Common use of Company Action Clause in Contracts

Company Action. The Board, at a meeting duly called and held on June 10, 2008, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary are in the best interests of the Company and the Subsidiaries, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders of the Company to approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock.

Company Action. (a) The BoardCompany hereby approves and agrees to undertake the Offer and represents that its Board of Directors, at a meeting duly called and held on June 10April 26, 20081999, has unanimously (i) unanimously determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable are fair to the Company or any Subsidiary are and in the best interests interest of the Company and the SubsidiariesCompany's stockholders, (ii) approvedunanimously approved this Agreement, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party Stockholders Agreement and the Transactions applicable to Transactions, which approval satisfies in full the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations requirements of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of DGCL including Section 203 of the DGCL, and the Amended and Restated Certificate of Incorporation (ivthe "CERTIFICATE OF INCORPORATION") and the Amended and Restated By Laws (the "BY-LAWS") of the Company and (iii) subject to Section 6.04 (b), unanimously resolved to recommend acceptance of the Offer and approval and adoption of this Agreement and the Merger by its stockholders. The Company shall include a statement of such recommendation and approval in the Offer Documents. The Company represents that Bowex Xxxlxxxxx Xxxxxx & Xo. (the "ADVISOR") as financial advisors to the Company, has delivered to the Company's Board of Directors its written opinion that the cash consideration to be received in the Offer and the Merger by the holders of Shares (other than any holders of Shares who will retain Shares following consummation of the Offer and the Merger) is fair from a financial point of view to such holders. The Company has been advised that all of its directors and executive officers intend to tender their Shares pursuant to the Offer (except to the extent provided in the Stockholders Agreement). The Company agrees to, and has been authorized by the financial advisor to permit, subject to prior review and consent of the financial advisor (such consent not to be unreasonably withheld), the inclusion of the fairness opinion (or a reference thereto) in the Offer Documents. (b) The Company shall take all action as may be necessary to effect the Offer as contemplated by this Agreement, including, without limitation, promptly mailing the Offer Documents to the record holders and beneficial owners of the Shares. (c) References herein to the "FIDUCIARY DUTIES" of the members of the Board of Directors of the Company mean the fiduciary duties of such members to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders of the Company to approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockShares.

Company Action. (a) The BoardCompany hereby consents to the Offer and represents that its Board of Directors (the "Board of Directors"), at a meeting duly called and held on June 10, 2008held, has unanimously (i) unanimously determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger (as defined in Section 2.1), are fair to the Company or any Subsidiary are and in the best interests interest of the Company and the Subsidiariesits stockholders, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party unanimously approved this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in Offer and the Amendment Merger, which approvals are sufficient to render entirely inapplicable to the Certificate Offer and the Merger or Parent or Sub the provisions of IncorporationChapters 110C, the Amended 110D, 110E and Restated By-laws, the Amendment to the Certificate of Designations 110F of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock )Massachusetts General Laws, (iii) approved Purchaser taken such action as is necessary to exempt this Agreement, the purchase of Shares pursuant to the Offer, the Merger and its “affiliates” and “associates” the other transactions contemplated hereby from the provisions set forth in (each as defined in Section 203 x) Article 6 of the DGCLCompany's Restated Articles of Organization under the captions "Vote Required for Certain Business Combinations" and "Redemption of Shares" and (y) becoming “interested shareholders” within the meaning of Section 203 Article 11 of the DGCL, Company's Restated By-Laws and (iv) resolved to recommend acceptance of the Offer and approval and adoption of this Agreement and the Merger by its stockholders. NationsBanc Xxxxxxxxxx Securities LLC (the "Financial Advisor") has delivered to the Board of Directors its written opinion, subject to the qualifications and limitations stated therein, to the effect that the consideration to be received by the holders of the Shares pursuant to each of the Offer and the Merger, taken together, is fair to the holders of Shares from a financial point of view. The Company has been authorized by the Remaining Shares Financial Advisor to permit, subject to prior review and consent by the Financial Advisor (such consent not to be unreasonably withheld), the inclusion of the Preferred Stock fairness opinion (or a reference thereto) in the Offer Documents and the Schedule 14D-9 (as defined in paragraph (b) of this Section 1.2). The Company has been advised that they accept Xxxxxx Xxxxxxxx, President and Chief Executive Officer and a Director of the Tender Offer and tender their shares Company, has agreed, pursuant to the Tender Offerand Voting Agreement, dated the date of this Agreement, among Parent, Offeror and Xxxxxx Xxxxxxxx (v) resolved the "Tender and Voting Agreement"), to recommend to the holders tender all of the 12% Senior Notes that they accept the Exchange Offer and tender their notes Shares beneficially owned by him pursuant to the Exchange Offer and, to the Company's knowledge, all of its other directors and executive officers intend as of the date hereof to the extent of their beneficial ownership of Shares, to tender their Shares pursuant to the Offer. The Company will promptly furnish Parent with a list of its stockholders, mailing labels containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case as of the most recent practicable date, and will provide to Parent such additional information (viincluding, without limitation, updated lists of stockholders, mailing labels and lists of securities positions) resolved and such other assistance as Parent may reasonably request from time to recommend time in connection with the Offer and the Merger (including but not limited to communicating the Offer and the Merger to the stockholders record and beneficial holders of Shares). Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent, Offeror and their agents and advisors shall use the information contained in any such labels and listings only in connection with the Offer and the Merger and, if this Agreement shall be terminated pursuant to Article VIII hereof, shall deliver to the Company all copies and extracts of such information then in their possession or under their control. (b) On or prior to the date that the Offer is commenced, the Company will file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9, (together with any supplements or amendments thereto and including exhibits thereto, the "Schedule 14D-9") which shall contain the recommendations of the Board of Directors referred to in Section 1.2(a) of this Agreement. The Schedule 14D-9 will comply in all material respects with all applicable federal securities laws and any other applicable laws. The Company, Parent and Sub each agree to promptly correct 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. The Company will take all steps necessary to approve cause the Schedule 14D-9 as so corrected to be filed with the SEC and adopt to be disseminated to holders of Shares, in each case as and to the Transaction Agreements extent required by applicable federal securities laws and any other applicable laws. Parent, Sub and their counsel shall be given an opportunity to which review and comment on the Schedule 14D-9 and any amendments thereto prior to the filing thereof with the SEC; provided that the Company will attempt to give -------- Parent, Sub and their counsel as much time prior to filing to so review and comment as the Company believes is reasonably practicable under the circumstances. The Company will provide Parent and Sub and their counsel with any comments the Company or any Subsidiary is a party and its counsel may receive from the Transactions applicable SEC or its staff with respect to the Company or any Subsidiary, including Schedule 14D-9 promptly after the amendments set forth in the Amendment to the Certificate receipt of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocksuch comments.

Company Action. (a) The Company hereby approves of and -------------- consents to the Offer and the Merger and represents that (i) the Company Board, at a meeting duly called and held on June 10December 17, 20081995 (the "December 17 Meeting"), has (A) duly and unanimously adopted resolutions (ix) determined that the Transaction Agreements to which the Company or any Subsidiary is a party approving and adopting this Agreement and the Transactions applicable transactions contemplated hereby, (y) determining that this Agreement and the transactions contemplated hereby, including, without limitation, each of the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the stockholders of the Company and (z) recommending that the Subsidiaries, (ii) approved, adopted and declared advisable the Transaction Agreements to which stockholders of the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adoptadopt this Agreement, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (viB) resolved taken all other action necessary to recommend render Section 203 of the DGCL inapplicable to this Agreement, the Offer, the Merger, the Stock Option and Tender Agreement and any purchase of shares of Common Stock by Parent or Purchaser pursuant to this Agreement and the Stock Option and Tender Agreement; and (ii) Xxxxxx Brothers Inc. ("Xxxxxx") has rendered to the Company Board its opinion, that the consideration to be received by the holders of shares of Common Stock pursuant to each of the Offer and the Merger is fair to such holders from a financial point of view, and a complete and correct signed copy of such opinion promptly upon receipt will be delivered to Parent. The Company has been authorized by Xxxxxx, subject to prior review by such financial advisor, to permit such fairness opinion (or references thereto) to be included in the Offer Documents and in the Schedule 14D-9 (as defined in paragraph (b) of this Section 1.2) and the Proxy Statement (as defined in Section 6.1(c)) or the Information Statement (as defined in Section 2.2). Subject to the Company Board's fiduciary duty under applicable law and the provisions of this Agreement, the Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board described above. The Company has been advised by each of its directors that they intend to tender all shares of Common Stock beneficially owned by them to Purchaser pursuant to the Offer or, where applicable, otherwise sell such shares to Parent in accordance with the Stock Option and Tender Agreement. (b) As soon as reasonably practicable on or after the date the Offer is commenced, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (together with all amendments and supplements thereto, the "Schedule 14D-9") containing, subject to the Company Board's fiduciary duties under applicable law and the provisions of this Agreement, the recommendation of the Company Board described in Section 1.2(a) and shall mail the Schedule 14D-9 to the stockholders of the Company. The Company, Parent and Purchaser each agrees to correct promptly any information provided by it for use in the Schedule 14D-9 which shall have become false or misleading in any material respect, and the Company further agrees to approve take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and adopt disseminated to holders of shares of Common Stock, in each case as and to the Transaction Agreements extent required by applicable federal securities laws. Parent, Purchaser and their counsel shall be given an opportunity to which review and comment on the Schedule 14D-9 and any amendments thereto prior to the filing thereof with the SEC. The Company will provide Parent, Purchaser and their counsel with a copy of any written comments or telephonic notification of any oral comments the Company may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt thereof and will provide Parent, Purchaser and their counsel with a copy of any written responses and telephonic notification of any oral responses of the Company or any Subsidiary is a party its counsel. (c) The Company shall promptly furnish Purchaser with mailing labels containing the names and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate addresses of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate all record holders of Designations shares of Common Stock as of the Senior Preferred Stock most recent date reasonably practicable and the Amendment of those persons becoming record holders subsequent to the Certificate such date, together with copies of Designations all lists of the Junior Preferred Stockstockholders and security position listings and shall furnish Purchaser with such additional information, including, without limitation, updated lists of stockholders, security position listings and computer files (if any), and such other assistance as Parent, Purchaser or their agents may reasonably request.

Company Action. (a) The Company hereby approves of and consents to the Offer and represents that (i) the Board, at a meeting duly called and held on June 10February 21, 20082000 (the "February 21 Meeting"), has unanimously (iwith one director having recused himself) (A) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including, without limitation, each of the Offer and the Merger (the "Transactions"), are fair to the Company or any Subsidiary are and in the best interests of the Company holders of Shares, (B) approved and adopted this Agreement and the SubsidiariesTransactions, (iiC) approvedresolved to recommend, adopted and declared advisable subject to the Transaction Agreements to which conditions set forth herein, that the stockholders of the Company or any Subsidiary is a party accept the Offer and approve and adopt this Agreement and the Transactions applicable and (D) took all action necessary to render the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined limitations on business combinations contained in Section 203 of the DGCLDGCL inapplicable to this Agreement and the transactions contemplated hereby; (ii) becoming “interested shareholders” within Donaxxxxx, Xxfkxx & Xenrxxxx Xxxurities Corporation ("DLJ") has delivered to the meaning of Section 203 of Board a written opinion that the DGCL, (iv) resolved consideration to recommend to be received by the holders of the Remaining Shares pursuant to each of the Preferred Stock Offer and the Merger is fair to such holders from a financial point of view; and (iii) the Board, at the February 21 Meeting, determined upon receipt of the opinion referred to in clause (ii) of this sentence that the terms of the Offer (including the Per Share Amount) are fair to, and in the best interests of, the Company and the holders of Shares. The Company has been authorized by DLJ, subject to prior review by such financial advisor, to include such fairness opinion (or references thereto) in the Offer Documents and in the Schedule 14D-9 (as defined in paragraph (b) of this Section 2.2), the Proxy Statement and the Section 14(c) Information Statement (as defined in Section 4.7). Subject to the fiduciary duties of the Board under applicable law after taking into account the advice of the Company's outside legal counsel, the Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Board described above. The Company has been advised by each of its directors and executive officers that they accept the Tender Offer and intend either to tender their shares all Shares beneficially owned by them to Merger Sub pursuant to the Tender Offer, (v) resolved Offer or to recommend to the holders vote such Shares in favor of the 12% Senior Notes that they accept the Exchange Offer approval and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to adoption by the stockholders of the Company of this Agreement and the Transactions; provided, however, that such directors and executive officers shall have no obligation under this Agreement to approve so tender or vote their Shares if this Agreement is terminated. (b) As soon as reasonably practicable on the date of commencement of the Offer, the Company shall file with the Commission a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments and adopt supplements thereto, the Transaction Agreements "Schedule 14D-9") containing, subject only to the fiduciary duties of the Board under applicable law after taking into account the advice of the Company's outside legal counsel, the recommendation of the Board described in Section 2.2(a) and shall disseminate the Schedule 14D-9 to the extent required by Rule 14d-9 promulgated under the Exchange Act and any other applicable federal securities laws. The Company, Parent and Merger Sub agree to correct promptly any information provided by any of them for use in the Schedule 14D-9 which shall have become false or misleading, and the Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the Commission and disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent, Merger Sub and their counsel shall be given an opportunity to review and comment on the Schedule 14D-9 and any amendments thereto prior to the filing thereof with the Commission. The Company will provide Parent and Merger Sub and their counsel with a copy of any written comments or telephonic notification of any verbal comments the Company may receive from the Commission with respect to the Offer Documents promptly after the receipt thereof and will provide Parent and Merger Sub and their counsel with a copy of any written responses and telephonic notification of any verbal response of the Company or its counsel. (c) The Company shall promptly furnish Merger Sub with mailing labels containing the names and addresses of all record holders of Shares and with security position listings of Shares held in stock depositories, each as of the most recent date reasonably practicable, together with all other available listings and computer files containing names, addresses and security position listings of record holders and non-objecting beneficial owners of Shares as of the most recent date reasonably practicable. The Company shall furnish Merger Sub with such additional information, including, without limitation, updated listings and computer files of stockholders, mailing labels and security position listings, and such other assistance as Parent, Merger Sub or their agents may reasonably request. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any Subsidiary is a party other documents necessary to consummate the Offer or the Merger, Parent and Merger Sub shall hold in confidence the information contained in such labels, listings and files, shall use such information only in connection with the Offer and the Transactions applicable Merger, and, if this Agreement shall be terminated in accordance with Article VIII, shall deliver promptly to the Company or any Subsidiary, including the amendments set forth all copies of such information then in the Amendment their possession and shall certify in writing to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockCompany its compliance with this Section 2.2(c).

Company Action. (a) The BoardCompany hereby approves of and consents to the Offer and represents that its Board of Directors, at a meeting duly called and held on June 10, 2008held, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are advisable and are fair to the Company or any Subsidiary are and in the best interests of the Company and the SubsidiariesCompany's stockholders, (ii) approved, approved and adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made Merger, in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 requirements of the DGCL, and (iviii) resolved to recommend acceptance of the Offer and approval and adoption of this Agreement and the Merger by its stockholders. The Company further represents that Needham & Company, Inc. has delivered to the Company's Board of Dxxxxxxxs its written opinion that the consideration to be paid in the Offer and the Merger is fair to the holders of shares of Company Common Stock (other than Parent, Merger Sub or their affiliates) from a financial point of view. The Company will promptly furnish Parent with a list of its stockholders, mailing labels and any available listing or computer file containing the Remaining Shares names and addresses of all holders of shares of Company Common Stock and lists of securities positions of shares of Company Common Stock held in stock depositories, in each case true and correct as of the Preferred Stock that they accept most recent practicable date, and will provide to Parent such additional information (including updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Parent may reasonably request in connection with the Tender Offer. Subject to the requirements of applicable law and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent and Merger Sub and each of their respective affiliates and associates shall (a) hold in confidence the information contained in any of such labels and lists, (b) use such information only in connection with the Offer and tender their shares pursuant the Merger and (c) if the Agreement is terminated, promptly deliver to the Tender OfferCompany all copies of such information then in their possession. (b) As soon as reasonably practicable following the date hereof, (v) resolved the Company shall file with the SEC and disseminate to recommend holders of shares of Company Common Stock, in each case as and to the extent required by applicable federal securities laws, an amendment to the Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the "Schedule 14D-9") that shall reflect the recommendations of the Company's Board of Directors referred to above (subject to the right of the Company's Board of Directors to withdraw, amend or modify such recommendation in accordance with the terms of the Agreement). The Company, Parent and Merger Sub each agree promptly to correct 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. The Company 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 holders of the 12% Senior Notes that they accept the Exchange Offer shares of Company Common Stock, in each case as and tender their notes pursuant to the Exchange Offer, extent required by applicable federal securities laws. Parent and (vi) resolved its counsel shall be given a reasonable opportunity to recommend review and comment on the Schedule 14D-9 prior to its being filed with the SEC. The Company also agrees to provide Parent and its counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the stockholders Schedule 14D-9 promptly after the receipt of such comments and shall provide Parent and its counsel a reasonable opportunity to review and comment on the response of the Company to approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocksuch comments.

Company Action. (a) The Company hereby consents to the Offer and represents and warrants that (i) the Board, at a meeting duly called and held on June 10November 9, 20081998, by unanimous action has unanimously (iA) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable Transactions, including the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the Company and the Subsidiariesholders of Shares, (iiB) approved, approved and adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form provisions of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iiiS) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCLDelaware Law) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, and (ivC) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders of the Company to accept the Offer and approve and adopt this Agreement and the Transaction Agreements Merger, and (ii) Xxxxxxxxxxx Xxxxxxx & Co. Inc. ("WP&Co.") has delivered to which the Board its oral opinion (to be confirmed in writing promptly following execution of this Agreement) that, based on, and subject to, the various assumptions and qualifications set forth in such opinion, as of the date thereof, the consideration to be received by the holders of Shares pursuant to each of the Offer and the Merger is fair to the holders of Shares from a financial point of view. Unless the recommendation of the Board has been withdrawn in accordance with Section 6.5, the Company consents to the inclusion in the Offer Documents of the recommendation of the Board and the written opinion described in the immediately preceding sentence and agrees to request WP&Co. to consent to the inclusion of its written opinion in the offering documents forming a part of the Schedule 14D-9. (b) On the date of commencement of the Offer, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments and supplements thereto, the Schedule 14D-9") containing, unless the recommendation of the Board has been withdrawn in accordance with Section 6.5, the recommendation of the Board described in Section 1.5(a) and shall disseminate the Schedule 14D-9 to the extent required by Rule 14d-9 promulgated under the Exchange Act, and any other applicable federal securities laws. The Company will afford the Parent and its counsel a reasonable opportunity to review and comment on the Schedule 14D-9 and its exhibits prior to the filing thereof with the SEC or dissemination to stockholders of the Company. The Company will provide Parent and its counsel in writing any 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 thereof. The Company represents and warrants that Schedule 14D-9 will comply in all material respects with the Exchange Act and any Subsidiary other applicable laws and will contain (or will be amended in a timely manner so as to contain) all information which is a party required to be included therein in accordance with the Exchange Act and the Transactions rules and regulations thereunder and other applicable laws. The Company, Parent and Purchaser agree to correct promptly any information provided by any of them for use in the Schedule 14D-9 which has or shall have become false or misleading, 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 disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. (c) The Company shall promptly furnish Purchaser with mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and with security position listings of Shares held in stock depositories, each as of a recent date, and furnish Purchaser with such information and assistance as Purchaser or its agents may reasonably request in communicating the Offer to the holders of Shares. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent and Purchaser shall hold in strict confidence the information contained in such labels, listings and files, shall use such information only in connection with the Offer and the Merger, and, if this Agreement shall be terminated in accordance with Section 8.1, shall promptly deliver to the Company or any Subsidiary, including the amendments set forth all copies of such information then in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocktheir possession.

Company Action. (a) The Company hereby approves and consents to the Offer and represents that its Board of Directors (the “Company Board”), at a meeting duly called and held on June 10, 2008held, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to transactions contemplated hereby, including the Company or any Subsidiary Offer and the Merger, are advisable and are in the best interests interest of the Company and the SubsidiariesCompany’s shareholders, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party approved this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in Offer and the Amendment to Merger, and the Certificate of IncorporationShareholder Agreements and the transactions contemplated thereby, such that the Offer, the Amended and Restated By-lawsMerger, the Amendment to the Certificate of Designations of the Senior Preferred Stock this Agreement and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval other transactions contemplated hereby and adoption having been made in accordance with the DGCL, thereby are not and shall not be subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve state takeover statutes, and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend acceptance of the Offer and, to the extent required by applicable law, approval and adoption of this Agreement and the Merger by the Company’s shareholders (the recommendations referred to in this clause (iii) are collectively referred to in this Agreement as the “Company Recommendation”). The Company further represents that Gxxxxxx Sachs & Co. has rendered to the Company Board its opinion that the $31.00 in cash to be received by the holders of Shares in the Remaining Shares of the Preferred Stock that they accept the Tender Offer and the Merger is fair from a financial point of view to such holders. The Company has been advised that all of its directors and executive officers presently intend to tender their shares Shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Shareholder Agreements. The Company will promptly furnish Parent and Merger Sub with a list of its shareholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case as of the most recent practicable date, engage a third party solicitor on customary terms for the purpose of contacting all record holders of Shares regarding the Offer and provide to Parent and Merger Sub such additional information (including, without limitation, updated lists of shareholders, mailing labels and lists of securities positions) and such other assistance as Parent or Merger Sub may reasonably request in connection with the Offer. (b) As soon as practicable on the day that the Offer is commenced, the Company will file with the SEC and disseminate to holders of Shares a Solicitation/Recommendation Statement on Schedule 14D-9 (vithe “Schedule 14D-9”) resolved which shall reflect the Company Recommendation. The Company, Parent and Merger Sub each agree promptly to recommend correct any information provided by it for use in the Schedule 14D-9 if and to the stockholders extent that it contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading. The Company agrees to approve take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and adopt the Transaction Agreements to which the Company or any Subsidiary is a party be disseminated to holders of Shares, in each case as and the Transactions applicable to the Company or any Subsidiary, including extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the amendments set forth in Schedule 14D-9 before it is filed with the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockSEC.

Company Action. (a) The Company hereby approves of and consents to the Offer and the Merger and represents and warrants that the Board, including all of the independent directors of the Company, at a meeting duly called and held on June 10October 12, 20082000, has, subject to the terms and conditions set forth herein, adopted resolutions, which are not conditional and have not been amended or repealed, pursuant to which the Board has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to transactions contemplated hereby, including the Company or any Subsidiary Offer and the Merger, are fair to, and in the best interests of, the stockholders of the Company and the SubsidiariesCompany, (ii) approved, adopted declared that the Merger is advisable and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party approved this Agreement and the Transactions transactions contemplated hereby, including the Offer and the Merger, in all respects and such approval constitutes prior approval of the Offer, this Agreement and the Merger for purposes of Section 3-105(b) of the Maryland General Corporation Law (the "MGCL") and similar provisions of any other similar state statutes that might be deemed applicable to the transactions contemplated hereby, (iii) recommended that the stockholders of the Company or any Subsidiaryaccept the Offer, including tender their Shares thereunder to Acquisition and, if required by law, approve and adopt this Agreement and the amendments set forth Merger; and in addition that the Company consents, subject to Section 5.4, to the inclusion of such recommendation and approval in the Amendment Offer Documents, (iv) agreed to take all actions to amend the Option Plans in the manner contemplated by this Agreement, (v) caused the transactions contemplated by this Agreement not to be governed by the provisions of Subtitles 6 and 7 of Title 3 of the MGCL, and (v) approved the Option Agreement (as hereinafter defined), authorized the classification of the Series B Preferred Stock (as hereinafter defined), the filing of Articles Supplementary with respect to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Series B Preferred Stock and the Amendment issuance of the Series B Preferred Stock to Acquisition upon exercise of the Option in the manner described in the Option Agreement. (b) The Company hereby agrees to file with the SEC as soon as practicable after the date hereof a Solicitation/Recommendation Statement on Schedule 14D-9 pertaining to the Certificate of Designations of the Junior Preferred Stock Offer (such approval and adoption having been made in accordance together with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicableamendments thereof or supplements thereto, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock "Schedule 14D-9"), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined containing the recommendation described in Section 203 of 1.2(a) and to promptly mail the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend Schedule 14D-9 to the stockholders of the Company. The Company, Parent and Acquisition each agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to approve take all steps necessary to cause the Schedule 14D-9 as so corrected to be promptly filed with the SEC and adopt disseminated to the Transaction Agreements holders of Shares, in each case as and to the extent required by applicable federal securities laws and the rules and regulations of the SEC. The Parent, Acquisition and their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 prior to it being filed with the SEC. The Company agrees to provide to Parent, Acquisition and their counsel any comments or other communications which the Company or its counsel receives from the staff of the SEC with respect to the Schedule 14D-9 promptly after receipt thereof. Notwithstanding anything to the contrary in this Agreement, the Board may withdraw, modify or amend its recommendation under the circumstances set forth in Section 5.4. (c) In connection with the Offer, the Company will promptly furnish Parent and Acquisition with mailing labels, security position listings and any Subsidiary is available listing or computer files containing the names and addresses of the record holders of the Shares as of a party recent date and shall furnish Acquisition with such additional information and assistance (including, without limitation, updated lists of stockholders, mailing labels and lists of securities positions) as Acquisition or its agents may reasonably request to facilitate communicating the Offer to the record and beneficial holders of Shares. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Acquisition and their affiliates, associates, agents and advisors shall use the information contained in any such labels, listings and files only in connection with the Offer and the Transactions applicable Merger, and, if this Agreement shall be terminated, will deliver to the Company or any Subsidiaryall copies of such information then in their possession. (d) Immediately prior to Acquisition's commencement of the Offer, including the amendments set forth Company shall grant Acquisition an option (the "Option") to purchase from the Company authorized but unissued shares of Series B Preferred Stock pursuant to an option agreement substantially in the Amendment form attached as Exhibit B to this Agreement (the "Option Agreement"); provided, however, that the exercise of the Option shall be subject to the Certificate approval of Incorporationthe stockholders of the Company if counsel to the Company reasonably determines that such approval is required as a condition of the continued listing of the Shares on the Nasdaq National Market at any time prior to Acquisition's exercise of the Option. The Series B Preferred Stock shall be entitled to vote together with the Shares as a single class on the Merger and any other matter to be voted upon by the Shares and shall entitle each holder of the Series B Preferred Stock to 1,000 votes for each share of Series B Preferred Stock held. The Option Agreement shall grant Acquisition the right to purchase that number of shares of Series B Preferred Stock that will cause Acquisition to own shares of the Company's capital stock representing at least ninety percent (90%) of the total number of votes entitled to vote on the Merger immediately following the exercise of the Option. The Option shall be exercisable only when and if Acquisition has, pursuant to the Offer, purchased and paid for a sufficient number of Shares to satisfy the Minimum Condition. The Option shall terminate and expire, if not previously exercised, simultaneously with the earlier of (i) Acquisition's termination of the Offer without having purchased and paid for a sufficient number of Shares to satisfy the Minimum Condition or (ii) termination of this Agreement in accordance with Section 8.1. The exercise price of the Option shall be $2,500,000 for all of the shares of Series B Preferred Stock to be purchased. (e) In order to enable Acquisition's exercise of the Option, immediately after Acquisition has, pursuant to the Offer, purchased and paid for a sufficient number of Shares to satisfy the Minimum Condition, the Amended Company shall file Articles Supplementary with the SDAT containing the rights, preferences and Restated By-laws, the Amendment to the Certificate of Designations powers of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Series B Preferred Stock.

Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Board, at a meeting duly called and held on June 10February 28, 20081999, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger are fair to the Company or any Subsidiary are and in the best interests of the Company and stockholders of the SubsidiariesCompany, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party approved this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of IncorporationOffer, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Merger and the Amendment to transactions contemplated by the Certificate of Designations of the Junior Preferred Stock (such approval Stockholder Agreement and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined recommended in satisfaction of all applicable requirements for Board action under Section 203 251 of the DGCL) becoming “interested shareholders” within Delaware Law in order for the meaning of Section 203 Merger to be validly approved that the stockholders of the DGCLCompany accept the offer, tender their Shares thereunder and, to the extent required by applicable law, approve and adopt this Agreement and the Merger. The Company further represents and warrants that each of Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx Xxxxx Barney Inc. (ivcollectively, the "Company's Financial -------------------- Advisors") resolved has delivered to recommend the Board its opinion dated as of February 28, --------- 1999 to the effect that, as of such date, the consideration to be received by the holders of Shares (other than Parent and its affiliates) pursuant to this Agreement and Plan of Merger is fair to such holders from a financial point of view (the Remaining Shares "Fairness Opinions"). As of the Preferred Stock that they accept date hereof, the Tender Offer and tender Company ----------------- has been authorized by the Company's Financial Advisors to permit the inclusion of the Fairness Opinions in their shares pursuant entirety or reference thereto (subject to the Tender OfferCompany's Financial Advisors prior approval of any such reference) in the Offer to Purchase, (v) resolved the Schedule 14D-9, the Proxy Statement or any other document required to recommend be distributed to the Company's stockholders referred to below. The Company hereby consents to the inclusion in the Offer Documents of the recommendations of the Board described in this Section 1.2(a). (b) The Company shall file with the SEC and mail to holders of Shares a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the 12% Senior Notes that they accept "Schedule 14D-9") containing the Exchange Offer and tender their notes pursuant to the Exchange Offer-------------- recommendations described in Section 1.2(a), and (vi) resolved to recommend shall mail the Schedule 14D-9 to the stockholders of the Company promptly after the commencement of the Offer. Such Schedule 14D-9 shall be filed on the same date as the Schedule 14D-1 is filed and mailed together with the Offer Documents. The Schedule 14D-9 will comply in all material respects with the provisions of applicable federal securities laws. Subject to approve Section 6.9(d), the Schedule 14D-9 shall at all times contain the determinations, approvals and adopt recommendations described in Section 1.2(a). Parent, Acquisition Sub and the Transaction Agreements Company each agrees promptly to correct 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 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 holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent, Acquisition Sub and their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 prior to its filing with the SEC and shall be provided with any comments the Company and 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 Acquisition Sub agree to provide such information necessary for the preparation of the exhibits and schedules to the Schedule 14D-9 which the Company shall reasonably request. (c) In connection with the Offer, the Company will promptly furnish Acquisition Sub with mailing labels, security position listings and any available listing or computer file containing the names and addresses of the record holders of the Shares as of a recent date and shall furnish Acquisition Sub with such additional information and assistance (including, without limitation, updated lists of stockholders, mailing labels and lists of securities positions) as Acquisition Sub or its agents may reasonably request in communicating the Offer to the record and beneficial holders of Shares. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any Subsidiary is a party other documents necessary to consummate the Merger, Acquisition Sub and its affiliates and associates shall hold in confidence the Transactions applicable information contained in such labels, listings and files, will use such information only in connection with the Offer or the Merger, and, if this Agreement shall be terminated, will promptly deliver to the Company or any Subsidiary, including the amendments set forth all copies of such information then in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocktheir possession.

Company Action. (a) The BoardCompany hereby approves and consents to the Offer and the Merger and represents and warrants that (i) the Board of Directors of the Company, at a meeting duly called and held on June 10, 2008prior to the date of this Agreement, has unanimously (iA) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, and the consideration to be received by the Company or any Subsidiary holders of Shares thereby, are fair to and in the best interests of such holders, (B) authorized, approved and adopted this Agreement and approved the Company Offer, the Merger and the Subsidiariestransactions contemplated by this Agreement, and (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (ivC) resolved to recommend that the stockholders of the Company accept the Offer, tender their Shares pursuant to the Offer, approve and adopt this Agreement and approve the Merger and the transactions contemplated hereby (provided, however, that subject to the provisions of Section 6.4, such recommendation may be withdrawn, modified or amended whether or not in connection with a termination of this Agreement under Section 8.1 hereof), and (ii) Bear, Sxxxxxx & Co. Inc., the Company’s financial advisor, has rendered to the Board of Directors of the Company its written opinion to the effect that the consideration to be received by the holders of the Remaining Shares Shares, pursuant to each of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant the Merger is fair to such holders of Shares from a financial point of view, subject to the Tender Offer, (v) resolved to recommend assumptions and qualifications contained in such opinion. The Company hereby consents to the holders inclusion in the Offer Documents of the 12% Senior Notes that they accept recommendation of the Board of Directors of the Company described in this Section 1.2(a). (b) The Company shall file with the SEC, concurrently with the filing by Parent and Purchaser of the Schedule TO, a Solicitation/Recommendation Statement on Schedule 14D-9 under the Exchange Offer and tender their notes pursuant Act, relating to the Exchange OfferOffer (together with all exhibits, amendments and supplements thereto, the “Schedule 14D-9”), and (vi) resolved cause such Schedule 14D-9 to recommend be mailed to the stockholders of the Company, which shall contain the recommendation of the Board of Directors of the Company described in Section 1.2(a), the opinion of Bear, Sxxxxxx & Co. Inc. and the information required pursuant to approve Section 14(f) of the Exchange Act and adopt Rule 14f-1 thereunder, and shall disseminate the Transaction Agreements Schedule 14D-9 as required by Rule 14D-9 under the Exchange Act, provided that, such recommendation by the Board of Directors of the Company need not be made, or, if previously made, may be withdrawn, modified or amended to which the extent that the Board of Directors of the Company shall have determined, in good faith after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with the fiduciary duties of the Company’s directors under applicable law. Parent and Purchaser each will supply to the Company any information with respect to itself and its officers, directors and affiliates required to be provided in the Schedule 14D-9. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 prior to its filing with the SEC or dissemination to the stockholders of the Company. The Company agrees to provide Purchaser and its counsel with any comments, oral or written, the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt thereof and shall provide Parent and its counsel an opportunity to participate in the response of the Company to such comments, including by participating with the Company and its counsel in any Subsidiary is a party discussions with the SEC or its staff. The Company represents and warrants that the Schedule 14D-9 will, on the date filed with the SEC and on the date first published, sent or given to the Company’s stockholders, comply in all material respects with all provisions of applicable federal securities laws and the Transactions rules and regulations promulgated thereunder and shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation is made by the Company with respect to information supplied by Parent or Purchaser in writing for inclusion in the Schedule 14D-9. The Company, Parent and Purchaser agree promptly to correct any information provided by any of them for use in the Schedule 14D-9 that shall be or has become false or misleading in any material aspect, 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 disseminated to the holders of Shares, in each case as and to the extent required by applicable federal securities laws. (c) The Company shall promptly furnish Purchaser with mailing labels and any available listing or computer files containing the names and addresses of all record holders of Shares and security position listings of Shares held in stock depositories, each of the most recent practicable date, and shall promptly furnish Purchaser with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other customary assistance as Parent, Purchaser or their directors, officers, employees, counsel, accountants, financial advisors (including investment bankers), agents and other authorized representatives (each a “Representative” and collectively, “Representatives”) may reasonably request in connection with communicating the Offer, the Offer Documents and any amendments or supplements thereto to the Company’s stockholders. Subject to the requirements of applicable laws and except for such actions as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent and Purchaser, and their Representatives shall hold in confidence the information contained in any of such labels and listings and, if this Agreement shall be terminated, will promptly deliver to the Company all copies, extracts, or any Subsidiary, including the amendments set forth summaries of such information then in their possession or control or in the Amendment to the Certificate possession of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocktheir Representatives.

