{"id":43151,"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-wolters-kluwer-u-s-corp-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-merger-wolters-kluwer-u-s-corp-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-merger-wolters-kluwer-u-s-corp-and.html","title":{"rendered":"Agreement and Plan of Merger &#8211; Wolters Kluwer U.S. Corp. and Waverly Inc."},"content":{"rendered":"<pre>                            AGREEMENT AND PLAN OF MERGER\n\n                                    BY AND AMONG\n\n                          WOLTERS KLUWER U.S. CORPORATION,\n\n                               MP ACQUISITION CORP.,\n                                          \n                                        and\n\n                                   WAVERLY, INC.\n                                          \n                                 February 10, 1998\n                                          \n                                          \n                                          \n\n\n \n\n\n\n                                  TABLE OF CONTENTS\n\nAGREEMENT AND PLAN OF MERGER . . . . . . . . . . . . . . . . . . . . . . . .  1\n\nRECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1\n\n                                    ARTICLE I\n\nTHE OFFER AND MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1\n          1.1  The Offer . . . . . . . . . . . . . . . . . . . . . . . . . .  1\n          1.2  Company Actions . . . . . . . . . . . . . . . . . . . . . . .  4\n          1.3  Directors . . . . . . . . . . . . . . . . . . . . . . . . . .  6\n          1.4  The Merger. . . . . . . . . . . . . . . . . . . . . . . . . .  7\n          1.5  Effective Time. . . . . . . . . . . . . . . . . . . . . . . .  8\n          1.6  Closing . . . . . . . . . . . . . . . . . . . . . . . . . . .  8\n          1.7  Articles of Incorporation of\n               the Surviving Corporation  . . . . . . . . . . . . . . . . . . 8\n          1.8  By-Laws of the Surviving \n               Corporation  . . . . . . . . . . . . . . . . . . . . . . . . . 8\n          1.9  Directors and Officers of the \n               Surviving Corporation  . . . . . . . . . . . . . . . . . . . . 9\n          1.10 Shareholders' Meeting  . . . . . . . . . . . . . . . . . . . . 9\n          1.11 Merger Without Meeting of\n               Shareholders  . . . . . . . . . . . . . . . . . . . . . . . . 10\n\n\n                                   ARTICLE II\n\nCONVERSION OF SECURITIES   . . . . . . . . . . . . . . . . . . . . . . . . . 11\n          2.1  Conversion of Capital Stock   . . . . . . . . . . . . . . . . 11\n          2.2  Exchange of Certificates  . . . . . . . . . . . . . . . . . . 12\n\n                                   ARTICLE III\n\nREPRESENTATIONS AND WARRANTIES OF THE COMPANY  . . . . . . . . . . . . . . . 14\n          3.1  Corporate Organization and\n               Qualification . . . . . . . . . . . . . . . . . . . . . . . . 14\n          3.2  Capitalization. . . . . . . . . . . . . . . . . . . . . . . . 14\n          3.3  Authority Relative to This\n               Agreement  . . . . . . . . . . . . . . . . . . . . . . . . . .15\n          3.4  Consents and Approvals; No \n               Violation  . . . . . . . . . . . . . . . . . . . . . . . . . .16\n          3.5  SEC Reports; Financial\n\n                                       ii\n\n\n               Statements. . . . . . . . . . . . . . . . . . . . . . . . . . .17\n          3.6  Absence of Certain Changes \n               Or Events . . . . . . . . . . . . . . . . . . . . . . . . . . .18\n          3.7  Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . .18\n          3.8  Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18\n          3.9  Employee Benefit Plans; Labor \n               Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . .19\n          3.10 Environmental Laws and \n               Regulations . . . . . . . . . . . . . . . . . . . . . . . . . .21\n          3.11 Intangible Property; Copyrights . . . . . . . . . . . . . . . .22\n          3.12 Compliance with Applicable Laws . . . . . . . . . . . . . . . .22\n          3.13 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . ..23\n          3.14 Approvals; Antitakeover \n               Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . .23\n          3.15 Voting Requirements . . . . . . . . . . . . . . . . . . . . . .24\n          3.16 Brokers and Finders . . . . . . . . . . . . . . . . . . . . . .24\n          3.17 Opinion of Financial Advisors . . . . . . . . . . . . . . . . .24\n          3.18 Information Supplied. . . . . . . . . . . . . . . . . . . . . .24\n          3.19 Confidentiality Agreements. . . . . . . . . . . . . . . . . . .25\n\n                                   ARTICLE IV\n\nREPRESENTATIONS AND WARRANTIES OF PARENT\nAND NEWCO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25\n          4.1  Corporate Organization and\n               Qualification . . . . . . . . . . . . . . . . . . . . . . . . .25\n          4.2  Authority Relative to This \n               Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . .26\n          4.3  Consents and Approvals; No \n               Violation . . . . . . . . . . . . . . . . . . . . . . . . . . .26\n          4.4  Interim Operations of Newco . . . . . . . . . . . . . . . . . .27\n          4.5  Sufficient Funds. . . . . . . . . . . . . . . . . . . . . . . .27\n          4.6  Share Ownership . . . . . . . . . . . . . . . . . . . . . . . .27\n          4.7  Information in Proxy Statement\n               and Schedule 14D-9. . . . . . . . . . . . . . . . . . . . . . .27\n          4.8  Investigation by Parent . . . . . . . . . . . . . . . . . . . .28\n          4.9  Brokers and Finders . . . . . . . . . . . . . . . . . . . . . .29\n\n                                    ARTICLE V\n\nADDITIONAL COVENANTS AND AGREEMENTS. . . . . . . . . . . . . . . . . . . . . .29\n          5.1  Interim Operations of the \n               Company . . . . . . . . . . . . . . . . . . . . . . . . . . . .29\n          5.2  Alternative Proposals . . . . . . . . . . . . . . . . . . . . .32\n          5.3  Certain Filings . . . . . . . . . . . . . . . . . . . . . . . .33\n          5.4  Satisfaction of Conditions;\n               Receipt of Necessary Approvals. . . . . . . . . . . . . . . . .33\n\n                                       iii\n\n\n          5.5  Access to Information . . . . . . . . . . . . . . . . . . . . .34\n          5.6  Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . .34\n          5.7  Directors' and Officers' Insurance\n               and Indemnification . . . . . . . . . . . . . . . . . . . . . .35\n          5.8  Employees . . . . . . . . . . . . . . . . . . . . . . . . . . .37\n          5.9  Corporate Presence. . . . . . . . . . . . . . . . . . . . . . .39\n          5.10 Conduct of Business of Newco. . . . . . . . . . . . . . . . . .39\n          5.11 Certain Filings . . . . . . . . . . . . . . . . . . . . . . . .39\n          5.12 Further Assurances. . . . . . . . . . . . . . . . . . . . . . .39\n\n                                   ARTICLE VI\n\nCONDITIONS TO CONSUMMATION OF THE MERGER . . . . . . . . . . . . . . . . . . .40\n          6.1  Conditions to Each Party's\n               Obligations to Effect the Merger. . . . . . . . . . . . . . . .40\n          6.2  Additional Conditions to the \n               Obligations of Parent and Newco . . . . . . . . . . . . . . . .41\n          6.3  Additional Conditions to the \n               Obligations of the Company. . . . . . . . . . . . . . . . . . .41\n\n                                   ARTICLE VII\n\nTERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42\n          7.1  Termination . . . . . . . . . . . . . . . . . . . . . . . . . .42\n          7.2  Effect of Termination . . . . . . . . . . . . . . . . . . . . .46\n\n                                  ARTICLE VIII\n\nMISCELLANEOUS AND GENERAL. . . . . . . . . . . . . . . . . . . . . . . . . . .46\n          8.1  Payment of Expenses and Other\n               Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . .46\n          8.2  Survival of Representations and Warranties; Survival of\n               Confidentiality Agreement . . . . . . . . . . . . . . . . . . .47\n          8.3  Modification or Amendment . . . . . . . . . . . . . . . . . . .47\n          8.4  Waiver of Conditions. . . . . . . . . . . . . . . . . . . . . .47\n          8.5  Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . .47\n          8.6  Governing Law . . . . . . . . . . . . . . . . . . . . . . . . .47\n          8.7  Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . .48\n          8.8  Entire Agreement; Assignment. . . . . . . . . . . . . . . . . .49\n          8.9  Parties in Interest . . . . . . . . . . . . . . . . . . . . . .49\n          8.10 Certain Definitions . . . . . . . . . . . . . . . . . . . . . .49\n          8.11 Obligation of Parent. . . . . . . . . . . . . . . . . . . . . .50\n          8.12 Validity. . . . . . . . . . . . . . . . . . . . . . . . . . . .50\n          8.13 Interpretation. . . . . . . . . . . . . . . . . . . . . . . . .51\n          8.14 Captions. . . . . . . . . . . . . . . . . . . . . . . . . . . .51\n          8.15 Specific Performance. . . . . . . . . . . . . . . . . . . . . .51\n\n                                       iv\n\n\n          8.16 Joint and Several Liability . . . . . . . . . . . . . . . . . .52\n          8.17 Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . .52\n\nANNEX A; CONDITIONS TO THE OFFER . . . . . . . . . . . . . . . . . . . . . . A-1\n\n                                        v\n\n\n \n\n\n                             AGREEMENT AND PLAN OF MERGER\n\n\n          AGREEMENT AND PLAN OF MERGER (this \"Agreement\"), dated as of \nFebruary 10, 1998, by and among Wolters Kluwer U.S. Corporation, a Delaware \ncorporation (\"Parent\"), MP Acquisition Corp., a Maryland corporation and a \nwholly owned subsidiary of Parent (\"Newco\"), and Waverly, Inc., a Maryland \ncorporation (the \"Company\").\n\n                                       RECITALS\n\n          WHEREAS, the respective Boards of Directors of Parent, Newco and \nthe Company have, subject to the conditions of this Agreement, determined \nthat the Merger (as defined below) is in the best interests of their \nrespective stockholders and approved this Agreement and the transactions \ncontemplated hereby; and\n\n          WHEREAS, Parent, Newco and the Company desire to make certain \nrepresentations, warranties, covenants and agreements in connection with the \nMerger;\n\n          NOW, THEREFORE, in consideration of the foregoing and the mutual \nrepresentations, warranties, covenants and agreements set forth herein, and \nin consideration of the execution and delivery by Parent, Newco and the \nStockholders named therein of a stock option and tender agreement (the \"Stock \nOption and Tender Agreement\") Parent, Newco and the Company hereby agree as \nfollows:\n\n                                      ARTICLE I\n\n                                 THE OFFER AND MERGER\n\n          1.1  The Offer.  (a) As promptly as practicable (but in no event \nlater than five business days after the public announcement of the execution \nhereof), Newco shall commence (within the meaning of Rule 14d-2 under the \nSecurities Exchange Act of 1934, as amended (the \"Exchange Act\")) an offer \n(the \"Offer\") to purchase for cash all shares of the issued and outstanding \nCommon Stock, par value $2.00 per share (referred to herein as either the \n\"Shares\" or \"Company Common Stock\"), of the Company at a price of $ 39.00 per \nShare, net to the \n\n\n\nseller in cash (such price, or such higher price per Share as may be paid in \nthe Offer, being referred to herein as the \"Offer Price\"), subject to there \nbeing validly tendered and not withdrawn prior to the expiration of the \nOffer, that number of Shares which, together with the Shares beneficially \nowned by Parent or Newco, represent at least two-thirds of the Shares \noutstanding on a fully diluted basis (the \"Minimum Condition\") and to the \nother conditions set forth in Annex A hereto.  Newco shall, on the terms and \nsubject to the prior satisfaction or waiver (except that the Minimum \nCondition may not be waived) of the conditions of the Offer, accept for \npayment and pay for Shares tendered as soon as it is legally permitted to do \nso under applicable law.  The obligations of Newco to commence the Offer and \nto accept for payment and to pay for any Shares validly tendered on or prior \nto the expiration of the Offer and not withdrawn shall be subject only to the \nMinimum Condition and the other conditions set forth in Annex A hereto.  The \nOffer shall be made by means of an offer to purchase (the \"Offer to \nPurchase\") containing the terms set forth in this Agreement, the Minimum \nCondition and the other conditions set forth in Annex A hereto.  Newco \nexpressly reserves the right to amend any of the terms and conditions of the \nOffer; provided that Newco shall not amend or waive the Minimum Condition, \ndecrease the Offer Price or decrease the number of Shares sought, change the \nform of consideration to be paid pursuant to the Offer, impose conditions to \nthe Offer in addition to those set forth in Annex A hereto, or amend any \nother term or condition of the Offer in any manner adverse to the holders of \nthe Shares or extend the expiration date of the Offer without the prior \nwritten consent of the Company (such consent to be authorized by the Board of \nDirectors of the Company or a duly authorized committee thereof). \nNotwithstanding the foregoing, Newco shall, and Parent agrees to cause Newco \nto, extend the Offer for a period of ten business days following the initial \nexpiration date of the Offer, if any conditions to the Offer have not been \nsatisfied or waived at such date.  In addition, following such first \nextension of the Offer as provided in the preceding sentence, Newco shall, \nand Parent agrees to cause Newco to, extend the Offer at any time up to six \n(6) months from the execution of this Agreement, for one or more periods of \nnot more than ten business days, if at the expiration date of the Offer, as \nextended, all conditions to the Offer have not been satisfied or waived.  In \naddition, \n\n                                       2\n\n\nthe Offer Price may be increased and the Offer may be extended to the extent \nrequired by law in connection with such increase in each case without the \nconsent of the Company.\n\n               (b)    As soon as practicable on the date the Offer is \ncommenced, Parent and Newco shall file with the United States Securities and \nExchange Commission (the \"SEC\") a Tender Offer Statement on Schedule 14D-1 \nwith respect to the Offer (together with all amendments and supplements \nthereto and including the exhibits thereto, the \"Schedule 14D-1\").  The \nSchedule 14D-1 will include, as exhibits, the Offer to Purchase and a form of \nletter of transmittal and summary advertisement (collectively, together with \nany amendments and supplements thereto, the \"Offer Documents\").  Parent and \nNewco represent that the Offer Documents will comply in all material respects \nwith the provisions of applicable federal securities laws and, on the date \nfiled with the SEC and on the date first published, sent or given to the \nCompany's shareholders, shall not 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 \ncircumstances under which they were made, not misleading, except that no \nrepresentation is made by Parent or Newco with respect to information \nsupplied by the Company in writing for inclusion in the Offer Documents.  \nEach of Parent and Newco further agrees to take all steps necessary to cause \nthe Offer Documents to be filed with the SEC and to be disseminated to \nholders of Shares, in each case as and to the extent required by applicable \nfederal securities laws.  Each of Parent and Newco, on the one hand, and the \nCompany, on the other hand, agrees promptly to correct any information \nprovided by it for use in the Offer Documents if and to the extent that it \nshall have become false and misleading in any material respect and each of \nParent and Newco further agrees to take all steps necessary to cause the \nOffer Documents as so corrected to be filed with the SEC and to be \ndisseminated to holders of Shares, in each case as and to the extent required \nby applicable federal securities laws.  The Company and its counsel shall be \ngiven a reasonable opportunity to review the Schedule 14D-1 and the Offer \nDocuments before they are filed with the SEC.  In addition, Parent and Newco \nagree to provide the Company and its counsel in writing with any comments or \nother communications that Parent, Newco or their counsel \n\n                                       3\n\n\nmay receive from time to time from the SEC or its staff with respect to the \nOffer Documents promptly after the receipt of such comments or other \ncommunications.\n\n          1.2  Company Actions.