Exhibit 2.1

EXECUTION COPY

AGREEMENT AND PLAN OF MERGER

by and among

AGRICORE UNITED HOLDINGS INC.,

BLUEBIRD ACQUISITION CORPORATION

and

DAKOTA GROWERS PASTA COMPANY, INC.

Dated as of March 10, 2010

TABLE OF CONTENTS

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TABLE OF CONTENTS

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TABLE OF CONTENTS

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TABLE OF CONTENTS

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EXHIBITS

Exhibit A — Certain Definitions

Exhibit B - Conditions of the Offer

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AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (“Agreement”) is made and entered into as of March 10, 2010, by and among AGRICORE UNITED HOLDINGS INC., a Delaware corporation (“Parent”), BLUEBIRD ACQUISITION CORPORATION, a North Dakota corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and DAKOTA GROWERS PASTA COMPANY, INC., a North Dakota corporation (the “Company”).  Certain capitalized terms used in this Agreement are defined in Exhibit A.

RECITALS

WHEREAS, the respective boards of directors of Parent, Merger Sub and the Company each have unanimously approved the acquisition of the Company on the terms and subject to the conditions set forth herein;

WHEREAS, in furtherance of the acquisition of the Company by Parent, Merger Sub shall commence a tender offer (as it may be amended from time to time as permitted under this Agreement, the “Offer”) to acquire, on the terms and subject to the conditions set forth herein, all of the outstanding shares of (i) common stock, par value $0.01 per share, of the Company (together with the associated preferred share purchase rights under the Company Rights Agreement (as defined herein), the “Common Shares”), at a price of $18.28 per Common Share, net to the holder thereof in cash (such amount, or any different amount per Common Share that may be paid pursuant to the Offer in accordance with the terms hereof, being hereinafter referred to as the “Common Offer Price”), and (ii) Series D Non-Cumulative Delivery preferred stock, par value $.01 per share, of the Company (the “Series D Shares”), at a price of $0.10 per Series D Share, net to the holder thereof in cash (such amount, or any different amount per Series D Share that may be paid pursuant to the Offer in accordance with the terms hereof, being hereinafter referred to as the “Series D Offer Price”).  The Common Shares and the Series D Shares are collectively referred to herein as the “Company Shares”;

WHEREAS, following the consummation of the Offer, Merger Sub will merge with and into the Company, with the Company as the surviving corporation in the merger (the “Merger”), and each Company Share that is not tendered and accepted pursuant to the Offer will thereupon be cancelled and converted into the right to receive cash in an amount equal to the Common Offer Price or the Series D Offer Price, as applicable, on the terms and subject to the conditions set forth herein.  Upon consummation of the Merger, Merger Sub will cease to exist and the Company will become a wholly owned subsidiary of Parent;

WHEREAS, the Company Board has unanimously (i) determined that this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are advisable, fair to and in the best interests of the stockholders of the Company and (ii) approved this Agreement and the transactions contemplated hereby, including the Offer and the Merger, on the terms and subject to the conditions set forth herein;

WHEREAS, concurrently with the execution of this Agreement and as inducement of Parent’s willingness to enter into this Agreement, each of the Major Shareholders is entering into a tender and support agreement (each, a “Support Agreement”), pursuant to which, among other

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things, each Major Shareholder has agreed to tender all Company Shares it beneficially owns into the Offer on the terms and subject to the conditions provided for in the Support Agreements;

WHEREAS, concurrently with the execution of this Agreement and as inducement of the Company’s willingness to enter into this Agreement, Viterra Inc., a corporation incorporated under the laws of Province of Saskatchewan and the indirect beneficial owner of all of the issued and outstanding capital stock of Parent (“Guarantor”), is issuing a guarantee (the “Guarantee”) of all of Parent’s obligations under this Agreement;

WHEREAS, the Company Board has unanimously approved the execution and delivery of the Support Agreements; and

WHEREAS, each of Parent, Merger Sub and the Company desire to make certain representations, warranties and agreements in connection with the Offer and the Merger and also to prescribe certain conditions to the Offer and the Merger.

NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained in this Agreement, and intending to be legally bound, Parent, Merger Sub and the Company hereby agree as follows:

ARTICLE 1

THE OFFER

Section 1.1.           The Offer.

(a)           Commencement of the Offer.  Provided this Agreement has not been terminated pursuant to Article 8, not prior to March 23, 2010 and not later than 5:00 p.m., New York City time, on March 24, 2010, Parent shall cause Merger Sub to, and Merger Sub shall, commence (within the meaning of Rule 14d-2 under the Exchange Act) the Offer to purchase (i) all of the Common Shares at a price per share equal to the Common Offer Price (as adjusted pursuant to Section 1.1(b), if applicable) and (ii) all of the Series D Shares at a price per share equal to the Series D Offer Price (as adjusted pursuant to Section 1.1(b), if applicable).

(b)           Terms and Conditions of the Offer.  The obligation of Merger Sub to accept for payment and to pay for any Company Shares tendered (and the obligation of Parent to cause Merger Sub to accept for payment and to pay for any Company Shares tendered) in the Offer shall be subject only to (i) the condition that, prior to the then scheduled Expiration Date of the Offer (as it may be extended from time to time pursuant to Section 1.1(d)), there be validly tendered and not withdrawn a number of Common Shares that, together with the Common Shares then owned by Parent and Merger Sub (if any), and without giving effect to any Common Shares held in treasury, represents more than 50% of the Adjusted Outstanding Share Number as of immediately prior to the Merger Sub’s acceptance for payment of the Company Shares pursuant to the Offer (the “Minimum Condition”), and (ii) the other conditions set forth on Exhibit B.  The conditions to the Offer set forth on Exhibit B are for the sole benefit of Parent and Merger Sub and may be waived by Parent or Merger Sub, in whole or in part, at any time and from time to time, in their sole discretion; provided that the Minimum Condition may be amended or waived by Parent or Merger Sub only with the prior written consent of the

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Company.  Parent and Merger Sub expressly reserve the right to increase the Common Offer Price or the Series D Offer Price or to make any other changes in the terms and conditions of the Offer; provided, however, that unless previously approved by the Company in writing, neither Parent nor Merger Sub may make any change to the terms or conditions of the Offer that (A) decreases the Common Offer Price or the Series D Offer Price (other than any adjustment made pursuant to Section 1.1(c)), (B) changes the form of consideration to be paid in the Offer, (C) reduces the number of Common Shares or Series D Shares sought to be purchased in the Offer, (D) imposes conditions to the Offer in addition to those set forth on Exhibit B, (E) amends the conditions to the Offer set forth on Exhibit B so as to broaden the scope of such conditions to the Offer, or (F) reduces the time period during which the Offer shall remain open or extends the Offer in any manner other than pursuant to and in accordance with the terms of Section 1.1(d), or otherwise amends any other term or condition of the Offer in a manner adverse to holders of Company Shares.

(c)           Adjustments to the Offer Prices.  The Common Offer Price and the Series D Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Common Shares or Series D Shares, if applicable), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other similar change with respect to the Common Shares or the Series D Shares, as applicable, occurring on or after the date hereof and prior to Merger Sub’s acceptance for payment (the time of such acceptance, the “Acceptance Time”) of, and payment for, the Company Shares pursuant to the Offer.

(d)           Expiration and Extension of the Offer.  Subject to the terms and conditions of this Agreement and the Offer, the initial expiration date of the Offer shall be midnight, New York City time, on the 30th Business Day after commencement of the Offer (determined in accordance with Rule 14d-1(g)(3) under the Exchange Act) (the initial “Expiration Date” and any expiration time and date established pursuant to an authorized extension of the Offer, as so extended, also an “Expiration Date”).  Without the prior written consent of the Company, Merger Sub shall not extend or otherwise change the Expiration Date except (i) as required by applicable Law including any rule, regulation, interpretation or position of the SEC or its staff, (ii) if, prior to the initial Expiration Date, the Minimum Condition or any of the other conditions to the Offer set forth on Exhibit B have not been satisfied or waived, Parent and Merger Sub shall extend the Expiration Date for a period of fifteen (15) Business Days (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) or (iii) if, prior to any then-scheduled Expiration Date (as the Expiration Date may be extended from time to time including an extension pursuant to clause (ii) of this Section 1.1(d)) the Minimum Condition or any other condition to the Offer has not been satisfied or waived, Parent and Merger Sub may, in their sole discretion, extend the Expiration Date for one or more periods not in excess of twenty (20) Business Days each (for this purpose calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) and which period shall not include the fifteen (15) Business Day period referred to in clause (ii) above, but in no event beyond the Outside Date, the length of each such period to be determined by Merger Sub in its sole discretion.  Notwithstanding the foregoing, if necessary to obtain a sufficient number of Common Shares (without regard to the exercise of the Top-Up Option) to reach the Short-Form Threshold, Parent and Merger Sub may elect, without the consent of the Company, to provide a subsequent offering period (and one or more extensions

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thereof) for the Offer in accordance with Rule 14d-11 under the Exchange Act following the acceptance of Company Shares pursuant to the Offer.

(e)           Payment for Company Shares.  Subject to the terms and conditions set forth herein and the Offer (including the satisfaction or waiver of the conditions to the Offer set forth on Exhibit B), Parent shall cause Merger Sub to, and Merger Sub shall, accept for payment and pay for all Company Shares validly tendered and not withdrawn pursuant to the Offer as promptly as practicable after the Expiration Date (as it may be extended in accordance with Section 1.1(d)) and in any event in compliance with Rule 14e-1(c) under the Exchange Act.  The Common Offer Price and the Series D Offer Price payable as consideration for each Common Share or Series D Share, as applicable, that is validly tendered and not withdrawn pursuant to the Offer or that is tendered during any subsequent offering period contemplated by Section 1.1(d) shall be paid net to the holder thereof in cash, subject to reduction only for any applicable federal back-up withholding or other Taxes payable by such holder.  To the extent any such amounts are so deducted or withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid.  Parent shall provide, or cause to be provided to Merger Sub, on a timely basis, the funds necessary to pay for any Company Shares that Merger Sub accepts or is obligated to accept for payment pursuant to the Offer.

(f)            Schedule TO; Offer Documents.  On the date the Offer is commenced (within the meaning of Rule 14d-2 under the Exchange Act), Parent and Merger Sub shall (i) file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the “Schedule TO”) with respect to the Offer, which shall contain as an exhibit or incorporate by reference an offer to purchase and forms of the related letter of transmittal, a summary advertisement in respect of the Offer (the Schedule TO and such offer to purchase, letter of transmittal, summary advertisement, and ancillary documents and instruments pursuant to which the Offer will be made, collectively, together with any supplements or amendments thereto, the “Offer Documents”), and (ii) cause the Offer Documents to be disseminated to holders of Company Shares as and to the extent required by applicable federal securities Laws.  The Company shall promptly furnish to Parent and Merger Sub in writing all information concerning the Company that may be required by applicable federal securities Laws or that is reasonably requested by Parent or Merger Sub for inclusion in the Offer Documents.  Parent and Merger Sub shall cause the Offer Documents to comply, and shall use their respective reasonable best efforts to cause the Offer to be conducted in accordance, in all material respects with all applicable federal securities Laws.  Parent and Merger Sub hereby further agree that the Offer Documents, on the date first filed with the SEC and on the date first published, sent or given to the holders of Company Shares, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that no covenant, agreement, representation or warranty is made by Parent or Merger Sub with respect to information supplied by the Company in writing specifically for inclusion or incorporation by reference in the Offer Documents.  The Company hereby agrees that the information provided by the Company in writing specifically for inclusion or incorporation by reference in the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not

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misleading.  Each of Parent, Merger Sub and the Company shall promptly correct any information provided by it for use in the Offer Documents if and to the extent that such information shall have become false or misleading in any material respect.  Parent and Merger Sub shall take all steps necessary to amend and supplement and to cause the Schedule TO, as so amended and supplemented, to be filed with the SEC and the other Offer Documents, as so amended and supplemented, to be disseminated to the holders of Company Shares, in each case as and to the extent required by applicable federal securities Laws.  Parent and Merger Sub shall provide the Company and its counsel a reasonable opportunity to review and comment on the Offer Documents prior to the filing thereof with the SEC and shall give good faith consideration to any comments made by the Company and its counsel.  Parent and Merger Sub shall provide to the Company and its counsel copies of all written comments and summaries of any other material communications that Parent, Merger Sub or their counsel may receive from the SEC or its staff with respect to the Offer Documents promptly after receipt thereof, and Parent and Merger Sub shall consult in good faith with the Company and its counsel prior to responding to any such comments.

