EXECUTION COPY AGREEMENT AND PLAN OF MERGER

Exhibit 2.1

EXECUTION COPY

AGREEMENT AND PLAN OF MERGER

among

PILGRIM’S PRIDE CORPORATION,

PROTEIN ACQUISITION CORPORATION

and

GOLD KIST INC.

Dated as of December 3, 2006

-i-

-ii-

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER (this " Agreement "), dated as of December 3, 2006, is made by and among Pilgrim’s Pride Corporation, a Delaware corporation (" Parent "), Protein Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of Parent (" Merger Sub "), and Gold Kist Inc., a Delaware corporation (the " Company "). Capitalized terms used in this Agreement and not otherwise defined shall have the meaning given to such terms in Section 9.3 .

WHEREAS, Merger Sub has previously commenced a tender offer (the " Pending Offer ") to purchase all of the issued and outstanding shares of common stock, par value $0.01 per share of the Company, including the associated Series A Junior Participating Preferred Stock Purchase Rights (collectively, the " Company Common Stock ") for a price of $20.00 per share of Company Common Stock, subject to any required withholding of Taxes, net to the seller in cash, subject to certain terms and conditions;

WHEREAS, after negotiations between representatives of the parties, Merger Sub has agreed to amend the Pending Offer to provide for the purchase of all of the issued and outstanding shares of Company Common Stock (as the Pending Offer is so amended, the " Offer ") at a price of $21.00 per share of Company Common Stock (such amount or any greater amount per share of Company Common Stock paid pursuant to the Offer, the " Offer Price "), subject to any required withholding of Taxes, net to the seller in cash, and on the terms and subject to the conditions set forth in this Agreement;

WHEREAS, the Board of Directors of the Company has, on the terms and subject to the conditions set forth herein, unanimously approved the Offer and this Agreement, and is recommending that the Company’s stockholders accept the Offer, tender their shares of Company Common Stock to Merger Sub and approve this Agreement;

WHEREAS, the respective Boards of Directors of Parent, Merger Sub and the Company have approved and declared advisable the merger of Merger Sub with and into the Company (the " Merger "), upon the terms and subject to the conditions set forth in this Agreement; and

WHEREAS, Parent, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Offer and the Merger and also to prescribe various conditions to the Offer and the Merger.

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

ARTICLE 1

THE MERGER

1.1    The Offer.

• (a)    Provided that this Agreement shall not have been terminated in accordance with Section 8.1 , as promptly as practicable following the date hereof and in any event within five (5) Business Days following the date of this Agreement (or such other later date as the parties may mutually agree in writing), Parent and Merger Sub (i) shall amend the Offer to reflect the execution of this Agreement and the terms hereof, (ii) shall file an amendment to their Schedule TO, which amendment shall include an amended offer to purchase, form of transmittal letter, form of notice of guaranteed delivery and all other necessary documents and exhibits with the Securities and Exchange Commission (the " SEC ") and make all deliveries, filings, publications, mailings and telephonic notices required to be made in connection with the Offer under the federal securities Laws, including Regulations 14D and 14E of the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the " Exchange Act ") (such documents filed or required to be filed with the SEC and such other filings, deliveries, mailings and notices, collectively and together with any amendments, exhibits or supplements thereto, the " Offer Documents ") and (iii) shall use their reasonable best efforts to consummate the Offer. If the Offer is consummated, Parent will cause Merger Sub to accept for payment and pay for any shares of Company Common Stock tendered pursuant to the Offer, subject only to the conditions that (i) there shall be validly tendered and not withdrawn prior to the expiration of the Offer such number of shares of Company Common Stock that, when added to the shares of Company Common Stock already owned by Parent, Merger Sub and their Subsidiaries, would constitute at least a majority of the shares of Company Common Stock outstanding determined on a Fully Diluted Basis immediately prior to the date of expiration of the Offer (the " Minimum Condition ") and (ii) the other conditions set forth in Annex I hereto (collectively with the Minimum Condition, the " Tender Offer Conditions ") have been satisfied or waived in writing by Parent.

  (b)    Without the prior written consent of the Company, Parent and Merger Sub shall not decrease the Offer Price or change the form of consideration payable in the Offer, decrease the number of shares of Company Common Stock sought to be purchased in the Offer, impose additional conditions to the Offer or amend any other term of the Offer in a manner that is materially adverse to the holders of shares of Company Common Stock, except as provided in this Agreement. The initial expiration date of the Offer shall be December 27, 2006 (the " Expiration Date ," unless the period of time for which the Offer is open shall be extended in accordance with the immediately following sentence, in which event the term "Expiration Date" shall mean the latest time and date as the Offer, as so extended, may expire); provided , however , that Parent and Merger Sub may provide for a subsequent offering period after the Expiration Date, in accordance with Rule 14d-11 under the Exchange Act (including the obligations that Merger Sub immediately accept and promptly pay for all shares of Company Common Stock tendered during the initial offering period and immediately accept and promptly pay for any shares of Company Common Stock tendered during such subsequent offering period). Notwithstanding the foregoing,

  (i)    Parent and Merger Sub may, without the consent of the Company, from time to time, in their sole discretion, extend the Expiration Date for such period (not to exceed ten (10) Business Days on any single occasion) as Parent and Merger Sub may determine, to a date that is no later than March 31, 2007 (A) if immediately prior to the Expiration Date any of the Tender Offer Conditions are not satisfied or waived by Parent, or (B) if immediately prior to the Expiration Date, the Minimum Condition is satisfied but the number of shares of Company Common Stock that have been validly tendered (and not withdrawn) pursuant to the Offer is less than 90% of the number of shares of Company Common Stock outstanding determined on a Fully Diluted Basis;

  (ii)    if any of the Tender Offer Conditions (other than the Minimum Condition) is not satisfied on any scheduled Expiration Date, then, if requested by the Company, Parent and Merger Sub shall extend the Expiration Date one or more times (the period of each such extension to be determined by Merger Sub) for

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• up to fifteen (15) Business Days in the aggregate for all such extensions), provided , that at the time of such extension any such condition is reasonably capable of being satisfied and the Company has not received an Acquisition Proposal that has not been withdrawn;

  (iii)    if (A) the Company has not received an Acquisition Proposal that has not been withdrawn, (B) the failure to achieve the Minimum Condition is not a result of the Company having failed to comply in any material respect with any of its covenants and agreements contained in this Agreement and (C) the Tender Offer Conditions (other than the Minimum Condition) have been satisfied or, if not then satisfied, either (1) are reasonably capable of being satisfied within five Business Days or (2) are unsatisfied (or not reasonably capable of being satisfied) as a result of a breach of this Agreement by Parent or Merger Sub, then, if at any scheduled Expiration Date, the Minimum Condition shall not have been satisfied, at the request of the Company, Parent and Merger Sub shall extend the Expiration Date one or more times for such period (not to exceed five (5) Business Days on any single occasion) as may be requested by the Company, provided , that in no event shall Parent and Merger Sub be required to extend the Expiration Date more than an aggregate of ten (10) Business Days pursuant to this clause (iii);

