exv10w1



 



Exhibit
10.1



Execution Copy




AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS




Among




Commercial Metals Company,




Bouras Industries, Inc.,




Nicholas J. Bouras, Inc.,




United Steel Deck, Inc.,




ABA Trucking Corporation,




The New Columbia Joist Company,




Nicholas J. Bouras,




And




The Nicholas J. and Anna K. Bouras Foundation, Inc.




Dated as of March 2, 2007





 









 








Table of Contents




	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	I.   SALE, DELIVERY, CONDITION AND PRICE OF CERTAIN ASSETS	 	 	1	 
	 

	 	 	1.01	 	 	Included Tangible Assets
	 	 	2	 
	 

	 	 	1.02	 	 	Included Intangible Assets
	 	 	2	 
	 

	 	 	1.03	 	 	Included Real Property
	 	 	3	 
	 

	 	 	1.04	 	 	Permits
	 	 	3	 
	 

	 	 	1.05	 	 	Excluded Assets
	 	 	3	 
	 

	 	 	1.06	 	 	Purchase Price
	 	 	4	 
	 

	 	 	1.07	 	 	Inventory Value
	 	 	4	 
	 

	 	 	1.08	 	 	Closing
	 	 	8	 
	II.   ASSUMPTION OF LIABILITIES	 	 	8	 
	 

	 	 	2.01	 	 	Assumed Liabilities
	 	 	8	 
	 

	 	 	2.02	 	 	Unfinished Customer Contracts
	 	 	8	 
	 

	 	 	2.03	 	 	Additional or Amended
Unfinished Customer Contracts
	 	 	11	 
	III.    ACCOUNTS RECEIVABLE	 	 	11	 
	 

	 	 	3.01	 	 	Collection of Receivables by
Purchaser on Behalf of Sellers
	 	 	11	 
	 

	 	 	3.02	 	 	Collection of Receivables by Each Party
	 	 	12	 
	 

	 	 	3.03	 	 	Rights Reserved by the Sellers
	 	 	12	 
	IV.   NON COMPETITION AGREEMENTS	 	 	12	 
	 

	 	 	4.01	 	 	Non Competition Agreement
	 	 	12	 
	 

	 	 	4.02	 	 	Exceptions
	 	 	13	 
	 

	 	 	4.03	 	 	Remedies
	 	 	13	 
	V. EMPLOYEE BENEFITS	 	 	13	 
	 

	 	 	5.01	 	 	Payment of Employee Benefits
	 	 	13	 
	 

	 	 	5.02	 	 	401(k) Plans
	 	 	14	 
	 

	 	 	5.03	 	 	Health Care Continuation Coverage and Health
Insurance Portability and
Accountability Act
	 	 	15	 
	 

	 	 	5.04	 	 	Pension Plans
	 	 	15	 
	 

	 	 	5.05	 	 	Purchaser Benefit Plans
	 	 	16	 
	VI.    REAL ESTATE TITLE APPROVAL AND CONVEYANCE	 	 	16	 
	 

	 	 	6.01	 	 	Escrow; Escrow Instructions
	 	 	16	 
	 

	 	 	6.02	 	 	Survey
	 	 	17	 
	 

	 	 	6.03	 	 	Title Binders
	 	 	17	 
	 

	 	 	6.04	 	 	Conveyance by Special Warranty Deed
	 	 	18	 
	VII.   REPRESENTATIONS AND WARRANTIES OF SELLERS, BOURAS AND THE FOUNDATION	 	 	18	 
	 