Company Action. (a) The BoardCompany hereby approves of and consents to the Offer and represents and warrants that: (i) its Board of Directors, at a meeting duly called and held on June 10November 21, 20081997, has unanimously (iA) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including each of the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the Company holders of Shares, (B) approved this Agreement, the Offer and the SubsidiariesMerger, (ii) approvedthe Equity Contribution, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party Debt Offer and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” Financing (each as defined in Section 203 of hereinafter defined) and the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, other transactions contemplated hereby and (ivC) resolved to recommend that the shareholders of the Company accept the Offer, tender their Shares to Purchaser thereunder and approve this Agreement, the Merger and the other transactions contemplated hereby; and (ii) Credit Suisse First Boston Corporation (the "Financial Adviser") has delivered to the Board of Directors of the Company its opinion that the consideration to be received by holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer and the Merger is fair to such holders from a financial point of view. The Company will promptly provide Purchaser with a true and complete written copy of such fairness opinion and has been authorized by the Financial Adviser to permit the inclusion of such fairness opinion (and, subject to prior review and consent by such Financial Adviser, a reference thereto) in the Offer Documents and in the Schedule 14D-9 referred to below and the Proxy Statement referred to in Section 3.12. The Company hereby consents to the inclusion in the Offer Documents of the recommendations of the Company's Board of Directors described in this Section 1.2(a). (b) The Company shall file with the SEC, contemporaneously with the commencement of the Offer pursuant to Section 1.1, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments and supplements thereto, the "Schedule 14D-9") containing the recommendations of the Company's Board of Directors described in Section 1.2(a)(i) and shall promptly mail the Schedule 14D-9 to the shareholders of the Company. The Company and Purchaser each agrees promptly to correct any information provided by it for use in the Schedule 14D-9 that 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 disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. (c) In connection with the Offer, if requested by Purchaser, the Company shall promptly furnish Purchaser with mailing labels, security position listings, any non-objecting beneficial owner lists and any available listings or computer files containing the names and addresses of the record holders of Shares, each as of a recent date, and shall promptly furnish Purchaser with such additional information (vincluding but not limited to updated lists of shareholders, mailing labels, security position listings and non-objecting beneficial owner lists) resolved to recommend and such other assistance as Purchaser or its agents may reasonably require in communicating the Offer to the record and beneficial holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders of the Company to approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockShares.

Company Action. (a) The Company hereby consents to the Offer and represents that the Company Board, at a meeting duly called and held and acting on June 10, 2008the unanimous recommendation of a special committee of the Company Board comprised entirely of independent directors (the “Transaction Committee”), has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the Company and the SubsidiariesCompany’s stockholders, (ii) approved, approved and adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made Merger, in accordance with the DGCL, requirements of Delaware Law and (iii) subject to Section 7.04(b), resolved to recommend acceptance of the Offer and approval and adoption of this Agreement and the Merger by its stockholders. The Company has been advised that all of its directors and executive officers who own Shares intend to tender their Shares pursuant to the Offer either prior to the Initial Expiration Date or prior to the expiration date of the Subsequent Offering Period, if any. The Company shall promptly furnish Parent with an updated list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case as of the most recent practicable date, and shall provide to Parent such additional Board approvals information (including updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Parent may be necessary reasonably request in connection with Section 7.13 to approve the Offer. (b) As promptly as practicable (and, in any event, not later than the later of (i) the third Business Day following the date hereof and adopt, if applicable(ii) the date the Schedule TO Amendment is filed with the SEC), the Company shall file with the SEC an amendment reflecting the Company Board’s recommendation that the Company’s stockholders accept the Offer, the Company Board’s approval of this Agreement and otherwise reflecting the terms and conditions of this Agreement (the “Schedule 14D-9 Amendment”) to its Solicitation/Recommendation Statement on Schedule 14D-9 originally filed on June 12, 2003, with respect to the Offer, including (if Parent shall have theretofore provided the information required by the final form sentence of Certificate of Designations of Series B-1 Preferred Stock Section 2.03(b)) an Information Statement (such Schedule 14D-9, as amended or supplemented from time to time, the “Schedule 14D-9”), and shall mail the Schedule 14D-9 Amendment and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend Information Statement to the holders of the Remaining Shares Shares. Each of the Preferred Stock that they accept Company, Parent and Merger Subsidiary shall promptly correct any information provided by it for use in the Tender Offer Schedule 14D-9 (including the Information Statement) if and tender their shares pursuant to the Tender Offerextent that such information shall have become false or misleading in any material respect, and the Company shall take all steps necessary to amend or supplement the Schedule 14D-9 (vincluding the Information Statement) resolved and to recommend cause the Schedule 14D-9 (including the Information Statement) as so amended or supplemented to be filed with the SEC and disseminated to the holders of the 12% Senior Notes that they accept the Exchange Offer Company’s stockholders, in each case as and tender their notes pursuant to the Exchange Offerextent required by applicable federal securities laws. The Company shall provide Parent and its counsel in writing with any comments or other communications, and (vi) resolved to recommend to the stockholders of the Company to approve and adopt the Transaction Agreements to which whether written or oral, that the Company or any Subsidiary is a party and its counsel may receive after the Transactions applicable date of this Agreement from the SEC or its staff with respect to the Company Schedule 14D-9 or any Subsidiary, including the amendments set forth in Information Statement promptly after the Amendment to the Certificate receipt of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocksuch comments or other communications.

Company Action. (a) The BoardCompany hereby approves of and consents to the Offer and represents and warrants that the Company Board of Directors, at a meeting duly called and held on June 10February 11, 20082002, has unanimously (i) determined that this Agreement, the Transaction Agreements to which Offer, the Company or any Subsidiary is a party Merger and the Transactions applicable to the Company or any Subsidiary other transactions contemplated hereby, taken together, are at a price and on terms fair to, advisable and in the best interests of the Company and the Subsidiaries, Company Stockholders; (ii) approved, adopted and declared advisable the Transaction Agreements voted to which the Company or any Subsidiary is a party (A) approve this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth Merger, and (B) recommend acceptance and approval by the Company Stockholders of this Agreement, the Offer, the Merger and the other transactions contemplated hereby and by the Transaction Documents and that such holders tender their Company Common Shares in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), Offer; (iii) approved Purchaser took all other action necessary and its “affiliates” advisable to render the Company Rights Agreement inapplicable to the Transaction Documents, the Offer and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCLMerger, (iv) resolved to recommend without any payment to the holders of the Remaining Shares Rights; and (iv) took all actions necessary and advisable to render inapplicable to each of the Preferred Stock transactions contemplated by the Transaction Documents the provisions of any Antitakeover Laws. Subject to Section 6.4(c), the Company consents to the inclusion of such recommendations and approvals in the Offer Documents. The Company shall not withdraw, modify or fail to reaffirm such recommendations and approvals in any manner inconsistent with Section 6.4(c). The Company hereby represents and warrants that the Independent Advisor has delivered to the Company Board of Directors its written Fairness Opinion that, subject to the various assumptions and qualifications set forth therein, as of the date of the Fairness Opinion, the consideration to be received by the Company Stockholders pursuant to this Agreement, the Offer and the Merger is fair from a financial point of view to such holders (other than Parent and its affiliates). The Company has been authorized by the Independent Advisor to permit, subject to the prior review and consent of the Independent Advisor and its counsel (such consent not to be unreasonably withheld), the inclusion of the Fairness Opinion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement. The Company represents and warrants that it has been advised by each of its directors and executive officers that they accept the Tender Offer and intend to tender their shares all Company Common Shares beneficially owned by them to Merger Sub pursuant to the Tender Offer. (b) The Company hereby agrees to file with the SEC, concurrently with the filing by Parent and Merger Sub of the Schedule TO with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any and all amendments, supplements and exhibits thereto, the "Schedule 14D-9") that will (i) comply in all material respects with the provisions of all applicable federal securities laws, (ii) reflect the recommendations and actions of the Company Board of Directors referred to in Section 1.2(a) and (iii) include the Fairness Opinion, in each case subject to Section 6.4(c). The Company agrees to include such Schedule 14D-9 in the mailing of the Offer Documents by Merger Sub to the Company Stockholders promptly after the commencement of the Offer. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and Parent and Merger Sub, with respect to information supplied by them specifically for use in the Schedule 14D-9, shall promptly notify the Company and its counsel of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (and Parent and Merger Sub shall supplement the information provided by them specifically for use in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein that are based on such provided information, in light of the circumstances under which they were made, not misleading), and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected or supplemented, to be filed with the SEC and disseminated to the Company Stockholders, to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC or disseminated to the Company Stockholders. The Company shall provide Parent and its counsel copies of any written comments and telephone notification of any oral comments that the Company or its counsel receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. The Company shall use its commercially reasonable efforts to respond to such comments promptly, and shall provide Parent and its counsel copies of any written responses and telephonic notification of any verbal responses by the Company or its counsel to the SEC or its staff. (c) In connection with the Offer, the Company shall promptly, or cause its transfer agent to promptly, following execution of this Agreement furnish Merger Sub with mailing labels containing the names and addressees of all record Company Stockholders, a non-objecting beneficial owners list and security position listings of Company Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Merger Sub with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Merger Sub or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial Company Stockholders. Subject to the requirements of applicable Law, and except for such steps as are appropriate to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, Merger Sub and their Affiliates, agents and advisors shall hold in confidence, and use only in connection with the Offer and the Merger, the information contained in any such labels, listings and files, and, if this Agreement shall be terminated, will promptly deliver to the Company all copies of such information then in their possession. (d) Promptly following the acceptance for payment and payment for Company Common Shares by Merger Sub pursuant to the Offer, and from time to time thereafter, Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number, on the Company Board of Directors as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board of Directors equal to the product of the number of directors on the Company Board of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.2(d)) multiplied by a fraction the numerator of which shall be the number of Company Common Shares beneficially owned by the Parent Parties and the denominator of which shall be the total number of Company Common Shares outstanding at such time. At such time, the Company shall also cause, if requested by Merger Sub, each committee of the Company Board of Directors to include individuals designated by Merger Sub constituting up to the same percentage of each such committee as Merger Sub designees constitute on the Company Board of Directors. The Company shall, upon request by Merger Sub, promptly take all actions necessary to cause Merger Sub's designees to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d), including by increasing the size of the Company Board of Directors and/or, at the Company's election, securing the resignations of such number of directors as is necessary to enable the designees of Merger Sub to be elected to the Company Board of Directors in accordance with the terms of this Section 1.2(d). In the event that designees of Merger Sub are elected to the Company Board of Directors, until the Effective Time, those continuing members of the Company Board of Directors who are neither officers of the Company nor designees, Affiliates or Associates of Merger Sub shall be deemed the "Independent Directors" for purposes of the provisions of this Agreement. Subject to applicable Law, the Company shall promptly take all action in a commercially reasonable manner necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.2(d) and shall include in the Schedule 14D-9 mailed to the Company Stockholders promptly after the commencement of the Offer (or an amendment thereto or an information statement pursuant to such Rule 14f-1 if Merger Sub has not theretofore designated directors or timely provided the requisite information) such information with respect to the Company and its officers and directors as is required under Section 14(f) and such Rule 14f-1 in order to fulfill its obligations under this Section 1.2(d). Merger Sub will promptly supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and such Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Merger Sub are elected to the Company Board of Directors and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of obligations of Merger Sub hereunder, (iv) take any other action by the Company in connection with this Agreement required to be taken by the Company Board of Directors or (v) resolved to recommend to take any action taken by the holders of Company in connection with the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offertransactions contemplated by this Agreement, and (vi) resolved such affirmative majority vote shall be sufficient to recommend to the stockholders of the Company to approve and adopt the Transaction Agreements to which the Company or take any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocksuch action.

Company Action. The Board(a) Company hereby consents to the Offer and represents that its Board of Directors, at a meeting duly called and held on June 10, 2008or prior to the date hereof, has unanimously by the unanimous vote of all directors present and voting (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are consistent with and in furtherance of the long-term business strategy of Company and are advisable and are fair to the Company or any Subsidiary are and in the best interests interest of the Company and the Subsidiariesits stockholders, (ii) approved, approved and adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth Offer and the Merger and the Company Stockholder Agreements and the transactions contemplated thereby, which approval constitutes approval under Section 203 of Delaware Law such that the Offer, the Merger, this Agreement and the other transactions contemplated hereby and the Company Stockholder Agreement and the transactions contemplated thereby, are not and shall not be subject to any restriction pursuant to Section 203 of Delaware Law, and (iii) resolved to recommend acceptance of the Offer and approval and adoption (b) As soon as practicable on the day that the Offer is commenced, Company will file with the SEC and disseminate to holders of Shares a Solicitation/Recommendation Statement on Schedule 14D-9 (the "SCHEDULE 14D-9") which shall include the opinion of Credit Suisse First Boston Corporation referred to in Section 2.20 and, subject to Section 5.03(b), shall include the Amendment Recommendations; provided, however, that prior to the Certificate Appointment Time the Board of IncorporationDirectors of Company may withhold, the Amended and Restated By-lawswithdraw, the Amendment modify or change in a manner adverse to the Certificate of Designations of the Senior Preferred Stock and the Amendment Parent, or fail to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made make, its Recommendations in accordance with the DGCLterms of Section 5.03(b). Company, subject Parent and Merger Sub each agree promptly to correct 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. Company 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 holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 prior to its being filed with the SEC. Company agrees to provide Parent and its counsel with any comments Company or its counsel receives in writing from the SEC or its staff with respect to the Schedule 14D-9 as soon as practicable after receipt of such written comments. (c) Company will promptly furnish Parent and Merger Sub with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case as of the most recent practicable date, and will provide to Parent and Merger Sub such additional Board approvals information (including, without limitation, updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Parent or Merger Sub may be necessary reasonably request in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders of the Company to approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock.

Company Action. The Company hereby approves of, and consents to, the Offer and represents and warrants that the Board, at a meeting duly called and held on June 10held, 2008and upon unanimous vote of the directors of the Company, has unanimously (i) unanimously determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are advisable, and are fair to the Company or any Subsidiary are and in the best interests of the Company and the SubsidiariesCompany's shareholders, (ii) approved, unanimously approved and adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby (and deemed them to the Company or any Subsidiarybe advisable), including the amendments set forth Offer and the Merger, which approval satisfies in full the Amendment requirements of the Business Corporation Act of the State of Florida (the "FLORIDA LAW") (including Sections 607.0901 and 607.0902 thereof) and the Articles of Incorporation and By-laws of the Company with respect to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations requisite approval of the Senior Preferred Stock Board, and the Amendment (iii) unanimously resolved to the Certificate of Designations recommend acceptance of the Junior Preferred Stock (such Offer and approval and adoption having been made of this Agreement and the Merger by its shareholders, provided that following receipt of an unsolicited bona fide written Superior Proposal (as defined below), such recommendation may be withdrawn or modified, but only to the extent that the Board of Directors of the Company shall have concluded in accordance good faith on the basis of advice from outside counsel that such action by the Board of Directors is required in order to comply with the DGCLfiduciary duties of the Board of Directors to the shareholders of the Company under applicable law. The Company further represents that Prudential Vector Healthcare Group, subject a unit of Prudential Securities Incorporated (the "COMPANY'S INVESTMENT BANKER") has delivered to any additional the Board approvals as may its opinion that the consideration to be necessary paid in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock Offer and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend Merger is fair to the holders of Shares from a financial point of view, and the Remaining Company has provided a copy of such opinion to Parent. The Company will promptly furnish Parent and Merger Sub with a list of its shareholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case true and correct as of the Preferred Stock that they accept most recent practicable date, and will provide to Parent and Merger Sub such additional information (including, without limitation, updated lists of shareholders, mailing labels and lists of securities positions) and such other assistance as Parent and Merger Sub may reasonably request in order to be able to communicate the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the record and beneficial holders of the 12% Senior Notes Shares. (a) As soon as practicable on the day that they accept the Exchange Offer is commenced the Company will file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 (the "SCHEDULE 14D-9") which shall reflect the recommendations of the Company's Board of Directors referred to above. The Company, Parent and tender their notes pursuant Merger Sub each agree promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the Exchange Offerextent that it shall have become false or misleading in any material respect. The Company 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 holders of Shares, in each case as and (vi) resolved to recommend to the stockholders of extent required by applicable federal securities laws. Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review and comment on the Company Schedule 14D-9 prior to approve and adopt its being filed with the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockSEC.

Company Action. The (a) Company hereby approves of and -------------- consents to the Offer and represents that (i) the Board, at a meeting duly called and held on June 104, 20081997, has unanimously (iA) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including each of the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the Company holders of Shares, (B) approved and adopted this Agreement and the Subsidiariestransactions contemplated hereby and (C) recommended that the stockholders of Company accept the Offer and approve and adopt this Agreement and the transactions contemplated hereby, and (ii) approvedFriedman, adopted and declared advisable Billings, Xxxxxx & Co. Inc. has delivered to the Transaction Agreements Board its opinion that the consideration to which be received by the Company or any Subsidiary is a party holders of Shares pursuant to each of the Offer and the Transactions applicable Merger is fair to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate holders of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate Shares from a financial point of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCLview, subject to any additional the assumptions and qualifications contained in such opinion, and which shall be confirmed promptly in writing. Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Board approvals described in the immediately preceding sentence. Assuming that neither Parent nor Purchaser are Interested Stockholders (as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as such term is defined in Section 203 of the DGCLGCL) becoming “interested shareholders” within immediately prior to the meaning of Board taking the action described in this Section 1.2, the approval set forth in clause (a)(i) shall, among other things, satisfy the restrictions on business combinations contained in Section 203 of the DGCL, (iv) resolved to recommend GCL with respect to the holders transactions contemplated hereby. Company has been advised by each of the Remaining Shares of the Preferred Stock its directors and executive officers that they accept the Tender Offer and intend either to tender their shares all Shares beneficially owned by them to Purchaser pursuant to the Tender Offer, (v) resolved Offer or to recommend to the holders vote such Shares in favor of the 12% Senior Notes that they accept the Exchange Offer approval and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to adoption by the stockholders of the Company to approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party of this Agreement and the Transactions applicable transactions contemplated hereby. (b) As soon as reasonably practicable on or after the date of commencement of the Offer, Company shall file with the SEC a Solicitation/ Recommendation Statement on Schedule 14D-9 (together with all amendments and supplements thereto, the "Schedule 14D-9") containing the recommendation of the -------------- Board described in Section 1.2(a) and shall disseminate the Schedule 14D-9 to the Company or extent required by Rule 14d-9 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any Subsidiaryother applicable federal ------------ securities laws. Company, including the amendments set forth Parent and Purchaser agree to correct promptly any information provided by any of them for use in the Amendment Schedule 14D-9 which shall have become false or misleading, and Company further agrees to take all steps reasonably necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the Certificate extent required by applicable federal securities laws. (c) Company shall promptly furnish Purchaser with mailing labels containing the names and addresses of Incorporationall record holders of Shares and with security position listings of Shares held in stock depositories, the Amended each as of a recent date, together with all other available listings and Restated By-lawscomputer files containing names, the Amendment addresses and security position listings of record holders and beneficial owners of Shares. Company shall furnish Purchaser with such additional information, including, without limitation, updated listings and computer files of stockholders, mailing labels and security position listings, and such other assistance as Parent, Purchaser or their agents may reasonably request. Subject to the Certificate requirements of Designations of applicable law, and except for such steps as are necessary to disseminate the Senior Preferred Stock Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent and Purchaser shall hold in confidence the information contained in such labels, listings and files, shall use such information only in connection with the Offer and the Amendment Merger, and, if this Agreement shall be terminated in accordance with Section 8.1, shall deliver to the Certificate Company all copies of Designations of the Junior Preferred Stocksuch information then in their or their agents' possession.

Company Action. (a) In connection with the Offer, the Company -------------- shall cause its transfer agent as promptly as reasonably possible to furnish the Purchaser with mailing labels, security position listings and any available listings or computer files containing the names and addresses of record holders of the Shares as of a recent date, and shall furnish the Purchaser with such additional information (including, but not limited to, updated lists of holders of Company Common Stock and their addresses, mailing labels and lists of security positions) and offer such other assistance as the Parent or the Purchaser may reasonably request in communicating the Offer to the Company's stockholders. The Boardinformation contained in any such labels, listings and files shall be used solely for the purpose of communicating the Offer or disseminating any other documents necessary to consummate the Merger as contemplated by the Offer and shall otherwise be subject to the Confidentiality Agreement, dated November 15, 1999, between the Company and the Parent (the "Confidentiality Agreement"). If this Agreement shall be terminated, the Purchaser will deliver to the Company all copies of information provided to it hereunder that remain in its possession at such time. (b) The Company hereby consents to the Offer and the Merger, and represents and warrants to the Parent and the Purchaser that (i) the Board of - Directors of the Company (at a meeting duly called and held on June 10, 2008, at which a quorum was present) as part of its approval of this Agreement has unanimously (i1) - approved the Offer and the Merger, (2) determined that each of the Transaction Agreements to which the Company or any Subsidiary is a party Offer and the Transactions applicable - Merger is advisable, fair to the Company or any Subsidiary are and in the best interests of the stockholders of the Company and the Subsidiaries, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv3) resolved to recommend to the holders acceptance of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders approval - and adoption of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to this Agreement by the stockholders of the Company and (ii) -- Credit Suisse First Boston Incorporated ("CSFB") has delivered to approve and adopt the Transaction Agreements to which Board of Directors of the Company or any Subsidiary is a party its opinion that the consideration to be received by the holders of Company Common Stock pursuant to the Offer and the Transactions applicable Merger is fair to the holders of Company Common Stock from a financial point of view, subject to the assumptions and qualifications contained in such opinion. Concurrently with the commencement of the Offer, the Company shall file a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or any Subsidiarysupplements thereto, and including all exhibits, the "Schedule 14D-9") with respect to the Offer which shall contain (subject to the conditions specified in Section 6.8(d)) the recommendations of the Board of Directors referred to in clause (i) of the preceding sentence. The Board of Directors of the Company will not withdraw, modify or amend such recommendations, unless the conditions specified in Section 6.8(d) have been satisfied. The Parent, the Purchaser and their counsel will be given a reasonable opportunity to review the Schedule 14D-9 and all amendments set forth or supplements thereto prior to their filing with the SEC or dissemination to the holders of Shares. The Company shall furnish to the Parent and the Purchaser a copy of the resolutions referred to in the Amendment to the Certificate first sentence of Incorporationthis subsection (b), the Amended and Restated By-laws, the Amendment to the Certificate of Designations certified by an appropriate officer of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockCompany.

Company Action. (a) The BoardCompany hereby consents to the Offer and represents that its Board of Directors, at a meeting duly called and held on June 10, 2008held, has unanimously (i) unanimously determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger (as defined in Section 2.01), are fair to the Company or any Subsidiary are and in the best interests interest of the Company and the SubsidiariesCompany's stockholders, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party unanimously approved this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in Offer and the Amendment to Merger, which approval constituted approval of the Certificate of IncorporationOffer, the Amended Merger and Restated By-laws, the Amendment to the Certificate this Agreement for purposes of Designations Sections 203 and 251 of the Senior Preferred Stock and the Amendment to the Certificate of Designations General Corporation Law of the Junior Preferred Stock State of Delaware (such the "Delaware GCL"), and (iii) unanimously resolved to recommend acceptance of the Offer and approval and adoption having been made in accordance with of this Agreement and the DGCLMerger by its stockholders. The Company further represents that Cxxxx & Company has delivered to the Company's Board of Directors its written opinion that, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicableof the date of such opinion, the final form of Certificate of Designations of Series B-1 Preferred Stock consideration to be paid in the Offer and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend Merger is fair to the holders of the Remaining Shares (other than Parent and its affiliates) from a financial point of the Preferred Stock view. The Company has been advised that they accept the Tender Offer all of its directors and executive officers intend either to tender their shares Shares pursuant to the Tender Offer or to vote in favor of the Merger. The Company will promptly furnish Acquisition with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case true and correct as of the most recent practicable date, and will provide to Acquisition such additional information (including, without limitation, updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Acquisition may reasonably request in connection with the Offer. (b) As soon as practicable on the day that the Offer is commenced, the Company will file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 (v) resolved the "Schedule 14D- 9"), which shall reflect the recommendations of the Company's Board of Directors referred to recommend above. The Company and Acquisition each agree promptly to correct 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. The Company 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 holders of the 12% Senior Notes that they accept the Exchange Offer Shares, in each case as and tender their notes pursuant to the Exchange Offerextent required by applicable federal securities laws. Parent, Acquisition and (vi) resolved their counsel shall be given an opportunity to recommend review and comment on the Schedule 14D-9 prior to its being filed with the stockholders of the Company to approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockSEC.

Company Action. (a) The Board, at a meeting duly called Company hereby consents to the Offer and held on June 10, 2008, represents that its Board of Directors has unanimously (i) approved the Offer and the Merger (as defined in Section 2.1), has determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable Offer are fair to the Company or any Subsidiary are and in the best interests interest of the Company and its stockholders and has resolved to recommend acceptance of the SubsidiariesOffer to the Company's stockholders, and that the stockholders tender their Shares in the Offer and, if applicable, vote to approve and adopt this Agreement and the Merger, (ii) approved, adopted and declared advisable the Transaction Agreements (x) taken all action necessary to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in render Section 203 of the DGCLDelaware General Corporation Law, and (y) becoming “interested shareholders” within the meaning of Section 203 5 days of the DGCLdate hereof, shall have taken all action necessary to render the Company's Rights Agreement, dated as of February 15, 1996, between the Company and The First National Bank of Boston, as rights agent, (ivthe "Rights Agreement"), inapplicable to the Offer, the Merger and this Agreement or any of the transactions contemplated hereby or thereby. The Company hereby consents to the inclusion in the Offer Documents (as hereinafter defined) resolved of the recommendation of the Board of Directors described in the first sentence of this Section 1.2, except as such consent may be withdrawn by the Board of Directors of the Company in the exercise of its fiduciary duties as set forth in Section 6.6(b) hereof. The Company represents that it has received the opinion of Hambxxxxx & Quisx XXX ("H&Q") to recommend the effect that the consideration offered pursuant to the Offer and Merger is fair to stockholders of the Company from a financial point of view; it being understood and acknowledged that such opinion has been rendered to the Board of Directors of the Company and may not be relied upon by Parent, Purchaser or Merger Sub or their affiliates or their respective stockholders. (b) Simultaneously with, or as promptly as possible after, the commencement of the Offer, the Company shall file with the Commission and mail to the holders of Shares a Solicitation/Recommendation Statement on Schedule 14D-9 (the Remaining Shares "Schedule 14D-9"), which shall reflect the recommendation of the Preferred Stock Board of Directors; provided that they accept the Tender Offer and tender their shares pursuant prior to the Tender Offerfiling of such Schedule 14D-9, (v) resolved the Company shall have provided the Purchaser's counsel with a reasonable opportunity to recommend review and make comments with respect to the holders such Schedule 14D-9. Such recommendation shall not be withdrawn or adversely modified except by resolution of the 12% Senior Notes that they accept Board of Directors adopted in the Exchange Offer exercise of applicable fiduciary duties upon the advice of counsel. (c) The Company shall promptly furnish the Purchaser with mailing labels containing the names and tender their notes pursuant to addresses of the Exchange Offerrecord holders and, if available, of non-objecting beneficial owners of Shares and lists of securities positions of Shares held in stock depositories, each as of the most recent practicable date, and (vi) resolved shall from time to recommend time furnish the Purchaser with such additional information, including updated or additional lists of stockholders, mailing labels and lists of securities positions, and other assistance as the Purchaser may reasonably request in order to be able to communicate the Offer to the stockholders of the Company Company. Subject to approve the requirements of law, and adopt except for such steps as are necessary to disseminate the Transaction Agreements Offer and any other documents necessary to which consummate the Merger, Parent, the Purchaser and the Merger Sub and each 4 of their affiliates shall treat all information contained in such labels, lists and additional information as "Evaluation Material" in accordance with the letter agreement dated February 17, 1998 between Parent and the Company or any Subsidiary is a party and (the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock"Confidentiality Agreement").

Company Action. (a) The BoardCompany hereby represents that its Board of Directors, at a meeting duly called and held on June 10, 2008or prior to the date hereof, has unanimously by unanimous vote (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are advisable and are fair to the Company or any Subsidiary are and in the best interests of the Company and the Subsidiariesits stockholders, (ii) approved, approved and adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock Merger and the Certificate of Designations of Series B-2 Preferred Stock )Stockholder Agreements and the transactions contemplated thereby, (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in which approval constitutes approval under Section 203 of the DGCL) becoming “interested shareholders” within DGCL such that the meaning of Offer, the Merger, this Agreement and the other transactions contemplated hereby, and the Stockholder Agreements and the transactions contemplated thereby, are not and shall not be subject to any restriction pursuant to Section 203 of the DGCL, and (iviii) resolved to recommend acceptance of the Offer and approval and adoption of this Agreement by the Company's stockholders (the unanimous recommendations referred to in this clause (iii) are collectively referred to in this Agreement as the "RECOMMENDATIONS"). (b) As soon as practicable on the day that the Offer is commenced, the Company will file with the SEC and disseminate to holders of shares of Company Common Stock a Solicitation/Recommendation Statement on Schedule 14D-9 (the "SCHEDULE 14D-9") which shall include the opinion of Credit Suisse First Boston Corporation ("CREDIT SUISSE FIRST BOSTON") referred to in Section 3.17 hereof and, subject to Section 5.4 hereof, shall include the Recommendations. Parent shall promptly furnish to the holders Company all information concerning Parent, Parent's Subsidiaries and Parent's stockholders that may be required or reasonably requested in connection with any action contemplated by this Section 1.2(b). Subject to Section 5.4 hereof, the -3- 8 Company hereby consents to the inclusion of the Remaining Shares Recommendations in the Offer Documents and agrees that none of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant Recommendations shall be withdrawn, modified or changed in a manner adverse to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange OfferParent or Merger Sub, and (vi) resolved to recommend to no resolution by the stockholders Board of the Company to approve and adopt the Transaction Agreements to which Directors of the Company or any Subsidiary is committee thereof to withdraw, modify or change any of the Recommendations in a party manner adverse to Parent or Merger Sub shall be adopted or proposed (it being understood that, for purposes of this Agreement, a Recommendation shall be deemed to be withdrawn, modified or changed in a manner adverse to Parent and Merger Sub if such Recommendation ceases to be unanimous). Notwithstanding the foregoing, prior to the Appointment Time (as defined in Section 1.3(a) hereof), the Board of Directors of the Company may withhold, withdraw, modify or change in a manner adverse to Parent, or fail to make, its Recommendations in accordance with the terms of Section 5.4 hereof. The Company, Parent and Merger Sub each agree promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect. The Company 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 holders of shares of Company Common Stock, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 prior to its being filed with the SEC. The Company agrees to provide Parent and its counsel with any comments the Company or its counsel receives in writing from the SEC or its staff with respect to the Schedule 14D-9 as soon as practicable after receipt of such written comments. (c) The Company will promptly furnish Parent and Merger Sub with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of shares of Company Common Stock and lists of securities positions of shares of Company Common Stock held in stock depositories, in each case as of the most recent practicable date, and will provide to Parent and Merger Sub such additional information (including, without limitation, updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Parent or Merger Sub may reasonably request in connection with the Offer. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer, Parent and Merger Sub shall hold in confidence the information contained in any such labels, listings and files, shall use such information only in connection with the Offer and the Transactions applicable Merger and, if this Agreement shall be terminated, shall, upon request, deliver to the Company or any Subsidiary, including the amendments set forth all copies of such information then in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocktheir possession.

Company Action. The (a) ALARIS hereby approves of and consents to the Offer, and represents and warrants that the ALARIS Board, at a meeting duly called and held on June 10held, 2008has, has subject to the terms and conditions set forth in this Agreement, unanimously (i) determined that approved this Agreement, and deemed this Agreement, the Transaction Agreements to which Offer, the Company or any Subsidiary is a party Merger and the Transactions applicable transactions contemplated by this Agreement advisable, fair to the Company or any Subsidiary are and in the best interests of the Company and the Subsidiaries, ALARIS Stockholders; (ii) approvedapproved this Agreement, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party Support Agreement and the Transactions applicable to transactions contemplated by this Agreement and the Company or any SubsidiarySupport Agreement, including the amendments set forth Offer and the Merger, in all respects, and such approval constitutes approval of the Amendment to the Certificate of IncorporationOffer, the Amended and Restated By-lawsMerger, the Amendment to the Certificate of Designations of the Senior Preferred Stock this Agreement and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock Support Agreement and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning transactions contemplated by such agreements for purposes of Section 203 of the Delaware General Corporation Law (the “DGCL, ”); and (iviii) resolved to recommend to that the holders of the Remaining Shares of the Preferred Stock that they ALARIS Stockholders accept the Tender Offer and Offer, that the ALARIS Stockholders tender their shares pursuant of ALARIS Common Stock under the Offer to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange OfferSubcorp, and (vi) resolved to recommend to that the stockholders of the Company to ALARIS Stockholders approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable Merger to the Company or any Subsidiary, including extent required by Applicable Laws. ALARIS consents to the amendments set forth inclusion of such approval and recommendation in the Amendment Offer Documents. (b) ALARIS hereby agrees to file with the Commission, as soon as reasonably practicable on the day the Offer is commenced, a Solicitation/Recommendation Statement on Schedule 14D-9 pertaining to the Certificate of IncorporationOffer (together with any amendments or supplements thereto, the Amended “Schedule 14D-9”) containing the recommendation described in Section 1.2(a) and Restated By-to promptly mail the Schedule 14D-9 to the ALARIS Stockholders together with the Offer Documents and use its reasonable best efforts to cause the Offer Documents to be disseminated to the ALARIS Stockholders in accordance in all material respects with the applicable requirements of the United States federal securities laws. Cardinal Health, Subcorp, and their counsel shall be given the opportunity to review and comment on the Schedule 14D-9 sufficiently in advance of its filing with the Commission. ALARIS will use its reasonable best efforts to cause the Schedule 14D-9 to comply in all material respects with the applicable requirements of the United States federal securities laws. The information provided and to be provided by ALARIS, Cardinal Health and Subcorp for use in the Schedule 14D-9 shall not, on the date filed with the Commission and on the date first published or sent or given to the ALARIS Stockholders, as the case may be, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by ALARIS with respect to the information supplied in writing by Cardinal Health or Subcorp for inclusion in the Schedule 14D-9. ALARIS will use its reasonable best efforts to comply in all material respects with the applicable requirements of the United States federal securities laws. ALARIS, Cardinal Health and Subcorp each agree promptly to correct 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 ALARIS further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the Commission and disseminated to the ALARIS Stockholders to the extent required by the applicable requirements of the United States federal securities laws. Cardinal Health and Subcorp shall promptly furnish to ALARIS all information concerning Cardinal Health and Subcorp that is required or reasonably requested by ALARIS in connection with the obligations relating to the Schedule 14D-9 contained in this Section 1.2(b). (c) In connection with the Offer, ALARIS promptly will furnish (or cause its transfer agent to furnish) Cardinal Health and Subcorp with mailing labels, security position listings and any available listing or computer files containing the names and addresses of the ALARIS Stockholders as of a recent date, and shall furnish Subcorp with such additional information and assistance (including, without limitation, updated lists of the ALARIS Stockholders, mailing labels and lists of securities positions) as Subcorp or its agents may reasonably request in communicating the Offer to the record and beneficial holders of shares of ALARIS Common Stock. Except as required by Applicable Laws, and except as necessary to communicate the Offer, the Amendment Merger or the transactions contemplated by this Agreement to the Certificate of Designations of ALARIS Stockholders, Cardinal Health and Subcorp (and their respective representatives) shall hold in confidence the Senior Preferred Stock information contained in any such labels, listings and the Amendment files to the Certificate of Designations of extent required by the Junior Preferred Stockconfidentiality agreement between Cardinal Health and ALARIS, dated March 8, 2004 (the “Confidentiality Agreement”).