\n\n               (a)  The Company hereby approves of and consents to the Offer \nand represents that the Board of Directors, at a meeting duly called and \nheld, has (i) unanimously approved this Agreement and the transactions \ncontemplated hereby, including the Offer and the Merger (collectively, the \n\"Transactions\"), (ii) adopted a resolution by the unanimous vote of the Board \nof Directors approving the acquisition of Shares by Parent and Newco pursuant \nto the Offer, which resolution constitutes approval of the acquisition of \nShares pursuant to the Offer under Section 3-603 of the Maryland General \nCorporation Law (the \"MGCL\"); (iii) adopted a resolution by the unanimous \nvote of the Board of Directors which declares that the Transactions are \nadvisable on substantially the terms and conditions set forth or referred to \nin the resolution in accordance with Section 3-105 of the MGCL; (iv) \nunanimously determined that as of the date hereof the Transactions are fair \nto and in the best interest of the Company's shareholders and (v) unanimously \nresolved to recommend that the shareholders of the Company accept the Offer, \ntender their Shares thereunder to Newco and approve and adopt this Agreement \nand the Merger; provided, that such recommendation may be withdrawn, modified \nor amended if, in the opinion of the Board of Directors, after consultation \nwith its legal counsel, such recommendation would be inconsistent with its \nfiduciary duties to the Company's shareholders under applicable law.  The \nCompany represents that it has previously  approved an amendment to the \nCompany's By-laws that exempts the acquisition of Shares pursuant to the \nTransactions from the provisions of Section 3-702 of the MGCL.  The Company \nhas been advised that all of its directors and executive officers intend \neither to tender their Shares pursuant to the Offer or to vote their Shares \nin favor of the Merger.\n\n               (b)  As promptly as practicable following the commencement of \nthe Offer, the Company shall file with the SEC a Solicitation\/Recommendation \nStatement on \n\n                                       4\n\n\nSchedule 14D-9 (together with all amendments and supplements thereto and \nincluding the exhibits thereto, the \"Schedule 14D-9\") which shall, subject to \nthe fiduciary duties of the Company's directors under applicable law and to \nthe provisions of this Agreement, contain the recommendation referred to in \nclause (v) of Section 1.2(a) hereof.  The Company represents that the \nSchedule 14D-9 will comply in all material respects with the provisions of \napplicable federal securities laws and, on the date filed with the SEC and on \nthe date first published, sent or given to the Company's shareholders, shall \nnot contain any untrue statement of a material fact or omit to state any \nmaterial fact required to be stated therein or necessary in order to make the \nstatements therein, in light of the circumstances under which they were made, \nnot misleading, except that no representation is made by the Company with \nrespect to information supplied by Parent or Newco for inclusion in the \nSchedule 14D-9.  The information supplied by Parent or Newco for inclusion in \nthe Schedule 14D-9 shall not, on the date filed with the SEC and on the date \nfirst published, sent or given to the Company's stockholders, contain any \nuntrue statement of a material fact or omit to state any material fact \nrequired to be stated therein or necessary in order to make the statements \ntherein, in light of the circumstances under which they were made, not \nmisleading.  The Company further agrees to take all steps necessary to cause \nthe Schedule 14D-9 to be filed with the SEC and to be disseminated to holders \nof Shares, in each case as and to the extent required by applicable federal \nsecurities laws.  Each of the Company, on the one hand, and Parent and Newco, \non the other hand, agrees promptly to correct any information provided by it \nfor use in the Schedule 14D-9 if and to the extent that it shall have become \nfalse and misleading in any material respect and the Company further agrees \nto take all steps necessary to cause the Schedule 14D-9 as so corrected to be \nfiled with the SEC and to be disseminated to holders of the Shares, in each \ncase as and to the extent required by applicable federal securities laws.  \nParent and its counsel shall be given a reasonable opportunity to review the \ninitial Schedule 14D-9 before it is filed with the SEC.  In addition, the \nCompany agrees to provide Parent, Newco and their counsel in writing with any \ncomments or other communications that the Company or its counsel may receive \nfrom time to time from the SEC or its staff with \n\n                                       5\n\n\nrespect to the Schedule 14D-9 promptly after the receipt of such comments or \nother communications.  \n\n               (c)  In connection with the Offer, if requested by Parent, the \nCompany will promptly furnish or cause to be furnished to Parent mailing \nlabels, security position listings and any available listing or computer file \ncontaining the names and addresses of the record holders of the Shares as of \na recent date, and shall furnish Parent with such information and assistance \nas Parent or its agents may reasonably request in communicating the Offer to \nthe shareholders of the Company.  Except for such steps as are necessary to \ndisseminate the Offer Documents, Parent and Newco shall hold in confidence \nthe information contained in any of such labels and lists and the additional \ninformation referred to in the preceding sentence, will use such information \nonly in connection with the Offer, and, if this Agreement is terminated, will \nupon request of the Company deliver or cause to be delivered to the Company \nall copies of such information then in its possession or the possession of \nits agents or representatives.\n\n          1.3  Directors.\n\n               (a)  Promptly upon the purchase of and payment for Shares by \nParent or any of its Subsidiaries (as defined in Section 8.10) which \nrepresent at least two-thirds of the outstanding shares of Company Common \nStock (on a fully diluted basis), Parent shall be entitled to designate such \nnumber of directors, rounded up to the next whole number, on the Board of \nDirectors of the Company as is equal to the product of the total number of \ndirectors on such Board (giving effect to the directors designated by Parent \npursuant to this sentence) multiplied by the percentage that the aggregate \nnumber of Shares beneficially owned by Newco, Parent and any of their \naffiliates bears to the total number of shares of Company Common Stock then \noutstanding.  The Company shall take all action necessary to cause Parent's \ndesignees to be elected or appointed to the Company's Board of Directors and \nto secure the resignations of such number of its incumbent directors as is \nnecessary to enable Parent's designees to be so elected to the Company's \nBoard, and shall cause Parent's designees to be so elected.  At such times, \nthe Company will take all action necessary to cause individuals designated by \nParent to constitute the \n\n                                       6\n\n\nsame percentage as such individuals represent on the Company's Board of \nDirectors of (A) each committee of the Board and (B) each board of directors \n(and committee thereof) of each Subsidiary in each case to the extent \npermitted by the National Association of Securities Dealers (the \"NASD\") \nRules. Notwithstanding the foregoing, until the Effective Time (as defined in \nSection 1.5 hereof), the Company shall retain as members of its Board of \nDirectors at least two (2) directors that are directors of the Company on the \ndate hereof (the \"Company Designees\"); provided, that subsequent to the \npurchase of and payment for Shares pursuant to the Offer, Parent shall always \nhave its designees represent at least a majority of the entire Board of \nDirectors.  The Company's obligations under this Section 1.3(a) shall be \nsubject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated \nthereunder.  The Company shall promptly take all actions required pursuant to \nsuch Section 14(f) and Rule 14f-1 in order to fulfill its obligations under \nthis Section 1.3(a), including mailing to shareholders the information \nrequired by such Section 14(f) and Rule 14f-1 as is necessary to enable \nParent's designees to be elected to the Company's Board of Directors.  Parent \nor Newco will supply the Company any information with respect to either of \nthem and their nominees, officers, directors and affiliates required by such \nSection 14(f) and Rule 14f-1.\n\n               (b)    From and after the time, if any, that Parent's \ndesignees constitute a majority of the Company's Board of Directors, any \namendment of this Agreement, any termination of this Agreement by the \nCompany, any extension of time for performance of any of the obligations of \nParent or Newco hereunder, any waiver of any condition or any of the \nCompany's rights hereunder or other action by the Company hereunder may be \neffected only by the action of a majority of the directors of the Company \nthen in office who were directors of the Company on the date hereof, which \naction shall be deemed to constitute the action of the full Board of \nDirectors; provided, that if there shall be no such directors, such actions \nmay be effected by the unanimous vote of the entire Board of Directors of the \nCompany.\n\n          1.4  The Merger. Subject to the terms and conditions of this \nAgreement, at the Effective Time (as defined in Section 1.5 hereof), the \nCompany and Newco \n\n                                       7\n\n\nshall consummate a merger (the \"Merger\") pursuant to which (a) Newco shall be \nmerged with and into the Company and the separate corporate existence of \nNewco shall thereupon cease, (b) the Company shall be the successor or \nsurviving corporation in the Merger and shall continue to be governed by the \nlaws of the State of Maryland and (c) the separate corporate existence of the \nCompany with all its rights, privileges, immunities, powers and franchises \nshall continue unaffected by the Merger.  The corporation surviving the \nMerger is sometimes hereinafter referred to as the \"Surviving Corporation.\"  \nThe Merger shall have the effects set forth in the MGCL.\n\n          1.5  Effective Time.  Parent, Newco and the Company will cause \nappropriate Articles of Merger (the \"Articles of Merger\") to be executed and \nfiled on the date of the Closing (as defined in Section 1.6) (or on such \nother date as Parent and the Company may agree) with the State Department of \nAssessments and Taxation of the State of Maryland as provided in the MGCL.  \nThe Merger shall become effective at the time at which the Articles of Merger \nhave been duly filed with the State Department of Assessments and Taxation of \nthe State of Maryland or at such time as is agreed upon by the parties and \nspecified in the Articles of Merger, and such time is hereinafter referred to \nas the \"Effective Time.\"\n\n          1.6  Closing.  The closing of the Merger (the \"Closing\") shall take \nplace (a) at the offices of Skadden, Arps, Slate, Meagher &amp; Flom, 1440 New \nYork Avenue, Washington, D.C. as soon as practicable following the \nsatisfaction or waiver of all of the conditions set forth in Article VI \nhereof or (b) at such other place, time and date as Parent and the Company \nmay agree.\n\n          1.7  Articles of Incorporation of the Surviving Corporation.  The \nArticles of Incorporation of the Company, as in effect immediately prior to \nthe Effective Time, shall be the Articles of Incorporation of the Surviving \nCorporation until thereafter amended as provided by law and such Articles of \nIncorporation.\n\n          1.8  By-Laws of the Surviving Corporation.  The By-Laws of Newco, \nas in effect immediately prior to the Effective Time, shall be the By-Laws of \nthe Surviving Corporation until thereafter amended as provided by law, \n\n                                       8\n\n\nthe Articles of Incorporation of the Surviving Corporation and such By-Laws.\n\n          1.9  Directors and Officers of the Surviving Corporation.  The \ndirectors and officers of Newco at the Effective Time shall, from and after \nthe Effective Time, be the initial directors and officers, respectively, of \nthe Surviving Corporation until their successors have been duly elected or \nappointed and qualified or until their earlier death, resignation or removal \nin accordance with the Surviving Corporation's Articles of Incorporation and \nBy-Laws.\n\n          1.10   Shareholders' Meeting.\n\n               (a) If required by applicable law in order to consummate the \nMerger, the Company, acting through its Board of Directors, shall, in \naccordance with applicable law:\n\n                    (i)  duly call, give notice of, convene and hold a special\n     meeting of its shareholders (the \"Special Meeting\") as soon as practicable\n     following the acceptance for payment and purchase of Shares by Newco\n     pursuant to the Offer for the purpose of considering and taking action upon\n     this Agreement;\n\n                    (ii)  prepare and file with the SEC a preliminary proxy or\n     information statement relating to the Merger and this Agreement and shall\n     (x) obtain and furnish the information required to be included by the SEC\n     in the Proxy Statement (as hereinafter defined) and, after consultation\n     with Parent, to respond promptly to any comments made by the SEC with\n     respect to the preliminary proxy or information statement and cause a\n     definitive proxy or information statement (the \"Proxy Statement\") to be\n     mailed to its shareholders and (y) obtain the necessary approvals of the\n     Merger and this Agreement by its shareholders; and \n\n                    (iii)  subject to the fiduciary obligations of the Board\n     under applicable law as advised by its legal counsel, include in the Proxy\n     Statement the recommendation of the Board that shareholders of \n\n                                       9\n\n\n     the Company vote in favor of the approval of the Merger and the adoption of\n     this Agreement.\n\n               (b)  Parent agrees that it will provide the Company with the \ninformation concerning Parent and Newco required to be included in the Proxy \nStatement and will vote, or cause to be voted, all of the Shares then owned \nby it, Newco or any of its other Subsidiaries and affiliates in favor of the \napproval of the Merger and the adoption of this Agreement.\n\n               (c)  The Company represents that the Proxy Statement (or any \namendment thereof or supplement thereto) at the date mailed to Company \nstockholders and at the time of the Special Meeting will not contain any \nuntrue statement of material fact or omit to state any material fact required \nto be stated therein or necessary in order to make the statements therein, in \nlight of the circumstances under which they are made, not misleading, except \nthat no representation is made by the Company with respect to statements made \ntherein based on information supplied by Parent or Newco in writing for \ninclusion in the Proxy Statement.  If at any time prior to the Effective Time \nany event with respect to the Company or any of its Subsidiaries should occur \nwhich is required to be described in a supplement to the Proxy Statement, \nsuch event shall be so described, and such supplement shall be promptly filed \nwith the SEC and, as required by law, disseminated to the stockholders of the \nCompany.  With respect to the information relating to the Company, the Proxy \nStatement will comply as to form and substance in all material respects with \nthe requirements of the Exchange Act.\n\n          1.11  Merger Without Meeting of Shareholders.  Notwithstanding \nSection 1.10 hereof, in the event that Parent, Newco or any other Subsidiary \nof Parent shall acquire at least 90% of the outstanding shares of each class \nof capital stock of the Company, pursuant to the Offer or otherwise, the \nparties hereto agree to take all necessary and appropriate action to cause \nthe Merger to become effective as soon as practicable after such acquisition, \nwithout a meeting of shareholders of the Company, in accordance with Section \n3-106 of the MGCL.\n\n                                       10\n\n\n\n\n                                      ARTICLE II\n\n                               CONVERSION OF SECURITIES\n\n          2.1  Conversion of Capital Stock.  As of the Effective Time, by \nvirtue of the Merger and without any action on the part of the holders of any \nshares of Company Common Stock or common stock, par value $ .01 per share, of \nNewco (\"Newco Common Stock\"):\n\n               (a)    Newco Common Stock.  Each issued and outstanding share \nof Newco Common Stock shall be converted into and become one fully paid and \nnonassessable share of common stock of the Surviving Corporation with the \nsame rights, powers and privileges as the shares so converted and shall \nconstitute the only outstanding shares of capital stock of the Surviving \nCorporation.\n\n               (b)    Cancellation of Treasury Stock and Parent-Owned Stock. \nAll shares of Company Common Stock that are owned by the Company as treasury \nstock and any shares of Company Common Stock owned by Parent, Newco or any \nother wholly owned Subsidiary of Parent shall be cancelled and retired and \nshall cease to exist and no consideration shall be delivered in exchange \ntherefor.\n\n               (c)    Exchange of Shares.  