**Exhibit2.1**

**WIICOMPONENTS, INC.**

**AMENDEDAND RESTATED**

**AGREEMENTAND PLAN OF MERGER**

January 5, 2007

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**TABLEOF CONTENTS**
|                                                                                           | ** ** | ** **                                | ** ** | **Page** |
|-------------------------------------------------------------------------------------------|------------|-------------------------------------------|------------|----------|
| ** **                                                                                | ** ** | ** **                                |
| **ARTICLE I THE MERGER**                                                                  | ** ** | **2**                                     |
| ** **                                                                                | ** ** | ** **                                |
| **Section  1.1.**                                                                         |       | The Merger                                |       | 2        |
| **Section  1.2.**                                                                         |       | Effective Time                            |       | 2        |
| **Section  1.3.**                                                                         |       | Certificate of Incorporation and By-Laws  |       | 2        |
| **Section  1.4.**                                                                         |       | Closing                                   |       | 2        |
| **Section  1.5.**                                                                         |       | Directors and Officers                    |       | 3        |
|                                                                                      |       |                                      |       |     |
| **ARTICLE  II EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS** | ** ** | **3**                                     |
| ** **                                                                                | ** ** | ** **                                |
| **Section  2.1.**                                                                         |       | Effect on Capital Stock                   |       | 3        |
| **Section  2.2.**                                                                         |       | Company Stock Options and Related Matters |       | 5        |
| **Section  2.3.**                                                                         |       | Payments at Closing for Indebtedness      |       | 6        |
| **Section  2.4.**                                                                         |       | Payments at Closing for Expenses          |       | 6        |
| **Section  2.5.**                                                                         |       | Closing Estimates                         |       | 6        |
| **Section  2.6.**                                                                         |       | Post Closing Adjustments                  |       | 7        |
| **Section  2.7.**                                                                         |       | Tax Benefit Payments                      |       | 9        |
| **Section  2.8.**                                                                         |       | Escrow Payment                            |       | 9        |
| **Section  2.9.**                                                                         |       | Affiliate Accounts                        |       | 9        |
| **Section  2.10.**                                                                        |       | Management Equity Rollover                |       | 9        |
|                                                                                      |       |                                      |       |     |
| **ARTICLE III PAYMENT FOR SHARES; DISSENTING  SHARES**                                    | ** ** | **10**                                    |
| ** **                                                                                | ** ** | ** **                                |
| **Section  3.1.**                                                                         |       | Payment for Shares of Company Stock       |       | 10       |
| **Section  3.2.**                                                                         |       | Appraisal Rights                          |       | 12       |
|                                                                                      |       |                                      |       |     |
| **ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE  COMPANY**                             | ** ** | **12**                                    |
| ** **                                                                                | ** ** | ** **                                |
| **Section  4.1.**                                                                         |       | Existence; Good Standing; Authority       |       | 13       |
| **Section  4.2.**                                                                         |       | Capitalization                            |       | 14       |
| **Section  4.3.**                                                                         |       | Subsidiaries                              |       | 15       |
| **Section  4.4.**                                                                         |       | No Conflict; Consents                     |       | 15       |
| **Section  4.5.**                                                                         |       | Financial Statements                      |       | 15       |
| **Section  4.6.**                                                                         |       | Absence of Certain Changes                |       | 16       |
| **Section  4.7.**                                                                         |       | Litigation                                |       | 17       |
| **Section  4.8.**                                                                         |       | Taxes                                     |       | 18       |
| **Section  4.9.**                                                                         |       | Employee Benefit Plans                    |       | 19       |
| **Section  4.10.**                                                                        |       | Real and Personal Property                |       | 20       |

 

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| **Section 4.11.**                                                    |       | Labor and Employment Matters                            |   | 22     |
|----------------------------------------------------------------------|------------|---------------------------------------------------------|--------|--------|
| **Section  4.12.**                                                   |       | Contracts and Commitments                               |   | 22     |
| **Section  4.13.**                                                   |       | Intellectual Property                                   |   | 24     |
| **Section  4.14.**                                                   |       | Environmental Matters                                   |   | 25     |
| **Section  4.15.**                                                   |       | Insurance                                               |   | 27     |
| **Section  4.16.**                                                   |       | No Brokers                                              |   | 27     |
| **Section  4.17.**                                                   |       | Compliance with Laws                                    |   | 27     |
| **Section  4.18.**                                                   |       | Licenses and Permits                                    |   | 27     |
| **Section  4.19.**                                                   |       | Knowledge                                               |   | 28     |
| **Section  4.20.**                                                   |       | Undisclosed Liabilities                                 |   | 28     |
| **Section  4.21.**                                                   |       | Affiliate Transactions                                  |   | 28     |
| **Section  4.22.**                                                   |       | Customers and Suppliers                                 |   | 28     |
| **Section  4.23.**                                                   |       | Inventory                                               |   | 29     |
| **Section  4.24.**                                                   |       | Warranty                                                |   | 29     |
| **Section  4.25.**                                                   |       | Indebtedness                                            |   | 29     |
| ** **                                                           |       |                                                    |   |   |
| **ARTICLE V REPRESENTATIONS AND WARRANTIES OF  PARENT AND MERGERCO** | ** ** | **29**                                                  |
| ** **                                                           | ** ** | ** **                                              |
| **Section  5.1.**                                                    |       | Organization                                            |   | 30     |
| **Section  5.2.**                                                    |       | Authorization; Validity of Agreement; Necessary  Action |   | 30     |
| **Section  5.3.**                                                    |       | No Conflict; Consents                                   |   | 30     |
| **Section  5.4.**                                                    |       | Required Financing                                      |   | 31     |
| **Section  5.5.**                                                    |       | Brokers                                                 |   | 31     |
| **Section  5.6.**                                                    |       | Litigation                                              |   | 31     |
| **Section  5.7.**                                                    |       | Inspection; No Other Representations                    |   | 32     |
| ** **                                                           |       |                                                    |   |   |
| **ARTICLE VI CONDUCT OF BUSINESS PENDING THE  MERGER**               | ** ** | **32**                                                  |
| ** **                                                           | ** ** | ** **                                              |
| **Section  6.1.**                                                    |       | Conduct of Business Prior to Closing                    |   | 32     |
| **Section  6.2.**                                                    |       | Other Pre-Closing Covenants                             |   | 35     |
| **Section  6.3.**                                                    |       | Affiliated Transactions                                 |   | 35     |
| **Section  6.4.**                                                    |       | Actions with Respect to Financing                       |   | 36     |
| ** **                                                           |       |                                                    |   |   |
| **ARTICLE VII ADDITIONAL AGREEMENTS**                                | ** ** | **36**                                                  |
| ** **                                                           | ** ** | ** **                                              |
| **Section  7.1.**                                                    |       | Stockholders Consent                                    |   | 36     |
| **Section  7.2.**                                                    |       | Access to Information                                   |   | 38     |
| **Section  7.3.**                                                    |       | Confidentiality                                         |   | 39     |
| **Section  7.4.**                                                    |       | Supplemental Disclosure                                 |   | 39     |
| **Section  7.5.**                                                    |       | Regulatory and Other Authorizations                     |   | 39     |
| **Section  7.6.**                                                    |       | Press Releases                                          |   | 40     |
| **Section  7.7.**                                                    |       | No Solicitations                                        |   | 41     |
| **Section  7.8.**                                                    |       | Officers’ and Directors’ Indemnification      |   | 41     |

 

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| **Section 7.9.**                                                            |       | Tax Matters                                                        |   | 44     |
|-----------------------------------------------------------------------------|------------|--------------------------------------------------------------------|--------|--------|
| **Section  7.10.**                                                          |       | Books and Records                                                  |   | 48     |
| **Section  7.11.**                                                          |       | Further Action                                                     |   | 48     |
| ** **                                                                  |       |                                                               |   |   |
| **ARTICLE VIII CONDITIONS TO THE MERGER**                                   | ** ** | **48**                                                             |
| ** **                                                                  | ** ** | ** **                                                         |
| **Section  8.1.**                                                           |       | Conditions to the Obligations of Each Party to  Effect the Closing |   | 48     |
| **Section  8.2.**                                                           |       | Additional Conditions to Obligations of Parent and  MergerCo       |   | 49     |
| **Section  8.3.**                                                           |       | Additional Conditions to Obligations of the Company                |   | 51     |
| ** **                                                                  |       |                                                               |   |   |
| **ARTICLE IX SURVIVAL OF REPRESENTATIONS AND  WARRANTIES; INDEMNIFICATION** | ** ** | **52**                                                             |
| ** **                                                                  | ** ** | ** **                                                         |
| **Section  9.1.**                                                           |       | Survival                                                           |   | 52     |
| **Section  9.2.**                                                           |       | Parent/MergerCo Indemnification                                    |   | 52     |
| **Section  9.3.**                                                           |       | Indemnification by Parent and MergerCo                             |   | 58     |
| **Section  9.4.**                                                           |       | Stockholders’ Representative                                  |   | 62     |
| **Section  9.5.**                                                           |       | Treatment of Indemnity Payments                                    |   | 65     |
| **Section  9.6.**                                                           |       | Remedies Exclusive                                                 |   | 65     |
| **Section  9.7.**                                                           |       | Environmental Indemnification                                      |   | 66     |
| ** **                                                                  |       |                                                               |   |   |
| **ARTICLE X TERMINATION, AMENDMENT AND WAIVER**                             | ** ** | **66**                                                             |
| ** **                                                                  | ** ** | ** **                                                         |
| **Section  10.1.**                                                          |       | Termination                                                        |   | 66     |
| **Section  10.2.**                                                          |       | Effect of Termination                                              |   | 68     |
| **Section  10.3.**                                                          |       | Termination Fee                                                    |   | 68     |
| **Section  10.4.**                                                          |       | Amendment                                                          |   | 68     |
| **Section  10.5.**                                                          |       | Extension; Waiver                                                  |   | 68     |
| ** **                                                                  |       |                                                               |   |   |
| **ARTICLE XI GENERAL PROVISIONS**                                           | ** ** | **69**                                                             |
| ** **                                                                  | ** ** | ** **                                                         |
| **Section  11.1.**                                                          |       | Notices                                                            |   | 69     |
| **Section  11.2.**                                                          |       | Disclosure Schedules                                               |   | 70     |
| **Section  11.3.**                                                          |       | Assignment                                                         |   | 71     |
| **Section  11.4.**                                                          |       | Severability                                                       |   | 71     |
| **Section  11.5.**                                                          |       | No Agreement Until Executed                                        |   | 71     |
| **Section  11.6.**                                                          |       | Certain Definitions                                                |   | 71     |
| **Section  11.7.**                                                          |       | Interpretation                                                     |   | 77     |
| **Section  11.8.**                                                          |       | Fees and Expenses                                                  |   | 77     |
| **Section  11.9.**                                                          |       | Choice of Law/Consent to Jurisdiction                              |   | 77     |
| **Section  11.10.**                                                         |       | Specific Performance                                               |   | 78     |
| **Section  11.11.**                                                         |       | Mutual Drafting                                                    |   | 78     |
| **Section  11.12.**                                                         |       | Miscellaneous                                                      |   | 78     |

 

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| **ANNEXES**          |       |                                           |
|----------------------|------------|------------------------------------------------|
| ** **           | ** ** | ** **                                     |
| Annex A              |       | List of Defined Terms                          |
|                 |       |                                           |
| **EXHIBITS**         | ** ** | ** **                                     |
| ** **           | ** ** | ** **                                     |
| Exhibit A            |       | Form of Escrow Agreement                       |
| Exhibit B            |       | Form Letter of Transmittal                     |
| Exhibit C-1          |       | Debt Commitment Letters                        |
| Exhibit C-2          |       | Equity Commitment Letter                       |
| Exhibit D            |       | Form of Goodwin Procter Legal Opinion          |
| Exhibit E            |       | Form of Common Equity Holders Agreement        |
| Exhibit F            |       | Form of Kirkland & Ellis LLP Legal Opinion |
|                 |       |                                           |
| **SCHEDULES**        | ** ** | ** **                                     |
| ** **           | ** ** | ** **                                     |
| Schedule 2.3         |       | Indebtedness                                   |
| Schedule 4.1(a)      |       | Existence; Good Standing; Authority            |
| Schedule 4.2         |       | Capitalization                                 |
| Schedule 4.3(a)      |       | Subsidiaries                                   |
| Schedule 4.3(b)      |       | Foreign Qualification                          |
| Schedule 4.4         |       | No Conflicts; Consents                         |
| Schedule 4.5         |       | Financial Statements                           |
| Schedule 4.6(a)      |       | Absence of Certain Changes                     |
| Schedule 4.6(b)      |       | Absence of Certain Changes                     |
| Schedule 4.7         |       | Litigation                                     |
| Schedule 4.8         |       | Taxes                                          |
| Schedule 4.9(a)      |       | Employee Benefit Plans                         |
| Schedule 4.9(b)      |       | ERISA                                          |
| Schedule 4.9(d)      |       | Effect of Transaction on Benefits              |
| Schedule 4.9(e)      |       | Section 280G Payments                          |
| Schedule 4.10(a)     |       | Owned Real Property                            |
| Schedule 4.10(b)     |       | Leased Real Property                           |
| Schedule 4.10(c)     |       | Encumbrances                                   |
| Schedule 4.10(c)(vi) |       | Certain Encumbrances                           |
| Schedule 4.10(d)     |       | Assets                                         |
| Schedule 4.11(a)     |       | Labor and Employment Matters                   |
| Schedule 4.11(b)     |       | Organized Labor Agreements                     |
| Schedule 4.12        |       | Contracts and Commitments                      |
| Schedule 4.13(a)     |       | Patents, Marks and Copyrights                  |
| Schedule 4.13(b)     |       | Intellectual Property Encumbrances             |
| Schedule 4.13(f)     |       | Intellectual Property Licenses                 |
| Schedule 4.14        |       | Environmental Matters                          |
| Schedule 4.15        |       | Insurance                                      |
| Schedule 4.17        |       | Compliance with Laws                           |

 

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| Schedule 4.18    |   | Licenses and Permits         |
|------------------|--------|------------------------------|
| Schedule 4.20    |   | Undisclosed Liabilities      |
| Schedule 4.21    |   | Affiliate Transactions       |
| Schedule 4.22    |   | Customers and Suppliers      |
| Schedule 4.24    |   | Warranty                     |
| Schedule 4.25    |   | Indebtedness                 |
| Schedule 5.2     |   | Authorization                |
| Schedule 5.3     |   | No Conflicts; Consents       |
| Schedule 6.1     |   | Conduct of Business          |
| Schedule 6.3     |   | Affiliated Transactions      |
| Schedule 7.8(b)  |   | Indemnification Agreements   |
| Schedule 8.2(d)  |   | Required Consents            |
| Schedule 9.2     |   | Indemnity                    |
| Schedule 11.6(n) |   | Working Capital              |
| Schedule 11.6(w) |   | Pro Rata Portion             |
| Schedule 11.6(z) |   | Responsible Pro Rata Portion |

 

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**AMENDEDAND RESTATED AGREEMENT AND PLAN OF MERGER**

This AMENDED ANDRESTATED AGREEMENT AND PLAN OF MERGER (this “Agreement”) is dated as ofJanuary 5, 2007, by and among WII Holding, Inc., a Delaware corporation (“Parent”),WII Merger Corporation, a Delaware corporation (“MergerCo”), WIIComponents, Inc., a Delaware corporation (the “Company”) and BehrmanCapital III L.P., a Delaware limited partnership, solely in the capacity of theStockholders’ Representative (the “Stockholders’ Representative”).  Certain terms used in this Agreement aredefined in Section 11.6 hereof.  An indexof defined terms used in this Agreement is attached as Annex A hereto.

WHEREAS, thisAgreement amends and restates in its entirety that certain Agreement and Planof Merger, dated as of December 11, 2006 (the “Original Date”), by andamong the parties hereto (the “Prior Agreement”);

WHEREAS, Parent,MergerCo and the Company wish to effect a business combination through a merger(the “Merger”) of MergerCo with and into the Company on the terms andconditions set forth in this Agreement and in accordance with the DelawareGeneral Corporation Law, as amended (the “DGCL”);

WHEREAS, the Boardof Directors of the Company (the “Company Board”) has (i) approved thisAgreement, the Merger and the other transactions contemplated by thisAgreement, (ii) determined that this Agreement, the Merger and the othertransactions contemplated by this Agreement are advisable and in the bestinterest of its stockholders and (iii) resolved to recommend to thestockholders of the Company this Agreement and the transactions contemplatedhereby;

WHEREAS, theBoards of Directors of Parent and MergerCo have determined that this Agreement,the Merger and the other transactions contemplated by this Agreement are in thebest interest of their respective stockholders, and Parent has approved thisAgreement as the sole stockholder of MergerCo;

WHEREAS, theholders of Company Stock of the Company constituting the Necessary StockholderApproval have executed and delivered to the Company on or prior to the datehereof the Prior Written Consent irrevocably adopting and approving the PriorAgreement;

WHEREAS,concurrently with the execution of the Prior Agreement, Parent, MergerCo andthe employees of the Company and/or its Subsidiaries listed on Schedule Iattached hereto entered into employment agreements and non-compete agreements(the “New Executive Arrangements”) to be effective at the Effective Time(as defined herein); and

WHEREAS, subjectto Section 2.10 hereof, immediately prior to the Effective Time, certainholders of Company Stock shall exchange a portion of such Company Stock forequity securities of Parent; and

WHEREAS, Parent,MergerCo and the Company desire to make certain representations, warranties,covenants and agreements in connection with the Merger and to prescribe variousconditions to the Merger.

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NOW THEREFORE, inconsideration of the mutual agreements and covenants herein contained, and forother good and valuable consideration, the receipt and sufficiency of which arehereby acknowledged, the parties hereto agree as follows:

# **ARTICLE I**

# **THEMERGER**

**Section1.1.****                                TheMerger.**  Subject to the terms and conditions of thisAgreement, at the Effective Time (as defined in Section 1.2), the Company andMergerCo shall consummate the Merger pursuant to which (a) MergerCo shallbe merged with and into the Company and the separate corporate existence ofMergerCo shall thereupon cease, (b) the Company shall be the survivingcorporation in the Merger (the “Surviving Corporation”) and shallcontinue to be governed by the laws of the State of Delaware, and (c) theseparate corporate existence of the Company with all its rights, privileges,immunities, powers and franchises shall continue unaffected by the Merger.  The Merger shall have the effects specifiedin the DGCL.

**Section1.2.****                                EffectiveTime**.  On the Closing Date (as defined in Section1.4), MergerCo and the Company shall duly execute a certificate of merger (the“Certificate of Merger”) and file such Certificate of Merger with theSecretary of State of the State of Delaware in accordance with the DGCL.  The Merger shall become effective at suchtime as the Certificate of Merger, accompanied by payment of the filing fee (asprovided in the DGCL), has been examined by and received the endorsed approvalof the Secretary of State of the State of Delaware (the “Effective Time”).

**Section1.3.****                                Certificateof Incorporation and By-Laws.**  The certificate of incorporation of MergerCo,as in effect immediately prior to the Effective Time, shall be the certificateof incorporation of the Surviving Corporation until thereafter amended asprovided by law and the terms of such certificate of incorporation.  The by-laws of MergerCo, as in effect immediatelyprior to the Effective Time, shall be the by-laws of the Surviving Corporationuntil thereafter amended as provided by law, by the terms of the certificate ofincorporation of the Surviving Corporation and by the terms of suchby-laws.  Notwithstanding the foregoing,the name of the Surviving Corporation shall be “WII Components, Inc.” and thecertificate of incorporation of the Surviving Corporation shall so provide.

**Section1.4.****                                Closing.**  The closing of the Merger (the “Closing”)shall occur no later than the third Business Day (as defined below) after theconditions set forth in Sections 8.1, 8.2 and 8.3 have been satisfied or waived(other than conditions required to be satisfied at the Closing); and providedfurther, that notwithstanding the foregoing, the Closing may occur on any otherdate agreed upon by the Company, MergerCo and Parent.  The date on which the Closing occurs pursuantto the foregoing sentence is referred to in this Agreement as the “ClosingDate.”  The Closing shall take placeat the offices of Kirkland & Ellis LLP, 153 East 53rd Street, New York, NY10022, or at such other place as agreed to by the Company, MergerCo andParent.  “Business Day” means anyday other than a day on which the office of the Delaware Secretary of State isclosed.

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**Section1.5.****                                Directorsand Officers.**  The directors of MergerCo immediately priorto the Effective Time shall be the initial directors of the SurvivingCorporation and the officers of the Company immediately prior to the EffectiveTime shall be the initial officers of the Surviving Corporation, each to holdoffice in accordance with the certificate of incorporation and by-laws of theSurviving Corporation.

# **ARTICLEII**

# **EFFECT OFTHE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS**

**Section2.1.****                                Effecton Capital Stock.**  Subject to the terms and conditions of thisAgreement, as of the Effective Time, by virtue of the Merger and without anyaction on the part of the Parent, MergerCo, the Company, the holders (each a “Stockholder”and collectively, the “Stockholders”) of any shares of the capital stockof the Company (the “Company Stock”) or any holders of any shares of thecapital stock of MergerCo:

### (a)                                  Each share of common stock, par value $0.01per share, of MergerCo issued and outstanding immediately prior to theEffective Time shall be converted into one fully paid and nonassessable shareof common stock, par value $0.01 per share, of the Surviving Corporationfollowing the Merger.

### (b)                                 Each share of Company Stock that is owned bythe Company, by any wholly owned Subsidiary (as defined in Section 11.6) of theCompany, by Parent, by MergerCo, or by any other wholly owned subsidiary ofParent immediately prior to the Effective Time shall automatically be canceledand retired and shall cease to exist, and no cash or other consideration shallbe delivered or deliverable in exchange therefor.

### (c)                                  Each share of Voting Common Stock (as definedin Section 11.6) and Nonvoting Common Stock (as defined in Section 11.6) issuedand outstanding immediately prior to the Effective Time, other than shares tobe canceled in accordance with Section 2.1(b), the Dissenting Shares (asdefined in Section 3.2(a)) and the Rollover Shares (as defined in Section2.10), shall be cancelled and extinguished and converted into the right toreceive that portion of the Merger Consideration equal to (i) the MergerConsideration (determined as though the phrase “(iv) less the Rollover Amount”was deleted from the definition of Merger Consideration) divided by(ii) (A) the aggregate number of shares of Voting Common Stock andNonvoting Common Stock outstanding immediately prior to the Effective Time(including Dissenting Shares and the Rollover Shares), plus (B) theaggregate number of shares of Voting Common Stock and/or Nonvoting Common Stockthen issuable upon the exercise of all vested Options (as defined in Section11.6) outstanding immediately prior to the Effective Time (such per shareamount derived pursuant to the foregoing clauses (i) and (ii), the “PricePer Common Share”), net to the holder thereof in cash, payable to theholder thereof, without any interest thereon, upon surrender and exchange ofthe Certificate (as defined in Section 2.1(e)) formerly representing such shareof Voting Common Stock or Nonvoting Common Stock in accordance with Section 3.1or the delivery of an affidavit as described in Section 3.1(h); provided that,for the avoidance 

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### of doubt, the holders ofRollover Shares shall not be entitled to receive Merger Consideration inrespect of such Rollover Shares, and to the extent a Certificate representsboth Rollover Shares and other shares of Company Stock, such holder shall beentitled to share in Merger Consideration in accordance with this Agreementonly with respect to shares of Company Stock that are not Rollover Shares orDissenting Shares.

### (d)                                 The “Merger Consideration” shall meanthe amount equal to:

##### (i)                                     $295,500,000;

##### (ii)                                  plus (A) Estimated Cash and CashEquivalents (as defined in Section 2.5(a)), (B) the Aggregate OptionExercise Price Proceeds (as defined in Section 2.2(a)), and (C) if theEstimated Working Capital Adjustment (as defined in Section 2.5(b)) is anegative number, then the absolute value of such number (the “ClosingOverage”);

##### (iii)                               less (A) the aggregate amount of allIndebtedness (as defined in Section 11.6) of the Company and its Subsidiariesoutstanding as of the Measurement Time (as defined in Section 2.5(c)),(B) all Company Expenses (as defined in Section 2.4), (C) allAccelerated Earnout Payments (as defined in Section 11.6), (D) the EscrowAmount (as defined in Section 2.8), (E) if the Estimated Working CapitalAdjustment is a positive number, then the absolute value of such number (the “ClosingUnderage”), and (F) the aggregate amount of the employer’s portion ofsocial security, medicare, unemployment or other employment Taxes (as definedin Section 11.6) imposed or to be imposed with respect to any payment to anyemployee of the Company and/or any of its Subsidiaries pursuant to orcontemplated by this Agreement and/or the transactions contemplated hereby(including, without limitation, all payments made in respect of Options and alldeal bonuses, stay bonuses, success bonuses or change in control payments whichare triggered or made payable as a result of the transactions contemplatedherein, but specifically excluding with respect to this clause (F) any suchpayment to the extent arising under any of the New Executive Arrangements orany other arrangement entered into by Parent, MergerCo or the SurvivingCorporation following the Closing), but only to the extent such amount of theemployer’s portion of social security, medicare, unemployment or otheremployment Taxes imposed with respect to any such payments are not included asa current liability in Estimated Working Capital (as defined in Section 2.5) orin the Closing Working Capital (as defined in Section 2.6); and

##### (iv)                              less the Rollover Amount.

### (e)                                  All shares of Company Stock (excluding, forthe avoidance of doubt Rollover Shares), when converted as provided in Sections2.1(c) above, shall no longer be outstanding and shall automatically becanceled and retired and shall cease to exist, and each certificate (“Certificate”)previously evidencing such shares shall thereafter represent only the right toreceive an amount equal to the product of (i) the Price Per Common Sharemultiplied by (ii) the number of shares of Company Stock (other than RolloverShares) evidenced by such 

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### Certificate.  The holders of Certificates previouslyevidencing such shares of Company Stock outstanding immediately prior to the EffectiveTime shall cease to have any rights with respect to the Company Stock and, uponthe surrender of Certificates in accordance with the provisions of Section 3.1,shall only represent the right to receive the applicable Merger Considerationin exchange for their shares of Company Stock (as computed pursuant to theimmediately preceding sentence).

**Section2.2.****                                CompanyStock Options and Related Matters.**

### (a)                                  Vested Options.  Eachvested Option that is outstanding and unexercised immediately prior to theEffective Time shall be converted into the right to receive cash in accordancewith this Section 2.2(a).  The Companyhereby agrees that, prior to the Effective Time, the Company Board will takeall actions necessary to accelerate the vesting of all Options that wouldbecome vested as a result of, or in connection with, the consummation of thetransactions contemplated by this Agreement; provided, that the holder of eachsuch Option is employed by the Company or one of its Subsidiaries at theEffective Time.  At the Effective Time,the Company shall pay to each holder of a vested Option (each an “Optionholder”and collectively, the “Optionholders”) an amount of cash for each shareof Voting Common Stock then issuable upon exercise of such vested Option equalto the Price Per Common Share less the applicable exercise price, upon receiptby the Company, Parent and MergerCo from such Optionholder of a duly executedcounterpart signature page to the Common Equity Holders Agreement (as definedin Section 8.2(k)).  The aggregate amountof the exercise prices of all the vested Options as of the Effective Time isreferred to herein as the “Aggregate Option Exercise Price Proceeds.”  The aggregate amount of cash paid to theOptionholders at the Effective Time pursuant to this Section 2.2(a) (aftergiving effect to Section 2.2(c) hereof) is referred to herein as the “TotalOption Proceeds.”  The Company shalltake all actions necessary so that, as of immediately prior to the EffectiveTime, the Plan (as defined in Section 11.6) and all vested Options that areoutstanding as of immediately prior to the Effective Time shall be terminatedand canceled without any payment therefor (except the right to receive paymentof the Total Option Proceeds in respect of vested Options upon delivery by eachsuch holder of a vested Option of a duly executed counterpart signature page tothe Common Equity Holders Agreement (as defined in Section 8.2(k)) or otherliability on the part of the Company, MergerCo, Parent or any of their respectiveAffiliates (as defined in Section 11.6) (including, without limitation, underSection 280G of the Code).

### (b)                                 Unvested Options.  TheCompany shall take all actions necessary so that, as of immediately prior tothe Effective Time, the Plan and all Options that are outstanding as ofimmediately prior to the Effective Time shall be terminated and canceledwithout any payment therefor or other liability on the part of the Company,MergerCo, Parent or any of their respective Affiliates (as defined in Section 11.6)(including, without limitation, under Section 280G of the Code).  At least two (2) Business Days prior to theClosing Date, the Company shall deliver a certificate to Parent and MergerCosetting forth for each Option outstanding as of immediately prior to theEffective Time: (i) the holder thereof; (ii) the extent to which such Option isvested or unvested; and (iii) the aggregate amount of the exercise prices inrespect of such portion of the Option which is vested.

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### (c)                                  All consideration to be received by theOptionholders pursuant to this Section 2.2 (as well as any amounts paid to theOptionholders pursuant to Sections 2.6, 2.7, 2.8 and 3.1) shall be treated ascompensation by the Company and shall be net of any applicable Taxes.

**Section2.3.****                                Paymentsat Closing for Indebtedness.**  Subject to the terms and conditions of thisAgreement, as of the Closing, Parent and MergerCo shall cause the SurvivingCorporation to repay all Indebtedness set forth on Schedule 2.3 andoutstanding as of immediately prior to the Closing.  The Company, Parent and MergerCo willcooperate in arranging for such repayment and shall take such reasonableactions as may be necessary to facilitate such repayment and to facilitate therelease, in connection with such repayment, of any mortgage, pledge, lien,conditional sale agreement, security title or other encumbrance (collectively,“Encumbrances”) securing such Indebtedness including, withoutlimitation, by delivering to Parent and MergerCo at least two (2) Business Daysprior to the Closing Date pay-off letters, releases and Encumbrance discharges(or agreements therefor) with respect to such Indebtedness as may be reasonablyrequested by Parent.

**Section2.4.****                                Paymentsat Closing for Expenses**.  Subject to the terms and conditions of thisAgreement, as of the Closing, Parent and MergerCo shall cause the SurvivingCorporation to pay all outstanding fees and expenses of the Company and each ofits Subsidiaries in connection with the negotiation and the consummation of thetransactions contemplated by this Agreement (including any and all fees andexpenses owed to Harris Williams & Co. and Behrman Brothers ManagementCorp.) that have not been paid on or prior to the Closing Date (the “CompanyExpenses”), to the extent such amounts are deducted from the MergerConsideration otherwise payable at the Closing pursuant to Section2.1(d)(iii)(B).