Company Action. (a) The BoardCompany hereby approves of and consents to the Offer and represents that the Board of Directors of the Company, at a meeting duly called and held on June 10held, 2008duly and unanimously adopted resolutions approving this Agreement, has unanimously (i) determined the Offer and the Merger, determining that the Transaction Agreements to which terms of the Company or any Subsidiary is a party Offer and the Transactions applicable to the Company or any Subsidiary Merger are fair, from a financial point of view, to, and in the best interests of of, the Company Company's stockholders and recommending that the SubsidiariesCompany's stockholders approve and adopt this Agreement, (ii) approved, adopted and declared advisable that the Transaction Agreements to which Company's stockholders accept the Company or any Subsidiary is a party Offer and the Transactions applicable tender their Shares pursuant to the Company Offer, provided, however, that any such recommendation may be amended, withdrawn or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made modified in accordance with the DGCLprovisions of Section 6.5(b). The Company represents that its Board of Directors has received the opinion of Cleaxx Xxxl Reilxxx & XcDexxxx Xxx. ("Cleaxx Xxxl") to the effect that the proposed consideration to be received by the holders of Shares pursuant to the Offer and the Merger is fair to such holders from a financial point of view, subject and a complete and correct signed copy of such opinion has been delivered by the Company to any additional Parent. The Company understands that, concurrently with the execution of this Agreement, each of the Company's directors and officers intends to execute a Stockholder Agreement with Parent and/or Merger Sub and intends to tender all Shares owned by such person pursuant to the Offer. The Company hereby approves of and consents to the execution by each Stockholder Party of such Stockholder Party's Stockholder Agreement and the consummation of the transactions contemplated thereby, including the tender of such Shares, and represents that the Board approvals as may be necessary in connection of Directors of the Company, at a meeting duly called and held, duly and unanimously adopted resolutions approving the execution of the Stockholder Agreements and the consummation of the transactions contemplated thereby. (b) On the date the Offer Documents are filed with Section 7.13 to approve and adopt, if applicablethe SEC, the final form of Certificate of Designations of Series B-1 Preferred Stock Company shall file with the SEC and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend mail to the holders of Shares a Solicitation/Recommendation Statement on Schedule 14D-9 (the Remaining Shares "Schedule 14D-9"), which shall reflect the recommendations described in Section 1.3(a). The Company agrees that the Schedule 14D-9, including all amendments and supplements thereto, shall comply as to form in all material respects with the applicable provisions of the Preferred Stock that they accept Exchange Act and the Tender Offer rules and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offerregulations promulgated thereunder, and (vi) resolved to recommend to the stockholders of the Company to approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock.shall not contain any

Company Action. The (a) BLP hereby approves of and consents to the Offer, and represents and warrants that the BLP Board, at a meeting duly called and held on June 10held, 2008has, has unanimously subject to the terms and conditions set forth in this Agreement, (i) determined that approved this Agreement, and deems this Agreement, the Transaction Agreements to which Offer, the Company or any Subsidiary is a party Merger and the Transactions applicable transactions contemplated by this Agreement advisable, fair to the Company or any Subsidiary are and in the best interests of the Company and the Subsidiaries, BLP Stockholders; (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party approved this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated by this Agreement, including the amendments set forth Offer and the Merger, in all respects, and such approval constitutes approval of the Amendment to the Certificate of IncorporationOffer, this Agreement, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Merger and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning transactions contemplated by this Agreement for purposes of Section 203 of the Delaware General Corporation Law (the “DGCL, ”); and (iviii) resolved to recommend to that the holders of the Remaining Shares of the Preferred Stock that they BLP Stockholders accept the Tender Offer and Offer, that the BLP Stockholders tender their shares of BLP Common Stock under the Offer to Subcorp, and that the BLP Stockholders approve and adopt this Agreement and the Merger to the extent required by Applicable Laws. BLP consents to the inclusion of such approval and recommendation in the Offer Documents. BLP further represents that Bear, Sxxxxxx & Co. Inc. (“Bear Sxxxxxx”) has delivered to the BLP Board its written opinion that the consideration to be received by the BLP Stockholders pursuant to the Tender Offer and the Merger is fair to the BLP Stockholders from a financial point of view. (b) BLP hereby agrees to file with the Commission, as soon as reasonably practicable on the day the Offer is commenced, a Solicitation/Recommendation Statement on Schedule 14D-9 pertaining to the Offer (together with any amendments or supplements thereto, the “Schedule 14D-9”) containing the recommendation described in Section 1.2(a) and to promptly mail the Schedule 14D-9 to the BLP Stockholders together with the Offer Documents. Cardinal, Subcorp, and their counsel shall be given the opportunity to review and comment on the Schedule 14D-9 sufficiently in advance of its filing with the Commission. The Schedule 14D-9 will comply in all material respects with the provisions of applicable United States federal securities laws. The information provided and to be provided by BLP, Cardinal and Subcorp for use in the Schedule 14D-9 shall not, on the date filed with the Commission and on the date first published or sent or given to the BLP Stockholders, as the case may be, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. BLP, Cardinal and Subcorp each agree promptly to correct 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 BLP further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the Commission and disseminated to the BLP Stockholders to the extent required by applicable United States federal securities laws. (c) In connection with the Offer, BLP promptly will furnish Cardinal and Subcorp with mailing labels, security position listings and any available listing or computer files containing the names and addresses of the BLP Stockholders as of a recent date, and shall furnish Subcorp with such additional information and assistance (vincluding, without limitation, updated lists of the BLP Stockholders, mailing labels and lists of securities positions) resolved to recommend as Subcorp or its agents may reasonably request in communicating the Offer to the record and beneficial holders of shares of BLP Common Stock. (i) BLP hereby grants to Cardinal and Subcorp an irrevocable option (the 12“Subcorp Option”) to purchase up to that number of newly issued shares of BLP Common Stock (the “Subcorp Option Shares”) equal to the number of shares of BLP Common Stock that, when added to the number of shares of BLP Common Stock owned by Cardinal, Subcorp and their affiliates immediately following consummation of the Offer, shall constitute one share more than 90% Senior Notes that they accept of the Exchange Offer shares of BLP Common Stock then outstanding on a fully diluted basis (after giving effect to the issuance of the Subcorp Option Shares) for consideration per Subcorp Option Share equal to the Per Share Amount. (ii) The Subcorp Option shall be exercisable only after the purchase of and tender their notes payment for shares of BLP Common Stock pursuant to the Exchange OfferOffer by Cardinal or Subcorp as a result of which Cardinal, Subcorp and their affiliates own beneficially at least 80% of the outstanding shares of BLP Common Stock. The Subcorp Option shall not be exercisable if the number of shares of BLP Common Stock subject thereto exceeds the number of authorized shares of BLP Common Stock available for issuance. (viiii) resolved In the event Cardinal and Subcorp wish to recommend exercise the Subcorp Option, Subcorp shall give BLP one day’s prior written notice specifying the number of shares of BLP Common Stock that are or will be owned by Cardinal, Subcorp and their affiliates immediately following consummation of the Offer and specifying a place and a time for the closing of the purchase. BLP shall, as soon as practicable following receipt of such notice, deliver written notice to Subcorp specifying the number of Subcorp Option Shares. At the closing of the purchase of the Subcorp Option Shares, the portion of the purchase price owing upon exercise of the Subcorp Option which equals the product of (A) the number of shares of BLP Common Stock purchased pursuant to the stockholders Subcorp Option, multiplied by (B) the Per Share Amount, shall be paid to BLP, at the election of the Company Cardinal and Subcorp, in cash (by wire transfer or cashier’s check) or by delivery of a promissory note having full recourse to approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockCardinal.

Company Action. (a) The BoardCompany hereby consents to the Offer and represents that its Board of Directors, at a meeting duly called and held on June 10, 2008held, has unanimously (i) unanimously determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiary are in the best interests of the Company and the Subsidiaries, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock Merger (such approval and adoption having been made defined below in accordance with the DGCLSection 2.1), subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate Stockholder Option Agreement, dated as of Designations of Series B-2 Preferred Stock February 5, 1999 (the "Stockholder Option Agreement"), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to among the stockholders of the Company to approve that are named therein ("Stockholders") and adopt the Transaction Agreements to which the Company or any Subsidiary is a party Merger Subsidiary, and the Transactions applicable transactions contemplated thereby, are fair to and in the Company or any Subsidiarybest interest of the Company's stockholders, (ii) unanimously approved this Agreement and the transactions contemplated hereby, including the amendments set forth Offer and the Merger, and the Stockholder Option Agreement and the transactions contemplated thereby, which approval satisfies in full the requirements of Sections 607.0901 and 607.0902 of the General Corporation Act of the State of Florida (the "Florida Law"), and (iii) unanimously resolved to recommend acceptance of the Offer and approval and adoption of this Agreement and the Merger by its stockholders. The Company further represents that The Xxxxxxxx-Xxxxxxxx Company LLC has delivered to the Company's Board of Directors its opinion that the consideration to be paid in the Amendment Offer and the Merger is fair to the Certificate holders of Incorporation, the Amended Shares from a financial point of view. The Company has been advised that all of its directors and Restated By-laws, the Amendment executive officers presently intend either to tender their Shares pursuant to the Certificate of Designations Offer or to vote in favor of the Senior Preferred Stock Merger. The Company will promptly furnish Parent and Merger Subsidiary with a list of its stockholders, mailing labels and any available listing or computer file containing the Amendment names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case as of the most recent practicable date, and will provide to Parent and Merger Subsidiary such additional information (including, without limitation, updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Parent or Merger Subsidiary may reasonably request in connection with the Offer. (b) As soon as practicable on the day that the Offer is commenced the Company will file with the SEC and disseminate to holders of Shares a Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9") which shall reflect the recommendations of the Company's Board of Directors referred to above, subject to the Certificate of Designations fiduciary duties of the Junior Preferred StockBoard of Directors of the Company as advised in writing by Holland & Knight LLP, counsel to the Company. The Company, Parent and Merger Subsidiary each agrees promptly to correct 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. The Company 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 holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 prior to its being filed with the SEC.

Company Action. (a) The Board, Company hereby consents to the Offer and represents and warrants to Parent and Merger Sub that at a meeting duly called and held on June 10prior to the execution of this Agreement at which all directors of the Company were present (other than one recused director), 2008, has the Company’s Board of Directors duly and unanimously (other than one recused director) (i) determined declared that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the Company and the SubsidiariesCompany’s stockholders, (ii) approved, adopted approved and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock )Merger, (iii) approved Purchaser and its “affiliates” and “associates” directed that the adoption of this Agreement be submitted to the Company’s stockholders at the Stockholders’ Meeting (each as defined in unless the Merger is consummated under Section 203 253 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL), and (iv) resolved to recommend to that the holders of the Remaining Shares of the Preferred Stock that they Company’s stockholders accept the Tender Offer and Offer, tender their shares Company Shares to Merger Sub pursuant to the Tender OfferOffer and adopt this Agreement (such recommendation, the “Board Recommendation”), which actions and resolutions have not, as of the date hereof, been subsequently rescinded, modified or withdrawn in any way. (vb) resolved to recommend The Company hereby consents to the inclusion of the foregoing determinations and approvals in the Offer Documents and, subject to Section 7.5(d), the Company hereby consents to the inclusion of the Board Recommendation in the Offer Documents. The Company shall promptly furnish Parent with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Company Shares and lists of securities positions of Company Shares held in stock depositories, in each case as of the 12% Senior Notes that they accept most recent practicable date, and shall provide to Parent such additional information (including updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Parent may reasonably request in connection with the Exchange Offer and tender their notes pursuant Offer. Subject to the Exchange Offerrequirements of applicable law, and except to facilitate dissemination of the Offer Documents and to otherwise perform any obligations hereunder, Parent and Merger Sub shall treat the information contained in such labels, listing or files and any additional information referred to in the preceding sentence in accordance with the terms and conditions of the Confidentiality Agreement. (c) As soon as practicable on the day that the Offer is commenced, the Company shall file with the SEC and disseminate to holders of Company Shares, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto and including exhibits thereto, the “Schedule 14D-9”) that, subject to Section 7.5(d), shall contain and reflect the Board Recommendation. Each of Parent and Merger Sub shall promptly furnish to the Company in writing all information concerning Parent and Merger Sub that may be required by applicable Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. Each of the Company, Parent and Merger Sub agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect. The Company 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 holders of Company Shares, in each case, as and to the extent required by applicable Laws. The Company shall provide Parent, Merger Sub and their counsel with a reasonable opportunity to review and comment on the Schedule 14D-9 prior to filing it with the SEC, and the Company shall give reasonable and good faith consideration to any comments made by Parent, Merger Sub and their counsel. The Company shall provide Parent with copies of all such filings made with the SEC. The Company shall promptly provide Parent, Merger Sub and their counsel with (i) any comments or other communications, whether written or oral, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of those comments or other communications, and (viii) resolved a reasonable opportunity to recommend provide comments on the Company’s response to the stockholders of the Company to approve and adopt the Transaction Agreements those comments (to which reasonable and good faith consideration shall be given) and to participate with the Company or its counsel in any Subsidiary is a party and material discussions or meetings with the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockSEC.

Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Board, at a meeting duly called and held on June 10held, 2008has, has subject to the terms and conditions set forth herein, unanimously (i) determined that the Transaction Agreements it is fair and advisable for Parent to which acquire the Company or any Subsidiary is a party on the terms and subject to the conditions set forth herein and approved this Agreement and the Transactions applicable to transactions contemplated hereby, including the Company or any Subsidiary are Offer and the Merger, in the best interests all respects and such approval constitutes approval of the Company Offer, this Agreement and the SubsidiariesMerger for purposes of the FBCA, (ii) approved, adopted and declared advisable resolved to recommend that the Transaction Agreements to which shareholders of the Company or any Subsidiary is a party accept the Offer, tender their Shares in the Offer and to the extent required, that the shareholders of the Company approve and adopt this Agreement and the Transactions applicable Merger (such recommendation, the “Recommendation”) and (iii) taken all other actions necessary to exempt the Offer, the Merger, this Agreement and the transactions contemplated hereby from any “fair price,” “moratorium,” “control share acquisition,” “interested shareholder,” “business combination,” “affiliated transaction” or other similar statute or regulation promulgated by a Governmental Entity (“Takeover Statute”). The Company consents to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate inclusion of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made Recommendation in accordance the Offer Documents. (b) The Company hereby agrees to file with the DGCLSEC on the date that Parent and Merger Sub file the Offer Documents pursuant to Section 1.1(b), subject a Solicitation/Recommendation Statement on Schedule 14D-9 pertaining to the Offer (together with any additional Board approvals as may amendments or supplements thereto, the “Schedule 14D-9”) containing the Recommendation. The Company agrees to use its reasonable best efforts to mail such Schedule 14D-9 to the shareholders of the Company concurrently with the mailing of the Offer Documents. The Schedule 14D-9 will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s shareholders and at the Acceptance Time, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in connection order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with Section 7.13 respect to approve information supplied by Parent or Merger Sub in writing for inclusion in the Schedule 14D-9. The Company, Parent and adoptMerger Sub each agrees promptly to correct any information provided by it for use in the Schedule 14D-9, if applicable, and to the final form of Certificate of Designations of Series B-1 Preferred Stock extent that it shall have become false or misleading in any material respect and the Certificate of Designations of Series B-2 Preferred Stock )Company further agrees to take all steps necessary to cause the Schedule 14D-9, (iii) approved Purchaser as so corrected to be filed with the SEC and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend disseminated to the holders of Shares as and to the Remaining Shares extent required by applicable federal securities laws. Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (including each amendment or supplement thereto) before it is filed with the SEC and the Company shall give reasonable and good faith consideration to any comments made by Parent, Merger Sub and their counsel. In addition, the Company shall provide Parent, Merger Sub and their counsel with copies of any written comments, and shall inform them of any oral comments, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments, and any written or oral responses thereto. Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review any such responses and the Company shall give reasonable and good faith consideration to any comments made by Parent, Merger Sub and their counsel prior to their submission. (c) In connection with the Offer, the Company will promptly furnish Parent and Merger Sub with mailing labels, security position listings and any available listing or computer files containing the names and addresses of the Preferred Stock that they accept record holders of the Tender Shares as of a recent date and shall furnish Merger Sub with such additional information and assistance (including, without limitation, updated lists of shareholders, mailing labels and lists of securities positions) as Merger Sub or its agents may reasonably request in communicating the Offer and tender their shares pursuant to the Tender Offerrecord and beneficial holders of Shares. Subject to Section 6.2, (v) resolved the Company shall, and shall cause its directors, officers, employees and other Representatives to, use their reasonable best efforts to recommend make solicitations and recommendations to the holders of Shares for purposes of causing the 12% Senior Notes Minimum Condition to be satisfied, including without limitation that they accept upon Parent’s request, the Exchange Offer Company, Parent and tender their notes pursuant Merger Sub shall promptly prepare a joint presentation to the Exchange Offer, and (vi) resolved to recommend to the stockholders of the Company to approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party RiskMetrics Group recommending this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred StockMerger.

Company Action. (a) The BoardCompany hereby approves of and consents to the Offer and represents and warrants that: (i) its Board of Directors, acting upon the unanimous recommendation of the independent directors (the "Special Committee") of the Board of Directors, at a meeting duly called and held on June 10December 2, 20081998, has unanimously (iA) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including each of the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the holders of Shares, (B) exempted the Offer, the Merger, this Agreement and the Tender Agreement and the transactions contemplated hereby and thereby so as to render Section 3-602 of the MGCL inapplicable thereto and to any Consensual Transaction, (C) amended the By-laws of the Company so as to render inapplicable Section 3-702(a)(i) of the MGCL to the transactions contemplated by this Agreement and the Tender Agreement, including, without limitation, the Offer, and to any Consensual Transaction,(D)declared the Merger to be advisable and directed that the Merger be submitted for consideration at a special meeting of the stockholders of the Company and the Subsidiaries, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (ivE) resolved to recommend that the stockholders of the Company accept the Offer, tender their Shares to Purchaser thereunder and approve this Agreement and the transactions contemplated hereby; and (ii) The Xxxxxxxx-Xxxxxxxx Company, LLC (the "Financial Adviser") has delivered to the Board of Directors of the Company and the Special Committee its written opinion (or oral opinion to be confirmed in writing) that the consideration to be received by holders of the Remaining Shares pursuant to each of the Preferred Stock that they accept the Tender Offer and tender their shares the Merger is fair to such holders from a financial point of view. The Company has been authorized by the Financial Adviser to permit, subject to prior review and consent by such Financial Adviser (such consent not to be unreasonably withheld), the inclusion of such fairness opinion (or a reference thereto) in the Offer Documents and in the Schedule 14D-9 referred to below and the Proxy Statement referred to in Section 3.12. The Company hereby consents to the inclusion in the Offer Documents of the recommendations of the Company's Board of Directors described in this Section 1.2(a). (b) The Company shall file with the SEC, contemporaneously with Schedule 14D-1 pursuant to Section 1.1, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments and supplements thereto, the Tender Offer"Schedule 14D-9"), (v) resolved to recommend to containing the holders recommendations of the 12% Senior Notes that they accept Company's Board of Directors described in Section 1.2(a)(i) and shall promptly mail the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend Schedule 14D-9 to the stockholders of the Company; provided, that in the event of a proposed Third Party Acquisition (as defined in Section 8.3), the Company shall not be required to approve and adopt make such filing with such recommendations or make such mailing if a majority of the Transaction Agreements Special Committee Members (as defined below) conclude in good faith based on advice of independent outside legal counsel to which the Special Committee that taking any such action would constitute a breach of the fiduciary duties of the Board of Directors of the Company under applicable law. "Special Committee Members" shall mean directors of the Company who are (a) members of the Special Committee (as constituted on the date hereof) or (b) nominees of such Special Committee who are not (1) employees of the Company or any Subsidiary is a party and the Transactions applicable to the Company of its subsidiaries, (2) Xxxxxx X. Xxxxxxxxxx or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock.(3)

Company Action. (a) The BoardCompany hereby consents to the Offer and represents that its Board of Directors, at a meeting duly called and held and acting on June 10, 2008the unanimous recommendation of a special committee of the Board of Directors of the Company composed entirely of non-management independent directors (the "Special Committee"), has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are advisable and are fair to the Company or any Subsidiary are and in the best interests of the Company Company's stockholders (other than Parent and the Subsidiariesits Affiliates), (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party approved this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made Merger, in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve requirements of the Delaware Law and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in subject to Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL7.04(c), (iv) resolved to recommend acceptance of the Offer and adoption of this Agreement by its stockholders. The Company further represents that UBS Warburg LLC has delivered to the Special Committee its written opinion that the consideration to be paid in the Offer and the Merger is fair to the holders of the Remaining Shares (other than Parent and its Affiliates) from a financial point of the Preferred Stock view. The Company has been advised that they accept the Tender Offer and all of its directors who own Shares intend either to tender their shares Shares pursuant to the Tender Offer or to vote in favor of the Merger. The Company will promptly furnish Parent with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case true and correct as of the most recent practicable date, and, subject to Section 7.04(c), will provide to Parent such additional information (including updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Parent may reasonably request in connection with the Offer. (b) As soon as practicable on the day that the Offer is commenced, (v) resolved the Company shall file with the SEC and disseminate to recommend holders of Shares, in each case as and to the extent required by applicable federal securities laws, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the "Schedule 14D-9") that, subject to Section 7.04(c), shall reflect the recommendations of the Company's Board of Directors referred to above. The Company, Parent and Merger Subsidiary each agrees promptly to correct 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. The Company 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 holders of the 12% Senior Notes that they accept the Exchange Offer Shares, in each case as and tender their notes pursuant to the Exchange Offer, extent required by applicable federal securities laws. Parent and (vi) resolved its counsel shall be given a reasonable opportunity to recommend review and comment on the Schedule 14D-9 prior to its being filed with the stockholders SEC. The Company shall provide Parent with a copy of any comments received from the Company to approve and adopt SEC on the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockSchedule 14D-9.

Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants to Parent and Merger Sub that (i) the Board, at a meeting duly called and held on June 10May 13, 20082001, has unanimously (iA) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to transactions contemplated hereby, including each of the Company or any Subsidiary Offer and the Merger (the Offer and the Merger, collectively, the "Transactions"), are fair to, and in the best interests of, the holders of the Company and the SubsidiariesShares, (iiB) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals including, without limitation, Section 203 thereof assuming that neither Parent nor Merger Sub are Interested Stockholders (as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as such term is defined in Section 203 of the DGCLDGCL with respect to the Transactions)) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, and (ivC) resolved to recommend that the holders of Shares accept the Offer and tender their Shares pursuant to the Offer, and approve and adopt this Agreement and the Transactions, and (ii) Credit Suisse First Boston Corporation ("CSFB") has delivered to the Board its opinion that, as of the date of such opinion, the consideration to be received by the holders of Shares pursuant to each of the Offer and the Merger is fair to the holders of Shares from a financial point of view (the Remaining Shares "Fairness Opinion"), subject to the assumptions and qualifications contained in such opinion. The Company hereby consents to the inclusion in the Offer Documents of the Preferred Stock that they accept recommendation of the Tender Offer Board described in the immediately preceding sentence, and tender their shares pursuant neither the Board nor the Company shall withdraw or modify such recommendation in any manner adverse to Merger Sub or Parent except as and to the Tender Offerextent expressly provided in Section 7.4(b). (b) On the date the Offer Documents are filed with the SEC, (v) resolved to recommend the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 containing the Fairness Opinion and, except and to the extent expressly provided in Section 7.4(b), the recommendation of the Board described in Section 2.2(a), and an information statement (together with all amendments and supplements thereto, the "Schedule 14D-9"), and shall disseminate the Schedule 14D-9 to the extent required by Rule 14d-9 promulgated under the Exchange Act, and any other applicable federal securities laws. Each of Parent, Merger Sub and the Company agrees to correct promptly any information provided by it for use in the Schedule 14D-9 which 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 disseminated to holders of the 12% Senior Notes that they accept the Exchange Offer Shares, in each case as and tender their notes pursuant to the Exchange Offer, extent required by applicable federal securities laws. The Company shall give Parent and (vi) resolved its counsel a reasonable opportunity to recommend review and comment on the Schedule 14D-9 prior to such document being filed with the SEC or disseminated to holders of Shares. The Company shall provide Parent and its counsel with copies of any comments the Company or its counsel may receive from the SEC or its staff with respect to the stockholders Schedule 14D-9 after the receipt of such comments and shall provide Parent and its counsel with a reasonable opportunity to participate in the response of the Company to approve such comments. (c) The Company shall cooperate with and adopt promptly furnish Parent and Merger Sub with the Transaction Agreements names and addresses of all record holders of Shares and with security position listings of Shares held in stock depositories, in each case that are true and correct as of the most recent practicable date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and Beneficial Owners of Shares. The Company shall cooperate with and promptly furnish Parent and Merger Sub with such additional information, including, without limitation, updated listings and computer files of stockholders, mailing labels and security position listings, and such other assistance in disseminating the Offer Documents to which holders of Shares, as Parent or Merger Sub may reasonably request in connection with the Company Offer. Subject to the requirements of applicable Law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or any Subsidiary is a party the Merger, Parent and Merger Sub shall hold in confidence the Transactions applicable information contained in such labels, listings and files, shall use such information only in connection with the Transactions, and, if this Agreement shall be terminated in accordance with Section 9.1, shall deliver to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate all copies of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocksuch information.

Company Action. (a) The BoardCompany hereby approves and consents to the Offer and represents and warrants that the Board of Directors of the Company, at a meeting duly called and held on June 10January 8, 20081999, has unanimously (i) at which a majority of the Directors was present, duly approved and adopted this Agreement and the transactions contemplated hereby, including the Offer and the Merger, recommended that stockholders of the Company accept the Offer, tender their Common Shares pursuant to the Offer and approve this Agreement and the transactions contemplated hereby, including the Merger, and determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the stockholders of the Company. The Company hereby consents to the inclusion in the Offer Documents of such recommendation of the Board of Directors of the Company. The Company represents that its Board of Directors has received the written opinion (the "FAIRNESS OPINION") of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation (the "FINANCIAL ADVISOR") that the proposed consideration to be received by the holders of Common Shares pursuant to the Offer and the Subsidiaries, (ii) approved, adopted and declared advisable Merger is fair to such holders from a financial point of view. The Company has been authorized by the Transaction Agreements Financial Advisor to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCLpermit, subject to any additional Board approvals as may the prior review and consent by the Financial Advisor (such consent not to be necessary in connection with Section 7.13 to approve and adopt, if applicableunreasonably withheld), the final form inclusion of Certificate of Designations of Series B-1 Preferred Stock the Fairness Opinion (or a reference thereto) in the Offer Documents, the Schedule 14D-9 (as hereinafter defined) and the Certificate of Designations of Series B-2 Preferred Stock Proxy Statement (as hereinafter defined). (b) The Company shall file with the SEC, (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 promptly as practicable after the filing by Parent of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend Schedule 14D-1 with respect to the holders of the Remaining Shares of the Preferred Stock that they accept the Offer, a Tender Offer and tender their shares pursuant to Solicitation/ Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the Tender Offer, (v"SCHEDULE 14D-9") resolved to recommend to that will comply in all material respects with the holders provisions of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend all applicable federal securities laws. The Company shall mail such Schedule 14D-9 to the stockholders of the Company to approve as promptly as practicable after the commencement of the Offer. The Schedule 14D-9 and adopt the Transaction Agreements to which Offer Documents shall contain the recommendations of the Board of Directors of the Company described in SECTION 1.2(a) hereof. The Company agrees promptly to correct the Schedule 14D-9 if and to the extent that it shall become false or misleading in any Subsidiary is a party material respect (and each of Parent and Purchaser, with respect to written information supplied by it specifically for use in the Schedule 14D-9, shall promptly notify the Company of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and the Transactions Company shall take all steps necessary to cause the Schedule 14D-9 as so corrected or supplemented to be filed with the SEC and disseminated to holders of Common Shares to the extent required by applicable federal securities laws. Purchaser and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC, and the Company shall consider any such comments in good faith. (c) In connection with the Offer, the Company shall promptly upon execution of this Agreement furnish Purchaser with mailing labels containing the names and addresses of all record holders of Common Shares and security position listings of Common Shares held in stock depositories, each as of a recent date, and shall promptly furnish Purchaser with such additional information reasonably available to the Company, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Purchaser or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial holders of Common Shares. Subject to the requirements of applicable law and except as necessary to disseminate the Offer Documents and otherwise for the purpose of effecting the transactions contemplated hereby, Parent and Purchaser shall hold in confidence the materials furnished pursuant to this SECTION 1.2(c), use such information only in connection with the Offer, the Merger and the other transactions contemplated by this Agreement and, if this Agreement is terminated, as promptly as practicable return to the Company or any Subsidiary, including the amendments set forth such materials and all copies thereof in the Amendment to the Certificate possession of Incorporation, the Amended Parent and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockPurchaser.

Company Action. (a) The Company hereby approves of and consents to the Offer and represents that the Board, at a meeting duly called and held on June 10, 2008held, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to transactions contemplated hereby, including the Company or any Subsidiary Offer and the Merger, are fair to, and in the best interests of of, the Company and the Subsidiariesits stockholders, (ii) approved, adopted approved and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made Merger, in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with including Section 7.13 to approve 203 thereof, and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend acceptance of the Offer, and, if necessary, adoption of this Agreement, by the Company's stockholders. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Board. (b) On the day that the Offer is commenced, the Company shall file with the SEC and disseminate to holders of shares of Company Common Stock, in each case in a manner that complies with applicable federal securities Laws, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the Remaining Shares "Schedule 14D-9") that, subject to Section 7.05, shall reflect the recommendations of the Preferred Stock Board referred to in Section 2.02(a) above. Parent and its counsel shall be given an opportunity to review and comment on the Schedule 14D-9 sufficiently in advance of its filing with the SEC and disseminated to holders of shares of Company Common Stock. The Company shall provide Parent and its counsel with any comments that they accept the Tender Offer and tender their shares pursuant Company or its counsel may receive from the SEC or its staff with respect to the Tender Offer, (v) resolved Schedule 14D-9 promptly after the receipt of such comments and shall provide Parent and its counsel with an opportunity to recommend to participate in the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders response of the Company to approve such comments. The Schedule 14D-9 shall comply in all material respects with the requirements of applicable United States federal securities Laws and, on the date first filed with the SEC and adopt on the Transaction Agreements date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that in complying with the foregoing commitments, Parent or Merger Sub may rely on the accuracy of any information supplied by Parent or Merger Sub for inclusion in the Schedule 14D-9. Each of the Company and Parent shall promptly correct 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 Subsidiary is a party material respect and to supplement the Schedule 14D-9 to include any information that shall become necessary to include in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company shall take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be, at such time as reasonably agreed by Parent and the Transactions applicable Company, disseminated to holders of shares of Company Common Stock, in each case as and to the extent required by applicable federal securities Laws. (c) The Company or any Subsidiaryshall promptly furnish Parent with mailing labels containing the names and addresses of all record holders of shares of Company Common Stock and with security position listings of shares of Company Common Stock held in stock depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of shares of Company Common Stock as Parent may reasonably request. The Company shall promptly furnish Parent with such additional information, including updated listings and computer files of stockholders, mailing labels and security position listings, and such other assistance in disseminating the amendments set forth in the Amendment Offer Documents to holders of shares of Company Common Stock as Parent may reasonably request. Subject to the Certificate requirements of Incorporationapplicable Law, and except for such steps as are necessary to disseminate the Amended Offer Documents and Restated By-lawsany other documents necessary to consummate the Offer or the Merger, Parent, Merger Sub and each of their affiliates, agents and advisors shall hold in confidence the Amendment information contained in such labels, listings and files, shall use such information only in connection with the transactions contemplated in this Agreement, and, if this Agreement shall be terminated in accordance with Section 9.01, shall deliver to the Certificate of Designations of the Senior Preferred Stock Company, and the Amendment shall use their reasonable efforts to the Certificate of Designations of the Junior Preferred Stockcause their affiliates, agents and advisors to deliver, all copies and any extracts or summaries from such information then in their possession.

Company Action. (a) The BoardCompany hereby approves of and consents to the Offer and represents and warrants that: (i) its Board of Directors, at a meeting duly called and held on June 10May 9, 20081997, has unanimously (iA) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including each of the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the Company holders of Shares, (B) approved this Agreement and the Subsidiaries, transactions contemplated hereby and (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (ivC) resolved to recommend that the stockholders of the Company accept the Offer, tender their Shares to Purchaser thereunder and approve this Agreement and the transactions contemplated hereby; and (ii) BZW, the investment banking division of Barclays Bank PLC (the "Financial Adviser" or "BZW"), has delivered to the Board of Directors of the Company its written opinion that the consideration to be received by holders of the Remaining Shares Shares, other than Parent and Purchaser, pursuant to each of the Preferred Stock that they accept the Tender Offer and tender their shares the Merger is fair to such holders from a financial point of view. The Company has been authorized by the Financial Adviser to permit, subject to prior review and consent by the Financial Adviser (such consent not to be unreasonably withheld), the inclusion of such fairness opinion (or a reference thereto) in the Offer Documents and in the Schedule 14D-9 referred to below and the Proxy Statement referred to in Section 3.12. The Company hereby consents to the inclusion in the Offer Documents of the recommendations of the Company's Board of Directors described in this Section 1.2(a). (b) The Company shall file with the SEC, contemporaneously with the amendment to the Offer pursuant to Section 1.1, a Solicitation/Recommendation Statement on 8 Schedule 14D-9 (together with all amendments and supplements thereto, the Tender Offer"Schedule 14D-9"), (v) resolved to recommend to containing the holders recommendations of the 12% Senior Notes that they accept Company's Board of Directors described in Section 1.2(a)(i) and shall promptly mail the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend Schedule 14D-9 to the stockholders of the Company Company. Parent and its counsel shall be given the opportunity to approve review the Schedule 14D-9 before it is filed with the Commission, and adopt shall be given copies of any comment letters from the Transaction Agreements Commission regarding the Schedule 14D-9 and the opportunity to which participate in conversations with the Commission staff. The Schedule 14D-9 and all amendments thereto will comply in all material respects with the Exchange Act and the rules and regulations promulgated thereunder. The Company, Parent and Purchaser each agrees promptly to correct any information provided by it for use in the Schedule 14D-9 that shall have become false or misleading in any material respect, and the Company or any Subsidiary is a party further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and the Transactions applicable disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. (c) In connection with the Offer, if requested by Purchaser, the Company shall promptly furnish Purchaser with mailing labels, security position listings, any non-objecting beneficial owner lists and any available listings or any Subsidiarycomputer files containing the names and addresses of the record holders of Shares, each as of a recent date, and shall promptly furnish Purchaser with such additional information (including but not limited to updated lists of stockholders, mailing labels, security position listings and non-objecting beneficial owner lists) and such other assistance as Parent, Purchaser or their agents may reasonably require in communicating the amendments set forth in the Amendment Offer to the Certificate record and beneficial holders of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockShares.

Company Action. (a) The BoardCompany hereby approves of and consents to the Offer and represents and warrants that: (i) its Board of Directors, at a meeting duly called and held on June 10July 13-14, 20081997, has unanimously (iA) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including each of the Offer, the Axiohm Exchange, the Acquisition of Purchaser and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the Company holders of Shares, (B) approved and adopted this Agreement and the Subsidiariestransactions contemplated hereby and (C) resolved to recommend that the shareholders of the Company accept the Offer and tender their Shares to Purchaser thereunder (provided, however, that subject to the provisions of Section 6.3 such recommendation may be withdrawn, modified or amended in connection with a Superior Proposal (as defined in Section 6.3)); and (ii) approvedPrudential Securities Incorporated (the "Financial Adviser"), adopted and declared advisable has delivered to the Transaction Agreements to which Board of Directors of the Company or any Subsidiary is a party its written opinion that the consideration to be received by holders of shares of Company Common Stock (other than Parent and its affiliates), consisting of the cash consideration to be received by such holders pursuant to the Offer and the Transactions shares of Company Common Stock to be retained by such holders following the consummation of the Axiohm Exchange, the Acquisition of Purchaser and the Merger, is fair to such holders from a financial point of view. The Company has been authorized by the Financial Adviser to permit, subject to prior review and consent by the Financial Adviser, the inclusion of such fairness opinion (or a reference thereto) in the Offer Documents and in the Schedule 14D-9 referred to below. The Company hereby consents to the inclusion in the Offer Documents of the recommendations of the Company's Board of Directors described in this Section 1.2(a). (b) As soon as reasonably practicable on the date of filing by Parent and Purchaser of the Offer Documents with the SEC, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments and supplements thereto, the "Schedule 14D-9"), containing the recommendations of the Company's Board of Directors described in Section 1.2(a) and shall promptly mail the Schedule 14D-9 to the shareholders of the Company. Parent and its counsel shall be given the opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC, and shall be given copies of any comment letters from the SEC regarding the Schedule 14D-9 and, to the extent practicable, the opportunity to participate in conversations with the SEC staff. The Schedule 14D-9 and all amendments thereto will comply in all material respects with the Exchange Act and the rules and regulations promulgated thereunder. The Company, Parent and Purchaser each agrees promptly to correct any information provided by it for use in the Schedule 14D-9 that 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 disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. (c) In connection with the Offer, the Company shall promptly furnish Purchaser with mailing labels, security position listings, any non-objecting beneficial owner lists and any available listings or computer files containing the names and addresses of the record holders of Shares, each as of a recent date, and shall promptly furnish Purchaser with such additional information (including but not limited to updated lists of shareholders, mailing labels, security position listings and non-objecting beneficial owner lists) and such other assistance as Parent, Purchaser or their agents may reasonably require in communicating the Offer to the record and beneficial holders of Shares. Subject to the requirements of applicable laws and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer, the Axiohm Exchange, the Acquisition of Purchaser and the Merger, as applicable, Parent and Purchaser (and their agents) shall hold in confidence the information contained in any of such labels and lists and, if this Agreement shall be terminated, will upon request promptly deliver to the Company or any Subsidiary, including the amendments set forth destroy all copies of such information then in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders of the Company to approve and adopt the Transaction Agreements to which the Company possession or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stockcontrol.

