{"id":43045,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-and-plan-of-merger-del-monte-foods-co-blue.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-merger-del-monte-foods-co-blue","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-merger-del-monte-foods-co-blue.html","title":{"rendered":"Agreement and Plan of Merger – Del Monte Foods Co., Blue Acquisition Group, Inc., and Blue Merger Sub Inc."},"content":{"rendered":"

AGREEMENT AND PLAN OF MERGER<\/p>\n

among<\/p>\n

BLUE ACQUISITION GROUP, INC.,<\/p>\n

BLUE MERGER SUB INC.<\/p>\n

and<\/p>\n

DEL MONTE FOODS COMPANY<\/p>\n

Dated as of November 24, 2010<\/p>\n

\n

TABLE OF CONTENTS <\/strong><\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Page<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE I THE MERGER<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

1<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Section 1.1<\/p>\n<\/td>\n

<\/td>\n\n

The Merger<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

1<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 1.2<\/p>\n<\/td>\n

<\/td>\n\n

Closing; Effective Time<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

1<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 1.3<\/p>\n<\/td>\n

<\/td>\n\n

Effects of the Merger<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

2<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 1.4<\/p>\n<\/td>\n

<\/td>\n\n

Certificate of Incorporation; Bylaws<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

2<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 1.5<\/p>\n<\/td>\n

<\/td>\n\n

Directors and Officers<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

2<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE II EFFECTS OF THE MERGER ON THE CAPITAL STOCK OF THE
\nCONSTITUENT CORPORATIONS<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

3<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Section 2.1<\/p>\n<\/td>\n

<\/td>\n\n

Conversion of Securities<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

3<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 2.2<\/p>\n<\/td>\n

<\/td>\n\n

Stock Options, Performance Shares<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

4<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 2.3<\/p>\n<\/td>\n

<\/td>\n\n

Surrender of Shares<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

5<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

7<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Section 3.1<\/p>\n<\/td>\n

<\/td>\n\n

Organization and Qualification<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

7<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.2<\/p>\n<\/td>\n

<\/td>\n\n

Certificate of Incorporation and Bylaws<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

8<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.3<\/p>\n<\/td>\n

<\/td>\n\n

Capitalization<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

8<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.4<\/p>\n<\/td>\n

<\/td>\n\n

Authority<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

9<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.5<\/p>\n<\/td>\n

<\/td>\n\n

No Conflict; Required Filings and Consents<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

9<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.6<\/p>\n<\/td>\n

<\/td>\n\n

Compliance<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

10<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.7<\/p>\n<\/td>\n

<\/td>\n\n

SEC Filings; Financial Statements<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

11<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.8<\/p>\n<\/td>\n

<\/td>\n\n

Absence of Certain Changes or Events<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

12<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.9<\/p>\n<\/td>\n

<\/td>\n\n

Absence of Litigation<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

12<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.10<\/p>\n<\/td>\n

<\/td>\n\n

Employee Benefit Plans<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

13<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.11<\/p>\n<\/td>\n

<\/td>\n\n

Labor and Employment Matters<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

15<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.12<\/p>\n<\/td>\n

<\/td>\n\n

Insurance<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

15<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.13<\/p>\n<\/td>\n

<\/td>\n\n

Properties<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

15<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.14<\/p>\n<\/td>\n

<\/td>\n\n

Tax Matters<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

15<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.15<\/p>\n<\/td>\n

<\/td>\n\n

Proxy Statement<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

16<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.16<\/p>\n<\/td>\n

<\/td>\n\n

Takeover Statutes<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

16<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.17<\/p>\n<\/td>\n

<\/td>\n\n

Intellectual Property<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

17<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.18<\/p>\n<\/td>\n

<\/td>\n\n

Environmental Matters<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

17<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.19<\/p>\n<\/td>\n

<\/td>\n\n

Contracts<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

18<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.20<\/p>\n<\/td>\n

<\/td>\n\n

Affiliate Transactions<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

19<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.21<\/p>\n<\/td>\n

<\/td>\n\n

Opinions of Financial Advisors<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

19<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.22<\/p>\n<\/td>\n

<\/td>\n\n

Brokers<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

19<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 3.23<\/p>\n<\/td>\n

<\/td>\n\n

No Other Representations or Warranties<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

19<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

i<\/p>\n

\n

TABLE OF CONTENTS <\/strong><\/p>\n

(Continued) <\/strong><\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Page<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

20<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Section 4.1<\/p>\n<\/td>\n

<\/td>\n\n

Organization<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

20<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 4.2<\/p>\n<\/td>\n

<\/td>\n\n

Authority<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

20<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 4.3<\/p>\n<\/td>\n

<\/td>\n\n

No Conflict; Required Filings and Consents<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

21<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 4.4<\/p>\n<\/td>\n

<\/td>\n\n

Absence of Litigation<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

21<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 4.5<\/p>\n<\/td>\n

<\/td>\n\n

Proxy Statement<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

21<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 4.6<\/p>\n<\/td>\n

<\/td>\n\n

Brokers<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

22<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 4.7<\/p>\n<\/td>\n

<\/td>\n\n

Financing<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

22<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 4.8<\/p>\n<\/td>\n

<\/td>\n\n

Operations of Parent and Merger Sub<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

23<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 4.9<\/p>\n<\/td>\n

<\/td>\n\n

Ownership of Shares<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

23<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 4.10<\/p>\n<\/td>\n

<\/td>\n\n

Vote\/Approval Required<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

23<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 4.11<\/p>\n<\/td>\n

<\/td>\n\n

Solvency<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

23<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 4.12<\/p>\n<\/td>\n

<\/td>\n\n

Guarantee<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

24<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 4.13<\/p>\n<\/td>\n

<\/td>\n\n

Absence of Certain Agreements<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

24<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 4.14<\/p>\n<\/td>\n

<\/td>\n\n

Interests in Competitors<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

24<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 4.15<\/p>\n<\/td>\n

<\/td>\n\n

No Other Representations or Warranties<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

24<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE V CONDUCT OF BUSINESS PENDING THE MERGER<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

25<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Section 5.1<\/p>\n<\/td>\n

<\/td>\n\n

Conduct of Business of the Company Pending the Merger<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

25<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 5.2<\/p>\n<\/td>\n

<\/td>\n\n

Conduct of Business of Parent and Merger Sub Pending the Merger<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

27<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 5.3<\/p>\n<\/td>\n

<\/td>\n\n

No Control of Other Party153s Business<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

28<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE VI ADDITIONAL AGREEMENTS<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

28<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Section 6.1<\/p>\n<\/td>\n

<\/td>\n\n

Proxy Statement<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

28<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 6.2<\/p>\n<\/td>\n

<\/td>\n\n

Stockholders Meeting<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

28<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 6.3<\/p>\n<\/td>\n

<\/td>\n\n

Access to Information<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

29<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 6.4<\/p>\n<\/td>\n

<\/td>\n\n

Confidentiality<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

29<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 6.5<\/p>\n<\/td>\n

<\/td>\n\n

Acquisition Proposals; Go-Shop<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

29<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 6.6<\/p>\n<\/td>\n

<\/td>\n\n

Employment and Employee Benefits Matters<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

34<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 6.7<\/p>\n<\/td>\n

<\/td>\n\n

Directors153 and Officers153 Indemnification and Insurance<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

35<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 6.8<\/p>\n<\/td>\n

<\/td>\n\n

Further Action; Efforts<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

37<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 6.9<\/p>\n<\/td>\n

<\/td>\n\n

Public Announcements<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

39<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 6.10<\/p>\n<\/td>\n

<\/td>\n\n

Anti-Takeover Statutes<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

40<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 6.11<\/p>\n<\/td>\n

<\/td>\n\n

Notification of Certain Matters<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

40<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 6.12<\/p>\n<\/td>\n

<\/td>\n\n

Rule 16b-3<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

40<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 6.13<\/p>\n<\/td>\n

<\/td>\n\n

Treatment of Notes; Indentures<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

40<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 6.14<\/p>\n<\/td>\n

<\/td>\n\n

Obligations of Merger Sub<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

41<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

ii<\/p>\n

\n

TABLE OF CONTENTS <\/strong><\/p>\n

(Continued) <\/strong><\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n\n

Page<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Section 6.15<\/p>\n<\/td>\n

<\/td>\n\n

Financing<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

42<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 6.16<\/p>\n<\/td>\n

<\/td>\n\n

Stock Exchange Delisting<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

46<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 6.17<\/p>\n<\/td>\n

<\/td>\n\n

Parent Vote<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

46<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE VII CONDITIONS OF MERGER<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

46<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Section 7.1<\/p>\n<\/td>\n

<\/td>\n\n

Conditions to Each Party153s Obligation to Effect the Merger<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

46<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 7.2<\/p>\n<\/td>\n

<\/td>\n\n

Conditions to Obligations of Parent and Merger Sub<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

47<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 7.3<\/p>\n<\/td>\n

<\/td>\n\n

Conditions to Obligation of the Company<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

47<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 7.4<\/p>\n<\/td>\n

<\/td>\n\n

Frustration of Closing Conditions<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

48<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

48<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Section 8.1<\/p>\n<\/td>\n

<\/td>\n\n

Termination by Mutual Consent<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

48<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 8.2<\/p>\n<\/td>\n

<\/td>\n\n

Termination by Either Parent or the Company<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

48<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 8.3<\/p>\n<\/td>\n

<\/td>\n\n

Termination by the Company<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

48<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 8.4<\/p>\n<\/td>\n

<\/td>\n\n

Termination by Parent<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

49<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 8.5<\/p>\n<\/td>\n

<\/td>\n\n

Effect of Termination and Abandonment<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

50<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 8.6<\/p>\n<\/td>\n

<\/td>\n\n

Expenses<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

52<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 8.7<\/p>\n<\/td>\n

<\/td>\n\n

Amendment<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

52<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 8.8<\/p>\n<\/td>\n

<\/td>\n\n

Waiver<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

52<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

ARTICLE IX GENERAL PROVISIONS<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

53<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Section 9.1<\/p>\n<\/td>\n

<\/td>\n\n

Non-Survival of Representations, Warranties, Covenants and Agreements<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

53<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 9.2<\/p>\n<\/td>\n

<\/td>\n\n

Notices<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

53<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 9.3<\/p>\n<\/td>\n

<\/td>\n\n

Certain Definitions<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

54<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 9.4<\/p>\n<\/td>\n

<\/td>\n\n

Severability<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

56<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 9.5<\/p>\n<\/td>\n

<\/td>\n\n

Entire Agreement; Assignment<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

57<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 9.6<\/p>\n<\/td>\n

<\/td>\n\n

Parties in Interest<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

57<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 9.7<\/p>\n<\/td>\n

<\/td>\n\n

Governing Law<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

57<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 9.8<\/p>\n<\/td>\n

<\/td>\n\n

Headings<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

57<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 9.9<\/p>\n<\/td>\n

<\/td>\n\n

Counterparts<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

57<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 9.10<\/p>\n<\/td>\n

<\/td>\n\n

Specific Performance<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

58<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 9.11<\/p>\n<\/td>\n

<\/td>\n\n

Jurisdiction<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

59<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 9.12<\/p>\n<\/td>\n

<\/td>\n\n

Interpretation<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

59<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 9.13<\/p>\n<\/td>\n

<\/td>\n\n

WAIVER OF JURY TRIAL<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

59<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Section 9.14<\/p>\n<\/td>\n

<\/td>\n\n

No Recourse<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

59<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Exhibits<\/u> <\/strong><\/p>\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Exhibit A<\/p>\n<\/td>\n

<\/td>\n\n

Certificate of Incorporation of the Surviving Corporation<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

A-1<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

iii<\/p>\n

\n

INDEX OF DEFINED TERMS <\/strong><\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

2005 Indenture<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.13(b)<\/p>\n<\/td>\n<\/tr>\n

\n

2009 Indenture<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.13(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Acquisition Proposal<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.5(d)(i)<\/p>\n<\/td>\n<\/tr>\n

\n

affiliate<\/p>\n<\/td>\n

<\/td>\n\n

Section 9.3(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Agreement<\/p>\n<\/td>\n

<\/td>\n\n

Preamble<\/p>\n<\/td>\n<\/tr>\n

\n

AIP<\/p>\n<\/td>\n

<\/td>\n\n

Section 5.1(j)<\/p>\n<\/td>\n<\/tr>\n

\n

Alternative Acquisition Agreement<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.5(e)(ii)<\/p>\n<\/td>\n<\/tr>\n

\n

Anti-Takeover Statute<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.16<\/p>\n<\/td>\n<\/tr>\n

\n

Antitrust Law<\/p>\n<\/td>\n

<\/td>\n\n

Section 9.3(b)<\/p>\n<\/td>\n<\/tr>\n

\n

beneficially owned<\/p>\n<\/td>\n

<\/td>\n\n

Section 9.3(c)<\/p>\n<\/td>\n<\/tr>\n

\n

Book-Entry Shares<\/p>\n<\/td>\n

<\/td>\n\n

Section 2.3(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Business Day<\/p>\n<\/td>\n

<\/td>\n\n

Section 9.3(d)<\/p>\n<\/td>\n<\/tr>\n

\n

Bylaws<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.2<\/p>\n<\/td>\n<\/tr>\n

\n

CBAs<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.6(f)<\/p>\n<\/td>\n<\/tr>\n

\n

Certificate of Incorporation<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.2<\/p>\n<\/td>\n<\/tr>\n

\n

Certificate of Merger<\/p>\n<\/td>\n

<\/td>\n\n

Section 1.2<\/p>\n<\/td>\n<\/tr>\n

\n

Certificates<\/p>\n<\/td>\n

<\/td>\n\n

Section 2.3(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Change of Recommendation<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.5(e)(ii)<\/p>\n<\/td>\n<\/tr>\n

\n

Closing<\/p>\n<\/td>\n

<\/td>\n\n

Section 1.2<\/p>\n<\/td>\n<\/tr>\n

\n

Closing Date<\/p>\n<\/td>\n

<\/td>\n\n

Section 1.2<\/p>\n<\/td>\n<\/tr>\n

\n

Code<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.10(c)<\/p>\n<\/td>\n<\/tr>\n

\n

Company<\/p>\n<\/td>\n

<\/td>\n\n

Preamble<\/p>\n<\/td>\n<\/tr>\n

\n

Company Board<\/p>\n<\/td>\n

<\/td>\n\n

Recitals<\/p>\n<\/td>\n<\/tr>\n

\n

Company Common Stock<\/p>\n<\/td>\n

<\/td>\n\n

Section 2.1(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Company Disclosure Schedule<\/p>\n<\/td>\n

<\/td>\n\n

Article III<\/p>\n<\/td>\n<\/tr>\n

\n

Company Employees<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.10(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Company Plan<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.10(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Company Recommendation<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.4<\/p>\n<\/td>\n<\/tr>\n

\n

Company Requisite Vote<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.4<\/p>\n<\/td>\n<\/tr>\n

\n

Company Securities<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.3(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Company Stock Option<\/p>\n<\/td>\n

<\/td>\n\n

Section 2.2(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Company Stock Plans<\/p>\n<\/td>\n

<\/td>\n\n

Section 2.2(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Confidentiality Agreement<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.4<\/p>\n<\/td>\n<\/tr>\n

\n

Contract<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.5(a)<\/p>\n<\/td>\n<\/tr>\n

\n

control<\/p>\n<\/td>\n

<\/td>\n\n

Section 9.3(e)<\/p>\n<\/td>\n<\/tr>\n

\n

D&O Insurance<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.7(c)<\/p>\n<\/td>\n<\/tr>\n

\n

Debt Financing<\/p>\n<\/td>\n

<\/td>\n\n

Section 4.7<\/p>\n<\/td>\n<\/tr>\n

\n

Debt Financing Commitments<\/p>\n<\/td>\n

<\/td>\n\n

Section 4.7<\/p>\n<\/td>\n<\/tr>\n

\n

Debt Offer<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.13(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Deferred Equity Units<\/p>\n<\/td>\n

<\/td>\n\n

Section 2.2(e)<\/p>\n<\/td>\n<\/tr>\n

\n

DGCL<\/p>\n<\/td>\n

<\/td>\n\n

Recitals<\/p>\n<\/td>\n<\/tr>\n

\n

Dissenting Shares<\/p>\n<\/td>\n

<\/td>\n\n

Section 2.1(d)<\/p>\n<\/td>\n<\/tr>\n

\n

DMC<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.13(a)<\/p>\n<\/td>\n<\/tr>\n

\n

DTC<\/p>\n<\/td>\n

<\/td>\n\n

Section 2.3(c)<\/p>\n<\/td>\n<\/tr>\n

\n

DTC Payment<\/p>\n<\/td>\n

<\/td>\n\n

Section 2.3(c)<\/p>\n<\/td>\n<\/tr>\n

\n

Effective Time<\/p>\n<\/td>\n

<\/td>\n\n

Section 1.2<\/p>\n<\/td>\n<\/tr>\n

\n

e-mail<\/p>\n<\/td>\n

<\/td>\n\n

Section 9.2<\/p>\n<\/td>\n<\/tr>\n

\n

Environmental Laws<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.18(c)(i)<\/p>\n<\/td>\n<\/tr>\n

\n

Environmental Permits<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.18(c)(ii)<\/p>\n<\/td>\n<\/tr>\n

\n

Equity Financing<\/p>\n<\/td>\n

<\/td>\n\n

Section 4.7<\/p>\n<\/td>\n<\/tr>\n

\n

Equity Financing Commitments<\/p>\n<\/td>\n

<\/td>\n\n

Section 4.7<\/p>\n<\/td>\n<\/tr>\n

\n

ERISA<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.10(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Exchange Act<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.5(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Excluded Party<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.5(d)<\/p>\n<\/td>\n<\/tr>\n

\n

Financial Advisors<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.21<\/p>\n<\/td>\n<\/tr>\n

\n

Financing<\/p>\n<\/td>\n

<\/td>\n\n

Section 4.7<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Financing Commitments<\/p>\n<\/td>\n

<\/td>\n\n

Section 4.7<\/p>\n<\/td>\n<\/tr>\n

\n

Foreign Merger Control Laws<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.5(b)<\/p>\n<\/td>\n<\/tr>\n

\n

GAAP<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.7(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Go-Shop Period<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.5(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Governmental Entity<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.5(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Guarantees<\/p>\n<\/td>\n

<\/td>\n\n

Recitals<\/p>\n<\/td>\n<\/tr>\n

\n

Guarantors<\/p>\n<\/td>\n

<\/td>\n\n

Recitals<\/p>\n<\/td>\n<\/tr>\n

\n

Hazardous Materials<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.18(c)(iii)<\/p>\n<\/td>\n<\/tr>\n

\n

HSR Act<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.5(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Indemnified Parties<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.7(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Indentures<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.13(b)<\/p>\n<\/td>\n<\/tr>\n

\n

KKR\/Centerview Confidentiality Agreement<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.4<\/p>\n<\/td>\n<\/tr>\n

\n

knowledge<\/p>\n<\/td>\n

<\/td>\n\n

Section 9.3(g)<\/p>\n<\/td>\n<\/tr>\n

\n

Leased Real Property<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.13<\/p>\n<\/td>\n<\/tr>\n

\n

Licenses<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.6(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Liens<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.13<\/p>\n<\/td>\n<\/tr>\n

\n

Marketing Period<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.15(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Material Adverse Effect<\/p>\n<\/td>\n

<\/td>\n\n

Section 9.3(h)<\/p>\n<\/td>\n<\/tr>\n

\n

Material Contract<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.19(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Measurement Date<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.3(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Merger<\/p>\n<\/td>\n

<\/td>\n\n

Recitals<\/p>\n<\/td>\n<\/tr>\n

\n

Merger Consideration<\/p>\n<\/td>\n

<\/td>\n\n

Section 2.1(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Merger Sub<\/p>\n<\/td>\n

<\/td>\n\n

Preamble<\/p>\n<\/td>\n<\/tr>\n

\n

No-Shop Period Start Date<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.5(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Notes<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.13(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Notice of Superior Proposal<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.5(h)<\/p>\n<\/td>\n<\/tr>\n

\n

NYSE<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.5(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Offer Documents<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.13(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Order<\/p>\n<\/td>\n

<\/td>\n\n

Section 7.1(c)<\/p>\n<\/td>\n<\/tr>\n

\n

Owned Real Property<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.13<\/p>\n<\/td>\n<\/tr>\n

\n

Parent<\/p>\n<\/td>\n

<\/td>\n\n

Preamble<\/p>\n<\/td>\n<\/tr>\n

\n

Parent Expenses<\/p>\n<\/td>\n

<\/td>\n\n

Section 8.6<\/p>\n<\/td>\n<\/tr>\n

\n

Parent Fee<\/p>\n<\/td>\n

<\/td>\n\n

Section 8.5(c)<\/p>\n<\/td>\n<\/tr>\n

\n

Parent Material Adverse Effect<\/p>\n<\/td>\n

<\/td>\n\n

Section 4.1(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Parent Plan<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.6(c)<\/p>\n<\/td>\n<\/tr>\n

\n

Parent Related Parties<\/p>\n<\/td>\n

<\/td>\n\n

Section 8.5(d)<\/p>\n<\/td>\n<\/tr>\n

\n

PARS<\/p>\n<\/td>\n

<\/td>\n\n

Section 2.2(c)<\/p>\n<\/td>\n<\/tr>\n

\n

PARS Agreement<\/p>\n<\/td>\n

<\/td>\n\n

Section 2.2(c)<\/p>\n<\/td>\n<\/tr>\n

\n

Paying Agent<\/p>\n<\/td>\n

<\/td>\n\n

Section 2.3(a)<\/p>\n<\/td>\n<\/tr>\n

\n

person<\/p>\n<\/td>\n

<\/td>\n\n

Section 9.3(i)<\/p>\n<\/td>\n<\/tr>\n

\n

Preferred Stock<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.3(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Protected Period<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.6(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Proxy Statement<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.15<\/p>\n<\/td>\n<\/tr>\n

\n

PSU<\/p>\n<\/td>\n

<\/td>\n\n

Section 2.2(b)<\/p>\n<\/td>\n<\/tr>\n

\n

PSU Agreement<\/p>\n<\/td>\n

<\/td>\n\n

Section 2.2(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Representatives<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.5(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Required Financial Information<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.15(b)<\/p>\n<\/td>\n<\/tr>\n

\n

RSU<\/p>\n<\/td>\n

<\/td>\n\n

Section 2.2(d)<\/p>\n<\/td>\n<\/tr>\n

\n

Scheduled Leased Real Property<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.19(b)<\/p>\n<\/td>\n<\/tr>\n

\n

SEC<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.7(a)<\/p>\n<\/td>\n<\/tr>\n

\n

SEC Reports<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.7(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Securities Act<\/p>\n<\/td>\n

<\/td>\n\n

Section 3.7(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Shares<\/p>\n<\/td>\n

<\/td>\n\n

Section 2.1(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Solvent<\/p>\n<\/td>\n

<\/td>\n\n

Section 4.11<\/p>\n<\/td>\n<\/tr>\n

\n

Stockholders Meeting<\/p>\n<\/td>\n

<\/td>\n\n

Section 6.2(a)<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

iv<\/p>\n

\n

INDEX OF DEFINED TERMS <\/strong><\/p>\n

(Continued) <\/strong><\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

subsidiary, subsidiaries<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

Section 9.3(j)<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Superior Proposal<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

Section 6.5(d)(ii)<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Surviving Corporation<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

Section 1.1<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Tax Return<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

Section 9.3(l)<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

Taxes<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

Section 9.3(k)<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Termination Date<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

Section 8.2<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Termination Fee<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

Section 8.5(b)<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

WARN<\/p>\n<\/td>\n

<\/td>\n<\/td>\n\n

Section 5.1(o)<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

v<\/p>\n

\n

AGREEMENT AND PLAN OF MERGER <\/strong><\/p>\n

AGREEMENT AND PLAN OF MERGER, dated as of November 24, 2010 (this
\n“Agreement<\/u>“), among Blue Acquisition Group, Inc., a Delaware corporation
\n(“Parent<\/u>“), Blue Merger Sub Inc., a Delaware corporation and a direct
\nwholly-owned subsidiary of Parent (“Merger Sub<\/u>“), and Del Monte Foods
\nCompany, a Delaware corporation (the “Company<\/u>“).<\/p>\n

WHEREAS, the board of directors of the Company (the “Company Board<\/u>“)
\nhas (i) determined that it is in the best interests of the Company and the
\nstockholders of the Company, and declared it advisable, to enter into this
\nAgreement with Parent and Merger Sub providing for the merger (the
\n“Merger<\/u>“) of Merger Sub with and into the Company in accordance with the
\nDelaware General Corporation Law (the “DGCL<\/u>“), upon the terms and subject
\nto the conditions set forth herein and (ii) approved this Agreement in
\naccordance with the DGCL;<\/p>\n

WHEREAS, the respective board of directors of Parent and Merger Sub has each
\ndetermined that it is in the best interests of their respective stockholders,
\nand the board of directors of each of Parent and Merger Sub has declared it
\nadvisable for Parent and Merger Sub, respectively, to enter into this Agreement;
\nand<\/p>\n

WHEREAS, concurrently with the execution and delivery of this Agreement, and
\nas a condition to the willingness of the Company to enter into this Agreement,
\neach of KKR 2006 Fund L.P., Vestar Capital Partners V, L.P., Centerview Capital,
\nL.P. and Centerview Employees, L.P. (collectively, the “Guarantors<\/u>“) is
\nentering into a guarantee with the Company (collectively, the
\n“Guarantees<\/u>“) pursuant to which each of the Guarantors is guaranteeing
\ncertain obligations of Parent and Merger Sub in connection with this Agreement.\n<\/p>\n

NOW, THEREFORE, in consideration of the foregoing and the representations,
\nwarranties, covenants and agreements herein contained, and intending to be
\nlegally bound hereby, Parent, Merger Sub and the Company hereby agree as
\nfollows:<\/p>\n

ARTICLE I<\/p>\n

THE MERGER<\/p>\n

Section 1.1 The Merger<\/u>. Upon the terms and subject to the conditions
\nof this Agreement and in accordance with the DGCL, at the Effective Time Merger
\nSub shall be merged with and into the Company. As a result of the Merger, the
\nseparate corporate existence of Merger Sub shall cease and the Company shall
\ncontinue as the surviving corporation of the Merger (the “Surviving
\nCorporation<\/u>“).<\/p>\n

Section 1.2 Closing; Effective Time<\/u>. Subject to the provisions of
\nArticle VII, the closing of the Merger (the “Closing<\/u>“) shall take place
\nat the offices of Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New York,
\nNew York, at 10:00 a.m. local time, on the second Business Day after the
\nsatisfaction or waiver (to the extent permitted by applicable law) of the
\nconditions set forth in Article VII (excluding conditions that by their terms
\ncannot be satisfied until the Closing, but subject to the satisfaction or waiver
\nof those conditions). Notwithstanding the immediately preceding sentence, if the
\nMarketing Period has not ended at the time of the satisfaction or waiver of the
\nconditions set forth in Article VII (other than those conditions that<\/p>\n

\n

by their nature are to be satisfied at the Closing, but subject to the
\nfulfillment or waiver of those conditions), then the Closing shall occur instead
\non the date following the satisfaction or waiver of such conditions that is the
\nearlier to occur of (a) any Business Day before or during the Marketing Period
\nas may be specified by Parent on no less than two (2) Business Days153 prior
\nnotice to the Company and (b) the final day of the Marketing Period. The date on
\nwhich the Closing actually occurs is hereinafter referred to as the “Closing
\nDate<\/u>.” At the Closing, the parties hereto shall cause the Merger to be
\nconsummated by filing a certificate of merger (the “Certificate of
\nMerger<\/u>“) with the Secretary of State of the State of Delaware, in such form
\nas required by, and executed in accordance with, the relevant provisions of the
\nDGCL. The Merger shall become effective at such date and time as the Certificate
\nof Merger is filed with the Secretary of State of the State of Delaware or at
\nsuch later time (or subsequent date and time) as Parent and the Company shall
\nagree and specify in the Certificate of Merger. The date and time at which the
\nMerger becomes effective is referred to in this Agreement as the “Effective
\nTime<\/u>.”<\/p>\n