**Section2.5.****                                ClosingEstimates.**

### (a)                                  At least three (3) Business Days prior to theClosing Date, the Company shall deliver to Parent and MergerCo a good faithestimate of (i) the Cash and Cash Equivalents of the Company and itsSubsidiaries (“Estimated Cash and Cash Equivalents”) and (ii) NetWorking Capital (as defined in Section 11.6) of the Company and itsSubsidiaries as of the Measurement Time (the “Estimated Working Capital”);provided, however, that in the event Parent delivers a notice to the Companyprior to the Closing Date in which it disagrees in good faith with theCompany’s estimate of the Estimated Working Capital, then the Estimated WorkingCapital will not exceed the Net Working Capital of the Company and itsSubsidiaries as calculated from the consolidated balance sheet of the Companyand its Subsidiaries contained in the Fall-Back Month-End Financials.  In connection with the foregoing, the Companyshall provide to Parent and MergerCo any supporting documentation for suchestimate and any additional information reasonably requested by Parent orMergerCo.

### (b)                                 The “Estimated Working Capital Adjustment”shall mean an amount equal to $21,888,000 (the “Base Amount”) minus theEstimated Working Capital.

### (c)                                  For purposes of this Agreement, “MeasurementTime” means (i) if the Closing occurs on or prior to the close of businesson January 9, 2007, 11:59 p.m. (New York City time) on December 31, 2006, and(ii) otherwise, immediately prior to the Closing.

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**Section2.6.****                                PostClosing Adjustments.**

### (a)                                  Post-Closing Estimate. Within sixty (60) days following the Closing Date, Parent shall prepareand deliver to the Stockholders’ Representative a statement (the “ClosingStatement”) setting forth Parent’s calculation of (i) the Company’s and itsSubsidiaries’ actual Net Working Capital as of the Measurement Time (the “ClosingWorking Capital”), and (ii) the Company’s and its Subsidiaries’ actual Cashand Cash Equivalents (“Closing Cash”). The Closing Statement shall be prepared in accordance with thedefinitions of “Net Working Capital” and “Cash and Cash Equivalents” as setforth in this Agreement.  The Stockholders’Representative shall have thirty (30) days following its receipt of the ClosingStatement (the “Review Period”) to review the same.  On or before the expiration of the ReviewPeriod, the Stockholders’ Representative shall deliver to Parent a writtenstatement accepting or objecting to the Closing Statement (the “ClosingStatement Response Notice”).  In theevent that the Stockholders’ Representative shall object to the ClosingStatement, such Closing Statement Response Notice shall include a detaileditemization of the Stockholders’ Representative’s objections and the reasonstherefor.  If the Stockholders’Representative does not deliver such Closing Statement Response Notice toParent within the Review Period, the Stockholders’ Representative shall be deemedto have accepted the Closing Statement.

### (b)                                 Determinations; Adjustments.

##### (i)                                     Closing Cash Adjustment.  Ifthe Closing Cash as finally determined pursuant to this Section 2.6 is greaterthan the Estimated Cash and Cash Equivalents, Parent shall pay (or cause theSurviving Corporation to pay) to each Common Equity Holder (as defined inSection 11.6) such Person’s Pro Rata Portion (as defined in Section 11.6) ofsuch excess in accordance with Section 2.6(e). If the Closing Cash as finally determined pursuant to this Section 2.6is less than the Estimated Cash and Cash Equivalents, the Responsible CommonEquity Holders shall pay such shortfall to Parent in accordance with Section2.6(e), with each Responsible Common Equity Holder only being required to paysuch Person’s Responsible Pro Rata Portion of such shortfall.

##### (ii)                                  Net Working Capital Adjustment.  Ifthe Closing Working Capital as finally determined pursuant to this Section 2.6is greater than the Estimated Working Capital, Parent shall pay (or cause theSurviving Corporation to pay) to each Common Equity Holder such Person’s ProRata Portion of such excess in accordance with Section 2.6(e).  If the Closing Working Capital as finallydetermined pursuant to this Section 2.6 is less than the Estimated WorkingCapital, the Responsible Common Equity Holders shall pay such shortfall toParent in accordance with Section 2.6(e), with each Responsible Common EquityHolder only being required to pay such Person’s Responsible Pro Rata Portion ofsuch shortfall.

### (c)                                  Reserved.

### (d)                                 In the event that the Stockholders’Representative shall object to the Closing Statement within the Review Period,Parent and the Stockholders’ Representative shall 

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### promptlymeet and in good faith attempt to resolve such objections.  Any such objections which cannot be resolvedbetween Parent and the Stockholders’ Representative within thirty (30) daysfollowing the Parent’s receipt of the Stockholders’ Representative’s statementof objections contained in the Closing Statement Response Notice shall beresolved in accordance with this Section 2.6(d).  Should the Stockholders’ Representative andParent not be able to resolve such objections as may be raised therein withrespect to the Closing Statement, within the thirty (30) day period describedabove, either party may submit the matter to KPMG LLP (the “AccountingReferee”) for review and resolution, with instructions to complete the sameas promptly as practicable, but in any event within thirty (30) days of itsengagement, and to make any calculations in accordance with the definitions of“Cash and Cash Equivalents” and “Net Working Capital” (as applicable) set forthin this Agreement; provided, that the scope of the dispute(s) to be resolved bythe Accounting Referee is limited to only such items included in the ClosingStatement that the Stockholders’ Representative has disputed in the ClosingStatement Response Notice and which the parties have been unable toresolve.  The Accounting Referee shalldetermine, based solely on presentations by Parent and the Stockholders’ Representativeand their respective representatives, and not by independent review, only thoseunresolved issues in dispute specifically set forth on the Closing StatementResponse Notice and shall render a written report as to the dispute and theresulting calculation of Closing Cash and/or Closing Working Capital, asappropriate, which shall be conclusive and binding upon the parties.  In resolving any disputed item, theAccounting Referee: (i) shall be bound by the principles set forth in thisSection 2.6, (ii) shall limit its review to matters specifically set forth inthe Closing Statement Response Notice and (iii) shall not assign a value to anyitem greater than the greatest value for such item claimed by either party orless than the smallest value for such item claimed by either party.  Such Accounting Referee shall deliver astatement setting forth its resolution of the dispute within thirty (30) daysof the submission of the dispute to such firm, which resolution, absentmanifest error, shall be binding and conclusive on the parties and not subjectto appeal.  The Closing Statement shallbe modified if necessary to reflect such determination by the AccountingReferee.  The fees and costs of theAccounting Referee, if one is required, shall be payable (i) by theResponsible Common Equity Holders on the one hand and (ii) by Parent, orat Parent’s election, the Surviving Corporation, on the other hand, on thebasis, for each such party, based upon the percentage which the portion of thecontested amount not awarded to each party bears to the amount actuallycontested by such party, as determined by the Accounting Referee.

### (e)                                  Without duplication, all amounts owedpursuant to Sections 2.6(b)(i) and (ii) shall be aggregated, and the net amount(if any) owed by Parent to the Common Equity Holders, on the one hand, or theResponsible Common Equity Holders to Parent, on the other hand, is referred toas the “Final Closing Adjustment.” In the event that the Final Closing Adjustment would result in adecrease in the Merger Consideration, each Responsible Common Equity Holdershall pay to Parent an amount in cash equal to such Responsible Common EquityHolder’s Responsible Pro Rata Portion (as defined in Section 11.6) of the FinalClosing Adjustment; provided that if any amounts are owed by the ResponsibleCommon Equity Holders to Parent under this Section 2.6(e), Parent shall havethe option of requiring that any such payments(s) first be satisfied from anyremaining balance of the Escrow Account (as defined in Section 2.8) as of thedate such payment is due.  In the eventthe Final Closing Adjustment would result in an increase in the MergerConsideration, the Parent shall pay, or cause the Surviving Corporation to pay,to each Common Equity Holder an amount in cash equal to such

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### CommonEquity Holder’s Pro Rata Portion of the Final Closing Adjustment, such cashamounts to be paid to the Stockholders’ Representative (on behalf of the CommonEquity Holders for further distribution to each Common Equity Holder of its ProRata Portion of such amounts), net of Taxes required to be withheld on suchpayment (and in each such case where Tax withholding is so required Parentshall cause withholding and remittance of required Taxes to be made to theappropriate taxing authority).  The FinalClosing Adjustment shall be calculated as an adjustment to the MergerConsideration and the Merger Consideration, as so adjusted, is referred toherein as the “Final Merger Consideration.” Any payment made under thisSection 2.6(e) shall be made within five (5) Business Days of the finaldetermination of the Final Closing Adjustment.

**Section2.7.****                                TaxBenefit Payments.**  Each Common Equity Holder shall have theright to receive from the Surviving Corporation additional amounts equal tosuch Common Equity Holder’s Pro Rata Portion of certain Tax refunds and certainother payments in respect of certain Tax benefits, as more fully described inSection 7.9(e).

**Section2.8.****                                EscrowPayment.**  At the Closing, an amount equal to$11,250,000 (the “Escrow Amount”) shall be deposited by Parent in anescrow account (the “Escrow Account”) established pursuant to the termsand conditions of an escrow agreement (the “Escrow Agreement”) by andamong Mellon Trust of New England, N.A., as escrow agent (the “Escrow Agent”),Parent, the Company and the Stockholders’ Representative, which will besubstantially in the form of Exhibit A attached hereto.  Each Common Equity Holder shall also beentitled to receive such Common Equity Holder’s Pro Rata Portion of anyremaining balance of the Escrow Amount (if, when and to the extent payable tothe Common Equity Holders, or the Stockholders’ Representative on behalf of theCommon Equity Holders, pursuant to the terms and conditions of this Agreementand the Escrow Agreement).

**Section2.9.****                                AffiliateAccounts.**  Immediately prior to the Closing, allliabilities (other than any liabilities created by this Agreement, theagreements contemplated hereby or to the extent accrued for as a currentliability in the Closing Working Capital (as finally determined pursuant toSection 2.6)) owed by the Company or any of its Subsidiaries to any CommonEquity Holder or any of such Common Equity Holder’s Affiliates or to theCompany or any Subsidiary shall be, to the extent not included as Indebtednessor Company Expenses and deducted from the Merger Consideration pursuant toSection 2.1(d)(iii), canceled without payment, in full and completesatisfaction of such liabilities.

**Section2.10.****                         ManagementEquity Rollover.**  On or prior to the Closing Date, certainholders of Company Stock identified by Parent and such holders to the Companyin writing prior to the Closing Date (the “Rollover Participants”) mayenter into one or more agreements with Parent pursuant to which they willacquire equity securities of Parent (the “Management Rollover Agreements”)by providing that as of immediately prior to the Effective Time andsimultaneously with the contribution to Parent from the counterparty to theEquity Commitment Letter, each Rollover Participant will deliver to Parent thenumber of shares of Company Stock (the “Rollover Shares”) provided inthe Management Rollover Agreements in exchange for certain equity securities ofParent identified in the Management Rollover Agreements.  The Company and the Stockholders’Representative (in its capacity as such and in its capacity as a stockholder ofthe Company and the Majority Interest (as such term is defined in theStockholders Agreement)) hereby consents to the transactions contemplated bythis Section 2.10 

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for all purposes underthe Stockholders Agreement and otherwise and hereby waives any restrictions ontransfer, rights-of-first refusal, participation rights and other rights inconnection with such transactions, whether arising under the Stockholders Agreement,the Company’s Certificate of Incorporation or otherwise.

# **ARTICLEIII**

# **PAYMENT FOR SHARES; DISSENTING SHARES**

**Section3.1.****                                Paymentfor Shares of Company Stock.**

### (a)                                  At the Effective Time, Parent shall deposit,or shall cause to be deposited, with Mellon Trust of New England, N.A. (the “ExchangeAgent”) under and pursuant to the terms of the Escrow Agreement, for thebenefit of the holders of shares of Company Stock (excluding the RolloverShares) for exchange through the Exchange Agent, an aggregate amount of theMerger Consideration equal to the product of (i) the aggregate number of sharesof Voting Common Stock and Nonvoting Common Stock outstanding as of immediatelyprior to the Effective Time (excluding the Rollover Shares, the DissentingShares and the aggregate number of shares of Voting Common Stock and/orNonvoting Common Stock then issuable upon the exercise of all vested Optionsoutstanding as of immediately prior to the Effective Time) and (ii) the PricePer Common Share.  The Company shall pay100% of the fees and expenses of the Exchange Agent under the Escrow Agreementrelated to its duties as the Exchange Agent and such amounts shall be includedas Company Expenses.

### (b)                                 As soon as practicable following theEffective Time, the Surviving Corporation shall cause the Exchange Agent todeliver or mail to each holder of record of a Certificate or Certificates thatimmediately prior to the Effective Time represented outstanding shares ofCompany Stock (excluding the Rollover Shares) (i) a notice of theeffectiveness of the Merger, (ii) a form of letter of transmittal in the formattached hereto as Exhibit B which shall specify that delivery shall beeffected, and risk of loss and title to the Certificates shall pass, only uponproper delivery of the Certificates to the Exchange Agent and(iii) instructions for use in surrendering the Certificates in exchangefor the applicable portion of the Merger Consideration.

### (c)                                  Upon surrender of a Certificate forcancellation to the Exchange Agent together with such letter of transmittal,properly completed and duly executed, and such other documents as may berequired pursuant to such instructions, the holder of such Certificate shall beentitled to receive in exchange therefor an amount in cash equal to the productof (i) the Price Per Common Share and (ii) the shares of Company Stock(excluding Rollover Shares) formerly represented by such Certificate.  Any Certificate so surrendered shallforthwith be canceled.  No interest willbe paid or accrued on any of the Merger Consideration payable to holders ofCertificates.

### (d)                                 Until surrendered in accordance with thisSection 3.1, each such Certificate (other than Certificates representing sharesof Company Stock to be canceled in accordance with Section 2.1(b), DissentingShares and Rollover Shares) shall represent solely the right to receive theapplicable portion of the Merger Consideration relating thereto, in each case, 

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### withoutany interest or dividends thereon.  Ifthe Merger Consideration (or any portion thereof) is to be delivered to anyperson other than the person in whose name the Certificate formerlyrepresenting shares of Company Stock (other than Certificates representingshares of Company Stock to be canceled in accordance with Section 2.1(b),Dissenting Shares and Rollover Shares) surrendered therefor is registered, it shall be a condition to suchright to receive such applicable portion of the Merger Consideration that theCertificate so surrendered shall be properly endorsed or otherwise be in properform for transfer and that the person surrendering such shares of Company Stockshall pay to the Exchange Agent any Transfer Taxes (as defined in Section7.9(f)) or other Taxes required by reason of the payment of the MergerConsideration to a person other than the registered holder of the Certificatesurrendered, or shall establish to the satisfaction of the Exchange Agent thatsuch Tax has been paid or is not applicable.

### (e)                                  Promptly following the date that is 90 daysafter the Effective Time, the Exchange Agent shall deliver to the SurvivingCorporation all cash, Certificates and other documents in its possessionrelating to the Merger, and the Exchange Agent’s duties shall terminate.  Thereafter, each holder of a Certificateformerly representing shares of Company Stock may surrender such Certificate tothe Surviving Corporation and (subject to applicable abandoned property,escheat and similar laws) receive in consideration therefor the MergerConsideration relating thereto in accordance with this Article III.

### (f)                                    At the Effective Time, the stock transferbooks of the Company shall be closed and thereafter, there shall be no furtherregistration of transfers of shares of Company Stock on the stock transferbooks of the Surviving Corporation of any shares of Company Stock that wereoutstanding immediately prior to the Effective Time.  On or after the Effective Time, anyCertificates formerly representing shares of Company Stock presented to theSurviving Corporation or the Exchange Agent shall be surrendered and canceledin return for the payment of the Merger Consideration relating thereto (ifany), as provided in this Article III.

### (g)                                 None of Parent, the Surviving Corporation orthe Exchange Agent or any of their respective Subsidiaries or affiliates shall beliable to any person in respect of any cash delivered to a public officialpursuant to any applicable abandoned property, escheat or similar law.

### (h)                                 If any Certificate shall have been lost,stolen or destroyed, upon the making and delivery of an affidavit of that factby the person claiming such Certificate to be lost, stolen or destroyed, theExchange Agent will issue the applicable Merger Consideration in exchange forsuch lost, stolen or destroyed Certificate in accordance with this Article III.

### (i)                                     The Exchange Agent, Parent and the SurvivingCorporation shall be entitled to deduct and withhold from the MergerConsideration or other amounts payable pursuant to this Agreement to any holderof Company Stock or Options such amounts as the Exchange Agent, Parent or theSurviving Corporation is required to deduct and withhold with respect to themaking of such payment under the Code, or any provision of United Statesfederal, state or local Tax laws and shall instead pay such amount to theapplicable Governmental Authority (as defined in Section 11.6).  To the extent that amounts are so withheld bythe Exchange Agent, Parent or the Surviving Corporation, such amounts withheldshall be treated for all purposes of this Agreement as having been paid to theholder of Company Stock or Options 

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### inrespect of which such deduction and withholding was made by the Exchange Agent,Parent or the Surviving Corporation.

**Section3.2.****                                AppraisalRights.**

### (a)                                  Notwithstanding anything in this Agreement tothe contrary, any shares of Company Stock that are issued and outstandingimmediately prior to the Effective Time and that are held by stockholders ofthe Company who have not consented in the Written Consent (as defined inSection 7.1(b)(i)) in favor of the adoption and approval of this Agreement(collectively, the “Dissenting Shares”) and who shall have demandedproperly in writing appraisal for such shares in accordance with Section 262 ofthe DGCL (the “Appraisal Rights Provisions”) will not be converted asdescribed in Section 2.1, but will thereafter constitute only the right toreceive payment of the fair value of such shares of Company Stock in accordancewith the Appraisal Rights Provisions; provided, however, that all shares ofCompany Stock held by Stockholders who shall have failed to perfect or whoeffectively shall have withdrawn or lost their rights to appraisal of suchshares of Company Stock under the Appraisal Rights Provisions shall thereuponbe deemed to have been canceled and retired and to have been converted, as ofthe Effective Time, into the right to receive the applicable portion of theMerger Consideration, without interest, in the manner provided in Section 2.1and Section 3.1.  Persons (as defined inSection 11.6) who have perfected statutory rights with respect to DissentingShares as aforesaid will not be paid by the Surviving Corporation as providedin this Agreement and will have only such rights as are provided by theAppraisal Rights Provisions with respect to such Dissenting Shares.  The Company shall give Parent and MergerCoprompt notice of any demands received by the Company for the exercise ofappraisal rights with respect to shares of Company Stock, withdrawals of suchdemands, and any other instruments served pursuant to the DGCL and received bythe Company, and Parent shall have the right to direct all negotiations andproceedings with respect to such demands. The Company shall not, except with the prior written consent of Parent(which consent shall not be unreasonably withheld), make any payment withrespect to, or settle or offer to settle, any such demands.

### (b)                                 Each dissenting stockholder who becomesentitled under the Appraisal Rights Provisions to payment for Dissenting Sharesshall receive payment therefor after the Effective Time from the SurvivingCorporation (but only after the amount thereof shall have been agreed upon orfinally determined pursuant to the Appraisal Rights Provisions), and suchshares of Company Stock shall be canceled.

# **ARTICLEIV**

# **REPRESENTATIONS AND WARRANTIES OF THE COMPANY**

The Company herebyrepresents and warrants to Parent and MergerCo that the followingrepresentations and warranties contained in this Article IV (i) are true andcorrect as of the Original Date and (ii) will be true and correct as of theEffective Time (except that representations and warranties that are made as ofa specific date need only be true as of such date):

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**Section4.1.****                                Existence;Good Standing; Authority.**

### (a)                                  The Company is a corporation dulyincorporated, validly existing and in good standing under the laws ofDelaware.  The Company has all requisitecorporate power and authority to own, operate and lease its properties andcarry on its business as currently conducted. The Company is duly licensed or qualified to do business as a foreigncorporation under the laws of each jurisdiction listed on Schedule 4.1(a)and each other jurisdiction in which the character of its properties or inwhich the transaction of its business makes such qualification necessary,except where the failure to be so licensed or qualified would not have,individually or in the aggregate, a Company Material Adverse Effect (as definedbelow).  The copies of the Company’sCertificate of Incorporation and By-laws (the “By-laws”), each asamended to date and made available to Parent’s and MergerCo’s counsel, arecomplete and correct, and no amendments thereto are pending, are in full forceand effect and the Company is not in breach of any of the foregoing.  The minute books, stock record books andother records and books of the Company and its Subsidiaries are complete andcorrect in all material respects.  “CompanyMaterial Adverse Effect” means any event, change or circumstance (orcombination of the foregoing) (i) in the kitchen and bath cabinet industrywhich has had or could reasonably be expected to have a material adverse effecton the business, assets, condition (financial or otherwise) or results ofoperations of the Company and its Subsidiaries, taken as a whole, or (ii) whichhas had or could reasonably be expected to have a material adverse effect onthe business, assets, condition (financial or otherwise) or results ofoperations of the Company and its Subsidiaries, taken as a whole, except, inthe case of clause (ii) hereof, for any such event, change or circumstanceresulting from (1) the negotiation, execution or performance of thisAgreement or the consummation of the transactions contemplated by thisAgreement, (2) changes in general economic or political conditions or thesecurities markets in general (whether as a result of acts of terrorism, war(whether or not declared), armed conflicts or otherwise), or (3) changesin conditions generally applicable to businesses in the same or similarindustries as the Company and its Subsidiaries including, without limitation,(A) changes in laws, regulations, rules, ordinances, policies, mandates,guidelines or other requirements of any Governmental Authority or (B) changesin generally accepted accounting principles as applied in the United States ona consistent basis (“GAAP”) or its application.

### (b)                                 The Company has the corporate power andauthority to execute and deliver this Agreement and to perform its obligationshereunder.  The execution and delivery ofthis Agreement, the performance by the Company of its obligations hereunder andthe consummation of the transactions contemplated hereby have been dulyauthorized by the Company Board.  ThisAgreement has been duly executed and delivered by the Company and, assuming thedue authorization, execution and delivery of this Agreement by each of Parentand MergerCo, this Agreement constitutes a legal, valid and binding obligationof the Company, enforceable against the Company in accordance with its terms,except as such enforceability may be limited by bankruptcy, insolvency,reorganization, moratorium or similar laws affecting creditors’ rightsgenerally and by general equitable principles (regardless of whetherenforcement is sought in a proceeding at law or in equity) (collectively, “GeneralEnforceability Exceptions”).

### (c)                                  The approval of holders of a majority of theoutstanding Voting Common Stock of the Company is the only vote of theCompany’s stockholders required to approve this 

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### Agreementand the transactions contemplated hereby (the “Necessary Stockholder Approval”).  If the Closing occurs, as of the Closing, theNecessary Stockholder Approval shall have been obtained.

### (d)                                 The Company Board, at a meeting duly calledand held, has unanimously (i) declared the advisability of this Agreement andthe transactions contemplated hereby, (ii) determined that this Agreement andthe transactions contemplated hereby, including the Merger, are fair to and inthe best interests of the stockholders of the Company, (iii) determined thatthe consideration to be paid in the Merger is fair to and in the best interestsof the stockholders of the Company, (iv) approved and adopted this Agreementand the transactions contemplated by this Agreement, including the Merger, inaccordance with applicable laws and (v) resolved to recommend that thestockholders of the Company approve and adopt this Agreement, the Merger andthe other transactions contemplated hereby. No “fair price”, “moratorium”, “control share acquisition” or othersimilar anti-takeover statute or regulation enacted under state or federal lawsin the United States applicable to the Company is applicable to the Merger orthe other transactions contemplated hereby, whether as a result of the actiontaken by the Company Board described in the preceding sentence or otherwise.

**Section4.2.****                                Capitalization.** The authorized capital stock of the Company as of the Original Dateconsists of (i) 28,000,000 shares of Voting Common Stock of which21,762,081 shares are issued and outstanding, (ii) 1,000,000 shares ofNonvoting Common Stock of which 854,261 shares are issued and outstanding,(iii) and 1,000,000 shares of undesignated preferred stock, par value $.01per share, of which zero (0) shares are issued and outstanding.  All of the issued and outstanding shares ofcapital stock and other Equity Interests of the Company have been dulyauthorized and validly issued, and are fully paid and nonassessable and free ofpreemptive rights, rights of first refusal or similar rights.  Except as set forth on Schedule 4.2,there are no (x) authorized, issued and/or outstanding capital stock or otherindicia of equity ownership (including options, warrants, profits interests,stock appreciation rights or similar rights) (“Equity Interests”) of theCompany and/or (y) outstanding subscriptions, options, warrants, commitments,preemptive rights, deferred compensation rights, agreements, arrangements orcommitments of any kind to which the Company is a party relating to theissuance of, or outstanding securities convertible into or exercisable or exchangeablefor, any Equity Interests of the Company. Except as set forth on Schedule 4.2, there are no agreements towhich the Company is a party with respect to the voting of Equity Interests ofthe Company or which restrict the transfer of any such Equity Interests of theCompany.  Except as set forth on Schedule4.2, there are no outstanding contractual obligations of the Company torepurchase, redeem or otherwise acquire any Equity Interests of the Company.

All of the issuedand outstanding shares of the Company’s capital stock are owned of record andbeneficially as set forth on Schedule 4.2 (and in the amounts as setforth on Schedule 4.2), free and clear of any Encumbrances.  Schedule 4.2 attached hereto also setsforth all outstanding Options granted by the Company, the name of the Personholding each such Option, the class and number of shares of Company Stockissuable upon the exercise of each such Option and the applicable exerciseprice of each such Option.  All Optionsdescribed on Schedule 4.2 have been issued in accordance with thegoverning option plan and the option agreement or other instrument pursuant towhich it was offered.  True and completecopies of all agreements and instruments relating to such Options (includingall amendments and modifications thereto) have

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been made available toParent, and there are no agreements to amend, modify or supplement suchagreements or instruments.

**Section4.3.****                                Subsidiaries.**

### (a)                                  The Company’s Subsidiaries are listed on Schedule4.3(a).  The Company owns directly orindirectly all of the outstanding shares of capital stock or other EquityInterest of each of the Company’s Subsidiaries, free and clear of anyEncumbrances.  Except as set forth in Schedule4.3(a), neither the Company nor any Subsidiary owns, directly orindirectly, any capital stock, equity or other ownership interest in any otherPerson.

### (b)                                 Each of the Company’s Subsidiaries is acorporation duly incorporated or organized, validly existing and in goodstanding under the laws of its jurisdiction of incorporation and has allrequisite corporate power and authority to own, operate and lease itsproperties and carry on its business as currently conducted.  Each such Subsidiary is duly licensed orqualified to do business as a foreign corporation in each jurisdiction listedon Schedule 4.3(b) and each other jurisdiction in which the character ofits properties or in which the transaction of its business makes suchqualification necessary, except where the failure to be so licensed orqualified would not have, individually or in the aggregate, a Company MaterialAdverse Effect.  The copies of theorganizational documents of each such Subsidiary, in each case as amended todate and made available to Parent’s and MergerCo’s counsel, are complete and correct,and no amendments thereto are pending. Such organizational documents are in full force and effect and none ofthe Subsidiaries of the Company is in material breach of any of the foregoing.

**Section4.4.****                                NoConflict; Consents.**  Except as set forth on Schedule 4.4,the execution and delivery by the Company of this Agreement, and theconsummation by the Company of the transactions contemplated hereby inaccordance with the terms hereof, do not and will not (i) violate,conflict with or result in a default (whether after the giving of notice, lapseof time or both) under, or give rise to a right of termination of, anycontract, agreement, permit, license, authorization or obligation to which theCompany or any of its Subsidiaries is a party or by which the Company’s or anyof its Subsidiaries’ assets are bound, or any provision of the Certificate ofIncorporation or By-laws; (ii) violate or result in a violation of, orconstitute a default (whether after the giving of notice, lapse of time or both)under, any provision of any law, regulation or rule, or any order, award orjudgment of, or any restriction imposed by, any arbitrator, court or othergovernmental agency applicable to the Company or any of its Subsidiaries or(iii) require from the Company or any of its Subsidiaries any notice to,declaration or filing with, or consent or approval of any GovernmentalAuthority or other Person, except, in each case, where such violation,conflict, default, termination or failure to provide notice or to obtain consentor approval, as applicable, would not have, individually or in the aggregate, aCompany Material Adverse Effect.

**Section4.5.****                                FinancialStatements.**  The Company has delivered to Parent andMergerCo the following financial statements, copies of which are attachedhereto as Schedule 4.5 (collectively, the “Financial Statements”):

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#### (a)                                  Auditedconsolidated balance sheets of the Company and its Subsidiaries as of December31, 2004 and December 31, 2005, and consolidated statements of income, changesin stockholders’ equity and cash flows for the years then ended; and

#### (b)                                 Anunaudited consolidated balance sheet of the Company and its Subsidiaries as ofSeptember 30, 2006 (the “Base Balance Sheet”),and unaudited consolidated statements of income, changes in stockholders’equity and cash flows of the Company and its Subsidiaries for the nine (9)month period ended September 30, 2006.

Subject to the absence of footnotes and year-end auditadjustments with respect to any unaudited Financial Statements (which shall notbe material individually or in the aggregate), each of the Financial Statements(including the notes thereto, if any) is accurate and complete, is consistentwith the books and records of the Company and its Subsidiaries (which, in turn,are accurate and complete in all material respects), has been prepared inaccordance with GAAP consistently applied and presents fairly in all materialrespects the financial condition of the Company and its Subsidiaries as of therespective dates thereof and the operating results of the Company and itsSubsidiaries for the periods covered thereby. For purposes of the Closing, the term “Financial Statements” shall bedeemed to include for all purposes hereunder, the Fall-Back Month-EndFinancials (as defined in Section 7.2(c)). Except as otherwise set forth in this Agreement (including the Scheduleshereto), the Companymakes no representation or warranty in this Agreement regarding any financialdocument other than the Financial Statements, including but not limited to anyrepresentation or warranty regarding any financial projections with respect tothe Company and its Subsidiaries or any representation or warranty as towhether such projections will be achieved.

**Section4.6.****                                Absenceof Certain Changes.**

### (a)                                  Exceptas set forth on Schedule 4.6(a), since thedate of the Base Balance Sheet (i) the Company and its Subsidiaries haveoperated only in the ordinary course of business consistent with pastpractices, (ii) there has been no change in the condition, assets or businessof the Company or its Subsidiaries, except such changes that have not had orwould not be reasonably expected to have, individually or in the aggregate, aCompany Material Adverse Effect, and (iii) the Company and its Subsidiarieshave made all capital expenditures in accordance with the capital budget setforth as Annex A to Schedule 4.6(a).