Section 1.2.           Company Actions.

(a)           Company Determinations, Approvals and Recommendations.  The Company hereby approves and consents to the Offer and represents and warrants to Parent and Merger Sub that, at a meeting duly called and held prior to the date hereof, the Company Board has, upon the terms and subject to the conditions set forth herein, unanimously (i) determined that this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are advisable, fair to and in the best interests of the Company’s stockholders, (ii) approved this Agreement and the transactions contemplated hereby, including the Offer and the Merger, on the terms and subject to the conditions set forth herein, (iii) to the extent necessary, adopted a resolution for the purpose of causing Parent or Merger Sub not to be subject to any restriction set forth in any state takeover law or similar Law that might otherwise apply to the Offer, the Merger or any of the other transactions contemplated hereby, and (iv) recommended that (x) the holders of Company Shares accept the Offer and tender their Company Shares to Merger Sub pursuant to the Offer and (y) if required by applicable Law, holders of Common Shares adopt this Agreement in accordance with the provisions of applicable Law (clauses (x) and (y), collectively, the “Company Recommendation”).  The Company hereby consents to the inclusion of the foregoing determinations and approvals, including the Company Recommendation, in the Offer Documents.

(b)           Schedule 14D-9.  As soon as practicable after the Schedule TO is filed with SEC (but in no event later than the next succeeding Business Day), the Company shall (i) file with the SEC a Solicitation/ Recommendation Statement on Schedule 14D-9 (together with all amendments and supplements thereto, and including all exhibits thereto, the “Schedule 14D-9”), and (ii) cause the Schedule 14D-9 to be disseminated to the holders of Company Shares as and to the extent required by applicable federal securities Laws.  To the extent reasonably practicable, the Schedule 14D-9 shall be mailed to the holders of Company Shares with the Offer Documents (and if so, the expense of such mailing shall be borne by Parent in connection with its dissemination of the Offer Documents).  Subject to the provisions of Section 6.1, the Schedule 14D-9 shall contain the Company Recommendation and the other determinations and approvals of the Company Board set forth in Section 1.2(a).  Each of Parent and Merger Sub shall promptly

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furnish to the Company in writing all information concerning Parent and Merger Sub that may be required by applicable federal securities Laws or that is reasonably requested by the Company for inclusion in the Schedule 14D-9.  The Company shall cause the Schedule 14D-9 to comply, and shall use its reasonable best efforts to cause all actions conducted by it in connection with the Offer to be conducted in accordance, in all material respects with all applicable federal securities Laws.  The Company hereby further agrees that the Schedule 14D-9, on the date first filed with the SEC and on the date first published, sent or given to the holders of Company Shares, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that no covenant, agreement, representation or warranty is made by the Company with respect to information supplied by Parent or Merger Sub in writing specifically for inclusion or incorporation by reference in the Schedule 14D-9.  Parent and Merger Sub hereby agree that the information provided by them specifically in writing for inclusion or incorporation by reference in the Schedule 14D-9 shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.  Each of the Company, Parent and Merger Sub shall promptly correct any information provided by it for use in the Schedule 14D-9, if and to the extent that such information shall have become false or misleading in any material respect.  The Company shall take all steps necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented to be filed with the SEC and disseminated to the holders of Company Shares, in each case as and to the extent required by applicable federal securities Laws.  The Company shall provide Parent, Merger Sub and their counsel a reasonable opportunity to review and comment on the Schedule 14D-9 and any amendments thereto prior to the filing thereof with the SEC and shall give good faith consideration to any comments made by Parent, Merger Sub and their counsel.  The Company shall provide to Parent, Merger Sub and their counsel copies of all written comments and summaries of any other material communications that the Company or its counsel may receive from the SEC or its staff with respect to the Schedule 14D-9 promptly upon receipt thereof, and the Company shall consult in good faith with Parent, Merger Sub and their counsel prior to responding to any such comments.

(c)           Company Information.  In connection with the Offer, the Company shall, or shall cause its transfer agent to, promptly furnish Parent, at Parent’s cost, with mailing labels, security position listing and any available listing or computer files containing the names and addresses of the record holders of Company Shares as of a recent date and shall furnish Merger Sub with such additional information and assistance (including updated lists of stockholders, mailing labels and list is of securities positions) as Merger Sub or its agents may reasonably request in communicating the Offer to the record and beneficial holders of Company Shares.

Section 1.3.           Company Board of Directors and Committees.

(a)           Composition of Company Board and Board Committees.  Promptly following the Acceptance Time and at all times thereafter, Merger Sub shall be entitled to designate from time to time up to such number of directors on the Company Board equal to the product (rounded up to the next whole number) obtained by multiplying (i) the number of directors on the Company Board (giving effect to any increase in the number of directors pursuant to this Section 1.3) and

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(ii) a fraction, the numerator of which is the number of Common Shares held by Parent and Merger Sub (giving effect to the Common Shares purchased pursuant to the Offer and the Top-Up Option Shares, if applicable), and the denominator of which is the total number of then outstanding Common Shares.  Promptly following a request by Merger Sub, the Company shall, subject to applicable Law, take all necessary actions to cause the individuals so designated by Merger Sub to be elected or appointed to the Company Board, including (at Merger Sub’s election) either by increasing the size of the Company Board or securing the resignations of such number of incumbent directors as is necessary to enable Merger Sub’s designees to be appointed to the Company Board.  Subject to applicable Law, at all times after the Acceptance Time, the Company shall take all necessary actions to cause individuals designated from time to time by Merger Sub to constitute substantially the same percentage (rounding up where appropriate) as is on the Company Board, on each committee of the Company Board and on the board of directors of each of the Company’s Subsidiaries and each committee (or similar body) of each such board of directors.  Any and all members of the Company Board immediately prior to the appointment of Merger Sub’s designees who remain on the Company Board after such appointment shall be referred to as “Continuing Directors”.  The provisions of this Section 1.3 are in addition to, and shall not limit, any rights that Parent and Merger Sub or any of their respective Affiliates may have with respect to the election of directors or otherwise under applicable Law as a holder or beneficial owner of Common Shares.

(b)           Director Independence.  In the event that Merger Sub’s designees are elected or appointed to the Company Board pursuant to Section 1.3(a), until the Effective Time, the Company Board shall have at least such number of directors as may be required by applicable Law who are considered independent directors within the meaning of such Laws (“Independent Directors”); provided that in such event, if the number of Independent Directors shall be reduced below the number of directors as may be required by such Laws for any reason whatsoever, the remaining Independent Director(s) shall be entitled to designate persons to fill such vacancies who shall be deemed to be Independent Directors for purposes of this Agreement or, if no other Independent Director then remains, the other directors shall designate such number of directors as may be required by applicable Law, to fill such vacancies who shall not be stockholders or Affiliates of Parent or Merger Sub, and such Persons shall be deemed to be Independent Directors for purposes of this Agreement.

(c)           Section 14(f) of the Exchange Act.  The Company’s obligation to appoint Merger Sub’s designees to the Company Board pursuant to Section 1.3(a) shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 thereunder.  The Company shall promptly take all action required pursuant to this Section 1.3 and Section 14(f) of the Exchange Act and Rule 14f-1 thereunder in order to fulfill its obligations under this Section 1.3, and shall include in the Schedule 14D-9 such information with respect to the Company and its directors and officers as is required under such section and rule in order to fulfill its obligations under this Section 1.3.  Merger Sub shall promptly provide to the Company in writing, and be solely responsible for, any information with respect to itself and its nominees, directors, officers and Affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 thereunder.

(d)           Required Approvals of Continuing Directors.  Notwithstanding anything to the contrary set forth herein, in the event that Merger Sub’s designees are elected or appointed to the Company Board prior to the Effective Time and there shall be any Continuing Directors, the

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approval of a majority of such Continuing Directors (or the sole Continuing Director if there is only one Continuing Director) shall be required in order to (i) amend or terminate this Agreement, or agree or consent to any amendment or termination of this Agreement in accordance with its terms, in any case on behalf of the Company, (ii) extend the time for performance of, or waive, any of the obligations or other acts of Parent or Merger Sub under this Agreement, (iii) waive any of the Company’s rights under this Agreement, (iv) amend, rescind, repeal or waive the Organizational Documents of the Company in any manner that would reasonably be expected to adversely affect the rights of stockholders of the Company (other than Parent and Merger Sub), or (v) make any other determination with respect to any action to be taken or not to be taken by or on behalf of the Company relating to this Agreement or any of the transactions contemplated hereby, including the Offer and the Merger, that would reasonably be expected to adversely affect the rights of stockholders of the Company (other than Parent and Merger Sub).

Section 1.4.           Top-Up Option.

(a)           The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), to purchase, at a price per Common Share equal to the Common Offer Price, such number of Common Shares (the “Top-Up Option Shares”) that, when added to the number of Common Shares owned by Parent and Merger Sub and any other wholly owned Subsidiary of Parent immediately prior to the time of exercise of the Top-Up Option, constitutes at least one share more than 90% of the Adjusted Outstanding Share Number immediately after the issuance of Top-Up Option Shares.  The Top-Up Option may be exercised at any time following the Acceptance Time; provided, however, that the obligation of the Company to deliver the Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) no Governmental Body of competent jurisdiction shall have issued or granted any Order prohibiting the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, and (ii) the issuance of the Top-Up Option will not cause the Company to have more shares outstanding than are authorized by its Organizational Documents.  The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with applicable Law, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act.  The Top-Up Option Shares have been duly authorized by the Company Board and, when issued in accordance with the terms of this Agreement, will be validly issued, fully paid and nonassessable.

(b)           In the event Merger Sub elects to exercise the Top-Up Option, Parent or Merger Sub shall inform the Company of the number of Common Shares accepted for payment pursuant to the Offer and the Company shall then promptly notify Parent and Merger Sub of the number of Top-Up Option Shares to be purchased, such number to be calculated pursuant to Section 1.4(a).  The closing of the purchase of the Top-Up Option Shares shall take place at a time and date designated by Parent or Merger Sub (in consultation with the Company), which shall be no later than two Business Days after the Acceptance Time, at the offices of Sidley Austin LLP, One South Dearborn Street, Chicago, Illinois, unless another time, date or place is agreed upon by the parties hereto.  The aggregate purchase price payable for the Top-Up Option Shares being purchased by Merger Sub pursuant to the Top-Up Option shall be determined by multiplying the number of such Top-Up Option Shares by the Common Offer Price.  Such purchase price shall be paid by Merger Sub, at its election, either (i) entirely in cash, (ii) by executing and delivering

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to the Company a promissory note having a principal amount equal to the amount of such purchase price, or (iii) some combination of cash and a promissory note.  Any such promissory note shall bear interest at the rate of interest per annum equal to the prime lending rate prevailing from time to time during such period as published in the Wall Street Journal, shall mature on the first anniversary of the date of execution and delivery to the Company of such promissory note and may be prepaid without premium or penalty.  The Company shall, at Merger Sub’s request, cause to be issued to Merger Sub a certificate representing the Top-Up Option Shares.