	 	 	7.01	 	 	Organization of the Sellers
	 	 	19	 
	 

	 	 	7.02	 	 	Authorization
	 	 	19	 
	 

	 	 	7.03	 	 	No Violation
	 	 	20	 
	 

	 	 	7.04	 	 	Ownership
	 	 	21	 
	 

	 	 	7.05	 	 	Consents and Approvals
	 	 	22	 






ii









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	 

	 	 	7.06	 	 	Financial Statements; Schedule of Contracts
	 	 	22	 
	 

	 	 	7.07	 	 	Absence of Undisclosed Liabilities
	 	 	23	 
	 

	 	 	7.08	 	 	Absence of Certain Changes
	 	 	23	 
	 

	 	 	7.09	 	 	Litigation
	 	 	24	 
	 

	 	 	7.10	 	 	Liens and Encumbrances
	 	 	24	 
	 

	 	 	7.11	 	 	Location and Sufficiency of Assets
	 	 	25	 
	 

	 	 	7.12	 	 	Condemnations
	 	 	26	 
	 

	 	 	7.13	 	 	Agreements; Bids
	 	 	26	 
	 

	 	 	7.14	 	 	Taxes
	 	 	28	 
	 

	 	 	7.15	 	 	Compliance with Applicable Law
	 	 	29	 
	 

	 	 	7.16	 	 	Brokers’ Fees and Commissions
	 	 	29	 
	 

	 	 	7.17	 	 	Proprietary Rights
	 	 	29	 
	 

	 	 	7.18	 	 	Insurance
	 	 	30	 
	 

	 	 	7.19	 	 	Environmental Matters
	 	 	30	 
	 

	 	 	7.20	 	 	Customers, Suppliers and Employees
	 	 	34	 
	 

	 	 	7.21	 	 	Information
	 	 	34	 
	 

	 	 	7.22	 	 	Certain Business Practices and Regulations; Potential
Conflicts of Interest
	 	 	34	 
	 

	 	 	7.23	 	 	Employee Benefit Plans
	 	 	35	 
	 

	 	 	7.24	 	 	Labor Relations
	 	 	39	 
	 

	 	 	7.25	 	 	Books and Records
	 	 	41	 
	 

	 	 	7.26	 	 	Government Contracts
	 	 	41	 
	 

	 	 	7.27	 	 	Claims
	 	 	41	 
	 

	 	 	7.28	 	 	Solvency
	 	 	41	 
	 

	 	 	7.29	 	 	Inventory
	 	 	41	 
	 

	 	 	7.30	 	 	Owner Operator Leases and Deposits
	 	 	41	 
	 

	 	 	7.31	 	 	Internal Controls
	 	 	42	 
	VIII.   REPRESENTATIONS AND WARRANTIES OF PURCHASER	 	 	42	 
	 

	 	 	8.01	 	 	Organization of Purchaser
	 	 	42	 
	 

	 	 	8.02	 	 	Authorization
	 	 	43	 
	 

	 	 	8.03	 	 	No Violation
	 	 	43	 
	 

	 	 	8.04	 	 	Consents and Approvals
	 	 	43	 
	 

	 	 	8.05	 	 	Brokers’ Fees and Commissions
	 	 	43	 
	 

	 	 	8.06	 	 	Certain Proceedings
	 	 	43	 
	 

	 	 	8.07	 	 	Solvency
	 	 	43	 
	IX.     CONDUCT AND TRANSACTIONS PRIOR TO AND AFTER CLOSING	 	 	44	 
	 

	 	 	9.01	 	 	Access to Records and Properties
	 	 	44	 
	 

	 	 	9.02	 	 	Confidentiality
	 	 	44	 
	 

	 	 	9.03	 	 	Operation of the Sellers
	 	 	44	 
	 

	 	 	9.04	 	 	Consents
	 	 	46	 
	 

	 	 	9.05	 	 	No Public Announcements
	 	 	46	 
	 

	 	 	9.06	 	 	Forbearance
	 	 	46	 
	 

	 	 	9.07	 	 	Reasonable Efforts to Satisfy Conditions
	 	 	46	 
	 

	 	 	9.08	 	 	Insurance
	 	 	47	 
	 

	 	 	9.09	 	 	Payment of Liabilities; Sales Taxes
	 	 	47	 






iii









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	 

	 	 	9.10	 	 	Vacate Facilities
	 	 	48	 
	 

	 	 	9.11	 	 	Allocation of Ad Valorem Taxes
	 	 	48	 
	 

	 	 	9.12	 	 	Maintenance of Transferred Records
	 	 	48	 
	 

	 	 	9.13	 	 	Remove Excluded Assets
	 	 	48	 
	 

	 	 	9.14	 	 	Notification
	 	 	48	 
	 

	 	 	9.15	 	 	Change of Sellers’ Names
	 	 	49	 
	 

	 	 	9.16	 	 	Remediation Agreement
	 	 	49	 
	 

	 	 	9.17	 	 	Appropriate Action; Consents; Filings
	 	 	60	 
	 

	 	 	9.18	 	 	Certain Notices
	 	 	62	 
	 

	 	 	9.19	 	 	Performance Bonds
	 	 	62	 
	 

	 	 	9.20	 	 	Access to Transferred Records and Employees
	 	 	62	 
	 

	 	 	9.21	 	 	Time Bank Liability
	 	 	62	 
	 

	 	 	9.22	 	 	Purchaser’s Compliance with WARN Act
	 	 	63	 
	 

	 	 	9.23	 	 	Employment Agreements
	 	 	63	 
	X.   INDEMNIFICATION	 	 	63	 
	 

	 	 	10.01	 	 	Indemnity
	 	 	63	 
	 

	 	 	10.02	 	 	Notice, Participation and Duration
	 	 	65	 
	 

	 	 	10.03	 	 	Escrow
	 	 	65	 
	 

	 	 	10.04	 	 	Limitation of Indemnification
	 	 	69	 
	 

	 	 	10.05	 	 	Insurance Proceeds
	 	 	69	 
	 

	 	 	10.06	 	 	Exclusive Remedy
	 	 	69	 
	XI.   CONDITIONS PRECEDENT TO CLOSING BY PURCHASER	 	 	69	 
	 

	 	 	11.01	 	 	Compliance With Agreement
	 	 	69	 
	 

	 	 	11.02	 	 	Accuracy of Representations and Warranties of Bouras,
the Foundation and
Sellers
	 	 	70	 
	 

	 	 	11.03	 	 	Certification
	 	 	70	 
	 

	 	 	11.04	 	 	Ancillary Agreements
	 	 	70	 
	 

	 	 	11.05	 	 	Good Standing of Sellers
	 	 	70	 
	 

	 	 	11.06	 	 	Resolutions
	 	 	70	 
	 

	 	 	11.07	 	 	Absence of Litigation
	 	 	70	 
	 

	 	 	11.08	 	 	Consents. The
	 	 	71	 
	 

	 	 	11.09	 	 	Shareholder Approval
	 	 	71	 
	 

	 	 	11.10	 	 	Unfinished Customer Contracts
	 	 	71	 
	 

	 	 	11.11	 	 	[Intentionally Omitted]
	 	 	71	 
	 

	 	 	11.12	 	 	No Material Adverse Change
	 	 	71	 
	 

	 	 	11.13	 	 	Agreement on Inventory Value
	 	 	71	 
	 

	 	 	11.14	 	 	Opinion of Counsel for Sellers
	 	 	71	 
	 

	 	 	11.15	 	 	Permit Transfers
	 	 	71	 
	 

	 	 	11.16	 	 	ISRA Compliance
	 	 	71	 
	 

	 	 	11.17	 	 	HSR Act
	 	 	72	 
	 

	 	 	11.18	 	 	Summit Lease
	 	 	72	 
	XII.   CONDITIONS PRECEDENT TO CLOSING BY SELLERS, BOURAS AND THE FOUNDATION	 	 	72	 
	 

	 	 	12.01	 	 	Compliance With Agreement
	 	 	72	 






iv









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	Page
	 

	 	 	12.02	 	 	Accuracy of Representations and Warranties of
Purchaser
	 	 	73	 
	 

	 	 	12.03	 	 	Certification
	 	 	73	 
	 

	 	 	12.04	 	 	Agreement on Inventory Value
	 	 	73	 
	 

	 	 	12.05	 	 	Opinions of Counsel for Purchaser
	 	 	73	 
	XIII.   CLOSING DELIVERIES	 	 	73	 
	 

	 	 	13.01	 	 	Sellers’ Deliveries
	 	 	73	 
	 

	 	 	13.02	 	 	Purchaser’s Deliveries
	 	 	75	 
	XIV.   TERMINATION OF AGREEMENT	 	 	75	 
	 

	 	 	14.01	 	 	Termination
	 	 	75	 
	 

	 	 	14.02	 	 	Continuing Obligations
	 	 	76	 
	XV.   MISCELLANEOUS	 	 	76	 
	 

	 	 	15.01	 	 	Assignment
	 	 	76	 
	 

	 	 	15.02	 	 	Survival; Effect of Investigation; Waiver of
Conditions and Performance
	 	 	76	 
	 

	 	 	15.03	 	 	Attorneys’ Fees
	 	 	77	 
	 

	 	 	15.04	 	 	IRS Documentation
	 	 	77	 
	 

	 	 	15.05	 	 	Expenses
	 	 	77	 
	 

	 	 	15.06	 	 	Amendment and Waiver
	 	 	77	 
	 

	 	 	15.07	 	 	Notices
	 	 	77	 
	 

	 	 	15.08	 	 	Choice of Law; Jurisdiction
	 	 	79	 
	 

	 	 	15.09	 	 	Section and Other Headings
	 	 	79	 
	 

	 	 	15.10	 	 	Counterpart Execution
	 	 	79	 
	 

	 	 	15.11	 	 	Gender
	 	 	79	 
	 

	 	 	15.12	 	 	Parties in Interest
	 	 	79	 
	 

	 	 	15.13	 	 	Integrated Agreement
	 	 	79	 
	 

	 	 	15.14	 	 	Severability
	 	 	80	 
	 

	 	 	15.15	 	 	Time of Essence
	 	 	80	 
	 

	 	 	15.16	 	 	Further Assurances
	 	 	80	 
	 

	 	 	15.17	 	 	Post Closing Cooperation
	 	 	80	 
	 

	 	 	15.18	 	 	Consequential Damages
	 	 	83	 







v









 





INDEX OF DEFINED TERMS




	 	 	 	 	 
	 	 	Page	 
	2006 Balance Sheet
	 	 	22	 
	2006 Financial Statements
	 	 	22	 
	401(k) Plans
	 	 	14	 
	Acquired Assets
	 	 	1	 
	Affiliate
	 	 	12	 
	ALTA Policy
	 	 	17	 
	Ancillary Agreement
	 	 	19	 
	Annual Financial Statements
	 	 	22	 
	Assignment and Assumption Agreement
	 	 	8	 
	Assumed Contracts
	 	 	8	 
	Assumed Liabilities
	 	 	8	 
	Benefits
	 	 	13	 
	Bill of Sale
	 	 	19	 
	Binders
	 	 	17	 
	Business
	 	 	1	 
	CERCLA
	 	 	31	 
	Claim
	 	 	64	 
	Closing
	 	 	8	 
	Closing Date
	 	 	8	 
	COBRA
	 	 	15	 
	Code
	 	 	14	 
	Company
	 	 	1	 
	Company Real Estate
	 	 	3	 
	Copyrights
	 	 	29	 
	Damages
	 	 	62	 
	Deeds
	 	 	18	 
	Employee Benefit Plan
	 	 	35	 
	Environmental Claim
	 	 	30	 
	Environmental Costs and Liabilities
	 	 	30	 
	Environmental Law
	 	 	30	 
	Environmental Permit
	 	 	31	 
	Environmental Requirement
	 	 	31	 
	ERISA
	 	 	35	 
	ERISA Affiliate
	 	 	35	 
	Escrow Period
	 	 	65	 
	Escrow Agreement
	 	 	65	 
	Escrow Instructions
	 	 	16	 
	Excluded Assets
	 	 	3	 
	Facilities
	 	 	1	 
	Financial Statements
	 	 	22	 
	Finished Goods Inventory
	 	 	7	 






vi




 









 





	 	 	 	 	 
	 	 	Page	 
	GAAP
	 	 	22	 
	General Escrow Amount
	 	 	64	 
	Governmental Authority
	 	 	21	 
	Hazardous Material
	 	 	31	 
	HSR Act
	 	 	59	 
	Indemnitee
	 	 	64	 
	Indemnitor
	 	 	64	 
	Intangible Assets
	 	 	2	 
	Intellectual Property
	 	 	29	 
	Inventory
	 	 	5	 
	Inventory Value
	 	 	5	 
	Liens
	 	 	24	 
	Litigation
	 	 	24	 
	M&A Qualified Beneficiaries
	 	 	15	 
	Marks
	 	 	29	 
	Order
	 	 	21	 
	Patents
	 	 	29	 
	Permits
	 	 	3	 
	Permitted Exceptions
	 	 	24	 
	Purchase Price
	 	 	4	 
	Purchaser
	 	 	1	 
	Purchaser Indemnitees
	 	 	62	 
	RCRA
	 	 	31	 
	Release
	 	 	32	 
	Remedial Action
	 	 	32	 
	Retained Liabilities
	 	 	8	 
	Seller Indemnitees
	 	 	63	 
	Seller Receivables
	 	 	3	 
	Sellers
	 	 	1	 
	Survey
	 	 	17	 
	Tangible Assets
	 	 	2	 
	Tax
	 	 	28	 
	Tax Obligations
	 	 	28	 
	Tax Regulations
	 	 	15	 
	Tax Return
	 	 	28	 
	Technology Contracts
	 	 	2	 
	Title Company
	 	 	16	 
	Transferred Employees
	 	 	14	 
	Transferred Records
	 	 	48	 
	WARN Act
	 	 	40	 






vii




 









 





List of Exhibits and Schedules Attached to Agreement




	 	 	 
	Exhibits:
	 	 
	 
	 	 
	Exhibit A -
	 	Assignment and Assumption Agreement
	Exhibit B -
	 	Turnover and Retirement Assumptions
	Exhibit C -
	 	Surveyor’s Certificate
	Exhibit D -
	 	Bill of Sale
	Exhibit E -
	 	RIW Map
	Exhibit F -
	 	Access Agreement
	Exhibit G -
	 	Map of Pennsylvania Real Estate
	Exhibit H -
	 	Escrow Agreement
	Exhibit I -
	 	Environmental Escrow Agreement
	Exhibit J -
	 	Sellers’ Counsel’s Opinion
	Exhibit K -
	 	Lease Amendment
	 
