AGREEMENT AND PLAN OF MERGER

Agreement and Plan of Merger

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SEALY CORP | POSTUREPEDIC ACQUISITION CORP.

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Title: AGREEMENT AND PLAN OF MERGER
Governing Law: New York Date: 4/15/2004
Law Firm: Simpson Thacher & Bartlett LLP,Kirkland & Ellis LLP

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

DATED AS OF

MARCH 3, 2004

BY AND BETWEEN

SEALY CORPORATION

AND

POSTUREPEDIC ACQUISITION CORP.

TABLE OF CONTENTS

ARTICLE I —CERTAIN DEFINITIONS
	Section 1.1	Certain Definitions
	Section 1.2	Interpretation

ARTICLE II —THE MERGER
	Section 2.1	The Merger
	Section 2.2	Outstanding Shares
	Section 2.3	Certificate of Merger
	Section 2.4	Certificate of Incorporation
	Section 2.5	By-laws
	Section 2.6	Officers
	Section 2.7	Directors
	Section 2.8	Conversion of Shares
	Section 2.9	Exchange of Certificates
	Section 2.10	Dissenting Shares
	Section 2.11	Options
	Section 2.12	Closing

ARTICLE III —REPRESENTATIONS AND WARRANTIES OF THE COMPANY
	Section 3.1	Organization and Qualification; Subsidiaries
	Section 3.2	Authorization
	Section 3.3	Non-contravention
	Section 3.4	Consents
	Section 3.5	Capitalization; Subsidiaries
	Section 3.6	SEC Documents; Financial Statements
	Section 3.7	Absence of Certain Developments
	Section 3.8	Governmental Authorizations; Licenses; Etc
	Section 3.9	Litigation
	Section 3.10	Taxes
	Section 3.11	Environmental Matters
	Section 3.12	Employee Matters
	Section 3.13	Employee Benefit Plans
	Section 3.14	Proprietary Rights
	Section 3.15	Contracts
	Section 3.16	Insurance
	Section 3.17	Real Property
	Section 3.18	Assets Other than Real Properties
	Section 3.19	Entire Business
	Section 3.20	Accuracy of Representations
	Section 3.21	Transaction With Affiliates
	Section 3.22	Internal Accounting Controls
	Section 3.23	Brokers
	Section 3.24	Required Vote
	Section 3.25	Company Board

	Section 3.26	No Other Representations and Warranties

ARTICLE IV —REPRESENTATIONS AND WARRANTIES OF NEWCO
	Section 4.1	Organization
	Section 4.2	Authorization
	Section 4.3	Non-contravention
	Section 4.4	No Consents
	Section 4.5	Brokers
	Section 4.6	Newco Board
	Section 4.7	Stockholder Approval
	Section 4.8	Financial Ability
	Section 4.9	Accuracy of Representations
	Section 4.10	Acknowledgement by Newco
	Section 4.11	No Other Representations and Warranties

ARTICLE V —COVENANTS AND AGREEMENTS
	Section 5.1	Stockholder Matters
	Section 5.2	Access and Information
	Section 5.3	Conduct of Business by the Company
	Section 5.4	Closing Documents
	Section 5.5	Best Efforts; Further Assurances
	Section 5.6	Public Announcements
	Section 5.7	Third Party Proposals
	Section 5.8	State Takeover Laws
	Section 5.9	Employee Matters
	Section 5.10	Indemnification of Directors and Officers
	Section 5.11	Termination of Affiliate Arrangements
	Section 5.12	Financing
	Section 5.13	Collection of MFI Notes
	Section 5.14	February 29 Financial Statements
	Section 5.15	Transaction Fee and Monitoring Fee

ARTICLE VI —CONDITIONS TO CLOSING
	Section 6.1	Mutual Conditions
	Section 6.2	Conditions to the Obligations of Newco
	Section 6.3	Conditions to the Obligations of the Company

ARTICLE VII —TERMINATION
	Section 7.1	Termination
	Section 7.2	Effect of Termination

ARTICLE VIII —MISCELLANEOUS
	Section 8.1	Amendments
	Section 8.2	Notices
	Section 8.3	Survival

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Exhibits & Schedules

Exhibit A		*Commitment Letters*
Exhibit B-1 and B-2		*Stockholder Approvals*
Exhibit C		*Terms of Stockholders Agreement*

Schedule A		*Merger Consideration*
Schedule B		*List of Option Agreements*
Schedule 2.8		*Shares*
Schedule 3.1		*Jurisdictions of Incorporation with Subsidiaries*
Schedule 3.3		*Noncontravention*
Schedule 3.4		*Consents*
Schedule 3.5(a)		*Capitalization*
Schedule 3.5(b)		*Subsidiaries*
Schedule 3.6(d)		*Undisclosed Liabilities*
Schedule 3.7		*Absence of Certain Developments*
Schedule 3.8		*Governmental Authorizations*
Schedule 3.9		*Litigation*
Schedule 3.10		*Tax Matters*
Schedule 3.11		*Environmental Matters*
Schedule 3.12		*Employee Matters*
Schedule 3.13(a)		*Employee Benefit Plans*
Schedule 3.13(d)-1		*Terminated Employee Benefit Plans*
Schedule 3.13(d)-2		*Multiemployer Benefit Plan Withdrawal Liability*
Schedule 3.13(i)		*Payments under Employee Benefit Plan*
Schedule 3.14(a)		*Proprietary Rights*
Schedule 3.14(b)		*Proprietary Rights Exceptions*
Schedule 3.15		*Contracts*
Schedule 3.16		*Insurance*
Schedule 3.17		*Real Property*
Schedule 3.18		*Assets Other than Real Properties*
Schedule 3.19		*Entire Business*
Schedule 3.21		*Transactions with Affiliates*
Schedule 4.4		*Newco Consents*
Schedule 5.3		*Exceptions to Conduct of Business by the Company*
Schedule 5.3(a)		*Capital Expenditure Budget*
Schedule 5.3(t)		*Payments of Principal and Interest*
Schedule 5.11		*Affiliate Arrangements*
Schedule 5.14		*Projected 2004 Balance Sheet*
Schedule 8.5		*Estimated Fees and Expenses*

AGREEMENT AND PLAN OF MERGER

AGREEMENT AND PLAN OF MERGER, dated March 3, 2004, by and between Posturepedic Acquisition Corp., a Delaware corporation (“ Newco ”) and Sealy Corporation, a Delaware corporation (the “ Company ”).

