SELLER ACHIEVED
RECORD OPERATING PROFITABILITY IN THE FISCAL QUARTER ENDED JUNE 25, 2006, AND
(II) THE CLOSING SALE PRICE OF THE BUYER'S COMMON STOCK HAS INCREASED FROM
$13.08 PER SHARE AT SEPTEMBER 30, 2005 TO $24.03 PER SHARE AT SEPTEMBER 8, 2006.
THE SELLER FURTHER ACKNOWLEDGES AND CONFIRMS THAT IT IS AWARE THAT FUTURE
CHANGES AND DEVELOPMENTS IN (A) THE BUYER'S BUSINESS AND FINANCIAL CONDITION AND
OPERATING RESULTS, (B) THE INDUSTRIES IN WHICH THE BUYER COMPETES AND (C)
OVERALL MARKET AND ECONOMIC CONDITIONS, MAY CONTINUE TO HAVE A FAVORABLE IMPACT
ON THE VALUE OF THE COMMON STOCK AFTER THE SALE BY THE SELLER OF THE SHARES TO
THE BUYER PURSUANT TO THIS AGREEMENT.
(F)
THE SELLER REPRESENTS AND WARRANTS THAT THEY ARE NOT RELYING ON ANY
REPRESENTATION OR WARRANTY BY THE BUYER IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
3.2.
Representations, Warranties and Agreements of the Buyer.
(A)
AUTHORITY OF BUYER.
THE BUYER HAS THE REQUISITE CORPORATE POWER AND
AUTHORITY TO EXECUTE, DELIVER AND PERFORM THIS AGREEMENT.
THIS AGREEMENT HAS
BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY THE BUYER AND IS THE LEGAL,
VALID AND BINDING OBLIGATION OF THE BUYER ENFORCEABLE IN ACCORDANCE WITH ITS
TERMS.
(B)
NO CONFLICT.
NEITHER THE EXECUTION AND DELIVERY OF THIS AGREEMENT OR THE
CONSUMMATION OF ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY NOR COMPLIANCE WITH
OR FULFILLMENT OF THE TERMS, CONDITIONS AND PROVISIONS HEREOF WILL CONFLICT
WITH, RESULT IN A BREACH OF THE TERMS, CONDITIONS OR PROVISIONS OF, OR
CONSTITUTE A DEFAULT, AN EVENT OF DEFAULT OR AN EVENT CREATING RIGHTS OF
ACCELERATION, TERMINATION OR CANCELLATION OR A LOSS OF RIGHTS UNDER (A) THE
CERTIFICATE OF INCORPORATION OR BY-LAWS OF THE BUYER, (B) ANY MATERIAL NOTE,
INSTRUMENT, AGREEMENT, MORTGAGE, LEASE, LICENSE, FRANCHISE, PERMIT OR OTHER
AUTHORIZATION, RIGHT, RESTRICTION OR OBLIGATION TO WHICH THE BUYER IS A PARTY OR
BY WHICH THE BUYER IS BOUND, (C) ANY COURT ORDER TO WHICH THE BUYER IS A PARTY
OR BY WHICH THE BUYER IS BOUND, OR (D) ANY REQUIREMENTS OF LAWS, RULES OR
REGULATIONS AFFECTING THE BUYER OR OTHERWISE APPLICABLE TO THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
ARTICLE IV
MUTUAL RELEASES
4.1
Seller Release.
The Seller, and anyone claiming through it or on
its behalf, as the case may be, agrees to irrevocably and unconditionally
release, waive and forever discharge the Buyer and its respective Affiliates (as
hereinafter defined), officers, directors, stockholders and employees and past,
present or future Affiliated Persons (as hereinafter defined) from, and
covenants not to sue the Buyer Released Parties (as hereinafter defined) with
respect to, any and all actions, causes of action, claims, demands, rights,
remedies, expenses and liabilities of whatever kind or character, at law or in
equity, whether now known or unknown, that such Seller now has, has ever had, or
may ever have against any of the Buyer Released Parties with respect to the
Buyer, arising from or related to the purchase by the Buyer of the Shares from
the