Company Action. (a) The Company hereby approves of and consents to the Offer and represents that the Board, at a meeting duly called and held on June 10October 21, 20081998, by the affirmative vote of all members of the Board present at such meeting, has unanimously (i) determined that each of the Transaction Agreements to which Agreement, the Company or any Subsidiary is a party Offer and the Transactions applicable Merger are fair to the Company or any Subsidiary are and in the best interests of the Company and stockholders of the SubsidiariesCompany, (ii) approved, found advisable and adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to Merger (the Certificate of Designations of the Junior Preferred Stock (such approval "Transactions") and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 recommended that the stockholders of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they Company accept the Tender Offer and tender their shares pursuant of Company Common Stock to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer Merger Sub and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders of the Company to approve and adopt this Agreement and the Transaction Agreements Transactions. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Board described in the immediately preceding sentence, subject to the second sentence of Section 5.02. (b) Concurrently with the commencement of the Offer, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments and supplements thereto, the "Schedule 14D-9") containing the recommendation of the Board described in Section 1.02(a) and shall disseminate the Schedule 14D-9 to the extent required by Rule 14D-9 promulgated under the Exchange Act and any other applicable federal securities laws. The Schedule 14D-9 shall comply in all other material respects with the provisions of applicable federal securities laws. Each of the Company, Parent and Merger Sub agrees to correct promptly any information provided by it for use in the Schedule 14D-9 which shall have become false or misleading, 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 disseminated to holders of shares of Company Common Stock, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given reasonable opportunity to review the Schedule 14D-9 before it is filed with the SEC. The Company agrees to provide Parent and Merger Sub and their counsel any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments. (c) The Company shall cause its transfer agent to promptly furnish Merger Sub with mailing labels containing the names and addresses of all record holders of shares of Company Common Stock and with security position listings of shares of Company Common Stock held in stock depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of shares of Company Common Stock. The Company shall furnish Merger Sub with such additional information, including, without limitation, updated listings and computer files of stockholders, mailing labels and security position listings, and such other assistance as Parent, Merger Sub or their agents may reasonably request. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any Subsidiary is a party other documents necessary to consummate the Offer or the Merger, Parent and Merger Sub shall, and each of Parent and Merger Sub shall cause its affiliates, associates, agents and advisors to, (i) hold in confidence the information contained in such labels, listings and files, (ii) use such information only in connection with the Offer and the Transactions applicable Merger and (iii) if this Agreement is terminated in accordance with Article VIII, promptly deliver to the Company all copies (whether in human or any Subsidiary, including the amendments set forth machine readable form) of such information then in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocktheir possession.

Company Action. (a) The Company hereby approves of -------------- and consents to the Offer and represents that (i) the Board, at a meeting duly called and held on June 1027, 20081999, has unanimously duly adopted resolutions that (iA) determined that the Transaction Agreements to which the Company or any Subsidiary Merger is a party advisable and that this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the Company Holders, (B) approved and adopted this Agreement and the Subsidiaries, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock transactions contemplated hereby (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form provisions of Certificate (S) 203 of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock Delaware Law), (iiiC) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock recommended that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders of the Company to accept the Offer, approve the Merger and approve and adopt this Agreement and the Transaction Agreements transactions contemplated hereby and (D) took all other applicable action necessary to render (x) Section 203 of the General Corporation Law of the State of Delaware and other state takeover statutes and (y) the Rights Agreement, inapplicable to the Offer and the Merger, and (ii) Xxxxxxx Xxxxx & Co. ("Goldman") has delivered to ------- the Board its opinion (which will be confirmed in writing), as of the date hereof, that the consideration to be received by the holders of shares of Common Stock pursuant to each of the Offer and the Merger is fair to the holders of shares of Common Stock from a financial point of view. Subject to the fiduciary duties of the Board under applicable law as determined by the Board in good faith after receiving advice from independent counsel, the Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Board described in the immediately preceding sentence. The Company has advised Parent that each of its directors and executive officers intends to tender pursuant to the Offer all Shares owned of record and beneficially by him or her except to the extent such tender would violate applicable securities laws. (b) As soon as reasonably practicable on the date of commencement of the Offer, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments and supplements thereto, the "Schedule 14D-9") containing, subject to the fiduciary duties of -------------- the Board under applicable law as determined by the Board in good faith after receiving advice from experienced, independent counsel, the recommendation of the Board described in Section 1.02(a) and shall disseminate the Schedule 14D-9 to the extent required by Rule 14d-9 promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any other applicable federal ------------ securities laws. Parent and its counsel shall be given an opportunity to review and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The Company, Parent and Purchaser agree to correct promptly any information provided by any of them for use in the Schedule 14D-9 which shall have become false or misleading, 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 disseminated to Holders, in each case as and to the extent required by applicable federal securities laws. To the extent practicable, the Company shall cooperate with Parent and Purchaser in mailing or otherwise disseminating the Schedule 14D-9 with the Offer Documents to the Company's stockholders. The Company agrees to provide Parent and Purchaser and their counsel with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. (c) The Company shall promptly furnish to Purchaser mailing labels containing the names and addresses of all record Holders and with security position listings of Shares held in stock depositories, each as of a recent date, together with all stockholder lists, other available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of Shares. The Company shall furnish to Purchaser such additional information, including, without limitation, updated listings and computer files of stockholders, mailing labels and security position listings, and such other assistance as Parent, Purchaser or their agents may reasonably request. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any Subsidiary is a party other documents necessary to consummate the Offer or the Merger, Parent and Purchaser shall hold in confidence the information contained in such labels, listings and files, shall use such information only in connection with the Offer and the Transactions applicable Merger, and, if this Agreement shall be terminated in accordance with Section 8.01, shall deliver to the Company or any Subsidiary, including the amendments set forth all copies of such information then in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocktheir possession.

Company Action. (a) The BoardCompany hereby approves of and consents to the Offer and represents that the Board of Directors, at a meeting duly called and held on June 10held, 2008has, has subject to the terms and conditions set forth herein, unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to transactions contemplated hereby, including the Company or any Subsidiary Offer, the Merger (as defined in Section 2.1) and the Top-Up Option (as defined in Section 1.4) (collectively, the “Transactions”) are fair to, and in the best interests of, the holders of the Company and the Subsidiaries, Shares; (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve ) and adopt, if applicable, the final form that such approval constitutes approval of Certificate of Designations of Series B-1 Preferred Stock this Agreement and the Certificate Transactions for purposes of Designations of Series B-2 Preferred Stock ), (iiiA) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (ivB) Article Eleventh, paragraph (d)(i) of the Company’s certificate of incorporation, and (C) Article Fourteenth, paragraph (b)(i) of the Company’s certificate of incorporation; and (iii) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders of the Company accept the Offer, tender their Shares thereunder to Purchaser and approve and adopt this Agreement and the Transaction Agreements Merger. The Company hereby consents to the inclusion in the Offer Documents of the recommendation and approval of the Board described in the immediately preceding sentence, and the Company shall not withdraw or modify such recommendation in any manner adverse to Purchaser or Parent except as permitted by Section 7.2(c). The Company has been advised by its directors and executive officers that they intend to tender all Shares beneficially owned by them to Purchaser pursuant to the Offer. (b) The Company hereby agrees to file with the SEC as soon as reasonably practicable on the date of commencement of the Offer a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments or supplements thereto, the “Schedule 14D-9”) containing, except as permitted by Section 7.2(c), the recommendation described in Section 1.2(a)(iii). The Schedule 14D-9 will comply in all material respects with the applicable provisions of federal securities laws. Each of the Company, Parent and Purchaser agrees to promptly correct any information provided by them for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and to correct any material omissions, 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 disseminated to the holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent, Purchaser and their counsel shall be given an opportunity to review and comment upon the Schedule 14D-9 and any amendments thereto prior to the filing thereof with the SEC, and the Company shall give consideration to all the additions, deletions or changes suggested thereto by Parent, Purchaser or their counsel. The Company shall provide to Parent, Purchaser and their counsel any comments or other communications which the Company or may receive from the SEC with respect to the Schedule 14D-9 promptly after receipt thereof, and any Subsidiary is responses thereto. Parent, Purchaser and their counsel shall be given a party reasonable opportunity to review any such responses, and the Company shall give consideration to all additions, deletions or changes suggested thereto by Parent, Purchaser or their counsel. (c) In connection with the Offer, the Company will promptly furnish or cause the transfer agent for the Shares to furnish Parent and Purchaser with mailing labels, security position listings and any available listing or computer files containing the names and addresses of the record holders of the Shares as of a recent date, and shall promptly furnish Purchaser with such additional information and assistance (including, without limitation, updated lists of stockholders, mailing labels and lists of securities positions) as Purchaser or its agents may reasonably request in communicating the Offer to the record and beneficial holders of Shares. Subject to the requirements of applicable Law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger and any other Transactions applicable contemplated by this Agreement, Parent, Purchaser and their affiliates, associates, agents and advisors shall hold in confidence the information contained in any such labels, listings and files, shall use such information only in connection with the Transactions, and, if this Agreement shall be terminated, will deliver to the Company all copies of, and any extracts from or any Subsidiarysummaries of, including the amendments set forth such information then in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocktheir possession.

Company Action. (a) The BoardCompany’s Board of Directors, at a meeting duly called and held on June 10March 9, 20082007 has approved and declared advisable this Agreement and the transactions contemplated hereby, has unanimously including the Offer and the Merger; (iii) resolved, subject to Section 5.02, to recommend that the stockholders of the Company accept the Offer and tender their Shares pursuant to the Offer, (iii) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to transactions contemplated hereby, including the Company or any Subsidiary Offer and the Merger, are advisable, fair to, and in the best interests of the stockholders of the Company and that the Subsidiariesconsideration to be paid for each Share in the Offer and the Merger is fair to the holders of Shares; and (iv) took all other action (including all required amendments to the By-Laws of the Company) necessary to render Sections 3-602 and 3-701 through 3-710 of the MGCL and other state takeover statutes inapplicable to the transactions contemplated by the Offer, the Merger and this Agreement and the transactions contemplated hereby and thereby. Unless the recommendation of the Company’s Board of Directors is withdrawn in accordance with the terms of this Agreement, the Company hereby consents to the inclusion in the Offer Documents of the recommendations of the Company’s Board of Directors described in this Section 1.02. (b) The Company shall file with the SEC, as promptly as practicable after the filing by Purchaser of the Schedule TO with respect to the Offer but in any event on the date of commencement of the Offer, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that (i) will comply in all material respects with the provisions of all applicable federal securities Laws, and (ii) unless the recommendation of the Company’s Board of Directors is withdrawn in accordance with Section 6.03, will include the recommendations of the Company’s Board of Directors referred to in clause (ii) of Section 1.02(a) and the opinion(s) of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Duff & Xxxxxx, LLC (collectively, the “Company Financial Advisors”) referred to in Section 4.18. The Company agrees to mail such Schedule 14D-9 to the holders of Shares. Each of the Company, on the one hand, and Parent and Purchaser, on the other hand, agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that the Schedule 14D-9 shall be, or have become, false or misleading in any material respect, and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected, to be filed with the SEC and mailed to the Company’s stockholders, in each case to the extent required by applicable federal securities Laws. The Company shall provide Parent and its counsel with a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC and mailed to holders of Shares. In addition, the Company agrees to provide Parent and its counsel with any comments, whether written or oral, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt of such comments, to consult with Parent and its counsel prior to responding to any such comments and to provide Parent with copies of all such responses, whether written or oral. (c) In connection with the Offer, the Company shall promptly on Parent’s request furnish Parent and Purchaser 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 Common Stock as of the most recent practicable date and shall furnish Purchaser with such additional available information (including, but not limited to, updated lists of holders of Common Stock and their addresses, mailing labels and lists of security positions and non-objecting beneficial owner lists) and such other information and assistance as Parent or its agents may reasonably request for the purpose of communicating the Offer to the record and beneficial holders of Shares. The Company represents and warrants to Parent and Purchaser that it has been advised that each of its directors and executive officers intends to tender pursuant to the Offer all the Common Stock owned of record and beneficially by him or her except to the extent such tender would violate applicable federal securities laws. Subject to the requirements of applicable Law, and except for such steps as are necessary to mail the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent and Purchaser shall hold in confidence the information contained in such labels, listings and files, shall use such information solely in connection with the Offer and the Merger, and, if this Agreement is terminated in accordance with Section 8.01 or if the Offer is otherwise terminated, shall promptly deliver or cause to be delivered to the Company all copies of such information, labels, listings and files then in their possession or in the possession of their agents or representatives. (d) Provided that this Agreement has not been terminated in accordance with Section 8.01, Parent and Purchaser agree that in the event that the aggregate number of shares of Common Stock validly tendered and not withdrawn by an applicable Offer expiration date when taken together with all shares of Common Stock then owned by Parent, Purchaser and their affiliates (collectively, the “Base Shares”) equal or exceed at least 80% of the shares of Common Stock issued and outstanding immediately prior to the acceptance for payment and purchase of all Shares validly tendered pursuant to the Offer, Purchaser shall (and Parent shall cause Purchaser to) purchase (the “Top-Up Purchase”) at a price per share equal to the Offer Price up to that number of newly issued shares of the Common Stock (the “Top-Up Shares”) equal to the lowest number of shares of Common Stock that, when added to the Base Shares shall constitute a sufficient number of shares of Common Stock to effect a short-form merger under Section 3-106 of the MGCL; provided, that the foregoing percentage may be reduced by the Company in its sole discretion to the extent of available authorized shares. The Top-Up Purchase must be consummated by Purchaser on the Business Day following the applicable Offer expiration date contemporaneously with the acceptance for payment and purchase of all Shares validly tendered pursuant to the Offer. The parties shall cooperate to ensure that the issuance of the Top-Up Shares is accomplished consistent with all applicable legal requirements of all Governmental Entities, including compliance with an applicable exemption from registration of the Top-Up Shares under the Securities Act of 1933, as amended. The Company shall promptly issue and deliver to the Purchaser the Top-Up Shares, and the Parent or Purchaser shall promptly pay to the Company the Offer Price for such Top-Up Shares either, at the election of Purchaser, (i) in cash by wire transfer or cashier’s check, (ii) approved, adopted and declared advisable the Transaction Agreements by issuance by Purchaser to which the Company or any Subsidiary is of a party and the Transactions applicable promissory note on terms reasonably satisfactory to the Company or any Subsidiary, including (iii) by a combination of the amendments set forth foregoing. (e) Purchaser shall (and Parent shall cause Purchaser to) include in the Amendment Schedule TO disclosure that is reasonably designed to provide broad, non-discretionary distribution to the Certificate public of Incorporation, the Amended and Restated By-laws, the Amendment all material nonpublic information provided or made available to the Certificate of Designations of Parent or the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock Purchaser. (f) The Company shall take such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals action as may be necessary in connection with Section 7.13 required to approve and adopt, if applicable, cause the final form election of Certificate those individuals set forth on Company Disclosure Schedule 1.02(f) to the Company’s Board of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 Directors effective upon consummation of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders of the Company to approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock.

Company Action. (a) In connection with the Offer, the Company shall cause its transfer agent to furnish the Purchaser with mailing labels, security position listings and any available listings or computer files containing the names and addresses of record holders of the Shares as of a recent date, and shall furnish to the Purchaser such information and assistance as the Parent or the Purchaser may reasonably request in communicating the Offer to the Company's stockholders. Except for such steps as are necessary to disseminate the Offer Documents, Parent and the Purchaser shall hold in confidence the information contained in such labels, listings and filings, will use such information only in connection with the Offer and, if this Agreement is terminated, will, upon the request of the Company deliver or cause to be delivered to the Company all copies of such information then in its possession or in the possession of its agents or representatives. (b) The Board, Company hereby consents to the Offer and represents that the Board of Directors of the Company (at a meeting duly called and held on June 10, 2008, at which a quorum was present) as part of its approval of this Agreement has unanimously (i) approved the Offer, the Merger, the Stockholders Agreement, the amendment to the Certificate of Agreement and Plan of Merger Incorporation of the Company contemplated by Section 2.2 of this Agreement and the transactions contemplated by this Agreement, (ii) determined that each of the Transaction Agreements to which the Company or any Subsidiary is a party Offer and the Transactions applicable Merger is advisable and is fair to the Company or any Subsidiary are and in the best interests of the stockholders of the Company and the Subsidiaries, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders acceptance of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders approval and adoption of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to this Agreement by the stockholders of the Company (to approve the extent such approval and adopt adoption is required by applicable law). Promptly after the Transaction Agreements to which commencement of the Offer, the Company shall file a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or any Subsidiary is a party supplements thereto, and including all exhibits, the "Schedule 14D-9") with respect to the Offer, which shall contain the recommendations of the Board of Directors in favor of the Offer, the Merger and the Transactions applicable Agreement, except to the extent that the Board of Directors of the Company shall have withdrawn or any Subsidiary, including modified its approval of the amendments set forth in the Amendment to the Certificate of IncorporationOffer, the Amended Merger and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stockthis Agreement in accordance with Section 4.1(b).

Company Action. (a) The BoardCompany hereby consents to the Offer and represents that its Board of Directors, at a meeting duly called and held on June 10, 2008held, has unanimously (i) unanimously determined that this Agreement and the Transaction Agreements to which transactions contemplated hereby, including the Offer and the Merger (defined below in Section 2.1), and the Stockholder Option Agreement, dated as of August 25, 1999 (the "Stockholder Option Agreement"), among the stockholders of the Company or any Subsidiary is a party that are named therein ("Stockholders") and Merger Subsidiary, and the Transactions applicable transactions contemplated thereby, are fair to the Company or any Subsidiary are and in the best interests interest of the Company and the SubsidiariesCompany's stockholders, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party unanimously approved this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCLMerger, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock )Stockholder Option Agreement and the transactions contemplated thereby, (iii) approved Purchaser and its “affiliates” and “associates” (each as defined which approval satisfies in Section 203 of full the DGCL) becoming “interested shareholders” within the meaning requirements of Section 203 of the DGCLGeneral Corporation Law of the State of Delaware (the "Delaware Law"), and (iviii) unanimously resolved to recommend acceptance of the Offer and approval and adoption of this Agreement and the Merger by its stockholders. The Company further represents that Donaxxxxx, Xxfkxx & Xenrxxxx Xxxurities Corporation ("DLJ") has delivered to the Company's Board of Directors its opinion that the consideration to be paid in the Offer and the Merger is fair to the holders of the Remaining Shares from a financial point of the Preferred Stock view. The Company has been advised that they accept the Tender Offer each of its directors and executive officers presently intend either to tender their shares Shares pursuant to the Tender Offer or to vote in favor of the Merger. The Company will promptly furnish Parent and Merger Subsidiary with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case as of the most recent practicable date, and will provide to Parent and Merger Subsidiary such additional information (including, without limitation, updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Parent or Merger Subsidiary may reasonably request in connection with the Offer. (b) As soon as practicable on the day that the Offer is commenced the Company will file with the SEC and disseminate to holders of Shares a Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9") which shall reflect the recommendations of the Company's Board of Directors referred to above, (v) resolved to recommend subject to the holders fiduciary duties of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders Board of Directors of the Company to approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable as advised by Winsxxxx Xxxhxxxx & Xinixx X.X., counsel to the Company or Company. The Company, Parent and Merger Subsidiary each agrees promptly to correct any Subsidiary, including the amendments set forth information provided by it for use in the Amendment Schedule 14D-9 if and to the Certificate extent that it shall have become false or misleading in any material respect. The Company 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 holders of IncorporationShares, the Amended in each case as and Restated By-laws, the Amendment to the Certificate of Designations of extent required by applicable federal securities laws. Parent and its counsel shall be given an opportunity to review and comment on the Senior Preferred Stock and Schedule 14D-9 prior to its being filed with the Amendment to the Certificate of Designations of the Junior Preferred StockSEC.

Company Action. (a) The BoardCompany hereby consents to the Offer and represents that its board of directors (the “Board of Directors”), at a meeting duly called and held on June 10, 2008, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the Company and the SubsidiariesCompany’s stockholders, (ii) approved, approved and adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval Merger, and adoption having been made declared this Agreement advisable, in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve requirements of the Delaware General Corporation Law (“Delaware Law”) and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” resolved (each as defined in subject to Section 203 6.04(b)) to recommend acceptance of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders adoption of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to this Agreement by the stockholders of the Company. (b) The Company has been advised that, except as set forth in Section 1.02(b) of the Company Disclosure Schedule (as defined below), as of the date hereof, all of its directors and executive officers who own Shares intend to approve tender their Shares pursuant to the Offer. The Company shall promptly furnish Parent with a list of its stockholders, mailing labels and adopt any available listing or computer file containing the Transaction Agreements names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case true and correct as of the most recent practicable date, and shall provide to which Parent such additional information (including updated lists of stockholders, mailing labels and lists of securities positions) as Parent may reasonably request in connection with the Offer. (c) As promptly as practicable after the amendment to the Schedule TO is filed with the SEC pursuant to the first sentence of Section 1.01(b), but in no event later than five Business Days following the public announcement of the execution of this Agreement, the Company shall file with the SEC and, to the extent required by applicable U.S. securities laws, disseminate to holders of Shares an amendment to the Solicitation/Recommendation Statement on Schedule 14D-9 filed by the Company on July 11, 2007 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.04(b), shall reflect the recommendations of the Board of Directors referred to above. Each of the Company, Parent and Merger Subsidiary agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect. The Company shall cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. Parent, Merger Subsidiary and their counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule 14D-9 each time before it is filed with the SEC and (B) on any correspondence with the SEC (including comment response letters) concerning the Schedule 14D-9, and the Company shall give reasonable and good faith consideration to any comments made by Parent, Merger Subsidiary and their counsel. The Company shall provide Parent and Merger Subsidiary and their counsel with any written or oral comments the Company or any Subsidiary is a party and its counsel may receive from the Transactions applicable SEC with respect to the Company or any SubsidiarySchedule 14D-9 promptly, including but in no event later than twelve hours, after the amendments set forth in the Amendment to the Certificate receipt of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocksuch comments.

Company Action. (a) The Board, Company hereby consents to the Offer and represents that at a meeting duly called and held on June 10prior to the execution of this Agreement at which all directors of the Company were present, 2008, has the Company Board duly and unanimously adopted resolutions (i) determined declaring that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the Company and the SubsidiariesCompany’s shareholders, (ii) approved, adopted approving and declared declaring advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock )Merger, (iii) approved Purchaser approving and its adopting an amendment to the Company Rights Agreement to render the Company Rights inapplicable to this Agreement, the Tender and Support Agreement, the Escrow Agreement and the transactions contemplated hereby and thereby, including the Offer and the Merger, and (iv) recommending that the Company’s shareholders accept the Offer, tender their Company Shares to Merger Subsidiary pursuant to the Offer and grant the Shareholder Approval (such recommendation, the “affiliates” Board Recommendation”). At a meeting duly called and held prior to the execution of this Agreement at which all “associatesdisinterested directors” (each as defined in Section 203 302A.673 of the DGCLMBCA) becoming “interested shareholders” within of the meaning Company were present, a duly authorized special committee of the Company Board duly and unanimously adopted resolutions approving this Agreement, the Tender and Support Agreement, the Escrow Agreement and the transactions contemplated hereby and thereby for purposes of Section 203 302A.673 of the DGCL, (iv) resolved to recommend MBCA. Except to the extent permitted by Section 7.03(b), the Company hereby represents that no Adverse Recommendation Change has or shall have occurred. The Company hereby consents to the inclusion of the foregoing determinations and approvals in the Offer Documents and, to the extent that no Adverse Recommendation Change shall have occurred in accordance with Section 7.03(b), the Company hereby consents to the inclusion of the Board Recommendation in the Offer Documents. The Company shall promptly furnish Parent with a list of its shareholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of the Remaining Company Shares and lists of securities positions of Company Shares held in stock depositories, in each case true and correct as of the Preferred Stock most recent practicable date, and shall provide to Parent such additional information (including updated lists of shareholders, mailing labels and lists of securities positions) and such other assistance as Parent may reasonably request in connection with the Offer. (b) As soon as practicable on the day that they accept the Tender Offer is commenced, the Company shall file with the SEC and tender their shares pursuant disseminate to holders of Company Shares, in each case, as and to the Tender Offerextent required by applicable U.S. federal securities laws, a Solicitation/Recommendation Statement on Schedule 14D-9 (vtogether with any amendments or supplements thereto, the “Schedule 14D-9”) resolved that, subject to recommend Section 7.03(b), shall reflect the Board Recommendation. Each of Parent and Merger Subsidiary shall promptly furnish to the Company in writing all information concerning Parent and Merger Subsidiary that may be required by applicable securities laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. Each of the Company, Parent and Merger Subsidiary agrees promptly to correct 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. The Company 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 holders of the 12% Senior Notes that they accept the Exchange Offer Company Shares, in each case as and tender their notes pursuant to the Exchange Offerextent required by applicable U.S. federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 each time before it is filed with the SEC, and the Company shall give reasonable and good faith consideration to any comments made by Parent, Merger Subsidiary and their counsel. The Company shall provide Parent, Merger Subsidiary and their counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of those comments or other communications, and (viii) resolved a reasonable opportunity to recommend participate in the Company’s response to the stockholders of the Company those comments and to approve and adopt the Transaction Agreements provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with the Company or its counsel in any Subsidiary is a party and discussions or meetings with the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockSEC.

Company Action. (a) The Company hereby consents to the Offer and represents that its board of directors (the “Company Board”), at a meeting duly called and held on June 10, 2008prior to the execution of this Agreement, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the Company and the SubsidiariesCompany’s stockholders, (ii) approved, approved and adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made Merger, in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve requirements of Delaware Law and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 recommended acceptance of the DGCL) becoming Offer by the Company’s stockholders and the Stockholder Approval (such recommendation, the “interested shareholders” within Board Recommendation”). Except to the meaning of extent permitted by Section 203 7.04(b), the Company hereby represents that no Adverse Recommendation Change has occurred. The Company hereby consents to the inclusion of the DGCLforegoing determinations and approvals in the Offer Documents and, (iv) resolved to recommend the extent that no Adverse Recommendation Change shall have occurred in accordance with Section 7.04(b), the Company hereby consents to the inclusion of the Board Recommendation in the Offer Documents. The Company further represents that Nxxxxxx & Company, LLC has delivered to the Company Board its opinion that the consideration to be paid in the Offer and the Merger is fair to the holders of the Remaining Company Shares from a financial point of the Preferred Stock view. The Company has been advised that they accept the Tender Offer its directors and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer executive officers and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the certain stockholders of the Company have agreed to approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable tender their Tender Shares pursuant to the Company or any Subsidiary, including the amendments set forth in the Amendment Offer pursuant to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations terms of the Senior Preferred Stock Tender and Support Agreement. The Company shall promptly furnish Parent with a list of its stockholders, mailing labels and any available listing or computer file containing the Amendment to the Certificate names and addresses of Designations all record holders of Tender Shares and lists of securities positions of Tender Shares held in stock depositories, in each case true and correct as of the Junior Preferred Stock.most recent practicable date, and shall provide to Parent such additional information (including updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Parent may reasonably request in order to disseminate the Offer as required by Applicable Law. Subject to Applicable Laws, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent and Merger Subsidiary (and their respective agents) shall:

Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants to Parent and Merger Sub that (i) the Board, at a meeting duly called and held on June 10October 11, 20082001, has unanimously (iA) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to transactions contemplated hereby, including each of the Company or any Subsidiary Offer, the Stock Option, and the Merger (the Offer, the Stock Option, and the Merger, collectively, the "Transactions"), are fair to, and in the best interests of, the holders of the Company and the SubsidiariesShares, (iiB) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals including, without limitation, Section 203 thereof assuming that neither Parent nor Merger Sub are Interested Stockholders (as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as such term is defined in Section 203 of the DGCLDGCL with respect to the Transactions)) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, and (ivC) resolved to recommend that the holders of Shares accept the Offer and tender their Shares pursuant to the Offer, and approve and adopt this Agreement and the Transactions, and (ii) Xxxx Brothers & Company LLC has delivered to the Board its opinion that, as of the date of such opinion, the consideration to be received by the holders of Shares pursuant to each of the Offer and the Merger is fair to the holders of Shares from a financial point of view (the Remaining Shares "Fairness Opinion"), subject to the assumptions and qualifications contained in such opinion. The Company hereby consents to the inclusion in the Offer Documents of the Preferred Stock that they accept recommendation of the Tender Offer Board described in the immediately preceding sentence, and tender their shares pursuant neither the Board nor the Company shall withdraw or modify such recommendation in any manner adverse to Merger Sub or Parent except as and to the Tender Offerextent expressly provided in Section 5.3. (b) As soon as practicable after the date the Offer Documents are filed with the SEC, (v) resolved to recommend the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 containing the Fairness Opinion and, except and to the extent expressly provided in Section 5.3, the recommendation of the Board described in Section 1.2(a) (together with all amendments and supplements thereto, the "Schedule 14D-9"), and shall disseminate the Schedule 14D-9 to the extent required by Rule 14d-9 promulgated under the Exchange Act, and any other applicable federal securities laws. Each of Parent, Merger Sub and the Company agrees to correct promptly any information provided by it for use in the Schedule 14D-9 which 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 disseminated to holders of the 12% Senior Notes that they accept the Exchange Offer Shares, in each case as and tender their notes pursuant to the Exchange Offer, extent required by applicable federal securities laws. The Company shall give Parent and (vi) resolved its counsel a reasonable opportunity to recommend review and comment on the Schedule 14D-9 prior to such document being filed with the SEC or disseminated to holders of Shares. The Company shall provide Parent and its counsel with copies of any comments the Company or its counsel may receive from the SEC or its staff with respect to the stockholders Schedule 14D-9 after the receipt of such comments and shall provide Parent and its counsel with a reasonable opportunity to participate in the response of the Company to approve such comments. (c) The Company shall cooperate with and adopt promptly furnish or cause its transfer agent to furnish Parent and Merger Sub with the Transaction Agreements names and addresses of all record holders of Shares and with security position listings of Shares held in stock depositories, in each case that are true and correct as of the most recent practicable date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and Beneficial Owners of Shares. The Company shall cooperate with and promptly furnish or cause its transfer agent to which furnish Parent and Merger Sub with such additional information, including, without limitation, updated listings and computer files of stockholders, mailing labels and security position listings, and such other assistance in disseminating the Company Offer Documents to holders of Shares, as Parent or Merger Sub may reasonably request in connection with the Offer. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any Subsidiary is a party other documents necessary to consummate the Offer or the Merger, Parent and Merger Sub and each of their respective agents shall hold in confidence the Transactions applicable information contained in such labels, listings and files, shall use such information only in connection with the Transactions, and, if this Agreement shall be terminated in accordance with Section 8.1, shall deliver, and shall use their best efforts to cause their agents to deliver, to the Company all copies of such information and any extracts or any Subsidiary, including the amendments set forth summaries of or from such information then in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocktheir possession or control.

Company Action. (a) The BoardCompany hereby consents to the Offer and represents that its Board of Directors, at a meeting duly called and held on June 10, 2008, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the Company and the SubsidiariesCompany's stockholders, (ii) approved, approved and adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made Merger, in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve requirements of the General Corporation Law of the State of Delaware (the "DELAWARE LAW") and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” resolved (each as defined in subject to Section 203 6.04(b)) to recommend acceptance of the DGCLOffer and approval and adoption of this Agreement and the Merger by its stockholders. The Company further represents that Credit Suisse First Boston Corporation and CIBC World Markets Corp. (the "COMPANY FINANCIAL ADVISORS") becoming “interested shareholders” within have delivered to the meaning Company's Board of Section 203 of Directors their respective opinions that the DGCL, (iv) resolved consideration to recommend be paid in the Offer and the Merger is fair to the holders of Shares from a financial point of view. The Company also represents that it has been authorized by the Remaining Shares Company Financial Advisors to permit the inclusion of such opinions in their entirety in the Schedule 14D-9 and the Proxy Statement, so long as such inclusion is in form and substance reasonably satisfactory to the Company Financial Advisors and their counsel. The Company has been advised by each of its directors and by each executive officer who as of the Preferred Stock date hereof is actually aware (to the knowledge of the Company) of the transactions contemplated by this Agreement that they accept the Tender Offer and each such person intends to tender their shares pursuant to the Tender Offer all Shares owned by such person. The Company will promptly furnish Parent with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case true and correct as of the most recent practicable date, and will provide to Parent such additional information (including, without limitation, updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Parent or its agents may reasonably request in connection with the Offer, (v) resolved to recommend . Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent and Merger Subsidiary and each of their affiliates, associates, employees, agents and advisors shall hold in confidence the information contained in any such lists, labels, listings or files, shall use such information only in connection with the Offer and the Merger and, if this Agreement shall be terminated and if the Company so requests, shall deliver, and shall use their reasonable efforts to cause their affiliates, associates, employees, agents and advisors to deliver, to the Company all copies and any extracts or summaries from such information then in their possession or control. (b) As soon as practicable after the time that the Offer is commenced, the Company shall file with the SEC and disseminate to holders of the 12% Senior Notes that they accept the Exchange Offer Shares, in each case as and tender their notes pursuant to the Exchange Offerextent required by applicable federal securities laws, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the "SCHEDULE 14D-9") that shall reflect the recommendations of the Company's Board of Directors referred to above. The Company and (vi) resolved Parent each agree promptly to recommend correct any information provided by it for use in the Schedule 14D-9 if and to the stockholders extent that it shall have become false or misleading in any material respect. The Company 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 holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 prior to its filing with the SEC or dissemination to holders of Shares. The Company to approve shall provide Parent and adopt the Transaction Agreements to which its counsel with copies of any written comments that the Company or any Subsidiary is a party and its counsel may receive from the Transactions applicable SEC or its staff with respect to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate Schedule 14D-9 promptly after receipt of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocksuch comments.

Company Action. (a) The Board, at a meeting duly called Company hereby approves of and held on June 10, 2008, consents to the Offer and the Merger and represents and warrants that (X) the Special Committee has unanimously (i) determined adopted resolutions determining that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to transactions contemplated hereby, including the Company or any Subsidiary Offer and the Merger, are fair to, and in the best interests of, the stockholders of the Company other than Parent and recommending without qualification that the stockholders of the Company accept the Offer, tender their Shares thereunder to the Purchaser and approve and adopt this Agreement and the SubsidiariesMerger and (Y) the disinterested directors of the Company Board and the Company Board have each (i) unanimously adopted resolutions that approved and adopted this Agreement and the transactions contemplated hereby, including the Offer and the Merger and the transactions contemplated thereby, in all respects and (ii) approvedtaken all other action necessary to render any state takeover statutes inapplicable to the Offer and the Merger and the Tender Agreement and (Z) as required by Section 7.04 (e) of the Stock Purchase Agreement, adopted and declared advisable a majority of the Transaction Agreements to which directors on the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance Board who are not affiliated with the DGCL, subject to any Parent have approved the acquisition of additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, Shares by the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and Parent or its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares affiliates pursuant to the Tender Offer, (v) resolved to recommend to the holders terms of the 12% Senior Notes that they accept the Exchange Offer and the Merger. (b) The Company has been advised by each of its executive officers and each of its directors, that each such person intends to tender their notes pursuant to the Exchange OfferOffer all outstanding Shares owned or controlled by such person. The Company represents that the Special Committee has received the oral opinion of Broadview Associates LLC that the consideration to be received by holders of Shares pursuant to the Offer and the Merger is fair to such holders from a financial point of view, and the Company will provide a copy of the written form of such opinion to the Parent prior to the filing of the amendments to the Schedule 14D-1 and the Schedule 14D-9 contemplated hereby. (vic) resolved The Special Committee shall use its best efforts to recommend file with the SEC, on the date the Offer Documents are filed with the SEC, an amendment to the Schedule 14D-9 which contains the recommendations described in Sections 2.02(a)(X) (other than any recommendation with respect to the Merger), and shall mail the Schedule 14D-9 to the stockholders of the Company. The Schedule 14D-9 shall comply in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder on the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, and shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to approve information supplied in writing by the Parent or the Purchaser specifically for inclusion or incorporation by reference in the Schedule 14D-9, and adopt may contain a disclaimer to such effect. Each of the Transaction Agreements Company, the Parent and the Purchaser agrees promptly to which correct any information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect, and the Company further agrees to take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the Company's stockholders, in each case as and to the extent required by applicable federal securities laws. The Company agrees to provide the Parent and its counsel in writing with any comments the Company or any Subsidiary is a party and its counsel may receive from the Transactions applicable SEC or its Staff with respect to the Company Schedule 14D-9 promptly after the receipt of such comments. The Parent and its counsel shall be given all practicable opportunity to review and comment upon the Schedule 14D-9 and all amendments and supplements thereto prior to their filing with the SEC or any Subsidiary, including the amendments set forth in the Amendment dissemination to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations stockholders of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockCompany.