WHEREAS, the Boards of Directors of each of Newco and the Company have approved this Agreement and the merger of Newco with and into the Company with the Company continuing as the surviving corporation (the “ Merger ”), upon the terms of and subject to the conditions set forth in this Agreement;

WHEREAS, the Board of Directors of the Company has deemed the Merger advisable and in the best interest of the stockholders of the Company;

WHEREAS, pursuant to the Merger, shares of Common Stock (as defined below) will be converted in the manner set forth herein; and

WHEREAS, it is intended that the Merger be recorded as a recapitalization for financial reporting purposes;

NOW, THEREFORE, in consideration of the mutual covenants contained herein, and intending to be legally bound, the parties hereto agree as follows:

ARTICLE I—CERTAIN DEFINITIONS

Section 1.1 Certain Definitions. As used in this Agreement, the following terms have the respective meanings set forth below.

“ Acquisition Proposal ” has the meaning set forth in Section 5.7 .

“ Affiliate ” means, with respect to any Person, any other Person who directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlled” and “controlling” have meanings correlative thereto.

“ Agreement ” means this Agreement and Plan of Merger.

“ Balance Sheet ” means the consolidated balance sheet of the Company and its Subsidiaries dated November 30, 2003, as included in the Public Financial Statements.

“ Books and Records ” has the meaning set forth in Section 5.13 .

“ Business Day ” means a day, other than a Saturday or Sunday, on which commercial banks in New York City are open for the general transaction of business.

“ Cash Difference Amount ” means $44,200,000 divided by the total number of Schedule 2.8 Shares.

“ Certificate of Incorporation ” means the Company’s Restated Certificate of Incorporation as in effect from time to time.

“ Certificate of Merger ” has the meaning set forth in Section 2.3 .

“ Certificates ” means the outstanding certificates which immediately prior to the Effective Time represent shares of Common Stock.

“ Class A Common ” means the Class A Common Stock, par value $0.01 per share, of the Company.

“ Class B Common ” means the Class B Common Stock, par value $0.01 per share, of the Company.

“ Class L Common ” means the Class L Common Stock, par value $0.01 per share, of the Company.

“ Class M Common ” means the Class M Common Stock, par value $0.01 per share, of the Company.

“ Class A Options ” means the options to purchase up to 3,410,300 shares of the Class A Common outstanding as of the date hereof to certain current and former employees of the Company pursuant to the Option Plan or otherwise and pursuant to certain Option Agreements.

“ Class L Options ” means the options to purchase up to 16,730 shares of Class L Common outstanding as of the date hereof to certain current and former employees of the Company and certain Option Agreements

“ Closing ” has the meaning set forth in Section 2.12 .

“ Closing Date ” has the meaning set forth in Section 2.12 .

“ COBRA ” means Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code and any similar state law.

“ Code ” means the Internal Revenue Code of 1986, as amended.

“ Common Stock ” means collectively, the Class A Common, the Class B Common, the Class L Common and the Class M Common.

“ Company Group ” has the meaning set forth in Section 5.7 .

“ Company Proprietary Rights ” has the meaning set forth in Section 3.14 .

“ Company Stockholder Vote ” has the meaning set forth in Section 3.24 .

“ Confidentiality Agreement ” has the meaning set forth in Section 5.2(b) .

“ Contracts ” has the meaning set forth in Section 3.15 .

“ Consenting Stockholders ” means Bain Capital Fund V, L.P., Bain Capital Fund V-B, L.P., BCIP Trust Associates, BCIP Associates, Harvard Private Capital Holdings, Inc., Sealy Investors 1 LLC, Sealy Investors 2 LLC and Sealy Investors 3 LLC.

“ Dissenting Shares ” has the meaning set forth in Section 2.10 .

“ DGCL ” has the meaning set forth in Section 2.1 .

“ Effective Time ” has the meaning set forth in Section 2.3 .

“ Employee Benefit Plan ” means each “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) including, without limitation, Multiemployer Plans, and all stock purchase, stock option, employment, consulting, severance, change-in-control, fringe benefit (other than those which are not material), bonus (other than any payroll practice, spot reward or other de minimis bonus program), incentive, deferred compensation, employee loan plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA, and each other employee benefit plan, program or arrangement, none of which is subject to Section 3(3) of ERISA, maintained, sponsored or contributed to by the Company or any of its Subsidiaries.

“ Environmental Laws ” shall mean all laws (including common law), statutes, regulations, codes, rules, decrees, orders, ordinances of any Government Authority, and similar provisions having the force or effect of law, concerning pollution or protection of the environment or human health and safety as affected by the environment or by harmful or deleterious materials.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

“ ERISA Affiliate ” means any entity that is considered a single employer with the Company under Section 414 of the Code.

“ Exchange Act ” means the Securities Act of 1934, as amended (together with the rules and regulations promulgated thereunder).

“ Exchange Agent ” has the meaning set forth in Section 2.9.

“ Exchange Fund ” has the meaning set forth in Section 2.9.

“ February 29 Financial Statements ” has the meaning set forth in Section 3.6(c) .

“ Foreign Benefit Plans ” means each plan which, if maintained in the United States, would be defined as “an employee benefit plan” (other than any Foreign Governmental Plan) and which is maintained outside the jurisdiction of the United States or that covers any officer or employee of the Company or any of its Subsidiaries residing or working outside of the United States.

“ Foreign Governmental Plan ” means each plan which is legally mandated or required to be maintained under applicable local law and which is maintained outside the jurisdiction of the United States or that covers any officer or employee of the Company or any of its Subsidiaries residing or working outside the United States.

“ Fraction ” has the meaning set forth in Section 2.8.

“ GAAP ” means generally accepted accounting principles as in effect in the United States on the date of this Agreement, applied on a consistent basis.