### (b)                                 Except as set forth onSchedule 4.6(b) and except as expressly contemplated by this Agreement,since the date of the Base Balance Sheet, neither the Company nor any of itsSubsidiaries has (individually or collectively):

##### (i)                                     suffereda Company Material Adverse Effect;

##### (ii)                                  sufferedany theft, damage, destruction or casualty loss in excess of $100,000 in theaggregate, to its assets, whether or not covered by insurance or suffered anysubstantial destruction of its books and records;

##### (iii)                               redeemed or repurchased,directly or indirectly, any Equity Interests of the Company or declared, setaside or paid any dividends or made any 

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##### otherdistributions (whether in cash or in kind) with respect to any Equity Interestsof the Company;

##### (iv)                              issued,sold or transferred any Equity Interests of the Company or any of itsSubsidiaries (except for the issuance of shares of Company Stock upon theexercise of Options), or notes, bonds or other debt securities or equitysecurities convertible, exchangeable or exercisable into Equity Interests ofthe Company or any of its Subsidiaries, or warrants, options or other rights toacquire Equity Interests of the Company or any of its Subsidiaries or anyprofits interests, economic interests or similar rights;

##### (v)                                 subjectedany portion of its properties or assets to any Encumbrance (other thanEncumbrances permitted by Section 4.10(c) or Encumbrances in the ordinarycourse of business which the Company shall be caused to be released immediatelyprior to the Closing);

##### (vi)                              sold,leased, licensed, assigned or transferred a portion of its assets orproperties, except for sales of inventory or product in the ordinary course ofbusiness to unaffiliated third Persons on an arm’s length basis or asspecifically contemplated by this Agreement, or canceled without fairconsideration any material debts or claims owing to or held by it;

##### (vii)                           sufferedany extraordinary losses in excess of $100,000;

##### (viii)                        incurredintercompany charges or conducted its cash management customs and practicesother than in the ordinary course of business (including, without limitation,with respect to maintenance of working capital balances and inventory levels,making of capital expenditures, collection of accounts receivable and paymentof accounts payable);

##### (ix)                                madeany loans or advances to, or guarantees for the benefit of, any Persons;

##### (x)                                   grantedany performance guarantee to its customers other than in the ordinary course ofbusiness and consistent with the policies and practices disclosed to Parent;

##### (xi)                                acquiredany other business or Person (or any significant portion or division thereof),whether by merger, consolidation or reorganization or by purchase of its assetsor stock or acquired any other material assets;

##### (xii)                             abandonedor failed to maintain in effect any registrations or issuances with respect tothe Company Intellectual Property; or

##### (xiii)                          committedor agreed to any of the foregoing.

**Section 4.7.****                                Litigation**.  Except as set forth on Schedule4.7, neither the Company nor any of its Subsidiaries is involved(either as plaintiff or defendant) in any litigation, action, suit, 

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proceeding, claim, arbitration or investigation (andhas not been during the preceding three (3) year period) or, to the Company’sknowledge, is any litigation, action, suit, proceeding, claim, arbitration orinvestigation pending or, to the Company’s knowledge, has any litigation,action, suit, proceeding, claim, arbitration or investigation been threatenedin writing against the Company or any of its Subsidiaries which would have,individually or in the aggregate, a Company Material Adverse Effect.  None of the Company or any of itsSubsidiaries is subject to any outstanding material order, judgment or decreeissued by any governmental authority or any arbitrator or any settlementagreement.

**Section4.8.****                                Taxes.**  Except as set forth on Schedule4.8:

#### (a)                                  TheCompany and its Subsidiaries have timely filed or been included in all income,sales and use and all other material Tax Returns (as defined in Section 11.6)required to be filed by them or in which they are to be included with respectto Taxes for any period ending on or before the Original Date, taking intoaccount any extension of time to file granted to or obtained on behalf of theCompany or any of its Subsidiaries and such Tax Returns in all materialrespects disclose all Taxes required to be paid for the periods coveredthereby;

#### (b)                                 TheCompany and its Subsidiaries have paid or caused to be paid all Taxes due andowing (whether or not shown on such Tax Returns) prior to the Original Date orhave made provision, in accordance with GAAP, for all Taxes owed or accruedthrough the Original Date;

#### (c)                                  Neitherthe IRS (as defined in Section 11.6) nor any other Governmental Authority hasasserted any deficiency or claim for any amount of additional Taxes against theCompany or any of its Subsidiaries, and no claim has ever been made by a taxingauthority in a jurisdiction where the Company or any of its Subsidiaries doesnot file Tax Returns that the Company or any of its Subsidiaries is or may besubject to taxation by that jurisdiction;

#### (d)                                 Nofederal, state, local or foreign audits or other administrative proceedings orcourt proceedings are presently being conducted with regard to any Taxes or TaxReturns of the Company or any of its Subsidiaries and neither the Company norany of its Subsidiaries has received a written notice of any actual orthreatened audits or proceedings or is otherwise aware of any such audits orproceedings;

#### (e)                                  AllTaxes and other assessments and levies which the Company and its Subsidiarieswere or are required to withhold or collect have been withheld and collectedand have been paid over to the proper Governmental Authorities;

#### (f)                                    Neither the Companynor any of its Subsidiaries has ever been a member of an affiliated group ofcorporations filing a combined federal income Tax Return (other than a groupthe common parent of which is or was the Company) nor does the Company or anyof its Subsidiaries have any liability for Taxes of any other Person (otherthan the Company or any of its Subsidiaries) under Treasury Regulations Section1.1502-6 (or any similar provision of foreign, state or local law) orotherwise.  Neither the Company nor 

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#### any of itsSubsidiaries is a party to any agreement or arrangement requiring theindemnification, sharing or allocation of Taxes;

#### (g)                                 Neitherthe Company nor any of its Subsidiaries has distributed the stock of anotherentity or had its stock distributed by another entity in a transaction that waspurported or intended to be governed in whole or in part by Sections 355 or 361of the Code;

#### (h)                                 Neitherthe Company nor any of its Subsidiaries has been a United States real propertyholding corporation within the meaning of Section 897(c)(2) of the Code duringthe applicable period specified in Section 897(c)(1)(A)(ii) of the Code;

#### (i)                                     Thereare no liens for Taxes upon the assets of the Company or its Subsidiaries,except for liens relating to current Taxes not yet due; and

#### (j)                                     Exceptas would not have a Parent Material Adverse Effect, neither the Company nor anyof its Subsidiaries will be required to include any item of income in, orexclude any item of deduction from, taxable income for any taxable period (orportion thereof) ending after the Closing Date as a result of any (i) change inmethod of accounting for a taxable period ending on or prior to the ClosingDate, (ii) “closing agreement” as described in Code §7121 (or any correspondingor similar provision of state, local or foreign income Tax law) executed on orprior to the Closing Date, (iii) intercompany transaction or excess lossaccount described in Treasury Regulations under Code §1502 (or anycorresponding or similar provision of state, local or foreign income Tax law),(iv) installment sale or open transaction disposition made on or prior to theClosing Date, or (v) prepaid amount received on or prior to the Closing Date.

**Section4.9.****                                EmployeeBenefit Plans.**

### (a)                                  Schedule 4.9(a) sets forth all “employee benefitplans”, as defined in Section 3(3) of the Employee Retirement Income SecurityAct of 1974, as amended (“ERISA”), each severance, incentive or bonus,deferred compensation, profit sharing, retirement, welfare, vacation orpaid-time-off, stock purchase, stock option or equity incentive plan, program,agreement or arrangement, and any other material employee benefit plan, programor arrangement currently maintained or contributed to by the Company orany of its Subsidiaries or with respect to which the Company or any of itsSubsidiaries have any liability (the “Company Plans”).  Neither the Company nor any of itsSubsidiaries sponsors, maintains, contributes to (or is obligated to contributeto) or has any liability with respect to any “employee pension plan,” asdefined in Section 3(2) of ERISA, that is subject to Title IV of ERISA orSection 412 of the Code or any “multiemployer plan,” as defined in Section3(37) of ERISA.  Except as disclosed on Schedule 4.9(a), none of the Company Plans providefor post-employment life or health insurance benefits for any participant orany beneficiary of a participant, except as may be required under theConsolidated Omnibus Budget Reconciliation Act of 1985, as amended (or similarstate law) and at the expense of the participant or the participant’sbeneficiary.

### (b)                                 Exceptas set forth in Schedule 4.9(b), The CompanyPlans have been maintained and administered in form and operation, in allmaterial respects, in accordance with 

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### all applicable laws, including, withoutlimitation, ERISA and the Code.  EachCompany Plan that is intended to qualify under Section 401(a) of the Code hasreceived a favorable determination or opinion letter from the IRS regarding itsqualification thereunder and no events have occurred that could be expected toadversely affect such qualification.

### (c)                                  Thereare no pending actions, claims, lawsuits or governmental investigations oraudits which are pending or, to the knowledge of the Company, threatened, ineach case in respect of the Company Plans.

### (d)                                 Exceptas expressly contemplated by this Agreement or as set forth on Schedule 4.9(d), neither the execution anddelivery of this Agreement nor the consummation of the transactionscontemplated hereby will (i) result in any payment becoming due to anyemployee of the Company or any of its Subsidiaries, (ii) increase anybenefits otherwise payable under any Company Plan or (iii) result in theforfeiture, acceleration of the time of payment or vesting of any such benefitsunder any such plan.

### (e)                                  Except as disclosedon Schedule 4.9(e), no amount required to bepaid or payable to or with respect to any employee or other service provider ofthe Company or any of its Subsidiaries in connection with the transactionscontemplated hereby (either solely as a result thereof or as a result of suchtransactions in conjunction with any other event) could be an “excess parachutepayment” within the meaning of Section 280G of the Code.

### (f)                                    TheCompany has provided Parent with (i) true and complete copies of each CompanyPlan (or, if not written, a written summary of its terms), (ii) any relatedtrust agreement or other funding instrument; (iii) the most recent IRSdetermination letter, if applicable; (iv) any summary plan description andother material written communication to employees concerning the benefits providedunder the Company Plan; (v) the most recent Form 5500 annual report (includingattached schedules and financial statements); and (vi) the most recentactuarial valuation reports, if applicable.

### (g)                                 Allcontributions, premiums or other payments have been paid on a timely basis withrespect to each Company Plan.  Except astaken into account in determining Closing Working Capital (as finallydetermined), no unfunded liability exists with respect to any Company Plan.

**Section4.10.****                         Realand Personal Property.**

### (a)                                  Schedule 4.10(a) sets forth the address anddescription of each Owned Real Property. With respect to each Owned Real Property: (i) the Company or one of itsSubsidiaries has indefeasible fee simple title to such Owned Real Property,free and clear of all Encumbrances (except for the Encumbrances described inSection 4.10(c)(i)-(vii), as applicable), (ii) except as set forth in Schedule 4.10(a), none of the Companynor any of its Subsidiaries has leased or otherwise granted to any Person theright to use or occupy such Owned Real Property or any portion thereof; and(iii) other than the rights of Parent and MergerCo pursuant to this Agreement,there are no outstanding rights of first offer or rights of first refusal orsimilar contracts or commitments to purchase such Owned Real Property or anyportion thereof or interest therein.

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### (b)                                 Schedule 4.10(b) sets forth a list of all materialleasehold or subleasehold estates and other rights to use or occupy any land,buildings, structures, improvements, fixtures or other interest in realproperty held by the Company or any of its Subsidiaries (the “Leased Real Property”).  All leases (including subleases) relating toLeased Real Property are identified on Schedule 4.10(b)(each a “Lease” and collectively, the “Leases”). With respect to each Lease listed on Schedule4.10(b), except as would not have, individually or in the aggregate,a Company Material Adverse Effect:

##### (i)                                     theCompany or a Subsidiary of the Company, as applicable, have valid andenforceable leasehold interests to the leasehold estate in the Leased RealProperty granted to the Company or such Subsidiary, as applicable, pursuant toeach pertinent Lease, except as such enforceability may be limited by GeneralEnforceability Exceptions;

##### (ii)                                  eachof said Leases has been duly authorized and executed by the Company or suchSubsidiary, as applicable, and is in full force and effect; and

##### (iii)                               neitherthe Company nor such Subsidiary is in default under any of said Leases, nor, tothe Company’s knowledge, has any event occurred which, with notice or thepassage of time, or both, would give rise to such a default by the Company orsuch Subsidiary, as applicable.

### (c)                                  Exceptas set forth on Schedule 4.10(c) or asspecifically disclosed in the Base Balance Sheet, the Company and each of itsSubsidiaries have good and marketable title to, or a valid leasehold interestin, all of their property and assets, including those properties and assetsshown on the Base Balance Sheet or acquired after the date of the Base BalanceSheet, free and clear of any Encumbrances, except for (i) Encumbrancesdisclosed in the Base Balance Sheet for Taxes, fees, assessments or othergovernmental charges which are not delinquent or remain payable without penalty(as to which adequate reserves have been established in the FinancialStatements), (ii) carriers’, warehousemen’s, mechanics’, landlords’,materialmen’s, repairmen’s or other similar Encumbrances arising in theordinary course of business, (iii) Encumbrances consisting of pledges ordeposits required in the ordinary course of business and in respect ofstatutory obligations in connection with workers’ compensation, unemploymentinsurance and other social security legislation, (iv) Encumbrances on anyproperty acquired or held by the Company or its Subsidiaries in the ordinarycourse of business, securing indebtedness incurred or assumed for the purposeof financing (or refinancing) all or any part of the cost of acquiring suchproperty, all of which shall be released as of immediately prior to theClosing, (v) Encumbrances securing capital lease obligations,(vi) Encumbrances set forth on Schedule4.10(c)(vi), all of which will be released concurrently with theClosing and (vii) with respect to the Owned Real Property, Encumbrances ofrecord or imperfections of title which are not, individually or in theaggregate, material in character, amount or extent and which do not materiallydetract from the value or materially interfere with the present use of theassets subject thereto or affected thereby or which would not have,individually or in the aggregate, a Company Material Adverse Effect, and such property and assets are in goodcondition and repair (ordinary wear and tear expected) and are fit for use inthe ordinary course of business of the Company and its Subsidiaries.

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### (d)                                 The assets andproperties (whether real or personal, tangible or intangible) owned or leasedby the Company and its Subsidiaries constitute all of the assets and propertiesnecessary for the conduct of their businesses as presently conducted.

**Section4.11.****                         Laborand Employment Matters.**

### (a)                                  Exceptas set forth on Schedule 4.11(a) or asotherwise would not have, individually or in the aggregate, a Company MaterialAdverse Effect, the Company and each of its Subsidiaries are in compliance withall federal and state laws respecting employment and employment practices,including, without limitation those laws relating to terms and conditions ofemployment, wages and hours, collective bargaining, equal employment, layoffs,immigration, workplace safety and the collection and payment of taxes and otherwithholdings.  There has been no “masslayoff” or “plant closing” within the meaning of the Worker Adjustment andRetraining Notification Act of 1988, as amended, and any similar state or local“mass layoff” or “plant closing” law (collectively, the “WARN Act”) withrespect to the Company or any of its Subsidiaries within the two (2) yearperiod prior to the Effective Time.

### (b)                                 Exceptas set forth on Schedule 4.11(b), neitherthe Company nor any Subsidiary of the Company is a party to or otherwise boundby any collective bargaining agreement, contract or other agreement,understanding or relationship with a labor union or labor organization.  Except as would not have, individually or inthe aggregate, a Company Material Adverse Effect, neither the Company nor anySubsidiary of the Company is subject to any charge, demand, petition orrepresentation proceeding seeking to compel, require or demand it to bargainwith any labor union or labor organization nor, is there pending or, to theCompany’s knowledge, threatened, any material labor strike, dispute, walkout,work stoppage, slow-down or lockout involving the Company or any Subsidiary ofthe Company.

**Section4.12.****                         Contractsand Commitments.**  Except as setforth on Schedule 4.12, neither the Companynor any Subsidiary of the Company is a party to or bound by:

#### (a)                                  anypartnership agreement or joint venture agreement or other agreement relating toownership of or investments in any business or enterprise;

#### (b)                                 anyagreement requiring the payment of severance with any director, officer,employee or consultant;

#### (c)                                  anyemployment or consulting agreement involving annual compensation in excess of$100,000 or any retention, change-of-control or similar agreements;

#### (d)                                 anyagreement with another Person materially limiting or restricting the ability ofthe Company or any Subsidiary of the Company to enter into or engage in anymarket or line of business or to compete with or sell to any Person;

#### (e)                                  anyagreement with any current officer, director, stockholder or Affiliate of theCompany or any of its Subsidiaries or any of their respective Affiliates;

#### (f)                                    any agreements forthe sale of any of the assets of the Company or any of its Subsidiaries otherthan with respect to the sale of inventory and product in the 

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#### ordinarycourse of business or for the grant to any person of any rights to purchase anyof its assets;

#### (g)                                 anyagreement relating to the acquisition by the Company or any of its Subsidiariesof any business or any material portion of the assets or capital stock of anyother Person entered into in the last five (5) years;

#### (h)                                 anymaterial agreements relating to the incurrence, assumption, surety or guaranteeof any indebtedness;

#### (i)                                     anyagreements under which the Company or any of its Subsidiaries has made materialadvances or loans to any other Person (which shall not include advances made toan employee of the Company or any of its Subsidiaries in the ordinary course ofbusiness consistent with past practice);

#### (j)                                     any other agreement (or group of relatedagreements) the performance of which requires aggregate payments to or from theCompany or any of its Subsidiaries in excess of $100,000 per year;

#### (k)                                  anycollective bargaining agreement with any labor union or any bonus, commission,pension, profit sharing, retirement or any other form of deferred compensationor incentive plan or any stock purchase, stock option or similar plan orpractice; or

#### (l)                                     anymaterial agreement which contains any provision(s) requiring the Company and/orany of its Subsidiaries to indemnify any other party thereto or any guaranty.

As used in this Section 4.12, the word “agreement”means and includes every written or oral contract, license, lease, commitmentor agreement of any kind.  Each of theagreements set forth on Schedule 4.12 and/orany of the other Schedules (as defined in Section 11.2) hereto and each NewOrdinary Course Contract (as defined in Section 6.1(e)) is in full force andeffect, is the legal, valid and binding obligation of the Company and/or itsSubsidiaries and, to the Company’s knowledge, each of the other counterpartiesthereto, and is enforceable against them in accordance with its terms, exceptas such enforceability may be limited by General Enforceability Exceptions, andneither the Company nor any of its Subsidiaries nor, to the Company’sknowledge, any of the counterparties thereto has committed any material breachor default thereunder, nor has any event occurred that (with or without notice,lapse of time or both) would constitute a material breach or default.  The Company has heretofore made available toParent a true, complete and correct copy and a true and correct description ofall material terms of each oral agreement listed on Schedule 4.12 heretoor any of the other Schedules hereto and, in each case, all materialamendments, modifications and supplements thereto and waivers thereunder (allof which are disclosed on Schedule 4.12 hereto or one of the otherSchedules hereto).

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**Section 4.13.****                         IntellectualProperty.**

 

### (a)                                  Schedule 4.13(a) sets forth an accurate andcomplete list of all Patents (as defined in Section 11.6), registered orapplied for Marks (as defined in Section 11.6), registered or applied forCopyrights (as defined in Section 11.6), and any other material unregisteredCopyrights and Marks owned or filed by the Company and its Subsidiaries andused in connection with the business of the Company and its Subsidiaries ascurrently conducted.

### (b)                                 Exceptas set forth on Schedule 4.13(b), theCompany or a Subsidiary of the Company is the owner of all right, title andinterest in and to all of the Intellectual Property (as defined in Section11.6) as set forth in Schedule 4.13(a) and is the owner of all right,title, and interest in and to, or has a valid and enforceable right to usepursuant to a written license agreement set forth on Schedule 4.13(f)(other than commercially-available, off-the shelf software), all otherIntellectual Property as is necessary in connection with the business of theCompany and its Subsidiaries as currently conducted taken as a whole, free andclear of all Encumbrances (collectively, the “Company Intellectual Property”),except where the failure to own or have the right to use such IntellectualProperty would not  have, individually orin the aggregate, a Company Material Adverse Effect.  The Company Intellectual Property (other thanPatents included in the Company Intellectual Property) is valid andenforceable.  To the Company’s knowledge,the Patents included in the Company Intellectual Property are valid andenforceable.  No independent contractor,consultant or other third party has developed or assisted in the development ofany Intellectual Property on behalf of the Company and/or any of itsSubsidiaries.

### (c)                                  TheCompany Intellectual Property owned, and to the knowledge of the Company or anySubsidiary, the Company Intellectual Property used, practiced or otherwisecommercially exploited by the Company or its Subsidiaries has not and does notconstitute an unauthorized use or misappropriation of any Intellectual Propertyof any Person other than any Patents, has not infringed, constituted anunauthorized use of or otherwise violated and does not infringe, constitute anunauthorized use of, or otherwise violate any other right of any Person(including pursuant to any non-disclosure agreements or obligations to whichCompany or its Subsidiaries or any of their present or former employees orconsultants is a party) other than any Patents, and, to the Company’sknowledge, has not infringed or otherwise violated and does not infringe orotherwise violate on any Patents of any third party.

### (d)                                 Neitherthe Company nor any of its Subsidiaries is or, to the Company’s knowledge, isthreatened to be a party to any suit, action or proceeding which involves aclaim of infringement, misappropriation, unauthorized use, or violation of anyIntellectual Property used or owned by any Person against the Company or itsSubsidiaries, or challenging the ownership, use, validity or enforceability ofany Intellectual Property owned or used by the Company or its Subsidiaries,nor, to the Company’s knowledge, are there any facts or circumstances thatwould form the basis for any claim of infringement, misappropriation,unauthorized use, or violation by any Person against the Company and itsSubsidiaries, or challenging the ownership, use, validity or enforceability ofany Intellectual Property owned or used by the Company.

### (e)                                  Tothe Company’s knowledge, no third party has infringed, misappropriated orotherwise conflicted with any of the Company Intellectual Property.

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### (f)                                    Schedule 4.13(f) sets forth a complete andaccurate list of all material licenses, sublicenses and other agreements towhich the Company and/or its Subsidiaries are a party (i) granting anyother Person the right to use the Company Intellectual Property, or(ii) pursuant to which Company or its Subsidiaries are authorized to useany third party Intellectual Property (identifying third party IntellectualProperty for which the Company or any of its Subsidiaries possesses the sourcecode), which are incorporated in, or are from a part of any productmanufactured, distributed, or sold by the Company or any Subsidiary or whichare otherwise used (or currently proposed to be used) by the Company or itsSubsidiaries in the business of the Company as currently conducted, other thanlicenses for commercial off-the-shelf software.

### (g)                                 Duringthe twelve month period ending on the Effective Date, there have been nomaterial failures, breakdown, outages or unavailability of any of the computersystems (including without limitation, the software, hardware and networks)currently used by the Company or any of its Subsidiaries in the operation ofthe business.

**Section4.14.****                         EnvironmentalMatters.**  Except as set forth on Schedule 4.14, or as would not have a CompanyMaterial Adverse Effect:

#### (a)                                  theCompany and the Subsidiaries have complied in all material respects with, andare in compliance in all material respects with, all applicable EnvironmentalLaws (as defined below), including those Environmental Laws applicable to theiroperations and use of the Leased Real Property;

#### (b)                                 neitherthe Company nor the Subsidiaries has generated, transported, treated, stored,disposed of, arranged for or permitted the disposal of, handled, exposed anyPerson to, or Released any Hazardous Material (as defined below) at anylocation, including without limitation at or on the Owned Real Property or theLeased Real Property, except in compliance in all material respects with allapplicable Environmental Laws and as would not give rise to current or futureliability of the Company or its Subsidiaries under Environmental Laws, andthere has been no Release (as defined below) or threat of Release of anyHazardous Material at, on or affecting any property or facility currently orpreviously owned, leased or operated by the Company or the Subsidiaries,including the Owned Real Property and the Leased Real Property, that requiresreporting or remediation by the Company or the Subsidiaries pursuant to anyapplicable Environmental Law or that would give rise to current or futureliability of the Company or its Subsidiaries under Environmental Laws;

#### (c)                                  except for thosematters that  prior to the Original Datehave been fully settled without future obligation, neither the Company nor theSubsidiaries have (i) received written notice under the citizen suitprovisions of any Environmental Law; (ii) received any written request forinformation, notice, demand letter, administrative inquiry or written complaintor claim from any Governmental Authority or any Person under any EnvironmentalLaw; (iii) been subject to or, to the Company’s knowledge, threatened withany governmental or citizen enforcement action or notice of liability withrespect to any Environmental Law; or (iv) received written notice of orotherwise have 

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#### knowledge ofany material claim, notice of violation, notice of liability, or unsatisfiedliability under any Environmental Law;

#### (d)                                 theCompany and its Subsidiaries have obtained, have complied in all materialrespects with, and are in compliance in all material respects with all CompanyLicenses (as defined in Section 4.18) required under any Environmental Law forthe Company’s or its Subsidiaries’ activities and operations, includingoperations at the Owned Real Property and the Leased Real Property; and

#### (e)                                  thereare no drinking water wells, production water wells, groundwater monitoringwells, underground storage tanks, landfills, current or former waste disposalareas, or polychlorinated biphenyls at or on any property or facility currentlyowned or operated by the Company or the Subsidiaries, including the Owned RealProperty and the Leased Real Property, for which the Company or itsSubsidiaries has responsibility or liability under Environmental Law.

#### (f)                                    TheCompany and its Subsidiaries have not assumed, undertaken, provided anindemnity with respect to, or otherwise become subject to any liability of anyother Person relating to Environmental Laws.

#### (g)                                 Neitherthe Company nor any of its Subsidiaries has any liabilities with respect to thepresence of asbestos, silica or other Hazardous Material, in any product or inor upon any premises, property or facility.

#### (h)                                 TheCompany and its Subsidiaries have provided or made available to Parent copiesof all material environmental reports, audits, assessments, and investigations,and any other material environmental documents, related to the Company and itsSubsidiaries or any of their respective predecessors, or any of their past orpresent facilities, properties or operations, to the extent the foregoing arein the possession, custody, or control of the Company or its Subsidiaries.

 “Environment” means soil, surface waters,groundwater, land, stream sediments, surface or subsurface strata and ambientair.

“Environmental Laws”means all laws (including principles of common law), statutes, ordinances,regulations, rules, orders, judgments, decrees or any other provisions havingthe force or effect of law relating to pollution, protection of theEnvironment, or protection of human health and safety, including, withoutlimitation, the federal Comprehensive Environmental Response, Compensation andLiability Act, the Resource Conservation and Recovery Act, the Clean Air Act,the Clean Water Act, the Toxic Substances Control Act, the Endangered SpeciesAct and similar federal, state and local laws as in effect on or prior to theClosing Date.

“Hazardous Material”means any pollutant, toxic substance, hazardous waste, hazardous material,hazardous substance, petroleum or petroleum-containing product, as listed or regulated under anyEnvironmental Law, and any other substance for which liability or standards ofconduct may be imposed under Environmental Laws.

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 “Release” means any spilling, leaking, pumping,pouring, emitting, emptying, discharging, injecting, escaping, leaching,dumping, or disposing into the Environment.

**Section4.15.****                         Insurance.**  Schedule 4.15 setsforth, a summary of the material insurance policies held by, or for the benefitof, the Company and its Subsidiaries or under which any of the Company, itsSubsidiaries or any of their employees, businesses, assets and/or propertiesare covered, together with a claims history for the period from January 1, 2004to the date of the Base Balance Sheet. All of such insurance policies are in full force and effect, and none ofthe Company nor any of its Subsidiaries is or has been in material defaultthereunder and, during the past three years, there has been no lapse in theCompany’s and its Subsidiaries’ insurance coverage.  None of the Company nor any of itsSubsidiaries has been denied insurance coverage requested by or on behalf ofany such Person within the past three (3) years.  Except as set forth on Schedule 4.15none of the Company nor any of its Subsidiaries has any self-insurance orco-insurance programs, and the reserves set forth on the Base Balance Sheet areadequate to cover all anticipated liabilities with respect to any such self-insuranceor co-insurance programs.

**Section4.16.****                         NoBrokers.**  Neither the Company norany of its Subsidiaries has entered into any contract, arrangement orunderstanding with any person or firm that may result in the obligation of suchentity or Parent or MergerCo to pay any finder’s fees, brokerage or agent’scommissions or other like payments in connection with the negotiations leadingto this Agreement or consummation of the Merger, except that the Company hasretained and will owe fees to Harris Williams & Co. and Behrman BrothersManagement Corp., all of which shall be included as Company Expenses anddeducted from the Merger Consideration pursuant to Section 2.1(d)(iii)(B).

**Section4.17.****                         Compliancewith Laws.**  Except as set forthin Schedule 4.17, neither the Company norany Subsidiary of the Company is (or has been in the past three (3) years) indefault or violation of any law, statute, ordinance, regulation, rule, order,judgment or decree of any Governmental Authority applicable to the Company or suchSubsidiary or by which any property or asset of the Company or its Subsidiariesis bound, except for any such conflicts, defaults or violations that would nothave, individually or in the aggregate, a Company Material Adverse Effect.

**Section 4.18.****                         Licensesand Permits.**  Schedule 4.18 contains a true, correct andcomplete list of all material licenses, permits, authorizations, registrationsand certifications of any Governmental Authority, which have been issued to theCompany or any of its Subsidiaries and are currently in effect (the “Company Licenses”).  Each Company License is valid and in fullforce and effect, except to the extent the failure of any such Company Licenseto be valid and in full force and effect would not have, individually or in theaggregate, a Company Material Adverse Effect, and the Company and itsSubsidiaries are in material compliance with the terms and conditions of suchCompany Licenses.  There is noinvestigation or proceeding pending or, to the knowledge of the Company, threatenedin writing that could result in the termination, revocation, suspension, orrestriction of any Company License or the imposition of any fine, penalty orother sanctions for violation of any legal or regulatory requirements relatingto any Company License, except to the extent the termination, revocation,suspension, or restriction of any Company License or the imposition of anyfine, penalty or other sanctions would not have, individually or in theaggregate, a Company Material Adverse Effect. Except as set forth in 

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Schedule 4.18, none of theCompany Licenses shall be affected in any manner by the consummation of thetransactions contemplated hereby, except to the extent such effect would nothave, individually or in the aggregate, a Company Material Adverse Effect.  The Company and its Subsidiaries hold allmaterial licenses, permits, authorizations, registrations and certifications ofany Governmental Authority necessary for the conduct of their business aspresently conducted.

**Section4.19.****                         Knowledge.**  Whenever a representation or warranty made bythe Company herein refers to the “knowledge of the Company”, the “Company’sknowledge” or a similar phase, such knowledge shall be deemed to consist onlyof the actual knowledge (after reasonable inquiry), on the Original Date and onthe Closing Date, of John Fitzpatrick, Dale Herbst, John Sleva, Lynn McClintockand Paul Becker.

