Stock_Purchase_Agreement_(ABA_Model)

Model Stock Purchase Agreement with Commentary, Second Edition 1

MSPA2 Stock Purchase Agreement.DOC

Stock Purchase Agreement

__________

and

__________

Dated __________

Model Stock Purchase Agreement with Commen tary, Second Edition 2

MSPA2 Stock Purchase Agreement.DOC

Table of Contents

1. DEFINITIONS AND USAGE .............. ......................................... ......................................... ...................9

2. SALE AND TRANSFER OF SHARES; CLOSING......... ......................................... ..............................18

2.1 Shares......................................................................................................................................18

2.2 Purchase Price....................................... ......................................... ............................... ..........18

2.3 Closing.......................... ......................................... ......................................... ........................18

2.4 Closing Obligations ......... ......................................... ......................................... .....................19

2.5 Adjustment Amount and Payment ......... ......................................... ........................................19

2.6 Adjustment Procedure ............................................................................................................20

3. REPRESENT ATIONS AND WARRANTIES OF SELL ERS........... ............................... .......................22

3.1 Organization and Good Standing.................................................. ......................................... .22

3.2 Enforceability and Authority; No Conflict .... ..................... ......................................... ...........22

3.3 Capitalization of Company and Subsidiaries ......... ......................................... ........................23

3.4 Financial Statements .......................................... ......................................... ............................24

3.5 Books and Records .................................................................................................................24

3.6 Real and Personal Property............................ ............................... ......................................... .25

3.7 Condition and Sufficiency of Assets.................................................. .....................................26

3.8 Accounts Receivable .. ......................................... ......................................... ..........................26

3.9 Inventories ....... ......................................... ......................................... .....................................26

3.10 No Undisclosed Liabilities............................................ ......................................... .................26

3.11 Taxes.......................................................................................................................................26

3.12 No Ma terial Adverse Change .................. ......................................... ......................................28

3.13 Employee Benefits.. ............................... ......................................... ............................... .........29

3.14 Compliance with Legal Requirements; Governmental Authorizations ..................................31

3.15 Legal Proceedings; Ord e rs.......................... ......................................... ...................................32

3.16 Absence of Certain Changes and Events ....................... ......................................... ................33

3.17 Contracts.............. ..................... ......................................... ......................................... ............33

3.18 Insurance.................................................................................................................................35

3.19 Environmental Ma tters .................................................. ......................................... ................37

3.20 Employees and Consultants ...... ............................... ............................... ................................38

3.21 Labor Disputes; Compliance .......................... ......................................... ...............................39

3.22 Intellectual Property Assets .......... ............................... ......................................... ..................39

3.23 Compliance with the Foreign Corrupt Pr actices Act and Export Control and

Antiboycott Laws.. ......................................... ......................................... ................................43

Please read this

section 2.

Please read this

section 3.

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3.24 Relationships with Related P e rsons ............................ ......................................... ...................43

3.25 Securities Law Matters .............. ............................... ......................................... .....................43

3.26 Customers and Suppliers ..................... ............................... ......................................... ...........43

3.27 Product Liabilities and War ranties............................ ......................................... .....................43

3.28 Brokers or Finders .... ............................... ............................... ......................................... .......44

3.29 Disclosure ................................. ............................... ......................................... ......................44

4. REPRESENT ATIONS AND WARRANTIES OF BUYER ...... ......................................... .....................45

4.1 Organization and Good Standing.................................................. ......................................... .45

4.2 Enforceability and Authority; No Conflict .... ..................... ......................................... ...........45

4.3 Investment Intent ........................................... ......................................... ................................46

4.4 Certain Proceedings ................................. ......................................... ......................................46

4.5 Brokers or Finders .... ............................... ............................... ......................................... .......46

5. COVENANTS OF SELLERS PRIOR TO CLOSING DATE ........................ .........................................47

5.1 Access and Investi gation ...................... ......................................... .........................................47

5.2 Operation of the Businesses of the Acquired Companies............ ............................... ............47

5.3 Filings and Notifications; Cooperation....................... ............................... .............................48

5.4 Notice...... ............................... ......................................... ......................................... ...............48

5.5 Payment of Indebtedness by Related Persons. ..................... ......................................... ..........48

5.6 Exclusive Dealing............... ............................... ......................................... ............................49

5.7 Best Efforts ...... ............................... ......................................... ......................................... ......49

5.8 Financial In formation .................................................... ......................................... ................49

5.9 Financing Cooperatio n............................................. ......................................... ......................49

6. COVENANTS OF BUYER PRIOR TO CLOSING DATE... ..................... ......................................... ....50

6.1 Filings and Notifications; Cooperation....................... ............................... .............................50

6.2 Notice...... ............................... ......................................... ......................................... ...............50

6.3 Best Efforts ...... ............................... ......................................... ......................................... ......50

7. POST-CLOSING COVENANTS..................... ......................................... ......................................... ......51

7.1 Cooperation and Proceedings; Access to Records ................................... ...............................51

7.2 Noncompetition, Nonsolicitation, and Nondisparagement ............... ......................................51

7.3 Confidentiality .................................... ......................................... ......................................... ..52

7.4 Customer and Other Business Relationships .................................. ............................... .........53

8. CONDITIONS PRECEDENT TO BUYER’S OBLIGATION TO CLOSE ............................................54

8.1 Accuracy of Sellers’ Representations .... ......................................... ........................................54

8.2 Sellers’ Performance........ ............................... ......................................... ...............................54

8.3 “Bring Down” Certificate......... ......................................... ......................................... ............54

8.4 Consents..................................................................................................................................55

8.5 Governmental Authorizations... ..................... ......................................... ................................55

8.6 Additional Documents ....................................... ......................................... ............................55

8.7 Environmental Report.................................... ......................................... ................................55

8.8 No Proceedings........ ............................... ......................................... ............................... ........55

8.9 No Claim Regarding Stock Ownership or Sale Proceeds ............................................. ..........55

8.10 No Conflict .. ............................... ............................... ......................................... ....................56

8.11 Financing .................................................. ......................................... ............................... ......56

8.12 No Ma terial Adverse Change .................. ......................................... ......................................56

9. CONDITIONS PRECEDENT TO SELLERS’ OBLIGATIONS TO CLOSE ....... ............................... ...57

9.1 Accuracy of Buyer’s Representation s. ............................... ......................................... ............57

9.2 Buyer’s Performance ..............................................................................................................57

9.3 “Bring Down” Certificate......... ......................................... ......................................... ............57

9.4 Consents..................................................................................................................................57

9.5 Additional Documents ....................................... ......................................... ............................58

Please read this

section 5.

Please read this

section 6.

Please read this

section 8.

Please read this

section 9.

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9.6 No Legal Prohibition ........ ............................... ............................... ........................................58

10. TERMINATION ... ............................... ............................... ......................................... ..........................59

10.1 Termination E vents. ............................... ......................................... ........................................59

10.2 Effect of Ter mination ...... ............................... ......................................... ...............................59

11. INDEMNIFICATION; PAYMENT; REIMBURSEMENT; REMEDIES ....... ......................................60

11.1 Survival; Remedies........................................... ......................................... .............................60

11.2 Indemnification, Payment, and Reimbursement by Sellers ........................ ............................60

11.3 Indemnification, Payment, and Reimbursement by Sellers—En vironmental Matters............61

11.4 Indemnification, Payment, and Reimbursement by Buyer ................................ .....................62

11.5 Time Limitations ......... ............................... ......................................... ...................................62

11.6 Certain Limitations on Amount .......................................... ......................................... ...........62

11.7 Setoff Right... ..................... ......................................... ......................................... ...................62

11.8 Third-Party Claims .............................................. ......................................... ..........................63

11.9 Other Claims........................................... ............................... ......................................... ........64

11.10 Strict Liability or Indemnitee Negli gence..................................... ......................................... .64

12. MISCELLANEOUS ...... ............................... ............................... ......................................... ..................66

12.1 Expenses ................................................................................................................................. 66

12.2 Public Announcements ................................. ............................... ......................................... ..66

12.3 Disclosure Letter... ............................... ......................................... ......................................... .66

12.4 Nature of Sellers’ Obligations ...................................... ......................................... .................67

12.5 Sellers’ Representative ....................................... ............................... .....................................67

12.6 Further Assurances ................................... ......................................... .....................................67

12.7 Entire Agreement................................. ............................... ......................................... ...........68

12.8 Modification .......... ......................................... ......................................... ...............................68

12.9 Assignments and Successors ............................................. ......................................... ............68

12.10 No Third-Party Rights ................................ ......................................... ...................................68

12.11 Remedies Cumulative ......................... ......................................... ......................................... ..68

12.12 Governing Law ..... ......................................... ......................................... ............................... .68

12.13 Jurisdiction; Service of Process ............... ......................................... ......................................68

12.14 Waiver of Jury Trial...... ......................................... ......................................... ........................69

12.15 Attorneys’ Fees......................... ......................................... ............................... ......................69

12.16 Enforcement of Agreement..................................................................................................... 69

12.17 No Waiver.......... ......................................... ............................... ......................................... ....69

12.18 Notices ............................................. ......................................... ......................................... .....69

12.19 Severabilit y ....... ......................................... ............................... ......................................... .....70

12.20 T ime of Essence....................................... ......................................... ......................................70

12.21 Counterparts and Electronic Signatures................ ......................................... .........................70

Please read this

section 11.

Please read section

12.12 and 12.13

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Index of Defined Terms

Term Defined at Page: Found in Section(s):

Acquired Companies 9 Numerous sections

Adjoining Property 9 3.19

Adjustment Amount 9 2.2, 2.5, and 2.6

Agreement 9 Numerous sections

Applicable Co ntract 9 3.1, 3.2, and 3.17

Balance Sheet Date 9 2.6, 3.4, 3.6, 3.10, 3.11, 3.12, and 3.16

Breach 9 3.2, 3.17, 5.5, 9.1, 9.2, 10.2, 10.4, 10.6, and 10.7

Business Day 9 2.2

Buyer 9 Numerous sections

Buyer Group 9 5.1

Buyer Indemnified Persons 9 11.2 and 11.3

Buyer’s Closing Documents 9 4.2

Cleanup 10 11.3

Closing 10 Numerous sections

Closing Balance Sheet 10 2.5 and 2.6

Closing Da te 10 Numerous sections

Closing Da te Shareholders’ Equity 10 2.5

Closing Payment 10 2.2 and 2.4

COBRA 10 3.13

Code 10 3.11 and 3.13

Company 10 Numerous sections

Confidential Infor mation 10 7.4 and 11.8

Consent 10 3.2, 4.2, 7.3, and 8.3

Contemplated Tra nsactions 10 Numerous sections

Contract 10 3.2, 3.3, 3. 16, 3.17, 3.18, 3.21, 3. 25, and 4.2

Copyrights 10 3.22

Disclosure Letter 10 Numerous sections

Employee Plan 10 3.16, 3.20, and 5.2

Encumbrance 10 3.2, 3.3, 3.6, 3.11, 3.16, 3.17, 3.19, and 3.22

End Date 10 2.3 and 10.1

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Term Defined at Page: Found in Section(s):

Environment 10 Definitions of “Environmental Law,” “Hazardous

Activity,” “Release,” a nd “Threat of Release” in Section

1.1

Environmental, Health, and Safety

Liability

10 3.19 and 11.3

Environmental Law 10 Definition of “Environmental, Health, and Safety

Liability” in Section 1.1

Equity Security 11 3.3, 3.16, 3.24, 5.6, and 8.9

ERISA 11 3.13

Escrow Agent 11 2.2, 2.4, and 12.1

Escrow Agreement 11 2.2, 2.4, 11.7, and 12.1

Escrow Funds 11 2.2 and 2.4

Exchange Act 11 Definitions of “Equity Security” and “Related Person” in

Section 1.1 and in Sections 3.5 and 7.1

Facilities 11 3.19 and 11.3

Financial Statements 11 3.4, 3.8, and 3.9

GAAP 11 3.4 and 3.5

Governmental Authorization 11 3.2 and 3.14

Governmental Body 11 Definitions of “Order, ” “Person,” “Proce e ding,” “Tax,”

and “Tax Return” and in Sections 3.2, 3. 11, 3.14 , 3.15,

3.21, 3.22, 3.27, and 6.1

Hazardous Activity 12 3.19, 8.7, and 10.3

Hazardous Material 12 3.19 and 10.3

HSR Act 12 2.3, 5.4, 6.1, and 11.1

Indemnified Person 12 11.8 and 11.9

Indemnifying Person 12 11.8 and 11.9

Independent Accountants 12 2.6

Intellectual Property Assets 12 3.16 and 3.22

Interim Balance Sheet 12 3.4, 3.6, 3.8, 3.9, 3.10, and 3.11

Interim Balance Sheet Date 12 3.4 and 3.8

Interim Shareholders’ Equity 12 2.5

Invention D isclosures 12 3.22

IRS 12 3.11 and 3.13

Knowledge 12 3.15, 3.19, 3.20, 3.21, 3.22 , 4.4, 10.1, and 10.6

Knowledge of Sellers 12 3.11, 3.15, 3.18, 3.19, 3.20 , 3.21, 3.22, 3 .26, and 3.29

Leased Real Property 12 3.6

Legal Requirement 12 Numerous sections

Loss 13 3.27, 11.2, 11.3, 11.4, and 11.8

Major Suppliers 13 3.26

Major Customers 13 3.26

Marks 13 3.22

Material Adverse Change 13 3.12, 7.1, and 8.12

Material Co nsents 13 5.4 and 8.3

Net Names 13 3.22

Objectio n Notice 13 2.6

Occupational Safety and Health

Law

13 Definition of “Environmental, Health, and Safety

Liability” in Section 1.1

Order 13 3.2, 3.15, 3.19, 3.20, 4.2, 7.7, and 8 .5

Ordinary Course of Business 13 3.6, 3.8, 3.9, 3.10, 3.16, 3.17, 5.2, and 5.7

Organizational Documents 13 3.1, 3.2, 3.16, and 4.2

Owned Real Pro perty 13 3.6

Patents 13 3. 22

Permitted Encumbrances 13 3.6

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Term Defined at Page: Found in Section(s):

Person 14 Numerous sections

Plan 14 3.13

Proceeding 14 3.11, 3.15, 3.21 , 3.22, 4.4, 7.5, and 10.9

Promissory Notes 14 2.4, 2.6, and 3.2

Purchase Price 14 2.2, 8.9, and 12.5

Real Property 14 3.6 and 5.1

Record 14 3.4, 3.5, 3.11, 5.1, 5.2, and 7.3

Related Person 14 3.24, 5.4, 5.6, 6.1, 8.6, 8.8, and 8.11

Release 1.1

Representative 15 2.6, 3.23, 3.25, 3.28, 4.5, 5.1, 5.3, 5.6, 5.9, 6.1, 7.3, 11.2,

and 12.1

Securities Act 15 2.3, 3.2, 3.3, 3.24, and 4.3

Seller(s) 15 Numerous sections

Sellers’ Closing Documents 15 3.2

Sellers’ Releases 15 2.4 and 7.4

Sellers’ Representative 15 2.2 and 2.3

Shares 15 2.1, 2.2, 2.4, 3.3, 4.3, 7.1, 8.5, and 9

Software 15 3.22 and 7.4

Subsidiary 15 Definition of “Acquired Co mpany” in Section 1.1 and in

Sections 3.3 and 11.9

Tax 15 3.2, 3.11, 3,17, 3.20, 3.21, and 10.9

Tax Return 15 3.11

Third Party 15 3.6, 3.22, 8.9, and 11.8

Third-Party Claim 15 11.3, 11.8, and 11.9

Threat of Release 16 Definition of “Environmental Law” in Section 1.1

Trade Secrets 16 3.22

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Stock Purchase Agreement

This Stock Purchase Agreement (“Agreement”) is made as of __________ by __________, a

__________ corporation (“Buyer”), and those individuals who have executed the signature page to this

Agreement (collectively, “Sellers” and individually, a “Seller”).

RECITALS

Sellers desire to sell, and Buyer desires to purcha se, all issued and outstanding shares (the “Shares”)

of capital stock of __________, a __________ corporation (the “Company”), for the consideratio n and on the

terms set fort h in this Agreement.

The parties, intending to be legally bound, agree as follows:

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1. Definitions and Usage

1.1. DEFINITIONS

For purposes of this Agreement, the following terms have the meanings specified or referred to in

this Section 1.1 :

“Acquired Companies”—the Company and its Subsidiaries, collectively, and “Acquired Company”

means any one of the Acquired Companies.

“Adjoining Property”—as def ined in Section 3. 19(e).

“Adjustment Amount”—as defined in Section 2.5(a).

“Agreement”—as defi ned in the first paragraph of this Agreement.

“Applicable Contrac t”—any Contr act (a) under which any Acquired Company has or could acquire

any rights, (b) under which any Acquired Company has or could become subject to any obligation or liability,

or (c) by which any Acquired Company or any assets o wned or used by it is or could become bound.

“Balance Sheet Date”—as defined in Section 3.4.

“Breach”—any breach of, or any inaccuracy in, any representation or warranty or breach of, or

failure to perform or comply with, any covenant or o bligat ion in o r of the Contract in question, or any event

that with the passing of time or the giving of notice, or both, would constitute such a breach, inaccuracy, or

failure.

“Business Day”—any day other tha n (a) Saturday or Sunday or (b) any other day on which natio nal

banks in __________ are generally permitted o r required to be closed.

“Buyer”—as defined in the first paragraph of this Agreement.

“Buyer Group”—as defined in Sect ion 5.1.

“Buyer Indemnified Persons”—as defined in Section 11. 2.

“Buyer’ s Closing Documents”—the Promissory Notes and the Escrow Agreement.

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“Cleanup”—all actions to clean up, remove, treat, or in any other way address the presence, Release,

or Threa t of Release of any H azardous Material whether or not any expense incurred in connection with such

action constitutes a capital expenditure.

“Closing”—as defined in Section 2.3.

“Closing Balance Sheet”—as defined in Section 2.6(a).

“Closing Date”—the date on which the Closing occurs.

“Closing Date Shareholders’ Equity”—as defined in Sec tion 2.5(a).

“Closing Payment”—as defined in Section 2. 2.

“COBRA”—as defined in Section 3.13(d).

“Code”—the Internal Revenue Code of 1986.

“Company”—as defined in the Recitals of this Agree ment.

“Confidential Information”—as defined in Section 7.3(a).

“Consent”—any approval, consent, ratification, waiver, or other authorizatio n.

“Contemplated Transactions”—the transactions contemplated by this Agreement.

“Contract”—any agreement, contract, lease, consensual obligation, promise, commitment, or

undertaking (whether written or oral and whether express or implied), whether or not legally binding.

“Copyright s”—as defined in Section 3.22(a) (iii).

“Disclosure Letter”—the disclosure letter delivered by Sellers to Buyer concurrently with the

execution a nd deliv ery o f this Ag reement.

“Employee Plan”—as defined in Sect ion 3.13(a).

“Encumbrance”—any charge, claim, community or other marital property interest, condition,

equitable interest, lien, option, pledge, security int e rest, mortgage, right of way, easement, encroachment,

servitude, right of first option, right of first refusal, or similar restriction, including any r estriction on use,

voting, transfer, receipt of income, or e xercise of any other attr ibute of ownership.

“End Date ”—as defined in Section 10.1(d).

“Environment”—soil, la nd surfa ce and subsurfac e strata, surfac e waters (including navigable and

nonnavigable inland and ocean waters), groundwaters, drinking wa ter supply, stream sediments, ambient air

(indoor air), plant and animal life, and any other environ mental medium or natural resource.

“Environmental, Health, and Safety Liability”—any Loss, obligation, or other responsibility

resulting fr om or arising under an Environmental Law or an Occupational Safety and Health Law.

“Environmental Law”—any Leg al Requirement that provides for or relates to:

(a) advising appropria te authorities, employees, or the public with respect to the use of any Hazardous

Material, the Release or Threat of Release of Hazardous Ma terial, violation of discharge or emission

limits or other prohibitions, or any Hazardous Act ivity or any activ ity, such as resource extraction or

construction, that could have a sig nif icant ef fect on the Environment;

(b) preventing or reducing to a cceptable levels the Re lease of Hazardous Material into the Environment;

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Material that are generated;

(d) assuring that products are designed, formulated, packaged, and used so that they do not present an

unreasonable risk to human health or the Environment when used or dispo sed of;

(e) protecting the Environment;

(f) reducing the risks involved in the transportation of Hazardous Ma terial;

(g) the cleanup of Hazardous Mat e rial that has been Released, preventing its Release, or addressing the

Threat of Release, or paying the costs of such actions; or

(h) making a Person compensate any other Person for damage done to its health or property or the

Environment or permitting self-appointed representatives of the public interest to recover for

injuries done to public assets or resources.

“Equity Security”—in respect of any Person, (a) any capital stock or similar security, (b) any

security convertible into or exchangeable for any security described in clause (a ), (c) any option, warrant, or

other right to purchase or otherwise acquire any security described in clauses (a), (b), or (c), and (d) any

“equity security” within the meaning of the Exchange Act.

“ERISA”—the Employe e Retirement Income Security Act of 1974.

“Escrow Agent”—as defined in the Escrow Agreement.

“Escrow Agreement”—as defined in Sect ion 2.4(a)(vii) .

“Escrow Funds”—as defined in Section 2.2(c).

“Exchange Act”—the Sec urities Exc hange Act of 1934.