Each share of Company Common Stock \nissued and outstanding (other than Shares to be cancelled in accordance with \nSection 2.1(b) hereof), shall be converted into the right to receive the \nOffer Price, payable to the holder thereof, without interest (the \"Merger \nConsideration\"), upon surrender of the certificate formerly representing such \nshare of Company Common Stock in the manner provided in Section 2.2.  All \nsuch shares of Company Common Stock, when so converted, shall no longer be \noutstanding and shall automatically be cancelled and retired and shall cease \nto exist, and each holder of a certificate representing any such shares shall \ncease to have any rights with respect thereto, except the right to receive \nthe Merger Consideration therefor upon the surrender of such certificate in \naccordance with Section 2.2.\n\n               (d)  Stock Options. Parent and the Company shall take all \nactions necessary to provide that, immediately prior to the Effective Time, \n(i) the Company shall pay to the holder of each then outstanding stock option \n\n                                       11\n\n\nto purchase Shares (an \"Option\") granted under the Company's stock option plans\nand agreements (the \"Option Plans\") with such Options listed on Section 2.1 of\nthe disclosure schedule delivered to Parent and Newco by the Company\nconcurrently with the execution hereof (the \"Company Disclosure Schedule\"),\nwhether or not then exercisable or vested, an amount in respect thereof equal to\nthe product of (A) the excess, if any, of the Offer Price over the per share\nexercise price of each such Option and (B) the number of Shares subject thereto\n(such payment to be net of applicable withholding taxes) and (ii) each such\nOption shall be cancelled; provided, however, that the foregoing shall be\nsubject to the obtaining of any necessary consents of holders of Options, it\nbeing agreed that the Company and Parent will (x) use all reasonable best\nefforts to obtain any such consents and (y) make any amendments to the terms of\nsuch stock option or compensation plans or arrangements that are necessary to\ngive effect to the transactions contemplated by this Section 2.1. \n\n          2.2  Exchange of Certificates.  \n\n               (a)    Paying Agent.  Parent shall designate a bank or trust \ncompany reasonably acceptable to the Company to act as agent for the holders \nof shares of Company Common Stock in connection with the Merger (the \"Paying \nAgent\") to receive the funds to which holders of shares of Company Common \nStock shall become entitled pursuant to Section 2.1(c) hereof.  Parent shall \ntake all steps necessary to deposit or cause to be deposited with the Paying \nAgent such funds as needed for timely payment hereunder.  Such funds shall be \ninvested by the Paying Agent as directed by Parent or the Surviving \nCorporation.\n\n               (b)    Exchange Procedures.  As soon as reasonably practicable \nafter the Effective Time but in no event more than three business days \nthereafter, the Paying Agent shall mail to each holder of record of a \ncertificate or certificates, which immediately prior to the Effective Time \nrepresented outstanding shares of Company Common Stock (the \"Certificates\"), \nwhose shares were converted pursuant to Section 2.1 hereof into the right to \nreceive the Merger Consideration (i) a letter of transmittal (which shall \nspecify that delivery shall be effected, and risk of loss and title to the \nCertificates shall pass, only upon delivery of the Certificates to the \n\n                                       12\n\n\nPaying Agent and shall be in such form and have such other provisions as \nParent and the Company may reasonably specify) and (ii) instructions for use \nin effecting the surrender of the Certificates in exchange for payment of the \nMerger Consideration.  Upon surrender of a Certificate for cancellation to \nthe Paying Agent or to such other agent or agents as may be appointed by \nParent, together with such letter of transmittal, duly executed, the holder \nof such Certificate shall be entitled to receive in exchange therefor the \nMerger Consideration for each share of Company Common Stock formerly \nrepresented by such Certificate and the Certificate so surrendered shall \nforthwith be cancelled.  If payment of the Merger Consideration is to be made \nto a person other than the person in whose name the surrendered Certificate \nis registered, it shall be a condition of payment that the Certificate so \nsurrendered shall be properly endorsed or shall be otherwise in proper form \nfor transfer and that the person requesting such payment shall have paid any \ntransfer and other taxes required by reason of the payment of the Merger \nConsideration to a person other than the registered holder of the Certificate \nsurrendered or shall have established to the satisfaction of the Surviving \nCorporation that such tax either has been paid or is not applicable.  Until \nsurrendered as contemplated by this Section 2.2, each Certificate shall be \ndeemed at any time after the Effective Time to represent only the right to \nreceive the Merger Consideration in cash as contemplated by this Section 2.2.\n\n               (c)    Transfer Books; No Further Ownership Rights in Company \nCommon Stock.  At the Effective Time, the stock transfer books of the Company \nshall be closed and thereafter there shall be no further registration of \ntransfers of shares of Company Common Stock on the records of the Company.  \nFrom and after the Effective Time, the holders of Certificates evidencing \nownership of shares of Company Common Stock outstanding immediately prior to \nthe Effective Time shall cease to have any rights with respect to such \nShares, except as otherwise provided for herein or by applicable law.  If, \nafter the Effective Time, Certificates are presented to the Surviving \nCorporation for any reason, they shall be cancelled and exchanged as provided \nin this Article II.\n\n               (d)    Termination of Fund; No Liability.  At any time \nfollowing one (1) year after the Effective \n\n                                       13\n\n\nTime, the Surviving Corporation shall be entitled to require the Paying Agent \nto deliver to it any funds (including any interest received with respect \nthereto) which had been made available to the Paying Agent and which have not \nbeen disbursed to holders of Certificates, and thereafter such holders shall \nbe entitled to look to the Surviving Corporation (subject to abandoned \nproperty, escheat or other similar laws) only as general creditors thereof \nwith respect to the Merger Consideration payable upon due surrender of their \nCertificates, without any interest thereon.  Notwithstanding the foregoing, \nneither the Surviving Corporation nor the Paying Agent shall be liable to any \nholder of a Certificate for Merger Consideration delivered to a public \nofficial pursuant to any applicable abandoned property, escheat or similar \nlaw. \n\n \n                                     ARTICLE III\n\n                            REPRESENTATIONS AND WARRANTIES\n                                    OF THE COMPANY\n\n          The Company represents and warrants to Parent and Newco that:\n\n          3.1  Corporate Organization and Qualification.  Each of the Company \nand its Subsidiaries is a corporation duly organized, validly existing and in \ngood standing under the laws of its respective jurisdiction of incorporation \nand is qualified and in good standing as a foreign corporation in each \njurisdiction where the properties owned, leased or operated, or the business \nconducted, by it require such qualification, except where the failure to so \nqualify or be in good standing would not have a Company Material Adverse \nEffect (as defined in Section 8.10).  Each of the Company and its \nSubsidiaries has all requisite corporate power and authority to own, lease \nand operate its properties and to carry on its business as it is now being \nconducted, except where the failure to have such power and authority would \nnot have a Company Material Adverse Effect.  The Company has heretofore made \navailable to Parent complete and correct copies of its Articles of \nIncorporation and By-Laws as in effect as of the date hereof.\n\n          3.2  Capitalization.  The authorized capital stock of the Company \nconsists of: (i) 12,000,000 Shares, \n\n                                       14\n\n\nof which, as of the date hereof 9,039,576 Shares were issued and outstanding, \nand (ii) 500,000 shares of preferred stock, no par value per share, none of \nwhich, as of the date hereof, were issued and outstanding.  All of the \noutstanding Shares have been duly authorized and validly issued and are fully \npaid and nonassessable.  Except as set forth in Section 3.2 of the Company \nDisclosure Schedule, as of the date hereof all outstanding shares of capital \nstock of the Company's Subsidiaries are owned by the Company or a direct or \nindirect wholly owned subsidiary of the Company, free and clear of all liens, \ncharges, encumbrances, claims and options of any nature.  Except as set forth \non Section 3.2 of the Company Disclosure Schedule, there are not as of the \ndate hereof any outstanding or authorized options, warrants, calls, rights \n(including preemptive rights), commitments or any other agreements of any \ncharacter which the Company or any of its Subsidiaries is a party to, or may \nbe bound by, requiring it to issue, transfer, sell, purchase, redeem or \nacquire any shares of capital stock or any securities or rights convertible \ninto, exchangeable for, or evidencing the right to subscribe for, any shares \nof capital stock of the Company or any of its Subsidiaries.\n\n          3.3  Authority Relative to This Agreement.  The Company has the \nrequisite corporate power and authority to execute and deliver this Agreement \nand, subject to approval of this Agreement by the holders of two-thirds of \nthe outstanding Shares in accordance with the MGCL, to consummate the \ntransactions contemplated hereby.  This Agreement and the consummation by the \nCompany of the transactions contemplated hereby have been duly and validly \nauthorized by the Board of Directors of the Company and no other corporate \nproceedings on the part of the Company are necessary to authorize this \nAgreement or to consummate the transactions contemplated hereby (other than, \nwith respect to the Merger, the approval of this Agreement by the holders of \ntwo-thirds of the outstanding Shares in accordance with the MGCL).  This \nAgreement has been duly and validly executed and delivered by the Company \nand, assuming this Agreement constitutes the valid and binding agreement of \nParent and Newco, constitutes the valid and binding agreement of the Company, \nenforceable against the Company in accordance with its terms, except that the \nenforcement hereof may be limited by (i) bankruptcy, insolvency, \nreorganization, moratorium or other similar laws now or hereafter in effect \nrelating \n\n                                       15\n\n\nto creditors' rights generally and (ii) general principles of equity \n(regardless of whether enforceability is considered in a proceeding in equity \nor at law). \n\n          3.4  Consents and Approvals; No Violation.  Neither the execution \nand delivery of this Agreement by the Company nor the consummation by the \nCompany of the transactions contemplated hereby will (a) conflict with or \nresult in any breach of any provision of the respective Articles of \nIncorporation or certificate of incorporation, as the case may be, or \nrespective By-Laws of the Company or any of its Subsidiaries; (b) except as \nset forth on Section 3.4(b) of the Company Disclosure Schedule, require any \nconsent, approval, authorization or permit of, or filing with or notification \nto, any governmental or regulatory authority, except (i) in connection with \nthe applicable requirements of the Hart-Scott-Rodino Antitrust Improvements \nAct of 1976, as amended (the \"HSR Act\"), (ii) pursuant to the applicable \nrequirements of the Securities Exchange Act of 1934, as amended, and the \nrules and regulations promulgated thereunder (the \"Exchange Act\"), (iii) the \nfiling of the Articles of Merger pursuant to the MGCL and appropriate \ndocuments with the relevant authorities of other states in which the Company \nor any of its Subsidiaries is authorized to do business all of which states \nare set forth on Section 3.4(b)(iii) of the Company Disclosure Schedule, (iv) \nas may be required by any applicable state corporation, securities or \"blue \nsky\" laws or state takeover laws, (v) such filings, consents, approvals, \norders, registrations and declarations of the Company as may be required \nunder the laws of Germany or any other relevant foreign country or (vi) where \nthe failure to obtain such consents, approvals, authorizations or permits, or \nto make such filings or notifications, would not have a Company Material \nAdverse Effect; (c) except as set forth on Section 3.4(c) of the Company \nDisclosure Schedule, result in a violation or breach of, or constitute (with \nor without due notice or lapse of time or both) a default (or give rise to \nany right of termination, cancellation or acceleration \n\n                                       16\n\n\nor lien or other charge or encumbrance) under any of the terms, conditions or \nprovisions of any note, license, agreement or other instrument or obligation \nto which the Company or any of its Subsidiaries is a party or by which any of \nthem or any of their respective assets may be bound, except for such \nviolations, breaches and defaults (or rights of termination, cancellation or \nacceleration or liens or other charges or encumbrances) as to which requisite \nwaivers or consents have been obtained or which would not have a Company \nMaterial Adverse Effect; or (d) assuming the consents, approvals, \nauthorizations or permits and filings or notifications referred to in this \nSection 3.4 are duly and timely obtained or made and the approval of this \nAgreement by the Company's stockholders has been obtained, violate any order, \nwrit, injunction, decree, statute, rule or regulation in effect as of the \ndate of this Agreement and applicable to the Company or any of its \nSubsidiaries or any of their respective assets, except for violations which \nwould not have a Company Material Adverse Effect.\n\n          3.5  SEC Reports; Financial Statements.\n\n               (a)  The Company has filed all reports required to be filed by \nit with the Securities and Exchange Commission (the \"SEC\") since January 1, \n1995 pursuant to the federal securities laws and the SEC rules and \nregulations thereunder, all of which as of their respective dates, complied \nin all material respects with applicable requirements of the Exchange Act \n(collectively, the \"Company SEC Reports\").  None of the Company SEC Reports, \nincluding, without limitation, any financial statements or schedules included \ntherein, as of their respective dates contained any untrue statement of a \nmaterial fact or omitted to state a material fact required to be stated \ntherein or necessary in order to make the statements therein, in light of the \ncircumstances under which they were made, not misleading.\n\n               (b)  The consolidated statements of financial position and the \nrelated consolidated statements of operations, stockholders' equity and cash \nflows (including the related notes thereto) of the Company included in the \nCompany SEC Reports complied in all material respects with applicable \naccounting requirements and the published rules and regulations of the SEC \nwith respect thereto, have been prepared in conformity with generally \naccepted accounting principles (\"GAAP\") applied on a basis consistent with \nprior periods (except as otherwise noted therein), and present fairly the \nfinancial position of the Company as of their respective dates, and the \nconsolidated results of its operations and its cash flows for the periods \npresented therein (subject, in the case of \n\n                                       17\n\n\nthe unaudited interim financial statements, to normal year-end adjustments).\n\n               (c)  The income statement set forth on Section 3.5(c) of the \nCompany Disclosure Schedule is an accurate summary of the results of \noperations for the period presented therein.\n\n          3.6  Absence of Certain Changes or Events.  As of the date of this \nAgreement, except as set forth on Section 3.6 of the Company Disclosure \nSchedule or as a consequence of, or as contemplated by this Agreement, since \nDecember 31, 1996, the business of the Company has been carried on only in \nthe ordinary and usual course, and other than in the ordinary course of \nbusiness, there has not occurred any change (other than a change affecting \nthe Company's industry generally) which has resulted or is reasonably likely \nto result in a Company Material Adverse Effect.\n\n          3.7  Litigation.  As of the date hereof, except as set forth on \nSection 3.7 of the Company Disclosure Schedule there is no action, claim, \nsuit, proceeding or governmental investigation pending or, to the knowledge \nof the Company, threatened against the Company or its Subsidiaries by or \nbefore any court, governmental or regulatory authority or by any third party.