and in furtherance of, the foregoing, the aggregate amount of all outstanding indebtedness of the Company and it Subsidiaries to any other Person (other than any direct or indirect wholly owned Subsidiary of the Company) for borrowed money as of June 30, 2007, other than in respect of the Debentures, will not exceed $335,000,000.

Section 3.21 Insurance . The Company has provided or made available to Parent true, correct and complete copies of all material insurance policies owned or held by the Company and each of its Subsidiaries. With respect

 

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to each such insurance policy, except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and any of its Subsidiaries: (i) the policy is valid, binding and enforceable in accordance with its terms and, except for policies that have expired under their terms in the ordinary course, is in full force and effect; (ii) neither the Company nor any of its Subsidiaries is in breach or default (including any such breach or default with respect to the payment of premiums or the giving of notice), and, to the Knowledge of the Company, no event has occurred which, with notice or the lapse of time, would constitute such a breach or default, or permit termination or modification, under the policy; (iii) to the Knowledge of the Company, no insurer on the policy has been declared insolvent or placed in receivership, conservatorship or liquidation; and (iv) to the Knowledge of the Company, no notice of cancellation or termination has been received other than in connection with ordinary renewals.

Section 3.22 Suppliers and Customers . Section 3.22 of the Company Disclosure Letter sets forth the name of each of the Company’s and its Subsidiaries (a) 15 largest customers (in terms of consolidated sales) for the fiscal year ended December 31, 2006 and (b) 15 largest suppliers (by dollar volume of purchases) for the fiscal year ended December 31, 2006. As of the date hereof, no such customer or supplier has canceled or otherwise terminated its relationship with the Company or any of its Subsidiaries, and no such customer or supplier has given written, or to the Knowledge of the Company, oral notice to the Company or any of its Subsidiaries of its intent either to terminate its relationship with the Company or any of its Subsidiaries or to cancel or amend any material agreement or arrangement, or to significantly decrease the extent of its business dealings, with the Company or any of its Subsidiaries except for such of the foregoing arising after the date hereof as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

Section 3.23 Relations with Governments . To the Knowledge of the Company, neither the Company nor any of its Subsidiaries, nor any director, officer, agent or employee of the Company or any of its Subsidiaries, has (a) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to political activity, (b) made any payment or offered anything of value to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns, in each case, in violation of applicable Law or (c) violated in any material respect any applicable export control, money laundering or anti-terrorism Law or regulation, nor have any of them otherwise taken any action which would cause the Company or any of its Subsidiaries to be in material violation of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable Law of similar effect.

Section 3.24 Takeover Statutes; Company Rights Agreement; Charter Restrictions .

(a) The Company Board has taken all necessary action such that the restrictions on takeovers, business combinations, control share acquisitions, fair prices or similar provisions contained in the DGCL, including Section 203 of the DGCL, do not apply to this Agreement, the Voting Agreement, the Merger or the other transactions contemplated by this Agreement or the Voting Agreement. No other takeover, business combination, control share acquisition, fair price or similar statutes apply or purport to apply to this Agreement, the Voting Agreement, the Merger or any of the other transactions contemplated by this Agreement or the Voting Agreement.

(b) The Company Board and the Company have taken all actions necessary: (i) to render the Rights Agreement dated as of July 1, 1999 (the “ Company Rights Agreement ”), by and between the Company and Harris Trust Company of California, including, without limitation, Section 13 of the Company Rights Agreement, inapplicable to this Agreement, the Voting Agreement, the Merger or any of the other transactions contemplated by this Agreement or the Voting Agreement, as well as to any compliance with the terms of this Agreement and the Voting Agreement; and (ii) without limiting, and in furtherance of, the foregoing, to cause (A) the execution, delivery and performance of, and compliance with, this Agreement and the Voting Agreement and the consummation of the Merger and any of the other transactions contemplated by this Agreement or the Voting Agreement to not be or otherwise be deemed to be, and to not constitute, a “Section 13(a) Event” (as defined in the Company Rights Agreement), (B) a “15% Ownership Date” (as defined in the Company Rights Agreement) to not occur, and the Rights (as defined in