“ Governmental Authority ” means any national, federal, state, provincial, county, municipal or local government, foreign or domestic, or the government of any political subdivision of any of the foregoing, or any entity, authority, agency, ministry, court, tribunal, or arbitral body or other similar body exercising executive, legislative, judicial, regulatory or administrative authority or functions of or pertaining to government, including any authority or other quasi-governmental entity established to perform any of such functions.

“ Hazardous Materials ” means any gasoline or petroleum (including crude oil or any fraction thereof) or petroleum products, polychlorinated biphenyls, urea-formaldehyde insulation, hazardous wastes, toxic substances, asbestos, toxic molds, pollutants, or contaminants defined as such in, or regulated or that could reasonably be expected to result in liability under, any applicable Environmental Law.

“ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

“ Indebtedness ” of any Person means at any date, without duplication, (a) all Obligations of such Person for borrowed money, (b) all Obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all Obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable or accruals arising in the ordinary course of business, (d) all Obligations of such Person as lessee that are capitalized in accordance with applicable generally accepted accounting principles, and (e) all Obligations of such Person with respect to any financial hedging arrangements.

“ Knowledge ” means, with respect to any Person, the actual knowledge of such Person; provided , that in the case of the Company, such knowledge shall be limited to the Knowledge of David McIlquham, James Hirshorn, Kenneth Walker, G. Michael Hofmann, Mark J. Hobson, Al Boulden, Chuck Dawson, Jeff Claypool, Bruce Barman, Tony Malikin and Dave Sherman.

“ law ” means any law, statute, ordinance, rule, regulation, order, writ, judgment, injunction or decree of any governmental authority.

“ Lien ” means any mortgage, pledge, security interest, hypothecation, encumbrance, lien, charge, conditional sale agreement, preemptive right, covenant, right of way, easement, purchase option, call, right of first refusal or similar restriction of any kind.

“ Litigation ” has the meaning set forth in Section 3.9 .

“ Material Adverse Effect ” means a material adverse effect upon the condition (financial or otherwise), business, assets, liabilities, prospects or results of operations of the Company or any of its Subsidiaries, taken as a whole; but shall exclude any effect resulting from (i) changes or developments affecting the bedding manufacturing and marketing industry generally, which changes or developments do not disproportionately affect the Company and its Subsidiaries relative to the other participants in the bedding manufacturing and marketing industry, (ii) changes or developments in financial, banking or securities markets or the United States economy generally, which changes or developments do not disproportionately affect the Company and its Subsidiaries, (iii) any action specifically required to be taken by a party hereto pursuant to the terms of this Agreement and (iv) any adverse change in or effect on the business of the Company that is cured by the Company by the Closing; provided , that in order for any such adverse change to be deemed cured, all material consequences relating to such adverse change must also be cured.

“ Merger ” has the meaning set forth in the Recitals.

“ Merger Consideration ” means the amount per share of Common Stock as described on Schedule A attached hereto.

“ Merger Documents ” means, collectively, this Agreement, the Certificate of Merger, and all other agreements and documents entered into in connection with the Merger and the other transactions contemplated hereby.

“ MFI Notes ” means the subordinated promissory note of MMA Acquisition Company, Inc, principal face amount of $17,500,000, dated October 15, 2002 and payable to Mattress Holdings International, LLC, a Subsidiary of the Company and the senior note of Malachi Mattress America Inc. dated October 18, 2002 and payable to Mattress Holdings International LLC in the original principal amount of $3,272,721.

“ Multiemployer Plan ” has the meaning set forth in Section 3(37) of ERISA.

“ Obligations ” means with respect to any Indebtedness, any principal, interest, penalties, fees, guarantees, reimbursements, damages, costs of unwinding and other liabilities payable under the documentation governing any Indebtedness.

“ Option Agreements ” means the option agreements entered into by and between the Company and certain Persons as described on Schedule B attached hereto, each as amended, restated or modified from time to time.

“ Option Consideration ” means, in relation to any Option Holder, the aggregate amount payable in relation to all Options held by such Option Holder pursuant to the terms and conditions of Section 2.11 hereof.

“ Option Plan ” means the Company’s 1998 Stock Option Plan adopted on December 18, 1997 as amended from time to time, as in effect on the date hereof.

“ Options ” means, collectively, the Class A Options and the Class L Options.

“ PBGC ” has the meaning set forth in Section 3.13(h) .

“ Permits ” has the meaning set forth in Section 3.8 .

“ Permitted Encumbrances ” has the meaning set forth in Section 3.17 .

“ Person ” means an individual, partnership, corporation, limited liability company, joint stock company, unincorporated organization or association, trust, joint venture, association or other organization, whether or not a legal entity, or a Governmental Authority.

“ Preferred Stock ” means the authorized Preferred Stock, par value $0.01 per share, of the Company.

“ Proprietary Rights ” means all patents, patent applications, trademarks and service marks, and all registrations and applications therefor and goodwill associated therewith, copyrights, copyright registrations and applications, mask works, trade names, corporate names, domain names, trade dress, inventions, computer software, data and documentation, trade secrets, know-how, confidential information (including, financial business and marketing plans and customer and supplier lists), and all other intellectual property.

“ SARs ” means the Stock Appreciation rights outstanding as of the date hereof with respect to 14,500 shares of Class A Common Stock issued for employees of Sealy Brazil.

“ Schedule 2.8 Shares ” means the number of Shares of Class A Common Stock set forth on Schedule 2.8; provided, that if at the Effective Time the Fraction is greater than 1, an additional number of shares of Class A Common Stock (as determined below) shall be considered Schedule 2.8 Shares for all purposes under this Agreement. The number of such additional shares shall be equal to the fewest number of shares that, when added to the existing Schedule 2.8 Shares, causes the Fraction, when calculated as of the Effective Time, to be less than 1. Such additional shares shall be selected by the Company from shares of Class A Common Stock that are not already Schedule 2.8 Shares and that are held by the Consenting Stockholders, on a pro rata basis (based on existing ownership of Schedule 2.8 Shares) to the greatest extent possible; provided that the Company’s determination shall be final.