“Facilities”—any real property owned or operated or formerly owned or operated by any Acquired

Company and any buildings, plants, struct ures, or equipment (including motor vehicles, ta nk cars, and

rolling stock) owned or operated or formerly owned or operated by any Acquired Compa ny.

“Financial Statements”—as defined in Sectio n 3.4.

“GAAP”—generally ac cepted accounting principles in the United States.

“Governmental Authorization”—any (a) Consent, license, registration, or permit issued, granted,

given, or otherwise made a vailable by or under the authority of any Governmental Body or pursuant to any

Legal Re quirement; or (b) right under any Contr act with any Governmental Body.

“Governmental Body”—any:

(a) nation, state, county, city, town, borough, v illage, district, or other jurisdiction;

(b) federal, state, local, municipal, foreign, multinational, or other government;

department, board, commissio n, court, tribunal, or other entity exercising governmental or quasi-

governmental powers);

(d) body exercising, or entitled or purporting to exercise, any administrative, executive, judicial,

legislative, police, regulatory, o r taxing autho rity or power, whether local, national, or interna tional;

(e) official of any of the foregoing.

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“Hazar dous Activity”—the distribution, generat ion, handling, importing, management,

manufacturing, processing, production, refinement, Release, stora ge, transfer, transportation, treatment, or

use of Hazardous Material and any other act, business, operation, or activity that increases the danger, or

poses a risk of harm, to the Environment.

“Hazar dous Material”—any substance, material, or waste that is or will foreseeably be regulated by

any Governmental Body, including any material, substance, or wast e tha t is defined or classified as a

“hazardous waste,” “hazardous material,” “hazar dous substance,” “extremely hazardous waste,”

“pollutant,” “restr icted hazardous waste,” “conta minant,” “toxic waste ,” “pollutant,” or “toxic substance”

under any provision of Environmental Law, including petroleum, petroleum products, asbestos, presumed

asbestos-conta ining material or asbestos-containing material, urea formaldehyde, or polychlorinated

biphenyls.

“HSR Act”—the Hart-Scott-Rodino Antitrust Improvements Act of 1 976.

“Indemnified Person”—as defined in Sect ion 11.8(a).

“Indemnifying Person”—as defined in Section 11.8(a).

“Independent Accountants”—as defined in Section 2.6( d).

“Intellectual Property Assets”—as defined in Section 3.22(a).

“Interim Balance Sheet”—as defined in Section 3.4 .

“Interim Balance Sheet Da te”—as defined in Section 3.4.

“Interim Shareholders’ Equity”—as defined in Section 2.5(a).

“Invention Disclosures”—as defined in Section 3.22(c)(i).

“IRS”—the United Stat es Internal Revenue Service or any successor a gency, and, to the extent

relevant, the United States Depar tment of the Treasury.

“Knowledge”—

(a) An indivi dual will be deemed to have Knowledge of a particular fact or other matter if:

(i) that individual is actually aware of that fact or matter; or

(ii) a prudent individual could b e expected to discover or otherwise beco me awa re of that fa c t or

matter in the course o f conducting a reasonably c omprehensive investigation regarding the

accuracy of any repre sentation or warranty in this Agreement.

(b) A Person (other than an individual) will be deemed to have Knowledge of a particular fact or other

matter if any individual who is serving, or who has at any time served, as a directo r, officer, partner,

manager, executor, or trustee of that Person (or in any similar capacity) has, or at any time had,

Knowledge of that fact or other matter (as set forth in clauses (a)(i) and (ii) above).

“Knowledge of Sellers”—Knowledge of any Seller or any Acquired Company.

“Leased Real Proper ty”—as defined in Section 3.6(b).

“Legal Re quirement”—any constitution, law, ordinance, principle of common law, code, r ule,

regulation, statute, act, treaty, or order of general applicability of any Governmental Body, including rules

and regulations promulgated t hereunder.

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“Loss”—any cost, loss, liability, obligation, claim, cause of a ction, damage, deficiency, expense

(including co st s of investigation and defense and reasonable attorneys’ fees and expenses), fine, penalty,

judgment, awa rd, assessment, or diminution of value.

“Major Suppliers”—as defined in Sec tion 3. 26.

“Major Customers”—as defined in Section 3.26

“Marks”—as defined in Section 3.22(a)(i).

“Mate rial Adverse Change”—with respect to an Acquired Company, any event, chang e,

development, or occurrence that, individually or together with any other event, change, development, or

occurrence, is materially adverse to its business, condition ( financial or otherwise), assets, results of

operations, or prospects.

“Mate rial Consents”—as defined in Section 8.4.

“Net Names”—as defined in Section 3.22(a)(vii).

“Objectio n Notice ”—as defined in Section 2.6(c).

“Occupatio nal Safety and Health Law”—any Legal Requirement designed to promote safe and

healthful working conditions and to reduce occupational safety and health hazards, including the

Occupational Safe ty and Health Act, and any program, whether governmental or private (such as those

promulgated or sponsored by industry assoc iations and insurance companies), designed to promote safe and

healthful working conditions.

“Order”—a ny order, injunction, judgment, decree, ruling, assessment, or arbitration award of any

Governmental Body or arbitrator.

“Ordinary Course of Business”—an action taken by a P erson will be deemed to have been taken in

the Or dinary Co urse of Business only if that action:

(a) is consistent in nature, scope, and magnitude with the past practices of such P erson and is taken in

the ordinary course of the normal, day-to-day o perations of such Per son; and

(b) does not require authorization by the board of direct ors of such Person (or by any Person or group

of Persons exercising similar a uthority) and does not require any other sepa rate or special

authorizat ion of any nature.

“Organizational Documents”—(a) the articles or certificate of incorporation and the bylaws of a

corporat ion; (b) the certificate of formation and limited liability company agreement, operating agreement,

or like agr eement of a limited liability company; (c) the partnership agreement and any statement of

partnership of a general partnership; (d) the limited partnership agreement and the certificate of limited

partnership of a limited partner ship; (e) any charter or agreement or similar document adopted or filed in

connection with the creation, formation, or organization of a Person; a nd (f) any amendment to or

restatement of any of the foregoing.

“Owned Real Property”—as defined in Section 3.6(a ).

“Patents” —as defined in Section 3.22(a)(ii).

“Permitted Encumbrances”—(a) Encumbrances for Taxes and other governmental charges and

assessments (except assess ments for public improvements levied, pending, or deferred against Owned Real

Property) that ar e not yet due and payable, (b) Encumbrances of carriers, war ehousemen, mechanics, and

materialmen and other like Encumbrances arising in the Ordinary Course of Business (provided lien

statements have not been filed or such Encumbrances otherwise perf ected), (c) statutory Encumbrances in

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favor of lessors arising in connection with any property leased to any Acquired Company, and (d)

Encumbrances disclosed in the Financial Statements.

“Person”—an individual, partnership, corporation, business trust, limited liability company, limited

liability partnership, joint stock company, trust, unincorporated association, joint venture, other entity, or a

Governmental Body.

“Plan”—as defined in Section 3.13.

“Proceeding”—any action, a rbitration, mediation, audit, hearing, investigation, litigation, or suit

(whether civil, cri minal, administra tive, judicial, or investigative) commenced, brought, conducted, or heard

by or befo re, or otherwise involving, any Governmental Body or arbitrator.

“Promissory Not es”—as defined in Section 2.2(b).

“Purchase Price”—as defined in Section 2.2.

“Real Property”—as defined in Section 3.6 (b).

“Record”—information that is inscribed on a tangible medium or that is stored in an electronic or

other medium.

“Related Person”—

(a) With respect to an individual:

(i) each other member of such individual’s Family;

(ii) any Person that is directly or indirectly controlled by such individual or any one or more

members of such individual’s Family;

(iii) any Person in which members of such individual’s Family hold (indiv idually or in the

aggregat e ) a Material Interest; and

(iv) any Person with respect to which one or more members of such individua l’s Family serves as

a director, off icer, partner, manager, executor, or trustee (or in a similar capacity).

(b) With respect to a Person other tha n an individual:

(i) any Person that directly or indirectly controls, is direct ly or indirectly contr olled by, or is

directly or indirectly under common control w ith, such specif ied Person;

(ii) any Person tha t holds a Material Interest in such specified Person;

(iii) each Per son that serves as a director, office r , partner, manager, executor, or trustee of such

specified Person (or in a similar capacity);

(iv) any Person in which such specified P erson holds a Material Interest; and

(v) any Per son with respect to which such specified Person serves as a general partner,

manager, or a trustee (or in a similar capacity).

(i) “control” (including “controlling,” “controlled by,” and “under common control w ith”)

means the possession, direct or indirect, of the powe r to direct or cause the direction of the management and

policies of a Per son, whether through the ownershi p of voting securities, by contract, or otherwise, and shall

be construed as such term is used in the rules promulgated under the Exchange Ac t;

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(ii) the “Family” of an individual includes (A) the individual, (B) the individual’s spo use, (C)

any other natural person who is related to the individual or the individual’s spouse within the second degree,

and (D) any other natural person who re sides with such individual; and

(iii) “Mate rial Interest” means direct or indirect beneficial ownership (as defined in Rule 13d-3

under the Exchange Act) of voting securities or other voting interests representing at least 10% of the

outstanding voting power of a Person or Equity Securities representing at least 10% of the outstanding equity

interests in a Person.

“Release”—any release, spill, emission, leaking, pumping, pouring, dumping, emptying, injection,

deposit, disposal, discharge, dispersal, leaching, or mig ration on or into the Environment, or into or out of

any property.

“Representativ e”—with respect to a particular Person, includes any director, officer, manager,

employee, agent, consultant, advisor, acco unt ant, f inancial advisor, or legal counsel of such Person.

“Securities Ac t”—the Sec urities Ac t of 1933.

“Seller(s)”—as defined in the first paragraph of this Agreement.

“Sellers’ Closing Documents”—the releases specified in Sec tion 2. 4(a)(v), the Escrow Agreement, and

each other doc ument to be executed or delivered by any Seller at the Closing.

“Sellers’ Re leases”–as defined in Sectio n 2.4.

“Sellers’ Re presentative”—as defined in Section 12.5(a).

“Shares”—as defined in the Recitals of this Agreement.

“Softwa r e”—as defined in Section 3. 22(a)(v).

“Subsidiary”—with respect to any Person (the “Owner”), any corporation or other Person of which

securities or other interests having the power to elect a majority of that corpo ration’s or other Person’s board

of dire c tors or similar governing body, or otherwise having the power to direct the business and po licies of

that corporation o r other Person (other than Equity Securities or other interests having such power only

upon the happening of a contingency that has not occurred) are held by the Owner or one or more of its

Subsidiaries; when used without reference to a particular Person, “Subsidiary” means a Subsidiary of the

Company.

“Tax”—any income, gross receipts, license, payroll, employment, excise, severance, stamp,

occupation, premium, property, environmental, windfall profit, customs, vehicle, airplane, boat, vessel or

other title or registra tion, capital stock, franchise, employees’ income withho lding, for e ign or domestic

withholding, Social Security, unemployment, disability, real property, personal property, sales, use, transfer,

value added, concession, alternative, add-on minimum and other tax, fee, assessment, levy, tariff, charge, or

duty of any kind whatsoever and any interest, penalty, additio n, or additional amount thereon i mpose d,

assessed, or collected by or under the authority of any Governmental Bo dy or payable under any tax-sharing

agreement or any other Contract.

“Tax Return”—any r eturn (including any information return), r eport, statement, schedule, notice,

form, declaration, claim for refund, or other document or information filed with o r submitted to, or required

to be filed with or submitted to, any Governmental Body in connection with the determination, assessment,

collection, or payment o f a ny Tax or in connection with the administration, implementation, or enforcement

of or co mpliance with any Legal Requirement relating to a ny Tax.

“Third Party”—a Person that is not an Acquired Company or a party to this Agreement.

“Third-Party Claim”—any claim against any Indemnified Person by a Third Party, whether or not

involving a Proceeding.

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“Threat of Release”—a reasonable possibility of a Release that could require action (including

triggering notification or reporting under Enviro nmental Law) in order to prevent or mitigate damage to the

Environment that could result from such Re lease.

“Trade Sec rets”—as defined in Section 3.22(a)(vi).

1.2 USAGE

(a) In this Agreement, unless expressly st ated o therwise:

(i) the singular includes the plural and vice versa;

(ii) reference to any Person includes such Person’s successors and assigns, if applicable, but o nly

if such successors and assigns are permitted by this Agree ment, and reference to a Person in

a particular capacity excludes such Person in any other capacity;

(iii) reference to a gender includes the other gender;

(iv) reference to any agreement, document, or instrument means such agreement, document, or

instrument as amended or modified and in effect from time to time in acco rdance with its

terms;

(v) reference to any Legal Requirement means that Legal Requirement as from time to time in

effect, including any amendment, modification, codification, re placement, or reenactment of

such Legal Requirement;

(vi) reference to any section or other prov isio n of any Legal Requirement means that pro vision

of such Legal Requirement as from time to time in effect, including a ny amendment,

modification, codification, r eplacement, or reenactment of such section or other provision;

(vii) “hereunder,” “hereof,” “hereto,” and words of similar import refer to this Agreement as a

whole and not to any particular Ar ticle, Section, or other provision of this Agreement;

(viii) “including” (and with correlative meaning “include”) means including without limiting the

generality of any description preceding such ter m;

(ix) “or” is used in the inclusive sense of “and/or” ;

(x) “any” means “any and all”;

(xi) with respect to the determination of any period of time, “from” means “from and including”

and “to” means “to but excluding”;

(xii) a reference to a document, instrument, or agreement also refe rs to all addenda, exhibits, or

schedules thereto;

(xiii) a reference to a “copy” or “copies” of any document, instrument, or agreement means a

copy or copies that are complete and correct; and

(xiv) a reference to a list, or any like compilation (whether in t he Disclosure Letter or elsewhere),

means that the item referred to is complete and correct.

(b) Unless otherwise specified in this Agreement, all accounting terms used in this Agreement will be

interpreted, and all accounting determinations under t his Agreement will be made, in accordance

with GAAP.

construction or interpretation otherwise requiring this Agreement to be construed or interpreted

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against any party as having been drafted by it will not apply to any construction or interpretation of

this Agreement.

(d) The headings contained in this Agreement are for convenience of reference only, shall not be deemed

to be part of this Agreement, and shall not be ref erred to in connection with the construction or

interpretatio n of this Agreement.

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2. Sale and Transfer of

Shares; Closing

2.1 SHARES

Subject to the terms and conditions of this Agreement, and in reliance upon the representations,

warranties, and covenants c ontained in this Agre ement, at the Closing, Buyer shall purchase the Shares from

Sellers, and Sellers shall sell and t r ansfer the Shares to Buyer, free and clear of any Encumbrance.

2.2 PURCHASE PRICE

The purchase price for the Share s (the “Purcha se Price”) is __________ dollars ($__________), plus

or minus the Adjustment Amount. At the C losing, B uyer shall deliver as payment on account of the Purchase

Price: ( a) __________ dollars ($__________) ( the “Closing Payment”), which will be allocated among Sellers

as set forth on Schedule 2.2, and which shall be paid by wire tr ansfer to Sellers’ Represent ative pursuant to

written wire transfer instruct ions delive red to Buyer by Sellers’ Representative at lea st three (3) Business

Days prior to the Closing; (b) promissory notes executed by Buyer and payable to each Seller, in the principal

amounts set forth on Schedule 2.2 (collectively, the “Pr omissory Notes”), in the form of Exhibit 2 .2(b); and ( c)

__________ dollars ($__________) paid by w ire transfer to the Escro w Agent pursuant to the Escrow

Agreement (the “Escrow F unds”) . The Adjustment Amount shall be paid by Sellers or Buyer, as the case

may be, in accordance with Section 2.5.

2.3 CLOSING

Subject to Article 10, the purchase and sale (the “Closing”) provided for in this Agreement will take

place at the offices of [Insert name of Buyer’s attorneys] at [Insert address] commencing at 10:00 a.m. (local

time) on __________ o r at such other date and time as Buy er and Sellers’ Representative may otherwise

agree, provided that on or prior to that date all conditions set forth in Art icles 8 and 9 have been satisfied or

waive d. If all conditions set forth in Articles 8 and 9 are not satisfied or waived by __________, subjec t to

Article 1 0, the Closing will take place upon the earlier of (a) five (5) Business Days following no tice give n by

Buyer stating that all conditions set forth in Articles 8 and 9 have been satisfie d or waived (other than

conditions to be sat isfied on the Closing Date), and (b) the End Date. The Closing w ill be deemed to be

effective as of the clo se of business on the Closing Date [ the Business Day prior to the Closing Date ] for tax

and accounting purposes.

Please read this

section number 2.

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2.4 CLOSING OBLIGATIONS

At the Closing:

(a) Sellers sha ll deliver to Buyer:

(i) certificate s representing the Shares, endorsed in bla nk (or accompanied by stock powers

executed in blank) and otherwise in proper fo rm for transfer;

(ii) the Organizational Do cuments of each Acquired Company filed with any Governmental

Body in connection with its o r ganization, duly certified as of a recent date by the Secretary

of State or other appropriate authority of the jurisdiction of its incorporat ion or

organization, toge ther with a certificate dated as of the Closing Date from the Secretary of

each Acquired Company to the effect that no amendments to such Organizational

Documents have been filed since the date referred to above;

(iii) the Organizational Documents of each Ac quired Company not filed with a Governmental

Body in connect ion with its organization, certified as of the Closing Date by the Secretary of

each Acquired Company;

(iv) certificate s dated as of a date not more than five (5) days prior to the Closing Date as to the

good standing of each Acquired Company [and payment o f applica ble state Taxes] , issued by

the appropriate Govern mental Body of the jurisdiction of the Acquired Company’s

organization and each jurisdiction in which the Acquired Company is licensed or qualified

to do business as a foreign entity as specified in Part 3.1 of the Disclosure Letter;

(v) releases in the form of Exhibit 2.4(a)(v) executed by Sellers;

(vi) an employment agreement in the form of Exhibit 2.4(a)(vi), executed by __________ and the

Company;

(vii) an escrow agr eement in the form of Exhibit 2.4(a )(vii), executed by Sellers (the “Escrow

Agreement”); and

(viii) the certificate referred to in Section 8.3.

(b) Buyer shall deliver to Sellers’ Representa tive (or in the ca se of the Escrow Funds, to the Escrow

Agent):

(i) the Closing Payment;

(ii) the Promissory Notes;

(iii) the Escrow Funds;

(iv) the Escrow Agreement, executed by Buyer and the Escrow Agent; and

(v) the certificate referred to in Section 9.3.

2.5 ADJUSTMENT AMOUNT AND PAYMENT

(a) The “Adjustment Amount” will be the difference, if any, between (i) the consolidated shareholders’

equity of the Company and its Subsidiaries as of the Closing Date, as shown on t he Closing Balance

Sheet (the “Closing Da te Shareholders’ Equity”), a nd (ii) __________ dollars ($__________) (the

consolidated shareholders’ equity of the Company and its Subsidiaries as shown on the Interim

Balance Sheet ) (the “Interim Shareholders’ Equity”). If the Closing Date Shareholders’ Equity is

less than the Inte rim Shareholders’ Equity, the Adjustment Amount sha ll be paid by Sellers to

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Buyer. If the Closing Date Shareholders’ Equity is greater than the Interim Shareholders’ Equity,

subject to Sect ion 11.7, the Adjustment Amount shall be paid by Buyer t o Sellers.

(b) If the Adjustment Amount or, after giving effect to Section 11.7, any por tion of the Adjustment

Amount is to be paid by Buyer to Sellers, the Adjustment Amount or such portion thereof shall be

paid by Buyer by wire tr ansfer to Sellers’ Representative pursuant to wire transfer instructions

provided to Buyer by Sellers’ Representative prior to the due date for the payment set forth in

Section 2.5(c). If the Adjustment Amount is to be paid by Sellers to Buyer, the Adjustment Amount

shall be paid by Sellers by wire transfer to Buyer pursuant to wire transfer instructions provided by

Buyer to Sellers’ Represent ative prior to the due date for the payment set forth in Section 2.5(c).

Promissory Notes, which inter est will begin accruing on the Closing Date and end on the day before

the payment is made. Within three (3) Business Days after the Closing Balance Sheet and

Adjustment Amount become binding on the parties pursuant to Section 2.6, Sellers or Buyer, as the

case may be, shall make the payment provided for in t his Sect ion 2.5.

2.6 ADJUSTMENT PROCEDURE

(a) Buyer shall prepar e a consolidated balance sheet of the Acquired Companies as of the close of

business o n the Closing Date [the Business Day prior to the Closing Date] (the “Closing Balance

Sheet”). The Closing Balance Sheet shall be prepared using the accounting principles, policies, and

practices set fort h o n Exhibit 2.6(a). Buyer shall deliver the Closing Balance Sheet and the

determination of the Adjustment Amount to Sellers’ Representative within ninety (90) days following

the Closing Date.

(b) Upon execution of such access letters as may be reasonably required by Buyer, Sellers’

Representative and its Representatives shall, during reasonable business hours, be giv e n reasonable

access to (and copies of) all B uyer’s and its Representatives’ books, records, and other documents,

including work papers, worksheets, note s, and schedules, used in preparation of the Closing Balance

Sheet and the determination of the Adjustment A mount, for the purpose of reviewing the Closing

Balance Sheet and determination of the Adjustment Amount, in each case, other than certain wo rk

papers that Buyer considers proprietary, such as internal c ontrol doc umentation, engagement

planning, time control and audit sign off, and quality control work pa pers.