**Section4.20.****                         UndisclosedLiabilities.**  Except as set forthin Schedule 4.20, to the Company’s knowledge none of the Company nor anyof its Subsidiaries has any debts, liabilities or obligations, whether accruedor fixed, absolute or contingent, matured or unmatured, or determined ordeterminable, other than any such debts, liabilities or obligations (i)disclosed on the other Schedules hereto, (ii) reflected or reserved against onthe face of the Base Balance Sheet or the notes thereto, (iii) incurred sincethe date of the Base Balance Sheet in the ordinary course of business of theCompany and its Subsidiaries (none of which is a liability resulting from,arising out of or relating to any breach of contract, breach of warranty, tort,infringement, violation of law or a claim or lawsuit or an environmentalliability) or (iv) that would not, individually or in the aggregate, have a CompanyMaterial Adverse Effect.  Notwithstanding the foregoing, thisrepresentation and warranty will not apply to (and will exclude) any liabilityarising out of or related to facts, events, transactions, or actions orinactions, the category of which is the subject of another representation orwarranty set forth in this Article IV, whether or not the existence of suchliability would constitute a breach or inaccuracy of such representation orwarranty.  By way of example as to theforegoing sentence, pending and threatened litigation is addressed in therepresentations and warranties in Section 4.7 and therefore all pending andthreatened litigation (regardless of whether such litigation is covered by therepresentation and warranties in Section 4.7) is considered a “category” forthe purposes of the foregoing sentence.

**Section4.21.****                         AffiliateTransactions.**  Except as setforth on Schedule 4.21 attached hereto, no Common Equity Holder or anyof such Common Equity Holder’s Affiliates or present or former officer,director or other Affiliate of the Company or any of its Subsidiaries is aparty to any contract, agreement or transaction with the Company or any of itsSubsidiaries or has any interest in any property, real or personal or tangibleor intangible, used in or pertaining to the business of the Company and/or anyof its Subsidiaries, except for (i) salaries, bonuses and other compensationunder the terms of any pre-existing written employment contracts or employeebenefit plans entered into prior to the Original Date and disclosed on theSchedules hereto and (ii) reimbursement of business expenses incurred in theordinary course of business.

**Section 4.22.****                         Customersand Suppliers.**  Schedule 4.22lists the Company’s and its Subsidiaries’ (a) ten (10) largest customers (interms of consolidated sales) during the nine (9) month period ended as ofSeptember 30, 2006 (the “Customers”), and (b) ten (10) largest suppliers(by dollar volume of purchases) during the nine (9) month period ended as ofSeptember 30, 2006 (the “Suppliers”). Neither the Company nor any of its Subsidiaries has received any writtennotice from any such Customer or Supplier that such Customer or Supplierintends to terminate its relationship with the Company and its Subsidiaries orto materially modify its business relationship with the Company and itsSubsidiaries.  To the Company’sknowledge, neither the Company nor any of its Subsidiaries has 

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received any oral notice from any such Customer orSupplier that such Customer or Supplier intends to discontinue any program orbusiness line with the Company or its Subsidiaries outside the ordinary courseof business.

**Section4.23.****                         Inventory. **The inventories of the Company and itsSubsidiaries reflected on the Financial Statements are, and the inventory ofthe Company and its Subsidiaries to be included as assets in the computation ofNet Working Capital will be, of a quantity and quality usable and saleable inthe ordinary course of business of the Company and its Subsidiaries, and arenot damaged, defective or obsolete, net of any applicable reserve in theFinancial Statements therefor for damaged, defective and/or obsolete inventory.

**Section4.24.****                         Warranty. **All products and services developed,sold, licensed, rendered and/or delivered by the Company and each of itsSubsidiaries have been in conformity with all applicable contractualcommitments and all express and implied warranties in all material respects,and none of the Company nor any of its Subsidiaries has any material liabilityin connection therewith in excess of any warranty reserve specificallyestablished with respect thereto and included on the Base Balance Sheet (asadjusted for the passage of time through the Closing Date in accordance withGAAP).  Except as set forth in Schedule 4.24 attached hereto, no productsand services developed, sold, licensed, rendered and/or delivered by the Company or any of its Subsidiaries aresubject to any guaranty, warranty or other indemnity beyond the ordinarycourse terms and conditions of such sale, license or service.  Noneof the Company or any of its Subsidiaries has been notified of anyextraordinary warranty claims or other extraordinary indemnity obligationsrelating to any of its products or services within the past twelve (12) months.

**Section4.25.****                         Indebtedness.**  Except as set forth on Schedule 4.25hereto, neither the Company nor any of its Subsidiaries has any Indebtednessoutstanding at the Original Date.  Exceptfor the amount of Indebtedness included as a reduction to the Merger Considerationpursuant to Section 2.1(d)(iii)(A), as of the Measurement Time, the Company andits Subsidiaries will not have any Indebtedness outstanding.

# **ARTICLE V**

# **REPRESENTATIONS AND WARRANTIES OF PARENT ANDMERGERCO**

Parent and MergerCo hereby jointly and severallyrepresent and warrant to the Company that the following representations andwarranties contained in this Article V (i) are true and correct as of theOriginal Date, and (ii) will be true and correct as of the Effective Time(except that representations and warranties that are made as of a specific dateneed only be true as of such date):

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**Section5.1.****                                Organization.**  Parent is a corporation duly organized,validly existing and in good standing under the laws of the State of Delawareand MergerCo is a corporation duly organized, validly existing and in goodstanding under the laws of the State of Delaware, and each has all requisitecorporate power and authority to own, operate and lease its properties and tocarry on its respective business as currently conducted.  Each of Parent and MergerCo is duly licensedor qualified to do business as a foreign corporation under the laws of eachjurisdiction in which the character of its properties or in which thetransaction of its business makes such qualification necessary, except wherethe failure to be so licensed or qualified would not be reasonably likely tohave, individually or in the aggregate, a Parent Material Adverse Effect.  “Parent MaterialAdverse Effect” means any effect, change or circumstance (orcombination of the foregoing) which has had or could reasonably be expected tohave a material adverse effect on the business, assets, condition (financial orotherwise) or results of operations of the Parent and, prior to the Closing,MergerCo, taken as a whole, except for any such effects resulting from(i) the negotiation, execution or performance of this Agreement or theconsummation of the transactions contemplated by this Agreement,(ii) changes in general economic or political conditions or the securitiesmarkets in general (whether as a result of acts of terrorism, war (whether ornot declared), armed conflicts or otherwise), (iii) changes in laws,regulations, rules, ordinances, policies, mandates, guidelines or otherrequirements of any Governmental Authority or (iv) changes in GAAP or itsapplication.

**Section5.2.****                                Authorization;Validity of Agreement; Necessary Action.**  Each of Parent and MergerCo has all requisitecorporate power and authority to execute and deliver this Agreement and toperform its obligations hereunder.  Theexecution, delivery and performance by Parent and MergerCo of this Agreementand the consummation of the transactions contemplated hereby have been dulyauthorized by all necessary action by the board of directors of Parent and theboard of directors of MergerCo and by the stockholders of MergerCo, and, exceptas set forth on Schedule 5.2, no otheraction on the part of Parent or MergerCo is necessary to authorize theexecution and delivery by Parent or MergerCo of this Agreement and theconsummation of the transactions contemplated hereby.  This Agreement has been duly executed anddelivered by Parent and MergerCo and, assuming due and valid authorization,execution and delivery hereof by the Company, is a valid and binding obligationof each of Parent and MergerCo, as the case may be, enforceable against each ofthem in accordance with its terms, except as such enforceability may be limitedby General Enforceability Exceptions.

**Section 5.3.****                                NoConflict; Consents.**  Except as setforth on Schedule 5.3, the execution anddelivery by Parent and MergerCo of this Agreement, and the consummation byParent and MergerCo of the transactions contemplated hereby in accordance withthe terms hereof, do not and will not (i) violate, conflict with or resultin a default (whether after the giving of notice, lapse of time or both) under,or give rise to a right of termination of, any contract, agreement, permit,license, authorization or obligation to which Parent or MergerCo is a party orby which its assets are bound, or any provision of the organizational documentsof Parent or any of its Subsidiaries; (ii) violate or result in aviolation of, or constitute a default (whether after the giving of notice,lapse of time or both) under, any provision of any law, regulation or rule, orany order, award or judgment of, or any restriction imposed by, any arbitrator,court or other governmental agency applicable to Parent or MergerCo or(iii) require from Parent or MergerCo any notice to, declaration or filingwith, or consent or approval of any Governmental Authority or other Person,except, in each case, where such violation, conflict, default, termination or 

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failure to provide notice or to obtain consent orapproval, as applicable, would not have, individually or in the aggregate, aParent Material Adverse Effect.

**Section5.4.****                                RequiredFinancing.**  Attached asExhibit C-1 hereto are copies of commitment letters from (a) Credit SuisseSecurities (USA) LLC and Credit Suisse (the “CS Commitment Letter”), (b)Olympus (the “Olympus Debt Commitment Letter”) and (c) OCM MezzanineFund II, L.P.(the “OCM Commitment Letter” and, together with the CSCommitment Letter and the Olympus Debt Commitment Letter, collectively, the “DebtCommitment Letters”), pursuant to which the lenders party thereto haveagreed, subject to the terms and conditions set forth therein, to provide thenecessary debt financing to Parent and MergerCo for the consummation of thetransaction contemplated hereby (the “Debt Financing”).  Attached as Exhibit C-2 is a copy ofthe commitment letter from Olympus Growth Fund IV, L.P. (the “EquityCommitment Letter” and together with the Debt Commitment Letters, the “FinancingCommitments”), pursuant to which Olympus Growth Fund IV, L.P. has agreed,subject to the terms and conditions set forth therein, to provide the necessaryequity financing to Parent and MergerCo for the transactions contemplatedhereby (the “Equity Financing” and together with the Debt Financing, the“Financing”).  The FinancingCommitments are in full force and effect as of the Original Date.  Assuming the Financing contemplated by theFinancing Commitments is consummated in accordance with their terms (including,without limitation, the execution and delivery of definitive agreements withrespect to all of the Facilities (as defined in the CS Commitment Letter)containing the terms and conditions set forth in the CS Commitment Letter), theaggregate proceeds to be disbursed to Parent and MergerCo at Closing pursuantto the agreements contemplated by the Financing Commitments (which, in the caseof the CS Commitment Letter, shall only include the proceeds from the InitialFirst Lien Term Advance (as defined therein)) will be sufficient for them topay (v) the Merger Consideration pursuant to Section 2.1, (w) the Indebtednessset forth on Schedule 2.3, (x) the Accelerated Earnout Payments, (y) theCompany Expenses, and (z) any related fees and expenses incurred by Parent andMergerCo in connection with the Merger or the financing thereof.  Subject to the other provisions of thisSection 5.4, the only funding of proceeds under the CS Commitment Letterrequired to be received by Parent and MergerCo at Closing to fund the Mergerwill be the Initial First Lien Term Advance (as defined therein) and nothingherein shall imply that the conditions precedent to the funding of theFacilities (as defined in the CS Commitment Letter) under the CS CommitmentLetter, other than (1) all of the conditions applicable to the Initial FirstLien Term Advance (including, without limitation, all of the conditionsapplicable to the First Lien Facilities to the extent applicable to the InitialFirst Lien Term Advance) and (2) the execution and delivery of definitiveagreements with respect to all of the Facilities (as defined in the CSCommitment Letter) containing the terms and conditions set forth in the CSCommitment Letter), need to be satisfied at or prior to the Closing of theMerger.

**Section5.5.****                                Brokers.**  No broker, finder or investment banker isentitled to any brokerage, finder’s or other fee or commission from the Companyin connection with the Merger based upon arrangements made by or on behalf ofParent, MergerCo or any of either of their Affiliates.

**Section 5.6.****                                Litigation.**  There is no suit, claim, action, proceedingor investigation pending or, to the knowledge of the senior management ofParent or MergerCo, threatened against Parent or MergerCo and neither Parentnor MergerCo is subject to any outstanding order, 

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writ, judgment, injunction or decree of anyGovernmental Authority that, in either case, would be reasonably likely,individually or in the aggregate, to (a) prevent or materially delay theconsummation of the Merger or (b) otherwise prevent or materially delayperformance by Parent or MergerCo of any of their material obligations underthis Agreement.

**Section5.7.****                                Inspection;No Other Representations.**  Parentand MergerCo are informed and sophisticated purchasers and have engaged expertadvisors, experienced in the evaluation and purchase of companies such as theCompany and its Subsidiaries as contemplated hereunder.  Parent and MergerCo have undertaken suchinvestigation and have been provided with and have evaluated such documents andinformation as they have deemed necessary to enable each of them to make aninformed and intelligent decision with respect to the execution, delivery andperformance of this Agreement and the transactions contemplated hereby based onthe representations, warranties, covenants and agreements made herein by or onbehalf of the Company, the Stockholders’ Representative and/or the CommonEquity Holders.  Parent and MergerCounderstand and agree that they are acquiring the Company and its Subsidiariesthrough the Merger at the Effective Time without reliance upon any express orimplied representations or warranties of any nature, whether in writing, orallyor otherwise, made by or on behalf of or imputed to the Company, any of itsSubsidiaries, the Stockholders’ Representative, any Stockholder or anyOptionholder, except for the representations and warranties made by or onbehalf of the Company and/or the Common Equity Holders which are set forth inthis Agreement, or in any Schedule, Exhibit or certificate delivered by or onbehalf of the Company, the Stockholders’ Representative and/or any CommonEquity Holder; provided that the foregoing shall in no way be deemed to limitor impair Parent’s or MergerCo’s ability to seek recovery for any claims basedon fraud or intentional misrepresentation.

# **ARTICLEVI**

# **CONDUCT OF BUSINESS PENDING THE MERGER**

**Section6.1.****                                Conductof Business Prior to Closing.** The Company agrees that, between the Original Date and the Closing Date,(a) it shall operate and cause its Subsidiaries to operate in the ordinarycourse of business, consistent with past practices and (b) except as describedin Schedule 6.1 or as otherwise contemplatedby this Agreement, in furtherance of the foregoing, the Company will not, andwill cause each of its Subsidiaries not to:

#### (a)                                  authorizefor issuance, issue or sell or agree or commit to issue or sell (whetherthrough the issuance or granting of options, warrants, commitments,subscriptions, rights to purchase or otherwise) any stock of any class or anyother securities or Equity Interests (other than the issuance of shares ofVoting Common Stock upon the exercise of Options outstanding on the OriginalDate);

#### (b)                                 makeany change to the Certificate of Incorporation or By-laws or the organizationaldocuments of its Subsidiaries, or change the authorized capital stock or EquityInterests of the Company or any of its Subsidiaries;

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#### (c)           merge or consolidatethe Company or any of its Subsidiaries with any Person or consummate any otherbusiness combination transaction (other than the Merger or any merger,consolidation or business combination of a Subsidiary with and into the Companyor a Subsidiary);

#### (d)           borrow any amount orincur or become subject to any Indebtedness, including any reborrowings underany of its existing credit facilities or other debt financing arrangements(other than borrowings prior to the Measurement Time under the Company’sexisting revolving credit facility in the ordinary course of business);

#### (e)            (i) prepay anyloans (if any) from its stockholders, officers or directors or any Personaffiliated with any of the foregoing, (ii) make any material change in itsborrowing arrangements, (iii) modify, amend or terminate any of itscontracts or agreements set forth on Schedule 4.12or any of the other Schedules hereto (except as specifically authorized byParent in writing), (iv) waive, release or assign any material rights orclaims (whether or not in the ordinary course of business) or (v) enter intoany contract, agreement or arrangement that would be required to be set forthon Schedule 4.12 if entered into prior to the Original Date (other thannew contracts or agreements with customers and clients in the ordinary courseof business (any such new contract or agreement with a customer or client inthe ordinary course of business, a “New Ordinary Course Contract”));

#### (f)            change accountingpolicies or procedures, except as required by law or by GAAP;

#### (g)           (i) except for theacceleration of unvested stock options under the Plan in the discretion of theCompany Board, make or grant or promise any bonus or any wage, salary orcompensation increase in excess of $10,000 per year to any director, officer oremployee of the Company or any Subsidiary, and (ii) except in the ordinarycourse of business consistent with past practice or in accordance with theexisting terms of contracts entered into prior to the Original Date, make orgrant or promise any increase in other benefits to be made available under anyemployee benefit plan or arrangement, or (iii) amend or terminate any existingemployee benefit plan or arrangement or adopt any new employee benefit plan orarrangement;

#### (h)           make any materialacquisitions in excess of $1,000,000 in the aggregate or commit to make anycapital expenditures involving the payment of more than $250,000 in theaggregate except as provided in Annex A to Schedule 4.6(a);

#### (i)            make or change anyelection, change an annual accounting period, adopt or change any accountingmethod, file any amended Tax Return, enter into any closing agreement, settleany Tax claim or assessment relating to the Company or any of its Subsidiaries,surrender any right to claim a refund of Taxes, consent to any extension orwaiver of the limitation period applicable to any Tax claim or assessmentrelating to the Company or any of its Subsidiaries, or take any other similaraction relating to the filing of any Tax Return or the payment of any Tax;

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#### (j)            settle or compromiseany material dispute affecting the Company or any of its Subsidiaries;

#### (k)           implement any layoff ofemployees that could implicate the WARN Act (as defined herein);

#### (l)            redeem or repurchase,directly or indirectly, any Equity Interests of the Company or declare, setaside or pay any dividends or make any other distributions (whether in cash orin kind) with respect to any Equity Interests of the Company;

#### (m)          subject any portion ofits properties or assets to any Encumbrance (other than Encumbrances permittedby Section 4.10(b) or Encumbrances in the ordinary course of business which theCompany shall be caused to be released immediately prior to the Closing);

#### (n)           sell, lease, license,assign or transfer any portion of its assets or properties, except for sales ofinventory or product in the ordinary course of business to unaffiliated thirdPersons on an arm’s length basis or as specifically contemplated by thisAgreement, or canceled without fair consideration any material debts or claimsowing to or held by it;

#### (o)           incur any intercompanycharges or conduct its cash management customs and practices, in each caseother than in the ordinary course of business (including, without limitation,with respect to maintenance of working capital balances and inventory levels,making of capital expenditures, collection of accounts receivable and paymentof accounts payable);

#### (p)           make any loans oradvances to, or guarantees for the benefit of, any Persons;

#### (q)           grant any performanceguarantee to its customers other than in the ordinary course of business andconsistent with the policies and practices disclosed to Parent;

#### (r)            abandon or fail tomaintain in effect any registrations or issuances with respect to the CompanyIntellectual Property;

#### (s)           during the period from11:59 p.m. (New York City time) on December 31, 2006 through and including theclose of business on January 9, 2007: (i) make any distributions or otherpayments of any cash and/or cash equivalents (including, without limitation,any payments in respect of any Accelerated Earnout Payments and any fees andexpenses of the Company and/or any of its Subsidiaries related to thenegotiation and the consummation of the transactions contemplated by thisAgreement (including any and all fees and expenses owed to Harris Williams& Co. and Behrman Brothers Management Corp.)), except (1) for thoseexpenditures to unaffiliated third parties (e.g., excluding any Common EquityHolder or any of their Affiliates or any of their family members, relatives orco-habitants) with respect to trade obligations incurred in the ordinary courseof business consistent with past custom and practice and which were accrued foron a dollar-for-dollar basis as a current liability in Closing Working Capital(as finally 

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#### determined), (2) for the repayment ofIndebtedness outstanding as of the Measurement Time to the extent such amountsare included as a reduction to the Merger Consideration pursuant to Section2.1(d)(iii)(A) of this Agreement, (3) for ordinary course payroll and fortravel and entertainment reimbursement payments which, in each case, are due inthe ordinary course during such period and which were accrued for on adollar-for-dollar basis as a current liability in Closing Working Capital (asfinally determined), (4) for the premium payment for the Tail Policy or (5) tothe extent pre-approved in writing by Parent, (ii) incur, assume or otherwisebecome liable with respect to any liability or obligation, except for any suchtrade obligation with an unaffiliated third party (e.g., excluding any CommonEquity Holder or any of their Affiliates or any of their family members,relatives or co-habitants) incurred in the ordinary course of businessconsistent with past custom and practice and which, if incurred prior to theMeasurement Time, would be required to be accrued for as a current liability inClosing Working Capital or (iii) waive, release or assign any rights or claims(whether or not in the ordinary course of business) which are accrued for as acurrent asset in Closing Working Capital (as finally determined);notwithstanding the foregoing, this Section 6.1(s) shall not be deemed toprohibit the making at the Closing of any of the payments to be made at theClosing in accordance with Article II hereof; or

#### (t)            enter into anyexecutory agreement, commitment or undertaking to do any of the activitiesprohibited by the foregoing provisions.

Prior to the Closing, the Company shall be permittedto pay down existing Indebtedness (subject to compliance with the other termsand conditions set forth in this Agreement, including, without limitation,clause (s) above).

**Section6.2.****           OtherPre-Closing Covenants.**  TheCompany also agrees that, between the Original Date and the Closing Date, itshall, and shall cause its Subsidiaries to:

### (a)           use its reasonable efforts to cause itscurrent insurance (or reinsurance) policies not to be canceled or terminated orany of the coverage thereunder to lapse, unless simultaneously with suchtermination, cancellation or lapse, replacement policies providing coverageequal to or greater than the coverage under the canceled, terminated or lapsedpolicies for substantially similar premiums are in full force and effect; and

### (b)           cooperate with Parent and MergerCo, use itscommercially reasonable efforts and take such actions to cause the conditionsto Parent’s and MergerCo’s obligations to close to be satisfied (including,without limitation, by (i) providing all cooperation reasonably requested byParent in connection with the arrangement of the Debt Financing and (ii) themaking and obtaining of all third party and governmental notices, filings,authorizations, approvals, consents, releases and terminations; provided that,notwithstanding the foregoing, the Company will provide copies of alldocumentation necessary to comply with this Section 6.2(d) to Parent for itsreview and approval prior to submitting such documentation to the appropriatePersons.

**Section6.3.****           AffiliatedTransactions. **The Company willcause all agreements and transactions by and among any of the Common EquityHolders (or any Affiliate of any Common 

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Equity Holder) and/or the Company and/or any of itsSubsidiaries set forth on Schedule 6.3 to be terminated effective as ofimmediately prior to the Closing without any liability on the part of Parent,MergerCo, the Company, the Surviving Corporation and/or any of itsSubsidiaries.

**Section6.4.****           Actionswith Respect to Financing.**  TheCompany shall provide, and shall cause its Subsidiaries and representatives toprovide, all reasonable cooperation and assistance in connection with (i) thearrangement of the Financing, including facilitating customary due diligence,participation in meetings and providing certificates, documents and financialreports and (ii) any offers by or on behalf of Parent, MergerCo and/or theSurviving Corporation to purchase the Company’s 10% Senior Notes, due 2012, ineach case as may be reasonably requested by Parent and/or any of its Financingsources.  Without limiting the generalityof the foregoing, the Company shall, and shall cause each of its Subsidiariesand representatives to, use commercially reasonable efforts to cooperate withand assist, and shall use commercially reasonable efforts to cause theindependent accountants for the Company and its Subsidiaries****to cooperate and assist, Parent and MergerCo in preparingsuch information packages, offering materials, private placement memoranda,bank information memoranda and similar documents as Parent and/or the partiesto the Commitment Letters may reasonably request (collectively, the “OfferingMaterials”) for use in connection with the offering and/or syndications ofdebt securities, loan participations and other matters contemplated by theCommitment Letters and/or any transaction described in clause (ii) above (the “Offerings”),including, without limitation, (x) making senior management and otherrepresentatives of the Company and its Subsidiaries available (at mutuallyagreeable times) to participate in meetings with rating agencies and causingthe Company’s senior management and present and former independent accountantsfor the Company and its Subsidiaries to participate in drafting sessionsrelated to the preparation of the Offering Materials and making work papersavailable to the Parent and their respective representatives and (y) deliveringsuch information, certificates, documents and assistance as the parties to suchCommitment Letters and/or Parent may reasonably request in connectiontherewith.  For purposes of clarification,the parties hereto agree that the matters described in this Section 6.4primarily are the responsibility of Parent and MergerCo, and that the Company’sobligations hereunder are in the nature of cooperation and assistance with suchmatters.

# **ARTICLEVII**

# **ADDITIONALAGREEMENTS**

**Section7.1.****           StockholdersConsent.**

### (a)           Prior Agreement.

##### (i)            Immediatelyfollowing the Original Date, the Company, acting through the Company Board,shall have requested, in accordance with applicable law, that the Company’sStockholders irrevocably adopt and approve this Agreement by written consent,as permitted by the By-laws (the “Prior WrittenConsent”).  A true and correctcopy of such executed irrevocable Prior Written 

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##### Consent adopting and approving the PriorAgreement, and which constitutes the Necessary Stockholder Approval withrespect to the Prior Agreement, shall have been delivered to Parent no laterthan the second business day following the Original Date.

##### (ii)           The Company shall have, in accordance with applicablelaw and its Certificate of Incorporation and By-laws, on or before the fifthbusiness day after the Original Date, (x) mailed to any stockholder that hasnot theretofore executed the Prior Written Consent irrevocably adopting andapproving the transactions contemplated by the Prior Agreement a request thatsuch stockholder execute the Prior Written Consent irrevocably adopting andapproving the Merger as provided in Section 228 of the Delaware Corporation Lawand irrevocably waive any appraisal rights pursuant to Section 262 of theDelaware Corporation Law; and (y) use its commercially reasonable efforts, tothe extent not prohibited by applicable law, to obtain such executed writtenconsents and waivers.  True andcorrect copies of any such executed counterpart signature pages to theirrevocable Prior Written Consentadopting and approving the Prior Agreement shall be delivered to Parent nolater than the second business day following the Company’s receiptthereof.  The Company shall deliver to Parent, for review and comment, any proxystatement, information statement or other information to be delivered to theholders of Company Stock and/or to the holders of Options (and including, inthe case of such material to delivered to the holders of Company Stock, any suchirrevocable written consent and waiver contemplated by this Section 7.1(a),including the Prior Written Consent), and shall incorporate therein anyreasonable comments of Parent with respect thereto.

##### (iii)          The Company shall havecomplied with the provisions of Section 262 of the Delaware Corporation Lawregarding notices of dissenters’ rights, appraisal rights and similar rights toany holder of Company Stock that has not voted for or consented to thetransactions contemplated by the Original Agreement.

### (b)           This Agreement.

##### (i)            Immediatelyfollowing the execution of this Agreement by the Company, the Company, actingthrough the Company Board, shall request, in accordance with applicable law,that the Company’s Stockholders irrevocably adopt and approve this Agreement bywritten consent, as permitted by the By-laws (the “WrittenConsent”).  A true and correctcopy of such executed irrevocable Written Consent adopting and approving thisAgreement, and which constitutes the Necessary Stockholder Approval, shall bedelivered to Parent no later than the first business day following the date ofthis Agreement.

##### (ii)           The Company shall, in accordance with applicable law and its Certificate ofIncorporation and By-laws, on the next business day after the date of this Agreement,(x) mail to any stockholder that has not theretofore executed the WrittenConsent irrevocably adopting and approving the transactions 

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##### contemplated herebya request that such stockholder execute the Written Consent irrevocablyadopting and approving the Merger as provided in Section 228 of the DelawareCorporation Law and irrevocably waive any appraisal rights pursuant to Section262 of the Delaware Corporation Law; and (y) use its commercially reasonableefforts, to the extent not prohibited by applicable law, to obtain suchexecuted written consents and waivers.  Trueand correct copies of any such executed counterpart signature pages to theirrevocable Written Consent adopting and approving this Agreement shall bedelivered to Parent no later than the second business day following the Company’sreceipt thereof.  The Company shall deliver to Parent, for review and comment, any proxystatement, information statement or other information to be delivered to theholders of Company Stock and/or to the holders of Options (and including, inthe case of such material to delivered to the holders of Company Stock, anysuch irrevocable written consent and waiver contemplated by this Section7.1(b), including the Written Consent), and shall incorporate therein anyreasonable comments of Parent with respect thereto.

##### (iii)          The Company shall complywith the provisions of Section 262 of the Delaware Corporation Law regardingnotices of dissenters’ rights, appraisal rights and similar rights to anyholder of Company Stock that has not voted for or consented to the transactionscontemplated hereby

**Section7.2.****           Accessto Information.**

### (a)           Without unreasonable disruption of itsbusiness, between the Original Date and the Closing Date, the Company shall,and shall cause each of its Subsidiaries and each of the Company’s and itsSubsidiaries’ officers, employees and agents to give Parent and MergerCo andtheir representatives (including their financing sources) reasonable access,upon reasonable notice and during times mutually convenient to Parent andMergerCo and senior management of the Company and its Subsidiaries to thefacilities, properties, employees, books and records, customers and suppliersof the Company and its Subsidiaries as from time to time may be reasonablyrequested.

### (b)           Any such investigation by Parent or MergerCoshall not unreasonably interfere with any of the businesses or operations ofthe Company or its Subsidiaries.  NeitherParent nor MergerCo shall, prior to the Closing Date, have any contact whatsoeverwith any lessor, vendor, customer, supplier, employee or consultant of theCompany or any of its Subsidiaries with respect to the transactionscontemplated hereby, except with prior approval of the Company or theStockholders’ Representative (not to be unreasonably withheld).  All requests by Parent or MergerCo for accessor information shall be submitted or directed exclusively to the Stockholders’Representative or an individual or individuals to be designated by theCompany.  Neither Parent nor MergerCoshall be permitted to conduct any invasive tests on any Leased Real Propertywithout the prior written consent of the Company.

### (c)           Inaddition, prior to the Closing, unless Parent otherwise agrees in writing, theCompany shall deliver to Parent true and correct copies of the Company’sconsolidated balance sheets as of each calendar month end greater than 20 daysprior to the Closing (within 20 

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### days followingsuch month-end), together with the related statements of income, changes instockholders’ equity and cash flow for the respective periods then ended(measured from December 31, 2005) and beginning with the ten (10) month periodending October 31, 2006.  The most recentfinancial statements delivered to Parent pursuant to this Section 7.2(c) priorto the Closing is referred to herein as the “Fall-Back Month-End Financials.”

**Section7.3.****           Confidentiality.**  The parties shall adhere to the terms andconditions of that certain letter agreement dated July 11, 2006 by and betweenthe Company and Olympus Growth Fund IV, L.P. (the “ConfidentialityAgreement”); provided that the parties hereto acknowledge and agreethat the Confidentiality Agreement shall terminate and be of no further forceand effect without any action by any party thereto effective as of the Closing.