Company Action. (a) The Company here- by approves and consents to the Offer and represents that (i) the Special Committee has approved and recommended this Agree- ment and the Transactions, (ii) the Company Board, at a meeting duly called and held held, has, by unanimous vote of all directors present and voting (with all directors who are designees of Parent abstaining) and based on June 10, 2008, has unanimously the approval and recommendation of the Special Committee set forth in the preceding clause (i), (A) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable Transactions, in- cluding each of the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the Company holders of Shares (other than Parent and the Subsidiaries, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock Purchaser), (iiiB) approved Purchaser and its “affiliates” authorized this Agreement and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, Merger and (viC) resolved to recommend to recommended that the stockholders of the Company to accept the Offer and, if approval is required by ap- plicable law, approve and adopt this Agreement and the Transaction Agreements Merger, and (iii) Montxxxxxx Xxxurities has delivered to the Special Committee and to the Company Board its written opinion that the consideration to be received by the holders of Shares (other than Parent and Purchaser) in the Offer and the Merger is fair to such holders from a financial point of view. (b) The Company shall provide for inclusion in the Offer Documents any information reasonably requested by Parent or Purchaser, and, to the extent reasonably requested by Parent or Purchaser, the Company shall cooperate in the preparation of the Offer Documents. The Company hereby consents to the inclu- sion in the Offer Documents of the recommendation of the Com- pany Board and the recommendation of the Special Committee de- scribed in the immediately preceding sentence and represents that Montxxxxxx Xxxurities has consented to the inclusion of references to its opinion in the Offer Documents. (c) As soon as reasonably practicable on the date of commencement of the Offer, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 (to- gether with all amendments and supplements thereto, the "Sched- ule 14D-9") containing the recommendation of the Company Board described in Section 1.2(a) and shall disseminate the Schedule 14D-9 to the extent required by Rule 14d-9 promulgated under the Exchange Act and any other applicable federal or state se- curities laws. The Company, Parent and Purchaser agree to cor- rect promptly any information provided by any of them for use in the Schedule 14D-9 which shall have become false or mis- leading, and the Company further agrees to take all steps nec- essaxx xx cause the Schedule 14D-9 as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable federal or state securities laws. The Company shall give Parent and Pur- chaser and their counsel reasonable opportunity to review and comment upon the Schedule 14D-9 and any amendments thereto prior to the filing thereof with the SEC. The Company shall provide Parent and Purchaser and their counsel with a copy of any written comments or telephonic notification of any verbal comments the Company may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt thereof and shall provide Parent and Purchaser and their coun- sel with a copy of any written responses and telephonic notifi- cation of any verbal responses of the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stockits counsel.

Company Action. (a) The BoardCompany hereby approves of and consents to the Offer and the Merger and represents, warrants and covenants to the LUKOIL Entities that (i) the Company Board (at a meeting duly called and held on June 10, 2008, held) has unanimously by the unanimous vote of all directors present and voting (iA) determined that each of this Agreement, the Transaction Agreements to which the Company or any Subsidiary is a party Offer and the Transactions applicable Merger are fair to the Company or any Subsidiary are and in the best interests of the Company Company's stockholders, (B) approved this Agreement and the Subsidiaries, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock (Merger, and such approval and adoption having been made in accordance with is sufficient to render the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), restrictions on "business combinations" (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 3-601 of the DGCLMGCL) becoming “interested shareholders” within the meaning of set forth in Section 203 3-602 of the DGCLMGCL inapplicable to this Agreement and the transactions contemplated hereby, including the Offer and the Merger, (ivC) declared the advisability of this Agreement and resolved to recommend to acceptance of the Offer and approval of the Merger by the holders of the Remaining Shares of the Preferred Company Common Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to present the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend Merger to the stockholders of the Company if so required under the MGCL in order to approve complete the Merger, and adopt (D) resolved to elect not to be subject to any "moratorium", "control share acquisition", "business combination", "fair price" or other form of anti-takeover laws and regulations of any jurisdiction that may purport to be applicable to this Agreement or the Transaction Agreements to which transactions contemplated hereby, (ii) the Company Board or any Subsidiary is a party committee of the Company Board that administers any of the Company Equity Plans has resolved that the provisions of each Company Equity Plan that cause all Company Options thereunder to be cancelled and converted at the Effective Time shall be given full force and effect and shall not be waived, and the Transactions applicable Company Board has further authorized and directed each of the executive officers of the Company to take all actions reasonably necessary or appropriate to ensure that, on and after the Effective Time, there will be no Company Options outstanding that may be exercised for shares of capital stock of the Surviving Corporation, which actions, if requested by LUKOIL Americas, shall include the giving of written notice to holders of Company Options that such Company Options will be cancelled and converted at the Effective Time, (iii) the by-laws of the Company contain provisions opting out of the Maryland Control Share Acquisition Act, and (iv) ING Barings LLC ("ING Barings") has delivered to the Company or any SubsidiaryBoard its written opinion dated November 2, including 2000, to the amendments effect that, based upon and subject to the matters set forth in therein and as of the Amendment date thereof, the Merger Consideration to be received by the holders of shares of Company Common Stock pursuant to the Certificate Offer and the Merger is fair to such holders from a financial point of Incorporationview. The Company has been advised that all of its directors and executive officers who own shares of Company Common Stock intend to tender their shares of Company Common Stock pursuant to the Offer. (b) Promptly upon execution of this Agreement and in connection with the Offer, the Amended Company shall furnish Merger Sub with such information (including a list of the stockholders of the Company, mailing labels and Restated By-lawsa list of securities positions, each as of a recent date), and shall thereafter render such additional assistance as Merger Sub may reasonably request in communicating the Amendment Offer to the Certificate Company's stockholders (including updated lists of Designations stockholders, mailing labels and lists of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocksecurity positions).

Company Action. (a) The Company hereby consents to the Offer and represents and war- rants that the Board, at a meeting duly called and held on June 10, 2008held, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable Transactions, including the Offer, the Merger, and the purchase of shares of Company Common Stock and associated Rights contemplated by the Offer, are advisable and fair to the Company or any Subsidiary are and in the best interests of the Company and the SubsidiariesCompany's shareholders, (ii) approved, approved and adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any SubsidiaryTransactions, including the amendments set forth in the Amendment to the Certificate of IncorporationOffer, the Amended Merger, and Restated By-laws, the Amendment to the Certificate purchase of Designations shares of the Senior Preferred Company Common Stock and associated Rights contemplated by the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made Offer, in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 requirements of the DGCL, which approval satisfies in full the requirements of prior approval contained in Section 203(a)(1) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iii) resolved to recommend that the shareholders of the Company accept the Offer, tender their shares of Company Common Stock and associated Rights pursuant to the Offer and approve and adopt this Agreement and the Merger and (iv) resolved to recommend amend the Rights Agreement as contemplated herein. The Company hereby consents to the inclusion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement (as defined below) (if any) of such recommendation of the Board. The Company represents that the Board has received the written opinion (the "Bear Xxxxxxx Fairness Opinion") of Bear, ----------------------------- Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"), stating that the proposed consideration to ------------ be received by the holders of the Remaining Shares shares of the Preferred Company Common Stock that they accept the Tender Offer and tender their shares pursuant to the Tender OfferOffer and the Merger is fair to such holders from a financial point of view. The Company has been authorized by Bear Xxxxxxx to permit, (v) resolved to recommend subject to the holders prior review and consent by Bear Xxxxxxx (such consent not to be unreasonably with- held), the inclusion of the 12% Senior Notes Bear Xxxxxxx Fairness Opinion (or a reference thereto) in the Offer Documents and the Schedule 14D-9. The Company has been advised by each of its directors and by each executive officer of the Company who as of the date hereof is actually aware (to the knowledge of the Company) of the Transactions that they accept the Exchange Offer and each such person intends to tender their notes pursuant to the Exchange Offer all shares of Company Common Stock owned by such person. (b) The Company will cause its transfer agent to promptly furnish Parent and Purchaser with a list of the Company's shareholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of shares of Company Common Stock and lists of securities positions of shares of Company Common Stock held in stock depositories and to provide to Parent and Purchaser such additional information (including, without limitation, updated lists of shareholders, mailing labels and lists of securities positions) and such other assistance as Parent or Purchaser or their agents may reasonably request in connection with the Offer. Subject to the require ments of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Transactions, Parent and Purchaser and each of their affiliates, associates and agents will hold in confidence the information contained in any such labels, listings and files, will use such information only in connection with the Offer and the Merger and, if this Agreement is terminated, will deliver, and will use their reasonable efforts to cause their agents to deliver, to the Company all copies and any extracts or summaries from such information then in their possession or control. (c) As soon as reasonably practicable on the date of commencement of the Offer, the Company shall file with the SEC and (vi) resolved disseminate to recommend holders of shares of Company Common Stock, in each case as and to the stockholders extent required by applicable federal securities laws, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the "Schedule 14D-9") that shall reflect the recommendations of the Board referred -------------- to above. The Company and Parent each agrees promptly to approve correct any information provided by it for use in the Schedule 14D-9 if and adopt to the Transaction Agreements extent that it shall have become false or misleading in any material respect and to supplement the information provided by it specifically for use in the Schedule 14D-9 to include any information that shall become necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected or supplemented to be filed with the SEC and to be disseminated to holders of shares of Company Common Stock, in each case, as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 prior to its being filed with the SEC. The Company agrees to provide to Parent and Purchaser and their counsel with any comments or other communications which the Company or any Subsidiary is a party its counsel may receive from the Staff of the SEC with respect to the Schedule 14D-9 promptly after receipt thereof. Parent, Purchaser and the Transactions applicable Company each hereby agree to provide promptly such information necessary to the Company or any Subsidiary, including preparation of the amendments set forth in the Amendment exhibits and schedules to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Schedule 14D-9 and the Amendment to Offer Documents which the Certificate of Designations of the Junior Preferred Stockrespective party responsible therefor will reasonably request.

Company Action. (a) The Company approves of and consents to the Tender Offer and represents and warrants that its Board of Directors (the "Board"), at a meeting duly called and held acting on June 10, 2008the recommendation of the Special Committee, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated by it are fair to the Company or any Subsidiary are and in the best interests of the Company and the Subsidiariesits stockholders (other than Acquisition and Holdings), (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party approved this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated by it, including the amendments set forth Acquisition's acquiring 319,168 shares of Common Stock as described in the Amendment to the Certificate of IncorporationParagraph 1.1(a), the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Tender Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock Merger (such approval and adoption having been made described in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock Article 2), and (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to that the holders of the Remaining Shares of the Preferred Stock that they Company's stockholders accept the Tender Offer and Offer, tender their shares pursuant in response to the Tender Offer, (v) resolved to recommend to the holders and, if approval of the 12% Senior Notes that they accept Company's stockholders is required by applicable law in order to consummate the Exchange Offer Merger, adopt and tender their notes pursuant to approve this Agreement and the Exchange OfferMerger. Simultaneously with the execution of this Agreement, each of the directors and (vi) resolved to recommend to the stockholders executive officers of the Company has agreed to approve tender and adopt sell his or her shares of Common Stock in response to the Transaction Agreements Tender Offer, except that directors and executive officers whose sales of their shares in response to which the Tender Offer might result in liability under Section 16(b) of the Exchange Act have agreed that if they do not tender and sell their shares in response to the Tender Offer, they will vote their shares in favor of the Merger. Notwithstanding anything contained in this subparagraph (a) or elsewhere in this Agreement, if the Board or the Special Committee, based upon written advice from its respective counsel, determines in good faith to withdraw, modify or amend the recommendation, because the failure to do so could reasonably be expected to be a breach of the directors' fiduciary duties under applicable law, neither that withdrawal, modification or amendment, nor any announcement of it (or of an Acquisition Proposal, as that term is defined below), will constitute a breach of this Agreement. (b) The Company will file with the SEC, promptly after Acquisition files the Schedule TO, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements, the "Schedule 14D-9") containing the recommendations described in subparagraph (a) (except to the extent that recommendation may be withdrawn, modified or amended under the circumstances described in subparagraph (a)) and will disseminate the Schedule 14D-9 as required by Rule 14d-9 under the Exchange Act. The Company and Acquisition each agrees to correct promptly any information provided by it for use in the Schedule 14D-9 if and to the extent that information is or becomes incomplete or inaccurate in any material respect and the Company will file any corrected Schedule 14D-9 with the SEC and disseminate the corrected Schedule 14D-9 to the Company's stockholders to the extent required by the Exchange Act or the rules under it. (c) In connection with the Tender Offer, the Company will (or will cause its transfer agent to) promptly furnish Acquisition with mailing labels, security position listings and any Subsidiary is other available listing or computer files containing the names and addresses of the record holders or beneficial owners of shares of Common Stock as of a party recent date and the Transactions Company will furnish Acquisition with such additional information and assistance (including, without limitation, updated lists of stockholders, mailing labels and lists of securities positions) as Acquisition or its representatives may reasonably request in order to communicate the Tender Offer to the record holders and beneficial owners of the Common Stock. Subject to the requirements of applicable law, Acquisition will hold in confidence the information contained in any such labels, listings or files, and will use that information only in connection with the Tender Offer and the Merger. If this Agreement is terminated, Acquisition will return to the Company or any Subsidiary, including the amendments set forth originals and all copies of that information which are in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockAcquisition's possession.

Company Action. (a) The Board, Company hereby approves of and consents to the Offer and the Merger and represents that at a meeting duly called and held on June 10, 2008, has unanimously (i) determined that prior to the Transaction Agreements to execution of this Agreement at which all directors of the Company or any Subsidiary is a party were present, the Company’s Board of Directors duly and unanimously adopted resolutions (A) declaring that this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the Company Company’s stockholders, (B) approving and declaring advisable this Agreement and the Subsidiaries, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock Merger, (such approval and adoption having been made in accordance with the DGCL, C) subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock 5.02(f), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of recommending that the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they Company’s stockholders accept the Tender Offer and Offer, tender their shares of Company Common Stock to Merger Sub pursuant to the Tender OfferOffer and, (v) resolved to recommend to the holders extent required to consummate the Merger, adopt this Agreement by action of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to written consent of the stockholders of the Company (such recommendations, the “Board Recommendation”), and (D) directing that the adoption of this Agreement be submitted, as promptly as practicable upon consummation of the Offer, to approve Merger Sub (in its capacity as a stockholder of the Company) and adopt any other stockholders of the Transaction Agreements Company requested by Parent for action by written consent, if required to which consummate the Merger under the DGCL (such actions by the Board of Directors of the Company described in clauses (A) through (D), collectively, the “Board Actions”). Prior to the Expiration Date (as it may be extended hereunder), the Compensation Committee of the Company’s Board of Directors, consisting solely of independent directors, will have taken all such actions as may be required to cause to be exempted under Rule 14d-10(d)(2) under the Exchange Act, any and all employment, compensation, severance and employee benefit agreements and arrangements that have been entered into or granted by the Company or any Subsidiary is a party and of its Subsidiaries before, on or after the Transactions applicable date of commencement of the Existing Offer with or to current or future directors, officers, or employees of the Company or any Subsidiary, including of its Subsidiaries. (b) The Company hereby consents to the amendments inclusion of the Board Actions and other approvals set forth in paragraph (a) in the Amendment Offer Documents and, to the Certificate of Incorporationextent that no Adverse Recommendation Change (as defined herein) shall have occurred in accordance with Section 5.02(f), the Amended Company hereby consents to the inclusion of the Board Recommendation in the Offer Documents. The Company shall promptly furnish Parent with an updated list of its stockholders, non-objecting beneficial owners, mailing labels and Restated Byany available listing or computer file containing the names and addresses of all record holders of shares of Company Common Stock and lists of securities positions of shares of Company Common Stock held in stock depositories, in each case as of the most recent practicable date, and shall provide to Parent such additional information (including updated lists of stockholders, non-lawsobjecting beneficial holders, mailing labels and lists of securities positions) and such other assistance as Parent may reasonably request in connection with the Offer. (c) The Company shall, as promptly as reasonably practicable (and, in any event, not later than the second (2nd) business day following the date the Schedule TO Amendment is filed with the SEC), file with the SEC and disseminate to holders of shares of Company Common Stock (1) an amendment (the “Schedule 14D-9 Amendment”) to the Company’s Solicitation/Recommendation Statement on Schedule 14D-9 originally filed on September 26, 2008 with respect to the Existing Offer (together with any amendments or supplements thereto (including the Schedule 14D-9 Amendment), the Amendment “Schedule 14D-9”) that shall reflect the terms and conditions of this Agreement and, subject to Section 5.02(f), shall reflect the Board Recommendation and shall include the other Board Actions and (2) if Parent shall have theretofore provided the information required by the last sentence of Section 1.03(b), a King Nominee Information Statement (as defined herein), which King Nominee Information Statement shall, for the avoidance of doubt, be included in the Schedule 14D-9 and filed with the SEC as required by Section 1.03(b). Each of the Company, Parent and Merger Sub shall promptly correct any information provided by it for use in the Schedule 14D-9 (including the King Nominee Information Statement) if and to the Certificate extent that it shall have become false or misleading in any material respect. The Company 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 holders of Designations shares of Company Common Stock, in each case, as and to the extent required by applicable Law. The Company shall promptly provide Parent, Merger Sub and their counsel with any comments or other communications, whether written or oral, that Parent, Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of those comments or other communications. (d) To the Knowledge of the Senior Preferred Company, all of its directors and executive officers who own shares of Company Common Stock and intend to tender their shares of Company Common Stock (together with the Amendment associated Rights) pursuant to the Certificate of Designations of Offer prior to the Junior Preferred StockExpiration Date.

Company Action. (a) The Board, at a meeting duly called Company hereby approves of and held on June 10, 2008, has unanimously consents to the Offer and the Merger and represents and warrants that (i) determined that the Transaction Agreements Board has, subject to the terms and conditions set forth herein, adopted final and binding resolutions, which have not been amended or repealed, pursuant to which the Company or any Subsidiary is a party Board (A) determined that this Agreement, and the Transactions applicable to transactions contemplated hereby and thereby, including the Company or any Subsidiary Offer and the Merger, are fair to, and in the best interests of, the stockholders of the Company Company, (B) approved and adopted this Agreement, and the Subsidiaries, Stockholders Agreement (iidefined herein) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable transactions contemplated hereby and thereby, including without limitation, the Merger and the acquisition of Shares by Parent or Acquisition pursuant to the Company or any Subsidiaryoptions granted by the Stockholders under the Stockholders Agreement, including and such approval (the amendments set forth in "Section 203 Approval") constitutes the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations approval of the Senior Preferred Stock and foregoing for the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning purposes of Section 203 of the Delaware General Corporation Law ("DGCL"), (ivC) resolved taken all necessary action to recommend avoid the occurrence of a "Distribution Date" (as defined in the Rights Agreement referred to in Section 2.8) with respect to the Rights, and (D) recommended that the stockholders of the Company accept the Offer, tender their Shares thereunder to Acquisition and, if required by law, approve and adopt this Agreement and the Merger (provided, however, that subject to the provisions of Section 5.3 such recommendation may be withdrawn, modified or amended in connection with a Superior Proposal (as defined in Section 5.3)) and (ii) PaineWebber Incorporated and TM Capital Corp. have each delivered to the Board a written opinion to the effect that, as of the date of such opinion, the consideration to be received by the holders of the Remaining Shares of (other than the Preferred Stock that they accept the Tender Offer Parent, GP, Acquisition and tender their shares affiliates) pursuant to the Tender Offer, (v) resolved Offer and Merger is fair to recommend such holders from a financial point of view. Subject only to the holders provisions of Section 5.3, the Company hereby consents to the inclusion in the Offer Documents of the 12% Senior Notes that they accept recommendation of the Exchange Offer and tender their notes pursuant Board described in the immediately preceding sentence. (b) The Company hereby agrees to file with the SEC as soon as practicable after the date hereof a Solicitation/Recommendation Statement on Schedule 14D-9 pertaining to the Exchange OfferOffer (together with any amendments thereof or supplements thereto, the "Schedule 14D-9") containing the recommendation described in Section 1.2(a) and (vi) resolved to recommend promptly mail the Schedule 14D-9 to the stockholders of the Company. The Company represents and warrants that the Schedule 14D-9 will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published or sent or given to approve and adopt the Transaction Agreements Company's stockholders, as the case may be, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Parent, GP or Acquisition in writing for inclusion in the Schedule 14D-9. The Company, Parent, GP and Acquisition each agrees promptly to correct any Subsidiary is a party information provided by it for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading in any material respect and the Transactions Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and disseminated to the holders of Shares, in each case as and to the extent required by applicable federal securities laws. (c) In connection with the Offer, the Company will promptly furnish Parent and Acquisition with mailing labels, security position listings and any available listing or computer files containing the names and addresses of the record holders of the Shares as of a recent date and shall furnish Acquisition with such additional information and assistance (including, without limitation, updated lists of stockholders, mailing labels and lists of securities positions) as Acquisition or its agents may reasonably request in communicating the Offer to the record and beneficial holders of Shares. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Parent, GP, Acquisition and their affiliates, associates, agents and advisors shall hold in confidence the information contained in any of such labels and lists, and use the information contained in any such labels, listings and files only in connection with the Offer and the Merger, and, if this Agreement shall be terminated, will deliver to the Company or any Subsidiary, including the amendments set forth all copies of such information then in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocktheir possession.

Company Action. (a) The Company hereby approves of and consents to the Offer and represents that (i) the Independent Directors Committee has unanimously approved and recommended this Agreement (including all terms and conditions set forth herein) and the Transactions, (ii) the Company Board, at a meeting duly called and held on June 10, 2008held, has unanimously by a unanimous vote of the directors present, based on the approval and recommendation of the Independent Directors Committee set forth in the preceding clause (i), (A) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable Transactions, including each of the Offer and the Merger, are advisable and fair to the Company or any Subsidiary are and in the best interests of the Company holders of Shares (other than Cordant Holdings and the Subsidiaries, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock Purchaser), (iiiB) approved Purchaser and its “affiliates” authorized this Agreement and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, Merger and (viC) resolved to recommend to recommended that (1) the stockholders of the Company to (other than Cordant Holdings and Purchaser) accept the Offer and (2) the stockholders of the Company, if approval is required by applicable law, approve and adopt this Agreement and the Transaction Agreements Merger, and (iii) Xxxxxxx, Xxxxx & Co. (the "Howmet Financial Advisor") has delivered to which the Independent Directors Committee its opinion that, as of the date of this Agreement, the consideration to be received by the holders of Shares (other than Cordant Holdings and Purchaser) in the Offer and the Merger is fair to such holders from a financial point of view. (b) The Company shall provide for inclusion in the Offer Documents any information reasonably requested by Parent or Purchaser, and, to the extent reasonably requested by Parent or Purchaser, the Company shall cooperate in the preparation of the Offer Documents. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Company Board and the recommendation of the Independent Directors Committee described in Section 1.2(a). (c) As soon as reasonably practicable on the date of filing by Purchaser of the amended Offer, the Company shall file with the SEC an amendment to its Solicitation/Recommendation Statement on Schedule 14D-9 (as amended and supplemented, together with all further amendments and supplements thereto, the "Schedule 14D-9") containing the recommendation of the Independent Directors Committee and the Company Board described in Section 1.2(a) and shall disseminate the Schedule 14D-9 to the extent required by Rule l4d-9 promulgated under the Exchange Act and any other applicable law. The Schedule 14D-9 shall comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder. The Schedule 14D-9 shall not, at the respective times the Schedule 14D-9 or any Subsidiary is amendments or supplements thereto are filed with the SEC or are first published, sent or given to stockholders of the Company, as the case may be, contain any untrue statement of a party material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they are made, not misleading. The Company, Parent and Purchaser agree to correct promptly any information provided by any of them for use in the Schedule 14D-9 which shall have become false or misleading, and the Transactions applicable Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and disseminated to holders of Shares, in each case as and to the extent required by applicable law. The Company shall give Parent and Purchaser and their counsel reasonable opportunity to review the Schedule 14D-9 and any amendments thereto prior to the filing thereof with the SEC. The Company shall provide Parent and Purchaser and their counsel with a copy of any written comments or telephonic notification of any Subsidiaryoral comments the Company may receive from the SEC or its staff with respect to the Schedule l4D-9 promptly after the receipt thereof The Company shall provide Parent, Purchaser and their counsel with a reasonable opportunity, to the extent practicable, to participate in all communications with the SEC and its staff, including the amendments set forth in the Amendment any meetings and telephone conferences, relating to the Certificate of IncorporationSchedule 14D-9, the Amended and Restated By-laws, Transactions or this Agreement. In the Amendment event that the Company receives any comments from the SEC or its staff with respect to the Certificate of Designations of Schedule 14D-9, it shall use its reasonable best efforts to respond promptly to such comments and take all other actions reasonably necessary to resolve the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stockissues raised therein.

Company Action. (a) The BoardCompany hereby approves of and consents to the Offer and represents and warrants that: (i) its Board of Directors, at a meeting duly called and held on June 10September 29, 20081998, has unanimously (iA) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to transactions contemplated hereby, including the Company or any Subsidiary Offer and the Merger, are advisable and in the best interests of the Company and the Subsidiariesholders of Shares, (B) approved this Agreement, the Stock Option Agreement, and the transactions contemplated hereby and thereby, including each of the Offer and the Merger, and (C) resolved to recommend that the stockholders of the Company accept the Offer, tender their Shares to Purchaser thereunder and adopt this Agreement; provided, however, that prior to the consummation of the Offer, if -------- ------- the Company's Board of Directors by majority vote shall have determined in good faith, based upon the advice of outside counsel to the Company, that failure to modify or withdraw its recommendation is reasonably likely to constitute a breach of the Board's fiduciary duty under applicable law, then the Board of Directors may so modify or withdraw its recommendation; and (ii) approvedXxxxxx Xxxxxxxxxx Xxxxx, adopted and declared advisable Inc. (the Transaction Agreements "Financial Adviser"), has delivered to which the Board of Directors of the Company or any Subsidiary is a party its opinion that the consideration to be paid to the holders of Shares, other than Parent and Purchaser, pursuant to each of the Offer and the Transactions applicable Merger is fair to such holders from a financial point of view. The Company has been authorized by the Company or any Subsidiary, including the amendments set forth in the Amendment Financial Adviser to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCLpermit, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve prior review and adopt, if applicableconsent by such Financial Adviser, the final form inclusion of Certificate of Designations of Series B-1 Preferred Stock such fairness opinion, in its entirety, in the Schedule14D-9 (as defined in subsection (b) hereof) and the Certificate of Designations of Series B-2 Preferred Stock ), Proxy Statement (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 3.12). The Company hereby consents to the inclusion in the Offer Documents of the DGCL) becoming “interested shareholders” within the meaning of Section 203 recommendations of the DGCL, Company's Board of Directors described in this Section 1.2(a). (ivb) resolved to recommend to As soon as reasonably practicable after the holders date hereof (and in any event within five business days from the date of public announcement of the Remaining Shares execution hereof), the Company shall file with the SEC, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments and supplements thereto, the "Schedule 14D-9"), containing the recommendations of the Preferred Stock that they accept Company's Board of Directors described in and subject to Section 1.2(a)(i) and shall promptly mail the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend Schedule 14D-9 to the stockholders of the Company. The Company to approve represents and adopt warrants that the Transaction Agreements to which Schedule 14D-9 will comply in all material respects with all applicable laws, including without limitation the Company or any Subsidiary is a party Exchange Act and the Transactions applicable rules and regulations promulgated thereunder and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein not misleading; provided, however, that the representations and warranties in this subsection -------- ------- shall not apply to statements in or omissions from the Schedule 14D-9 made in reliance upon and in conformity with information furnished to the Company in writing by or on behalf of Parent or Purchaser. Parent and Purchaser and their counsel shall be given an opportunity to review the Schedule 14D-9 before it is filed with the SEC. The Company shall promptly provide to Parent and Purchaser a copy of any Subsidiarywritten comments received by it from the SEC with respect to the Schedule 14D-9. The Company, including the amendments set forth Parent and Purchaser shall promptly correct any information provided by it for use in the Amendment Schedule 14D-9 that 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 disseminated to holders of Shares, in each case as and to the Certificate of Incorporationextent required by applicable federal securities laws. (c) In connection with the Offer, the Amended Company shall promptly furnish Purchaser with mailing labels, security position listings, any non-objecting beneficial owner lists and Restated Byany available listings or computer files containing the names and addresses of the record holders of Shares, each as of a recent date, and shall promptly furnish Purchaser with such additional information (including but not limited to updated lists of stockholders, mailing labels, security position listings and non-lawsobjecting beneficial owner lists) and such other customary assistance as Parent, Purchaser or their agents may reasonably require in communicating the Amendment Offer to the Certificate record and beneficial holders of Designations Shares. Subject to the requirements of law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer and the Merger, Purchaser, Parent and each of their affiliates, agents and associates shall hold in confidence the information contained in any of such lists, labels or additional information subject to the terms and conditions of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockConfidentiality Agreement (as defined below).

Company Action. (a) The Board, at a meeting duly called and held on June 10, 2008, has unanimously Company represents that (i) determined the Board of Directors of the Company (the "Board of Directors") has by unanimous vote of those present at the meeting at which the Offer and the Merger were considered duly approved the Offer and the Merger and this Agreement and has resolved to recommend acceptance of the Offer and approval of the Merger by the Company's shareholders; (ii) the affirmative vote of the holders of record of at least two-thirds of the Shares outstanding on the record date for the Special Meeting (defined below) and entitled to vote (the "Requisite Shareholder Approval") is the only vote of the holders of any class or series of the capital stock of the Company required to approve the Merger; and (iii) the Company has taken all necessary actions so that the Transaction Agreements provisions of Article Eleven of the Company's Articles of Incorporation will not apply to which this Agreement, the Offer, the Merger, or the acquisition of Shares by Parent or Sub pursuant to this Agreement. In addition, the Company or any Subsidiary is a party and the Transactions applicable represents that it has adopted Amendment No. 2 to the Rights Agreement dated as of October 14, 1988 by and between the Company or any Subsidiary are in and First Alabama Bank as Rights Agent, as amended by the best interests Amendment to Rights Agreement dated as of October 16, 1992 by and between the Company and the SubsidiariesRights Agent (as so amended, (iithe "Rights Agreement") approved, adopted and declared advisable the Transaction Agreements to which that a copy of such Amendment No. 2 has been delivered by the Company to Parent; that as of the date hereof and after giving effect to the execution and delivery of this Agreement, each Right is represented by the certificate representing the associated Share and is not exercisable or transferable apart from the associated Share; that there has not been a "Distribution Date" or "Shares Acquisition Date," and that the Company has taken all necessary actions so that the execution and delivery of this Agreement and the consummation of the Offer and the Merger will not result in the triggering of the provisions of Section 11 or Section 13 of the Rights Agreement or the occurrence of a "Distribution Date" or "Shares Acquisition Date" and will not result in Parent, Sub or any Subsidiary is a party of their affiliates or associates becoming an "Acquiring Person" (as such terms are defined in the Rights Agreement) and that upon consummation of the Offer the Rights will no longer be outstanding and the Transactions applicable former holders of the Rights will not have any claims or rights thereunder (without any necessity to redeem the Rights to effectuate the foregoing). The Company has been advised that all of its directors intend either to tender their Shares pursuant to the Company Offer or any Subsidiary, including the amendments set forth (solely in the Amendment case of directors who would as a result of the tender incur liability under Section 16(b) of the Exchange Act) to vote in favor of the Certificate of IncorporationMerger. (b) On the date the Schedule 14D-1 is filed with the SEC, the Amended Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments and Restated By-lawssupplements thereto, the Amendment "Schedule 14D-9") and shall take such steps as are reasonably necessary to cause the Certificate of Designations of the Senior Preferred Stock and the Amendment Schedule 14D-9 to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend disseminated to the holders of the Remaining Shares as and to the extent required by applicable federal securities laws. Subject to the provisions of Sections 5.2 and 8.3, the Offer Documents and the Schedule 14D-9 shall contain the recommendation of the Preferred Stock Board of Directors that they the Company's shareholders accept the Tender Offer and tender their shares pursuant vote to approve the Merger. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 prior to its being filed with the SEC or disseminated to the Tender OfferCompany's shareholders. The Company shall provide Parent and its counsel with a copy of any written comments that the Company receives from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of any such comments. (c) The Company shall promptly furnish Sub with mailing labels containing the names and addresses of the record holders of Shares and with lists of securities positions of Shares held in stock depositories, (v) resolved to recommend each as of a recent date, and shall furnish Sub with such additional information, including updated lists of shareholders, mailing labels and lists of securities positions, as Sub may reasonably request for the purpose of communicating the Offer to the holders of the 12% Senior Notes that they accept the Exchange Offer Shares. Except as and tender their notes pursuant to the Exchange Offerextent required by law and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent and Sub shall hold in confidence the information contained in such labels and listings, and (vi) resolved to recommend any other information relating to the stockholders holders of the Company to approve and adopt the Transaction Agreements to which Shares received from the Company or any Subsidiary is a party its transfer agent, shall use such information only in connection with the Offer and the Transactions applicable Merger, and, if this Agreement is terminated in accordance with Section 8.1, shall deliver to the Company or any Subsidiaryall such information, including the amendments set forth all copies of and extracts or summaries from such information, then in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocktheir possession or control.

Company Action. (a) The BoardCompany hereby consents to the Offer and represents that the Board of Directors, at a meeting duly called and held on June 10, 2008, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to transactions contemplated hereby, including the Company or any Subsidiary Offer and the Merger, are advisable and in the best interests of the Company and the Subsidiariesits stockholders, (ii) approved, adopted this Agreement and declared advisable approved the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made Merger, in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form requirements of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock )Maryland Law, (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in resolved, subject to Section 203 7.04(b), to recommend acceptance of the DGCL) becoming “interested shareholders” within the meaning of Section 203 Offer and, if required by Applicable Law, approval of the DGCL, Merger by its stockholders and (iv) resolved taken all other actions necessary to recommend exempt the Offer, the Merger, this Agreement and the transactions contemplated hereby from any “fair price”, “moratorium”, “control share acquisition”, “interested stockholder”, “business combination” or other similar statute or regulation promulgated by a Governmental Authority (“Takeover Statute”). The Company has been advised that all of its directors and executive officers who own Shares intend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares Shares pursuant to the Tender Offer. The Company shall promptly furnish Parent with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case, true and correct as of the most recent practicable date, and shall provide to Parent such additional information (vincluding updated lists of stockholders, mailing labels and lists of securities positions) resolved and such other assistance as Parent may reasonably request in connection with the Offer. (b) On the day that the Offer is commenced, the Company shall file with the SEC and disseminate to recommend holders of Shares, in each case, as and to the extent required by applicable U.S. federal securities laws, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 7.04(b), shall reflect the recommendations of the Board of Directors referred to above. Each of the Company, Parent and Merger Subsidiary agrees promptly to correct 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. The Company shall use its reasonable best efforts to cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to holders of the 12% Senior Notes that they accept the Exchange Offer Shares, in each case, as soon as reasonably practicable and tender their notes pursuant as and to the Exchange Offerextent required by applicable U.S. federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 each time before it is filed with the SEC, and (vi) resolved to recommend to the stockholders of the Company shall give reasonable and good faith consideration to approve any comments made by Parent, Merger Subsidiary and adopt the Transaction Agreements to which their counsel. The Company shall provide Parent, Merger Subsidiary and their counsel with (i) any comments or other communications, whether written or oral, that the Company or any Subsidiary is a party and its counsel may receive from time to time from the Transactions applicable SEC or its staff with respect to the Company Schedule 14D-9 promptly after receipt of those comments or any Subsidiary, including the amendments set forth other communications and (ii) a reasonable opportunity to participate in the Amendment Company’s response to the Certificate of Incorporation, the Amended those comments and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock provide comments on that response (to which reasonable and the Amendment to the Certificate of Designations of the Junior Preferred Stockgood faith consideration shall be given).

