Unassociated Document


    
      

    

    Exhibit
      10.1

     

     

    STOCK
      PURCHASE AGREEMENT

     

    by
      and among

     

    Marine
      Systems, Inc.

    as
      the Buyer,

     

    The
      Stockholders of Global Power Holding Company

    as
      the Sellers

     

    and

     

    Global
      Power Holding Company

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    Table
      of Contents

    

      
        	 	 	
                Page

              
	 	 	 
	
                ARTICLE
                  I

              	
                The
                  Purchase

              	
                1

              
	
                1.1

              	
                Sale
                  and Delivery of the Shares

              	
                1

              
	
                1.2

              	
                Closing
                  Date

              	
                1

              
	
                1.3

              	
                Consideration;
                  Escrow Payments

              	
                2

              
	
                1.4

              	
                Purchase
                  Price Adjustment

              	
                3

              
	
                1.5

              	
                Closing
                  Deliveries

              	
                6

              
	
                1.6

              	
                Further
                  Assurances

              	
                8

              
	
                ARTICLE
                  II

              	
                Representations
                  and Warranties of the Company and the Sellers

              	
                9

              
	
                2.1

              	
                Authority

              	
                9

              
	
                2.2

              	
                Organization

              	
                10

              
	
                2.3

              	
                Organizational
                  Documents

              	
                10

              
	
                2.4

              	
                Title
                  to Securities

              	
                10

              
	
                2.5

              	
                Capitalization

              	
                10

              
	
                2.6

              	
                Subsidiaries
                  and Other Interests; Non-Operating Entity

              	
                11

              
	
                2.7

              	
                Title
                  to Assets

              	
                12

              
	
                2.8

              	
                Condition
                  and Sufficiency of Assets

              	
                13

              
	
                2.9

              	
                No
                  Violation

              	
                13

              
	
                2.10

              	
                Governmental
                  Consents

              	
                13

              
	
                2.11

              	
                Financial
                  Statements

              	
                13

              
	
                2.12

              	
                Absence
                  of Undisclosed Liabilities

              	
                14

              
	
                2.13

              	
                Absence
                  of Certain Changes

              	
                14

              
	
                2.14

              	
                Taxes

              	
                16

              
	
                2.15

              	
                Litigation

              	
                18

              
	
                2.16

              	
                Compliance
                  with Laws

              	
                18

              
	
                2.17

              	
                Permits

              	
                18

              
	
                2.18

              	
                Environmental
                  Matters

              	
                19

              
	
                2.19

              	
                Employee
                  Matters

              	
                20

              
	
                2.20

              	
                Employee
                  Benefit Plans

              	
                20

              
	
                2.21

              	
                Material
                  Contracts

              	
                22

              
	
                2.22

              	
                Customers;
                  Suppliers

              	
                24

              
	
                2.23

              	
                Intellectual
                  Property Rights

              	
                24

              
	
                2.24

              	
                Illegal
                  Payments

              	
                25

              
	
                2.25

              	
                Insurance

              	
                25

              
	
                2.26

              	
                Bank
                  Accounts and Powers of Attorney

              	
                25

              
	
                2.27

              	
                Brokers

              	
                25

              
	
                ARTICLE
                  III

              	
                Representations
                  and Warranties of the Buyer

              	
                25

              
	
                3.1

              	
                Organization

              	
                25

              
	
                3.2

              	
                Authority

              	
                25

              
	
                3.3

              	
                No
                  Violation

              	
                26

              
	
                3.4

              	
                Governmental
                  Consents

              	
                26

              
	
                3.5

              	
                Securities
                  Matters

              	
                26

              
	
                3.6

              	
                Restricted
                  Securities

              	
                26

              
	
                3.7

              	
                Brokers

              	
                26

              
	
                3.8

              	
                No
                  Reliance

              	
                26

              


      

       

      
        
          
          

        

        
          i

          
            

          

        

        
          
          

        

      


      Table
        of Contents

      (continued)

      


      
        	 	 	
                Page

              
	 	 	 
	
                3.9

              	
                Legal
                  Proceedings

              	
                27

              
	
                3.10

              	
                Financing

              	
                27

              
	
                ARTICLE
                  IV

              	
                Covenants
                  and Agreements

              	
                27

              
	
                4.1

              	
                Conduct
                  of Business

              	
                27

              
	
                4.2

              	
                Access
                  and Information

              	
                28

              
	
                4.3

              	
                Environmental
                  Investigations

              	
                29

              
	
                4.4

              	
                Supplemental
                  Disclosure

              	
                29

              
	
                4.5

              	
                Assistance
                  with Permits and Filings

              	
                29

              
	
                4.6

              	
                Fulfillment
                  of Conditions by the Sellers

              	
                30

              
	
                4.7

              	
                Fulfillment
                  of Conditions by the Buyer

              	
                30

              
	
                4.8

              	
                Publicity

              	
                30

              
	
                4.9

              	
                Transaction
                  Costs

              	
                30

              
	
                4.10

              	
                No-Shop
                  Provisions

              	
                30

              
	
                4.11

              	
                Nondisclosure

              	
                31

              
	
                4.12

              	
                Release
                  by the Sellers

              	
                31

              
	
                4.13

              	
                Certain
                  Tax Matters

              	
                32

              
	
                4.14

              	
                Records

              	
                37

              
	
                4.15

              	
                Indemnification

              	
                37

              
	
                4.16

              	
                HSR

              	
                37

              
	
                4.17

              	
                Employee
                  Benefit Arrangements

              	
                38

              
	
                ARTICLE
                  V

              	
                Closing
                  Conditions

              	
                39

              
	
                5.1

              	
                Conditions
                  to Obligations of the Buyer

              	
                39

              
	
                5.2

              	
                Conditions
                  to Obligations of the Sellers

              	
                39

              
	
                ARTICLE
                  VI

              	
                Indemnification

              	
                40

              
	
                6.1

              	
                Indemnification
                  of the Buyer

              	
                40

              
	
                6.2

              	
                Indemnification
                  of the Sellers

              	
                41

              
	
                6.3

              	
                Survival

              	
                41

              
	
                6.4

              	
                Further
                  Limits on Indemnification

              	
                42

              
	
                6.5

              	
                Notice

              	
                44

              
	
                6.6

              	
                Defense
                  of Claims

              	
                44

              
	
                6.7

              	
                Escrow

              	
                44

              
	
                ARTICLE
                  VII

              	
                Noncompetition
                  Agreement

              	
                45

              
	
                7.1

              	
                Noncompetition

              	
                45

              
	
                ARTICLE
                  VIII

              	
                Miscellaneous

              	
                46

              
	
                8.1

              	
                Termination

              	
                46

              
	
                8.2

              	
                Notices

              	
                47

              
	
                8.3

              	
                Counterparts

              	
                47

              
	
                8.4

              	
                Interpretation

              	
                47

              
	
                8.5

              	
                Assignment

              	
                47

              
	
                8.6

              	
                Entire
                  Agreement, Amendment

              	
                48

              
	
                8.7

              	
                Specific
                  Performance, Exclusivity

              	
                48

              
	
                8.8

              	
                Governing
                  Law

              	
                48

              
	
                8.9

              	
                Usage

              	
                48

              
	
                8.10

              	
                Certain
                  Definitions

              	
                48

              


      

       

      
        
          
          

        

        
          ii

          
            

          

        

        
          
          

        

      


      Table
        of Contents

      (continued)

      


      
        	 	 	
                Page

              
	 	 	 
	
                8.11

              	
                Seller
                  Representative

              	
                52

              
	
                8.12

              	
                Expenses

              	
                53

              
	
                8.13

              	
                Severability

              	
                53

              


      

    


    
      
        
        

      

      
        iii

        
          

        

      

      
        
        

      

    


    STOCK
      PURCHASE AGREEMENT

     

    This
      Stock Purchase Agreement (the “Agreement”)
      is
      made and entered into as of May 3, 2006, by and among Marine Systems, Inc.,
      a Louisiana corporation (the
      “Buyer”)
      and
      the stockholders of Global Power Holding Company, a Delaware corporation (the
      “Company”),
      set
      forth on Exhibit
      A
      hereto
      (each a “Seller”
and,
      collectively, the “Sellers”),
      and
      the Company.

     

    Recitals

     

    WHEREAS,
      the Sellers are the record and beneficial owners of all of the issued and
      outstanding shares (collectively, the “Shares”)
      of the
      common stock, par value $0.01 per share, of the Company (the “Common
      Stock”);

     

    WHEREAS,
      the Company is the record and beneficial owner of all of the outstanding
      membership interests (the “Subsidiary
      Equity”)
      in
Global
      Power Systems L.L.C., a Louisiana limited liability company (the “Subsidiary”);

     

    WHEREAS,
      the Subsidiary is engaged in the business of
      high-speed diesel engine and parts sales and service in marine applications
      (the
“Business”);

     

    WHEREAS,
      an index of defined terms used in this Agreement appears in Section
      8.10;
      and

     

    WHEREAS,
      the Sellers desire to
      sell the
      Shares to Buyer, and the Buyer desires to purchase the Shares from Sellers,
      for
      the consideration and on the terms and conditions set forth in this
      Agreement;

     

    NOW,
      THEREFORE, in consideration of the foregoing premises and the mutual covenants
      and agreements contained herein, the parties hereto agree as
      follows:

     

    Agreement

     

    ARTICLE
      I

    The
      Purchase

    
       

      1.1    Sale
        and Delivery of the Shares.
        Pursuant to the terms and subject to the conditions set forth herein, the
        Buyer
        hereby agrees to purchase from the Sellers, and the Sellers hereby agree
        to sell
        to the Buyer, the Shares, which constitute all of the issued and outstanding
        equity interests of the Company, for the consideration set forth in Section 1.3.

       

      1.2    Closing
        Date.
        The
        closing of the sale and purchase of the Shares (the “Closing”)
        will
        take place at the offices of Fulbright & Jaworski L.L.P., Fulbright Tower,
        1301 McKinney, Suite 5100, Houston, Texas, at 10:00 a.m. local time on the
        second business day following the satisfaction or waiver of each of the
        conditions set forth in Article
        V
        (other
        than those conditions to be satisfied at the Closing) or on such other date
        or
        at such other place as the parties mutually agree in writing (such date of
        closing being herein called the “Closing
        Date”).

      

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

      

       

    

    1.3    Consideration;
      Escrow Payments.
      As
      consideration in full for the sale and purchase of the Shares, the cancellation
      and surrender of the Options (as defined in this Section below), the
      cancellation and surrender of the Warrant (as defined in this Section below)
      and
      the noncompetition agreements in Article
      VII,
      the
      Buyer will pay an amount equal to $100,000,000, subject to adjustment as
      provided in Section
      1.4
      below
      (the “Purchase
      Price”),
      such
      Purchase Price to be paid to the Persons and in the amounts further provided
      in
      this Article
      I
      below:

     

    (a)    At
      the
      Closing, the Buyer shall pay an amount equal to $7,000,000 (the “Escrow
      Amount”)
      to
      U.S. Bank National Association (the “Escrow
      Agent”)
      to
      hold in an escrow account (the “Escrow
      Account”)
      in
      accordance with the escrow agreement attached hereto as Exhibit
      B
      (the
“Escrow
      Agreement”);
      

     

    (b)    At
      the
      Closing, the Buyer shall pay an amount equal to the unpaid Transaction Costs
      (as
      defined in Section
      1.4(a)
      below)
      to the Persons entitled thereto in accordance with the instructions to be
      delivered by the Company to the Buyer prior to the Closing Date pursuant to
      Section
      1.5(c).

     

    (c)    At
      the
      Closing, upon the terms of this Agreement, the Buyer shall pay to the Company,
      as disbursing agent for each person then holding an option to purchase shares
      of
      Common Stock (each an “Option”
and
      each holder thereof an “Optionholder”),
      an
      amount equal to the positive difference between (i) the Purchase Price (as
      adjusted pursuant to Section
      1.4)
      plus
      the
      aggregate exercise price of the Warrant and all Options outstanding immediately
      prior to the Closing Date and minus
      the
      Escrow Amount and the unpaid Transaction Costs, all multiplied by a fraction,
      (A) the numerator of which is the aggregate number of shares of Common Stock
      subject to the Options outstanding immediately prior to the Closing, and (B)
      the
      denominator of which is the number of Fully Diluted Shares (as defined in this
      Section below), and (ii) the aggregate exercise price for all Options
      outstanding immediately prior to the Closing (such difference being the
“Option
      Amount”).
      The
      Option Amount shall be paid by the Company to the Optionholders in accordance
      with Schedule
      1.3(c)
      (which
      Schedule may be updated at Closing), in each case, without interest, and also
      subject to Section
      1.3(g).

     

    (d)    At
      the
      Closing, upon the terms of this Agreement, the Buyer shall pay to LEG Partners
      Debenture SBIC, L.P. (the “Warrantholder”),
      in
      exchange for the surrender and cancellation of the warrant to purchase Common
      Stock held by the Warrantholder (the “Warrant”),
      an
      amount equal to the positive difference between (i) the Purchase Price (as
      adjusted pursuant to Section
      1.4)
      plus
      the
      aggregate exercise price of the Warrant and all Options outstanding immediately
      prior to the Closing Date and minus
      the
      Escrow Amount and the unpaid Transaction Costs, all multiplied by a fraction,
      (A) the numerator of which is the aggregate number of shares of Common Stock
      subject to the Warrant, and (B) the denominator of which is the number of Fully
      Diluted Shares (as defined in this Section below), and (ii) the aggregate
      exercise price of the Warrant (such difference being the “Warrant
      Amount”).

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    


    (e)    At
      the
      Closing, upon the terms of this Agreement, the Buyer shall pay to the Seller
      Representative (as defined in Section
      8.11
      below),
      as disbursing agent for each Seller, an amount equal to the Purchase Price
      (as
      adjusted pursuant to Section
      1.4)
      minus
      (i) the Escrow Amount, (ii) the Option Amount, (iii) the Warrant
      Amount and (iv) the unpaid Transaction Costs (the “Aggregate
      Share Amount”).
      The
      Aggregate Share Amount shall be paid by the Seller Representative to the Sellers
      in accordance with Schedule
      1.3(e).

     

    (f)    
“Fully
      Diluted Shares”
means
      the total number of Shares outstanding immediately prior to the Closing
plus
      the
      total number of shares of Common Stock subject to Options and the Warrant
      immediately prior to the Closing.

     

    (g)    The
      Company shall withhold and deduct from any amount payable to an Optionholder
      under this Agreement such amounts as it is required to withhold and deduct
      under
      applicable Law, and any amount so withheld and deducted shall be treated for
      all
      purposes as having been paid to such Optionholder.

     

    1.4    Purchase
      Price Adjustment.

     

    (a)    “Working
      Capital”
means
      (i) the aggregate book value of the current assets of the Company and its
      subsidiaries (excluding cash and cash equivalents, net of outstanding checks)
      minus (ii) the aggregate book value of the current liabilities of the Company
      and its subsidiaries (net of outstanding checks related to current liabilities
      and excluding the current portion of any indebtedness, accrued Income Taxes,
      book overdrafts, accrued but unpaid interest and prepayment penalties), in
      each
      case calculated in accordance with generally accepted accounting principles,
      consistently applied (“GAAP”).
      The
      computation of Working Capital expressly excludes Transaction Costs and amounts
      owed under the Company Debt Agreements. An example of the determination of
      Working Capital is set forth on Schedule
      1.4(a).
      “Transaction
      Costs”
means
      all out-of-pocket costs, fees and expenses of the Company and its subsidiaries
      related to the transactions contemplated by this Agreement including, without
      limitation, legal and professional fees and expenses and broker fees and
      expenses incurred in connection with the negotiation and consummation of the
      transactions contemplated hereby.

     

    (b)    “Net
      Debt” means
      (i)
      the amount of indebtedness for borrowed money of the Company and its
      subsidiaries (including the current portion of any such indebtedness, book
      overdrafts and including capital lease obligations) plus (ii) the amount of
      accrued but unpaid interest for borrowed money and prepayment penalties, minus
      the amount of cash and cash equivalents on hand or in bank accounts (net of
      outstanding checks). An example of the determination of Net Debt is set forth
      on
Schedule
      1.4(b).
      

     

    (c)    “Stated
      Working Capital”
means
      the amount of $34,250,000.

     

    (d)    Not
      later
      than five (5) calendar days prior to the Closing Date, the Seller Representative
      will, in good faith, estimate the amount of the Working Capital (the
“Estimated
      Working Capital”)
      and
      Net Debt (the “Estimated
      Net Debt”)
      as of
      the close of business on the day immediately preceding the Closing Date. The
      Estimated Working Capital and the Estimated Net Debt will be computed in a
      manner consistent with the computation of Working Capital and Net Debt as set
      forth on Schedules 1.4(a)
      and
1.4(b),
      respectively. At the Closing, the Purchase Price will be:

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    (i)    
increased
      by
      an amount equal to the amount by which the Estimated Working Capital is greater
      than Stated Working Capital; 

     

    (ii)    decreased
      by
      an amount equal to the amount by which the Estimated Working Capital is less
      than Stated Working Capital; and

     

    (iii)   decreased
      or
      increased, as applicable, in an amount equal to the amount of Estimated Net
      Debt.

     

    (e)    Within
      sixty (60) calendar days after the Closing, the Buyer will calculate the actual
      Working Capital and actual Net Debt as of the close of business on the day
      immediately preceding the Closing Date in the same manner as the Estimated
      Working Capital and the Estimated Net Debt were calculated, and will notify
      the
      Seller Representative in writing of such calculation. If the Seller
      Representative disputes the accuracy of the Buyer’s calculation and notifies the
      Buyer of such dispute in writing within thirty (30) calendar days after receipt
      thereof, and the parties are unable in good faith to settle such dispute within
      an additional fifteen (15) calendar days, then the Seller Representative will
      provide its own calculation of actual Working Capital or actual Net Debt, as
      applicable, in writing and the dispute shall be submitted promptly to the
      Houston, Texas office of Ernst & Young LLP or, if such accounting firm is
      unable or unwilling to act in such capacity, such other nationally known
      certified public accounting firm selected by agreement of the Buyer and the
      Seller Representative (the “Accountant”).
      In
      resolving such dispute, the Accountant shall consider only those items that
      are
      in dispute and not modify any element of Working Capital or Net Debt that is
      not
      disputed by the parties. The fees and expenses of the Accountant will be
      allocated one-half to the Buyer and one-half to the Sellers. If the Seller
      Representative does not dispute the accuracy of the Buyer’s calculation within
      the time period set forth above, then the Seller Representative and the Sellers
      will be deemed to have agreed with the Buyer’s calculation. The actual Working
      Capital and the actual Net Debt as of the close of business on the day
      immediately preceding the Closing Date determined by the Buyer, by agreement
      between the parties or by the Accountant (as provided in this paragraph), are
      referred to as the “Actual
      Working Capital”
and
      the
“Actual
      Net Debt,”
      respectively.

     

    (f)    If
      the
      Actual Working Capital exceeds the Estimated Working Capital (the “Working
      Capital Excess”),
      then
      within three (3) business days of such determination, the Buyer will pay


     

    
      	 	
              (i)
                

            	
              to
                the Seller Representative, as disbursing agent on behalf of the Sellers,
                an amount in cash equal to (A) the Working Capital Excess, multiplied
                by (B) a fraction, the numerator of which is the number of Shares
                outstanding immediately prior to the Closing, and the denominator
                of which
                is the Fully Diluted Shares;

            


    

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    


    
      	 	
              (ii)
                

            	
              to
                the Company, for the benefit of the Optionholders, an amount in cash
                equal
                to (A) the Working Capital Excess, multiplied by (B) a fraction,
                the numerator of which is the aggregate number of shares of Common
                Stock
                into which the Options are convertible, and the denominator of which
                is
                the Fully Diluted Shares; and

            


    

     

    
      	 	
              (iii)
                

            	
              to
                the Warrantholder, an amount in cash equal to (A) the Working Capital
                Excess, multiplied by (B) a fraction, the numerator of which is the
                aggregate number of shares of Common Stock into which the Warrant
                is
                convertible, and the denominator of which is the Fully Diluted
                Shares.

            


    

     

    The
      Seller Representative shall hold such funds that it receives pursuant to this
      Section
      1.4(f)
      in trust
      for the benefit of the Sellers and shall promptly disburse the allocable portion
      of such funds, without interest, to the Sellers as soon as practicable after
      receipt from the Buyer. The Company shall pay to each Optionholder, in each
      case, without interest and subject to Section
      1.3(g),
      an
      amount equal to (A) the Working Capital Excess, multiplied by (B) a
      fraction, the numerator of which is the number of shares of Common Stock into
      which such Option is convertible, and the denominator of which is the Fully
      Diluted Shares.

     

    (g)    If
      the
      Actual Working Capital is less than the Estimated Working Capital (such
      shortfall being the “Working
      Capital Shortfall”),
      then
      the Buyer and the Seller Representative will issue joint written instructions
      to
      the Escrow Agent to release to the Buyer an amount in cash equal to the Working
      Capital Shortfall, such amount to be released in accordance with the Escrow
      Agreement, by wire transfer of immediately available funds (to an account
      specified in writing by the Buyer) within three (3) business days after
      determination of the Actual Working Capital. To the extent there are
      insufficient funds in the Escrow Account at such time to pay the full amount
      of
      such shortfall to Buyer, then the Sellers shall pay the remaining shortfall
      (to
      an account specified in writing by Buyer) within fifteen (15) calendar days
      after determination of the Actual Working Capital;

     

    (h)    If
      the
      Actual Net Debt exceeds the Estimated Net Debt (such excess being the
“Net
      Debt Excess”),
      then
      the Buyer and the Seller Representative will issue joint written instructions
      to
      the Escrow Agent to release to the Buyer the amount of the Net Debt Excess,
      in
      accordance with the Escrow Agreement, by wire transfer of immediately available
      funds (to an account specified in writing by the Buyer) within three (3)
      business days after determination of the Actual Net Debt. To the extent there
      are insufficient funds in the Escrow Account at such time to pay the full amount
      of such Net Debt Excess to Buyer, then Sellers shall pay the remaining excess
      to
      Buyer (to an account specified in writing by Buyer) within fifteen (15) calendar
      days after determination of the Actual Net Debt;

     

    (i)    
If
      the
      Actual Net Debt is less than the Estimated Net Debt (such shortfall being the
      “Net
      Debt Shortfall”),
      then,
      within three (3) business days of such determination, the Buyer will pay


     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    


    
      	 	
              (i)
                

            	
              to
                the Seller Representative, as disbursing agent on behalf of the Sellers,
                an amount in cash equal to (A) the Net Debt Shortfall multiplied by
                (B) a fraction, the numerator of which is the number of Shares
                outstanding immediately prior to the Closing, and the denominator
                of which
                is the Fully Diluted Shares;

            


    

     

    
      	 	
              (ii)

            	
              to
                the Company, for the benefit of the Optionholders, an amount in cash
                equal
                to (A) the Net Debt Shortfall, multiplied by (B) a fraction, the
                numerator of which is the aggregate number of shares of Common Stock
                into
                which the Options are convertible, and the denominator of which is
                the
                Fully Diluted Shares; and

            


    

     

    
      	 	
              (iii)
                

            	
              to
                the Warrantholder, an amount in cash equal to (A) the Net Debt
                Shortfall, multiplied by (B) a fraction, the numerator of which is
                the aggregate number of shares of Common Stock into which the Warrant
                is
                convertible, and the denominator of which is the Fully Diluted
                Shares.