	 	 
	Schedules:
	 	 
	 
	 	 
	Schedule 1.00
	 	Facilities
	Schedule 1.01
	 	Included Tangible Assets
	Schedule 1.02
	 	Included Intangible Assets
	Schedule 1.03
	 	Company Real Estate
	Schedule 1.04(a)
	 	Non-Transferable Permits
	Schedule 1.04(b)
	 	Permits
	Schedule 1.05
	 	Excluded Assets
	Schedule 1.06
	 	Allocation of Purchase Price
	Schedule 1.07(a)
	 	Inventory Valuation Method
	Schedule 1.07(a)(i)
	 	Raw Material Inventory
	Schedule 1.07(a)(ii)
	 	Work-in-Process Inventory
	Schedule 1.07(a)(iii)
	 	Finished Goods Inventory
	Schedule 2.01
	 	Assumed Liabilities
	Schedule 5.01
	 	Accrued Vacation Liability and
“Time Bank” Liability
	Schedule 6.04
	 	Exceptions to Title
	Schedule 7.01
	 	Subsidiaries
	Schedule 7.03
	 	Violations, Breach or Default of Obligations, Agreements, Permits, Etc.
	Schedule 7.05
	 	Required Consents and Approvals
	Schedule 7.06(a)
	 	Financial Statements; Exceptions
	Schedule 7.06(b)
	 	Unfinished Customer Contracts
	Schedule 7.06(c)
	 	Net Loss on Unfinished Customer Contracts
	Schedule 7.08
	 	Absence of Certain Changes
	Schedule 7.09
	 	Litigation
	Schedule 7.10
	 	Liens and Encumbrances
	Schedule 7.11
	 	Location and Sufficiency of Assets
	Schedule 7.13
	 	Agreements; Bonds






viii




 









 





	 	 	 
	Schedule 7.14
	 	Taxes
	Schedule 7.17
	 	Proprietary Rights
	Schedule 7.18
	 	Insurance Policies
	Schedule 7.19(b)
	 	Environmental Matters
	Schedule 7.19(c)
	 	Underground and Above Ground Storage Tanks
	Schedule 7.20(a)
	 	Relationships with Customers and Suppliers
	Schedule 7.20(b)
	 	Employees
	Schedule 7.20(c)
	 	Top Customers and Suppliers
	Schedule 7.22
	 	Conflicts of Interest
	Schedule 7.23(a)
	 	Employee Benefit Plans
	Schedule 7.23(h)
	 	COBRA Participation
	Schedule 7.23(k)
	 	Employment/Severance Agreements with Officers, Directors or Employees
	Schedule 7.23(l)
	 	Multi-Employer Plans
	Schedule 7.24(a)
	 	Labor Relations
	Schedule 7.24(b)
	 	Compliance with Employment Laws
	Schedule 7.24(c)
	 	Collective Bargaining Agreements
	Schedule 7.24(d)
	 	Employees
	Schedule 7.29(a)
	 	Inventory
	Schedule 7.29(c)
	 	Revenue Recognition from Sales of Inventory
	Schedule 7.30
	 	Owner-Operator Leases and Deposits
	Schedule 9.05
	 	Public Announcement
	Schedule 11.08
	 	Consents






ix





 










 





AGREEMENT FOR PURCHASE AND SALE OF ASSETS




     THIS AGREEMENT (this “Agreement”) is entered into as of this 2nd day of March, 2007, by and
among Commercial Metals Company, a Delaware corporation (“Purchaser”), Bouras Industries, Inc., a
New Jersey corporation (“Company”), Nicholas J. Bouras, Inc., a New Jersey corporation and
wholly-owned subsidiary of the Company (“NJBI”), United Steel Deck, Inc., a New Jersey corporation
and wholly-owned subsidiary of the Company (“USD”), ABA Trucking Corporation, a New Jersey
corporation and wholly-owned subsidiary of the Company (“ABA”), and The New Columbia Joist Company,
a Delaware corporation and wholly-owned subsidiary of the Company (“NCJC”), Nicholas J. Bouras, a
stockholder of the Company (“Bouras”), and The Nicholas J. and Anna K. Bouras Foundation, Inc. a
stockholder of the Company (“Foundation”). NJBI, USD, ABA and NCJC are sometimes referred to
herein collectively as “Subsidiaries” and individually as “Subsidiary.” The Company and the
Subsidiaries are sometimes referred to herein collectively as “Sellers” and individually as
“Seller.”



RECITALS:




     The Company and the Subsidiaries are in the business of manufacturing and selling steel deck,
joist and related products, together with services related to such activities including estimating,
engineering, detailing, and trucking from their owned and leased facilities located on the tracts
more completely described in Schedule 1.00 (the “Facilities”). The business conducted by
the Company and Subsidiaries is referred to as the “Business.”



     Purchaser desires to purchase, accept and assume from Sellers, and Sellers desire to sell,
transfer and assign to Purchaser, upon the terms and conditions set forth in this Agreement,
certain of Sellers’ tangible and intangible assets used in the Business and certain of Sellers’
liabilities, excluding only certain designated assets and properties that are specifically
described herein and including only certain designated liabilities that are specifically described
herein.



     Each of the parties hereto acknowledges that adequate consideration is provided hereunder with
respect to its entering into this Agreement and performing its obligations hereunder, and that it
will be benefited by the transactions contemplated herein. The parties acknowledge that Purchaser
would not have entered into this Agreement without participation, on the terms set forth herein, of
Bouras and the Foundation.



     I. SALE, DELIVERY, CONDITION AND PRICE OF CERTAIN ASSETS



     Subject to the terms and conditions of this Agreement, Sellers shall sell, convey, transfer
and assign to Purchaser all of Sellers’ right, title and interest in, to and under the assets
described below in Sections 1.01 through 1.04 and in the manner provided below
(collectively, the “Acquired Assets”) free and clear of all Liens (as hereinafter defined) other
than the Permitted Exceptions (as hereinafter defined):



1









 





     1.01 Included Tangible Assets. It being the intent of the parties that Purchaser shall
acquire all of the Sellers’ right, title and interest in, to and under all tangible personal
property of the Company and the Subsidiaries related to the Business, except for the Excluded
Assets (as hereinafter defined), Sellers agree to sell, convey and transfer to Purchaser, and
Purchaser agrees to purchase and accept, as part of the Acquired Assets, all of the Sellers’ right,
title and interest in, to and under all Inventory (as defined in Section 1.07(a)),
machinery, equipment, automobiles, trucks, trailers, forklifts, other rolling stock, spare parts,
tools, supplies, furniture, fixtures, and computers (including, without limitation, the major items
listed on Schedule 1.01), wherever such items may be physically located, as well as all
other tangible personal property that, as of the date of this Agreement, is owned by any Seller and
related to the Business including, without limitation, all tangible personal property owned by the
Sellers, located at the Facilities. All items acquired by Purchaser under this Section
1.01 are hereinafter referred to collectively as the “Tangible Assets.” Any unexpired
maintenance contracts, manufacturer’s warranties, guarantees, indemnities or similar obligations in
favor of Sellers covering any of the Tangible Assets shall be assigned, without cost to Sellers, to
Purchaser to the extent such assignment is not prohibited by the terms thereof or by applicable
Law.



     1.02 Included Intangible Assets. Subject to the terms and conditions of this Agreement,
Sellers agree to sell and convey to Purchaser, and Purchaser agrees to purchase, as part of the
Acquired Assets, all of Sellers’ right, title and interest in, to and under (i) all software used
on any of the Company’s and Subsidiaries’ computers (to the extent assignment of such software is
not prohibited by the terms thereof or by applicable Law), (ii) all plans, drawings and blueprints
relating to Company Real Estate or the Facilities, (iii) all service records, environmental
records, warranties and other information relating to any Tangible Assets, the Company Real Estate
(as defined in Section 1.03) or the Facilities (except to the extent such sale and/or
conveyance is prohibited by the terms thereof or by applicable Law), (iv) all intangible assets
(excluding any contracts other than the Assumed Contracts) necessary or useful for operating the
Business and/or the Facilities as they are currently operated by the Sellers (including, without
limitation, all intangible assets listed on Schedule 1.02 hereto), and (v) all Business
Intellectual Property (as defined in Section 7.17)(collectively, the “Intangible Assets”).
The Intangible Assets also include all of Sellers’ right, title and interest in, to and under: (i)
all of its intangible assets related to the sales, administrative, estimating, engineering,
scheduling, detailing, accounting, purchasing, payroll, and credit functions of the Company and
NJBI; and (ii) the names “The New Columbia Joist Company”, “United Steel Deck, Inc.” and “ABA
Trucking” and all fictitious business names and trade names of the Company and the Subsidiaries
that do not contain “Bouras”, and all of the Sellers’ right, title and interest in, to and under
all contracts (other than contracts that are not Assumed Contracts) to which any Seller is a party
or by which any Seller or its assets are bound relating to the Intangible Assets, including without
limitation contracts (other than contracts that are not Assumed Contracts) by which third parties
license their intellectual property to any Seller including all software specifically developed for
the Company or its Subsidiaries (to the extent assignment of such software is not prohibited by the
terms thereof or by applicable Law) (collectively, “Technology Contracts”).