  (iv)    if (A) the Company receives an Acquisition Proposal ten (10) or fewer Business Days prior to a scheduled Expiration Date, then, if on such scheduled Expiration Date, the Minimum Condition is not satisfied and (B) the Company provides Parent with a written request that Merger Sub extend the Expiration Date, then Parent and Merger Sub shall extend the Offer, to such date as is necessary to assure that the Offer does not expire until ten (10) Business Days from the date the Company received such Acquisition Proposal, provided , that the Company may not deliver such a request on more than one occasion; and

  (v)    Parent and Merger Sub may (A) increase the Offer Price and extend the Expiration Date to the extent required by applicable Law in connection with such price increase and (B) subject to prior consultation with the Company, extend the Expiration Date to the extent otherwise required by applicable Law, in each case in Parent’s and Merger Sub’s reasonable discretion and without the Company’s consent.

Parent and Merger Sub shall not terminate the Offer prior to any scheduled Expiration Date without the written consent of the Company except in the event that this Agreement is terminated pursuant to Section 8.1 hereof.

• (c)    Subject to the terms of the Offer and this Agreement and the satisfaction or waiver of the Tender Offer Conditions as of any Expiration Date, including the Minimum Condition, Parent will cause Merger Sub to accept for payment and pay for any and all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer promptly after such Expiration Date (such date as Merger Sub shall be obligated to accept for payment any and all shares of Company Common Stock validly tendered and not validly withdrawn pursuant to the Offer, the " Acceptance Date "). For the avoidance of doubt, and notwithstanding anything in this Agreement to the contrary, Merger Sub shall not (and Parent shall cause Merger Sub not to) accept for payment any shares of Company Common Stock tendered pursuant to the Offer unless the Minimum Condition shall have been satisfied.

  (d)    Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, agrees to correct promptly any information provided by it for use in the Offer Documents if and to the extent that it shall have become false or misleading in any material respect and Merger Sub further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to stockholders of the Company, in each case, as and to the extent required by applicable federal securities Laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on the Offer Documents in advance of their filing with the SEC and dissemination to stockholders of the Company. Parent and Merger Sub shall provide to the Company and its counsel copies in writing of any comments and shall inform the Company of any oral comments that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt of such comments. The Company and its counsel shall be given a reasonable opportunity to review any such written and oral comments and proposed responses.

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1.2    Company Actions.

• (a)    The Company shall, after affording Parent and its counsel a reasonable opportunity to review and comment thereon, file with the SEC, as promptly as practicable on the date of the filing by Parent and Merger Sub of the Offer Documents, an amendment to its Solicitation/Recommendation Statement on Schedule 14D-9 (together with the existing statement and any subsequent amendments or supplements thereto, the " Schedule 14D-9 ") reflecting the recommendation of the Company’s Board of Directors that holders of shares of Company Common Stock tender their shares into the Offer, and shall disseminate the Schedule 14D-9 as required by Rule 14d-9 promulgated under the Exchange Act. The Schedule 14D-9 will set forth that the Company’s Board of Directors has (i) determined by unanimous vote of all of its members that each of the transactions contemplated hereby, including each of the Offer and the Merger, is advisable, fair to and in the best interests of the Company and its stockholders, (ii) approved the Offer and the Merger and this Agreement in accordance with the Delaware General Corporation Law (" DGCL ") and (iii) recommended (the " Company Offer Recommendation ") acceptance of the Offer and adoption of this Agreement by the Company’s stockholders; provided , however , that such Company Offer Recommendation in the Schedule 14D-9 may be modified in a manner adverse to Parent and Merger Sub or withdrawn after the date hereof (such a modification or withdrawal, a " Change in Company Offer Recommendation "), if, but only if, (y) after consultation with its outside counsel, the Board of Directors determines that the failure to take such action is inconsistent with its fiduciary duties under applicable Law; and (z) at least 3 Business Days prior to making a Change in Company Offer Recommendation, the Company has provided written notice to Parent that it is prepared to make a Change in Company Offer Recommendation.

  (b)    Each of the Company, on the one hand, and Parent and Merger Sub, on the other hand, agrees to correct promptly any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to stockholders of the Company, in each case, as and to the extent required by applicable federal securities Laws. The Company shall provide to Parent and its counsel copies in writing of any comments and shall inform Parent of any oral comments that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. Parent and its counsel shall be given a reasonable opportunity to review any such written and oral comments and proposed responses.

  (c)    In connection with the Offer, the Company will promptly furnish Merger Sub with mailing labels, security position listings, any available non-objecting beneficial owner lists and any available listing or computer list containing the names and addresses of the record holders of the Company Common Stock as of the most recent practicable date and shall furnish Merger Sub with such additional available information (including, but not limited to, updated lists of holders of the Company Common Stock and their addresses, mailing labels and lists of security positions and non-objecting beneficial owner lists) and such other assistance as Merger Sub or its agents may reasonably request in communicating the Offer to the Company’s record and beneficial stockholders. Except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer, the Merger and the other transactions contemplated by this Agreement, Merger Sub shall hold in confidence the information contained in any such labels, listings and files and shall use such information only in connection with the Offer and the Merger or any other business combination with Company.

1.3    Directors.

• (a)    Promptly upon the purchase of and payment for shares of Company Common Stock by Merger Sub pursuant to the Offer which represents a majority of the shares of Company Common Stock outstanding on a Fully Diluted Basis (such date the " Payment Date ") and at all times thereafter and subject to Section 1.3(b) , Merger Sub shall be entitled to designate such number of directors, rounded up to the next whole number, on the Company’s Board of Directors as is equal to the product of the total number of directors on the Company’s Board of Directors (giving effect to the directors elected or designated by Merger Sub pursuant to this sentence) multiplied by the percentage that the aggregate number of shares of

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• Company Common Stock beneficially owned by Merger Sub and any of its Affiliates bears to the total number of shares of Company Common Stock then outstanding (such directors which Merger Sub is entitled to elect pursuant to this sentence, the " Merger Sub Designees "). The Company shall, upon Merger Sub’s request at any time following the Payment Date, take such reasonable actions, including promptly filling vacancies or newly created directorships on the Company’s Board of Directors, promptly increasing the size of the Company’s Board of Directors and/or promptly requesting the resignations of such number of its incumbent directors as are necessary to enable the Merger Sub Designees to be so elected or designated to the Company’s Board of Directors, and shall use its best efforts to cause the Merger Sub Designees to be so elected or designated at such time. The Company’s obligations under this Section 1.3(a) shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly upon execution of this Agreement take all actions required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.3(a) , including mailing to stockholders the information required by Section 14(f) and Rule 14f-1 as is necessary to enable the Merger Sub Designees to be elected or designated to the Company’s Board of Directors (provided that Parent or Merger Sub shall have provided to the Company on a timely basis all required information with respect to such designees). Merger Sub shall supply the Company with, and be solely responsible for, information with respect to the Merger Sub Designees and Parent’s and Merger Sub’s respective officers, directors and Affiliates to the extent required by Section 14(f) and Rule 14f-1.