“ Securities Act ” means the Securities Act of 1933, as amended (together with the rules and regulations promulgated thereunder).

“ Shares ” means collectively all of the issued and outstanding shares of Common Stock.

“ Stockholders Agreement ” means that Stockholders Agreement, which shall become effective on the Closing Date, by and among Newco and each of the Consenting Stockholders and reflecting the terms set forth on Exhibit C hereto or otherwise in a form reasonably acceptable to the parties thereto.

“ Subsidiary ” means, with respect to any Person, any corporation, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or

indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, association or other business entity, a majority of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a partnership, association or other business entity if such Person or Persons shall be allocated a majority of partnership, association or other business entity gains or losses or shall be or control the managing director, managing member, general partner or other managing Person of such partnership, association or other business entity. Unless the context requires otherwise, each reference to a Subsidiary shall be deemed to be a reference to a Subsidiary of the Company.

“ Surviving Common Stock ” means the Surviving Corporation’s Common Stock, par value $0.01 per share, the terms of which are set forth in the Certificate of Merger.

“ Surviving Corporation ” has the meaning set forth in Section 2.1 .

“ Tax ” means any federal, state, local or foreign income, gross receipts, franchise, estimated, alternative minimum, add-on minimum, sales, use, transfer, real property gains, registration, value added, excise, natural resources, severance, stamp, occupation, windfall profits, environmental (under Section 59A of the Code), customs, duties, real property, personal property, capital stock, social security (or similar), unemployment, disability, payroll, license, employee or other withholding, or other tax, of any kind whatsoever, including any interest, penalties or additions to tax or similar items in respect of the foregoing (whether disputed or not).

“ Tax Return ” means any return, report, declaration, claim for refund, information return or other document (including any related or supporting schedule, statement or information) filed or required to be filed in connection with the determination, assessment or collection of any Tax of any party or the administration of any laws, regulations or administrative requirements relating to any Tax (including any amendment thereof).

“ Third Party Acquisition ” has the meaning set forth in Section 5.7 .

Section 1.2 Interpretation. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words, “herein,” “hereto,” “hereof” and words of similar import refer to this Agreement as a whole and not to any particular Section or paragraph hereof; (ii) the words “include”, “including” or “includes” shall be read to be followed by the words “but not limited to” or “without limitation” or words having similar import; (iii) masculine gender shall also include the feminine and neutral genders, and vice versa; and (iv) words importing the singular shall also include the plural, and vice versa. When reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated. Whenever the word “contemplated” is used in this Agreement, it shall be deemed to be preceded by the word “expressly.” This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted.

ARTICLE II—THE MERGER

Section 2.1 The Merger. Upon the terms and subject to the conditions of this Agreement, at the Effective Time, Newco shall, pursuant to the provisions of the Delaware General Corporation Law (as amended from time to time, the “ DGCL ”), be merged with and into the Company (the “ Merger ”), and the separate corporate existence of Newco shall thereupon cease in accordance with the provisions of the DGCL. The Company shall be the surviving corporation in the Merger and shall continue to exist as said surviving corporation under its present name pursuant to the provisions of the DGCL. The separate corporate existence of the Company with all its rights, privileges, powers and franchises shall continue unaffected by the Merger. The Merger shall have the effects specified in the DGCL. From and after the Effective Time, the Company is sometimes referred to herein as the “ Surviving Corporation .”

Section 2.2 Outstanding Shares .

(a) As of the date hereof, the number of outstanding shares of capital stock of Newco is 100. The number of outstanding shares of Newco’s capital stock is subject to change prior to the Effective Time by reason of the subsequent issuance of shares of Newco’s capital stock.

(b) As of the date hereof and as set forth in Section 3.5 of this Agreement, the number of outstanding shares of capital stock of the Company, is as follows:

(1) 14,165,609 shares of Class A Common, all of which are entitled to one (1) vote per share;

(2) 14,039,839 shares of Class B Common, none of which are entitled to vote;

(3) 1,543,051 shares of Class L Common, all of which are entitled to one (1) vote per share;

(4) 1,612,057 shares of Class M Common, none of which are entitled to vote.

Section 2.3 Certificate of Merger . On the Closing Date, the parties hereto shall cause a certificate of merger prepared by Newco and in a form reasonably acceptable to the Company (the “ Certificate of Merger ”), in accordance with the relevant provisions of the DGCL to be properly executed and filed in accordance with the DGCL and shall make all other filings or recordings required under the DGCL. The Merger shall be effective at the time and on the date of the filing of the Certificate of Merger in accordance with the DGCL, which filing shall occur on the Closing Date (the “ Effective Time ”).

Section 2.4 Certificate of Incorporation . The Certificate of Incorporation of the Surviving Corporation shall be amended and restated at and as of the Effective Time to read as did the certificate of incorporation of Newco immediately prior to the Effective Time (except that the name of the Surviving Corporation will remain unchanged). Such amended certificate of incorporation of the Surviving Corporation shall continue in full force and effect until further amended in the manner prescribed by the provisions of the DGCL.

Section 2.5 By-laws . The by-laws of Newco in effect immediately prior to the Effective Time shall be the by-laws of the Surviving Corporation until amended in accordance with applicable law.

Section 2.6 Officers . The officers of the Company immediately prior to the Effective Time shall be the officers of the Surviving Corporation and will hold office until their successors are duly elected or appointed and qualify in the manner provided in the certificate of incorporation or by-laws of the Surviving Corporation or as otherwise provided by law, or until their earlier death, resignation or removal.

Section 2.7 Directors . The directors of Newco immediately prior to the Effective Time shall be the directors of the Surviving Corporation and will serve until their successors are duly elected or appointed and qualify in the manner provided in the certificate of incorporation or by-laws of the Surviving Corporation or as otherwise provided by law, or until their earlier death, resignation or removal.

Section 2.8 Conversion of Shares .