\n\n          3.8  Taxes. \n\n               (a)  The Company and its Subsidiaries have filed (or have \nobtained extensions to file) all Tax Returns (as defined below) required to \nbe filed by the Company and its Subsidiaries for taxable periods ending on or \nprior to the Closing other than those Tax Returns the failure of which to \nfile would not have a Company Material Adverse Effect.  Such Tax Returns are \ntrue, correct and complete in all material respects. \n \n               (b)  All Taxes (as defined below) shown on such Tax Returns \nhave been paid in full or adequate provisions have been made to reflect such \nitems on the Company's or its Subsidiaries' balance sheet (in accordance with \nGAAP).  \n\n               (c)  There are no material liens for Taxes upon the assets of \neither the Company or its Subsidiaries \n\n                                       18\n\n\nexcept for statutory liens for current taxes not yet due.  \n\n               (d)  Neither the Company nor any Subsidiary has waived in \nwriting any statute of limitation with respect to Taxes of the Company or any \nSubsidiary.\n\n               (e)  For the purpose of this Agreement, \"Taxes\" shall mean all \ntaxes, charges, fees, levies, penalties or other assessments imposed by any \nUnited States federal, state, local, or foreign taxing authority, including, \nbut not limited to income, excise, property, sales, transfer, franchise, \npayroll, withholding, social security or other taxes, including any interest, \npenalties or additions attributable thereto, and \"Tax Return\" shall mean any \nreturn, report, information return or other document (including any related \nor supporting information) with respect to Taxes.\n\n          3.9  Employee Benefit Plans; Labor Matters.  (a)  Section 3.9 of \nthe Company Disclosure Schedule sets forth a true and complete list of all \ncollective bargaining agreements, employment, consulting, severance, deferred \ncompensation and non-competition agreements, executive compensation plans, \nstock purchase, stock award and stock option plans and agreements, restricted \nstock awards, bonus and incentive plans, directors fee arrangements, both tax \nqualified and non-qualified and statutory and non-statutory employee pension \nplans, employee profit sharing plans, 401(k) savings plans, multiemployer \nplans, employee welfare plans, group life insurance, hospitalization \ninsurance other similar plans or arrangements (either written or oral but \nonly to the extent an oral plan provides material benefits) providing for \nbenefits to any employees, consultants or director of the Company or any \nSubsidiaries or affiliates of the Company.  With respect to the employee \nbenefit plans, stock option plans, restricted stock award programs and other \nprograms and arrangements maintained or contributed to by the Company or any \nof its Subsidiaries (the \"Company Plans\"), except as specifically set forth \non Section 3.9 of the Company Disclosure Schedule:  (i) each Company Plan \nintended to be qualified under Section 401(a) of the Code has received a \nfavorable determination letter from the Internal Revenue Service (the \"IRS\") \nthat it is so qualified and nothing has occurred since the date of such \nletter that could reasonably be expected to affect the \n\n                                       19\n\n\nqualified status of such Company Plan; (ii) each Company Plan has been \noperated in all material respects in accordance with its terms and the \nrequirements of applicable law; (iii) neither the Company nor any of its \nSubsidiaries has incurred any direct or indirect liability under, arising out \nof or by operation of Title IV of the Employee Retirement Income Security Act \nof 1974, as amended (\"ERISA\"), in connection with the termination of, or \nwithdrawal from, any Company Plan or other retirement plan or arrangement, \nand no fact or event exists that could reasonably be expected to give rise to \nany liability.  Except as set forth on Section 3.9 of the Company Disclosure \nSchedule, the aggregate accumulated benefit obligations of each Company Plan \nsubject to Title IV of ERISA (as of the date of the most recent actuarial \nvaluation prepared for such Company Plan) do not exceed the fair market value \nof the assets of such Company Plan (as of the date of such valuation).\n\n               (b)  The Company is not subject to any collective bargaining \nor other labor union contracts applicable to persons employed by the Company \nor its Subsidiaries as of the date of this Agreement.  As of the date of this \nAgreement, there is no pending or threatened in writing labor dispute, strike \nor work stoppage against the Company or any of its Subsidiaries which may \ninterfere with the respective business activities of the Company or its \nSubsidiaries.\n\n               (c)  As of the date of this Agreement, there are no more than \n973,750 options issued and outstanding under the Company's stock option \nplans. No options have been issued to employees or directors of the Company \nor its Subsidiaries since January 1, 1998.  There are no restricted stock \nawards which have been issued by the Company that are currently outstanding.\n\n               (d)  The consummation of the transactions contemplated by this \nAgreement will not give rise to an obligation on behalf of the Company to \nmake severance payments to any individuals, except such as may arise from \nactions of the Company taken at the direction of Parent following the \nEffective Time.\n\n               (e)  No payments made to any individual by the Company or any \nSubsidiary as a result of the consummation of the transactions contemplated \nby this Agreement \n\n                                       20\n\n\nwould be non-deductible under either Section 162(m) of the Code or Section \n280G of the Code.\n\n               (f)  Neither the Company nor any Subsidiary has taken any \naction or failed to take any action which would result in the imposition of a \nmaterial excise tax on the Company pursuant to Sections 4975, 4980B and 4999 \nof the Code.\n\n          3.10  Environmental Laws and Regulations.  As of the date of this \nAgreement, except as set forth on Section 3.10 of the Company Disclosure \nSchedule, (i) the Company and each of its Subsidiaries is in compliance with \nall applicable federal, state and local laws and regulations relating to \npollution or protection of human health or the environment (including, \nwithout limitation, ambient air, surface water, ground water, land surface or \nsubsurface strata) (collectively, \"Environmental Laws\"), except for \nnon-compliance that would not have a Company Material Adverse Effect; (ii) \nneither the Company nor any of its Subsidiaries (a) has received written \nnotice of any action, cause of action, claim, investigation, demand or notice \nby any person or entity alleging liability under or non-compliance with any \nEnvironmental Law (an \"Environmental Claim\") or (b) to the knowledge of the \nCompany is subject to any Environmental Claim which is reasonably likely to \nhave a Company Material Adverse Effect; (iii) there has not been a Release of \nHazardous Materials at any property currently or formerly owned or operated \nby the Company, any of its Subsidiaries or predecessor in interest except \nwhere such Release would not have a Company Material Adverse Effect; (iv) to \nthe knowledge of the Company there has not been a Release of Hazardous \nMaterials at any disposal or treatment facility that received Hazardous \nMaterials generated by the Company, its Subsidiaries or a predecessor in \ninterest.  For the purpose of this Section, \"Hazardous Materials\" means (a) \nany element, compound, or chemical that is defined, listed or otherwise \nclassified as a contaminant, pollutant, toxic pollutant, toxic or hazardous \nsubstance, extremely hazardous substance or chemical, hazardous waste, \nspecial waste, or solid waste under Environmental Laws; (b) petroleum, \npetroleum-based or petroleum-derived products; (c) polychlorinated byphenyls; \n(d) any substance exhibiting a hazardous waste characteristic including but \nnot limited to corrosivity, ignitability, toxicity or reactivity as well as \nany radioactive or \n\n                                       21\n\n\nexplosive materials; and (e) any asbestos-containing materials.  The term \n\"Release\" means any spilling, leaking, pumping, emitting, emptying, \ndischarging, injecting, escaping, leaching, migrating, dumping or disposing \nof Hazardous Materials (including the abandonment or discarding of barrels, \ncontainers or other closed receptacles containing Hazardous Materials) into \nthe environment. \n\n          3.11  Intangible Property; Copyrights. The Company and its \nSubsidiaries own or have all rights to use all patents, trademarks, trade \nnames, service marks, brands, logos, copyrights, licenses, trade secrets, \ncustomer lists and other proprietary intellectual property rights \n(collectively \"Intellectual Property\") required for, used in or incident to \nthe businesses of the Company and its Subsidiaries as now conducted or \nproposed to be conducted. All Intellectual Property owned by the Company is \nvalid and enforceable except as such invalidity or unenforceability would not \nhave or would reasonably be expected to have a Company Material Adverse \nEffect.  The Company has not received notice of any infringement, and has no \nreason to know of any claim or threatened infringement of the rights of \nothers with respect to any Intellectual Property used or owned by the \nCompany, the loss of which could have a Company Material Adverse Effect.  \nExcept as set forth in Section 3.11 of the Company Disclosure Schedule, the \nCompany and its Subsidiaries have not been sued within the past two years (or \nwith respect to a Subsidiary, since such Subsidiary was acquired by the \nCompany if acquired less than two years prior to the date hereof) for \ninfringing on the Intellectual Property of another entity or person. To the \nknowledge of the Company, the Company is not now using, and has not in the \npast used without appropriate authorization, any confidential information or \ntrade secrets of any third party.  The Company has never received any notice \nalleging such conduct.  The Company has timely and accurately made all \nrequisite filings and payments with the Register of Copyrights and is \notherwise in compliance with all applicable rules and regulations of the \nCopyright Office except where such noncompliance would not have a Company \nMaterial Adverse Effect.  \n\n          3.12  Compliance with Applicable Laws.  Except as set forth in \nSection 3.12 of the Company Disclosure Schedule, to the knowledge of the \nCompany, since January \n\n                                       22\n\n\n1, 1996 neither the Company nor any of its Subsidiaries has violated or \nfailed to comply with any statute, law, regulation, rule, judgment, decree or \norder of any governmental entity applicable to its business or operations, \nexcept for violations and failures to comply that would not, individually or \nin the aggregate, reasonably be expected to result in a Company Material \nAdverse Effect.  The conduct of the business of the Company and its \nSubsidiaries is in conformity with all federal, state and local governmental \nand regulatory requirements applicable to its business and operations, except \nwhere such nonconformities would not, in the aggregate, reasonably be \nexpected to result in a Company Material Adverse Effect.  The Company and its \nSubsidiaries have all permits, licenses and franchises from governmental \nagencies required to conduct their businesses as now being conducted, except \nfor such permits, licenses and franchises the absence of which would not, in \nthe aggregate, reasonably be expected to result in a Company Material Adverse \nEffect.\n\n          3.13  Insurance.  To the knowledge of the Company, the Company and \nits Subsidiaries have obtained and maintained in full force and effect \ninsurance with responsible and reputable insurance companies or associations \nin such amounts, on such terms and covering such risks, including fire and \nother risks insured against by extended coverage, as is reasonably prudent, \nand each has maintained in full force and effect public liability insurance, \ninsurance against claims for personal injury or death or property damage \noccurring in connection with the activities of the Company or its \nSubsidiaries or any properties owned, occupied or controlled by the Company \nor its Subsidiaries, in such amount as reasonably deemed necessary by the \nCompany or its Subsidiaries.\n\n          3.14  Approvals; Antitakeover Provisions.  The Company has taken \nall action necessary to approve the Transactions under the MGCL (except for \nshareholder approval and the filing of a certificate or articles of merger), \nincluding, but not limited to, all actions required to render the provisions \nof Sections 3-601 through 3-604 of the MGCL restricting business combinations \nwith \"interested shareholders\" inapplicable to the Transactions.  The Company \nhas taken all actions required to render the provisions of Section 3-702 of \nthe MGCL restricting voting rights of \"control shares\" inapplicable \n\n                                       23\n\n\nto Shares acquired by Parent, Newco or their affiliates pursuant to the Offer \nor the Merger.\n\n          3.15  Voting Requirements.  The affirmative vote of the holders of \ntwo-thirds of the outstanding shares of Company Common Stock is the only vote \nof the holders of any class of the Company's capital stock necessary to \napprove this Agreement and the transactions contemplated by this Agreement.\n\n          3.16  Brokers and Finders.  Other than as set forth on Section 3.16 \nof the Company Disclosure Schedule, the Company has not employed any \ninvestment banker, broker, finder, advisor, consultant or intermediary in \nconnection with the transactions contemplated by this Agreement which would \nbe entitled to any investment banking, brokerage, finder's, advisory or \nsimilar fee or commission in connection with this Agreement or the \ntransactions contemplated hereby.\n\n          3.17  Opinion of Financial Advisors.  The Board of Directors has \nreceived the opinion of Morgan Stanley &amp; Co. Incorporated dated February 10, \n1998, to the effect that, as of such date, the applicable Merger \nConsideration is fair to the stockholders of the Company from a financial \npoint of view.\n\n          3.18  Information Supplied.  None of the information supplied or to \nbe supplied by the Company for inclusion or incorporation by reference in (i) \nthe Offer Documents, (ii) the Schedule 14D-9, (iii) the information to be \nfiled by the Company in connection with the Offer pursuant to Rule 14f-1 \npromulgated under the Exchange Act (the \"Information Statement\") or (iv) the \nproxy statement (together with any amendments or supplements thereto, the \n\"Proxy Statement\") relating to the Special Meeting, if any, will, in the case \nof the Offer Documents, the Schedule 14D-9 and the Information Statement, at \nthe respective times the Offer Documents, the Schedule 14D-9 and the \nInformation Statement are filed with the SEC or first published, sent or \ngiven to the Company's stockholders, or, in the case of the Proxy Statement, \nat the time the Proxy Statement is first mailed to the Company's stockholders \nor at the time of the Special Meeting, if any, contain any untrue statement \nof a material fact or omit to state any material fact required to be stated \ntherein or necessary in order to make the statements therein, in \n\n                                       24\n\n\nlight of the circumstances under which they are made, not misleading.  If at \nany time prior to the Effective Time any event with respect to the Company or \nits Subsidiaries should occur which is required to be described in a \nsupplement to (i) the Offer Documents, (ii) the Schedule 14D-9, (iii) the \nInformation Statement, or (iv) the Proxy Statement, such event shall be so \ndescribed, and such supplement shall be promptly filed with the SEC and, as \nrequired by law, disseminated to the stockholders of the Company and to \nParent.  The Schedule 14D-9, the Information Statement and the Proxy \nStatement will comply in all material respects with the requirements of the \nExchange Act and the rules and regulations thereunder.\n\n          3.19  Confidentiality Agreements.   Except as set forth in Section \n3.19 of the Company Disclosure Schedule, the confidentiality agreements \nentered into with any other potential purchasers are in substantially the \nsame form as the Confidentiality Agreement (as defined in Section 5.5) and \nall benefits under such agreements shall inure to the Company as of the \nEffective Time.\n\n                                      ARTICLE IV\n\n                       REPRESENTATIONS AND WARRANTIES OF PARENT\n                                      AND NEWCO\n\n          Each of Parent and Newco represents and warrants jointly and severally\nto the Company that:\n\n          4.1  Corporate Organization and Qualification.  Each of Parent, \nNewco and each of Parent's Subsidiaries which is both owned directly or \nindirectly by Parent and directly or indirectly owns Newco is a corporation \nduly organized, validly existing and in good standing under the laws of its \nrespective jurisdiction of incorporation.  