Section 1.3 Effects of the Merger<\/u>. The Merger shall have the effects
\nset forth herein and in the applicable provisions of the DGCL. Without limiting
\nthe generality of the foregoing and subject thereto, at the Effective Time all
\nthe property, rights, privileges, powers and franchises of the Company and
\nMerger Sub shall vest in the Surviving Corporation and all debts, liabilities
\nand duties of the Company and Merger Sub shall become the debts, liabilities and
\nduties of the Surviving Corporation.<\/p>\n

Section 1.4 Certificate of Incorporation; Bylaws<\/u>.<\/p>\n

(a) Subject to Section 6.7(b), at the Effective Time, the certificate of
\nincorporation of the Company shall be amended so that it reads in its entirety
\nas set forth in Exhibit A<\/u> annexed hereto, and, as so amended, shall be
\nthe certificate of incorporation of the Surviving Corporation until thereafter
\namended in accordance with its terms and as provided by law.<\/p>\n

(b) At the Effective Time, and without any further action on the part of the
\nCompany or Merger Sub, the bylaws of Merger Sub, as in effect immediately prior
\nto the Effective Time shall, by virtue of the Merger, be the bylaws of the
\nSurviving Corporation until thereafter amended in accordance with their terms,
\nthe certificate of incorporation of the Surviving Corporation and as provided by
\nlaw.<\/p>\n

Section 1.5 Directors and Officers<\/u>. The directors of Merger Sub
\nimmediately prior to the Effective Time shall be the initial directors of the
\nSurviving Corporation and shall hold office until their respective successors
\nand assigns are duly elected and qualified, or their earlier death, resignation
\nor removal. The officers of the Company immediately prior to the Effective Time
\nshall be the initial officers of the Surviving Corporation, each to hold office
\nuntil the earlier of their resignation or removal.<\/p>\n

2<\/p>\n

\n

ARTICLE II<\/p>\n

EFFECTS OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT\n<\/p>\n

CORPORATIONS<\/p>\n

Section 2.1 Conversion of Securities<\/u>. At the Effective Time, by virtue
\nof the Merger and without any action on the part of Parent, Merger Sub, the
\nCompany or the holders of any of the following securities:<\/p>\n

(a) Each share of common stock, par value $0.01 per share, of the Company
\n(the “Company Common Stock<\/u>“) issued and outstanding immediately prior to
\nthe Effective Time, other than any shares of Company Common Stock
\n(“Shares<\/u>“) described in Section 2.1(b) and any Dissenting Shares, shall
\nbe converted into the right to receive $19.00 in cash (the “Merger
\nConsideration<\/u>“) payable to the holder thereof, without interest, in the
\nmanner provided in Section 2.3. All Shares that have been converted into the
\nright to receive the Merger Consideration as provided in this Section 2.1 shall
\nbe automatically cancelled and shall cease to exist. If, between the date of
\nthis Agreement and the Effective Time, there is any change in the number of
\noutstanding Shares as a result of a reclassification, recapitalization, stock
\nsplit, stock dividend, subdivision, combination or exchange of shares with
\nrespect to, or rights issued in respect of, Shares, the Merger Consideration
\nshall be equitably adjusted accordingly, without duplication, to provide to the
\nholders of Shares the same economic effect as contemplated by this Agreement
\nprior to such event;<\/p>\n

(b) Each Share held in the treasury of the Company and each Share owned by
\nParent or Merger Sub immediately prior to the Effective Time (other than Shares
\nheld on behalf of third parties) shall be canceled and shall cease to exist
\nwithout any conversion thereof and no payment or distribution shall be made with
\nrespect thereto, and any Shares owned by any wholly owned subsidiary of the
\nCompany shall remain outstanding, and no cash or other consideration shall be
\ndelivered in exchange therefor;<\/p>\n

(c) Each share of common stock of Merger Sub issued and outstanding
\nimmediately prior to the Effective Time shall be converted into and become one
\nvalidly issued, fully paid and nonassessable share of common stock of the
\nSurviving Corporation and, together with any Shares that remain outstanding
\npursuant to Section 2.1(b), shall constitute the only outstanding shares of
\ncapital stock of the Surviving Corporation; and<\/p>\n

(d) Such Shares with respect to which appraisal shall have been properly
\ndemanded in accordance with Section 262 of the DGCL (“Dissenting
\nShares<\/u>“) shall not be converted into the right to receive the Merger
\nConsideration at or after the Effective Time unless and until the holder of such
\nShares withdraws such holder153s demand for appraisal (in accordance with Section
\n262(k) of the DGCL) or becomes ineligible for such appraisal, but rather, the
\nholder of the Dissenting Shares shall be entitled only to payment of the fair
\nvalue of such Dissenting Shares in accordance with Section 262 of the DGCL. If a
\nholder of Dissenting Shares shall withdraw (in accordance with Section 262(k) of
\nthe DGCL) the demand for such appraisal or shall become ineligible for such
\nappraisal, then, as of the Effective Time or the occurrence of such event,
\nwhichever last occurs, each of such holder153s Dissenting Shares shall cease to be
\na Dissenting Share and shall be deemed to be converted into and represent the
\nright to receive the Merger Consideration. At the Effective Time, the Dissenting
\nShares shall no longer be outstanding and<\/p>\n

3<\/p>\n

\n

shall automatically be canceled and shall cease to exist, and each holder of
\nDissenting Shares shall cease to have any rights with respect thereto, except
\nsuch rights provided in the preceding two sentences. The Company shall give
\nParent prompt written notice of any demands received by the Company for
\nappraisal of Shares and Parent shall have the right to participate in all
\nnegotiations and proceedings with respect to such demands. The Company shall not
\nmake any payments with respect to, or compromise or settle any demand for,
\nappraisal without the prior written consent of Parent.<\/p>\n

Section 2.2 Stock Options, Performance Shares<\/u>.<\/p>\n

(a) Immediately prior to the Effective Time, unless otherwise agreed between
\nParent and any individual holder, each then-outstanding option to purchase
\nShares (a “Company Stock Option<\/u>“) granted under any director or employee
\nstock option or compensation plan or arrangement of the Company (collectively,
\nthe “Company Stock Plans<\/u>“), whether or not vested or exercisable, shall
\nbecome fully vested and exercisable contingent upon the Effective Time, and
\nshall be converted into the right to receive, and the Company shall pay to each
\nformer holder of any such fully vested converted Company Stock Option at or
\npromptly after the Effective Time an amount in cash equal to the product of (i)
\nthe excess, if any, of the Merger Consideration over the applicable exercise
\nprice per Share of such Company Stock Option and (ii) the number of Shares such
\nholder could have purchased had such holder exercised such Company Stock Option
\nin full immediately prior to the Effective Time.<\/p>\n

(b) Immediately prior to the Effective Time, each then-outstanding
\nperformance share unit (“PSU<\/u>“) shall become fully earned and vested
\ncontingent upon the Effective Time with respect to the maximum number of Shares
\nunderlying such award as set forth in the terms of the agreement granting such
\nPSU (“PSU Agreement<\/u>“) and the Company shall pay to each grantee of each
\nPSU, at or promptly after the Effective Time, an amount in cash equal to the
\nMerger Consideration for each such fully vested PSU (which payment shall be
\ndeemed to be the issuance of the appropriate number of Shares and receipt of the
\nMerger Consideration, as provided in Section 2.1(a), to the extent required by
\nthe terms of such PSU153s PSU Agreement).<\/p>\n

(c) Immediately prior to the Effective Time, each then-outstanding
\nperformance accelerated restricted stock unit award (“PARS<\/u>“) shall become
\nfully earned and vested contingent upon the Effective Time with respect to 100%
\nof the Shares set forth in the terms of the agreement granting such PARS
\n(“PARS Agreement<\/u>“) and the Company shall pay to each grantee of each
\nPARS, at or promptly after the Effective Time, an amount in cash equal to the
\nMerger Consideration for each such fully earned and vested PARS (which payment
\nshall be deemed to be the issuance of the appropriate number of Shares and
\nreceipt of the Merger Consideration, as provided in Section 2.1(a), to the
\nextent required by the terms of such PARS Agreement).<\/p>\n

(d) Immediately prior to the Effective Time, each then-outstanding restricted
\nstock unit or deferred stock unit that vests based on the passage of time, other
\nthan PARSs or Deferred Equity Units (“RSU<\/u>“) shall, to the extent not
\npreviously earned and vested, contingent upon the Effective Time, be deemed
\nfully earned and vested, and the Company shall pay to each grantee of each RSU,
\nat or promptly after the Effective Time, an amount in cash equal to the Merger
\nConsideration for each such RSU.<\/p>\n

4<\/p>\n

\n

(e) Immediately prior to the Effective Time, all amounts held in participant
\naccounts and denominated in Company Common Stock under the Company153s AIP
\nDeferred Compensation Plan or the Company153s Non-Employee Director Deferred
\nCompensation Plans, shall become fully vested contingent upon the Effective Time
\nand shall, unless otherwise agreed by Parent and an individual participant in
\none or more of such plans, be converted into an obligation to pay cash with a
\nvalue equal to the product of (i) the Merger Consideration and (ii) the number
\nof Shares deemed held in such participant accounts (“Deferred Equity
\nUnits<\/u>“), which shall be deemed to be the issuance of the appropriate number
\nof Shares and receipt of the Merger Consideration, as provided in Section
\n2.1(a), to the extent required by the terms of the Company153s AIP Deferred
\nCompensation Plan and the Company Stock Plans. Each of the Company153s 2003 and
\n2005 Non-Employee Director Deferred Compensation Plans, the Del Monte
\nCorporation Executive Deferred Compensation Plan, effective December 20, 2001
\n(as amended and restated as of December 31, 2004), the Deferred Compensation
\nPlan, effective October 1, 2009 and the elective deferral account of the
\nCompany153s AIP Deferred Compensation Plan shall be terminated prior to the
\nEffective Time in accordance with the provisions of Treas. Reg.
\n1.409A-3(j)(ix)(B) and all obligations thereunder shall be paid at or before the
\nEffective Time.<\/p>\n

(f) Unless a later time for payment is expressly provided in this Section 2.2
\nor is otherwise agreed to between Parent and an individual holder, the Company
\nshall pay the holders of Company Stock Options, PSUs, PARS, RSUs and Deferred
\nEquity Units the cash payments described in this Section 2.2 promptly after the
\nEffective Time, but in any event not later than the second (2nd<\/sup>)
\nBusiness Day after the Effective Time.<\/p>\n

Section 2.3 Surrender of Shares<\/u>.<\/p>\n

(a) Prior to the Effective Time, Parent shall enter into an agreement (in a
\nform reasonably acceptable to the Company) with a paying agent reasonably
\nacceptable to the Company to act as agent for the stockholders of the Company in
\nconnection with the Merger (the “Paying Agent<\/u>“) to receive the Merger
\nConsideration to which the stockholders of the Company shall become entitled
\npursuant to Section 2.1. At or prior to the Effective Time, Parent shall deposit
\n(or cause to be deposited) with the Paying Agent sufficient funds to make all
\npayments pursuant to Section 2.1. Such funds may be invested by the Paying Agent
\nas directed by Parent, provided<\/u> that (i) no such investment or losses
\nthereon shall affect the Merger Consideration payable to the holders of Company
\nCommon Stock and following any losses Parent shall promptly provide additional
\nfunds to the Paying Agent for the benefit of the stockholders of the Company in
\nthe amount of any such losses and (ii) such investments shall be in short term
\nobligations of the United States of America with maturities of no more than 30
\ndays or guaranteed by the United States of America and backed by the full faith
\nand credit of the United States of America. Any interest or income produced by
\nsuch investments will be payable to the Surviving Corporation or Parent, as
\nParent directs.<\/p>\n

(b) Promptly after the Effective Time and in any event not later than the
\nthird Business Day following the Effective Time, the Surviving Corporation shall
\ncause to be mailed to each record holder, as of the Effective Time, of an
\noutstanding certificate or outstanding certificates (“Certificates<\/u>“) that
\nimmediately prior to the Effective Time represented outstanding Shares, which
\nhave converted into the right to receive the Merger Consideration with respect\n<\/p>\n

5<\/p>\n

\n

thereto pursuant to Section 2.1(a), a form of letter of transmittal (which
\nshall be in customary form and shall specify that delivery shall be effected,
\nand risk of loss and title to the Certificates held by such person shall pass,
\nonly upon proper delivery of Certificates to the Paying Agent) and instructions
\nfor use in effecting the surrender of the Certificates. Upon surrender to the
\nPaying Agent of a Certificate, together with such letter of transmittal, duly
\ncompleted and validly executed in accordance with the instructions thereto, the
\nholder of such Certificate shall be entitled to receive in exchange therefor the
\nMerger Consideration for each Share formerly represented by such Certificate and
\nsuch Certificate shall then be canceled. Promptly after the Effective Time and
\nin any event not later than the third Business Day following the Effective Time,
\nthe Paying Agent shall issue and deliver to each holder of uncertificated Shares
\nrepresented by book-entry (“Book-Entry Shares<\/u>“) a check or wire transfer
\nfor the amount of cash that such holder is entitled to receive pursuant to
\nSection 2.1(a) of this Agreement in respect of such Book-Entry Shares, without
\nsuch holder being required to deliver a Certificate or an executed letter of
\ntransmittal to the Paying Agent, and such Book-Entry Shares shall then be
\ncanceled. No interest shall be paid or accrued for the benefit of holders of the
\nCertificates or Book-Entry Shares on the Merger Consideration payable in respect
\nof the Certificates or Book-Entry Shares. In the event of a transfer of
\nownership of Shares that is not registered in the transfer records of the
\nCompany, it shall be a condition of payment that such Certificate so surrendered
\nshall be properly endorsed or shall be otherwise in proper form for transfer or
\nsuch Book-Entry Share shall be properly transferred and that the person
\nrequesting such payment shall have paid any transfer and other Taxes required by
\nreason of the payment of the Merger Consideration to a person other than the
\nregistered holder of the Certificate or Book-Entry Share surrendered or shall
\nhave established to the satisfaction of Parent that such Tax either has been
\npaid or is not applicable. Until surrendered as contemplated by this Section
\n2.3(b), each Certificate shall be deemed at any time after the Effective Time to
\nrepresent only the right to receive upon such surrender the applicable Merger
\nConsideration as contemplated by this Article II.<\/p>\n

(c) Prior to the Effective Time, Parent and the Company shall cooperate to
\nestablish procedures with the Paying Agent and the Depository Trust Company
\n(“DTC<\/u>“) to ensure that (i) if the Closing occurs at or prior to 11:30
\na.m. (New York time) on the Closing Date, the Paying Agent will transmit to DTC
\nor its nominees on the Closing Date an amount in cash in immediately available
\nfunds equal to the number of Shares held of record by DTC or such nominee
\nimmediately prior to the Effective Time multiplied by the Merger Consideration
\n(such amount, the “DTC Payment<\/u>“), and (ii) if the Closing occurs after
\n11:30 a.m. (New York time) on the Closing Date, the Paying Agent will transmit
\nto DTC or its nominees on the first Business Day after the Closing Date an
\namount in cash in immediately available funds equal to the DTC Payment.<\/p>\n

(d) At any time following the date that is six (6) months after the Effective
\nTime, Parent shall be entitled to require the Paying Agent to deliver to it or
\nits designee any funds (including any interest received with respect thereto)
\nthat have been made available to the Paying Agent and that have not been
\ndisbursed to holders of Certificates and Book-Entry Shares and thereafter such
\nholders shall be entitled to look to Parent and the Surviving Corporation
\n(subject to abandoned property, escheat or other similar laws) only as general
\ncreditors thereof with respect to the Merger Consideration payable upon due
\nsurrender of their Certificates and Book-Entry Shares. The Surviving Corporation
\nshall pay all charges and expenses, including those of<\/p>\n

6<\/p>\n

\n

the Paying Agent, in connection with the exchange of Shares for the Merger
\nConsideration. Notwithstanding any provision of this Agreement to the contrary,
\nnone of the parties hereto, the Surviving Corporation or the Paying Agent shall
\nbe liable to any person for Merger Consideration delivered to a public official
\npursuant to any applicable abandoned property, escheat or similar law. All cash
\npaid upon the surrender of Certificates in accordance with the terms of this
\nArticle II shall be deemed to have been paid in full satisfaction of all rights
\npertaining to the Shares formerly represented by such Certificates.<\/p>\n

(e) After the Effective Time, the stock transfer books of the Company shall
\nbe closed and thereafter there shall be no further registration of transfers of
\nShares that were outstanding prior to the Effective Time. If, after the
\nEffective Time, Certificates are presented to the Surviving Corporation for
\ntransfer such Certificates shall be canceled and exchanged for the consideration
\nprovided for, and in accordance with the procedures set forth, in this Article
\nII.<\/p>\n

(f) Notwithstanding anything in this Agreement to the contrary, Parent, the
\nSurviving Corporation and the Paying Agent shall be entitled to deduct and
\nwithhold from the consideration otherwise payable pursuant to this Agreement any
\namount as may be required to be deducted and withheld with respect to the making
\nof such payment under applicable Tax laws. To the extent that amounts are so
\nwithheld by Parent, the Surviving Corporation or the Paying Agent, such withheld
\namounts shall be treated for all purposes of this Agreement as having been paid
\nto the holder of Shares in respect of whom such deduction and withholding was
\nmade by Parent or the Paying Agent.<\/p>\n

(g) In the event that any Certificate shall have been lost, stolen or
\ndestroyed, upon the holder153s compliance with the replacement requirements
\nestablished by the Paying Agent, including making an affidavit to that effect
\nand, if necessary, the posting by the holder of a bond in customary amount as
\nindemnity against any claim that may be made against it or the Surviving
\nCorporation with respect to the Certificate, the Paying Agent will deliver in
\nexchange for the lost, stolen or destroyed Certificate the applicable Merger
\nConsideration payable in respect of the Shares represented by such Certificate
\npursuant to this Article II.<\/p>\n

ARTICLE III<\/p>\n

REPRESENTATIONS AND WARRANTIES OF THE COMPANY<\/p>\n

Except as set forth on the disclosure schedule delivered by the Company to
\nParent and Merger Sub prior to or contemporaneously with the execution of this
\nAgreement (the “Company Disclosure Schedule<\/u>,” it being agreed that
\ndisclosure of any item in any section of the Company Disclosure Schedule shall
\nalso be deemed disclosure with respect to any other Section of this Agreement to
\nwhich the relevance of such item is reasonably apparent) or as disclosed in the
\nSEC Reports filed and publicly available prior to the date of this Agreement and
\nonly as and to the extent disclosed therein (but excluding any risk factor
\ndisclosures contained under the heading “Risk Factors,” any disclosure of risks
\nincluded in any “forward-looking statements” disclaimer or any other statements
\nthat are similarly predictive or forward-looking in nature), the Company hereby
\nrepresents and warrants to Parent and Merger Sub that:<\/p>\n

Section 3.1 Organization and Qualification<\/u>. Each of the Company and
\nits subsidiaries (a) is an entity duly organized and validly existing under the
\nlaws of the jurisdiction of its<\/p>\n

7<\/p>\n

\n

organization, (b) has all requisite corporate or similar power and authority
\nto own, lease and operate its properties and to carry on its business as now
\nbeing conducted and (c) is duly qualified or licensed to do business and is in
\ngood standing (with respect to jurisdictions that recognize such concept) in
\neach jurisdiction in which the nature of its business or the ownership, leasing
\nor operation of its properties makes such qualification or licensing necessary,
\nexcept, with respect to clauses (a)(but solely with respect to the Company153s
\nsubsidiaries (other than DMC)), (b)(but solely with respect to the Company153s
\nsubsidiaries (other than DMC) and (c), for any such failures to be duly
\norganized or validly existing, to have such power and authority or to be so
\nqualified or licensed or in good standing as would not, individually or in the
\naggregate, have a Material Adverse Effect.<\/p>\n

Section 3.2 Certificate of Incorporation and Bylaws<\/u>. The Company has
\nheretofore furnished or otherwise made available to Parent a complete and
\ncorrect copy of the certificate of incorporation of the Company, as amended to
\ndate (the “Certificate of Incorporation<\/u>“), and the bylaws of the Company
\n(the “Bylaws<\/u>“) as currently in effect. The Certificate of Incorporation
\nand the Bylaws are in full force and effect.<\/p>\n

Section 3.3 Capitalization<\/u>.<\/p>\n

(a) The authorized capital stock of the Company consists of 500,000,000
\nShares and 2,000,000 shares of preferred stock, par value $0.01 per share (the
\n“Preferred Stock<\/u>“). At the close of business on November 19, 2010, 2010
\n(the “Measurement Date<\/u>“): (i) 195,152,737 Shares were issued and
\noutstanding; (ii) 24,468,885 Shares were held in treasury; (iii) no shares of
\nPreferred Stock were outstanding; (iv) an aggregate of 18,396,116 Shares were
\nsubject to or otherwise deliverable in connection with the exercise of
\noutstanding Company Stock Options; (v) there were outstanding PSUs grants that
\ncould be settled in up to 3,441,009 Shares; (vi) there were outstanding PARSs
\ngrants that could be settled in up to 789,275 Shares; (vii) 377,948 RSUs were
\noutstanding; and (viii) 1,292,258 Deferred Equity Units were outstanding. From
\nthe close of business on the Measurement Date until the date of this Agreement,
\nno options to purchase shares of Company Common Stock or Preferred Stock have
\nbeen granted and no shares of Company Common Stock or Preferred Stock have been
\nissued, except for Shares issued pursuant to the exercise or vesting of Company
\nStock Options, PSUs, PARS, RSUs and Deferred Equity Units in accordance with
\ntheir terms. Except as set forth above as of the date of this Agreement, (A)
\nthere are no outstanding (1) shares of capital stock or other voting securities
\nof the Company, (2) securities of the Company or its subsidiaries convertible
\ninto or exchangeable for shares of capital stock or voting securities of the
\nCompany or (3) options or other rights to acquire from the Company or its
\nsubsidiaries, and no obligation of the Company or its subsidiaries to issue, any
\ncapital stock, voting securities or securities convertible into or exchangeable
\nfor capital stock or voting securities of the Company (the items in clauses (1),
\n(2) and (3) are referred to collectively as “Company Securities<\/u>“), and
\n(B) there are no outstanding obligations of the Company or any subsidiary to
\nrepurchase, redeem or otherwise acquire any Company Securities. All outstanding
\nShares are duly authorized, validly issued, fully paid and nonassessable and not
\nsubject to preemptive rights. No Shares are owned by any subsidiary of the
\nCompany.<\/p>\n

(b) All equity interests of the Company153s subsidiaries are owned by the
\nCompany or another wholly-owned subsidiary of the Company free and clear of all
\nLiens. As of the date<\/p>\n

8<\/p>\n

\n

hereof, except for the Company153s subsidiaries, the Company does not own any
\ncapital stock of or other equity interest in, or any interest convertible into
\nor exercisable or exchangeable for any capital stock of or other equity interest
\nin, any other person. Each of the outstanding equity interests of each of the
\nCompany153s subsidiaries is duly authorized, validly issued, fully paid and
\nnonassessable (in each case, to the extent applicable) and not subject to
\npreemptive or similar rights. Section 3.3(b) of the Company Disclosure Schedule
\nsets forth each subsidiary of the Company as of the date hereof. As of the date
\nof this Agreement, there are no outstanding (1) securities of the Company or its
\nsubsidiaries convertible into or exchangeable for shares of capital stock or
\nvoting securities of the Company153s subsidiaries or (2) options or other rights
\nto acquire from the Company153s subsidiaries, and no obligation of the Company153s
\nsubsidiaries to issue, any capital stock, voting securities or securities
\nconvertible into or exchangeable for capital stock or voting securities of the
\nCompany153s subsidiaries.<\/p>\n

Section 3.4 Authority<\/u>. The Company has all necessary corporate power
\nand authority to execute and deliver this Agreement and, subject to the Company
\nRequisite Vote, to perform its obligations hereunder and to consummate the
\ntransactions contemplated hereby. The execution, delivery and performance of
\nthis Agreement by the Company and the consummation by the Company of the
\ntransactions contemplated hereby have been duly and validly authorized by all
\nnecessary corporate action and no other corporate proceedings on the part of the
\nCompany are necessary to authorize this Agreement or to consummate the
\ntransactions so contemplated (other than adoption of this Agreement by the
\nholders of at least a majority of the outstanding Shares on the record date for
\nthe Stockholders Meeting (the “Company Requisite Vote<\/u>“), and the filing
\nwith the Secretary of State of the State of Delaware of the Certificate of
\nMerger as required by the DGCL). This Agreement has been duly and validly
\nexecuted and delivered by the Company and, assuming the due authorization,
\nexecution and delivery hereof by Parent and Merger Sub, constitutes a legal,
\nvalid and binding obligation of the Company enforceable against the Company in
\naccordance with its terms, subject to the effects of bankruptcy, insolvency,
\nfraudulent conveyance, reorganization, moratorium and other similar laws
\nrelating to or affecting creditors153 rights generally, and general equitable
\nprinciples (whether considered in a proceeding in equity or at law). The Company
\nBoard, at a duly called and held meeting, has adopted resolutions: (a)
\ndetermining that the terms of the Merger and the other transactions contemplated
\nby this Agreement are fair to and in the best interests of the Company and its
\nstockholders, and declaring it advisable to enter into this Agreement; (b)
\napproving the execution, delivery and performance of this Agreement and the
\nconsummation of the transactions contemplated hereby, including the Merger; and
\n(c) resolving to recommend that stockholders of the Company adopt this Agreement
\n(the “Company Recommendation<\/u>“). The only vote of the stockholders of the
\nCompany required to adopt this Agreement and approve the transactions
\ncontemplated hereby is the Company Requisite Vote.<\/p>\n

Section 3.5 No Conflict; Required Filings and Consents<\/u>.<\/p>\n

(a) The execution, delivery and performance of this Agreement by the Company
\nand the consummation of the Merger by the Company do not and will not (i)
\nconflict with or violate the certificate of incorporation or bylaws or other
\nequivalent organizational documents of the Company or its subsidiaries, (ii)
\nconflict with or violate any law, rule, regulation, order, judgment or decree
\napplicable to the Company or any of its subsidiaries or by which its or any of
\ntheir respective properties are bound, assuming that all consents, approvals and
\nauthorizations<\/p>\n

9<\/p>\n

\n

contemplated by clauses (i) through (iv) of subsection (b) below have been
\nobtained, and all filings described in such clauses have been made, or (iii)
\nresult in any breach or violation of or constitute a default (or an event that
\nwith notice or lapse of time or both would become a default) or result in the
\nloss of a benefit under, or give rise to any right of termination, cancellation,
\namendment or acceleration of, or obligation or fee under, any note, bond,
\nmortgage, indenture, contract, agreement, license, lease, sublease or other
\ninstrument or obligation (each, a “Contract<\/u>“) to which the Company or any
\nof its subsidiaries is a party or by which the Company or any of its
\nsubsidiaries or its or any of their respective properties are bound or result in
\nthe creation of any Lien on the Company or any of its subsidiaries or any of
\ntheir properties or assets, except, in the case of clauses (ii) and (iii), for
\nany such conflict, violation, breach, Lien, default, loss, right or other
\noccurrence that would not, (A) prevent or materially delay the Company from
\nperforming its obligations under this Agreement in any material respect or (B)
\nindividually or in the aggregate, have a Material Adverse Effect.<\/p>\n

(b) The execution, delivery and performance of this Agreement by the Company
\nand the consummation of the Merger by the Company do not and will not require
\nany consent, approval, authorization or permit of, action by, filing with or
\nnotification to, any governmental or regulatory (including stock exchange)
\nauthority, agency, court or other judicial body, commission or other
\ngovernmental body (each, a “Governmental Entity<\/u>“), except for (i)
\napplicable requirements of the Securities Exchange Act of 1934, as amended (the
\n“Exchange Act<\/u>“) and the rules and regulations promulgated thereunder
\n(including the filing of the Proxy Statement) and state securities, takeover and
\n“blue sky” laws, (ii) the filing of a premerger notification and report form by
\nthe Company under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
\namended (the “HSR Act<\/u>“) and the filings and receipt, termination or
\nexpiration, as applicable, of such other approvals or waiting periods as may be
\nrequired under any other applicable competition, merger control, antitrust or
\nsimilar law of any jurisdiction (“Foreign Merger Control Laws<\/u>“), (iii)
\nthe applicable requirements of the New York Stock Exchange (“NYSE<\/u>“), (iv)
\nthe filing with the Secretary of State of the State of Delaware of the
\nCertificate of Merger as required by the DGCL and (v) any such consent,
\napproval, authorization, permit, action, filing or notification the failure of
\nwhich to make or obtain would not, (A) prevent or materially delay the Company
\nfrom performing its obligations under this Agreement in any material respect or
\n(B) individually or in the aggregate, have a Material Adverse Effect.<\/p>\n

