ONE MANAGEMENT
DIRECTOR AS SELECTED BY THE BOARD OF DIRECTORS FROM TIME TO TIME;
(II)
A COMPENSATION COMMITTEE, RESPONSIBLE, AMONG OTHER THINGS, FOR
THE ADOPTION, AMENDMENT AND ADMINISTRATION OF ALL EMPLOYEE BENEFIT PLANS AND
ARRANGEMENTS AND THE COMPENSATION OF ALL OFFICERS OF THE COMPANY, AND CONSISTING
OF TWO INDEPENDENT DIRECTORS AND TWO PURCHASER DIRECTORS AS SELECTED BY THE
NOMINATING COMMITTEE AND THE PURCHASER, RESPECTIVELY, FROM TIME TO TIME;
(III)
A SUPERVISORY COMMITTEE, RESPONSIBLE, AMONG OTHER THINGS, FOR (A)
THE GENERAL OVERSIGHT, ADMINISTRATION, AMENDMENT AND ENFORCEMENT, ON BEHALF OF
THE COMPANY, OF (1) THOSE PROVISIONS OF THE TENDER OFFER AGREEMENT THAT SURVIVE
PURCHASER'S PURCHASE OF SHARES PURSUANT TO THE TENDER OFFER, (2) THIS AGREEMENT,
AND (3) THAT CERTAIN LICENSE AGREEMENT DATED TODAY'S DATE BETWEEN AN AFFILIATE
OF PURCHASER AND THE COMPANY, AND (B) THE ENTRY INTO, GENERAL OVERSIGHT,
ADMINISTRATION, AMENDMENT AND ENFORCEMENT, ON BEHALF OF THE
COMPANY, OF ANY
OTHER AGREEMENTS OR ARRANGEMENTS BETWEEN THE COMPANY OR ANY OF ITS SUBSIDIARIES,
ON THE ONE HAND, AND THE PURCHASER AND ANY OF ITS SUBSIDIARIES ON THE OTHER
HAND, WHICH WOULD BE REQUIRED PURSUANT TO REGULATION S-K PROMULGATED BY THE SEC
TO BE DISCLOSED IN A REGISTRATION STATEMENT FILED UNDER THE SECURITIES ACT OR IN
A PROXY STATEMENT OR OTHER REPORT FILED UNDER THE EXCHANGE ACT; AND CONSISTING
OF AT LEAST THREE INDEPENDENT DIRECTORS SELECTED BY A MAJORITY OF THE
INDEPENDENT DIRECTORS; AND
(IV)
SUCH OTHER COMMITTEES AS THE BOARD OF DIRECTORS DEEMS NECESSARY OR
DESIRABLE; PROVIDED THAT SUCH COMMITTEES SHALL NOT CONFLICT WITH, SUPERSEDE OR
DUPLICATE THE DUTIES OR RESPONSIBILITIES OF THE COMMITTEES ESTABLISHED PURSUANT
TO THIS SECTION 3.04.
(B)
EACH COMMITTEE ESTABLISHED PURSUANT TO THIS AGREEMENT SHALL ACT BY
THE AFFIRMATIVE VOTE OF A MAJORITY OF ITS MEMBERS OR BY UNANIMOUS WRITTEN
CONSENT.
SECTION 3.5.
CERTIFICATE OF INCORPORATION AND BY-LAWS.
(A)
THE COMPANY AND PURCHASER SHALL TAKE OR CAUSE TO BE TAKEN ALL
LAWFUL ACTION NECESSARY TO ENSURE AT ALL TIMES THAT THE COMPANY'S CERTIFICATE OF
INCORPORATION AND BY-LAWS ARE NOT, AT ANY TIME, INCONSISTENT WITH THE PROVISIONS
OF THIS AGREEMENT.
(B)
THE CERTIFICATE OF INCORPORATION AND BY-LAWS OF THE COMPANY SHALL
CONTAIN PROVISIONS NO LESS FAVORABLE WITH RESPECT TO INDEMNIFICATION THAN ARE
SET FORTH IN ARTICLE X OF THE BY-LAWS OF THE COMPANY AS IN EFFECT ON THE DATE
HEREOF, WHICH PROVISIONS SHALL NOT BE AMENDED, REPEALED OR OTHERWISE MODIFIED IN
ANY MANNER THAT WOULD AFFECT ADVERSELY THE RIGHTS
7
THEREUNDER OF THE DIRECTORS, OFFICERS, EMPLOYEES, FIDUCIARIES OR AGENTS OF THE
COMPANY, UNLESS SUCH MODIFICATION SHALL BE REQUIRED BY LAW.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1.
Representations of Purchaser and the Company.
Purchaser and the
Company represent and warrant, to each other as follows:
(A)
AUTHORITY RELATIVE TO THIS AGREEMENT.
IT HAS ALL NECESSARY POWER
AND AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT, TO PERFORM ITS OBLIGATIONS
HEREUNDER AND TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY.
THE EXECUTION
AND DELIVERY OF THIS AGREEMENT BY IT AND THE CONSUMMATION BY IT OF THIS
AGREEMENT HAVE BEEN DULY AND VALIDLY AUTHORIZED