Each of Parent, Newco and Parent's \nSubsidiaries is qualified and in good standing as a foreign corporation in \neach jurisdiction where the properties owned, leased or operated, or the \nbusiness conducted, by it require such qualification, except where the \nfailure to so qualify or be in good standing would not have a Parent Material \nAdverse Effect (as defined in Section 8.10).\n\n                                       25\n\n\n          4.2  Authority Relative to This Agreement.  Each of Parent and \nNewco has the requisite corporate power and authority to execute and deliver \nthis Agreement and to consummate the transactions contemplated hereby.  This \nAgreement and the consummation by Parent and Newco of the transactions \ncontemplated hereby have been duly and validly authorized by the respective \nBoards of Directors of Parent and Newco and by Parent as the sole stockholder \nof Newco, and no other corporate proceedings on the part of Parent and Newco \nare necessary to authorize this Agreement or to consummate the transactions \ncontemplated hereby.  This Agreement has been duly and validly executed and \ndelivered by each of Parent and Newco and, assuming this Agreement \nconstitutes the valid and binding agreement of the Company, constitutes the \nvalid and binding agreement of each of Parent and Newco, enforceable against \neach of them in accordance with its terms, except that the enforcement hereof \nmay be limited by (a) bankruptcy, insolvency, reorganization, moratorium or \nother similar laws now or hereafter in effect relating to creditors' rights \ngenerally and (b) general principles of equity (regardless of whether \nenforceability is considered in a proceeding at law or in equity).\n\n          4.3  Consents and Approvals; No Violation.  Neither the execution \nand delivery of this Agreement by Parent or Newco nor the consummation by \nParent and Newco of the transactions contemplated hereby will (a) conflict \nwith or result in any breach of any provision of the Articles of \nIncorporation or the By-Laws, respectively, of Parent or Newco; (b) except as \nset forth in Section 4.3 of the Disclosure Schedule delivered to the Company \nby Parent concurrently with the execution hereof (the \"Parent Disclosure \nSchedule\"), require any consent, approval, authorization or permit of, or \nfiling with or notification to, any governmental or regulatory authority, \nexcept (i) in connection with the applicable requirements of the HSR Act, \n(ii) pursuant to the applicable requirements of the Exchange Act, (iii) the \nfiling of the Articles of Merger pursuant to the MGCL and appropriate \ndocuments with the relevant authorities of other states in which Parent or \nNewco is authorized to do business or (iv) as may be required by any \napplicable state corporation, securities or \"blue sky\" laws or state takeover \nlaws, (v) where the failure to obtain such consents, approvals, \nauthorizations or permits, or to make such filings or notifications would not \nhave a Parent Material \n\n                                       26\n\n\nAdverse Effect; (c) result in a violation or breach of, or constitute (with \nor without due notice or lapse of time or both) a default (or give rise to \nany right of termination, cancellation or acceleration or liens or other \ncharges or encumbrances) under any of the terms, conditions or provisions of \nany note, license, agreement or other instrument or obligation to which \nParent or any of its Subsidiaries is a party or by which any of them or any \nof their respective assets may be bound, except for such violations, breaches \nand defaults (or rights of termination, cancellation or acceleration or lien \nor other charge or encumbrance) as to which requisite waivers or consents \nhave been obtained or which would not have a Parent Material Adverse Effect; \nor (d) assuming the consents, approvals, authorizations or permits and \nfilings or notifications referred to in this Section 4.3 are duly and timely \nobtained or made, violate any order, writ, injunction, decree, statute, rule \nor regulation applicable to Parent or any of its Subsidiaries or to any of \ntheir respective assets, except for violations which would not have a Parent \nMaterial Adverse Effect.\n\n          4.4  Interim Operations of Newco.  Newco was formed solely for the \npurpose of engaging in the transactions contemplated hereby and has not \nengaged in any business activities or conducted any operations other than in \nconnection with the transactions contemplated hereby.\n\n          4.5   Sufficient Funds.  Either Parent or Newco has sufficient \nfunds available (through existing credit arrangements or otherwise) to \npurchase all of the Shares outstanding on a fully diluted basis and to pay \nall fees, expenses and payments related to the Transactions.\n\n          4.6  Share Ownership.  None of Parent and Newco, or any of their \nrespective \"affiliates\" or Associates (as such terms are defined in Rule \n12b-2 under the Exchange Act), beneficially own any Shares.\n\n          4.7  Information in Proxy Statement and Schedule 14D-9.  None of \nthe information supplied by Parent or Newco for inclusion or incorporation by \nreference in the Proxy Statement or the Schedule 14D-9 will, at the date \nmailed to stockholders and at the time of the Special Meeting, contain any \nuntrue statement of a material fact or omit to state any material fact \nrequired to be stated \n\n                                       27\n\n\ntherein or necessary in order to make the statements therein, in light of the \ncircumstances under which they are made, not misleading.  If at any time \nprior to the Effective Time any event with respect to Parent or any of its \nSubsidiaries should occur which is required to be described in a supplement \nto the Proxy Statement or the Schedule 14D-9, such event shall be so \ndescribed, and such supplement shall be promptly filed with the SEC and, as \nrequired by law, disseminated to the stockholders of the Company and Parent.  \nWith respect to information relating to Parent or Newco, the Proxy Statement \nwill comply in all material respects with the provisions of the Exchange Act \nand the rules and regulations thereunder.\n\n          4.8  Investigation by Parent.  Parent and Newco have conducted \ntheir own independent review and analysis of the businesses, assets, \ncondition, operations and prospects of the Company and its Subsidiaries and \nacknowledge that Parent and Newco have been provided access to the \nproperties, premises and records of the Company and its Subsidiaries for this \npurpose.  In entering into this Agreement, Parent and Newco:\n\n          (a) acknowledge that none of the Company, its Subsidiaries or any \nof their respective directors, officers, employees, affiliates, agents or \nrepresentatives makes any representation or warranty, either express or \nimplied, as to the accuracy or completeness of any of the information \nprovided or made available to Parent and Newco or their agents or \nrepresentatives prior to the execution of this Agreement, and\n\n          (b) agree, to the fullest extent permitted by law, that none of the \nCompany, its Subsidiaries or any of their respective directors, officers, \nemployees, affiliates, agents or representatives shall have any liability or \nresponsibility whatsoever to Parent and Newco on any basis based upon any \ninformation provided or made available, or statements made, to Parent and \nNewco prior to the execution of this Agreement, except that the foregoing \nlimitations shall not apply with respect to representations or warranties of \nthe Company in any Company SEC Report or in Article III of this Agreement and \nin the Company Disclosure Schedule, but always subject to the limitations and \nrestrictions contained in such representations and warranties.\n\n                                       28\n\n\n          4.9  Brokers and Finders.  Other than Credit Suisse First Boston \nCorporation, which has been retained by Parent's Board of Directors, Parent \nand Newco have not employed any investment banker, broker, finder, advisor, \nconsultant or intermediary in connection with the transactions contemplated \nby this Agreement which would be entitled to any investment banking, \nbrokerage, finder's, advisory or similar fee or commission in connection with \nthis Agreement or the transactions contemplated hereby.\n\n                                      ARTICLE V\n\n                         ADDITIONAL COVENANTS AND AGREEMENTS\n\n          5.1  Interim Operations of the Company.  Except as set forth on \nSection 5.1 of the Company Disclosure Schedule, during the period from the \ndate of this Agreement to the time the directors of Newco have been elected \nto, and shall constitute a majority of, the Board of Directors of the Company \npursuant to Section 1.3 (unless Parent shall otherwise agree in writing and \nexcept as otherwise contemplated by this Agreement), the Company will conduct \nits operations according to its ordinary and usual course of business \nconsistent with past practice and seek to preserve intact its current \nbusiness organizations, keep available the service of its current officers \nand employees and preserve its relationships with customers, suppliers and \nothers having business dealings with it.  Without limiting the generality of \nthe foregoing, and except as otherwise contemplated by this Agreement or as \nset forth on Section 5.1 of the Company Disclosure Schedule, the Company will \nnot, without the prior written consent of Parent:\n\n                    (i)  issue, sell, grant, dispose of, pledge or\n     otherwise encumber, or authorize or propose the issuance, sale,\n     disposition or pledge or other encumbrance of (A) any additional\n     shares of capital stock of any class (including the Shares), or any\n     securities or rights convertible into, exchangeable for, or evidencing\n     the right to subscribe for any shares of capital stock, or any rights,\n     warrants, options, calls, commitments or any other agreements of any\n     character to purchase or acquire any shares of capital stock or any \n\n                                          29\n\n\n     securities or rights convertible into, exchangeable for, or evidencing the\n     right to subscribe for, any shares of capital stock or (B) any other\n     securities in respect of, in lieu of, or in substitution for, Shares\n     outstanding on the date hereof;\n\n                    (ii)  redeem, purchase or otherwise acquire, or propose\n     to redeem, purchase or otherwise acquire, any of its outstanding\n     Shares;\n\n                    (iii)  split, combine, subdivide or reclassify any\n     Shares or declare, set aside for payment or pay any dividend, or make\n     any other actual, constructive or deemed distribution in respect of\n     any Shares or otherwise make any payments to stockholders in their\n     capacity as such, other than the declaration and payment of regular\n     quarterly cash dividends in accordance with past dividend policy and\n     except for dividends by a direct or indirect wholly owned Subsidiary\n     of the Company;\n\n                    (iv)  adopt a plan of complete or partial liquidation,\n     dissolution, merger, consolidation, restructuring, recapitalization or\n     other reorganization of the Company or any of its direct or indirect\n     Subsidiaries (other than the Merger);\n\n                    (v)  adopt any amendments to its Articles of\n     Incorporation or By-Laws or alter through merger, liquidation,\n     reorganization, restructuring or in any other fashion the corporate\n     structure or ownership of any direct or indirect Subsidiary of the\n     Company;\n\n                    (vi)  make any material acquisition, by means of\n     merger, consolidation or otherwise, or material disposition, of assets\n     or securities (other than the Merger);\n\n                    (vii)  other than in the ordinary course of business\n     consistent with past practice, incur any indebtedness for borrowed\n     money or guarantee any such indebtedness or issue any \n\n                                          30\n\n\n     debt securities or make any loans, advances or capital contributions to, or\n     investments in, any other person other than the Company or any direct or\n     indirect wholly owned Subsidiary of the Company;\n\n                    (viii)  grant any material increases in the\n     compensation of any of its directors, officers or key employees,\n     except in the ordinary course of business and in accordance with past\n     practice, provided, however, that the Company shall be entitled to\n     pay, prior to the Effective Time, bonuses with respect to 1997\n     pursuant to the Company's Incentive Plan, and shall further be\n     entitled to disregard for purposes of the calculation of the amount of\n     such bonuses any effect that results from, or action that is taken in\n     contemplation of, this Agreement or the transaction contemplated\n     hereby;\n\n                    (ix)  enter into any new or amend any existing\n     employment or severance or termination agreement with any director or\n     officer of the Company;\n\n                    (x)  except as may be required to comply with\n     applicable law, become obligated under any new pension plan, welfare\n     plan, multiemployer plan, employee benefit plan, severance plan,\n     benefit arrangement, or similar plan or arrangement, which was not in\n     existence on the date hereof, or amend, other than in the ordinary\n     course of business consistent with past practice, any such plan or\n     arrangement in existence on the date hereof if such amendment would\n     have the effect of materially enhancing any benefits thereunder;  \n\n                    (xi)   (A) take, or agree or commit to take, any action\n     that would make any representation or warranty of the Company\n     hereunder inaccurate at the Effective Time (except for representations\n     and warranties which speak as of a particular date, which need be\n     accurate only as of such date), (B) omit, or agree or commit to omit,\n     to take any action necessary to \n\n                                          31\n\n\n     prevent any such representation or warranty from being inaccurate in any\n     material respect at the Effective Time (except for representations and\n     warranties which speak as of a particular date, which need be accurate only\n     as of such date), provided however that the Company shall be permitted to\n     take or omit to take such action which can be cured, and in fact is cured,\n     at or prior to the Effective Time or (C) take, or agree or commit to take,\n     any action that would result in, or is reasonably likely to result in, any\n     of the conditions of the Merger set forth in Article VI not being\n     satisfied; or\n\n                    (xii)  authorize, recommend, propose or announce an\n     intention to do any of the foregoing, or enter into any contract,\n     agreement, commitment or arrangement to do any of the foregoing.\n\n          5.2  Alternative Proposals.  Subject to the last sentence of this \nSection 5.2, from and after the date hereof and prior to the Effective Time, \nthe Company (a) will not, and will cause its officers, directors, employees, \nrepresentatives and agents not to, initiate, solicit or encourage, directly \nor indirectly, any Alternative Proposal (as defined in Section 8.10) or \nengage in any negotiations or enter into any agreement or provide any \nconfidential information or data to any person in connection with or relating \nto any Alternative Proposal; (b) will immediately cease any existing \ndiscussions or negotiations, if any, with any parties conducted heretofore \nwith respect to any Alternative Proposal; and (c) will notify Parent as soon \nas practicable if any such inquiries or proposals are received by, any such \ninformation is requested from, or any such negotiations and\/or discussions \nare sought to be initiated or continued with, the Company. Notwithstanding \nthe foregoing, nothing in this Section 5.2 shall require the Board of \nDirectors of the Company on behalf of the Company to act, or refrain from \nacting, in any manner which, in the opinion of the Board of Directors of the \nCompany after consultation with its counsel, could reasonably be deemed \ninconsistent with its fiduciary duties to the Company's stockholders under \napplicable law.\n\n                                          32\n\n\n          5.3  Certain Filings.  The Company and Newco shall reasonably \ncooperate with one another (a) in connection with the preparation of the \nProxy Statement and the Schedule 14D-9, and (b) in determining whether any \naction by or in respect of, or filing with, any governmental body, agency or \nofficial, or authority is required, or any actions, consents, approvals or \nwaivers are required to be obtained from parties to any material contracts, \nin connection with the consummation of the transactions contemplated by this \nAgreement and (c) in seeking any such actions, consents, approvals, or \nwaivers or making any such filings, furnishing information required in \nconnection therewith or with the Proxy Statement and the Schedule 14D-9 and \nseeking timely to obtain any such actions, consents, approvals or waivers.