2









 





     1.03 Included Real Property. Subject to the terms and conditions of this Agreement,
Sellers agree to sell and convey to Purchaser, and Purchaser agrees to purchase from the Sellers,
all of the Sellers’ right, title and interest in, to and under all real property owned by the
Sellers related to the Business (including all improvements, fixtures, and crane ways thereon), and
located on the tracts more completely described in Schedule 1.03 the “Company Real Estate”.



     1.04 Permits.




     (a) Subject to the terms and conditions of this Agreement and except as otherwise
prohibited by applicable Law or as otherwise set forth on Schedule 1.04(a), Sellers
agree to sell, transfer, assign and/or convey to Purchaser (in each case, to the extent
transferable to Purchaser), and Purchaser agrees to acquire, all of the Sellers’ right,
title and interest in, to and under all permits, authorizations, certificates, approvals,
contractor’s licenses, registrations, variances, exemptions, rights-of-way, franchises,
privileges, immunities, grants, ordinances, licenses and other rights of every kind and
character (collectively, “Permits”), held by Sellers and relating to the Business or all or
any of the Acquired Assets.




     (b) Schedule 1.04(b) sets forth a list of all of the Permits held by Sellers
that are material to the Business.



     1.05 Excluded Assets. Anything to the contrary in this Agreement notwithstanding, the
following assets and properties of the Sellers are excluded from this Agreement and the purchase
and sale contemplated hereby (collectively, the “Excluded Assets”):




     (a) All cash on hand;




     (b) Cash in banks or depository accounts;




     (c) All inter-company receivables;




     (d) All accounts receivable for work completed and invoiced prior to Closing (“Seller
Receivables”);




     (e) Securities, negotiable instruments, and notes receivable;




     (f) Prepaid expenses and Taxes (including income and property Taxes) and all Tax
refunds due from any Government Authority;




     (g) All deposits and other prepaid amounts made by Sellers under all leases included in
the Assumed Contracts;




     (h) All Performance Bonds (as defined in Section 7.13);



3









 






     (i) Corporate minute books, stock transfer records and corporate seal;




     (j) All contracts, agreements and arrangements (other than Assumed Contracts),
including without limitation all insurance contracts (including without limitation all life
insurance and environmental insurance contracts), and all rights and privileges thereunder)




     (k) All claims and litigation rights under all contracts, agreements and arrangements,
except under the Assumed Contracts;




     (l) Provided that they were previously classified properly under GAAP, goods and
inventory that have been invoiced to customers, whether in transit or at the Facilities (for
purposes of goods and inventory invoiced to customers at the Facilities, the parties agree
that Purchaser will ship such goods and inventory after the Closing and Sellers will
reimburse Purchaser for its reasonable out of pocket costs and overhead);




     (m) The capital stock of Prior Coated Metals, Inc. (“PCM”);




     (n) Those items which are specifically listed on Schedule 1.05 and which,
except for being so listed, would constitute part of the Acquired Assets; and




     (o) Inventory not purchased under Section 1.07.



     1.06 Purchase Price. The aggregate purchase price for the Acquired Assets shall be
equal to the sum of (i) $62,950,000, plus (ii) the Inventory Value, minus (iii) the accrued or
earned vacation liability of the Sellers not paid by the Sellers as of the Closing Date, subject to
the adjustment described in Section 2.02(b) (together, the “Purchase Price”). The Purchase
Price shall be allocated among, and payable to, Sellers according to the calculation set forth on
Schedule 1.06. Purchaser shall pay the Purchase Price to the Sellers in cash at the
Closing as provided in Section 13.02 hereof, except that, as provided in Section
10.03 hereof, (i) $6,500,000 of the Purchase Price shall be paid to the Escrow Agent (as
defined in Section 10.03) as the General Escrow Amount (as defined in Section
10.03) and (ii) $4,500,000 shall be paid to the Escrow Agent as the Environmental Escrow Amount
(as defined in Section 10.03). Each of the Sellers acknowledges that an appropriate and
reasonable valuation and allocation of the Purchase Price and the Non-Compete Payment (as defined
in Section 4.01) among the Acquired Assets and the covenants in Article IV is set
forth on Schedule 1.06. Purchaser and Sellers agree that they will not take any position
or action inconsistent with the allocation of Schedule 1.06 in the filing of any Tax
Returns.



     1.07 Inventory Value.




     (a) Inspection, Valuation and Purchase of Inventory. Sellers agree to sell and
Purchaser agrees to buy all raw material inventory, work-in-process inventory and finished
goods inventory of the Sellers as of the Closing (including, without limitation,



4









 







coil stock,
paint with a remaining shelf life of six months or greater, structural shapes, plate, stock
inventory of finished deck and joists, and accessories and/or related products associated
with the Business), except for any such inventory that is obsolete or not usable or salable
in the ordinary course of business (collectively, the “Inventory”). Sellers agree and
covenant that after the close of business on the Friday prior to the Closing Date and until
Closing, no inventory shall be added to or removed from the Facilities. Commencing
immediately after the close of business on the Friday prior to Closing (Thursday prior to
Closing for warehouses and ports) and continuing for so long as may be necessary, but no
longer than two (2) days at the Sellers’ production facilities and three (3) days at the
Sellers’ warehouses and ports, a representative of Sellers and a representative of Purchaser
shall conduct a joint inspection and appraisal of the Inventory (the “Joint Appraisal”).
Sellers shall make available such personnel and equipment as may be necessary to move, count
and/or determine the estimated weight of the Inventory in order to assure Sellers and
Purchaser that an accurate and, subject to Section 1.07(c) hereof, complete physical
inventory has been taken in order to properly value the Inventory. Following the Joint
Appraisal (and except as set forth in Section 1.07(c) below), Sellers and Purchaser
shall endeavor to agree upon a mutually acceptable value for the Inventory (the value for
the Inventory determined pursuant to this Section 1.07 is referred to herein as the
“Inventory Value”), which shall be calculated in accordance with the following:




     (i) Valuation of Raw Material Inventory. The raw material inventory of
Sellers included in the Inventory (collectively, the “Raw Material Inventory”)
shall be valued, on an aggregated basis according to Categories (as more fully
described below), at the lower of cost or market value. In determining the lower of
the two, cost and market value shall each be determined on an aggregated basis
according to Categories (as defined below). With respect to each such Category, the
value used in calculating the total value of the Raw Material Inventory shall be the
lower of (x) the aggregate cost of all items included in such Category or (y) the
aggregate market value of all items included in such Category. The total value of
the Raw Material Inventory used in determining the Inventory Value shall be equal to
the sum of all such Category values as determined in accordance with the immediately
preceding sentence. As more fully set forth on Schedule 1.07(a)(i), each
category of Raw Material Inventory (each, a “Category”) shall be defined according
to similarity of materials, size (or, in the case of coils, width), gage, grade,
finish, and form for preprocessing (such as perforations or coatings). Excluded
Assets will include any merchant steel that is damaged or less than ten (10) feet in
length. Excluded Assets will also include, for cold rolled and galvanized sheet
steel in coils, a coil that is (i) rusted and not useable or saleable in the
ordinary course of business or (ii) usable only in discontinued product lines.
“Non-Prime Coils” (as defined on Schedule 1.07(a)(i)) will be devalued
according to such Schedule 1.07(a)(i).



5









 






     (A) Market Value. For purposes of this Agreement, the market value
of each Category comprised of cold rolled and galvanized sheet steel in coils
(“Coil Products”) and each Category comprised of merchant steel (“Merchant
Steel”) shall be equal to the sum of: (1) the product of (a) the average of the
per ton prices paid by the Sellers (such average to be appropriately weighted to
account for the total tons purchased in the domestic market compared to the
total tons purchased in the foreign market), as set forth on the related
purchase orders (including foreign and domestic purchases), for all raw material
inventory within the parameters of such Category purchased by the Sellers during
the ninety (90) day period ending on the last business day prior to the Closing
Date (the “Valuation Period”), multiplied by (b) the total tons of Raw Material
Inventory included in such Category; plus (2) any additions thereto provided for
in Section 1.07(a)(i)(C) below. If the Sellers have not made any
purchases of raw material within the parameters of any Category during the
Valuation Period, the per ton price used to calculate the market value of such
Category of Raw Material Inventory shall be equal to: (1) in the case of Coil
Products, the average U.S. Steel list price (per ton) less average discounts
received by Sellers on Coil Products during the Valuation Period applicable to
Raw Material Inventory included in such Category (and all additions provided for
in Section 1.07(a)(i)(C) below shall be added to the market value as so
calculated); or (2) in the case of Merchant Steel, the average list price (per
ton) of Purchaser less average discounts during the Valuation Period applicable
to the Raw Material Inventory included in such Category (and all additions
provided for in Section 1.07(a)(i)(C) below shall be added to the market
value as so calculated).