Adjustment Amount to Sellers’ Represent ative, Sellers’ Representative has not given Buyer notice of

an objection as to any amounts set forth on the Closing Balance Sheet or the determination of the

Adjustment Amount (which notice shall state in reasonable detail the basis of Sellers’

Representative’ s objections and Seller s’ proposed adjustments (t he “Obj e ction Notice”)), the Closing

Balance Sheet and the determination of the Adjustment Amount a s prepared by Buyer will be final,

binding, and co nclusive on the parties.

(d) If Sellers’ Representative timely give s Buyer an Objection Not ice and if Seller s’ Representative and

Buyer fail to resolve the issues raised in the Objection Notice wit hin 30 days after giving the

Objection Notice, Seller s’ Representative and B uyer shall submit the issues remaining in dispute for

resolution to [name of individual] in the [location] office of [name of accounting firm] (or, if [name of

individual or name of accounting firm] is prov iding services to Buyer or a Seller or is o therwise

unable or unwilling to serve in such capacity, a recognized national or regional independent

accounting firm mutually acceptable to Buyer and Sellers’ Representative) (the “Inde pendent

Accountants”) .

(e) The parties shall negotiate in good faith in order to seek agreement on the procedures to be followed

by the Independent Acc ountants, including procedures with re gard to the presentation of evidence.

If the parties are unable to agree upon procedures within 10 days of the submission to the

Independent Accountants, the Independent Accountants shall establish such procedures giving due

regard to the intention of the parties to resolve disputes as promptly, efficiently, and inexpensively as

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possible, which procedures may, but need not, be those proposed by either Buyer or Sellers’

Representative. The Inde pendent Accountants shall be directed to resolve only those issues in

dispute and render a written report on t heir resolution of disputed issues with respect to the Closing

Balance Sheet and the resulting Adjustment Amount as promptly as practicable, but no later t han 60

days after the date on which the Independent Accountants are engaged. The determination by the

Independent Accountant s will be based solely on written submissions of Buyer , on the one hand, a nd

Sellers’ Represent ative, on the other hand, and will not involve independent review. Any

determination of the Closing Bala nce Sheet or the Adjustment Amount by the Independent

Accountants will not be outside the r ange establi shed by the amounts in (i) the Closing Balance Sheet

and the determination of the Adjustment Amount proposed by Buyer, and (ii) Sellers’

Representative’ s proposed adjustments thereto. Such determination will be final, binding, and

conclusive on the parties as of the date of the determination notice sent by the Independent

Accountants.

(f) If issues are submitted to the Independent Account ants for r esolution:

(i) Sellers’ Representative and Buyer shall execute any agreement required by the Independent

Accountants to accept their engagement pursuant to Section 2.6(d);

(ii) Sellers’ Representative and Buyer shall promptly f urnish or cause to be furnished to the

Independent Acc ountants such work pa per s and other documents and information relating

to the disputed issues as the Independent Accountants may request and are available to that

party or its accountants or ot her Representatives, and shall be afforded the opportunity to

present to the Independent Accountants, with a copy to the other party, any other written

material relating to the disputed issues;

(iii) The determination by the Independent Accountants, as set forth in a r eport to be deliv e red

by the Independent Ac countants to both Sellers’ Representative and B uyer, will include the

revised Closing Balance Sheet and Adjustment Amount, reflecting the changes required as a

result of the determination made by the Independent Accountants; and

(iv) Sellers a nd Buyer shall each bear one-half of the fees and costs of the Independent

Accountants; provided, however, that the engagement agreement referred to in Section

2.6(f)(i) above may require the parties to be bound jointly and severally to the Independent

Accountants fo r those fees and costs, and in the event Sellers or Buyer pay to the

Independent Accountants a ny amount in excess of one-half of the fees and costs of its

engagement, the other party(ies) agree(s) to reimburse Seller s or B uyer, as applicable, upon

demand, to the extent required to equalize the payments made by Sellers and Buyer with

respect to the fees and c osts of the Independent Account ants.

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3. Representations and

Warranties of Sellers

Sellers, jo intly and severally , represent and warr ant to Buyer as follows:

3.1 ORGANIZATION AND GOOD STANDING

(a) Part 3.1 lists, for each Acquired Company, its legal name, its type of legal entity, its jurisdiction of

organization, a nd each jurisdiction in which it is qualified t o do business as a fore ign entity. Each

Acquired Company is duly organized, validly existing, and in good standing under the laws of its

jurisdiction of organization, with full power and authority to conduct its business as it is being

conducted, to own or use its assets, and to perform all its obligations under Applica ble Contracts.

Each Acquired Company is duly qualified to do business as a foreign entity and is in good standing

under the laws of each jurisdiction that requires such qualification.

(b) Sellers have delivered to Buyer copies of the Organizational Documents of each Acquired Company.

No Acquired Company is in default under or in violation of any of its Organizational Documents.

jurisdiction, any legal, fictitious, assumed, or trade name other t han the names listed in Part 3.1.

3.2 ENFORCEABILITY AND AUTHORITY; NO CONFLICT

(a) This Agreement has been duly e xecute d and delivered by each Seller and constitutes the legal, valid,

and binding obligation of each Seller, enforceable against each Seller in accordance with it s terms.

Upon the execution and deliv ery of Sellers’ Closing Documents by e ach Seller party thereto, each

Sellers’ Closing Document will constitute the legal, valid, and binding obligation of such Seller,

enforceable aga inst such Seller in accordance with its terms. Each Seller has the absolute and

unrestricted right , power, authority, and capacity to execute and deliv er, and to perform its

obligations under, this Agreement and each Sellers’ Closing Document to which it is a party.

(b) Except as set forth in Par t 3.2(b), neither the execution and deliver y of t his Agreement nor the

consummation or performance of any Contemplated Transaction will, directly or indirectly (with or

without notice or lapse of time):

Please read this

entire section 3.

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(i) contrave ne, conflict with, or vio late (A) any Organizatio nal Document of any Acquired

Company, or (B) any resolution adopted by the board of directors or the shareholders (o r

Persons exercising similar autho r ity) of any Acquired Company;

(ii) contrave ne, conflict wit h, or violate, or give any Governmental Body or other Person the

right to challenge a ny Contemplated Transaction, or to exercise any remedy or o btain any

relief under, any Legal Requirement or any Order to which any Acquired Company or any

Seller, o r any assets owned or used by any Acquired Compa ny, could be subject;

(iii) contrave ne, conflict with, violate, re sult in the loss of any benefit to which any Acquired

Company is entitled under, or give any Govern mental Body the right to rev oke, suspend,

cancel, terminate, or modify, any Governmental Authorization held by any Acquired

Company or that otherwise relates to the business of, or any assets owned or used by, any

Acquired Company;

(iv) cause Buyer or any Acquired Company to bec ome subject to , or to become liable for

paym ent of, any Tax;

(v) cause any assets owned or used by any Acquired Company to be reassessed or revalued by

any Governmental Body;

(vi) Breach, or give any Person the right to declare a defa ult or exercise any remedy or to obtain

any additional rights under, or to ac celerate the maturity o r performance of , or payment

under, or cancel, terminate, or modify, any Applicable Contract or any Cont r act to which

any Seller or any Acquired Company is a party;

(vii) result in the imposition or creation of any Encumbrance upon, or with respect to, any assets

owned or used by any Acquired Company; or

(viii) result in, or give any other Person the right or option to cause or declare: (A) a loss of any

Intellectual Property Asset, (B) the release, disclosure, or delivery of any Intellectual

Property Asset by or to any escrow agent or other Per son, or (C) the grant, assignment, or

transfer to any other Person of any license, Encu mbrance, or other right or inte rest under,

to, or in any Intellectual Property Asset.

notice to, or obtain Consent from, any Pe rson in connection with the execution and delivery of this

Agreement or the consummation or per formance of any Contemplated Transac tion.

3.3 CAPITALI ZATION OF COMPANY AND SUBSIDIARIES

(a) The authorized Equity Securities of the Company consist of __________ shares of common stock, par

value $__________ per share, of which ____ ______ shares, constituting the Shares, are issued and

outstanding. Sellers are the owners (of record and beneficially ) of all of the Share s, free and clear of

all Encumbrances, including any restriction on the right of any Seller to transfer the Shares to Buyer

pursuant to this Agr eement. The assignments, endorsements, stock powers, or other instruments of

transfer to be delivered by each Seller to Buyer at the Closing will be sufficient t o transfer such

Seller’s entire interest in the Shares (of record and beneficially) owned by such Seller. Upon transfer

to Buye r of the certificates representing the Shares, Buyer will receive good title to the Shares, free

and clea r of all Encumbrances. Part 3.3(a) lists Sellers and the number of Shares held by each Seller.

(b) Part 3.3(b) lists f or each Subsidiary its authorized Equity Securities, the number a nd ty pe of Equity

Securities issued and outstanding, an d the identity of each owner (of record and beneficially) of such

Equity Securities and number of shares held by each holder. All outstanding Equity Securities of

each Subsidiary are owned of record and beneficially by one or more of the Acquired Companies,

free a nd clear of all Encu mbrances. All the outstanding Equity Securities of each Acquired

Company have been duly authorized and validly issued, and are fully paid and nonassessable.

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Except as set fort h in Part 3.3(b), there are no shareholder or other Contracts relating to any Equity

Security of a ny Acquired Company, including the sale, voting, or transfer thereof. No outstanding

Equity Security or other security of any Acquired Company was issued in violation of the Securities

Act or any other Legal Requirement. No Acquired Company has any outstanding subscription,

option, warrant, call or exchange right, convertible security, or other Contract or other oblig ations in

effect giving any Person (other than another Acquired Company) the right to acquire (whether by

preemptive rights or other wise) any Equity Security of any Acquired Co mpany.

Security or ot her secur ity of any Person or any direct or indirect equity or ownership inter est in any

other business. No Acquired Company is obligated to provide funds to or make any investment

(whether in the for m of a loan, capital contribution, or otherwise) in any other Person.

3.4 FINANCIAL STATEMENTS

Sellers have delivered to Buyer: (a) audited consolidated balance sheets of the Company and its

Subsidiaries as at __________ ( the “Balance Sheet Date”) and as at _ _________, and the related audited

consolidated st atements of income, changes in shareholders’ equity, and cash flows for each of the __ ___

fiscal years ended on such dates, including the notes thereto, together with the report thereon of the

Company’s independent public accountants, (collectively, the “ Audit e d Financial Statements”), and (b) an

unaudited consolidated balance sheet (the “Interim Bala nce Sheet” ) of the Company and its S ubsidiaries as a t

__________ (the “Interim Balance Sheet Date”), and the related unaudited consolidated statements of

income, changes in shareholders’ e quity, and cash flows for the __________ months then ended, certified by

the chief financial officer of the Company (collectively, the “Unaudited Financial Statements”, and together

with the Audited Financial Statements, the “Financial Statements”). The Financial Statements (i) fairly

present the consolidated financial condition and the results of operations, changes in shareholders’ equity,

and cash flows o f the Company and its Subsidiaries as at the respective dates of, and for the periods referred

to in, the F inancial Statements, and (ii) were prepared in accorda nce with GAAP, subject, in the case of the

Unaudited F inancial Statements, to normal recurring year-end adjustments (the effect of which will not,

individually or in the aggregate, be material) and the absence of notes (that, if presented, would not differ

materially from those included in the Audited Financial Statements). The Financial Statements reflect the

consistent application of GAAP throughout the periods involved, except as disclosed in the notes to the

Audited Financial St atements. No financial statements of any Person other than the Acquired Companies ar e

required by GAAP to be included or reflected in the Financial Statements. The Financial Statements were

prepared from, and are consistent with, the accounting Records of each Acquired Company. Sellers have

also delivered to Buyer copies of all letters from the Company’s auditors to the Company’s board of directors

or audit committee thereof during the 36 months prior to the date of this Agreement, together with copies of

all responses thereto.

3.5 BOOKS AND RECORDS

(a) The bo oks of account and other Records of each Ac quired Company, all of which have been made

available to Buyer, are complete and correct, represent actual, bona fide transactions, and have been

maintained in a ccordance with sound business practices and the requirements of Section 13(b)(2) of

the Exchange Act (whether or not any Acquired Company is subject to that Section). The Acquired

Companies hav e imple mented and maintain a system of internal control over financial reporting ( as

defined in Rules 13a-15(f) and 15d-15 (f) under the Exchange Act) suff icient to provide reasonable

assurance regarding the r e liability of financial repor ting and the preparation of financial state ments

for external purposes in accordance with GAAP, including that (i) transactions a re executed in

accordance with management’s general or specific autho rizations, (ii) transactions are recorded as

necessary to permit preparation of financial statements in conformity with GAAP and to maintain

asset accountability, (iii) access to assets is permitted only in a ccordance with management’s general

or specific authorization, and (iv) t he recorded accountability for assets is compared with the existing

assets at reasonable intervals and appropriate action is taken with respect to any differences.

(b) The minute books of each Ac quired Company contain complete and correct Records of all meetings

held of, and actions taken by written consent of, the ho lder s of voting securities, the board of

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directors or P e rsons exercising similar authority, and committees of the board of directors or such

Persons of such Acquired Company, and no meeting of any such holders, board of directors, Persons,

or committee has been held, and no other action has been taken, for which minutes o r other evidence

of action have not been prepar ed and are no t contained in such minute books. Each Acquired

Company has at all times maintained complete and correct Records of all issuances and transfe rs of

its Equity Securities. At the Closing, all such minute boo ks and Re cords will be in the possession of

the Company and locat ed at [specify lo c ation(s)].

3.6 REAL AND PERSONAL PROPERTY

(a) Part 3.6(a) lists all real estate owned by each Acquired Company (the “Owned Real Property”),

including the legal description, street address, and any tax parcel identification number of each

property, and the Acquired Company that owns such property. Sellers have delivered to B uyer

copies of the deeds and other instruments by which any Acquired Compa ny acquired the Owned

Real Property and copies of all title insurance po licies, opinions, abstracts, and surveys in the

possession of Sellers or any Acquired Company relating to the Owned Real Property.

(b) Part 3.6(b) lists all real estate leased by any Acquired Company as a lessee, sub-lessee, or assignee

(the “Leased Real P roperty” and, together with the Owned Real Property, the “Real Property”),

including a description of the premises leased and the Acquired Company that leases the same. All

Leased Real Property is leased pursuant to valid written leases listed in P art 3.17(a). Such leases

contain the entire agreement between the landlord of each of the leased premises and the Acquired

Company, and there is no other Contr act bet ween the landlord and any Acquire d Company aff e cting

such Leased Real Property. No Acquired Company leases Real Property as a lessor or sub-lessor.

owned by the respective Acquired Companies free and clear of all Encumbrances, variances, or

limitations of any nature, other than Permitted Encumbra nces and as set forth in Part 3.6(c). All

buildings, plants, and str uctures owned by any Ac quired Company lie wholly w ithin the boundaries

of the Real Proper ty in question and do not encroach upon the property of, or otherw ise conflict with

the property rights of, any other Pe r son. There are no buildings, structures, fixtures, or other

improvements primarily situated on adjoining property that encroach on any part of the Real

Property. Each parcel of Real Pr operty abuts on, and has direct vehicula r access to, a public roa d or

has access to a public road via a permanent, irrevocable, appurtenant easement bene fiting such Real

Property and constituting a part thereof. Certificates of occupancy are in full force and e ffect for

each location of Real Property, and the uses thereof being made by the Acquired Companies do not

violate any applicable zoning, subdivision, land u se, or other Legal Requirement. No Third Party

has a right to acquire any interest in the Owned Real Property or in the Acquired Companies’

interests in the Leased Real Proper ty. There is no existing or proposed plan to modify or realign any

street or highway or any existing or proposed eminent domain Proceeding that would result in the

taking of all or any part of any parcel of Rea l Property or that would prevent or hinder the

continued use of any such parcel as used by t he Acqu ired Companies. None of the Real Property is

located within a flood plain for flood insurance purposes.

(d) The Acquired Companies own all tangible perso nal property reflec ted as owned in the Inter im

Balance Sheet (other than inventory sold since the Interim Balance Sheet Date in the Ordinary

Course of Business), free and clear of all Encumbrances, other than Permitted Encumbrances and as

set forth in Part 3.6(d). All the tangible perso nal property purchased or otherwise acquired by the

Acquired Companies since the Interim Balance Sheet Date (other than invent ory acquired and sold

since the Interim Balance Sheet Dat e in the Ordinary Course of Business) is owned by the Acquired

Companies fre e and clear of all Encumbrances, other than Permitted Encumbrances and as set forth

in Part 3.6(d). A copy of the fixed asset register of each Acquired Company has been delivered to

Buyer. Each such registe r contains a complete and corr ect list of the fixed assets of the applicable

Acquired Company as of the date specified.

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3.7 CONDITION AND SUFFICIENCY OF ASSETS

(a) The buildings, plants, structures, and equipment owned or leased by the Acquired Companies are

structurally sound, in good operating condition and repair, and adequate for the uses t o which they

are being put, and none of such buildings, plants, structures, or equipment is in need of maintenance

or re pairs other than ordinary, routine maintenance that is not material in nat ure or cost.

(b) The assets owned and leased by eac h Acquired Company constitute all the assets used in connection

with the business of such Acquired Company. Such assets constitute all the assets necessary for such

Acquired Company to continue to conduct its business following the Closing as it is being conducted.

3.8 ACCOUNTS RECEIVABLE

All accounts receivable of each Acquired Company, whether o r not reflected on the Interim Balance

Sheet, represent valid obligations arising from sales actually made or services actually performed in the

Ordinary Course of Business. The accounts receivable of each Acquired Company are current and collectible

net of the reserve shown on the Interim Balance Sheet (which reserve is adequate and calculated consistent

with past practice in the preparation of the Financial Statements). Subject to such reserve, each of the

accounts receiv able either has been or will be collected in full, without any setoff, expense, or o ther reduction,

within 90 days after the day on which it first becomes du e and payable. There is no contest, claim, defense, or

right of setoff, other than returns in the Ordinary Course of Business, w ith respect to any account receivable.

Part 3.8 lists and sets forth the aging of all accounts receivable as of the Interim Balance Sheet Date.

3.9 INVENTORIES

All inventories of each Acquired Company, whether or not reflected on the Interim Balance Sheet,

consist of a quality and quantity usable and, with respect to finished goods, saleable, in the Ordinary Course

of Business. No Acquired Company is in possession of any goods not owned by such Acquired Company.

Except as set forth in Part 3.9, the inventories (other than goods in tr ansit) of each Acquired Company are

located on t he pre mises of an Acquired Company. All inventories ar e va lued at the lower of cost or [market]

[net realizable] value on a [first-in, first-out] [last-in, f irst-out] basis consistent with past practice used in the

preparation of the Financial Statements. The reserve for obsolescence w ith respect to inventories [as

adjusted f or the passage of time,] is adequate and calculated consistent with past practice. Inventories that

were purchased after the Interim Balance Sheet Dat e were purchased in the Ordinary Course of Business at a

cost not exceedi ng market prices prevailing at the time of purchase f or items of similar quality and quantity.

The quantities of each item of invent ory a re not excessive, but are reasonable for the continued operation of

each Acquired Company in the Ordinary Course of Business.

3.10 NO UNDISCLOSED LIABILITIES

Except as set forth in Part 3.10, no Acquired Company has any liability or obliga tion of any nature

(whether known or unknown and whether absolute, accrued, contingent, or otherw ise) other than liabilities

or obligat ions to the extent shown on the Interim Ba lance Sheet and current l iabilities incurred in the

Ordinary Course of Business since the date of the Interim Balance Sheet.

3.11 TAXES

(a) Filed Returns and Tax Payments

(i) Each Acquired Company has filed or caused to be filed on a t imely basis all Tax Returns

that were required to be filed by or with respect to it, either separately or as a member of a

group of corporations, pursuant to a pplicable Legal Requirements.

(ii) No Acquired Company ha s requested any extension of time within which to file any Tax

Return, except as to a Tax Return that has since been timely filed.

(iii) All Tax Returns filed by (or that include on a consolidated basis) any Acquired Company

are c omplete and correct and comply with applicable Leg al Requirements.

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(iv) Each Acquired Compa ny has paid, or made provision for the pay ment of, all Taxes that

have or could have become due for all periods covered by any Tax Return or o therwise,

including pursuant to any assessment received by Sellers or any Acquired Company, except

such Taxes, if any, that are listed in Part 3.11(a) and t hat are being contested in good faith

by appropriate Proceedings and for which adequate reserves have been provided in the

Interim Balance Sheet.

(v) Each Acquired Company has withheld or collected and paid to the proper Governmental

Body or other Person all Taxes required to be withheld, collec ted, or paid by it.

(vi) Part 3.11(a) lists each Tax Return f iled by any Acquired Company since __________, and

Sellers have delivered to Buyer copies of all such Tax Returns.

(vii) No claim has ever been made by any Governmental Body in a jurisdiction where any

Acquired Company does not file Tax Returns that it is or could be subject to taxation by that

jurisdiction, nor is there any reasonable basis for such a clai m.

(b) Audited or Closed Tax Years

(i) Except as set forth in Part 3.11(b), all Tax Returns of each Acquired Company have been

audited by the IRS or other Governmental Body or are closed by the applicable statute of

limitations for all taxable years through __________.