(a) As of the Effective Time, by virtue of the Merger and without any action on the part of any holder thereof or any party hereto, (A) each share of Common Stock issued and outstanding immediately prior to the Effective Time (other than (i) the Schedule 2.8 Shares, (ii) shares held by Newco, (iii) shares held in the Company’s treasury or by any of the Subsidiaries and (iv) Dissenting Shares (as defined in Section 2.10 )) shall be canceled and converted into the right to receive the respective Merger Consideration exchanged pursuant to Section 2.9 , payable in cash to the holder thereof, without interest thereon, upon surrender of the Certificate formerly representing such share, all in accordance with Section 2.9 and (B) the Schedule 2.8 Shares set forth opposite each Consenting Stockholder’s name on Schedule 2.8 shall be converted as follows: (i) a number of such shares equal to (x) the total number of Schedule 2.8 Shares set forth opposite such Consenting Stockholder’s name multiplied by (y) a fraction (the “ Fraction ”), the numerator of which is the Cash Difference Amount and the denominator of which is the Base Common Stock Value, shall be converted into the right to retain one fully paid and non-assessable share of Class A Common and (ii) the remaining Schedule 2.8 Shares set forth opposite such Consenting Stockholder’s name on Schedule 2.8 shall be cancelled and converted into the right to receive the Base Common Stock Value.

(b) Each share of Common Stock held in the treasury of the Company immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of the holders thereof, be canceled, retired and cease to exist as of the Effective Time and no payment shall be made with respect thereto.

(c) As of the Effective Time, each share of capital stock of Newco issued and outstanding immediately prior to the Effective Time shall, and without any action on the part of Newco, be converted on a one-for-one basis into shares of the corresponding class of capital stock of the Surviving Corporation.

(d) From and after the Effective Time, the holders of Certificates (except for Certificates representing Dissenting Shares) shall cease to have any rights with respect to such Certificates, except the right to receive the consideration set forth in Section 2.8(a) with respect to each of the shares represented thereby, including with respect to the Schedule 2.8 Shares described in Section 2.8(a)(B)(i), the right to retain one fully paid and non-assessable share of Class A Common Stock.

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Section 2.9 Exchange of Certificates .

(a) Upon surrender of any Certificates, together with duly executed stock powers, at least two business days prior to the Closing Date to Newco or the Surviving Corporation, the holder of each Certificate shall receive from the Surviving Corporation on the Closing Date in exchange for each share of Common Stock evidenced thereby, the consideration set forth in Section 2.8(a). The Merger Consideration and the Base Common Stock Value payable in respect of the Schedule 2.8 Shares pursuant to Section 2.8 described in Section 2.8(a)(B)(ii) shall be paid in the form of cash by certified check drawn on a bank located in New York City or wire transfer of immediately available funds, to which such holder is entitled pursuant to Section 2.8 , without interest; provided that wire transfer instructions are provided in connection with such surrender of Certificates. At the Effective Time, the Surviving Corporation shall deposit in trust with an exchange agent selected by the Company (the “ Exchange Agent ”) cash in an amount sufficient to pay all sums to be paid pursuant to Section 2.8 , not otherwise paid at Closing pursuant to the immediately preceding sentence, and to make the appropriate cash payments, if any, to holders of Common Stock which cease to be Dissenting Shares pursuant to Section 2.10 hereof (such amounts being hereinafter referred to as the “ Exchange Fund ”). Promptly after the Effective Time, the Surviving Corporation shall cause the Exchange Agent to mail or otherwise deliver to each record holder of Certificates a form of letter of transmittal for return to the Exchange Agent (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent) and instructions for use in effecting the surrender of the Certificates and payment therefor. Upon surrender to the Exchange Agent of any Certificates (other than Certificates representing Schedule 2.8 Shares to be retained by such holder pursuant to Section 2.8(a)(B)(i), together with such duly executed letter of transmittal, the holder of each such Certificate shall receive from the Surviving Corporation immediately thereafter in exchange therefor, the applicable consideration set forth in Section 2.8(a). The Merger Consideration and the Base Common Stock Value payable in respect of the Schedule 2.8 Shares described in Section 2.8(a)(B)(ii) pursuant to Section 2.8(a) shall be paid in the form of cash by certified check or wire transfer of immediately available funds, to which such holder is entitled pursuant to Section 2.8 , without interest. Each such Certificate so surrendered shall be canceled. If payment or delivery is to be made to a Person other than the Person in whose name a Certificate so surrendered is registered, it shall be a condition of payment that the Certificate so surrendered shall be properly endorsed or otherwise in proper form for transfer, that the signatures on the certificate or any related stock power shall be properly guaranteed and that the Person requesting such payment either pay any transfer or other Taxes required by reason of the payment to a Person other than the registered holder of the Certificate so surrendered or establish to the satisfaction of the Surviving Corporation that such Tax has been paid or is not applicable. Until surrendered in accordance with the provisions of this Section 2.9 , each Certificate (other than Certificates canceled pursuant to Section 2.8(b) and Dissenting Shares) shall represent for all purposes only the right to receive the consideration set forth in Section 2.8(a) in the form provided for by this Agreement, without interest. All cash paid upon surrender of the Certificates in accordance with this Section 2.9 shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Common Stock represented thereby. The Surviving Corporation and the Exchange Agent will be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement or the transactions contemplated hereby to any holder of Common Stock such amounts as the Surviving Corporation or the Exchange Agent are required to deduct and withhold with respect to the

10 making of such payment under the Code, or any applicable provision of U.S. federal, state, local or non-U.S. tax law. To the extent that such amounts are properly withheld by the Exchange Agent with respect to payments for the Common Stock or the Options described below, such withheld amounts will be treated for all purposes of this Agreement as having been paid to the holder of the Common Stock or Option in respect of whom such deduction and withholding were made by the Exchange Agent. With respect to the Schedule 2.8 Shares described in Section 2.8(a)(B)(i), each holder thereof will be entitled to receive a new certificate or new certificates representing the number of Schedule 2.8 Shares to be retained by such holder pursuant to Section 2.8.