Company Action. (a) The Board, Company hereby consents to the Offer and represents that at a meeting duly called and held on June 10prior to the execution of this Agreement at which all directors of the Company were present, 2008, has the Company Board duly and unanimously adopted resolutions (i) determined declaring that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the Company and the SubsidiariesCompany’s stockholders, (ii) approved, adopted approving and declared declaring advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made Merger, in accordance with the DGCLrequirements of the Delaware Law, subject and (iii) recommending that the Company’s stockholders accept the Offer and tender their Company Shares to any additional Board approvals as may be necessary in connection with Section 7.13 Merger Subsidiary pursuant to approve and adoptthe Offer and, if applicable, vote in favor of the final form adoption of Certificate this Agreement (such recommendation, the “Board Recommendation”). The Company hereby consents to the inclusion of Designations of Series B-1 Preferred Stock the foregoing determinations and approvals in the Certificate of Designations of Series B-2 Preferred Stock Offer Documents and, to the extent that no Adverse Recommendation Change shall have occurred in accordance with Section 7.03(b), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 the Company hereby consents to the inclusion of the DGCL) becoming “interested shareholders” within Board Recommendation in the meaning of Section 203 Offer Documents. As of the DGCLdate hereof, (iv) resolved the Company has been advised that all of its directors and executive officers who own Company Shares intend to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares Company Shares pursuant to the Tender Offer. The Company shall promptly furnish Parent with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Company Shares and lists of securities positions of Company Shares held in stock depositories, in each case true and complete as of the most recent practicable date, and shall provide to Parent such additional information (vincluding updated lists of stockholders, mailing labels and lists of securities positions) resolved and such other assistance as Parent may reasonably request in connection with the Offer. (b) As soon as practicable on the day that the Offer is commenced, the Company shall file with the SEC and disseminate to recommend holders of Company Shares, in each case, as and to the extent required by applicable U.S. federal securities laws, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 7.03(b), shall reflect the Board Recommendation. Each of Parent and Merger Subsidiary shall promptly furnish to the Company in writing all information concerning Parent and Merger Subsidiary that may be required by applicable securities laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. Each of the Company, Parent and Merger Subsidiary agrees promptly to correct 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. The Company 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 holders of the 12% Senior Notes that they accept the Exchange Offer Company Shares, in each case as and tender their notes pursuant to the Exchange Offerextent required by applicable U.S. federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 each time before it is filed with the SEC, and the Company shall give reasonable and good faith consideration to any comments made by Parent, Merger Subsidiary and their counsel. The Company shall provide Parent, Merger Subsidiary and their counsel with (i) any comments or other communications, whether written or oral, that Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of those comments or other communications, and (viii) resolved a reasonable opportunity to recommend participate in the Company’s response to the stockholders of the Company those comments and to approve and adopt the Transaction Agreements provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with the Company or its counsel in any Subsidiary is a party and discussions or meetings with the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockSEC.

Company Action. (a) The Company hereby approves of and consents to the Offer and represents that (i) the Board, at a meeting duly called and held on June 1016, 20081997, has unanimously (iA) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including, without limitation, each of the Offer and the Merger (the "Transactions"), are fair to the Company or any Subsidiary are and in the best interests of the Company holders of Shares (other than Parent and its subsidiaries), (B) approved and adopted this Agreement and the SubsidiariesTransactions, including for purposes of satisfying the requirements of Section 203(a)(1) of the Delaware Law with respect to the Transactions, (iiC) approvedtaken all action as may be required by the Company's Restated Certificate of Incorporation (the "Restated Certificate") so that Article VIII, adopted and declared advisable Section A.1 of the Transaction Agreements to which the Company or any Subsidiary Restated Certificate is a party and the Transactions not applicable to the Transactions and, as a result, the supermajority voting requirements of Article VIII, Section A.1 of the Restated Certificate will not apply to this Agreement and the Transactions, (D) to the extent required by that certain letter agreement dated September 1, 1989, as amended January 4, 1993, between the Company or any Subsidiaryand certain of its stockholders, including approved the amendments set forth tender by such stockholders of their Shares for purchase pursuant to the Offer and the sale of such Shares in the Amendment Merger and (E) resolved to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCLrecommend, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adoptthe conditions set forth herein, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders of the Company to accept the Offer and approve and adopt this Agreement and the Transaction Agreements Transactions, and (ii) Oppexxxxxxx & Xo., Inc. ("Oppexxxxxxx") xas delivered to the Board a written opinion that the consideration to be received by the holders of Shares pursuant to each of the Offer and the Merger is fair to such holders from a financial point of view. The Company has been authorized by Oppexxxxxxx, xxbject to prior review by such financial advisor, to include such fairness opinion (or references thereto) in the Offer Documents and in the Schedule 14D-9 (as defined in paragraph (b) of this Section 1.02) and the Proxy Statement referred to in Section 4.04. Subject to the fiduciary duties of the Board under applicable law as advised in writing by independent counsel (which shall, for all purposes under this Agreement, include the Company's regular outside counsel), the Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Board described above. (b) As soon as reasonably practicable on the date of commencement of the Offer, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments and supplements thereto, the "Schedule 14D-9") containing, subject to the fiduciary duties of the Board under applicable law as advised in writing by independent counsel, the recommendation of the Board described in Section 1.02(a) and shall disseminate the Schedule 14D-9 to the extent required by Rule 14D-9 promulgated under the Exchange Act and any other applicable federal securities laws; provided, however, that such recommendation may be withdrawn, modified or changed to the extent that the Board determines after consultation with independent counsel that such withdrawal, modification or change is consistent with its fiduciary obligations. Any such withdrawal, modification or change shall not constitute a breach of this Agreement, but will nonetheless be subject to the provisions of Sections 8.01 and 8.03. The Company, Parent and Purchaser agree to correct promptly any information provided by any of them for use in the Schedule 14D-9 which shall have become false or misleading, 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 disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent, Purchaser and their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 and any amendments thereto prior to the filing thereof with the SEC. The Company will provide Parent and Purchaser and their counsel with a copy of any written comments or telephonic notification of any oral comments the Company may receive from the SEC or its staff with respect to the Offer Documents promptly after the receipt thereof and will provide Parent and Purchaser and their counsel with a copy of any written responses and telephonic notification of any oral response of the Company or its counsel. (c) The Company shall promptly furnish Purchaser with mailing labels containing the names and addresses of all record holders of Shares and with security position listings of Shares held in stock depositories, each as of the most recent date reasonably practicable, together with all other available listings and computer files containing names, addresses and security position listings of record holders and non-objecting beneficial owners of Shares as of the most recent date reasonably practicable. The Company shall furnish Purchaser with such additional information, including, without limitation, updated listings and computer files of stockholders, mailing labels and security position listings, and such other assistance as Parent, Purchaser or their agents may reasonably request. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any Subsidiary is a party other documents necessary to consummate the Offer or the Merger, Parent and Purchaser shall hold in confidence the information contained in such labels, listings and files, shall use such information only in connection with the Offer and the Transactions applicable Merger, and, if this Agreement shall be terminated in accordance with Section 8.01, shall, at the request of the Company, deliver promptly to the Company or any Subsidiary, including the amendments set forth all copies of such information then in the Amendment their possession and shall certify in writing to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockCompany its compliance with this Section 1.02(c).

Company Action. (a) The BoardCompany hereby consents to the Offer and represents that its Board of Directors, at a meeting duly called and held on June 10, 2008held, has unanimously (i) unanimously determined that this Agreement and the Transaction Agreements to which transactions contemplated hereby, including the Offer and the Merger (defined below in Section 2.1), the Stock Option Agreement dated as of the date hereof (the "Stock Option Agreement") and the Shareholder Option Agreement, dated as of the date hereof (the "Shareholder Option Agreement"), among the shareholders of the Company or any Subsidiary is a party that are named therein and Merger Subsidiary, and the Transactions applicable transactions contemplated thereby, are fair to the Company or any Subsidiary are and in the best interests interest of the Company and the SubsidiariesCompany's shareholders, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party unanimously approved this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of IncorporationOffer, the Amended and Restated By-lawsMerger, the Amendment to Stock Option Agreement and the Certificate Shareholder Option Agreement and the transactions contemplated thereby, which approval satisfies in full the requirements of Designations Section 203 of the Senior Preferred Stock and the Amendment to the Certificate of Designations General Corporation Law of the Junior Preferred Stock State of Delaware (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock "Delaware Law"), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 unanimously resolved to recommend acceptance of the DGCL) becoming “interested Offer and approval and adoption of this Agreement and the Merger by its shareholders” within the meaning of Section 203 of the DGCL, and (iv) resolved determined that the consummation of the transactions contemplated hereby including the Offering, the Merger, the Stock Option Agreement and the Shareholder Option Agreement and thereby have not, and will not, cause the Rights, as defined herein, to recommend become exercisable. The Company further represents that Advest Investment Banking, Inc. ("Advest") has delivered to the Company's Board of Directors its opinion that the consideration to be paid in the Offer and the Merger is fair to the holders of the Remaining Shares from a financial point of the Preferred Stock view. The Company has been advised that they accept the Tender Offer each of its directors and executive officers presently intend either to tender their shares Shares pursuant to the Tender Offer, (v) resolved Offer or to recommend to the holders vote in favor of the 12% Senior Notes that they accept the Exchange Offer Merger. The Company will promptly furnish Parent and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders of the Company to approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock.Merger

Company Action. (a) The Board, at a meeting duly called Company hereby consents to the Offer and held on June 10, 2008represents that its Board of Directors has adopted and approved this Agreement and the transactions contemplated hereby including the Offer and the Merger, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby including the Offer and the Merger are advisable, fair to the Company or any Subsidiary are and in the best interests interest of the Company and its stockholders, and has resolved (subject to Section 5.2) to recommend acceptance of the SubsidiariesOffer to the Company's stockholders, (ii) approvedand to recommend that the Company's stockholders tender their Shares in the Offer and vote to approve and adopt this Agreement and the Merger. The Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Board of Directors described in the first sentence of this Section 1.2(a), adopted and declared advisable except as such consent may be withdrawn by the Transaction Agreements to which Board of Directors of the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with Section 5.2 hereof. The Company represents that it has received the DGCLopinion (the "Fairness Opinion") of Xxxxxx Xxxxxxx Xxxx Xxxxxx ("Company Financial Advisor") to the effect that the consideration offered pursuant to the Offer and Merger is fair to stockholders of the Company from a financial point of view; it being understood and acknowledged that such opinion has been rendered to the Board of Directors of the Company. (b) On the date the Offer Documents are filed with the SEC, subject the Company shall file with the SEC and mail to any additional the holders of Shares a Solicitation/Recommendation Statement on Schedule 14D-9, as amended and supplemented (the "Schedule 14D-9"), which shall reflect the recommendation of the Board approvals as may be necessary in connection with Section 7.13 to approve and adoptof Directors that the Company's stockholders accept the Offer and, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock vote to approve and adopt this Agreement and the Certificate Merger; provided that prior to the filing of Designations of Series B-2 Preferred Stock )such Schedule 14D-9, (iii) approved Purchaser the Company shall have provided Merger Sub's counsel with a reasonable opportunity to review and make comments with respect to such Schedule 14D-9 provided that no representation is made by the Company with respect to information supplied by the Parent or Merger Sub specifically for inclusion in the Schedule 14D-9. Such recommendation shall not be withdrawn or adversely modified except in accordance with Section 5.2 hereof. The Company agrees to provide Parent and its “affiliates” and “associates” (each as defined in Section 203 counsel with any 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 thereof. Each of the DGCL) becoming “interested shareholders” within Company, Parent and Merger Sub shall promptly correct any information provided by it for use in the meaning of Section 203 of Schedule 14D-9 that shall have become false or misleading in any material respect and the DGCL, (iv) resolved Company further agrees to recommend take all steps necessary to cause such Schedule 14D-9 as so corrected to be filed with the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer SEC and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend disseminated to the stockholders of the Company, in each case as and to the extent required by applicable federal securities laws. (c) The Company shall promptly furnish Parent and Merger Sub the names and addresses of the holders of Shares and, if available, of non-objecting beneficial owners of Shares and lists of securities positions of Shares held in stock depositories, each as of the most recent practicable date, and shall from time to approve time furnish Parent and adopt Merger Sub with such additional information, including updated or additional lists of stockholders, mailing labels and lists of securities positions, and other assistance as Merger Sub may reasonably request in order to be able to communicate the Transaction Agreements Offer to which all stockholders of the Company or including those stockholders who become stockholders after the date of the mailing of the Offer Documents. Subject to the requirements of law, and except for such steps as are necessary to disseminate the Offer Documents and any Subsidiary is a party other documents necessary to consummate the Merger, Parent and Merger Sub shall, and shall cause each of their affiliates to, hold the information contained in any of such labels and lists in confidence, use such information only in connection with the Offer and the Transactions applicable Merger, and, if this Agreement is terminated, deliver to the Company all copies of such information or any Subsidiary, including the amendments set forth extracts therefrom then in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocktheir possession or under their control.

Company Action. (a) The BoardCompany hereby consents to the Offer and represents and warrants that its Board of Directors, at a meeting duly called and held on June 10, 2008held, has unanimously (i) determined that this Agreement and its contemplated transactions, including the Transaction Agreements to which Offer, the Company or any Subsidiary is a party Merger, and the Transactions applicable purchase of shares of Company Stock contemplated by the Offer (the "Transactions"), are advisable and fair to the Company or any Subsidiary are and in the best interests of the Company and the SubsidiariesCompany's shareholders, (ii) approvedapproved and adopted this Agreement and the Transactions, adopted including the Offer, the Merger, and declared advisable the Transaction Agreements purchase of shares of Company Stock contemplated by the Offer, in accordance with the requirements of the Indiana Law, which approval satisfies in full the requirements of prior approval contained in Sections 23-1-40-1, 23-1-43-18 and 23-1-43-19(1) of the Indiana Law, (iii) taken all requisite action to amend, and has duly and validly amended, the Company's bylaws to provide that Chapter 42 of the Indiana Law does not apply to control share acquisitions of shares of Company Stock (including, without limitation, by Parent or Merger Subsidiary pursuant to the Offer or the Merger) and (iv) resolved, subject to Section 7.04 to recommend that the shareholders of the Company accept the Offer, tender their shares of Company Stock pursuant to the Offer and approve and adopt this Agreement and the Merger. The Company hereby consents to the inclusion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement (as defined below) (if any) of such recommendation of the Board of Directors. The Company represents and warrants that the Board of Directors has received the written opinion (the "DLJ Fairness Opinion") of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation ("DLJ"), stating that as of the date of such opinion, the proposed consideration to be received by the holders of shares of Company Stock pursuant to the Offer and the Merger is fair to such holders from a financial point of view. The Company has been authorized by DLJ to permit, subject to the prior review and consent by DLJ (such consent not to be unreasonably withheld), the inclusion of the DLJ Fairness Opinion (or a reference thereto) in the Offer Documents and the Schedule 14D-9. (b) The Company will cause its transfer agent promptly to furnish Parent and Merger Subsidiary with a list of the Company's shareholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of shares of Company Stock and lists of securities positions of shares of Company Stock held in stock depositories and to provide to Parent and Merger Subsidiary such additional information (including, without limitation, updated lists of shareholders, mailing labels and lists of securities positions) and such other assistance as Parent or Merger Subsidiary or their agents may reasonably request in connection with the Offer. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Transactions, Parent and Merger Subsidiary and each of their affiliates, associates and agents will hold in confidence the information contained in any such labels, listings and files, will use such information only in connection with the Offer and the Merger and, if this Agreement is terminated, will deliver, and will cause their agents to deliver, to the Company all copies and any extracts or summaries from such information then in their possession or control. (c) As soon as reasonably practicable on the date of commencement of the Offer, the Company shall file with the SEC and disseminate to holders of shares of Company Stock, in each case as and to the extent required by applicable federal securities laws, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the "Schedule l4D-9") that shall reflect the recommendation of the Board of Directors referred to in clause (iv) of Section 2.02(a) hereof. The Company and Parent each agrees promptly to correct 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 to supplement the information provided by it specifically for use in the Schedule 14D-9 to include any information that shall become necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected or supplemented to be filed with the SEC and to be disseminated to holders of shares of Company Stock, in each case, as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 prior to its being filed with the SEC. The Company agrees to provide to Parent and Merger Subsidiary and their counsel any comments or other communications which the Company or any its counsel may receive from the staff of the SEC with respect to the Schedule 14D-9 promptly after receipt thereof. Parent, Merger Subsidiary is a party and the Transactions applicable Company each hereby agree to provide promptly such information necessary to preparation of the exhibits and schedules to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Schedule 14D-9 and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders of the Company to approve and adopt the Transaction Agreements to Documents which the Company or any Subsidiary is a respective party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stockresponsible therefor will reasonably request.

Company Action. (a) The Company hereby approves of and consents to the Offer and represents that the Board, acting upon the unanimous recommendation of the Special Committee, at a meeting duly called and held on June 10August 31, 20081998, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable are fair to the Company or any Subsidiary are and in the best interests of the stockholders of the Company and the Subsidiaries(other than TDCC or its affiliates), (ii) approved, approved and adopted this Agreement and declared advisable approved the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any SubsidiaryTransactions, including the amendments set forth in Merger and the Amendment Offer, and (iii) resolved to recommend that the stockholders of the Company accept the Offer, tender their Shares thereunder to Acquisition and, if required by applicable law, approve and adopt this Agreement and the Merger; provided that such recommendation may be withdrawn, modified or amended to the Certificate extent the Special Committee determines that the failure to do so would be inconsistent with the fiduciary duties of Incorporation, the Amended and Restated By-laws, the Amendment Special Committee to the Certificate of Designations of Company's stockholders under applicable law (as determined by the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made Special Committee in accordance good faith after consultation with the DGCL, subject to any additional Board approvals independent counsel). Except as may be necessary inconsistent with the fiduciary duties of the Special Committee under applicable law (as determined by the Special Committee in connection good faith after consultation with Section 7.13 to approve and adopt, if applicableindependent counsel), the final form of Certificate of Designations of Series B-1 Preferred Stock Company hereby consents to the inclusion in the Offer Documents and the Certificate of Designations of Series B-2 Preferred Stock ), Proxy Statement (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 4.7 below) of the DGCL) becoming “interested shareholders” within the meaning of Section 203 recommendations of the DGCL, Board described in this Section 1.2(a). (ivb) resolved to recommend to As soon as practicable on the holders date of commencement of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, the Company shall file with the Commission a Solicitation/Recommendation Statement on Schedule 14D-9 (vtogether with any amendments or supplements thereto, the "Schedule 14D-9") resolved to recommend to and shall mail the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend Schedule 14D-9 to the stockholders of the Company promptly after the commencement of the Offer. The Schedule 14D-9 shall, except to approve the extent inconsistent with the fiduciary duties of the Board under applicable law (as determined in good faith after consultation with independent counsel), at all times contain the determinations, approvals and adopt the Transaction Agreements to which recommendations described in Section 1.2(a). Parent, Acquisition and the Company each agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that any such information shall have become false or misleading in any Subsidiary is a party material respect and the Transactions Company further agrees to take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the Commission and to be disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent, Acquisition and their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 prior to its filing with the Commission and shall be provided with any written or verbal comments the Company and its counsel may receive from the Commission or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. (c) In connection with the Offer, the Company will, or will cause its transfer agent to, promptly furnish Acquisition with mailing labels, security position listings and any available listing or computer file containing the names and addresses of the record holders and non-objecting beneficial owners of the Shares and of Options (as defined in Section 9.9) as of a recent date and shall furnish Acquisition with such additional information and assistance (including, without limitation, updated lists of stockholders, mailing labels and lists of securities positions) as Acquisition or its agents may reasonably request in communicating the Offer to the record and beneficial holders of Shares. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Merger, Acquisition and its affiliates and associates shall hold in confidence the information contained in any such labels, listings and files, will use such information only in connection with the Offer and the Merger, and, if this Agreement shall be terminated, will deliver to the Company or any Subsidiary, including all copies of such information received from the amendments set forth in the Amendment Company pursuant to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stockthis Agreement.

Company Action. (a) The BoardCompany hereby consents to the Offer and represents that its Board of Directors, at a meeting duly called and held on June 10, 2008held, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiary are in the best interests of the Company and the Subsidiaries, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock Merger (such approval and adoption having been made defined below in accordance with the DGCLSection 2.1), subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate Stockholder Option Agreement, dated as of Designations of Series B-2 Preferred Stock March 29, 1999 (the "STOCKHOLDER OPTION AGREEMENT"), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to among the stockholders of the Company to approve that are named therein ("STOCKHOLDERS") and adopt the Transaction Agreements to which the Company or any Merger Subsidiary is a party and the Transactions applicable transactions contemplated thereby, are advisable and are fair to and in the Company or any Subsidiarybest interest of the Company's stockholders, (ii) approved this Agreement and the transactions contemplated hereby, including the amendments set forth Offer and the Merger, and the Stockholder Option Agreement and the transactions contemplated thereby, which approval constitutes approval under Section 203 of the General Corporation Law of the State of Delaware (the "DELAWARE LAW") such that the Offer, the Merger, the Stockholder Option Agreement and the other transactions contemplated hereby and thereby are not and shall not be subject to any restriction of Section 203 of Delaware Law, and (iii) resolved to recommend acceptance of the Offer and approval and adoption of this Agreement and the Merger by its stockholders. The Company further represents that Credit Suisse First Boston Corporation ("CSFB") has delivered to the Company's Board of Directors its opinion that the consideration to be paid in the Amendment Offer and the Merger is fair to the Certificate holders of Incorporation, the Amended Company Shares (as defined below in Section 2.2(c)) from a financial point of view. The Company has been advised that all of its directors and Restated By-laws, the Amendment executive officers presently intend either to tender their Shares pursuant to the Certificate of Designations Offer or to vote in favor of the Senior Preferred Stock Merger. The Company will promptly furnish Parent and Merger Subsidiary with a list of its stockholders, mailing labels and any available listing or computer file containing the Amendment names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case as of the most recent practicable date, and will provide to Parent and Merger Subsidiary such additional information (including, without limitation, updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Parent or Merger Subsidiary may reasonably request in connection with the Offer. (b) As soon as practicable on the day that the Offer is commenced the Company will file with the SEC and disseminate to holders of Shares a Solicitation/Recommendation Statement on Schedule 14D-9 (the "SCHEDULE 14D-9") which shall reflect the recommendations of the Company's Board of Directors referred to above, subject to the Certificate of Designations fiduciary duties of the Junior Preferred StockBoard of Directors of the Company as advised in writing by Xxxxxx Xxxxxx & Xxxxx, counsel to the Company. The Company, Parent and Merger Subsidiary each agree promptly to correct 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. The Company 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 holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 prior to its being filed with the SEC.

Company Action. (a) The BoardCompany hereby consents to the Offer and represents that its Board of Directors, at a meeting duly called and held on June 10, 2008, has unanimously (i) unanimously determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests interest of the Company and the SubsidiariesCompany's stockholders, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party unanimously approved this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth Offer and the Merger, which approval satisfies in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations full any applicable requirements of the Senior Preferred Stock and the Amendment to the Certificate of Designations General Corporation Law of the Junior Preferred Stock State of Delaware (such "DELAWARE LAW"), and (iii) unanimously resolved, except as may be required, in response to an unsolicited bona fide written Acquisition Proposal, in order to comply with the fiduciary duties of the Board of Directors under applicable law as advised in writing by Coolxx Xxxward LLP ("COMPANY COUNSEL"), to recommend acceptance of the Offer and approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock this Agreement and the Certificate Merger by its stockholders. The Company further represents that Covixxxxx Xxxociates has delivered to the Company's Board of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser Directors its written opinion that the consideration to be paid in the Offer and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend Merger is fair to the holders of the Remaining Shares from a financial point of the Preferred Stock view. The Company has been advised that they accept the Tender Offer all of its directors and executive officers intend either to tender their shares Shares pursuant to the Tender Offer or to vote in favor of the Merger. The Company will promptly furnish Buyer with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case true and correct as of the most recent practicable date, and will provide to Buyer such additional information (including, without limitation, updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Buyer may reasonably request in connection with the Offer. (b) As soon as practicable on the date of commencement of the Offer, the Company will file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 (vthe "SCHEDULE 14D-9") resolved to recommend to which shall reflect the holders recommendations of the 12% Senior Notes that they accept the Exchange Offer Company's Board of Directors referred to above. The Company and tender their notes pursuant Buyer each agree promptly to the Exchange Offer, and (vi) resolved to recommend to the stockholders of the Company to approve and adopt the Transaction Agreements to which the Company or correct any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth information provided by it for use in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock.Schedule 14D-9 if and

Company Action. (a) The BoardCompany hereby approves of and consents to the Offer, and represents and warrants that the Board of Directors of the Company, at a meeting duly called and held on June 10held, 2008has, has unanimously subject to the terms and conditions set forth in this Agreement, (i) determined that approved this Agreement and deemed this Agreement, the Transaction Agreements to which Offer, the Company or any Subsidiary is a party Merger and the Transactions applicable transactions contemplated by this Agreement advisable, fair to the Company or any Subsidiary are and in the best interests of the Company and the Subsidiaries, Shareholders; (ii) approved, approved and adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated by this Agreement, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock (Merger, in all respects, and such approval and adoption having been made in accordance with constitutes approval and adoption of the DGCLOffer, subject the Merger, this Agreement and the transactions contemplated by this Agreement for purposes of Chapter 23B.11 of the Washington Business Corporations Act (the “WBCA”); (iii) taken all other corporate action necessary to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adoptrender Chapter 23B.19.040 of the WBCA, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (Company Rights inapplicable to each as defined in Section 203 of the DGCL) becoming “interested shareholders” within Offer and the meaning of Section 203 of the DGCL, Merger; and (iv) resolved to recommend to that the holders of the Remaining Shares of the Preferred Stock that they Company Shareholders accept the Tender Offer and Offer, that the Company Shareholders tender their shares of Company Common Stock in the Offer to Merger Sub, and that the Company Shareholders approve and adopt this Agreement and the Merger to the extent required by applicable Law (the “Company Recommendation”). The Company consents to the inclusion of the Company Recommendation in the Offer Documents, subject to Section 5.02. (b) The Company hereby agrees to file with the SEC, as promptly as practicable on the day that the Offer is commenced, a Solicitation/Recommendation Statement on Schedule 14D-9 pertaining to the Offer (together with any amendments or supplements thereto, the “Schedule 14D-9”) that contains the Company Recommendation and to promptly mail the Schedule 14D-9 to the Company Shareholders together with the Offer Documents and cause the Offer Documents and the Schedule 14D-9 to be disseminated to the Company Shareholders, in each case as and to the extent required by, and in accordance with the applicable requirements of the U.S. federal securities Laws. Parent, Merger Sub and their counsel shall be given reasonable opportunity to review and comment on the Schedule 14D-9 and any amendments thereto in advance of their filing with the SEC or dissemination to the Company Shareholders and the Company shall (i) provide Parent, Merger Sub and their counsel with a copy of any written comments or telephonic notification of any oral comments the Company may receive from the SEC or the Staff with respect to the Offer as promptly as practicable after the receipt thereof, (ii) consult in good faith with Parent, Merger Sub and their counsel prior to responding to any such comments, and (iii) provide Parent, Merger Sub and their counsel with a copy of any written responses thereto and telephonic notification of any oral responses thereto made by the Company or its counsel. The Schedule 14D-9 shall comply in all material respects with the applicable U.S. federal securities Laws and, on the date first filed with the SEC and on the date first published, sent or given to the Company Shareholders and on the Acceptance Date, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant, agreement, representation or warranty is made by the Company with respect to information supplied by Parent or Merger Sub for inclusion or incorporation by reference in the Schedule 14D-9. The Company, Parent and Merger Sub each agrees promptly to correct 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 disseminated to the Company Shareholders to the extent required by applicable Law. (c) In connection with the Offer and the Merger, the Company promptly will furnish (or cause its transfer agent to furnish) Parent and Merger Sub with mailing labels, security position listings, non-objecting beneficial owner lists and any available listing or computer files containing the names and addresses of the Company Shareholders, each as of the most recent practicable date, and shall furnish Merger Sub with such additional information and assistance (including but not limited to updated lists of the Company Shareholders, mailing labels and lists of securities positions and non-objecting beneficial owner lists) as Merger Sub or its agents may reasonably request in communicating the Offer to the record and beneficial holders of shares of Company Common Stock. Except as required by applicable Law, and except as necessary to communicate the Offer, the Merger or the transactions contemplated by this Agreement to the Company Shareholders, Parent and Merger Sub (and their respective representatives) shall hold in confidence the information contained in any such labels, listings and files, shall use such information solely in connection with the Offer and the Merger, and, if this Agreement is terminated or the Offer is otherwise terminated, will deliver to the Company all copies of such information, labels, listings and files then in their possession. (d) The Company hereby grants to Parent and Merger Sub (i) an irrevocable option (the “Top-Up Option”) to purchase up to that number of newly issued shares of Company Common Stock (the “Top-Up Option Shares”) equal to the number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock owned by Parent and Merger Sub immediately following consummation of the Offer, shall constitute one share more than 90% of the shares of Company Common Stock then outstanding on a fully diluted basis (after giving effect to the issuance of the Top-Up Option Shares) for consideration per Top-Up Option Share equal to the Offer Price; provided that, the Company shall only be required to issue up to that number of Top-Up Option Shares that would not require a vote of the Company Shareholders to authorize additional shares of capital stock under the Company’s Articles, and that the number of newly issued Top-Up Option Shares that Parent and Merger Sub shall be entitled to purchase under this Section 1.02 shall be limited to the number of Shares that may be purchased by Parent and Merger Sub in compliance with all applicable provisions and regulations of the NASDAQ Global Market (“NASDAQ”) without requiring a stockholder vote. (e) The Top-Up Option shall be exercisable only after the purchase of and payment for shares of Company Common Stock pursuant to the Tender OfferOffer by Parent or Merger Sub. Parent and Merger Sub shall have the right, but shall not be required to exercise the Top-Up Option in their sole discretion and may only exercise the Top-Up Option if following its exercise, the condition set forth in clause (vd) resolved would be satisfied. (f) In the event that Parent or Merger Sub wishes to recommend to exercise the holders Top-Up Option, Merger Sub shall give the Company two (2) Business Days prior written notice specifying the number of shares of Company Common Stock that are or will be owned by Parent and Merger Sub immediately following consummation of the 12% Senior Notes that they accept the Exchange Offer and tender their notes specifying a place and a time for the closing of the purchase. The Company and Merger Sub shall, as soon as practicable following delivery of such notice, mutually determine the appropriate number of Top-Up Option Shares contemplated by clause (d). At the closing of the purchase of the Top-Up Option Shares, the portion of the purchase price owing upon exercise of the Top-Up Option that equals the product of (i) the number of shares of Company Common Stock purchased pursuant to the Exchange OfferTop-Up Option, and multiplied by (viii) resolved to recommend the Offer Price, shall be paid to the stockholders Company, at the election of Parent and Merger Sub, in cash (by wire transfer or cashier’s check) or by delivery of a promissory note with a market interest rate, with interest and principal payable solely on the one (1) year maturity of the Company to approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable note, in form reasonably acceptable to the Company or any SubsidiaryIndependent Incumbent Directors, having full recourse to Parent. (g) The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable Laws, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations compliance with an applicable exemption from registration of the Senior Preferred Stock and Top-Up Option Shares under the Amendment to the Certificate of Designations of the Junior Preferred StockSecurities Act.

Company Action. The Company hereby approves of and consents to the Tender Offer. Concurrently with the filing of the Schedule TO, the Company shall file with the SEC and mail to the holders of shares of Common Stock a Solicitation/ Recommendation Statement on Schedule 14D-9 (together with any supplements or amendments thereto, the "Schedule 14D-9"). The Schedule 14D-9 will set forth, and the Company hereby represents to Parent and Purchaser, that (a) the Special Committee, at a meeting thereof duly called and held, has (i) determined that this Agreement, the Tender Offer and the Merger are fair to and in the best interests of the Company and its stockholders (other than Royal Ahold and its Affiliates); (ii) determined that this Agreement, the Tender Offer and the Merger should be approved and declared advisable by the Board; and (iii) resolved to recommend that the Company's stockholders accept the Tender Offer, tender their shares of Common Stock pursuant thereto and approve and adopt this Agreement and the Merger if submitted for their approval; (b) the Board, at a meeting duly called and held on June 10, 2008held, has unanimously (i) determined that this Agreement, the Transaction Agreements to which the Company or any Subsidiary is a party Tender Offer and the Transactions applicable Merger are fair to the Company or any Subsidiary are and in the best interests of the Company Company's stockholders (other than Royal Ahold and the Subsidiaries, its Affiliates); (ii) approved, adopted approved and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to transactions contemplated hereby, including, without limitation the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Tender Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval Merger; and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to that the holders of the Remaining Shares of the Preferred Stock that they Company's stockholders accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes shares of Common Stock pursuant to the Exchange Offer, thereto and (vi) resolved to recommend to the stockholders of the Company to approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable Merger if submitted for their approval; provided, however, that such recommendation of the Special Committee or the Board, as described in clauses (a) and (b) of this section, may be withdrawn, modified or changed to the Company extent that the Special Committee or any Subsidiarythe Board, including based on the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations recommendation of the Senior Preferred Stock and Special Committee (in each case after receiving the Amendment advice of outside nationally recognized legal counsel) reasonably determines in good faith that its fiduciary duties under applicable law require it to the Certificate of Designations of the Junior Preferred Stock.take such actions; and

Company Action. (a) The BoardCompany hereby approves of and consents to the Offer and represents and warrants that the Board of Directors, at a meeting duly called and held on June 10February 19, 20081999, has unanimously at which all of the Directors were present, duly and unanimously: (i) approved and adopted this Agreement and the Company Stock Option Agreement and the transactions contemplated hereby and thereby, including the Offer, the Merger, the Employment Agreements and Parent's acquisition of Shares pursuant to the Stockholders Agreement; (ii) recommended that the stockholders of the Company accept the Offer, tender their Shares pursuant to the Offer and approve this Agreement and the transactions contemplated hereby, including the Merger; (iii) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the Company and the Subsidiaries, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations stockholders of the Senior Preferred Stock and Company; (iv) took all action necessary to render the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined limitations on business combinations contained in Section 203 of Delaware Law and the DGCLCompany's Restated Certificate of Incorporation (the "Restated Certificate") becoming “interested shareholders” within inapplicable to this Agreement, the meaning Company Stock Option Agreement, the Stockholders Agreement and the transactions contemplated hereby and thereby; and (v) approved an amendment to the Rights Agreement, in the form of Section 203 Exhibit 1.2 hereto (the "Rights Agreement Amendment"), providing that (A) neither this Agreement, the Company Stock Option Agreement or the Stockholders Agreement nor any of the DGCLtransactions contemplated hereby or thereby, including the Offer and the Merger, will result in the occurrence of a "Distribution Date" (ivas such term is defined in the Rights Agreement) resolved or otherwise cause the Rights to recommend become exercisable by the holders thereof and (B) the Rights shall automatically on and as of the Effective Time (as hereinafter defined) be void and of no further force or effect. The Company further represents and warrants that (x) Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation ("DLJ") has rendered to the holders Board of Directors a written opinion, dated as of February 19, 1999, to the effect that, subject to the assumptions and limitations set forth therein, $29.00 in cash per Share to be received by the stockholders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares Company pursuant to the Tender Offer and the Merger is fair to such stockholders from a financial point of view and (y) a true and correct copy of such opinion has been delivered to Parent. (b) The Company hereby agrees to file with the SEC, as promptly as practicable after the filing by Parent and Purchaser of the Schedule 14D-1 with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (vtogether with any amendments or supplements thereto, the "Schedule 14D-9") resolved to recommend to that (i) will comply in all material respects with the holders provisions of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, all applicable Federal securities laws and (viii) resolved will include the opinion of DLJ referred to recommend in Section 1.2(a) hereof. The Company agrees to mail such Schedule 14D-9 to the stockholders of the Company along with the Offer Documents promptly after the commencement of the Offer. The Schedule 14D-9 and the Offer Documents shall contain the recommendations of the Board of Directors described in Section 1.2(a) hereof. The Company agrees promptly to approve correct the Schedule 14D-9 if and adopt to the Transaction Agreements extent that it shall become false or misleading in any material respect (and each of Parent and Purchaser, with respect to written information supplied by it specifically for use in the Schedule 14D-9, shall promptly notify the Company of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and the Company shall take all steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC and disseminated to the Company's stockholders to the extent required by applicable Federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC. The Company shall provide Parent and Purchaser in writing with any comments the Company or any Subsidiary is a party and its counsel may receive from the Transactions applicable SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments. (c) In connection with the Offer, the Company or any Subsidiaryshall promptly upon execution of this Agreement furnish Parent with mailing labels containing the names and addresses of all record holders of Shares, non-objecting beneficial owners list and security position listings of Shares held in stock depositories, each as of a recent date, and shall promptly furnish Parent with such additional information, including updated lists of stockholders, mailing labels and security position listings, and such other information and assistance as Parent or its agents may reasonably request for the amendments set forth in purpose of communicating the Amendment Offer to the Certificate record and beneficial holders of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockXxxxxx.