            


    

     

    The
      Seller Representative shall hold such funds that it receives pursuant to this
      Section
      1.4(i)
      in trust
      for the benefit of the Sellers and shall promptly disburse the allocable portion
      of such funds, without interest, to the Sellers as soon as practicable after
      receipt from the Buyer. The Company shall pay to each Optionholder, in each
      case, without interest and subject to Section
      1.3(g),
      an
      amount equal to (A) the Net Debt Shortfall multiplied by (B) a
      fraction, the numerator of which is the number of shares of Common Stock into
      which such Option is convertible, and the denominator of which is the Fully
      Diluted Shares.

     

    (j)    
For
      purposes of complying with the terms set forth in this Section 1.4,
      each
      party shall cooperate with and make available to the other parties and their
      respective representatives all information, records, data and working papers,
      and shall permit reasonable access to its facilities and personnel, as may
      be
      reasonably required in connection with the preparation and analysis of the
      Estimated Working Capital, Estimated Net Debt, Actual Working Capital and Actual
      Net Debt and the resolution of any disputes related thereto.

     

    1.5    Closing
      Deliveries.
      At the
      Closing:

     

    (a)    the
      Buyer
      will pay to the Company, the Escrow Agent, the Seller Representative and the
      Warrantholder the amounts specified to be paid to such Persons in Section
      1.3
      (as
      adjusted pursuant to Section
      1.4)
      by wire
      transfer of immediately available funds to the account specified by each such
      Person in writing;

     

    (b)    the
      Sellers will deliver to the Buyer payoff letters in form and substance
      reasonably satisfactory to the Buyer evidencing payoff of all indebtedness
      under
      the Company Debt Agreements other than the Subordinated Note (the “Payoff
      Letters”);

     

    (c)    the
      Buyer
      will pay the unpaid Transaction Costs to the Persons and in the amounts
      indicated in written instructions such instructions to be delivered by the
      Company to the Buyer at least three (3) business days prior to the Closing
      Date;

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    


    (d)    the
      Buyer
      will pay the amounts indicated in the Payoff Letters to the Persons entitled
      thereto as indicated in such Payoff Letters;

     

    (e)    the
      Sellers will deliver certificates representing the Shares, accompanied by stock
      powers duly executed in blank;

     

    (f)    
the
      Sellers will deliver to the Buyer certificates representing the Subsidiary
      Equity;

     

    (g)    the
      Sellers will deliver to the Buyer the originals or copies of all of the
      Company’s and its subsidiaries’ books, records, ledgers, disks, proprietary
      information and all other written or electronic depositories of information;
      

     

    (h)    the
      Sellers will deliver to the Buyer a copy of the Certificate of Incorporation
      of
      the Company certified as of the most recent practicable date by the Delaware
      Secretary of State;

     

    (i)    
the
      Sellers will deliver to the Buyer copies of the Articles of Organization of
      each
      of the subsidiaries of the Company certified as of the most recent practicable
      date by the Louisiana Secretary of State;

     

    (j)    
the
      Sellers will deliver to the Buyer true and correct copies of the limited
      liability company agreements (or other governing agreements) for each subsidiary
      of the Company;

     

    (k)    the
      Sellers will deliver to the Buyer a certificate of the Delaware Secretary of
      State certifying as to the good standing of the Company as of the most recent
      practicable date;

     

    (l)    
the
      Sellers will deliver to the Buyer a certificate of the Louisiana Secretary
      of
      State certifying as to the good standing of each subsidiary of the Company
      as of
      the most recent practicable date;

     

    (m)   the
      Sellers will deliver to the Buyer duly executed counterparts of an agreement
      in
      the form of Exhibit
      C
      to this
      Agreement, terminating the Management Agreement dated as of February 9, 2005
      between IGP Industries, LLC and the Subsidiary;

     

    (n)    the
      Sellers will deliver to the Buyer written agreements in the form of
Exhibit
      D
      to this
      Agreement, and executed by the Company and each Optionholder, evidencing the
      cancellation of each Option, which agreement may be conditioned upon the
      Closing;

     

    (o)    the
      Sellers will deliver to the Buyer a written agreement in the form of
Exhibit
      E
      to this
      Agreement, and executed by the Company and the Warrantholder, evidencing the
      cancellation of the Warrant, which agreement may be conditioned upon the
      Closing;

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    


    (p)    the
      Sellers and the Buyer will deliver counterparts of the Escrow Agreement duly
      executed by the Seller Representative and the Buyer, respectively;

     

    (q)    the
      Buyer
      will deliver to the Seller Representative a closing certificate in the form
      of
Exhibit
      F
      to this
      Agreement; and

     

    (r)    
the
      Sellers will deliver to the Buyer a closing certificate substantially in the
      form of Exhibit G
      to this
      Agreement;

     

    (s)    the
      Sellers will deliver to the Buyer UCC Termination Statements and other releases
      reasonably satisfactory to the Buyer that, when filed, will evidence the release
      of any Liens placed on the assets of the Company or its subsidiaries in
      connection with indebtedness for borrowed money, including, without limitation,
      Liens placed on the assets of the Company pursuant to the Company Debt
      Agreements;

     

    (t)    
the
      Sellers will deliver to the Buyer written resignations of each director, officer
      and manager, as applicable, of the Company and its subsidiaries from their
      position, as a director, officer or manager, but not as an employee, with the
      Company and the applicable subsidiary of the Company substantially in the form
      of Exhibit H
      to this
      Agreement;

     

    (u)    each
      Seller will deliver to the Buyer a non-foreign affidavit dated as of the Closing
      Date, executed under penalty of perjury and in form and substance required
      under
      Treasury Regulation issued pursuant to Section 1445 of the Code stating
      that each such Seller is not a foreign person as defined in Section 1445 of
      the Code;

     

    (v)    the
      Buyer
      will deliver to the Seller Representative the articles of incorporation of
      the
      Buyer certified as of the most recent practicable date by the Secretary of
      State
      of Louisiana;

     

    (w)   the
      Buyer
      will deliver to the Seller Representative a certificate of the Louisiana
      Secretary of State as to the good standing of the Buyer in such jurisdiction
      as
      of the most recent practicable date;

     

    (x)    the
      Sellers will deliver to the Buyer written agreements in the form of
      Exhibit I to this Agreement terminating the consulting agreements between
      the Subsidiary and each of Wilfred DeHart, Wendell Hohensee and John Tieken,
      Jr.
      duly executed by the Subsidiary and each such Person; and

     

    (y)    the
      Buyer
      and Bart Hohensee will deliver to the Seller Representative executed
      counterparts of the letter agreement attached hereto as Exhibit
      J
      to this
      Agreement.

     

    1.6    Further
      Assurances.
      At or
      after the Closing, and without further consideration, each party hereto will
      execute and deliver to the other parties hereto such further instruments of
      conveyance and transfer as such other party may reasonably request in order
      to
      more effectively convey and transfer the Shares to the Buyer, or for aiding,
      assisting, collecting and reducing to possession any of the Shares and the
      assets of the Company and its subsidiaries and exercising rights with respect
      thereto.

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    


    ARTICLE
      II

    Representations
      and Warranties of the Company and the Sellers

    


    The
      Company hereby represents and warrants to the Buyer as follows, provided,
      however,
      that
      with regard to the representations and warranties made in Sections
      2.1(a)
      and
2.4(a),
      each
      Seller makes such representations and warranties severally to the Buyer, but
      solely with regard to such Seller:

     

    2.1    Authority.
      

     

    (a)    Each
      Seller has all requisite capacity, power and authority, to execute, deliver
      and
      perform under this Agreement and the other agreements, certificates and
      instruments to be executed by each such Seller pursuant to this Agreement
      (collectively, the “Seller
      Ancillary Documents”)
      to
      which such Seller is a party. The execution, delivery and performance by each
      Seller of this Agreement and each Seller Ancillary Document to which such Seller
      is a party has been duly authorized by all necessary action on such Seller’s
      part. This Agreement has been, and at the Closing the Seller Ancillary Documents
      will be, duly executed and delivered by each Seller (to the extent each is
      a
      party thereto). This Agreement is, and, upon execution and delivery by each
      Seller at the Closing, each of the Seller Ancillary Documents will be, a legal,
      valid and binding agreement of each Seller (to the extent each is a party
      thereto), enforceable against each Seller in accordance with its terms, except
      as such enforceability may be limited by applicable bankruptcy, insolvency,
      fraudulent conveyance or similar laws affecting the enforcement of creditors’
rights generally and subject to general principles of equity (regardless of
      whether enforcement is sought in a proceeding at law or in equity).

     

    (b)    The
      Company has all requisite capacity, power and authority, to execute, deliver
      and
      perform under this Agreement and the other agreements, certificates and
      instruments to be executed by the Company or its officers pursuant to this
      Agreement (collectively, the “Company
      Ancillary Documents”
and
      together with the Seller Ancillary Documents, the “Ancillary
      Documents”).
      The
      execution, delivery and performance by the Company of this Agreement and each
      Ancillary Document to which the Company is a party has been duly authorized
      by
      all necessary action on Company’s part. This Agreement has been, and at the
      Closing the Company Ancillary Documents will be, duly executed and delivered
      by
      the Company. This Agreement is, and, upon execution and delivery by the Company
      at the Closing, each of the Company Ancillary Documents will be, a legal, valid
      and binding agreement of the Company, enforceable against the Company in
      accordance with its terms, except as such enforceability may be limited by
      applicable bankruptcy, insolvency, fraudulent conveyance or similar laws
      affecting the enforcement of creditors’ rights generally and subject to general
      principles of equity (regardless of whether enforcement is sought in a
      proceeding at law or in equity).

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    2.2    Organization.
      

     

    (a)    The
      Company is a corporation duly organized, validly existing and in good standing
      under the laws of the State of Delaware and has full power to own its properties
      and to conduct its business as presently conducted. The Company is duly
      authorized, qualified or licensed to do business and is in good standing in
      each
      state or other jurisdiction in which its business or operations as presently
      conducted make such qualification necessary except where the failure to be
      so
      qualified or to be in good standing would not have a Material Adverse Effect
      on
      the Company. The Company is required to be qualified to do business as a foreign
      entity in the jurisdictions set forth on Schedule
      2.2(a).
      The
      Company does not operate under any assumed names. 

     

    (b)    Each
      subsidiary of the Company is a limited liability company duly organized, validly
      existing and in good standing under the laws of the State of Louisiana and
      has
      full power to own its properties and to conduct its business as presently
      conducted. Each subsidiary of the Company is duly authorized, qualified or
      licensed to do business and is in good standing in each state or other
      jurisdiction in which its business or operations as presently conducted make
      such qualification necessary except where the failure to be so qualified or
      to
      be in good standing would not have a Material Adverse Effect on the Company.
      The
      subsidiaries of the Company are required to be qualified to do business as
      a
      foreign entity in the jurisdictions set forth on Schedule
      2.2(b).
      The
      subsidiaries of the Company do not operate under any assumed names.

     

    2.3    Organizational
      Documents.
      The
      Company has delivered to the Buyer:

     

    (a)    true,
      correct and complete copies of the Company’s certificate of incorporation,
      bylaws, minute books and stock record books; and

     

    (b)    for
      each
      subsidiary of the Company, true, correct and complete copies of such
      subsidiary’s certificate of formation, operating agreement, minute books and
      equity record books.

     

    2.4    Title
      to Securities.
      

     

    (a)    Such
      Seller owns the Shares set forth next to such Seller’s name on Schedule
      2.5(a),
      of
      record and beneficially, free and clear of any lien, legal restriction, claim,
      pledge, security interest, charge, spousal interest (community or otherwise),
      contingency or other encumbrance of any nature (each, a “Lien”).
      Upon
      sale of the Shares and delivery of certificates therefor to the Buyer hereunder,
      the Buyer will acquire the entire legal and beneficial interests in the Shares,
      free and clear of any Lien except for liens created by the Buyer.

     

    (b)    The
      Company owns the Subsidiary Equity, of record and beneficially, free and clear
      of any Lien.

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    


    2.5    Capitalization.

     

    (a)    The
      authorized capital stock of the Company consists of 40,000 shares of Common
      Stock and 10,000 shares of Preferred Stock, par value $0.01 per share. There
      are
      (i) 26,505.75 shares of Common Stock issued and outstanding and (ii) 
335.00949 shares of Common Stock reserved for issuance upon exercise of the
      Warrant. As of the date of this Agreement, there are 2,579.09 shares of Common
      Stock reserved for issuance pursuant to outstanding Options. As of the Closing
      Date, there will be no more than 3,216.091139 shares of Common Stock reserved
      for issuance pursuant to outstanding Options. The Shares and other interests
      set
      forth in the preceding three sentences of this Section constitute all of the
      issued outstanding equity interests of the Company. The Shares have been duly
      authorized and validly issued in compliance with all applicable Laws (as defined
      in Section
      2.16),
      and
      are fully paid and nonassessable and, except as set forth in Schedule
      2.5(a),
      free of
      preemptive rights. The Company does not hold any of its capital stock in
      treasury, nor are any shares of capital stock reserved for issuance, except
      as
      set forth in this Section
      2.5(a).
      Set
      forth on Schedule
      2.5(a)
      is the
      name of each holder of Shares and the number of Shares that each such holder
      holds as of the date hereof.

     

    (b)    The
      Subsidiary Equity constitutes all of the issued outstanding equity interests
      of
      the Subsidiary. The Subsidiary Equity has been duly authorized and validly
      issued in compliance with all applicable Laws, and is fully paid and
      nonassessable and free of preemptive rights. The Subsidiary does not hold any
      of
      its equity interests in treasury, nor are any equity interests reserved for
      issuance. Each subsidiary of the Company other than the Subsidiary is
      wholly-owned by the Subsidiary and there are no outstanding equity interests
      in
      each such subsidiary other than those owned by the Subsidiary.

     

    (c)    Other
      than as set forth in Schedule
      2.5(a)
      (which
      schedule may be updated with respect to Options at Closing), there are no
      outstanding options, warrants, convertible or exchangeable securities or other
      rights, agreements, arrangements or commitments obligating the Company, any
      subsidiary of the Company or any Seller, directly or indirectly, to issue,
      sell,
      purchase, acquire or otherwise transfer or deliver any equity interest in the
      Company or any of its subsidiaries, or any agreement, document, instrument
      or
      obligation convertible or exchangeable therefor. Except as set forth on
Schedule
      2.5(a),
      there
      are no agreements, arrangements or commitments of any character (contingent
      or
      otherwise) pursuant to which any Person (as defined in Section
      2.15)
      is or
      may be entitled to receive any payment based on the revenues or earnings, or
      calculated in accordance therewith, of the Company or any of its subsidiaries.
      There are no voting trusts, proxies or other agreements or understandings to
      which the Company or any Seller is a party or by which the Company or any Seller
      is bound with respect to the voting of any equity interests in the Company
      or
      any of its subsidiaries. None
      of
      the Shares was issued in violation of the Securities Act of 1933, as amended
      (the “Act”),
      or
      any state securities Laws.

     

    2.6    Subsidiaries
      and Other Interests; Non-Operating Entity.
      

     

    (a)    Other
      than as set forth on Schedule
      2.6,
      the
      Company has no subsidiaries and owns no assets or equity or debt interest or
      any
      form of proprietary interest in any Person, or any obligation, right or option
      to acquire any such interest. Other than the Subsidiary Equity, the Company
      owns
      no assets of any kind.

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    


    (b)    Other
      than as set forth on Schedule
      2.6,
      the
      Subsidiary has no subsidiaries and owns no equity or debt interest or any form
      of proprietary interest in any Person, or any obligation, right or option to
      acquire any such interest.

     

    (c)    During
      the last five (5) years, the Company has
      not
      conducted any operations or engaged in any activities of any nature whatsoever
      other than the ownership and management of the Subsidiary.

     

    2.7    Title
      to Assets.

     

    (a)    Set
      forth
      on Schedule
      2.7(a)
      is a
      complete list (including the street address, where applicable) of: (i) all
      real
      property owned by the Company and its subsidiaries; and (ii) all real
      property leased by the Company and its subsidiaries or otherwise used in
      connection with the Business (the “Real
      Property”).
      Except as set forth on Schedule
      2.7(a),
      no
      tangible or intangible asset used in connection with the Business is owned
      or
      leased by any Seller or any Affiliate (as defined in Section 8.10(a))
      of any
      Seller (other than the Company or its subsidiaries).

     

    (b)    Except
      as
      set forth on Schedule
      2.7(b),
      each of
      the Company and its subsidiaries has good and marketable title to all of the
      assets each purports to own, and each owns all of such assets free and clear
      of
      any Liens,
      other than statutory
      Liens securing current Taxes (as defined in Section
      2.14)
      and
      other obligations that are not yet due and payable and, with regard to the
      Real
      Property, other than (a) easements, restrictions and encroachments,
      (b) any matters revealed by an accurate survey and (c) zoning
      ordinances, building codes and similar restrictions, all of the foregoing which
      do not materially affect the use or value of such Real Property.
      Except
      as set forth on Schedule
      2.7(b),
      the
Company
      or one of its subsidiaries
      holds a
      valid leasehold interest in or otherwise has a valid and enforceable right
      to
      use, all of the tangible assets used in connection with the Business that they
      do not own, subject to applicable bankruptcy, insolvency, fraudulent conveyance
      or similar laws affecting the enforcement of creditors’ rights generally and
      subject to general principles of equity (regardless of whether enforcement
      is
      sought in a proceeding at law or in equity). Neither the Company, any of its
      subsidiaries, the Sellers nor, to
      the
      Knowledge of the Company,
      any
      other Person, has granted any rights, options, rights of first refusal, or
      any
      other agreement of any kind to purchase or to otherwise acquire any interest
      in
      the Real Property (as defined in Section 2.7(c)),
      or any
      part thereof.

     

    (c)    There
      are
      no actions pending or, to the Knowledge of the Company, threatened that would
      alter the current zoning classification of the Real Property or alter any
      applicable Laws, covenants, conditions or restrictions that would adversely
      affect the use of the Real Property in the Business. Neither the Company, any
      of
      its subsidiaries nor any Seller has received written notice from any insurance
      company or Governmental Body (as defined in Section
      2.10)
      of any
      defects or inadequacies in the Real Property or the improvements thereon that
      would adversely affect the insurability or usability of the Real Property or
      such improvements or prevent the issuance of new insurance policies thereon
      at
      rates not materially higher than present rates. None of the Sellers is a
“foreign person” as that term is defined in § 1445 of the Internal Revenue Code
      of 1986, as amended (the “Code”),
      and
      applicable regulations.

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

    2.8    Condition
      and Sufficiency of Assets.
      The
      assets of the Company and its subsidiaries, including any assets held under
      leases or licenses, except for cash and cash equivalents, constitute all assets
      (other than intellectual property) used by the Company and its subsidiaries
      in
      the conduct of the Business.

     

    2.9    No
      Violation.
      Except
      as set forth on Schedule
      2.9,
      neither
      the execution nor delivery of this Agreement or any of the Ancillary Documents
      nor the consummation of the transactions contemplated hereby and thereby,
      including without limitation the sale of the Shares to the Buyer, will conflict
      with or result in the material breach of any term or provision of, require
      consent or violate or constitute a default under (or an event that with notice
      or the lapse of time or both would constitute a material breach or default),
      or
      result in the creation of any Lien on the Shares, the Subsidiary Equity or
      the
      assets of the Company or its subsidiaries pursuant to, or relieve any third
      party of any obligation to the Company or any of its subsidiaries or give any
      third party the right to terminate or accelerate any obligation under, any
      (i) charter provision, (ii) bylaw, (iii) Material Contract (as
      defined in Section 2.21(a)),
      (iv) Permit (as defined in Section
      2.17)
      or
      (v) Law to which the Company, its subsidiaries or any Seller is a party or
      by which any asset owned by the Company or any of its subsidiaries or otherwise
      used in connection with the Business is in any way bound or obligated except,
      in
      the case of (iii), such as would not have a Material Adverse Effect on the
      Company.

     

    2.10  
        Governmental
      Consents.
      Except
      as required in connection with the Hart-Scott-Rodino Antitrust Improvements
      Act
      of 1976, as amended (the “HSR
      Act”),
      no
      consent, approval, order or authorization of, or registration, qualification,
      designation, declaration or filing with, any governmental or quasi-governmental
      agency, authority, commission, board or other body (each, a “Governmental
      Body”)
      is
      required on the part of the Company, any subsidiary of the Company or any Seller
      in connection with the sale and purchase of the Shares or any of the other
      transactions contemplated by this Agreement or the Ancillary
      Documents.

     

    2.11   
        Financial
      Statements.

     

    (a)    Attached
      as Schedule
      2.11(a)
      are true
      and complete copies of: (i) (A) the unaudited consolidated balance
      sheet of the Company and its subsidiaries as of December 31, 2005 and the
      related unaudited consolidated statements of income, stockholder’s equity and
      cash flows of the Company and its subsidiaries for the fiscal year then ended
      and (B) the unaudited consolidated balance sheet of the Company and its
      subsidiaries (the “Latest
      Balance Sheet”)
      as of
      March 31, 2006 (the “Latest
      Balance Sheet Date”)
      and
      the related unaudited consolidated statements of income, stockholder’s equity
      and cash flows of the Company and its subsidiaries for the three month period
      then ended (collectively, the “Interim
      Financial Statements”);
      and
      (ii) the audited consolidated balance sheet of the Company and its subsidiaries
      as of December 31, 2004, and the related audited consolidated statements of
      income, stockholder’s equity and cash flows for the year then ended
      (collectively, the “Financial
      Statements”).
      The
      Financial Statements present fairly, in all material respects, the consolidated
      financial condition of the Company and its subsidiaries at the dates specified
      and the results of their operations for the periods specified and have been
      prepared, in all material respects, in accordance with GAAP. The Financial
      Statements and the Interim Financial Statements have been prepared from the
      books and records of the Company and its subsidiaries. The Interim Financial
      Statements present fairly, in all material respects, the consolidated financial
      condition of the Company and its subsidiaries at the dates specified and the
      results of their operations for the periods specified and have been prepared,
      in
      all material respects, in accordance with GAAP, except for the absence of
      footnote disclosure and customary year-end adjustments.