  (b)    In the event that Merger Sub’s designees are elected or designated to the Company’s Board of Directors pursuant to Section 1.3(a) , then, until the Effective Time, the Company and Parent shall cause the Company’s Board of Directors to maintain as a director one director who is an independent member of the Company’s Board of Directors on the date hereof (the " Continuing Director "); provided , however , that if the Continuing Director is unable to serve due to death, disability or resignation, the other directors shall designate one director who is an independent member of the Company’s Board of Directors to fill such vacancy and such person shall be deemed the Continuing Director for all purposes of this Agreement. Notwithstanding anything in this Agreement to the contrary, the affirmative vote of the Continuing Director shall (in addition to the approvals of the Board of Directors or the stockholders of the Company as may be required by the Restated Certificate of Incorporation of the Company (as amended, the " Company Articles "), the bylaws of the Company (as amended, the " Company Bylaws ," and together with the Company Articles, the " Company Governing Documents ") or applicable Law) be required (i) for the Company to amend or terminate this Agreement in a manner adverse to the stockholders of the Company other than Parent or its Subsidiaries or (ii) to exercise or waive any of the Company’s rights, benefits or remedies hereunder in a manner adverse to the stockholders of the Company other than Parent or its Subsidiaries.

1.4    Top-Up Option.

• (a)    The Company grants to Merger Sub an irrevocable option, for so long as this Agreement has not been terminated pursuant to the provisions hereof (the " Top-Up Option ") to purchase from the Company up to a number of newly-issued shares of Company Common Stock equal to the number of shares (such number of shares, the " Top-Up Amount ") of Company Common Stock that, when added to the number of shares of Company Common Stock owned by Merger Sub at the time of exercise of the Top-Up Option, constitutes one (1) share more than 90% of the number of shares of Company Common Stock that would be outstanding as determined on a Fully Diluted Basis immediately after the issuance of all shares issued pursuant to the Top-Up Option; provided , that the Top-Up Option shall not be exercisable unless immediately after such exercise Merger Sub would own more than ninety percent (90%) of the Company Common Stock then outstanding.

  (b)    Subject to no statute, rule or regulation having been enacted or promulgated by any Governmental Authority which prohibits the consummation of the Merger and there being no order or injunction of a court of competent jurisdiction in effect preventing consummation of the Top-Up Option or the Merger, Merger Sub may exercise the Top-Up Option, in whole but not in part, at any one time after the occurrence of a Top-Up Exercise Event and prior to the Effective Time. For purposes of this Agreement, a " Top-Up

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• Exercise Event " shall occur if (i) the Acceptance Date shall have occurred and (ii) the Company has a number of authorized but unissued shares of Company Common Stock that are not committed to be issued at least equal to the Top-Up Amount. Except as otherwise provided in Section 1.4(c) , the aggregate purchase price payable for the shares of Company Common Stock being purchased by Merger Sub pursuant to the Top-Up Option shall be payable in cash. Except as otherwise provided in Section 1.4(c) , the aggregate amount of cash payable to the Company in respect of the shares of Company Common Stock being purchased by Merger Sub pursuant to the Top-Up Option shall be determined by multiplying the number of such shares of Company Common Stock by the Offer Price.

  (c)    Notwithstanding anything to the contrary contained in Section 1.4(b) , in lieu of paying cash to the Company for any or all of the consideration for the shares of Company Common Stock being purchased pursuant to the Top-Up Option as described in Section 1.4(b) , Merger Sub may execute and deliver to the Company a promissory note guaranteed by Parent and having a principal amount equal to the amount of consideration not paid in cash. Any such promissory note shall bear interest at the rate of the one-year LIBOR rate in effect at the time of issuance of the note and shall mature on the first anniversary of the date of execution and delivery of such promissory note.

  (d)    In the event Merger Sub wishes to exercise the Top-Up Option, Merger Sub shall deliver to the Company a notice setting forth (i) the number of shares of Company Common Stock that Merger Sub intends to purchase pursuant to the Top-Up Option, (ii) the manner in which Merger Sub intends to pay the applicable exercise price and (iii) the place and time at which the closing of the purchase of such shares of Company Common Stock by Merger Sub is to take place. At the closing of the purchase of such shares of Company Common Stock, Merger Sub shall cause to be delivered to the Company the consideration required to be delivered in exchange for such shares, and the Company shall cause to be issued to Merger Sub a certificate representing such shares.

1.5    The Merger.   Upon the terms and subject to the conditions set forth in this Agreement and in accordance with the DGCL, Merger Sub shall be merged with and into the Company at the Effective Time. Following the Effective Time, the separate corporate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation in the Merger (the " Surviving Corporation ") and shall succeed to and assume all the rights and obligations of Merger Sub in accordance with the DGCL.

1.6    Closing.   The closing of the Merger (the " Closing ") will take place at 10:00 a.m. on a date to be specified by the parties (the " Closing Date "), which shall be no later than the second Business Day after satisfaction or waiver of the conditions set forth in Article 7 (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions), at the offices of Baker & McKenzie LLP, Dallas, Texas, unless another date or place is agreed to in writing by the parties hereto.

1.7    Effective Time.   Subject to the provisions of this Agreement, as soon as practicable on the Closing Date, the parties shall file a certificate of merger, or if the Merger is consummated pursuant to Section 253 of the DGCL, a certificate of ownership and merger (either such certificate, the " Certificate of Merger ") executed in accordance with the relevant provisions of the DGCL and shall make all other filings or recordings required under the DGCL. The Merger shall become effective at such time as the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware, or at such other time as Parent and the Company shall agree and shall specify in the Certificate of Merger (the time the Merger becomes effective being the " Effective Time ").

1.8    Effects of the Merger.   The Merger shall have the effects set forth in Section 2.1 below and in the DGCL (including in Section 259 of the DGCL).

1.9    Certificate of Incorporation and Bylaws.

• (a)    At the Effective Time, the Company Articles shall be amended so as to read in its entirety in the form annexed hereto as Annex II and, as so amended, shall be the Company Articles of the Surviving Corporation, until thereafter amended in accordance with its terms and applicable Law.