Section 3.6 Compliance<\/u>.<\/p>\n

(a) Neither the Company nor any of its subsidiaries is, and since April 28,
\n2008 none have been in violation of any law, rule, regulation, order, judgment
\nor decree applicable to the Company or any of its subsidiaries or by which the
\nCompany153s or any of its subsidiaries153 respective properties are bound, except
\nfor any such violation which would not, individually or in the aggregate, have a
\nMaterial Adverse Effect.<\/p>\n

(b) The Company and its subsidiaries have all permits, licenses,
\nauthorizations, exemptions, orders, consents, approvals and franchises
\n(“Licenses<\/u>“) from Governmental Entities required to conduct their
\nrespective businesses as now being conducted or to own, lease or operate their
\nproperties, except for any such Licenses the absence of which would not,
\nindividually or in the aggregate, have a Material Adverse Effect. All Licenses
\nof the Company<\/p>\n

10<\/p>\n

\n

are in full force and effect and no cancellation or suspension of any license
\nis pending, except where the failure to be in full force and effect, the
\ncancellation or the suspension, would not, individually or in the aggregate,
\nhave a Material Adverse Effect.<\/p>\n

Section 3.7 SEC Filings; Financial Statements<\/u>.<\/p>\n

(a) The Company has timely filed or furnished all forms, reports, statements,
\ncertifications and other documents (together with all exhibits, amendments and
\nsupplements thereto) required to be filed or furnished by it with the Securities
\nand Exchange Commission (the “SEC<\/u>“) since April 27, 2008 (all such forms,
\nreports, statements, certificates and other documents filed since April 27,
\n2008, collectively, the “SEC Reports<\/u>“). Each of the SEC Reports, as of
\nits respective date, or if amended prior to the date hereof, as of the date of
\nsuch amendment, complied as to form in all material respects with the applicable
\nrequirements of the Securities Act of 1933, as amended (the “Securities
\nAct<\/u>“) and the rules and regulations promulgated thereunder or the Exchange
\nAct and the rules and regulations promulgated thereunder, as the case may be,
\neach as in effect on the date so filed. As of its filing date, none of the SEC
\nReports contained any untrue statement of a material fact or omitted to state a
\nmaterial fact required to be stated or incorporated by reference therein or
\nnecessary in order to make the statements therein, in light of the circumstances
\nunder which they were made, not misleading, except to the extent that the
\ninformation in such SEC Report has been amended or superseded by a later SEC
\nReport filed prior to the date hereof.<\/p>\n

(b) The financial statements (including all related notes and schedules) of
\nthe Company and its subsidiaries included in the SEC Reports present fairly in
\nall material respects the consolidated financial position of the Company and its
\nsubsidiaries, as at the respective dates thereof, and the consolidated results
\nof their operations and their cash flows for the respective periods then ended
\n(subject, in the case of the unaudited statements, to normal year-end
\nadjustments and to any other adjustments described therein, including the notes
\nthereto none of which adjustments are expected to have a Material Adverse
\nEffect) and were prepared in all material respects in conformity with United
\nStates generally accepted accounting principles (“GAAP<\/u>“) (except, in the
\ncase of the unaudited statements, as permitted by the SEC) applied on a
\nconsistent basis during the periods involved (except as may be expressly
\nindicated therein or in the notes thereto). No subsidiary of the Company is
\nsubject to periodic reporting requirements of the Exchange Act.<\/p>\n

(c) Since April 28, 2008, subject to any applicable grace periods, the
\nCompany has been and is in compliance with (i) the applicable provisions of the
\nSarbanes-Oxley Act of 2002 and (ii) the applicable listing and corporate
\ngovernance rules and regulations of the NYSE, except in the case of clauses (i)
\nand (ii) for any such noncompliance that would not, individually or in the
\naggregate, have a Material Adverse Effect.<\/p>\n

(d) (i) The Company maintains disclosure controls and procedures required by
\nRule 13a-15 or 15d-15 under the Exchange Act and (ii) the Company has disclosed
\nsince April 28, 2008 to the Company153s auditors and the audit committee of the
\nCompany Board (A) any significant deficiencies and material weaknesses in the
\ndesign or operation of its internal controls over financial reporting (as
\ndefined in Rule 13a-15(f) under the Exchange Act) that are reasonably likely to
\nadversely affect the Company153s ability to record, process, summarize and<\/p>\n

11<\/p>\n

\n

report financial information and (B) any fraud, to the knowledge of the
\nCompany, whether or not material, that involves management or other employees
\nwho have a significant role in the Company153s internal control over financial
\nreporting. The Company has made available to Parent all such disclosures made by
\nmanagement to the Company153s auditors and audit committee from April 28, 2008 to
\nthe date of this Agreement.<\/p>\n

(e) Except (i) as reflected, accrued or reserved against in (x) the Company153s
\nconsolidated balance sheet as of May 2, 2010 (or the notes thereto) included in
\nthe Company153s Annual Report on Form 10-K filed prior to the date of this
\nAgreement for the fiscal year ended May 2, 2010, and (y) the Company153s
\nconsolidated balance sheet as of August 1, 2010 (or the notes thereto) included
\nin the Company153s Quarterly Report on Form 10-Q filed prior to the date of this
\nAgreement for the fiscal quarter ended August 1, 2010, (ii) for liabilities or
\nobligations incurred in the ordinary course of business since August 1, 2010,
\n(iii) for liabilities or obligations which have been discharged or paid in full
\nprior to the date of this Agreement and (iv) for liabilities or obligations
\nincurred pursuant to the transactions contemplated by this Agreement, neither
\nthe Company nor any of its subsidiaries has any liabilities, commitments or
\nobligations, asserted or unasserted, known or unknown, absolute or contingent,
\nwhether or not accrued, matured or un-matured or otherwise, of a nature required
\nby GAAP to be disclosed, reserved or reflected in a consolidated balance sheet
\nor the notes thereto, other than those which have not had and would not have,
\nindividually or in the aggregate, a Material Adverse Effect.<\/p>\n

Section 3.8 Absence of Certain Changes or Events<\/u>. From May 2, 2010
\nthrough the date of this Agreement, the Company and its subsidiaries have
\nconducted their business in all material respects in the ordinary course
\nconsistent with past practice. Since May 2, 2010, there has not been: (a) any
\nchange, event, occurrence or effect which has had or would reasonably be
\nexpected to have a Material Adverse Effect; (b) prior to the date of this
\nAgreement, any declaration, setting aside or payment of any dividend or other
\ndistribution in cash, stock, property or otherwise in respect of the Company153s
\nor any of its subsidiaries153 capital stock, except for (i) quarterly dividends by
\nthe Company in the ordinary course of business and (ii) any dividend or
\ndistribution by a subsidiary of the Company to the Company or a subsidiary
\nthereof; (c) prior to the date of this Agreement, any redemption, repurchase or
\nother acquisition of any shares of capital stock of the Company or any of its
\nsubsidiaries (other than the acquisition of Shares (i) pursuant to the Company153s
\npreviously disclosed Share buy-back program, and (ii) tendered by employees or
\nformer employees in connection with a cashless exercise of Company Stock Options
\nor in order to pay Taxes in connection with the vesting or exercise of any
\ngrants (including Company Stock Options, PSUs, PARS, RSUs and Deferred Equity
\nUnits) pursuant to the terms of a Company Stock Plan); (d) prior to the date of
\nthis Agreement, any material change by the Company in its accounting principles,
\nexcept as may be appropriate to conform to changes in statutory or regulatory
\naccounting rules or GAAP or regulatory requirements with respect thereto; or (e)
\nprior to the date of this Agreement, any material Tax election made by the
\nCompany or any of its subsidiaries or any settlement or compromise of any
\nmaterial Tax liability by the Company or any of its subsidiaries, other than in
\nthe ordinary course of business.<\/p>\n

Section 3.9 Absence of Litigation<\/u>. There are no suits, claims,
\nactions, proceedings, arbitrations, mediations or investigations pending or, to
\nthe knowledge of the Company, threatened against the Company or any of its
\nsubsidiaries, other than any such suit, claim, action, proceeding, arbitration,
\nmediation or investigation that would not, individually or in the<\/p>\n

12<\/p>\n

\n

aggregate, have a Material Adverse Effect. Neither the Company nor any of its
\nsubsidiaries nor any of their respective properties is or are subject to any
\norder, writ, judgment, injunction, decree or award, except for those that would
\nnot, (A) prevent or materially delay the Company from performing its obligations
\nunder this Agreement in any material respect or (B) individually or in the
\naggregate, have a Material Adverse Effect.<\/p>\n

Section 3.10 Employee Benefit Plans<\/u>.<\/p>\n

(a) Section 3.10(a) of the Company Disclosure Schedule contains a true and
\ncomplete list, as of the date of this Agreement, of each material Company Plan.
\nFor purposes of this Agreement, “Company Plan” means any “employee benefit plan”
\n(within the meaning of Section 3(3) of the Employee Retirement Income Security
\nAct of 1974, as amended (“ERISA<\/u>“)), and all stock incentive, fringe
\nbenefit, compensation, severance, employment, change-in-control, bonus, deferred
\ncompensation, employee loan, vacation or sick pay and all other employee benefit
\nplans, agreements, programs, policies or other arrangements, whether or not
\nsubject to ERISA (including any funding mechanism therefor now in effect or
\nrequired in the future as a result of the transaction contemplated by this
\nAgreement or otherwise), under which (i) any current or former employee,
\nofficer, consultant, independent contractor or director of the Company or any of
\nits subsidiaries (collectively, the “Company Employees<\/u>“) has any present
\nor future right to benefits which are contributed to, sponsored by or maintained
\nby the Company or any of their respective subsidiaries or (ii) the Company or
\nany of its respective subsidiaries has or has had any present or future
\nliability.<\/p>\n

(b) With respect to each material Company Plan, other than a “multiemployer
\nplan” (within the meaning of Section 3(37) of ERISA), the Company has made
\navailable to Parent a current, accurate and complete copy thereof (or, if a plan
\nis not written, a written description thereof) and, to the extent applicable,
\n(i) any related trust agreement or other funding instrument, (ii) the most
\nrecent determination or opinion letter, if any, received from the Internal
\nRevenue Service, (iii) any summary plan description and other material written
\ncommunications by the Company or its subsidiaries to Company Employees
\nconcerning the extent of the benefits provided under a Company Plan; and (iv)
\nfor the most recent year (A) the Form 5500 and attached schedules, (B) audited
\nfinancial statements and (C) actuarial valuation reports, if applicable.<\/p>\n

(c) Except as would not, individually or in the aggregate, have a Material
\nAdverse Effect, each Company Plan other than a multiemployer plan (and to the
\nknowledge of the Company, each multiemployer plan) has been established and
\nadministered in accordance with its terms and in compliance with the applicable
\nprovisions of ERISA, the Internal Revenue Code of 1986 (the “Code<\/u>“), and
\nother applicable laws, rules and regulations.<\/p>\n

(d) Except as set forth on Section 3.10(d) of the Company Disclosure
\nSchedules, neither the Company nor any of its subsidiaries has any obligation to
\ncontribute to any multiemployer plan. With respect to any multiemployer plan to
\nwhich the Company or any of its subsidiaries has any liability or contributes
\n(or has within the last six years at any time contributed or had an obligation
\nto contribute): (i) none of the Company or any of its subsidiaries has incurred
\nany material withdrawal liability under Title IV of ERISA which remains
\nunsatisfied; and (ii) to the knowledge of the Company, no such multiemployer
\nplan is in<\/p>\n

13<\/p>\n

\n

reorganization or insolvent (as those terms are defined in Sections 4241 and
\n4245 of ERISA, respectively).<\/p>\n

(e) Except as would not, individually or in the aggregate, have a Material
\nAdverse Effect, with respect to each Company Plan, no actions, suits or claims
\n(other than routine claims for benefits in the ordinary course) are pending or,
\nto the knowledge of the Company, threatened.<\/p>\n

(f) Except as would not, individually or in the aggregate, have a Material
\nAdverse Effect, (i) the Company has not incurred any liability under Title IV of
\nERISA that has not been satisfied in full and (ii) to the knowledge of the
\nCompany, no condition exists that presents a risk to the Company of incurring
\nany such liability other than liability for premiums due to the Pension Benefit
\nGuaranty Corporation. No written or oral communication has been received from
\nthe PBGC in respect of any Company Plan subject to Title IV of ERISA concerning
\nthe funded status of any such plan in connection with the transactions
\ncontemplated under this Agreement.<\/p>\n

(g) Except as would not, individually or in the aggregate, have a Material
\nAdverse Effect, no nonexempt “prohibited transaction” (as such term is defined
\nin Section 406 of ERISA and Section 4975 of the Code) has occurred with respect
\nto any Company Plan that is subject to Section 406 of ERISA or Section 4975 of
\nthe Code, as the case may be.<\/p>\n

(h) Except as would not, individually or in the aggregate, have a Material
\nAdverse Effect, each Company Plan other than a multiemployer plan (and to the
\nknowledge of the Company, each multiemployer plan), which is intended to be
\nqualified under Section 401(a) of the Code is so qualified and has received a
\ndetermination letter to that effect and, to the knowledge of the Company, no
\ncircumstances exist which would reasonably be expected to materially adversely
\naffect such qualification or exemption.<\/p>\n

(i) Except as set forth in Section 3.10(i) of the Company Disclosure
\nSchedules, the execution, delivery of and performance by the Company of its
\nobligations under the transactions contemplated by this Agreement will not
\n(either alone or upon occurrence of any additional or subsequent events) result
\nin “excess parachute payments” within the meaning of Section 280G(b)(1) of the
\nCode.<\/p>\n

(j) Except as set forth in Section 3.10(j) of the Company Disclosure
\nSchedules or as provided in the terms of this Agreement, no Company Plan exists
\nthat, as a result of the execution of this Agreement, shareholder approval of
\nthis Agreement, or the transactions contemplated by this Agreement (whether
\nalone or in connection with any subsequent event(s)): (i) could entitle any
\nCompany Employee to severance pay or any increase in severance pay upon any
\ntermination of employment after the date of this Agreement, or (ii) will result
\nin the acceleration of the time of payment or vesting or result in any payment
\nor funding (through a grantor trust or otherwise) of compensation or benefits
\nunder, or increase the amount payable or result in any other material obligation
\npursuant to, any of the Company Plans.<\/p>\n

(k) Since January 1, 2005, all Company Stock Options have been granted having
\nan exercise price per Share at least equal to the fair market value of one Share
\non the date of grant of such Company Stock Option.<\/p>\n

14<\/p>\n

\n

Section 3.11 Labor and Employment Matters<\/u>. Except as described in
\nSection 3.11 of the Company Disclosure Schedule, neither the Company nor any
\nsubsidiary is a party to any collective bargaining agreement with any labor
\norganization or other representative of any Company Employees, nor is any such
\nagreement presently being negotiated by the Company. Except as would not,
\nindividually or in the aggregate, have a Material Adverse Effect, (a) there are
\nno unfair labor practice complaints pending against the Company or any
\nsubsidiary before the National Labor Relations Board or any other labor
\nrelations tribunal or authority and (b) there are no strikes, work stoppages,
\nslowdowns, lockouts, material arbitrations or material grievances, or other
\nmaterial labor disputes pending or, to the knowledge of the Company, threatened
\nin writing against or involving the Company or any of its subsidiaries, nor have
\nthere been any such strikes, work stoppages, slowdowns, or lockouts within the
\npast three years. Except as would not, individually or in the aggregate, have a
\nMaterial Adverse Effect, to the knowledge of the Company, there are no union
\norganizing efforts involving any Company Employees.<\/p>\n

Section 3.12 Insurance<\/u>. Except as would not, individually or in the
\naggregate, have a Material Adverse Effect, (a) all insurance policies of the
\nCompany and its subsidiaries are in full force and effect and provide insurance
\nin such amounts and against such risks as is sufficient to comply with
\napplicable law and as the Company reasonably has determined to be prudent in
\naccordance with industry practices and (b) neither the Company nor any of its
\nsubsidiaries is in breach or default, and neither the Company nor any of its
\nsubsidiaries has taken any action or failed to take any action which, with
\nnotice or the lapse of time, would constitute such a breach or default, or
\npermit termination or modification, of any of such insurance policies.<\/p>\n

Section 3.13 Properties<\/u>. Except as would not, individually or in the
\naggregate, have a Material Adverse Effect, the Company or a subsidiary of the
\nCompany owns and has good and valid title to all of their respective owned real
\nproperty (the “Owned Real Property<\/u>“) and good title to all of its
\ntangible personal property and has good and valid leasehold interests in all of
\nits leased properties, whether as lessee or sublessee (the “Leased Real
\nProperty<\/u>“), in each case, sufficient to conduct its respective businesses as
\ncurrently conducted, free and clear of all liens, claims, mortgages,
\nencumbrances, pledges, security interests, equities or charges of any kind
\n(“Liens<\/u>“) (except in all cases for those permissible under any applicable
\nloan agreements and indentures and for title exceptions, defects, and other
\nLiens, whether or not of record, which in the aggregate do not materially affect
\nthe continued use of the property for the purposes for which the property is
\ncurrently being used by the Company or its subsidiaries), assuming the timely
\ndischarge of all obligations owing under or related to the Owned Real Property,
\nthe tangible personal property and the Leased Real Property; provided<\/u>
\nthat no representation is made under this Section 3.13 with respect to any
\nIntellectual Property.<\/p>\n

Section 3.14 Tax Matters<\/u>. Except as would not, individually or in the
\naggregate, have a Material Adverse Effect, (a) all Tax Returns required to be
\nfiled by the Company and its subsidiaries prior to the date hereof have been
\nfiled (except those under valid extension) and are true, correct and complete in
\nall material respects, (b) as of the date of this Agreement, all Taxes of the
\nCompany and its subsidiaries have been paid or adequately provided for on the
\nmost recent financial statements included in the SEC Reports filed prior to the
\ndate hereof, (c) no deficiencies for any Taxes have been proposed or assessed in
\nwriting against or with respect to any Taxes due by or Tax Returns of Company or
\nany of its subsidiaries, and there is no<\/p>\n

15<\/p>\n

\n

outstanding audit, assessment, dispute or claim concerning any Tax liability
\nof the Company or any of its subsidiaries pending or raised by an authority in
\nwriting, (d) neither the Company nor any of its subsidiaries has received
\nwritten notice of any claim with respect to any Taxes, (e) there are no Liens
\nfor Taxes (other than Taxes not yet due and payable or Taxes being contested in
\ngood faith) upon any of the assets of the Company or any of its subsidiaries,
\n(f) neither the Company nor any of its subsidiaries (i) has been a member of an
\naffiliated group filing a consolidated federal income Tax return (other than a
\ngroup the common parent of which was the Company), (ii) has any liability for
\nthe Taxes of any person (other than the Company, or any subsidiary of the
\nCompany) under Treasury Regulation Section 1.1502-6 (or any similar provision of
\nstate, local or foreign law) or (iii) is a party to or is bound by any Tax
\nsharing, allocation or indemnification agreement or arrangement (other than such
\nan agreement or arrangement the parties to which consist exclusively of the
\nCompany and its subsidiaries), (g) neither the Company nor any of its
\nsubsidiaries has been either a “distributing corporation” or a “controlled
\ncorporation” in a distribution occurring during the last five years in which the
\nparties to such distribution treated the distribution as one to which Section
\n355 of the Code is applicable, (h) no closing agreement pursuant to Section 7121
\nof the Code (or any similar provision of state, local or foreign law) has been
\nentered into by or with respect to Company or any of its subsidiaries, and no
\ntaxing authority has issued to the Company or any of its subsidiaries any ruling
\nwhich has continuing effect, (i) neither the Company nor any of its subsidiaries
\nwill be required to include amounts in income, or exclude items of deduction, in
\na taxable period beginning after the Closing Date as a result of (i) any
\nadjustments pursuant to Section 481 of the Code or any similar provision of
\nstate, local or foreign law (ii) an installment sale or open transaction arising
\nin a taxable period (or portion thereof) ending on or before the Closing Date,
\n(iii) a prepaid amount received, or paid, prior to the Closing Date, (iv)
\ndeferred gains arising prior to the Closing Date, or (v) an election pursuant to
\nSection 108(i) of the Code and (j) neither the Company nor any of its
\nsubsidiaries has engaged in any “reportable transaction” under Section 6011 of
\nthe Code and the regulations thereunder.<\/p>\n

Section 3.15 Proxy Statement<\/u>. The proxy statement to be sent to the
\nstockholders of the Company in connection with the Stockholders Meeting (such
\nproxy statement, as amended or supplemented, the “Proxy Statement<\/u>“) will
\nnot, at the date it is first mailed to the stockholders of the Company or at the
\ntime of the Stockholders Meeting, contain any untrue statement of a material
\nfact or omit to state any material fact required to be stated therein or
\nnecessary in order to make the statements therein, in light of the circumstances
\nunder which they are made, not misleading. The Proxy Statement will comply as to
\nform in all material respects with the requirements of the Exchange Act and the
\nrules and regulations promulgated thereunder. Notwithstanding the foregoing, the
\nCompany makes no representation or warranty with respect to any information
\nsupplied by Parent or Merger Sub or any of their respective representatives on
\nbehalf of Parent or Merger Sub which is contained or incorporated by reference
\nin the Proxy Statement.<\/p>\n

Section 3.16 Takeover Statutes<\/u>. Assuming the accuracy of the
\nrepresentations and warranties of Parent and Merger Sub set forth in Section
\n4.9, the Company Board has taken such action such that no “fair price,”
\n“moratorium,” “control share acquisition” or other similar anti-takeover statute
\nor regulation enacted under state laws in the United States (including Section
\n203 of the DGCL) applicable to the Company (collectively, “Anti-Takeover
\nStatute<\/u>“) is applicable to the Merger or the other transactions contemplated
\nby this Agreement.<\/p>\n

16<\/p>\n

\n

Section 3.17 Intellectual Property<\/u>. Section 3.17 of the Company
\nDisclosure Schedule sets forth a list, accurate and complete in all material
\nrespects, of all patents, registered copyrights and registered trademarks and
\nservice marks, and all pending applications with respect to any of the
\nforegoing, that are owned by the Company or any of its subsidiaries and used by
\nthe Company or any of its subsidiaries in the conduct of their respective
\nbusinesses as conducted as of the date hereof. All of such items are owned
\nsolely by the Company or any of its subsidiaries, free and clear of all Liens
\n(except in all cases for those Liens disclosed on Section 3.17 of the Company
\nDisclosure Schedule), are subsisting and unexpired, and to the knowledge of the
\nCompany, the U.S. issued patents or registrations on such schedule are valid and
\nenforceable, in each case, except as would not individually or in the aggregate,
\nhave a Material Adverse Effect. Except as would not, individually or in the
\naggregate, have a Material Adverse Effect, (a) to the knowledge of the Company,
\nthe Company or one its subsidiaries owns or has been granted a license to use
\nall Intellectual Property that the Company or any of its subsidiaries are using
\nin and which ownership and licenses are necessary to the conduct of their
\nrespective businesses as currently conducted; (b) there are no pending or, to
\nthe knowledge of the Company, threatened claims, actions or proceedings by any
\nperson alleging infringement, dilution or misappropriation by the Company or any
\nof its subsidiaries of the Intellectual Property of such person or challenging
\nthe validity, enforceability or ownership of, or the right to use, any
\nIntellectual Property owned by the Company or any of its subsidiaries; (c) the
\nconduct of the businesses of the Company and its subsidiaries as currently
\nconducted does not infringe, dilute or misappropriate any Intellectual Property
\nof any person; (d) to the knowledge of the Company, no person is infringing or
\nmisappropriating any Intellectual Property owned by the Company or any of its
\nsubsidiaries; (e) the Company and its subsidiaries have taken reasonable steps
\nto protect the confidentiality of their trade secrets; and (f) no Intellectual
\nProperty owned by the Company or any of its subsidiaries is subject to any
\noutstanding order, judgment or decree restricting or limiting the use or
\nlicensing thereof by the Company or any of its subsidiaries.<\/p>\n

Section 3.18 Environmental Matters<\/u>.<\/p>\n

(a) Except as would not, individually or in the aggregate, have a Material
\nAdverse Effect: (i) the Company and each of its subsidiaries are in compliance
\nwith all applicable Environmental Laws, and possess and are in compliance with
\nall applicable Environmental Permits necessary to operate the business as
\npresently operated, and to the knowledge of the Company, there is no condition
\nor circumstance that would reasonably be expected to prevent or interfere with
\nsuch compliance in the future; (ii) to the knowledge of the Company, Hazardous
\nMaterials are not present, except in compliance with Environmental Law or as
\nused in the ordinary course of business, and there have been no releases or
\nthreatened releases of Hazardous Materials, at or on any location, including at
\nor on any property currently or formerly owned, leased or operated by the
\nCompany or any of its subsidiaries, except under circumstances that are not
\nreasonably likely to result in liability of the Company or any of its
\nsubsidiaries under or relating to any applicable Environmental Law; (iii)
\nneither the Company nor any of its subsidiaries has received from a Governmental
\nEntity or any other person a request for information pursuant to section 104(e)
\nof the Comprehensive Environmental Response, Compensation and Liability Act of
\n1980 or similar provision of any analogous state, local or foreign statute, or
\nany written notification alleging that it is liable for any release or
\nthreatened release of Hazardous Materials at any location, except with respect
\nto any such notification or request for information concerning any such release
\nor threatened release, to the extent such<\/p>\n

17<\/p>\n

\n

matter has been resolved with the appropriate foreign, federal, state or
\nlocal regulatory authority or otherwise; and (iv) neither the Company nor any of
\nits subsidiaries has received any written claim or complaint, or is presently
\nsubject to any lawsuit, proceeding or action, relating to noncompliance with
\nEnvironmental Laws or any other liabilities or obligations pursuant to
\nEnvironmental Laws, and to the knowledge of the Company, no such matter has been
\nthreatened in writing; and (v) neither the Company nor any of its subsidiaries
\nhas assumed, or provided against, any liability or obligation of any other
\nperson under or relating to Environmental Laws except as provided in leases for
\nreal property.<\/p>\n

(b) Notwithstanding any other representations and warranties in this
\nAgreement, the representations and warranties in Section 3.5 and this Section
\n3.18 are the only representations and warranties in this Agreement with respect
\nto Environmental Laws or Hazardous Materials.<\/p>\n

(c) For purposes of this Agreement, the following terms shall have the
\nmeanings assigned below:<\/p>\n

(i) “Environmental Laws<\/u>” shall mean all foreign, federal, state, or
\nlocal statutes, regulations, ordinances, codes, or decrees relating to the
\nprotection of the environment, including ambient air, soil, surface water or
\ngroundwater, natural resources or human health or safety currently in effect.\n<\/p>\n

(ii) “Environmental Permits<\/u>” shall mean all permits, licenses,
\nregistrations, approvals, and other authorizations required under applicable
\nEnvironmental Laws.<\/p>\n

(iii) “Hazardous Materials<\/u>” shall mean any substance, waste or
\nmaterial defined or regulated as hazardous, acutely hazardous or toxic or that
\ncould reasonably be expected to result in liability under any applicable or
\nrelevant Environmental Law currently in effect, including petroleum, petroleum
\nproducts, pesticides, dioxin, polychlorinated biphenyls, asbestos and asbestos
\ncontaining materials.<\/p>\n