(b) In the event that any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the registered holder of such lost, stolen or destroyed Certificate in form and substance acceptable to Newco (if such affidavit is accepted before the Effective Time) or the Surviving Corporation (if such affidavit is accepted after the Effective Time), and the posting of a bond, if requested by Newco, in an amount acceptable to Newco, the Surviving Corporation will issue in exchange for such lost, stolen or destroyed Certificate the consideration set forth in Section 2.8(a) in respect thereof in the manner set forth in Section 2.8 and this Section 2.9 .

(c) If Certificates are not surrendered prior to the date that is one year after the Effective Time, unclaimed amounts (including interest thereon) of the consideration set forth in Section 2.8(a) shall, to the extent permitted by applicable law, become the property of the Surviving Corporation and may be commingled with the general funds of the Surviving Corporation, free and clear of all claims or interest. Notwithstanding the foregoing, any stockholders of the Company who have not theretofore complied with the provisions of this Section 2.9 shall thereafter look only to the Surviving Corporation and only as general creditors thereof for payment for their claims in the form and amounts to which such stockholders are entitled.

(d) After the Effective Time, there shall be no transfers on the stock transfer books of the Surviving Corporation of the shares of Common Stock (other than the Schedule 2.8 Shares described in Section 2.8(a)(B)(i)) that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation, they shall be canceled and exchanged for the consideration set forth in Section 2.8(a) as provided for, and in accordance with, the provisions of this Section 2.9 .

Section 2.10 Dissenting Shares. Each share of Common Stock issued and outstanding immediately prior to the Effective Time held by stockholders who shall have properly exercised their appraisal rights with respect thereto under Section 262 of the DGCL (“ Dissenting Shares ”) shall not be converted into the right to receive the Merger Consideration pursuant to the Merger, but shall be entitled to receive payment of the appraised value of such shares in accordance with the provisions of Section 262 of the DGCL, except that each Dissenting Share held by a stockholder who shall thereafter withdraw his or her demand for appraisal or shall fail to perfect his or her right to such payment as provided in such Section 262 shall be deemed to be converted, as of the Effective Time, into the right to receive the Merger Consideration in the form such holder otherwise would have been entitled to receive as a result of the Merger. The Company shall give Newco prompt notice of any demands for appraisal, withdrawals of

11 demands for appraisal and any other instruments served pursuant to Section 262 of the DGCL and received by the Company in connection with the Merger, and Newco shall have the opportunity to direct and settle all negotiations and proceedings with respect to such demands. The Company will not, except with the prior written consent of Newco, make any payment with respect to, settle or offer to settle, any such demands.

Section 2.11 Options . (a) Unless otherwise agreed, at the Effective Time, each then outstanding Option, both vested and unvested, which is not exercised prior to the Effective Time shall terminate and be cancelled and the holder thereof will have the right to receive, for each share of each class of Common Stock subject to such Option, a payment in cash equal to the amount, if any, resulting from deducting the exercise price per share of such holder’s Option from the applicable Merger Consideration, net of applicable withholding taxes. At the Closing, Newco shall deposit or shall cause to be deposited with the Exchange Agent immediately available funds in amounts necessary to make the payments of the Option Consideration to each holder of Options, net of applicable withholding taxes, if any, at Closing.

(b) At the Effective Time, each then outstanding SAR shall terminate and the holder thereof will have the right to receive for each Share of each class of Common Stock subject to such SAR an amount in cash equal to the amount given by deducting the reference price per Share of such Common Stock that is subject to such SAR from the applicable Merger Consideration, net of applicable withholding taxes, if any. Prior to the Closing, the Company shall take or cause to be taken any and all actions reasonably necessary and shall use its reasonable best efforts to obtain the necessary consents, if any, of holders of SARs to give effect to the treatment of SARs pursuant to this Section 2.11.

Section 2.12 Closing . Unless this Agreement shall have been terminated and the Merger shall have been abandoned pursuant to Article VII hereof, the closing of the transactions contemplated hereby (the “ Closing ”) shall take place at the offices of Kirkland & Ellis LLP, 153 East 53 ^rd Street, New York, NY 10022, at 10:00 a.m. on the fifth Business Day following the satisfaction or waiver of the conditions set forth in Article VI (other than those conditions that by their terms cannot be satisfied until the Closing) or on such date and time as the Company and Newco shall mutually agree. The time and date of the Closing is herein called the “ Closing Date ”.

ARTICLE III—REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company hereby represents and warrants to Newco as of the date hereof and as of the Closing Date as follows:

Section 3.1 Organization and Qualification; Subsidiaries . Each of the Company and its Subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation specified on Schedule 3.1 and has the corporate power and authority and all licenses, permits and authorizations necessary to own, lease and operate its property and assets and to carry on its business as presently conducted, and as presently proposed to be conducted, and is duly qualified or licensed to do business as a foreign corporation and is in good standing in each jurisdiction wherein the nature of its business or the ownership of its property and assets makes such qualification or licensing necessary, except where the failure to

12 be so qualified, licensed and in good standing would not, individually or in the aggregate, have a Material Adverse Effect or in any manner challenge or prevent, enjoin, alter, impair or materially delay the consummation of the transactions contemplated by this Agreement. The Company has previously provided to Newco true and complete copies of (i) its certificate of incorporation and all amendments thereto or restatements thereof, (ii) its by-laws as currently in effect and (iii) true and complete copies of the certificate or articles of incorporation and by-laws, as currently in effect, of each Subsidiary. The minute books of the Company and its Subsidiaries include copies of minutes of all meetings of the directors or stockholders of the Company and its Subsidiaries held on or after January 1, 2000 and complete and accurate copies of all resolutions passed or other actions taken by the boards of and the stockholders of the Company and its Subsidiaries on or after January 1, 2000.

Section 3.2 Authorization . The Company has the corporate power and authority to execute and deliver this Agreement and each other Merger Document and to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby, all of which have been duly authorized by all requisite corporate action, and no other corporate action or other organizational proceedings on the part of the Company or any of its Subsidiaries are necessary to authorize the execution and delivery of this Agreement and each other Merger Document and to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby or thereby, other than the approval of the stockholders of the Company described in Section 5.1 . This Agreement and each other Merger Document to be executed in connection herewith have been duly authorized, executed and delivered by the Company and, assuming that this Agreement and each Merger Document to which Newco is a party has been duly and validly authorized, executed and delivered by Newco, constitute valid and binding agreements of the Company, enforceable against the Company in accordance with their respective terms, except as the enforceability hereof and thereof may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally or (ii) applicable equitable principles (whether considered in a proceeding at law or in equity).