     (B) Cost. For purposes of this Agreement, the cost for each
Category of Raw Material Inventory shall be equal to the aggregate actual cost
to Sellers for all Raw Material Inventory included in such Category, plus (to
the extent not already included in such price) any additions thereto provided
for in Section 1.07(a)(i)(C) below.




     (C) Additions to Cost and Market Value. In addition to the
foregoing, the following shall be added to both the cost and market value of
each Category of Raw Material Inventory (as determined pursuant to subsections
(A) and (B) of this Section 1.07(a)(i)): (1) the aggregate actual cost
to the Sellers of all processing and other value-added services (including,
without limitation, perforation, painting, and coating) performed with respect
to the Raw Material Inventory in such Category; and (2) the total of all actual
freight costs incurred by the Sellers with respect to the Raw Material Inventory
in such Category.




     (ii) Valuation of Work-in-Process Inventory. Each item of the Sellers’
work-in-process inventory included in the Inventory and listed on Schedule



6









 







1.07(a)(ii), which schedule shall be updated as of the Closing (collectively,
the “WIP Inventory”), shall be valued at, and purchased by the Purchaser for, the
cost of the raw materials incorporated in such item of WIP Inventory (which shall be
determined in accordance with the provisions of subsections (i)(B) and (i)(C) of
this Section 1.07(a)).




     (iii) Valuation of Finished Goods Inventory. All of the Sellers’
finished goods inventory included in the Inventory and listed on Schedule
1.07(a)(iii), which shall be updated as of the Closing (collectively, the
“Finished Goods Inventory”), shall be valued at, and purchased by the Purchaser for,
the sum of: (A) the cost of the raw materials incorporated in such Finished Goods
Inventory (which shall be determined in accordance with the provisions of
subsections (i)(B) and (i)(C) of this Section 1.07(a)); plus (B) the
Sellers’ labor costs associated with the Finished Goods Inventory, which shall be
equal to the product of (1) the Sellers’ average total labor costs per ton for each
applicable type of work (short span, long span/girders, decking, accessories, etc.)
in the three (3) months immediately prior to the month in which the Closing occurs
multiplied by (2) the total tons of Finished Goods Inventory with respect to which
such work was performed; plus (C) the Sellers’ average overhead costs associated
with the Finished Goods Inventory, which shall be equal to the sum of (1) the total
tons of Finished Goods Inventory multiplied by the Sellers’ total average plant
overhead costs per ton for all finished goods produced by the Sellers in the three
(3) months immediately prior to the month in which the Closing occurs, plus (2)
$40.00 per ton of Finished Goods Inventory. The maximum price paid for finished
goods on any Contract will be the contract selling price minus the sum of (1) the
cost of freight to the job site plus (2) $50.00 per ton.




     (b) Resolution of Inventory Valuation Disputes. In the event Sellers and
Purchaser are unable to agree upon a mutually acceptable price for all or any part of the
Inventory (except as set forth in Section 1.07(c) below) prior to Closing, either
such party may notify the other of that party’s desire to submit the valuation of the
Inventory items in dispute to the President of the Steel Joist Institute or President of the
Steel Deck Institute, as appropriate, or such other person as may be mutually agreed upon by
Sellers and Purchaser (the “Arbitrator”). The Arbitrator shall, within forty-eight (48)
hours after designation, together with a representative of each party, inspect the Inventory
items in dispute. Prior to the Arbitrator’s inspection, representatives of Sellers and
Purchaser shall inform the Arbitrator and each other in writing of the quantity and value
placed on the disputed Inventory items by that party. Within twenty-four (24) hours of the
inspection, the Arbitrator shall determine the valuation of the Inventory items and advise
the parties in writing of its determination. The valuation determined by the Arbitrator
shall be that proposed by Sellers or that proposed by Purchaser, whichever (in the
Arbitrator’s opinion in its sole discretion) most closely approximates the Arbitrator’s
valuation (which shall be determined in accordance with the provisions of this Agreement).
The valuation of the party selected by the Arbitrator shall be the value for such disputed
items used in



7









 







calculating the Inventory Value. All travel, out-of-pocket expenses and
charges of the Arbitrator shall be shared equally by Sellers and Purchaser and paid at
Closing. Notwithstanding any other provisions of this Agreement to the contrary, the Closing
shall be postponed until the receipt of the Arbitrator’s decision.




     (c) Impracticability of Determining the Value of Certain Inventory. In
conducting the Joint Appraisal, each of the Sellers and the Purchaser recognize and agree
that there are certain items of imported inventory, commonly referred to as “cans”, with
respect to which inspection and valuation will be highly impracticable. Therefore, (i) each
of the Sellers and the Purchaser agree that all such cans shall be included in the Inventory
and (ii) the Sellers represent and warrant that none of such cans, nor any of the items
contained in such cans, are obsolete or not usable or salable in the ordinary course of the
Business as currently conducted by the Sellers.



     1.08 Closing. The Closing of the transactions contemplated by this Agreement (the
“Closing”) shall take place at the offices of Haynes and Boone, LLP, at its address at 901 Main
Street, Suite 3100, Dallas, Texas 75202 at 10:00 a.m. local time on the later of (i) March 26,
2007, or (ii) the third Monday following the last Saturday of the first calendar month after all
conditions to the Closing have been satisfied or waived, or at such other time or place or on such
other date as the parties hereto shall agree. The date on which the Closing occurs is herein
referred to as the “Closing Date.”



     II. ASSUMPTION OF LIABILITIES



     2.01 Assumed Liabilities. At the Closing, pursuant to an Assignment and Assumption
Agreement (the “Assignment and Assumption Agreement”), the form of which is attached hereto as
Exhibit A, the Sellers will assign, and Purchaser will assume, accept, and agree to pay,
perform, or otherwise discharge, in accordance with the respective terms and subject to the
respective conditions thereof, only the following duties, liabilities, and obligations
(collectively, the “Assumed Liabilities”): (a) the obligations of the Sellers to perform their
duties under the Unfinished Customer Contracts (as defined in Section 2.02(a) below); (b)
all real property leases (including without limitation, the lease (the “Summit Lease”) for the
property located at 25 De Forest Avenue, Summit, New Jersey, as amended by the Lease Amendment);
(c) the other contracts, agreements and arrangements specifically listed on Schedule 2.01
to this Agreement (the Assumed Liabilities set forth in clauses (a), (b), and (c) are collectively
referred to herein as the “Assumed Contracts”); and (d) the accrued or earned vacation liability
and “time bank liability” (as defined in Section 5.01) deducted from the Purchase Price
pursuant to Section 5.02. Purchaser does not assume or agree to pay, perform or discharge,
and shall not be responsible for, any claims, liabilities or obligations of any Seller which are
not Assumed Liabilities, whether accrued, absolute, contingent or otherwise, and whether known to
Purchaser or any Seller (the “Retained Liabilities”). Sellers agree that on and after the Closing
they will pay or otherwise provide for the payment and discharge of the Retained Liabilities.



     2.02 Unfinished Customer Contracts.



8









 






     (a) At the Closing, pursuant to the Assignment and Assumption Agreement, the Sellers
shall assign, and Purchaser will assume, accept, and agree to pay, perform, or otherwise
discharge, in accordance with the respective terms and subject to the respective conditions
thereof, all of the Sellers’ contracts to provide goods or services to customers which have
not been completed as of the Closing Date (the “Unfinished Customer Contracts”).




     (b) The Purchaser shall receive a credit against payment of the Purchase Price equal to
the amount, if any, by which, as of the Closing Date, the amount invoiced by the Sellers to
customers under the Unfinished Customer Contracts exceeds the value (determined, in each
case, pursuant to the terms of the applicable Unfinished Customer Contract) of services
performed and units delivered by the Sellers under such Unfinished Customer Contracts. The
sum of all over billings or advance billings by Sellers at Closing shall be a credit to the
Purchase Price at Closing. Schedule 7.06(b) shall be updated on the Friday prior to
Closing and shall serve as the basis for determining the over or advance billing amount.




     (c) Purchaser shall have the right to review all Unfinished Customer Contracts
immediately after execution of this Agreement. After execution of this Agreement, Sellers
agree to allow Purchaser to have reasonable access, during normal business hours to Sellers’
offices to facilitate the completion of the transactions contemplated hereby, including, but
not limited to, work force integration, review of internal controls, and review of the
Unfinished Customer Contracts.




     (d) Purchaser may be entitled to indemnification pursuant to Section
10.01(a)(vii) hereof, in accordance with the terms and conditions set forth therein, to
the extent that Sellers’ aggregate estimates with respect to the units necessary to complete
the Unfinished Customer Contracts turn out to have been too low. For purposes of this
Agreement, units of joist are measured by the ton and units of deck are measured by squares.




     (e) Progress Schedules.




     (i) Interim Schedules. Progress schedules shall be provided to the
Sellers on a quarterly basis detailing the progress on each Unfinished Customer
Contract. Thirty (30) days after the end of each calendar quarter but no sooner than
ninety (90) days after the Closing, Schedule 7.06(b) shall be updated to
reflect the number of squares of deck or tons of joist shipped during the previous
time frame.