Section 3.19 Contracts<\/u>.<\/p>\n

(a) Except as set forth in Section 3.19(a) of the Company Disclosure
\nSchedule, as of the date hereof, neither the Company nor any of its subsidiaries
\nis a party to or bound by any Contract (whether written or oral) (i) that is a
\nmaterial contract (as defined in Item 601(b)(10) of Regulation S-K of the SEC),
\n(ii) that is a material contract relating to material Intellectual Property,
\nother than non-exclusive, off-the-shelf software licenses; (iii) that provides
\nfor borrowings in excess of $20 million; (iv) that contains provisions that
\nprohibit the Company or any of its subsidiaries from competing in any line of
\nbusiness, which provisions would, after the Effective Time, in addition to
\napplying to the Company and its subsidiaries, also purport to apply to the
\nParent and its affiliates (other than the Surviving Corporation and its
\nsubsidiaries) or (v) that prohibits the payment of dividends or distributions in
\nrespect of the capital stock of the Company or any of its subsidiaries,
\nprohibits the pledging of the capital stock of the Company or any subsidiary of
\nthe Company or prohibits the issuance of guarantees by the Company or any
\nsubsidiary of the Company. Each Contract of the type described in this Section
\n3.19(a), whether or not set forth in Section 3.19(a) of the Company Disclosure
\nSchedule, is referred to herein as a<\/p>\n

18<\/p>\n

\n

“Material Contract<\/u>.” The Company has made available to Parent true and
\ncorrect copies of all Material Contracts.<\/p>\n

(b) Except as would not, individually or in the aggregate, have a Material
\nAdverse Effect, (i) each Material Contract and Contract relating to Leased Real
\nProperty listed on Schedule 3.19(b)(i) (such Leased Real Property,
\n“Scheduled Leased Real Property<\/u>“) is valid and binding on the Company or
\none of its subsidiaries and in full force and effect (except to the extent that
\nany Material Contract or Contract relating to Scheduled Leased Real Property
\nexpires in accordance with its terms), (ii) the Company and each of its
\nsubsidiaries has performed all obligations required to be performed by it to
\ndate under each Material Contract and Contract relating to Scheduled Leased Real
\nProperty, (iii) no event or condition exists which constitutes, or after notice
\nor lapse of time or both would constitute, a default on the part of the Company
\nor any of its subsidiaries under any Material Contract or Contract relating to
\nScheduled Leased Real Property and (iv) no other party to such Material Contract
\nor Contract relating to Scheduled Leased Real Property is, to the knowledge of
\nthe Company, in default in any respect thereunder.<\/p>\n

Section 3.20 Affiliate Transactions<\/u>. Except for director and
\nemployment related Material Contracts filed or incorporated by reference as an
\nexhibit to a form, report or other document filed by the Company with the SEC
\nprior to the date hereof, as of the date hereof no executive officer or director
\nof the Company or any of its subsidiaries or any person that beneficially owns
\n5% of the Shares is a party to any Material Contract with or binding upon the
\nCompany or any of its subsidiaries or any of their respective properties or
\nassets that is material to the Company and its subsidiaries, taken as a whole,
\nor has any material interest in any material property owned by the Company or
\nany of its subsidiaries.<\/p>\n

Section 3.21 Opinions of Financial Advisors<\/u>. Barclays Capital Inc. and
\nPerella Weinberg Partners LP (the “Financial Advisors<\/u>“) have delivered to
\nthe Company Board their written opinions (or oral opinions to be confirmed in
\nwriting), dated as of the date of this Agreement, to the effect that, as of such
\ndate, the Merger Consideration to be received by the holders of the Shares in
\nthe Merger is fair, from a financial point of view, to such holders, a signed
\ncopy of which opinions have been or will be provided to Parent. It is agreed and
\nunderstood that such opinions are for the benefit of the Company153s Board of
\nDirectors and may not be relied on by Parent or Merger Sub.<\/p>\n

Section 3.22 Brokers<\/u>. No broker, finder or investment banker (other
\nthan the Financial Advisors) is entitled to any brokerage, finder153s or other fee
\nor commission in connection with the transactions contemplated by this Agreement
\nbased upon arrangements made by or on behalf of the Company or any of its
\nsubsidiaries. The Company has furnished to Parent a true and complete copy of
\nany Contract between the Company and the Financial Advisors, pursuant to which
\nthe Financial Advisors could be entitled to any payment from or any right of
\nfirst offer or similar right with respect to the Company relating to the
\ntransactions contemplated hereby.<\/p>\n

Section 3.23 No Other Representations or Warranties<\/u>. Except for the
\nrepresentations and warranties contained in this Article III, each of Parent and
\nMerger Sub acknowledges that neither the Company nor any other person on behalf
\nof the Company makes any other express or implied representation or warranty
\nwith respect to the Company or any of its subsidiaries with respect to any other
\ninformation provided to Parent or Merger Sub in connection with the<\/p>\n

19<\/p>\n

\n

transactions contemplated by this Agreement. Neither the Company nor any
\nother person will have or be subject to any liability to Parent, Merger Sub or
\nany other person resulting from the distribution to Parent or Merger Sub, or
\nParent153s or Merger Sub153s use of, any such information, including any
\ninformation, documents, projections, forecasts or other material made available
\nto Parent or Merger Sub in certain “data rooms” or management presentations in
\nexpectation of the transactions contemplated by this Agreement.<\/p>\n

ARTICLE IV<\/p>\n

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB<\/p>\n

Parent and Merger Sub hereby, jointly and severally, represent and warrant to
\nthe Company that:<\/p>\n

Section 4.1 Organization<\/u>.<\/p>\n

(a) Each of Parent and Merger Sub (i) is a corporation duly organized,
\nvalidly existing and in good standing under the laws of the jurisdiction in
\nwhich it is incorporated and (ii) has the requisite corporate power and
\nauthority to own, operate and lease its properties and to carry on its business
\nas it is now being conducted, except where the failure to have such power or
\nauthority would not, individually or in the aggregate, have a Parent Material
\nAdverse Effect. For purposes of this Agreement a “Parent Material Adverse
\nEffect<\/u>” means any event, change, occurrence or effect that would prevent,
\nmaterially delay or materially impede the performance by Parent or Merger Sub of
\nits obligations under this Agreement or the consummation of the transactions
\ncontemplated by this Agreement. The organizational or governing documents of
\nParent and Merger Sub, as previously provided to the Company, are in full force
\nand effect.<\/p>\n

(b) Parent owns beneficially and of record all of the outstanding capital
\nstock of Merger Sub free and clear of all Liens.<\/p>\n

Section 4.2 Authority<\/u>. Each of Parent and Merger Sub has all necessary
\ncorporate power and authority to execute and deliver this Agreement, to perform
\nits obligations hereunder and to consummate the transactions contemplated
\nhereby. The execution, delivery and performance of this Agreement by each of
\nParent and Merger Sub and the consummation by each of Parent and Merger Sub of
\nthe transactions contemplated hereby have been duly and validly authorized by
\nall necessary corporate action by the boards of directors of Parent and Merger
\nSub and, immediately following execution of this Agreement, will be duly and
\nvalidly authorized by all necessary actions by Parent as the sole stockholder of
\nMerger Sub, and no other corporate proceedings on the part of Parent or Merger
\nSub are necessary to authorize this Agreement, to perform their respective
\nobligations hereunder, or to consummate the transactions contemplated hereby
\n(other than the filing with the Secretary of State of the State of Delaware of
\nthe Certificate of Merger as required by the DGCL). This Agreement has been duly
\nand validly executed and delivered by Parent and Merger Sub and, assuming due
\nauthorization, execution and delivery hereof by the Company, constitutes a
\nlegal, valid and binding obligation of each of Parent and Merger Sub enforceable
\nagainst each of Parent and Merger Sub in accordance with its terms, subject to
\nthe effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
\nmoratorium and other similar laws relating to or affecting creditors153 rights
\ngenerally, or general equitable principles (whether considered in a proceeding
\nin equity or at law).<\/p>\n

20<\/p>\n

\n

Section 4.3 No Conflict; Required Filings and Consents<\/u>.<\/p>\n

(a) The execution, delivery and performance of this Agreement by Parent and
\nMerger Sub, do not and will not (i) conflict with or violate the respective
\ncertificate of incorporation or bylaws (or similar organizational documents) of
\nParent or Merger Sub, (ii) assuming that all consents, approvals and
\nauthorizations contemplated by clauses (i) through (iii) of subsection (b) below
\nhave been obtained, and all filings described in such clauses have been made,
\nconflict with or violate any law, rule, regulation, order, judgment or decree
\napplicable to Parent or Merger Sub or by which either of them or any of their
\nrespective properties are bound or (iii) result in any breach or violation of or
\nconstitute a default (or an event which with notice or lapse of time or both
\nwould become a default) or result in the loss of a benefit under, or give rise
\nto any right of termination, cancellation, amendment or acceleration of, any
\nContracts to which Parent or Merger Sub is a party or by which Parent or Merger
\nSub or any of their respective properties are bound or result in the creation of
\nany Liens on Parent or Merger Sub or any of their properties or assets, except,
\nin the case of clauses (ii) and (iii), for any such conflict, violation, breach,
\ndefault, acceleration, loss, right or other occurrence which would not,
\nindividually or in the aggregate, have a Parent Material Adverse Effect.<\/p>\n

(b) The execution, delivery and performance of this Agreement by each of
\nParent and Merger Sub and the consummation of the transactions contemplated
\nhereby by each of Parent and Merger Sub do not and will not require any consent,
\napproval, authorization or permit of, action by, filing with or notification to,
\nany Governmental Entity, except for (i) the applicable requirements, if any, of
\nthe Exchange Act and the rules and regulations promulgated thereunder, and state
\nsecurities, takeover and “blue sky” laws, (ii) the filing of a premerger
\nnotification and report form by Parent and Merger Sub under the HSR Act and the
\nfilings and receipt, termination or expiration, as applicable, of such other
\napprovals or waiting periods as may be required under any Foreign Merger Control
\nLaw, (iii) the filing with the Secretary of State of the State of Delaware of
\nthe Certificate of Merger as required by the DGCL and (iv) any such consent,
\napproval, authorization, permit, action, filing or notification the failure of
\nwhich to make or obtain would not, individually or in the aggregate, have a
\nParent Material Adverse Effect.<\/p>\n

Section 4.4 Absence of Litigation<\/u>. As of the date of this Agreement,
\nthere are no suits, claims, actions, proceedings, arbitrations, mediations or
\ninvestigations pending or, to the knowledge of Parent, threatened against Parent
\nor any of its subsidiaries, other than any such suit, claim, action, proceeding
\nor investigation that would not, individually or in the aggregate, have a Parent
\nMaterial Adverse Effect. As of the date of this Agreement, neither Parent nor
\nany of its subsidiaries nor any of their respective properties is or are subject
\nto any order, writ, judgment, injunction, decree or award that would,
\nindividually or in the aggregate, have a Parent Material Adverse Effect.<\/p>\n

Section 4.5 Proxy Statement<\/u>. None of the information supplied or to be
\nsupplied by Parent or Merger Sub for inclusion or incorporation by reference in
\nthe Proxy Statement will, at the date it is first mailed to the stockholders of
\nthe Company and at the time of the Stockholders Meeting, contain any untrue
\nstatement of a material fact or omit to state any material fact required to be
\nstated therein or necessary in order to make the statements therein, in light of
\nthe circumstances under which they are made, not misleading.<\/p>\n

21<\/p>\n

\n

Section 4.6 Brokers<\/u>. No broker, finder or investment banker will be
\nentitled to any brokerage, finder153s or other fee or commission from the Company
\nprior to the Closing in connection with the transactions contemplated by this
\nAgreement based upon arrangements made by or on behalf of Parent or Merger Sub.\n<\/p>\n

Section 4.7 Financing<\/u>. Parent has delivered to the Company true,
\ncomplete and correct copies of executed commitment letters from JPMorgan Chase
\nBank, N.A., J.P. Morgan Securities LLC, Barclays Capital, the investment banking
\ndivision of Barclays Bank PLC, Morgan Stanley Senior Funding, Inc., Bank of
\nAmerica, N.A., Merrill Lynch, Pierce, Fenner & Smith Incorporated, KKR
\nCorporate Lending LLC and KKR Capital Markets LLC (collectively, the “Debt
\nFinancing Commitments<\/u>“), pursuant to which the lenders party thereto have
\ncommitted, subject to the terms and conditions set forth therein, to lend the
\namounts set forth therein for the purposes of financing the transactions
\ncontemplated by this Agreement and related fees and expenses and the refinancing
\nof certain outstanding indebtedness of the Company (the “Debt
\nFinancing<\/u>“). Parent has delivered to the Company true, complete and correct
\ncopies of the executed commitment letters (collectively, the “Equity
\nFinancing Commitments<\/u>” and together with the Debt Financing Commitments, the
\n“Financing Commitments<\/u>“), pursuant to which the investor parties thereto
\nhave committed, subject to the terms and conditions set forth therein, to invest
\nin Parent the cash amounts set forth therein (the “Equity Financing<\/u>” and
\ntogether with the Debt Financing, the “Financing<\/u>“). None of the Financing
\nCommitments has been amended or modified prior to the date of this Agreement, as
\nof the date of this Agreement no such amendment or modification is contemplated,
\nand as of the date of this Agreement the respective commitments contained in the
\nFinancing Commitments have not been withdrawn or rescinded in any respect.
\nExcept for fee letters (complete copies of which have been provided to the
\nCompany, with only fee amounts and market flex provisions and other customary
\nthreshold amounts redacted; provided, that Parent represents and warrants that
\nthe market flex provisions in such fee letters do not permit the imposition of
\nany new conditions (or the expansion of any existing conditions) with respect to
\nthe Debt Financing or any reduction in the amount of the Debt Financing) and
\nengagement letters with respect to the Debt Financing, as of the date hereof
\nthere are no side letters or Contracts to which Parent or Merger Sub is a party
\nrelated to the funding or investing, as applicable, of the Financing that could
\nadversely affect the availability of the Financing other than as expressly set
\nforth in the Financing Commitments delivered to the Company prior to the date
\nhereof. Parent has fully paid any and all commitment fees or other fees in
\nconnection with the Financing Commitments that are payable on or prior to the
\ndate hereof, and as of the date hereof the Financing Commitments are in full
\nforce and effect and are the legal, valid, binding and enforceable obligations
\nof Parent and Merger Sub, as the case may be, and, to the knowledge of Parent
\nand Merger Sub, each of the other parties thereto. There are no conditions
\nprecedent or other contingencies related to the funding of the full amount of
\nthe Financing, other than as expressly set forth in the Financing Commitments.
\nAs of the date hereof, subject to the accuracy of the representations and
\nwarranties of the Company set forth in Article III, no event has occurred which,
\nwith or without notice, lapse of time or both, would or would reasonably be
\nexpected to constitute a default or breach on the part of Parent or Merger Sub
\nor, to the knowledge of Parent or Merger Sub, any other party thereto under any
\nof the Financing Commitments. As of the date hereof, subject to the accuracy of
\nthe representations and warranties of the Company set forth in Article III,
\nParent has no reason to believe that any of the conditions to the Financing
\ncontemplated by the Financing Commitments applicable to it will not be
\nsatisfied. Assuming the Financing is funded<\/p>\n

22<\/p>\n

\n

in accordance with the Financing Commitments, Parent and Merger Sub will have
\nat and after the Closing funds sufficient to (i) pay the Merger Consideration,
\n(ii) pay any and all fees and expenses required to be paid by Parent, Merger Sub
\nand the Surviving Corporation in connection with the Merger and the Financing,
\n(iii) pay for any refinancing of any outstanding indebtedness of the Company
\ncontemplated by this Agreement or the Financing Commitments and (iv) satisfy all
\nof the other payment obligations of Parent, Merger Sub and the Surviving
\nCorporation contemplated hereunder.<\/p>\n

Section 4.8 Operations of Parent and Merger Sub<\/u>. Each of Parent and
\nMerger Sub has been formed solely for the purpose of engaging in the
\ntransactions contemplated hereby and prior to the Effective Time will have
\nengaged in no other business activities and will have incurred no liabilities or
\nobligations other than as contemplated herein. The authorized capital stock of
\nMerger Sub consists of 1,000 shares of common stock, par value $0.01 per share,
\nof which 10 shares are validly issued and outstanding. All of the issued and
\noutstanding capital stock of Merger Sub is, and at the Effective Time will be,
\nowned by Parent.<\/p>\n

Section 4.9 Ownership of Shares<\/u>. Neither Parent nor Merger Sub
\nbeneficially owns any Shares and neither Parent nor Merger Sub holds any rights
\nto acquire or vote any Shares except pursuant to this Agreement. Neither Parent
\nnor Merger Sub is, and at no time during the last three years has been, an
\n“interested stockholder” of the Company, as such quoted terms are defined in
\nSection 203 of the DGCL.<\/p>\n

Section 4.10 Vote\/Approval Required<\/u>. No vote or consent of the holders
\nof any class or series of capital stock of Parent is necessary to adopt this
\nAgreement or the Merger or the transactions contemplated hereby. The vote or
\nconsent of Parent as the sole stockholder of Merger Sub (which shall have
\noccurred immediately following execution of the Agreement) is the only vote or
\nconsent of the holders of any class or series of capital stock of Merger Sub
\nnecessary to adopt this Agreement or the Merger or the transactions contemplated
\nhereby.<\/p>\n

Section 4.11 Solvency<\/u>. Assuming (i) satisfaction of the conditions to
\nParent153s obligation to consummate the Merger, or waiver of such conditions, (ii)
\nthe accuracy of the representations and warranties of the Company set forth in
\nArticle III hereof (for such purposes, such representations and warranties shall
\nbe true and correct in all material respects without giving effect to any
\nknowledge, materiality or “Material Adverse Effect” qualification or
\nexpectation) and (iii) any estimates, projections or forecasts of the Company
\nand its subsidiaries have been prepared in good faith based upon assumptions
\nthat were and continue to be reasonable, and after giving effect to the
\ntransactions contemplated by this Agreement, including the Financing, any
\nalternative financing and the payment of the Merger Consideration, any other
\nrepayment or refinancing of debt contemplated in this Agreement or the Financing
\nCommitments, payment of all amounts required to be paid in connection with the
\nconsummation of the transactions contemplated hereby, and payment of all related
\nfees and expenses, the Surviving Corporation will be Solvent as of the Effective
\nTime and immediately after the consummation of the transactions contemplated
\nhereby. For the purposes of this Agreement, the term “Solvent<\/u>” when used
\nwith respect to any person, means that, as of any date of determination, (a) the
\namount of the “fair saleable value” of the assets of such person will, as of
\nsuch date, exceed the sum of (i) the value of all “liabilities of such person,
\nincluding contingent and other liabilities,” as of such date, as such quoted
\nterms are generally determined in<\/p>\n

23<\/p>\n

\n

accordance with applicable laws governing determinations of the insolvency of
\ndebtors, and (ii) the amount that will be required to pay the probable
\nliabilities of such person, as of such date, on its existing debts (including
\ncontingent and other liabilities) as such debts become absolute and mature, (b)
\nsuch person will not have, as of such date, an unreasonably small amount of
\ncapital for the operation of the businesses in which it is engaged or proposed
\nto be engaged following such date, and (c) such person will be able to pay its
\nliabilities, as of such date, including contingent and other liabilities, as
\nthey mature. For purposes of this definition, “not have an unreasonably small
\namount of capital for the operation of the businesses in which it is engaged or
\nproposed to be engaged” and “able to pay its liabilities, as of such date,
\nincluding contingent and other liabilities, as they mature” means that such
\nperson will be able to generate enough cash from operations, asset dispositions
\nor refinancing, or a combination thereof, to meet its obligations as they become
\ndue.<\/p>\n

Section 4.12 Guarantee<\/u>. Concurrently with the execution of this
\nAgreement, the Guarantors have delivered to the Company the duly executed
\nGuarantees. As of the date hereof, the Guarantees are in full force and effect
\nand are valid, binding and enforceable obligations of the Guarantors. As of the
\ndate hereof, no event has occurred, which, with or without notice, lapse of time
\nor both, would constitute a default on the part of the Guarantors under the
\nGuarantees.<\/p>\n

Section 4.13 Absence of Certain Agreements<\/u>. As of the date hereof,
\nneither Parent nor any of its affiliates has entered into any agreement,
\narrangement or understanding (in each case, whether oral or written), or
\nauthorized, committed or agreed to enter into any agreement, arrangement or
\nunderstanding (in each case, whether oral or written), pursuant to which: (i)
\nany stockholder of the Company would be entitled to receive consideration of a
\ndifferent amount or nature than the Merger Consideration or pursuant to which
\nany stockholder of the Company agrees to vote to adopt this Agreement or agrees
\nto vote against any Superior Proposal; or (ii) any current employee of the
\nCompany has agreed to (x) remain as an employee of the Company or any of its
\nsubsidiaries following the Effective Time at compensation levels in excess of
\nlevels currently in effect (other than pursuant to any employment Contracts with
\nthe Company and its subsidiaries in effect as of the date hereof), (y)
\ncontribute or roll-over any portion of such employee153s Shares, Company Stock
\nOptions, or other equity awards to the Company or its subsidiaries or Parent or
\nany of its affiliates or (z) receive any capital stock or equity securities of
\nthe Company or any of its subsidiaries or Parent or any of its affiliates.<\/p>\n

Section 4.14 Interests in Competitors<\/u>. As of the date hereof, neither
\nParent nor Merger Sub owns any interest(s) in any entity or person that derives
\na substantial portion of its revenues from a line of business within the
\nCompany153s principal lines of business.<\/p>\n

Section 4.15 No Other Representations or Warranties<\/u>. Except for the
\nrepresentations and warranties contained in this Article IV, the Company
\nacknowledges that none of Parent, Merger Sub or any other person on behalf of
\nParent or Merger Sub makes any other express or implied representation or
\nwarranty with respect to Parent or Merger Sub or with respect to any other
\ninformation provided to the Company.<\/p>\n

24<\/p>\n

\n

ARTICLE V<\/p>\n

CONDUCT OF BUSINESS PENDING THE MERGER<\/p>\n

Section 5.1 Conduct of Business of the Company Pending the Merger<\/u>. The
\nCompany covenants and agrees that, during the period from the date hereof until
\nthe Effective Time, except as expressly permitted by this Agreement, as set
\nforth in Section 5.1 of the Company Disclosure Schedule or as required by law or
\nregulation, or unless Parent shall otherwise consent in writing (which consent
\nshall not be unreasonably withheld or delayed), the business of the Company and
\nits subsidiaries shall be conducted in their ordinary course of business and the
\nCompany shall use its commercially reasonable efforts to preserve substantially
\nintact its business organization, and to preserve in all material respects its
\npresent relationships with customers, suppliers and other persons with which it
\nhas material business relations; provided<\/u>, however<\/u>, that no action
\nby the Company or its subsidiaries with respect to matters specifically
\naddressed by clauses (a)-(p) below shall be deemed a breach of this Section 5.1
\nunless such action constitutes a breach of such clauses (a)-(p). Between the
\ndate of this Agreement and the Effective Time, except as otherwise expressly
\npermitted by this Agreement, as set forth in Section 5.1 of the Company
\nDisclosure Schedule or as required by law or regulation, neither the Company nor
\nany of its subsidiaries shall without the prior written consent of Parent (which
\nconsent shall not be unreasonably withheld or delayed):<\/p>\n

(a) amend or otherwise change its certificate of incorporation or bylaws or
\nany similar governing instruments;<\/p>\n

(b) issue, deliver, sell, pledge, dispose of or encumber any shares of
\ncapital stock, ownership interests or voting securities, or any options,
\nwarrants, convertible securities or other rights of any kind to acquire or
\nreceive any shares of capital stock, any other ownership interests or any voting
\nsecurities (including but not limited to stock options, stock appreciation
\nrights, phantom stock, restricted stock units, Deferred Equity Units,
\nperformance shares or other similar instruments), of the Company or any of its
\nsubsidiaries (except for (i) the issuance of Shares upon the exercise of Company
\nStock Options, in accordance with the terms of any Company Plan, (ii) the
\nissuance of Shares upon the settlement of PSUs, PARS, RSUs or Deferred Equity
\nUnits (and dividend equivalents thereon, if applicable) in accordance with the
\nterms of such instruments or (iii) the issuance of shares by a wholly-owned
\nsubsidiary of the Company to the Company or another wholly-owned subsidiary of
\nthe Company);<\/p>\n

(c) declare, set aside, make or pay any dividend or other distribution,
\npayable in cash, stock, property or otherwise, with respect to any of its
\ncapital stock or other equity interests (except for (i) ordinary quarterly cash
\ndividends in an amount not to exceed $0.09 per Share with record dates
\nconsistent with the record dates for comparable quarterly periods of 2010;
\nprovided<\/u> that no quarterly dividend will be declared with respect to the
\nquarter in which the Effective Time occurs unless the Effective Time is after
\nthe record date for such quarter and (ii) any dividend or distribution by a
\nwholly-owned subsidiary of the Company to the Company or a wholly-owned
\nsubsidiary of the Company);<\/p>\n

(d) reclassify, combine, split, subdivide, redeem, purchase or otherwise
\nacquire any shares of capital stock of the Company (other than the acquisition
\nof Shares tendered by employees or former employees in connection with a
\ncashless exercise of Company Stock<\/p>\n

25<\/p>\n

\n

Options or in order to pay Taxes in connection with the vesting, settlement
\nor exercise of any grants (including Company Stock Options, PSUs, PARS, RSUs and
\nDeferred Equity Units) pursuant to the terms of a Company Plan or a Company
\nStock Plan), or reclassify, combine, split or subdivide any capital stock or
\nother ownership interests of any of the Company153s subsidiaries;<\/p>\n

(e) (i) acquire (whether by merger, consolidation or acquisition of stock or
\nassets or otherwise) any corporation, partnership or other business organization
\nor division thereof or any assets, in each case, other than (x) purchases of
\ninventory and other assets in the ordinary course of business or pursuant to
\nexisting Contracts which have been made available to Parent prior to the date
\nhereof or (y) acquisitions not exceeding $10,000,000, individually, or
\n$20,000,000, in the aggregate or (ii) sell or otherwise dispose of (whether by
\nmerger, consolidation or acquisition of stock or assets or otherwise) any
\ncorporation, partnership or other business organization or division thereof or
\nany assets or properties having a current value in excess of $10,000,000 in the
\naggregate, in each case, other than sales or dispositions of inventory in the
\nordinary course of business or of other assets pursuant to existing Contracts
\nwhich have been made available to Parent prior to the date hereof;<\/p>\n

(f) other than in the ordinary course of business, enter into or amend on
\nterms materially adverse to the Company and its subsidiaries, taken as a whole,
\nfail to renew, cancel or terminate any Material Contract or Contract which if
\nentered into prior to the date hereof would be a Material Contract;<\/p>\n

(g) make or authorize any new capital expenditures that are in the aggregate
\nin excess of the Company153s capital expenditure budget set forth in Section 5.1
\nof the Company Disclosure Schedule;<\/p>\n

(h) grant any material licenses of Intellectual Property to any person except
\nnon-exclusive licenses in the ordinary course of business;<\/p>\n

(i) incur or modify in any material respect the terms of any indebtedness for
\nborrowed money, or assume, guarantee or endorse, or otherwise as an
\naccommodation become responsible for, the obligations of any person, or make any
\nloans, advances or capital contributions to, or investments in, any other person
\n(other than a wholly-owned subsidiary of the Company or acquisitions permitted
\nby clause (e)(i) above), in each case, other than (A) in the ordinary course of
\nbusiness (including any borrowings under the Company153s existing credit facility
\nand in respect of letters of credit) and (B) in an amount not to exceed
\n$10,000,000;<\/p>\n

(j) except as contemplated by Sections 2.2(e) or 6.6 or except pursuant to
\nany Company Plan or as required by applicable law, (i) increase the compensation
\nor benefits of any of its present or former directors, officers or employees,
\nexcept as previously contemplated under current open enrollment arrangements for
\nCompany Plans that are health benefit plans or for employees of the Company
\nbelow Director Level III who are promoted in the ordinary course of business
\nconsistent with recent past practice of the Company, (ii) grant any severance or
\ntermination pay to any present or former director, officer or employee not
\nrequired to be granted under any Company Plan, or any retention pay (other than
\ncash retention benefits not to exceed $2,000,000 in the aggregate payable to
\nactive employees other than officers of the Company, (iii) enter into any
\nemployment, consulting or severance agreement or arrangement with any of<\/p>\n