Section 3.3 Non-contravention . Neither the execution and delivery of this Agreement or any other Merger Document, the consummation of the Merger and the other transactions contemplated hereby or thereby nor the fulfillment of and the performance by the Company of its obligations hereunder or thereunder will (i) contravene any provision contained in the Certificate of Incorporation or by-laws of the Company or any of its Subsidiaries, (ii) conflict with, violate or result in a breach (with or without the lapse of time, the giving of notice or both) of, require any consent under, or constitute (with or without the lapse of time, the giving of notice or both) a default (or give rise to any penalty or right of termination, cancellation or acceleration or to a loss of any benefit to which the Company or any of its Subsidiaries is entitled) under (A) except as set forth on Schedule 3.3 , any contract, agreement, commitment, indenture, mortgage, lease, pledge, note, bond, license, permit or other instrument or obligation or (B) any judgment, order, writ, injunction, decree, statute, law, rule or regulation or other restriction of any Governmental Authority, in each case to which the Company or any of its Subsidiaries is a party or by which any of them is bound or to which any of their respective assets or properties are subject, (iii) except with respect to Liens granted to any lender at the Closing in connection with Newco’s financing of the transactions described in Section 4.8 , result in the creation or imposition of any Lien on any of the assets or properties of the Company or its Subsidiaries, (iv) except as set forth

13 on Schedule 3.3 , result in the acceleration or modification of, or permit any Person to terminate, modify, cancel, accelerate or declare due and payable prior to its stated maturity, any obligation of the Company or any of its Subsidiaries or (v) except as set forth on Schedule 3.3 , trigger any “change in control” clause or similar clause in any Contract to which the Company or any of its Subsidiaries is a party, which in the case of any of clauses (ii) through (v) above, could have a Material Adverse Effect or would materially adversely affect the ability of the Company to consummate the transactions contemplated by this Agreement.

Section 3.4 Consents . No claim, legal action, suit, arbitration, governmental investigation, or other legal, judicial or administrative proceeding is pending or, to the Company’s Knowledge, threatened against the Company which would prevent or materially delay the consummation of the transaction contemplated hereby. Except for (i) filing and recordation of appropriate merger documents as required by the DGCL, and (ii) the requirements of the HSR Act and the filings and approvals set forth on Schedule 3.4 , no notice to, filing with, or authorization, registration, consent or approval of any Governmental Authority or other Person is necessary for the execution, delivery or performance of this Agreement or any other Merger Document or the consummation of the transactions contemplated hereby or thereby by the Company or any of its Subsidiaries.

Section 3.5 Capitalization; Subsidiaries.

(a) The Company’s authorized capital stock consists solely of 600,000,000 shares of Class A Common, of which, 14,165,609 shares are presently issued and outstanding; 200,000,000 shares of Class B Common, of which, 14,039,839 shares are presently issued and outstanding; 6,000,000 shares of Class L Common, of which, 1,543,051 shares are presently issued and outstanding; 2,000,000 shares of Class M Common, of which, 1,612,057 shares are presently issued and outstanding; and 100,000,000 shares of Preferred Stock, none of which are presently issued and outstanding, in each case, which shares are held beneficially and of record by the Persons set forth on Schedule 3.5(a) in the amounts set forth opposite such Person’s name. 1,219,643 shares of the Company’s Class A Common Stock are held as treasury shares. As of the date hereof, (i) up to 3,410,300 shares of Class A Common are reserved for issuance upon exercise of all outstanding Class A Options, (ii) 14,039,839 shares of Class A Common are reserved for issuance upon the conversion of Class B Common, (iii) 16,730 shares of Class L Common are reserved for issuance upon exercise of all outstanding Class L Options; and (iv) 1,612,057 shares of Class L Common are reserved for conversion of Class M Common. Except as set forth in this Section 3.5(a) or on Schedule 3.5(a) , the Company does not have (i) any shares of capital stock or voting securities reserved for issuance or (ii) any outstanding or authorized option, warrant or other right or agreement of any kind to acquire its capital stock or voting securities or other ownership interest in the Company or any outstanding securities, or obligations convertible into or exchangeable for, or giving any Person any right to subscribe for or acquire from it, any shares of its capital stock or voting securities or other ownership interest in the Company. Except as set forth in this Section 3.5(a) or on Schedule 3.5(a) , there are no (i) outstanding obligations of the Company or any of the Subsidiaries to repurchase, redeem or otherwise acquire any capital stock of the Company or (ii) voting trusts, proxies or other agreements among the Company’s stockholders with respect to the voting or transfer of the Company’s capital stock. All of the issued and outstanding shares of capital stock of the Company have been duly authorized, validly issued, are fully paid and are nonassessable and

14 free and clear of any preemptive rights and Liens, other than those set forth on Schedule 3.5(a) and that will be released on or prior to the Closing Date or those created by Newco.

(b) All Subsidiaries are listed on Schedule 3.5(b) . Except as set forth on Schedule 3.5(b) , all of the outstanding capital stock of, or other ownership interests in, each Subsidiary of the Company is owned beneficially and of record by the Company, directly or indirectly, is duly authorized, validly issued, fully paid and nonassessable and free and clear of any preemptive rights (other than such rights as may be held by the Company), restrictions on transfer, Taxes or Liens. Except as set forth on Schedule 3.5(b) , there are no (i) authorized or outstanding securities of the Company or any of the Subsidiaries convertible into or exchangeable for, no options or warrants or the right to subscribe for, or providing for the issuance or sale of, any capital stock or other ownership interest in, or any other securities of, any Subsidiary, (ii) voting trusts, proxies or other agreements among the Subsidiaries’ stockholders with respect to the voting or transfer of the Subsidiaries’ capital stock, or (iii) outstanding obligations of the Company or any of the Subsidiaries to repurchase, redeem or otherwise acquire any outstanding shares of capital stock or other ownership interests in any Subsidiary.