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• (b)    The Bylaws of the Merger Sub, as in effect immediately prior to the Effective Time, shall be the Bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law.

1.10    Directors.   The directors of Merger Sub immediately prior to the Effective Time shall be the directors of the Surviving Corporation, each of such directors to hold office, subject to the applicable provisions of the Certificate of Incorporation and Bylaws of the Surviving Corporation, until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as the case may be.

1.11    Officers.   The officers of the Merger Sub immediately prior to the Effective Time shall be the officers of the Surviving Corporation, such officers to hold office, subject to the applicable provisions of the Certificate of Incorporation and Bylaws of the Surviving Corporation, until the earlier of their resignation or removal or until their respective successors are duly elected and qualified, as the case may be.

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ARTICLE 2

EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS

2.1     Effect on Capital Stock. As of the Effective Time, by virtue of the Merger and without any action on the part of the holder of any shares of Company Common Stock or any shares of capital stock of Merger Sub:

• (a)     Common Stock of Merger Sub .  Each issued and outstanding share of common stock of Merger Sub shall be converted into and become 1,000,000 validly issued, fully paid and non-assessable shares of common stock, par value $.01 per share, of the Surviving Corporation with the same rights, powers and privileges as the shares so converted and shall constitute the only outstanding shares of capital stock of the Surviving Corporation.

  (b)     Cancellation of Stock .  Each share of Company Common Stock held by the Company as treasury stock (other than shares, if any, in any Employee Benefit Plans) or owned by Parent or any wholly-owned Subsidiaries of Parent or the Company immediately prior to the Effective Time shall automatically be canceled and retired and shall cease to exist and no payment shall be made with respect thereto.

  (c)     Company Common Stock; Determination of Merger Consideration .  Each share of Company Common Stock outstanding as of the Effective Time (other than the Dissent Shares and shares cancelled pursuant to Section 2.1(b) , by virtue of the Merger, shall automatically be canceled and converted into a right to receive the Offer Price in cash, without interest (the " Per Share Merger Consideration ," the aggregate amount in cash into which all shares of Company Common Stock may be converted pursuant to this Section 2.1 , the " Aggregate Merger Consideration ").

  (d)     Dissenters’ Rights .  Notwithstanding anything in this Agreement to the contrary, shares of Company Common Stock that are outstanding immediately prior to the Effective Time that are held by any Person who (i) is entitled to dissent from the Merger pursuant to Section 262 of the DGCL (the " Dissenters’ Rights Statute "), (ii) did not vote in favor of the Merger or consent thereto in writing and (iii) complies in all other respects with the Dissenters’ Rights Statute (such shares, " Dissent Shares ") shall not be converted into a right to receive the Per Share Merger Consideration as provided in Section 2.1(c) , but rather the holders of Dissent Shares shall be entitled to the right to receive payment of the fair value of such Dissent Shares in accordance with the Dissenters’ Rights Statute; provided , however , that if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to receive payment of the fair value under the Dissenters’ Rights Statute, then the right of such holder to be paid the fair value of such holder’s Dissent Shares shall cease and such Dissent Shares shall be deemed to have been converted as of the Effective Time into, and to have become exchangeable solely for, the right to receive the Per Share Merger Consideration, without interest, as provided in Section 2.1(c) . The Company shall give prompt notice to Parent of any written demands and any other instruments served pursuant to the Dissenters’ Rights Statute received by the Company relating to rights of appraisal under the Dissenters’ Rights Statute, and Parent shall have the right to direct all negotiations and proceedings with respect to such demands. Except with the prior written consent of Parent, the Company shall not make any payment with respect to, or offer to settle or settle, any such demands.

2.2     Payment to Company Stockholders.

• (a)    Prior to the Effective Time, Merger Sub shall designate a bank or trust company to act as agent (the " Exchange Agent ") for the purpose of exchanging for the merger consideration (i) certificates representing Company Common Stock (the " Certificates ") or (ii) uncertificated Company Common Stock (the " Uncertificated Shares "). At the Effective Time, Parent shall deposit with the Exchange Agent an amount in immediately available funds equal to the Aggregate Merger Consideration to be paid in respect of all of the Certificates and the Uncertificated Shares. Such funds shall be invested by the Exchange Agent as directed by Merger Sub or the Surviving Corporation pending payment thereof by the Exchange Agent to the holders of Certificates and Uncertificated Shares; provided that such investments shall be in obligations of or guaranteed by the United States of America or of any agency thereof and backed by the full faith and

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• 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 deposit accounts, certificates of deposit or banker’s acceptances of, repurchase or reverse repurchase agreements with, or Eurodollar time deposits purchased from, commercial banks with capital, surplus and undivided profits aggregating in excess of $500 million (based on the most recent financial statements of such bank which are then publicly available). Earnings from such investments shall be the sole and exclusive property of the Surviving Corporation, and no part of such earnings shall accrue to the benefit of holders of Certificates or Uncertificated Shares.

  (b)    Promptly after the Effective Time, Parent shall send, or shall cause the Exchange Agent to send, to each holder of Company Common Stock at the Effective Time a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent) for use in such exchange.

  (c)    Each holder of shares of Company Common Stock that have been converted into the right to receive the Per Share Merger Consideration shall be entitled to receive, upon (i) surrender to the Exchange Agent of a Certificate, together with a properly completed letter of transmittal or (ii) receipt of an "agent’s message" by the Exchange Agent (or such other evidence, if any, of transfer as the Exchange Agent may reasonably request) in the case of a book-entry transfer of Uncertificated Shares, the Per Share Merger Consideration, without interest, payable for each Company Common Share represented by a Certificate or for each Uncertificated Share. Until so surrendered or transferred, as the case may be, each such Certificate or Uncertificated Share shall represent after the Effective Time for all purposes only the right to receive such Per Share Merger Consideration.

  (d)    If any portion of the applicable Per Share Merger Consideration is to be paid to a Person other than the Person in whose name the surrendered Certificate or the transferred Uncertificated Share is registered, it shall be a condition to such payment that (i) either such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer or such Uncertificated Share shall be properly transferred and (ii) the Person requesting such payment shall pay to the Exchange Agent any transfer or other Taxes required as a result of such payment to a Person other than the registered holder of such Certificate or Uncertificated Share or establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not payable.

  (e)    After the Effective Time, there shall be no further registration of transfers of shares of Company Common Stock issued prior to the Effective Time. If, after the Effective Time, Certificates or Uncertificated Shares are presented to the Surviving Corporation, they shall be canceled and exchanged for the Per Share Merger Consideration provided for, and in accordance with the procedures set forth, in this Article 2 .