\n\n          5.4  Satisfaction of Conditions; Receipt of Necessary Approvals.\n\n               (a)  Subject to the terms and conditions herein provided, each \nof the parties hereto agrees to (i) promptly effect all necessary \nregistrations, submissions and filings, including, but not limited to, \nfilings under the HSR Act, German Law Against Restraints of Competition and \nsubmissions of information requested by governmental authorities, which may \nbe necessary or required in connection with the consummation of the \ntransactions contemplated by this Agreement, (ii) use its reasonable best \nefforts to secure federal antitrust clearance (including taking steps to \navoid or set aside any preliminary or permanent injunction or other order of \nany federal or state court of competent jurisdiction or other governmental \nauthority), (iii) use its reasonable best efforts to take all other action \nand to do all other things necessary, proper or advisable to consummate and \nmake effective as promptly as practicable the transactions contemplated by \nthis Agreement and (iv) use its reasonable best efforts to obtain all other \nnecessary or appropriate waivers, consents and approvals (including but not \nlimited to such filings, consents, approvals, orders, registrations and \ndeclarations as may be required under the laws of any foreign country in \nwhich the Company or any of its Subsidiaries or Parent or any of its \nSubsidiaries conducts any business or owns any assets) and to lift any \ninjunction or other legal bar to the Merger (and, in such case, to proceed \nwith the Merger as expeditiously as possible), subject, however, to the \nrequisite \n\n                                          33\n\n\nvote of the stockholders of the Company.  Parent represents and warrants to \nthe Company that Parent's affiliates have full power and authority to effect \nthe transactions contemplated by this Section 5.4.  \n\n               (b)  Notwithstanding the foregoing, the Company shall not be \nobligated to use its reasonable efforts or take any action pursuant to this \nSection 5.4 if in the opinion of the Board of Directors after consultation \nwith its counsel such actions could reasonably be deemed inconsistent with \nits fiduciary duties to the Company's stockholders under applicable law.\n\n          5.5  Access to Information.  To the extent permitted by applicable \nlaw, upon reasonable notice, the Company shall (and shall cause each of its \nSubsidiaries to) afford to the officers, employees, accountants, counsel, \nfinancing sources and other representatives of Parent, access, during normal \nbusiness hours during the period prior to the Effective Time, to all its \nproperties, books, contracts, commitments and records and, during such \nperiod, the Company shall (and shall cause each of its Subsidiaries to) \nfurnish promptly to the Parent (a) a copy of each report, schedule, \nregistration statement and other document filed or received by it during such \nperiod pursuant to the requirements of federal securities laws and (b) all \nother information concerning its business, properties and personnel as Parent \nmay reasonably request.  Parent will hold any such information which is \nnonpublic in confidence in accordance with the provisions of the \nConfidentiality Agreement between the Company and Parent, dated as of \nDecember 5, 1997 (the \"Confidentiality Agreement\").\n\n          5.6  Publicity. The initial press release with respect to the \nexecution of this Agreement shall be a joint press release acceptable to \nParent and the Company.  Thereafter, so long as this Agreement is in effect, \nneither the Company, Parent nor any of their respective affiliates shall \nissue or cause the publication of any press release or other announcement \nwith respect to the Merger, this Agreement or the other transactions \ncontemplated hereby without prior consultation with the other party, except \nas may be required by law, the rules and regulations of any national \nsecurities exchange or over-the-counter market or by any listing agreement \nwith a national securities exchange.\n\n                                          34\n\n\n          5.7  Directors' and Officers' Insurance and Indemnification.\n\n               (a)  From and after the consummation of the Offer, Parent \nshall, and shall cause the Company (or, if after the Effective Time, the \nSurviving Corporation) to, indemnify, defend and hold harmless any person who \nis now, or has been at any time prior to the date hereof, or who becomes \nprior to the Effective Time, an officer or director (the \"Company Indemnified \nParty\") of the Company and its Subsidiaries against all losses, claims, \ndamages, liabilities, costs and expenses (including attorney's fees and \nexpenses), judgments, fines, losses, and amounts paid in settlement in \nconnection with any actual or threatened action, suit, claim, proceeding or \ninvestigation (each a \"Claim\") to the extent that any such Claim is based on, \nor arises out of, the fact that such person is or was a director or officer \nof the Company or any of its Subsidiaries, and to the extent that any such \nClaim pertains to any matter or fact arising out of any act or omission prior \nto or at the Effective Time, regardless of whether such Claim is asserted or \nclaimed prior to, at or after the Effective Time, to the full extent \npermitted under applicable law or the Company's Articles of Incorporation, \nBy-laws or indemnification agreements in effect at the date hereof identified \non Section 5.7 of the Company Disclosure Schedule, or otherwise as permitted \nby contracts identified on Section 5.7 of the Company Disclosure Schedule, \nincluding provisions relating to advancement of expenses incurred in the \ndefense of any action or suit.  Without limiting the foregoing, in the event \nany Company Indemnified Party becomes involved in any capacity in any Claim, \nthen from and after consummation of the Offer Parent shall, or shall cause \nthe Company (or the Surviving Corporation if after the Effective Time) to, \nperiodically advance to such Company Indemnified Party its legal and other \nexpenses (including the cost of any investigation and preparation incurred in \nconnection therewith), subject to the provision by such Company Indemnified \nParty of an undertaking to reimburse the amounts so advanced in the event of \na final non-appealable determination by a court of competent jurisdiction \nthat such Company Indemnified Party is not entitled thereto.\n\n               (b)   Parent and the Company agree that all rights to \nindemnification and all limitations on liability existing in favor of a \nCompany Indemnified Party as provided \n\n                                          35\n\n\nin the Company's Articles of Incorporation and By-laws as in effect as of the \ndate hereof shall survive the Merger and shall continue in full force and \neffect, without any amendment thereto, for a period of six years from the \nEffective Time to the extent such rights are consistent with the MGCL; \nprovided, that in the event any claim or claims are asserted or made within \nsuch six year period, all rights to indemnification in respect of any such \nclaim or claims shall continue until disposition of any and all such claims; \nprovided further, that nothing in this Section 5.7 shall impair any rights or \nobligations of any present or former directors or officers of the Company\n\n               (c)  Parent shall cause to be maintained in effect for the \nIndemnified Parties (as defined below) for not less than six years after the \nEffective Time policies of directors' and officers' liability insurance and \nfiduciary liability insurance with respect to matters occurring at or prior \nto the Effective Time (including, without limitation, the transactions \ncontemplated by this Agreement) providing  substantially the same coverage \nand containing terms and conditions which are no less advantageous, in any \nmaterial respect, to those currently maintained by the Company for the \nbenefit of the Company's present or former directors, officers, employees or \nagents covered by such insurance policies prior to the Effective Time (the \n\"Indemnified Parties\").\n\n               (d)  In the event Parent or Newco or any of their successors \nor assigns (i) consolidates with or merges into any other person and shall \nnot be the continuing or surviving corporation or entity of such \nconsolidation or merger, or (ii) transfers or conveys all or substantially \nall of its properties and assets to any person, then, and in each such case, \nto the extent necessary to effectuate the purposes of this Section 5.7, \nproper provision shall be made so that the successors and assigns of Parent \nand Newco assume the obligations set forth in this Section 5.7 and none of \nthe actions described in clauses (i) or (ii) shall be taken until such \nprovision is made.\n\n                                          36\n\n\n          5.8  Employees.\n\n               (a)  Parent agrees that individuals who are employed by the \nCompany and its Subsidiaries immediately prior to the Effective Time shall be \nemployees of the Company and its Subsidiaries as of the Effective Time (each \nsuch employee, an \"Affected Employee\" and together with all former employees \nof the Company and its Subsidiaries \"Company Employees\").\n\n               (b)  Parent will, or will cause the Surviving Corporation to, \ngive Affected Employees full credit for purposes of eligibility and vesting \nand determination of the level of benefits under any employee benefit plans \nor arrangements maintained by Parent, the Surviving Corporation or any \nSubsidiary of Parent for such Affected Employees' service with the Company or \nany Subsidiary of the Company to the same extent recognized by the Company \nimmediately prior to the Effective Time.  \n\n               (c)  Parent will, or will cause the Surviving Corporation to, \n(i) waive all limitations as to preexisting conditions exclusions and waiting \nperiods with respect to participation and coverage requirements applicable to \nthe Company Employees under any welfare benefit plans that such employees may \nbe eligible to participate in after the Effective Time, other than \nlimitations or waiting periods that are already in effect with respect to \nsuch employees and that have not been satisfied as of the Effective Time \nunder any welfare plan maintained for the Company Employees immediately prior \nto the Effective Time, and (ii) provide each Company Employee with credit for \nany co-payments and deductibles paid prior to the Effective Time in \nsatisfying any applicable deductible or out-of-pocket requirements under any \nwelfare plans that such employees are eligible to participate in after the \nEffective Time.\n\n               (d)  Parent agrees that until December 31, 2000, the coverage \nand benefits provided to Affected Employees pursuant to employee benefit \nplans or arrangements maintained by Parent, the Surviving Corporation, or any \nSubsidiaries of the Parent shall be, in the aggregate, not less favorable \nthan those provided to such employees immediately prior to the Effective Time \ndetermined in accordance with the benefits set forth on Section 5.8(d)(i) of \nthe Company Disclosure Schedule, and after \n\n                                          37\n\n\nDecember 31, 2000, Parent agrees to provide or cause the Surviving \nCorporation to provide coverage and benefits in the aggregate, at least as \nfavorable to the Affected Employees as the coverage and benefits provided to \nParent's employees. Without limiting the generality of the foregoing, Parent \nagrees to honor, or to cause the Surviving Corporation to honor, until \nDecember 31, 2000, the severance policy of the Company as in effect as of the \nEffective Time, as set forth on Section 5.8(d)(ii) of the Company Disclosure \nSchedule.  \n  \n\n               (e)  Through December 31, 2000, Parent agrees to provide, or \nto cause the Surviving Corporation to provide, to each currently retired \nCompany Employee and to each Company Employee who retires prior to December \n31, 2000 (the \"Retired Employees\"), the benefits (other than stock options) \nset forth on Section 5.8(e)(i) of the Company Disclosure Schedule.  From \nDecember 31, 2000 until December 31, 2002, Parent agrees to continue to \nprovide or to cause the Surviving Corporation to provide the Retired \nEmployees with the post-retirement medical insurance premium percentage \nsubsidy (as described on Section 5.8(e)(i) of the Company Disclosure \nSchedule) which each such Retired Employee is receiving as of December 31, \n2000 and that in all other respects, the post-retirement medical benefits \navailable to Retired Employees will be no less favorable than those available \nto Parent's employees who are eligible for post-retirement medical benefits \nunder its retiree medical benefit plan. From and after December 31, 2002, \nParent will provide the Retired Employees the post-retirement medical \ncoverage provided to employees or former employees of Parent who are eligible \nfor post-retirement medical benefits, treating for all purposes of such \ncoverage the Retired Employee's service with the Company as service with \nParent.   \n\n               (f)  Parent and the Surviving Corporation hereby agree to \nhonor without modification and assume the employment agreements, executive \ntermination agreements and individual benefit arrangements set forth on \nSection 5.8(f) of the Company Disclosure Schedule, all as in effect at the \nEffective Time.\n\n               (g)  Parent shall advise the employees of the Company, in a \nwritten communication issued to the Company Employees as soon as practicable \nfollowing the \n\n                                          38\n\n\ndate of this Agreement, of Parent's undertakings set forth in this Section \n5.8.\n\n               (h)   Until December 31, 2000, Parent agrees that there shall \nbe no termination or merger or consolidation of the Waverly, Inc. Pension \nPlan (the \"Pension Plan\") and the Pension Plan shall not be amended except as \nrequired by applicable law.\n\n          5.9  Corporate Presence.  Parent and Newco agree that the Surviving \nCorporation shall maintain a substantial operating presence in the City of \nBaltimore, Maryland, including maintaining a substantial work force and \noperations in Baltimore, for a period of five (5) years following the \nEffective Time. \n\n          5.10  Conduct of Business of Newco.  During the period of time from \nthe date of this Agreement to the Effective Time, Newco shall not engage in \nany activities of any nature except as provided in or contemplated by this \nAgreement.\n\n          5.11  Certain Filings.  The Company and Newco shall reasonably \ncooperate with one another (a) in connection with the preparation of the \nProxy Statement and the Schedule 14D-9, and (b) in determining whether any \naction by or in respect of, or filing with, any governmental body, agency or \nofficial, or authority is required, or any actions, consents, approvals or \nwaivers are required to be obtained from parties to any material contracts, \nin connection with the consummation of the transactions contemplated by this \nAgreement and (c) in seeking any such actions, consents, approvals, or \nwaivers or making any such filings, furnishing information required in \nconnection therewith or with the Proxy Statement and the Schedule 14D-9 and \nseeking timely to obtain any such actions, consents, approvals or waivers.\n\n          5.12  Further Assurances.  Upon the terms and subject to the \nconditions herein provided, each of the parties hereto agrees to use its \nreasonable best efforts to take, or cause to be taken, all action and to do, \nor cause to be done, all things necessary under applicable laws and \nregulations to consummate and make effective the transactions contemplated by \nthis Agreement. The provisions of Sections 5.7 are intended to benefit the \nCompany Indemnified Parties, and with respect to paragraph 5.7(c) \n\n                                          39\n\n\nhereof the Indemnified Parties, as the case may be, and shall be binding on \nall successors and assigns of Parent, Newco, the Company and the Surviving \nCorporation and shall be enforceable by the Company Indemnified Parties and \nthe Indemnified Parties, as the case may be, after the Effective Time.  \nParent hereby guarantees the performance by the Surviving Corporation of the \nobligations pursuant to Sections 5.7, 5.8. and 5.9.\n\n                                      ARTICLE VI\n\n                       CONDITIONS TO CONSUMMATION OF THE MERGER\n\n          6.1  Conditions to Each Party's Obligations to Effect the Merger.  \nThe respective obligations of each party to effect the Merger are subject to \nthe satisfaction at or prior to the Effective Time of the following \nconditions:\n\n               (a)  Stockholder Approval.  This Agreement shall have been \nduly approved by the stockholders of the Company entitled to vote with \nrespect thereto in accordance with applicable law and the Articles of \nIncorporation and By-Laws of the Company.\n\n               (b)  Injunction.  