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    


    (b)    All
      accounts receivable reflected in the Latest Balance Sheet or included in the
      assets of the Company or its subsidiaries arose in the ordinary course of
      business.

     

    2.12 
         Absence
      of Undisclosed Liabilities.
      Neither
      the Company nor any of its subsidiaries has any direct or indirect debts,
      obligations or liabilities of any nature, whether absolute, accrued, contingent,
      liquidated or otherwise, and whether due or to become due, asserted or
      unasserted (collectively, “Liabilities”)
      except
      for: (i) Liabilities reflected in the Latest Balance Sheet; (ii) current
      Liabilities incurred in the ordinary course of business and consistent with
      past
      practice after the Latest Balance Sheet Date; (iii) Liabilities incurred in
      the ordinary course of business and consistent with past practice under the
      Material Contracts (as defined in Section
      2.21(a))
      and
      under other agreements entered into by the Company or its subsidiaries in the
      ordinary course of business that are not included within the definition of
      Material Contracts set forth in Section
      2.21(a),
      which
      Liabilities are not required by GAAP to be reflected in the Latest Balance
      Sheet
      and (iv) Liabilities that would not have a Material Adverse Effect on the
      Company and its subsidiaries.

     

    2.13  
         Absence
      of Certain Changes.
      Since
      the Latest Balance Sheet Date, except as set forth in Schedule
      2.13,
      there
      has not been: 

     

    (a)    any
      change,
      event or occurrence regarding the Company and its subsidiaries that constitutes
      a Material Adverse Effect with regard to the Company; 

     

    (b)    any
      declaration, setting aside or payment of any dividends or distributions in
      respect of any equity capital of the Company or its subsidiaries, or any
      redemption, purchase or other acquisition by the Company or its subsidiaries
      of
      any of their respective equity interests; 

     

    (c)    any
      payment
      or transfer of assets (including without limitation any distribution or any
      repayment of indebtedness) to or for the benefit of any Seller, other than
      compensation and expense reimbursements paid in the ordinary course of business,
      consistent with past practice; 

     

    (d)    any
      revaluation by the Company or its subsidiaries of any of its assets, including
      the writing down or writing off of notes or accounts receivable and the writing
      down of the value of inventory, other than in the ordinary course of business
      and consistent with past practice; 

     

    (e)    any
      incurrence by the Company or its subsidiaries of capital expenditures in excess
      of $100,000, individually or in the aggregate; 

     

    (f)    
any
      increase
      in indebtedness for borrowed money of the Company or its subsidiaries, or any
      issuance
      or sale
      by the Company or its
      subsidiaries
      of any
      debt securities, or any assumption, guarantee or endorsement by the Company
      or
its
      subsidiaries
      of any
      Liability of any other Person, or any loan or advance by the Company or
its
      subsidiaries
      to any
      other Person;
      

     

    
      
        
        

      

      
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    (g)    any
      breach or
      default (or event that with notice or lapse of time would constitute a breach
      or
      default) of the Company or its subsidiaries, termination or to the Knowledge
      of
      the Company threatened termination under any Material Contract; 

     

    (h)    any
      material
      change by the Company or its
      subsidiaries
      in its
      accounting methods, principles or practices; 

     

    (i)    
any
      material
      increase in the benefits under, or the establishment or amendment of, any bonus,
      insurance, severance, deferred compensation, pension, retirement, profit sharing
      or other employee benefit plan, or any increase in the compensation payable
      or
      to become payable to managers, officers or employees of the Company or
its
      subsidiaries,
      except
      for annual merit increases in salaries or wages in the ordinary course of
      business and consistent with past practice; 

     

    (j)    
except
      as
      required hereby, any termination of employment (whether voluntary or
      involuntary) of any officer or key employee of the Company or its
      subsidiaries
      or any
      termination of employment (whether voluntary of involuntary) of employees of
      the
      Company or its
      subsidiaries
      in
      excess of historical attrition in personnel; 

     

    (k)    any
      theft,
      condemnation or eminent domain proceeding or any damage, destruction or casualty
      loss affecting any asset used in connection with the Business that, in any
      event, would have a Material Adverse Effect on the Company, whether or not
      covered by insurance; 

     

    (l)    
any
      sale,
      assignment or transfer of any asset used in connection with the Business, except
      sales of inventory in the ordinary course of business and consistent with past
      practice; 

     

    (m)   any
      waiver by the
      Company, any of its subsidiaries or any Seller of any material rights related
      to
      the Business; 

     

    (n)    any
      action by the Company or its
      subsidiaries
      other
      than in the ordinary course of business and consistent with past practice,
      to
      pay, discharge, settle or satisfy any claim or Liability; 

     

    (o)    any
      settlement or compromise by the Company or its
      subsidiaries
      of any
      pending or threatened suit or legal action; 

     

    (p)    any
      issuance, sale or disposition of, or agreement to issue, sell or dispose of,
      any
      equity interest in the Company or its subsidiaries, or any instrument or other
      agreement convertible or exchangeable for any equity interest in the Company
      or
      its subsidiaries; 

     

    (q)    any
      authorization,
      recommendation, proposal or announcement of an intention to adopt a plan of
      complete or partial liquidation or dissolution of the Company or
      any of
      its subsidiaries; 

     

    (r)    any
      acquisition of, or investment by the Company or any of its subsidiaries in
      the
      equity or debt securities of any Person (including in any joint venture or
      similar arrangement); 

     

    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    


    (s)    any
      other
      transaction, agreement or commitment entered into by the Company or its
      subsidiaries or affecting the Business, the Company or its subsidiaries, except
      in the ordinary course of business and consistent with past practice; or


     

    (t)    
any
      agreement or understanding to do or resulting in any of the
      foregoing.

     

    2.14   
        Taxes.

     

    (a)    The
      Company
      and each of its subsidiaries have filed all Tax Returns that they were required
      to file under applicable laws and regulations. All such Tax Returns were correct
      and complete in all respects. All Taxes due and owing by the Company and
      subsidiaries (whether shown on any Tax Return) have been paid.

     

    (b)    Except
      as
      described in Schedule
      2.14(b),
      neither
      the Company nor any of its subsidiaries is the beneficiary of any extension
      of
      time within which to file any Tax Return.

     

    (c)    Neither
      the
      Company nor any of its subsidiaries has received notice of a claim by a Taxing
      Authority in a jurisdiction where such entity does not file Tax Returns that
      it
      is or may be subject to Tax by that jurisdiction that has not been settled
      or
      otherwise resolved.

     

    (d)    Neither
      the
      Company nor any of its subsidiaries has given any currently effective waiver
      of
      any statute of limitations in respect of Taxes or agreed to any currently
      effective extension of time with respect to a Tax assessment or
      deficiency.

     

    (e)    There
      are no
      security interests on any of the assets of the Company nor any of its
      subsidiaries that arose in connection with any failure (or alleged failure)
      to
      pay any Tax, other than Taxes not yet due and payable.

     

    (f)    
No
      audits or
      administrative or judicial proceedings are pending or being conducted, or to
      the
      Knowledge of the Company, are threatened with respect to the Taxes of the
      Company or any of its subsidiaries.

     

    (g)    Except
      as
      described in Schedule
      2.14(g),
      neither
      the Company nor any of its subsidiaries is liable for the Taxes of another
      Person (other than the Company or one of its subsidiaries) (i) under Section
      1.1502-6 of the Treasury Regulations (or comparable provisions of state, local,
      or foreign Law), (ii) as a transferee or successor, or (iii) by Contract or
      indemnity. Neither the Company nor any of its subsidiaries is a party to any
      tax
      sharing agreement.

     

    (h)    Except
      as set
      forth on Schedule
      2.14(h),
      neither
      the Company nor any of its subsidiaries is a party to any agreement, contract,
      arrangement or plan that, as a result of the transactions contemplated by this
      Agreement, could result, separately or in the aggregate, in the payment of
      any
“excess parachute payment” within the meaning of Section 280G of the Code or any
      corresponding provision of state, local or foreign Tax Law.

     

    (i)    
The
      Company
      and each of its subsidiaries have withheld and paid all Taxes required to have
      been withheld and paid in connection with amounts paid or owing to any employee,
      independent contractor, creditor, stockholder or other third party.

     

    
      
        
        

      

      
        16

        
          

        

      

      
        
        

      

    


    (j)    
The
      unpaid Taxes of the Company and its subsidiaries (i) did not, as of the date
      of
      the Latest Balance Sheet, exceed the reserve for Tax liability (as distinguished
      from any reserve for deferred Taxes established to reflect timing differences
      between book and Tax income) included in the Latest Balance Sheet (without
      reference to any notes thereto) in accordance with GAAP, and (ii) do not exceed
      that reserve as adjusted for the passage of time through the Closing Date in
      accordance with the past custom and practice of the Company and its subsidiaries
      in filing their Tax Returns. Since the date of the Latest Balance Sheet, neither
      the Company nor its subsidiaries has incurred any liability for Taxes arising
      from extraordinary gains or losses, as that term is used in GAAP, outside the
      ordinary course of business.

     

    (k)    Neither
      the Company nor any of its subsidiaries has undertaken or participated in any
      listed transaction (or transaction substantially similar thereto) or other
      reportable transaction described in Treasury Regulation Section 1.6011-4, or
      any
      comparable provision of applicable foreign, state or local Tax
      laws.

     

    (l)    
Neither
      the Company nor any of its subsidiaries has distributed stock of another entity
      or had its stock distributed by another entity in a transaction that was
      intended to be governed in whole or in part by Section 355 of the Code or
      Section 361 of the Code.

     

    (m)   Except
      as
      set forth on Schedule
      2.14(m),
      neither
      the Company nor any of its subsidiaries has been a member of an affiliated
      group
      (as defined in Section 1504(a) of the Code) filing a consolidated federal Income
      Tax Return.

     

    (n)    Except
      as
      set forth on Schedule
      2.14(n),
      neither
      the Company nor any of its subsidiaries is required to include any item of
      income in, or exclude any item of deduction from, taxable income for any taxable
      period (or portion thereof) ending after the Closing Date as a result of any:
      

     

    (i)    
change
      in
      method of accounting for a taxable period ending on or before the Closing Date;
      or

     

    (ii)    closing
      agreement as described in Section 7121 of the Code (or any corresponding or
      similar provision of state, local or foreign income Tax law) executed on or
      prior to the Closing Date.

     

    For
      purposes of this Agreement:

     

    “Income
      Tax”
means
      federal, state, local or foreign tax measured solely by or imposed solely on
      net
      income.

     

    “Income
      Tax Returns”
means
      all Tax Returns pertaining to Income Taxes.

     

    “Tax”
or
      “Taxes”
means
      any tax (including any income, capital gains, value-added, sales, property,
      withholding, social security (or similar), unemployment, profits, secondary,
      capital duties, franchise, use, employment, payroll, transfer, occupation,
      severance, production, excise, gross receipts, stamp, premium, customs, duties,
      capital stock, windfall profit, environmental, disability, registration,
      alternative or add on minimum, estimated or other taxes), levy, assessment,
      tariff, duty (including any customs duty), deficiency or other fee, and any
      related charge or amount (including any fine, penalty, interest or addition
      to
      tax, together with any interest in respect of such penalties, additions or
      additional amounts) imposed, assessed or collected by or under the authority
      of
      any Taxing Authority.

     

    
      
        
        

      

      
        17

        
          

        

      

      
        
        

      

    


    “Tax
      Return”
means
      any return (including any information return), report, statement, schedule,
      notice, form or other document or information filed with or submitted to, or
      required to be filed with or submitted to, any Taxing Authority in connection
      with the determination, assessment, collection or payment of any Tax or in
      connection with the administration, implementation or enforcement of or
      compliance with any law, regulation or other legal requirement relating to
      any
      Tax.

     

    “Taxing
      Authority”
means
      any:

     

    (a)    nation,
      state, county, city, town, village, district or other jurisdiction of any
      nature;

     

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

     

    (c)    governmental
      or quasi-governmental authority of any nature (including any governmental
      agency, branch, department, official or entity and any court or other
      tribunal);

     

    (d)    multi-national
      organization or body; or

     

    (e)    body
      exercising, or entitled to exercise, any administrative, executive, judicial,
      legislative, police, regulatory or taxing authority or power of any
      nature.

     

    2.15     Litigation.
      Except
      as set forth on Schedule
      2.15,
      there
      is currently no pending or, to the Knowledge of the Company, threatened material
      lawsuit, administrative proceeding or review or complaint or investigation
      (collectively, “Litigation”)
      by any
      individual, corporation, partnership, Governmental Body or other entity (each,
      a
“Person”)
      against the Company or its subsidiaries or, to the Knowledge of the Company,
      any
      member, manager, director, officer, employee or agent (in their capacities
      as
      such) of the Company or its subsidiaries or to which any of the assets of the
      Company or its subsidiaries is subject, or to which any of the Shares or the
      Subsidiary Equity is subject, or relating to the transactions contemplated
      by
      this Agreement or the consummation thereof. Neither the Company nor any of
      its
      subsidiaries is subject to or bound by any currently existing judgment, order,
      writ, injunction or decree.

     

    2.16  
        Compliance
      with Laws.
      The
      Company and each of its subsidiaries are currently in compliance with each
      applicable statute, law, ordinance, decree, order, rule or regulation of any
      Governmental Body, including without limitation all federal, state and local
      laws relating to zoning and land use, occupational health and safety, and
      employment and labor matters (collectively, “Laws”).
      

     

    2.17  
         Permits.
      The
      Company and each of its subsidiaries owns or possesses from each appropriate
      Governmental Body all right, title and interest in and to all material permits,
      licenses, authorizations, approvals, quality certifications, franchises or
      rights (collectively, “Permits”)
      issued
      by any Governmental Body necessary for the Company and its subsidiaries to
      conduct the Business as they are currently conducting the Business. Each of
      such
      Permits is listed on Schedule 2.17.
      No loss
      or expiration of any such Permit is pending or, to the Knowledge of the Company,
      threatened, other than expiration in accordance with the terms thereof of
      Permits that may be renewed in the ordinary course of business without
      lapsing.

     

    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    


    2.18   
        Environmental
      Matters.
      Except
      as set forth on Schedule
      2.18:

     

    (a)    The
      operations of the Company and its subsidiaries are and for the past five years
      have been in material compliance with Environmental Laws (as defined below).
      

     

    (b)    The
      Company and its subsidiaries have obtained and are in material compliance with
      all permits, licenses, authorizations, registrations and other governmental
      consents required by applicable Environmental Laws for the Company’s and its
      subsidiaries’ activities and operations at the Real Property as currently
      conducted. 

     

    (c)    There
      have been no releases by the Company or its subsidiaries of Hazardous Materials
      (as defined below) at, on, under, from or affecting any Real Property in such
      quantities that would give rise to an obligation to report or remediate such
      Hazardous Materials and neither the Company nor any of its subsidiaries has
      disposed of any Hazardous Materials on any Real Property in material violation
      of any Environmental Law. 

     

    (d)    There
      are
      no pending or to the Company’s Knowledge, threatened actions, suits, claims or
      other legal proceedings based on (i) the presence of any Hazardous
      Materials on, at, an underlying any Real Property, (ii) any release or
      threatened release into the environment of Hazardous Materials from any Real
      Property, (iii) the off-site disposal, transport or arrangement for
      disposal of Hazardous
      Materials originating on or from any Real Property or the Business or assets
      of
      the Company or any of its subsidiaries or (iv) any violation or alleged
      violation of Environmental Laws by the Company
      or any of its subsidiaries.

     

    (e)    No
      underground storage tanks or underground piping associated with any such tanks
      (“UST
      Systems”)
      are
      present at or under any Real Property and to the Knowledge of the Company,
      no
      UST Systems have been located on any Real Property. 

     

    (f)    
Sellers
      and the Company have provided Buyer all environmental assessment reports, audits
      and correspondence with any Governmental Body in their possession and control
      relating to the release of any Hazardous Materials or non-compliance with
      Environmental Laws at any Real Property that are set forth on Schedule 2.18(f).
      

     

    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

    

     

    As
      used
      herein, “Environmental
      Laws”
means
      all applicable laws, regulations, orders, decrees, judgments, or injunctions
      issued, promulgated or entered into by any Governmental Body pertaining to
      the
      protection of human health with respect to exposure to Hazardous Materials
      or
      the environment, including, without limitation, the Comprehensive Environmental
      Response, Compensation and Liability Act, as amended by the Superfund Amendments
      and Reauthorization Act, 42 U.S.C. § 9601 et seq., the Solid Waste Disposal
      Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. § 6901
      et seq., the Federal Water Pollution Control Act, as amended by the Clean Water
      Act, 33 U.S.C. § 1251 et seq., the Clean Air Act, 42 U.S.C. §7401 et seq., the
      Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., and any similar state or
      local statutes. As used herein, “Hazardous
      Materials”
means
      any pollutants, contaminants, asbestos, PCBs, urea formaldehyde, oils, petroleum
      and petroleum substances or byproducts, or fractions thereof, or other toxic
      or
      hazardous wastes, materials or substances, as those or any similar terms are
      defined in any Environment Laws, or any other substance or waste regulated
      pursuant to any Environmental Law. The representations and warranties in this
      Section
      2.18
      are the
      sole representations and warranties of the Sellers relating to compliance with
      the Liabilities arising under Environmental Laws. 

     

    2.19  
        Employee
      Matters.
      Set
      forth on Schedule 2.19
      is a
      complete list of all current employees of the Subsidiary and its subsidiaries,
      including first date of employment, current title and compensation, and date
      and
      amount of last increase in compensation. Neither the
      Company
      nor any of its subsidiaries has any collective bargaining, union or labor
      agreements, contracts or other arrangements with any group of employees, labor
      union or employee representative and, to the Knowledge of the Company, there
      is
      no organization effort currently being made or threatened by or on behalf of
      any
      labor union with respect to employees of the Subsidiary or its subsidiaries.
      Neither the Subsidiary nor any of its subsidiaries has experienced
      any strike, material labor trouble, work stoppage, slow down or other
      interference with or impairment of the Business. The Company does not now have,
      and has not in the past had, any employees of any kind.

     

    2.20  
         Employee
      Benefit Plans. 

     

    (a)    Set
      forth
      in Schedule
      2.20(a)
      is a
      complete and correct list of all “Employee Benefit Plans.”
      The
      term
“Employee
      Benefit Plans”
means
      (a) any “employee benefit plan” or “plan” within the meaning of Section 3(3) of
      the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
      and
      (b) all plans or policies providing for “fringe benefits” (including but not
      limited to vacation, paid holidays, personal leave, employee discounts,
      educational benefits or similar programs), and all other bonus, incentive
      compensation, deferred compensation, profit sharing, stock, severance,
      retirement, health, life, disability, group insurance, employment, stock option,
      stock purchase, stock award stock appreciation right, performance share,
      supplemental unemployment, layoff, consulting golden parachute agreements,
      change of control agreements, severance pay plans, dependent care plans,
      cafeteria plans, employee assistance programs, scholarship programs, employment
      contracts or any other similar plans, agreements, policies or understandings
      (whether written or oral, qualified or nonqualified), and any trust, escrow
      or
      other agreement related thereto, which (i) is or has been established,
      maintained or contributed to by the Company or any of its
      subsidiaries
      with
      respect to the Business, or
      with
      respect to which the Company or any of its subsidiaries has or may have any
      Liability, or (ii) provides benefits to any present or former director, officer
      or employee (or their dependent or beneficiary) of the Company or any of its
      subsidiaries, regardless of whether funded, with respect to which the Company
      or
      any of its subsidiaries has or may have any Liability.

     

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    


    (b)    The
      Sellers have provided to the Buyer a true and complete copy of each Employee
      Benefit Plan listed
      in
Schedule
      2.20(a)
      (and, if
      applicable, related trust agreements,
      group
      annuity contracts or other documents that provide the funding for the plan,
      agreement or arrangement)
      and all
      amendments thereto and written interpretations thereof, together with (i) the
      most recent favorable determination letter, if any, with respect to each
      Employee Benefit Plan and
      all
      rulings or determinations requested from the Internal Revenue Service
      (“IRS”)
      after
      the date of that determination letter,
      (ii)
      the three most recent annual reports prepared in connection with any such
      Employee Benefit Plan (Form 5500, 990,
      and
      1041 reports
      including, all applicable schedules), (iii) the most recent actuarial report
      or
      valuation statement
      prepared
      in connection with any such Employee Benefit Plan, (iv) the most recently
      disseminated summary plan description,
      or
      other descriptive written materials, and each summary of material modifications
      prepared after the last summary plan description, (v) the most recent statement
      filed with the Department of Labor pursuant to 29 U.S.C. § 2520.104-23, (vi) a
      written summary of the legal basis for an exemption from the obligations to
      file
      annual Form 5500 reports, and (vii) all other correspondence from the IRS or
      the
      Department of Labor received that relate to one or more of the plans, agreements
      or arrangements with respect to any matter, audit or inquiry that is still
      pending..

     

    (c)    None
      of
      the Sellers, the Company or any of the Company’s subsidiaries has any formal
      plan or commitment, whether legally binding or not, to create any additional
      Employee Benefit Plan or modify or change any existing Employee Benefit Plan
      that would affect any present or former director, officer or employee of Company
      or any of its subsidiaries, or such present or former director’s, officer’s or
      employee’s dependents or beneficiaries, other than as required by
      Law.

     

    (d)    Neither
      the Company or any of its subsidiaries sponsors, has an obligation to contribute
      to, or has any liability with respect to a “defined benefit plan” as defined in
      Section 3(35) of ERISA, a pension plan subject to the funding standards of
      Section 302 of ERISA or Section 412 of the Code, a “multiemployer plan” as
      defined in Section 3(37) of ERISA or Section 414(f) of the Code or a “multiple
      employer plan” within the meaning of Section 210(a) of ERISA or Section 413(c)
      of the Code.