  (f)    Any portion of the Aggregate Merger Consideration deposited with the Exchange Agent pursuant to Section 2.2(a) (and any interest or other income earned thereon) that remains unclaimed by the holders of Company Common Stock six months after the Effective Time shall be returned to Parent, upon demand, and any such holder who has not exchanged such Company Common Stock for the Per Share Merger Consideration in accordance with this Section 2.2 prior to that time shall thereafter look only to Parent and the Surviving Corporation for payment of the Per Share Merger Consideration in respect of such Company Common Stock without any interest thereon. Notwithstanding the foregoing, Parent, the Surviving Corporation and the Exchange Agent shall not be liable to any holder of Company Common Stock for any amount paid to a public official pursuant to applicable abandoned property, escheat or similar Laws. Any amounts remaining unclaimed by holders of shares of Company Common Stock six years after the Effective Time (or such earlier date immediately prior to such time when the amounts would otherwise escheat to or become property of any Governmental Authority ) shall become, to the extent permitted by Law, the property of Parent, free and clear of any claims or interest of any Person previously entitled thereto.

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• (g)    Any portion of the Aggregate Merger Consideration deposited with the Exchange Agent pursuant to Section 2.2(a) to pay for Company Common Stock, for which dissenters’ rights have been perfected and have not been withdrawn or lost 30 days after the Effective Time, shall be returned to Parent, upon demand.

  (h)    Notwithstanding anything to the contrary contained herein, the Exchange Agent, Parent or the Company shall be entitled to deduct and withhold from the consideration otherwise payable (i) to any holder of shares of Company Common Stock pursuant to this Agreement, (ii) to any Person designated to receive Per Share Merger Consideration pursuant to Section 2.2(d) or (iii) to any Person pursuant to Section 2.3 hereof such amounts as may be required to be deducted and withheld with respect to the making of such payment under the Code and the rules and regulations promulgated thereunder, or under any provision of state, local or foreign tax Law. To the extent that amounts are so withheld and paid over to the appropriate taxing authority by the Exchange Agent, Parent or the Company, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Company Common Stock in respect of which such deduction and withholding was made.

2.3    Treatment of Stock Appreciation Rights, Restricted Stock and other Equity Awards.

• (a)    Upon the consummation of the Offer, each stock appreciation right outstanding under any equity, stock option or compensation plan or arrangement of the Company shall, with no action on the part of the Company or holder thereof, become fully vested. At or immediately prior to the Effective Time, the Company will cause any necessary action to be taken to cause each such stock appreciation right to be canceled and the Parent shall pay each holder of any such stock appreciation right, at the Effective Time, for each such stock appreciation right surrendered an amount in cash determined by multiplying (i) the excess, if any, of the Per Share Merger Consideration over the applicable Base Value, as defined in the Stock Appreciation Rights Agreement issued by the Company to the holder thereof by (ii) the number of shares of Company Common Stock represented by such stock appreciation rights, less any amounts required to be withheld under any applicable Law.

  (b)    Upon the consummation of the Offer, each share of Company Common Stock subject to restrictions on transfer and/or forfeiture, and each right to receive shares in the future based on performance or time including restricted stock, restricted stock units and performance shares, outstanding under any equity, stock option or compensation plan or arrangement of the Company (other than stock appreciation rights described in Section 2.3(a) ) shall, with no action on the part of the Company or holder thereof, become fully vested as specified in the applicable award, agreement or plan, in each case effective as of the date of this Agreement. At or immediately prior to the Effective Time, the Company will cause any necessary action to be taken to cause each such share or right to be canceled and converted into the right to receive the Per Share Merger Consideration, less any amounts required to be withheld under any applicable Law.

2.4     Adjustments. If, during the period between the date hereof and the Effective Time, any change in the outstanding Company Common Stock shall occur, including by reason of any reclassification, recapitalization, stock split or combination or exchange of Company Common Stock, or stock dividend thereon with a record date during such period or issuer tender or exchange offer or similar transaction (excluding any such change as a result of any exercise of options and stock appreciation rights outstanding as of the date hereof to purchase Company Common Stock or that is settled in shares of the Company’s Common Stock, as applicable, in each case granted under the Company’s equity, stock option or compensation plans or arrangements), the Per Share Merger Consideration and any other amounts payable pursuant to this Agreement shall be appropriately adjusted.

2.5     Lost Certificates. If any Certificate shall have 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 such reasonable amount as the Surviving Corporation may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent shall pay, in exchange for such lost, stolen or destroyed Certificate, the Per Share Merger Consideration to be paid in respect of the Company Common Stock represented by such Certificate, as contemplated by this Article 2 .

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ARTICLE 3

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company represents and warrants to Parent and Merger Sub that the statements contained in this Article 3 are true and correct, except as set forth in the disclosure schedule of the Company delivered to Parent by the Company prior to execution of this Agreement (the " Company Disclosure Schedule "). The Company Disclosure Schedule shall be arranged in sections and paragraphs corresponding to the numbered and lettered sections and paragraphs contained in this Article 3, and the disclosure in any section or paragraph shall qualify (a) the corresponding section or paragraph in this Article 3 and (b) the other sections and paragraphs in this Article 3 to the extent that it is reasonably apparent from a reading of such disclosure that it also qualifies or applies to such other sections and paragraphs:

3.1     Organization, Standing and Corporate Power.

• (a)    The Company is duly organized, validly existing and in good standing under the Laws of the jurisdiction in which it is incorporated or organized and has all requisite corporate or other power and authority to own, operate and lease its properties and to carry on its business as now being conducted.

  (b)    The Company is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership, leasing or operation of its properties makes such qualification or licensing necessary, other than in such jurisdictions where the failure to be so qualified or licensed, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.

  (c)    The Company has filed as exhibits to the Company SEC Reports filed prior to the date of this Agreement Company Articles and Company Bylaws, each as amended to the date hereof. There have been no amendments to the Certificate of Incorporation and Bylaws or other similar documents of each Subsidiary of the Company that had previously been made available to Parent since such time as they were made available to Parent.

3.2     Subsidiaries. Each Subsidiary of the Company is duly organized, validly existing and in good standing under the Laws of the jurisdiction in which it is incorporated or organized and has all requisite corporate or other power and authority to own, operate and lease its properties and to carry on its business as now being conducted, except where the failure to be so organized or have such power and authority or good standing would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. All the outstanding shares of capital stock of, or other equity interests in, each Subsidiary have been duly authorized, validly issued and are fully paid and nonassessable and are owned directly or indirectly by the Company free and clear of all pledges, claims, liens, charges, encumbrances or security interests (collectively, " Liens "), and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests, other than, in each case, as would not reasonably be expected to have a Company Material Adverse Effect. There are no stock appreciation rights, stock options, "phantom" stock, profit participation or similar rights outstanding with respect to the capital stock of any direct or indirect Subsidiary of the Company. The Company Disclosure Schedule sets forth a list of all entities which are required under GAAP to be included in the Company’s consolidated financial statements.