(ii) Part 3.11(b) lists a ll audits of all Tax Returns, including a description of the nature and, if

completed, the outcome of each audit since [date]. Sellers have delivered c opies of any

reports, statements o f deficiencies, or similar items w ith respect to such audits. Part 3.11(b)

describes all adjustments to any Tax Return filed by or with respect to any Acquired

Company for all taxable years since __________, and t he resulting deficiencies proposed by

the IRS or other Governmental Body. Part 3.11(b) lists all deficiencies proposed as a result

of such audits, all of w hich have been paid or, as set forth in Part 3.11(b), have been settled

or are being co ntested in good faith by appropriat e Proceedings. Except as set forth in Part

3.11(b), to the Knowledge of Sellers, no Governmental Body will assess any additional taxes

for any period for which Tax Returns have been filed.

(iii) Except as set forth in Part 3.11(b), no Tax Return of any Acquired Company is under audit

by the IRS or other Gove rnmental Body, and no notice of such an audit has been re ceived by

any Acquired Company. To the Knowledge of Seller s, there are no threatened Proceedings

for or re lating to Taxes, and there are no matters under discussion w ith the IRS or other

Governmental Body with respect t o Taxes. Except as set forth in Part 3.11(b), no issues

relating to Taxes have been raised in writing by the IRS or other Governmental Body during

any pending audit, and no issues relating to Taxes have been raised in writing by the IRS or

other Governmental Body in any audit that could recur in a later taxable period. Except as

set forth in Part 3.11(b), ther e is no proposed Tax assessment a gainst any Acquired

Company.

(iv) Except as set forth in Part 3.11(b), no Proceedings are pending before the IRS or other

Governmental Body wit h respect t o the Taxes of any Acquired Compa ny.

(v) Except as set forth in Part 3.11(b), no Seller or Acquired Company has given or been

requested to give waivers or extensions ( or is or would be subject to a waiver or extension

given by a ny other Person) of any statute of limitations relating to the payment of Taxes of

any Acquired Company or for which any Acquired Company co uld be liable.

(vi) Except as set forth in Part 3.11(b), no Encumbrance for Taxes exists with respec t to any

assets of any Acquired Company, except statutory liens for Taxes not yet due.

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The charges, accruals, and reserves with respect to Taxes on t he accounting Records of each

Acquired Company are adequat e and are at least equal to that Acquired Company’s liability for Taxes and to

the Acquired Companies’ liability f or Taxes on a consolida ted basis, respectively.

(d) Status of Acquired Co mpanie s

(i) No Acquired Company is, or within the five-year period pre ceding the date of this

Agreement has been, an “S corporation” w ithin the meaning of Section 1361 (a)(1) of the

Code.

(ii) No Acquired Company has been a member of any affiliated group of corporat ions (other

than a group of which the Company is the common parent) which has filed a combined,

consolidated, or unitary income Tax Return with any Governmental Body. No Acquired

Company is liable for t he Taxes of any Person (other than another Acquired Company)

under Treasury Regulation Sec tion 1.1502-6 or any similar provision of any applicable Legal

Requirement, as a transferee or successor, by contract, or otherwise.

(e) Miscellaneous

(i) There is no tax shar ing ag r eement, tax allocation ag reement, tax indemnity obligation, or

similar agreement, arrangement, understanding, or practice, oral or written, with respect to

Taxes that will require any payment by any Acquired Company.

(ii) No Acquired Company is a party to a ny Contra c t that could result separately or in the

aggregat e in any payment (A) of an “excess parachute payment” within the meaning of

Section 280G o f the Code, or ( B) t hat would not be deductible as a r esult of the application of

Section 404 of the Code.

(iii) No Acquired Company is required to include in income any adjustment pursuant to Section

481 of the Code by re ason of a voluntary change in accounting method initiated by any

Acquired Company, and the IRS has not proposed any such change in accounting method.

(iv) No Seller is a foreign person within the meaning of Section 1445(f)(3) of t he Code. No

Acquired Company has been a United Sta tes real property holding corporation within the

meaning of Sect ion 897(c)(2) of the Code during the applicable period specified in Section

897(c)(1)(A)(ii).

(v) Except as set forth in Part 3.11(e), no Acquired Compan y has received, been the subject of,

or requested a written ruling of a Governmental Body relating to Taxes, and no Acquired

Company has entered into a Contract with a Governmental Body relating to Taxes that

would have a continuing effect after the Closing Date.

(vi) Each Acquired Company has disclosed on its feder al income Tax Returns all positions taken

by it that could give rise to substantial understatement of federal income Tax within the

meaning of Section 6662 of the Code.

(vii) No Acquired Company has ever distributed stock of another Person or had its stock

distributed by another Person, in a transaction that purpor ted or was intended to be

governed in whole or in part by Code Section 355 or Code Section 361.

(viii) No Acquired Company has part icipated in any “rep ortable transaction” as defined in

Treasury Regulation Section 1.6 011-4(b).

3.12 NO MATERIAL AD VERSE CHANGE

Since the Balance Sheet Date, no Acquired Company has suffered any Material Adverse Change and

no event has occurred, and no circumstance exists, that can reasonably be expected to result in a Material

Adverse Change.

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3.13 EMPLOYEE BENEFITS

(a) Part 3.13(a) lists e ach “employee benefit plan” as defined by Sect ion 3(3) of ERISA, a ll specified

fringe benefit plans as defined in Sectio n 6039D of the Code, and all other bonus, incentive-

compensation, deferre d-compensatio n, profit-sharing, stock-option, stock-appreciation-r ight, stock-

bonus, stock-purchase, employee-stock-ownership, savings, severance, c hange-in-control,

supplemental-unemployment, layoff, salary-continuation, retirement, pension, health, life-insurance,

disability, accident, group-insurance, vaca tion, holiday, sick-leave, fringe-benefit, or welfare plan,

and any other e mployee compensation o r benefit plan, policy, practice, or Contract (whether

qualified or nonqualified, effective or terminated, written or unw ritten) and any trust, escrow, or

other Contract related thereto that ( i) is maintained or contributed to by any Acquired Company

and (ii) provides benefits to, or describes policies o r procedures applicable to, any current or for mer

director, officer, employee, or service provider of any Acquired Compa ny, or the dependents of any

thereof, regardless of how (or whether) liabilities for the provision of benefits are accrued or assets

are acquired or dedicated with respect to the funding thereof (each, an “Employee Plan”). Part

3.13(a) identifies as such any Employee Plan that is (x) a plan intended to meet the requirements of

Section 401(a) of the Code or (y) a plan subject to Title IV of ERISA. Other than the Acquired

Companies, no corporation or trade or business has ever been controlled by, controlling, or under

common control with any Seller within the meaning of Section 414 of the Code or Section 4001( a)(14)

or 4001(b) of ERISA.

(b) Sellers have delivered to Buyer co pies o f (i) the documents comprising each Employee Plan (or, with

respect to an Employee Plan which is unwr itten, a detailed written description of eligibility,

participation, benefits, funding arrangements, assets, and any other matters that r elate to the

obligations of any Acquired Company there under); (ii) all trust agreements, insurance c ontracts, or

any other funding instruments related to each E mployee Plan; (iii) all rulings, determinatio n letters,

no-actio n letters, or adviso ry opinions from the IRS, th e United States Department o f Labor, or any

other Governmental Body that pert ain to each Employee Plan and any open request s therefor; (iv)

the most recent actua rial and financial repo rts (audited and/or unaudited) and the annual reports

filed with any Governmental Body with respect to each E mplo yee Plan during the current year and

each of the three preceding years; (v) all Cont racts with third-par ty administrato rs, actuaries,

investment managers, consultants, or other independent contractors that relate to ea ch Employee

Plan; and (vi) a ll summary plan descriptions, summaries of material modifications and memoranda,

employee handbooks, and other written communications regarding each Employee Plan.

any Employee Plan have been ti mely paid in full. Except as set forth in Part 3.13(c), each Employee

Plan that provides health or welfare benefits is fully insured, and any incurr ed but not r eported

claims under each such Employee Plan that is not fully insured have been properly accrued. Each

Acquired Company has paid in full all r equired insurance premiums, subject only to normal

retrospective adjustments in the Ordinary Course of Business, with regard to each Employee Pla n.

(d) Each Acquired Company has complied with the applicable c ontinuation requirements for each

Employee Plan, including (i) Section 4980B of the Code (as well as its predecessor prov isio n, Section

162(k) of the Code) a nd Sections 601 throug h 608, inclusive, of ERISA (“COB RA”) and ( ii) any

applicable state Legal Requir ements mandating welfare benefit continuation coverage for employees.

(e) The form of each Employ e e Plan is in compliance with the applicable terms of ERISA, the Code, and

any other applicable Legal Requirement, including the Americans with Disabilities Act of 1990, the

Family Medical Leave Act of 1993, and the Health Insurance Portability and Accountability Act of

1996, and each Employee Plan has been operated in compliance with such Legal Requirements and

the written Employee Plan documents. No Acquired Company and no fiduciary of an E mployee

Plan has violated the requirements of Sectio n 404 of ERISA. Each required report and description

of an Employee Plan (including IRS Form 5500 Annual Reports, Summary Annual Reports and

Summary Plan Descriptions, a nd Summaries of Material Modif ications) have been (to the extent

required) timely filed with the IRS, the United States Department of Labor, or other Gover nmental

Body and distributed as required, and all notices required by ERISA or the Code or any other Legal

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Requirement with respect to each Employee Plan have been appropriately given. No Acquired

Company has any unfunded liability with respect to any defer r ed compensation, retirement, or other

Employee Plan.

(f) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code has receive d,

or is based on a form of plan that has received, a favorable determination letter from the IRS, which

is current, taking into account the Tax laws referred to as “GUST.” To the K nowledge o f Sellers, no

circumstance exists that could result in revo cation of any such favorable determination letter. Each

trust created under any such Employee Plan has been determined to be exempt from taxation under

Section 501(a) of the Code, and, to the Knowledge of Seller s, no circumstance exists that could re sult

in a revocation of such exemption. No Employee Plan is intended to meet the requirements of Code

Section 501(c)(9). No circumstance exists that could g ive rise to a loss of any intended tax

consequence or to any Tax under Sect ion 511 o f the Code with respect to any Employee Plan.

(g) There has never been any Proceeding relating to any Employee Plan and, to the Knowledge of

Sellers, no such Proceeding is threatened. To the Knowledge of Sellers, no e vent has occurred or

circumstance exists that could give rise to or serve as a basis for the commencement of any such

Proceeding. No Acquired Company and no fiduciary of an Employee Plan has engaged in a

transaction with respect to any Employee Plan that could subject any Acquired Company or Buyer

to a Ta x or penalt y imposed by either Section 4975 of the Code or Sec tion 502(l) of ERISA or a

violatio n of Section 406 of ERISA. Neither the execution and deliver y of this Agreement nor the

consummation or performance of any Contemplated Transaction will, directly or indirectly (with or

without notice or lapse of time), result in the assessment of a Tax o r penalty under Section 4975 of

the Co de or Section 502(l) of ERISA or result in a violation of Section 406 of ERISA.

(h) Neither the execution and delivery of this Agreement nor the consummation or performance of any

Contemplated Transaction will, directly or indirectly (with or without notice or lapse of time),

obligate a ny Acquired Company to pay any separation, severance, termination, or similar benefit to,

or acceler ate the time of vesting for, change the time of pa yment t o, or increase the amount of

compensation due to, any director, employee, officer, for mer employee, or former officer o f any

Acquired Company. There is no Contract providing for payments that could subj ect any Person to

liability under Section 4999 of the Code.

(i) Other than t he continuation coverage require ments of COBRA, no Ac quired Company has any

obligation or potential liability for benefits to employees, former employees, or their dependents

following termination of employment or retirement under any Employee Plan.

(j) Neither the execution and delivery of this Agreement nor the consummation or performance of any

Contemplated Transact ion will, directly or indirectly (with or without notice or lapse of time), result

in an amendment, modification, or termination of any Employee Plan. No written or oral

representation has been ma de to any employee or former employee of any Acquired Company

promising or guaranteeing any employer payment or funding for the continuation of medical, dental,

life, or disability c overage for any period of time beyond the end of the curre nt plan year (except to

the extent of coverage required under COBRA). No written or or al representation has been made to

any employee or former employee of any Acquired Company concerning the employee benefits of

Buyer.

(k) No Acquired Company contributes to, has any obligation to contribute to, or has any liability with

respect to, a ny “employee pension benefit plan” w ithin the meaning of Section 3(2) of ERISA that is a

“defined benefit plan” within the meaning of Sect ion 3(35) of ERISA.

(l) No Acquired Company contributes to, has any obligation to contribute to, or has any liability with

respect to, a “multiemployer plan” within t he meaning of Section 3(37) of ERISA or Sectio n 414(f) of

the Code or a plan that has two or more contributing sponsors, at least two of whom are no t under

common control within the meaning of Section 413(c) of the Code.

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(m) Except as set forth in Part 3.13(m), no Employee Plan is subject to Section 409A of the Code. Each

Employee Plan subject to Sect ion 409A of the Code (“Deferred Compensation Plan”) complies in all

material respects with Section 409A of the Code. No Acquired Company has (i) granted to any

Person an interest in any Deferred Compensation Plan that is, o r upon the lapse o f a substantial r isk

of forfeiture with respect to such interest will be, subject to the Tax imposed by Section 409A(a)(1)(B)

or (b)(4)(A) of the Code, or (ii) materially modified any Deferred Compensation Plan in a manner

that c ould cause an inte rest previously gr anted u nder such plan to beco me subject to the Tax

imposed by Section 409A(a)(1)(B) or (b)(4) of the Code.

3.14 COM PLIANCE WITH LEGAL REQUIREMENTS; GOVERNMENTAL AUTHORIZATIONS

(a) Except as set forth in Part 3.14(a):

(i) each Acquired Company has at all times been in c omplia nce with each Legal Requirement

that is or was applicable to it or the conduct of its business or the ownership or use of any of

its assets;

(ii) no event has occurred or circumstance exists that (with or without notice or lapse of time)

(A) could constitute or result in a violation by any Acqui r ed Company of, or a failure on the

part of any Acquired Company to comply with, any Legal Requirement, or (B) could give

rise to any obligation on the part of any Acquired Company to undertake, or to bear all o r

any portion of the cost of, any remedial action;

(iii) no Acquired Co mpany has received any notice or other co mmunication (whether oral or

written) from any Governmental Body or a ny ot her Person regarding (A) any actual,

alleged, or potential violation of, or fa ilure to comply with, any Legal Requirement, or (B)

any actual, alleged, or potential obligation on the part of any Acquired Company to

undertake, or to bear all or any portion of t he cost of, any remedial action; and

(iv) no proposed Legal Requirement could have an a dverse consequence on any Acquired

Company or could require an expenditure of $__________ or more by any Ac quired

Company to comply with such Legal Requirement.

(b) Part 3.14(b) lists each Governmental Authorization that is held by any Acquired Company or that

otherwise relate s to the business of, or to any assets owned or used by, any Acquired Company. Each

Governmental Authorization listed in Part 3.14(b) is valid and in full fo rce and effect. Except as set

forth in Part 3.14(b):

(i) each Acquired Company has at all times been in compliance with each Governmental

Authorization;

(ii) no ev ent has occurred or circumstance exists that could (w ith or without notice or lapse of

time) ( A) constitute or result, direc tly or indirectly, in a violation of, or a failure on the part

of any Acquired Company to comply with, any Governmental Authorization listed in Part

3.14(b), or (B) result, directly or indirectly, in the revocation, suspension, cancellation,

termination, or modification of any Governmental Authorization;

(iii) no Acquired Co mpany has received any notice or other co mmunication (whether oral or

written) from any Governmental Body or a ny ot her Person regarding (A) any actual,

alleged, or potent ial violation of, or failure to comply with, any Governmental

Authorization, or (B) any actual, proposed, or potential revoc ation, suspension, cance llation,

termination, or modification of any Governmental Authorization; and

(iv) all applications required to have been filed for the renewal or reissuance of the

Governmental Authorizations listed in Part 3.14(b) have bee n duly filed on a timely basis

with the appropriate Governmental Bodies, and all other filings required to have been made

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with respect to such Gover nmental Authorizations have been duly made on a timely basis

with the appropriate Governmental Bodies.

necessary to permit each Acquired Company lawfully to continue to conduct its business in the

manner in which it conducts such business and to own and use its assets in the manner in which it

owns and uses such assets.

3.15 LEGAL PROCEEDIN GS; ORDERS

(a) Except as set forth in Part 3.15(a), since __________ there has not been, and there is not pending or,

to the Knowledge of Sellers, thre atened, any Proceeding:

(i) by or against any Acquired Company or that otherwise relate s to or could affect the business

of, or any assets owned or used by, any Acquired Company; or

(ii) by or against any Seller that relates to the Shares; or

(iii) that challenges, or tha t could have the effect of preventing, delaying, making illegal,

imposing limitations or conditions on, or otherwise interfering with, any Contemplated

Transaction.

To the Knowledge of Sellers, no event has occurred or circumstance exists that could give rise to or

serve as a basis for the commencement of any such Procee ding. Sellers have delivered to Buyer

copies of all pleadings, correspondence, and o ther documents relating to each pending or threatened

Proceeding listed in Part 3.15(a). None of the pending or threatened Pr oceedings listed in P art

3.15(a), individually or in the a ggregate, will or could rea sonably be expected to result in an adverse

consequence to any Acquired Company or in any Acquired Company incurring Losses of

$__________ or more or being subjected to any Order.

(b) Except as set forth in Part 3.15(b):

(i) there is no Order to which a ny Acquired Company, or any assets owned or used by any

Acquired Company, is subjec t; and

(ii) no Seller is subject to a ny Order that relates to the business of, or any assets owned or used

by, any Acquired Company.

(i) each Acquired Company has at all times been in compli ance with each Order to which it, or

any assets owned or used by it, is o r has been subject;

(ii) no event has occurred or circumstance exist s that could constit ute or resu lt in (with or

without notice or lapse of time) a violation of, or failure to comply with, any Order to which

(A) any Acquired Company, or any assets owned or used by any Acquired Company, is

subject, or (B) any Seller is subject that r elates to the business of, or a ny assets owned or

used by, any Acquired Company; and

(iii) no Acquired Company or Seller has, at any time receive d any notice or other communication

(whether oral o r written) from any Gover nmental Body or any other Person regarding any

actual, alleged, or potential violation of, or failure to comply with, any Order to which (A)

any Acquired Company, or any assets owned or used by any Acquired Company, is subject,

or (B) any Seller is subject that relates to the business of, or any assets owned or used by, any

Acquired Company.

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3.16 ABSENCE OF CERTAIN CHANGES AND EVENTS

Except as set forth in Part 3.16, since the Balance Sheet Date, each Acquired Company has

conducted its business only in the Ordinary Course of Business, and there has not been any:

(a) issuance of or change in the authorized or issued Equity Securities o f any Acquired Company;

purchase, redemption, retirement, or other acquisition by any Acquired Company of any Equity

Security of any Acquired Company; or decla ration or payment of any dividend or other distribution

or payment in respect of the Equity Securities of any Acquired Company;

(b) amendment to the Organizational Documents of any Acquired Company;

compensation in the Ordinary Course of Business, payment, increase or decrease by any Acquired

Company of any bonus, salary, benefit, or other compensation to any holder of an Equity Security,

director, manager, officer, employee, or consultant or entry into or amendment of any employment,

severance, bo nus, r e tirement, loan, or o ther Contract with any holder of any Equity Security,

director, manager, officer, employee, or consultant;

(d) adoption of, amendment to, or material increase or decrease in the payments to or benefits under any

Employee Plan;

(e) damage to or destruction or loss of any asset owned or used by any Acquired Company , whether or

not covered by insurance;

(f) entry into, modification, termination, or expiration of, or receipt of notice of termination of, any

Applicable Cont ract listed in Part 3.17(a);

(g) sale (other than sales of inventory in the Ordinary Course of B usiness), lease, other disposition of, or

imposition o f an Encumbrance o n any asset owned or used by any Acquired Company;

(h) release or waiver of any cla im or right of any Acquired Co mpany with a value in excess of

$__________;

(i) change in the accounting methods used by any Acquired Company;

(j) capital expenditure (or series of relate d capita l expenditures) by any Acquired Company either

involving more tha n $__________ or outside the Ordinary Course of Business;

(k) capital investment in, loan to, or acquisition of the securities or assets of , any Person (or series of

related capital investments, loans, a nd acquisitions) by any Acquired Company either involving more

than $__________ or outside the Ordinary Course of Business or acquisition (by merger, exchange,

consolidation, acquisition of Equity Sec urities or assets, or otherwise) of any Person by any Acquired

Company;

(l) note, bond, debenture, or other indebtedness for b orrowed money issued, created, incurred,

assumed, or guaranteed (including advances on existing c redit f acilities) involving more tha n

$__________ individually or $__________ in the aggregate by any Acquired Company;

(m) Contract by any Acquired Company or any Seller to do any of the foregoing; or

(n) other material oc currence, event, action, failure to act, or transac tion outside the Ordinary Co urse of

Business involving any Acquired Company.