There shall not be in effect any statute, \nrule, regulation, executive order, decree, ruling or injunction or other \norder of a court or governmental or regulatory agency of competent \njurisdiction directing that the transactions contemplated herein not be \nconsummated or otherwise materially limiting or restricting ownership or the \noperation of the business of the Surviving Corporation; provided, however, \nthat, subject to the terms and provisions herein provided (including but not \nlimited to Section 5.4 of this Agreement), prior to invoking this condition \neach party shall use its reasonable efforts to have any such decree, ruling, \ninjunction or order vacated.\n\n               (c)  Governmental Filings and Consents.  Subject to the terms \nand provisions herein provided (including but not limited to Section 5.4 \nhereof), all governmental consents, orders and approvals legally required for \nthe consummation of the Merger and the transactions contemplated hereby shall \nhave been obtained and be in effect at the Effective Time, other than \nnon-material consents, orders or approvals and the waiting periods \n\n                                          40\n\n\nunder the HSR Act and under antitrust laws of applicable jurisdictions \noutside the United States shall have expired or been terminated. \n\n          6.2  Additional Conditions to the Obligations of Parent and Newco. \nThe respective obligations of Parent and Newco to effect the Merger are \nsubject to the satisfaction at or prior to the Effective Time of the \nfollowing conditions, any or all of which may be waived in whole or in part \nby Parent or Newco, as the case may be, to the extent permitted by applicable \nlaw.\n\n               (a)  Representations and Warranties.  The representations and \nwarranties of the Company set forth in this Agreement shall be true and \ncorrect as of the Effective Time as though made on and as of the Effective \nTime (except for changes permitted by this Agreement and that those \nrepresentations and warranties which address matters only as of a particular \ndate shall remain true and correct as of such date), except in any case where \nsuch failures to be true and correct in the aggregate would not have a \nCompany Material Adverse Effect.\n\n               (b)  Performance.  The Company shall have performed in all \nmaterial respects all of its respective covenants and agreements under this \nAgreement theretofore to be performed.\n\n               (c)  Officer's Certificate.  Parent shall have received at the \nEffective Time a certificate dated the Effective Time and executed by the \nPresident or a Vice President of the Company certifying to the fulfillment of \nthe conditions specified in Sections 6.2(a) and (b) hereof.\n\n          6.3  Additional Conditions to the Obligations of the Company.  The \nobligation of the Company to effect the Merger is subject to the satisfaction \nat or prior to the Effective Time of the following conditions, any and all of \nwhich may be waived in whole or in part by the Company to the extent \npermitted by applicable law:\n\n               (a)  Representations and Warranties.  The representations and \nwarranties of Parent and Newco set forth in this Agreement shall be true and \ncorrect as of the Effective Time as though made on and as of the Effective \nTime (except for changes permitted by this Agreement \n\n                                          41\n\n\nand that those representations and warranties which address matters only as \nof a particular date shall remain true and correct as of such date), except \nin any case where such failures to be true and correct in the aggregate would \nnot have a Parent Material Adverse Effect.\n\n               (b)  Performance.  Parent and Newco shall have performed in \nall material respects all of their respective covenants and agreements under \nthis Agreement theretofore to be performed.\n\n               (c)  Officer's Certificate.  The Company shall have received \nat the Effective Time a certificate dated the Effective Time and executed by \nthe President or a Vice President of Parent certifying to the fulfillment of \nthe conditions specified in Sections 6.3(a) and (b) hereof.\n\n                                     ARTICLE VII\n\n                                     TERMINATION\n\n          7.1  Termination.  This Agreement may be terminated and the Merger \ncontemplated herein may be abandoned at any time prior to the Effective Time, \nwhether before or after shareholder approval thereof:\n\n               (a)    By the mutual consent of Parent, Newco and the Company.\n\n               (b)    By either the Company or Parent:\n\n                    (i)  if shares of Company Common Stock shall not have\n     been purchased pursuant to the Offer on or prior to six (6) months\n     from the execution of this Agreement; provided, however, that the\n     right to terminate this Agreement under this Section 7.1(b)(i) shall\n     not be available to any party whose failure to fulfill any obligation\n     under this Agreement has been the cause of, or resulted in, the\n     failure of Parent or Newco, as the case may be, to purchase shares of\n     Company Common Stock pursuant to the Offer on or prior to such date;\n     or\n\n                    (ii)  if any governmental entity of competent\n     jurisdiction in the United States \n\n                                          42\n\n\n     or other country in which the Company or Parent directly or indirectly \n     has material assets or operations shall have issued an order, decree or \n     ruling or taken any other action (which order, decree, ruling or other \n     action the parties hereto shall use their respective reasonable best \n     efforts to lift), in each case permanently restraining, enjoining or \n     otherwise prohibiting the transactions contemplated by this Agreement \n     and such order, decree, ruling or other action shall have become final \n     and non-appealable. \n\n               (c)    By the Board of Directors of the Company:\n\n                    (i)  if, prior to the purchase of shares of Company\n     Common Stock pursuant to the Offer, (a) the Board of Directors of the\n     Company shall have entered into or shall have publicly announced its\n     intention to enter into an agreement or an agreement in principle with\n     respect to any Alternative Proposal that the Board of Directors\n     determines, in good faith after consultation with its financial\n     advisors, is a Superior Proposal (as defined in Section 8.10);  (b)\n     the Board of Directors of the Company shall have withdrawn, or\n     modified or changed in a manner adverse to Parent or Newco its\n     approval or recommendation of the Offer, this Agreement or the Merger\n     or shall have recommended a Superior Proposal or shall have executed,\n     or shall have announced its intention to enter into, an agreement in\n     principle or definitive agreement relating to an Superior Proposal\n     with a person or entity other than Parent, Newco or their affiliates\n     (or the Board of Directors of the Company resolves to do any of the\n     foregoing); (c) any person or group (as defined in Section 13(d)(3) of\n     the Exchange Act) (other than Parent, Newco or any affiliate thereof)\n     shall have become, after the date of this Agreement, the beneficial\n     owner (as defined in Rule 13d-3 promulgated under the Exchange Act) of\n     a majority of the outstanding Shares, or (d) any representation or\n     warranty made by Parent or Newco in this Agreement shall not have been\n     true and correct in all material respects when made, or \n\n                                          43\n\n\n     Parent or Newco shall have failed to observe or perform in any material\n     respect any of its material obligations under this Agreement; provided \n     that prior to exercising such right of termination, the Company shall \n     give prompt written notice to Parent of such misrepresentation or breach \n     of warranty or failure to observe or perform; provided, further, that \n     the Company shall not have such right of termination if the condition \n     resulting in such misrepresentation or breach of warranty or failure to \n     observe or perform is cured (i) in the event such notice is delivered on \n     or prior to the fourth business day prior to the then-scheduled \n     expiration date of the Offer, not later than the earlier of (A) such \n     expiration date and (B) ten business days following delivery of such \n     notice and (ii) in the event such notice is delivered on or after the \n     third business day prior to such expiration date, not later than three \n     business days following such delivery (it being agreed that in such \n     event the Offer shall be extended as necessary at least until the end of \n     such cure period); or \n\n                    (ii)  if Parent or Newco shall have terminated the\n     Offer, or the Offer shall have expired, without Parent or Newco, as\n     the case may be, purchasing any shares of Company Common Stock\n     pursuant thereto; provided that the Company may not terminate this\n     Agreement pursuant to this Section 7.1(c)(ii) if the Company is in\n     material breach of this Agreement; or\n\n                    (iii)  if Parent, Newco or any of their affiliates\n     shall have failed to commence the Offer on or prior to five business\n     days following the date of the initial public announcement of the\n     Offer; provided, that the Company may not terminate this Agreement\n     pursuant to this Section 7.1(c)(iii) if the Company is in material\n     breach of this Agreement.\n\n               (d)    By Parent or Newco:\n\n                    (i)  if, due to an occurrence that if occurring after\n     the commencement of the Offer would result in a failure to satisfy any \n\n                                          44\n\n\n     of the conditions set forth in Annex A hereto, Parent, Newco, or any of\n     their affiliates shall have failed to commence the Offer on or prior to\n     five business days following the date of the initial public announcement \n     of the Offer; provided that Parent may not terminate this Agreement \n     pursuant to this Section 7.1(d)(i) if Parent or Newco is in material \n     breach of this Agreement; or\n\n                    (ii)  prior to the purchase of shares of Company Common\n     Stock pursuant to the Offer, if (a) the Company shall have received\n     any Alternative Proposal which the Board of Directors of the Company\n     has determined is a Superior Proposal; (b) the Board of Directors of\n     the Company shall have withdrawn, or modified or changed in a manner\n     adverse to Parent or Newco its approval or recommendation of the\n     Offer, this Agreement or the Merger or shall have recommended an\n     Alternative Proposal or shall have executed, or shall have announced\n     its intention to enter into, an agreement in principle or definitive\n     agreement relating to an Alternative Proposal with a person or entity\n     other than Parent, Newco or their affiliates (or the Board of\n     Directors of the Company resolves to do any of the foregoing); (c) any\n     person or group (as defined in Section 13(d)(3) of the Exchange Act)\n     (other than Parent, Newco or any affiliate thereof) shall have become,\n     after the date of this Agreement, the beneficial owner (as defined in\n     Rule 13d-3 promulgated under the Exchange Act) of more than one-third\n     of the outstanding Shares, or (d) any representation or warranty made\n     by the Company in this Agreement shall not have been true and correct\n     in all material respects when made, or the Company shall have failed\n     to observe or perform in any material respect any of its material\n     obligations under this Agreement; provided that prior to exercising\n     such right of termination, Parent and Newco shall give prompt written\n     notice to the Company of such misrepresentation or breach of warranty\n     or failure to observe or perform; provided, further, that Parent and\n     Newco shall not have such right of termination if the condition \n\n                                          45\n\n\n     resulting in such misrepresentation or breach of warranty or failure to\n     observe or perform is cured (i) in the event such notice is delivered on \n     or prior to the fourth business day prior to the then-scheduled \n     expiration date of the Offer, not later than the earlier of (A) such \n     expiration date and (B) ten business days following delivery of such \n     notice and (ii) in the event such notice is delivered on or after the \n     third business day prior to such expiration date, not later than three \n     business days following such delivery (it being agreed that in such \n     event the Offer shall be extended as necessary at least until the end of \n     such cure period). \n\n          7.2  Effect of Termination.  In the event of the termination of \nthis Agreement as provided in Section 7.1, written notice thereof shall \nforthwith be given to the other party or parties specifying the provision \nhereof pursuant to which such termination is made, and this Agreement shall \nforthwith become null and void, and there shall be no liability on the part \nof Parent, Newco or the Company or their respective directors, officers, \nemployees, representatives, agents, advisors or shareholders other than the \nobligations pursuant to this Section 7.2, except that the agreements \ncontained in Sections 8.1, 8.2, 8.3, 8.4, 8.6, 8.7, 8.8, 8.12, 8.14, 8.15, \n8.16 and the last sentence of Section 5.5 shall survive the termination \nhereof, provided, however, that if Parent or Newco terminates this Agreement \npursuant to Section 7.1(d)(ii)(a), (b) and (c) hereof, then immediately \nfollowing such termination the Company shall pay to Parent $10,000,000 in \nfull satisfaction of the obligations of the Company under this Agreement.  \nNothing contained in this Section 7.2 shall relieve any party from liability \nfor fraud or for willful breach of this Agreement.\n\n                                     ARTICLE VIII\n\n                              MISCELLANEOUS AND GENERAL\n\n          8.1  Payment of Expenses and Other Payments.  Whether or not the \nMerger shall be consummated, each party hereto shall pay its own expenses \nincident to preparing for, entering into and carrying out this Agreement and \nthe consummation of the transactions contemplated hereby.\n\n                                          46\n\n\n          8.2  Survival of Representations and Warranties; Survival of \nConfidentiality Agreement.  The representations and warranties made herein \nshall not survive beyond the earlier of termination of this Agreement or the \nEffective Time.  This Section 8.2 shall not limit any covenant or agreement \nof the parties hereto which by its terms contemplates performance after the \nEffective Time. The Confidentiality Agreement shall survive any termination \nof this Agreement, and the provisions of such Confidentiality Agreement shall \napply to all information and material delivered by any party hereunder.\n\n          8.3  Modification or Amendment.  Subject to the applicable \nprovisions of the MGCL, at any time prior to the Effective Time, the parties \nhereto may modify or amend this Agreement, by written agreement executed and \ndelivered by duly authorized officers of the respective parties; provided, \nhowever, that after approval of this Agreement by the stockholders of the \nCompany, no amendment shall be made which reduces or changes the \nconsideration payable in the Merger or adversely affects the rights of the \nCompany's stockholders hereunder without the approval of such stockholders.\n\n          8.4  Waiver of Conditions. Except as otherwise provided in this \nAgreement, any failure of any of the parties to comply with any obligation, \ncovenant, agreement or condition herein may be waived by the party or parties \nentitled to the benefits thereof only by a written instrument signed by the \nparty granting such waiver, but such waiver or failure to insist upon strict \ncompliance with such obligation, covenant, agreement or condition shall not \noperate as a waiver of, or estoppel with respect to, any subsequent or other \nfailure.  \n\n          8.5  Counterparts.  This Agreement may be executed in two or more \ncounterparts, all of which shall be considered one and the same agreement and \nshall become effective when two or more counterparts have been signed by each \nof the parties and delivered to the other parties, it being understood that \nall parties need not sign the same counterpart.\n\n          8.6  Governing Law.  This Agreement shall be governed by, and \nconstrued in accordance with, the laws of \n\n                                          47\n\n\nthe State of Maryland without giving effect to the principles of conflicts of \nlaw thereof.\n\n          8.7  Notices.  Any notice, request, instruction or other document \nto be given hereunder by any party to the other parties shall be in writing \nand delivered personally or sent by registered or certified mail, postage \nprepaid, or by facsimile transmission (with a confirming copy sent by \novernight courier), as follows:\n\n               (a)  If to the Company, to\n\n                    Waverly, Inc.