26<\/p>\n

\n

its present or prospective directors, officers, other employees or individual
\nindependent contractors, except for (A) offers of employment to prospective
\nemployees (other than a person who would become an employee at Director Level
\nIII or above) to be hired to fill a vacant position and (B) agreements with
\nindividual independent contractors, in each case at an annual rate of cash
\ncompensation not to exceed $150,000 on an individual basis, in the ordinary
\ncourse of business consistent with the recent past practices of the Company,
\n(iv) loan or advance any money or other property to any present or former
\ndirector, officer or employee, (v) increase the funding obligation or
\ncontribution rate of any Company Plan or (vi) establish, adopt, enter into,
\namend individually or in the aggregate in any material respect or terminate any
\nCompany Plan, excluding the adjustment of the applicable performance targets as
\nnecessary for the purposes of calculating performance-based cash bonus awards
\npayable under the Company Annual Incentive Plan (as identified in Section
\n3.10(a), Item 4 a. of the Company Disclosure Schedule (the “AIP<\/u>“)) as if
\nthe transactions contemplated by this Agreement had not occurred during the
\nCompany153s 2011 fiscal year;<\/p>\n

(k) make any material change in any accounting principles or methods, except
\nas may be required by changes in statutory or regulatory accounting rules or
\nGAAP or regulatory requirements with respect thereto;<\/p>\n

(l) other than in the ordinary course of business or as required by
\napplicable law, (i) make any material Tax election, (ii) enter into any material
\nsettlement or compromise of any material Tax liability, (iii) file any amended
\nTax Return with respect to any material Tax, (iv) change any method of Tax
\naccounting or Tax accounting period, (v) enter into any closing agreement
\nrelating to any material Tax or (vi) surrender any right to claim a material Tax
\nrefund;<\/p>\n

(m) settle or compromise any litigation other than settlements or compromises
\nof litigation where the amount paid (less the amount reserved for such matters
\nby the Company) in settlement or compromise, in each case, does not exceed the
\namount set forth in Section 5.1(m) of the Company Disclosure Schedule and which
\ndo not impose any material restrictions on the operations or businesses of the
\nCompany and its subsidiaries, taken as a whole;<\/p>\n

(n) except for this Agreement, adopt a plan of complete or partial
\nliquidation, dissolution, merger, consolidation, restructuring, recapitalization
\nor other reorganization of such entity (other than among wholly-owned
\nsubsidiaries of the Company);<\/p>\n

(o) effectuate a “plant closing” or “mass layoff” as those terms are defined
\nin the Worker Adjustment and Retraining Notification Act of 1988 (together with
\nany similar state or local law, “WARN<\/u>“) affecting in whole or in part any
\nsite of employment, facility, operating unit or Company Employee, without
\ncomplying with all provisions of WARN; or<\/p>\n

(p) authorize or agree to take any of the actions described in Sections
\n5.1(a)-(o).<\/p>\n

Section 5.2 Conduct of Business of Parent and Merger Sub Pending the
\nMerger<\/u>. Each of Parent and Merger Sub agrees that, between the date of this
\nAgreement and the Effective Time, it shall not, directly or indirectly, take any
\naction that would, individually or in the aggregate, have a Parent Material
\nAdverse Effect.<\/p>\n

27<\/p>\n

\n

Section 5.3 No Control of Other Party153s Business<\/u>. Nothing contained in
\nthis Agreement shall give Parent, directly or indirectly, the right to control
\nor direct the Company153s or its subsidiaries153 operations prior to the Effective
\nTime, and nothing contained in this Agreement shall give the Company, directly
\nor indirectly, the right to control or direct Parent153s or its subsidiaries153
\noperations prior to the Effective Time. Prior to the Effective Time, each of the
\nCompany and Parent shall exercise, consistent with the terms and conditions of
\nthis Agreement, complete control and supervision over its and its subsidiaries153
\nrespective operations.<\/p>\n

ARTICLE VI<\/p>\n

ADDITIONAL AGREEMENTS<\/p>\n

Section 6.1 Proxy Statement<\/u>. As soon as reasonably practicable
\nfollowing the date of this Agreement, the Company shall, with the assistance of
\nParent, prepare and file the Proxy Statement with the SEC. Parent, Merger Sub
\nand the Company will cooperate with each other in the preparation of the Proxy
\nStatement. Without limiting the generality of the foregoing, each of Parent and
\nMerger Sub will furnish to the Company the information relating to it required
\nby the Exchange Act and the rules and regulations promulgated thereunder to be
\nset forth in the Proxy Statement. The Company shall use its reasonable best
\nefforts to resolve all SEC comments with respect to the Proxy Statement as
\npromptly as reasonably practicable after receipt thereof and to have the Proxy
\nStatement cleared by the staff of the SEC as promptly as reasonably practicable
\nafter such filing. Each of Parent, Merger Sub and the Company agrees to correct
\nany information provided by it for use in the Proxy Statement which shall have
\nbecome false or misleading. The Company shall as soon as reasonably practicable
\nnotify Parent and Merger Sub of the receipt of any comments from the SEC with
\nrespect to the Proxy Statement and any request by the SEC for any amendment to
\nthe Proxy Statement or for additional information and shall provide Parent with
\ncopies of all such comments and correspondence. Prior to filing or mailing the
\nProxy Statement (or any amendment or supplement thereto) or responding to any
\ncomments of the SEC (or the staff of the SEC) with respect thereto, the Company
\nshall provide Parent a reasonable opportunity to review and to propose comments
\non such document or response.<\/p>\n

Section 6.2 Stockholders Meeting<\/u>.<\/p>\n

(a) The Company, acting through the Company Board (or a committee thereof),
\nshall (i) as soon as reasonably practicable following confirmation by the SEC
\nthat it has no further comments on the Proxy Statement take all action necessary
\nto set a record date for, duly call, give notice of, convene and hold a meeting
\nof its stockholders for the purpose of adopting this Agreement (the
\n“Stockholders Meeting<\/u>“) and (ii) subject to Section 6.5(c), include in
\nthe Proxy Statement the Company Recommendation and, use its reasonable best
\nefforts to obtain the Company Requisite Vote. Notwithstanding anything to the
\ncontrary in this Agreement, the Company shall not be required to call, give
\nnotice of or convene the Stockholders Meeting or mail the Proxy Statement, in
\neach case prior to the No-Shop Period Start Date; provided<\/u>, that the
\nCompany shall cause the Proxy Statement to be mailed to the holders of Shares as
\nof the record date established for the Stockholders Meeting as promptly as
\nreasonably practicable after the later of (i) the date on which the SEC (or the
\nstaff of the SEC) confirms that it has no further comments on the Proxy
\nStatement and (ii) the No-Shop Period Start Date.<\/p>\n

28<\/p>\n

\n

(b) Notwithstanding anything to the contrary contained in this Agreement, the
\nCompany shall not be required to hold the Stockholders Meeting if this Agreement
\nis terminated.<\/p>\n

Section 6.3 Access to Information<\/u>. From the date of this Agreement to
\nthe Effective Time or the earlier termination of this Agreement, upon reasonable
\nprior written notice, the Company shall, and shall use its reasonable best
\nefforts to cause its subsidiaries, officers, directors and representatives to,
\nafford the officers, employees, and representatives, including financing sources
\n(provided, however, that financing sources may only be provided with material
\nnon-public information subject to customary confidentiality undertakings), of
\nParent reasonable access during normal business hours, consistent with
\napplicable law, to its officers, properties, offices, and other facilities and
\nto all books and records as Parent, through its officers, employees or
\nrepresentatives, including financing sources, may from time to time reasonably
\nrequest (it being agreed, however, that the foregoing shall not permit Parent or
\nits officers, employees or representatives to conduct any environmental testing
\nor sampling). Notwithstanding the foregoing, any such investigation or
\nconsultation shall be conducted in such a manner as not to interfere
\nunreasonably with the business or operations of the Company or its subsidiaries
\nor otherwise result in any significant interference with the prompt and timely
\ndischarge by such employees of their normal duties. Neither the Company nor any
\nof its subsidiaries shall be required to provide access to or to disclose
\ninformation where such access or disclosure would violate or prejudice the
\nrights of its clients, jeopardize the attorney-client privilege of the Company
\nor its subsidiaries or contravene any law, rule, regulation, order, judgment,
\ndecree or binding agreement entered into prior to the date of this Agreement.
\nThe parties will make appropriate substitute arrangements under circumstances in
\nwhich the restrictions of the preceding sentence apply.<\/p>\n

Section 6.4 Confidentiality<\/u>. Each of Parent and Merger Sub will hold
\nand treat and will cause its officers and employees and will use reasonable best
\nefforts to cause its auditors and other authorized representatives to hold and
\ntreat in confidence all documents and information concerning the Company and its
\nsubsidiaries furnished to Parent or Merger Sub in connection with the
\ntransactions contemplated by this Agreement in accordance with the
\nConfidentiality Agreement, dated February 17, 2010 between the Company,
\nCenterview Capital, L.P. and Kohlberg Kravis Roberts & Co. L.P. (the
\n“KKR\/Centerview Confidentiality Agreement<\/u>“) and the Confidentiality
\nAgreement dated February 19, 2010 between the Company and Vestar Capital
\nPartners V, L.P. (together with the KKR\/Centerview Confidentiality Agreement,
\nthe “Confidentiality Agreements<\/u>“), which Confidentiality Agreements shall
\nremain in full force and effect in accordance with their respective terms.<\/p>\n

Section 6.5 Acquisition Proposals; Go-Shop<\/u>.<\/p>\n

(a) Go-Shop Period<\/u>. Notwithstanding anything to the contrary contained
\nin this Agreement, during the period beginning on the date of this Agreement and
\ncontinuing until 11:59 p.m. (Eastern time) on the 45th<\/sup> calendar day
\nafter the date of this Agreement (the “Go-Shop Period<\/u>“), the Company and
\nits subsidiaries and their respective directors, officers, employees, investment
\nbankers, attorneys, accountants and other advisors or representatives
\n(collectively, “Representatives<\/u>“) shall have the right to: (i) initiate,
\nsolicit and encourage any inquiry or the making of any proposals or offers that
\ncould constitute Acquisition Proposals, including by way of providing access to
\nnon-public information to any person pursuant to (but<\/p>\n

29<\/p>\n

\n

only pursuant to) a confidentiality agreement on customary terms not
\nmaterially more favorable to such person than those contained in the
\nKKR\/Centerview Confidentiality Agreement (it being understood that such
\nconfidentiality agreements need not prohibit the making or amendment of an
\nAcquisition Proposal) (an “Acceptable Confidentiality Agreement<\/u>“);
\nprovided<\/u> that the Company shall promptly make available to Parent and
\nMerger Sub any material non-public information concerning the Company or its
\nsubsidiaries that the Company provides to any person given such access that was
\nnot previously made available to Parent or Merger Sub, and (ii) engage or enter
\ninto, continue or otherwise participate in any discussions or negotiations with
\nany persons or groups of persons with respect to any Acquisition Proposals or
\notherwise cooperate with or assist or participate in, or facilitate any such
\ninquiries, proposals, discussions or negotiations or any effort or attempt to
\nmake any Acquisition Proposals, including through the waiver or release by the
\nCompany, at its sole discretion, of any preexisting standstill or similar
\nagreements with any persons solely to the extent necessary to permit such person
\nto make or amend an Acquisition Proposal or otherwise engage with the Company in
\ndiscussions regarding an Acquisition Proposal or a proposal that could
\nreasonably be expected to lead to an Acquisition Proposal.<\/p>\n

(b) No Solicitation or Negotiation<\/u>. Except as expressly permitted by
\nthis Section 6.5 (including Section 6.5(c)) and except as may relate to any
\nExcluded Party, the Company and its subsidiaries and their respective officers
\nand directors shall, and the Company shall use its reasonable best efforts to
\ninstruct and cause its and its subsidiaries153 other Representatives to, (i) at
\n12:00 a.m. on the 46th<\/sup> calendar day after the date of this Agreement
\n(the “No-Shop Period Start Date<\/u>“) immediately cease any discussions or
\nnegotiations with any persons that may be ongoing with respect to an Acquisition
\nProposal and (ii) from the No-Shop Period Start Date until the earlier of the
\nEffective Time or the termination of this Agreement in accordance with Article
\nVIII, not (A) initiate, solicit or knowingly encourage any inquiries or the
\nmaking of any proposal or offer that constitutes or could reasonably be expected
\nto lead to an Acquisition Proposal, (B) engage in, continue or otherwise
\nparticipate in any discussions or negotiations regarding, or provide any
\nnon-public information or data concerning the Company or its subsidiaries to any
\nperson relating to, or that could reasonably be expected to lead to any
\nAcquisition Proposal, (C) otherwise knowingly facilitate any effort or attempt
\nto make an Acquisition Proposal.<\/p>\n

(c) Conduct Following No-Shop Period Start Date<\/u>. Notwithstanding
\nanything in this Agreement to the contrary but subject to the last sentence of
\nthis Section 6.5(c), at any time following the No-Shop Period Start Date and
\nprior to the time, but not after, the Company Requisite Vote is obtained, if the
\nCompany receives a written Acquisition Proposal from any person the Company and
\nits Representatives may contact such person solely to clarify the terms and
\nconditions thereof and (i) the Company and its Representatives may provide
\nnon-public information and data concerning the Company and its subsidiaries in
\nresponse to a request therefor by such person if the Company receives from such
\nperson an executed Acceptable Confidentiality Agreement; provided<\/u> that
\nthe Company shall promptly make available to Parent and Merger Sub any material
\nnon-public information concerning the Company or its subsidiaries that the
\nCompany made available to any person given such access which was not previously
\nmade available to Parent or Merger Sub, (ii) the Company and its Representatives
\nmay engage or participate in any discussions or negotiations with such person
\nregarding such Acquisition Proposal and (iii) the Company Board or any
\nappropriate committee thereof may authorize,<\/p>\n

30<\/p>\n

\n

adopt, approve, recommend, or otherwise declare advisable or propose to
\nauthorize, adopt, approve, recommend or declare advisable (publicly or
\notherwise) such an Acquisition Proposal, if and only to the extent that, (x)
\nprior to taking any action described in clause (i) or (ii) or (iii) above, the
\nCompany Board or any committee thereof determines in good faith, after
\nconsultation with outside counsel, that failure to take such action could be
\ninconsistent with the directors153 fiduciary duties under applicable law and (y)
\nin each such case referred to in clause (i) or (ii) above, the Company Board or
\nany appropriate committee thereof has determined in good faith (after
\nconsultation with its financial advisor and outside counsel) that such
\nAcquisition Proposal (together with any other Acquisition Proposals contemplated
\nby the proviso to the definition of “Superior Proposal”, if any, with respect to
\nwhich discussions or negotiations remain active) either constitutes a Superior
\nProposal or could reasonably be expected to result in a Superior Proposal, and
\n(z) in the case referred to in clause (iii) above, the Company Board or any
\nappropriate committee thereof determines in good faith (after consultation with
\nits financial advisor and outside counsel) that such Acquisition Proposal
\n(together with any other Acquisition Proposals contemplated by the proviso to
\nthe definition of “Superior Proposal”, if any, with respect to which discussions
\nor negotiations remain active) is a Superior Proposal. For the avoidance of
\ndoubt, notwithstanding the occurrence of the No-Shop Period Start Date, the
\nCompany may continue to engage in the activities described in Section 6.5(a)
\nwith respect to any Excluded Parties, including with respect to any amended
\nproposal submitted by any Excluded Parties following the No-Shop Period Start
\nDate, and the restrictions in Section 6.5(b) shall not apply with respect
\nthereto; provided that the provisions of Section 6.5(g) and (h) shall apply.\n<\/p>\n

(d) Definitions<\/u>. For purposes of this Agreement:<\/p>\n

(i) “Acquisition Proposal<\/u>” means any bona fide inquiry, proposal or
\noffer from any person or group of persons other than Parent or one of its
\nsubsidiaries for, in one transaction or a series of related transactions, (A) a
\nmerger, reorganization, consolidation, share exchange, business combination,
\nrecapitalization, liquidation, dissolution or similar transaction involving an
\nacquisition of the Company (or any subsidiary or subsidiaries of the Company
\nwhose business constitutes 15% or more of the net revenues, net income or assets
\nof the Company and its subsidiaries, taken as a whole) or (B) the acquisition in
\nany manner, directly or indirectly, of over 15% of the equity securities or
\nconsolidated total assets of the Company and its subsidiaries, in each case
\nother than the Merger.<\/p>\n

(ii) “Excluded Party<\/u>” means any person, group of persons or group that
\nincludes any person (so long as such person and the other members of such group,
\nif any, who were members of such group immediately prior to the No-Shop Period
\nStart Date constitute at least 50% of the equity financing of such group at all
\ntimes following the No-Shop Period Start Date and prior to the termination of
\nthis Agreement) from whom the Company has received during the Go-Shop Period a
\nwritten Acquisition Proposal that the Company Board or any appropriate committee
\nthereof determines in its good faith judgment prior to the No-Shop Period Start
\nDate, after consultation with the Company153s financial advisor and outside
\ncounsel, is, or could reasonably be expected to result in, a Superior Proposal,
\neither individually or taken together with any other Acquisition Proposals
\ncontemplated by the proviso to the definition of “Superior Proposal”, if any.\n<\/p>\n

31<\/p>\n

\n

(iii) “Superior Proposal<\/u>” means an Acquisition Proposal (with the
\npercentages set forth in the definition of such term changed from 15% to 50%),
\nthat the Company Board or any appropriate committee thereof has determined in
\nits good faith judgment, after consultation with the Company153s financial advisor
\nand outside counsel (A) is reasonably likely to be consummated in accordance
\nwith its terms, taking into account all legal, financial (including the
\nfinancing terms thereof) and regulatory aspects of the proposal and the person
\nmaking the proposal, and (B) would result in a transaction more favorable to the
\nCompany153s stockholders from a financial point of view than the transaction
\ncontemplated by this Agreement (taking into account the timing of consummation
\nas compared to the transactions contemplated hereby and after giving effect to
\nall of the adjustments which may be offered by Parent and Merger Sub pursuant to
\nSection 6.5(h)); provided, however, that a Superior Proposal may consist of
\nmultiple Acquisition Proposals that, taken together, satisfy all of the
\nrequirements set forth in this definition.<\/p>\n

(e) No Change in Recommendation or Alternative Acquisition Agreement<\/u>.
\nExcept as set forth in this Section 6.5(e) or Section 8.3(a), the Company Board
\nand each committee thereof shall not:<\/p>\n

(i) withhold, withdraw, qualify or modify (or publicly propose to withhold,
\nwithdraw, qualify or modify), in a manner adverse to Parent, the Company
\nRecommendation with respect to the Merger or authorize, adopt, approve,
\nrecommend, or otherwise declare advisable (publicly or otherwise) any
\nAcquisition Proposal (it being understood that the Company Board may refrain
\nfrom taking a position with respect to an Acquisition Proposal until the close
\nof business as of the tenth (10th) Business Day after the commencement of such
\nAcquisition Proposal pursuant to Rule 14d-2 under the Exchange Act without such
\naction being considered an adverse modification); or<\/p>\n

(ii) except if it concurrently terminates this Agreement pursuant to Section
\n8.3(a), cause or permit the Company to enter into any letter of intent,
\nmemorandum of understanding, acquisition agreement, merger agreement or similar
\ndefinitive agreement (other than a confidentiality agreement referred to in
\nSection 6.5(a) or Section 6.5(c)) (an “Alternative Acquisition
\nAgreement<\/u>“) relating to any Acquisition Proposal.<\/p>\n

Notwithstanding anything to the contrary set forth in this Agreement, prior
\nto the time, but not after, the Company Requisite Vote is obtained, the Company
\nBoard or any appropriate committee thereof may (A) withhold, withdraw, qualify
\nor modify the Company Recommendation or (B) approve, recommend or otherwise
\ndeclare advisable any Acquisition Proposal or publicly propose to do the
\nforegoing (either of clauses (A) or (B), a “Change of Recommendation<\/u>“)
\nthat the Company Board or any appropriate committee thereof believes in good
\nfaith (after consultation with its financial advisor and outside counsel) is
\n(together with any other Acquisition Proposals contemplated by the proviso to
\nthe definition of “Superior Proposal”, if any, with respect to which discussions
\nor negotiations remain active) a Superior Proposal (including any Superior
\nProposal made by an Excluded Party) made after the date hereof (giving effect to
\nall of the adjustments to be offered to Parent pursuant to Section 6.5(h)), if
\nin either the case of clause (A) or (B), the Company Board or any appropriate
\ncommittee thereof determines in good faith, after consultation with outside
\ncounsel, that failure to do so<\/p>\n

32<\/p>\n

\n

could be inconsistent with its fiduciary duties under applicable law and may
\nalso take action pursuant to Section 8.3(a) subject to compliance with this
\nSection 6.5.<\/p>\n

(f) Certain Permitted Disclosure<\/u>. Nothing contained in this Section
\n6.5 shall be deemed to prohibit the Company or the Company Board or any
\ncommittee thereof from (i) complying with its disclosure obligations under U.S.
\nfederal or state law with regard to an Acquisition Proposal, including taking
\nand disclosing to its stockholders a position contemplated by Rule 14d-9 and
\nRule 14e-2(a) promulgated under the Exchange Act (or any similar communication
\nto stockholders), or (ii) making any “stop-look-and-listen” communication to the
\nstockholders of the Company pursuant to Rule 14d-9(f) promulgated under the
\nExchange Act (or any similar communications to the stockholders of the Company);
\nprovided<\/u> that the Company Board expressly publicly reaffirms the Company
\nRecommendation in such disclosure.<\/p>\n

(g) Notice<\/u>. Within three (3) Business Days following the No-Shop
\nPeriod Start Date, the Company shall notify Parent of the number of Excluded
\nParties and provide Parent with a written summary of the material terms and
\nconditions of any Acquisition Proposal received from an Excluded Party and, if
\napplicable, copies of all documents relating thereto received prior to such date
\n(which material terms and conditions do not have to include the identity of the
\nperson or group of persons making the Acquisition Proposal). From and after the
\nNo-Shop Period Start Date, the Company agrees that it will promptly (and, in any
\nevent, within two (2) Business Days) notify Parent if any proposals or offers
\nwith respect to an Acquisition Proposal are received by, any non-public
\ninformation is requested from, or any discussions or negotiations are sought to
\nbe initiated or continued with, it or any of its Representatives indicating, in
\nconnection with such notice, the material terms and conditions of any proposals
\nor offers (including, if applicable, copies of any written requests, proposals
\nor offers, including proposed agreements, redacted, if necessary, to remove the
\nidentity of the person making the proposal or offer or to comply with
\nconfidentiality obligations to such person) and thereafter shall keep Parent
\nreasonably informed of the status and terms of any such proposals or offers
\n(including any amendments thereto) and the status of any such discussions or
\nnegotiations.<\/p>\n

(h) The Company shall not be entitled to effect a Change of Recommendation or
\nto terminate this Agreement under 8.3(a) with respect to a Superior Proposal
\nunless (i) the Company has provided a written notice (a “Notice of Superior
\nProposal<\/u>“) to Parent and Merger Sub that the Company intends to take such
\naction and describing the material terms and conditions of the Superior Proposal
\nthat is the basis of such action and, if applicable, copies of all documents
\nrelating thereto (it being understood that such material terms need not include
\nthe identity of the person making such proposal), (ii) during the three (3)
\nBusiness Day period following Parent153s and Merger Sub153s receipt of the Notice of
\nSuperior Proposal, the Company shall, and shall cause its Representatives to,
\nnegotiate with Parent and Merger Sub in good faith (to the extent Parent and
\nMerger Sub desire to negotiate) to make such adjustments in the terms and
\nconditions of this Agreement, the Financing Commitments and the Guarantees so
\nthat such Superior Proposal ceases to constitute a Superior Proposal and (iii)
\nfollowing the end of the three (3) Business Day period, the Board of the Company
\nshall have determined in good faith after consultation with its financial
\nadvisor and outside counsel, taking into account any changes to this Agreement,
\nthe Financing Commitments and the Guarantees proposed in writing by Parent and
\nMerger Sub in response to the Notice of Superior Proposal or otherwise, that the
\nSuperior Proposal giving rise to the Notice of Superior Proposal continues to
\nconstitute a<\/p>\n

33<\/p>\n

\n

Superior Proposal. Any material amendment to the financial terms or any other
\nmaterial amendment of such Superior Proposal shall require a new Notice of
\nSuperior Proposal and the Company shall be required to comply again with the
\nrequirements of this Section 6.5(h); provided<\/u>, however<\/u>, that
\nreferences to the three (3) Business Day period above shall be deemed to be
\nreferences to a two (2) Business Day period).<\/p>\n

Section 6.6 Employment and Employee Benefits Matters<\/u>.<\/p>\n

(a) Without limiting any additional rights that any Company Employee may have
\nunder any Company Plan, Parent shall cause the Surviving Corporation and each of
\nits subsidiaries to maintain, for the period commencing at the Effective Time
\nand ending on the last day of the Company153s 2012 fiscal year (the “Protected
\nPeriod<\/u>“), the severance-related provisions of the Company Plans set forth in
\nSection 6.6(a) of the Company Disclosure Schedule and to provide 100% of the
\nseverance payments and benefits provided thereunder to be delivered to any
\nCompany Employee whose employment is terminated during such Protected Period
\npursuant to circumstances that would give rise to severance payments and
\nbenefits under such Company Plans.<\/p>\n

(b) Without limiting any additional rights that any Company Employee may have
\nunder any Company Plan, Parent shall cause the Surviving Corporation and each of
\nits subsidiaries to maintain for any Company Employee, during the Protected
\nPeriod, subject to paragraph (a) above: (i) annual cash compensation levels
\n(such term to mean (A) annual rate of cash base salary and wage rates, as
\napplicable and (B) target cash incentive opportunities (including for
\nparticipants in the AIP, opportunities based on a specified target percentage of
\nsuch Company Employee153s annual rate of cash base salary) that are each no less
\nfavorable than such annual rates of base salary and wage rates, as applicable
\nand such target cash incentive compensation opportunities maintained for and
\nprovided to such Company Employees immediately prior to the Effective Time, and
\n(ii) health and welfare benefits and retirement benefits provided under Company
\nPlans, that for each category in the aggregate are no less favorable than, such
\nhealth and welfare benefits, and retirement benefits maintained for and provided
\nto such Company Employees immediately prior to the Effective Time.<\/p>\n

(c) As of and after the Effective Time, Parent will, or will cause the
\nSurviving Corporation to, give Company Employees full credit for purposes of
\neligibility, participation, vesting and benefit accruals (but not for purposes
\nof benefit accruals under any defined benefit pension plans, to the extent this
\ncredit would result in a duplication of benefits for the same period of
\nservice), under any employee compensation and incentive plans, benefit
\n(including vacation but excluding for purposes of any equity incentive
\ncompensation) plans, programs, policies and arrangements maintained for the
\nbenefit of Company Employees as of and after the Effective Time by Parent, its
\nsubsidiaries or the Surviving Corporation for the Company Employees153 service
\nwith the Company, its subsidiaries and their predecessor entities (each, a
\n“Parent Plan<\/u>“) to the same extent recognized by the Company immediately
\nprior to the Effective Time. With respect to each Parent Plan that is a “welfare
\nbenefit plan” (as defined in Section 3(1) of ERISA, regardless as to whether or
\nnot such Parent Plan is subject to ERISA), Parent or its subsidiaries shall (i)
\ncause there to be waived any pre-existing condition or eligibility limitations
\nand (ii) give effect, in determining any deductible and maximum out-of-pocket
\nlimitations, to claims incurred and amounts paid by, and amounts reimbursed to,
\nCompany<\/p>\n

34<\/p>\n

\n

Employees under similar plans maintained by the Company and its subsidiaries
\nin the plan year in which the Effective Time occurs.<\/p>\n

(d) From and after the Effective Time, Parent will honor, and will cause its
\nsubsidiaries to honor, in accordance with its terms, (i) each existing Company
\nPlan that is an employment, change in control, severance and termination
\nprotection plan or agreement of or between the Company or any of its
\nsubsidiaries and any officer, director or employee of that company, equity-based
\nor bonus plan, program or agreement and (ii) all obligations pursuant to
\noutstanding restoration plans, equity-based, bonus or bonus deferral plans,
\nprograms or agreements and in respect of vested and accrued benefits under any
\nemployee benefit plan, program or arrangement of the Company or its subsidiaries
\nand similar employment compensation and benefit arrangements and agreements, in
\neach of the foregoing cases referenced in clauses (i) and (ii) above, to the
\nextent legally binding on the Company or any of its subsidiaries and outstanding
\nas of the Effective Time.<\/p>\n