(c)           Parent and Merger Sub understand that the Top-Up Option Shares will not be registered under the Securities Act and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering.  Each of Parent and Merger Sub represents, warrants and agrees that the Top-Up Option is being, and the Top-Up Option Shares will be, acquired by Merger Sub for the purpose of investment and not with a view to or for resale in connection with any distribution thereof within the meaning of the Securities Act.  Any certificates evidencing Top-Up Option Shares shall include any legends required by the Company and applicable federal securities Laws.

ARTICLE 2

THE MERGER

Section 2.1.           The Merger.  Upon the terms and subject to the conditions set forth herein and the provisions of the North Dakota Business Corporation Act (the “North Dakota Act”), at the Effective Time, Merger Sub shall be merged with and into the Company, the separate corporate existence of Merger Sub shall thereupon cease, and the Company shall continue as the surviving corporation of the Merger.  The Company, as the surviving corporation of the Merger, is sometimes hereinafter referred to as the “Surviving Corporation”.

Section 2.2.           The Effective Time.  Subject to the provisions of this Agreement, on the Closing Date, the proper officers of the Company and Merger Sub shall execute and acknowledge articles of merger (the “Articles of Merger”).  The Merger shall become effective when the Articles of Merger are executed and filed with the North Dakota Secretary of State in accordance with the North Dakota Act; provided, however, that upon mutual consent of the Company and Merger Sub, the Articles of Merger may provide for a later date and time of effectiveness of the Merger.  The date and time the Merger becomes effective shall be referred to in this Agreement as the “Effective Time”.

Section 2.3.           The Closing.  The consummation of the Merger (the “Closing”) shall take place at the offices of Sidley Austin LLP, One South Dearborn Street, Chicago, Illinois, at 10:00 a.m. (local time) on a date to be mutually agreed on by Parent and the Company (the “Closing Date”), which shall be no later than the second Business Day after the satisfaction or waiver of the last to be satisfied or waived of the conditions set forth in Article 7 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions), or on such other date as the parties may mutually agree.  The parties agree to use their reasonable best efforts to cause the Closing to occur as close in time as possible to (including, to the extent possible, on the same day as) the issuance and delivery of the Top-Up Option Shares.

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Section 2.4.           Effect of the Merger.  At the Effective Time, the effect of the Merger shall be as provided in this Agreement and the applicable provisions of the North Dakota Act.  Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all of the property, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation.

Section 2.5.           Articles of Incorporation and Bylaws.

(a)           Articles of Incorporation.  At the Effective Time, the Second Amended and Restated Articles of Incorporation of the Company shall be the articles of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law.

(b)           Bylaws.  At the Effective Time, the Second Amended and Restated Bylaws of the Company, as in effect immediately prior to the Effective Time, shall be the bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or the articles of incorporation of the Company.

Section 2.6.           Directors and Officers.

(a)           Directors.  At the Effective Time, the directors of the Surviving Corporation shall be the directors of Merger Sub immediately prior to the Effective Time, each to hold office in accordance with the Organizational Documents of the Surviving Corporation until his or her resignation or removal or until his or her respective successor is duly elected or appointed and qualified, as the case may be.

(b)           Officers.  At the Effective Time, the officers of the Surviving Corporation shall be the officers of the Company immediately prior to the Effective Time, each to hold office in accordance with the Organizational Documents of the Surviving Corporation until his or her resignation or removal or until his or her respective successor is duly appointed and qualified, as the case may be.

Section 2.7.           Effect on Capital Stock.

(a)           Capital Stock.  Upon the terms and subject to the conditions set forth herein, at the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub or the Company, or the holders of any of the following securities, the following shall occur:

(i)            Common Shares.  Each Common Share issued and outstanding immediately prior to the Effective Time (other than any (A) Cancelled Shares and (B) Dissenting Shares) shall be cancelled and extinguished and automatically converted into the right to receive cash in an amount equal to the Common Offer Price, without interest thereon.  All such Common Shares, when so converted, shall no longer be outstanding and shall automatically be cancelled and retired and each holder of a certificate representing any such Common Shares shall cease to have any rights with respect thereto, except the right to receive the Common Offer Price with respect to each such Common Share.

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(ii)                                  Series D Shares.  Each Series D Share issued and outstanding immediately prior to the Effective Time (other than any (A) Cancelled Shares and (B) Dissenting Shares) shall be cancelled and extinguished and automatically converted into the right to receive cash in an amount equal to the Series D Offer Price, without interest thereon.  All such Series D Shares, when so converted, shall no longer be outstanding and shall automatically be cancelled and retired and each holder of a certificate representing any such Series D Shares shall cease to have any rights with respect thereto, except the right to receive the Series D Offer Price with respect to each such Series D Share.

(iii)                               Parent, Merger Sub and Company-Owned Shares.  Each Company Share that is owned, directly or indirectly, by Parent, Merger Sub or the Company immediately prior to the Effective Time (whether pursuant to the Offer or otherwise) shall be cancelled and extinguished without any conversion thereof or consideration paid therefor (such shares, the “Cancelled Shares”).

(iv)                              Capital Stock of Merger Sub.  Each share of common stock, par value $.01 per share, of Merger Sub that is issued and outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid and nonassessable share of common stock, par value $.01 per share, of the Surviving Corporation.  Each certificate evidencing ownership of such shares of common stock of Merger Sub shall thereafter evidence ownership of shares of common stock of the Surviving Corporation.

(b)                                 Adjustment to Merger Consideration.  Without duplication to the effects of Section 1.1(c), the Common Offer Price and the Series D Offer Price due pursuant to the Merger shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Common Shares or Series D Shares), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to Common Shares or Series D Shares, as applicable, occurring on or after the date hereof and prior to the Effective Time.

(c)                                  Statutory Rights of Appraisal.  Notwithstanding anything to the contrary set forth herein, Company Shares issued and outstanding immediately prior to the Effective Time and held by any holder who is entitled to demand and properly demands appraisal of such shares pursuant to, and who complies in all respects with, the provisions of Section 10-19.1-88 of the North Dakota Act (such section, the “Appraisal Section” and such shares, the “Dissenting Shares”) shall not be converted into the right to receive the applicable consideration as provided in Section 2.7(a), but instead such holder shall be entitled to payment of the fair value of such holder’s Dissenting Shares in accordance with the provisions of the Appraisal Section.  At the Effective Time, the Dissenting Shares shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of Dissenting Shares shall cease to have any rights with respect thereto, except the right to receive the fair value of such shares in accordance with the provisions of the Appraisal Section.  Notwithstanding the foregoing, if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to appraisal under the Appraisal Section or a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by the Appraisal Section, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares under the Appraisal Section shall cease and such holder’s Dissenting Shares shall be deemed to have been converted at the Effective Time

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into, and shall have become, the right to receive the Common Offer Price or the Series D Offer Price, as applicable.  The Company shall give prompt notice to Parent of any written demands for appraisal of any Company Shares, withdrawals of such demands and any other instruments served pursuant to the Appraisal Section received by the Company, and the Company shall give Parent the opportunity to direct all negotiations and proceedings with respect to any such demands.  The Company shall not, except with the prior written consent of Parent, voluntarily make any payment with respect to any demands for appraisal or settle or offer to settle any such demands for payment in respect of Dissenting Shares, or agree to do any of the foregoing.

Section 2.8.                                Exchange of Certificates or Book-Entry Shares.

(a)                                  Payment Agent.  Prior to the Effective Time, Parent shall select a bank or trust company reasonably acceptable to the Company to act as the payment agent for the Merger (the “Payment Agent”) and, prior to the Expiration Date Parent shall enter into an agreement with the Payment Agent to provide for the foregoing on terms reasonably acceptable to the Company.

(b)                                 Exchange Fund.  Prior to the Effective Time, Parent shall deposit (or cause to be deposited) with the Payment Agent, in trust for the benefit of, and for payment to, the holders of Company Shares, an amount of cash sufficient to pay the aggregate Common Offer Price and the Series D Offer Price in exchange for all Company Shares issued and outstanding immediately prior to the Effective Time (other than the Cancelled Shares and the Dissenting Shares) pursuant to Section 2.7 (such cash being referred to herein as the “Exchange Fund”).  In the event the Exchange Fund shall be insufficient to make the payments contemplated by Section 2.7, upon request of the Payment Agent from time to time thereafter, Parent shall promptly deposit (or cause to be deposited) such additional cash amounts as are necessary to make the payments contemplated hereby.

(c)                                  Payment Procedures.

(i)                                     Promptly (and in any event within five Business Days) following the Effective Time, Parent and Merger Sub shall cause the Payment Agent to mail to each holder of record of Company Shares whose Company Shares were converted into the Common Offer Price or the Series D Offer Price, as applicable, pursuant to Section 2.7 (A) a letter of transmittal, which shall specify that delivery shall be effected, and risk of loss and title to the certificates that immediately prior to the Effective Time represented Company Shares (collectively, “Certificates”) shall pass, only upon delivery of Certificates to the Payment Agent (and shall be in such form and have such other provisions as Parent may reasonably determine (in consultation with the Company)) and (B) instructions for use in effecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) or non-certificated Company Shares represented by book-entry (“Book-Entry Shares”) in exchange for the Common Offer Price or the Series D Offer Price, as applicable, payable in respect thereof pursuant to the provisions of this Article 2.

(ii)                                  Upon surrender of Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares to the Payment Agent together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and any other documents that as may customarily be required by the Payment

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Agent, the holder of such Certificates or Book-Entry Shares shall be entitled to receive in exchange therefor the amount of cash into which Company Shares theretofore represented by such Certificates or Book-Entry Shares shall have been converted pursuant to Section 2.7 (subject to any required Tax withholding).  Any Certificates or Book-Entry Shares so surrendered shall immediately be canceled.  The Payment Agent shall accept such Certificates or Book-Entry Shares upon compliance with such reasonable terms and conditions as the Payment Agent may impose to affect an orderly exchange thereof in accordance with normal exchange practices.  No interest shall be paid or accrued on any amount payable upon the surrender of such Certificates or Book-Entry Shares.  Until so surrendered, outstanding Certificates or Book-Entry Shares shall be deemed from and after the Effective Time to evidence only the right to receive the Common Offer Price or the Series D Offer Price, as applicable, payable in respect thereof pursuant to the provisions of this Article 2.

(d)                                 Transfers of Ownership.  In the event of a transfer of ownership of Company Shares that is not registered in the transfer or stock records of the Company, any cash to be paid upon due surrender of the Certificates or Book-Entry Shares formerly representing such Company Shares may be paid to such transferee if such Certificate or Book-Entry Share is presented to the Payment Agent, accompanied by all documents required to evidence and effect such transfer and evidence that any applicable stock transfer or other Taxes have been paid or are otherwise not applicable.

(e)                                  Required Withholding.  Each of the Payment Agent, Parent, Merger Sub and the Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any Person such amounts as may be required to be deducted or withheld therefrom under the Code or any other applicable Law.  To the extent that such amounts are so deducted or withheld and paid over to the applicable Governmental Body, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person in respect of which such deduction or withholding were made.

(f)                                    No Liability.  Notwithstanding anything to the contrary set forth herein, none of the Payment Agent, Parent, Merger Sub, the Company or the Surviving Corporation or any other Person shall be liable to any former holder of Company Shares for any amount properly paid to a public official pursuant to applicable Law.  If any Certificate or Book-Entry Share shall not have been surrendered prior to the date on which the related Common Offer Price or Series D Offer Price, as applicable, would, pursuant to applicable Law, escheat to or become the property of any Governmental Body, and such consideration shall, to the extent permitted by applicable Law, immediately prior to such time, become the property of the Surviving Corporation, free and clear of all claims or interests of any Person previously entitled thereto.