3.17 CONTRACTS

(a) Part 3.17(a) lists, and Sellers have delivered to Buyer a copy of, each Applicable Contract:

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(i) involving the performance of services, delivery of goods or materials, or payments by one or

more Acquired Companies of an amount or value in excess of $__________;

(ii) involving the performance of services, delivery of goods or materials, or payments to one or

more Acquired Companies of an amount or value in excess of $__________;

(iii) that was not enter e d into in the Ordinary Course of Business;

(iv) affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in,

any real or personal property (except personal propert y leases and installment and

conditional sales agreements having a value per item or ag gregate payments of less than

$__________ and with remaining terms of less than one year);

(v) with respect to Intellectual Property Assets, including Contracts with current or former

employees, consultants, or contractors regarding the ownership, use, protectio n, or

nondisclosure of any of the Intellectual Property Assets;

(vi) with any labor union or other employee representative of a group of employees relating to

wages, hours, or other conditions of employment;

(vii) involving any joint venture, partnership, or limited lia bility company agreement involving a

sharing of prof its, losses, costs, Taxes, or other liabilities by any Acquired Company with

any other Person;

(viii) containing covenants that in any way purport to restrict the right or fre edom of any

Acquired Company or any other Person for the benefit of any Acquired Company to (A)

engage in any business activity, (B) engage in any line of business or compete with a ny

Person, or (C) solicit any Person to enter into a business or employment rela tionship, o r

enter into such a r elationship with any Person;

(ix) providing for payments to or by any Person based on sales, purchases, or profits, other than

direct pa yments for goods;

(x) containing an effective power of attor ney grante d by any Acquired Co mpany;

(xi) containing or pro viding for an express undertaking by any Acquired Company to be

responsible for consequential, special, or liquidated damages or penalties or to indemnify

any other party;

(xii) for capital expenditures in excess of $__________;

(xiii) involving payments to or from an Acquired Company that are not denominated in U.S.

dollars;

(xiv) involving the settlement, release, compromise, or waiver of any material rights, claims,

obligations, duties, or liabilities;

(xv) relating to indebtedness of any Acquired Company in excess of $__________;

(xvi) relating to the e mployment of any employee of any Acquired Company;

(xvii) relating to a distributor, reseller, OEM, dealer, manufacturer’s representat ive, bro ker,

finder’s, sales agency, advertising agency, manufacturing, assembly, or product design and

development relationship with an Acquired Company;

(xviii) under which any Acquired Company has loaned to, or made an investment in, or guarant eed

the obligations of, any Person in excess o f $__________;

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(xix) relating to any bond or letter o f credit;

(xx) containing any oblig ation of c onfidentiality or nondisclosure between any Acquired

Company and any other Person for the benefit of a ny Acquired Company or such other

Person; and

(xxi) constituting an amendment, supplement, or modificat ion (whether oral or written) in respect

of any of the foregoing.

(b) Except as set forth in Part 3.17(b):

(i) each Applicable Contract listed in Part 3.17(a) is in full force and effect, and is va lid and

enforceable in accordance with its terms;

(ii) the completion or performance of each Applicable Contract for the sa le of goods or services

by an Acquired Company listed in Part 3.17(a) will not result in less than normal profit

margins to such Acquired Company; and

(iii) the completion or performance of eac h Applicable Con tract listed in Part 3.17(a) will not

result in an adverse consequence to any Acquired Company.

(i) each Acquired Company has been in compliance with each Applicable Contract since the

effective date of such Applicable Contract;

(ii) each other Person that has any obligation or liability under any Applicable Contract has

been in compliance with such Applicable Contract since the effective date of such Applicable

Contract;

(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time)

could result in a Breach of, or give any Acquired Company or other Person the right to

declare a default or exercise any remedy under, or accelerate the maturity or performance

of or payment under, or cancel, t erminate, or modify, any Applicable Contract ;

(iv) no event has occurred or circumstance exists under or by virtue of any Applica ble Contract

that (with or without notice or lapse of time) would cause the creation of any Encumbrance

affecting any assets owned or used by any Acquired Company; and

(v) no Acquired Company has g iven to, or received from, any other Person any notice or other

communication (whether oral or written) rega rding any actual, alleged, or potential Breach

of any Applicable Contract.

(d) There is no renegotiation of, attempt to renegotiate, or outstanding rights to renegotiate any

Applicable Contract with any Person, and no Person has made written demand for such

renegotiation.

(e) Each Applicable Contrac t rela ting to the sale, design, manufacture, or provision of products or

services by an Acquired Company has been entered into in the Ordinary Course of Business and

without the commission of any act alone or in concert with any other Person, or any consideration

having been paid or promised, in v iolation of any Legal Requirement.

3.18 INSURANCE

(a) Sellers have delivered to Buyer:

(i) copies of all policies of insurance (and correspondence rela ting to coverage thereunder) to

which any Acquired Company is a party, an insured, or a beneficiary, or under which a ny

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Acquired Company, or any director, officer, or manager of any Acquired Company in his or

her capacity as such, is or has been covered at any time since __________, a list of which is

included in Part 3.18(a);

(ii) copies of all pending applications for policies of insurance; and

(iii) any written statement by the auditor of any Acquired Company or any consultant or risk

management advisor provided to or in the possession of an Acquired Company with regard

to the adequacy of its coverage or its reserves for actual or potential claims.

(b) Part 3.18(b) sets forth:

(i) any self-insurance or retentio n arrangement by or affecting any Acquired Company,

including any reserves established thereunder;

(ii) any Contract, other t han a policy of insurance, for t he transfer or sharing of any risk by any

Acquired Company; and

(iii) all oblig ations of any Acq uired Company to third parties with respect to insurance coverage

(including such obligations under leases and service agreements) and identifying the policy

under w hich such coverage is provided.

preceding ____ policy years by year:

(i) a summary of the loss experience under each policy of insurance;

(ii) a sta tement describing each c laim under a policy of insurance for an amount in excess of

$__________, which sets forth:

(A) the name of t he claimant;

(B) a description of the policy by insurer, type of insurance, and period of coverage; and

(iii) a statement describing the loss experience for all claims that were self-insured, including the

number and aggregate cost of such claims.

(d) Except as set forth in Part 3.18(d):

(i) all policies of insurance to which any Acquired Company is a party, an insured, or a

beneficiary or that provide coverage to any Seller in such Seller’s capa city as a shareholder

of the Company, any Acquired Company, or any director, officer , or manager of an

Acquired Company in such capacity:

(A) are valid, outstanding, and enforceable;

(B) are issued by an insurer that is financially sound and reputable;

operations of each Acquired Company [for all risks normally insured against by a

Person carrying on the same business or businesses as such Acquired Company]

[for all r isks to which such Acquired Company is normally exposed];

(D) are sufficient for compliance with applicable Legal Requirements and all Applicable

Contracts to which any Acquired Company is a party or by which it is bound;

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(E) will continue in full force and effect following the consummation and per formance

of the Contemplated Transactions; and

(F) do not provide for any retrospective premium adjustment or other experience-based

liability on the part of a ny Acquired Company;

(ii) since __________, no Seller or Acquired Company has rece ived:

(A) any refusal of insurance coverage or a ny notice that a defense will be afforded with

reservation of rights; or

(B) any notice of cancellation or any other indication that any policy of insurance is no

longer in full for ce or effect or will not be renewed or that the issuer of any policy of

insurance is not willing or able to perform its obligations thereunder;

(iii) each Acquired Company has paid all premiums due, and has otherwise perfo r med its

obligations, under each policy of insurance to which it is a party or that provides coverage to

it or to any of its directors, officers, or managers, in their capacity a s such;

(iv) each Acquired Company ha s given notice to the insurer of all insured claims; and

(v) no Acquired Company and no Seller has received any notice of any, and to the Knowledge of

Sellers there are no, planned or proposed increases in the premiums or any other adverse

change in the terms of any policy of insurance covering any Acquired Company, any Seller

in such Seller’s capacit y as a shareholder of the Company, or any officer, director, or

manager of an Acquired Company in his or her capacity as such.

(e) No Acquired Company has provided any information to any insurer in connection with any

application for insurance that could result in (i) cancellation of any insurance policy or bond for the

benefit of such Acquired Company or (ii) denial of c overage for a risk otherwise covered by any such

insurance policy or bond.

(f) Part 3 .18(f) describes the manner in which the Company insure s or self-insures with respect to

workers’ compensation liability. Part 3.18(f) lists each i ncident or claim that c r eates or could create

a wor kers’ compensation liability of any Acquired Company since __________, and the related

disposition and accrual with respect to such incident or claim. No Acquired Co mpany has received

any no tice that , and no Acquired Company has any reason to believ e, based on its incident or claim

experience that, it s workers’ compensation insurance premiums or expenses will increa se in the next

12 months, or, if self-insured, that it will not be permitted to continue to self-insure without increase

in any relate d bonds, letters of credit, o r other form of financial security.

3.19 ENVIRONMENTAL M ATTERS

Except as set forth in Part 3.19:

(a) Each Acquired Company has at all times complied with all Environmental Laws.

(b) No Seller or Acquired Company or a ny other Person for whose conduct any of them is or could be

held responsible has received any Order, notice, or other communication (written or oral) relating to

any actual, alleged, o r pote ntial violation of or fa ilure to comply with any Enviro nmental Law, or any

actual or potential Environmental, Health, and Safety Liability.

from any Environmental, Health, and Safety Liability or arising under or pursuant to any

Environmental Law, with respect to or affecting any of the Facilities or any other asset owned or

used by any Acquired Company or in which it has or had an interest.

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(d) No Seller or Acquired Company, or any other Person for whose conduct any of them is or c ould be

held responsible, has any Environmental, Healt h, and Safety Liability, and no event has occurred or

circumstance exists that (with or without notice or lapse of time) co uld result in any Acquired

Company or any other Person for whose conduct any of them is or could be held responsible ( i)

having any Environmental, Health and Safety Liability or (ii) violating any Environmental Law.

(e) There is no Hazardous Material present on or under the Facilities or, to the Knowledge of Sellers,

any geographically, geologically, hydraulically or hydro-geologically adjoining property (“Adjoining

Property”). No Seller, Acquired Company, any other Person for whose conduct any of them is or

could be held responsible, or, to the K nowledge of Sellers, any other Perso n, has permitted or

conducted, or is aw are of, any Hazardous Activity conducted with respect to the Facilities or any

other asset in which any Acquired Company has or had an interest.

(f) None of the Facilities and, to the Knowledge of Sellers, no Adjoining Pro per ty, contains any (i)

above-ground or underground storage tanks or (ii) landfills, surface impoundments, or disposal

areas.

(g) Sellers have delivered to Buyer c opies of all reports, studies, analyses, or tests initiated by or on

behalf of or in the po ssession of Seller or any Acquired Company pertaining to the environmental

condition of, Hazardous Material or Haz ardous Activity in, on, or under, the Facilities or any

Adjoining Property, or c oncerning compliance by any Acquired Company or any other Person for

whose conduct any of them is or could be held responsible, with Environmental Laws.

3.20 EMPLOYEES AND CONSULTANTS

(a) Part 3.20(a) lists the following info rmation for each employee of each Acquired Company, including

each employee on leave of absence or layoff status: employer, name, job title, date of hiring, date of

commencement of employment, details of leave of absence or layoff, rate of compensation, bonus

arrangement, and any change in c ompensation or bonus since _ _________, vac ation, sick time, and

personal leave accrued as of __________, and service credited for purposes of vesting and eligibility

to participate under any Employee Plan.

(b) Part 3.20(b) lists the following information for ev ery independent co ntractor, consultant, or sales

agent of each Acquired Company: name, responsibilities, date of e ngagement, and compensation.

Each such independent contractor, consultant, or sales agent qualifies as an independent contrac tor

in relation to such Acquired Company for purposes of all applicable Legal Requirements, including

those relating to Taxes, insurance, and employee benefits.

employee of any Acquired Company intends to terminate such Person’s employment with such

Acquired Company, and (ii) no independent contractor, consultant, or sales agent intends to

terminate such Person’ s arrange ment with any Acquired Company.

(d) Part 3.20(d) lists the following information for each retired employee or director of any Acquired

Company, or their dependents, receiving benefits or scheduled to receive benefits f rom any Acquired

Company in the future: name, pension benefits, pension option e lection, retiree medical insurance

coverage, retiree life insurance coverage, and other benefits.

(e) Part 3.20(e) states the number of employees terminated or laid off by any Ac quired Company since

__________, and contains a list of the following information for each employee of an Acquired

Company who has been terminated or laid off, or whose hours of work have been reduced by more

than 50% by an Acquired Company, in the six months prio r to the date of this Agreement: (i) the

date of such termination, la yoff, o r reduction in hours; (ii) the r eason for such termination, layoff, or

reduction in hours; and (iii) the location to which the employee was assigned.

(f) No Acquired Company has violated the Worker Adjustment and Retraining Notification Act or any

similar stat e or local Legal Requirement.

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(g) To the Knowledge of Sellers, no director , officer, employee, agent, consultant, or independent

contractor of any Acquired Co mpany is bound by any Contract or subject to any Order that

purports to limit the ability of such director, officer, employee, agent, consultant, or independent

contractor (i) to engage in or continue or perform any conduct, activity, duties, or practice relating to

the business of any Acquired Company or (ii) t o assign to any Acquired Company any rights to any

invention, improvement, or discovery. No former o r current employee of any Acquired Company is

a party to, or is o therwise bound by, any Contract that in any way adversely affected, affects, o r

could affect the ability of any Acquired Company to continue to conduct its business as conducted.

3.21 LABOR DISPUTES; COMPLIANC E

(a) Each Acquired Company has at all t imes complied with all Legal Requirements relating t o

employment practices, terms, and conditions of employment, equal employment opport unity,

nondiscrimination, sexual harassment, immigration, w ages, hours, benefits, collective bargaining and

similar requirements, the payment of Social Security and similar Taxes, and occupational safety and

health. No Acquired Company is liable for the payment of any Taxes, fines, penalties, or other

amounts, howeve r designat ed, for failure to comply with any of the foregoing Legal Require ments.

(b) Except as set forth in Part 3.21(b):

(i) no Acquired Company is or has been a party to any collective bargaining agreement or other

labor contract;

(ii) since __________, there has not been, there is not pending or existing, and, to the Knowledg e

of Sellers, there is not threatened, any strike, slowdown, picketing, work stoppage, employee

grievance process, organizationa l activity, or other labor dispute involving any Acquired

Company;

(iii) to the Knowledge of Sellers, no event has occurred or circ umstance exists that could provide

the basis for any work stoppage or other labor dispute;

(iv) since __________, there has not been, and there is not pending or, t o the Know ledge of

Sellers, threatened against or affecting any Acquired Company any Proceeding relating to

the alleged violation of any Legal Requ irement pertaining to labor relations or employment

matters, including any charge or complaint filed w ith th e National Labo r Relations Board or

any comparable Governmental Bo dy;

(v) no application or petition for an election or for certification of a collective bargaining agent

is pending;

(vi) since __________, there has not been, and there is not pending or, to Sellers’ knowledge,

threatened, any lockout of any employees by any Acquired Company; and

(vii) since __________, there has not been, and there is not pending or, t o the Know ledge of

Sellers, threatened, against any Acquired Company any charge of discrimination or sexual

harassment filed with the Equal Employment Opportunity Commission or similar

Governmental Body, and no event has occurred or circumstances exist that co uld provide

the basis for any such charge.

3.22 INTELLECTUAL PROPERTY ASSETS

(a) Definition of Inte llectual Property Assets

The term “Intellectual Property Assets” means all intellectual property owned, licensed (as licensor

or licensee), or used by an Acquired Company, including:

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(i) the name of each Acquired Company, a ssumed, fictional, business and trade names,

registered and unregistered trademarks, service marks, and logo s, and trademark and

service mark applications (collectively , “Marks”);

(ii) patents, patent applications (collectively, “Pa tents”), and Invention Disclosures;

(iii) registered and unregistered copyrights in both published works and unpublished works

(collectively, “Copyrights”);

(iv) all rig hts in mask works (as defined in Section 901 of the Co pyright Act of 1976);

(v) software (including firmware and other softwar e embedded in hardware devices), software

code (including source code and executable or object code), subroutines, interfaces,

including APIs, and algorithms (co llectively “Software”);

(vi) all know-how , trade secrets, confidential or proprietary information, custo mer lists,

technical information, data, process technology, plans, drawings, inventions, and discoveries,

whether or not patentable (collectively, “Trade Secrets”); and

(vii) all rights in Internet websites, Internet domain names, and keywords held by an Acquired

Company (collectiv e ly “Net Names”).

(b) Nature of Intellectual Property Assets

(i) The Intellectual Property Assets owned by each Acquired Company, together with the

Intellectual Property Assets lice nsed by that Acquired Company and listed in Part

3.17(a)(v) , are all those used in or necessary for the c onduct of the business of such Acquired

Company as it is being conducted. One or more Acquired Companies is the owner of ea ch of

the owned Intellectual Property Assets, free and clear of any Encumbrance, and has the

right to use them without payment to any Person. No Acquired Company is bound by, and

none of the owned Intellectual Property Assets is subject to, any Contract that in any way

limits or restricts the ability of any Acquired Company to use, exploit, assert, or e nforce any

such Intellectual Property Asset anywhere in the wor ld.

(ii) All former and current employees or independent contractors of each Acquired Company

have executed written Contracts with t hat Acquired Company that assign to that Acquired

Company all rights to any inventions, improvements, discoveries or information, and works

of authorship of such employee or independent contractor relating to the business of that

Acquired Company.

(iii) No f unding, facilities, or personnel of any Gove r nmental Body, any educational institution,

or any other Person (other than an Acquired Company) were used, directly or indirectly, to

develop or cr eate, in whole or in part, any owned Intellectual Property Asset.

(iv) Since __________, no Acquired Company has assigned or otherwise transferred any interest

in, or agreed to assign or otherwise transfer any interest in, any Intellectual Property Asset

to any other Person, except pursuant to nonexclu sive licenses in the Ordinary Course of

Business.

(v) No Acquired Company is or ever was a member or promoter of, or a contributor to, any

industry standa rds body or other organization that could require or obligate a ny Acquired

Company to grant or offer to any other Person any license or right to any Intellectual

Property Asset.

(i) Part 3.22(c) lists all Patents and invention disclosures relating to inventions conceived or

reduced to pract ice by one or more officers, employees, indepen dent contractors, or other

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parties with whom any Acquired Company may have collaborated in connection with

developments on behalf o f such Acquired Company’s business (“Invention Disclosures”),

including the name of the Acquired Co mpany that owns or uses such Patent or Invention

Disclosure.

(ii) All Patents are in compliance with all applicable Legal Requirements (including pa yment of

filing, examination, and maintenance fees, and proof s of working or use), are valid and

enforceable, and are not subject to any maintenance fees, taxes, or act ions falling due w ithin

90 days after the Closing Date. No Invention Disclosure describes any invention that has

been publicly disclosed or offered for sale, creating a bar to filing patent applications within

90 days after the Closing.

(iii) No Patent has been or is involved in any interference, reissue, reexamination, or opposition

Proceeding, and, to the Knowledge of Sellers, no such Proceeding is thre atened. To the

Knowledge of Sellers, there is no pote ntially interfering patent or patent application of any

Person with re spect to any Patent.

(iv) No Patent is or has been infringed or has been challenged or, to the Knowledge of Sellers, no

such challenge is threatened. None of the products manufactured or sold, o r any pr ocess or

know-how used, by any Acquired Company infringes or is alleged to infringe any patent or

other proprietary right of any other Person.

(v) All products made, used, or sold under the Patents have been marked with the proper patent

notice.

(d) Marks

(i) Part 3.22(d) lists all Marks, including the name of the Acquired Company that ow ns or uses

such Mark.

(ii) Except as set forth in Part 3.22( d), all Marks have been registered with the United States

Patent a nd Trademark Office and foreign countries where any of the Acquired Companies

do substantial business related to the goods or services associated with such Marks, are in

compliance with a ll applicable Legal Requirements (including the timely post-registration

filing of affidavits of use and incontestability and renewal applications), are valid and

enforceable, and are not subject to any maintenance fees, taxes, or act ions falling due w ithin

90 days after the Closing Date.

(iii) No Mark has been or is involved in any dispute, opposition, invalidation, or cancellation

Proceeding and, to the Knowledge of Sellers, no such Proceeding is threatened.

(iv) To the Knowledge of Sellers, there is no potentially interfering trademark or trademark

application of any Person with respect to any Mark.

(v) No Mark is or has been infringed or has been c hallenged and, to t he Knowledge of Sellers,

no such challenge is threatened. None of the Marks used by any Acquired Company

infringes o r is alleged to infringe any trade name, trademark, or service mark of any Person.

(vi) All products and materials containing a registered Mark bear the proper f e deral

registratio n notice where permitted by law.

(e) Copyrights

(i) Part 3.22(e) lists all registered Copyrights and all material unreg iste red Copyrights used in

connection with the products or services provided by any Acquired Company, including the

name of the Acquired Company that owns or uses such Copyrig ht.

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(ii) All registered Copyrights are in compliance with all applicable Legal Require ments, and all

the Copyright s listed in Part 3.22(e) are valid and enforceable, and ar e not subject to any

maintenance fees, taxes, or actions falling due within 9 0 days after the Closing Date.

(iii) No Copyright listed in Par t 3.22(e) is or has been infringed or has been challenged, and, to

the Knowledge of Sellers, no such challenge is t hre atened. No ne of the subject matter of any

work based upon the work o f any other Person.

(iv) All works encompassed by the Copyrights listed in P art 3.22(e) have been marked with the

proper copyright notice.

(f) Trade Secrets

(i) The documentation relating to ea ch Trade Secret is current , acc urate, and sufficient in detail

and content to identify and explain it and to allow its full and proper use without relia nce on

the knowledge or memory of any individual.

(ii) Each Acquired Company has taken all reasonable precautions to prote ct the secrecy,

confidentiality, and value of eac h Trade Secret (including t he enforc e ment by each Acquired

Company of a policy requiring each employee or contractor to e xecute pro prietary

information and confidenti ality agreements substantially in such Acquired Company’s

standard form, and all current and former employees and independent contractors of each

Acquired Company have executed such an agreement).