(e) Parent shall cause the Surviving Corporation and each of its
\nsubsidiaries, for a period commencing at the Effective Time and ending ninety
\ndays thereafter, to not effectuate a “plant closing” or “mass layoff” as those
\nterms are defined in WARN affecting in whole or in part any site of employment,
\nfacility, operating unit or Company Employee, without complying with all
\nprovisions of WARN.<\/p>\n

(f) The provisions of Section 6.6(a) and 6.6(b) above shall not apply to any
\nCompany Employee who is subject to a collective bargaining agreement set forth
\non Section 3.11 of the Company Disclosure Schedule (the “CBAs<\/u>“). The
\nterms and conditions of employment for Company Employees subject to the CBAs
\nshall be governed by the applicable provisions of the CBAs and any successor
\nagreements thereto.<\/p>\n

(g) Nothing in this Section 6.6, express or implied, (i) is intended to
\nconfer on any person (including any Company Employee) or entity, other than the
\nparties to this Agreement or their respective successors and assigns any rights,
\nremedies, obligations or liabilities under or by reason of this Agreement and
\n(ii) shall constitute an amendment to any Company Plan.<\/p>\n

Section 6.7 Directors153 and Officers153 Indemnification and Insurance<\/u>.\n<\/p>\n

(a) Without limiting any additional rights that any employee may have under
\nany employment agreement or Company Plan as in effect on the date hereof and
\nwhich has previously been made available to Parent, from the Effective Time
\nthrough the sixth anniversary of the date on which the Effective Time occurs,
\nParent shall cause the Surviving Corporation to, (and in the event the coverage
\nunder the directors153 and officers153 liability insurance policies referred to in
\nthis Section 6.7 have been fully paid by all applicable carriers or is otherwise
\nnot longer available, Parent shall) indemnify and hold harmless each present (as
\nof the Effective Time) and former officer and director of the Company and its
\nsubsidiaries (the “Indemnified Parties<\/u>“), against all claims, losses,
\nliabilities, damages, judgments, inquiries, fines and reasonable fees, costs and
\nexpenses, including attorneys153 fees and disbursements, incurred in connection
\nwith any claim, action, suit, proceeding or investigation, whether civil,
\ncriminal, administrative or investigative, arising out of or pertaining to (i)
\nthe fact that an Indemnified Party is or was an officer or director of the
\nCompany or any of its subsidiaries or is or was<\/p>\n

35<\/p>\n

\n

serving at the request of the Company or any of its subsidiaries as a
\ndirector, officer, employee, fiduciary or agent of another corporation,
\npartnership, joint venture, trust or other enterprise or non-profit entity or
\n(ii) matters existing or occurring at or prior to the Effective Time (including
\nthis Agreement and the transactions and actions contemplated hereby), whether
\nasserted or claimed prior to, at or after the Effective Time, to the fullest
\nextent permitted under applicable law. In the event of any such claim, action,
\nsuit, proceeding or investigation, (A) each Indemnified Party will be entitled
\nto advancement of expenses incurred in the defense of any claim, action, suit,
\nproceeding or investigation from the Surviving Corporation within ten (10)
\nBusiness Days of receipt by the Surviving Corporation from the Indemnified Party
\nof a request therefor; provided<\/u> that any person to whom expenses are
\nadvanced provides an undertaking, if and only to the extent then required by the
\nDGCL, to repay such advances if it is ultimately determined that such person is
\nnot entitled to indemnification, (B) neither Parent nor the Surviving
\nCorporation shall settle, compromise or consent to the entry of any judgment in
\nany proceeding or threatened action, suit, proceeding, investigation or claim
\n(and in which indemnification could be sought by such Indemnified Party
\nhereunder), unless such settlement, compromise or consent includes an
\nunconditional release of such Indemnified Party from all liability arising out
\nof such action, suit, proceeding, investigation or claim or such Indemnified
\nParty otherwise consents, and (C) the Surviving Corporation shall cooperate in
\nthe defense of any such matter.<\/p>\n

(b) The certificate of incorporation and bylaws of the Surviving Corporation
\nshall contain provisions no less favorable with respect to indemnification,
\nadvancement of expenses and exculpation of former or present directors and
\nofficers than are presently set forth in the Company153s Certificate of
\nIncorporation and Bylaws, which provisions shall not be amended, repealed or
\notherwise modified for a period of six years from the Effective Time in any
\nmanner that would adversely affect the rights thereunder of any such
\nindividuals.<\/p>\n

(c) Prior to the Effective Time, the Company shall and, if the Company is
\nunable to, Parent shall cause the Surviving Corporation as of the Effective
\nTime, to obtain and fully pay the premium for the extension of (i) the
\ndirectors153 and officers153 liability coverage of the Company153s existing directors153
\nand officers153 insurance policies, and (ii) the Company153s existing fiduciary
\nliability insurance policies, in each case for a claims reporting or discovery
\nperiod of at least six years from and after the Effective Time from an insurance
\ncarrier with the same or better credit rating as the Company153s current insurance
\ncarrier with respect to directors153 and officers153 liability insurance and
\nfiduciary liability insurance (collectively, “D&O Insurance<\/u>“) with
\nterms, conditions, retentions and limits of liability that are no less
\nfavorable, in the aggregate, as the Company153s existing policies with respect to
\nany actual or alleged error, misstatement, misleading statement, act, omission,
\nneglect, breach of duty or any matter claimed against a director or officer of
\nthe Company or any of its subsidiaries by reason of him or her serving in such
\ncapacity that existed or occurred at or prior to the Effective Time (including
\nin connection with this Agreement or the transactions or actions contemplated
\nhereby); provided<\/u>, however<\/u>, that in no event shall the Company or
\nthe Surviving Corporation expend for such policies pursuant to this sentence an
\nannual premium amount in excess of 300% of the annual premiums currently paid by
\nthe Company for such insurance (which annual amount the Company represents and
\nwarrants is set forth on Section 6.7(c) of the Company Disclosure Schedule). If
\nthe Company and the Surviving Corporation for any reason fail to obtain such
\n“tail” insurance policies as of the Effective Time, the Surviving Corporation
\nshall, and Parent shall cause the Surviving<\/p>\n

36<\/p>\n

\n

Corporation to, continue to maintain in effect for a period of at least six
\nyears from and after the Effective Time the D&O Insurance in place as of the
\ndate hereof with terms, conditions, retentions and limits of liability that are
\nno less favorable, in the aggregate, as provided in the Company153s existing
\npolicies as of the date hereof, or the Surviving Corporation shall, and Parent
\nshall cause the Surviving Corporation to, use reasonable best efforts to
\npurchase comparable D&O Insurance for such six-year period with terms,
\nconditions, retentions and limits of liability that are no less favorable, in
\nthe aggregate, as provided in the Company153s existing policies as of the date
\nhereof; provided<\/u>, however<\/u>, that in no event shall Parent or the
\nSurviving Corporation be required to expend for such policies pursuant to this
\nsentence an annual premium amount in excess of 300% of the annual premiums
\ncurrently paid by the Company for such insurance; and provided<\/u>,
\nfurther<\/u>, that if the annual premiums of such insurance coverage exceed
\nsuch amount, the Surviving Corporation shall obtain a policy with the greatest
\ncoverage available for a cost not exceeding such amount.<\/p>\n

(d) Notwithstanding anything herein to the contrary, if any claim, action,
\nsuit, proceeding or investigation (whether arising before, at or after the
\nEffective Time) is made against any Indemnified Party on or prior to the sixth
\nanniversary of the Effective Time, the provisions and benefits of this Section
\n6.7 shall continue in full effect until the final disposition of such claim,
\naction, suit, proceeding or investigation.<\/p>\n

(e) This covenant is intended to be for the benefit of, and shall be
\nenforceable by, each of the Indemnified Parties and their respective heirs and
\nlegal representatives. The indemnification provided for herein shall not be
\ndeemed exclusive of any other rights to which an Indemnified Party is entitled,
\nwhether pursuant to law, contract or otherwise.<\/p>\n

(f) In the event that the Surviving Corporation or Parent or any of their
\nrespective successors or assigns (i) consolidates with or merges into any other
\nperson and shall not be the continuing or surviving corporation or entity of
\nsuch consolidation or merger or (ii) transfers or conveys all or a majority of
\nits properties and assets to any person, then, and in each such case, proper
\nprovision shall be made so that the successors and assigns of the Surviving
\nCorporation or Parent, as the case may be, shall succeed to the obligations set
\nforth in this Section 6.7.<\/p>\n

Section 6.8 Further Action; Efforts<\/u>.<\/p>\n

(a) Upon the terms and subject to the conditions of this Agreement, each of
\nthe parties shall use (x) its reasonable best efforts to (i) take, or cause to
\nbe taken, all actions and to do, or cause to be done, and cooperate with each
\nother in order to do, all things necessary, proper or advisable (including under
\nany Antitrust Law) to consummate the transactions contemplated by this Agreement
\nas soon as practicable and (ii) do all things necessary, proper or advisable
\nunder applicable laws and regulations to consummate the Merger and the other
\ntransactions contemplated by this Agreement as soon as practicable, including:
\n(A) causing the preparation and filing of all forms, registrations and notices
\nrequired to be filed to consummate the Merger and the taking of such actions as
\nare necessary to obtain any requisite consent or expiration of any applicable
\nwaiting period under the HSR Act; and (B) using reasonable best efforts to
\ndefend all lawsuits and other proceedings by or before any Governmental Entity
\nchallenging this Agreement or the consummation of the Merger; and (y) best
\nefforts to resolve any objection asserted with respect to the transactions
\ncontemplated under this Agreement under any Antitrust<\/p>\n

37<\/p>\n

\n

Law raised by any Governmental Entity and to prevent the entry of any court
\norder, and to have vacated, lifted, reversed or overturned any injunction,
\ndecree, ruling, order or other action of any Governmental Entity that would
\nprevent, prohibit, restrict or delay the consummation of the transactions
\ncontemplated by this Agreement.<\/p>\n

(b) In furtherance and not in limitation of the provisions of Section 6.8(a),
\neach of the parties, as applicable, agrees to prepare and file as promptly as
\npracticable, and in any event by no later than ten (10) Business Days from the
\ndate of this Agreement an appropriate filing of a Notification and Report Form
\npursuant to the HSR Act and to file as promptly as practicable any filings,
\nnotifications or reports required under any Foreign Merger Control Laws. Parent
\nshall pay all filing fees for the filings required under the HSR Act by the
\nCompany and Parent.<\/p>\n

(c) If a party receives a request for information or documentary material
\nfrom any Governmental Entity with respect to this Agreement or any of the
\ntransactions contemplated hereby then such party shall in good faith make, or
\ncause to be made, as soon as reasonably practicable and after consultation with
\nthe other party, a response which is, at a minimum, in substantial compliance
\nwith such request.<\/p>\n

(d) The parties shall keep each other apprised of the status of matters
\nrelating to the completion of the transactions contemplated by this Agreement
\nand work cooperatively in connection with obtaining the approvals of or
\nclearances from each applicable Governmental Entity, including:<\/p>\n

(i) cooperating with each other in connection with filings required to be
\nmade by any party under any Antitrust Law and liaising with each other in
\nrelation to each step of the procedure before the relevant Governmental Entities
\nand as to the contents of all material communications with such Governmental
\nEntities. In particular, to the extent permitted by law or Governmental Entity,
\nno party will make any notification in relation to the transactions contemplated
\nhereunder without first providing the other party with a copy of such
\nnotification in draft form and giving such other party a reasonable opportunity
\nto discuss its content before it is filed with the relevant Governmental
\nEntities, and such first party shall consider and take account of all reasonable
\ncomments timely made by the other party in this respect;<\/p>\n

(ii) furnishing to the other party all necessary information that the other
\nparty may reasonably request in connection with filings required to be made by
\nsuch other party under Antitrust Laws;<\/p>\n

(iii) promptly notifying each other of any material communications from or
\nwith any Governmental Entity with respect to the transactions contemplated by
\nthis Agreement and ensuring to the extent permitted by law or Governmental
\nEntity that each of the parties is given the opportunity to attend any meetings
\nwith or other appearances before any Governmental Entity with respect to the
\ntransactions contemplated by this Agreement;<\/p>\n

(iv) consulting and cooperating with one another in connection with all
\nmaterial analyses, appearances, presentations, memoranda, briefs, arguments,
\nopinions and proposals made or submitted by or on behalf of any party hereto in
\nconnection with proceedings under or relating to the Antitrust Laws; and<\/p>\n

38<\/p>\n

\n

(v) without prejudice to any rights of the parties hereunder, consulting and
\ncooperating in all material respects with the other in defending all lawsuits
\nand other proceedings by or before any Governmental Entity challenging this
\nAgreement or the consummation of the transactions contemplated by this
\nAgreement.<\/p>\n

(e) In addition, each of the parties shall take, or cause to be taken, all
\nother action and to do, or cause to be done, all other things necessary, proper
\nor advisable under all Antitrust Laws to consummate the transactions
\ncontemplated by this Agreement, including using its reasonable best efforts to
\nobtain the expiration of all waiting periods and obtain all other approvals and
\nany other consents required to be obtained in order for the parties to
\nconsummate the transactions contemplated by this Agreement.<\/p>\n

(f) Notwithstanding anything to the contrary set forth in this Agreement, the
\nobligations of Parent under Section 6.8(a)(y) to use its best efforts shall mean
\nParent committing, if necessary, to: (i) selling, divesting, or otherwise
\nconveying particular assets, categories, portions or parts of assets or
\nbusinesses of the Company and any of its subsidiaries; (ii) agreeing to sell,
\ndivest, or otherwise convey any particular asset, category, portion or part of
\nan asset or business of the Company and its subsidiaries contemporaneously with
\nor subsequent to the Effective Time; (iii) permitting the Company to sell,
\ndivest, or otherwise convey any of the particular assets, categories, portions
\nor parts of assets or business of the Company or any of its subsidiaries prior
\nto the Effective Time; and (iv) licensing, holding separate or entering into
\nsimilar arrangements with respect to its respective assets or the assets of the
\nCompany or conduct of business arrangements or terminating any and all existing
\nrelationships and contractual rights and obligations of the Company as a
\ncondition to obtaining any and all expirations of waiting periods under the HSR
\nAct or consents from any Governmental Entity necessary, to consummate the
\ntransactions contemplated hereby. All efforts described in this Section 6.8(f)
\nshall be unconditional and shall not be qualified by best efforts and no actions
\ntaken pursuant to this Section 6.8 shall be considered for purposes of
\ndetermining whether a Material Adverse Effect has occurred.<\/p>\n

(g) Notwithstanding the foregoing, commercially and\/or competitively
\nsensitive information and materials of a party will be provided to the other
\nparty on an outside counsel-only basis while, to the extent feasible, making a
\nversion in which the commercial and\/or competitively sensitive information has
\nbeen redacted available to the other party.<\/p>\n

Section 6.9 Public Announcements<\/u>. The Company and Parent will consult
\nwith and provide each other the reasonable opportunity to review and comment
\nupon any press release or other public statement or comment prior to the
\nissuance of such press release or other public statement or comment relating to
\nthis Agreement or the transactions contemplated herein and shall not issue any
\nsuch press release or other public statement or comment prior to such
\nconsultation except as may be required by applicable law or by obligations
\npursuant to any listing agreement with any national securities exchange. Parent
\nand the Company agree that the press release announcing the execution and
\ndelivery of this Agreement shall be a joint release of Parent and the Company.
\nNotwithstanding the foregoing, nothing in this Section 6.9 shall limit the
\nCompany153s or the Company Board153s rights under Section 6.5.<\/p>\n

39<\/p>\n

\n

Section 6.10 Anti-Takeover Statutes<\/u>. If the restrictive provisions of
\nany Anti-Takeover Statute is or may become applicable to this Agreement
\n(including the Merger and the other transactions contemplated hereby), each of
\nParent, the Company and Merger Sub and their respective boards of directors
\nshall grant all such approvals and take all such actions as are reasonably
\nnecessary so that such transactions may be consummated as promptly as
\npracticable hereafter on the terms contemplated hereby and otherwise act to
\neliminate or minimize the effects of such statute or regulation on such
\ntransactions.<\/p>\n

Section 6.11 Notification of Certain Matters<\/u>. The Company shall give
\nprompt notice to Parent, and Parent shall give prompt notice to the Company, of
\n(a) any notice or other communication received by such party from any
\nGovernmental Entity in connection with the Merger or the other transactions
\ncontemplated hereby or from any person alleging that the consent of such person
\nis or may be required in connection with the Merger or the other transactions
\ncontemplated hereby, if the subject matter of such communication or the failure
\nof such party to obtain such consent could be material to the Company, the
\nSurviving Corporation or Parent, (b) any actions, suits, claims, investigations
\nor proceedings commenced or, to such party153s knowledge, threatened against,
\nrelating to or involving or otherwise affecting such party or any of its
\nsubsidiaries which relate to the Merger or the other transactions contemplated
\nhereby, (c) the discovery of any fact or circumstance that, or the occurrence or
\nnon-occurrence of any event the occurrence or non-occurrence of which, would
\nreasonably be expected to cause or result in any of the conditions to the Merger
\nset forth in Article VII not being satisfied or satisfaction of those conditions
\nbeing materially delayed in violation of any provision of this Agreement;
\nprovided<\/u>, however<\/u>, that the delivery of any notice pursuant to
\nthis Section 6.11 shall not (i) cure any breach of, or non-compliance with, any
\nother provision of this Agreement or (ii) limit the remedies available to the
\nparty receiving such notice. The parties agree and acknowledge that the
\nCompany153s, on the one hand, and Parent153s on the other hand, compliance or
\nfailure of compliance with this Section 6.11 shall not be taken into account for
\npurposes of determining whether the condition referred to in Section 7.2(b) or
\nSection 7.3(b), respectively, shall have been satisfied.<\/p>\n

Section 6.12 Rule 16b-3<\/u>. Prior to the Effective Time, the Company
\nshall be permitted to take such steps as may be reasonably necessary or
\nadvisable hereto to cause dispositions of Company equity securities (including
\nderivative securities) pursuant to the transactions contemplated by this
\nAgreement by each individual who is a director or officer of the Company to be
\nexempt under Rule 16b-3 promulgated under the Exchange Act.<\/p>\n

Section 6.13 Treatment of Notes; Indentures<\/u>.<\/p>\n

(a) If requested by Parent, the Company shall use its reasonable best efforts
\nto assist Parent or an affiliate of Parent or the Company, or the Company153s
\noperating subsidiary, Del Monte Corporation, a Delaware corporation
\n(“DMC<\/u>“), at Parent153s option, in commencing an offer to purchase, and
\nrelated consent solicitation with respect to, all of the outstanding aggregate
\nprincipal amount of the 6 3<\/sup>\/4% Notes due 2015 and the 7
\n1<\/sup>\/2% Notes due 2019 issued pursuant to the Indentures (as defined below)
\n(collectively, the “Notes<\/u>“) on the terms and conditions reasonably
\nspecified by Parent (including amendments to the terms and provisions of the
\nIndentures (as defined below) as reasonably requested by Parent and reasonably
\nsatisfactory to the Company)(the “Debt Offer<\/u>“). Notwithstanding the
\nforegoing, the closing of the Debt Offer<\/p>\n

40<\/p>\n

\n

shall be conditioned on the completion of the Merger, shall provide that the
\nNotes shall be accepted for payment by the Surviving Corporation immediately
\nupon the completion of the Merger, and otherwise shall be in compliance with
\napplicable Laws and SEC rules and regulations.<\/p>\n

(b) The Company covenants and agrees that, promptly following the consent
\nsolicitation expiration date, assuming the requisite consents are received in
\nthe consent solicitation constituting part of the Debt Offer, each of the
\nCompany and its applicable subsidiaries as is necessary shall (and shall use
\ntheir commercially reasonable efforts to cause the applicable trustee to)
\nexecute supplemental indentures in form reasonably satisfactory to the Company
\nto (i) the Indenture, dated as of October 1, 2009, among DMC, as issuer, the
\nCompany, The Meow Mix Company, LLC, Meow Mix Decatur Productions I, LLC, as
\nguarantors, and The Bank of New York Mellon Trust Company, N.A. (as amended or
\nsupplemented, the “2009 Indenture<\/u>“) and (ii) the Indenture, dated as of
\nFebruary 8, 2005, among DMC, as issuer, the Company, Mike Mac IHC, Inc.,
\nStar-Kist Samoa, Inc., Star-Kist Mauritius, Inc. and Marine Trading Pacific,
\nInc., as guarantors, and Deutsche Bank Trust Company Americas (as amended or
\nsupplemented, the “2005 Indenture<\/u>” and, together with the 2009 Indenture,
\nthe “Indentures<\/u>“), which supplemental indentures shall implement the
\namendments described in the offer to purchase, related letter of transmittal,
\nand other related documents (collectively, the “Offer Documents<\/u>“) and
\nshall become operative only concurrently with the Effective Time, subject to the
\nterms and conditions of this Agreement (including the conditions to the Debt
\nOffer). Concurrent with the Effective Time, Parent shall cause the Surviving
\nCorporation to accept for payment and thereafter promptly pay for the Notes that
\nhave been properly tendered and not properly withdrawn pursuant to the Debt
\nOffer and in accordance with the Debt Offer.<\/p>\n

(c) Parent shall prepare all necessary and appropriate documentation in
\nconnection with the Debt Offer, including the Offer Documents, and provide the
\nCompany with a reasonable opportunity to comment on such documents. Parent and
\nthe Company shall, and shall cause their respective subsidiaries to and shall
\nuse their respective reasonable best efforts to cause their respective
\nRepresentatives to, reasonably cooperate with each other in the preparation of
\nthe Offer Documents. The Offer Documents (including all amendments or
\nsupplements) and all mailings to the holders of the Notes in connection with the
\nDebt Offer shall be subject to the prior review of the Company and Parent and
\nshall be reasonably acceptable to each of them. If at any time prior to the
\ncompletion of the Debt Offer any information in the Offer Documents should be
\ndiscovered by the Company and its subsidiaries, on the one hand, or Parent, on
\nthe other, which should be set forth in an amendment or supplement to the Offer
\nDocuments, so that the Offer Documents shall not contain any untrue statement of
\na material fact or omit to state any material fact required to be stated therein
\nor necessary in order to make the statements therein, in light of circumstances
\nunder which they are made, not misleading, the party that discovers such
\ninformation shall use reasonable best efforts to promptly notify the other
\nparty, following which an appropriate amendment or supplement describing such
\ninformation shall be prepared and disseminated to the holders of the Notes.<\/p>\n

Section 6.14 Obligations of Merger Sub<\/u>. Parent shall take all action
\nnecessary to cause Merger Sub and the Surviving Corporation to perform their
\nrespective obligations under this Agreement.<\/p>\n

41<\/p>\n

\n

Section 6.15 Financing<\/u>.<\/p>\n

(a) Parent shall use its reasonable best efforts to take, or cause to be
\ntaken, all actions and to do, or cause to be done, all things necessary, proper
\nor advisable to arrange and obtain the Debt Financing on the terms and
\nconditions described in or contemplated by the Debt Financing Commitments and
\nshall not agree to any amendment or modification to be made to, or any waiver of
\nany provision or remedy under the Debt Financing Commitments without the prior
\nwritten consent of the Company if such amendments, modifications or waivers
\nwould or would reasonably be expected to (w) reduce the aggregate amount of the
\nDebt Financing below the amount required to consummate the Merger and repay or
\nrefinance the debt contemplated in this Agreement or the Financing Commitments,
\n(x) impose new or additional conditions to the receipt of the Debt Financing,
\n(y) prevent or materially delay the consummation of the transactions
\ncontemplated by this Agreement or (z) adversely impact the ability of Parent or
\nMerger Sub to enforce its rights against the other parties to the Financing
\nCommitments (provided<\/u>, that, for the avoidance of doubt, Parent and
\nMerger Sub may replace or amend the Debt Financing Commitments to add lenders,
\nlead arrangers, bookrunners, syndication agents or similar entities, if the
\naddition of such additional parties, individually or in the aggregate, would not
\nprevent or materially delay or impair the availability of the financing under
\nthe Debt Financing Commitments or the consummation of the transactions
\ncontemplated by this Agreement), including using reasonable best efforts to (i)
\nmaintain in effect the Debt Financing Commitments, (ii) satisfy on a timely
\nbasis all conditions and covenants applicable to Parent and Merger Sub in the
\nDebt Financing Commitments (including by consummating the financing pursuant to
\nthe terms of the Equity Financing Commitments) and otherwise comply with its
\nobligations thereunder, (iii) enter into definitive agreements with respect
\nthereto on the terms and conditions (including the flex provisions) contemplated
\nby the Debt Financing Commitments (or terms and conditions no less favorable, in
\nthe aggregate, to Parent and Merger Sub (in the reasonable judgment of Parent)
\nthan the terms and conditions in the Debt Financing Commitments), (iv) in the
\nevent that all conditions in the Debt Financing Commitments (other than the
\navailability or funding of any Equity Financing) have been satisfied, consummate
\nthe Debt Financing at or prior to Closing, (v) enforce its rights under the Debt
\nFinancing Commitments and (vi) in the event that all conditions in the Debt
\nFinancing Commitments (other than the availability or funding of any Equity
\nFinancing) have been satisfied, cause the lenders and other persons providing
\nDebt Financing to fund on the Closing Date the Debt Financing required to
\nconsummate the Merger and the other transactions contemplated hereby. Without
\nlimiting the generality of the foregoing, Parent and Merger Sub shall give the
\nCompany prompt notice: (A) of any material breach or material default (or any
\nevent or circumstance that, with or without notice, lapse of time or both, could
\nreasonably be expected to give rise to any material breach or material default)
\nby any party to any Financing Commitment or definitive document related to the
\nFinancing of which Parent or Merger Sub become aware; (B) of the receipt of any
\nwritten notice or other written communication from any party to any Financing
\nCommitment with respect to any breach, default, termination or repudiation by
\nany party to any Financing Commitment or any definitive document related to the
\nFinancing or any provisions of the Financing Commitment or any definitive
\ndocument related to the Financing; and (C) if Parent or Merger Sub will not be
\nable to obtain all or any portion of the Financing on the terms, in the manner
\nor from the sources contemplated by the Financing Commitment or the definitive
\ndocuments related to the Financing. As soon as reasonably practicable, after the
\ndate the Company delivers Parent or Merger Sub a written request, Parent and
\nMerger Sub shall provide<\/p>\n

42<\/p>\n

\n

notice of the circumstances referred to in clauses (A), (B) or (C) of the
\nimmediately preceding sentence. If any portion of the Debt Financing becomes
\nunavailable on the terms and conditions (including the flex provisions)
\ncontemplated in the Debt Financing Commitments, Parent shall use its reasonable
\nbest efforts to arrange and obtain alternative debt financing from alternative
\ndebt sources in an amount sufficient to consummate the transactions contemplated
\nby this Agreement upon terms and conditions not less favorable, taken as a
\nwhole, to Parent and Merger Sub (in the reasonable judgment of Parent) than
\nthose in the Debt Financing Commitments as promptly as practicable following the
\noccurrence of such event but no later than the Business Day immediately prior to
\nthe Closing Date. For the avoidance of doubt, in no event shall any Guarantor be
\nrequired to provide any financing other than equity financing, which equity
\nshall in no event exceed the amount set forth in its respective Equity
\nCommitment Letter, and in no event shall Parent or Merger Sub be required to
\nseek or obtain equity financing other than the Equity Financing. For purposes of
\nthis Agreement, “Marketing Period<\/u>” shall mean the first period of twenty
\n(20) consecutive calendar days throughout which (x) Parent shall have all of the
\nRequired Financial Information and (y) the conditions set forth in Sections 7.1
\nshall be satisfied or waived (other than those conditions that by their nature
\ncan only be satisfied at the Closing) and nothing has occurred and no condition
\nexists that would cause any of the conditions set forth in Section 7.2 to fail
\nto be satisfied, assuming that the Closing Date were to be scheduled for any
\ntime during such twenty (20) consecutive calendar day period (provided, with
\nrespect to Section 7.2(b), only failures to perform or comply with agreements
\ncontained in this Agreement that would impair the ability of Parent and Merger
\nSub to arrange the Debt Financing shall be considered for purposes of
\ndetermining whether such condition has been satisfied); provided<\/u>
\nthat<\/u> the Marketing Period will not be deemed to commence if prior to the
\ncompletion of the Marketing Period, (x) the Company153s auditors shall have
\nwithdrawn their audit opinion contained in the Required Financial Information or
\n(y) the financial statements included in the Required Financial Information that
\nis available to Buyer on the first day of any such 20 consecutive day period
\nwould be required to be updated under Rule 3-12 of Regulation S-X in order to be
\nsufficiently current on any day during such 20 consecutive day period to permit
\na registration statement using such financial statements to be declared
\neffective by the SEC on the last day of such 20 day period, in which case the
\nMarketing Period shall not be deemed to commence until the receipt by Parent of
\nupdated Required Financial Information that would be required under Rule 3-12 of
\nRegulation S-X to permit a registration statement using such financial
\nstatements to be declared effective by the SEC on the last day of such new 20
\nday period; provided<\/u> that the Marketing Period shall end on any earlier
\ndate that is the date on which the Debt Financing is obtained; provided<\/u>,
\nfurther<\/u>, that if the Company shall in good faith reasonably believe it
\nhas delivered the Required Financial Information, it may deliver to Parent a
\nwritten notice to that effect (stating when it believes it completed such
\ndelivery), in which case the Marketing Period shall be deemed to have commenced
\non the date specified in that notice unless Parent in good faith reasonably
\nbelieves the Company has not completed delivery of the Required Financial
\nInformation and, within three Business Days after the delivery of such notice by
\nthe Company, delivers a written notice to the Company to that effect (stating
\nwith reasonable specificity which Required Financial Information Parent
\nreasonably believes the Company has not delivered). Parent shall keep the
\nCompany informed on a reasonably current basis in reasonable detail of the
\nstatus of its efforts to arrange the Debt Financing.<\/p>\n