(g)                                 Termination of Exchange Fund.  Any portion of the Exchange Fund that remains undistributed to the former holders of Company Shares on the date that is six months after the Effective Time shall be delivered by the Payment Agent to the Surviving Corporation upon demand, and any former holders of Company Shares who have not theretofor surrendered their Certificates or Book-Entry Shares evidencing such Company Shares in accordance with the provisions of this Section 2.8 shall thereafter look only to the Surviving Corporation (subject to

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Section 2.8(f)) for payment of their claim to the Common Offer Price or the Series D Offer Price, without any interest thereon, upon due surrender of their Certificates or Book-Entry Shares.

Section 2.9.                                Effect of the Offer and the Merger on Company Options.

(a)                                  Each outstanding Company Option, whether or not then vested or exercisable, that is outstanding immediately prior to the Acceptance Time shall, as of immediately prior to the Acceptance Time, become fully vested and be cancelled and in exchange therefore be converted into the right to receive a payment in cash, payable without interest, equal to the product of (i) the excess, if any, of (A) the Common Offer Price over (B) the exercise price per Common Share subject to such Company Option multiplied by (ii) the number of Common Shares for which such Company Option shall not theretofore have been exercised; provided that, if the exercise price per Common Share of any Company Option is equal to or greater than the Common Offer Price, then such Company Option shall be cancelled without any cash payment being made in respect thereof.  The Company or the Surviving Corporation, as applicable, shall pay the holders of such cancelled Company Options the cash payments described in this Section 2.9(a) on or as soon as reasonably practicable after the date on which the Acceptance Time occurs, but in any event within five Business Days thereafter.  Prior to and effective as of the Effective Time, the Company shall take all action necessary to terminate the Company Stock Plans.

(b)                                 Each of the Surviving Corporation, the Company, Parent or Merger Sub, as applicable, shall be entitled to deduct and withhold from the amounts otherwise payable pursuant to this Section 2.9 to any holder of Company Options such amounts as are required to be deducted or withheld with respect to the making of such payment under the Code, or any provision of state, or local Tax Law, and the person making such deduction or withholding shall make any required filings with and payments to Tax authorities relating to any such deduction or withholding. To the extent that amounts are so deducted and withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Company Options in respect of which such deduction and withholding was made.

(c)                                  The Company Board (or the appropriate committee thereof) shall take the actions necessary to effectuate the foregoing provisions of this Section 2.9.

Section 2.10.                         No Further Ownership Rights in Company Shares.  From and after the Effective Time, all Company Shares shall no longer be outstanding and shall automatically be cancelled, retired and cease to exist, and each holder of Certificates or Book-Entry Shares theretofor representing any Company Shares (other than Cancelled Shares and Dissenting Shares) shall cease to have any rights with respect thereto, except the right to receive the Common Offer Price or the Series D Offer Price, as applicable, payable therefor upon the surrender of such Certificates or Book-Entry Shares in accordance with the provisions of this Article 2.  The Common Offer Price or the Series D Offer Price, as applicable, paid in accordance with the terms of this Article 2 shall be deemed to have been paid in full satisfaction of all rights pertaining to such Company Shares.  From and after the Effective Time, there shall be no further registration of transfers on the records of the Surviving Corporation of Company Shares that were issued and outstanding immediately prior to the Effective Time, other than transfers to reflect, in accordance with customary settlement procedures, trades effected prior to

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the Effective Time.  If, after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Article 2.

Section 2.11.                         Lost, Stolen or Destroyed Certificates.  In the event that any Certificates shall have been lost, stolen or destroyed, the Payment Agent or the Surviving Corporation, as applicable, shall issue in exchange for such lost, stolen or destroyed Certificates, upon the making of an affidavit of that fact by the holder thereof, the Common Offer Price or the Series D Offer Price, as applicable, payable in respect therefor pursuant to this Article 2; provided, however, that the Surviving Corporation may, in its discretion and as a condition precedent to the payment of such consideration, require the owners of such lost, stolen or destroyed Certificates to deliver a bond in such sum as the Surviving Corporation may reasonably direct, as indemnity against any claim that may be made against Parent, the Surviving Corporation or the Payment Agent with respect to the Certificates alleged to have been lost, stolen or destroyed.

Section 2.12.                         Investment of Exchange Fund.  The Payment Agent shall invest all cash included in the Exchange Fund as reasonably directed by Parent; provided, however, that any investments of such cash shall in all events be limited to direct short-term obligations of, or short-term obligations fully-guaranteed as to principal and interest by, the United States government and that no such investment or loss thereon shall affect the amounts payable to the former holders of Company Shares pursuant to this Article 2.  Any interest and other income, net of any losses, resulting from such investments shall be paid to the Surviving Corporation.

ARTICLE 3

REPRESENTATIONS AND WARRANTIES OF THE COMPANY.

Except (i) as set forth in the Company Disclosure Schedule or (ii) as disclosed in, and reasonably apparent from, the Company SEC Reports filed prior to the date hereof (but excluding any (A) forward-looking disclosures set forth in any risk factor section, (B) any disclosures in any section designated as relating to forward-looking statements and (C) other disclosures included therein to the extent that they are primarily cautionary, predictive or forward-looking in nature), the Company represents and warrants to Parent and Merger Sub as follows:

Section 3.1.                                Organization and Good Standing.

(a)                                  The Company is, and except where such failure, individually or in the aggregate, has not resulted in, and would not reasonably be expected to result in, a Company Material Adverse Effect, each of the Acquired Companies other than the Company is, a legal entity duly organized, validly existing, and in good standing under the laws of its respective jurisdiction of incorporation or organization, with full corporate power or other entity authority to conduct its respective business as now being conducted and to own, lease and use its respective properties and assets.

(b)                                 Each of the Acquired Companies is duly qualified to do business as a foreign corporation or other entity and is in good standing (where such concept is applicable) under the

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Laws of each state or other jurisdiction in which either the ownership or use of the properties and assets owned or used by it, or the nature of the activities conducted by it, requires such qualification, except where the failure to be so qualified or in good standing, individually or in the aggregate, has not resulted in, and would not reasonably be expected to result in, a Company Material Adverse Effect.

(c)                                  The Company has made available to Parent accurate and complete copies of the Organizational Documents of each of the Acquired Companies, as currently in effect.

Section 3.2.                                Authority; No Conflict.

(a)                                  The Company has all necessary corporate power and authority to execute and deliver this Agreement and subject, in the case of the consummation of the Merger, to obtaining the Company Stockholder Approval, to consummate the transactions contemplated hereby and to perform its obligations hereunder.  The execution and delivery of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby (including the Offer and the Merger) have been duly and validly authorized by all necessary corporate action and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or to consummate the transactions contemplated hereby (other than, in the case of the consummation of the Merger, obtaining the Company Stockholder Approval and the filing of the Articles of Merger).  This Agreement has been duly and validly executed and delivered by the Company and, assuming the due execution and delivery of the Agreement by Parent and Merger Sub, constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effect of (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to rights of creditors generally and (ii) rules of law and equity governing specific performance, injunctive relief and other equitable remedies.

(b)                                 Neither the execution and delivery of this Agreement nor the consummation of any of the transactions contemplated hereby (including the Offer and the Merger) in accordance with the terms hereof will (i) contravene, conflict with, or result in a violation of any provision of the Organizational Documents of any of the Acquired Companies, (ii) assuming that the consents, filings and notifications contemplated by Section 3.2(c) shall have been duly made or obtained, and any waiting periods required thereunder shall have been terminated or expired, in each case, prior to the Acceptance Time and, with respect to the Merger, the Company Stockholder Approval shall have been duly made or obtained prior to the Effective Time, contravene, conflict with, or result in a violation of applicable Law or any Order applicable to any of the Acquired Companies or any of their properties or assets; (iii) subject to obtaining the consents set forth on Section 3.2(b) of the Company Disclosure Schedule, contravene, conflict with, or result in a violation or breach (with or without notice or lapse of time or both) of any provision of, or give any Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Contract to which an Acquired Company is party or by which an Acquired Company is bound; or (iv) result (with or without notice or lapse of time or both) in the creation of any Encumbrance (other than a Permitted Encumbrance) upon any of the properties or assets of the Company or any of its Affiliates (including Parent and its Subsidiaries following the Acceptance Time), except, in the case of clauses (ii), (iii) and (iv), for any such conflicts, contraventions, violations, breaches,

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defaults or other occurrences that, individually or in the aggregate, have not resulted in, and would not reasonably be expected to result in, a Company Material Adverse Effect or Parent Material Adverse Effect, as applicable.

(c)                                  The execution and delivery of this Agreement by the Company do not, and the performance of this Agreement and the consummation of the transactions contemplated hereby (including the Offer and the Merger) by the Company in accordance with the terms hereof will not, require any consent, approval, license, permit or authorization of, or filing with or notification, registration or declaration to, any Governmental Body, except for compliance with (i) the applicable requirements of the Exchange Act, (ii) the pre-merger notification requirements of the HSR Act, (iii) the North Dakota Act, including the filing of the Articles of Merger, (iv) the approvals set forth in Section 3.2(c) of the Company Disclosure Schedule, and (v) such other consent, approval, license, permit or authorization, filing or notification requirements or obligations where the failure to obtain such consents approvals, licenses, permits or authorizations, or to make such filings or notifications, individually or in the aggregate, have not resulted in, and would not reasonably be expected to result in, a Company Material Adverse Effect.

Section 3.3.                                Capitalization.

(a)                                  The authorized capital stock of the Company consists solely of 100,000,000 shares of capital stock, which consists of (i) 75,000,000 Common Shares, (ii) 533 shares of Series A 6% Redeemable Cumulative Preferred Stock, $100 par value per share (the “Series A Shares”), (iii) 525 shares of Series B 2% Redeemable Non-Cumulative Preferred Stock, $100 par value per share (the “Series B Shares”), (iv) 2,731 shares of Series C 6% Non-Cumulative Preferred Stock, $100 par value per share (“Series C Shares”), (v) 11,340,841 Series D Shares, (vi) 130,000 shares of Series E Junior Participating Preferred Stock, $.01 par value per share (the “Series E Shares”), (vii) 2,100,000 shares of Series F Convertible Preferred Stock, $.01 par value per share (the “Series F Shares”), and (viii) 11,425,370 shares of undesignated preferred stock, $.01 par value per share.  Except as described in Section 3.3(a) of the Company Disclosure Schedule, there are not any phantom stocks or other contractual rights pursuant to Contracts to which the Company is a party, or to the Company’s Knowledge, any other contractual rights, the value of which is determined in whole or in part by the value of any capital stock of the Company and there are no outstanding stock appreciation rights with respect to the capital stock of the Company.  Section 3.3(a) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date of this Agreement, of all outstanding Company Options, the number of Common Shares subject thereto, the grant dates, expiration dates, exercise or base prices (if applicable) and vesting schedules thereof and the names of the holders thereof.

(b)                                 As of the date hereof, (i) 10,764,932 Common Shares are issued and outstanding and 62,007,126 Common Shares are available for issuance, (ii) 2,100,000 Common Shares are reserved for issuance upon the conversion of the Series F Shares and (iii) 127,942 Common Shares are reserved for issuance upon the exercise of outstanding Company Options or exercise, settlement or conversion of any other equity-based awards outstanding under the Company Stock Plans, (iv) no Common Shares are held in the treasury of the Company, (v) 32,237 Common Shares are reserved for issuance and available for the future grant of equity-based awards under the Company Stock Plans, (vi) 130,000 shares of Series E Shares are reserved for issuance upon

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exercise of the rights issued or issuable (the “Company Rights”) pursuant to the Second Amended and Restated Rights Agreement (the “Company Rights Agreement”), dated as of April 26, 2002, between the Company and Wells Fargo Bank Minnesota, National Association, as Rights Agent, (vii) no Series A Shares, Series B Shares, Series C Shares or Series E Shares are issued and outstanding, (viii) 11,322,745 Series D Shares are issued and outstanding, and (ix) 1,065,000 Series F Shares are issued and outstanding.  All of the issued and outstanding Common Shares, Series D Shares and Series F Shares have been duly authorized and validly issued, are fully paid and nonassessable and are not subject to any preemptive right.  All Common Shares which may be issued upon the exercise of outstanding Company Options or upon the exercise, settlement or conversion of equity-based awards outstanding under the Company Stock Plans will be, when issued in accordance with the terms thereof, duly authorized and validly issued, fully paid and nonassessable and not subject to any preemptive right.