     (ii) Final Schedule. Within thirty (30) days after Purchaser’s
completion of all Unfinished Customer Contracts, Purchaser shall deliver to Sellers



9









 







a schedule (the “Final Contract Schedule”) setting forth with respect to each
Unfinished Customer Contract:




     (A) the total number of each type of unit delivered by Purchaser under
such contract;




     (B) with respect to each type of unit, the difference, positive or
negative (the “Difference”), between (1) the Sellers’ estimate, to be
provided by the Sellers to the Purchaser at the Closing, of the number of
such units still required, as of the Closing Date, to complete such
Unfinished Customer Contract and (2) the actual number of such units
required for Purchaser to complete such contract; and




     (C) the aggregate value, positive or negative (the “Adjustment
Value”), of all Differences with respect to such Unfinished Customer
Contract, which shall be calculated using the applicable unit prices set
forth in such Unfinished Customer Contract.




Anything to the contrary in this Section 2.02(e)(ii) notwithstanding: (x)
any units used by Purchaser in its performance under any Unfinished Customer Contract
that were damaged, wasted, lost, used improperly, required replacement or
substitution, or were otherwise not necessary for the completion of such Unfinished
Customer Contract due to, or in any way related to, any fault of Purchaser or Sellers
shall not be included in the calculation set forth in clause (B) of this Section
2.02(e)(ii); (y) no amendments, changes, or revisions to any Unfinished Customer
Contract after the Closing shall be taken into account in such to the extent that
additional units are required as a result of any such amendment, change, or revision;
and (z) any units used by Purchaser due to any fault of Sellers other than Sellers’
estimates will be reimbursed to Purchaser at the unit values provided in Schedule
7.06(b) and will not go against the basket provided in Section 10.04;




     (iii) The Sellers shall have forty-five (45) days after receipt thereof to
review the Final Contract Schedule. Purchaser shall promptly respond to any and all
requests for additional information made by the Sellers (or any of their respective
representatives) in connection with the Final Contract Schedule, or any
determinations, computations, or decisions made in preparation thereof, and afford
the Sellers (and their representatives) reasonable access to the underlying books
and records from which such schedule was prepared. If Sellers shall disagree with
any item of (or omission from) the Final Contract Schedule, or any determination,
computation, or decisions made in the preparation thereof, the Sellers shall, within
sixty (60) days of receipt of the Final Contract Schedule, serve notice of such
disputed item or items on Purchaser. The Sellers and the Purchaser shall thereupon
endeavor to reach agreement with respect thereto. If such agreement is not reached
within sixty (60) days of notice of such



10









 







disagreement, such disputed item or items
shall be submitted to arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association (“AAA”) by one (1) arbitrator agreed
upon by both parties to this Agreement. If the parties fail to agree on the
arbitrator within thirty (30) days from the date of the demand to arbitrate, the AAA
shall make appointment of the arbitrator. The arbitration hearing shall be held in
New York City, New York at a location designated by the arbitrator. The substantive
laws of the State of Delaware (excluding conflict of laws provisions) shall apply to
the arbitration. The arbitration hearing shall be concluded within ten (10) days
unless otherwise ordered by the arbitrator and the award thereon shall be made
within fifteen (15) days after the close of submission of evidence. An award
rendered by the arbitrator will be binding and may be entered by either party in a
court of competent jurisdiction as a final judgment; provided,
however, that (a) errors of law shall be judicially reviewable on motion of
either party and (b) the arbitrator shall not be entitled to award punitive,
exemplary or similar damages. The arbitration provisions hereof shall, with respect
to such controversy or dispute, survive the termination or expiration of this
Agreement. The expenses of such arbitration shall be shared equally by Purchaser,
on the one hand, and Sellers, on the other. Purchaser and Sellers shall furnish to
such arbitrator such records, workpapers, and other documents and information
relating to the disputed items as such arbitrator may request.



     2.03 Additional or Amended Unfinished Customer Contracts. From the date of execution of
this Agreement until Closing or earlier termination of this Agreement, Sellers shall consult with
Purchaser prior to (i) entering into any new contract with a customer having a value greater than
$100,000, the completion of which would take place after the Closing, or (ii) amending any
Unfinished Customer Contract, the completion of which would take place after the Closing, so as to
increase the value of products or services to be provided by Sellers after the Closing by an amount
greater than $50,000.



     III. ACCOUNTS RECEIVABLE



     3.01 Collection of Receivables by Purchaser on Behalf of Sellers. The parties agree and
acknowledge that the Sellers are retaining their accounts receivable and not selling same to
Purchaser in connection with the transactions contemplated by this Agreement. During the period
expiring six (6) months after the Closing (the “Collection Period”), Purchaser hereby agrees to
collect, on behalf of and for the account of the Sellers, the Seller Receivables outstanding as of
the Closing. Purchaser hereby agrees to use its commercially reasonable efforts to collect all of
the Seller Receivables, and to employ Phyllis Gaiti, who currently works for the Sellers in such
capacity (or, if Ms. Gaiti’s employment shall cease during the Collection Period, a person mutually
agreed to by Sellers and Purchaser), to assist in the collection of such Seller Receivables.
Purchaser shall pay to the Company all collections made by it with respect to the Seller
Receivables within five (5) business days of receipt by Purchaser.



11









 





     3.02 Collection of Receivables by Each Party. Without limiting the foregoing provisions of
Section 3.01, with respect to their respective accounts receivable collection practices
from and after the Closing, Purchaser and Sellers agree as follows: (i) if a payment received from
a customer indicates that the payment is being made on an account owned by the party that has
received it, such party shall retain such payment; and (ii) if a payment received by Purchaser, on
the one hand, or by the Sellers, on the other hand, from a customer indicates that the payment is
being made on an account not owned by the receiving party, such party shall endorse (if necessary)
and remit such payment to the appropriate party within five (5) business days after receipt. If
Purchaser receives a payment from a customer who owes the Sellers and Purchaser, and the payment
does not designate that it is in payment of either a Seller Receivable or Purchaser’s receivable,
then Purchaser will deposit that payment and contact the customer to determine to which receivable
the payment applies and apply such payment accordingly.



     3.03 Rights Reserved by the Sellers. The Sellers reserve the right to assume control of
the collection, and to use any methods, practices and policies they deem commercially reasonable
with respect to such collection, of any of the Seller Receivables which are more than 90 days past
due (including, without limitation, turning any or all of such Seller Receivables over to one or
more collection agencies). Anything to the contrary in this Agreement notwithstanding, each Seller
shall have the right to use its name as of the date of this Agreement from and after the Closing to
the extent it deems necessary to collect the Seller Receivables, provided that each Seller includes
“formerly known as” immediately prior to any use of such name.



     IV. NON-COMPETITION AGREEMENTS



     4.01 Non-Competition Agreement. Except as otherwise provided in Section 4.02 below,
Sellers, Bouras and the Foundation agree and covenant with Purchaser that, for a period of five (5)
years after the Closing Date, each of them will not, except pursuant to any written consulting or
employment agreement with Purchaser, or as set forth in Section 4.02, directly or
indirectly, through themselves or any of their respective Affiliates (except as set forth in
Section 4.02 below), either (i) own, manage, operate, finance, join, control or participate
in the ownership, management, operation, financing, or control of, or be employed by or connected
in any manner with any business which is or proposes to engage in any business similar to the
Business, including without limitation a business for manufacturing and selling steel deck, joist
and related products, together with services related to such activities including estimating,
engineering, detailing, trucking, and operating from a plant or office within a distance of 400
miles from the current location of the Facilities; or (ii) solicit or in any manner attempt to
influence or induce any employee employed, now or in the future, by Purchaser or any Affiliate of
Purchaser, to leave such employment. As used in this Agreement, an “Affiliate” of a specified
person or entity is a person or entity that directly, or indirectly through one or more
intermediaries, controls, is controlled by, exercises a controlling influence over, or is under
common control with, the person or entity specified. In consideration for the covenants of the
Sellers, Bouras, and the Foundation under this Article IV, Purchaser shall pay $2,000,000
in cash (the “Non-Compete Payment”) to the Sellers, Bouras, and the Foundation, as follows: (i)



12









 







$1,000,000 to the Sellers; (ii) $500,000 to Bouras; and (iii) $500,000 to the Foundation. The
Non-Compete Payment shall be paid hereunder at the Closing in accordance with Section
13.02 hereof.



     4.02 Exceptions. Notwithstanding the foregoing restrictions, nothing in this Agreement
shall: (i) restrict PCM or Bouras Properties, LLC (“BP”) from continuing to conduct their
respective businesses as currently conducted; (ii) restrict Sellers, PCM, or BP, or any of their
respective Affiliates, from operating any trucking or other transportation, shipping or delivery
business related to the business currently conducted by PCM; (iii) restrict or prohibit ownership
by any of the Sellers or any of their respective Affiliates of five percent (5%) or less of the
issued and outstanding capital stock of any company whose securities are publicly traded; or (iv)
restrict the Sellers’ ability to sell any of their assets as of the Closing not purchased by
Purchaser hereunder.