Section 3.6 SEC Documents; Financial Statements .

(a) The Company has filed on a timely basis all required documents with the Securities and Exchange Commission (the “ SEC ”) since January 31, 2001 (collectively, its “ SEC Documents ”). As of their respective dates, the SEC Documents (i) complied in all material respects with applicable requirements of the Securities Act and the Exchange Act, as the case may be, and (ii) did 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 the light of the circumstances under which they were made, not misleading. As of the date of this Agreement, none of the Company’s Subsidiaries are subject to the periodic reporting requirements of the Exchange Act.

(b) The financial statements (the “ Public Financial Statements ”) included in or incorporated by reference into the SEC Documents (including related notes and schedules) have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto and, in the case of unaudited quarterly financial statements, as permitted by Form 10-Q under the Exchange Act) and comply in all material respects with the applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing and fairly present in all material respects, the consolidated financial position of the Company and its Subsidiaries as of their respective dates, and each of the related consolidated statements of income, stockholders’ equity and cash flows included in or incorporated by reference into the SEC Documents (including any related notes and schedules) fairly presents in all material respects, the consolidated results of operations, retained earnings and cash flows, 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 GAAP applied on a consistent basis throughout the periods indicated except as may be noted therein.

15 (c) The unaudited financial statements of the Company and its Subsidiaries for the period ending February 29, 2004 (including related notes and schedules) (the “ February 29 Financial Statements ”) when timely prepared and provided to Newco will have been prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto and, in the case of unaudited quarterly financial statements, as permitted by Form 10-Q under the Exchange Act) and will comply in all material respects with the applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at such time and will fairly present in all material respects, the consolidated financial position of the Company and its Subsidiaries as of such date, and each of the related consolidated statements of income, stockholders’ equity and cash flows included in or incorporated by reference into such unaudited consolidated financial statements (including any related notes and schedules) will fairly present in all material respects, the consolidated results of operations, retained earnings and cash flows, 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 GAAP applied on a consistent basis throughout the periods indicated except as may be noted therein.

(d) Except as set forth on Schedule 3.6(d) , the Company and its consolidated Subsidiaries have no liability or obligation (whether accrued, absolute, contingent or otherwise) which is not fully reflected or reserved against in the Balance Sheet, that is of a nature required to be reflected on annual audited Public Financial Statements of the Company and its consolidated Subsidiaries or in the notes thereto in accordance with GAAP, other than liabilities and obligations incurred in the ordinary course of business consistent with past practices since November 30, 2003 that would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.

(e) The Company has timely filed and made available to Newco all certifications and statements required by (i) Rule 13a-14 or Rule 15d-14 under the Exchange Act or (ii) 18 U.S.C. Section 1350 (Section 906 of the Sarbanes-Oxley Act of 2002) with respect to any SEC Documents.

Section 3.7 Absence of Certain Developments . Except as set forth on Schedule 3.7 , since November 30, 2003, (i) there has not been any condition, change or event which has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (ii) the business of the Company and its Subsidiaries has been conducted only in the ordinary course consistent with past practices and (iii) there has not been any action taken by the Company or any of its Subsidiaries that would have been prohibited under Section 5.3 if such action had been taken by the Company or any of its Subsidiaries after the date hereof.

Section 3.8 Governmental Authorizations; Licenses; Etc . Except as set forth on Schedule 3.8 , the business of each of the Company and its Subsidiaries has been operated in compliance in all material respects with all applicable laws, rules, regulations, codes, ordinances, orders, policies and guidelines of all Governmental Authorities. Except as set forth on Schedule 3.8 , each of the Company and its Subsidiaries (i) has all material permits, licenses, approvals, certificates, variances, franchises and other authorizations necessary or advisable for the operation of its business as currently conducted (collectively, “ Permits ”), and all Permits are

16 in full force and effect and no action, claim or proceeding is pending, nor to the Company’s Knowledge is threatened, to suspend, revoke, revise, limit, restrict or terminate any of such Permits or declare any such Permit invalid, and (ii) has made all notifications, registrations, certifications and filings with all Governmental Authorities, necessary or advisable for the operation of its business as currently conducted. Except as set forth on Schedule 3.8 , there is no action, case or proceeding pending or, to the Company’s Knowledge, threatened by any Governmental Authority with respect to (i) any alleged material violation by the Company or its Subsidiaries of any statute, law, rule, regulation, code, ordinance, order, policy or guideline of any Governmental Authority, or (ii) any alleged material failure by the Company or its Subsidiaries to have any permit, license, approval, certification or other authorization required in connection with the operation of the business of each of the Company and its Subsidiaries.

Section 3.9 Litigation . Except as set forth on Schedule 3.9 , as of the date hereof, there are no judgments, decisions, settlements, writs, stipulations, decrees, lawsuits, actions, proceedings, claims, complaints, injunctions, orders or investigations by or before any Governmental Authority or arbitral or other forum (each a “ Litigation ”) pending or, to the Company’s Knowledge, threatened against the Company or its Subsidiaries (i) relating to the Company, any of its Subsidiaries, their respective businesses, rights or properties or (ii) seeking to prevent, enjoin, alter or materially delay the transactions contemplated hereby. There is no judgment, decree, injunction, or order of a Governmental Authority outstanding against the Company or any of its Subsidiaries. There is no Litigation pending or, to the Company’s Knowledge threatened, against the Company or its Subsidiaries that is reasonably likely to, individually or in the aggregate, have a Material Adverse Effect.

Section 3.10 Taxes .

(a) Except as set forth on Schedule 3.10 , each of the Company and its Subsidiaries has duly and timely filed all Tax Returns required to be filed by it, all such Tax Returns have been prepared in compliance with all applicable laws and regulations and are true, correct and complete in all material respects. Except as set forth on Schedule 3.10 or as previously summarized in writing and delivered to Newco, all Taxes owed by each of the Company and its Subsidiaries, whether or not shown as due on any Tax Return, have been timely paid.

(b) Except as set forth on Schedule 3.10 :

(i) neither the Company nor any of

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