(c)                                  There are not any bonds, debentures, notes or other indebtedness or, except as described in Section 3.3(b), securities of the Company, in each case having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of Company Shares may vote.  Except for the Company Options and the Company Rights, there are no outstanding subscriptions, options, warrants, calls, convertible securities or other similar rights, agreements or commitments relating to the issuance of capital stock or other equity interests to which any of the Acquired Companies is a party obligating any of the Acquired Companies to issue, transfer or sell any shares of capital stock or other equity interests of any Acquired Company or securities convertible into, exchangeable or exercisable for such shares or equity interests or to grant, extend or enter into such subscription, option, warrant, call, convertible securities or other similar right, agreement or arrangement.  None of the Acquired Companies has any Contract to repurchase, redeem or otherwise acquire any Company Shares or any capital stock of any of the Company’s Subsidiaries, or to make any investment (in the form of a loan, capital contribution or otherwise) in any other Person (other than any of the other Acquired Companies).  Each outstanding share of capital stock of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable and is owned by the Company free and clear of all Encumbrances other than Permitted Encumbrances, and no other equity interest of any of the Company’s Subsidiaries is outstanding.  None of the outstanding securities of any of the Acquired Companies was issued in violation of the Securities Act or any other applicable Law.  None of the Acquired Companies owns, or has any Contract to acquire, any equity securities or other securities of any Person.

(d)                                 Other than the Support Agreements, there are no voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries or, to the Company’s Knowledge, any of their respective officers or directors is a party with respect to the voting of the Company Shares or the capital stock or other equity interests of any Subsidiary of the Company.

Section 3.4.                                SEC Reports.

(a)                                  The Company has filed or furnished, as the case may be, on a timely basis all statements, forms, reports, schedules, exhibits and other documents required to be filed or furnished, as the case may be, by it with the SEC since August 1, 2008 (including any amendments thereto, the “Company SEC Reports”).  No Subsidiary of the Company is, or since

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August 1, 2008 has been, required to file any form, report, registration statement or other document with the SEC.

(b)                                 Each of the Company SEC Reports, as of the date of the filing of such report, (i) complied in all material respects with the requirements of the Securities Act and the Exchange Act, as the case may be, and, to the extent then applicable, the Sarbanes-Oxley Act of 2002 (“SOX”), including in each case, the rules and regulations thereunder, and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.

(c)                                  The Company has made available to Parent accurate and complete copies of all material written correspondence between the SEC, on the one hand, and the Company and any of its Subsidiaries, on the other hand, since August 1, 2004.  As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to the Company SEC Reports.  To the Company’s Knowledge, none of the Company SEC Reports (other than any Company SEC Reports filed in connection with the transactions contemplated herein) is the subject of ongoing SEC review or outstanding SEC comment.

Section 3.5.                                Financial Statements.

(a)                                  The financial statements (including related notes, if any) contained in the Company SEC Reports (i) fairly presented in all material respects the consolidated financial position of the Company and its Subsidiaries as of the respective dates thereof, and the results of the consolidated operations, cash flows and changes in shareholders equity and consolidated financial position of the Acquired Companies for the respective fiscal periods or as of the respective dates therein set forth, subject to normal year-end audit adjustments in amounts consistent with past practice in the case of unaudited financial statements, which adjustments would not, individually or in the aggregate, be material to the Company and its Subsidiaries, taken as a whole, (ii) complied in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto and (iii) were prepared in accordance with GAAP as in effect on the respective dates thereof consistently applied during the periods involved, except, in each case, as indicated in such statements or in the notes thereto.

(b)                                 The Acquired Companies have designed and maintained a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP.  The Company (i) has implemented and maintains disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) to ensure that information required to be disclosed by the Company is made known on a timely basis to the chief executive officer and the chief financial officer of the Company by others within those entities, and (ii) has disclosed, based on its most recent evaluation prior to the date hereof, to the Company’s outside auditors (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial

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information, and (B) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal controls over financial reporting.  Since August 1, 2008, any material change in internal control over financial reporting required to be disclosed in any Company SEC Report has been so disclosed.  Each of the principal executive officer and the principal financial officer of the Company (or each former principal executive officer and principal financial officer of the Company, as applicable) has made all certifications required by Rule 13a-14 or 15d-14 under the Exchange Act and Sections 302 and 906 of SOX with respect to the SEC Reports, and such certifications and statements contain no qualifications or exceptions to the matters certified or stated therein and have not been modified or withdrawn.  For purposes of the immediately preceding sentence, “principal executive officer” and “principal financial officer” shall have the meanings given to such terms in SOX.

Section 3.6.                                Real Property.

(a)                                  Section 3.6(a) of the Company Disclosure Schedule contains a true and correct list of each parcel of Owned Real Property and each parcel of real property leased to the Acquired Companies as of the date hereof (collectively, the “Company Real Property”) and sets forth (i) the address of each parcel of Company Real Property and (ii) the permanent index (tax) number for each parcel of Owned Real Property.  The Company has heretofore furnished to Parent true, correct and complete copies of all Leases (including any material amendments, supplements and modifications thereto).  Assuming due execution and delivery of such Leases by the counterparty thereto, all such Leases are valid and binding and are in full force and effect and enforceable by the applicable Acquired Company in accordance with their respective terms, subject to the effect of (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to rights of creditors generally and (ii) rules of law and equity governing specific performance, injunctive relief and other equitable remedies.  The Company is not a lessor under any leases.

(b)                                 Except, individually or in the aggregate, as has not resulted in, and would not reasonably be expected to result in, a Company Material Adverse Effect:

(i)                                     none of the Acquired Companies or, to the Company’s Knowledge, any other party to any of the Leases is in breach of, or in default under, any of the Leases and no request of terminations or claims have been made or received by any parties to the Leases;

(ii)                                  each parcel of Company Real Property and the Improvements thereon are used in a manner permitted by applicable zoning ordinances, planning laws and Encumbrances (including covenants and restrictions of record);

(iii)                               except as set forth in Section 3.6(b) of the Company Disclosure Schedule, the Owned Real Property is not located within any flood plain or subject to any similar type of restrictions for which any permit, license or additional insurance may be necessary for the use and operation thereof;

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(iv)                              the Acquired Companies have good, insurable and marketable fee simple title to all Owned Real Property and Improvements thereon subject only to Permitted Encumbrances;

(v)                                 there are no Legal Proceedings pertaining to the Company Real Property, and, to the Knowledge of Company, no condemnation, taking, federal, state or local Law (including, but not limited to, zoning changes) or other matters which may adversely affect the current or planned use of such Company Real Property are threatened or contemplated;

(vi)                              each of the Company Real Properties has adequate utilities serving them, means of access to and from public roads and main line railroad tracks and the right to use all of the Improvements, in each case adequate legally to conduct the business in the manner currently conducted by the Company or the Company Subsidiary therein; and

(vii)                           except for the Company or a Subsidiary of the Company, no third Person has any interest in, or right to use, possess or occupy, any portion of the Company Real Properties.

Section 3.7.                                Intellectual Property Rights.

(a)                                  Section 3.7(a) of the Company Disclosure Schedule contains an accurate and complete list of all (i) issued Patents and applications for Patents that are owned by any Acquired Company (the “Owned Patents”), (ii) registered Copyrights that are owned by any Acquired Company (the “Owned Copyrights”), (iii) registrations for Trademarks, and applications to register any unregistered Trademarks, that are owned by any Acquired Company (the “Owned Trademarks”) and (iv) registrations for Domain Names, and applications to register any Domain Names, that are owned by any Acquired Company (the “Owned Domain Names”).

(b)                                 Each item of Owned Intellectual Property that has been registered, filed, certified or otherwise recorded with any Governmental Body is in all material respects in force and in good standing.

(c)                                  Section 3.7(c) of the Company Disclosure Schedule contains a list of all material licenses, sublicenses, settlements, and non-assertion covenants which relate to: (i) any Owned Intellectual Property; (ii) any other Intellectual Property, excluding Software, that is licensed to or used by an Acquired Company in any business of any Acquired Company in any material respect; or (iii) any Software that is licensed to or used by any Acquired Company (other than contracts for Software licensed to an Acquired Company that is generally commercially available or is subject to so-called “shrink-wrap” or “click-through” license agreements), (collectively, the “License Contracts”).

(d)                                 The Acquired Companies have taken reasonable steps to protect the confidentiality of the material Trade Secrets owned by any of the Acquired Companies (the “Owned Trade Secrets”).

(e)                                  An Acquired Company owns and possesses all right, title and interest in and to, or has a valid and enforceable license or other right to use, all Intellectual Property Rights used in

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the operation of the business of any of the Acquired Companies that is necessary for the operation of the business of any Acquired Company as currently conducted (collectively, the “Company Intellectual Property Rights”).  Section 3.7(e) of the Company Disclosure Schedule contains a list of all licenses to Intellectual Property Rights which are material to the operations of the businesses of any of the Acquired Companies.  The Company Intellectual Property Rights owned by the Acquired Companies are solely and exclusively owned by the Acquired Companies and are free and clear of all Encumbrances (other than Permitted Encumbrances and, for the avoidance of doubt, obligations to pay royalties or other amounts due under any licenses of Intellectual Property Rights), except where the failure to so own or be free and clear of all Encumbrances (other than Permitted and, for the avoidance of doubt, obligations to pay royalties or other amounts due under any licenses of Intellectual Property Rights) has not resulted, individually or in the aggregate, in, and as would not reasonably be expected to result in, a Company Material Adverse Effect,

(f)                                    Except as would not reasonably be expected to result in a Company Material Adverse Effect: (i) no claims are pending or, to the Company’s Knowledge, threatened that an Acquired Company has infringed or misappropriated in any material respect the Intellectual Property Rights of any Person, (ii) to the Company’s Knowledge, the conduct of the business of any Acquired Company, as currently conducted, has not infringed or misappropriated in any material respect the Intellectual Property Rights of any Person, (iii) no Person or entity has made any claim that is currently pending, or, to the Company’s Knowledge, threatened to make any claim, contesting the validity, enforceability, use or ownership of any Company Intellectual Property Rights owned by any Acquired Company, and, to the Company’s Knowledge, no reasonable basis for any such claim exists, and (iv) to the Company’s Knowledge, as of the date hereof, no Person is infringing or misappropriating any Company Intellectual Property Rights.

(g)                                 Neither this Agreement nor the transactions contemplated by this Agreement will result in: (i) any Acquired Company being required as a result of the transactions contemplated hereby to grant any Third Party any right to any Intellectual Property Rights owned by, or licensed to, any Acquired Company, (ii) any Acquired Company, being bound by, or subject to, any non-compete or other material restriction on the operation or scope of the businesses of any of the Acquired Companies, or (iii) any Acquired Company being obligated to pay any material royalties or other amounts to any Person in excess of those payable by any of them, respectively, in the absence of this Agreement or the transactions contemplated hereby.

(h)                                 None of the Acquired Companies has any Owned Software.

Section 3.8.                                No Undisclosed Liabilities.  The Acquired Companies have no liabilities or obligations of any nature (whether absolute, accrued, contingent, determined, determinable, choate, inchoate or otherwise), except for (i) liabilities or obligations reflected or reserved against in the Company Balance Sheet, (ii) liabilities or obligations incurred in the ordinary course of business consistent with past practices since the date of the Company Balance Sheet, (iii) liabilities incurred in connection with this Agreement and the transactions contemplated hereby, or (iv) liabilities or obligations that, individually or in the aggregate, have not resulted in, and would not reasonably be expected to result in, a Company Material Adverse Effect.