**Section7.4.****           SupplementalDisclosure.**  From time to timecommencing on the Original Date and until the Closing Date, the Company shalldeliver to Parent written notice of any event or development (promptly afterdiscovery thereof) that would render any statement, representation or warrantyof the Company in this Agreement, including the Schedules, inaccurate orincomplete in any respect (each a “ScheduleSupplement”).  For purposes ofdetermining the accuracy of the representations and warranties of the Companycontained herein and for purposes of determining the satisfaction of theconditions set forth in Section 8.2(a), the Schedules delivered by theCompany hereunder shall be deemed to exclude any information contained in anysuch Schedule Supplement and any such Schedule Supplement shall not be deemedto cure any breach of any representation or warranty made the Companyhereunder; provided, however, in the event that Parent and MergerCo shall closethe transactions contemplated hereby, each of them shall be deemed to havewaived any and all breaches of representations and warranties of the Companycontained in this Agreement disclosed pursuant to such Schedule Supplements tothe extent the events or developments disclosed in such Schedule Supplementsrelate to events or facts that arose subsequent to the Original Date.

**Section7.5.****           Regulatoryand Other Authorizations.**

### (a)           A Pre-Merger Notification and Report Formpursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, asamended, and the rules and regulations thereunder (the “HSR Act”), has been filed by****the Company and MergerCo in connectionwith the Merger and the other transactions contemplated hereby.  Each party hereto agrees to supply promptlyany additional information and documentary material that may be requestedpursuant to the HSR Act or any other applicable law and to obtain the approvalof the Federal Trade Commission, the Antitrust Division of the United StatesDepartment of Justice or any other Governmental Authority, as applicable, forthe Merger and the other transactions contemplated hereby, and to use theircommercially reasonable efforts to obtain the authorizations, consents, ordersand approvals necessary for their execution and delivery of, and the performanceof their obligations pursuant to, this Agreement.  The parties hereto will not take any actionthat will have the effect of delaying, impairing or impeding the receipt of anyrequired approvals and shall promptly respond to any requests for additionalinformation from any Governmental Authority or other third party in respectthereof.

### (b)           In connection with the filing previouslymade by the Company and MergerCo under the HSR Act, the Company has paid anaggregate of $125,000 in filing and 

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### related fees.  Prior to theClosing, Parent shall pay $62,500 to the Company, and from the Original Datethe Company and Parent shall split evenly the cost of any additional filing andrelated fees under the HSR Act.

### (c)           Each of Parent and MergerCo shall use itscommercially reasonable efforts to assist the Company in obtaining the consentsof third parties listed in Schedule 8.2(d).

**Section7.6.****           PressReleases.**  Prior to the Closing,the parties hereto will, and will cause each of their Affiliates andrepresentatives to, maintain the confidentiality of this Agreement and willnot, and will cause each of their Affiliates not to, issue or cause thepublication of any press release or other public announcement with respect tothis Agreement or the transactions contemplated hereby without the priorwritten consent of the other parties hereto, which consent shall not beunreasonably withheld; provided, however, that (a) a party may, without theprior consent of the other parties hereto, issue or cause publication of anysuch press release or public announcement to the extent that such partyreasonably determines, after consultation with outside legal counsel, suchaction to be required by law or by the rules of any applicable self-regulatoryorganization, in which event such party will use its commercially reasonableefforts to allow the other parties hereto reasonable time to comment on suchpress release or public announcement in advance of its issuance and (b) Parentand/or MergerCo may, without the prior consent of the other parties hereto,issue or cause publication of any such press release or public announcement inconnection with any offers by or on behalf of Parent and/or MergerCo topurchase the Company’s 10% Senior Notes, due 2012, with respect to any pricechanges, timing changes, extensions, amendments to withdrawal rights,amendments to the Offering Materials related thereto or similar mattersspecific to the terms and timing of the tender offer so long as any such pressrelease or public announcement does not contain an announcement concerning theCompany (except for purposes of identification) or Common Equity Holders, inwhich event such party will use its commercially reasonable efforts (to theextent practicable) to allow the other parties hereto reasonable time tocomment on such press release or public announcement in advance of itsissuance.  Notwithstanding the foregoing,(i) as soon as practicable following the Original Date (and in any event withintwo (2) Business Days following the Original Date), the parties hereto shallhave released a joint press release in form mutually agreed upon by the partiesacting in good faith, and (ii) as soon as practicable following the Closing(and in any event within two (2) Business Days following the Closing), theparties hereto shall release a joint press release in form mutually agreed uponby the parties acting in good faith. From and after the Closing, no press release, public announcement orother public disclosure with respect to this Agreement and/or transactions contemplatedhereby, or other announcement to the employees, customers or suppliers of theCompany and/or any of its Subsidiaries may be made or issued without the priorwritten approval of Parent; provided, however, that a Common Equity Holder may,without the prior consent of Parent, (x) issue or cause publication of any suchpress release or public announcement to the extent that such Person reasonablydetermines, after consultation with outside legal counsel, such action to berequired by law or by the rules of any applicable self-regulatory organization,in which event such Person will use its commercially reasonable efforts toallow Parent reasonable time to comment on such press release or publicannouncement in advance of its issuance, or (y) disclose in writing or orally summary information related to thisAgreement and the transactions contemplated hereby, the performance of such CommonEquity Holder’s investment in theCompany and the performance of the Company on a confidential basis to any ofsuch Common 

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Equity Holder’s investors,limited partners, members or lenders**and/or in connection withthe fund raising efforts of such Common Equity Holder or Affiliate of suchCommon Equity Holder.

**Section7.7.****           NoSolicitations.**

### (a)           The Company will not, and will not permitany of its Subsidiaries or any of the directors, officers, employees, advisors,representatives, stockholders, optionholders or agents of the Company or any ofits Subsidiaries to, directly or indirectly, (i) discuss, negotiate, undertake,authorize, recommend, propose or enter into, either as the proposed surviving,merged, acquiring or acquired corporation, any transaction involving a merger,consolidation, business combination, purchase or disposition of any amount ofthe assets of the Company (other than the sale of inventory in the ordinarycourse of business) or any of its Subsidiaries or any Equity Interests of theCompany or any of its Subsidiaries other than the transactions contemplated bythis Agreement (an “Acquisition Transaction”),(ii) facilitate, encourage, solicit or initiate discussions, negotiationsor submissions of proposals or offers in respect of an Acquisition Transaction,(iii) furnish or cause to be furnished, to any person or entity, anyinformation concerning the business, operations, properties or assets of theCompany or its Subsidiaries in connection with an Acquisition Transaction, or(iv) otherwise cooperate in any way with, or assist or participate in,facilitate or encourage, any effort or attempt by any other person or entity todo or seek any of the foregoing.  Untilthe earlier of (x) the Closing and (y) the date on which this Agreement isterminated, the Company and the Stockholders’ Representative shall notifyParent immediately if any Person makes any proposal, offer, inquiry or contactwith respect to any of the foregoing.

### (b)           The Company shall, and shall cause itsSubsidiaries and their representatives to, immediately cease and cause to beterminated any existing discussions or negotiations with any Persons (otherthan Parent and MergerCo) conducted heretofore with respect to any AcquisitionTransaction.  The Company agrees not to(and to cause its Subsidiaries not to) release any third party from theconfidentiality provisions of any agreement to which the Company or any of itsSubsidiaries is a party.

**Section7.8.****           Officers’and Directors’ Indemnification.**

### (a)           Fora period of six years beginning on the Closing Date and ending on the six yearanniversary of the Closing Date, in the event of any threatened or actualclaim, action, suit, proceeding or investigation, whether civil, criminal oradministrative, including, without limitation, any such claim, action, suit,proceeding or investigation in which any Person who is now, or has been at anytime prior to the Original Date, or who becomes prior to the Effective Time, adirector, officer or employee of the Company or any of its Subsidiaries (the “Indemnified Parties”) is, or is threatened tobe, made a party based in whole or in part on, or arising in whole or in partout of, or pertaining to the fact that he or she is or was a director, officeror employee of the Company or any of its Subsidiaries and arising out of eventsoccurring prior to the Effective Time, whether in any case, such claim isasserted before or after the Effective Time, the Company, Parent and MergerCoagree to cooperate and use their commercially reasonable efforts to defendagainst and respond thereto.  It isunderstood and agreed that the Company shall indemnify and hold harmless, and afterthe Effective Time the Surviving Corporation and Parent shall (subject toSection 7.8(b) below and Section 4 of the 

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### Common EquityHolders Agreement) indemnify and hold harmless, as and to the full extentpermitted by applicable law, each Indemnified Party against any losses, claims,damages, liabilities, costs, expenses (including reasonable attorneys’ fees andexpenses), judgments, fines and amounts paid in settlement (provided suchsettlement is effected with the prior written consent of Parent) in connectionwith any such threatened or actual claim, action, suit, demand, proceeding orinvestigation, and in the event of any such threatened or actual claim, action,suit, proceeding or investigation (whether asserted or arising before or afterthe Effective Time), (A) the Company, and the Surviving Corporation andParent after the Effective Time, shall promptly pay expenses incurred by eachIndemnified Party as the same are incurred in advance of the final dispositionof any claim, suit, proceeding or investigation to such Indemnified Party tothe extent such expenses may be advanced in accordance with applicable law andthe Company’s and its Subsidiaries organizational documents (provided that anyPerson to whom expenses are advanced provides an undertaking in writing torepay such advances if it is determined by a court of competent jurisdictionthat such Person is not entitled to indemnification), (B) the IndemnifiedParties may retain counsel satisfactory to them, and the Company, Parent and theSurviving Corporation shall pay all fees and expenses of such counsel for theIndemnified Parties within thirty (30) days after statements therefor arereceived to the extent such expenses may be reimbursed in accordance withapplicable law and the Company’s and its Subsidiaries organizational documents(provided that any Person to whom expenses are advanced provides an undertakingin writing to repay such advances if it is determined by a court of competentjurisdiction that such Person is not entitled to indemnification), and(C) the Company, Parent and the Surviving Corporation will use theirrespective commercially reasonable efforts to assist in the vigorous defense ofany such matter; provided, however, that none of the Company, the SurvivingCorporation or Parent shall be liable for any settlement effected without itsprior written consent (which consent shall not be unreasonably withheld); andprovided further that the Company, Surviving Corporation and Parent shall haveno obligation hereunder to any Indemnified Party when and if a court ofcompetent jurisdiction shall ultimately determine, and such determination shallhave become final and non-appealable, that indemnification of such IndemnifiedParty in the manner contemplated hereby is prohibited by applicable law.  Any Indemnified Party wishing to claimindemnification under this Section 7.8, upon learning of any such claim,action, suit, proceeding or investigation, shall notify the Company and, afterthe Effective Time, the Surviving Corporation and Parent thereof; provided thatthe failure to so notify shall not affect the obligations of the Company, theSurviving Corporation and Parent except to the extent such failure to notifymaterially prejudices such party.

### (b)           Parentand MergerCo agree that all rights to indemnification or exculpation existingin favor of, and all limitations on the personal liability of, each present andformer director, officer and employee of the Company and its Subsidiariesprovided for in their respective charters or by-laws or otherwise in effect asof the Original Date shall continue in full force and effect for a period ofsix (6) years from the Effective Time; provided, however, that all rights toindemnification in respect of any claims asserted or made within such periodshall continue until the disposition of such claim.  From and after the Effective Time, Parent andthe Surviving Corporation also agree to indemnify and hold harmless the presentand former officers and directors of the Company and its Subsidiaries inrespect of acts or omissions occurring prior to the Effective Time to theextent provided in any written indemnification agreements between 

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### the Companyand/or one or more of its Subsidiaries, all of which are disclosed on Schedule7.8(b) hereof.

### (c)           TheCompany (prior to Closing) shall purchase an extended reporting periodendorsement under the Company’s existing directors’ and officers’ liabilityinsurance coverage for the Company’s and its Subsidiaries’ directors andofficers that shall provide such directors and officers with coverage for six(6) years following the Effective Time of not less than the existing coverageand have other terms not materially less favorable to, the insured Persons thanthe directors’ and officers’ liability insurance coverage presently maintainedby the Company (the “Tail Policy”); provided that none of Parent, MergerSub, and/or the Surviving Corporation and/or any of its Subsidiaries will haveany obligation to pay any premiums or otherwise incur any cost or expense on orwith respect to the Tail Policy, except to the extent any such amounts areaccrued for on a dollar-for-dollar basis as a current liability in ClosingWorking Capital (as finally determined). Prior to seeking any claim for indemnification against Parent, Merger Sub,the Company, and/or the Surviving Corporation and/or any of its Subsidiariesunder Section 7.8(a), Section 7.8(b), any indemnification or contributionagreement with any of the following Persons and/or any indemnification,contribution or similar provision contained in any of the organizationaldocuments of any of the foregoing Persons (if applicable), any such IndemnifiedParty shall first proceed against and exhaust any and all rights or remedies heor she may have under the Tail Policy or otherwise.  Parent shall be named as an additionalinsured under the Tail Policy to the extent necessary to implement theforegoing provisions.

### (d)           Theobligations under this Section 7.8 shall not be terminated or modified in sucha manner as to adversely affect any Indemnified Party to whom this Section 7.8applies without the consent of such Indemnified Party (it being expresslyagreed that the Indemnified Parties to whom this Section 7.8 applies shall bethird party beneficiaries of this Section 7.8 and shall be entitled to enforcethe covenants contained herein).

### (e)           Inthe event Parent or the Surviving Corporation or any of their respectivesuccessors or assigns (i) consolidates with or merges into any otherPerson and shall not be the continuing or surviving corporation or entity ofsuch consolidation or merger or (ii) transfers or conveys all orsubstantially all of its properties and assets to any person, then, and in eachsuch case, to the extent necessary proper provision shall be made so that thesuccessors and assigns of Parent or the Surviving Corporation, as the case maybe, assume the obligations set forth in this Section 7.8.

### (f)            Notwithstanding any provision herein to thecontrary, from and after the Closing, the Parent, MergerCo, the Surviving Corporationand their Affiliates shall have no obligation to indemnify any IndemnifiedParty or other Person entitled to indemnification under this Section 7.8 orunder any organizational documents of the Company or any of its Affiliates orunder any of the agreements disclosed on Schedule 7.8(b) hereof (andsuch Person shall have no rights under the insurance policies of the Companyand its Affiliates) to the extent any such claim arises from or relates to abreach by the Company or any Common Equity Holder of, a representation,warranty, covenant, agreement or is covered by indemnity under this Agreement(without regard to time limitations set forth herein).  Notwithstanding any other provision in thisAgreement, nothing herein shall limit recovery by any such Indemnified Party orother Person under the Tail Policy.

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**Section7.9.****           TaxMatters.**

### (a)           Preparation and Filing of Tax Returns.

##### (i)            Parent shall prepareand timely file, or shall cause to be prepared and timely filed, all TaxReturns of the Company and its Subsidiaries with respect to Pre-Closing Periods(as defined in Section 11.6) which are due after the Closing Date; provided,that Parent shall provide each such Tax Return to the Stockholders’Representative for its review and comment at least fifteen (15) Business Daysprior to the date on which such Tax Return is to be filed, and Parent shallmake any changes to each such Tax Return as are reasonably requested by theStockholders’ Representative; provided such requested changes would not, inParent’s reasonable judgment, have materially adverse consequences to theCompany, its Subsidiaries, Parent and/or any Affiliate of Parent (including theSurviving Corporation), and, provided further, that such Tax Returns shall beprepared (x) in a manner consistent with past practices except as required bychanges in applicable law and (y) for a pre-closing short year in accordancewith Treasury Regulations Section 1.1502-76)(b)(1)(ii).  With respect to the preparation of such TaxReturns, Parent and Stockholders’ Representative agree that (A) allTransaction Deductions (as defined in Section 11.6) properly allocable to thetaxable period or portion thereof ending on or before the Closing Date andshall be included as deductions on the income Tax Returns of the Company andits Subsidiaries for such period, and (B) Stockholders’ Representativeshall determine the amount of Transaction Deductions, subject to thelimitations in the definition of Transaction Deductions.  The Common Equity Holders shall remit anyamounts shown to be due on such Tax Returns and required to be remitted to theapplicable taxing authorities no later than two (2) Business Days prior to thedue date of such Tax Returns.

##### (ii)           Parent (and itsSubsidiaries and Affiliates) shall not amend any Tax Returns of the Company orits Subsidiaries for any Pre-Closing Period without the prior written consentof the Stockholders’ Representative, which shall not be unreasonably withheld.

### (b)           End of Tax Year.  Parent and the Surviving Corporation shallnot take any action, or permit any action to be taken, that may prevent the taxyear of the Company and its Subsidiaries from ending for federal and applicablestate, local and foreign income tax purposes at the end of the day on theClosing Date, except as otherwise required by applicable law.

### (c)           Filing Dates of Tax Returns.  Without limiting the general provisions ofSection 7.9(a), Parent shall cause the Surviving Corporation to prepare and useall commercially reasonable efforts to file as soon as is practicable(i) an IRS Form 4466, (ii) income Tax Returns for each tax yearending on the Closing Date and (iii) to the extent requested by theStockholders’ Representative, amended income Tax Returns for tax years prior tothe tax year ending on the Closing Date to reflect the carryback of any lossesor deductions from one Pre-Closing Period to another Pre-Closing Period.

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### (d)           Cooperation on Tax Matters.  Parent, the Surviving Corporation and theStockholders’ Representative shall cooperate fully, as and to the extentreasonably requested by the other parties, in connection with the preparationand filing of Tax Returns (including an IRS Form 4466), the preparation andfiling of any amended Tax Return to reflect the carryback of any losses ordeductions from one Pre-Closing Period to another Pre-Closing Period requestedto be filed by Stockholders’ Representative, any Tax audits, Tax proceedings orother Tax-related claims, the authorization and execution of any appropriatepowers of attorney to accomplish the foregoing, allowing the Stockholders’Representative to review Tax Returns to determine or verify the proper amountspayable as refunds hereunder or otherwise payable under Section 7.9(e)(ii), andany mechanisms or payment processes reasonably requested by the Stockholders’Representative to pay refunds (or otherwise make payments pursuant to Section7.9(e)(ii)) to the Common Equity Holders. Such cooperation shall include, upon the Stockholders’ Representative’srequest, providing records and information that are reasonably relevant to anysuch matters, making employees available on a mutually convenient basis toprovide additional information, and explaining any materials provided pursuantto this Section 7.9.  From and after theEffective Time, Parent, the Surviving Corporation and their respectiveSubsidiaries and Affiliates shall not destroy or dispose of any Tax workpapers,schedules or other materials and documents supporting Tax Returns of theCompany and its Subsidiaries for Pre-Closing Periods until expiration theapplicable statute of limitations, without the prior written consent ofStockholders’ Representative, and before any disposition or destruction of suchmaterials at any time, Parent shall give Stockholders’  Representative the opportunity to take possessionof such materials and documents.

### (e)           Tax Refunds and Tax Benefits.

##### (i)            Except as set forth inSection 7.9(f), the Common Equity Holders shall be entitled to all Tax refundsattributable to Pre-Closing Periods (including, without duplication, all Taxrefunds reflected on Tax Returns filed with respect to Pre-Closing Periods, ifand when such refunds are actually received by the Surviving Corporation andits Subsidiaries); provided, however that the Common Equity Holders shall onlybe entitled to Tax refunds to the extent that such Tax refunds (x) exceed theamount, if any, of such  Tax refundsincluded in the Closing Working Capital and taken into account in determiningthe Final Adjustment Amount, (y) do not constitute refunds or rebates of state salesTax or (z) without duplication, were not otherwise taken into account indetermining the amount of Merger Consideration (collectively, “Non-ExcludedTax Refunds”).  Promptly upon receiptof any income Tax refund relating to a Pre-Closing Period (including, withoutlimitation, pursuant to an IRS Form 4466, any income Tax Return for the periodending on the Closing Date and any amended Tax Return with respect to aPre-Closing Period), and in no event later than four (4) Business Days afterreceipt by Parent, the Surviving Corporation or any of their Affiliates andSubsidiaries, Parent will, and will cause the Surviving Corporation and itsSubsidiaries to, deliver and pay over, by wire transfer of immediatelyavailable funds, any portion of such Tax refunds constituting Non-Excluded TaxRefunds to the Stockholders’ Representative (on behalf of the Common EquityHolders for payment to each Common Equity Holder of its Pro Rata Portion ofsuch amounts), net of (A) Taxes required to be withheld on such payment (and ineach 

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##### such case where Tax withholding is sorequired Parent shall cause withholding and remittance of required Taxes to bemade to the appropriate taxing authority) and (B) any Taxes imposed upon suchincome Tax refunds (e.g., Federal income Taxes imposed on the receipt of stateincome Tax refunds), and provide to the Stockholders’ Representative workpapersestablishing the computation of the amount of the net payments.  Parent will, and will cause the SurvivingCorporation and its Subsidiaries to, execute such documents, take reasonableadditional actions and otherwise reasonably cooperate as may be necessary forParent, the Surviving Corporation and their Subsidiaries to perfect theirrights in and obtain the Tax refunds contemplated by this Section 7.9.

##### (ii)           The Common EquityHolders shall be entitled to the value of all Tax benefits relating toTransaction Deductions (whenever such Transaction Deductions are realized) thatare available to offset income (including through carryforwards) of a Post-ClosingPeriod of the Company, Parent, or any of their respective Subsidiaries,Affiliates or successors as and when such Transaction Deductions result in anactual reduction in Post-Closing Period income Taxes of the SurvivingCorporation and its Subsidiaries that would have been payable in the absence ofboth (i) such Transaction Deduction and (ii) net operating losses and creditsarising in any Post-Closing Period. Promptly upon (and no later than four (4) Business Days after) thefiling of any Tax Return that includes the Company, Parent, or any of theirrespective Subsidiaries, Affiliates or successors on which any TransactionDeductions are taken into account to reduce the Tax liability of the Company,Parent, or any of their respective Subsidiaries, Affiliates or successors,Parent will deliver and pay over, by wire transfer of immediately availablefunds, the Post-Closing Tax Benefit to the Stockholders’ Representative (onbehalf of the Common Equity Holders for payment to each Common Equity Holder ofits Pro Rata Portion of such amounts), net of Taxes required to be withheld onsuch payment.  In each case where Taxwithholding is so required, Parent shall cause withholding and remittance ofrequired Taxes to be made to the appropriate taxing authority and provide tothe Stockholders’ Representative workpapers establishing the extent to whichthe Transaction Deductions were utilized on such Tax Return and the computationof the amount of the net payments no later than four (4) Business Days afterthe filing of each Tax Return on which available Transaction Deductions couldbe utilized until such Transaction Deductions have been fully utilized.

### (f)            Transfer Taxes.  Parent, on the one hand, and the ResponsibleCommon Equity Holders, on the other hand, shall each be liable for fiftypercent (50%) of any transfer, value added, excise, stock transfer, stamp,recording, registration and any similar Taxes (“TransferTaxes”) that become payable in connection with the Merger and othertransactions contemplated hereby; provided, however, that Parent shall beliable for the New York stock transfer Tax required to be remitted inconnection with the Merger (and Parent shall be entitled to the Tax refund ofsuch Tax).  The applicable parties shallcooperate in filing such forms and documents as may be necessary to permit anysuch Transfer Tax to be assessed and paid on or prior to the Closing Date inaccordance with any available pre sale filing procedure, and to obtain anyexemption or refund of any such Transfer Tax.

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### (g)           Tax Indemnification.  To the extent not remitted by the ResponsibleCommon Equity Holders in accordance with Section 7.9(a)(i), subject to Section9.2(b)(iii), each Responsible Common Equity Holder shall severally (to theextent of its Responsible Pro Rata Portion) but not jointly indemnify theCompany, its Subsidiaries, Parent, and each Parent Affiliate (including theSurviving Corporation) and hold them harmless from and against, any loss,claim, liability expense, or other damage attributable to (i) all Taxes of theCompany and its Subsidiaries for all Pre-Closing Periods, (ii) all Taxes of anymember of any affiliated, consolidated, combined or unitary group of which theCompany or any of its Subsidiaries (or any predecessor of any of the foregoing)is or was a member on or prior to the Closing Date, including pursuant toTreasury Regulations §1.1502-6 or any similar state, local or foreign law orregulation, (iii) all Taxes of any person (other than the Company, itsSubsidiaries and their respective predecessors) imposed on the Company or anyof its Subsidiaries as a transferee or successor (by contract or pursuant toany law, rule or regulation), which Taxes relate to an event or transactionoccurring before the Closing and (iv) the disallowance or other lack ofavailability of any Transaction Deductions for use on a Post-Closing Tax Return(but only to the extent that the Common Equity Holders in fact were paid aPost-Closing Tax Benefit with respect to such Transaction Deductions);provided, however, the Responsible Common Equity Holders (A) shall not beliable for any Taxes attributable to transactions outside the ordinary courseof business occurring after the Closing and not expressly contemplated by thisAgreement, (B) shall otherwise be liable only to the extent that such Taxes (x)exceed the amount, if any, reserved for such Taxes (excluding any reserve fordeferred Taxes established to reflect timing difference between book and Taxincome) in the Closing Working Capital and taken into account in determiningthe Final Adjustment Amount or (y) were not taken into account in determiningthe amount of Merger Consideration pursuant to Section 2.1(d)(iii)(F), and (C)shall be entitled to offset the liability for Taxes of any Pre-Closing Periodwith any Tax attributes arising in or with respect to a Pre-Closing Period tothe extent such Tax attributes have not been and will not be reflected in theMerger Consideration (and, for the avoidance of doubt, any such Tax attributeused to offset the Common Equity Holders’ obligations under this Section 7.9(g)without regard to this subclause (C) shall not provide the basis for anyadditional payment to the Common Equity Holders under this Agreement).  The Responsible Common Equity Holders shallreimburse Parent for any Taxes of the Company and/or any of its Subsidiariesthat are the responsibility of the Responsible Common Equity Holders pursuantto this Section 7.9 within five (5) Business Days after payment of such Taxesby Parent, the Company or its Subsidiaries.

### (h)           Tax Contests.  If subsequent to the Closing, Parent, theCompany, or any of their respective Subsidiaries or Affiliates receives noticeof a Tax Contest with respect to any Taxes (or other indemnifiable amountrelating to Taxes) for which the Responsible Common Equity Holders may beliable pursuant to Section 7.9(g) or otherwise under this Agreement, thenwithin ten (10) days after receipt of such notice, Parent shall notify theStockholders’ Representative of such notice in writing.  The Stockholders’ Representatives shall havethe right to control the conduct and resolution of such Tax Contest, provided,however, that the Stockholders’ Representative shall not enter into anysettlement or consent to the entry of any judgment with any Taxing authority inconnection with any such Tax Contest without Parent’s written consent, whichconsent shall not be unreasonably withheld, delayed or conditioned.  If the Stockholders’ Representative shallhave the right to control the conduct and resolution of such Tax Contest butelects in writing not to do so, then Parent shall have the right to control theconduct and resolution of such Tax Contest, provided that Parent shall keep theStockholders’ 

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### Representative informed of all developments on a timely basis andParent shall not enter into any settlement or consent to the entry of anyjudgment with any Taxing authority in connection with any such Tax Contestwithout Stockholders’ Representative’s written consent, which shall not beunreasonably withheld, delayed, or conditioned. Each party shall bear its own costs for participating in any such TaxContest.  “Tax Contest” means anyaudit, other administrative proceeding or inquiry or judicial proceedinginvolving a Tax or Tax Return.

**Section7.10.****        Books andRecords.**  Each of Parent andMergerCo shall use its commercially reasonable efforts, and shall cause theSurviving Corporation and each of the Company’s Subsidiaries to use itscommercially reasonable efforts to, until the seventh anniversary of theClosing Date, retain all material books, records and other documents pertainingto the business of the Company and its Subsidiaries in existence on the ClosingDate and to make the same available for inspection and copying by theStockholders or any of the representatives of such Stockholders at the expenseof such Stockholders during the normal business hours of Parent, MergerCo, theSurviving Corporation or such Subsidiary, as applicable, upon reasonablerequest and upon reasonable notice.  Theforegoing Persons shall use their respective commercially reasonable efforts toprevent any such books, records or documents from being destroyed after theseventh anniversary of the Closing Date without first advising the Stockholders’Representative in writing and giving such Persons, on behalf of theStockholders a reasonable opportunity to obtain possession or copies thereof.

**Section7.11.****        FurtherAction.**  Each of the partieshereto shall use its respective commercially reasonable efforts to take orcause to be taken all appropriate action, do or cause to be done all thingsnecessary, proper or advisable and execute and deliver such documents and otherpapers, as may be required to carry out the provisions of this Agreement andconsummate and make effective the transactions contemplated by this Agreement.

# **ARTICLEVIII**

# **CONDITIONSTO THE MERGER**

**Section8.1.****           Conditionsto the Obligations of Each Party to Effect the Closing.**  The respective obligations of each party toeffect the Closing are subject to the fulfillment or waiver by consent of theother party, where permissible, as of the Effective Time, of each of thefollowing conditions:

#### (a)           Stockholder Approval.  This Agreement shall have been adopted andapproved by the affirmative vote of the Stockholders as required by the DGCL,the Certificate of Incorporation and the By-Laws.

#### (b)           Hart-Scott-RodinoAct.  The waiting period (and anyextension thereof) applicable to the consummation of the Merger under the HSRAct shall have expired or been terminated.

#### (c)           No Injunctions, Ordersor Restraints; Illegality.  Nopreliminary or permanent injunction or other order, decree or ruling issued bya court or other 

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#### Governmental Authority of competentjurisdiction nor any statute, rule, regulation or executive order promulgatedor enacted by any Governmental Authority of competent jurisdiction shall be ineffect which would have the effect of (i) making the consummation of theMerger illegal or (ii) otherwise prohibiting the consummation of theMerger.

**Section8.2.****           AdditionalConditions to Obligations of Parent and MergerCo.**  The obligations of Parent and MergerCo toeffect the Closing are further subject to the satisfaction of the followingconditions as of the Effective time, any one or more of which may be waived byParent and MergerCo at or prior to the Effective Time:

#### (a)           Representations andWarranties.  The representations andwarranties of the Company set forth in this Agreement (and the Schedules andcertificates delivered hereunder by or on behalf of any such Persons) shall betrue and correct as of the Closing Date (except to the extent suchrepresentations and warranties expressly relate to a specific earlier date inwhich case such representations and warranties shall be true and correct as ofsuch date) without giving effect to any Schedule Supplement and without givingeffect to any limitation or qualification as to “materiality” (including theword “material”) or “Company Material Adverse Effect” set forth therein, exceptfor such inaccuracies that would not have, individually or in the aggregate, aCompany Material Adverse Effect.

#### (b)           Performance andObligations of the Company.  TheCompany shall have performed or complied with in all material respects allagreements and covenants required by this Agreement to be performed or compliedwith by it on or prior to the Effective Time.