 

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the Company Rights Agreement) issued under the Company Rights Agreement to not become exercisable, as a result of or in connection with the execution, delivery or performance of, or compliance with, this Agreement or the Voting Agreement or the consummation of the Merger or any of the other transactions contemplated by this Agreement or the Voting Agreement, and (C) the “Rights Expiration Date” (as defined in the Company Rights Agreement) to occur immediately prior to the Effective Time; provided , however , that all such actions shall be automatically revoked in the event of any termination of this Agreement in accordance with its terms, with the result that the Company Rights Agreement shall remain in full force and effect after any such termination of this Agreement (and, in accordance with the terms thereof, shall be applicable to Parent, Merger Sub and any of their Affiliates) with the same effect as though none of the foregoing actions had been taken. Other than the Rights Agreement, neither the Company nor any of its Subsidiaries is party to any rights agreement, stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or other Contract (in each case other than the Company Stock Award Plans existing on the date hereof and Stock Options issued thereunder, the Warrant and the Debentures) under which the Company or any of its Subsidiaries is or may become obligated to sell or otherwise issue, register, redeem, repurchase, vote, transfer or dispose of any shares of its capital stock or any other securities.

(c) The Company Board has unanimously approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, including, without limitation, the Merger, which unanimous approval included the affirmative vote of at least two-thirds of the “Disinterested Directors” (as defined in the Company Certificate) of the Company, as such term may apply to this Agreement and the transactions contemplated hereby (including, without limitation, the Merger), in favor of such approval.

Section 3.25 Interested Party Transactions . There are no Contracts or other written arrangements, if applicable, under which the Company is required to provide disclosure required to be reported by the Company pursuant to Item 404 of Regulation S-K promulgated by the SEC (an “ Affiliate Transaction ”).

Section 3.26 Information Supplied .

(a) None of the information included or incorporated by reference in the Company Proxy Statement contained in the Registration Statement, or any other document filed with the SEC or publicly disseminated in connection with the Merger and the other transactions contemplated by this Agreement (the “ Other Filings ”), taken as a whole with all other such information will, in the case of the Company Proxy Statement, at the date it is first mailed to the Company’s stockholders or at the time of the Company Stockholders Meeting or at the time of any amendment or supplement thereof, or, in the case of any Other Filing, at the date it is first mailed to the Company’s stockholders or at the date it is first filed with the SEC, 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 light of the circumstances under which they are made, not misleading, except that no representation is made by the Company with respect to statements made or incorporated by reference therein based on information supplied by Parent or Merger Sub in connection with the preparation of the Registration Statement, the Company Proxy Statement or the Other Filings for inclusion or incorporation by reference therein. The Company Proxy Statement and the Other Filings that are filed by the Company will comply as to form in all material respects with the requirements of the Exchange Act.

(b) Without limiting the foregoing, the information supplied or to be supplied by the Company for inclusion or incorporation by reference in the Registration Statement will not, at the time that the Registration Statement is declared effective by the SEC, 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 light of the circumstances under which they are made, not misleading.

Section 3.27 Opinion of Financial Advisor . Blackstone Advisory Services L.P. (“ Blackstone ”) has delivered to the Company Board its written opinion to the effect that, as of the date of this Agreement, the Merger Consideration is fair to the stockholders of the Company from a financial point of view. The Company has

 

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furnished to Parent a correct and complete copy of such written opinion. The Company has obtained the authorization of Blackstone to include a copy of such written opinion in the Company Proxy Statement and the Registration Statement.

Section 3.28 Brokers and Finders . Other than Blackstone and JP Morgan Securities Inc. (together with Blackstone, the “ Company Financial Advisors ”), no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the Merger or the other transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Company or any of its Subsidiaries. The Company has furnished to Parent a correct and complete copy of all agreements between the Company and each Company Financial Advisor under which a Company Financial Advisor would be entitled to an