3.3     Capital Structure. The authorized capital stock of the Company consists of 900,000,000 shares of Company Common Stock and 100,000,000 shares of preferred stock, without par value (the " Company Preferred Stock "). As of December 3, 2006, (a) 51,024,977 shares of Company Common Stock (including the associated Series A Junior Participating Preferred Stock Purchase Rights) were issued and outstanding, (b) 75,716 shares of Company Common Stock were held by the Company in its treasury, (c) deferred stock units to acquire 7,936 shares of Company Common Stock were issued and outstanding under the Company’s Long-Term Incentive Plan, (d) stock-settled stock appreciation rights to acquire 680,586 shares of Company Common Stock were issued and outstanding granted pursuant to the Company’s Long Term Incentive Plan, (e) performance shares to

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acquire 477,870 shares of Company Common Stock were issued and outstanding granted pursuant to the Company’s Long Term Incentive Plan, (f) director stock units to acquire 7,936 shares of Company Common Stock, and (g) no shares of Company Preferred Stock were issued and outstanding. All outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any preemptive rights. Except for the Top-Up Option or as specified in the second sentence of this Section 3.3 , there are not issued, reserved for issuance or outstanding (A) any securities of the Company or any of its Subsidiaries convertible into or exchangeable or exercisable for shares of capital stock or voting securities of the Company or any of its Subsidiaries or (B) any warrants, calls, options, subscriptions or other rights, agreements or commitments to acquire from the Company or any of its Subsidiaries, or any obligation of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or voting securities of the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries (i) has any obligation to repurchase, redeem or otherwise acquire the securities described in the preceding sentence or to issue, deliver or sell, or cause to be issued, delivered or sold, any such securities or (ii) is a party to any voting agreement or proxy with respect to the voting of any such securities.

3.4     Authority; Noncontravention.

• (a)    The Company has all requisite corporate power and authority to execute and deliver this Agreement, perform its obligations hereunder and consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement have been duly authorized by all necessary corporate action, other than the Stockholder Approval (if the Merger is not consummated pursuant to Section 253 of the DGCL), on the part of the Company, and no other corporate proceedings, other than the Stockholder Approval (if the Merger is not consummated pursuant to Section 253 of the DGCL), on the part of the Company are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, solvency, fraudulent transfer, reorganization, moratorium and other Laws affecting creditors’ rights generally from time to time in effect). The Board of Directors of the Company, at a meeting duly called and held, duly adopted resolutions (i) approving and declaring advisable this Agreement, the Offer, the Merger and the other transactions contemplated by this Agreement, (ii) resolving that the adoption of this Agreement be submitted to the stockholders of the Company and (iii) recommending that the stockholders of the Company accept the Offer, tender their shares of Company Common Stock to Merger Sub pursuant to the Offer and adopt this Agreement (the " Company Board Recommendation "). The approval of this Agreement by the Board of Directors of the Company constitutes approval of this Agreement and the Merger for purposes of Section 203 of the DGCL (" Section 203 ") and represents the only action necessary to ensure that the restrictions of Section 203 do not apply to the execution and delivery of this Agreement, the transactions contemplated hereby or the consummation of the Merger. No "fair price," "moratorium," "control share acquisition," or other similar anti-takeover statute or regulation enacted under state or federal Law in the United States (with the exception of Section 203) applicable to the Company is applicable to the transactions contemplated by this Agreement. The affirmative vote of the holders of a majority of the outstanding Company Common Stock entitled to vote (the " Stockholder Approval ") is the only vote of the holders of any of the Company’s capital stock necessary in connection with the consummation of the Merger; provided , however , that the Stockholder Approval is not necessary in connection with the consummation of the Merger if the Merger is consummated pursuant to Section 253 of the DGCL.

  (b)    The execution and delivery of this Agreement do not, and the consummation of the Merger and the other transactions contemplated by this Agreement and compliance with the provisions of this Agreement will not, conflict with, require the consent, waiver, approval or authorization from any party to, or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, or

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• give rise to a right of termination, cancellation or acceleration of any obligation or to the loss of a benefit under, (i) the Company Governing Documents, (ii) any note, bond, mortgage, indenture, lease, license, permit, franchise, contract, agreement or other instrument to which the Company or any Subsidiary is a party or by which any of them or their respective properties or assets is bound or affected or (iii) subject to the Stockholder Approval and the governmental filings and other matters referred to in Section 3.5 hereof, any Law applicable to the Company or any of its Subsidiaries or their respective properties or other assets, other than, in the case of clause (ii), any such conflicts, consents, waivers, approvals, authorizations, violations, breaches, defaults, rights or losses that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.

  (c)    The Company has made available to Parent a complete and correct copy of the Company Rights Agreement, including all current and proposed amendments and exhibits thereto. The Company’s Board of Directors has approved an amendment (the " Rights Amendment ") to the Company Rights Agreement to provide that: (i) a Separation Time shall not occur, the Rights shall not separate (to the extent the Company Rights Agreement otherwise provides for such separation) or become exercisable, neither Parent nor Merger Sub, nor any Affiliate or Associate of Parent or Merger Sub, shall become an Acquiring Person, and a Stock Acquisition Date shall not be deemed to occur as a result of the execution, delivery or performance of this Agreement or any other transactions contemplated by this Agreement, the public announcement of such execution and delivery or, the public announcement or the commencement of the Offer or the consummation of the Offer and (ii) the Company Rights Agreement shall expire, and no Person shall have any rights pursuant to the Company Rights Agreement, after the consummation of the Offer in accordance with the terms thereof and the terms and conditions hereof, including the acceptance for payment of, and the payment for all shares of Company Common Stock tendered pursuant to the Offer. The Company shall, within one (1) day of the date of this Agreement, deliver a certificate to the Rights Agent that the Rights Amendment satisfies the terms of the first sentence of Section 5.4 of the Rights Agreement and the Rights Agent shall, and the Company shall cause the Rights Agent to, within one (1) day of the date of this Agreement, duly execute and deliver the Rights Amendment. Solely for purposes of this Section 3.4(c) , the terms "Rights Agent," "Separation Time," "Rights," "Affiliates," "Associates," "Stock Acquisition Date" and "Acquiring Person" shall have the meaning ascribed to them in the Company Rights Agreement.