(iii) No Trade Secret is part of the public knowledge or literature or has been used, divulged, or

appropriated either for the benef it of any Person (other t han an Acquired Company) or to

the detriment of any Acquired Company. No Trade Secret is subje ct to any adverse c laim or

has been challenged, and, to the Knowledge of Sellers, no such challenge is threate ned. No

Trade Secret infringes or is alleged to infringe any intellectual property rig ht of any Perso n.

(g) Software

All Software owned, licensed, or used by any Acquired Company (other than co mmonly available,

noncustomized third-par ty software licensed to an Acquired Company for internal use on a nonexclusive

basis) is listed in Parts 3.22(c), (e), or (f) or 3.17(a)(v). Eac h Acquired Company has all rights necessary to

use all copies of all Software used by such Acquired Co mpany.

(h) Net Names

(i) Part 3.22(h) lists all Net Names, including the name of the Acquire d Company that owns or

uses such Net Name.

(ii) All Net Names have been re gistered in the name of an Acquired Company and a re in

compliance with all applicable Legal Requirements.

(iii) No Net Name has been or is involved in any dispute, opposition, invalidation, or cancellation

Proceeding and, to the Knowledge of Sellers, no such Proceeding is threatened.

(iv) To the Knowledge of Sellers, there is no domain name application pending of any other

Person which would or would potentially interfere with or infringe any Net Name.

(v) No Net Name is or has been infringed or has been challenged and, to the Knowledge of

Sellers, no such challenge is thre atened. No Net Name infringes or is alleged to infringe the

trademark, copyright, or domain name of any other Person.

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3.23 COM PLIANCE WITH THE FOREIGN CORRUPT PRACTICES ACT AND EXPORT CONTROL

AND ANTIBOYCOTT LAWS

No Acquired Company and no Re presentative of any Acquired Company in its capacity as such has

violated t he Foreign Corrupt Practices Act or the anticorruption laws of any jurisdiction where the Company

does business. Each Acquired Company has at all times complied with all Legal Requirements relating to

export control and trade sanctions or embargoes. No Acquired Company has violated the antiboycott

prohibitions contained in 50 U.S.C. Sections 2401 et seq. or taken any act ion that can be penalize d under

Section 999 of the Code.

3.24 RELATIONSHIPS WI TH RELATED PERSONS

No Seller and no Relat ed P erson of any Seller o r of any Acquired Company has, or since __________

has had, any interest in any asset owned or used by any Acquired Company. No Seller and no Related Person

of any Seller o r of any Acquired Company is, or since __________ has been, a Related Party of or the owner

(of record or beneficially) of any Equity Sec urity or any other financial or profit interest in, a Person that has

(a) had busine ss dea lings or a material financial interest in any transaction with any Acquired Company or

(b) engag ed in competition with any Acquired Co mpany, other than ownership of less than one per cent of the

outstanding capital stock of a Person that is listed on any national or regional securities exchange. Except as

set forth in Part 3.24 , no Seller or a ny Related Perso n of any Seller or of any Acquired Company is a party to

any Applicable Contract with, or has any cla im or right against, a ny Acquired Co mpany.

3.25 SECURITIES LAW MATTERS

(a) Each Seller is acquiring its Promissory Note for its own a ccount and not with a view to its

distribution within the meaning of Section 2(11) of the Securities Act. Each Seller is an “accredited

investor” as such term is defined in Rule 501(a) under the Securities Act.

(b) Each Seller confirms that Buyer has made available to such Seller and its Representatives the

opportunity t o ask questio ns of the officers and manage ment employees of Buyer and to acquire such

additional information about the business and financial condition of Buyer a s such Seller has

requested, a nd all such information has been received.

3.26 CUSTOMERS AND SUPPLIERS

Part 3.26 lists for each of the ___ y ears ending __________ the names of the respective customers that

were, in the aggregate, the _________ _ la rgest customers in terms of dollar value of products or services, or

both, sold by each Acquired Company (“M ajor Customers”). Pa r t 3.26 also lists for each such year, the

names of the respective suppliers that were, in the aggregate, the ______ largest suppliers in ter ms of dollar

value of products or services, or both, to each Acquired Company (“Major Suppliers”). Except as set forth in

Part 3.26, no Major Customer or Major Supplier has given any Acquired Company notice (written or oral)

terminating, canceling, reducing the v olume under, or renegotiating the pricing terms or any ot her material

terms of any Applicable Contrac t or relationship with any Acquired Company or threatening to take any of

such actions, and, to the Knowledge of Seller s, no Major Customer or Major Supplier intends to do so.

3.27 PRODUCT LIABILITIES AND WARRANTIES

(a) Except as set forth in Part 3. 27(a), no Acquired Company has incurred any Loss as a result of any

defect or other deficiency (whether of design, materials, workmanship, labeling, instructions, or

otherwise) with respect to any product designed, manufactured, sold, leased, licensed, or delivered,

or any service provided by any Acquired Company, whether such Loss is incurred by reason of any

express or implied warranty (including any warranty of merchantability or fitness), any doctrine of

common law (tort, contract, or o ther), any other Legal Requirement, or otherwise. No

Governmental Body has alleged that any product designed, manufac tured, sold, leased, licensed, or

delivered by any Acquired Company is defective or unsafe or fails to meet any product warranty or

any standards promulgated by any such Governmental Body. No product designed, manufactured,

sold, leased, licensed, or delivered by any Acquired Company has been recalled, and no Acquired

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Company has received any notice of recall (written or ora l) of any such product from any

Governmental Body. No event has occurred or circumstance exists that (with or w ithout notice or

lapse of time) could result in any such liability o r recall.

(b) Except as set forth in Part 3.27(b), no Acquired Company has giv en t o any Person any product or

service guaranty or warranty, right of return, or other indemnity relating to the products

manufactured, sold, leased, l icensed, or delivered, or services performed, by any Acq uire d Company.

Each Acquired Company has legally excluded liability for all special, incidental, punitive, and

consequential damages to any customer, dealer, or distributor of any Acquired Company or

customer of any such dealer or distributor .

3.28 BROKERS OR F INDERS

No Seller o r Acquired Company, and none of their respective Representatives, has incurred any

obligation or liability, cont ingent or otherw ise, for any brokerage or finder’s fee or agent’s commission or

other similar payment in connection with this Agreement or the Contemplated Tran sactions.

3.29 DISCLOSURE

No re pre sent ation or war ranty or other st atement made by any Seller in this Agreement, the

Disclosure Letter, any supplement to the Disclosure Letter, the cer tificate deliver ed pursuant to Section 8. 3,

or otherwise in connection with the Contemplated Tra nsa ctions contains any untrue st atement of material

fact or omits to sta te a material fact necessary to ma ke the sta tements in this Agreement or therein, in light of

the circumstances in which they were made, not misleading.

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4. Representations and

Warranties of Buyer

Buyer represents and warrants to Sellers as follows:

4.1 ORGANIZATION AND GOOD STANDING

Buyer is a corporation duly orga nize d, validly existing, and in good standing under the laws of the

State of __________.

4.2 ENFORCEABILITY AND AUTHORITY; NO CONFLICT

(a) The execution, delivery, and performance by Buyer of this Agreement a nd Buyer’s Closing

Documents have been duly aut horized by all necessary corporate action. This Agreement has bee n

duly executed and delivered by Buyer and constitutes the legal, valid, and binding obligation of

Buyer, enforce able against Buy er in accordance with its terms. Upon execution and delivery of

Buyer’s Closing Documents by Buyer, each of Buyer’s Closing Documents will constitute the leg al,

valid, and binding obligation of Buyer, enforceable against Buyer in accordance with its terms.

Buyer has the absolute and unrestricted right, power, and authority to execute and deliver this

Agreement and Buyer’s Closing Documents and to perform its obligatio ns under this Agreement and

Buyer’s Closing Documents.

(b) Except as set forth in Part 4 .2, neither the execution and deliver y of this Agreement nor the

consummation or performance of any Contemplated Transaction will directly or indirectly (with or

without notice or lapse of time):

(i) contrave ne, conflict with, or violate (A) any Organizational Document of Buye r, or (B) any

resolution adopted by the boar d of director s or the shareholders of Buyer;

(ii) contrave ne, conflict wit h, or violate, or give any Governmental Body or other Person the

right to challenge a ny Contemplated Transaction, or to exercise any remedy or o btain any

relief under, any Legal Requirement or any Order to which Buyer, or any assets owned or

used by Buyer, is subject; or

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(iii) Breach, or give any Person the right to declare a defa ult or exercise any remedy or to obtain

any additional rights under, or to ac celerate the maturity o r performance of , or payment

under, or to cancel, terminate, or modify, any Contract to which Buyer is a party.

Person in connection with the execution and delivery of this Agreement or the consummation or

perfor mance of any Contemplated Transaction.

4.3 INVESTMENT INTEN T

Buyer is acquiring the Shares for its own account and not with a view to their distributio n within the

meaning of Section 2(11) of the Securities Ac t.

4.4 CERTAIN PROCEEDINGS

There is no Proceeding pending against Buyer that challenges, or could have the effect of preventing,

delaying, making illegal, imposing limitations or conditions on, or otherwise interfering with, any

Contemplated Transaction. To Buyer’s Knowledge, no such Pr oceeding has been threatened.

4.5 BROKERS OR F INDERS

Neither Buyer no r any of its Representatives has incurred a ny obligation or liabili ty, contingent or

otherwise, for any brokerage or finder’s fee, agent’s commission, or other similar payment in connection with

this Agreement or the Contemplated Transac tions.

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5. Covenants of Sellers

Prior to Closing Date

5.1 ACCESS AND INVESTIGATION

Prior to the Closing Dat e, and upon reasonable notice fr om Buyer, each Seller shall, and shall cause

each Acquired Company to, (a) afford Buy er and its Repre sentatives and prospective lenders and their

Representatives (collectively, “Buyer Group”) full and free ac c ess, during regular business hours, to each

Acquired Company’s personnel, assets, Contracts, and Records, (b) furnish Buyer Group with copies of all

such Contracts and Records as Buyer may reasonably request, (c) furnish Buyer Group with such additional

financial, operating, and other relevant data and information as Buyer may reasonably request, and (d)

otherwise cooperate and assist, to the e xtent reasonably requested by Buye r, with Buyer’s investigation of the

business, condition (financial or otherwise), assets, results of operations, or prospects of each Acquired

Company. In addition, Buyer shall have the right to have the Real Property and the tangible personal

property of each Acquired Company inspected by Buyer Gro up, at Buy er’s so le cost and expense, including

the performance of subsurface or other intrusive testing.

5.2 OPERATION OF THE BUSINESSES OF THE ACQUIRED COMPANIES

Prior to the Clo sing Date , each Seller shall, and shall cause each Acquired Company to:

(a) conduct the business of such Acquired Company only in the Ordinary Course of Business;

(b) use its best efforts to preserve intact the current business organization of such Acquired Company,

keep available the services of the officers, employees, and agents of such Acquired Company, and

maintain its relations and goodwill with suppliers, customers, landlords, creditors, employees, agents,

and others having business relatio nships with such Acquired Company;

(d) report to Buyer at such times as Buyer may reaso nably request concerning the status of the business,

condition ( financial or otherwise), a ssets, results of operations, or prospects of such Acquired

Company;

(e) make no material changes in management personnel of such Acquired Company;

Please read this

section number 5.

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(f) maintain the assets owned or used by such Acquired Company in a state of repair and condition that

complies with Legal Requirements and Contracts and is consistent with the requirements and

normal conduct of the business of such Acquired Company;

(g) keep in full force and effect, without amendment, all material rights relating to the business of such

Acquired Company;

(h) comply with all Legal Requirements applicable to, and all Applicable Contracts of, such Acquired

Company;

(i) continue in full f orce and effect the insurance coverage under the policies set forth in Part 3.18 or

substantially equivalent policies;

(j) except as required to comply with ERISA or to maintain qualification under Secti on 401(a) of the

Code, not amend, modify, or terminate any Employee Plan and, except as required under the

provisions o f any Employee Plan, not make any contributions to or with respect to any Employee

Plan;

(k) maintain all recor ds of such Acquired Company consistent with past practice; and

(l) take no action, or fail to take any reasonable action within its control, as a result of which any of the

changes or eve nts listed in Section 3.16 would be li kely to occur.

5.3 FILINGS AND NOTIFICATIONS; COOPERATION

As promptly as prac ticable after the date of this Agreement, and in any event within the applicable

time period prescribed by Legal Requirements, each Seller shall, and shall cause each Acquired Company

and each of their Relate d Persons to, make all filings and notifications require d by Legal Requirements t o be

made by them in connection with the Contemplated Transactions (including all filings under the HSR Act).

Each Seller shall, and shall cause each Acquired Company and each of their Related Persons to , coopera te

with Buy er, its Related Persons, and their respective Representatives (a) with respect to all filings and

notifications that Buyer or its Re lated Persons elect to make or shall be required by Legal Requirements to

make in connection with the Contemplated Transactions, (b) in identifying and obtaining the Governmental

Authorizations required by Buyer to own and operate each Acquired Company from and after the Closing

Date, and (c) in obt aining all Consents identified in Exhibit 9.4 (including taking all actions requested by

Buyer to cause early termination of any applicable waiting period under the HSR Act).

5.4 NOTICE

(a) Prior to the Closing Dat e , each Seller shall promptly provide notice to Buyer of any Breach of

any representation or warranty of Seller s or any fact or circumstance that would or would reasonably be

likely to cause or constitute a Breach of any such repre sent ation or warranty had t hat representation or

warranty been made as of the time of the occurrence of such fact or circumstance. Should any such Breach

relate to the Disclosure Letter, each Seller shall promptly deliver to Buye r a supplement to the Di sclosure

Letter. No such notice or delivery will be deemed to have cured a ny Br each of any representation or

warranty or a ffect any right or remedy of Buyer under this Agreement.

(b) Prior t o the Closing Date, each Seller shall promptly provide notice to Buyer o f any B reach of

any cov enant of Sellers in this Article 5 or any fact or circumstance that could make the satisfaction of any

condition in Article 8 impossible or unlikely and of all corrective actions undertaken, or to be undertaken, by

such Seller with respect thereto. No such notice will be deemed to have cured any Breach of any covenant or

affect any right or remedy of Buyer under this Agreement.

5.5 PAYMENT OF INDEBTEDNESS BY RELATED PERSONS

Each Seller shall cause all indebtedness owe d to an Acquired Company by any Seller or any Related

Person of any Seller to be paid in full prior to Clo sing.

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5.6 EXCLUSIVE DEALING

Until this Agreement shall have been terminated pursuant t o Section 10.1, no Seller shall, and each

Seller shall cause each Acquired Company and each of their respective Representatives not to, directly or

indirectly, so licit, init iate, encourage, or e ntertain a ny inquiries or proposals from, discuss or nego tiate with,

provide any nonpublic information to, or consider the merits of any inquiries or proposals from any Person

(other than Buyer) relating to any business combination transaction involving any Seller or Acquired

Company, however structured, including the sale of the business or assets (other than in t he Ordinary Course

of Business) of any Acquired Company, or any Equity Security of any Acquired Company, or any merger,

consolidation, or similar transaction or arra ngement. Each Seller shall not ify Buyer of any such inquiry o r

proposal within 24 hours of receipt thereof by any Seller, Acquired Company, or a ny of their respective

Representatives.

5.7 BEST EFF ORTS

Each Seller shall use its best efforts to cause t he conditions in Article 8 (other than Section 8.11) to be

satisfied.

5.8 FINANCIAL INFORMATION

Sellers shall delive r to Buyer within __________ days a fter the end of each month a copy of each

Acquired Company’s [describe the nature of the financial information required] for such month prepared in

a manner and containing information consistent with such Acquired Company’s current pract ices.

5.9 FINANCING COOPERATION

Each Seller shall, and shall cause each Acquired Company, their Related Persons, and their

respective Representatives t o, cooperate with Buyer with respect to Buyer’s ar r anging of financing of the

Contemplated Transactions, as Buyer may r easonably request.

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6. Covenants of Buyer

Prior to Closing Date

6.1 FILINGS AND NOTIFICATIONS; COOPERATION

As promptly as prac ticable after the date of this Agreement, and in any event within the applicable

time period pre scribed by Legal Requirements, Buyer shall, and shall cause e ach of its Related Persons to,

make all filings and notifications required by Legal Requirements to be made by t hem in connection with the

Contemplated Transactions (including all filing s under the HSR Act). Buyer shall, and shall cause each of its

Related Persons to, cooperate with each Seller, each Acquired Company, their Related Persons and their

respective Representatives (a) with respect to all filings a nd no tifications that any Seller, any Acquired

Company, or their Related Persons shall be required by Legal Requirements to make in connection with the

Contemplated Transactions and (b) in obtaining all M aterial Consents; provided, however, that Buyer shall

not be required to dispose of or make any change to its business, expend any mate r ial funds, or incur any

other material o bligation in order to comply with t his Section 6.1.

6.2 NOTICE

(a) Prior to the Closing Date, Buyer shall promptly provide notice to Sellers of any Breach of any

representation or warranty of Buyer or any fact or circumstance that would or would reasonably be likely to

cause or constitute a Breach of any such representation or warranty had that representation or warranty

been made as of the time of the occurrence of such fact or circumstance. No such notice will be deemed to

have cured any Breach of any representation or warranty or affect any right or remedy o f Sellers under this

Agreement.

(b) Prior to the Closing Date, Buyer shall provide notice to Sellers of a ny Breac h of any covenant of

Buyer in this Article 6 or any fact or circumstance that could make the satisfaction of any condition in Article

9 impossible or unlikely and of all corrective actions unde rtaken, or to be undertaken, by Buyer with respect

thereto. No such notice will be deemed to have cured any Breach of any covenant or affect any right or

remedy of Sellers under this Agreement.

6.3 BEST EFF ORTS

Buyer shall use its best efforts to cause the conditions in Article 9 to be satisfied; provided, however,

that Buyer shall not be r e quired to dispose of or make any change to its business, expend any material funds,

or incur any other material obligation in order to comply with this Sect ion 6.3.

Please read this

section number 6.

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7. Post-Closing Covenants

7.1 COOPERATION AND PROCEEDINGS; ACCESS TO RECORDS

(a) After the Closing, each Seller shall c ooperate with Buyer and its counsel and make itself and its

Representatives a vailable to Buyer and the Acquired Companies in connection with the institution or

defense of any Proceeding, whether existing, threatened, or anticipated, involving or relating to the

Contemplated Transactions, Buyer, any Seller, or any Acquired Company, including pro viding

testimony, Records, and other information.

(b) Each Sel ler and Buyer will make available to the other any Records i n the nonrequesting party’s

custody or control for the purpose of preparing any financial statement or Tax Return or preparing

for or defending any ta x-re lated examination o f the re questing party or any Acquired Company by

any Governmental Body. T he party requesting such Records will reimburse the nonrequesting party

for the reasona ble out-of-pocket costs and expenses incurred by the nonrequesting party. The

nonrequesting par ty will afford access to such Records during normal busin e ss hours, upon

reasonable advance notice given by the requesting party, and subject to such reasonable limitations

as the nonrequesting part y may impose to delete competitively sensitiv e or privileged information.

7.2 NONCOMPETITION, NONSOLICITATION, AND NOND ISPARAGEMENT

(a) For a period of __________ years after the Closing Date:

(i) No Seller shall, directly or indirectly, engage, invest in, own, manage, operate, finance,

control, advise, render services to, guarantee t he obligations of, be employed by, be

associated with, or in any manner be connected with any Person engaged in any business

that any Acquired Company conducts as of the Closing Date [in any geographic area in

which any Acquired Company conducts such business]; provided, however, that any Seller

may acquire or otherw ise own less than __% of the outstanding capital stock of a Person

that is listed on any national securities exchange [or which is registered under Section 12(g)

of the Exchange Act ].

(ii) No Seller shall, directly or indirectly, (A) cause, induce, or attempt to cause or induce any

employee, agent, or independent co ntractor of any Ac quired Company to terminate such

relationship; (B) in any way interfere with the relatio nship between any Acquired Company

and any of its employees, agents, or independent contractors; or (C) hire, retain, employ, or

otherwise eng age or attempt to hire, retain, employ, or otherwise engage as an employee,

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independent contractor, or otherwise, any employee, agent , or independent contractor of any

Acquired Company.

(iii) No Seller shall, directly or indirectly, (A) solicit , induce, or otherwise cause, or at tempt to

solicit, induce , or otherwise cause, any customer, supplier, licensor, licensee, or any

prospective customer, supplier, licensor, or licensee that has been conta cted or tar gete d for

contact by any Acquired Company on or before the Closing Date, or any other person

engaged in a business relationship with any Ac quired Company, to (1) terminate, curtail, or

otherwise modify its relationship w ith any Acquired Company or (2) engage in business with

a competitor of any Acquired Company, or (B) interfere in any way with the relationship

between any Acquired Company, and any of its customers, suppliers, licensors, licensees, or

any such prospective customers, suppliers, licensors, or licensees, o r any other Person

engaged in a business relationship with any Acquired Company.

(b) No Seller shall make any d ispar aging statement, either orally or in writing, regarding Buyer, any

Acquired Company, the business, products, o r serv ices thereof, or any of their respective

shareholders, directors, officers, employees, or agents.

after any Seller e ntering into an employment, cons ulting engagement, independent c ontractor

engagement, partnership, or other business association with any Person, each such Seller shall advise

Buyer of the identity and address of such Perso n. Buyer may not ify each such Person that such

Seller is bound by this Section 7.2 and may furnis h each such Person with a copy of applica ble

provisions of this Agreement.