#### (c)           Officer’sCertificate.  The Company shall havedelivered a certificate of an authorized officer of the Company, dated as ofthe Closing Date, certifying as to (i) the incumbency of officers of the Companyexecuting documents executed and delivered in connection herewith,(ii) the copies of the Certificate of Incorporation and By-Laws and thecertificates of incorporation and by-laws of each of the Company’sSubsidiaries, each as in effect from the Original Date until the Closing Date,(iii) a copy of the votes of the Company Board and Stockholdersauthorizing and approving the applicable matters contemplated hereunder, (iv)the satisfaction of each of the conditions set forth in Sections 8.2(a) and 8.2(b)and (v) with respect to the Company and each of its Subsidiaries, certificatesof the secretary of state of the jurisdiction in which such Person isincorporated or organized and each jurisdiction in which such Person isqualified to do business stating that such Person is in good standing.

#### (d)           Third Party Consents.  The consents or approvals of all Persons setforth in Schedule 8.2(d) shall have beenobtained on terms reasonably satisfactory to Parent and shall be in full forceand effect.

#### (e)           No Company MaterialAdverse Effect.  From the OriginalDate to the Closing Date, there shall have been no Company Material AdverseEffect.

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#### (f)            Financing.

##### (i)            The Equity Financingcontemplated by the Equity Commitment Letter will have been consummatedsubstantially in accordance with the terms thereof.

##### (ii)           The Debt Financingcontemplated by the Debt Commitment Letters (including, without limitation, theexecution and delivery of definitive agreements with respect to all of theFacilities (as defined in the CS Commitment Letter) containing substantiallythe terms and conditions set forth in the CS Commitment Letter) will have beenconsummated substantially in accordance with the terms thereof, subject to thequalifications set forth in Section 5.4.

#### (g)           Legal Opinion.  The Parent and MergerCo shall have receivedan opinion, dated as of the Closing Date, of Goodwin Procter LLP, counsel tothe Company, substantially in the form set forth on Exhibit D attachedhereto.

#### (h)           Escrow Agreement.  Each party to the Escrow Agreement (otherthan Parent) shall have entered into and delivered to Parent, as of theClosing, the Escrow Agreement and the Escrow Agreement shall be in full forceand effect.

#### (i)            FIRPTA Certificate.  The Company shall have delivered to Parent anaffidavit, under penalties of perjury, stating that the Company is not and hasnot been a United States real property holding corporation, dated as of theClosing Date and in form and substance necessary to meet the requirements ofTreasury Regulation §§1.1445-2(c)(3)(i) and 1.897-2(h).

#### (j)            Real PropertyDeliveries.  Parent shall havereceived such title insurance policies, title commitments and surveys withrespect to the Owned Real Property as the Parent may reasonably request orrequire, in each case in form and substance reasonably satisfactory to theParent.

#### (k)           Indemnification.  Common Equity Holders holding (i) at least90% of the Voting Common Stock outstanding as of immediately prior to theEffective Time and at least 90% of the Nonvoting Common Stock outstanding as ofimmediately prior to the Effective Time, including all institutional investorswho are holders of Voting Common Stock or Nonvoting Common Stock  and (ii) in the aggregate 95% of the VotingCommon Stock and Nonvoting Common Stock outstanding as of immediately prior tothe Effective Time (assuming the exercise of all vested Options as of immediatelyprior to the Effective Time), including all institutional investors who areholders of Voting Common Stock or Nonvoting Common Stock, shall have executedand delivered the Common Equity Holders Agreement in the form attached heretoas Exhibit E (the “Common Equity Holders Agreement”).

#### (l)            Resignations.  All of the directors of the Company and itsSubsidiaries shall have resigned as such effective as of the Closing Date and,except as otherwise specified in writing by Parent to the Stockholders’Representative prior to Closing, all of the officers of the Company and itsSubsidiaries.

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#### (m)          Stockholder Dissent.  Holders ofnot more than five percent (5%) of the Company Stock shall have exercised andperfected, or be eligible to exercise and perfect, appraisal rights inaccordance with Section 262 of the DGCL.

#### (n)           Prior WrittenConsent.  A true and correct copy ofthe executed irrevocable Prior Written Consent adopting and approving theOriginal Agreement, and constituting the Necessary Stockholder Approvaltherefor, shall have been delivered to Parent no later than the second businessday following the Original Date.

#### (o)           Written Consent.  A true and correct copy of the executedirrevocable Written Consent adopting and approving this Agreement, andconstituting the Necessary Stockholder Approval therefor, shall be delivered toParent no later than the first business day following the date hereof.

**Section8.3.****           AdditionalConditions to Obligations of the Company.**  The obligation of the Company to effect theClosing is further subject to the satisfaction of the following conditions asof the Effective Time, any one or more of which may be waived by the Company ator prior to the Effective Time:

#### (a)           Representations andWarranties.  The representations andwarranties of Parent and MergerCo set forth in this Agreement (and theSchedules and certificates delivered hereunder by or on behalf of any suchPersons) shall be true and correct as of the Closing Date (except to the extentsuch representations and warranties expressly relate to a specific earlier datein which case such representations and warranties shall be true and correct asof such date) without giving effect to any limitation or qualification as to “materiality”(including the word “material”) or “Parent Material Adverse Effect” set forth therein,except for such inaccuracies as, individually or in the aggregate, would nothave a Parent Material Adverse Effect.

#### (b)           Performance ofObligations of Parent and MergerCo. Each of Parent and MergerCo shall have performed or complied with in allmaterial respects all agreements and covenants required by this Agreement to beperformed or complied with by it on or prior to the Effective Time.

#### (c)           Officer’sCertificate.  Each of Parent andMergerCo shall have delivered a certificate of an authorized officer, dated asof the Closing Date, certifying as to (i) the incumbency of its officersexecuting documents executed and delivered in connection herewith,(ii) copies of their respective incorporation documents as in effect as ofthe Closing Date, (iii) a copy of the votes of their respective boards ofdirectors (and in the case MergerCo the resolutions of Parent as its solestockholder) authorizing and approving the applicable matters contemplatedhereunder, (iv) the satisfaction of each of the conditions set forth inSections 8.3(a) and 8.3(b) and (v) certificates of the secretary of state ofthe jurisdiction in which such Person is incorporated or organized and eachjurisdiction in which such Person is qualified to do business stating that suchPerson is in good standing.

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#### (d)           Payment ofAccelerated Earnout Payments.  Parentand MergerCo shall have paid all Accelerated Earnout Payments at the EffectiveTime.

#### (e)           Legal Opinion.  The Common Equity Holders shall have receivedan opinion, dated as of the Closing Date, of Kirkland & Ellis LLP, counselto Parent and MergerCo, substantially in the form set forth on Exhibit Fattached hereto.

#### (f)            Escrow Agreement.  Each party to the Escrow Agreement (otherthan Stockholders’ Representative) shall have entered into and delivered to theStockholders’ Representative, as of the Closing, the Escrow Agreement and theEscrow Agreement shall be in full force and effect.

# **ARTICLEIX**

# **SURVIVALOF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION**

**Section9.1.****           Survival.**  All representations, warranties, covenantsand agreements in this Agreement (including the Schedules hereto) and in anycertificate delivered in connection with this Agreement or the transactionscontemplated hereby shall survive the Closing, except for the representationand warranty made in Section 4.8(j), which shall not survive the Closing.  Notwithstanding the foregoing, no party tothis Agreement shall be entitled to recover for any Losses (as defined inSection 11.6) pursuant to Section 9.2(a)(i) or Section 9.3(a)(i) unless writtennotice of a claim thereof is delivered to the indemnifying party (or itsdesignee) prior to the Applicable Limitation Date (in which case, for theavoidance of doubt, such claim shall survive until the claim forindemnification and the matter upon which such claim for indemnification wasbrought have been finally resolved).  Forpurposes of this Agreement, the term “Applicable Limitation Date” shallmean the later of (i) the fifteen (15) month anniversary of the Closing Dateand (ii) the date that is twenty (20) Business Days after the completion of theaudited consolidated balance sheets of the Company and its Subsidiaries as ofDecember 31, 2007, and consolidated statements of income, changes instockholders’ equity and cash flows for the year then ended; provided, thatParent notifies the Stockholders’ Representative within five (5) Business Daysafter the Parent’s or the Surviving Corporations’ receipt of such financialstatements; and provided, further, that with respect to any Losses arising fromor related to a breach of any Fundamental Seller Representation or anyFundamental Parent Representation, the Applicable Limitation Date shall be thethree (3) year anniversary of the Closing Date. Notwithstanding anything in this ArticleIX to the contrary, in the event that any party suffers any Losses byreason of another party’s intentional misrepresentation or fraud, such partyshall be entitled to seek recovery therefor without regard to any limitationset forth in this Agreement (whether a temporal limitation, a dollar limitationor otherwise).

**Section9.2.****           Parent/MergerCoIndemnification.**

### (a)           Subject to the other terms and conditions ofthis Agreement, Parent, MergerCo and their respective Affiliates (including,from and after the Effective Time, the Surviving Corporation and itsSubsidiaries) and their officers, directors, employees, agents andrepresentatives and their respective heirs, successors and assigns (each a “Parent/MergerCo 

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### Indemnified Party”)shall be held harmless and indemnified by the Responsible Common Equity Holders(and, if the Closing does not occur, the Company) to the extent of any Lossesrelated to or resulting from (i) the breach of any representation orwarranty of the Company contained in this Agreement, the Schedules heretoand/or in any certificate delivered by or on behalf of the Company inconnection with this Agreement, except for the representation and warranty madein Section 4.8(j) for which no Parent MergerCo Indemnified Party shall have anyright to indemnification, (ii) any breach of any covenant or agreement of theCompany or the Stockholders’ Representative contained in this Agreement, theSchedules hereto and/or in any certificate delivered by or on behalf of theCompany or the Stockholders’ Representative in connection with this Agreement,(iii) any of the matters set forth on Schedule 9.2 attached hereto and(iv) the exercise by any stockholder of the Company of any dissenter’s orappraisal rights in connection with the transactions contemplated hereby andany claims against the Company and/or the Company Board related thereto;provided, however, that the Parent/MergerCo Indemnified Party shall only beheld harmless and indemnified under (iv) above for the amount by which suchLosses exceed the portion of the Merger Consideration that would have been paidhereunder to the stockholder or stockholders exercising dissenter’s orappraisal rights in connection with the transactions contemplated hereby.

Notwithstanding anythingto the contrary contained herein, for purposes of determining whether there hasbeen a breach and the amount of any Losses that are the subject matter of aclaim for indemnification under this Section 9.2, the amount of Lossesassociated with the Mini-Threshold (as defined in Section 9.2(b)), theThreshold (as defined in Section 9.2(b)), the Deductible (as defined in Section9.2(b)) and the Indemnification Cap shall be used as the materiality standardfor such purposes hereunder as applied to the Company, the Stockholders’ Representativeand the Responsible Common Equity Holders and, therefore, each representation,warranty and other provision contained in this Agreement, the Schedules andeach certificate delivered by or on behalf of the Company and/ the Stockholders’Representative to Parent and/or MergerCo with respect thereto in connectionwith the Closing (other than Sections 4.5 and 4.6(b)(i)) shall be read for suchpurposes without regard and without giving effect to any qualificationregarding materiality, Company Material Adverse Effect or similar qualificationcontained in a representation, warranty or covenant (as if such standard orqualification were deleted from such representation, warranty and covenant).

### (b)           The Parent/MergerCo Indemnified Parties’indemnification rights pursuant to Section 9.2(a) and Section 9.7 shall belimited as follows:

##### (i)            The Parent/MergerCoIndemnified Parties shall not be entitled to any indemnification until theaggregate dollar amount of all Losses that would otherwise be indemnifiablepursuant to Section 9.2(a)(i) exceeds $2,000,000 (the “Threshold”),and in which case the Responsible Common Equity Holders will only be liable forall such indemnifiable Losses in excess of $1,000,000 (the “Deductible”); provided, however, that no Lossesmay be claimed by any of the Parent/MergerCo Indemnified Parties or shall bereimbursable by the Responsible Common Equity Holders or shall be included incalculating the aggregate Losses for purposes of this clause (i) other thanLosses in excess of $50,000 resulting from any single claim or aggregatedclaims arising out of the same facts, events or circumstances (the “Mini-Threshold”),provided that Losses in excess of the 

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##### Mini-Threshold shall be fully recoverablefrom dollar one (subject to the Threshold and the Deductible).

##### (ii)           The Parent/MergerCoIndemnified Parties shall not be entitled to any indemnification for any amountof indemnifiable Losses under Section 9.2(a)(i) in excess of $22,500,000 (the “Indemnification Cap”).

##### (iii)          Notwithstanding any provisionherein to the contrary, the limitations set forth in Section 9.2(b)(i) andSection 9.2(b)(ii) shall not apply in respect of any Losses with respect to anybreach of a Fundamental Seller Representation, any claims for Losses underSection 9.2(a)(ii), any claims for Losses under Section 9.2(a)(iii), any claimsfor Losses under Section 9.2(a)(iv) or any claims for Losses under Section 9.7;provided, that no Responsible Common Equity Holder shall be obligated toindemnify a Parent/MergerCo Indemnified Party under this Article IX for anyamount in excess of the full amount of the consideration received by suchResponsible Common Equity Holder pursuant to this Agreement in respect of suchResponsible Common Equity Holder’s Company Stock and Options (including thevalue at Closing of any equity securities received by any Rollover Participantin exchange for such Rollover Participant’s Rollover Shares).  All amounts to be paid by a ResponsibleCommon Equity Holder to any Parent/MergerCo Indemnified Party on account of theindemnity provision set forth in Section 9.2(a) or with respect to any claimfor fraud will first be satisfied from such Responsible Common Equity Holder’sPro Rata Portion of the then remaining balance of the Escrow Account andthereafter by such Responsible Common Equity Holder.

##### (iv)          Except as otherwiseprovided in this Section 9.2(b)(iv), in no event shall any Responsible CommonEquity Holder be obligated to indemnify a Parent/MergerCo Indemnified Party forany Loss pursuant to this Article IX in excess of such Responsible CommonEquity Holder’s Responsible Pro Rata Portion of such Loss, nor, to the extentthat Section 9.2(b)(ii) applies, shall any Responsible Common Equity Holder beobligated to indemnify a Parent/MergerCo Indemnified Party hereunder for anyamount in excess of such Responsible Common Equity Holder’s Responsible ProRata Portion of the Indemnification Cap. Any claims for indemnification under Section 9.2(a)(i), Section9.2(a)(ii), Section 9.2(a)(iii), Section 9.2(a)(iv) and/or Section 9.7 shall bemade against all of the Responsible Common Equity Holders, and shall be madeagainst all such Responsible Common Equity Holders at the same time.

##### (v)           No indemnificationshall be payable to a Parent/MergerCo Indemnified Party with respect to claimsasserted by such Parent/MergerCo Indemnified Party pursuant to Section 9.2(a)or Section 9.7 after the Applicable Limitation Date (if any) applicable to suchclaim.

##### (vi)          Except as otherwiseprovided herein, in no event shall any Responsible Common Equity Holder beobligated to indemnify a Parent/MergerCo Indemnified Party for any Loss underSection 9.7 for a period of 

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##### nine (9) months after the making by any suchParent/MergerCo Indemnified Party of the claim therefor (during which period suchParent/MergerCo Indemnified Party shall use its commercially reasonable effortsto pursue all available remedies with respect to such claim under Section 7.4of the Dimension Moldings APA (as defined in Section 9.7), at the expense andcost of the Responsible Common Equity Holders, which costs and expenses shallbe promptly reimbursed by such Responsible Common Equity Holders as and whenincurred by the Parent/MergerCo Indemnified Parties).

##### (vii)         In no event shall anyCommon Equity Holder be obligated to indemnify a Parent/MergerCo IndemnifiedParty for any Loss under Section 9.2(a)(iii) with respect to Item 4 and Item 5set forth on Schedule 9.2, unless written notice of a claim thereof isdelivered to the Stockholders’ Representative on or before the third (3rd) anniversary of the ClosingDate, which date shall be the Applicable Limitation Date for any such claim.

### (c)           The amount of any Loss subject toindemnification under this Section 9.2 and/or Section 9.7 shall be calculatednet of (i) any Loss Tax Benefit (as defined below) actually realized bythe Parent/MergerCo Indemnified Party in the taxable year in which such Loss isincurred or in any of the immediately subsequent two taxable years and(ii) any net insurance proceeds actually received by the Parent/MergerCoIndemnified Party on account of such Loss (determined after giving effect toany increase in premiums and/or Taxes resulting therefrom).  If the Parent/MergerCo Indemnified Partyreceives a Loss Tax Benefit after an indemnification payment is made to it, theParent/MergerCo Indemnified Party shall promptly pay to the Person or Personsthat made such indemnification payment the amount of such Loss Tax Benefit atsuch time or times as and to the extent that such Loss Tax Benefit is realizedby the Parent/MergerCo Indemnified Party (such amount(s) not to exceed in theaggregate the amount of the indemnification payment made to suchParent/MergerCo Indemnified Party on account of such indemnified Loss).  For purposes hereof, “Loss Tax Benefit” shall mean any refund ofTaxes paid or reduction in the amount of Taxes which otherwise would have beenpaid to the recipient, less the amount of Tax detriment suffered by theParent/MergerCo Indemnified Party, or the Company Indemnified Party, as thecase may be, which increases the amount of Taxes payable or reduces the amountof any refund of Tax which would otherwise have been available.  The Parent/MergerCo Indemnified Party shalluse its commercially reasonable efforts to seek full recovery under all insurancepolicies covering any Loss to the same extent as they would if such Loss werenot subject to indemnification hereunder (provided that the foregoing shall inno manner limit the right of any Parent/MergerCo Indemnified Party to pursueany claim for indemnification hereunder at any time).  In the event that an insurance or otherrecovery from a third party is made by any Parent/MergerCo Indemnified Partywith respect to any Loss for which any such Person has been indemnifiedhereunder, then a refund equal to the aggregate amount of the recovery shall bemade promptly to the Person or Persons that provided such indemnity payments tosuch Parent/MergerCo Indemnified Party (such amount(s) not to exceed in theaggregate the amount of the indemnification payment made to suchParent/MergerCo Indemnified Party on account of such indemnified Loss).  The indemnifying party shall be subrogated toall rights of the Parent/MergerCo Indemnified Party in respect of any Loss borneby the indemnifying party.

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### (d)           In the event that a Parent/MergerCoIndemnified Party claims a right of indemnification hereunder, such Personshall give the Stockholders’ Representative written notice of any claim,assertion, event or proceeding as to which such Parent/MergerCo Indemnified Partymay request indemnification hereunder or as to which the Mini-Threshold,Threshold or Deductible may be applied (the “Indemnification Claim Notice”)as soon as reasonably is practicable and in any event prior to the expirationof the Applicable Limitation Date, along with a good faith estimate of thepotential Loss in connection with such claim, assertion, event or proceeding(if estimable at the time of delivery of such Indemnification Claim Notice)and, in the case of a third party claim, copies of all notices, communicationsand other documents in the possession or control of any Parent/MergerCoIndemnified Party related to such claim, assertion, event or proceeding, assoon as reasonably practicable after delivery of the Indemnification ClaimNotice related thereto; provided, that thefailure to provide the Indemnification Claim Notice shall not release theCommon Equity Holders from any of their obligations under this Article IXexcept to the extent that the Common Equity Holders against whom indemnificationis sought are materially prejudiced by such failure.

### (e)           Withrespect to third party claims, the Stockholders’ Representative shall have theright to direct, through counsel of its own choosing (and reasonably acceptableto the Parent/MergerCo Indemnified Party), the defense and settlement of anysuch claim or proceeding at its own expense, such expense to be paid by theResponsible Common Equity Holder based on each Responsible Common Equity Holder’sPro Rata Portion; provided, that the Stockholders’ Representative shall havesixty (60) days after receipt of the Indemnification Claim Notice with respectthereto to notify the applicable Parent/MergerCo Indemnified Party if theStockholders’ Representative has elected to assume the defense of any suchthird party claim; provided, further, that the Stockholders’ Representative may not so elect without the applicableParent/MergerCo Indemnified Party’sconsent unless (a) the Stockholders’ Representative acknowledges in writing andcauses the Responsible Common Equity Holder(s) against whom indemnification issought to acknowledge in writing (with no reservation of rights) the obligationof the indemnifying parties to indemnify the Parent/MergerCo IndemnifiedParties for all Losses relating to suchthird party claim (subject to the applicable limitations on indemnity set forthin this Article IX (i.e., the Mini-Threshold, Threshold, Deductible and theIndemnification Cap, if applicable)) and (b) the applicable indemnifyingparty(ies) provide reasonable evidence to the Parent/MergerCoIndemnified Parties of the financialability of the indemnifying party(ies) to satisfy their indemnificationobligations).  If the Stockholders’Representative is entitled to and elects to assume the defense of any suchclaim or proceeding, the Stockholders’ Representative shall consult with theParent/MergerCo Indemnified Party for the purpose of allowing theParent/MergerCo Indemnified Party to participate in such defense or settlement,but in such case the expenses of the Parent/MergerCo Indemnified Party shall bepaid by the Parent/MergerCo Indemnified Party and shall not be recoverable aspart of any indemnification claim.  AParent/MergerCo Indemnified Party shall provide and shall cause the Company toprovide, as applicable, the Stockholders’ Representative and counsel withreasonable access to its records and personnel relating to any such claim,assertion, event or proceeding during normal business hours and shall otherwisecooperate with the Stockholders’ Representative (at the Stockholders’Representative’s expense) in the defense thereof.  If the Stockholders’ Representative isentitled to and elects to direct the defense of any such claim or proceeding,Parent/MergerCo Indemnified Party shall not pay, or permit to be paid, any partof any claim or demand arising from such asserted liability unless theStockholders’ Representative consents in writing to such 

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### payment (suchconsent not to be unreasonably withheld). If the Stockholders’ Representative fails to timely elect to undertakethe defense of any such third party claim, is not entitled to conduct thedefense of any such claim, fails to defend any such claim or if, aftercommencing or undertaking any such defense, the Stockholders’ Representativefails to prosecute or withdraws from the defense of such claim, Parent/MergerCoIndemnified Party shall have the right to undertake the defense or settlementthereof at the expense of the Responsible Common Equity Holders.  In the event that the Stockholders’Representative shall be entitled to and assumes the defense of any such thirdparty claim, the Stockholders’ Representative shall not, without the priorwritten consent of the applicable Parent/MergerCo Indemnified Party(ies),settle or compromise any such third party claim or consent to entry of anyjudgment with respect thereto (i) which does not include an unconditionalrelease (with prejudice) by the Person or Persons asserting such third partyclaim to all applicable Parent/MergerCo Indemnified Parties from all Losseswith respect to such claim and all other claims arising out of the same orsimilar facts and circumstances, (ii) if pursuant to or as a result of suchsettlement, compromise or consent to entry of judgment, injunctive or otherequitable relief will be imposed against any Parent/MergerCo Indemnified Partyor any of its Affiliates, (iii) which contains any admission of wrongdoing orliability on behalf of any Parent/MergerCo Indemnified Party or (iv) whichinvolves any matter related to Taxes.  Inthe event the Stockholders’ Representative assumes the defense of a third partyclaim, any and all indemnifiable Losses paid in connection with such claimshall be borne by the Responsible Common Equity Holders based on eachResponsible Common Equity Holder’s Responsible Pro Rata Portion.

### Notwithstandingany provision in this Section 9.2(e) to the contrary, the Stockholders’Representative shall not have the right to assume and/or maintain, asapplicable, control of the defense of any such third party claim under thisSection 9.2(e) if any such third party claim (i) seeks non-monetary relief,(ii) involves criminal allegations, (iii) involves a third party claim which,upon petition by the Parent/MergerCo Indemnified Parties, the appropriate courtrules that the Stockholders’ Representative failed or is failing to vigorouslydefend and/or (iv) involves Losses that are reasonably expected to exceed themaximum amount for which the applicable indemnifying parties could be liableunder this Section 9.2.

### (f)            With respect to any non-third party claimfor indemnification hereunder, if the parties are unable to negotiate asettlement of such claim, then such claim shall be resolved in accordance withSection 11.9.

### (g)           No Parent/MergerCo Indemnified Party shallbe entitled to indemnification hereunder for any Loss arising from a breach ofany representation, warranty, covenant or agreement set forth herein (and theamount of any Loss incurred in respect of such breach shall not be included inthe calculation of any limitations on indemnification set forth herein) to theextent that such liability is included as a current liability in the ClosingWorking Capital (as finally determined hereunder).

### (h)           Subject to Section 9.1, anything herein tothe contrary notwithstanding, no breach of any representation, warranty,covenant or agreement contained herein shall give rise to any right on the partof Parent, MergerCo or a Parent/MergerCo Indemnified Party, after theconsummation of the transactions contemplated hereby, to rescind this Agreementor any of the transactions contemplated hereby.

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### (i)            The Parent/MergerCo Indemnified Partiesshall not be entitled to indemnification under this Article IX for anyexemplary or punitive damages (except to the extent awarded to thirdparties).  Parent, MergerCo and eachParent/MergerCo Indemnified Party shall take all commercially reasonable stepsto mitigate Losses for which indemnification may be claimed by them pursuant tothis Agreement upon and after becoming aware of any event that could reasonablybe expected to give rise to any such Losses.

### (j)            Subject to the proviso of this sentence,any liability for indemnification under this Article IX shall be determinedwithout duplication of recovery by reason of the state of facts giving rise tosuch liability constituting a breach of more than one representation, warranty,covenant or agreement; it being understood and agreed that the parties intendthat each representation, warranty, and covenant contained herein shall haveindependent significance and, therefore, if any party has breached anyrepresentation, warranty, or covenant contained herein in any respect, the factthat there exists another representation, warranty, or covenant relating to thesame subject matter (regardless of the relative levels of specificity) whichthe party has not breached shall not detract from or mitigate the fact that theparty is in breach of the first representation, warranty, or covenant.

**Section9.3.****           Indemnificationby Parent and MergerCo.**

### (a)           Subject to the other terms and conditions ofthis Agreement, the Common Equity Holders (and, if the Closing does not occur,the Company) and their officers, directors, employees, agents andrepresentatives and their respective heirs, successors and assigns (each a “Company Indemnified Party”) shall be heldharmless and indemnified by Parent and MergerCo (and, if the Closing doesoccur, the Surviving Corporation) to the extent of any Losses related to orresulting from (i) the breach of any representation or warranty of Parent orMergerCo contained in this Agreement, the Schedules hereto and/or in anycertificate delivered by or on behalf of Parent or MergerCo in connection withthis Agreement and (ii) any breach of any covenant or agreement of Parent orMergerCo contained in this Agreement, the Schedules hereto and/or in anycertificate delivered by or on behalf of Parent or MergerCo in connection withthis Agreement.

Notwithstanding anythingto the contrary contained herein, for purposes of determining whether there hasbeen a breach and the amount of any Losses that are the subject matter of aclaim for indemnification under this Section 9.3, the amount of Lossesassociated with the Mini-Threshold, Threshold, the Deductible and theIndemnification Cap shall be used as the materiality standard for such purposeshereunder as applied to Parent and MergerCo and, therefore, eachrepresentation, warranty and other provision contained in this Agreement, theSchedules and each certificate delivered by or on behalf of Parent and MergerCoto the Company, the Stockholders’ Representative and/or the Common EquityHolders with respect thereto in connection with the Closing shall be read forsuch purposes without regard and without giving effect to any qualificationregarding materiality, Parent Material Adverse Effect or similar qualificationcontained in a representation, warranty or covenant (as if such standard orqualification were deleted from such representation, warranty and covenant).

### (b)           The Company IndemnifiedParties’ indemnification rights pursuant to Section 9.3(a) shall be limited asfollows:

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##### (i)            TheCompany Indemnified Parties shall not be entitled to any indemnification untilthe aggregate dollar amount of all Losses that would otherwise be indemnifiablepursuant to Section 9.3(a)(i) exceeds the Threshold, and in which case Parent,MergerCo and the Surviving Corporation will only be liable for all suchindemnifiable Losses in excess of the Deductible;provided, however, that no Losses may be claimed by any of the Company IndemnifiedParties or shall be reimbursable by Parent, MergerCo and the SurvivingCorporation or shall be included in calculating the aggregate Losses forpurposes of this clause (i) other than Losses in excess of the Mini-Threshold,provided that Losses in excess of the Mini-Threshold shall be fully recoverablefrom dollar one (subject to the Threshold and the Deductible).

##### (ii)           TheCompany Indemnified Parties shall not be entitled to any indemnification forany amount of indemnifiable Losses under Section 9.3(a)(i) in excess of the IndemnificationCap.

##### (iii)          Notwithstandingany provision herein to the contrary, the limitations set forth in Section9.3(b)(i) and Section 9.3(b)(ii) shall not apply in respect of any Losses withrespect to any breach of a Fundamental Parent Representation or any claims forLosses under Section 9.3(a)(ii).

##### (iv)          Noindemnification shall be payable to a Company Indemnified Party with respect toclaims asserted by such Company Indemnified Party pursuant to Section 9.3(a)after the Applicable Limitation Date (if any) applicable to such claim.

### (c)           The amount of any Losssubject to indemnification under this Section 9.3 shall be calculated net of(i) any Loss Tax Benefit actually realized by the Company IndemnifiedParty in the taxable year in which such Loss is incurred or in any of theimmediately subsequent two taxable years and (ii) any net insuranceproceeds actually received by the Company Indemnified Party on account of suchLoss (determined after giving effect to any increase in premiums and/or Taxesresulting therefrom).  If the CompanyIndemnified Party receives a Loss Tax Benefit after an indemnification paymentis made to it, the Company Indemnified Party shall promptly pay to the Personor Persons that made such indemnification payment the amount of such Loss TaxBenefit at such time or times as and to the extent that such Loss Tax Benefitis realized by the Company Indemnified Party (such amount(s) not to exceed inthe aggregate the amount of the indemnification payment made to such CompanyIndemnified Party on account of such indemnified Loss).  The Company Indemnified Party shall use itscommercially reasonable efforts to seek full recovery under all insurancepolicies covering any Loss to the same extent as they would if such Loss werenot subject to indemnification hereunder (provided that the foregoing shall inno manner limit the right of any Company Indemnified Party to pursue any claimfor indemnification hereunder at any time). In the event that an insurance or other recovery from a third party ismade by any Company Indemnified Party with respect to any Loss for which anysuch Person has been indemnified hereunder, then a refund equal to theaggregate amount of the recovery shall be made promptly to the Person orPersons that provided such indemnity payments to such Company Indemnified Party(such amount(s) not to exceed in the aggregate the amount of theindemnification payment made to such Company Indemnified Party 

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### on account of such indemnified Loss).  The indemnifying party shall be subrogated toall rights of the Company Indemnified Party in respect of any Loss borne by theindemnifying party.