3.5    Governmental Approvals and Consents.   No consent, waiver, approval, order, license or permit of, or authorization of, action by or in respect of, or registration, declaration or filing with or notification to, any federal, state, local or foreign government, any court, administrative, regulatory or other governmental agency, commission or authority or any non-governmental self-regulatory agency, commission or authority, whether federal, state, local or foreign (each, a " Governmental Authority ") is required with respect to the Company or any of its Subsidiaries in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the Merger or the other transactions contemplated by this Agreement, except for (a) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, (b) any consent, waiver, approval, order, license, permit, authorization, action, registration, declaration, filing or notification, the failure of which to obtain, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect and (c) any filings made or approvals received prior to the date hereof.

3.6    Company SEC Reports.

• (a)    Since June 1, 2004, the Company has filed all reports, schedules, forms, statements and other documents (including exhibits and other information incorporated therein) required to be filed by it with the SEC or Nasdaq (such documents, as they have been amended since the respective time of their filing, the " Company SEC Reports "). As of their respective dates, the Company SEC Reports complied in all material respects with the requirements of the Securities Act of 1933, as amended, the Exchange Act or the Laws of any such jurisdiction, as the case may be, and the rules and regulations promulgated thereunder applicable to such Company SEC Reports, and, as of their respective dates, or, if amended, the date of such amendment. None of the Company SEC Reports contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the

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• circumstances under which they were made, not misleading, provided that, if the Company amends any of the Company SEC Reports, the fact of the filing of such amendment shall not, in and of itself, be deemed to mean or imply that any representation or warranty in this Agreement was not true when made or became untrue thereafter. Except by reason of their serving as guarantors of the Notes, no Subsidiary is required to file any form, report or other document with the SEC.

  (b)    The financial statements of the Company included in the Company SEC Reports were prepared in accordance with generally accepted accounting principles in the United States (" GAAP "), as then in effect, applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto) and fairly presented in all material respects the financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments and any other adjustments described therein).

  (c)    Except as and to the extent set forth in the financial statements of the Company included in the Company SEC Reports that have been filed with the SEC prior to the date of this Agreement, neither the Company nor any Subsidiary has any liability or obligation of any nature (whether accrued, absolute, contingent or otherwise), except for liabilities and obligations (i) incurred in connection with the transactions contemplated hereby, (ii) incurred in the ordinary course of business and in a manner consistent with past practice since July 1, 2006, or (iii) that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

  (d)    The Company’s disclosure controls and procedures are reasonably designed to ensure that material information relating to the Company, including its Subsidiaries, is made known to the chief executive officer and the chief financial officer of the Company by others within those entities.

  (e)    Since December 14, 2005, the Company has not disclosed to the Company’s independent registered accounting firm and the audit committee of the Company’s Board of Directors (i) any significant deficiencies and material weaknesses in the design or operation of its internal control over financial reporting or (ii) 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.

  (f)    Since December 14, 2005, the Company has not identified any material weaknesses in the design or operation of its internal control over financial reporting. To the knowledge of the Company, there is no reason to believe that its auditors and its chief executive officer and chief financial officer will not be able to give the certifications and attestations required pursuant to the rules and regulations adopted pursuant to Section 404 of the Sarbanes-Oxley Act of 2002 when next due. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iii) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

  (g)    The Company has timely filed 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 applicable Company SEC Report.

  (h)    The Company has delivered to Parent a true and correct copy of its latest draft of the Annual Report on Form 10-K prepared to be filed with the SEC in respect of its latest fiscal year. To the best of the Company’s information and belief, such draft does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

3.7     Absence of Certain Changes or Events. Except for actions undertaken in connection with this Agreement and the transactions contemplated hereby, between July 1, 2006 and the date of this Agreement,

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(a) there have not been any events, circumstances or other occurrences that, individually or in the aggregate, have had a Company Material Adverse Effect and (b) none of the Company or any Subsidiary has taken any action that, if taken after the date hereof, would constitute a breach of any of the covenants set forth in Section 5.1 hereof (other than Section 5.1(k) hereof).

3.8     Employee Benefits.

• (a)    With respect to each Employee Benefit Plan, including multiemployer plans within the meaning of ERISA Section 3(37) and all stock purchase, stock option, equity compensation, severance, employment, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation and other material employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA, whether formal or informal, under which any Company employee has any present or future right to benefits, maintained or contributed to by the Company or any of its Subsidiaries or under which the Company or any of its Subsidiaries has any present or future liability, individually and in the aggregate, no event has occurred and there exists no condition or set of circumstances, in connection with which the Company or any of its Subsidiaries could be subject to any liability that would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect under ERISA, the Code or any other applicable Law and no nonexempt "prohibited transaction" (as such term is defined in Section 406 of ERISA and Section 4975 of the Code) or "accumulated funding deficiency" (as such term is defined in Section 302 of ERISA and Section 412 of the Code (whether or not waived)) has occurred with respect to any Employee Benefit Plan which would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

  (b)    There has been no amendment to, announcement by the Company or any of its Subsidiaries relating to, or change in employee participation or coverage under, any Employee Benefit Plan that would increase materially the annual expense of maintaining such plan above the level of the expense incurred therefor for the most recent fiscal year. No Employee Benefit Plan exists that could (i) result in the payment to any employee of any money or other property, (ii) accelerate or provide any other rights or benefits (including funding of compensation or benefits through a trust or otherwise) to any employee, or (iii) limit or restrict the ability of the Company or its Subsidiaries to merge, amend or terminate any Employee Benefit Plan, in each case, as a result of the execution of this Agreement or otherwise related in any way to the transactions contemplated by this Agreement; and no such payment would reasonably be expected to constitute a parachute payment within the meaning of Code Section 280G.

  (c)     Section 3.8(c) of the Company Disclosure Schedule sets forth a list of all material Employee Benefit Plans of the Company.

  (d)    All of the Company’s equity compensation awards, including without limitation stock appreciation rights, change in control grants, performance grants and restricted grants, have been granted in accordance with the terms of the applicable Employee Benefit Plan and applicable Law, with an exercise or grant price at least equal to the fair market value of the underlying share of Company Common Stock on the date of any such grant.

  (e)     Section 3.8(e)  of the Company Disclosure Schedule sets forth each Employee Benefit Plan under which as a result of the consummation of the transactions contemplated by this Agreement, either alone or in combination with another event, (i) any employee of the Company or its Subsidiaries may become entitled to severance pay or any other payment or (ii) any compensation due any such employee from the Company or its Subsidiaries may be increased or the time of payment or vesting may become accelerated. Except in the ordinary course of business consistent with past practice, since January 1, 2006, none of the Company or any Subsidiary has (i) granted to any director or executive officer of the Company (A) any increase in compensation, bonus or other benefits or (B) any increase in severance or termination pay, in each case except as required by any employment, severance or termination agreement in effect as of January 1, 2006, (ii) amended any provision of any Employee Benefit Plan or (iii) adopted or entered into any arrangement that would be an Employee Benefit Plan, except (A) to the extent required under the terms

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• of any agreements, trusts, plans, funds or other arrangements existing as of January 1, 2006 that are required or (B) to the extent required to comply with applicable Law.