Company Action. (a) The Company hereby approves of and -------------- consents to the Offer and represents that (i) the Board, at a meeting duly called and held on June 10December 6, 20082000, has unanimously (iA) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to transactions contemplated hereby, including each of the Company or any Subsidiary Offer and the Merger, and the transactions contemplated by the Stockholder Agreements (collectively, the "Transactions"), are fair to, and in the best interests of, ------------ the holders of the Company and the SubsidiariesShares, (iiB) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with Delaware Law, including, without limitation, Section 203 thereof) and (C) resolved to recommend that the DGCLholders of Shares accept the Offer and tender Shares pursuant to the Offer, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to and, if required under Delaware Law, approve and adoptadopt this Agreement and the Transactions and (ii) Broadview International LLC ("Broadview") has delivered to the Board a written opinion --------- that the consideration to be received by the holders of Shares pursuant to each of the Offer and the Merger is fair to the holders of Shares from a financial point of view (the "Fairness Opinion"). The Company hereby consents to the ---------------- inclusion in the Offer Documents of the recommendation of the Board described in the immediately preceding sentence, and the Company shall not withdraw or modify such recommendation in any manner adverse to Purchaser or Parent except as provided in Section 7.05(b). The Company has been advised by its directors and --------------- executive officers that they intend either to tender all Shares beneficially owned by them to Purchaser pursuant to the Offer and, if applicable, to sell such Shares to the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock )Purchaser pursuant to their respective Stockholder Agreement, (iii) approved Purchaser and its “affiliates” and “associates” (each as defined or to vote such Shares in Section 203 favor of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer approval and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to adoption by the stockholders of the Company of this Agreement and the Transactions. (b) As promptly as reasonably practicable on the date of commencement of the Offer, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D9 with respect to approve the Offer (together with all amendments and adopt supplements thereto, the Transaction Agreements "Schedule 14D-9") containing the -------------- Fairness Opinion and, except as provided in Section 7.05(b), the recommendation --------------- of the Board described in Section 2.02(a), and shall disseminate the Schedule --------------- 14D9 to which the extent required by Rule 14d-9 promulgated under the Exchange Act, and any other applicable federal securities laws. The Company, Parent and Purchaser agree to correct promptly any information provided by any of them for use in the Schedule 14D-9 if and to the extent that such information shall have become false or misleading, 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 disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent, Purchaser and their counsel shall be given a reasonable opportunity to review and comment upon the Schedule 14D-9 (and shall provide any comments thereon as soon as practicable) prior to the filing thereof with the SEC. In addition, the Company shall provide Parent, Purchaser and their counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments and with copies of any Subsidiary is written responses by the Company or its counsel. (c) The Company shall, or shall cause its transfer agent to, promptly furnish Purchaser with mailing labels containing the names and addresses of all record holders of Shares and with security position listings of Shares held in stock depositories, each as of a party recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of Shares. The Company shall promptly furnish Purchaser with such additional information, including, without limitation, updated listings and computer files of stockholders, mailing labels and security position listings, and such other assistance in disseminating the Transactions Offer Documents to holders of Shares as Parent or Purchaser may reasonably request. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent and Purchaser and their agents shall hold in confidence the information contained in such labels, listings and files, shall use such information only in connection with the Transactions, and, if this Agreement shall be terminated in accordance with Section 9.01, shall ------------ deliver and will use their reasonable best efforts to cause their agents to deliver to the Company all copies of such information then in their possession or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stockcontrol.

Company Action. (i) The Board, Company hereby consents to the Offer and represents that at a meeting duly called and held on June 10, 2008, has unanimously (i) determined that prior to the Transaction Agreements to execution of this Agreement at which all directors of the Company or any Subsidiary is a party were present, the Company’s Board of Directors duly and unanimously adopted resolutions (A) declaring that this Agreement and the Transactions applicable to the Company or any Subsidiary Transactions, are in the best interests of the Company Company’s shareholders, (B) approving and declaring advisable this Agreement and the SubsidiariesTransactions and (C) recommending that the Company’s shareholders accept the Offer, tender their shares of Company Common Stock to Merger Sub pursuant to the Offer and, if applicable, grant the Company Shareholder Approval (collectively, the “Company Board Recommendation”). (ii) approvedThe Company hereby consents to the inclusion of the foregoing determinations and approvals in the Offer Documents and, adopted and declared advisable to the Transaction Agreements to which extent that no Adverse Recommendation Change shall have occurred in accordance with Section 6.3, the Company or any Subsidiary is a party and the Transactions applicable hereby consents to the inclusion of the Company or any Subsidiary, including the amendments set forth Board Recommendation in the Amendment to Offer Documents. The Company shall promptly furnish Parent with a list of its shareholders, mailing labels and any available listing or computer file containing the Certificate names and addresses of Incorporationall record holders of shares of Company Common Stock and lists of securities positions of shares of Company Common Stock held in stock depositories, the Amended in each case true and Restated By-laws, the Amendment to the Certificate of Designations correct as of the Senior Preferred Stock most recent practicable date, and shall provide to Parent such additional information (including updated lists of shareholders, mailing labels and lists of securities positions) and such other assistance as Parent may reasonably request in connection with the Amendment Offer. Parent and Merger Sub shall treat the information contained in such labels, listing or files and any additional information referred to in the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made preceding sentence in accordance with the DGCLterms and conditions of the Confidentiality Agreement. (b) As soon as practicable on the day that the Offer is commenced, the Company shall file with the SEC and disseminate to holders of shares of Company Common Stock, in each case, as and to the extent required by applicable U.S. federal securities laws, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to any additional Section 6.3, shall reflect the Company Board approvals as Recommendation. Each of Parent and Merger Sub shall promptly furnish to the Company in writing all information concerning Parent and Merger Sub that may be required by applicable securities laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. Each of the Company, Parent and Merger Sub agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect. The Company 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 holders of shares of Company Common Stock, in connection each case as and to the extent required by applicable U.S. federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 each time before it is filed with Section 7.13 to approve and adoptthe SEC, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock )Company shall give reasonable and good faith consideration to any comments made by Parent, Merger Sub and their counsel. The Company shall promptly provide Parent, Merger Sub and their counsel with (iiii) approved Purchaser and any comments or other communications, whether written or oral, that the Company or its “affiliates” and “associates” (each as defined in Section 203 of counsel may receive from time to time from the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend SEC or its staff with respect to the holders Schedule 14D-9 promptly after receipt of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offerthose comments or other communications, and (viii) resolved a reasonable opportunity to recommend participate in the Company’s response to the stockholders of the Company those comments and to approve and adopt the Transaction Agreements provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with the Company or its counsel in any Subsidiary is a party and discussions or meetings with the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockSEC.

Company Action. (a) The BoardCompany hereby consents to the Offer and represents that its Board of Directors, at a meeting duly called and held on June 10, 2008held, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer, are advisable and are fair to the Company or any Subsidiary are and in the best interests interest of the Company and the SubsidiariesCompany's stockholders, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party approved this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of IncorporationOffer, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock Tender Agreement and the Certificate of Designations of Series B-2 Preferred Stock )transactions contemplated thereby, and (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders acceptance of the Remaining Shares Offer by the Company's stockholders (such recommendation is herein referred to as the "Recommendation"). The Company has been advised that all of the Preferred Stock that they accept the Tender Offer its directors and executive officers presently intend to tender their shares Shares pursuant to the Tender Offer. The Company will promptly furnish BioShield with a list of its stockholders, (v) resolved to recommend to mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case as of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offermost recent practicable date, and will provide to BioShield such additional information (viincluding, without limitation, updated lists of stockholders, mailing labels and lists of securities positions) resolved and such other assistance as BioShield may reasonably request in connection with the Offer. (b) On the day that the Offer is commenced, the Company will file with the SEC and disseminate to recommend to holders of Shares a Solicitation/Recommendation Statement on Schedule 14D-9 (the stockholders "Schedule 14D-9") which shall reflect the Recommendation; provided that the Board of Directors of the Company to approve and adopt may withdraw, modify or change the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any SubsidiaryRecommendation if but only if (i) it believes in good faith, based on such matters as it deems relevant, including the amendments set forth advice of the Company's financial advisors (if any), that a Superior Proposal (defined in Section 3.5(b) hereof) has been made and (ii) it has determined in good faith, after consultation with outside legal counsel, that the withdrawal, modification or change of such Recommendation is, in the Amendment good faith judgment of the Board of Directors, required by the Board to comply with its fiduciary duties imposed by applicable law. The Company and BioShield each agree promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the Certificate extent that it shall have become false or misleading in any material respect. The Company 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 holders of IncorporationShares, the Amended in each case as and Restated By-laws, the Amendment to the Certificate of Designations of extent required by applicable federal securities laws. BioShield and its counsel shall be given a reasonable opportunity to review and comment on the Senior Preferred Stock and Schedule 14D-9 prior to its being filed with the Amendment to the Certificate of Designations of the Junior Preferred StockSEC.

Company Action. (a) The BoardCompany hereby consents to the Offer and represents and warrants that its Board of Directors, at a meeting duly called and held on June 10, 2008held, has unanimously (i) determined that this Agreement and its contemplated transactions, including the Transaction Agreements to which Offer, the Company or any Subsidiary is a party Merger, and the Transactions applicable purchase of shares of Company Stock contemplated by the Offer (the "TRANSACTIONS"), are advisable and fair to the Company or any Subsidiary are and in the best interests of the Company and the SubsidiariesCompany's shareholders, (ii) approved, approved and adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any SubsidiaryTransactions, including the amendments set forth in the Amendment to the Certificate of IncorporationOffer, the Amended and Restated By-lawsMerger, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to purchase of shares of Company Stock contemplated by the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made Offer, in accordance with the DGCLrequirements of the Indiana Law, subject to any additional Board approvals as may be necessary which approval satisfies in connection with Section 7.13 to approve full the requirements of prior approval contained in Sections 23-1-40-1, 23-1-43-18 and adopt, if applicable, 23-1-43-19(1) of the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock )Indiana Law, (iii) approved Purchaser taken all requisite action to amend, and its “affiliates” has duly and “associates” (each as defined in Section 203 validly amended, the Company's bylaws to provide that Chapter 42 of the DGCLIndiana Law does not apply to control share acquisitions of shares of Company Stock (including, without limitation, by Parent or Merger Subsidiary pursuant to the Offer or the Merger) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, and (iv) resolved resolved, subject to Section 7.04 to recommend that the shareholders of the Company accept the Offer, tender their shares of Company Stock pursuant to the Offer and approve and adopt this Agreement and the Merger. The Company hereby consents to the inclusion in the Offer Documents, the Schedule 14D-9 (as defined below) and the Proxy Statement (as defined below) (if any) of such recommendation of the Board of Directors. The Company represents and warrants that the Board of Directors has received the written opinion (the "DLJ FAIRNESS OPINION") of Donaxxxxx, Xxfkxx & Xenrxxxx Xxxurities Corporation ("DLJ"), stating that as of the date of such opinion, the proposed consideration to be received by the holders of the Remaining Shares shares of the Preferred Company Stock that they accept the Tender Offer and tender their shares pursuant to the Tender OfferOffer and the Merger is fair to such holders from a financial point of view. The Company has been authorized by DLJ to permit, (v) resolved to recommend subject to the prior review and consent by DLJ (such consent not to be unreasonably withheld), the inclusion of the DLJ Fairness Opinion (or a reference thereto) in the Offer Documents and the Schedule 14D-9. (b) The Company will cause its transfer agent promptly to furnish Parent and Merger Subsidiary with a list of the Company's shareholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of shares of Company Stock and lists of securities positions of shares of Company Stock held in stock depositories and to provide to Parent and Merger Subsidiary such additional information (including, without limitation, updated lists of shareholders, mailing labels and lists of securities positions) and such other assistance as Parent or Merger Subsidiary or their agents may reasonably request in connection with the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant Offer. Subject to the Exchange Offerrequirements of applicable law, and (vi) resolved except for such steps as are necessary to recommend disseminate the Offer Documents and any other documents necessary to consummate the stockholders Transactions, Parent and Merger Subsidiary and each of their affiliates, associates and agents will hold in confidence the Company to approve and adopt the Transaction Agreements to which the Company or information contained in any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiarysuch labels, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock.listings and

Company Action. (a) The Company hereby approves of and consents to the Offer and represents that (i) the Board, at a meeting duly called and held on June 10July 8, 20082005, has unanimously (iA) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to transactions contemplated hereby, including each of the Company or any Subsidiary Offer and the Merger (collectively, the "Transactions") are fair to, and in the best interests of, the holders of the Company and the SubsidiariesShares, (iiB) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve Delaware Law) and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (ivC) resolved to recommend that the holders of Shares accept the Offer and tender Shares pursuant to the Offer, and approve and adopt this Agreement and the Transactions, and (ii) Citigroup Global Markets, Inc. has delivered to the Board an opinion, which will be confirmed promptly in writing, that the $14.50 per Share dollar amount to be received by the holders of Shares pursuant to each of the Offer and the Merger is fair to the holders of Shares from a financial point of view. The Company hereby consents to the Remaining Shares inclusion in the Offer Documents of the Preferred Stock recommendation of the Board described in the immediately preceding sentence, and the Company shall not withdraw or modify such recommendation in any manner adverse to Purchaser or Parent except as provided in Section 7.04(c). The Company has been advised by its directors and executive officers that they accept the Tender Offer and intend either to tender their shares all Shares beneficially owned by them to Purchaser pursuant to the Tender Offer, (v) resolved Offer or to recommend to the holders vote such Shares in favor of the 12% Senior Notes that they accept the Exchange Offer approval and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to adoption by the stockholders of the Company of this Agreement and the Transactions. (b) As promptly as reasonably practicable on the date of commencement of the Offer, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments and supplements thereto, the "Schedule 14D-9") containing, except as provided in Section 7.04(c), the recommendation of the Board described in Section 2.02(a), and shall disseminate the Schedule 14D-9 to approve the extent required by Rule 14d-9 promulgated under the Exchange Act and adopt any other applicable federal securities laws. The Company, Parent and Purchaser agree to correct promptly any information provided by any of them for use in the Transaction Agreements Schedule 14D-9 which shall have become false or misleading and to which correct any material omissions, 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 disseminated to holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent, Purchaser and their counsel shall be given a reasonable opportunity to review the Schedule 14D-9 before it is filed with the SEC and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. In addition, the Company agrees to provide Parent, Purchaser and their counsel with any comments, whether written or oral, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after the Company's receipt of such comments, and any Subsidiary is written or oral responses thereto. Parent, Purchaser and their counsel shall be given a party reasonable opportunity to review any such written responses and the Transactions Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. (c) The Company shall promptly furnish Parent or Purchaser with mailing labels containing the names and addresses of all record holders of Shares and with security position listings of Shares held in stock depositories, each as of a recent date, together with all other available listings and computer files containing names, addresses and security position listings of record holders and beneficial owners of Shares. The Company shall promptly furnish Purchaser with such additional information, including, without limitation, updated listings and computer files of stockholders, mailing labels and security position listings, and such other assistance in disseminating the Offer Documents to holders of Shares as Parent or Purchaser may reasonably request. Subject to the requirements of applicable law, and except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer or the Merger, Parent and Purchaser shall hold in confidence the information contained in such labels, listings and files, shall use such information only in connection with the Transactions, and, if this Agreement shall be terminated in accordance with Section 9.01, shall deliver to the Company or any Subsidiary, including the amendments set forth all copies of such information then in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocktheir possession.

Company Action. Concurrently with the filing of the Schedule TO, the Company shall file with the SEC and mail to the holders of shares of Common Stock a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any supplements or amendments thereto, the "Schedule 14D-9"). The BoardSchedule 14D-9 will set forth, and the Company hereby represents to Parent and Purchaser, that (a) the Special Committee, at a meeting thereof duly called and held on June 10, 2008held, has unanimously (i) determined that this Agreement, the Transaction Agreements to which the Company or any Subsidiary is a party Tender Offer and the Transactions applicable to the Company or any Subsidiary Merger would be advisable and are in the best interests of the Company and the Subsidiaries, its stockholders (other than Parent and its Affiliates); (ii) approveddetermined that this Agreement, adopted the Tender Offer and the Merger should be approved and declared advisable by the Transaction Agreements to which the Company or any Subsidiary is a party Board; and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to that the holders Company's stockholders accept the Tender Offer, tender their shares of Common Stock pursuant thereto and adopt this Agreement if submitted for their approval; (b) the Remaining Shares of the Preferred Stock Board, at a meeting duly called and held, has (i) determined that they accept this Agreement, the Tender Offer and tender their shares pursuant the Merger would be advisable and are in the best interests of the Company's stockholders (other than Parent and its Affiliates); (ii) approved and declared advisable this Agreement and the transactions contemplated hereby, including, without limitation the Tender Offer and the Merger; and (iii) resolved to recommend that the Company's stockholders accept the Tender Offer, tender their shares of Common Stock pursuant thereto and adopt this Agreement if submitted for their approval; and (vc) resolved to recommend Xxxxxx X. Xxxx & Company ("Xxxxxx X. Xxxx"), the financial advisor to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant Special Committee, has delivered to the Exchange Offer, Special Committee and (vi) resolved the Board its written opinion that the consideration to recommend to be received by the stockholders of the Company (other than Parent and its Affiliates) pursuant to approve each of the Tender Offer and adopt the Transaction Agreements Merger is fair to such stockholders from a financial point of view. If the Special Committee or the Board determines to withdraw, modify or amend its recommendations described above as a result of the existence of a Superior Proposal in conformity with Section 6.02 of this Agreement, such withdrawal, modification or amendment shall not constitute a breach of this Agreement but shall have the effects specified herein. The Schedule 14D-9 will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Parent or Purchaser in writing expressly for inclusion in the Schedule 14D-9. The Company further agrees to take all steps necessary to cause the Schedule 14D-9 to be filed with the SEC and to be disseminated to holders of shares of Common Stock, in each case as and to the extent required by applicable federal securities laws. Each of the Company, on the one hand, and Parent and Purchaser, on the other hand, agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the extent that it shall have become false and 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 holders of the shares of Common Stock, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given the opportunity to review and comment on the Schedule 14D-9 before any filing with the SEC. In addition, the Company agrees to provide Parent, Purchaser and their counsel with any comments or other communications that the Company or any Subsidiary is a party and its counsel may receive from time to time from the Transactions applicable SEC or its staff with respect to the Company Schedule 14D-9 promptly after the receipt of such comments or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stockother communications.

Company Action. (a) The BoardCompany hereby approves of and consents to the Offer and represents that its Board of Directors, at a meeting duly called and held on June 10, 2008held, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are advisable and are fair to the Company or any Subsidiary are and in the best interests of the Company and the SubsidiariesCompany's stockholders, (ii) approved, approved and adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made Merger, in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve requirements of the DGCL and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend acceptance of the Offer and approval and adoption of this Agreement and the Merger by its stockholders. The Company further represents that U.S. Bancorp Xxxxx Xxxxxxx Inc. has delivered to the Company's Board of Directors its written opinion that the consideration to be paid in the Offer and the Merger is fair to the holders of the Remaining Shares shares of the Preferred Company Common Stock (other than Parent, Purchaser or their Affiliates) from a financial point of view. The Company has been advised that they accept the Tender Offer all of its directors and executive officers who own shares of Company Common Stock intend either to tender their shares of Company Common Stock pursuant to the Tender Offer or to vote in favor of the Merger. The Company will promptly furnish Parent with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of shares of Company Common Stock and lists of securities positions of shares of Company Common Stock held in stock depositories, in each case true and correct as of the most recent practicable date, and will provide to Parent such additional information (including updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Parent may reasonably request in connection with the Offer. (b) As soon as practicable on the day that the Offer is commenced, (v) resolved the Company shall file with the SEC and disseminate to recommend holders of shares of Company Common Stock, in each case as and to the extent required by applicable federal securities laws, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the "SCHEDULE 14D-9") that shall reflect the recommendations of the Company's Board of Directors referred to above. The Company, Parent and Purchaser each agree promptly to correct 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. The Company 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 holders of the 12% Senior Notes that they accept the Exchange Offer shares of Company Common Stock, in each case as and tender their notes pursuant to the Exchange Offer, extent required by applicable federal securities laws. Parent and (vi) resolved its counsel shall be given an opportunity to recommend review and comment on the Schedule 14D-9 prior to its being filed with the SEC. The Company also agrees to provide Parent and its counsel in writing with any comments the Company or its counsel may receive from the SEC or its staff with respect to the stockholders Schedule 14D-9 promptly after the receipt of such comments and shall provide Parent and its counsel a reasonable opportunity to review and comment on the response of the Company to approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocksuch comments.

Company Action. The Board(a) Subject to Section 6.6, the Company hereby consents to the Offer and represents that the Company Board of Directors, at a meeting duly called and held on June 10, 2008prior to the execution of this Agreement at which substantially all directors of the Company were present, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the Company and the SubsidiariesStockholders, (ii) approved, approved and adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval Merger, and adoption having been made declared this Agreement advisable, in accordance with the requirements of the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 adopted an amendment to the Rights Plan to cause the provisions of the DGCL) becoming “interested shareholders” within Rights Plan not to be applicable to this Agreement or the meaning of Section 203 Transaction Documents or to the transactions contemplated hereby or thereby and to provide for the expiration of the DGCL, Rights upon the consummation of the Merger and (iv) resolved to recommend to recommended that the holders of the Remaining Shares of the Preferred Stock that they Company Stockholders accept the Tender Offer and Offer, tender their shares Shares to Merger Sub pursuant to the Tender OfferOffer and, (v) resolved to recommend if applicable, approve and adopt this Agreement and the Merger. The Company hereby consents to the holders inclusion of the 12% Senior Notes foregoing determinations and approvals in the Offer Documents and, to the extent that they accept no Adverse Recommendation Change has occurred in accordance with Section 6.6, the Exchange Company hereby consents to the inclusion in the Offer Documents of the recommendation referenced in clause (iv) of the immediately preceding sentence. The Company has been advised that its executive officers and directors who own Shares intend to tender their notes Shares pursuant to the Exchange OfferOffer in accordance with the terms of the Tender and Support Agreement. The Company shall cause its transfer agent to promptly furnish Parent with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, as of the most recent practicable date, and shall provide to Parent such additional information (viincluding updated lists of stockholders, mailing labels and lists of securities positions) resolved and such other assistance as Parent may reasonably request in connection with communicating the Offer to recommend record and beneficial holders of Shares in accordance with this Agreement and applicable U.S. federal securities Laws. Parent and Merger Sub shall treat the information contained in such lists, labels and files and any additional information referred to in the preceding sentence as confidential in accordance with the terms and conditions of the Confidentiality Agreement. (b) On the date that the Offer Documents are filed with the SEC, the Company shall file with the SEC and disseminate to holders of Shares, in each case as and to the stockholders extent required by applicable U.S. federal securities Laws, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.6, shall reflect the recommendations of the Company Board of Directors referred to approve above. Each of Parent and adopt Merger Sub shall promptly furnish to the Transaction Agreements Company in writing all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company for inclusion in the Schedule 14D-9. Each of the Company, Parent and Merger Sub agrees promptly to which correct 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 to correct any material omissions in the Schedule 14D-9. The Company 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 holders of Shares with the Offer Documents, in each case as and to the extent required by applicable U.S. federal securities Laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 prior to its filing with the SEC, and the Company shall give reasonable and good faith consideration to any comments made by Parent, Merger Sub and their counsel. The Company shall provide Parent, Merger Sub and their counsel with (i) any comments or other communications, whether written or oral, that the Company or any Subsidiary is its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of those comments or other communications and (ii) a party reasonable opportunity to participate in the Company’s response to those comments and the Transactions applicable to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with the Company or its counsel in any Subsidiary, including discussions or meetings with the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockSEC.

Company Action. (a) The BoardCompany hereby consents to the Offer and represents and warrants that the Board of Directors, at a meeting duly called and held on June 10October 13, 20082000, has unanimously acting by a unanimous vote of the directors: (i) approved and adopted this Agreement and the transactions contemplated hereby, including the Offer and the Merger and the transactions contemplated by the Stockholder Agreement (including, without limitation, for purposes of Section 9 of the Confidentiality Agreement dated August 14, 2000 between Parent and the Company (the "Confidentiality Agreement")); (ii) resolved to recommend that the stockholders ------------------------- of the Company accept the Offer, tender their Shares pursuant to the Offer and approve this Agreement and the transactions contemplated hereby, including the Merger; (iii) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to transactions contemplated hereby, including the Company or any Subsidiary Offer and the Merger, are advisable and in the best interests of the stockholders of the Company and that the Subsidiaries, (ii) approved, adopted and declared advisable consideration to be paid for each Share in the Transaction Agreements to which the Company or any Subsidiary is a party Offer and the Transactions applicable Merger is fair to the Company or any Subsidiary, including the amendments set forth in the Amendment holders of Shares; and (iv) irrevocably has taken all action necessary to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in render Section 203 of the DGCLDGCL and other state takeover statutes inapplicable to the Offer, the Merger, this Agreement and the Stockholder Agreement and the transactions contemplated hereby and thereby. The Board has received the opinion of Credit Suisse First Boston Corporation (the "Company's Financial Advisor") becoming “interested shareholders” within to the meaning --------------------------- effect that, based upon and subject to the matters set forth therein and as of the date thereof, the Offer Price to be received by holders of Shares (other than Parent and its Affiliates) pursuant to the Offer and the Merger is fair to such holders of Shares from a financial point of view. The Company hereby consents to the inclusion in the Offer Documents of the recommendations of the Board described in this Section 1.02, provided that this Agreement has not been ------------ terminated. (b) The Company shall file with the SEC, as promptly as practicable after the filing by Purchaser of the Schedule TO with respect to the Offer but in any event on the date such Schedule TO is filed with the SEC, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the "Schedule 14D-9") that -------------- (i) will comply in all material respects with the provisions of all applicable federal securities laws and (ii) will include the recommendations of the Board of Directors referred to in clause (ii) of Section 203 1.02(a) and the opinion of ----------- --------------- the Company's Financial Advisor referred to in Section 4.16, provided that this ------------ Agreement has not been terminated. Each of the DGCLCompany, (iv) resolved on the one hand, and Parent and Purchaser, on the other hand, agrees promptly to recommend correct any information provided by it for use in the Schedule 14D-9 if and to the extent that the Schedule 14D-9 shall be, or have become, false or misleading in any material respect, and the Company shall take all steps necessary to cause the Schedule 14D-9, as so corrected, to be filed with the SEC and disseminated to the Company's stockholders, in each case to the extent required by applicable law. The Company shall provide Parent, Purchaser and their counsel with a reasonable opportunity to review and comment on the Schedule 14D-9 before it is filed with the SEC. The Company shall promptly provide the Parent and Purchaser and their counsel in writing with, and consult with Parent and Purchaser and its counsel regarding, any comments the Company or its counsel may receive from the time to time from the SEC or its staff with respect to the Schedule 14D-9. (c) In connection with the Offer, the Company shall promptly upon execution of this Agreement furnish Parent and Purchaser 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 Remaining Shares and holders of other securities issued by the Company (if any) as of the Preferred most recent practicable date and shall furnish the Purchaser with such additional available information (including, but not limited to, updated lists of holders of Common Stock that they accept and their addresses, mailing labels and lists of security positions and non-objecting beneficial owner lists) and such other information and assistance as Parent, Purchaser or their agents may reasonably request for the Tender purpose of communicating the Offer to the record and beneficial holders of Shares. Subject to the requirements of law, and except for such steps as are necessary to such dissemination of, and communication with respect to, the Offer Documents and any other documents necessary to consummate the Offer and tender their shares pursuant the Merger, Purchaser shall hold in confidence the information contained in any such labels and lists and the additional information referred to in the Tender Offerpenultimate sentence of this Section 1.02(c), (v) resolved to recommend to will use such --------------- information only in connection with the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange OfferMerger, and (vi) resolved to recommend to the stockholders of the Company to approve and adopt the Transaction Agreements to which the Company or any Subsidiary and, if this Agreement is a party and the Transactions applicable terminated, will, upon request, deliver to the Company or any Subsidiary, including the amendments set forth all such written information then in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stockits possession.

Company Action. (a) The BoardCompany shall, after affording Parent and Merger Sub 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, a Schedule 13E-3 (the “Company Schedule 13E-3”) and a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, and including the exhibits thereto, the “Schedule 14D-9”) reflecting, subject to the provisions of Section 7.4(e), the recommendation of the Board of Directors of the Company that holders of shares of Common Stock tender their shares of Common Stock pursuant to the Offer, and shall disseminate the Schedule 14D-9 to holders of the Common Stock, in each case as and to the extent required by applicable Law. Subject to Section 7.4(e), the Schedule 14D-9 will set forth, and the Company hereby represents, that the Board of Directors of the Company, acting upon the unanimous recommendation of the Special Committee, at a duly held meeting duly called and held on June 10, 2008, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are advisable and fair to the Company or any Subsidiary are and in the best interests of the Company and the Subsidiariesits stockholders (other than Affiliates of Parent), (ii) approvedapproved the execution, adopted delivery and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party performance of this Agreement and the Transactions applicable to consummation of the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made Merger, in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock )applicable Law, (iii) approved Purchaser resolved to recommend that the holders of Common Stock accept the Offer, tender their shares of Common Stock into the Offer, and its “affiliates” approve the Merger and “associates” this Agreement (each as defined in Section 203 to the extent such approval is required by applicable Law for the consummation of the DGCLMerger) becoming (such recommendations, together with the determinations set forth in clause (i), the “interested shareholders” within Recommendation”), (iv) directed that the meaning approval of the Merger and this Agreement be submitted for consideration of the stockholders of the Company at the Company Stockholder Meeting (to the extent required by applicable Law) and (v) approved the acquisition of shares of Common Stock by Parent and Merger Sub pursuant to the Offer, the Merger, and the other transactions contemplated by this Agreement for purposes of Section 203 of the DGCLAct (the “Takeover Statute”) (such actions by the Board of Directors of the Company described in the preceding clauses (i) through (v), (iv) resolved to recommend collectively, the “Board Actions”). Each of Parent and Merger Sub shall promptly furnish to the holders Company in writing all information concerning Parent or Merger Sub that may be required by applicable securities laws for inclusion in the Company Schedule 13E-3 or Schedule 14D-9. Subject to Section 7.4(e), the Company hereby consents to the inclusion in the Offer Documents of the Remaining Shares Board Actions. If at any time prior to the Closing, any information relating to the Offer, the Merger, the Company, Parent, Merger Sub or any of their respective Affiliates, directors or officers, should be discovered by the Company, Parent or Merger Sub which should be set forth in an amendment or supplement to the Company Schedule 13E-3 or the Schedule 14D-9, so that the Company Schedule 13E-3 or the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the Preferred Stock that circumstances under which they accept are made, not misleading, the Tender Offer and tender their shares pursuant to party which discovers such information shall promptly notify the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offerother parties, and (vi) resolved to recommend an appropriate amendment or supplement describing such information shall be filed by the Company with the SEC and disseminated to the stockholders of the Company Company, as and to approve the extent required by applicable Law or any applicable rule or regulation of any stock exchange. Parent, Merger Sub and adopt the Transaction Agreements their counsel shall be given a reasonable opportunity to which review and comment on the Company or Schedule 13E-3 and Schedule 14D-9 and any Subsidiary is a party and the Transactions applicable amendments to the Company Schedule 13E-3 and the Schedule 14D-9 before they are filed with the SEC or any Subsidiary, including the amendments set forth in the Amendment disseminated to the Certificate holders of IncorporationCommon Stock. The Company shall respond as promptly as reasonably practicable to any comments received from the SEC with respect to the Company Schedule 13E-3 or the Schedule 14D-9 and provide copies of such comments to Parent and Merger Sub promptly upon receipt and copies of proposed responses to Parent and Merger Sub a reasonable time prior to filing or disseminating to allow meaningful comment. (b) In connection with the Offer, the Amended Company will promptly furnish or cause to be furnished to Parent and Restated ByMerger Sub mailing labels, security position listings, non-lawsobjecting beneficial owner lists, and any available listing or computer list containing the Amendment names and addresses of the record holders of the shares of Common Stock as of the most recent practicable date and shall furnish Parent and Merger Sub with such additional available information (including, without limitation, updated lists of holders of shares of Common Stock and their addresses, mailing labels and lists of security positions and non-objecting beneficial owner lists as they become available) and such other assistance as Parent and Merger Sub and their agents may reasonably request in communicating the Offer to the Certificate of Designations record and beneficial holders of the Senior Preferred Common Stock in accordance with this Agreement and the Amendment to the Certificate of Designations of the Junior Preferred Stockapplicable U.S. federal securities Laws.

Company Action. (a) The BoardCompany hereby consents to the -------------- Offer and represents that its Board of Directors, at a meeting duly called and held on June 10, 2008held, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiary are in the best interests of the Company and the Subsidiaries, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock Merger (such approval and adoption having been made defined below in accordance with the DGCLSection 2.1), subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate Stockholder Option Agreement, dated as of Designations of Series B-2 Preferred Stock March 29, 1999 (the "Stockholder Option Agreement"), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to among the stockholders of the Company to approve that are named therein ("Stockholders") and adopt the Transaction Agreements to which the Company or any Merger Subsidiary is a party and the Transactions applicable transactions contemplated thereby, are advisable and are fair to and in the Company or any Subsidiarybest interest of the Company's stockholders, (ii) approved this Agreement and the transactions contemplated hereby, including the amendments set forth Offer and the Merger, and the Stockholder Option Agreement and the transactions contemplated thereby, which approval constitutes approval under Section 203 of the General Corporation Law of the State of Delaware (the "Delaware Law") such that the Offer, the Merger, the Stockholder Option Agreement and the other transactions contemplated hereby and thereby are not and shall not be subject to any restriction of Section 203 of Delaware Law, and (iii) resolved to recommend acceptance of the Offer and approval and adoption of this Agreement and the Merger by its stockholders. The Company further represents that Credit Suisse First Boston Corporation ("CSFB") has delivered to the Company's Board of Directors its opinion that the consideration to be paid in the Amendment Offer and the Merger is fair to the Certificate holders of Incorporation, the Amended Company Shares (as defined below in Section 2.2(c)) from a financial point of view. The Company has been advised that all of its directors and Restated By-laws, the Amendment executive officers presently intend either to tender their Shares pursuant to the Certificate of Designations Offer or to vote in favor of the Senior Preferred Stock Merger. The Company will promptly furnish Parent and Merger Subsidiary with a list of its stockholders, mailing labels and any available listing or computer file containing the Amendment names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case as of the most recent practicable date, and will provide to Parent and Merger Subsidiary such additional information (including, without limitation, updated lists of stockholders, mailing labels and lists of securities positions) and such other assistance as Parent or Merger Subsidiary may reasonably request in connection with the Offer. (b) As soon as practicable on the day that the Offer is commenced the Company will file with the SEC and disseminate to holders of Shares a Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9") which shall reflect the recommendations of the Company's Board of Directors referred to above, subject to the Certificate of Designations fiduciary duties of the Junior Preferred StockBoard of Directors of the Company as advised in writing by Xxxxxx Xxxxxx & Xxxxx, counsel to the Company. The Company, Parent and Merger Subsidiary each agree promptly to correct 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. The Company 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 holders of Shares, in each case as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 prior to its being filed with the SEC.