(d) Each Seller agrees that this Section 7.2, including t he prov isio ns relating to duration, geographical

area, and scope, is reasonable and necessary to protect and preserve Buyer’s and the Acquire d

Companies’ legitimate business interests and the value o f the Shares and the Acquired Companies,

and to preve nt an unfair advantage from being conferred on any Seller.

(e) If any provisio n of this Section 7.2 would be held to be excessively broad as to duration, geographical

area, scope, activity, or subject, for any reason, such prov isio n shall be modified, by limiting and

reducing it, so as to be enforceable to the e xtent allowed by applicable Legal Requirements.

(f) Each Seller acknowledges that any Breach of this Section 7.2 would result in serious and irrepar able

injury to Buyer, Buyer could not be adequately compensated by monetary damages alone, and

Buyer’s remedy at law would not be adequate . Therefore, each Seller acknowledges and agrees that,

in the e vent of a Breach by any such Seller, Buyer shall be entitled, in a ddition t o any other remedy

at law or in equity to which Buy e r may be entitled, to equitable relief a gainst such Seller, including

temporary restraining orders and preliminary and permane nt injunctions to restrain such Seller

from such Breach and to compel compliance with the obligatio ns of such Seller, and each Seller

waive s the posting of a bond or undertaking as a condition to such relief.

7.3 CONFIDENTIALITY

(a) As used in this Section 7.3, the term “Confidential Information” includes any of the following

information held or used by or relating to any Acquired Co mpany:

(i) all information that is a Trade Secret;

(ii) all information concerning product specifications, data, know-how, formulae, compositions,

processes, designs, sketches, photographs, graphs, drawings, samples, inventions and ideas,

past, curr ent, and planned research and development, current and planned manufacturing

or distribution methods and processes, computer hardware, Software and computer

software, database techno logies, systems, structures and architectures; and

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(iii) all information concerning the business and affairs of any Acquired Company, including

historical and current financial statements, financial proj ections and budg ets, tax returns

and accounta nts’ materials, historical, current, and projected sales, capital spending budgets

and plans, business plans, strategic plans, marketing and adve rtising plans, publications,

client and customer and prospect lists and files, current and anticipated customer

requirements, price lists, market stu dies, Contracts, the names and backgrounds of key

personnel and personnel training techniques and materials, however documented.

(b) Each Seller acknowledges the confidential and pro prietary nature of the Confidentia l Information

and agrees that such Seller shall, except to the extent required for a Seller who is employed by an

Acquired Company to fulfill his or her duties in the course of such employment, from and after the

Closing: (i) keep the Confident ial Information confidential and deliver promptly to B uyer, or

immediately de st roy at Buyer’s option, all embodiments and copies of the Conf idential Information

that are in such Seller’s possession; (ii) not use the Confidential I nformation f or any reason or

purpose; and (iii) without limiting the foregoing, not disclose the Confidential Information to any

Person, except with Buyer’s Consent.

available to the public other than as a result of a Bre ach of this Section 7.3 by any Seller.

Confidential Information shall not be deemed “generally availa ble to the public” merely because it is

included or incorporated in more general information that is publicly available or because it

combines features which individually may be publicly available.

(d) If any Seller becomes compelled in any Proceeding to make any disclosure that is prohibited by this

Section 7.3 , such Seller shall, to the extent legally permissible, provide Buyer with prompt notice of

such co mpulsion so that Buyer may seek an appropriate protective order or other appropria te

remedy or waive compliance with the provisions of this Section 7.3. In the absence of a protective

order or other remedy, such Seller may disclose that portion (and only that portion) of the

Confidential Information that, based upon the opinion of such Seller’s counsel, such Seller is legally

compelled to disclose; provided, however, that such Seller shall use its best efforts to obtain written

assurance t hat any Person to whom any Confidential Information is so disclosed shall accord

confidential treatment to such Confidential Information.

(e) Nothing in this Section 7.3 will diminish the protections and benefits under applicable Legal

Requirements to which any Trade Sec r et of any Acquired Company is entitled. If any information

that an Acquired Company asserts t o be a Trade Secret under applicable Legal Requirements is

found by a court of competent jurisdiction not to be such a Trade Secret, such information will

nonetheless be considered Confidential Information of t hat Acquired Company for purposes of this

Section 7.3.

7.4 CUSTOMER AND OTHER BUSINESS RELATIONSHIPS

(a) After the Closing, each Seller shall cooperate with Buyer and t he Acquire d Companies in their

efforts to continue and maintain for the benefit of Buyer and the Acquired Companie s those business

relationships of a ny Acquired Co mpany and of such Seller relating to the business of any Acquired

Company, including relationships with any customers, suppliers, licensors, licensees, lessors,

employees, regulatory authorities, and others. Each Seller shall refer to Buyer and the Acquired

Companies a ll inquiries and communications received by such Seller relating to any Acquired

Company after the Closing.

(b) After the Clo sing, no Seller shall take any action, either direct ly or indirectly, that could diminish the

value of any Acquired Company or interfere with t he business of any Acquired Company.

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8. Conditions Precedent to

Buyer’s Obligation to Close

Buyer’s obligations to purchase the Shares and to take the other actions required pursuant to this

Agreement to be taken by B uyer at the Closing ar e subject to the satisfaction, at or prior to the Closing, of

each of the following conditions (any of which may be waived in whole or in part by Buyer):

8.1 ACCURACY OF S ELLERS’ REPRESENTATIONS

(a) Subject to Section 8.1(b), each of Sellers’ representations and warranties in this Agree ment will have

been accurate in all material respect s as of the date of this Agreement and will be accurat e in all

material respects as of the Closing Date as if t hen made , without giving effect to any supplement to

the Disclosure Letter.

(b) Each of Sellers’ representations and warranties in Sections 3.2(a), 3.3, 3.4, 3.12, and 3 .29, and each of

the representations and warranties in this Agreement that contains an express materiality

qualification, will have been accurate in all respects as of the date of this Agreement and will be

accurate in all respects as of the Closing Date as if then made, without giving effect to any

supplement t o the Disclosure Let ter.

8.2 SELLERS’ P ERFORMANCE

The covenants and obligations that each Seller is required to perform o r to comply with pursuant t o

this Agreement at or prior to the Closing will have been duly performed and complied with in all material

respects.

8.3 BRING DOWN CERTIFICATE

Buyer will have receiv ed a c ertificate executed by each Seller confirming (a) the accuracy of its

representations and warranties as of the date of this Agree ment and as of the Closing Date in accordance with

Section 8.1 and (b) the performance o f and compliance wit h its covenants and obligations to be perfor med or

complied with at or prior to the Closing in acco r dance with Section 8.2.

Please read this

Section number 8.

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8.4 CONSENTS

Each of the Consents identified in Exhibit 8.4 (the “Material Consents”) will have been obtained in

form and substance satisfactory to Buyer and will be in full force and effect. Copies of the Mater ial Consents

will have been delivered to Buyer.

8.5 GOVERNMENTAL AUTHORIZATIONS

Buyer will have received such Governmental Authorizations as are necessary or which it considers

desirable to allow Buyer to acquire and own the Shares and for the Acquired Companies and Buyer to own

and operate the business of each Acquired Company from and after the Closing.

8.6 ADDITIONAL DOCUMENTS

Each of the items to be delivered pursuant to Section 2.4(a) and each of the following documents will

have been delivered (or tendered subject only to Closing) to Buyer:

(a) an opinio n of __________, dated the Closing Date, in the form of Exhibit 8.6(a );

(b) estoppel certificates executed on behalf of __________ and dated as of a date not more than five days

prior t o the Closing Date, each in the form of Exhibit 8.6(b);

(d) such other documents as Buyer may reasonably request, each in form and substance satisfac tory to

Buyer, and, if necessary, executed by each Seller or the relevant Acquired Company, for the purpose

of:

(i) evidencing the accuracy of any of Sellers’ re pre sent ations a nd warranties;

(ii) evidencing the performance by each Seller of, or the compliance by each Seller with, any

covenant or obligation required to be performed or complied with by such Seller;

(iii) evidencing the satisfaction of any condition referred to in this Article 8; or

(iv) otherwise facilitating the consummation or performance of any Contemplated Transaction.

8.7 ENVIRONMENTAL REPORT

Buyer will have received re ports and other information, in form, scope, and substance satisfactory to

Buyer, regarding environmental matters relating to t he Facilities, which reports shall include, for eac h

Facility, a report that conforms to the ASTM Standard Practice for Environmental Site Assessments: Phase I

Environmental Site Assessment Process, E 1 527-05.

8.8 NO PROCEEDINGS

Since the date of this Agreement, there will not have been commenced or threatened against Buyer,

or ag ainst any Related Person of Buyer, any Procee ding (a) involving any c hallenge to, or seeking relief

(monetary or otherwise) in connection with, any Contemplated Transaction or (b) that could have the effect

of preventing, delaying, making illegal, imposing limitations or conditions on, or otherwise interfering with,

any Contemplated Transaction.

8.9 NO CLAIM REGARDING STOCK O WNERSHIP OR SALE PRO CEEDS

There will not have been made or threatened by any Third Party any claim asserting that such Third

Party (a) is the holder or the beneficial ow ner of any Equity Security of any Acquired Company or (b) is

entitled t o a ll or any po rtion of the Purchase P rice.

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8.10 NO CONFLICT

Neither the consummation nor the performance of any Contemplated Transaction will, directly or

indirectly (with or without notice or lapse of time), contravene, conflict with, or violate, or cause Buyer or any

Related Person of Buyer to suffer any adverse consequence under, (a) any applicable Legal Requirement or

Order or (b) any Legal Requirement or Order that has been published, introduced, or otherwise proposed by

or before any Governmental Body.

8.11 FINANCING

Buyer will have obtained, on terms and conditions satisfactory to it, the financing it deems necessary

in order to close the Contemplated Transactions and to fund the working capital requirements of ea ch

Acquired Company.

8.12 NO MATERIAL AD VERSE CHANGE

Since the date of this Agreement, no Acquired Company will have suffered any Material Adverse

Change and no event will have occurred, and no circumstance will exist, that could result in a Material

Adverse Change.

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9. Conditions Precedent to

Sellers’ Obligations to

Sellers’ obligations to sell the Shares and to take the other actions required p ursuant to this

Agreement to be ta ken by Sellers a t the Closing are subject to the satisfac tion, at or prior to the Closing, of

each of the following conditions (any of which may be waived in whole or in part by Sellers’ Representative):

9.1 ACCURACY OF BUYER’S REPRESENTATIONS

Each of Buyer’s representations and warranties in this Agreement will have been accurate in all

material respects as of t he date of this Agreement and will be a ccurate in all material respects as of the

Closing Date as if then made.

9.2 BUYER’S PERFORMANCE

The covenants a nd obligations that Buyer is required to perform or to comply with pursuant to this

Agreement at or prior to the Closing will have been duly performed and complied with in all material

respects.

9.3 BRING DOWN CERTIFICATE

Sellers’ Representative will have rece ived a certificate executed by Buyer co nfirming (a) the accuracy

of its representations and warranties a s of t he date of this Agreement and as of the Closing Date in

accordance with Sect ion 9.1 and (b) the performance of and compliance with its covenants and obligations to

be performed or complied with at or prior to the Closing in accordance with Section 9.2.

9.4 CONSENTS

Each of the Consents identified in Exhibit 9.4 will have been obtained in form and substance

satisfactory to Sellers’ Representative and will be in full force and effect. Copies of such Consents will have

been delivered to Sellers’ Representative.

Please read this

section number 9.

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9.5 ADDITIONAL DOCUMENTS

Each of the items to be delivered pursuant to Section 2.4(b) and each of the following documents will

have been delivered (or tendered subject only to Closing) to Sellers’ Representative:

(a) an opinio n of __________, dated the Closing Date, in the form of Exhibit 9.5(a ); and

(b) such other documents as Sellers’ Representative may reasonably request, ea ch in form and substance

satisfactory to Sellers’ Representative, and, if necessary, executed by Buyer, for the purpose of:

(i) evidencing the accuracy of any of Buyer’s representations and warranties;

(ii) evidencing t he performance by Buyer of, o r the compliance by Buyer with, any cov enant or

obligation required to be performed or complied with by Buy er;

(iii) evidencing the satisfaction of any condition referred to in this Article 9; or

(iv) otherwise facilitating the consummation or performance of any Contemplated Transaction.

9.6 NO LEGAL PROHIBITION

There will not be in effect any Legal Req uirement or Order that prohibits the sale of the Shares by

Sellers to Buye r or the consummation of any of the other Contemplated Transactions.

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10. Termination

10.1 TERMINATION EVEN TS

Subject to Section 10.2, by notice given prior to or at the Closing, this Ag reement may be terminated

as follows:

(a) by mutual consent of Buyer and Sellers;

(b) by Buyer if a material Breach of any provision of this Agree ment has been committed by any Seller;

(d) by Buyer if satisfaction of any condition in Article 8 by __________ or such later date as the parties

may agree upon (the “End Date”) becomes impossible (other than through the failure of Buyer to

comply with its obligations under this Agreement);

(e) by Sellers if sa tisfaction of any condition in Article 9 by the End Date becomes impossible (other than

through the failure of any Seller to co mply with its obligations under thi s Agreement);

(f) by Buy er if the Closing has no t occurred on or before the End Date, unless Buyer is in material

Breach of this Agreement; or

(g) by Sellers if the Closing has not occurred on or befor e the End Date, unless Sellers are in material

Breach of this Agreement.

10.2 EFFECT O F TERMINATION

Each party’s right of termination under Section 10.1 is in addition to any other right it may have

under this Agreement (including under Section 12.16) or otherwise, and the exercise of a party’s right of

termination will not constitute an election of remedies. If this Agreement is terminated pursuant to Section

10.1, this Agreement will be of no further force or effect; provided, how e ver, that (i) this Section 10.2 and

Article 1 2 will surviv e the termination of this Agr e ement and will remain in full force and effect, and (ii) the

termination of this Agreement will not relieve any party from any lia bility for any Breach of this Agreement

occurring prior to termination.

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11. Indemnification;

Payment; Reimbursement;

Remedies

11.1 SURVIVAL; REMEDIES

(a) All re presentations, warranties, covenants, and obligations in this Agreement, the Disclosure Letter,

the supplements to the Disclosure Letter, and any certificate, document, or other writing delivered

pursuant to this Agreement will survive the Closing and the consummation and performance of the

Contemplated Transactions.

(b) The right to indemnification, pay ment, reimbursement, or other remedy based upon any such

representation, warranty, covenant, or obligation will not be af fected by any investigation (including

any e nvironmental investigation o r assessment) conducted or any Knowledge acquired at any time,

whether before or after the execution and delivery of this Agreement or the Closing Date, wit h

respect to the accuracy or inaccuracy of, or compliance with, such representation, wa rranty,

covenant, or obligation.

affect the right to indemnification, payment, reimbursement, or other remedy based upon such

representation, warranty, c ovenant, or obligatio n.

11.2 INDEMNIFICATION, PAYMENT, AND REIMBURSEMENT BY SELLERS

Sellers, jointly and severally, shall indemnify and hold harmless Buyer, the Acquired Companies,

and their respective Representatives, shareholders, Subsidiaries, and Re lated Persons (collectively, t he

“Buyer Indemnified Persons”) from, and shall pa y to Buyer Indemnified P ersons the amount of, or

reimburse Buyer Indemnified Persons for, any Lo ss that Buyer Indemnified Persons or any of them may

suffer, sustain, or become subject to, as a result of, in connection with, or relating to:

(a) any Breach of any representa tion or warranty made by Seller s in (i) this Agreement or the Disclosure

Letter (without giving effect to any supplement to the Disclosure Letter), (ii) any supplement to the

Disclosure Letter, (iii) the certificate delivered pursuant to Section 8.3 (w ithout giving effect to the

Please read this

section 11.

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words “in all material respects” in Section 8.1(a)), or (iv) any other certificate, document, or other

writing delivered by Sellers pursuant to this Agre ement;

(b) any Bre ach of a ny covenant or obligation of any Seller in this Agreement or in any certificate,

document, or other writing delivered by any Seller pursuant to this Agreement;

upon any agreement or understanding made, or alleged to have been made, by any such Person wit h

any Seller or any Acquired Company (or any Person acting on their behalf) in connection with any

Contemplated Transaction;

(d) (i) any Taxes of any Acquired Company not reflected o n the Closing Date Balance Sheet relating to

periods on or prior to the Closing Date, and (ii) any liability of any Acquired Co mpany for Taxes of

any other P e rson, as a transferee o r successor, by Contract or otherwise;

(e) any product shippe d or manufactured by, or any services provided by, any Acquir ed Company, in

whole or in part , prior to the Closing Date; or

(f) any matter disclosed in Part 11.2(f).

11.3 INDEMNIFICATION, PAYMENT, AND REIMBURSEMENT BY SELLERS—

ENVIRONMENTAL M ATTERS

In addition to the provisions of Section 11.2, Sellers, jointly and severally, shall indemnify and hold

harmless Buyer Indemnified Persons from, and shall pay to Buyer Indemnified Persons the amount of, or

reimburse Buyer Indemnified Persons for, any Loss (including costs of any Cleanup) that Buyer Indemnified

Persons or any of them may suffer, sustain, or become su bject to, as a result of, in connection with, or relating

to:

(a) any Environmental, Health, and Safety Liability arising out of or relating to:

(i) (A) the ownership, operation, or condition at any time on or prior to the Closing Date of the

Facilities, or (B) any Hazardous Material that was present on or at the Facilit ies at any time

on or prior to the Closing Date; or

(ii) (A) any Hazardous Material, wherev er located, that was generated, transported, stored,

treated, Re leased, or otherwise handled by any Acquired Company at any time on or prior

to the Closing Date, or (B) any Hazardous Activity that was conducted by any Acquired

Company or by any other Person for whose conduct they are or may be held responsible; or

(b) any bodily injury (including illness, disability, and death, and regardless of when any such bodily

injury occurred or manifested itself), pro perty dama ge (including trespass, nuisance, wrongful

eviction, and deprivation of the use of rea l property), o r other damage of or to any Per son, including

any employee or former employee of any Acquired Company, in any way arising from or allegedly

arising from any Hazardous Activity conducted with respect to the Facilities or the operation of the

Acquired Companies on or prior to the Closing Date or from Hazardous M aterial that was:

(i) present on or prior to t he Closing Date on or at the Facilities (or present on or at any other

property, if such Hazardous Mate rial emanated or allegedly emanated from any of the

Facilities on or prior to the Closing Date), or

(ii) Released by Sellers or any Acquired Company or any ot her Perso n for whose c onduct they

are or may be held responsible, at any time on or prior to the Closing Date.

Section 11.8 notwithstanding, Buyer shall be entitled (at its election) to control any Cleanup, any related

Proceeding, and, except as provided in the following sentence, any other Proceeding with respect to which

relief may be soug ht u nder this Section 11.3. The procedure described in Section 11.8, however, will apply to

any Third-P arty Claim solely for monetary damages relating to a matter covered by this Section 11.3.

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11.4 INDEMNIFICATION, PAYMENT, AND REIMBURSEMENT BY BUYER

Buyer shall indemnify and hold harmless Sellers from, and shall pay to Sellers the amount of, or

reimburse Sellers for, any Loss that Sellers or any of them may suffer, sustain, or become subject to, as a

result of, in connection with, or re lating to:

(a) any Brea ch of any representation or warranty made by Buyer in (i) this Agreement, (ii) the

certificate delivered pursuant to Section 9.3, or (iii) in any other certificat e , document, or other

writing delivered by Buyer pursuant to this Agreement;

(b) any Breach of any cove nant or obliga tion of Buyer in this Agreement or in any cert ificate, document,

or other writ ing delivere d by Buyer pursuant to this Agreement; or

upon any agreement or understanding made, or alleged to have been made, by any such Person wit h

Buyer (or any Person acting on it s behalf) in connection with any Contemplated Transac tion.

11.5 TIME LIMITATIONS

(a) If the Closing occurs, Sellers shall have liability under Section 11.2(a) with respect to any Breach of a

representation or warranty (ot her than t hose in Sections 3.1 , 3.2, 3.3, 3.11, 3.13, 3.19, 3.24, or 3.28, as

to which a claim may be made at any time), only if on or before the date that is three years after the

Closing Date, Buye r notifies Sellers’ Representative of a claim, specifying the factual basis o f the

claim in reasonable detail to the extent known by Buy er.

(b) If the Closing occurs, Buyer shall have liability under Sect ion 11.4(a) with respect to any Breach of a

representation or warranty (ot her than t hose in Sections 4.1 , 4.2, and 4.5, as to which a claim may be

made at any time), only if on or befor e the date tha t is three years after the Closing Date, Sellers

notify Buyer of a claim specifying the factual basis of the claim in reasonable detail t o the extent

known by Sellers.

11.6 CERTAIN LIMITATIONS ON AMOUNT

(a) If the Closing occurs, Seller s shall have no liability with respect to claims under Section 11.2(a) until

the aggregate of all Losses suffered by all Buyer Indemnified Persons with respect to such claims

exceeds $__________; provided, however, that if the aggregate of all such Losses exceeds

$__________, Sellers shall be liable for all such Losses. [If the Closing occurs, the aggregate liability

of Sellers with respect to Lo sses for claims under Section 11.2(a) shall not exceed $__________.]