     4.03 Remedies. The parties agree that in the case of a breach by any of Sellers, Bouras or
the Foundation of Section 4.01, damages would be difficult, if not impossible, to prove,
and Purchaser shall be entitled to injunctive relief against Sellers, Bouras and/or the Foundation,
as the case may be, which shall not be Purchaser’s exclusive remedy. If any Seller, Bouras or the
Foundation is found to have violated Section 4.01, the parties agree that the duration of
the non-competition period set forth above shall be automatically extended by the same period of
time that the breaching Seller, Bouras or the Foundation is determined to be in violation of the
foregoing agreements. The parties hereby further agree that the restrictions and obligations herein
set forth are (i) reasonable and necessary to protect the substantial value of the Acquired Assets
Purchaser is acquiring from Sellers and (ii) are reasonable and beneficial to Sellers, Bouras and
the Foundation in light of the substantial benefits to be realized by Sellers, Bouras and the
Foundation by virtue of the transactions described herein. If any of the foregoing restrictions
should be finally determined by any court to be unenforceable in any particular area or
jurisdiction or enforceable in such area or jurisdiction only if modified in duration or scope,
then the parties agree that this Agreement shall be amended and modified so as to eliminate
therefrom the particular area or jurisdiction as to which such restriction is so held to be
unenforceable or deemed amended or modified in duration or scope to comply with such court order,
and as to all other areas and jurisdictions and terms and provisions hereof shall remain in full
force and effect as originally written. Notwithstanding any other provision of this Agreement, the
provisions of this Article IV and the rights and remedies to enforce such provisions shall
be assignable in favor of any successor or assignee of Purchaser.



     V. EMPLOYEE BENEFITS



     5.01 Payment of Employee Benefits. The Sellers shall be responsible for the payment of all
wages, salaries and other benefits, including but not limited to vacation pay or accrual for
vacation pay, or any other benefits (collectively, the “Benefits”), owing to its employees for
services prior to the Closing Date. Schedule 5.01 shows the accrued vacation liability and
“time bank liability” (Personal Time Off Program for hourly employees) of the Company and
calculates vacation and “time bank” accrual. Any vacation pay or “time bank liability” accrued



13









 







or earned prior to the Closing Date, but not paid by the Sellers as of the Closing Date with respect
to Transferred Employees (as defined in Section 5.02(a)), shall be deducted from the
Purchase Price. Except as otherwise provided herein and except for vacation pay and “time bank
liability” deducted from the Purchase Price, the Sellers acknowledge and agree that Purchaser shall
have no responsibility to the employees of the Sellers for any Benefit or any Employee Benefit Plan
(as defined in Section 7.23(a) hereof) accrued or earned prior to the Closing Date,
including but not limited to, any retirement, severance, bonus, vacation or any other Benefit
earned under any employee benefit program (including but not limited to any Employee Benefit Plan
of the Sellers).



     5.02 401(k) Plans. 




     (a) Each of Sellers’ Employee Benefit Plans that is a Qualified Plan (as defined in
Section 7.23(d) hereof) with a qualified cash or deferred arrangement under Section
401(k) of the Internal Revenue Code of 1986, as amended (the “Code”), (the “401(k) Plan”),
other than any 401(k) Plan that is provided for pursuant to a collective bargaining
agreement entered into by Purchaser (a “Union 401(k) Plan”) (any 401(k) Plan that is not a
Union 401(k) Plan, being referred to herein as a “Non-Union 401(k) Plan”) authorizes, or
prior to Closing Sellers will cause its Non-Union 401(k) Plan to be amended to authorize,
distributions to Transferred Employees upon a severance from employment, as described in
Code Section 401(k)(2)(B)(i). “Transferred Employees” shall mean any employee of the
Sellers who is employed by Purchaser as of the Closing Date.




     (b) Transferred Employees; Credit for Prior Service. Except as provided in
Section 5.02(d) below, the Sellers will inform Transferred Employees of their right
to request distributions of their account or accounts in the Non-Union 401(k) Plan as
permitted under Code Sections 401(k)(2)(B)(i) or 401(k)(10). Purchaser agrees to permit
each Transferred Employee to “rollover” the distribution such Transferred Employee receives
from the respective Seller’s Non-Union 401(k) Plan into a profit sharing and 401(k) plan
sponsored by Purchaser provided that the distribution complies with all applicable
requirements of law, regulations and terms of Purchaser’s plan with respect to eligibility
and acceptance of “rollover” contributions. Effective as of the Closing Date, with respect
to Transferred Employees, Purchaser shall treat prior service as an employee of the Sellers
as service with Purchaser for purposes of determining eligibility to participate, vesting,
and employer contribution benefits, if any, with respect to the profit sharing and Non-Union
401(k) Plan sponsored by Purchaser or other comparable plan sponsored by Purchaser covering
the Transferred Employees, provided, however, that in no event shall
Transferred Employees be entitled to any credit to the extent that it would result in a
duplication of benefits with respect to the same period of service.




     (c) Non-Union 401(k) Plan Transfer. Prior to or on the Closing Date, Sellers
will transfer the sponsorship of its Non-Union 401(k) Plan to its remaining entity, PCM.
Sellers will be responsible for, and shall take all actions necessary, to communicate such



14









 







transfer as required by law or regulation to all of the Sellers’ affected participants and
shall do any and all further acts required by law or regulation.




     (d) Assumption of Union 401(k) Plan. Purchaser agrees to assume sponsorship of
Sellers’ Union 401(k) Plan, known as the New Columbia Joist Company Savings Plan, as of the
Closing Date. On or prior to the Closing Date, Sellers will take all actions necessary to
permit the transfer of sponsorship of said Plan to Purchasers and to provide that the
participants who are Transferred Employees shall not be entitled to request distributions of
their accounts as a result of the transactions provided for herein. Effective as of the
Closing Date, with respect to Transferred Employees, Purchaser shall treat prior service as
an employee of the Sellers as service with Purchaser for all purposes under the Union 401(k)
Plan.



     5.03 Health Care Continuation Coverage and Health Insurance Portability and Accountability
Act. 




     (a) Sellers acknowledge and agree that Purchaser shall have no obligation to provide
continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended (“COBRA”) to any “M&A Qualified Beneficiaries” (as defined in Section 54.5980B-9,
Q&A-4 of the regulations promulgated under the Code (the “Tax Regulations”)), for any period
prior to, on, or after the Closing Date so long as Sellers or any ERISA Affiliate continues
to maintain a group health plan (as defined in Section 5000b of the Code, Section 607 of
ERISA, or both) after the Closing Date and does not cease to provide coverage under such
group health plan to the current or former employees of the Company in connection with the
sale (as such phrase is described in Section 54.4980B-9, Q&A-8 of the Tax Regulations,
whether or not such regulations apply to this Agreement) contemplated by this Agreement.




     (b) In the event the Sellers and all of their ERISA Affiliates cease to provide
coverage under a group health plan in connection with the sale contemplated by this
Agreement, Sellers, Bouras and the Foundation agree to indemnify Purchaser in accordance
with the provisions of Section 10.01(a)(viii) for the amount, if any, by which (i)
the aggregate amount of all claims incurred and payable under the terms of Purchaser’s group
health plan to the M&A Qualified Beneficiaries to whom Purchaser is obligated to provide
continuation coverage under COBRA exceeds (ii) the aggregate amount of premiums collected by
Purchaser from such M&A Qualified Beneficiaries for such continuation coverage.



     5.04 Pension Plans.




     (a) Prior to the Closing Date, Sellers will take all proper action necessary, including
the adoption of resolutions of their respective Board of Directors, to transfer the Employee
Benefit Plans that are subject to Title IV of ERISA or Section 412 of the Code to its
remaining entity, PCM, other than any such Plans that are provided for pursuant to a



15









 







collective bargaining agreement entered into by Purchaser (the “Non-Union Pension Plans”).
Sellers will be responsible for, and shall take all actions necessary, to communicate such
transfer as required by law or regulation to all of the Sellers’ affected participants and
shall do any and all further acts required by law or regulation.




     (b) Prior to the Closing Date, Sellers will take all proper actions necessary and
legally permissible to contribute on a deductible basis to any Employee Benefit Plans that
are subject to Title IV of ERISA or Section 412 of the Code and are provided for pursuant to
a collective bargaining agreement entered into by Sellers, other than any “multiemployer
plans” as that term is defined in Section 4001 of ERISA (the “Union Pension Plans”), the
amount necessary to fully fund the liabilities under the plan based on the following
actuarial assumptions: The interest rate shall be the corporate bond weighted average
interest rate specified under Section 412(b)(5)(B)(ii)(II) of the Code for the month in
which the Closing Date occurs; the mortality table shall be the separate annuitant and
non-annuitant tables set forth in Section 1.412(i)(7)-1 of the Final Treasury Regulations,
effective February 2, 2007; and the turnover and retirement assumptions shall be as set
forth on Exhibit B. If the entire amount determined above cannot be contributed to
those Plans, either legally or on a deductible basis, then the amount that cannot be so
contributed shall be deducted from the Purchase Price.