### (d)           In the event that aCompany Indemnified Party claims a right of indemnification hereunder, suchPerson shall give Parent an Indemnification Claim Notice as soon as reasonablyis practicable and in any event prior to the expiration of the ApplicableLimitation Date, along with a good faith estimate of the potential Loss inconnection with such claim, assertion, event or proceeding (if estimable at thetime of delivery of such Indemnification Claim Notice) and, in the case of athird party claim, copies of all notices, communications and other documents inthe possession or control of any Company Indemnified Party related to suchclaim, assertion, event or proceeding, as soon as reasonably practicable afterdelivery of the Indemnification Claim Notice related thereto; provided, that the failure to provide theIndemnification Claim Notice shall not release Parent, MergerCo or the SurvivingCorporation from any of their obligations under this Article IX except to theextent that the Persons against whom indemnification is sought are materiallyprejudiced by such failure.

### (e)           With respect to third party claims, Parentshall have the right to direct, through counsel of its own choosing (andreasonably acceptable to the Company Indemnified Party), the defense andsettlement of any such claim or proceeding at its own expense, such expense tobe paid by Parent, MergerCo or the Surviving Corporation; provided, that Parentshall have sixty (60) days after receipt of the Indemnification Claim Noticewith respect thereto to notify the applicable Company Indemnified Party ifParent has elected to assume the defense of any such third party claim;provided, further, that Parent may notso elect without the applicable Company Indemnified Party’s consent unless (a) Parent acknowledges inwriting and causes MergerCo or the Surviving Corporation to acknowledge inwriting (with no reservation of rights) the obligation of the indemnifyingparties to indemnify the Company Indemnified Parties for all Losses relating to such third partyclaim (subject to the applicable limitations on indemnity set forth in thisArticle IX (i.e., the Mini-Threshold, Threshold, Deductible and theIndemnification Cap, if applicable)) and (b) the applicable indemnifyingparty(ies) provide reasonable evidence to the Company IndemnifiedParties of the financial ability of theindemnifying party(ies) to satisfy their indemnification obligations).  If Parent is entitled to and elects toassume the defense of any such claim or proceeding, Parent shall consult withthe Company Indemnified Party for the purpose of allowing the CompanyIndemnified Party to participate in such defense or settlement, but in suchcase the expenses of the Company Indemnified Party shall be paid by the CompanyIndemnified Party and shall not be recoverable as part of any indemnificationclaim.  A Company Indemnified Party shallprovide Parent and counsel with reasonable access to its records and personnelrelating to any such claim, assertion, event or proceeding during normalbusiness hours and shall otherwise cooperate with Parent (at Parent’s expense)in the defense thereof.  If Parent isentitled to and elects to direct the defense of any such claim or proceeding,Company Indemnified Party shall not pay, or permit to be paid, any part of anyclaim or demand arising from such asserted liability unless Parent consents inwriting to such payment (such consent not to be unreasonably withheld).  If Parent fails to timely elect to undertakethe defense of any such third party claim, is not entitled to conduct thedefense of any such claim, fails to defend any such claim or if, aftercommencing or undertaking any such defense, Parent fails to prosecute orwithdraws from the defense of such claim, Company Indemnified Party shall havethe right to undertake the defense or settlement thereof at the expense ofParent, MergerCo and/or the Surviving Corporation.  In the event that Parent shall be entitled toand assumes the 

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### defense of any such third party claim, Parent shall not, without theprior written consent of the applicable Company Indemnified Party(ies), settleor compromise any such third party claim or consent to entry of any judgmentwith respect thereto (i) which does not include an unconditional release (withprejudice) by the Person or Persons asserting such third party claim to allapplicable Company Indemnified Parties from all Losses with respect to such claimand all other claims arising out of the same or similar facts andcircumstances, (ii) if pursuant to or as a result of such settlement,compromise or consent to entry of judgment, injunctive or other equitablerelief will be imposed against any Company Indemnified Party or any of itsAffiliates, (iii) which contains any admission of wrongdoing or liability onbehalf of any Company Indemnified Party or (iv) which involves any matterrelated to Taxes.  In the event Parentassumes the defense of a third party claim, any and all indemnifiable Lossespaid in connection with such claim shall be borne by Parent, MergerCo and/orthe Surviving Corporation.

### Notwithstanding any provision in this Section 9.3(e) to the contrary,Parent shall not have the right to assume and/or maintain, as applicable,control of the defense of any such third party claim under this Section 9.3(e)if any such third party claim (i) seeks non-monetary relief, (ii) involvescriminal allegations, (iii) involves a third party claim which, upon petitionby the Company Indemnified Parties, the appropriate court rules that Parentfailed or is failing to vigorously defend and/or (iv) involves Losses that arereasonably expected to exceed the maximum amount for which the applicableindemnifying parties could be liable under this Section 9.3.

### (f)            With respect to anynon-third party claim for indemnification hereunder, if the parties are unableto negotiate a settlement of such claim, then such claim shall be resolved inaccordance with Section 11.9.

### (g)           No Company IndemnifiedParty shall be entitled to indemnification hereunder for any Loss arising froma breach of any representation, warranty, covenant or agreement set forthherein (and the amount of any Loss incurred in respect of such breach shall notbe included in the calculation of any limitations on indemnification set forthherein) to the extent that such liability is included as a current liability inthe Closing Working Capital (as finally determined hereunder).

### (h)           Subject to Section 9.1,anything herein to the contrary notwithstanding, no breach of anyrepresentation, warranty, covenant or agreement contained herein shall giverise to any right on the part of a Common Equity Holder or Company IndemnifiedParty, after the consummation of the transactions contemplated hereby, torescind this Agreement or any of the transactions contemplated hereby.

### (i)            The CompanyIndemnified Parties shall not be entitled to indemnification for any exemplaryor punitive damages (except to the extent awarded to third parties).  The Common Equity Holders and each CompanyIndemnified Party shall take all commercially reasonable steps to mitigateLosses for which indemnification may be claimed by them pursuant to thisAgreement upon and after becoming aware of any event that could reasonably beexpected to give rise to any such Losses.

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### (j)            Subject to the provisoof this sentence, any liability for indemnification under this Section 9.3shall be determined without duplication of recovery by reason of the state offacts giving rise to such liability constituting a breach of more than one representation,warranty, covenant or agreement; it being understood and agreed that theparties intend that each representation, warranty, and covenant containedherein shall have independent significance and, therefore, if any party hasbreached any representation, warranty, or covenant contained herein in anyrespect, the fact that there exists another representation, warranty, orcovenant relating to the same subject matter (regardless of the relative levelsof specificity) which the party has not breached shall not detract from ormitigate the fact that the party is in breach of the first representation,warranty, or covenant.

**Section9.4.           Stockholders’Representative.**

### (a)           Appointmentby the Common Equity Holders. Subject to Section 5(b) of the Common Equity Holders Agreement, eachCommon Equity Holder hereby appoints the Stockholders’ Representative to act asthe Stockholders’ Representative, and each Common Equity Holder acknowledgesand agrees that the Stockholders’ Representative acting as the Stockholders’Representative shall have full power and authority to take all actions underthis Agreement, the Common Equity Holders Agreement, the Escrow Agreement andany other agreement entered into by the Stockholders’ Representative inconnection with the Merger (collectively, the “Transaction Agreements”)that are to be taken by the Stockholders’ Representative.

### (b)           Authorization.  Each Common Equity Holder hereby agrees thatthe Stockholders’ Representative may take any and all actions on behalf of theCommon Equity Holders which it believes are necessary or appropriate under orin connection with the Transaction Agreements, including, without limitation,each of the following on behalf of the Stockholders’ Representative and/or anyCommon Equity Holder: (i) executing the Escrow Agreement as Stockholders’Representative; (ii) giving and receiving any notice or instruction permittedor required under the Transaction Agreements; (iii) receiving and acceptingservice of legal process on behalf of any Common Equity Holder in connectionwith any suit or proceeding arising under the Transaction Agreements; (iv)authorizing payments to be made under the Transaction Agreements; (v) obtainingreimbursement as provided for in the Transaction Agreements for all out-of-pocketfees and expenses and other obligations of or incurred by the Stockholders’Representative in connection with the Transaction Agreements and theperformance of its duties thereunder; (v) determining and negotiating the finalamount of the Final Closing Adjustment and Final Merger Consideration pursuantto Section 2.6; (vi) defending all indemnity claims made under Article IX(including indemnity claims made against the Escrow Account) (“IndemnityClaims”); (vii) consenting to, compromising or settling all IndemnityClaims; (viii) conducting negotiations with Parent and its agents and thirdparties regarding Indemnity Claims; (ix) dealing with the Escrow Agent; (x)waiving any inaccuracies in the representations or warranties of Parent orMergerCo contained in the Transaction Agreements; (xi) taking any all otheractions specified in or contemplated by the Transaction Agreements to be takenby the Stockholders’ Representative; and (xii) engaging counsel, accountants orother representatives in connection with all of the foregoing matters.  Without limiting the generality of theforegoing, each Common Equity Holder hereby agrees the Stockholders’Representative shall have the full power and authority to interpret all theterms and 

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### provisions of the Transaction Agreements and to consent to anyamendment thereof on behalf of the Stockholders’ Representative and/or anyCommon Equity Holder.

### (c)           Non-AgentStatus.  Notwithstanding anyprovision herein to the contrary, each Common Equity Holder hereby agrees thatthe Stockholders’ Representative is not an agent of the Common Equity Holdersand shall have no duties to the Common Equity Holders or liability to theCommon Equity Holders with respect to any action taken, decision made orinstruction given by the Stockholders’ Representative in connection with theexercise of its rights and performance of its duties under the TransactionAgreements.

### (d)           Indemnificationof Stockholders’ Representative. Each Common Equity Holder hereby agrees to indemnify and hold harmlessthe Stockholders’ Representative against any and all loss, liability and/orexpense (including, without limitation, (i) legal, accounting and otheradvisors’ fees and expenses and (ii) all costs incurred in enforcing this rightof indemnification) (collectively, the “Indemnifiable Costs”) incurredby the Stockholders’ Representative or any of its Affiliates and any of theirrespective partners, directors, officers, employees, agents, stockholders,consultants, attorneys, accountants, advisors, brokers, representatives orcontrolling persons, in each case relating to the Stockholders’ Representative’sconduct as Stockholders’ Representative, other than losses, liabilities orexpenses resulting from the Stockholders’ Representative’s gross negligence orwillful misconduct in connection with its performance as Stockholders’Representative under the Transaction Agreements.  Each Common Equity Holder hereby agrees topay to the Stockholders’ Representative, upon demand, such Common Equity Holder’sResponsible Pro Rata Portion of Indemnifiable Costs.  Notwithstanding the foregoing, each CommonEquity Holder hereby agrees that any distribution from the Escrow Account tothe Stockholders’ Representative for further distribution to such Common EquityHolder in accordance with the terms of the Escrow Agreement may be reduced bysuch Common Equity Holder’s Responsible Pro Rata Portion of (x) any thenoutstanding and unpaid Indemnifiable Costs as of such escrow release date and(y) if there are pending Indemnity Claim(s) as of such escrow release date, anamount reasonably determined by the Stockholders’ Representative necessary toreimburse the Stockholders’ Representative for its Indemnifiable Costs expectedto be incurred in connection with defending such Indemnity Claims (the “EscrowPayment Reduction Amount”); provided, that if the Escrow Payment ReductionAmount is insufficient to cover the entire amount of such Common Equity Holder’sPro Rata Portion of Indemnifiable Costs, such Common Equity Holder shall stillbe liable for the remaining portion of its Responsible Pro Rata Portion ofIndemnifiable Costs.  Thisindemnification obligation shall survive the termination of this Agreement.

### (e)           Accessto Information.  The Stockholders’Representative shall have reasonable access to information of and concerningany Indemnity Claim and which is in the possession, custody or control ofParent or the Surviving Corporation (except to the extent such information issubject to an attorney-client privilege between Parent and/or the SurvivingCorporation and/or any of their Affiliates and their respective legal counsel)and the reasonable assistance of Parent’s and the Surviving Corporation’sofficers and employees for purposes of performing the Stockholders’Representative duties and exercising its rights under this Agreement and anyother agreement entered into or document delivered in connection with thetransactions contemplated by this Agreement, including for the purpose ofevaluating any Indemnity Claim; provided that the Stockholders’ Representativeshall treat confidentially and 

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### not, except in connection with enforcing its rights under thisAgreement or any other agreement entered into or document delivered inconnection with the transactions contemplated by this Agreement, disclose anynonpublic information from or concerning any Indemnity Claim to anyone (exceptto the Stockholders’ Representative’s attorneys, accountants or other advisers,to the Common Equity Holders and to any other Person on a need-to-know basis, butonly if such other Person agrees to keep such information confidential).

### (f)            ReasonableReliance.  Each Common Equity Holderhereby agrees that in the performance of its duties hereunder, the Stockholders’Representative shall be entitled to rely upon any document or instrumentreasonably believed to be genuine, accurate as to content and signed by anyCommon Equity Holder, Parent, MergerCo, the Company, the SurvivingCorporation.  Each Common Equity Holderhereby agrees that the Stockholders’ Representative may assume that any Personpurporting to give any notice in accordance with the provisions of theTransaction Agreements has been duly authorized to do so.  Each Common Equity Holder hereby agrees thatthe Stockholders’ Representative may, in all questions arising under theTransaction Agreements, rely on the advice of counsel and for anything done,omitted or suffered in good faith by the Stockholders’ Representative inaccordance with such advice, the Stockholders’ Representative shall not beliable to the Common Equity Holders.  Inno event shall the Stockholders’ Representative (in its capacity as such) beliable under any Transaction Agreement to any Common Equity Holder for anyconsequential, exemplary or punitive damages or any multiple of damages ordiminution in value (except to the extent awarded to third parties).

### (g)           Orders.  Each Common Equity Holder hereby agrees thatthe Stockholders’ Representative is authorized, in its sole discretion (butacting in good faith), to rely upon and comply with any order, writ, judgment,decree or decision issued or process entered by any court of competentjurisdiction or arbitrator which it is advised by its legal counsel is bindingupon the Stockholders’ Representative without the need for appeal or other action,and if the Stockholders’ Representative complies with any such order, writ,judgment, decree or decision, it shall not be liable to any Common EquityHolder by reason of such compliance even though such order, writ, judgment,decree or decision may be subsequently reversed, modified, annulled, set asideor vacated.

### (h)           Removalof Stockholders’ Representative; Authority of Stockholders’ Representative.  A majority in interest of the Common EquityHolders shall have the right at any time to remove the then-acting Stockholders’Representative to appoint a successor Stockholders’ Representative; provided,however, that neither such removal of the then acting Stockholders’Representative nor such appointment of a successor Stockholders’ Representativeshall be effective until the delivery of executed counterparts of a writingsigned by each such Common Equity Holder with respect to such removal andappointment, together with an acknowledgement signed by the successorStockholders’ Representative appointed in such writing that he, she or itaccepts the responsibility of successor Stockholders’ Representative and agreesto perform and be bound by all of the provisions of the Transaction Agreementsapplicable to the Stockholders’ Representative. For all purposes hereunder, a majority in interest of the Common EquityHolders shall mean the Common Equity Holders holding at least 50.1% of theshares of Voting Common Stock and Nonvoting Common Stock outstanding as of theEffective Time (assuming the exercise of all vested Options as of the EffectiveTime).  Each 

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### successor Stockholders’ Representative shall have all of the power,authority, rights and privileges conferred by this Agreement upon the originalStockholders’ Representative, and the term “Stockholders’ Representative” shallbe deemed to include any interim or successor Stockholders’ Representative.

### (i)            IrrevocableAppointment.  Subject to Section9.4(h) above and Section 5(b) of the Common Equity Holders Agreement, theappointment of the Stockholders’ Representative hereunder is irrevocable andany action taken by the Stockholders’ Representative pursuant to the authoritygranted in this Agreement shall be effective and absolutely binding as theaction of the Stockholders’ Representative under the Transaction Agreements.

### (j)            OtherMatters.  In addition, each of theCommon Equity Holders agrees to defend, indemnify and hold harmless theParent/MergerCo Indemnified Parties from and against all expenses (includingfees and expenses of counsel), Losses, claims, fines, liabilities, damages,judgments or amounts paid in settlement in respect of any threatened, pendingor completed claim, action, suit or proceeding, whether criminal, civil,administrative or investigative, which they may suffer, sustain or becomesubject to, as a result of any claim by any Common Equity Holder with respectto any action taken by the Stockholders’ Representative.

**Section9.5.           Treatment ofIndemnity Payments.**  Allpayments made by the Common Equity Holders, by Parent or by MergerCo (or any oftheir respective Affiliates), as the case may be, to or for the benefit ofother parties pursuant to Sections 2.6, 2.7, 2.8, 3.1 or 7.9 or this Article IXshall be treated as adjustments to the Final Merger Consideration for Taxpurposes, and such agreed treatment shall govern for purposes of thisAgreement.

**Section9.6.           RemediesExclusive.**

### (a)           Theparties hereto acknowledge and agree that prior to the Closing, none of themshall have any right or remedy to take any action in respect of, and no partyshall have any liability to the other in respect of, any breach by any otherparty hereto of any representations or warranties contained herein or anyfailure to comply with any of the covenants, conditions or agreements containedherein, except (i) to terminate this Agreement pursuant to Section 10.1hereof, in which event, the parties hereto shall have no liability orobligation except as set forth in Section 10.2 and Section 10.3 and/or(ii) to seek specific performance or injunctive relief.

### (b)           Fromand after the Closing, other than as set forth in Sections 2.6, 2.7, 2.8 and7.9 and this Article IX or the Exhibits contemplated hereby, and except in thecase of fraud or intentional misrepresentation and the right to seek specificperformance or other equitable relief, the rights of the parties toindemnification relating to this Agreement or the transactions contemplatedhereby shall be strictly limited to those contained in this Article IX, andsuch indemnification rights shall be the sole and exclusive remedies of theparties subsequent to the Effective Time with respect to any matter in any wayrelating to this Agreement or arising in connection herewith.  Except as provided in this Article IX (otherthan as set forth in Sections 2.6, 2.7, 2.8 and 7.9 and this Article IX or theExhibits contemplated hereby, and except in the case of fraud or intentionalmisrepresentation and the right to seek specific performance or other 

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### equitable relief), no claim, action or remedy shall be brought ormaintained by any party against any other party, and no recourse shall bebrought or granted against any of them, by virtue of or based upon any allegedmisstatement or omission respecting an inaccuracy in or breach of any of therepresentations, warranties or covenants of any of the parties hereto set forthor contained in this Agreement, except to the extent set forth in Section11.10.

**Section9.7.           EnvironmentalIndemnification.**

### (a)           TheParent/MergerCo Indemnified Parties shall be held harmless and indemnified on ajoint and several basis by the Company on the one hand, and the ResponsibleCommon Equity Holders on the other hand, and on a several basis among theResponsible Common Equity Holders, from and against any and all Losses whichmay be sustained or suffered, based upon, arising out of, or by reason of anyrelease or migration of any toxic or hazardous substance, material, or waste inor to the environment on or before the Dimension Moldings Closing Date (asdefined below) at the property located at 15351 S. State Rd., Middlefield, Ohio(the “Dimension Moldings Property”) and any migration of chlorinatedvolatile organic compounds from the Carlisle Engineered Products facilitylocated on S. State Road in Middlefield, Ohio after the Dimension MoldingsClosing Date; provided that, notwithstanding any provision herein to thecontrary, the Company shall be held harmless and indemnified by the ResponsibleCommon Equity Holders from and against any Losses which may be sustained orsuffered by the Company under this Section 9.7(a).  Any right of Parent/MergerCo IndemnifiedParties to indemnification under this Section 9.7 shall be subject to thefollowing additional provision:  noindemnification shall be payable to a Parent/MergerCo Indemnified Party withrespect to claims first asserted pursuant to this Section 9.7 after theexpiration of the applicable statute of limitations, which date shall be theApplicable Limitation Date for any such claim.

### (b)           For the purposes of this Section 9.7, “Dimension Moldings ClosingDate” shall mean the closing date of the Asset Purchase Agreement by andamong Woodcraft Industries, Inc., Dimension Moldings, Inc., RBJ Holdings, Inc.,Rhine Blake and Jim Herchek, dated July 28, 2005 (the “Dimension MoldingsAPA”).

# **ARTICLE X**

# **TERMINATION,AMENDMENT AND WAIVER**

**Section10.1.        Termination.**  This Agreement may be terminated at any timeprior to the Effective Time, whether before or after stockholder approvalthereof:

#### (a)           by the mutual written consent ofParent, MergerCo and the Company;

#### (b)           by either of the Company, on the onehand, or Parent or MergerCo, on the other hand, by written notice to the other:

##### (i)            if any Governmental Authority ofcompetent jurisdiction shall have issued an injunction or taken any otheraction (which injunction or other action 

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##### the parties hereto shall use theircommercially reasonable efforts to lift) that permanently restrains, enjoins orotherwise prohibits the consummation of the Merger, and such injunction orother action shall have become final and non-appealable; or

##### (ii)           if the consummation of the Mergershall not have occurred on or before the seventy-fifth (75th) day following theOriginal Date; provided, however, that the right to terminate this Agreementunder this Section 10.1(b)(ii) shall not be available to any party whosefailure to comply with any provision of this Agreement has been the cause of,or resulted in, the failure of the Merger to occur on or before such date;

#### (c)           by Parent or MergerCo by written notice to theStockholders’ Representative (i) if the Stockholders’ Representative or theCompany shall have breached or failed to perform any of their respectiverepresentations, warranties and covenants contained in this Agreement or theSchedules hereto, such breach or failure to perform would give rise to thefailure of a condition set forth in Section 8.1 or 8.2 and such breach orfailure to perform cannot be cured or, if curable, shall continue unremediedfor a period of ten (10) days after the Stockholders’ Representative hasreceived written notice from Parent or MergerCo of the occurrence of suchbreach (provided that in no event shall such ten day period extend beyondseventy-fourth (74th) day following the Original Date) or (ii) if events have occurred which have made itimpossible to satisfy a condition precedent to Parent’s and MergerCo’sobligations to consummate the transactions contemplated hereby, unless Parent’sand MergerCo’s breach of this Agreement has caused the condition to beunsatisfied;

#### (d)           by the Stockholders’ Representative, on behalf ofthe Common Equity Holders and the Company, by written notice to Parent andMergerCo (i) if Parent or MergerCo shall have breached or failed to perform anyof their representations, warranties and covenants contained in this Agreement,such breach or failure to perform would give rise to the failure of a conditionset forth in Section 8.1 or 8.3 and such breach or failure to perform cannot becured or, if curable, shall continue unremedied for a period of ten (10) daysafter Parent and MergerCo have received written notice from the Stockholders’Representative of the occurrence of such breach (provided that in no eventshall such ten day period extend beyond seventy-fourth (74th) day following theOriginal Date) or (ii) if eventshave occurred which have made it impossible to satisfy a condition precedent tothe Common Equity Holders’ and the Company’s obligations to consummate thetransactions contemplated hereby, unless the Company’s, the Stockholder’sRepresentative’s or any Common Equity Holder’s breach of this Agreement hascaused the condition to be unsatisfied; or

#### (e)           by the Stockholders’ Representative,on behalf of the Common Equity Holders and the Company, by written notice toParent and MergerCo if all of the closing conditions set forth in Section 8.1and 8.2 (including all conditions set forth in the Debt Commitment Lettersother than the funding of the Equity Financing), other than the closingconditions set forth in Section 8.2(f)(i), have been satisfied and the Closingdoes not occur within three (3) Business Days after the date such closingconditions (not 

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#### including Section 8.2(f)(i)) have beensatisfied solely because the Equity Financing has not been consummated.

**Section10.2.        Effect ofTermination.**  In the eventof the termination of this Agreement pursuant to Section 10.1, this Agreementshall forthwith become null and void and have no effect, without any liabilityon the part of Parent, MergerCo, Olympus, the Company, the Stockholders’Representative or any Stockholder or Optionholder and their respectivedirectors, officers, employees, partners, managers, members or stockholders andall rights and obligations of any party hereto shall cease, except for theagreements contained in Section 7.3, Section 7.6, Section 9.6(a), this Section10.2, Section 10.3 and Article XI; provided, however, that, except as set forthin Section 10.3 below, nothing contained in this Section 10.2 shall relieve anyparty from liabilities or damages arising out of any willful breach by suchparty of any of its covenants contained in this Agreement.

**Section10.3.        Termination Fee.**  In the event that this Agreement isterminated by Stockholders’ Representative pursuant to Section 10.1(e), thenOlympus Growth Fund IV, L.P. (“Olympus”) shall promptly pay to the Company(as liquidated damages) a fee in an aggregate amount equal to $5,000,000 andnone of Parent, MergerCo and Olympus (nor any of their respective partners,shareholders, directors, employees, agents, representatives or Affiliates)shall have any further liability to the Company or any Company IndemnifiedParty on account of the termination of this Agreement pursuant to (includingany breach related thereto). Notwithstanding any provision herein to the contrary (including Section9.6 and Section 11.10), the fee set forth in this Section 10.3 shall be deemedto be the exclusive remedy to the Company and the Company Indemnified Partiesin connection with any termination of this Agreement.

**Section10.4.        Amendment.**  This Agreement may be amended by the partieshereto by an instrument in writing signed on behalf of Parent, MergerCo, theCompany and the Stockholders’ Representative at any time before or after anyapproval hereof by the stockholders of the Company and MergerCo; provided,however, that after any such stockholder approval, no amendment shall be madethat by law requires further approval by the Stockholders without obtaining theapproval of Stockholders’ Representative.

**Section10.5.        Extension; Waiver.**  At any time prior to the Effective Time, theparties hereto may, to the extent legally allowed, (a) extend the time for theperformance of any of the obligations or other acts of the other partieshereto, (b) waive any inaccuracies in the representations and warranties of theother party contained herein or in any document delivered pursuant hereto and(c) waive compliance by the other party with any of the agreements orconditions contained herein.  Anyagreement on the part of a party hereto to any such extension or waiver shallbe valid only if set forth in a written instrument signed on behalf of theparty against which such waiver or extension is to be enforced.  Waiver of any term or condition of thisAgreement by a party shall not be construed as a waiver of any subsequentbreach or waiver of the same term or condition by such party, or a waiver ofany other term or condition of this Agreement by such party.

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# **ARTICLEXI**

# **GENERALPROVISIONS**

**Section 11.1.****        Notices.**  All notices, requests, claims, demands andother communications under this Agreement will be in writing and will be deemedgiven if delivered personally, sent by overnight courier (providing proof of delivery)or via facsimile (providing proof of delivery) to the parties at the followingaddresses (or at such other address for a party as specified by like notice):

### (a)           If to the Company, to:

WII Components, Inc.525 Lincoln Avenue, SESt. Cloud, MN 56304Attn:  John FitzpatrickFacsimile:  320-656-2199

with a copy to:

Behrman Capital III L.P.126 East 56th Street, 27th FloorNew York, NY 10022Attn:  Tom W. Perlmutter and Rodney A.CohenFacsimile:  (212) 980-7024

with a copy to:

Goodwin Procter LLP599 Lexington AvenueNew York, NY 10022Attn:  A.J. Weidhaas, Esq. and Edward J.Braum, Esq.Facsimile:  (212) 355-3333

### (b)           Ifto Parent, to:

c/o OlympusPartnersOne Station Place, 4th FloorStamford, CT 06902Attn:  L. David Cardenas and KeithHeffernanFacsimile:  (203) 353-5910

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with a copy to:

Kirkland &Ellis LLP200 East Randolph Drive, 58th FloorChicago, IL 60601Attn:  John A. Schoenfeld, P.C.Facsimile:  (312) 861-2200

### (c)           Ifto MergerCo, to:

c/o Olympus PartnersOne Station Place, 4th FloorStamford, CT 06902Attn:  L. David Cardenas and Keith HeffernanFacsimile:  (203) 353-5910

with a copy to:

Kirkland & Ellis LLP200 East Randolph Drive, 58th FloorChicago, IL 60601Attn:  John A. Schoenfeld, P.C.Facsimile:  (312) 861-2200

### (d)           If to the Stockholders’ Representative, to:

Behrman Capital III L.P.126 East 56th Street, 27th FloorNew York, NY 10022Attn:  Tom W. Perlmutter and Rodney A.CohenFacsimile:  (212) 980-7024

with a copy to:

Goodwin Procter LLP599 Lexington AvenueNew York, NY 10022Attn:  A.J. Weidhaas, Esq. and Edward J.Braum, Esq.Facsimile:  (212) 355-3333

**Section 11.2.****        DisclosureSchedules.**   Noreference to or disclosure of any item or other matter in the schedules to thisAgreement (the “Schedules”) shall beconstrued as an admission or indication that such item or other matter ismaterial or that such item or other matter is required to be referred to ordisclosed in the Schedules.  Certainagreements and other matters are listed in the Schedules for informationalpurposes only, notwithstanding the fact that, because they do not rise aboveapplicable materiality thresholds or otherwise, they are not required to belisted by the terms of this Agreement.

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The Schedules and theinformation and disclosures contained therein are intended only to qualify andlimit the representations, warranties and covenants contained in this Agreementand shall not in any way be deemed to expand the scope or effect of any suchrepresentations, warranties or covenants contained herein (except as set forthon the Schedules).  Notwithstandinganything to the contrary contained in the Schedules or in this Agreement, theinformation and disclosures contained in each section of the Schedules shall bedeemed to be disclosed and incorporated by reference in each of the othersections of the Schedules as though fully set forth in such other sections(whether or not specific cross-references are made) for which applicability ofsuch information and disclosure is reasonably apparent on its face.

**Section 11.3.****        Assignment.**  Except as expressly permitted by the termshereof, neither this Agreement nor any of the rights, interests or obligationshereunder shall be assigned by any of the parties hereto without the priorwritten consent of the other parties; provided, however, that each of Parentand MergerCo may assign, in whole or in part, (a) its rights, but not itsobligations, hereunder to any Person providing financing to Parent and/orMergerCo for the purchase of the Company Stock and Options hereunder and (b)its rights and obligations hereunder to one or more of its Affiliates.

**Section 11.4.****        Severability.**  If any provision of this Agreement, or theapplication thereof to any person or circumstance is held invalid orunenforceable, the remainder of this Agreement, and the application of suchprovision to other persons or circumstances, shall not be affected thereby, andto such end, the provisions of this Agreement are agreed to be severable.