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Section 3.9.                                Taxes.

(a)                                  Timely Filing of Tax Returns.  The Acquired Companies have filed or caused to be filed all federal and state income Tax Returns and all other material Tax Returns that are or were required to be filed by or with respect to any of them, either separately or as a member of a group of corporations, pursuant to applicable Law.  All Tax Returns filed by (or that include on a consolidated basis) any of the Acquired Companies were (and, as to Tax Returns not filed as of the date hereof, will be) true, complete and correct in all material respects as of the date filed and filed on a timely basis.

(b)                                 Payment of Taxes.  The Acquired Companies have, within the time and in the manner prescribed by applicable Law, paid (and until Closing will pay within the time and in the manner prescribed by applicable Law) all material amounts of Taxes that are due and payable by the Acquired Companies whether or not shown on any Tax Return and have maintained on their books and records reserves adequate to pay all accrued Taxes not yet due and payable.

(c)                                  Withholding Taxes.  Each of the Acquired Companies has complied (and until the Closing will comply), in all material respects, with applicable Law relating to the withholding or collection of Taxes and has, within the times and in the manner prescribed by applicable Law, paid over to the proper Governmental Body (and until the Closing will pay over to the proper Governmental Body) all material amounts required to be withheld and paid under applicable Law, relating to the paying over of withheld Taxes.

(d)                                 Audits.  No material Tax Return of any of the Acquired Companies is under audit or examination by any Governmental Body, and no written notice of such an audit or examination has been received by any of the Acquired Companies and, to the Company’s Knowledge, none of the Acquired Companies has been threatened, in writing, with any audit, investigation or claim for or relating to material Taxes.

(e)                                  Return Examinations. All federal and state income and franchise Tax Returns and all other material Tax Returns have been examined by the appropriate Governmental Body or the period for assessment of the Taxes in respect of which such Tax Returns were required to be filed has expired.

(f)                                    Deficiencies. All deficiencies asserted or assessments made as a result of any examination of the Tax Returns referred to in clause (a) have been paid in full.

(g)                                 Liens. There are no liens for Taxes upon the assets of any of the Acquired Companies except liens relating to current Taxes not yet due.

(h)                                 Tax Sharing Agreements.  None of the Acquired Companies is a party to any Tax sharing agreement, Tax allocation agreement, Tax indemnity obligation or similar Contract or arrangement except (i) such an agreement or obligation solely between or among the Acquired Companies or (ii) customary Tax indemnity and Tax gross-up obligations contained in credit agreements entered into by any of the Acquired Companies.

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(i)                                     Extensions of Time for Filing Tax Returns.  None of the Acquired Companies has requested any extension of time within which to file any material Tax Return, which Tax Return has not since been filed.

(j)                                     Waiver of Statutes of Limitations.  None of the Acquired Companies has executed any outstanding waivers or comparable consents regarding the application of the statute of limitations with respect to any material Taxes or material Tax Returns.

(k)                                  United States Real Property Holding Corporation.  None of the Acquired Companies has been a United States real property holding corporation within the meaning of Section 897 of the Code during the applicable period specified in Section 897(c)(l)(A)(ii) of the Code.

(l)                                     355 Transactions.  None of the Acquired Companies has constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock qualifying for Tax-free treatment under Section 355 of the Code (i) in the two years prior to the date hereof or (ii) in a distribution that otherwise constitutes part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated hereby.

(m)                               Adjustments under 481(c). As a result of a change in accounting method for a taxable period beginning on or before the Closing Date or for any taxable year or period beginning on or before and ending after the Closing Date, none of the Acquired Companies will be required to include any adjustment under Section 481(c) of the Code (or any corresponding provision of state, local or other Tax Law) in taxable income for any taxable period ending after the Closing.

(n)                                 Tax Shelters.  None of the Acquired Companies has participated in any “reportable transaction” or “transaction of interest” (all as defined in Treasury Regulation § 1.6011-4) required to be disclosed to the Internal Revenue Service or other Governmental Body.

(o)                                 Group Membership. None of the Acquired Companies has been a member of any group of corporations filing Tax Returns on a consolidated, combined, unitary or similar basis other than each such group of which it is currently a member.

(p)                                 Other Jurisdictions. No claim that remains unresolved has been made by a Governmental Body in a jurisdiction where an Acquired Company has never paid Taxes or filed Tax Returns asserting that such Acquired Company is or may be subject to Taxes assessed by such jurisdiction.

(q)                                 Taxes of Another. None of the Acquired Companies has any liability for Taxes of another Person under Treasury Regulation § 1.1502-6 (or any similar provision of state, local or foreign Law), as transferee, successor, indemnitor or otherwise.

Section 3.10.                         Employee Benefits.

(a)                                  Each Company Benefit Plan is listed in Section 3.10(a) of the Company Disclosure Schedule.  With respect to each Company Benefit Plan, the Company has made

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available to Parent a true, correct and complete copy of, as applicable: (i) the most recent annual report (Form 5500) filed with the Internal Revenue Service and each related financial report; (ii) the current plan document for each such Company Benefit Plan and related trust agreement (if any) that has been reduced to writing and all amendments thereto; (iii) each trust, if any, relating to each such Company Benefit Plan; (iv) the most recent summary plan description of each Company Benefit Plan provided to participants and any material modifications thereto; and (v) the most recent determination or opinion letter issued by the Internal Revenue Service with respect to any Company Benefit Plan intended to be qualified under Section 401(a) of the Code (a “Company Qualified Plan”).  No Acquired Company is a party to, or otherwise bound by, any Contract that provides for indemnification of any current or former officer, director, partner, member, manager or employee of any Acquired Company.

(b)                                 With respect to each Company Qualified Plan, either (i) the Internal Revenue Service has issued a currently applicable favorable determination letter with respect to such Company Qualified Plan that has not been revoked or the Company Qualified Plan is a prototype plan which may rely on a currently applicable opinion letter issued with respect to the Company Qualified Plan, and there are no existing circumstances that would reasonably be expected to adversely affect the qualified status of any such Company Qualified Plan or the related trust, or (ii) such Company Qualified Plan still has a remaining period of time in which to apply for or receive such letter and to make any amendments necessary to obtain a favorable determination.

(c)                                  All contributions and premium payments required to be made with respect to any Company Benefit Plan for any period through the date hereof have been timely made to the extent required to be made on or before the date hereof.

(d)                                 The Company has complied, and is now in compliance, in all material respects with all provisions of ERISA, the Code and all Laws applicable to the Company Benefit Plans, and each Company Benefit Plan has been maintained, funded, and administered in accordance with its terms and the requirements of the Collective Bargaining Agreements.  No prohibited transaction (as defined in Section 4975 of the Code or Section 406 of ERISA) or breach of fiduciary duty (as determined under ERISA) has occurred with respect to any Company Benefit Plan that would result in material liability to an Acquired Company.  No Acquired Company or any ERISA Affiliate of any Acquired Company has incurred any material liability, (i) on account of any violation of the health care requirements of Part 6 or 7 of Subtitle B of Title I of ERISA or Section 4980B or 4980D of the Code, or (ii) under Section 502(i) or 502(l) of ERISA.

(e)                                  Except as set forth on Section 3.10(e) of the Company Disclosure Schedule, none of the Acquired Companies nor any ERISA Affiliate of any Acquired Company maintains, sponsors, or contributes to, or has any liability or potential liability under (or with respect to) any (i) plan or arrangement which is subject to (A) the minimum funding requirements of Code Section 412, (B) Part 3 of Subtitle B of Title I of ERISA, or (C) Title IV of ERISA, or (ii) “multiemployer plan” (as defined in Section 3(37) of ERISA).

(f)                                    Except as set forth on Section 3.10(f) of the Company Disclosure Schedule, no Acquired Company has any material obligation to provide post-employment or post-termination life, health, medical or other welfare benefits to any Person, except for health continuation

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coverage as required by Section 4980B of the Code or Part 6 of Subtitle B of Title I of ERISA or similar state or local Law.

(g)                                 Except as set forth on Section 3.10(g) of the Company Disclosure Schedule, (i) there are no pending or, to the Company’s Knowledge, threatened investigations or audits of or with respect to any Company Benefit Plan by any Person, and (ii) there are no pending or, to the Company’s Knowledge, threatened Legal Proceedings (other than Legal Proceedings for benefits in the ordinary course) which have been asserted or instituted against the Company Benefit Plans, any fiduciaries thereof with respect to their duties to the Company Benefit Plans or the assets of any of the trusts under any of the Company Benefit Plans, in each case which would reasonably be expected to result in any material liability of any Acquired Company to any Person or Company Benefit Plan including the Pension Benefit Guaranty Corporation, the Department of Treasury, or the Department of Labor.

(h)                                 Except as set forth on Section 3.10(h) of the Company Disclosure Schedule, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement (either alone or in combination with another event) will (i) entitle any current or former director, officer, employee or consultant of any Acquired Company to any payment (including severance pay or similar compensation), any cancellation of indebtedness, or any increase in compensation; (ii) result in the acceleration of payment, funding or vesting under any Company Benefit Plan; or (iii) result in any increase in benefits payable under any Company Benefit Plan.  No amount paid or payable (whether in cash, in property, or in the form of benefits) in connection with the transactions contemplated hereby (either solely as a result thereof or as a result of such transactions in conjunction with any other event) will be an “excess parachute payment” within the meaning of Section 280G of the Code.  No person is entitled to receive any additional payment from any Acquired Company as a result of the imposition of a Tax under Section 4999 of the Code.

(i)                                     Each Company Benefit Plan which is a nonqualified deferred compensation plan within the meaning of, and subject to, Section 409A of the Code has been at all times administered, operated and maintained in all material respects in accordance with the requirements of Section 409A of the Code.  No Person is entitled to receive any additional payment from any Acquired Company as a result of the imposition of a Tax under Section 409A of the Code.

(j)                                     The parties hereto acknowledge that certain payments have been made or are to be made, and certain benefits have been granted or are to be granted, according to employment compensation, severance, employment agreement and other Company Benefit Plans (collectively, the “Arrangements”) to certain holders of Company Shares and other securities of the Company who are directors or employees of the Company (the “Covered Stockholders”).  All such amounts payable under the Arrangements (i) are being paid or granted as compensation for past services performed, future services to be performed, or future services to be refrained from performing, by the Covered Stockholders (and matters incidental thereto) and (ii) are not calculated based on the number of Company Shares tendered or to be tendered into the Offer by the applicable Covered Stockholder.  The adoption, approval, amendment or modification of each Arrangement since the discussions relating to the transactions contemplated hereby between the Company and Parent began has been approved as an employment compensation, severance

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or other employee benefit arrangement solely by independent directors of the Company in accordance with the “safe harbor” requirements of Rule 14d-10(d)(2) under the Exchange Act and the instructions thereto as a result of the taking prior to the execution of this Agreement of all necessary action by the Company Board or an appropriate committee thereof to the extent required.

Section 3.11.                         Compliance with Laws.

(a)                                  Except as set forth on Section 3.11(a) of the Company Disclosure Schedule, and except for matters which, individually or in the aggregate, have not resulted in, and would not reasonably be expected to result in, a Company Material Adverse Effect, the Acquired Companies are, and at all times since August 1, 2004 have been, in compliance with each of the Laws that is or was applicable to any of them or any of their properties and assets or applicable to their business, products or product processing (including Laws relating to occupational safety and health and applicable FDA, USDA and United States Federal Trade Commission Laws, including policies, advisory opinions and guidance), at the times that such Laws were in effect, and the Acquired Companies have not received any written notice of claims or violations with respect to any such Laws.