(b) Prior to the Closing, the Company shall use reasonable best efforts and
\nshall cause its subsidiaries to use reasonable best efforts, and shall use its
\nreasonable best efforts to cause its<\/p>\n

43<\/p>\n

\n

respective Representatives to, provide to Parent and Merger Sub, at Parent153s
\nsole expense, all reasonable cooperation reasonably requested by Parent that is
\nnecessary in connection with the Financing, including (i) furnishing Parent and
\nMerger Sub and their Financing sources (by a date that is not later than forty
\n(40) calendar days after the end of any fiscal quarter after the date hereof
\nthat is not a fiscal year end, in respect of unaudited quarterly financial
\nstatements required pursuant to this Section 6.15(b)), with the unaudited
\nconsolidated balance sheet of the Company as of October 31, 2010 (and as of the
\nend of any subsequent quarterly period that is not a fiscal year end ended no
\nless than forty (40) calendar days prior to the Closing Date) and the related
\nunaudited statements of income and cash flows, which shall have been reviewed by
\nthe Company153s accountants as provided in SAS 100 (provided that such financial
\nstatements shall be deemed delivered to Parent and Merger Sub upon filing
\nthereof with the SEC) and (C) such other financial and other information as
\nParent shall reasonably request in order to consummate the Debt Financing,
\nincluding all Company information, financial statements and financial data of
\nthe type required in registration statements on Form S-1 by Regulation S-X and
\nRegulation S-K under the Securities Act (subject to exceptions customary for
\nprivate placements pursuant to Rule 144A promulgated under the Securities Act)
\nand of a type and form customarily included in private placements pursuant to
\nRule 144A under the Securities Act for financings similar to the Financing and
\nsubject to exceptions customary for such financings (including, to the extent
\napplicable with respect to such financial statements, the report of the
\nCompany153s auditors thereon and related management discussion and analysis of
\nfinancial condition and results of operations) (information required to be
\ndelivered pursuant to this clause (i) being referred to as, the “Required
\nFinancial Information<\/u>“), (ii) participating in a reasonable number of
\nmeetings (including customary one-on-one meetings with the parties acting as
\nlead arrangers or agents for, and prospective lenders and purchasers of, the
\nFinancing and senior management and Representatives, with appropriate seniority
\nand expertise, of the Company), presentations, road shows, due diligence
\nsessions, drafting sessions and sessions with rating agencies in connection with
\nthe Financing, (iii) assisting with the preparation of materials for rating
\nagency presentations, bank information memoranda, offering documents, private
\nplacement memoranda and similar documents required in connection with the
\nFinancing (including requesting any consents of accountants for use of their
\nreports in any materials relating to the Financing and the delivery of one or
\nmore customary representation letters), (iv) using reasonable best efforts to
\nobtain accountants153 comfort letters and legal opinions as reasonably requested
\nby Parent and facilitate the pledging of collateral in connection with the
\nFinancing, including, executing and delivering any documents as may be
\nreasonably requested by Parent (including a certificate of the chief financial
\nofficer of the Company with respect to solvency matters as of the Closing, on a
\npro forma basis), (v) causing the taking of corporate actions (subject to the
\noccurrence of the Closing) by the Company and its subsidiaries reasonably
\nnecessary to permit the completion of the Financing, (vi) facilitating the
\nexecution and delivery at the Closing of definitive documents related to the
\nFinancing on the terms contemplated by the Debt Financing Commitments, and (vii)
\ncooperating with consultants or others engaged to undertake field examinations
\nand appraisals, including furnishing information to such persons in respect of
\naccounts receivable, inventory and other applicable assets; provided<\/u>,
\nhowever<\/u>, that nothing herein shall require such cooperation to the extent
\nit would interfere unreasonably with the business or operations of the Company
\nor its subsidiaries; provided<\/u>, further<\/u>, that neither the Company
\nnor any of its subsidiaries shall be required to commit to take any action that
\nis not contingent upon the Closing (including the entry into any agreement) or
\nthat would be effective prior to the Effective<\/p>\n

44<\/p>\n

\n

Time. None of the Company or any of its subsidiaries shall be required to
\ntake any action that would subject it to actual or potential liability, to bear
\nany cost or expense or to pay any commitment or other similar fee or make any
\nother payment (other than reasonable out-of-pocket costs) or incur any other
\nliability or provide or agree to provide any indemnity in connection with the
\nFinancing or any of the foregoing, or the Debt Offering, prior to the Effective
\nTime. Parent shall indemnify and hold harmless the Company, its subsidiaries and
\nthe Representatives from and against any and all liabilities, losses, damages,
\nclaims, costs, expenses, interest, awards, judgments and penalties suffered or
\nincurred by them in connection with the arrangement of the Financing (including
\nany action taken in accordance with this Section 6.15(b)) and any information
\nutilized in connection therewith (other than historical information relating to
\nthe Company or its subsidiaries or other information furnished by or on behalf
\nof the Company or its subsidiaries) and in connection with the Debt Offer.
\nParent shall, promptly upon request by the Company, reimburse the Company for
\nall documented and reasonable out-of-pocket costs incurred by the Company or its
\nsubsidiaries in connection with this Section 6.15(b) and in connection with the
\nDebt Offer. The Company hereby consents to the reasonable use of the Company153s
\nand its subsidiaries153 logos in connection with the Financing, provided that such
\nlogos are used solely in a manner that is not intended to or reasonably likely
\nto harm or disparage the Company or any of its subsidiaries or the reputation or
\ngoodwill of the Company or any of its subsidiaries or any of their logos and on
\nsuch other customary terms and conditions as the Company shall reasonably
\nimpose.<\/p>\n

(c) In no event shall Parent or any of its controlled affiliates (which for
\npurposes of this Section 6.15(c) shall be deemed to include the Guarantors and
\nthe active investment funds affiliated with any of the Guarantors), directly or
\nindirectly, enter into any Contract, without the prior consent of the Company,
\n(i) awarding any agent, broker, investment banker, financial advisor or other
\nfirm or person any financial advisory role on an exclusive basis (or until the
\nNo-Shop Period Start Date, any firm or person other than Centerview Partners on
\na non-exclusive basis) or (ii) engaging any bank or investment bank or other
\npotential provider of debt financing on an exclusive basis (or otherwise on
\nterms that prevent such provider from providing or seeking to provide such
\nfinancing to any third party in connection with a transaction relating to the
\nCompany or its subsidiaries), in the case of clauses (i) and (ii), in connection
\nwith the Merger or the other transactions contemplated hereby. Until the No-Shop
\nPeriod Start Date, neither Parent nor any of its controlled affiliates shall,
\ndirectly or indirectly, seek or obtain any equity commitments or equity
\nfinancing in respect of the Merger or any of the other transactions contemplated
\nhereby, or provide any information in respect thereof to any potential investor
\nin Parent other than as set forth in the Equity Financing Commitments, as in
\neffect on the date hereof; provided<\/u>, however<\/u>, Parent and its
\ncontrolled affiliates and their respective representatives may seek and obtain
\nequity commitments and equity financing (and provide such persons confidential
\ninformation in connection therewith provided such persons agree on customary
\nterms to keep such information confidential) at any time from (i) any limited
\npartners of the active investment funds, managed accounts affiliated with any of
\nthe Guarantors or an investor in a vehicle controlled or managed by an affiliate
\nof the Guarantors and (ii) any other person to which any of the Guarantors or
\nany of their respective affiliates are obligated to offer the opportunity to
\ninvest in connection with transactions similar to the transactions contemplated
\nby this Agreement. Subject to this Section 6.15(c), the Company hereby agrees
\nthat Parent and each counterparty thereto shall not be bound by its obligations
\nunder each Confidentiality Agreement not to provide confidential information to
\nor enter into discussions, agreements, arrangements or<\/p>\n

45<\/p>\n

\n

understandings with potential sources of debt or equity financing with
\nrespect to the Merger and the other transactions contemplated by this Agreement,
\nprovided that such sources of financing agree on customary terms to keep such
\ninformation confidential.<\/p>\n

(d) Parent and Merger Sub acknowledge and agree that the obtaining of the
\nFinancing, or any alternative financing, is not a condition to Closing and
\nreaffirm their obligation to consummate the transactions contemplated by this
\nAgreement irrespective and independently of the availability of the Financing or
\nany alternative financing, subject to fulfillment or waiver of the conditions
\nset forth in Article VII.<\/p>\n

Section 6.16 Stock Exchange Delisting<\/u>. Each of the Company and Parent
\nshall take such actions reasonably required prior to the Effective Time to cause
\nthe Company153s securities to be de-listed from the NYSE and de-registered under
\nthe Exchange Act as soon as reasonably practicable following the Effective Time.\n<\/p>\n

Section 6.17 Parent Vote<\/u>.<\/p>\n

(a) Parent shall be present for the purposes of a quorum and shall vote (or
\nconsent with respect to) or cause to be voted (or a consent to be given with
\nrespect to) any Shares beneficially owned by it or any of its subsidiaries or
\nwith respect to which it or any of its subsidiaries has the power (by agreement,
\nproxy or otherwise) to cause to be voted (or to provide a consent), in favor of
\nthe adoption of this Agreement at any meeting of stockholders of the Company at
\nwhich this Agreement shall be submitted for adoption and at all adjournments or
\npostponements thereof (or, if applicable, by any action of stockholders of the
\nCompany by consent in lieu of a meeting).<\/p>\n

(b) Immediately following the execution of this Agreement, Parent shall
\nexecute and deliver, in accordance with Section 228 of the DGCL and in its
\ncapacity as the sole stockholder of Merger Sub, a written consent adopting the
\nAgreement.<\/p>\n

ARTICLE VII<\/p>\n

CONDITIONS OF MERGER<\/p>\n

Section 7.1 Conditions to Each Party153s Obligation to Effect the
\nMerger<\/u>. The respective obligation of each party to effect the Merger is
\nsubject to the satisfaction or waiver at or prior to the Effective Time of each
\nof the following conditions:<\/p>\n

(a) Stockholder Approval<\/u>. This Agreement shall have been duly adopted
\nby holders of Shares constituting the Company Requisite Vote in accordance with
\napplicable law and the Certificate of Incorporation and Bylaws of the Company.\n<\/p>\n

(b) Regulatory Consents<\/u>. The (i) waiting period applicable to the
\nconsummation of the Merger under the HSR Act shall have expired or been earlier
\nterminated, (ii) approval of the Merger by the European Commission shall have
\nbeen granted pursuant to the Council Regulation (EC) No 139\/2004 of the European
\nUnion, as amended; and (iii) approval of the Merger by China153s Ministry of
\nCommerce shall have been granted and\/or deemed to have been granted by
\nexpiration of the applicable waiting period pursuant to the China Anti-Monopoly
\nLaw.<\/p>\n

46<\/p>\n

\n

(c) Orders<\/u>. No court or other Governmental Entity of competent
\njurisdiction shall have enacted, issued, promulgated, enforced or entered any
\nlaw (whether temporary, preliminary or permanent) that is in effect and
\nrestrains, enjoins or otherwise prohibits consummation of the Merger
\n(collectively, an “Order<\/u>“).<\/p>\n

Section 7.2 Conditions to Obligations of Parent and Merger Sub<\/u>. The
\nobligations of Parent and Merger Sub to effect the Merger are also subject to
\nthe satisfaction or waiver by Parent at or prior to the Effective Time of the
\nfollowing additional conditions:<\/p>\n

(a) Representations and Warranties<\/u>. (i) The representations and
\nwarranties of the Company set forth in this Agreement that are qualified by
\nreference to Material Adverse Effect shall be true and correct as of the date of
\nthis Agreement and as of the Closing Date as though made on and as of such date
\n(except to the extent that any such representation and warranty expressly speaks
\nas of an earlier date, in which case such representation and warranty shall be
\ntrue and correct as of such earlier date); (ii) the representations and
\nwarranties of the Company set forth in this Agreement that are not qualified by
\nreference to Material Adverse Effect (other than the representation and warranty
\nset forth in Section 3.3(a)) shall be true and correct as of the date of this
\nAgreement and as of the Closing Date as though made on and as of such date and
\ntime (except to the extent that any such representation and warranty expressly
\nspeaks as of an earlier date, in which case such representation and warranty
\nshall be true and correct as of such earlier date); provided<\/u>,
\nhowever<\/u>, that notwithstanding anything herein to the contrary, the
\ncondition set forth in this Section 7.2(a)(ii) shall be deemed to have been
\nsatisfied even if any representations and warranties of the Company are not so
\ntrue and correct unless the failure of such representations and warranties of
\nthe Company to be so true and correct, individually or in the aggregate, has had
\na Material Adverse Effect; (iii) the representation and warranty set forth in
\nSection 3.3(a) shall be true and correct in all material respects as of the date
\nof this Agreement and as of the Closing Date as though made on and as of such
\ndate (except to the extent that any such representation and warranty expressly
\nspeaks as of an earlier date, in which case such representation and warranty
\nshall be true and correct as of such earlier date); and (iv) Parent shall have
\nreceived at the Closing a certificate signed on behalf of the Company by a
\nsenior executive officer of the Company to the effect that the conditions set
\nforth in this Section 7.2(a) have been satisfied.<\/p>\n

(b) Performance of Obligations of the Company<\/u>. The Company shall have
\nperformed in all material respects all obligations required to be performed by
\nit under this Agreement at or prior to the Closing Date, and Parent shall have
\nreceived a certificate signed on behalf of the Company by a senior executive
\nofficer of the Company to such effect.<\/p>\n

Section 7.3 Conditions to Obligation of the Company<\/u>. The obligation of
\nthe Company to effect the Merger is also subject to the satisfaction or waiver
\nby the Company at or prior to the Effective Time of the following additional
\nconditions:<\/p>\n

(a) Representations and Warranties<\/u>. (i) The representations and
\nwarranties of Parent and Merger Sub set forth in this Agreement shall be true
\nand correct as of the date of this Agreement and as of the Closing Date as
\nthough made on and as of such date unless such failures to be true and correct
\nhas had, or would reasonably be expected to have, individually or in the
\naggregate, a Parent Material Adverse Effect (except to the extent that any such
\nrepresentation<\/p>\n

47<\/p>\n

\n

and warranty expressly speaks as of an earlier date, in which case such
\nrepresentation and warranty shall be true and correct as of such earlier date),
\nand (ii) the Company shall have received at the Closing a certificate signed on
\nbehalf of Parent by a senior executive officer of Parent to the effect that the
\nconditions set forth in this Section 7.3(a) have been satisfied.<\/p>\n

(b) Performance of Obligations of Parent and Merger Sub<\/u>. Each of
\nParent and Merger Sub shall have performed in all material respects all
\nobligations required to be performed by it under this Agreement at or prior to
\nthe Closing Date, and the Company shall have received a certificate signed on
\nbehalf of Parent and Merger Sub by a senior executive officer of Parent to such
\neffect.<\/p>\n

Section 7.4 Frustration of Closing Conditions<\/u>. None of the Company,
\nParent or Merger Sub may rely on the failure of any condition set forth in
\nSection 7.2 or 7.3, as the case may be, to be satisfied to excuse such party153s
\nobligation to effect the Merger if such failure was caused by such party153s
\nfailure to use the standard of efforts required from such party to consummate
\nthe Merger and the other transactions contemplated by this Agreement, including
\nas required by and subject to Sections 6.8 and 6.15.<\/p>\n

ARTICLE VIII<\/p>\n

TERMINATION, AMENDMENT AND WAIVER<\/p>\n

Section 8.1 Termination by Mutual Consent<\/u>. This Agreement may be
\nterminated and the Merger may be abandoned at any time prior to the Effective
\nTime, whether before or after the adoption of this Agreement by the stockholders
\nof the Company referred to in Section 7.1(a), by mutual written consent of the
\nCompany and Parent by action of their respective boards of directors.<\/p>\n

Section 8.2 Termination by Either Parent or the Company<\/u>. This
\nAgreement may be terminated and the Merger may be abandoned at any time prior to
\nthe Effective Time by action of the board of directors of either Parent or the
\nCompany if (a) the Merger shall not have been consummated by May 22, 2011,
\nwhether such date is before or after the date of adoption of this Agreement by
\nthe stockholders of the Company referred to in Section 7.1(a) (such date the
\n“Termination Date<\/u>“); (b) the Stockholders Meeting shall have been held
\nand completed and adoption of this Agreement by the stockholders of the Company
\nreferred to in Section 7.1(a) shall not have been obtained at such Stockholders
\nMeeting or at any adjournment or postponement thereof; or (c) any Order
\npermanently restraining, enjoining or otherwise prohibiting consummation of the
\nMerger shall become final and non-appealable (whether before or after the
\nadoption of this Agreement by the stockholders of the Company referred to in
\nSection 7.1(a)), provided<\/u>, that the right to terminate this Agreement
\npursuant to this Section 8.2 shall not be available to any party that has
\nbreached in any material respect its obligations under this Agreement in any
\nmanner that shall have primarily contributed to the occurrence of the failure of
\na condition to the consummation of the Merger.<\/p>\n

Section 8.3 Termination by the Company<\/u>. This Agreement may be
\nterminated and the Merger may be abandoned by written notice of the Company:\n<\/p>\n

48<\/p>\n

\n

(a) at any time prior to the time the Company Requisite Vote is obtained, if
\n(i) the Company Board authorizes the Company, subject to complying with the
\nterms of this Agreement, to enter into one or more Alternative Acquisition
\nAgreements with respect to a Superior Proposal; (ii) immediately prior to or
\nsubstantially concurrently with the termination of this Agreement the Company
\nenters into one or more Alternative Acquisition Agreements with respect to a
\nSuperior Proposal; and (iii) the Company immediately prior to or substantially
\nconcurrently with such termination pays to Parent or its designees in
\nimmediately available funds any fees required to be paid pursuant to Section
\n8.5; or<\/p>\n

(b) if there has been a breach of any representation, warranty, covenant or
\nagreement made by Parent or Merger Sub in this Agreement, or any such
\nrepresentation and warranty shall have become untrue after the date of this
\nAgreement, such that the conditions set forth in Section 7.3(a) or 7.3(b) would
\nnot be satisfied and such breach or condition is not curable or, if curable, is
\nnot cured prior to the earlier of (i) thirty (30) calendar days after written
\nnotice thereof is given by the Company to Parent or (ii) two (2) Business Days
\nprior to the Termination Date; provided<\/u>, however<\/u>, that the Company
\nshall not have the right to terminate this Agreement pursuant to this Section
\n8.3(b) if it is then in material breach of this Agreement so as to cause any of
\nthe conditions set forth in Section 7.1, 7.2(a) or 7.2(b) not to be capable of
\nbeing satisfied;<\/p>\n

(c) if all of the conditions set forth in Sections 7.1 and 7.2 have been and
\ncontinue to be satisfied (other than those conditions that by their nature
\ncannot be satisfied other than at the Closing) and Parent and Merger Sub fail to
\nconsummate the transactions contemplated by this Agreement within two (2)
\nBusiness Days of the date the Closing should have occurred pursuant to Section
\n1.2 and the Company stood ready and willing to consummate on that date.<\/p>\n

Section 8.4 Termination by Parent<\/u>. This Agreement may be terminated
\nand the Merger may be abandoned at any time prior to the Effective Time by
\nwritten notice of Parent if (a) the Company Board (i) shall have made a Change
\nof Recommendation, (ii) fails to include in the Proxy Statement when mailed, the
\nCompany Recommendation or (iii) fails to recommend against acceptance of a
\ntender or exchange offer for any outstanding shares of capital stock of the
\nCompany that constitutes an Acquisition Proposal (other than by Parent or any of
\nits affiliates), including, for these purposes, by taking no position with
\nrespect to the acceptance of such tender offer or exchange offer by its
\nstockholders, which shall constitute a failure to recommend against acceptance
\nof such tender offer or exchange offer, within 10 Business Days after
\ncommencement (within the meaning of Rule 14d-2 promulgated under the Exchange
\nAct); (b) the Company enters into an Alternative Acquisition Agreement; or (c)
\nthere has been a breach of any representation, warranty, covenant or agreement
\nmade by the Company in this Agreement, or any such representation and warranty
\nshall have become untrue after the date of this Agreement, such that the
\nconditions set forth in Section 7.2(a) or 7.2(b) would not be satisfied and such
\nbreach cannot be or is not cured prior to the earlier of (i) thirty (30)
\ncalendar days after written notice thereof is given by Parent to the Company or
\n(ii) two (2) Business Days prior to the Termination Date; provided<\/u>,
\nhowever<\/u>, that Parent shall not have the right to terminate this Agreement
\npursuant to Section 8.4(c) if Parent is then in material breach of this
\nAgreement so as to cause any of the conditions set forth in Section 7.1, 7.3(a)
\nor 7.3(b) not to be capable of being satisfied.<\/p>\n

49<\/p>\n

\n

Section 8.5 Effect of Termination and Abandonment<\/u>.<\/p>\n

(a) In the event of termination of this Agreement and the abandonment of the
\nMerger pursuant to this Article VIII, this Agreement shall become void and of no
\neffect with no liability to any person on the part of any party hereto (or of
\nany of its Representatives or affiliates); provided<\/u>, however<\/u>, and
\nnotwithstanding anything in the foregoing to the contrary, that (i) except as
\notherwise provided herein and subject to Section 8.5(d) (including the
\nlimitation on liability set forth therein), no such termination shall relieve
\nany party hereto of any liability for damages to the other party hereto
\nresulting from knowing and intentional material breach of this Agreement and
\n(ii) the provisions set forth in this Section 8.5, Section 8.6, Section 6.15(b)
\n(with respect to Parent153s reimbursement and indemnification obligations) and
\nSection 9.1, the Confidentiality Agreements and the Guarantees (to the extent
\nset forth therein) shall survive the termination of this Agreement.<\/p>\n

(b) In the event that:<\/p>\n

(i) (x) before obtaining the Company Requisite Vote, this Agreement is
\nterminated pursuant to Section 8.2(a) or Section 8.2(b) or Section 8.4(c), (y)
\nany person shall have made and publicly disclosed an Acquisition Proposal after
\nthe date of this Agreement but prior to such termination, and such Acquisition
\nProposal shall not have been publicly withdrawn prior to such termination or,
\nwith respect to a termination pursuant to Section 8.2(b), at least 10 Business
\nDays prior to the Stockholders Meeting and (z) prior to or within nine (9)
\nmonths of such termination the Company shall have consummated any Acquisition
\nProposal (in each case whether or not such Acquisition Proposal is the same
\nAcquisition Proposal referred to in clause (y)) (provided<\/u> that for
\npurposes of this clause (z) the references to “15%” in the definition of
\n“Acquisition Proposal” shall be deemed to be references to “50%”);<\/p>\n

(ii) this Agreement is terminated by Parent pursuant to Section 8.4(a) or
\n8.4(b); or<\/p>\n

(iii) this Agreement is terminated by the Company pursuant to Section 8.3(a);\n<\/p>\n

then the Company shall (A) in the case of clause (i) above, within two (2)
\nBusiness Days after the date on which the Company consummates the Acquisition
\nProposal referred to in subclause (i)(z) above, (B) in the case of clause (ii)
\nabove, no later than two (2) Business Days after the date of such termination,
\nand (C) in the case of clause (iii) above, immediately prior to or substantially
\nconcurrently with such termination, pay Parent or its designee the Termination
\nFee (as defined below) by wire transfer of immediately available funds (it being
\nunderstood that in no event shall the Company be required to pay the Termination
\nFee on more than one occasion). “Termination Fee<\/u>” shall mean (A) an
\namount equal to $60,000,000 if the Termination Fee becomes payable in connection
\nwith the Company entering into an Alternative Acquisition Agreement with an
\nExcluded Party, and (B) an amount equal to $120,000,000 in all other
\ncircumstances (in the case of (A) or (B), less any Parent Expenses previously
\npaid by the Company pursuant to Section 8.6).<\/p>\n

(c) In the event that this Agreement is terminated pursuant to:<\/p>\n

(i) Section 8.3(b); or<\/p>\n

50<\/p>\n

\n

(ii) Section 8.3(c);<\/p>\n

then Parent shall within two (2) Business Days after the date of such
\ntermination, pay or cause to be paid to the Company an amount equal to
\n$249,000,000 (the “Parent Fee<\/u>“) by wire transfer of immediately available
\nfunds (it being understood that in no event shall Parent be required to pay the
\nParent Fee on more than one occasion).<\/p>\n

(d) The parties acknowledge that the agreements contained in Section 8.5 are
\nan integral part of the transactions contemplated by this Agreement, and that,
\nwithout these agreements, the parties would not enter into this Agreement;
\naccordingly, if the Company fails to promptly pay the amount due pursuant to
\nSection 8.5(b) or Section 8.6 or Parent fails to promptly pay the amount due
\npursuant to Section 8.5(c), and, in order to obtain such payment, Parent or
\nMerger Sub, on the one hand, or the Company, on the other hand, commences a suit
\nthat results in a judgment against the Company for the amount set forth in
\nSection 8.5(b) or Section 8.6 or any portion thereof or a judgment against
\nParent for the amount set forth in Section 8.5(c) or any portion thereof, the
\nCompany shall pay to Parent153s or Merger Sub153s designee, on the one hand, or
\nParent shall pay to the Company, on the other hand, its costs and expenses
\n(including attorneys153 fees) in connection with such suit, together with interest
\non such amount or portion thereof at the prime rate of Citibank N.A. in effect
\non the date such payment was required to be made through the date of payment.
\nNotwithstanding anything to the contrary in this Agreement, (i)(x) the Company153s
\nright to terminate this Agreement and receive the Parent Fee pursuant to this
\nSection 8.5 (including the right to enforce the Guarantees with respect thereto)
\nshall, subject to Section 9.10, be the sole and exclusive remedy of the Company
\nand its affiliates against Parent, Merger Sub, the Guarantors, the financing
\nsources under the Debt Financing Commitments and any of their respective former,
\ncurrent, or future general or limited partners, stockholders, managers, members,
\ndirectors, officers, affiliates, employees, representatives or agents
\n(“Parent Related Parties<\/u>“; provided, that for the avoidance of doubt, the
\nterm “Parent Related Parties” shall not include Parent, Merger Sub or any of
\ntheir subsidiaries) for any loss suffered as a result of any breach of any
\ncovenant or agreement in this Agreement or the failure of the Merger to be
\nconsummated, or in respect of any oral representation made or alleged to be have
\nbeen made in connection herewith, in each case, in any circumstance in which the
\nCompany is permitted to terminate this Agreement and receive the Parent Fee
\npursuant to this Section 8.5 and upon payment of such amounts, none of Parent,
\nMerger Sub, the Guarantors, the financing sources under the Debt Financing
\nCommitments or any of their respective former, current, or future general or
\nlimited partners, stockholders, managers, members, directors, officers,
\naffiliates, employees, representatives or agents shall have any further
\nliability or obligation relating to or arising out of this Agreement or the
\ntransactions contemplated by this Agreement (except that such parties shall
\nremain obligated for, and the Company and its subsidiaries may be entitled to
\nremedies with respect to, the Confidentiality Agreements, any reimbursement
\nobligations of Parent pursuant to the first sentence of this Section 8.5(d) and
\nthe indemnification, reimbursement and expense obligations of Parent contained
\nin Section 6.15(b)), the Guarantees, the Equity Commitment Letters or in respect
\nof any other document or theory of law or equity or in respect of oral
\nrepresentations made or alleged to be made in connection herewith or therewith,
\nwhether in equity or at law, in contract, in tort or otherwise and (y) in
\nconnection with any loss suffered as a result of any breach of any covenant or
\nagreement in this Agreement or the failure of the Merger to be consummated, or
\nin respect of any oral representation made or alleged to be have been made in
\nconnection herewith, in each case, other<\/p>\n