**Section 11.5.****        NoAgreement Until Executed.** Irrespective of negotiations among the parties or the exchanging ofdrafts of this Agreement, this Agreement shall not constitute or be deemed toevidence a contract, agreement, arrangement or understanding among the partieshereto unless and until this Agreement is executed by the parties hereto.

**Section 11.6.****        CertainDefinitions.**  For purposes ofthis Agreement:

### (a)           “Accelerated Earnout Payments” meansany and all earnout payments owed under the terms of the Asset PurchaseAgreement, dated July  28, 2005, by andamong Woodcraft Industries, Inc., Dimension Moldings, Inc., RBJ Holdings, Inc.,Rhine Blake and Jim Herchek.

### (b)           An “Affiliate”of any Person means another Person that directly or indirectly, through one ormore intermediaries, controls, is controlled by, or is under common control with,such first Person, and in the case of a natural Person shall include anyindividual related by marriage or adoption to any such individual (includingsuch natural Person’s immediate family members) or any entity in which any suchnatural Person owns any beneficial interest (excluding the ownership of lessthan 5% of the capital stock of any publicly-traded corporation).

### (c)           “Cashand Cash Equivalents” shallmean with respect to the Company and the Subsidiaries as of the MeasurementTime: all GAAP cash on hand and cash equivalents that are immediatelyconvertible into cash without loss or costs as of the Measurement Time and heldwithout limitation or restriction of any kind (including, to the extentconsistent with the 

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### foregoing, any deposit in transit included in a cash clearing account,all amounts included in all bank accounts, and all checks received but not yetcashed or deposited into a bank account), net of any outstanding checks, bankoverdrafts or other proper reconciling items. In addition, “Cash and Cash Equivalents” shall not include the AggregateOption Exercise Price Proceeds (as defined in Section 2.2(a)); provided,however, in the event the Closing shall occur prior to the close of business onJanuary 9, 2007, such amount will be (i) reduced by all amounts paid withrespect to the Tail Policy and (ii) increased by $62,500, the amount to be paidby Parent to the Company under Section 7.5(b) hereof.

### (d)           “Certificate ofIncorporation” means the Company’s Second Amended and RestatedCertificate of Incorporation, as amended through the Original Date.

### (e)           “Code”shall mean the Internal Revenue Code of 1986, as amended.

### (f)            “Common EquityHolder” means the Stockholders (including the Rollover Participants)and the Optionholders.

### (g)           “FundamentalParent Representations” means those representations and warranties ofParent and MergerCo set forth in Sections 5.1 (Organization), 5.2(Authorization; Validity of Agreement; Necessary Action) and 5.5 (Brokers).

### (h)           “FundamentalSeller Representations” means those representations and warranties of theCompany set forth in Sections 4.1 (Existence, Good Standing; Authority), 4.2(Capitalization), 4.3 (Subsidiaries), 4.8 (Taxes), 4.9 (Employee BenefitPlans), 4.14 (Environmental Matters), 4.16 (No Brokers) and 4.25(Indebtedness).

### (i)             “GovernmentalAuthority” means any government or political subdivision, whetherfederal, state, local or foreign, or any agency or instrumentality of any suchgovernment or political subdivision, or any federal, state, local or foreigncourt or arbitrator.

### (j)            “Indebtedness” means (i) all indebtedness orother obligation of the Company and/or any of its Subsidiaries for borrowedmoney, whether current, short-term or long-term, secured or unsecured, and allaccrued interest, premiums, penalties and other obligations relating thereto,(ii) all indebtedness of the Company and/or any of its Subsidiaries evidencedby any note, bond, debenture or other security, (iii) all indebtedness of theCompany and/or any of its Subsidiaries for the deferred purchase price forpurchases of property which is not evidenced by trade accounts payables, (iv)all existing lease obligations of the Company and/or any of its Subsidiariesunder leases which are capital leases in accordance with GAAP, (v) anyliability of the Company and/or any of its Subsidiaries under deferredcompensation plans, phantom stock plans, severance or bonus plans (in the caseof any such bonus plan, solely in connection with the transactions contemplatedby this Agreement), or, to the extent not accrued for as a current liability inClosing Working Capital (as finally determined), any change in control orsimilar payment or increased cost which is triggered or made payable as aresult of the transactions contemplated herein (including, without limitation,the bonus payable to John Fitzpatrick pursuant to that certain bonus agreement,dated May 31, 2006, between the Company and John Fitzpatrick and thetransaction bonuses set forth on Schedule 2.3), (vi) any off-balancesheet financing of the Company and/or any of its Subsidiaries, (vii) anypayment of obligations 

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### of the Companyand/or any of its Subsidiaries in respect of banker’s acceptances or letters ofcredit, (viii) any liability of the Company and/or any of its Subsidiaries withrespect to interest rate swaps, collars, caps and similar hedging obligations,(ix) any unsatisfied obligation for “withdrawal liability” to a “multiemployerplan” as such terms are defined under ERISA and/or any unfunded pensionliability of the Company and/or any of its Subsidiaries, (x) any indebtednessreferred to in clauses (i) through (ix) above of any person or entity which iseither guaranteed by, or secured by an Encumbrance upon any property or assetowned by, the Company and/or any of its Subsidiaries and (xi) accrued andunpaid interest of, and prepayment premiums, breakage costs, penalties orsimilar contractual charges arising as result of the discharge at Closing of,any such foregoing obligations; provided, however, that for purposes of thecalculation of the Indebtedness of the Company and its Subsidiaries as of theMeasurement Time, “Indebtedness” will not include (a) any prepayment premiums,breakage costs or similar contractual charges arising from the prepayment ofthe Company’s 10% Senior Notes, due 2012, but will include an amount equal tothe sum of (x) the aggregate principal face amount of such 10% Senior Notes and(y) all accrued but unpaid interest thereon as of the Measurement Time and (b)the Accelerated Earn-Out Payments.

### (k)            “IntellectualProperty” means all intellectual property rights whether protected,created or arising under the laws of the United States or any otherjurisdiction: (i) all patents and applications therefor, includingcontinuations, divisionals, continuations-in-part, or reissues of patentapplications and patents issuing thereon (collectively, “Patents”), (ii) all fictional businessnames, trademarks, service marks, trade names, service names, brand names,trade dress rights, logos, Internet domain names and corporate names andgeneral intangibles of a like nature, together with the goodwill associatedwith any of the foregoing, and all applications, registrations and renewalsthereof (collectively, “Marks”),(iii) copyrights and registrations and applications therefor, works ofauthorship and mask work rights (collectively, “Copyrights”),(iv) discoveries, concepts, research and development, know-how, formulae,inventions, compositions, manufacturing and production processes andtechniques, procedures, designs, drawings, specifications,  and other proprietary and confidentialinformation, including customer lists, supplier lists, pricing and costinformation, business and marketing plans and proposals of Company, in eachcase excluding any rights in respect of any of the foregoing that comprise orare protected by Copyrights or Patents, and (v) any and all:(A) computer programs, including any and all software implementations ofalgorithms, models and methodologies, whether in source code or object code; (B) databasesand complications, including any and all data and collections of data, whethermachine readable or otherwise; (C) descriptions, flow-charts and otherwork product used to design, plan, organize and develop any of the foregoing;and (D) all documentation including user manuals and other trainingdocumentation related to any of the foregoing.

### (l)            “IRS”means the Internal Revenue Service of the United States.

### (m)          “Losses”of a Person means any and all losses, liabilities, damages, claims, awards, judgments,costs and expenses (including, without limitation, reasonable attorneys’ fees)actually suffered or incurred by such Person.

### (n)           “Net Working Capital” means currentassets less current liabilities, in each case as determined in accordance withGAAP, consistently applied, except in accordance with 

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### the specific accounting principles and adjustments set forth in Schedule11.6(n) hereto.  The forgoing shallspecifically exclude (i) accrued interest on Indebtedness, (ii) thecurrent portion of Indebtedness, (iii) any asset or liability for incomeTaxes (but not other Taxes) and any deferred Tax items established to reflecttiming differences between book and Tax income, (iv) any accrual forCompany Expenses associated with this Agreement and the transactionscontemplated hereby (but only to the extent such accrued amounts are includedas “Company Expenses” and deducted from the Merger Consideration pursuant toSection 2.1(d)(iii)(B)) and (v) Cash and Cash Equivalents.  For purposes of clarification, Net WorkingCapital shall not include Indebtedness or Accelerated Earnout Payments, andvice versa.

### (o)           “Nonvoting CommonStock” means the Company’s nonvoting common stock, par value $.01per share.

### (p)           “Option”means any option to purchase shares of Voting Common Stock granted under thePlan.

### (q)           *“*OwnedReal Property*”* means allland, together with all buildings, structures, improvements and fixtureslocated thereon, and all easements and other rights and interests appurtenantthereto, owned by the Company or any of its Subsidiaries.

### (r)            “Person”means an individual, corporation, partnership, limited liability company, jointventure, association, trust, unincorporated organization or other entity orgroup (as defined in Section 13(d) of the Securities Exchange Act of 1934, asamended).

### (s)           “Plan”means the Company’s 2003 Stock Option and Grant Plan, as amended.

### (t)            “Post-Closing Period” shall mean anytaxable year or period that begins after the Closing Date and, with respect toany taxable year or period beginning before and ending after the Closing Date,the portion of such taxable year or period beginning after the Closing Date.

### (u)           “Post-Closing Tax Benefit” shallmean, with respect to any Post-Closing Period, the actual reduction in incomeTaxes that would have been payable in the absence of both (i) the TransactionDeductions and (ii) net operating losses and credits arising in anyPost-Closing Period.

### (v)           “Pre-ClosingPeriod” shall mean any taxable year or period that ends on or beforethe Closing Date and, with respect to any taxable year or period beginningbefore and ending after the Closing Date, the portion of such taxable year orperiod ending on and including the Closing Date.  For purposes of this Agreement, in the caseof any taxable year or period of a Company or a Subsidiary which includes theClosing Date (but does not end on that day), (i) Property Taxes (asdefined in Section 11.6) allocable to the Pre-Closing Period shall be equal tothe amount of such Property Taxes for the entire taxable year or periodmultiplied by a fraction, the numerator of which is the number of days duringthe taxable year or period that are in the Pre-Closing Period and thedenominator of which is the number of days in the entire taxable year orperiod, and (ii) Taxes (other than Property Taxes) of a Company or aSubsidiary for the Pre-Closing Period shall be computed as if such taxable yearor period (and the taxable 

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### year or period of any entity taxable as a partnership in which theCompany or the Subsidiary owns a direct or indirect interest) ended as of theclose of business on the Closing Date.

### (w)          “Pro Rata Portion”shall mean with respect to each Common Equity Holder, the quotient (expressedas a percentage) obtained by dividing the aggregate number of shares of VotingCommon Stock and Nonvoting Common Stock (including Rollover Shares) held bysuch Common Equity Holder as of immediately prior to the Effective Time(assuming the exercise of all vested Options as of immediately prior to theEffective Time) by the aggregate number of shares of Voting Common Stock andNonvoting Common Stock (including Rollover Shares) held by all Common EquityHolders as of immediately prior to the Effective Time (assuming the exercise ofall vested Options as of immediately prior to the Effective Time).  Schedule 11.6(w) sets forth the ProRata Portion for each Common Equity Holder, as the same may be updated toreflect the actual equityholdings of the Common Equity Holders as ofimmediately prior to the Effective Time; it being understood and agreed thateach such determination and application of “Pro Rata Portion” under thisAgreement shall be made, for all purposes hereunder, prior to the consummationof the exchange transactions contemplated by Section 2.10, with the effect thatsuch Rollover Shares shall, for all purpose, be included in the determinationPro Rata Portion.

### (x)            “Property Taxes”means real, personal and intangible ad valorem property taxes.

### (y)           “ResponsibleCommon Equity Holder” shall mean each Common Equity Holder whoexecuted and delivered a counterpart signature page to the Common EquityHolders Agreement agreeing to become a party to and bound the terms andprovisions of the Common Equity Holders Agreement.

### (z)            “Responsible ProRata Portion” shall mean with respect to each Responsible CommonEquity Holder, the quotient (expressed as a percentage) obtained by dividingthe aggregate number of shares of Voting Common Stock and Nonvoting CommonStock (including Rollover Shares) held by such Responsible Common Equity Holderas of immediately prior to the Effective Time (assuming the exercise of allvested Options as of immediately prior to the Effective Time) by the aggregatenumber of shares of Voting Common Stock and Nonvoting Common Stock (includingRollover Shares) held by all Responsible Common Equity Holders as ofimmediately prior to the Effective Time (assuming the exercise of all vestedOptions as of immediately prior to the Effective Time).  Schedule 11.6(z) sets forth theResponsible Pro Rata Portion for each Responsible Common Equity Holder, as thesame may be updated to reflect the actual equityholdings of the ResponsibleCommon Equity Holders as of immediately prior to the Effective Time and theexecution and delivery by any Common Equity Holder of a counterpart signaturepage to the Common Equity Holders Agreement after the Original Date agreeing tobecome a party to and bound the terms and provisions of the Common EquityHolders Agreement (it being understood and agreed that, at all times, theaggregate total of the Responsible Pro Rata Portions for all Responsible CommonEquity Holders shall equal one hundred percent (100%)); it being furtherunderstood and agreed that each such determination and application of “ResponsiblePro Rata Portion” under this Agreement shall be made, for all purposeshereunder, prior to the consummation of the exchange transactions 

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### contemplated by Section 2.10, with the effect that such Rollover Sharesshall, for all purpose, be included in the determination Responsible Pro RataPortion.

### (aa)         “Rollover Amount”shall mean the number of Rollover Shares multiplied by the Price Per CommonShare.

### (bb)         “StockholdersAgreement” shall mean that certain Stockholders Agreement dated asof April 9, 2003, by and among the Company, the Stockholders’ Representativeand the other parties thereto, as amended.

### (cc)         “Subsidiary”means any corporation more than 50% of whose outstanding voting securities, orany partnership, joint venture or other entity more than 50% of whose totalequity interest, is directly or indirectly owned by Parent or the Company, asthe case may be.

### (dd)         “Tax” or“Taxes” means any federal, state, localor foreign income, gross receipts, capital gains, franchise, alternative oradd-on minimum, estimated, sales, use, goods and services, transfer,registration, value added, excise, natural resources, severance, stamp,occupation, premium, windfall profit, environmental, customs, duties, realproperty, special assessment, personal property, capital stock, socialsecurity, unemployment, employment, disability, payroll, license, employee orother withholding, contributions or other tax, of any kind whatsoever,including any interest, penalties or additions to tax or additional amounts inrespect of the foregoing.

### (ee)         “Tax Returns”means returns, declarations, reports, claims for refund, information returns orother documents (including any related or supporting schedules, statements orinformation) filed or required to be filed in connection with thedetermination, assessment or collection of Taxes of any party or theadministration of any laws, regulations or administrative requirements relatingto any Taxes.

### (ff)           “TransactionDeductions” shall mean the sum of all items of loss and expensededuction resulting from or attributable to (a) payments in respect of Optionsas contemplated by this Agreement, including payments to Optionholders of theirpro rata share of Tax refunds, (b) the repayment of Indebtedness at Closing oras contemplated by this Agreement (including any loss or deduction relating tothe acceleration of unamortized financing and prior transaction costsassociated with the repayment of the Company’s 10% Senior Notes, due 2012,whenever such Notes are repaid), (c) the payment of any bonuses to employees ofthe Company and its Subsidiaries upon consummation of the transactionscontemplated hereby and (d) payment of legal, financial advisory, accountingand other fees and expenses of the Company (but not of Parent or MergerCo) inconnection with the transactions contemplated hereby, except to the extent thatParent’s tax advisor reasonably determines in good faith that such payments,fees and expenses are not properly deductible (including, without limitation,pursuant to Code Section 280G or Treasury Regulation Sections 1.263(a)-4 and-5); provided, that Transaction Deductions shall not include any loss ordeduction resulting from or attributable to any prepayment premiums, breakagecosts or similar contractual charges arising from the prepayment of the Company’s10% Senior Notes, due 2012.

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### (gg)         “Voting CommonStock” means the Company’s voting common stock, par value $.01 pershare.

**Section 11.7.****        Interpretation.**  When a reference is made in this Agreement toan Article, Section, Schedule or Exhibit, such reference will be to an Articleor Section of, or a Schedule or Exhibit to, this Agreement unless otherwiseindicated.  The table of contents andheadings contained in this Agreement are for reference purposes only and willnot affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include”, “includes” or “including”are used in this Agreement, they will be deemed to be followed by the words “withoutlimitation.”  The words “hereof,” “herein”and “hereunder” and words of similar import when used in this Agreement willrefer to this Agreement as a whole and not to any particular provision of thisAgreement.  All terms used herein withinitial capital letters have the meanings ascribed to them herein and all termsdefined in this Agreement will have such defined meanings when used in anycertificate or other document made or delivered pursuant hereto unlessotherwise defined therein.  Thedefinitions contained in this Agreement are applicable to the singular as wellas the plural forms of such terms and to the masculine as well as to thefeminine and neuter genders of such term. Any statute defined or referred to herein, means such statute as fromtime to time amended, modified or supplemented, including by succession ofcomparable successor statutes. References to a Person are also to its permitted successors and assigns.

**Section 11.8.****        Feesand Expenses.**  Except asotherwise expressly set forth in this Agreement, whether or not the Merger isconsummated, all costs, fees and expenses incurred in connection with thenegotiation and the consummation of the transactions contemplated by thisAgreement (including, without limitation, investment banker’s, broker’s,attorneys’, accountants’ and outside advisers’ fees and disbursements) shall beborne by (a) Parent and MergerCo if incurred by Parent and MergerCo or (b) theCommon Equity Holders if incurred by, or for the account of, any of the CommonEquity Holders, the Stockholders’ Representative, the Company and/or any of itsSubsidiaries; provided, however, that Parent and MergerCo shall pay, or causethe Surviving Corporation to pay, at the Closing, the amount of CompanyExpenses deducted from the Merger Consideration pursuant to Section2.1(d)(iii)(B) in accordance with written instructions therefor delivered bythe Stockholders’ Representative prior to the Closing.

**Section 11.9.****        Choiceof Law/Consent to Jurisdiction.**

#### (a)           All disputes, claims orcontroversies arising out of or relating to this Agreement, or the negotiation,validity or performance of this Agreement, or the transactions contemplatedhereby shall be governed by and construed in accordance with the laws of theState of New York.  Except for disputesarising under Section 2.6 and for other claims seeking injunctive or otherequitable relief (which may be brought in any court having proper jurisdiction)and except as expressly provided elsewhere in this Agreement, each of theparties hereby consents to personal jurisdiction, service of process and venuein the federal or state courts of the State of New York for any claim, suit orproceeding arising under this Agreement, or in the case of a third party claimsubject to indemnification hereunder, in the court where such claim is brought.

#### (b)           THE PARTIES HEREBYKNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO ATRIAL BY 

77

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#### JURY IN RESPECT OF ANY PROCEEDINGS BASEDHEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT.

**Section 11.10.****      SpecificPerformance.**  The parties heretoagree that irreparable damage may occur in the event that any of the provisionsof this Agreement were not performed in accordance with their specific terms orwere otherwise breached.  It isaccordingly agreed that the parties shall be entitled to seek an injunction orinjunctions to prevent breaches of this Agreement and to enforce specificallythe terms and provisions hereof in any court of proper jurisdiction, includingwithout limitation the obligation to close the Merger on the Closing Datepursuant to Section 1.4 hereof.  Suchremedies shall not be exclusive and shall be in addition to any other remediesthat any party may have under Article IX of this Agreement.

**Section 11.11.****      MutualDrafting.**  The parties hereto aresophisticated and have been represented by attorneys throughout the transactionscontemplated hereby who have carefully negotiated the provisions hereof.  As a consequence, the parties do not intendthat the presumptions of laws or rules relating to the interpretation ofcontracts against the drafter of any particular clause should be applied tothis Agreement or any agreement or instrument executed in connection herewith,and therefore waive their effects.

**Section 11.12.****      Miscellaneous.**  This Agreement (a) constitutes, together withthe Confidentiality Agreement and the Schedules, Exhibits and Annexes attachedhereto, the entire agreement and supersedes all of the prior agreements andunderstandings, both written and oral, among the parties, or any of them, withrespect to the subject matter hereof, (b) shall be binding upon and inure tothe benefits of the parties hereto and their respective successors and assignsand is not intended to confer upon any other person (except as set forth below)any rights or remedies hereunder and (c) may be executed in two or morecounterparts which together shall constitute a single agreement.  Sections 7.8 and 9.3 are intended to be forthe benefit of those persons described therein and the covenants containedtherein may be enforced by such persons.

*[Remainder of page intentionallyleft blank.]*

78

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IN WITNESS WHEREOF, the parties hereto have causedthis Amended and Restated Agreement and Plan of Merger to be signed by theirrespective officers thereunto duly authorized, all as of the date first writtenabove.
|            | **PARENT:**                                          |
|------------|------------------------------------------------------|
| ** ** | ** **                                           |
|       | WII HOLDING, INC.                                    |
|       |                                                 |
|       |                                                 |
|       | By:                                                  |   |   |
|       |                                                 | Name: |
|       |                                                 | Title: |
|       |                                                 |   |
|       |                                                 |   |
| ** ** | **MERGERCO:**                                        |
| ** ** | ** **                                           |
|       | WII MERGER CORPORATION                               |
|       |                                                 |
|       |                                                 |
|       | By:                                                  |   |   |
|       |                                                 | Name: |
|       |                                                 | Title: |
|       |                                                 |   |
|       |                                                 |   |
| ** ** | **COMPANY:**                                         |
| ** ** | ** **                                           |
|       | WII COMPONENTS, INC.                                 |
|       |                                                 |
|       |                                                 |
|       | By:                                                  |   |   |
|       |                                                 | Name: |
|       |                                                 | Title: |
|       |                                                 |   |
|       |                                                 |   |
| ** ** | **STOCKHOLDERS’ REPRESENTATIVE:**               |
| ** ** | ** **                                           |
|       | BEHRMAN CAPITAL III L.P., solely                     |
|       | in its capacity as Stockholders’ Representative |
|       |                                                 |
|       | By:  BEHRMAN  BROTHERS III L.L.C.,              |
|       | its General Partner                                  |
|       |                                                 |
|       |                                                 |
|       | By:                                                  |   |   |
|       |                                                 | Name: |
|       |                                                 | Title: |

 

----

**ANNEX A**

**Defined Terms**
| **Term**                                 | ** ** | **Section Reference** |
|------------------------------------------|------------|-----------------------|
|                                     |       |                  |
| Accounting Referee                       |       | 2.6(d)                |
| Acquisition Transaction                  |       | 7.7(a)                |
| Affiliate                                |       | 11.6                  |
| Aggregate Option Exercise Price Proceeds |       | 2.2(a)                |
| Agreement                                |       | Introduction          |
| Applicable Limitation Date               |       | 9.1                   |
| Appraisal Rights Provisions              |       | 3.2(a)                |
| Base Amount                              |       | 2.5(b)                |
| Base Balance Sheet                       |       | 4.5(b)                |
| Business Day                             |       | 1.4                   |
| By-laws                                  |       | 4.1(a)                |
| Cash and Cash Equivalents                |       | 11.6                  |
| Certificate of Incorporation             |       | 11.6                  |
| Certificate of Merger                    |       | 1.2                   |
| Certificate                              |       | 2.1(e)                |
| Closing                                  |       | 1.4                   |
| Closing Cash                             |       | 2.6(a)                |
| Closing Date                             |       | 1.4                   |
| Closing Overage                          |       | 2.1(d)(ii)            |
| Closing Underage                         |       | 2.1(d)(iii)           |
| Closing Working Capital                  |       | 2.6(a)                |
| Closing Statement                        |       | 2.6(a)                |
| Closing Statement Response Notice        |       | 2.6(a)                |
| Code                                     |       | 11.6                  |
| Common Equity Holder(s)                  |       | 11.6                  |
| Company                                  |       | Introduction          |
| Company Board                            |       | Recitals              |
| Company Expenses                         |       | 2.4                   |
| Company Indemnified Party                |       | 9.3(a)                |
| Company Intellectual Property            |       | 4.13(b)               |
| Company Licenses                         |       | 4.18                  |
| Company Material Adverse Effect          |       | 4.1(a)                |
| Company Plans                            |       | 4.9(a)                |
| Company Stock                            |       | 2.1                   |
| Confidentiality Agreement                |       | 7.3                   |
| Copyrights                               |       | 11.6                  |
| CS Commitment Letter                     |       |                  |
| Customers                                |       | 4.22                  |
| Debt Commitment Letters                  |       | 5.4                   |
| Debt Financing                           |       | 5.4                   |

 

1

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| **Term**                             | ** ** | **Section Reference** |
|--------------------------------------|------------|-----------------------|
|                                 |       |                  |
| Deductible                           |       | 9.2(b)(i)             |
| DGCL                                 |       | Recitals              |
| Dimension Moldings APA               |       | 9.7                   |
| Dimension Moldings Closing Date      |       | 9.7                   |
| Dimension Moldings Property          |       | 9.7                   |
| Dissenting Shares                    |       | 3.2(a)                |
| Effective Time                       |       | 1.2                   |
| Encumbrances                         |       | 2.3                   |
| Environment                          |       | 4.14                  |
| Environmental Laws                   |       | 4.14                  |
| Equity Commitment Letter             |       | 5.4                   |
| Equity Financing                     |       | 5.4                   |
| Equity Interests                     |       | 4.2                   |
| ERISA                                |       | 4.9(a)                |
| Escrow Account                       |       | 2.8                   |
| Escrow Agent                         |       | 2.8                   |
| Escrow Agreement                     |       | 2.8                   |
| Escrow Amount                        |       | 2.8                   |
| Escrow Payment Reduction Amount      |       | 9.4(d)                |
| Estimated Cash and Cash Equivalents  |       | 2.5(a)                |
| Estimated Working Capital            |       | 2.5(a)                |
| Estimated Working Capital Adjustment |       | 2.5(b)                |
| Exchange Agent                       |       | 3.1(a)                |
| Fall-Back Month-End Balance Sheet    |       | 2.5(a)                |
| Fall-Back Month-End Financials       |       | 7.2(c)                |
| Final Closing Adjustment             |       | 2.6(e)                |
| Final Merger Consideration           |       | 2.6(e)                |
| Financial Statements                 |       | 4.5                   |
| Financing                            |       | 5.4                   |
| Financing Commitments                |       | 5.4                   |
| Fundamental Parent Representations   |       | 11.6                  |
| Fundamental Seller Representations   |       | 11.6                  |
| GAAP                                 |       | 4.1(a)                |
| General Enforceability Exceptions    |       | 4.1(b)                |
| Governmental Authority               |       | 11.6                  |
| Hazardous Material                   |       | 4.14                  |
| HSR Act                              |       | 7.5(a)                |
| Indebtedness                         |       | 11.6                  |
| Indemnifiable Costs                  |       | 9.4(d)                |
| Indemnification Cap                  |       | 9.2(b)(ii)            |
| Indemnification Claim Notice         |       | 9.2(d)                |
| Indemnification Cut-Off Date         |       | 9.2(b)(iv)            |
| Indemnified Parties                  |       | 7.8(a)                |

 

2

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| **Term**                          | ** ** | **Section Reference** |
|-----------------------------------|------------|-----------------------|
|                              |       |                  |
| Indemnity Claim                   |       | 9.4(b)                |
| Intellectual Property             |       | 11.6                  |
| IRS                               |       | 11.6                  |
| Leased Real Property              |       | 4.10(a)               |
| Lease(s)                          |       | 4.10(a)               |
| Losses                            |       | 11.6                  |
| Loss Tax Benefit                  |       | 9.2(c)                |
| Management Rollover Agreements    |       | 2.10                  |
| Marks                             |       | 11.6                  |
| Measurement Time                  |       | 2.5(c)                |
| Merger                            |       | Recitals              |
| MergerCo                          |       | Introduction          |
| Merger Consideration              |       | 2.1(d)                |
| Mini-Threshold                    |       | 9.2(b)(i)             |
| Necessary Stockholder Approval    |       | 4.1(c)                |
| Net Working Capital               |       | 11.6                  |
| New Executive Arrangements        |       | Recitals              |
| New Ordinary Course Contract      |       | 6.1(e)                |
| Nonvoting Common Stock            |       | 11.6                  |
| OCM Commitment Letter             |       | 5.4                   |
| Olympus                           |       | 10.3                  |
| Olympus Debt Commitment Letter    |       | 5.4                   |
| Option                            |       | 11.6                  |
| Optionholder(s)                   |       | 2.2(a)                |
| Original Date                     |       | Recitals              |
| Parent                            |       | Introduction          |
| Parent Material Adverse Effect    |       | 5.1                   |
| Parent/MergerCo Indemnified Party |       | 9.2(a)                |
| Patents                           |       | 11.6                  |
| Person                            |       | 11.6                  |
| Plan                              |       | 11.6                  |
| Post-Closing Period               |       | 11.6                  |
| Post-Closing Tax Benefit          |       | 11.6                  |
| Pre-Closing Period                |       | 11.6                  |
| Price Per Common Share            |       | 2.1(c)                |
| Prior Agreement                   |       | Recitals              |
| Pro Rata Portion                  |       | 11.6                  |
| Prior Written Consent             |       | 7.1(a)(i)             |
| Property Taxes                    |       | 11.6                  |
| Release                           |       | 4.14                  |
| Review Period                     |       | 2.6(a)                |
| Rollover Amount                   |       | 11.6                  |
| Rollover Participants             |       | 2.10                  |

 

3

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| **Term**                          | ** ** | **Section Reference** |
|-----------------------------------|------------|-----------------------|
|                              |       |                  |
| Rollover Shares                   |       | 2.10                  |
| Schedules                         |       | 11.2                  |
| Schedule Supplement               |       | 7.4                   |
| Stockholders                      |       | 2.1                   |
| Stockholders Agreement            |       | 11.6                  |
| Stockholders’ Representative |       | Introduction          |
| Subsidiary                        |       | 11.6                  |
| Superior Proposal                 |       | 7.7(c)                |
| Suppliers                         |       | 4.22                  |
| Surviving Corporation             |       | 1.1                   |
| Tail Policy                       |       | 7.8(c)                |
| Tax(es)                           |       | 11.6                  |
| Tax Contest                       |       | 7.9(h)                |
| Tax Returns                       |       | 11.6                  |
| Threshold                         |       | 9.2(b)(i)             |
| Total Option Proceeds             |       | 2.2(a)                |
| Transaction Agreements            |       | 9.4(a)                |
| Transaction Deductions            |       | 11.6                  |
| Transfer Taxes                    |       | 7.9                   |
| Voting Common Stock               |       | 11.6                  |
| Written Consent                   |       | 7.1(b)                |

 

4

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