"BUSINESS
COMBINATION");
(C)
SOLICIT PROXIES OR SHAREHOLDER CONSENTS OR PARTICIPATE IN ANY SUCH
SOLICITATION FOR ANY PURPOSE RELATING TO THE ELECTION OR REMOVAL OF DIRECTORS OF
THE COMPANY OR A BUSINESS COMBINATION;
(D)
FORM, JOIN, ENCOURAGE, INFLUENCE, ADVISE OR PARTICIPATE IN A
"GROUP" (AS DEFINED IN SECTION 13(D)(3) OF THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED (THE "EXCHANGE ACT")) WITH RESPECT TO THE VOTING, OWNERSHIP OR
CONTROL OF ANY COMMON STOCK (OTHER THAN THE GROUP CONSISTING OF THE CURRENT
MEMBERS OF THE PURCHASER GROUP);
(E)
SEEK TO HAVE THE COMPANY WAIVE, AMEND OR MODIFY ITS CERTIFICATE OF
INCORPORATION, BYLAWS OR THE RIGHTS AGREEMENT, DATED AS OF JULY 17, 2001,
BETWEEN THE COMPANY AND MELLON INVESTOR SERVICES LLC (THE "RIGHTS AGREEMENT");
(F)
ASSIST, ADVISE OR ENCOURAGE (INCLUDING BY KNOWINGLY PROVIDING OR
ARRANGING FINANCING FOR THAT PURPOSE) ANY OTHER PERSON IN CONNECTION WITH ANY OF
THE FOREGOING; OR
(G)
MAKE, OR TAKE ANY ACTION (INCLUDING A REQUEST TO WAIVE OR AMEND
ANY PROVISION OF THIS AGREEMENT) THAT WOULD CAUSE THE COMPANY TO MAKE, A PUBLIC
ANNOUNCEMENT REGARDING ANY INTENTION OF THE PURCHASER GROUP OR ANY OF THEIR
RESPECTIVE AFFILIATES TO TAKE AN ACTION WHICH WOULD BE PROHIBITED BY ANY OF THE
FOREGOING.
FOR PURPOSES OF THIS LETTER AGREEMENT,
(I) "AFFILIATES" SHALL MEAN (1) ANY
PERSON, CORPORATION, PARTNERSHIP, TRUST, LIMITED LIABILITY COMPANY OR OTHER
ENTITY, WHETHER EXISTING NOW OR IN THE FUTURE, THAT, DIRECTLY OR INDIRECTLY,
CONTROLS, IS CONTROLLED BY OR IS UNDER COMMON CONTROL WITH, THE PURCHASER GROUP;
PROVIDED, HOWEVER, THAT NO CORPORATION, PARTNERSHIP, TRUST, LIMITED LIABILITY
COMPANY OR OTHER ENTITY IN WHICH A CONTROLLED FUND (AS DEFINED BELOW) HAS MADE
OR IN THE FUTURE
2
MAKES AN INVESTMENT SHALL BE CONSIDERED AN AFFILIATE FOR PURPOSES OF THIS LETTER
AGREEMENT AND/OR (2) ANY FUND, WHETHER EXISTING NOW OR IN THE FUTURE, OF WHICH
WP IS A GENERAL PARTNER OR WP LLC IS A MANAGER (A "CONTROLLED FUND") AND (II)
"BENEFICIALLY OWNS" (INCLUDING THE TERMS "BENEFICIAL OWNERSHIP", "BENEFICIALLY
OWNED" OR "BENEFICIALLY OWNING") SHALL MEAN BENEFICIAL OWNERSHIP WITHIN THE
MEANING OF RULE 13D-3 UNDER THE EXCHANGE ACT.
2.
NO EFFECT ON DIRECTORS.
NOTWITHSTANDING ANY OF THE FOREGOING,
THE PROVISIONS SET FORTH IN SECTION 1 SHALL IN NO WAY LIMIT THE ABILITY OF ANY
INDIVIDUAL WHO IS SERVING AS A DIRECTOR OF THE COMPANY TO TAKE ANY ACTIONS (OR
TO REFRAIN FROM TAKING ANY ACTIONS) IN THEIR CAPACITY AS DIRECTORS OF THE
COMPANY.
3.
WAIVER OF SECTION 203.
THE COMPANY REPRESENTS AND WARRANTS TO
THE PURCHASER GROUP THAT THE BOARD HAS TAKEN ALL ACTION NECESSARY TO RENDER
INAPPLICABLE THE PROVISIONS OF SECTION 203 OF THE GENERAL CORPORATION LAW OF THE
STATE OF DELAWARE ("SECTION 203") SOLELY AS IT RELATES TO THE ACQUISITION BY THE
PURCHASER GROUP OF BENEFICIAL OWNERSHIP OF UP TO 25.0% OF THE COMPANY'S ISSUED
AND OUTSTANDING COMMON STOCK (THE "WAIVER"); PROVIDED, HOWEVER, SUCH WAIVER
SHALL NO LONGER BE APPLICABLE IF, SUBSEQUENT TO BECOMING AN "INTERESTED
STOCKHOLDER" (AS DEFINED IN SECTION 203), THE PURCHASER GROUP NO LONGER HAS
BENEFICIAL OWNERSHIP OF