(b)                                 Each of the Acquired Companies is in possession of all Permits necessary for it to own, lease and operate its respective properties or to develop, produce, store, distribute, promote, offer and sell its respective products and services or otherwise to carry on its business as it is now being conducted (the “Company Permits”), and all such Company Permits are in full force and effect and no suspension, revocation, termination, cancellation, non-renewal, or modification not requested by the applicable Acquired Company of any of the Company Permits is pending or, to the Company’s Knowledge, threatened, except where the failure to have, or the suspension, revocation, termination, non-renewal, cancellation or modification of, any of the Company Permits, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect.  The Acquired Companies, and their respective businesses as currently conducted, are in compliance with the terms of the Company Permits, except failures so to comply that, individually or in the aggregate, have not had, and would not reasonably be expected to have, a Company Material Adverse Effect.

(c)                                  Since August 1, 2004, there have been no recalls, withdrawals, product corrections or product removals of products produced or sold by any Acquired Company or any FDA or USDA Notices of Warning or Withholding, Suspension or Withdrawal of Inspection, seizure, criminal referral, or other similar federal, state or private enforcement actions with respect to such products and, to the Company’s Knowledge, no facts or circumstances exist that would be substantially likely to result in such actions.

Section 3.12.                         Environmental Matters.

(a)                                  Each of the Acquired Companies is, and at all times since August 1, 2004 has been, in compliance with all Environmental Laws, except where the failure to comply would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.

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(b)                                 Each of the Acquired Companies holds and is in compliance with all authorizations, licenses and permits required under Environmental Law to operate at the Company Real Property and to carry on its business as now conducted, except where the failure to hold such authorizations, licenses and permits would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.

(c)                                  Since August 1, 2004, none of the Acquired Companies has received any written notice from any Governmental Body or any other Person regarding any actual or alleged violation of Environmental Laws, or any liabilities or potential liabilities for investigation costs, cleanup costs, response costs, corrective action costs, personal injury, property damage, natural resources damages or attorney fees under Environmental Laws, and, to the Company’s Knowledge, there are no facts or conditions that would reasonably be expected to result in any such notices, except for facts and conditions which would not, and notices where the subject matter thereof would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.

(d)                                 Since August 1, 2004, none of the Acquired Companies has disposed of or released any Hazardous Substance at any Company Real Property or any other real property, nor has there been any release or disposal of Hazardous Substances at any Company Real Property or, to the Company’s Knowledge, any other real property formerly owned, leased or occupied by any Acquired Company or predecessor thereto, so as to give rise to liability for investigation costs, cleanup costs, response costs, corrective action costs, personal injury, property damage, natural resources damages or attorney fees under CERCLA or any other Environmental Laws, in each case which would, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.

Section 3.13.                         Legal Proceedings.

(a)                                  As of the date hereof, there is no pending Legal Proceeding (i) that involves, affects or relates to any of the Acquired Companies or any of their assets or properties, except for such Legal Proceedings as are normally incident to the business carried on by the Acquired Companies and, individually or in the aggregate, have not resulted in, and would not reasonably be expected to result in, a Company Material Adverse Effect, or (ii) that challenges, or that may have the effect of delaying, preventing or making illegal, any of the transactions contemplated hereby, including the Offer and the Merger.

(b)                                 As of the date hereof, to the Company’s Knowledge, no Legal Proceeding has been threatened that, if pending, would be required to be disclosed under the preceding paragraph.

(c)                                  There is no Order to which any Acquired Company, or any of the material assets or properties owned or used by any of them, is subject which, individually or in the aggregate, has had, or would reasonably be expected to have, a Company Material Adverse Effect.

Section 3.14.                         Absence of Certain Changes and Events.  Since July 31, 2009, except for actions expressly contemplated or permitted by this Agreement, (i) the business of the Acquired Companies has been conducted in all material respects in the ordinary course of

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business consistent with past practice, there has not been any event, change, effect, development, condition or occurrence that, individually or in the aggregate, has had, or would reasonably be expected to have, a Company Material Adverse Effect and (ii) the Acquired Companies have not taken any of the actions set forth in clauses (i)-(vii), (ix), (xiii)(B)-(F) and (xix) of Section 5.2 (other than, in the case of (xiii)(B)-(F) only, actions taken in the ordinary course of business consistent with past practice).

Section 3.15.                         Material Contracts.

(a)                                  Except as set forth on Section 3.15(a) of the Company Disclosure Schedule, as of the date hereof, none of the Acquired Companies is a party to, and none of the Acquired Companies or any of their respective assets or properties are bound by, Contracts that:

(i)                                     are or would be required to be filed by the Company pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (other than those agreements and arrangements described in Item 601(b)(l0)(iii) of Regulation S-K);

(ii)                                  relate to indebtedness for borrowed money;

(iii)                               purports to materially limit the ability of any Acquired Company (or, following the Acceptance Time, Parent or its Affiliates) to engage in any line of business or to compete with any Person or in any geographic area or to hire or retain any Person;

(iv)                              contemplating or involving the payment or delivery of cash or other consideration in an amount or having a value in excess of $200,000 in the aggregate, or contemplating or involving the performance of services having a value in excess of $200,000 in the aggregate; and

(v)                                 any other Contract that is not made in the ordinary course of business consistent with past practice, a material breach of which would reasonably be expected to result in a Company Material Adverse Effect.

Each of the foregoing is a “Material Contract.” Except to the extent filed as an exhibit to a Company SEC Report, the Company has made available to Parent accurate and complete copies of each of the Material Contracts.

(b)                                 Assuming the due execution and delivery of such Material Contract by the counterparty, each Material Contract is valid and binding on the Acquired Company that is a party thereto, and is in full force and effect and is enforceable against the applicable Acquired Company in accordance with its terms, subject to the effect of (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to rights of creditors generally and (ii) rules of law and equity governing specific performance, injunctive relief and other equitable remedies.  To the Company’s Knowledge, each Material Contract is valid and binding on the other parties thereto, is in full force and effect and enforceable against such other party in accordance with its terms, subject to the effect of (x) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to rights of creditors generally and (y) rules of law and equity governing specific performance, injunctive relief and other equitable remedies, each of the

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Acquired Companies has performed all obligations required to be performed by it to date under each Material Contract.  Except as would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect, no Acquired Company is in breach of, or default under the terms of, and, to the Company’s Knowledge, no other Person is in breach of, or default under the terms of, any Material Contract, nor is any default (or similar term) continuing under any Material Contract, and, to the Company’s Knowledge, there does not exist any event, condition or omission that would constitute such a default or, breach or event of default (or similar term) (whether by lapse of time or notice or both) under any Material Contract.  Since July 31, 2009, none of the Acquired Companies has received written notice from any other party to a Material Contract with respect to the termination or non-renewal of any Material Contract.

Section 3.16.                         Labor Matters.  Except as set forth in Section 3.16 of the Company Disclosure Schedule, none of the Acquired Companies is a party to, or bound by, any collective bargaining agreement, contract or other similar agreement with a labor union or labor organization (each, a “Collective Bargaining Agreement”).  Except as set forth in Section 3.16 of the Company Disclosure Schedule, and except as would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect, (a) there is no labor strike, slowdown, work stoppage, lockout or other material labor dispute involving any of the Acquired Companies actually pending or, to the Company’s Knowledge, threatened, (b) to the Company’s Knowledge, there is no organizational activity involving any of the Acquired Companies, (c) no complaint, charge or Legal Proceeding by or before any Governmental Body brought by or on behalf of any employee, prospective employee, former employee, retiree, labor organization or other representative of its employees is pending or, to the Company’s Knowledge, threatened against any of the Acquired Companies, (d) no grievance is pending or, to the Company’s Knowledge, threatened against any of the Acquired Companies, (e) none of the Acquired Companies is a party to, or otherwise bound by, any consent decree with, or citation by, any Governmental Body relating to employees or employment practices, and (f) each of the Acquired Companies is in material compliance with its obligations under any Collective Bargaining Agreement and all applicable Laws relating to wages, hours, immigration, discrimination in employment, workplace health and safety, workers’ compensation, and collective bargaining and are not liable for any arrears of wages or penalties for failure to comply with any of the foregoing.

Section 3.17.                         Company Rights Agreement; State Anti-Takeover Statutes.

(a)                                  The Company has made available to Parent an accurate and complete copy of the Company Rights Agreement.  The Company has amended the Company Rights Agreement to provide that none of Parent, Merger Sub or any of their respective Affiliates shall be deemed to be an Acquiring Person (as such term is defined in the Company Rights Agreement), as a result of the execution, delivery or performance of this Agreement or the consummation of any of the transactions contemplated hereby, including the Offer and the Merger.  The entering into of this Agreement and the Support Agreements and the consummation of the transactions contemplated hereby and thereby do not and will not result in the grant of any rights to any Person under the Company Rights Agreement or enable or require the Company Rights to be exercised, distributed or triggered.  Accurate and complete copies of all such amendments to the Company Rights Agreement have been previously provided to Parent.

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(b)                                 Assuming the accuracy of the representations and warranties in Section 4.4 and Section 4.6, the Company Board has taken all actions necessary so that no anti-takeover statute or other similar regulation under the North Dakota Act or other applicable Law of North Dakota shall be applicable to the execution, delivery and performance of this Agreement or the Support Agreements or the consummation of the transactions contemplated hereby (including the Offer and the Merger) and thereby.

Section 3.18.                         Insurance.  Section 3.18 of the Company Disclosure Schedule sets forth a list of the material insurance policies covering the Acquired Companies as of the date hereof.  Except for failures to maintain insurance that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, from August 1, 2008 through the date of this Agreement, each of the Acquired Companies has been continuously insured with recognized insurers in such amounts and with respect to such risks and losses as are customary for the nature of the property so insured and for companies in the United States conducting the business conducted by the Acquired Companies during such time period.  None of the Acquired Companies has received any notice of cancellation or termination with respect to any material insurance policy of the Acquired Companies.

Section 3.19.                         Opinion of Financial Advisor.  The Company Board has received the opinion of Morgan Stanley & Co. Incorporated (“Morgan Stanley”) to the effect that, as of the date thereof and subject to the matters set forth in such opinion, the Common Offer Price to be received by the holders of Common Shares in the Offer and the Merger is fair, from a financial point of view, to such holders, and an accurate and complete copy of such opinion has been, or promptly upon receipt thereof shall be, delivered by the Company to Parent.

Section 3.20.                         Brokers.  No broker, finder, investment banker or other Person (other than Morgan Stanley, an accurate and complete copy of whose engagement letter has been provided to Parent) is entitled to any brokerage, finder’s or other fee or commission in connection with any of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of any Acquired Company.

Section 3.21.                         Vote Needed.  If required by applicable Law to approve the Merger, the affirmative vote of the holders of a majority of the outstanding Common Shares on the record date of the Company Stockholders’ Meeting, voting together as a class, is the only vote of the Company’s stockholders required to approve this Agreement and the transactions contemplated hereby (the “Company Stockholder Approval”).

Section 3.22.                         Affiliates; Related Party Transactions.  Except as set forth in the Company SEC Reports, there are no agreements, arrangements or transactions of any kind that would be required to be reported by the Company pursuant to Item 404 of Regulation S-K promulgated by the SEC.

Section 3.23.                         Subsidiaries.  Section 3.23 of the Company Disclosure Schedule sets forth a complete list of the Subsidiaries of the Company, including the jurisdiction of organization.  All equity interests of each Subsidiary of the Company have been duly authorized and validly issued, and are fully paid and nonassessable and are owned by the Company.

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ARTICLE 4

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB.

Except as set forth in the Parent Disclosure Schedule, Parent and Merger Sub represent and warrant to the Company as follows:

Section 4.1.                                Organization and Good Standing.

(a)                                  Each of Parent and Merger Sub is a corporation duly organized, validly existing, and in good standing under the laws of its jurisdictions of incorporation, with full corporate power and authority to conduct its businesses as now being conducted and to own, lease and use its respective properties or assets.