     

    (e)    Each
      Employee Benefit Plan is in compliance with ERISA, applicable tax qualification
      requirements and all other applicable laws in all material respects, including
      but not limited to all reporting and disclosure requirements of Part I of
      Subtitle B of Title I of ERISA and with respect to each Employee Benefit Plan;
      the appropriate Form 5500 has been timely filed, for each year of its existence;
      there has been no transaction described in Section 406 or 407 of ERISA or
      section 4975 of the Code relating to the plan that could result in any material
      liability or excise tax under ERISA or the Code being imposed on the Company
      or
      any of its subsidiaries unless exempt under section 408 of ERISA or Section
      4975
      of the Code, as applicable; the bonding requirements of section 412 of ERISA
      have been satisfied; and all contributions required to have been made with
      respect to the plan have been timely made. Except as set forth in Schedule
      2.20(e),
      there
      is no material litigation, action, proceeding, investigation or claim asserted
      or, to the Knowledge of the Company, threatened or contemplated, with respect
      to
      any Employee Benefit Plan (other than the payment of benefits in the normal
      course) nor any issue if resolved adversely to the Company or an ERISA Affiliate
      that may subject the Company or the any of its subsidiaries to the payment
      of a
      material penalty, interest, tax or other amount.

     

    
      
        
        

      

      
        21

        
          

        

      

      
        
        

      

    


    (f)    
All
      Employee Benefit Plans that are intended to qualify under section 401 (a) of
      the
      Code either (i) have been determined by the IRS to be qualified under section
      401 (a) of the Code or (ii) have applicable remedial amendment periods that
      will
      not have ended before the Closing. To the Knowledge of the Company, no facts
      have occurred that if known by the IRS could cause disqualification of any
      of
      those plans.

     

    (g)    Except
      as
      disclosed on Schedule
      2.20(g),
      neither
      the Company nor any of its subsidiaries provides, nor is either of them
      obligated to provide, benefits, including without limitation death, health,
      medical, or hospitalization benefits (whether or not insured), with respect
      to
      current or former directors, officers or employees of the Business, their
      dependents or beneficiaries beyond their retirement or other termination of
      employment other than (i) coverage mandated by applicable Law, (ii) death
      benefits or retirement benefits under any “employee pension benefit plan”, as
      that term is defined in Section 3(2) of ERISA, or (iii) deferred compensation
      benefits accrued as liabilities on the books of the Company or its
      subsidiaries
      and
      disclosed on its financial statements.

     

    (h)    Except
      as
      set forth in Schedule
      2.20(h),
      the
      consummation of the transactions contemplated by this Agreement, either alone
      or
      in conjunction with another event (such as a termination of employment), will
      not (i) entitle any current or former employee or officer of the Company or
      any
      of its subsidiaries, to severance pay from the Company or any of its
      subsidiaries, or any other payment under an agreement, plan, arrangement or
      other contract, (ii) accelerate the time of payment or vesting of benefits
      under
      an agreement, plan, arrangement or other Contract, or (iii) increase the amount
      of compensation due any such employee or officer by the Company or any of its
      subsidiaries.

     

    2.21 
         Material
      Contracts.
      

     

    (a)    Schedule
      2.21(a)
      lists
      each of the following contracts, leases, licenses and other agreements, whether
      written or oral and including all amendments thereto (“Contracts”)
      to
      which the Company or one of its subsidiaries is a party or a beneficiary or
      by
      which the Company, any of its subsidiaries or any of their respective assets
      is
      bound that is in effect on the date of this Agreement or the Closing Date (each
      a “Material
      Contract”
and
      collectively, the “Material
      Contracts”):

     

    (i)    
each
      partnership or joint venture Contract;

     

    (ii)    each
      Contract containing covenants or agreements that in any way purport to restrict
      the business activity of any of the Company or any of its subsidiaries or any
      employee, director, officer, member or manager of the Company or any of its
      subsidiaries;

     

    (iii)   each
      Contract that requires the Company or any of its subsidiaries to make payments
      of more than $50,000 per annum;

     

    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

    


    (iv)   each
      Contract by which the Company or any of its subsidiaries will receive payments
      of more than $50,000 per annum (other than oral Contracts with customers of
      the
      Business regarding pricing);

     

    (v)    each
      lease, rental or occupancy agreement, license, installment sale agreement or
      other applicable Contract affecting the ownership of, leasing of, title to,
      use
      or any leasehold or other interest in real property or personal property (other
      than personal property leases and installment sales agreements having a value
      per item or aggregate payments of less than $50,000);

     

    (vi)   each
      employment Contract and each collective bargaining Contract and other Contract
      to or with any labor union or other employee representative of a group of
      employees;

     

    (vii)  
        each
      licensing agreement or other applicable Contract with respect to copyrights,
      patents, trademarks or other intellectual property, other than licenses for
      generally commercially available software;

     

    (viii) 
         each
      Contract relating to indebtedness for borrowed money or creating a security
      interest in the assets of the Company or any of its subsidiaries;

     

    (ix)   each
      guarantee of the indebtedness of any other Person;

     

    (x)    each
      power of attorney;

     

    (xi)   each
      sales agency, sales representative or distributor agreement or similar Contract;
      

     

    (xii)   
        each
      written product warranty Contract and each Contract providing for the
      indemnification by the Company or any of its subsidiaries of any other Person;
      

     

    (xiii)     each
      agreement with or for the benefit of any shareholder, member, manager, director,
      officer or employee of the Company or any of its subsidiaries, or any immediate
      family member thereof; and

     

    (xiv) 
         each
      other Contract that is in the reasonable belief of the Company material to
      the
      Business or operation of the Company or any of its subsidiaries.

     

    Schedule
      2.21(a)
      also
      lists each material oral Contract with customers of the Business regarding
      pricing.

     

    
      
        
        

      

      
        23

        
          

        

      

      
        
        

      

    

     

    (b)    The
      Sellers have delivered to the Buyer a copy of each written Material Contract
      and
      a written summary of each oral Material Contract. Except as described on
Schedule
      2.21(b):
      (i)
      each Material Contract is valid and binding on the Company or its applicable
      subsidiary, and, to the Knowledge of the Company, any other party thereto,
      and
      is in full force and effect and enforceable in accordance with its terms against
      the Company or its applicable subsidiary, and, to the Knowledge of the Company,
      any other party thereto, except as such enforceability may be limited by
      applicable bankruptcy, insolvency, fraudulent conveyance or similar laws
      affecting the enforcement of creditors’ rights generally and subject to general
      principles of equity (regardless of whether enforcement is sought in a
      proceeding at law or in equity); (ii) the Company or its applicable
      subsidiary, has performed all of its obligations under every Material Contract
      to which it is a party, and there exists no breach or default (or event that
      with notice or lapse of time would constitute a breach or default) on the part
      of the Company or its applicable subsidiary or, to the Knowledge of the Company,
      on the part of any other Person under any Material Contract; (iii) there
      has been no termination or written notice of default or, to the Knowledge of
      the
      Company, any threatened termination under any Material Contract; and (iv) to
      the
      Knowledge of the Company, no party to a Material Contract intends to terminate
      its relationship with the Company or any of its subsidiaries, as applicable,
      as
      a result of or in connection with the transactions contemplated by this
      Agreement.

     

    2.22  
         Customers;
      Suppliers.
      

     

    (a)    Set
      forth
      on Schedule
      2.22(a)
      is a
      complete list of each customer of the Company or its subsidiaries that accounted
      for more than $500,000 of
      revenues for the year ended December 31, 2005 (the “Material
      Customers”),
      which
      list indicates the amount of revenues attributable to each such Material
      Customer during the years ended December 31, 2004 and 2005. None of the Material
      Customers has, to the Knowledge of the Company, threatened, or notified the
      Company or any of the Company’s subsidiaries in writing of any intention, to
      terminate its relationship with the Company or its subsidiaries. Since the
      Latest Balance Sheet Date, there
      has
      been no materially adverse change in the relationship of the Company or its
      subsidiaries with any Material Customer and there has been no material reduction
      in the level of purchases with any Material Customer outside the ordinary course
      of business.

     

    (b)    Set
      forth
      on Schedule
      2.22(b)
      is a
      complete list of all suppliers, manufacturers and distributors with which the
      Company or any of its subsidiaries has any distributor, dealer or authorized
      service center Contract (“Suppliers”).
      None
      of the Suppliers has, to the Knowledge of the Company, threatened, or notified
      the Company or any of its subsidiaries in writing of any intention, to terminate
      or materially adversely alter its relationships with the Company or its
      subsidiaries. Since the Latest Balance Sheet Date, there has been no materially
      adverse change in the relationship of the Company or its subsidiaries with
      any
      Suppliers.

     

    2.23   
        Intellectual
      Property Rights.
      Schedule
      2.23
      identifies each material registered form of intellectual property that is owned
      by the Company or its subsidiaries. The Subsidiary or its subsidiaries has
      the
      right to use all intellectual property used by the Subsidiary and its
      subsidiaries in connection with the operation of the Business without infringing
      on or otherwise acting adversely to the rights or claimed rights of any Person,
      and, to the Knowledge of the Company, neither the Company nor any of its
      subsidiaries is obligated to pay any royalty or other consideration to any
      Person in connection with the use of any such intellectual property except
      as
      set forth in the Material Contracts or licenses for generally commercially
      available software. To the Knowledge of the Company, no other Person is
      infringing the intellectual property rights of the Company or its
      subsidiaries.

     

    
      
        
        

      

      
        24

        
          

        

      

      
        
        

      

    


    2.24  
         Illegal
      Payments.
      To the
      Knowledge of the Company, neither the Company nor any of its
      subsidiaries
      has: (i)
      used any funds of the Company or its subsidiaries for unlawful contributions,
      gifts, entertainment or other unlawful expenses, in each case, relating to
      political activity; or (ii) made any payment in violation of applicable Law
      to
      any foreign or domestic government official or employee or to any foreign or
      domestic political party or campaign or violated any provision of the Foreign
      Corrupt Practices Act of 1977, as amended.

     

    2.25  
         Insurance.
      Set
      forth on Schedule 2.25
      is a
      complete and accurate list of all primary, excess and umbrella policies, bonds
      and other forms of insurance currently owned or held by or on behalf, or
      providing insurance coverage to, the Company, its
      subsidiaries,
      the
      Business or the Company’s or
      its
      subsidiaries’
assets,
      managers, officers, employees or agents. All such policies are in full force
      and
      effect. Neither the Company nor
      its
      subsidiaries
      has
      received any written notice of default under any such policy or received written
      notice of any pending or threatened termination or cancellation, coverage
      limitation or reduction, or material premium increase with respect to any such
      policy. Schedule 2.25
      also
      sets forth a complete and accurate summary of all of the self-insurance coverage
      provided by or for the benefit of the Company or its subsidiaries. No letters
      of
      credit have been posted and no cash has been restricted to support any reserves
      for insurance.

     

    2.26 
         Bank
      Accounts and Powers of Attorney.
      Set
      forth on Schedule
      2.26
      is a
      list of (a) each bank, trust company and stock or other broker with which the
      Company or any of its subsidiaries has an account, credit line or safe deposit
      box of vault (collectively, “Bank
      Accounts”),
      (b)
      all Persons authorized to draw on, or to have access to, each of the Bank
      Accounts, and (c) all Persons authorized by proxies, powers of attorney or
      other
      like instruments to act on behalf of the Company or any of its
      subsidiaries.

     

    2.27 
         Brokers. Except
      for Morgan Keegan & Company Inc., whose fees and expenses will be borne
      entirely by the Sellers, none of the Sellers, the Company or any subsidiary
      of
      the Company has incurred or will incur any liability for brokers’ or finders’
fees or agents’ commissions in connection with this Agreement or the
      transactions contemplated hereby.

     

    ARTICLE
      III

    Representations
      and Warranties of the Buyer

    


    The
      Buyer
      represents and warrants to the Sellers and the Company as follows:

     

    3.1    Organization.
      The
      Buyer is a corporation duly organized, validly existing and in good standing
      under the laws of the State of Louisiana and
      has
      full power to own its properties and to conduct its business as presently
      conducted. The Buyer is duly authorized, qualified or licensed to do business
      and is in good standing in each state or jurisdiction in which its business
      or
      operations as presently conducted make such qualification necessary, except
      where the failure to be so qualified or to be in good standing would not have
      a
      Material Adverse Effect on the Buyer.

     

    
      
        
        

      

      
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    3.2    Authority.
      The
      Buyer has all requisite power and authority, to execute, deliver and perform
      under this Agreement and the other agreements, certificates and instruments
      to
      be executed by the Buyer in connection with or pursuant to this Agreement
      (collectively, the “Buyer
      Documents”).
      The
      execution, delivery and performance by the Buyer of this Agreement and each
      Buyer Document has been duly authorized by all necessary action on the part
      of
      the Buyer. This Agreement has been, and at the Closing the other Buyer Documents
      will be, duly executed and delivered by the Buyer. This Agreement is, and,
      upon
      execution and delivery by the Buyer at the Closing, each of the other Buyer
      Documents will be, a legal, valid and binding agreement of the Buyer,
      enforceable against the Buyer in accordance with its terms, except as such
      enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
      conveyance or similar laws affecting the enforcement of creditors’ rights
      generally and subject to general principles of equity (regardless of whether
      enforcement is sought in a proceeding at law or in equity).

     

    3.3    No
      Violation.
      The
      execution, delivery and performance of this Agreement and the Buyer Documents
      by
      the Buyer will not (a) conflict with or result in the breach of any term or
      provision of, (b) require consent, or (c) violate or constitute a default under
      any charter provision or bylaw or under any material agreement, order or Law
      to
      which the Buyer is a party or by which the Buyer is in any way bound or
      obligated, in each case that would prevent the Buyer from consummating the
      transactions contemplated by this Agreement.

     

    3.4    Governmental
      Consents.
      Except
      as required in connection with the HSR Act, no consent, approval, order or
      authorization of, or registration, qualification, designation, declaration
      or
      filing with, any Governmental Body is required on the part of the Buyer in
      connection with the sale and purchase of the Shares or any other transactions
      contemplated by this Agreement or the Buyer Documents.

     

    3.5    Securities
      Matters.
      The
      Buyer is acquiring the Shares for its own account and not with a view to their
      distribution within the meaning of Section 2(11) of the Act. The Buyer has
      sufficient knowledge and experience in financial and business matters so as
      to
      be capable of evaluating the merits and risks of its investment in the Shares,
      and the Buyer is capable of bearing the economic risk of such investment,
      including a complete loss thereof.

     

    3.6    Restricted
      Securities.
      The
      Buyer understands that the Shares constitute “restricted securities” within the
      meaning of Rule 144 under the Act and may not be sold, pledged or otherwise
      disposed of unless they are subsequently registered under the Act and applicable
      state securities laws or unless an exemption from registration is
      available.

     

    3.7    Brokers.
      The
      Buyer has not incurred any liability for brokers’ or finders’ fees or agents’
commissions in connection with this Agreement or the transactions contemplated
      hereby.

     

    3.8    No
      Reliance.
      The
      Buyer or its representatives have inspected and conducted such reasonable review
      and analysis (financial and otherwise) of the Company and its subsidiaries
      as
      desired by the Buyer. The purchase of the Shares by the Buyer and the
      consummation of the transactions contemplated hereunder by the Buyer are not
      done in reliance upon any warranty or representation by, or information from,
      any Seller, the Company or any subsidiary of the Company of any sort, oral
      or
      written, except the representations and warranties specifically set forth in
      this Agreement (including the Schedules and Exhibits hereto) and in any
      certificates required to be delivered to the Buyer by the Sellers or the Company
      hereunder and thereunder. Such purchase and consummation are instead done
      entirely on the basis of the Buyer’s own investigation, analysis, judgment and
      assessment of the present and potential value and earning power of the Company
      as well as those representations and warranties by the Sellers or the Company
      specifically set forth in this Agreement (including the Schedules and Exhibits
      hereto) and in any certificates required to be delivered to the Buyer by the
      Sellers or the Company hereunder and thereunder.

     

    
      
        
        

      

      
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    3.9    Legal
      Proceedings.
      There
      are no material lawsuits, legal proceedings, administrative enforcement
      proceedings or arbitration proceedings before any Governmental Body pending
      or,
      to the Buyer’s Knowledge, threatened against the Buyer that would adversely
      affect the Buyer’s performance under this Agreement or the consummation of the
      transactions contemplated hereby.

     

    3.10  
         Financing.
      The
      Buyer has sufficient funds available to pay all amounts required to be paid
      pursuant to Article I
      and to
      consummate the transactions contemplated by this Agreement.

     

    ARTICLE
      IV

    Covenants
      and Agreements

     

    4.1    Conduct
      of Business.
      Except
      as set forth on Schedule
      4.1,
      prior
      to the Closing, unless the Buyer otherwise consents in writing, the Company
      will
      and will cause its subsidiaries to:

     

    (a)    operate
      in the ordinary course of business and consistent with past practice and use
      their respective commercially reasonable efforts to preserve the goodwill of
      the
      Company, its subsidiaries and of each of their respective officers, employees,
      customers, suppliers, manufacturers, distributors and others having business
      dealings with the Company or its subsidiaries;

     

    (b)    use
      their
      commercially reasonable efforts to preserve intact the business organization
      of
      the Company and its subsidiaries, keep available the services of their
      respective present officers and key employees, consultants, advisors and
      managers and maintain satisfactory relationships with customers, agents,
      insurers, manufacturers, suppliers and other Persons having business
      relationships with the Company or its subsidiaries;

     

    (c)    not
      make
      any material expenditure, investment or commitment outside the ordinary course
      of business, consistent with past practice or enter into any material agreement
      or arrangement that would be a Material Contract if entered into prior to the
      date of this Agreement;

     

    (d)    maintain,
      on the same terms that exist as of the date hereof, all insurance policies
      and
      all Permits that are currently held by the Company and its subsidiaries to
      carry
      on the Business;

     

    (e)    maintain
      books of account and records consistent with past practice;

     

    
      
        
        

      

      
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    (f)    
not
      acquire any Person by merger, consolidation or acquisition of stock or assets
      or
      make any investment in any Person either by purchase of stock or securities,
      contributions to capital, property transfer or purchase of any material amount
      of property or assets (other than inventory, raw materials and supplies in
      the
      ordinary course of business and consistent with past practice);

     

    (g)    not
      amend
      the organizational documents of the Company or any of its subsidiaries, split,
      combine, subdivide or reclassify the Company’s or any of its subsidiaries’
membership or equity interests, or, except for the issuance of options under
      the
      Company’s Stock Option Plan to Persons who are Sellers, alter through merger,
      liquidation, reorganization, restructuring or in any other fashion the corporate
      structure or ownership of the Company or any of its subsidiaries;

     

    (h)    not
      make
      or change any election, change an annual accounting period, adopt or change
      any
      accounting method, file any amended Tax Return, enter into any closing
      agreement, settle any Tax claim or assessment relating to the Company or any
      of
      its subsidiaries, surrender any right to claim a refund of Taxes, consent to
      any
      extension or waiver of the limitation period applicable to any Tax claim or
      assessment relating to the Company or its subsidiaries or take any similar
      action relating to the filing of any Tax Return or the payment of any Tax,
      if
      such election, adoption, change, amendment, agreement, settlement, surrender,
      consent or other action would have the effect of materially increasing the
      Tax
      liability of the Company or any of its subsidiaries for any period beginning
      after the Closing Date (“Post
      Closing Period”);

     

    (i)    
not
      enter
      into any Material Contract with suppliers, distributors or manufacturers, unless
      such Contract is terminable by the Company or any of its subsidiaries, as
      applicable, on thirty (30) days’ notice or otherwise entered into in the
      ordinary course of business consistent with past practice; 

     

    (j)    
not
      enter
      into any noncompetition, exclusivity or most favored nation agreement that
      binds
      the Company or any of its subsidiaries;

     

    (k)    not
      enter
      into or amend any collective bargaining agreement; and

     

    (l)    
not
      agree
      to bear, pay or repay the tax liability of any Person receiving or holding
      Options after the date hereof.

     

    4.2    Access
      and Information.
      From
      and after the date hereof until the Closing Date or the earlier termination
      of
      this Agreement pursuant to Section
      8.1,
      the
      Company will permit the Buyer and its representatives, upon reasonable notice,
      to have reasonable access to the Company’s and its subsidiaries’ members,
      managers, officers, employees, agents, assets, properties, books, records and
      documents of or relating to the Business and the Company’s and its subsidiaries’
assets during normal business hours and will furnish to the Buyer such
      information, financial records and other documents as the Buyer may reasonably
      request. From and after the date hereof until the Closing Date or the earlier
      termination of this Agreement pursuant to Section
      8.1,
      the
      Company will permit the Buyer and its representatives reasonable access to
      the
      Company’s and its subsidiaries’ accountants and auditors for consultation or
      verification of any information obtained by the Buyer and will use its
      commercially reasonable efforts, and will cause its subsidiaries to use its
      commercially reasonable efforts, to cause such Persons to cooperate with the
      Buyer and its representatives in such consultations and in verifying such
      information. From
      and
      after the date hereof until the Closing Date or the earlier termination of
      this
      Agreement pursuant to Section 8.1, the Buyer shall not contact suppliers and
      customers of the Company and its subsidiaries without the prior consent of
      the
      Seller Representative, provided,
      however,
      that (i)
      the Buyer or its representatives may respond to unsolicited questions from
      customers and suppliers of the Company and its subsidiaries as long as such
      responses are consistent with an agreed upon communications plan approved by
      both the Seller Representative and the Buyer, and (ii) nothing in this Agreement
      shall be interpreted as limiting in any way the Buyer and its Affiliates from
      communicating freely with their customers and suppliers regarding matters other
      than the transactions contemplated by this Agreement.