However, this Section 11.6(a) will not apply to any Br each of which a Seller has Knowledge at any

time at or prior to the date on which such r epresentation and warranty was made or to any Breach of

any representation or warranty in Sections 3.1, 3.2, 3.3, 3.11, 3.13, 3. 19, 3.24 , or 3.28.

(b) If the Closing occurs, Buyer shall have no liability with respect to claims under Section 11.4(a) until

the aggregate of all Losses suffered by all Seller Indemnified Persons with respect to such claims

exceeds $__________; provided, however, that if the total of all such Losses exceeds $__________,

Buyer shall be liable for all such Losses. [If the Closing occurs, the ag gregate lia bility of Buyer with

respect to Losses for claims under Section 11.4(a) shall not e xceed $__________.] H owever, this

Section 11.6(b) will not apply to any Breach of which Buyer has Knowledge at any time at o r prior to

the date on which such representation and warranty was made or to any Breach of any

representation or war ranty in Section 4.1, 4.2, or 4.5.

11.7 SETOFF RIGHT

Upon notice to Sellers’ Representative specifying in reasonable detail the basis therefor, Buyer may

set of f any amount to which it claims to be e ntitled from any Seller, including any amounts that may be owed

under this Article 1 1 or otherwise, against amounts otherwise payable under the Promissory Notes or any

provision of this Agreement. The exercise of such right of setoff by Buyer in good faith, whether or not

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ultimately det ermined to be justified, will not constitute a default under this Agreement, the Promissory

Notes, or any instrument securing any o f the Promissory Notes, regardless of whether any Seller disputes

such setoff claim, or whether such setoff claim is for a contingent or an unliquidated amount. Neither the

exercise of, nor the failure to exercise, such rig ht of setoff or give notice of a claim under the Escrow

Agreement will constitute an election of remedies or limit Buyer in any manner in the enforcement of any

other remedies that may be available to it.

11.8 THIRD-PARTY CLAIMS

(a) A Person benefited by Section 11 .2, 11.3 (solely to the extent provided in the last sentence of Section

11.3), or 11.4 (an “Indemnified Person”) shall give notice of the assertion of a Third-Party Claim to

Sellers’ Representative or Buyer (an “Indemnifying Person”), as the case may be; provided, however,

that no failure or delay on the part of an Indemnified Person in notify ing an Indemnifying Person

will relieve the Indemnifying Person fr om any obligation under this Article 11 except to the extent

that the failure or delay materially prejudices the defense of the Third-Party Clai m by the

Indemnifying Person.

(b) (i) Except as pro vided in Section 11.8(c), the Indemnifying Perso n may elect to assume the

defense of the Third-Party Claim with counsel satisfactory to the Indemnified Person by (A) giving

notice to the Indemnified Person of its election to assume the defense of the Third- Party Claim and

(B) giving the Indemnified Person evidence acceptable to the Indemnified Person that the

Indemnifying Person has adequate financial reso urc es to defend against the Third-Party Clai m and

fulfill its obligations under this Article 11, in each case no later than 10 days after the Indemnified

Person gives notice of the assertion of a Third-Part y Claim under Section 11. 8(a).

(ii) If the Indemnifying Person elects to assume the defense of a Third-Party Cla im:

(A) it shall diligently c onduct the defense and, so long as it diligently conducts the

defense, shall not be liable to the Indemnified Person for any Indemnified Person’s

fees or expenses subsequently incurred in connection with the defense of the Third-

Party Claim other than reasonable costs of investigation;

(B) the election will conclusively establish for purposes of this Agreement that the

Indemnified Person is entitled t o relief under this Agreement for any Loss arising,

directly or indirectly, from or in connection with the Third-Party Claim (subjec t to

the provisions of Section 11.6);

Indemnifying Perso n without the Indemnified Person’s consent unless (I) there is no

finding or admission of any violation by the Inde mnified Person of any Legal

Requirement or any rights of any Person, (II) the Indemnified Person receives a full

release of and fro m any other claims that may be made against the Indemnified

Person by the Third Party bringing the Third-Party Claim, and (III) the sole relief

provided is monetary damages tha t ar e paid in full by the Indemnifying Person; and

(D) the Indemnifying Person shall have no liability with respect to any compromise or

settlement of such claims ef fected without its consent.

(iii) If the Indemnifying Person does not assume the defense of a Third-Pa rty Claim in the

manner and within the period provided in Section 11.8(b)(i), or if the Indemnifying P erson

does not diligently conduct the defense of a Third-Party Claim, the Indemnified Pers on may

conduct the defense of the T hird- Party Claim at the expense of the Indemnifying Person and

the Indemnifying P erson shall be bound by any determination resulting from such Third-

Party Claim or any compromise or settlement effected by the Indemnified Person.

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reasonable probability that a Third-Party Claim may adversely affect it or any Rela ted Party other

than as a result of moneta ry damages for which it would be entitled to relief under this Agreement,

the Indemnified Person may, by notice to the Indemnifying Person, assume the exclusive right to

defend, compromise, or settle such Third-Part y Cla im.

(d) Notwithstanding the provisions of Section 12. 13, Sellers consent to the nonexclus ive jurisdiction of

any court in which a Proceeding is brought against any Indemnified Person for purposes o f

determining any clai m that an Indemnified Person may have under this Agreement with respect to

such Procee ding or the matters alleged therein.

(e) With respect to any Third-Party Claim subject to this Article 11:

(i) any Indemnified Person and any Indemnifying Person, as the ca se may be, sha ll keep the

other Person fully informed of the status of such Third-Party Clai m and any related

Proceeding at all st ages thereof where such Person is not represented by its ow n counsel; and

(ii) both the Indemnified Person and the Indemnifying Person, as the case may be, shall render

to each other such assistance as they may r easonably require of each other and shall

cooperat e in good faith with each other in order to ensure the proper and adequate defense

of any Third-Party Claim.

(f) In addition to Section 7.34, with respect to any Third-Party Claim subject to this Article 11, the

parties shall cooperate in a manner to preserve in full (to the e xtent possible) the confidentiality of all

Confidential Information and the attorney-client and work-product privileges. In connection

therewith, each party agrees that:

(i) it shall use its best efforts, in respect of any Third-Party Claim in which it has assumed or

participated in the defe nse, to avoid production of Confidential Information (consistent with

applicable law and rules of procedure); and

(ii) all communications between any party and counsel re spo nsible for or participating in the

defense of any Third-Party Claim shall, to the extent possible, be made so as to preserv e any

applicable attorney-client or work-product privilege.

(g) Any claim under this Article 11 for any matter involving a Third-Party Clai m shall be inde mnified,

paid, or rei mbursed promptly. If the Indemnified Person shall for any reason assume the defense of

a Third-Pa rty Cla im, the Indemnifying Person shall reimbur se the Indemnified Person on a monthly

basis for the costs of investigation and the reasonable fees and expenses of counsel retained by the

Indemnified Person. Buyer may elect in its discretion to have pay ment or reimbursement made from

the Escrow Funds pursuant to the terms of the Escrow Agreement, by setoff against amounts

otherwise paya ble under the Promissory Notes or otherwise pursuant to Section 11.7, or in any other

manner.

11.9 OTHER CLAIMS

A claim under this Article 11 for any matter not involving a Third-Party Claim may be made by

notice to Sellers’ Representative or Buyer, as the case may be, and shall be indemnified, paid, or reimbursed

promptly after such notice. Buyer may elect in its discretion to have payment or reimbursement made from

the Escrow Funds pursuant to the terms o f t he Escrow Agreement, by setoff against amounts otherwise

payable under the Promissory Notes or otherwise pursuant to Section 11.7, or in any other manner.

11.10 STRICT LIABILITY OR INDEMNITEE NEGLIGENCE

THE PROVISIONS IN THIS ARTICLE 11 SHALL BE ENFORCEABLE REGARD LESS OF

WHETHER THE LIABILITY IS BASED UPON PAST, PRESENT, OR FUTURE ACTS, CLA IMS, OR

LEGAL REQUIREMENTS (INCLUD ING ANY PAST, PRESENT, OR FUTURE ENVIRONMENTAL

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LAW, OCCUPATIONAL SAFETY AND HEALTH LAW, OR PRODUCTS LIABILITY, SECURITIES,

OR OTHER LEGAL REQUIREMENT) AND REGARDLESS OF WHETHER ANY PERSON

(INCLUDING THE PERSON FROM WHOM RELIEF IS SOUGHT) ALLEGES OR PROVES THE SOLE,

CONCURRENT, CONTRIBUTORY, OR COMPARATIVE NEGLIGENCE OF THE PERSON SEEKING

RELIEF, OR THE SOLE OR CONCURRENT STRICT LIABILITY IMPOSED UPON THE PERSON

SEEKING RELIEF.

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12. Miscellaneous

12.1 EXPENSES

(a) Except as otherwise provided in this Agreement or the other documents to be delivere d pursuant to

this Agreement, each party will bear its respective fees and expenses incurred in connection with t he

preparation, nego tiation, execution, and performance of this Agreement and the consummation and

perfor mance of the Contemplated Transactions, including all fees and expenses of its

Representatives. Buyer will pay one-half and Sellers will pay one-half of (i) the HS R Act filing fee

and (ii) the fees and expenses of the Escrow Agent under the Escrow Agreement. No Acquired

Company has incurred, and Sellers will c ause the Acquired Companies not to incur, any fees or

expenses in connection with this Agreement a nd the Contemplated Transactions; provided, howe ver,

that to the extent such f ees and expenses have been incurred by an Acquired Company, Sellers will

reimburse the Acquired Company for such fees and expenses prior to the Closing. The obligation of

each party to bear its own fees and expenses will be subjec t to any rights of such party arising from a

Breach of this Agreement by another party.

(b) All stamp, documentary, and other tr ansfer Taxes (including any penalties and intere st ) incurred in

connection with this Agre e ment, whether pertaining to the Shares or any assets and properties of the

Acquired Companies, will be pa id by Sellers. Each Seller will, a t its own expense, file all necessary

Tax Returns and other documenta tion with respect to all such Taxes.

12.2 PUBLIC ANNOUNCEMENTS

Notwithstanding any confident iality o bligation to which Buyer is su bject, a ny public announcement,

including any press r elease, communication to employees, customers, suppliers, or ot hers hav ing dealings

with the Acquired Companies, or similar public ity with respect to this Agreement or any Contemplated

Transaction, will be issued, at such time, in such manner, and containing such content as Buyer determines.

12.3 DISCLOSURE LETTER

(a) In the e vent of any inco nsistency between the statements in this Agreement and those in the

Disclosure Letter (other than an exception expressly set forth as such in the Disclosure Letter with

respect to a specifically identified representation or warranty), the sta tements in this Agreement will

control.

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(b) Notwithstanding anything to the contrary contained in the Disclosure Letter or any supplement to

the Disclosure Letter, the statements in the Disclo sure Letter, and those in any supplement thereto,

relate only to the provisions in t he Sections o f this Agreement to which they expressly relate and not

to any other provision in t his Agreement.

12.4 NATURE OF SELLERS’ O BLIGATIONS

The liabilities of Sellers under this Agreement are joint and several. Sellers, jointly and severally,

shall cause each Acquired Company to take, or refrain from taking, all actions as may be necessary or

appropriate to implement this Ag r eement.

12.5 SELLERS’ REPRESENTATIVE

(a) Each Seller constitut es and appoints __________ as its representat ive (the “Sellers’ Representative”)

and its true and lawful attorney in fact, with full power and authority in its name and on its behalf:

(i) to act on such Seller’s behalf in the absolute discretio n of Seller s’ Representative with

respect to all matters r elating to this Agreement, including execution and delivery of any

amendment, supplement, or modification o f this Agreement and any waiver of any claim or

right arising out of this Agreement; and

(ii) in genera l, to do all things and to perform all acts, including executing and delivering all

agreements, certificates, rece ipt s, instructio ns, and other instruments contempla ted by or

deemed advisa ble to effectuate the pro visions of this Section 12.5.

This appointment and grant of power and authority is coupled with an interest and is in

consideration of the mutual covenants made in this Agreement and is irre vocable and will not be

terminated by a ny act of any Seller or by operation of law, whether by the death or incapacity of any

Seller or by the occurr ence of any other event. Each Seller hereby consents to the taking of any and

all actions and the making of any decisions required or permitted to be taken or made by Sellers’

Representative pursuant to this Section 12.5. Each Seller a grees that Sellers’ Represent ative shall

have no obligat ion or liability to any Person for any action taken or omitted by Sellers’

Representative in good faith, and each Seller shall indemnify and hold harmless Sellers’

Representative from, and shall pay to Sellers’ Representative the amount of, or reimburse Sellers’

Representative for, any Loss that Sellers’ Representative may suffer, sustain, or become subject to as

a result of any such a ction or omission by Seller s’ Representative under this Agreement.

(b) Buyer shall be ent itled to re ly upo n any doc ument or other paper delivered by Sellers’

Representative as being authorized by Sellers, and Buyer shall not be liable to any Seller for any

action taken or omitted to be taken by Buyer based on such reliance.

obligations under Article 11), Sellers who, immediately prior to the Clo sing, are entitled in the

aggregat e to receive more than 50% of the Purchase Price, may, from t ime to time upon notice to

Buyer, appoint a new Sellers’ Representative upon the death, incapacity, or resignation of Sellers’

Representative. If, after the death, incapacity, or resignation of Sellers’ Representative, a successor

Sellers’ Representative shall not have been appointed by Sellers within 15 Business Days a fter a

request by Buyer, Buyer may appoint a Sellers’ Representative from among the Sellers to fill any

vacancy so created by not ice of such appointment to Sellers.

12.6 FURTHER ASSURANCES

The parties will (a) execute and deliver to each other such other documents and (b) do such other

acts and things as a party may reasonably request for the purpose of carrying out the intent of this

Agreement, the Contemplated Transactions, and the documents to be delivered pursuant to this Agreement.

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12.7 ENTIRE AGREEMENT

This Agre ement supersedes all prior agreements, whether written or oral, between the parties with

respect t o its subject matter (including any letter of intent and, upon the Closing, any confidentiality

obligation to which Buyer is subject) and constitutes (along with the Disclosure Letter , the exhibits, and the

other documents to be delivered pursuant to this Agreement) a complete and exclusive statement of the terms

of the agreement between the parties with respect to the subject matter of this Agreement.

12.8 MODIFICATION

This Agre ement may only be amended, supplemented, or otherwise modified by a writing executed

by the Buye r and the Sellers’ Representative.

12.9 ASSIGNMENTS AND SUC CESSORS

No par ty may assign a ny of its rights o r delegate any of its obligations under this Agreement without

the prior consent of the other parties, except that Buy er may assign any of its rights and delegate any of its

obligations under this Agre ement to any Subsidiary of Buyer and, after the Closing, to the purchaser of all or

a substantial part of the equity securities or business of the Acquired Companies and may collaterally assign

its r ights under this Agreement to any financial instit ution providing financing in connection with the

Contemplated Transactions. Any purport e d assignment of rights or delegation of o bligations in violation of

this Section 12.9 will be void. Subject to the foregoing, this Agreement will apply to, be binding in all respects

upon, and inure t o the benefit of the heirs, executors, administrators, legal representatives, successors, and

permitted assigns of the parties.

12.10 NO THIRD-PARTY RIGHTS

Other than the Indemnified Persons and the pa r ties, no Person will have any legal or equitable right,

remedy, or claim under or with respect to this Agree ment. This Ag r eement may be amended or te rminated,

and any provision of this Agreement may be waive d, without the consent of any Person who is not a party to

the Ag reement.

12.11 REMEDIES CU MULATIVE

The rights and remedies of the parties are cumulative and not alternative.

12.12 GOVERNING LAW

All matters relating to or arising out of this Agreement or any Contemplated Transaction and the

rights of the parties (whether sounding in contract, tort , or otherwise) will be governed by and construed and

interpreted under the laws of the State of __________ without regard to conflicts of laws principles that

would require the application of any other law.

12.13 JURISDICTION; SERVICE OF PROCESS

Except as otherwise provided in this Agreement, any Proceeding arising out of or relating to this

Agreement or any Contemplated Transaction shall be brought in the courts of the State of ____ ______,

County of __________, or, if it has or can acquire jurisdiction, in the United States Dist r ict Court for the

__________ District of __________, and each of the parties irrevoca bly submits to the exclusive jurisdiction of

each such co urt in any such Proceeding, waives any o bjection it may now or hereafter have to venue or to

convenience of forum, agrees that all claims in respect of such Proceeding shall be heard and determined only

in any such court, and agrees not to bring any Proceeding arising out of or r e lating to this Agreement or any

Contemplated Transaction in any other court. Each party acknowledges and agrees that this Section 12.13

constitutes a voluntary and bargained-for agreement between the parties. Process in any Proceeding referred

to in the first sentence of this Section or in Section 11.8(d) may be served on any party anywhere in the world,

including by sending or delivering a copy of the process to the party to be served at the address and in the

manner provided for the giving of notices in Section 12.18. Nothing in this Section 12.13 will affect the right

of any party to serve legal process in any other manner permitted by law or at equity.

Please read this

section 12.12.

Please read this

section 12.13

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12.14 WAIVER OF JURY TRIAL

EACH PARTY, K NOWINGLY, VOLUNTA RILY, AND INTENTIONALLY, WAIVES ITS RIGHT

TO TRIAL BY JURY IN AN Y PRO CEEDING ARISING OUT OF OR RELATING TO THIS

AGREEMENT OR ANY CONTEMPLATED TRANSACTION, WHETHER SOUNDING IN CONTRACT,

TORT, OR OTHERWISE.

12.15 ATTORNEYS’ FEES

In the event any Pro ceeding is brought in respect of this Agreement or any of the documents referred

to in this Agreement, the prevailing party will be entitled t o rec over reasonable attorneys’ fees and other costs

incurred in such Proceeding, in addition to any relief to which such party may be entitled.

12.16 ENFORCEMENT OF AGREEMENT

Sellers acknowledge and agree that Buyer would be irreparably harmed if any of the provisions of

this Agreement are not performed in accordance with their specific terms and that any Breach of this

Agreement by Sel lers could not be adequately compensated in all cases by monetar y damages alone.

Accordingly, Sellers agree that, in addition to any other right or remedy to which Buyer may be entitled at

law or in equity, Buyer shall be entitled to enforce any provision of this Agreement by a decree of specific

perfor mance and to obtain temporary, preliminary, and permanent injunctive relief to prevent Breaches or

threatened Breaches, without posting any bond o r giving any other undertaking.

12.17 NO WAIVER

Neither any failure nor any delay by any party in exercising any right, power, or privilege under this

Agreement or any of the documents r eferred to in this Agreement will operate as a waiver of such right,

power, or privilege, and no single or partial exercise o f any such right, power, or privilege will preclude any

other or further exercise of such right, powe r, or privilege or t he exercise of any other right, power, or

privilege. To the maximum extent permitted by a pplicable Legal Requirements, (a) no claim or right arising

out of this Agr e ement or any of the documents re ferred to in this Agreement can be waived by a party, in

whole or in part, unless made in a writing signed by such party o r Seller s’ Representative on behalf of a

Seller; (b) a waiver given by a party w ill only be applicable to the specific instance for which it is given; and

affect t he r ight of the party giving such notice or demand to take further action without notice or demand as

provided in this Agreement or the documents referr ed to in t his Agreement.

12.18 NOTICES

All notices and other c ommunications required or per mitted by this Agreement shall be in writing

and will be effective, and any applicable time period shall commence, when (a) delivered to the following

address by hand or by a natio nally recognized overnight courier service (co st s prepaid) addressed to the

following address or (b) transmitted electronically to the follow ing facsimile numbers or e-mail addresses, in

each case marked to the attention of the P erson (by name or title) designated below (or to such other address,

facsimile number, e-mail address, or Person as a part y may designate by notice to the other parties):

Sellers:

[Name of Sellers’ Representative]

[Street]

[City, state, and zip code]

Fax no.:

E-mail address:

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with a copy to:

Attention:

[Street]

[City, state, and zip code]

Fax no.:

E-mail address:

Buyer:

Attention:

[Street]

[City, state, and zip code]

Fax no.:

E-mail address:

with a copy to:

Attention:

[Street]

[City, state, and zip code]

Fax no.:

E-mail address:

12.19 SEVERABILITY

If any provision of this Agreement is held invalid or unenforceable by any court of competent

jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this

Agreement held invalid or unenforceable only in part or degree will remain in full force and e ffect to the

extent not held invalid or unenforceable.

12.20 TIME OF ESSENCE

With regard to all dates and time periods set forth or referred to in this Agreement, time is of the

essence.

12.21 COUNTERPARTS AND ELECTRONIC SIGNATURES

(a) This Agreement and other documents to be delivered pursuant to this Agreement may be executed in

one or more counterparts, each of which w ill be deemed to be an original copy and all of which, when

taken together, will be deemed to constitute one and the same agreement or document, and will be

effective when counterparts have been signed by each of the parties and delivered to the other

parties.

(b) A manual signature on this Agre ement or other documents to be deliv e red pursuant to this

Agreement, a n image of which shall have been transmitted electronically, will constitut e an original

signature for all purposes. The deliv e ry o f copies of t his Agreement or other documents t o be

delivered pursuant to this Agreement, including executed signature pages where required, by

electronic transmission will constitute effectiv e delivery of this Agreement or such other document

for all purposes.

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IN WITNESS WHEREOF, the parties have executed a nd delivere d this Agreement as of the

date first written above.

BUYER:

__________________________________________

SELLERS:

[1]

By:

Name:

Title:

[2]

[3]

[4]

[5]

[6]

[7]

[8]