Company Action. (a) The BoardBoard of Directors of the Company, at a meeting duly called and held on June 10, 2008held, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary Merger is a party fair and the Transactions applicable to the Company or any Subsidiary are in the best interests of the Company and the Subsidiariesits stockholders, (ii) approved, adopted and declared advisable approved the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made Merger in accordance with the provisions of the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser this Agreement, the Certificate of Merger and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCLOption Agreement, (iv) authorized the execution and delivery of this Agreement, the Certificate of Merger and the Option Agreement and (v) directed that this Agreement and the Merger be submitted to the Company Stockholders for their approval and resolved to recommend that Company Stockholders vote in favor of the approval of this Agreement and the Merger. (b) The Company has received the opinion of FBW dated of recent date, satisfactory to the holders Company and its Board of Directors to the effect that the terms of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant Merger are fair to the Tender OfferCompany Stockholders from a financial point of view (the "FBW Opinion"). (c) On the date hereof, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders of the Company to approve and adopt has entered into an option agreement (the Transaction Agreements "Option Agreement") with the Parent in substantially the form attached hereto as Exhibit B pursuant to which the Company or any Subsidiary grants the Parent an option, --------- under certain circumstances whereby this Agreement is a party terminated and the Transactions applicable Merger does not take place as contemplated herein, to purchase up to that number of Company Shares as may equal 16% of the issued and outstanding Company Shares, at a price equal to the Per Share Consideration payable in cash. (d) The Company shall use it reasonable efforts to obtain and deliver to the Parent simultaneously with the execution of this Agreement or as soon as practicable thereafter, the written agreement of the executive officers and directors listed on Schedule 2.32 hereto, and all other persons or entities who ------------- are at such time "affiliates" of the Company for purposes of Rule 145 under the Securities Act, to the extent such persons or entities own Company Shares (the "Company Affiliates") substantially in the form attached hereto as Exhibit C (an --------- "Affiliate Agreement") pursuant to which each of the Company Affiliates shall have (i) acknowledged that the Merger Shares to be received by them will be subject to certain resale restrictions under Rule 145 of the Securities Act, and (ii) with respect to the Company Affiliates who are directors or any Subsidiaryexecutive officers of the Company (other than Mr. Xxxxxxx Xxxxxxxx) agreed to vote all Company Shares owned by them or over which they have voting control, including in favor of the amendments set forth in the Amendment Merger and this Agreement and irrevocably grant a proxy, coupled with an interest, to the Certificate Parent or its designee to vote such Company Shares in favor of Incorporation, this Agreement and the Amended and Restated By-laws, Merger. Schedule 2.32 of the Amendment Company Disclosure ------------- Schedule identifies all persons or entities who or which are as of the date hereof Company Affiliates. (e) The Company has delivered to the Certificate of Designations Parent the Employment Agreements and Noncompetition and Confidentiality Agreements (attached hereto as Exhibits E and E-1, respectively and referred collectively as the "Employment Agreements") executed by Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxx and Xxxx X. XxXxxxxx III, which agreements will become effective only upon consummation of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockMerger.

Company Action. (a) The BoardCompany shall, after affording Parent 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, a Schedule 13E-3 (the "Company Schedule 13E-3") and a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, and including the exhibits thereto, the "Schedule 14D-9") reflecting the recommendation of the Board of Directors of the Company that holders of shares of Common Stock tender their shares of Common Stock pursuant to the Offer, and shall disseminate the Schedule 14D-9 to holders of the Common Stock, in each case as and to the extent required by applicable Law. The Schedule 14D-9 will set forth, and the Company hereby represents, that the Board of Directors of the Company, acting upon the unanimous recommendation of the Special Committee, at a duly held meeting duly called and held on June 10, 2008, has unanimously (i) determined that the Transaction Agreements to which Offer, the Company or any Subsidiary is a party Merger, this Agreement and the Transactions applicable other transactions contemplated hereby are advisable and fair to the Company or any Subsidiary are and in the best interests of the Company and the Subsidiariesits stockholders (other than Parent and its Affiliates), (ii) approvedapproved the Offer, adopted the Merger, the execution, delivery and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party performance of this Agreement and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations consummation of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made transactions contemplated hereby in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock )applicable Law, (iii) approved Purchaser resolved to recommend that the holders of Common Stock accept the Offer, tender their shares of Common Stock into the Offer, and its “affiliates” approve the Merger and “associates” this Agreement (each as defined in Section 203 to the extent such approval is required by applicable Law for the consummation of the DGCLMerger) becoming “interested shareholders” within (such recommendations, together with the meaning of Section 203 of determinations set forth in clause (i), the DGCL"Recommendation"), (iv) resolved to recommend to directed that the holders approval of the Remaining Shares Merger and this Agreement be submitted for consideration of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders of the Company to approve and adopt the Transaction Agreements to which at the Company or Stockholder Meeting (to the extent required by applicable Law) and (v) taken all other action necessary to render any Subsidiary is a party Takeover Statute inapplicable to each of the Offer, the Merger, this Agreement, the Tender Agreements and the Transactions Voting Agreement and the other transactions contemplated hereby and thereby (such actions by the Board of Directors of the Company described in the preceding clauses (i) through (v), collectively, the "Board Actions"). The Company hereby consents to the inclusion in the Offer Documents of the Board Actions. The Company agrees promptly to correct the Company Schedule 13E-3 and the Schedule 14D-9 if and to the extent that it shall become false or misleading in any material respect (and each of Parent and Merger Sub, with respect to written information supplied by it specifically for use in the Company Schedule 13E-3 or the Schedule 14D-9, shall promptly notify the Company of any required corrections of such information and cooperate with the Company with respect to correcting such information) and to supplement the information contained in the Company Schedule 13E-3 or the Schedule 14D-9 to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and the Company shall use reasonable best efforts to cause the Company Schedule 13E-3 or the Schedule 14D-9 as so corrected to be filed with the SEC and disseminated to the Company's stockholders to the extent required by applicable Federal securities laws. Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review and comment on the Company Schedule 13E-3 and the Schedule 14D-9 and any amendments thereto before they are filed with the SEC or disseminated to the holders of Common Stock. The Company shall respond as promptly as reasonably practicable to any comments received from the SEC with respect to the Company Schedule 13E-3 or the Schedule 14D-9 and provide copies of such comments to Parent and Merger Sub promptly upon receipt and copies of proposed responses to Parent and Merger Sub a reasonable time prior to filing or disseminating to allow meaningful comment. (b) In connection with the Offer, the Company will promptly furnish to Parent and Merger Sub mailing labels, security position listings, non-objecting beneficial owner lists and any Subsidiaryavailable listing or computer list containing the names and addresses of the record holders of the shares of Common Stock as of the most recent practicable date and shall furnish Parent and Merger Sub with such additional available information (including, including without limitation, updated lists of holders of shares of Common Stock and their addresses, mailing labels and lists of security positions and non-objecting beneficial owner lists as they become available) and such other assistance as Parent and Merger Sub and their agents may reasonably request in communicating the amendments set forth in the Amendment Offer to the Certificate of Incorporation, the Amended record and Restated By-laws, the Amendment to the Certificate of Designations beneficial holders of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Common Stock.

Company Action. (a) The Board, Company hereby approves of and consents to the Offer and represents and warrants that at a meeting duly called and held on June 10December [ ], 20082005, has unanimously the Company Board (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party Offer, and this Agreement and the Transactions applicable to transactions contemplated thereby and hereby (including the Company or any Subsidiary Merger and the Second Merger) are advisable and in the best interests of the Company and the Subsidiariesstockholders, (ii) approved, approved and adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of IncorporationOffer, the Amended and Restated By-lawsMerger, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made Second Merger in all respects in accordance with Delaware law, and such approval constitutes approval of the DGCLOffer, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock this Agreement and the Certificate Merger for all purposes of Designations Section 203 of Series B-2 Preferred Stock the DGCL (as described in Section 4.04(b)), (iii) approved Purchaser and its “affiliates” and “associates” adopted an amendment to the terms of the Company Rights Agreement (each as defined in Section 203 of 3.01(f)) and took all other actions necessary to render the DGCL) becoming “interested shareholders” within Company Rights Agreement inapplicable to Parent, Merger Sub, the meaning of Section 203 of Offer, this Agreement and the DGCLMerger (such action, collectively, the "Rights Plan Amendment"), and (iv) resolved to recommend that the stockholders of the Company tender their Shares to Merger Sub pursuant to the Offer and that the stockholders of the Company adopt and approve this Agreement and the Merger if stockholder approval is required by the DGCL; provided, however, that such recommendation may be withdrawn, modified or amended if permitted by Section 6.03 and subject to the payment of any applicable fees resulting from such action as provided in Section 6.09. The Company consents to the inclusion of such recommendations and approvals in the Offer Documents and in the Information Statement. (i) As promptly as practicable after the date of this Agreement, the Company shall file with the SEC an amendment to its Solicitation/Recommendation Statement on Schedule 14D-9 originally filed on December 5, 2005, with respect to the Offer, reflecting the Company Board's recommendation that the Company's stockholders accept and tender Shares pursuant to the Offer, the Company Board's approval of this Agreement and otherwise reflecting the terms and conditions of this Agreement and including the information regarding Parent's designees to the Company Board pursuant to Section 1.03 to the extent Parent shall have theretofore provided the information required by Section 1.03(b) (such Schedule 14D-9, as amended or supplemented from time to time, the "Schedule 14D-9"), (ii) if (x) following the completion of the Offer and any exercise of the Top-Up Option, consummation of the Merger under Section 253 of the DGCL as contemplated by Section 1.05 is not permitted by the terms of Section 253 of the DGCL and (y) Parent delivers to the Company a written consent of the holders of Shares in accordance with Section 228 of the DGCL duly adopting this Agreement under Section 251 of the DGCL and so requests, the Company shall as promptly as reasonably practicable file with the SEC an Information Statement on Schedule 14C (as amended or supplemented from time to time, the "Information Statement"), describing the Merger and the Second Merger and including such information regarding Parent, Merger Sub, the Company and the terms and approval of such transactions as is required by such form and under applicable Law, and (iii) shall disseminate the Schedule 14D-9 and the Information Statement to the holders of Shares at the times and to the extent required by applicable Laws. The Schedule 14D-9 (including the information regarding Parent's designees to the Company Board) and the Information Statement will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company's stockholders, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with respect to information supplied by Parent or Merger Sub in writing for inclusion in the Schedule 14D-9 or the Information Statement. Each of Parent and Merger Sub shall promptly furnish to the Company all information concerning Parent and Merger Sub that is required or reasonably requested by the Company in connection with such actions. The Company, Parent and Merger Sub each agrees promptly to correct any information provided by it for use in the Schedule 14D-9 or the Information Statement 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 and the Information Statement as so corrected to be filed with the SEC and disseminated to the holders of the Remaining Shares Shares, in each case as and to the extent required by applicable Laws. The Company further agrees to promptly advise Parent of any comments or other communications (and promptly provide copies of any such written materials or reasonably detailed summaries of any oral communications) that the Company or its counsel or representatives may receive from the SEC or its staff with respect to the Schedule 14D-9 or any other securities filings of the Preferred Stock that they accept Company related to the Tender Offer, the Merger or the transactions contemplated hereby or thereby. (c) In connection with the Offer and tender their shares pursuant to the Tender Offermailing of the Offer Documents and the Information Statement, (v) resolved to recommend to the Company will promptly furnish Parent and Merger Sub with mailing labels, security position listings and any available listing or computer files containing the names and addresses of the record holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders Shares as of the Company to approve most recent date practicable and adopt shall furnish Merger Sub with such additional information and assistance (including, without limitation, updated stockholder lists, mailing labels and lists of securities positions) as Merger Sub or its agents may reasonably request in communicating the Transaction Agreements to which Offer or the Company or any Subsidiary is a party and the Transactions applicable matters subject to the Company or any Subsidiary, including the amendments set forth Stockholder Approval (as defined in the Amendment Section 4.04(a)) to the Certificate record and beneficial holders of IncorporationShares. Except for such steps as are necessary to disseminate the Offer Documents and any other documents necessary to consummate the Offer, the Amended Merger or the Second Merger, Parent, Merger Sub and Restated By-lawstheir respective affiliates, associates, agents and advisors shall use the Amendment information contained in any such labels, listings and files only in connection with the Offer and the Merger, and, if this Agreement shall be terminated, will deliver to the Certificate Company all copies of Designations such information then in their possession promptly upon the request of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockCompany.

Company Action. (a) The BoardCompany hereby approves of and consents to the Offer and represents that its Board of Directors, at a meeting duly called and held on June 10, 2008held, has unanimously (i) by unanimous vote of all directors of the Company, determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable are fair to the Company or any Subsidiary are and in the best interests of the Company and the SubsidiariesCompany's stockholders, (ii) approvedby unanimous vote of all directors of the Company, approved and adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 requirement of the DGCL, (iii) by unanimous vote of all directors of the Company declared that this Agreement is advisable, and (iv) by unanimous vote of all directors of the Company, resolved to recommend that the stockholders of the Company accept the Offer and tender their shares of Company Common Stock pursuant to the Offer and adopt this Agreement and approve the Merger (the recommendation of the Company's Board of Directors that the stockholders of the Company accept the Offer and tender their shares of Company Stock pursuant to the Offer and adopt this Agreement and approve the Merger being referred to as the "Company Board Recommendation"). Subject to Section 5.12, the Company hereby consents to the inclusion of the Company Board Recommendation in the Offer Documents. Further, the Company represents that it has engaged a financial advisor to deliver to the Company's Board of Directors a written opinion that the consideration to be received by the holders of the shares of Company Common Stock pursuant to each of the Offer and the Merger is fair to the holders of the Remaining Shares shares of Company Common Stock from a financial point of view (the "Fairness Opinion"). (b) As promptly as practicable on the day that the Offer is commenced (within the meaning of Rule 14d-2 under the Exchange Act), the Company shall file with the SEC and disseminate to holders of the Preferred Stock that they accept the Tender Offer shares of Company Common Stock, in each case as and tender their shares pursuant to the Tender Offerextent required by applicable federal securities laws, a Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (vtogether with any exhibits, amendments or supplements thereto, the "Schedule 14D-9") resolved containing the Fairness Opinion (to recommend the extent not withdrawn) and, subject to Section 5.12, the Company Board Recommendation described in Section 1.2(a), and shall disseminate the Schedule 14D-9 to the extent required by Rule 14D-9 promulgated under the Exchange Act, and any other applicable federal securities laws. Each of Parent, Purchaser and the Company agree to correct promptly any information provided by it for use in the Schedule 14D-9 which 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 or disseminated to holders of shares of the Company Common Stock, in each case as and to the extent required by applicable federal securities laws. The Company shall give Parent and its counsel a reasonable opportunity to review and comment on the Schedule 14D-9 prior to such document being filed with the SEC or disseminated to the holders of the 12% Senior Notes shares of Company Common Stock. The Company shall provide Parent and its counsel with any comments that they accept the Exchange Offer and tender their notes pursuant Company or its counsel may receive from the SEC or its staff with respect to the Exchange Offer, Schedule 14D-9 promptly after the receipt of such comments and (vi) resolved shall provide Parent and its counsel with a reasonable opportunity to recommend to participate in the stockholders response of the Company to approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocksuch comments.

Company Action. (a) The Company approves of and consents to the Tender Offer and represents and warrants that its Board of Directors (the "Board, at a meeting duly called and held on June 10, 2008, ") has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated by this Agreement are fair to the Company or any Subsidiary are and in the best interests of the Company and the Subsidiariesits stockholders, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party approved this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated by it, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Tender Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock Merger (such approval and adoption having been made described in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock Article 2), and declared that this Agreement is advisable, and (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to that the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and Company's stockholders tender their shares pursuant in response to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders of the Company to approve and adopt this Agreement and approve the Transaction Agreements Merger. The Company has been advised by each of its directors and executive officers that he or she intends to which tender and sell all his or her shares of Common Stock in response to the Tender Offer, except that directors and executive officers whose sales of their shares in response to the Tender Offer might result in liability under Section 16(b) of the Exchange Act have stated that if they do not tender and sell their shares in response to the Tender Offer, they will vote their shares in favor of approval of the Merger. Notwithstanding anything contained in this subparagraph (a) or elsewhere in this Agreement, if the Board, after consultation with its counsel about the Board's fiduciary obligations, determines in good faith to withdraw, modify or amend the recommendation, because the failure to do so could reasonably be expected to violate the directors' fiduciary duties under applicable law, that withdrawal, modification or amendment will not constitute a breach of this Agreement. (b) The Company will file with the SEC, promptly after Acquisition files the Schedule TO, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements, the "Schedule 14D-9") containing the recommendations described in subparagraph (a) and will disseminate the Schedule 14D-9 as required by Rule 14d-9 under the Exchange Act. The Company and Acquisition each agrees to correct promptly any information provided by it for use in the Schedule 14D-9 if and to the extent that information is or becomes incomplete or inaccurate in any material respect and the Company will file any necessary amendment or correction to the Schedule 14D-9 with the SEC and disseminate the amendment or correction (or the amended or corrected Schedule 14D-9) to the Company's stockholders to the extent required by the Exchange Act or the rules under it. (c) In connection with the Tender Offer, the Company will promptly furnish Acquisition with mailing labels, security position listings and any Subsidiary is other available listing or computer files containing the names and addresses of the record holders or beneficial owners of shares of Common Stock as of a party recent date and the Transactions Company will furnish Acquisition with such additional information and assistance (including, without limitation, updated lists of stockholders, mailing labels and lists of securities positions) as Acquisition or its representatives may reasonably request in order to communicate the Tender Offer to the record holders and beneficial owners of the Common Stock. Subject to the requirements of applicable law, Acquisition will hold in confidence the information contained in any such labels, listings or files, and will use that information only in connection with the Tender Offer and the Merger. If this Agreement is terminated, Acquisition will return to the Company or any Subsidiary, including the amendments set forth originals and all copies of that information which are in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockAcquisition's possession.

Company Action. (a) The BoardCompany hereby consents to the Offer and represents that the board of directors of the Company (the “Board of Directors”), at a meeting duly called and held on June 10, 2008, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, Table of Contents are fair to the Company or any Subsidiary are and in the best interests of the Company and the SubsidiariesCompany’s stockholders, (ii) approved, approved and adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the Offer and the Merger, in accordance with the requirements of the Delaware Law and (iii) subject to Section 7.04(b), resolved to recommend acceptance of the Offer and, and if required by Delaware Law, adoption of this Agreement by its stockholders. The Company has been advised that all of its directors and executive officers who own Shares shall tender their Shares pursuant to the Offer. The Company shall promptly furnish Parent with a list of its stockholders, mailing labels and any available listing or computer file containing the names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case true and correct as of the most recent practicable date, and shall provide to Parent such additional information (including updated lists of stockholders, mailing labels and lists of securities positions) (the “Mailing Information”) and such other assistance as Parent may reasonably request in connection with the Offer. Subject to the requirements of Applicable Laws, and except for such steps as are necessary to disseminate the Offer Documents to consummate the Offer as contemplated hereby and any other documents necessary to consummate the Merger as contemplated hereby, Parent, Merger Subsidiary and their Representatives shall keep confidential any Mailing Information provided by or on behalf of Company pursuant to this Section 2.02(a) and (prior to the Effective Time) use the Mailing Information only in connection with the Offer and the Merger as contemplated by this Agreement. In the event that this Agreement is terminated (or the Offer is terminated for any reason), Parent and Merger Subsidiary shall (and shall cause their Representatives to) promptly (and in any event within 24 hours) return to the Company, shall delete any and all electronic copies of, and shall not retain any copies or duplicates of, any and all Mailing Information theretofore made available to Parent and Merger Subsidiary pursuant to this Section 2.02(a) to facilitate the Offer or the Merger. (b) As soon as practicable on the Offer Commencement Date, the Company shall file with the SEC and disseminate to holders of Shares, in each case as and to the extent required by applicable federal securities laws, a Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 7.04(b), shall reflect the recommendations of the Board of Directors referred to above. The Company shall cause the Schedule 14D-9 to comply in all material respects with the requirements of the 1934 Act and all other Applicable Laws. The Company represents that it has obtained all necessary consents to include in its entirety the fairness opinion of Xxxxxx Xxxxxxx & Co. Incorporated, financial advisor to the Company, in the Schedule 14D-9, and the Schedule 14D-9 shall include such fairness opinion in its entirety and a description of such fairness opinion and the material financial analyses relating thereto that provides the information called for by Item 1015(b) of Regulation M-A under the 1934 Act. Parent and Merger Subsidiary shall furnish the Company all information concerning the Company required by the 1934 Act to be set forth in the Amendment Schedule 14D-9. Each of the Company, Parent and Merger Subsidiary agrees promptly to correct any information provided by it for use in the Schedule 14D-9 if and to the Certificate extent that such information shall have become (or shall have become known to be) false or misleading in any material respect. In addition, if at any time prior to the expiration of Incorporationthe Offer, any information relating to the Offer, the Amended Merger, the Company, Parent, Merger Subsidiary, or any of their respective affiliates is discovered by the Company, Parent or Merger Subsidiary which should be set forth in an amendment or supplement to the Schedule 14D-9 so that the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and Restated By-an appropriate amendment or supplement describing such information shall be filed with the SEC. The Company shall use reasonable best efforts to cause the Schedule 14D-9, as so corrected, amended or supplemented, to be filed with the SEC and disseminated to holders of Shares, in each case to the extent required by applicable federal securities laws, applicable rules or regulations of any stock exchange or any other Applicable Laws. Unless the Amendment to the Certificate Board of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made Directors has effected an Adverse Recommendation Change in accordance with Section 7.04(b), Parent, Merger Subsidiary and their counsel shall be given a reasonable opportunity to review and comment on the DGCLSchedule 14D-9 each time before it is filed with the SEC, subject and the Company shall give reasonable and good faith consideration to any additional comments made by Parent, Merger Subsidiary and their counsel. Unless the Board approvals as may be necessary of Directors has effected an Adverse Recommendation Change in connection accordance with Section 7.13 to approve and adopt, if applicable7.04(b), the final form Company shall provide Parent, Merger Subsidiary and their Table of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock )Contents counsel with (i) any comments or other communications, (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCLwhether written or oral, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders of the Company to approve and adopt the Transaction Agreements to which the Company or any Subsidiary is its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of those comments or other communications and prior to responding thereto and (ii) a party reasonable opportunity to participate in the Company’s response to those comments and the Transactions applicable to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with the Company or its counsel in any Subsidiary, including discussions or meetings with the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred StockSEC.

Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Board, at a meeting duly called and held on June 10held, 2008has, has subject to the terms and conditions set forth herein, unanimously (i) determined that the Transaction Agreements it is fair and advisable for Parent to which acquire the Company or any Subsidiary is a party on the terms and subject to the conditions set forth herein and approved this Agreement and the Transactions applicable to transactions contemplated hereby, including the Company or any Subsidiary are Offer and the Merger, in the best interests all respects and such approval constitutes approval of the Company Offer, this Agreement and the SubsidiariesMerger for purposes of the FBCA, (ii) approved, adopted and declared advisable resolved to recommend that the Transaction Agreements to which shareholders of the Company or any Subsidiary is a party accept the Offer, tender their Shares in the Offer and to the extent required, that the shareholders of the Company approve and adopt this Agreement and the Transactions applicable Merger (such recommendation, the “Recommendation”) and (iii) taken all other actions necessary to exempt the Offer, the Merger, this Agreement and the transactions contemplated hereby from any “fair price,” “moratorium,” “control share acquisition,” “interested shareholder,” “business combination,” “affiliated transaction” or other similar statute or regulation promulgated by a Governmental Entity (“Takeover Statute”). The Company consents to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate inclusion of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made Recommendation in accordance the Offer Documents. (b) The Company hereby agrees to file with the DGCLSEC on the date that Parent and Merger Sub file the Offer Documents pursuant to Section 1.1(b), subject a Solicitation/Recommendation Statement on Schedule 14D-9 pertaining to the Offer (together with any additional Board approvals as may amendments or supplements thereto, the “Schedule 14D-9”) containing the Recommendation. The Company agrees to use its reasonable best efforts to mail such Schedule 14D-9 to the shareholders of the Company concurrently with the mailing of the Offer Documents. The Schedule 14D-9 will comply in all material respects with the provisions of applicable federal securities laws and, on the date filed with the SEC and on the date first published, sent or given to the Company’s shareholders and at the Acceptance Time, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in connection order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no representation is made by the Company with Section 7.13 respect to approve information supplied by Parent or Merger Sub in writing for inclusion in the Schedule 14D-9. The Company, Parent and adoptMerger Sub each agrees promptly to correct any information provided by it for use in the Schedule 14D-9, if applicable, and to the final form of Certificate of Designations of Series B-1 Preferred Stock extent that it shall have become false or misleading in any material respect and the Certificate of Designations of Series B-2 Preferred Stock )Company further agrees to take all steps necessary to cause the Schedule 14D-9, (iii) approved Purchaser as so corrected to be filed with the SEC and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend disseminated to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer as and tender their shares pursuant to the Tender Offerextent required by applicable federal securities laws. Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review and comment on the Schedule 14D-9 (vincluding each amendment or supplement thereto) resolved before it is filed with the SEC and the Company shall give reasonable and good faith consideration to recommend to any comments made by Parent, Merger Sub and their counsel. In addition, the holders Company shall provide Parent, Merger Sub and their counsel with copies of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offerany written comments, and (vi) resolved to recommend to the stockholders shall inform them of the Company to approve and adopt the Transaction Agreements to which any oral comments, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments, and any Subsidiary is written or oral responses thereto. Parent, Merger Sub and their counsel shall be given a party reasonable opportunity to review any such responses and the Transactions applicable Company shall give reasonable and good faith consideration to the Company or any Subsidiarycomments made by Parent, including the amendments set forth in the Amendment Merger Sub and their counsel prior to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocktheir submission.

Company Action. (a) The Company hereby approves of and consents to the Offer and represents that (i) the Company's Board, at a meeting duly called and held on June 10October 14, 20081999, has unanimously (iA) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including each of the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the Company and the Subsidiaries, (ii) approved, adopted and declared advisable the Transaction Agreements to which shareholders of the Company or any Subsidiary is a party and (the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock "Shareholders"), (iiiB) approved Purchaser and its “affiliates” adopted this Agreement and “associates” the transactions contemplated hereby and (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (ivC) resolved to recommend that the Shareholders of the Company accept the Offer and approve and adopt this Agreement and the transactions contemplated hereby, subject to the Company's rights under Section 6.4 hereof; and (ii) Advest, Inc. has delivered to the Company's Board a written opinion that the consideration to be received by the holders of Shares pursuant to each of the Offer and the Merger is fair to the holders of Shares from a financial point of view. The Company hereby consents to the Remaining Shares inclusion in the Offer Documents the recommendation of the Preferred Stock that they accept Company's Board described above and the Tender Offer opinion obtained by the Company's investment bankers, described above. (b) As soon as reasonably practicable on the date of commencement of the Offer, the Company shall file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments and tender their shares pursuant supplements thereto, the "Schedule 14D-9") containing the recommendation of the Company's Board described in Section 1.2(a), subject to the Tender OfferCompany's rights under Section 6.4 hereof, (v) resolved to recommend and shall disseminate the Schedule 14D-9 to the extent required by Rule 14d-9, promulgated under the Securities Exchange Act of 1934 (the "Exchange Act"), and any other applicable federal securities laws. The Company, Ferrotec, and the Merger Sub agree to correct promptly any information provided by any of them for use in the Schedule 14D-9 which shall have become false or misleading, 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 disseminated to holders of the 12% Senior Notes that they accept the Exchange Offer Shares, in each case as and tender their notes pursuant to the Exchange Offerextent required by applicable federal securities laws. Ferrotec, Merger Sub and (vi) resolved their counsel shall be given the opportunity to recommend to review and comment upon the stockholders of Schedule 14D-9 before it is filed with the SEC. In addition, the Company agrees to approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporationprovide Ferrotec, the Amended Merger Sub and Restated By-lawstheir counsel in writing with any comments, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock.whether written or oral,

Company Action. (a) The Board, at a meeting duly called Company hereby approves of and held on June 10, 2008, consents to the Offer and the Notes Tender Offers and represents that the Company Board has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are advisable and are fair to the Company or any Subsidiary are and in the best interests interest of the Company and the SubsidiariesCompany's stockholders, (ii) approved, approved and adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable to the Company or any Subsidiarythis Agreement, including the amendments set forth in the Amendment to the Certificate of IncorporationOffer, the Amended and Restated By-lawsMerger, the Amendment to the Certificate of Designations of the Senior Preferred Stock Option Agreement and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock Stockholders Agreement and the Certificate of Designations of Series B-2 Preferred Stock )transactions contemplated hereby and thereby, (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in which approval constitutes approval under Section 203 of the DGCL) becoming “interested shareholders” within DGCL such that the meaning Offer, the Merger, this Agreement, the Stock Option Agreement and the Stockholders Agreement and the other transactions contemplated hereby and thereby are not and shall not be subject to any restriction of Section 203 of the DGCL, and (iviii) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to the stockholders of the Company accept the Offer, tender their Shares to Merger Subsidiary thereunder and approve and adopt the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable Merger (the recommendations referred to in this clause (iii) are collectively referred to in this Agreement as the "Recommendations"). The Company further represents that Deutsche Banc Alex. Brown and Rothschild Inc. have rendered to the Company or any Subsidiary, including Board their xxxxxons txxx xxx xxnsideration to be received by the amendments set forth in the Amendment Company's stockholders pursuant to this Agreement is fair to such stockholders from a financial point of view. The Company has been advised that all of its directors and executive officers presently intend to tender their Shares pursuant to the Certificate of IncorporationOffer. (b) As soon as practicable on the day that the Offer is commenced, the Amended Company will file with the SEC and Restated By-lawsdisseminate to holders of Shares a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all amendments and supplements thereto, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock."Schedule 14D-9") which shall contain, except as provided in Section 6.4,

Company Action. (a) The Company hereby approves of --------------- and consents to the Offer and represents and warrants that the Board, at a meeting duly called and held on June 10March 15, 20081998, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Completion of the Acquisition, are fair to the Company or any Subsidiary are and in the best interests of the Company and shareholders of the SubsidiariesCompany, (ii) approved, adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party approved this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in Offer and the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations Completion of the Senior Preferred Stock Acquisition and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval and adoption having been made in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” (each as defined in Section 203 of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend that the shareholders of the Company accept the Offer, tender their Shares thereunder to Subsidiary and, if required by applicable law, approve and adopt this Agreement and the Completion of the Acquisition. The Company further represents and warrants that Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation ("DLJ") has delivered to the Board its written opinion dated March 15, 1998 to the effect that, as of the date of such opinion, subject to the assumptions and limitations expressed therein, the consideration to be received by the holders of Shares in the Remaining Shares Offer and the Completion of the Preferred Stock that they accept the Tender Offer and tender their shares Acquisition pursuant to the Tender Offer, (v) resolved this Agreement is fair to recommend such holders from a financial point of view. The Company hereby consents to the holders inclusion in the Offer Documents of the 12% Senior Notes fact of the recommendations of the Board described in this Section 1.2(a). The Company represents and warrants that they accept the Exchange Offer Board has made appropriate amendments to and tender their notes pursuant determinations under the Rights Plan (the "Rights Plan Amendments and Determinations"), including without limitation: (A) an amendment to the Exchange Offerdefinition of "Acquiring Person" under the Rights Plan to exclude Parent, Subsidiary and their subsidiaries from that definition; (viB) resolved to recommend an amendment to the stockholders definition of "Separation Time" under the Rights Plan to provide that the Separation Time shall not occur by virtue of the Company to approve execution of this Agreement or the Shareholder Agreements, the consummation of the transactions contemplated or permitted hereunder or thereunder or the acquisition or purchase of Shares by Parent, Subsidiary so their subsidiaries and adopt a determination by the Transaction Agreements to which the Company or any Subsidiary is a party and the Transactions applicable Board to the Company or any Subsidiary, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stock.same effect; and

Company Action. (a) The BoardCompany hereby consents to the Offer and represents that its board of directors (the “Board of Directors”), at a meeting duly called and held on June 10, 2008, has unanimously (i) determined that the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable transactions contemplated hereby, including the Offer and the Merger, are fair to the Company or any Subsidiary are and in the best interests of the Company and the SubsidiariesCompany’s stockholders, (ii) approved, approved and adopted and declared advisable the Transaction Agreements to which the Company or any Subsidiary is a party this Agreement and the Transactions applicable to the Company or any Subsidiarytransactions contemplated hereby, including the amendments set forth in the Amendment to the Certificate of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock Offer and the Amendment to the Certificate of Designations of the Junior Preferred Stock (such approval Merger, and adoption having been made declared this Agreement advisable, in accordance with the DGCL, subject to any additional Board approvals as may be necessary in connection with Section 7.13 to approve requirements of the Delaware General Corporation Law (“Delaware Law”) and adopt, if applicable, the final form of Certificate of Designations of Series B-1 Preferred Stock and the Certificate of Designations of Series B-2 Preferred Stock ), (iii) approved Purchaser and its “affiliates” and “associates” resolved (each as defined in subject to Section 203 6.04(b)) to recommend acceptance of the DGCL) becoming “interested shareholders” within the meaning of Section 203 of the DGCL, (iv) resolved to recommend to the holders of the Remaining Shares of the Preferred Stock that they accept the Tender Offer and tender their shares pursuant to the Tender Offer, (v) resolved to recommend to the holders adoption of the 12% Senior Notes that they accept the Exchange Offer and tender their notes pursuant to the Exchange Offer, and (vi) resolved to recommend to this Agreement by the stockholders of the Company. (b) The Company has been advised that, except as set forth in Section 1.02(b) of the Company Disclosure Schedule (as defined below), as of the date hereof, all of its directors and executive officers who own Shares intend to approve tender their Shares pursuant to the Offer. The Company shall promptly furnish Parent with a list of its stockholders, mailing labels and adopt any available listing or computer file containing the Transaction Agreements names and addresses of all record holders of Shares and lists of securities positions of Shares held in stock depositories, in each case true and correct as of the most recent practicable date, and shall provide to which Parent such additional information (including updated lists of stockholders, mailing labels and lists of securities positions) as Parent may reasonably request in connection with the Offer. (c) As promptly as practicable after the amendment to the Schedule TO is filed with the SEC pursuant to the first sentence of Section 1.01(b), but in no event later than five Business Days following the public announcement of the execution of this Agreement, the Company shall file with the SEC and, to the extent required by applicable U.S. securities laws, disseminate to holders of Shares an amendment to the Solicitation/Recommendation Statement on Schedule 14D-9 filed by the Company on July 11, 2007 (together with any amendments or supplements thereto, the “Schedule 14D-9”) that, subject to Section 6.04(b), shall reflect the recommendations of the Board of Directors referred to above. Each of the Company, Parent and Merger Subsidiary agrees promptly to correct any information provided by it or any of its Affiliates for use in the Schedule 14D-9 if and to the extent that it shall have become false or misleading in any material respect. The Company shall cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated to 3 Table of Contents holders of Shares, in each case as and to the extent required by applicable U.S. federal securities laws. Parent, Merger Subsidiary and their counsel shall be given a reasonable opportunity to review and comment (A) on the Schedule 14D-9 each time before it is filed with the SEC and (B) on any correspondence with the SEC (including comment response letters) concerning the Schedule 14D-9, and the Company shall give reasonable and good faith consideration to any comments made by Parent, Merger Subsidiary and their counsel. The Company shall provide Parent and Merger Subsidiary and their counsel with any written or oral comments the Company or any Subsidiary is a party and its counsel may receive from the Transactions applicable SEC with respect to the Company or any SubsidiarySchedule 14D-9 promptly, including but in no event later than twelve hours, after the amendments set forth in the Amendment to the Certificate receipt of Incorporation, the Amended and Restated By-laws, the Amendment to the Certificate of Designations of the Senior Preferred Stock and the Amendment to the Certificate of Designations of the Junior Preferred Stocksuch comments.