     

    
      
        
        

      

      
        28

        
          

        

      

      
        
        

      

    


    4.3    Environmental
      Investigations.
      After
      the
      date hereof, the Buyer may not conduct any environmental testing or analysis
      of
      the soil, groundwater, surface water, or structures of the Real Property,
      without the prior written consent of the Seller Representative; provided,
      however, the Seller Representative agrees that the Buyer may conduct
      environmental testing or analysis after the date hereof, with the prior written
      consent of the Seller Representative, which consent shall not be unreasonably
      withheld, if, after the date hereof, (a) an event occurs or (b) information
      becomes known to the Buyer that was not disclosed in the Schedules to this
      Agreement or otherwise known to the Buyer on the date hereof, in any case with
      respect to the soil, groundwater, surface water or structures of the Real
      Property that the Buyer reasonably believes could (i) result in a Material
      Adverse Effect on the Company or (ii) cause a representation or warranty of
      the
      Company to not be true and correct in all material respects (such testing
      hereinafter referred to as “Permitted
      Testing”).
      The
      cost and expenses of any Permitted Testing shall be borne by the Buyer. The
      Sellers will assist the Buyer with securing approval for any Permitted Testing
      to be performed on those Real Properties that are leased. Should the landlord
      under any such leased property refuse to permit Permitted Testing on the same,
      the Buyer will not be allowed to conduct Permitted Testing on such Real
      Property. At least three (3) business days prior to conducting Permitted
      Testing, the Buyer will provide to the Seller Representative for review and
      approval a written scope of work from its consultant, along with a plot plan
      or
      map depicting the proposed boring or sample locations. Upon written request,
      the
      Buyer shall furnish the Seller Representative with copies of all Permitted
      Testing reports prepared in connection with any of the Permitted
      Testing.

     

    4.4    Supplemental
      Disclosure.
      The
      Sellers will promptly supplement or amend each of the Schedules hereto with
      respect to any matter that arises or is discovered after the date hereof that,
      if existing or known at the date hereof, would have been required to be set
      forth or listed in the Schedules hereto; provided,
      however,
      that for
      purposes of determining whether the condition in Section
      5.1(a)
      has been
      satisfied or is capable of being satisfied, any such supplemental or amended
      disclosure will not be deemed to have been disclosed to the Buyer unless the
      Buyer otherwise expressly consents in writing. If the Closing occurs, Buyer
      will
      not have any right to indemnification for any event or occurrence to the extent
      such event or occurrence was disclosed in an updated Schedule provided by the
      Sellers or the Company pursuant to this Section
      4.4;
      provided,
      however,
      that
      this sentence does not affect the rights of the Buyer, the Company or any of
      the
      Company’s Affiliates, successors or assigns under the Prior Purchase
      Agreement.

     

    4.5    Assistance
      with Permits and Filings.
      Subject
      to such confidentiality restrictions as may be reasonably requested,
the
      Sellers will furnish, and will cause the Company and its subsidiaries to
      furnish, the Buyer with all information concerning the Sellers, the Company
      or
      its subsidiaries that is required for inclusion in any application or filing
      made by the Buyer to any Governmental Body in connection with the transactions
      contemplated by this Agreement. 

     

    
      
        
        

      

      
        29

        
          

        

      

      
        
        

      

    


    4.6    Fulfillment
      of Conditions by the Sellers.
      The
      Sellers agree not to take any action that would cause the conditions on the
      obligations of the parties to effect the transactions contemplated hereby not
      to
      be fulfilled, including without limitation by taking or causing to be taken
      any
      action that would cause the representations and warranties made by the Sellers
      herein not to be true and correct as of the Closing.

     

    4.7    Fulfillment
      of Conditions by the Buyer.
      The
      Buyer agrees not to take any action that would cause the conditions on the
      obligations of the parties to effect the transactions contemplated hereby not
      to
      be fulfilled, including without limitation by taking or causing to be taken
      any
      action that would cause the representations and warranties made by the Buyer
      herein not to be true and correct as of the Closing.

     

    4.8    Publicity.
      Except
      as may be required to comply with the requirements of any applicable Law or
      listing standard, neither the Buyer, on the one hand, nor the Company or any
      Seller, on the other hand, will issue any press release or other public
      announcement relating to the subject matter of this Agreement or the
      transactions contemplated hereby without the prior approval (which approval
      will
      not be unreasonably withheld or delayed) of the Seller Representative or the
      Buyer, respectively.

     

    4.9    Transaction
      Costs.
      The
      Sellers will pay all transaction
      costs and expenses (including legal, accounting and other professional fees)
      incurred by the Company or any Seller in connection with the
      negotiation, execution and performance of this Agreement and the transactions
      contemplated hereby. The
      Buyer
      will pay all transaction costs and expenses (including legal, accounting and
      other professional fees) that it incurs in connection with the
      negotiation, execution and performance of this Agreement and the transactions
      contemplated hereby. 

     

    4.10  
        No-Shop
      Provisions.
      Each
Seller
      hereby
      covenants and agrees that, unless this Agreement is terminated pursuant to
      Section
      8.1:
      (i) it
      will not, and will not permit any of its Affiliates (including the Company
      or
      any of its subsidiaries) to, directly or indirectly (through agents or
      otherwise), initiate, encourage or solicit (including by way of furnishing
      information or assistance), or take any other action to facilitate, any
      inquiries or the making of any proposal relating to, or that may reasonably
      be
      expected to lead to, any Competing Transaction (as defined below), or enter
      into
      or engage in any discussions or negotiations with any Person in furtherance
      of
      such inquiries or to obtain a Competing Transaction, or endorse or agree to
      endorse any Competing Transaction, or authorize or permit any manager, director,
      officer or employee of the Company, any subsidiary of the Company or any Seller,
      or any investment banker, financial advisor, attorney, accountant or other
      representative retained by any Seller
      or any
      of their Affiliates (including the Company or any of its subsidiaries) to take
      any such action; and (ii) it will promptly notify the Buyer of all relevant
      terms of any such inquiries and proposals received by it or any of its
      Affiliates (including the Company or any of its subsidiaries) or by any such
      manager, director, officer, employee, investment banker, financial advisor,
      attorney, accountant or other representative relating to any such matters,
      and
      if such inquiry or proposal is in writing, it will promptly deliver or cause
      to
      be delivered to the Buyer a copy of such inquiry or proposal. For purposes
      of
      this Agreement, “Competing
      Transaction”
means
      any of the following (other than the transactions contemplated by this
      Agreement) involving the Company or any of its subsidiaries: (i) any merger,
      consolidation, share exchange, business combination or similar transaction;
      (ii)
      any sale, lease, exchange, mortgage, pledge, transfer or other disposition
      of
      all or substantially all of the assets of the Company or any of its subsidiaries
      (other than sales of inventory in the ordinary course of business and consistent
      with past practice); or (iii) any offer, sale or other transfer of any
      equity interests in the Company or any of its subsidiaries.

     

    
      
        
        

      

      
        30

        
          

        

      

      
        
        

      

    


    4.11 
         Nondisclosure.
      Each
      Seller acknowledges and agrees that all customer, prospect and marketing lists,
      sales data, intellectual property and other confidential information of the
      Company and its subsidiaries (collectively, “Confidential
      Information”)
      are
      valuable assets constituting part of the assets of the Company and, following
      the Closing, will be owned exclusively by the Buyer, the Company or its
      subsidiaries. Each Seller agrees to, and agrees to use reasonable efforts to
      cause its representatives to, treat the Confidential Information, together
      with
      any other confidential information furnished to it by the Buyer, as confidential
      and not to make use of such information for its own purposes or for the benefit
      of any other Person (other than the Company or its subsidiaries prior to the
      Closing or the Buyer after the Closing). The parties agree that the terms of
      the
      confidentiality agreement between the Seller Representative and Kirby
      Corporation, dated December 27, 2005, will remain in force until the
      Closing.

     

    4.12  
        Release
      by the Sellers.
      Effective
      upon the Closing, each Seller, for itself and its successors and assigns, hereby
      fully and unconditionally releases and forever discharges and holds harmless
      the
      Company and its subsidiaries and their respective directors, officers, managers,
      employees, agents, Affiliates, successors and assigns from any and all claims,
      demands, losses, costs, expenses (including reasonable attorneys’ fees and
      expenses), obligations, Liabilities and/or damages of every kind and nature
      whatsoever, whether now existing, known or unknown, that such Seller may now
      have or may hereafter claim to have against the Company or any of its
      subsidiaries or any of such directors, officers, managers, employees, agents,
      Affiliates, successors or assigns, relating to events or circumstances existing
      or occurring on or prior to the Closing Date and that relate in any way,
      directly or indirectly, to the Company or any of its subsidiaries, this
      Agreement or the transactions contemplated hereby; provided,
      however,
      that
      the foregoing release will not affect any obligations of the Buyer to the
      Sellers under this Agreement, the Ancillary Documents or the Buyer Documents;
      provided
      further,
      that
      the foregoing release does not apply to the rights any Seller or any of its
      Affiliates may have (a) in its capacity as a lender under the Credit Agreement,
      dated as of February 9, 2005, by and among the Subsidiary, Antares Capital
      Corporation, Keybank National Association and the other financial institutions
      party thereto, including all amendments, extensions, renewals and modifications
      thereto (the “Credit
      Agreement”),
      and
      the documents, instruments and agreements entered into in connection with such
      Credit Agreement, or (b) under the Note and Warrant Purchase Agreement, dated
      February 9, 2005, by and among the Company, the Subsidiary, the
      Warrantholder and Golub Capital Incorporated, including all amendments,
      extensions, renewals and modifications thereto (the “Note
      and Warrant Purchase Agreement”),
      and
      the documents, instruments and agreements entered into in connection with such
      Note and Warrant Purchase Agreement.

     

    
      
        
        

      

      
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    4.13  
         Certain
      Tax Matters.
      The
      following provisions shall govern the allocation of responsibility as between
      the Buyer on the one hand and the Sellers on the other hand for certain Tax
      matters following the Closing:

     

    (a)    Tax
      Returns.
      The
      following provisions shall govern the filing of Tax Returns.

     

    (i)    
The
      Sellers and the Buyer will, to the extent permitted by applicable Law, elect
      with the appropriate Taxing Authority to close the periods of the Company and
      subsidiaries as of and including the Closing Date. In any case in which
      applicable Law does not require or permit such a Tax period of the Company
      and
      its subsidiaries to be closed as of and including the Closing Date, any Tax
      pertaining to a period that begins on or before the Closing Date and ends after
      the Closing Date (a “Straddle
      Period”)
      shall
      be determined in accordance with the provisions of this Section 4.13(a).

     

    (ii)    For
      purposes of this Agreement, all Income Taxes of the Company and any of its
      subsidiaries that relate to a Straddle Period will be allocated between the
      Pre-Closing Tax Period portion of the Straddle Period (the “Pre-Closing
      Straddle Period”)
      and
      the post-Closing portion of the Straddle Period. The Income Taxes allocated
      to
      the Pre-Closing Straddle Period will be deemed equal to the amount of Income
      Taxes which would be payable if the relevant Tax period ended at the end of
      the
      day on the Closing Date and shall be determined by an interim closing of the
      books as of the close of business on the Closing Date. The portion of Tax
      related to the portion of the Straddle Period that extends after the Closing
      Date to the end of the Straddle Period (the “Post-Closing
      Straddle Period”)
      shall
      be calculated in a corresponding manner. For purposes of this clause (ii),
      any
      exemption, deduction, credit or other item that is calculated on an annual
      basis
      will be allocated between the Pre-Closing Straddle Period and the Post-Closing
      Straddle Period on a pro rata basis by multiplying the total amount of such
      item
      for the Straddle Period by a fraction, the numerator of which is the number
      of
      calendar days in the Pre-Closing Straddle Period and the denominator of which
      is
      the number of calendar days in the Straddle Period.
      If a net
      operating loss results for a Pre-Closing Straddle Period upon an interim closing
      of the books as of the end of the day on the Closing Date, then the Buyer shall
      pay or cause to be paid to the Sellers the net actual reduction in Income Taxes
      for the Post-Closing Straddle Period attributable to such net operating loss
      upon the filing of the relevant Straddle Period Tax Return (without regard
      to
      extensions).

     

    (iii)   The
      Sellers shall cause the Company and its subsidiaries to properly and correctly
      prepare and timely file any and all Tax Returns, the due date of which
      (including extensions) is on or before the Closing Date, which are required
      to
      be filed for, by, on behalf of or with respect to the Company and its
      subsidiaries with the appropriate Taxing Authority and to pay to the appropriate
      Taxing Authority the amount of Taxes shown to be due on such Tax Returns.
      Sellers shall deliver a copy of any Tax Return required to be filed by it under
      this Section
      4.13(a)(iii)
      to the
      Buyer within ten (10) calendar days after filing such Tax Return.

     

    
      
        
        

      

      
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    (iv)   (A)   The
      Seller Representative, on behalf of the Company and its subsidiaries, shall
      properly and correctly prepare or cause to be properly and correctly prepared
      (which may include direction to the Company or any of its subsidiaries that
      it
      undertake such preparation under the direction of the Seller Representative)
      the
      Income Tax Returns for the Company and its subsidiaries for the period (I)
      ending on December 31, 2005 (the “2005
      Income Tax Returns”)
      and
      (II) commencing on January 1, 2005, and ending on and including the Closing
      Date
      (the “Stub
      Period Returns”).
      The
      Buyer and the Seller Representative acknowledge and agree that the Stub Period
      Returns will include deductions from the Company’s and its subsidiaries’ income
      for the items set forth on Schedule 4.13(a)(iv)
      (collectively, the “Deductions”).
      The
      Sellers will be entitled to any refunds or overpayments of Income Taxes with
      respect to such Income Tax Returns when received. The Sellers will pay to the
      Buyer any increased Income Taxes payable by the Company as the result of any
      Deductions that are disallowed. The Buyer shall pay or cause to be paid all
      Income Taxes imposed on the Company and its subsidiaries shown as due and owing
      on such Income Tax Returns. The Sellers shall reimburse the Buyer for any such
      Income Taxes (or in the case of a Straddle Period (as defined above), Income
      Taxes attributable to the Pre-Closing Straddle Period (as described above))
      paid, or caused to be paid, by the Buyer pursuant to the preceding sentence.
      

     

    (B)    The
      Seller Representative may file the 2005 Income Tax Returns and Stub Period
      Returns at anytime prior to the due date for filing thereof, including
      extensions; provided
      that the
      Seller Representative complies with the provisions of this Section 4.13(a)(iv)(B).
      The
      Seller Representative shall provide final drafts of each 2005 Income Tax Return
      and Stub Period Return to the Buyer for its review and approval (which approval
      will not be unreasonably withheld) not less than thirty (30) days prior to
      the
      date on which such 2005 Income Tax Return or Stub Period Return is due to be
      filed with the appropriate Governmental Body, including extensions. It will
      be
      unreasonable for the Buyer to withhold its approval of such Income Tax Return
      if
      the filing of such Tax Return (or the reporting of any item thereon) would
      not
      subject the Buyer, the Company or any of the Company’s subsidiaries, or any of
      their respective employees, officers, directors, managers, members or
      shareholders to any fine or penalty, and the reporting of such item is
      consistent with this Section 4.13(a).
      If the
      Buyer does not respond within twenty (20) days after delivery of such 2005
      Income Tax Returns or Stub Period Returns, the Buyer will be deemed to have
      approved such Income Tax Returns, and the Buyer shall timely file or cause
      to be
      timely filed such Income Tax Returns on behalf of the Company and its
      subsidiaries. If the Buyer, within twenty (20) days after delivery of such
      2005
      Income Tax Returns or Stub Period Returns, notifies the Seller Representative
      in
      writing that it objects to any item in any 2005 Income Tax Return or Stub Period
      Return, the Buyer and the Seller Representative shall negotiate in good faith
      to
      attempt to resolve any issue arising as a result of such review. If the Seller
      Representative and the Buyer are unable to resolve such dispute by the earlier
      of (i) fifteen (15) days after Seller Representative’s receipt of the written
      notice of objection, or (ii) five (5) days before the due date for filing the
      Stub Period Returns or 2005 Income Tax Returns, then the Buyer shall timely
      file, or cause to be timely filed, such Income Tax Returns; provided
      that
      (I) the Sellers’ obligations to reimburse the Buyer for Income Taxes shown
      as due and owing on such Income Tax Returns will be determined by taking into
      account the resolution of such item and ignoring the reporting of such item
      on
      the Income Tax Return as filed and (II) the Buyer shall pay to the Sellers
      the excess (if any) of the (x) amount of Seller Refunds (as defined below)
      calculated by taking into account the resolution of such item and ignoring
      the
      reporting of such item on the Income Tax Returns as filed, over (y) amount
      of Seller Refunds calculated based on the Income Tax Returns as filed.
      Furthermore, the Seller Representative and the Buyer shall jointly engage the
      Accountant to make its final independent determination with respect to the
      items
      in dispute and the amounts related to those items, such determination to be
      consistent with Section
      4.13(a).
      Any
      expenses relating to the engagement of the Accountant shall be shared equally
      by
      the Buyer, on the one hand, and the Sellers, on the other hand. The
      determination of the Accountant shall be final and binding on the Buyer and
      the
      Sellers.

     

    
      
        
        

      

      
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    (C)    Notwithstanding
      anything to the contrary herein, the Sellers will not be liable to any Buyer
      Party for any Income Taxes of the Company or any of its subsidiaries resulting
      from: (I)  actions taken or caused to be taken by the Buyer or any of
      its Affiliates (including the Company or any of its subsidiaries) after the
      Closing on the Closing Date, (II) actions initiated by the Buyer at the Closing
      that are not contemplated by this Agreement or (III) the manner in which
      the Buyer or any of its Affiliates finances the transactions contemplated by
      this Agreement.

     

    (v)    The
      Buyer, the Company and the Company’s subsidiaries shall carry back any item of
      loss, deduction, or credit (including any such items resulting from any
      Deductions) on the Stub Period Returns to the fullest extent permitted by Law
      (a
“Carryback”),
      and
      the Seller Representative, on behalf of the Company and its subsidiaries shall
      prepare or cause to be prepared (which may include direction to the Company
      that
      it undertake such preparation under the direction of the Seller Representative)
      and the Buyer shall file or cause to be filed as soon as reasonably possible,
      any claim for refund (including by filing IRS Form 1139, IRS Form 4466
      or any successor form, and any comparable foreign, state, or local forms) or
      amended Income Tax Returns to effect such Carryback as part of, and at the
      same
      time as, the preparation and filing of the Stub Period Returns (and the Buyer
      shall have the same review and approval rights described in Section 4.13(a)(iv)(A)).

     

    
      
        
        

      

      
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    (vi)   Any
      refund or credit of Income Taxes paid by the Company or any of its subsidiaries
      for any period ending on or before the Closing Date (a “Pre-Closing
      Tax Period”),
      including refunds of Income Taxes that are received by the Buyer, the Company,
      or any of their respective Affiliates resulting from a Carryback (collectively,
      “Seller
      Refunds”)
      will
      be for the account of the Sellers. The Buyer shall, or shall cause its
      Affiliates to, forward to the Seller Representative, on behalf of the Sellers,
      any Seller Refunds within five days after such refund is received or in the
      case
      of a credit within five days after the credit is allowed or applied against
      other Income Tax liabilities. The parties shall treat any payments under the
      preceding sentence as an adjustment to the proceeds received by the Sellers
      pursuant to Article II,
      unless
      otherwise required by Law. Other than as provided in Section 4.13(a)(iv),
      at the
      Seller Representative’s request, the Buyer shall cooperate with the Seller
      Representative in obtaining such refunds or credit, including through the filing
      of amended Income Tax Returns or refund claims as prepared by the Seller
      Representative, at the Sellers’ expense.

     

    (vii)  
        The
      Buyer
      shall cause to be properly and correctly prepared and timely filed each Income
      Tax Return for the Company and its subsidiaries for the Straddle Period with
      the
      appropriate Taxing Authority and to pay to the appropriate Taxing Authority
      the
      amount of Income Taxes shown to be due on such Income Tax Returns. With respect
      to an Income Tax Return covering a Straddle Period, the Buyer shall determine
      the portion of the Income Taxes shown as due on such Income Tax Return that
      is
      allocable to a Pre-Closing Straddle Period in accordance with Section 4.12(a)(ii),
      and set
      forth its calculation in a statement (“Statement”)
      prepared by the Buyer. The Buyer shall deliver a copy of any such Income Tax
      Return required to be filed by it pursuant to this Section 4.13(a)(vii)
      and any
      related Statement to the Seller Representative at least thirty (30) calendar
      days before filing such Income Tax Return.

     

    (viii) 
         All
      Income Tax Returns referred to in Section 4.13(a)
      shall,
      subject to Section
      4.13(a)(iv),
      be
      prepared (x) on a basis consistent with past custom and practices of the
      Company and its subsidiaries to the extent permitted under applicable Law,
      and
      (y) to the extent any items are not covered by past practices, in
      accordance with reasonable Tax accounting practices. Without limiting the
      foregoing, the Income Tax Returns shall be prepared without making or changing
      any election, changing an annual accounting period (other than an annual
      accounting period that is terminated at the end of the day on the Closing Date
      as a result of the transactions contemplated by this Agreement under applicable
      Law or pursuant to Section
      4.13(a)(i)),
      or
      adopting or changing any accounting method.

     

    
      
        
        

      

      
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    (ix)    The
      amount of Income Taxes shown to be due on any Income Tax Return and any
      Statement described in Section 4.13(a)(vii)
      shall be
      final and binding on the Sellers, unless Seller Representative shall have
      delivered to the Buyer (within twenty (20) days after the date of Seller
      Representative’s receipt of the Tax Return and any related Statement) a written
      report (the “Written
      Report”)
      containing all changes that Seller Representative proposes to make to the Tax
      Return and any related Statement. The Buyer and Seller Representative shall
      undertake in good faith to resolve any issues raised in any such Written Report
      before the due date (including any extension thereof) for filing the Tax Return
      and mutually consent to the filing of such Tax Return and, if applicable, to
      agree on the determination set forth in the Statement. If Seller Representative
      and the Buyer are unable to resolve any dispute by the earlier of
      (i) fifteen (15) days after Buyer’s receipt of Seller Representative’s
      Written Report, or (ii) five (5) days before the due date for filing of the
      Tax Return in question (including any extension thereof), Seller Representative
      and the Buyer shall jointly engage the Accountant to make its independent
      determination with respect to the items in dispute and the amounts related
      to
      those items, such determination to be consistent with Section 4.13(a)(vii).
      Any
      expenses relating to engagement of the Accountant shall be shared equally by
      the
      Buyer and the Sellers. The determination by the Accountant shall be final and
      binding on Buyer and Sellers. Notwithstanding the foregoing, nothing in this
      Section 4.13(a)(ix)
      shall
      prohibit the Buyer from causing the timely filing of any Income Tax Returns
      required to be filed under Section 4.13(a)(vii),
      but the
      Buyer shall file, or cause to be filed, amended Income Tax Returns to the extent
      necessary to reflect the Parties’ resolution pursuant to the procedures set
      forth in this Section 4.13(a)(ix).
      In the
      case of any Income Tax Return required to be filed by Buyer under Section 4.13(a)(vii),
      the
      Buyer shall pay or cause to be paid all Income Taxes imposed on the Company
      and
      its subsidiaries shown as due and owing on such Income Tax Returns.
      The
      Sellers shall reimburse the Buyer for any Income Taxes attributable to the
      Pre-Closing Straddle Period as determined pursuant to the procedures described
      herein.