(b)                                 Each of Parent and Merger Sub is duly qualified to do business as a foreign corporation and is in good standing (where such concept is applicable) under the Laws of each state or other jurisdiction in which either the ownership or use of the properties and assets owned or used by it, or the nature of the activities conducted by it, requires such qualification, except where the failure to be so qualified, individually or in the aggregate, has not resulted in, and would not reasonably be expected result in, a Parent Material Adverse Effect.

(c)                                  Parent has made available to the Company accurate and complete copies of the Organizational Documents of each of Parent and Merger Sub as currently in effect.

Section 4.2.                                Authority; No Conflict.

(a)                                  Each of Parent and Merger Sub has all necessary corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby and to perform its obligations hereunder.  The execution and delivery of this Agreement by each of Parent and Merger Sub and the consummation by each of Parent and Merger Sub of the transactions contemplated hereby (including the Offer and the Merger) have been duly and validly authorized by all necessary corporate action and no other corporate proceedings on the part of either Parent or Merger Sub are necessary to authorize this Agreement or to consummate the transactions contemplated hereby (other than, in the case of the consummation of the Merger, the filing of the Articles of Merger).  This Agreement has been duly and validly executed and delivered by each of Parent and Merger Sub and, assuming the due execution and delivery of this Agreement by the Company, constitutes the legal, valid and binding obligation of each of Parent and Merger Sub, enforceable against each of Parent and Merger Sub in accordance with its terms, subject to the effect of (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws now or hereafter in effect relating to rights of creditors generally and (ii) rules of law and equity governing specific performance, injunctive relief and other equitable remedies.

(b)                                 Neither the execution and delivery of this Agreement nor the consummation of any of the transactions contemplated hereby (including the Offer and the Merger) in accordance with the terms hereof will (i) contravene, conflict with, or result in a violation of any provision of the Organizational Documents of Parent or Merger Sub, (ii) assuming that the consents, filings and notifications contemplated by Section 4.2(c) shall have been duly made or obtained, and any

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waiting periods required thereunder shall have been terminated or expired, in each case prior to the Acceptance Time, contravene, conflict with, or result in a violation of applicable Law or any Order applicable to any material Contract of Parent or Merger Sub, or any of their properties or assets, (iii) contravene, conflict with, or result in a violation or breach (with or without notice or lapse of time or both), of any provision of, or give any Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Contract of Parent or Merger Sub; or (iv) result (with or without notice or lapse of time or both) in the creation of any Encumbrance upon any of the material properties or assets of Parent or Merger Sub, except, in the case of clauses (ii), (iii) and (iv), for any such conflicts, contraventions, violations, breaches, defaults or other occurrences that, individually or in the aggregate, have not resulted in, and would not reasonably be expected to result in, a Parent Material Adverse Effect.

(c)                                  The execution and delivery of this Agreement by Parent and Merger Sub do not, and the performance of this Agreement and the consummation of the transactions contemplated hereby (including the Offer and the Merger) will not, require any consent of, or filing with or notification to, any Governmental Body, except for compliance with (i) the applicable requirements of the Exchange Act, (ii) the pre-merger notification requirements of the HSR Act, (iii) the North Dakota Act, including the filing of the Articles of Merger, and (iv) such other consent, approval, license, permit, authorization, filing or notification requirements or obligations where the failure to obtain such consents, approvals, licenses, permits or authorizations, or to make such filings or notifications, individually or in the aggregate, have not resulted in, and would not reasonably be expected to result in, a Parent Material Adverse Effect.

Section 4.3.                                Legal Proceedings.  (a)  As of the date hereof, there is no pending Legal Proceeding that involves, affects or relates to Parent or any of its Subsidiaries or any of their respective assets or properties that challenges, or that may have the effect of delaying, preventing or making illegal any of the transactions contemplated hereby, including the Offer and the Merger.

(b)                                 As of the date hereof, to Parent’s Knowledge, no Legal Proceeding has been threatened that if pending would be required to be disclosed under the preceding paragraph.

Section 4.4.                                Ownership of Company Shares.  Neither Parent nor Merger Sub, nor any of their Affiliates, owns any Company Shares or other equity interests in the Company, beneficially or of record or otherwise, as of the date hereof or any time prior to the time that is immediately prior to the Acceptance Time.

Section 4.5.                                Funds.  Parent and Merger Sub, collectively, have available to them, and will have available to them through the Expiration Date and the Effective Time, all funds necessary for the payment of the aggregate Common Offer Price and the Series D Offer Price, whether payable pursuant to the Offer or the Merger, and sufficient for the satisfaction of all of Parent’s and Merger Sub’s obligations under this Agreement.

Section 4.6.                                Certain Arrangements.  Other than the Support Agreements, there are no Contracts between Parent or Merger Sub, on the one hand, and any member of the Company’s

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management or directors, on the other hand, that relate in any way to the Acquired Companies or the transactions contemplated by this Agreement.

Section 4.7.                                Ownership and Operation of Merger Sub.  As of the date of this Agreement, the authorized capital stock of Merger Sub consists of 1,000 shares of common stock, par value $.01 per share, all of which are validly issued and outstanding.  All of the issued and outstanding capital stock of Merger Sub is, and at the Effective Time will be, owned by Parent.  Merger Sub has not conducted any business other than incident to its formation and in relation to this Agreement and the transactions contemplated hereby.

ARTICLE 5

CONDUCT OF BUSINESS.

Section 5.1.                                Affirmative Obligations of the Company.  Except (a) as expressly contemplated or permitted by this Agreement, (b) as otherwise required by applicable Law, (c) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), or (d) as set forth in Section 5.1 of the Company Disclosure Schedule, from and after the date hereof until the earlier of the termination of this Agreement in accordance with its terms or the Acceptance Time (such period, the “Interim Period”), the Company shall, and shall cause each of its Subsidiaries to, (i) conduct its business in all material respects in the ordinary course, consistent with past practice, and (ii) use its commercially reasonable efforts to maintain and preserve its business organization, maintain in good working order and condition its material assets and properties (including the Company Real Property) (ordinary wear and tear excepted), maintain in effect all existing material Company Permits, keep available the services of its present officers and key employees and preserve substantially intact its material business relationships and good will with Governmental Bodies, employees, customers, strategic partners, suppliers, distributors, landlords, creditors, licensors, licensees and others having material business dealings with any of the Acquired Companies.

Section 5.2.                                Negative Obligations of the Company.  Except (a) as expressly contemplated or permitted by this Agreement, (b) as otherwise required by applicable Law, (c) as consented to in writing by Parent (which consent shall not be unreasonably withheld, delayed or conditioned), or (d) as set forth in Section 5.2 of the Company Disclosure Schedule, during the Interim Period, the Company shall not, and shall not permit any of its Subsidiaries to:

(i)                                     (A)  declare, set aside or pay any dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its capital stock (other than dividends and distributions by a Subsidiary of the Company), (B) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or any of its other securities (other than the issuance of Common Stock upon the conversion of the Series F Shares (into Common Stock) or the exercise, settlement, or conversion of Company Options or other equity-based awards outstanding under the Company Stock Plans outstanding on the date hereof in accordance with their present terms), or (C) purchase, redeem or otherwise acquire any shares of its capital stock or any other of its securities or any rights, warrants or options to acquire any such shares or other securities

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(other than the withholding of Common Shares to satisfy the exercise price or Tax withholding upon the exercise of Company Options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the date hereof in accordance with their present terms);

(ii)                                  except as permitted by clause (xiii) of this Section 5.2, issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any shares of its capital stock, any other voting securities or any securities convertible into or exercisable or exchangeable for, or any rights, warrants or options to acquire, any such shares, voting securities or convertible, exercisable or exchangeable securities (other than (A) the issuance of Common Shares upon the conversion of the Series F Shares or (B) the exercise, settlement, or conversion of Company Options or other equity-based awards outstanding under the Company Stock Plans outstanding on the date hereof in accordance with their terms);

(iii)                               amend its Organizational Documents;

(iv)                              acquire (A) by merging or consolidating with, or by purchasing all or a substantial portion of the assets or any stock of, or by any other manner, any business or Person or (B) any assets that are material, in the aggregate, to the Acquired Companies, taken as a whole, except purchases of inventory, components, property, plant or equipment in the ordinary course of business, consistent with past practice;

(v)                                 sell, lease, sublease, license, sublicense, pledge, mortgage, or otherwise dispose of or subject to any Encumbrance, other than Permitted Encumbrances, any Company Real Property or material assets of the Acquired Companies (excluding, for the avoidance of doubt, sales of inventory, in each case in the ordinary course of business consistent with past practice);

(vi)                              alter or amend the Company Rights Agreement or the Company Rights other than as contemplated herein;

(vii)                           (A) incur or suffer to exist any indebtedness for borrowed money other than such indebtedness which existed as of July 31, 2009 (and any interest or fees and expenses that have accrued thereon) as reflected on the Company Balance Sheet or guarantee any indebtedness of another Person, (B) issue, sell or amend any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, enter into any “keep well” or other agreement to maintain the financial condition of another Person or enter into any Contract or arrangement having the economic effect of any of the foregoing, (C) make any loans, advances (other than routine advances to directors, officers or employees of the Acquired Companies in the ordinary course of business consistent with past practice) or capital contributions to, or investment in, any other Person, other than the Company or any of its Subsidiaries, or (D) other than in the ordinary course of business consistent with past practice, enter into any hedging agreement or other financial agreement or arrangement, intended to protect any of the Acquired Companies against fluctuations in commodities prices or exchange rates, except, in the case of clauses (A) and (B), for (x) borrowings under existing credit

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facilities (or renewals, extensions or replacements thereof that do not increase the aggregate amount available thereunder and that do not provide for any termination fees or penalties, prohibit pre-payments or provide for any pre-payment penalties, or contain any like provisions limiting or otherwise affecting the ability of such party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced), (y) borrowings or other lines of credit in additional amounts not to exceed $1,000,000, or (z) indebtedness owed by any Acquired Company to any other Acquired Company;

(viii)                        make any capital expenditures or other expenditures with respect to property, plant or equipment outside of the ordinary course of business consistent with past practice for the Acquired Companies, taken as a whole, in excess of the greater of (A) $200,000 per month or (B) the amount permitted for such expenditures in the Company’s budget for fiscal 2010, a complete copy of which has previously been delivered to Parent;

(ix)                                make any material changes in accounting methods, principles or practices, except insofar as may have been required by a change in GAAP;

(x)                                   except in the ordinary course of business consistent with past practice or as expressly permitted by any other provision of this Section 5.2, waive, release or assign any material rights or claims under, or renew, materially modify or terminate any Material Contract;

(xi)                                except in the ordinary course of business consistent with past practice, (A) enter into any Contract that, if in effect on the date hereof, would be a Material Contract (other than renewals of existing Material Contracts in the ordinary course of business), or (B) license any material Intellectual Property Rights owned by any of the Acquired Companies to any Third Party;

(xii)                             enter into any Contract containing any restriction on the ability of any of the Acquired Companies to conduct their business as it is presently being conducted or is currently contemplated to be conducted;

(xiii)                          except as required pursuant to the terms of any Company Benefit Plan or other Contract in effect on the date hereof or as required by Law or in the ordinary course of business consistent with past practice, (A) adopt, enter into, terminate or amend any Collective Bargaining Agreement or any employment, severance, retirement, retention, incentive or similar agreement, arrangement or benefit plan for the benefit or welfare of any current or former director, officer, employee or consultant (provided, however, that the Company may hire employees or independent contractors with an annual base salary and incentive compensation opportunity not to exceed $150,000 for each such Person), (B) increase in any material respect the compensation or fringe benefits of, or pay any bonus to, any director, officer, employee or consultant, (C) amend or accelerate the payment, right to payment or vesting of any compensation or benefits, except as contemplated by this Agreement or other equity-based plans, (D) pay any material benefit