51<\/p>\n

\n

than in a circumstance in which the Company is permitted to terminate this
\nAgreement and receive the Parent Fee pursuant to this Section 8.5, the Company
\nagrees that the maximum aggregate liability of Parent and Merger Sub shall be
\nlimited to an amount equal to the amount of the Parent Fee, and in no event
\nshall the Company seek to recover any money damages in excess of such amount
\n(except that such parties shall remain obligated for, and the Company and its
\nsubsidiaries may be entitled to remedies with respect to, the Confidentiality
\nAgreements, any reimbursement obligations of Parent pursuant to the first
\nsentence of this Section 8.5(d) and the indemnification, reimbursement and
\nexpense obligations of Parent contained in Section 6.15(b)), and (ii) if Parent
\nhas the right to receive the Termination Fee from the Company pursuant to this
\nSection 8.5, the Termination Fee shall, subject to Section 9.10, be the sole and
\nexclusive remedy of Parent, Merger Sub, the Guarantors and their respective
\naffiliates against the Company, its subsidiaries and any of their respective
\nformer, current, or future general or limited partners, stockholders, directors,
\nofficers, managers, members, affiliates, employees, representatives or agents
\nfor any loss suffered as a result of any breach of any covenant or agreement in
\nthis Agreement giving rise to or associated with such termination, and upon
\npayment of such amounts, none of the Company, its subsidiaries or any of their
\nrespective former, current, or future general or limited partners, stockholders,
\ndirectors, officers, managers, members, affiliates, employees, representatives
\nor agents shall have any further liability or obligation relating to or arising
\nout of any such loss (except for any reimbursement and expense obligations of
\nthe Company pursuant to the first sentence of this Section 8.5(d)).<\/p>\n

Section 8.6 Expenses<\/u>. Except as otherwise specifically provided
\nherein, each party shall bear its own expenses in connection with this Agreement
\nand the transactions contemplated hereby. Expenses incurred in connection with
\nthe printing, filing and mailing of the Proxy Statement shall be shared equally
\nby Parent and the Company. Notwithstanding the foregoing, in the event of
\ntermination of this Agreement by (i) either party pursuant to Section 8.2(b) (or
\na termination by the Company pursuant to a different section of Section 8.2 at a
\ntime when this Agreement was terminable pursuant to Section 8.2(b)) or (ii)
\nParent pursuant to Section 8.4(c), then the Company shall promptly, but in no
\nevent later than three (3) Business Days after being notified of such by Parent
\nin the case of clauses (i) and (ii) of this Section 8.6, pay Parent153s designee
\nall of the documented out-of-pocket expenses (including all fees and expenses of
\ncounsel, accountants, investment bankers, financing sources, hedging
\ncounterparties, experts and consultants) incurred by Parent, Merger Sub and
\ntheir respective affiliates in connection with this Agreement and the
\ntransactions contemplated by this Agreement (the “Parent Expenses<\/u>“) up to
\na maximum amount of $15,000,000, by wire transfer of same day funds.<\/p>\n

Section 8.7 Amendment<\/u>. This Agreement may be amended by the parties
\nhereto by action taken by or on behalf of their respective boards of directors
\nat any time prior to the Effective Time, whether before or after adoption of
\nthis Agreement by the stockholders of the Company; provided<\/u>,
\nhowever<\/u>, that, after adoption of this Agreement by the stockholders of
\nthe Company, no amendment may be made which by law requires the further approval
\nof the stockholders of the Company without such further approval. This Agreement
\nmay not be amended except by an instrument in writing signed by the parties
\nhereto.<\/p>\n

Section 8.8 Waiver<\/u>. At any time prior to the Effective Time, any party
\nhereto may (a) extend the time for the performance of any of the obligations or
\nother acts of the other parties hereto, (b) waive any inaccuracies in the
\nrepresentations and warranties contained herein or in<\/p>\n

52<\/p>\n

\n

any document delivered pursuant hereto and (c) subject to the requirements of
\napplicable law, waive compliance with any of the agreements or conditions
\ncontained herein. Any such extension or waiver shall only be valid if set forth
\nin an instrument in writing signed by the party or parties to be bound thereby.
\nThe failure of any party to assert any rights or remedies shall not constitute a
\nwaiver of such rights or remedies.<\/p>\n

ARTICLE IX<\/p>\n

GENERAL PROVISIONS<\/p>\n

Section 9.1 Non-Survival of Representations, Warranties, Covenants and
\nAgreements<\/u>. None of the representations, warranties, covenants and
\nagreements in this Agreement or in any instrument delivered pursuant to this
\nAgreement, including any rights arising out of any breach of such
\nrepresentations, warranties, covenants and agreements, shall survive the
\nEffective Time, except for (a) those covenants and agreements contained herein
\nto the extent that by their terms apply or are to be performed in whole or in
\npart after the Effective Time and (b) those contained in this Article IX.<\/p>\n

Section 9.2 Notices<\/u>. All notices, requests, claims, demands and other
\ncommunications hereunder shall be in writing and shall be given (and shall be
\ndeemed to have been duly given upon receipt) by delivery in person, by
\nfacsimile, by registered or certified mail (postage prepaid, return receipt
\nrequested) or by electronic email (“e-mail<\/u>“) transmission (so long as a
\nreceipt of such e-mail is requested and received) to the respective parties at
\nthe following addresses (or at such other address for a party as shall be
\nspecified by like notice):<\/p>\n

(a) if to Parent or Merger Sub:<\/p>\n

Kohlberg Kravis Roberts & Co. L.P.<\/p>\n

9 West 57th St., Suite 4200<\/p>\n

New York, New York 10019<\/p>\n

Attention: Simon Brown<\/p>\n

Facsimile: (212) 750-0003<\/p>\n

E-Mail: Simon.Brown@kkr.com<\/p>\n

c\/o:<\/p>\n

Vestar Capital Partners V, L.P.<\/p>\n

c\/o Vestar Capital Partners<\/p>\n

245 Park Avenue<\/p>\n

41st Floor<\/p>\n

New York, New York 10167<\/p>\n

Attention: Brian K. Ratzan and Steven Della Rocca<\/p>\n

Facsimile: 212-808-4922<\/p>\n

E-Mail: bratzan@vestarcapital.com<\/p>\n

sdellarocca@vestarcapital.com<\/p>\n

c\/o:<\/p>\n

53<\/p>\n

\n

Centerview Partners, L.P.<\/p>\n

c\/o Centerview Partners<\/p>\n

16 School Street<\/p>\n

Rye, New York 10580<\/p>\n

Attention: David Hooper<\/p>\n

Facsimile: (914) 921-4816<\/p>\n

E-Mail: dhooper@centerviewpartners.com<\/p>\n

with an additional copy (which shall not constitute notice) to:<\/p>\n

Simpson Thacher & Bartlett LLP<\/p>\n

425 Lexington Avenue<\/p>\n

New York, New York 10017<\/p>\n

Attention: Marni J. Lerner, Esq.<\/p>\n

Facsimile: (212) 455-2502<\/p>\n

E-mail: mlerner@stblaw.com<\/p>\n

(b) if to the Company:<\/p>\n

Del Monte Foods Company<\/p>\n

One Market @ The Landmark<\/p>\n

San Francisco, CA 94105<\/p>\n

Attention: General Counsel<\/p>\n

Facsimile: 415-247-3263<\/p>\n

E-mail: James.Potter@delmonte.com<\/p>\n

with an additional copy (which shall not constitute notice) to:<\/p>\n

Gibson, Dunn & Crutcher LLP<\/p>\n

200 Park Avenue<\/p>\n

New York, NY 10166<\/p>\n

Attention: Dennis J. Friedman, Esq.<\/p>\n

Eduardo Gallardo, Esq.<\/p>\n

Facsimile: 212-351-3900<\/p>\n

E-mail: DFriedman@gibsondunn.com<\/p>\n

EGallardo@gibsondunn.com<\/p>\n

Section 9.3 Certain Definitions<\/u>. For purposes of this Agreement, the
\nterm:<\/p>\n

(a) “affiliate<\/u>” of a person means a person that directly or
\nindirectly, through one or more intermediaries, controls, is controlled by, or
\nis under common control with, the first mentioned person;<\/p>\n

(b) “Antitrust Law<\/u>” means the Sherman Act, as amended, the Clayton
\nAct, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and
\nall other federal, state and foreign, if any, statutes, rules, regulations,
\norders, decrees, administrative and judicial doctrines and other laws that are
\ndesigned or intended to prohibit, restrict or regulate actions<\/p>\n

54<\/p>\n

\n

having the purpose or effect of monopolization or restraint of trade or
\nlessening of competition through merger or acquisition;<\/p>\n

(c) “beneficially owned<\/u>” with respect to any Shares has the meaning
\nascribed to such term under Rule 13d-3(a) of the Exchange Act;<\/p>\n

(d) “Business Day<\/u>” means any day on which the principal offices of the
\nSEC in Washington, D.C. are open to accept filings or, in the case of
\ndetermining a date when any payment is due, any day on which banks are not
\nrequired or authorized by law to close in New York, New York;<\/p>\n

(e) “control<\/u>” (including the terms “controlled<\/u>,”
\n“controlled by<\/u>” and “under common control with<\/u>“) means the
\npossession, directly or indirectly or as trustee or executor, of the power to
\ndirect or cause the direction of the management policies of a person, whether
\nthrough the ownership of stock, as trustee or executor, by contract or credit
\narrangement or otherwise;<\/p>\n

(f) “Intellectual Property<\/u>” means U.S. and foreign intellectual
\nproperty, including all of the following to the extent subject to protection
\nunder applicable law (i) (a) patents, inventions, processes, developments,
\ntechnology and know-how; (b) copyrights, including copyrights in and works of
\nauthorship in any media, including graphics, advertising materials, labels,
\npackage designs and photographs; (c) trademarks, service marks, trade names,
\nbrand names, domain names, logos, trade dress and other source indicators; (d)
\ntrade secrets, confidential, proprietary or non-public information and (ii) all
\nregistrations, applications renewals, extensions, substitutions, continuations,
\ncontinuations-in-part, divisions, re-issues, re-examinations, foreign
\ncounterparts or similar legal protections related thereto;<\/p>\n

(g) “knowledge<\/u>” (i) with respect to the Company means the actual
\nknowledge of any of the persons listed in Section 9.3(g)(i) of the Company
\nDisclosure Schedule and (ii) with respect to Parent or Merger Sub means the
\nactual knowledge of any of the officers of Parent;<\/p>\n

(h) “Material Adverse Effect<\/u>” means any event, change, occurrence or
\ndevelopments or effect that would have or would reasonably be expected to have a
\nmaterial adverse effect on the business, financial condition or results of
\noperations of the Company and its subsidiaries taken as a whole, other than ,
\nany event, change, occurrence or developments or effect resulting from (i)
\nchanges in general economic, financial market, business or geopolitical
\nconditions, (ii) changes or developments in any of the industries in which the
\nCompany or its subsidiaries operate, (iii) changes in any applicable laws or
\napplicable accounting regulations or principles or interpretations thereof, (iv)
\nany change in the price or trading volume of the Shares, in and of itself
\n(provided<\/u>, that the facts or occurrences giving rise to or contributing
\nto such change that are not otherwise excluded from the definition of “Material
\nAdverse Effect” may be taken into account in determining whether there has been
\na Material Adverse Effect), (v) any failure by the Company to meet any published
\nanalyst estimates or expectations of the Company153s revenue, earnings or other
\nfinancial performance or results of operations for any period, in and of itself,
\nor any failure by the Company to meet its internal or published projections,
\nbudgets, plans or forecasts of its revenues, earnings or other financial
\nperformance or results of operations, in and of itself (provided<\/u>, that
\nthe facts or occurrences giving rise to or contributing to such failure that are
\nnot otherwise excluded from the definition of “Material Adverse Effect” may be
\ntaken into<\/p>\n

55<\/p>\n

\n

account in determining whether there has been a Material Adverse Effect),
\n(vi) any outbreak or escalation of hostilities or war or any act of terrorism,
\n(vii) the announcement of this Agreement and the transactions contemplated
\nhereby, including the initiation of litigation by any person with respect to
\nthis Agreement, and including any termination of, reduction in or other negative
\nimpact on relationships or dealings, contractual or otherwise, with any
\ncustomers, suppliers, distributors, partners or employees of the Company and its
\nsubsidiaries due to the announcement and performance of this Agreement or the
\nidentity of the parties to this Agreement (provided, that the exceptions in this
\nclause (vii) shall not be deemed to apply to references to “Material Adverse
\nEffect” in the representations and warranties set forth in Section 3.5, and to
\nthe extent related thereto, the condition in Section 7.1(a)), (viii) the
\nperformance of this Agreement and the transactions contemplated hereby,
\nincluding compliance with the covenants set forth herein, (ix) any action taken
\nby the Company, or which the Company causes to be taken by any of its
\nsubsidiaries (other than pursuant to Section 5.1), in each case which is
\nrequired by this Agreement or (x) any actions taken (or omitted to be taken
\n(other than pursuant to Section 5.1)) at the request of Parent or Merger Sub,
\nexcept in the case of each of clauses (i) through (iii) and (vi), to the extent
\nsuch changes have a disproportionately adverse impact on the Company and its
\nsubsidiaries, taken as a whole, relative to other industry participants;<\/p>\n

(i) “person<\/u>” means an individual, corporation, partnership, limited
\nliability company, association, trust, unincorporated organization, or other
\nentity;<\/p>\n

(j) “subsidiary<\/u>” or “subsidiaries<\/u>” of the Company, the
\nSurviving Corporation, Parent or any other person means any corporation,
\npartnership, joint venture or other legal entity of which the Company, the
\nSurviving Corporation, Parent or such other person, as the case may be (either
\nalone or through or together with any other subsidiary), owns, directly or
\nindirectly, 50% or more of the stock or other equity interests the holder of
\nwhich is generally entitled to vote for the election of the board of directors
\nor other governing body of such corporation or other legal entity;<\/p>\n

(k) “Taxes<\/u>” shall mean any taxes of any kind, including but not
\nlimited to those on or measured by or referred to as income, gross receipts,
\ncapital, sales, use, ad valorem, franchise, profits, license, withholding,
\npayroll, employment, excise, severance, stamp, occupation, premium, value added,
\nproperty or windfall profits taxes, customs, duties or similar fees, assessments
\nor charges of any kind whatsoever, together with any interest and any penalties,
\nadditions to tax or additional amounts imposed by any Governmental Entity,
\ndomestic or foreign; and<\/p>\n

(l) “Tax Return<\/u>” shall mean any return, report or statement (including
\ninformation returns) required to be filed with or provided to any Governmental
\nEntity or other person, or maintained, with respect to Taxes, including any
\nschedule or attachment thereto or amendment thereof.<\/p>\n

Section 9.4 Severability<\/u>. If any term or other provision of this
\nAgreement is invalid, illegal or incapable of being enforced by any rule of law
\nor public policy, all other conditions and provisions of this Agreement shall
\nnevertheless remain in full force and effect so long as the economic or legal
\nsubstance of the transactions contemplated hereby is not affected in any manner
\nadverse to any party. Upon such determination that any term or other provision
\nis<\/p>\n

56<\/p>\n

\n

invalid, illegal or incapable of being enforced, the parties hereto shall
\nnegotiate in good faith to modify this Agreement so as to effect the original
\nintent of the parties as closely as possible in an acceptable manner to the end
\nthat the transactions contemplated hereby are fulfilled to the fullest extent
\npossible. Notwithstanding the foregoing, the parties intend that the remedies
\nand limitations thereon contained in Section 8.5(d) be construed as an integral
\nprovision of this Agreement and that such remedies and limitations shall not be
\nseverable in any manner that increases a party153s liability or obligations
\nhereunder or under the Financing Commitments or the Guarantees.<\/p>\n

Section 9.5 Entire Agreement; Assignment<\/u>. This Agreement (including
\nthe Exhibits hereto), the Company Disclosure Schedule, the Equity Financing
\nCommitments, the Confidentiality Agreements and the Guarantees constitute the
\nentire agreement among the parties with respect to the subject matter hereof and
\nsupersede all prior agreements and undertakings, both written and oral, among
\nthe parties, or any of them, with respect to the subject matter hereof. This
\nAgreement shall not be assigned by operation of law or otherwise without the
\nprior written consent of each of the other parties.<\/p>\n

Section 9.6 Parties in Interest<\/u>. Except as provided in Section 6.7,
\nParent and the Company hereby agree that their respective representations,
\nwarranties and covenants set forth herein are solely for the benefit of the
\nother party hereto, in accordance with and subject to the terms of this
\nAgreement, and this Agreement is not intended to, and does not, confer upon any
\nperson other than the parties hereto any rights or remedies hereunder, including
\nthe right to rely upon the representations and warranties set forth herein. The
\nparties hereto further agree that the rights of third party beneficiaries under
\nSection 6.7 shall not arise unless and until the Effective Time occurs. In
\naddition, debt financing sources under the Debt Financing Commitments shall be
\nconsidered third party beneficiaries with respect to Section 8.5(d), Section
\n9.4, Section 9.11 and Section 9.13 and Parent Related Parties shall be
\nconsidered third party beneficiaries with respect to Section 8.3 and Section
\n9.14. The representations and warranties in this Agreement are the product of
\nnegotiations among the parties hereto and are for the sole benefit of the
\nparties hereto. Any inaccuracies in such representations and warranties are
\nsubject to waiver by the parties hereto in accordance with Section 8.8 without
\nnotice or liability to any other person. In some instances, the representations
\nand warranties in this Agreement may represent an allocation among the parties
\nhereto of risks associated with particular matters regardless of the knowledge
\nof any of the parties hereto. Consequently, persons other than the parties
\nhereto may not rely upon the representations and warranties in this Agreement as
\ncharacterizations of actual facts or circumstances as of the date of this
\nAgreement or as of any other date.<\/p>\n

Section 9.7 Governing Law<\/u>. This Agreement shall be governed by, and
\nconstrued in accordance with, the laws of the State of Delaware (without giving
\neffect to choice of law principles thereof).<\/p>\n

Section 9.8 Headings<\/u>. The descriptive headings contained in this
\nAgreement are included for convenience of reference only and shall not affect in
\nany way the meaning or interpretation of this Agreement.<\/p>\n

Section 9.9 Counterparts<\/u>. This Agreement may be executed and delivered
\n(including by facsimile, “.pdf,” or other electronic transmission) in one or
\nmore counterparts, and by the<\/p>\n

57<\/p>\n

\n

different parties hereto in separate counterparts, each of which when
\nexecuted shall be deemed to be an original but all of which taken together shall
\nconstitute one and the same agreement.<\/p>\n

Section 9.10 Specific Performance<\/u>. The parties agree that irreparable
\ndamage for which monetary damages, even if available, would not be an adequate
\nremedy, would occur in the event that the parties hereto do not perform the
\nprovisions of this Agreement (including failing to take such actions as are
\nrequired of it hereunder in order to consummate this Agreement) in accordance
\nwith its specified terms or otherwise breach such provisions. The parties
\nacknowledge and agree that the parties shall be entitled to an injunction,
\nspecific performance and other equitable relief to prevent breaches of this
\nAgreement and to enforce specifically the terms and provisions hereof, this
\nbeing in addition to any other remedy to which they are entitled at law or in
\nequity. Notwithstanding the foregoing, the parties hereby further acknowledge
\nand agree that prior to the Closing, the Company shall be entitled to seek
\nspecific performance (i) to enforce specifically the terms and provisions of,
\nand to prevent or cure breaches of Sections 6.8 and 6.15 by Parent or Merger
\nSub, and (ii) to cause Parent and\/or Merger Sub to draw down the full proceeds
\nof the Equity Financing and to cause Parent or Merger Sub to consummate the
\ntransactions contemplated hereby, including to effect the Closing in accordance
\nwith Section 1.2, on the terms and subject to the conditions in this Agreement,
\nif, but only if (with respect to this clause (ii)), (A) all conditions in
\nSections 7.1 and 7.2 (other than those conditions that by their nature are to be
\nsatisfied at the Closing) have been satisfied, (B) Parent and Merger Sub fail to
\ncomplete the Closing by the date the Closing is required to have occurred
\npursuant to Section 1.2, (C) the Debt Financing (or, if alternative financing is
\nbeing used in accordance with Section 6.15, pursuant to the commitments with
\nrespect thereto) has been funded or will be funded at the Closing if the Equity
\nFinancing is funded at the Closing and (D) the Company has irrevocably confirmed
\nthat if specific performance is granted and the Equity Financing and Debt
\nFinancing are funded, then the Closing will occur. Notwithstanding anything
\nherein to the contrary, it is hereby acknowledged and agreed that the Company
\nshall be entitled to seek specific performance to cause Parent and Merger Sub to
\nenforce the terms of the Debt Financing Commitment, including by demanding
\nParent and\/or Merger Sub file one or more lawsuits against the sources of Debt
\nFinancing to fully enforce such sources153 obligations thereunder and Parent153s and
\nMerger Sub153s rights thereunder, only in the event that each of the following
\nconditions has been satisfied: (i) all of the conditions set forth in Section
\n7.1 and 7.2 have been satisfied (other than those conditions that by their
\nnature are to be satisfied at the Closing), and Parent and Merger Sub fail to
\ncomplete the Closing by the date the Closing is required to have occurred
\npursuant to Section 1.2 and (ii) all of the conditions to the consummation of
\nthe financing provided by the Debt Financing Commitment (or, if alternative
\nfinancing is being used in accordance with Section 6.15, pursuant to the
\ncommitments with respect thereto) have been satisfied (other than those
\nconditions that by their nature are to be satisfied at the Closing). Each of the
\nparties agrees that it will not oppose the granting of an injunction, specific
\nperformance and other equitable relief as provided herein on the basis that (x)
\neither party has an adequate remedy at law or (y) an award of specific
\nperformance is not an appropriate remedy for any reason at law or equity. For
\nthe avoidance of doubt, under no circumstances will the Company be entitled to
\nmonetary damages in excess of the aggregate amount of (A) the Parent Fee, (B)
\nany reimbursement obligation of Parent pursuant to the first sentence of Section
\n8.5(d) and (C) the indemnification, reimbursement and expense obligations of
\nParent contained in Section 6.15(b). Any party seeking an injunction or
\ninjunctions to prevent breaches of this Agreement and to enforce specifically
\nthe terms and provisions of this<\/p>\n

58<\/p>\n

\n

Agreement shall not be required to provide any bond or other security in
\nconnection with any such order or injunction. Until such time as Parent pays the
\nParent Fee, the remedies available to the Company pursuant to this Section 9.10
\nshall be in addition to any other remedy to which it is entitled at law or in
\nequity, and the election to pursue an injunction or specific performance shall
\nnot restrict, impair or otherwise limit the Company from, in the alternative,
\nseeking to terminate this Agreement and collect the Parent Fee under Section
\n8.5.<\/p>\n

Section 9.11 Jurisdiction<\/u>. Each of the parties hereto (a) consents to
\nsubmit itself to the personal jurisdiction of the Delaware Court of Chancery and
\nany state appellate court therefrom within the State of Delaware (unless the
\nDelaware Court of Chancery shall decline to accept jurisdiction over a
\nparticular matter, in which case, in any Delaware state or federal court within
\nthe State of Delaware), in the event any dispute arises out of this Agreement or
\nany of the transactions contemplated by this Agreement, (b) agrees that it will
\nnot attempt to deny or defeat such personal jurisdiction by motion or other
\nrequest for leave from any such court, (c) agrees that it will not bring any
\naction relating to this Agreement or any of the transactions contemplated by
\nthis Agreement in any court other than the courts of the State of Delaware, as
\ndescribed above, and (d) consents to service being made through the notice
\nprocedures set forth in Section 9.2. Each of the Company, Parent and Merger Sub
\nhereby agrees that service of any process, summons, notice or document by U.S.
\nregistered mail to the respective addresses set forth in Section 9.2 shall be
\neffective service of process for any suit or proceeding in connection with this
\nAgreement or the transactions contemplated hereby. The parties hereby further
\nagree that New York state or United States Federal courts sitting in the borough
\nof Manhattan, City of New York shall have exclusive jurisdiction over any action
\nbrought against any financing source under the Debt Financing Commitments in
\nconnection with the transactions contemplated under this Agreement.<\/p>\n

Section 9.12 Interpretation<\/u>. When reference is made in this Agreement
\nto a Section, such reference shall be to a Section of this Agreement unless
\notherwise indicated. Whenever the words “include,” “includes” or “including” are
\nused in this Agreement, they shall be deemed to be followed by the words
\n“without limitation.” The words “hereof,” “herein,” “hereby” and “hereunder” and
\nwords of similar import when used in this Agreement shall refer to this
\nAgreement as a whole and not to any particular provision of this Agreement. The
\nword “or” shall not be exclusive. This Agreement shall be construed without
\nregard to any presumption or rule requiring construction or interpretation
\nagainst the party drafting or causing any instrument to be drafted.<\/p>\n

Section 9.13 WAIVER OF JURY TRIAL<\/u>. EACH OF PARENT, MERGER SUB AND THE
\nCOMPANY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
\nPROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
\nARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING ANY SUCH ACTION
\nINVOLVING THE FINANCING SOURCES UNDER THE DEBT FINANCING COMMITMENTS) OR THE
\nACTIONS OF PARENT OR THE COMPANY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE
\nAND ENFORCEMENT THEREOF.<\/p>\n

Section 9.14 No Recourse<\/u>. This Agreement may only be enforced against,
\nand any claims or causes of action that may be based upon, arise out of or
\nrelate to this Agreement, or the<\/p>\n

59<\/p>\n

\n

negotiation, execution or performance of this Agreement may only be made
\nagainst the entities that are expressly identified as parties hereto and no
\nParent Related Party (other than the Guarantors to the extent set forth in the
\nGuarantees or Equity Commitment Letters and other than the parties to the
\nConfidentiality Agreements to the extent set forth in the Confidentiality
\nAgreements) shall have any liability for any obligations or liabilities of the
\nparties to this Agreement or for any claim (whether in tort, contract or
\notherwise) based on, in respect of, or by reason of, the transactions
\ncontemplated hereby or in respect of any oral representations made or alleged to
\nbe made in connection herewith. Without limiting the rights of the Company
\nagainst Parent or Merger Sub hereunder, in no event shall the Company or any of
\nits affiliates, and the Company agrees not to and to cause its affiliates not
\nto, seek to enforce this Agreement against, make any claims for breach of this
\nAgreement against, or seek to recover monetary damages from, any Parent Related
\nParty (other than payment of the Guarantors to the extent set forth in the
\nGuarantees).<\/p>\n

[Remainder of Page Left Blank Intentionally] <\/em><\/p>\n

60<\/p>\n

\n

IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this
\nAgreement to be executed as of the date first written above by their respective
\nofficers thereunto duly authorized.<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

BLUE ACQUISITION GROUP, INC.<\/strong><\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ Simon Brown<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Name: Simon Brown<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Title: President & Chief Executive Officer<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

BLUE MERGER SUB INC.<\/strong><\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ Simon Brown<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Name: Simon Brown<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Title: President & Chief Executive Officer<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

DEL MONTE FOODS COMPANY<\/strong><\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n\n

\/s\/ David L. Meyers<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Name: David L. Meyers<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Title: Executive Vice President Administration and Chief Financial Officer\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

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