     

    (x)    
In
      connection with the preparation of Tax Returns, audit examinations and any
      administrative or judicial proceedings relating to the Tax liabilities imposed
      on the Company and its subsidiaries for all Pre-Closing Tax Periods or Straddle
      Periods, the Buyer, the Company and its subsidiaries, on the one hand, and
      Seller Representative, on the other hand, shall reasonably cooperate with each
      other, including the furnishing or making available during normal business
      hours
      of records, personnel (as reasonably required), books of accounts and other
      materials reasonably necessary or helpful for the preparation of such Tax
      Returns, the conduct of audit examinations or the defense of claims by Taxing
      Authorities as to the imposition of Taxes; provided,
      however,
      the
      party requesting assistance shall pay the reasonable out-of-pocket expenses
      incurred by the party providing such assistance; provided,
      further,
      no
      party will be required to provide assistance at times or in amounts that would
      unreasonably interfere with the business and operations of such
      party.

     

    (xi)    Neither
      the Buyer nor any of its Affiliates shall amend, refile, revoke or otherwise
      modify any Tax Return or Tax election of the Company or any of its subsidiaries
      relating or otherwise covering any period ending on or before the Closing Date
      that would, or would reasonably be expected to, increase Taxes for which the
      Sellers are responsible under this Agreement without the prior written consent
      of Seller Representative, which consent will not be unreasonably withheld or
      delayed.

     

    (b)    Tax
      Sharing Agreements.
      All tax
      sharing or similar agreements between the Company or any of its subsidiaries,
      on
      the one hand, and another of the Company’s subsidiaries, on the other hand,
      shall be cancelled on or before the Closing Date and neither the Company nor
      any
      of its subsidiaries shall have any liability thereunder.

     

    
      
        
        

      

      
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    (c)    Nature
      of Payments.
      Any
      payment pursuant to Section 6.1
      or this
Section 4.13
      shall be
      treated for Tax purposes as an adjustment to the Purchase Price unless otherwise
      required by applicable law.

     

    (d)    Transfer
      Taxes.
      All
      transfer, documentary, sales, use, stamp, registration and other such Taxes
      and
      fees (including any penalties and interest) incurred in connection with this
      Agreement (the “Transfer
      Taxes”)
      shall
      be paid by Sellers when due, and Seller Representative will, at its own expense,
      file all necessary Tax Returns and other documentation with respect to all
      such
      Transfer Taxes, and, if required by applicable law, Seller Representative will
      join in the execution of any such Tax Returns and other
      documentation.

     

    (e)    Statute
      of Limitations.
      Notwithstanding anything in this Agreement to the contrary, the provisions
      of
      this Section 4.13
      shall
      survive for the full period of all applicable statutes of limitations (giving
      effect to any waiver, mitigation or extension thereof); provided
      that
      claims are made by the indemnified party prior to the expiration of the
      applicable statute of limitations (giving effect to any waiver, mitigation
      or
      extension thereof).

     

    4.14  
        Records.
      With
      respect to the financial books and records and minute books of the Company
      and
      its subsidiaries relating to matters on or prior to the Closing Date:
      (a) for a period of five (5) years after the Closing Date, the Buyer shall
      not cause or permit their destruction or disposal without first offering to
      surrender them to the Seller Representative, and (b) where there is
      legitimate, non-competitive purpose, including, without limitation, an audit
      of
      any Seller by the IRS or any other Taxing Authority, the Buyer shall allow
      such
      Seller and its representatives access to such books and records during regular
      business hours upon reasonable prior request from such Seller.

     

    4.15  
         Indemnification.
      

     

    (a)    For
      six
      (6) years following the Closing Date, the Buyer agrees to indemnify each of
      the
      present and former directors, officers and employees of the Company or any
      of
      its subsidiaries to the same extent as is currently provided for such Persons
      under the certificates of incorporation, articles of organization, bylaws or
      similar organizational documents of the Company or any of its subsidiaries
      or
      under indemnification agreements, if any, in existence and effect on the date
      hereof, for acts or omissions occurring on or prior to the Closing in such
      capacities.

     

    (b)    The
      provisions of this Section
      4.15 are
      intended to be for the benefit of, and will be enforceable by, each indemnified
      party or insured Person, his or her heirs and his or her representatives and
      are
      in addition to, and not in substitution for, any other right to indemnification
      or contribution that any such Person may have by contract or
      otherwise.

     

    4.16   
        HSR.

     

    
      
        
        

      

      
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    (a)    The
      Company and the Buyer shall, as promptly as practicable, but in no event later
      than three (3) business days following the execution and delivery of this
      Agreement, submit all requisite documents and notifications required by Title
      II
      of the HSR Act, and the rules and regulations promulgated thereunder (the
“HSR
      Filing”)
      and
      thereafter provide any supplemental information reasonably requested in
      connection therewith pursuant to the HSR Act and make any similar filing with
      any other Governmental Body for which such filing is required. Any such filing
      or supplemental information will be in substantial compliance with the
      requirements of the HSR Act or other applicable antitrust regulation. Subject
      to
      such confidentiality restrictions as may be reasonably requested, the Company
      and the Buyer shall furnish to the other such necessary information and
      reasonable assistance as the other may request in connection with its
      preparation of any filing or submission that is necessary under the HSR Act
      or
      other applicable antitrust regulation. The Company and the Buyer shall request
      early termination of the applicable waiting period under the HSR Act and any
      other applicable antitrust regulation. Each of the Company and the Buyer, will
      promptly inform the other party of any material communication received by such
      party from any Governmental Body in respect of the HSR Filing. The Buyer shall
      pay all filing fees under the HSR Act.

     

    (b)    Subject
      to the terms and conditions of this Agreement, each of the parties hereto agrees
      to use its reasonable best efforts, to take, or cause to be taken, all
      reasonable action and to do, or cause to be done, all things reasonably
      necessary and appropriate to consummate and make effective the transactions
      contemplated by this Agreement. Notwithstanding anything to the contrary
      contained in this Agreement, neither the Company, any subsidiary of the Company,
      or any of their respective Affiliates, on the one hand, nor the Buyer or any
      of
      its Affiliates, on the other hand, shall be required to divest themselves of
      any
      assets or properties or agree to limit the ownership or operation of the
      Company, any subsidiary of the Company or any of their respective Affiliates,
      on
      the one hand, nor the Buyer or any of its Affiliates, on the other hand, of
      any
      assets or properties, including, without limitation, the Shares or any of the
      assets owned by the Company or any of its subsidiaries.

     

    4.17  
         Employee
      Benefit Arrangements.
      The
      Buyer agrees that the individuals who are employed by the Company or any of
      its
      subsidiaries as of the Closing Date (the “Company
      Employees”)
      shall,
      for so long as they continue to be full-time employees of the Company or any
      of
      its subsidiaries, be eligible to receive employee benefits that are
      substantially comparable to those benefits provided to the Company Employees
      under the Employee Benefit Plans in effect immediately prior to the Closing
      Date. The Buyer will ensure that any employee benefit plans or programs it
      adopts with respect to the Company Employees treat employment with the Company
      or any of its subsidiaries prior to the Closing Date the same as employment
      with
      the Buyer, the Company or any of its subsidiaries from and after the Closing
      Date for purposes of eligibility and vesting (including, without limitation,
      the
      satisfaction of any waiting periods under any welfare benefit plans maintained
      by the Buyer (the “Buyer
      Welfare Plans”))
      and,
      for purposes of any vacation plan or policy it adopts with respect to the
      Company Employees, benefit accrual. No pre-existing condition limitations,
      exclusions or waiting periods applicable with respect to life and accidental
      death and dismemberment insurance, disability, sickness and accident and medical
      benefits under the Buyer Welfare Plans shall apply to Company Employees to
      the
      extent that such limitations, exclusions or waiting periods exceed those in
      effect under the welfare benefit plans maintained by the Company or any of
      its
      subsidiaries as of the Closing Date. The Buyer Welfare Plans in which a Company
      Employee participates after the Closing Date shall recognize, for purposes
      of
      satisfying any deductible, co-pays and out-of-pocket maximums during 2006,
      any
      payment made by such Company Employee in 2006 prior to the Closing Date toward
      deductibles, co-pays and out-of-pocket maximums in any welfare plan of the
      Company or any of its subsidiaries. Notwithstanding the foregoing, from and
      after the Closing Date, the Buyer, the Company and the Company’s subsidiaries
      will have sole discretion over employment decisions with respect to Company
      Employees, will not be obligated to continue the employment of any Company
      Employee and will have the right to amend, modify or terminate any and all
      employee benefit plans, programs or arrangements in which a Company Employee
      participates.

     

    
      
        
        

      

      
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    ARTICLE
      V

    Closing
      Conditions

    


    5.1    Conditions
      to Obligations of the Buyer.
      The
      obligations of the Buyer under this Agreement are subject to the satisfaction
      at
      or prior to the Closing of the following conditions, but compliance with any
      such conditions may be waived by the Buyer in writing:

     

    (a)    All
      representations and warranties of the Company and the Sellers
      contained in this Agreement will be true and correct in all material respects
      (if not qualified by materiality including, without limitation, Material Adverse
      Effect) or in all respects (if qualified by materiality including, without
      limitation, Material Adverse Effect) at and as of the Closing with the same
      effect as though such representations and warranties were made at and as of
      the
      Closing.

     

    (b)    The
      Company and the Sellers
      will
      have performed and complied in all material respects with all the covenants
      and
      agreements required by this Agreement to be performed or complied with by them
      at or prior to the Closing, including, without limitation, the delivery of
      all
      items required to be delivered by them pursuant to Sections
      1.5 (b),
      (e),
      (f),
      (m),
      (n),
      (o),
      (p),
      (r),
      (s),
      (t),
      (u),
      and
(x).

     

    (c)    All
      contractual and governmental consents, notices, approvals, orders or
      authorizations listed on Schedule
      5.1(c)
      will
      have been obtained or given, as applicable. Without
      limiting the generality of the foregoing, all filings pursuant to the HSR Act
      will have been made by the Buyer, the Sellers and their respective Affiliates
      and the required waiting period under the HSR Act will have expired or been
      terminated.

     

    (d)    As
      of the
      Closing Date, there will be no pending
      action or proceeding before any court of competent jurisdiction or other
      Governmental Body by any Person seeking to enjoin or prohibit any material
      aspect of the operation of the Business or the consummation of the transactions
      contemplated by this Agreement and no such action or proceeding seeking to
      enjoin or prohibit the consummation of the transactions contemplated by this
      Agreement will have been threatened in writing.

     

    5.2    Conditions
      to Obligations of the Sellers.
      The
      obligations of the Sellers
      under
      this Agreement are subject to the satisfaction at or prior to the Closing of
      the
      following conditions, but compliance with any such conditions may be waived
      by
      the Seller
      Representative
      in
      writing:

     

    (a)    All
      representations and warranties of the Buyer contained in this Agreement will
      be
      true and correct in all material respects (if not qualified by materiality
      including, without limitation, Material Adverse Effect) or in all respects
      (if
      qualified by materiality, including, without limitation, Material Adverse
      Effect) at and as of the Closing with the same effect as though such
      representations and warranties were made at and as of the Closing.

     

    
      
        
        

      

      
        39

        
          

        

      

      
        
        

      

    


    (b)    The
      Buyer
      will have performed and complied in all material respects with the covenants
      and
      agreements required by this Agreement to be performed or complied with by it
      at
      or prior to the Closing, including without limitation the delivery of all items
      required to be delivered by the Buyer pursuant to Sections
      1.5 (a),
      (c),
      (d),
      (p),
      (q)
      and
(y).

     

    (c)    All
      HSR
      Filings will have been made by the Buyer, the Sellers and their respective
      Affiliates and the required period under the HSR Act will have expired or been
      terminated.

     

    (d)    As
      of the
      Closing Date, there will be no pending action or proceeding before any court
      of
      competent jurisdiction or other Governmental Body by any Person seeking to
      enjoin or prohibit any material aspect of the operation of the Business or
      the
      consummation of the transactions contemplated by this Agreement and no such
      action or proceeding
      seeking
      to enjoin or prohibit the consummation of the transactions contemplated by
      this
      Agreement
      will
      have been threatened in writing.

     

    ARTICLE
      VI

    Indemnification

    


    6.1    Indemnification
      of the Buyer.
      Notwithstanding any investigation by the Buyer or its representatives, the
      Sellers, jointly and severally, (but only severally to the extent that proceeds
      other than amounts in the Escrow Account are sought) will indemnify and hold
      the
      Buyer, its Affiliates (including, after the Closing, the Company and its
      subsidiaries) and their respective managers, directors, officers, employees
      and
      agents (collectively, the “Buyer
      Parties”)
      harmless from any and all Liabilities, obligations, claims, contingencies,
      damages, costs and expenses, including all court costs, litigation expenses
      and
      reasonable attorneys’ fees (collectively, “Losses”),
      that
      any Buyer Party actually incurs as a result of or relating to:

     

    (a)    the
      breach of any representation or warranty made by the Company or the Sellers
      in this
      Agreement or any Ancillary Document;

     

    (b)    the
      breach of any covenant or agreement made by the Company or the Sellers
      in this
      Agreement or any Ancillary Document;

     

    (c)    any
      claim
      for brokers’ or finders’ fees or agents’ commissions arising from or through the
      Company or any of its subsidiaries, any Seller or any of their respective
      Affiliates in connection with the negotiation or consummation of the
      transactions contemplated by this Agreement; or

     

    (d)    any
      Taxes
      of the Company or its subsidiaries attributable to the change in accounting
      request filed by the Subsidiary on July 29, 2004 (the “Section
      481 Taxes”);

     

    
      
        
        

      

      
        40

        
          

        

      

      
        
        

      

    

     

    provided,
      however,
      that
      (A) except with respect to (1) the breach of the representations and
      warranties set forth in Section
      2.1
      (Authority), Section
      2.2
      (Organization), Section
      2.4
      (Title
      to Securities) or Section
      2.5
      (Capitalization) (collectively, the “Excluded
      Representations”)
      or
      (2) any
      fraud by the party from whom indemnification is sought in connection with this
      Agreement, the documents executed in connection herewith or the transactions
      contemplated hereby, for which no such limitations will apply, the Buyer Parties
      will not be entitled to indemnification under Section
      6.1(a)
      unless
      the aggregate amount of all Losses for which the Buyer Parties are entitled
      to
      indemnification pursuant to such paragraph exceeds $600,000 in which case the
      Buyer Parties will be entitled to indemnification for the amount of such Losses
      in excess of such amount up to a maximum amount equal to the then remaining
      Escrow Amount then held in the Escrow Account; and (B) the Buyer Parties
      will not be entitled to assert any claims for indemnification under Section
      6.1(a)
      with
      respect to any individual item or matter unless the amount of Losses with
      respect to such item or matter exceeds $25,000. 

     

    6.2    Indemnification
      of the Sellers.
      The
      Buyer will indemnify and hold the Sellers,
      their
      respective Affiliates and their respective managers, directors, officers,
      employees and agents (collectively, the “Seller
      Parties”)
      harmless from any and all Losses that any Seller Party actually incurs as a
      result of or relating to:

     

    (a)    the
      breach of any representation or warranty made by the Buyer in this Agreement
      or
      any Buyer Document; 

     

    (b)    the
      breach of any covenant or agreement made by the Buyer in this Agreement or
      any
      Buyer Document; or

     

    (c)    any
      claim
      for brokers’ or finders’ fees or agents’ commissions arising from or through the
      Buyer or any of its Affiliates in connection with the negotiation or
      consummation of the transactions contemplated by this Agreement;

     

    provided,
      however, that
      (A)
      except with respect to (1) the breach of the representations and warranties
      set
      forth in Section
      3.1
      (Organization) or Sections
      3.2
      (Authority) and (2) any fraud by the Buyer or (or any of Affiliate of the Buyer)
      in connection with this Agreement, the documents executed in connection herewith
      or the transactions contemplated hereby, for which no such limitation will
      apply, the Seller
      Parties
      will not be entitled to indemnification under Section 6.2(a)
      unless
      the aggregate amount of all Losses for which indemnification the Seller Parties
      are entitled to indemnification pursuant to such paragraph exceeds $600,000
      in
      which case the Seller Parties will be entitled to indemnification for the amount
      of such Losses in excess of such amount up to a maximum amount equal to
      $7,000,000, and (B) the Seller Parties will not be entitled to assert any claims
      for indemnification under Section
      6.2(a)
      with
      respect to any individual item or matter unless the amount of Losses with
      respect to such item or matter exceeds $25,000.

     

    
      
        
        

      

      
        41

        
          

        

      

      
        
        

      

    

     

    6.3    Survival.
      The
      representations and warranties of the Sellers and the Buyer made in this
      Agreement or any Ancillary Document will survive the execution and delivery
      of
      this Agreement and the consummation of the transactions contemplated hereby
      until the one-year anniversary of the Closing Date,
      provided
      however,
      that the
      Excluded Representations
      shall
      survive the execution and delivery of this Agreement and the consummation of
      the
      transactions contemplated hereby indefinitely.
      Any
      representation or warranty the violation of which is made the basis of a claim
      for indemnification pursuant to Sections
      6.1(a)
      or
6.2(a)
      will
      survive until such claim is finally resolved if the Buyer notifies the Seller
      Representative, or if the Seller Representative notifies the Buyer, as
      applicable, of such claim in accordance with Section
      6.5
      prior to
      the date on which such representation or warranty would otherwise expire
      hereunder.
      Without
      limiting the foregoing, no claim for indemnification pursuant to Sections
      6.1(a)
      or
6.2(a)
      based on
      the breach of a representation or warranty may be asserted after the date on
      which such representation or warranty expires hereunder. The
      covenants and agreements of the Buyer, on the one hand, and the Sellers and
      the
      Company, on the other hand, made in this Agreement or any Ancillary Document
      will survive the execution and delivery of this Agreement and the consummation
      of the transactions contemplated hereby in accordance with their
      terms.

     

    6.4    Further
      Limitations on Indemnification.
      Notwithstanding anything herein to the contrary, the right of the Buyer Parties
      and the Seller Parties to indemnification hereunder is further limited as
      follows:

     

    (a)    “Losses”
      shall be net of (i) any insurance or other third-party recoveries actually
      received by a party entitled to receive indemnification pursuant to this
Article
      VI
      (an
“Indemnified
      Party”)
      in
      connection with the facts giving rise to the right of indemnification, (ii)
      any
      Tax benefit actually received by such Indemnified Party resulting from such
      Losses, and (iii) any amounts for which the Indemnified Party has been
      compensated under Section
      1.4.
      The
      Buyer Parties shall use commercially reasonable efforts to claim and recover
      any
      Losses suffered by the Buyer Parties under any such insurance policy or other
      third party indemnification (subject to the limitations in Section 6.4(b)),
      but
      except as provided in Section
      6.4(b),
      the
      Buyer Parties shall not be required to pursue any such claims or recoveries
      prior to making a claim and receiving indemnification payments under this
      Agreement.

     

    (b)    If
      the
      events or circumstances which are the basis for a claim for indemnification
      by a
      Buyer Party under this Article
      VI
      also
      constitute a basis for a claim for indemnification by the Company against the
      sellers under the Prior Purchase Agreement, then the Buyer will cause the
      Company to use commercially reasonable efforts to pursue a recovery under the
      Prior Purchase Agreement before pursuing a recovery pursuant to Article
      VI
      of this
      Agreement; provided,
      however,
      that
      the Company may pursue a recovery under this Agreement without having obtained
      a
      recovery under the Prior Purchase Agreement when, in the good faith judgment
      of
      the Buyer, it is not commercially reasonable to pursue a recovery under the
      Prior Purchase Agreement in light of the time, expense and likelihood of
      recovery involved. In such event, the Buyer shall, at the request of the Seller
      Representative, cause the Company to assign to the Sellers its rights under
      the
      Prior Purchase Agreement with respect to such matter. Notwithstanding the
      foregoing, other than in connection with a claim for indemnification under
      Section
      6.1(d)
      (for
      which the Buyer must cause the Company to exercise any right of set-off it
      may
      have against the Subordinated Note before seeking indemnification under this
      Agreement), in no event shall the Buyer Parties’ be obligated to cause the
      Company to exercise any right of set-off against amounts due under the
      Subordinated Note before pursuing a claim for indemnification under this
      Agreement to the extent that such set-off would reduce the principal amount
      of
      the Subordinated Note below the amount of Section 481 Taxes reasonably estimated
      by the Buyer to still be owing; provided,
      however,
      subject
      to the first sentence of this Section 6.14(b), after all amounts owing with
      respect to the Section 481 Taxes have been paid, the Buyer shall cause the
      Company to exercise its right of set-off against the Subordinated Note before
      pursuing a claim for indemnification under this Agreement. The Buyer shall
      not,
      and shall not permit the Company to, amend any provisions of the Prior Purchase
      Agreement in any manner adverse to the Sellers without the prior written consent
      of the Seller Representative. In any such case, the full amount of the claim
      by
      the Buyer shall be considered Losses alleged in good faith in an unresolved
      claim for indemnification for purposes of Section
      6.7,
      except
      to the extent that the Company has actually received payments with respect
      to
      its claim under the Prior Purchase Agreement. The fees and expenses incurred
      by
      the Company in pursuing a claim for indemnification under the Prior Purchase
      Agreement shall be included in Buyer’s indemnified Losses under this Agreement.
      For the purposes of this Section
      6.4,
      “Prior
      Purchase Agreement”
means
      that certain Membership Interest Purchase Agreement, dated February 9, 2005,
      by
      and among the Company and the former members of the Subsidiary.

     

    
      
        
        

      

      
        42

        
          

        

      

      
        
        

      

    


    (c)    If
      an
      Indemnified Party recovers any amount from a Person other than the Indemnifying
      Party with respect to a Loss for which the Indemnified Party has already
      obtained an indemnification payment hereunder, then the Indemnified Party shall
      pay an amount equal to the amount the Indemnified Party has already received
      as
      an indemnification payment hereunder to the Escrow Agent if at such time there
      are any funds remaining in the Escrow Account, and thereafter to the Seller
      Representative, as disbursing agent for the Sellers, the Company as disbursing
      agent for the Optionholders, and the Warrantholder, such amounts to be
      distributed by them in the same manner as distributions are effected under
      Section
      6.7.