\n                    351 West Camden Street\n                    Baltimore, Maryland  21117\n                    (410) 528-4000 (telephone)\n                    (410) 528-4414 (telecopier)\n\n                    with copies to:\n\n                    Michael P. Rogan \n                    Skadden, Arps, Slate, Meagher &amp; Flom LLP\n                    1440 New York Avenue, N.W.\n                    Washington, D.C.  20005-2111\n                    (202) 371-7000 (telephone)\n                    (202) 393-5760 (telecopier)\n\n                    Ariel Vannier\n                    Venable, Baetjer, Howard &amp; Civiletti,\n                      LLP\n                    1201 New York Avenue, N.W.\n                    Suite 1000\n                    Washington, D.C. 20005\n                    (202) 962-4800 (telephone)\n                    (202) 962 8300 (telecopier)\n\n\n               (b)  If to Parent or Newco, to\n\n                    Bruce C. Lenz, Executive Vice                       \n                         President\n                    Wolters Kluwer United States Inc.\n                    161 North Clark Street\n                    Chicago, IL 60601\n                    (312) 425-7020 (telephone)\n                    (312) 425-0233 (telecopier)\n\n                                          48\n\n\n                    with a copy to:\n\n                    Arnold J. Schaab, Esq.\n                    Pryor, Cashman, Sherman &amp; Flynn\n                    410 Park Avenue\n                    New York, NY 10022\n                    (212) 326-0168 (telephone)\n                    (212) 326-0806 (telecopier)\n\nor to such other persons or addresses as may be designated in writing by the \nparty to receive such notice.\n\n          8.8  Entire Agreement; Assignment.  This Agreement and the \nConfidentiality Agreement (a) constitute the entire agreement among the \nparties with respect to the subject matter hereof and supersede all other \nprior agreements and understandings, both written and oral, among the parties \nor any of them with respect to the subject matter hereof and (b) shall not be \nassigned by operation of law or otherwise without the prior written consent \nof the other parties. Subject to the preceding sentence, this Agreement will \nbe binding upon, inure to the benefit of and be enforceable by the parties \nand their respective permitted successors and assigns.\n\n          8.9  Parties in Interest.  This Agreement shall be binding upon and \ninure solely to the benefit of each party hereto and their respective \nsuccessors and assigns.  Nothing in this Agreement, express or implied, other \nthan the right to receive the consideration payable in the Merger pursuant to \nArticle II hereof, is intended to or shall confer upon any other person any \nrights, benefits or remedies of any nature whatsoever under or by reason of \nthis Agreement; provided, however, that the provisions of Sections 5.7 shall \ninure to the benefit of the Company Indemnified Parties and the Indemnified \nParties and shall be binding on all successors and assigns of Parent, Newco, \nthe Company and the Surviving Corporation and shall be enforceable by the \nCompany Indemnified Parties and the Indemnified Parties, as the case may be, \nafter the Effective Time.\n\n          8.10  Certain Definitions.  As used herein:\n\n               (a)  \"Alternative Proposal\" shall mean any proposal or offer \nfor a merger, asset acquisition or other \n\n                                          49\n\n\nbusiness combination involving the Company or any proposal or offer to \nacquire a significant equity interest in, or a significant portion of the \nassets of, the Company other than the transactions contemplated by this \nAgreement.\n\n               (b)  \"Company Material Adverse Effect\" shall mean any adverse \nchange in the assets, liabilities, financial condition, or results of \noperations of the Company or any of its Subsidiaries which is material to the \nCompany and its Subsidiaries taken as a whole other than any change or effect \narising out of general economic conditions.\n\n               (c)  \"Parent Material Adverse Effect\" shall mean any material \nadverse change in the assets, liabilities, financial condition, or results of \noperations of Parent or any of its Subsidiaries which is material to Parent \nand its Subsidiaries taken as a whole other than any change or effect arising \nout of general economic conditions.\n\n               (d)  \"Subsidiary\" shall mean, when used with reference to any \nentity, any corporation a majority of the outstanding voting securities of \nwhich are owned directly or indirectly by such entity.\n\n               (e)  \"Superior Proposal\" means any bona fide proposal to \nacquire, directly or indirectly, for consideration consisting of cash and\/or \nsecurities, all of the Shares then outstanding or all or substantially all \nthe assets of the Company, and otherwise on terms which the Board of \nDirectors of the Company determines in good faith to be more favorable to the \nCompany and its shareholders than the Offer and the Merger (after \nconsultation with the Company's financial advisor). \n\n          8.11  Obligation of Parent.  Whenever this Agreement requires Newco \nto take any action, such requirement shall be deemed to include an \nundertaking on the part of Parent to cause Newco to take such action and a \nguarantee of the performance thereof.\n\n          8.12  Validity. If any term, provision, covenant or restriction of \nthis Agreement is held by a court of competent jurisdiction or other \nauthority to be invalid, void, unenforceable or against its regulatory \npolicy, the remainder of the terms, provisions, covenants and restrictions \n\n                                          50\n\n\nof this Agreement shall remain in full force and effect and shall in no way \nbe affected, impaired or invalidated so long as the economic or legal \nsubstance of the transactions contemplated hereby are not affected in any \nmanner materially adverse to any party.\n\n          8.13  Interpretation.  The words \"hereof\", \"herein\", and \"herewith\" \nand words of similar import shall, unless otherwise stated, be construed to \nrefer to this Agreement as a whole and not to any particular provision of \nthis Agreement, and article, section, paragraph, exhibit and schedule \nreferences are to the articles, sections, paragraphs, exhibits and schedules \nof this Agreement unless otherwise specified.  Whenever the words \"include\", \n\"includes\" or \"including\" are used in this Agreement they shall be deemed to \nbe followed by the words \"without limitation\".  The words describing the \nsingular number shall include the plural and vice versa, and words denoting \nany gender shall include all genders and words denoting natural persons shall \ninclude corporations and partnerships and vice versa.  The phrase \"to the \nbest knowledge of\" or any similar phrase shall mean such facts and other \ninformation which as of the date of this Agreement are actually known (or \nafter reasonable inquiry would have been known) to (i) in the case of the \nCompany, any officer of the Company; and (ii) in the case of Parent or Newco, \nany of their respective officers.  The phrase \"made available\" in this \nAgreement shall mean that the information referred to has been made available \nif requested by the party to whom such information is to be made available.  \nThe phrases \"the date of this Agreement\", \"the date hereof\", and terms of \nsimilar import, unless the context otherwise requires, shall be deemed to \nrefer to February 10, 1998.  As used in this Agreement, the term \n\"affiliate(s)\" shall have the meaning set forth in Rule l2b-2 of the Exchange \nAct.  No presumption or burden of proof shall arise favoring or disfavoring \nany party by virtue of the authorship of any provisions of this Agreement.\n\n          8.14  Captions.  The Article, Section and paragraph captions herein \nare for convenience of reference only, do not constitute part of this \nAgreement and shall not be deemed to limit or otherwise affect any of the \nprovisions hereof.\n\n          8.15  Specific Performance.  Each of the parties hereto \nacknowledges and agrees that in the event of any \n\n                                          51\n\n\nbreach of this Agreement, each non-breaching party would be irreparably and \nimmediately harmed and could not be made whole by monetary damages.  It is \naccordingly agreed that the parties hereto (a) will waive, in any action for \nspecific performance, the defense of adequacy of a remedy at law and (b) \nshall be entitled, in addition to any other remedy to which they may be \nentitled at law or in equity, to compel specific performance of this \nAgreement in any action instituted in a court of competent jurisdiction.\n\n          8.16  Joint and Several Liability.  Parent and Newco hereby agree \nthat they will be jointly and severally liable for all covenants, agreements, \nobligations and representations and warranties made by either of them in this \nAgreement.\n\n          8.17   Schedules.  The Company Disclosure Schedule and the Parent \nDisclosure Schedule shall be construed with and as an integral part of this \nAgreement to the same extent as if the same had been set forth verbatim \nherein.  No such disclosure shall be deemed to be an admission or \nrepresentation as to the materiality of the item so disclosed.\n\n \n                                          52\n\n\n          IN WITNESS WHEREOF, the parties hereto have caused this Agreement \nto be executed by their respective duly authorized officers as of the date \nfirst above written.\n\nAttest:             WAVERLY, INC.\n \n[seal]\n\n                    By: \/s\/ William M. Passano, Jr.      \n                        ---------------------------------\n                         Name:  William M. Passano, Jr.\n                         Title: Chairman\n\n\n\n\nAttest:             WOLTERS KLUWER U.S. CORPORATION\n\n[seal]\n\n                    By: \/s\/ Peter W. van Wel             \n                        ---------------------------------\n                         Name:  Peter W. van Wel\n                         Title: President\n\n\n\n\nAttest:             MP ACQUISITION CORP.\n\n[seal]\n\n                    By: \/s\/ Bruce C. Lenz                  \n                        ---------------------------------\n                         Name:  Bruce C. Lenz\n                         Title: Vice President\n\n\n \n                                          53\n\n\n\n                                                                      ANNEX A\n\n                               CONDITIONS TO THE OFFER\n\n          The capitalized terms used in this Annex A shall have the meanings \nascribed to them in the Agreement and Plan of Merger to which it is attached, \nexcept that the term \"Merger Agreement\" shall be deemed to refer to such \nAgreement and Plan of Merger.\n\n          Notwithstanding any other provisions of the Offer, and in addition \nto (and not in limitation of) Newco's rights to extend and amend the Offer at \nany time in its sole discretion (subject to the provisions of the Merger \nAgreement), Newco shall not be required to accept for payment or, subject to \nany applicable rules and regulations of the SEC, including Rule 14e-1(c) \nunder the Exchange Act (relating to Newco's obligation to pay for or return \ntendered Shares promptly after termination or withdrawal of the Offer), pay \nfor, and may delay the acceptance for payment of or, subject to the \nrestriction referred to above, the payment for, any tendered Shares, and may \nterminate the Offer if (i) any applicable waiting period under the HSR Act or \nthe antitrust laws of applicable jurisdictions outside the United States has \nnot expired or terminated prior to the expiration of the Offer, (ii) the \nMinimum Condition has not been satisfied, (iii) at any time on or after the \ndate hereof, and before the expiration of the Offer any of the following \nconditions exist:\n\n               (a)    there shall be any statute, rule, regulation, judgment, \norder or injunction promulgated, entered, enforced, enacted, issued or \napplicable to the Offer or the Merger by any governmental entity of competent \njurisdiction in the United States or other country in which the Company or \nParent directly or indirectly has material assets or operations which (l) \nseeks to prohibit the consummation of the Offer or the Merger, (2) as a \nresult of the Offer or the Merger, seeks to restrain or prohibit, or impose \nany material limitations on, Parent's or Newco's ownership or operation of \nall or a material portion of the businesses or assets of the Company and its \nSubsidiaries, taken as a whole, or of Parent and its subsidiaries, taken as a \nwhole, or compel Parent or any of its subsidiaries or affiliates to dispose \nof or hold \n\n                                         A-1\n\n\nseparate all or any material portion of the business or assets of the Company \nand its Subsidiaries, taken as a whole, or of Parent and its subsidiaries, \ntaken as a whole or requires the Company, Parent or Newco to pay damages that \nare material in relation to the Company and its Subsidiaries, taken as a \nwhole, (3) seeks to challenge, prohibit, or make illegal the acceptance for \npayment, payment for or purchase of Shares pursuant to, or consummation of, \nthe Offer or the Merger, (4) seeks to impose material limitations on the \nability of Newco or Parent effectively to exercise full rights of ownership \nof the Shares accepted for payment pursuant to the Offer, including, without \nlimitation, the right to vote the Shares purchased by it on all matters \nproperly presented to the Company's shareholders (5) seeks to require \ndivestiture by Parent or any of its Subsidiaries or affiliates of any Shares, \nprovided that Parent shall have used all reasonable efforts to cause any such \njudgment, order or injunction to be vacated or lifted; \n\n               (b)    there shall be threatened, instituted or pending any \naction, suit, or proceeding by any governmental entity of competent \njurisdiction in the United States, or any other country in which the Company \nor Parent directly or indirectly has material assets or operations, that is \nreasonably likely, directly or indirectly, to result in any of the \nconsequences referred to in clauses (1) through (5) of paragraph (a) above;\n\n               (c)       there has been since the date hereof any event, \noccurrence or development or state of circumstances or facts which has had or \nwould reasonably be expected to have a Company Material Adverse Effect (as \ndefined in Section 8.10);\n\n               (d)    the representations and warranties of the Company set \nforth in the Merger Agreement shall not be true and accurate as of the date \nof consummation of the Offer as though made on or as of such date or the \nCompany shall have breached or failed in any material respect to perform or \ncomply with any material obligation, agreement or covenant required by the \nMerger Agreement to be performed or complied with by it except, (i) those \nrepresentations and warranties that address matters only as of a particular \ndate or only with respect to a specified period of time which need only be \ntrue and accurate as of such date or with respect to such period or (ii) \n\n                                         A-2\n\n\nwhere the failure of such representations and warranties to be true and \naccurate, or the breach, non-performance or non-compliance with such \nobligations, agreements or covenants, do not have, individually or in the \naggregate, or would not reasonably be expected to have, individually or in \nthe aggregate, a Company Material Adverse Effect;\n\n               (e)    the Merger Agreement shall have been terminated in \naccordance with its terms;\n\n               (f)    the Company shall have entered into a definitive \nagreement or agreement in principle with any person with respect to an \nAlternative Proposal;\n\n               (g)    the Company's Board of Directors shall have withdrawn, \nor modified or changed in a manner adverse to Parent or Newco (including by \namendment of the Schedule 14D-9) its recommendation of the Offer, the Merger \nAgreement, or the Merger, or recommended an Alternative Proposal, or shall \nhave resolved to do any of the foregoing;\n\nwhich in the sole judgment of Parent or Newco, in any such case, and \nregardless of the circumstances giving rise to such condition, makes it \ninadvisable to proceed with the Offer and\/or with such acceptance for payment \nor payments.\n\n          The foregoing conditions are for the sole benefit of Newco and \nParent and may be waived by Parent or Newco, in whole or in part at any time \nand from time to time in the sole discretion of Parent or Newco.\n\n                                         A-3\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9299],"corporate_contracts_industries":[9464],"corporate_contracts_types":[9622,9626],"class_list":["post-43151","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-waverly-inc","corporate_contracts_industries-media__books","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43151","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43151"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43151"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43151"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43151"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}