3.9    Absence of Litigation.   Neither the Company nor any of its Subsidiaries is a party to any, and there are no pending or threatened, legal, administrative, arbitral or other material proceedings, claims, complaints, actions or governmental or regulatory investigations (an " Action ") of any nature against the Company or any of its Subsidiaries, except for any Action which has not had, or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Neither the Company, any of its Subsidiaries nor any of their businesses or properties are subject to or bound by any injunction, order, judgment, decree or regulatory restriction of any Governmental Authority specifically imposed upon the Company, any of its Subsidiaries, or their respective properties or assets, except for any injunction, order, judgment, decree or regulatory restriction which has not had, or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

3.10    Taxes.

• (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 true, correct and complete, except for Tax Returns as to which the failure to so file or be true, complete and correct would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect.

  (b)    The Company and its Subsidiaries have fully and timely paid all Taxes (whether or not shown to be due on the Tax Returns referred to in Section 3.10(a) ), except for Taxes being contested in good faith and for which adequate reserves have been established in accordance with GAAP and for Taxes as to which the failure to pay would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, and have made adequate provision in the applicable financial statements in accordance with GAAP for any material Tax that is not yet due and payable for all taxable periods, or portions thereof, ending on or before the date of this Agreement.

  (c)    No audit or other proceeding by any Governmental Authority is pending or threatened in writing with respect to any Taxes due from or with respect to the Company or any of its Subsidiaries, except for such audits and proceedings that would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.

  (d)    There are no Tax sharing agreements (or similar agreements) under which the Company or any of its Subsidiaries could be liable for the Tax liability of an entity that is neither the Company nor any of its Subsidiaries, except for such agreements that would not reasonably be expected to, individually or in the aggregate, have a Company Material Adverse Effect.

  (e)    Neither the Company nor any of its Subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code in the two years prior to the date of this Agreement.

  (f)    None of the Company or any of its Subsidiaries has entered into a "listed transaction" that has given rise to a disclosure obligation under Section 6011 of the Code and the Treasury Regulations promulgated thereunder and that has not been disclosed in the relevant Tax Return of the Company or relevant Subsidiary.

3.11    Compliance with Laws.

• (a)    The Company and each of its Subsidiaries is, and at all times since December 31, 2003, has been, in compliance with all Laws applicable to the Company, its Subsidiaries and their respective businesses and activities, except for such noncompliance that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

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• (b)    The Company and each Subsidiary of the Company has and maintains in full force and effect, and is in compliance with, all Permits and all orders from Governmental Authorities necessary for the Company and each Subsidiary to carry on their respective businesses as currently conducted, except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

3.12    Affiliate Transactions.   Except as disclosed in the Company SEC Reports filed prior to the date hereof, there are no transactions, or series of related transactions, agreements, arrangements or understandings, nor are there any currently proposed transactions, or series of related transactions, between the Company or any of its Subsidiaries, on the one hand, and the Company’s Affiliates (other than Company Subsidiaries), on the other hand, that would be required to be disclosed under Item 404 of Regulation S-K promulgated under the Securities Act or included in the Company’s consolidated financial statements.

3.13     Environmental Matters.

• (a)    Neither the Company nor any of its Subsidiaries nor any of their operations, properties and facilities has, to the knowledge of the Company, violated or has any liability under any Environmental Law or lacks any Permits, licenses or other approvals required of them under applicable Environmental Law or, to the knowledge of the Company, is violating any term or condition of any such Permit, license or approval, except as such violation, liability or failure to obtain would not, individually or in the aggregate, have a Company Material Adverse Effect.

  (b)    As of the date of this Agreement, neither the Company nor any of the Company’s Subsidiaries has received any written notice or report from any Third Party regarding any violation of or any liability under, any Environmental Law, with respect to their current or former operations, properties or facilities, except as such violation or liability would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect.

  (c)    As of the date of this Agreement, no Actions are pending or, to the knowledge of the Company or any of the Company’s Subsidiaries, threatened under any Environmental Law with respect to current or former operations, properties or facilities of the Company or any of the Company’s Subsidiaries, except for Actions which, if adversely determined, would not be reasonably expected, individually or in the aggregate, to have a Company Material Adverse Effect.

  (d)    Neither the Company nor any of the Company’s Subsidiaries has agreed to assume, undertake, or provide indemnification for any liability, including any obligation for any Response Action, of any other Third Party under any Environmental Law, except for Response Actions as would not, individually or in the aggregate, have a Company Material Adverse Effect.

  (e)    Neither the Company nor any of the Company’s Subsidiaries has treated, stored, disposed of, arranged for or permitted the disposal of, handled, or Released any substance, or owned or operated its business or any property or facility (and no such property or facility is, to the knowledge of the Company, currently contaminated by any such substance) in a manner that, to the knowledge of the Company, has given or would reasonably be expected to give rise to any Company Material Adverse Effect.

  (f)    Neither the Company nor any of the Company’s Subsidiaries has arranged for the disposal or treatment or for the transportation for disposal or treatment, of any substance at any off-site location in a manner that, to the knowledge of the Company, has given or would reasonably be expected to give rise to any Company Material Adverse Effect.

  (g)    Since January 1, 2004, no Response Action has been or is being conducted at, on, under or around any property currently or, to the knowledge of the Company, formerly owned by the Company or any of its Subsidiaries pursuant to any Environmental Law, except for such Response Action as would not be reasonably expected, individually or in the aggregate, to have a Company Material Adverse Effect.

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3.14     Brokers and Other Advisors. No broker, investment banker, financial advisor or other person, other than Merrill Lynch & Co. and Gleacher Partners LLC, the fees and expenses of which will be paid by the Company, is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Company. The Company has heretofore furnished to Parent a complete and correct copy of all agreements between the Company and Merrill Lynch & Co. and Gleacher Partners LLC pursuant to which such firms would be entitled to any payment relating to the transactions contemplated by this Agreement.

3.15     Fairness Opinions. Each of Merrill Lynch & Co. and Gleacher Partners LLC has delivered to the Board of Directors of the Company an oral opinion to the effect that, as of the date hereof, on the basis of and subject to the assumptions set forth therein, the consideration to be received by the holders of Company Common Stock (other than Parent, Merger Sub and their respective Affiliates) pursuant to each of the Offer and the Merger is fair to such holders of Company Common Stock from a financial point of view. The Company will promptly furnish to Parent a true and correct copy of each such opinion.

3.16     Information in the Offer Documents and the Schedule 14D-9. The information supplied by the Company expressly for inclusion in the Offer Documents will not contain