     

    (d)    No
      Indemnified Party will be entitled to indemnification pursuant to Section 6.1
      or
Section
      6.2
      for
      punitive damages, or for lost profits, consequential, exemplary or special
      damages, provided,
      however,
      that
      this provision shall not limit a Buyer Party’s right to indemnification under
Section
      6.1
      to
      recover Losses that arise as the result of a third-party Claim against the
      Buyer
      Party, the Company or any of its subsidiaries for punitive damages, lost
      profits, consequential, exemplary or special damages.

     

    (e)    An
      Indemnified Party shall use commercially reasonable efforts to mitigate any
      and
      all Losses that would otherwise be reimbursable under this
      Agreement.

     

    (f)    
Any
      amounts for which the Buyer Parties are entitled to indemnification pursuant
      to
      this Article VI
      will be
      satisfied from the Escrow Account; provided,
      however,
      that if
      the Escrow Amount is not sufficient to satisfy a claim for indemnification
      under
      (i) Section
      6.1(a)
      in
      connection with a breach of an Excluded Representation, or
      (ii) Section
      6.1 (b),
      (c)
      or
(d)
      (other
      than with regard to breaches of Section
      4.10,
      Section
      4.11,
      Section
      4.12
      or
Article
      VII),
      then
      such claim may be satisfied individually from each Seller on a several basis
      based on the portion of the Purchase Price received by each such Seller
      hereunder, provided
      further,
      that
      the Buyer Parties shall seek to satisfy claims for indemnification for breaches
      of Section
      4.10,
      Section
      4.11,
      Section
      4.12
      or
Article
      VII
      from the
      Seller or Sellers who committed such breach (and from no other Seller),
      severally, without resort to amounts held in the Escrow Account.

     

    
      
        
        

      

      
        43

        
          

        

      

      
        
        

      

    

     

    6.5    Notice.
      Each
      Indemnified Party agrees to give prompt written notice to the party or parties
      required to provide such indemnification (the “Indemnifying
      Parties”)
      upon
      the occurrence of any indemnifiable Loss or the assertion of any claim or the
      commencement of any action or proceeding in respect of which such a Loss may
      reasonably be expected to occur (each, a “Claim”),
      but
      the Indemnified Party’s failure to give such notice will not affect the
      obligations of the Indemnifying Party under this Article
      VI
      except
      to the extent that the Indemnifying Party is materially prejudiced thereby.
      Such
      written notice will include (a) a description of the event or events forming
      the
      basis of such Loss or Claim, (b) the amount involved, unless such amount is
      uncertain or contingent, in which event the Indemnified Party will state the
      estimated amount and give a later written notice when the amount becomes fixed,
      and (c) copies of written documents and summaries of relevant oral information
      actually known or in good faith believed by the Indemnified Party to exist
      sufficient to establish the basis for such Loss or Claim.

     

    6.6    Defense
      of Claims.

     

    (a)    The
      Indemnifying Party may elect to assume and control the defense of any Claim,
      including the employment of counsel reasonably satisfactory to the Indemnified
      Party and the payment of expenses related thereto, if: (i) the Claim does not
      seek to impose any Liability on the Indemnified Party other than money damages,
      and (ii) the Claim does not relate to a material Supplier of the
      Company.

     

    (b)    If
      the
      conditions of Section
      6.6(a)
      are
      satisfied and the Indemnifying Party elects to assume and control the defense
      of
      a Claim, then: (i) the Indemnifying Party will not be liable for any settlement
      of such Claim effected without its consent; (ii) the Indemnifying Party may
      settle such Claim without the consent of the Indemnified Party but only if
      (A) there is no finding or admission of any violations of Law or any
      violation of the rights of any Person and no effect on any other claims that
      may
      be made against the Indemnified Party, (B) the sole relief provided is
      monetary damages that are paid in full by the Indemnifying Party and
      (C) such settlement provides for a full release of the Indemnified Party;
      and (iii) the Indemnified Party may employ separate counsel and participate
      in
      the defense thereof, but the Indemnified Party will be responsible for the
      fees
      and expenses of such counsel unless: (A) the Indemnifying Party has failed
      to
      actively conduct the defense of such Claim or to employ counsel with respect
      thereto; or (B) in the reasonable opinion of the Indemnified Party, a conflict
      of interest exists between the interests of the Indemnified Party and the
      Indemnifying Party that requires representation by separate counsel, in which
      case the fees and expenses of such separate counsel will be paid by the
      Indemnifying Party.

     

    (c)    If
      the
      conditions of Section
      6.6(a)
      are not
      satisfied of if the Indemnifying Party does not elect to assume and control
      the
      defense of any Claim under Section
      6.6(a)
      above,
      then the Indemnified Party may assume the exclusive right to defend, compromise
      or settle such Claim, but the Indemnifying Party will not be bound by any
      determination of a Claim so defended or any compromise or settlement effected
      without its consent.

     

    
      
        
        

      

      
        44

        
          

        

      

      
        
        

      

    

     

    6.7    Escrow.
      The
      funds held in the Escrow Account shall serve as security for Sellers’
indemnification obligations hereunder and shall be released upon the Escrow
      Agent’s receipt of joint written instructions from the Buyer and the Seller
      Representative, or as otherwise provided under the terms of the Escrow
      Agreement. On the one-year anniversary of the Closing Date, the Seller
      Representative and the Buyer shall issue joint written instructions to the
      Escrow Agent instructing the Escrow Agent to release all funds in the Escrow
      Account in excess of the sum of the amount of actual Losses alleged in good
      faith in any unresolved claim for indemnification, to the Company, as disbursing
      agent for the Optionholders, the Warrantholder, and the Seller Representative
      as
      disbursing agent for the Sellers, in proportion to the amounts in which the
      Sellers, the Company on behalf of the Optionholders and the Warrantholder
      received funds on the Closing Date. If there are any remaining claims for
      indemnification, the Seller Representative and the Buyer shall issue joint
      written instructions to the Escrow Agent to release any remaining funds in
      the
      Escrow Account when such claims are resolved, which funds shall be released
      to
      the Company, as disbursing agent for the Optionholders, the Warrantholder,
      and
      the Seller Representative as disbursing agent for the Sellers, in proportion
      to
      the amounts in which the Sellers, the Company on behalf of the Optionholders
      and
      the Warrantholder received funds on the Closing Date. The Company shall disburse
      any amounts it receives from the Escrow Agent in its capacity as disbursing
      agent for the Optionholders, including earnings on the escrowed funds, to such
      Optionholders in the percentages set forth on Schedule
      1.3(c)(as
      such
      schedule may be updated at Closing).

     

    ARTICLE
      VII

    Noncompetition
      Agreement

    


    7.1    Noncompetition.
      

     

    (a)    As
      a material
      inducement to Buyer to enter into this Agreement, each of Timothy P. Brady,
      Christopher C. Lapeyrouse, John Tieken, Jr. and Bart J. Hohensee (each a
“Restricted
      Seller”)
      agrees
      that, for a period of two (2) years from the Closing Date, no such Restricted
      Seller will, directly or indirectly, as an employee, agent, representative,
      consultant, advisor, lender, independent contractor, principal, owner, partner,
      joint venturer, member, manager, officer, director, shareholder or otherwise,
      engage in or have any financial interest (other than a less than 1% interest
      in
      a corporation whose shares are actively traded on a regional or national
      securities exchange or in the over-the-counter market) in the business of high
      speed diesel engine and parts sales and service in marine applications in the
      Restricted Territory, including solicitation of customers or employees of the
      Company or any of its subsidiaries, except as an employee or authorized
      representative of the Company or any of its affiliated entities.

     

    (b)    Each
      Restricted Seller acknowledges that any remedy at law will not adequately
      compensate Buyer for damages resulting from a breach of this noncompetition
      agreement and agree that Buyer may seek and obtain injunctive relief against
      the
      breach or threatened breach of this noncompetition agreement, in addition to
      any
      other legal remedies which may be available.

     

    (c)    Each
      Restricted Seller and Buyer agree that the restrictions contained in
Section
      7.1(a)
      are
      reasonable with respect to time, geographical area and scope of activity.
      However, if any court shall determine that the time, geographical area or scope
      of activity of any restriction contained in Section
      7.1(a)
      is
      unenforceable, it is the intention of the parties that such restriction shall
      not thereby be terminated but shall be deemed amended to the extent required
      to
      render it valid and enforceable.

     

    
      
        
        

      

      
        45

        
          

        

      

      
        
        

      

    


    ARTICLE
      VIII

    Miscellaneous

    


    8.1    Termination.
      

     

    (a)    This
      Agreement and the transactions contemplated hereby may be terminated and
      abandoned: 

     

    (i)    
at
      any time
      prior to the Closing Date by mutual written consent of the Buyer and the Seller
      Representative; 

     

    (ii)    by
      either the
      Buyer, on the one hand, or the Seller Representative, on the other hand, upon
      written notice to the other, if (A) the transactions contemplated by this
      Agreement have not been consummated on or prior to July 31, 2006, or (B) any
      condition to such party’s obligation (or the Sellers’ obligation in the case of
      the Seller Representative) to consummate the transactions contemplated hereby
      is
      incapable of being satisfied on or prior to July 31, 2006; provided,
      however, that:

     

    (1)    the
      Buyer may
      not terminate this Agreement pursuant to this Section
      8.1(a)(ii)
      if the
      Closing has not occurred because of the Buyer’s willful failure to perform or
      observe any of its covenants or agreements set forth herein or if the Buyer
      has
      materially breached this Agreement; and

     

    (2)    the
      Seller
      Representative may not terminate this Agreement pursuant to this Section
      8.1(a)(ii)
      if the
      Closing has not occurred because of the willful failure of any Seller to perform
      or observe any of the covenants or agreements set forth herein or if any Seller
      has materially breached this Agreement;

     

    (iii)   by
      the
      Buyer, on the one hand, or the Seller, on the other hand, if any court of
      competent jurisdiction or other Governmental Body shall have issued an order,
      decree, or ruling enjoining or otherwise prohibiting the transactions
      contemplated by this Agreement (unless such order, decree, or ruling has been
      withdrawn, reversed, or otherwise made inapplicable); or

     

    (iv)   by
      the
      Buyer, if, since the Latest Balance Sheet Date, there shall have occurred any
      event or occurrence that would constitute a Material Adverse Effect on the
      Company; provided,
      however,
      that
      the Buyer must exercise its right to terminate pursuant to this Section
      8.1(a)(iv)
      within
      five (5) business days of the Buyer’s discovery of the event or occurrence that
      is the basis for such Material Adverse Effect.

     

    (b)    In
      the
      event of termination of this Agreement pursuant to Section 8.1(a),
      no
      party hereto will have any liability or any further obligation to any other
      party, except as provided in this Section 8.1(b)
      and
      except that nothing herein releases, or may be construed as releasing, any
      party
      hereto from any liability or damage to any other party hereto arising out of
      the
      breaching party’s willful and material breach in the performance of any of its
      covenants arising under this Agreement. The obligations of the parties to this
      Agreement under Section 4.11,
      this
Section 8.1(b),
      and
      this Article VIII
      will
      survive any termination of this Agreement.

     

    
      
        
        

      

      
        46

        
          

        

      

      
        
        

      

    

     

    8.2    Notices.
      All
      notices and other communications under this Agreement must be in writing and
      will be deemed given: (a) when delivered personally; (b) on the third business
      day after being mailed by certified mail, return receipt requested; (c) the
      next
      business day after delivery to a recognized overnight courier; or (d) upon
      transmission and confirmation of receipt by a facsimile operator if sent by
      facsimile, to the parties at the following addresses or facsimile numbers (or
      to
      such other address or facsimile number as such party may have specified by
      notice given to the other party pursuant to this provision):

     

    
      	
              if
                to the Buyer:

            	 	
              with
                copies to:

            
	 	 	 
	
              Marine
                Systems, Inc.

            	 	
              Fulbright
                & Jaworski L.L.P.

            
	
              55
                Waugh Drive, Suite 1000

            	 	
              2200
                Ross Avenue, Suite 2800

            
	
              Houston,
                Texas 77007

            	 	
              Dallas,
                Texas 75201

            
	
              Attention:
                Mark R. Buese

            	 	
              Attention:
                Thomas G. Adler

            
	
              Telecopy:
                (713) 435-1011

            	 	
              Telecopy:
                (214) 855-8200

            
	 	 	 
	
              if
                to the Sellers:

            	 	
              with
                copies to:

            
	 	 	 
	
              Industrial
                Growth Partners II, L.P.

            	 	
              Jones
                Day

            
	
              100
                Spear Street, Suite 1500

            	 	
              North
                Point

            
	
              San
                Francisco, California 94105-1523

            	 	
              901
                Lakeside Avenue

            
	
              Attention:
                Eric D. Heglie

            	 	
              Cleveland,
                Ohio 44114-1190

            
	 	 	
              Attention:
                Denise A. Carkhuff

            
	
              Telecopy:
                (415) 882-4551

            	 	
              Telecopy:
                (216) 579-0212

            


    

     

    8.3    Counterparts.
      This
      Agreement may be executed in one or more counterparts (including by facsimile)
      for the convenience of the parties hereto, each of which will be deemed an
      original, but all of which together will constitute one and the same
      agreement.

     

    8.4    Interpretation.
      The
      article and section headings contained in this Agreement are solely for the
      purpose of reference, are not part of the agreement of the parties and will
      not
      in any way affect the meaning or interpretation of this Agreement. Unless
      expressly stated otherwise, references to Sections, Exhibits or Schedules refer
      to sections, exhibits or schedules to this Agreement.

     

    8.5    Assignment.
      Neither
      this Agreement nor any of the rights, interests or obligations hereunder may
      be
      assigned or delegated by any Seller, the Company or the Buyer without the prior
      written consent of the other parties and any purported assignment or delegation
      in violation thereof will be null and void; except that the Buyer may assign
      its
      rights and obligations under this Agreement to any of its Affiliates or to
      any
      successor to its business. This Agreement is not intended to confer any rights
      or benefits on any Person other than the parties hereto, except to the extent
      specifically provided in Section
      4.11,
      Section
      4.15
      and
Article
      VI.

     

    
      
        
        

      

      
        47

        
          

        

      

      
        
        

      

    


    8.6    Entire
      Agreement, Amendment.
      This
      Agreement and the related documents contained as Exhibits and Schedules hereto
      or expressly contemplated hereby contain the entire understanding of the parties
      relating to the subject matter hereof and supersede all prior written or oral
      and all contemporaneous oral agreements and understandings relating to the
      subject matter hereof. The exhibits, schedules and the recitals to this
      Agreement are hereby incorporated by reference into and made a part of this
      Agreement for all purposes. This Agreement may be amended, supplemented or
      modified only by written instrument making specific reference to this Agreement
      signed by the Buyer and the Seller Representative, and any provision hereof
      may
      be waived, only by written instrument making specific reference to this
      Agreement signed by the party against whom enforcement is sought.

     

    8.7    Specific
      Performance, Exclusivity.
      The
      parties hereby acknowledge and agree that the failure of any party to perform
      its agreements and covenants hereunder, including its failure to take all
      actions reasonably required on its part to consummate the transactions
      contemplated hereby, will cause irreparable injury to the other parties for
      which damages, even if available, will not be an adequate remedy. Accordingly,
      each party hereby consents to the issuance of injunctive relief by any court
      of
      competent jurisdiction to compel performance of such party’s obligations and to
      the granting by any court of the remedy of specific performance of its
      obligations hereunder. The
      parties agree that, from and after the Closing Date, except as otherwise
      provided under Article
      VI
      and
Article
      VII,
      the
      exclusive remedies of the parties for any Losses based upon, or arising out
      of
      or otherwise in respect of the matters set forth in this Agreement are the
      indemnification obligations of the parties set forth in Article
      VI.

     

    8.8    GOVERNING
      LAW.
      THIS
      AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
      THE SUBSTANTIVE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY
      CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT RESULT IN THE APPLICATION OF
      THE
      LAWS OF ANOTHER JURISDICTION.

     

    8.9    Usage.
      Whenever the plural form of a word is used in this Agreement, that word will
      include the singular form of that word. Whenever the singular form of a word
      is
      used in this Agreement, that word will include the plural form of that word.
      The
      term “or” will not be interpreted as excluding any of the items described. The
      term “include” or any derivative of such term does not mean that the items
      following such term are the only types of such items.

     

    8.10  
         Certain
      Definitions.
      For
      purposes of this Agreement:

     

    (a)    The
      term
“Affiliate”
means,
      with respect to a specified Person, any relative by blood or marriage, or any
      other Person or member of a group of Persons acting together that, directly
      or
      indirectly, through one or more intermediaries, controls, is controlled by
      or is
      under common control with the specified Person. 

     

    (b)    The
      term
“Company
      Debt Agreements”
means
      (i) the Credit Agreement, (ii) Note and Warrant Purchase Agreement,
      and (iii) the Subordinated Promissory Note, dated February 9, 2005, by
      the Company in favor of Christopher C. Lapeyrouse, for the benefit of the former
      members of the Subsidiary (the “Subordinated
      Note”)..

     

    
      
        
        

      

      
        48

        
          

        

      

      
        
        

      

    


    (c)    The
      term
“control”
      (including the terms “controlling,” “controlled by” and “under common control
      with”) means the possession, direct or indirect, of the power to direct or cause
      the direction of the management and policies of a Person, whether through the
      ownership of voting securities, by contract or otherwise.

     

    (d)    The
      terms
“Knowledge”
and
      “known”
and
      words of similar import mean:

    


    (i)    
with
      respect to the Company, the Company will be deemed to have “Knowledge” of a
      particular matter, and the particular matter will be deemed to be “known” by the
      Company, if (A) the Company’s President or Chief Financial Officer has actual
      knowledge of such matter or would have knowledge of such matter following
      reasonable inquiry, or (B) any of the Persons listed on Schedule
      8.10(d)
      has
      actual knowledge of such matter; and

    


    (ii)    with
      respect to Buyer, the Buyer will be deemed to have “Knowledge” of a particular
      matter, and the particular matter will be deemed to be “known” by the Buyer, if
      any manager, director, officer or any supervisory level employee of the Buyer
      has actual knowledge of such matter or would have knowledge of such matter
      following or reasonable inquiry.

    


    (e)    The
      term
“Material Adverse Effect” means, with respect to the Company, the Buyer or the
      Subsidiary, as applicable, any change, occurrence or development that has or
      would reasonably be expected to have a material adverse effect on the business,
      results of operations or financial condition of such party and its subsidiaries
      taken as a whole, but excluding any effect (i) resulting from general
      economic conditions (whether as a result of acts of terrorism, war (whether
      or
      not declared), armed conflicts or otherwise), or (ii) generally affecting
      companies in the industry in which it conducts its business.

    


    (f)    
The
      uncapitalized terms “subsidiary” or “subsidiaries” when used in relation to an
      entity shall include both the direct and indirect subsidiaries of such
      entity.

    


    (g)    The
      term
“Restricted
      Territory”
means
      (i) the geographic area(s) within a one hundred (100) mile radius of any
      and all location(s) of the Company or any of its subsidiaries to which the
      Restricted Seller had any responsibility immediately prior to the consummation
      of the transactions contemplated by this Agreement and at any time during the
      two (2) year period prior to the Closing Date, (ii) the Gulf of Mexico and
      (iii) all of the specific customer accounts, whether within or outside the
      geographic locations of the Company and its subsidiaries, to which the
      Restricted Seller had any responsibility immediately prior to the Closing Date
      or at any time during the two (2) year period prior to the Closing Date
provided,
      however,
      that
      with respect to Louisiana, the Restricted Territory includes only the Gulf
      of
      Mexico and the following parishes: Iberia, Lafayette, LaFourche, Plaquemines,
      St. Martin, St. Mary, Terrebonne and Vermillion; provided further,
      that to
      the extent that the Company, a subsidiary of the Company or any
      successor-in-interest to the Company or any subsidiary of the Company ceases
      to
      operate the Business in any such parish, such parish will no longer be
      considered part of the Restricted Territory.


    
      
        
        

      

      
        49

        
          

        

      

      
        
        

      

    


    (h)    In
      addition, the following terms are defined in the indicated section of this
      Agreement:

    


    
      	
              Defined
                Term

            	 	
              Section

            
	 	 	 
	
              2005
                Income Tax Returns

            	 	
              4.13(a)(iv)(A)

            
	
              Accountant

            	 	
              1.4(e)

            
	
              Act

            	 	
              2.5(c)

            
	
              Actual
                Net Debt

            	 	
              1.4(e)

            
	
              Actual
                Working Capital

            	 	
              1.4(e)

            
	
              Affiliate

            	 	
              8.10(a)

            
	
              Aggregate
                Share Amount

            	 	
              1.3(e)

            
	
              Agreement

            	 	
              First
                paragraph

            
	
              Ancillary
                Documents

            	 	
              2.1(b)

            
	
              Bank
                Accounts

            	 	
              2.26

            
	
              Business

            	 	
              Recitals

            
	
              Buyer
                

            	 	
              First
                paragraph

            
	
              Buyer
                Documents

            	 	
              3.2

            
	
              Buyer
                Parties

            	 	
              6.1

            
	
              Buyer
                Welfare Plans

            	 	
              4.17

            
	
              Carryback

            	 	
              4.13(a)(v)

            
	
              Claim

            	 	
              6.5

            
	
              Closing

            	 	
              1.2

            
	
              Closing
                Date

            	 	
              1.2

            
	
              Code

            	 	
              2.7(c)

            
	
              Common
                Stock

            	 	
              Recitals

            
	
              Company

            	 	
              First
                paragraph

            
	
              Company
                Ancillary Documents

            	 	
              2.1(b)

            
	
              Company
                Debt Agreements

            	 	
              8.10(b)

            
	
              Company
                Employees

            	 	
              4.17

            
	
              Competing
                Transaction

            	 	
              4.10

            
	
              Confidential
                Information

            	 	
              4.11

            
	
              Contracts

            	 	
              2.21(a)

            
	
              control

            	 	
              8.10(c)

            
	
              Credit
                Agreement

            	 	
              4.12

            
	
              Buyer

            	 	
              First
                paragraph

            
	
              Buyer
                Documents

            	 	
              3.2

            
	
              Deductions

            	 	
              4.13(a)(iv)

            
	
              Employee
                Benefit Plan(s)

            	 	
              2.20(a)

            
	
              Environmental
                Law

            	 	
              2.18

            
	
              ERISA

            	 	
              2.20(a)

            
	
              Escrow
                Account

            	 	
              1.3(a)

            
	
              Escrow
                Agent

            	 	
              1.3(a)

            
	
              Escrow
                Agreement

            	 	
              1.3(a)

            


    

     

    
      
        
        

      

      
        50

        
          

        

      

      
        
        

      

    

    


    
      	
              Defined
                Term

            	 	
              Section

            
	 	 	 
	
              Escrow
                Amount

            	 	
              1.3(a)

            
	
              Estimated
                Net Debt

            	 	
              1.4(d)

            
	
              Estimated
                Working Capital

            	 	
              1.4(d)

            
	
              Excluded
                Representations

            	 	
              6.1

            
	
              Financial
                Statements

            	 	
              2.11(a)

            
	
              Fully
                Diluted Shares

            	 	
              1.3(f)

            
	
              GAAP

            	 	
              1.4(a)

            
	
              Governmental
                Body

            	 	
              2.10

            
	
              Guaranteed
                Obligations

            	 	
              Signature
                Page

            
	
              Hazardous
                Material

            	 	
              2.18

            
	
              HSR
                Act

            	 	
              2.10

            
	
              HSR
                Filing

            	 	
              4.15

            
	
              Income
                Tax

            	 	
              2.14

            
	
              Income
                Tax Returns

            	 	
              2.14

            
	
              Indemnified
                Party

            	 	
              6.4(a)

            
	
              Indemnifying
                Parties

            	 	
              6.5

            
	
              Interim
                Financial Statements

            	 	
              2.11(a)

            
	
              IRS

            	 	
              2.20(b)

            
	
              Knowledge
                and Known

            	 	
              8.10(d)

            
	
              Latest
                Balance Sheet

            	 	
              2.11(a)

            
	
              Latest
                Balance Sheet Date

            	 	
              2.11(a)

            
	
              Laws

            	 	
              2.16

            
	
              LEG

            	 	
              8.11(a)

            
	
              Liabilities

            	 	
              2.12

            
	
              Lien

            	 	
              2.4(a)

            
	
              Litigation

            	 	
              2.15

            
	
              Losses

            	 	
              6.1

            
	
              Majority-in-Interest

            	 	
              8.11(b)

            
	
              Material
                Adverse Effect

            	 	
              8.10(e)

            
	
              Material
                Customers

            	 	
              2.22(a)

            
	
              Material
                Contracts

            	 	
              2.21(a)

            
	
              Net
                Debt

            	 	
              1.4(b)

            
	
              Net
                Debt Excess

            	 	
              1.4(h)

            
	
              Net
                Debt Shortfall

            	 	
              1.4(i)

            
	
              Note
                and Warrant Purchase Agreement

            	 	
              4.12(b)

            
	
              Option

            	 	
              1.3(c)

            
	
              Option
                Amount

            	 	
              1.3(c)

            
	
              Optionholder

            	 	
              1.3(c)

            
	
              Parent

            	 	
              Signature
                Page

            
	
              Payoff
                Letters

            	 	
              1.5(b)

            
	
              Permits

            	 	
              2.17

            
	
              Permitted
                Testing

            	 	
              4.3

            
	
              Person

            	 	
              2.15

            
	
              Post-Closing
                Period

            	 	
              4.1(h)

            
	
              Post-Closing
                Straddle Period

            	 	
              4.13(a)

            


    

     

    
      
        
        

      

      
        51

        
          

        

      

      
        
        

      

    

    


    
      	
              Defined
                Term

            	 	
              Section

            
	 	 	 
	
              Pre-Closing
                Straddle Period

            	 	
              4.13(a)(ii)

            
	
              Pre-Closing
                Tax Period

            	 	
              4.13(a)(vi)

            
	
              Prior
                Purchase Agreement

            	 	
              6.4(b)

            
	
              Purchase
                Price

            	 	
              1.3

            
	
              Real
                Property

            	 	
              2.7(a)

            
	
              Restricted
                Seller

            	 	
              7.1(a)

            
	
              Restricted
                Territory

            	 	
              8.10(g)

            
	
              Section
                481 Taxes

            	 	
              6.1(d)

            
	
              Seller(s)
                

            	 	
              First
                paragraph

            
	
              Seller
                Ancillary Documents

            	 	
              2.1(a)

            
	
              Seller
                Parties

            	 	
              6.2

            
	
              Seller
                Refunds

            	 	
              4.13(a)(vi)

            
	
              Seller
                Representative

            	 	
              8.11(a)

            
	
              Shares

            	 	
              Recitals

            
	
              Stated
                Working Capital

            	 	
              1.4(c)

            
	
              Statement

            	 	
              4.13(a)(vii)

            
	
              Straddle
                Period

            	 	
              4.13(a)(i)

            
	
              Stub
                Period Returns

            	 	
              4.13(a)(iv)

            
	
              Subordinated
                Note

            	 	
              8.10(b)

            
	
              Subsidiary

            	 	
              Recitals

            
	
              subsidiary
                or subsidiaries

            	 	
              8.10(f)

            
	
              Subsidiary
                Equity

            	 	
              Recitals

            
	
              Suppliers

            	 	
              2.22(b)

            
	
              Tax(es)

            	 	
              2.14

            
	
              Taxing
                Authority

            	 	
              2.14

            
	
              Tax
                Return

            	 	
              2.14

            
	
              Transaction
                Costs

            	 	
              1.4(a)

            
	
              Transfer
                Taxes

            	 	
              4.13(d)

            
	
              UST
                Systems

            	 	
              2.18(e)

            
	
              Warrant

            	 	
              1.3(d)

            
	
              Warrant
                Amount

            	 	
              1.3(d)

            
	
              Warrantholder

            	 	
              1.3(d)

            
	
              Working
                Capital

            	 	
              1.4(a)

            
	
              Working
                Capital Excess

            	 	
              1.4(f)

            
	
              Working
                Capital Shortfall

            	 	
              1.4(g)

            
	
              Written
                Report

            	 	
              4.13(a)(ix)

            


    

    


    8.11   
        Seller
      Representative.
      For
      purposes of this Agreement:

     

    
      
        
        

      

      
        52

        
          

        

      

      
        
        

      

    


    (a)    Industrial
      Growth Partners II, L.P. is hereby appointed as the “Seller
      Representative”
and
      is
      hereby granted the full power and authority, on behalf of each Seller and his,
      her or its successors and assigns, to (i) interpret the terms and provisions
      of
      this Agreement and
      the
      documents to be executed and delivered in connection herewith, including,
      without limitation, ‎Article VI
      and the
      Ancillary Documents, (ii) execute and deliver and receive deliveries of all
      agreements, certificates, statements, notices, approvals, extensions, waivers,
      undertakings, amendments, updates of Schedules and other documents required
      or
      permitted to be given in connection with the consummation of the transactions
      contemplated by this Agreement and the Ancillary Documents, (iii) receive
      service of process in connection with any claims under this Agreement or the
      Ancillary Documents, (iv) agree to negotiate, enter into settlements and
      compromises of, assume the defense of claims, demand arbitration and comply
      with
      orders of courts and awards of arbitrators with respect to such claims and
      to
      take all actions necessary or appropriate in the sole judgment of the Seller
      Representative for the accomplishment of the foregoing, including, without
      limitation, taking all such actions as may be necessary under
      ‎Article
      VI,
      (v)
      give and receive notices and communications, (vi) authorize delivery or release
      to Buyer of funds held in the Escrow Account, (vii) receive and disburse funds
      hereunder to the Sellers and the Warrantholder in accordance with the terms
      of
      this Agreement (including the schedules and exhibits attached hereto) and (viii)
      take all actions necessary or appropriate in the judgment of the Seller
      Representative on behalf of the Sellers in connection with this Agreement and
      the Ancillary Documents. The Seller Representative shall not amend or modify
      this Agreement in any manner that (y) treats the Sellers differently from each
      other except in the manner and to the extent such Sellers are treated
      differently as of the date of this Agreement or (z) treats the Warrantholder
      and
      LEG Partners III, SBIC, L.P. (“LEG”)
      in a
      manner that would violate Section 4.3 of the Stockholders Agreement, dated
      as of
      February 9, 2005, by and among the Company, Industrial Growth Partners II,
      L.P.,
      the Warrantholder, LEG and the other investors named therein, and as the same
      is
      in effect on the date hereof.

     

    (b)    Such
      agency may be changed by Sellers who held, immediately prior to the Closing,
      Shares representing a majority in interest of all Shares outstanding at such
      time (the “Majority-in-Interest”)
      from
      time to time upon not less than five (5) days prior written notice to the Buyer.
      The Seller Representative, or any successor hereafter appointed, may resign
      at
      any time by written notice to Buyer and the Seller Representative. A successor
      Seller Representative will be named by a Majority-in-Interest. All power,
      authority, rights and privileges conferred in this Agreement to the Seller
      Representative will apply to any successor Seller Representative.

     

    (c)    The
      Seller Representative will not be liable to any Seller for any act done or
      omitted under this Agreement or any Ancillary Document as Seller Representative
      while acting in good faith, and any act taken or omitted to be taken pursuant
      to
      the advice of counsel will be conclusive evidence of such good
      faith.

     

    8.12    
Expenses.
      Except
      as otherwise provided herein, whether or not the transactions contemplated
      by
      this Agreement are consummated, all costs and expenses (including all legal,
      accounting, broker, finder or investment banker fees) incurred in connection
      with this Agreement and the transactions contemplated hereby are to be paid
      by
      the party incurring such expenses except as expressly provided
      herein.

     

    8.13         Severability.
      Any
      term
      or provision of this Agreement that is invalid or unenforceable in any
      jurisdiction will, as to that jurisdiction, be ineffective to the extent of
      such
      invalidity or unenforceability without rendering invalid or unenforceable the
      remaining terms and provisions of this Agreement or affecting the validity
      or
      enforceability of any of the terms or provisions of this Agreement in any other
      jurisdiction. If any provision of this Agreement is so broad as to be
      unenforceable, the provision will be interpreted to be only so broad as is
      enforceable.


    
      
        
        

      

      
        53

        
          

        

      

      
        
        

      

    


    IN
      WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
      date
      first above written.

     

    
      	 	
              THE
                BUYER: 

            
	 	 
	 	
              MARINE
                SYSTEMS, INC.

            
	 	 	 
	 	
              By:

            	
              /s/
                DORMAN
                L. STRAHAN

            
	 	 	
              Dorman
                L. Strahan, President

            
	 	 	 
	 	 	 
	 	
              THE
                SELLERS: 

            
	 	 
	 	
              INDUSTRIAL
                GROWTH PARTNERS II, L.P.

            
	 	 	 
	 	
              By:

            	
              IGP
                Capital Partners II, LLC,

            
	 	 	
              its
                General Partner

            
	 	 	 
	 	 	
              By:

            	
              /s/
                GOTTFRIED TITTIGER

            
	 	 	 	
              Name:
                Gottfried Tittiger 

            
	 	 	 	
              Title:  
                Managing Director

            
	 	 	 
	 	 	 
	 	
              ANTARES
                CAPITAL CORPORATION

            
	 	 
	 	
              By:

            	
              /s/
                TIMOTHY G. LYNE

            
	 	
              Name:
                

            	
              Timothy
                G. Lyne

            
	 	
              Title:
                

            	
              Director

            
	 	 	 
	 	 	 
	 	
              LEG
                PARTNERS III, SBIC, L.P.

            
	 	 	 
	 	
              By:

            	
              Golub
                PS-GP, LLC

            
	 	 	
              its
                General Partner

            
	 	 	 
	 	 	
              By:

            	
              /s/
                GREGORY W. CASHMAN

            
	 	 	 	
              Name:
                Gregory W. Cashman

            
	 	 	 	
              Title:
                

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    
      	 	
              /s/
                TIMOTHY
                P. BRADY

            
	 	
              Timothy
                P. Brady

            
	 	 
	 	 
	 	
              /s/
                JOYCE
                N. BRADY

            
	 	
              Joyce
                N. Brady

            
	 	 
	 	 
	 	
              /s/
                BART
                J. HOHENSEE

            
	 	
              Bart
                J. Hohensee

            
	 	 
	 	 
	 	
              /s/
                LAURIE
                L. HOHENSEE

            
	 	
              Laurie
                L. Hohensee

            
	 	 
	 	 
	 	
              /s/
                GARETT
                J. HOHENSEE

            
	 	
              Garett
                J. Hohensee

            
	 	 
	 	 
	 	
              /s/
                BECKY
                B. HOHENSEE

            
	 	
              Becky
                B. Hohensee

            
	 	 
	 	 
	 	
              /s/
                WENDELL
                J. HOHENSEE

            
	 	
              Wendell
                J. Hohensee

            
	 	 
	 	 
	 	
              /s/
                JOANN
                D. HOHENSEE

            
	 	
              Joann
                D. Hohensee

            
	 	 
	 	 
	 	
              /s/
                JAMES
                LAFLEUR

            
	 	
              James
                Lafleur

            
	 	 
	 	 
	 	
              /s/
                FRANKIE
                T. LAFLEUR

            
	 	
              Frankie
                T. Lafleur

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    
      	 	
              /s/
                WILFRED
                R. DEHART

            
	 	
              Wilfred
                R. DeHart

            
	 	 
	 	 
	 	
              /s/
                JANICE
                W. DEHART

            
	 	
              Janice
                W. DeHart

            
	 	 
	 	 
	 	
              /s/
                CHRISTOPHER
                C. LAPEYROUSE

            
	 	
              Christopher
                C. Lapeyrouse

            
	 	 
	 	 
	 	
              /s/
                ROBIN
                L. LAPEYROUSE

            
	 	
              Robin
                L. Lapeyrouse

            
	 	 
	 	 
	 	
              /s/
                RANDY
                MELANCON

            
	 	
              Randy
                Melancon

            
	 	 
	 	 
	 	
              /s/
                LISA
                M. MELANCON

            
	 	
              Lisa
                M. Melancon

            
	 	 
	 	 
	 	
              /s/
                BUSTER
                NAQUIN

            
	 	
              Buster
                Naquin

            
	 	 
	 	 
	 	
              /s/
                VANESSA
                M. NAQUIN

            
	 	
              Vanessa
                M. Naquin

            
	 	 
	 	 
	 	
              /s/
                JOHN
                TIEKEN JR.

            
	 	
              John
                Tieken Jr.

            
	 	 
	 	 
	 	
              /s/
                CYNTHIA
                TIEKEN

            
	 	
              Cynthia
                Tieken

            


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    
      	 	
              /s/
                LANCE
                DEHART

            
	 	
              Lance
                DeHart

            
	 	 
	 	 
	 	
              /s/
                DEIRDRE
                B. DEHART

            
	 	
              Deirdre
                B. DeHart

            


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    
      	 	
              /s/
                KAREN
                GREAVES

            
	 	
              Karen
                Greaves

            
	 	 
	 	 
	 	
              /s/
                JEFFREY
                M. WEBB

            
	 	
              Jeffrey
                M. Webb

            
	 	 
	 	 
	 	
              /s/
                TOM
                PARNELL

            
	 	
              Tom
                Parnell

            
	 	 
	 	 
	 	
              /s/
                WILLIAM
                LUNDSTROM

            
	 	
              William
                Lundstrom

            
	 	 
	 	 
	 	
              /s/
                JAMES
                EASTER

            
	 	
              James
                Easter

            


    

    


    


    
      	 	
              THE
                COMPANY:

            
	 	 	 
	 	
              GLOBAL
                POWER HOLDING COMPANY

            
	 	 	 
	 	 	 
	 	
              By
                

            	
              /s/
                BART
                J. HOHENSEE

            
	 	
              Name:

            	Bart J.
              Hohensee
	 	
              Title:

            	President


    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    Parent
      Guarantee

    


    Kirby
      Corporation, a Nevada corporation (“Parent”),
      hereby unconditionally and irrevocably guarantees to the Sellers the full and
      timely performance, payment and discharge by Buyer of all obligations and
      liabilities of Buyer pursuant to this Agreement to be performed on or before
      the
      Closing Date, as the same may from time-to-time be amended, modified,
      substituted, extended or renewed (the “Guaranteed
      Obligations”),
      and
      agrees that if Buyer shall fail to pay or perform any Guaranteed Obligation
      when
      and as required by the terms of this Agreement, Parent will promptly pay or
      perform any such Guaranteed Obligation as required of Buyer pursuant to the
      terms of the Agreement. 

    


    This
      Parent Guarantee is an absolute, unconditional and continuing guarantee of
      payment and performance and not merely of collection, and will be binding upon
      and a primary obligation of Parent, irrespective of (i) the bankruptcy,
      insolvency, dissolution or liquidation of Buyer or the discharge of Buyer’s
      obligations in bankruptcy; (ii) any assignment, amendment, modification or
      termination of or any change in the term, manner or place of performance or
      payment of, or any other term of, all or any part of the Guaranteed Obligations,
      this Agreement or any other agreement or instrument relating thereto; (iii)
      any
      merger or consolidation of Parent or Buyer with or into any other Person or
      any
      sale, lease or transfer of any of the stock or assets of Parent or Buyer to
      any
      other Person, or any change in the name, stock ownership, membership,
      constitution or place of formation or incorporation of Parent or Buyer, or
      any
      change of Parent or Buyer into another form of business entity; or (iv) any
      failure, neglect or omission on the part of the Seller Representative before
      the
      Closing Date to give Parent notice of the occurrence of any default or event
      of
      default.

    


    Notwithstanding
      anything to the contrary contained herein, this Parent Guarantee will continue
      to be effective or be reinstated, as the case may be, if at any time any payment
      of any of the Guaranteed Obligations by or on behalf of Parent or Buyer is
      rescinded or must otherwise be returned by any Person upon the insolvency,
      bankruptcy or reorganization of Parent or Buyer or otherwise, all as though
      such
      payment had not been made.

    


    KIRBY
      CORPORATION, 

    a
      Nevada
      corporation

    


    
      	
              By:

            	
              /s/
                MARK
                R. BUESE

            	 
	 	 	 
	
              Name:

            	
              Mark
                R. Buese

            	 
	 	 	 
	
              Title:

            	
              Senior
                Vice President

            	 


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    Exhibits

     

    
      	
              A

            	
              Sellers

            


    

    
      	
              B

            	
              Form
                of Escrow Agreement

            


    

    
      	
              C

            	
              Form
                of Termination of Management
                Agreement

            


    

    
      	
              D

            	
              Form
                of Option Cancellation Agreement

            


    

    
      	
              E

            	
              Form
                of Warrant Cancellation Agreement

            


    

    
      	
              F

            	
              Form
                of Buyer’s Closing Certificate

            


    

    
      	
              G

            	
              Form
                of Sellers’ Closing Certificate

            


    

    
      	
              H

            	
              Form
                of Resignation

            


    

    
      	
              I

            	
              Form
                of Termination of Consulting
                Agreement

            


    

    
      	
              J

            	
              Form
                of Letter Agreement

            


    

    


    Schedules

     

    
      
        	
                Schedule
                  1.3(c)

              	
                Option
                  Amount Allocation

              


      

      
        	
                Schedule
                  1.3(e)

              	
                Aggregate
                  Share Amount Allocation

              


      

      
        	
                Schedule
                  1.4(a)

              	
                Working
                  Capital Calculation

              


      

      
        	
                Schedule
                  1.4(b)

              	
                Net
                  Debt Calculation

              


      

      
        	
                Schedule
                  2.2(a)

              	
                Foreign
                  Qualifications

              


      

      
        	
                Schedule
                  2.2(b)

              	
                Subsidiary
                  Foreign Qualifications

              


      

      
        	
                Schedule
                  2.5(a)

              	
                Capitalization

              


      

      
        	
                Schedule
                  2.6

              	
                Subsidiaries
                  and Other Interests

              


      

      
        	
                Schedule
                  2.7(a)

              	
                Title
                  to Assets

              


      

      
        	
                Schedule
                  2.7(b)

              	
                Exceptions
                  to Title

              


      

      
        	
                Schedule
                  2.9

              	
                Consents

              


      

      
        	
                Schedule
                  2.11(a)

              	
                Financial
                  Statements

              


      

      
        	
                Schedule
                  2.13

              	
                Absence
                  of Certain Changes

              


      

      
        	
                Schedule
                  2.14(b)

              	
                Tax
                  Extensions of Time

              


      

      
        	
                Schedule
                  2.14(g)

              	
                Tax
                  Liability

              


      

      
        	
                Schedule
                  2.14(h)

              	
                280G
                  Matters

              


      

      
        	
                Schedule
                  2.14(m)

              	
                Tax
                  Affiliated Groups

              


      

      
        	
                Schedule
                  2.14(n)

              	
                Change
                  in Accounting Method

              


      

      
        	
                Schedule
                  2.15

              	
                Litigation

              


      

      
        	
                Schedule
                  2.17

              	
                Permits

              


      

      
        	
                Schedule
                  2.18

              	
                Environmental

              


      

      
        	
                Schedule
                  2.18(f)

              	
                Environmental
                  Report

              


      

      
        	
                Schedule
                  2.19

              	
                Employees

              


      

      
        	
                Schedule
                  2.20(a)

              	
                Employee
                  Benefit Plans

              


      

      
        	
                Schedule
                  2.20(e)

              	
                Employee
                  Benefit Plan Litigation

              


      

      
        	
                Schedule
                  2.20(g)

              	
                Benefits
                  Beyond Retirement or Other
                  Termination

              


      

      
        	
                Schedule
                  2.20(h)

              	
                Benefits
                  Triggered by Transaction

              


      

      
        	
                Schedule
                  2.21(a)

              	
                Material
                  Contracts

              


      

      
        	
                Schedule
                  2.21(b)

              	
                Material
                  Contracts Full Force and Effect

              


      

      
        	
                Schedule
                  2.22(a)

              	
                Material
                  Customers

              


      

      
        	
                Schedule
                  2.22(b)

              	
                Suppliers

              


      

      
        	
                Schedule
                  2.23

              	
                Intellectual
                  Property

              


      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        	
                Schedule
                  2.25

              	
                Insurance

              


      

      
        	
                Schedule
                  2.26

              	
                Bank
                  Accounts and Powers of Attorney

              


      

      
        	
                Schedule
                  4.1

              	
                Conduct
                  of Business

              


      

      
        	
                Schedule
                  4.13(a)(iv)

              	
                Deductions

              


      

      
        	
                Schedule
                  5.1(c)

              	
                Buyer’s
                  required Closing Consents

              


      

      
        	
                Schedule
                  8.10(d)

              	
                Additional
                  Knowledge Persons