     (c) Effective as of the Closing Date, with respect to Transferred Employees, Purchaser
shall treat prior service as an employee of the Sellers as service with Purchaser for all
purposes under the Union Pension Plan.



     5.05 Purchaser Benefit Plans. Purchaser agrees that all Transferred Employees shall be eligible to enter Purchaser’s health
and welfare plans on their date of hire by Purchaser and shall not be subject to any pre-existing
condition exclusion. Notwithstanding anything in this Agreement to the contrary, if at any time
Transferred Employees become eligible to participate in any plans of Purchaser providing post
retirement health and/or post retirement life insurance coverage and/or defined benefit pension
benefits, to the extent not otherwise provided pursuant to any collective bargaining agreement
entered into by Purchaser at or after Closing, only service with Purchaser after the Closing Date
shall be credited for purposes of satisfying the eligibility requirements under said plans.



     VI. REAL ESTATE TITLE APPROVAL AND CONVEYANCE 



     6.01 Escrow; Escrow Instructions. The conveyance of the Company Real Estate and delivery
of documents of title to the Company Real Estate shall be accomplished through an escrow
arrangement (“Real Property Escrow”) established with Chicago Title Insurance Company (the “Title
Company”). The parties will execute and deliver to the Title Company prior to the Closing, escrow
instructions (“Escrow Instructions”) in form and substance mutually satisfactory to the parties.
The Escrow Instructions will provide that the cost of the Real Property Escrow will be shared by
Purchaser and Sellers equally. In the event of any



16









 







conflict or inconsistency between the
provisions of any printed form escrow instructions and the provision of this Agreement, the
provisions of this Agreement shall control.



     6.02 Survey. As soon as reasonably practicable (but in no event later than the earlier of
(i) forty-five (45) days following the date of this Agreement, or (ii) the forty-fifth
(45th) day prior to Closing), Sellers will deliver to Purchaser a copy of an ALTA/ACSM
Land Title Survey (each a “Survey”), prepared by Bock & Clark Corporation, of each of the tracts
comprising the Company Real Estate, each of which shall include: (a) a metes and bounds description
showing (i) the actual dimensions of each tract, (ii) the outside boundary lines of all
improvements, including buildings, walkways, sidewalks and parking areas, (iii) the location of any
easements, encroachments, overlaps, roadways or waterways, and (iv) all easements, set back lines
or other matters referred to in the title commitment for each tract; and (b) a surveyor’s
certificate in the form attached hereto as Exhibit C. Purchaser shall pay 50%, and Sellers
shall collectively pay 50%, of the aggregate cost for each Survey.



     6.03 Title Binders.



     (a) As soon as reasonably practicable (but in no event later than the earlier of (i)
forty-five (45) days following the date of this Agreement, or (ii) the forty-fifth
(45th) day prior to Closing), Sellers will deliver to the Purchaser a title commitment
(each, a “Binder”) covering each tract of the Company Real Estate and binding the Title Company to
issue an ALTA Owner’s Policy of Title Insurance (the “ALTA Policy”) insuring title to such tract.
The amount of the ALTA Policy shall be equal to the amount of the purchase price allocated to the
Company Real Estate as determined pursuant to Section 1.06. At the same time as any Binder
is delivered to Purchaser, or as soon as reasonably practicable thereafter, Sellers will deliver to
Purchaser true, correct and legible copies of any and all instruments referred to in such Binder as
constituting exceptions or restrictions upon the title covered thereby.



     (b) Any exceptions set forth in any Binder or Survey and not objected to by Purchaser within
twenty (20) days of its receipt of such Binder (together with copies of all available documents
listed in such Binder and the Survey for the property covered by such Binder), shall be Permitted
Exceptions hereunder. If Purchaser notifies the Sellers in writing of any such objections (the
“Objections”) within such twenty (20) day period, then, within ten (10) days after Sellers’ receipt
of such notice from Purchaser, the Sellers shall notify Purchaser in writing (the “Sellers’ Title
Response Notice”) of the Objections which Sellers agree to satisfy at or prior to the Closing (at
the Sellers’ sole cost and expense) and of the Objections that the Sellers cannot or will not
satisfy. Anything in this Agreement to the contrary notwithstanding, the Sellers shall only be
obligated to cure (i) those Objections that are mortgages placed against the Company Real Estate by
the Sellers (or any of their respective affiliates), (ii) encumbrances that have been voluntarily
placed against the Company Real Estate by the Sellers after the date of this Agreement and before
the Closing Date, and (iii) monetary judgments against the Sellers which constitute Liens on the
Company Real Estate (collectively the “Required Objections”). If the Sellers choose not to satisfy
all or any of the Objections that are not Required Objections (any such Objection that will not be
satisfied, an “Unsatisfied Objection”), Sellers shall notify



17









 







Purchaser thereof within the
applicable ten (10) day period. If any Unsatisfied Objection will have an adverse affect on the
current use of the Company Real Estate, Purchaser shall have the option (to be exercised within
seven (7) days following (y) Purchaser’s receipt of the Sellers’ Title Response Notice or (z) the
expiration of Sellers’ ten (10) day cure period if Sellers fail to timely deliver Sellers’ Title
Response Notice (the “Option Period”)) of either (i) terminating this Agreement (the “Termination
Right”) or (ii) electing to consummate the purchase of the Company Real Estate in connection with
the Closing hereunder, in which case Purchaser shall be deemed to have waived such Objections
without any abatement or reduction of the Purchase Price and such Objections shall be Permitted
Exceptions hereunder. Failure by Purchaser to respond to Sellers within the Option Period shall be
deemed an election by Purchaser to waive the applicable Objection(s), which shall be Permitted
Exceptions hereunder. Failure by the Sellers to timely deliver Sellers’ Title Response Notice to
Purchaser shall be deemed the Sellers’ election not to cure Purchaser’s Objections. The Sellers
may cure any Objections (or other exceptions to title) by having the Title Company insure over said
exception on or prior to the Closing Date. To the extent the Sellers have elected to satisfy any
Objection and are diligently proceeding to do so, at Purchaser’s sole option, the Closing shall be
delayed for a reasonable period of time (not to exceed ninety (90) days) if necessary to permit the
Sellers to complete all actions required for the Sellers to fully satisfy such Objection.



     (c) Purchaser shall pay 50%, and Sellers shall collectively pay 50%, of the aggregate cost of
each Binder.



     6.04 Conveyance by Special Warranty Deed. Sellers will convey to Purchaser by special
warranty deed(s) (or other substantially similar form of deed commonly used in the jurisdiction
where the Company Real Estate is located if use of a special warranty deed is not available or is
not commonly used in any particular jurisdiction), with covenants against grantor’s acts (the
“Deeds”), title to the Company Real Estate free and clear of any and all encumbrances or
restrictions, other than (i) any Permitted Exceptions (including, without limitation, Permitted
Exceptions contemplated by Section 6.03 above) and (ii) those permitted exceptions listed
on Schedule 6.04. All real estate taxes relating to the Company Real Estate and all
utilities related to the Business or the operation of the Facilities shall be paid current and
prorated as of the Closing Date.



     VII. REPRESENTATIONS AND WARRANTIES OF SELLERS, BOURAS AND THE FOUNDATION



     As a material inducement to Purchaser to execute and perform its obligations under this
Agreement, and in addition to any other representation and warranty contained herein, Sellers and
Bouras, jointly and severally, represent and warrant to Purchaser as set forth below in this
Article. As used in this Agreement with respect to any Seller, “knowledge” means the actual
knowledge, after due inquiry, of Bouras, Tim Day, James Francisco, Kevin J. Gennarelli, Carl R.
Koehler, Gary E. Ruckelshaus, and, solely with respect to the representations and warranties set
forth in Section 7.08 below, William S. Crane and, solely with respect to the
representations and warranties set forth in Section 7.19 below, Greg Gemgnani.



18









 





     7.01 Organization of the Sellers. 




     (a) Each Seller is a corporation validly existing, and in good standing under the laws
of the jurisdiction of its organization, and each has all requisite corporate power and
authority to own, operate, and lease its properties, to carry on such aspects of the
Business as are presently being conducted by it, to enter into this Agreement and to carry
out and perform the terms and provisions of this Agreement. Each Seller is qualified or
licensed to do business and is in good standing in every jurisdiction wherein the failure to
be so qualified would result in a Material Adverse Change. Except for the Subsidiaries and
as set forth on Schedule 7.01, the Company has no subsidiaries and has no direct or
indirect interest (other than as a creditor under accounts receivable), either by way of
stock ownership or otherwise, in any other firm, corporation, association, or business
enterprise.




     (b) Each Seller has delivered to Purchaser complete and correct copies of its
Certificate of Incorporation and Bylaws, as they may have been amended.




     (c) For purposes of this Agreement: “Material Adverse Change” means a material adverse
change in (i) the business, condition (financial or otherwise), capitalization, properties,
assets, liabilities, operations, or results of operations of the Sellers or the Business, or
(ii) the ability of the Sellers to consummate the transactions contemplated by this
Agreement, to perform any of their obligations under this Agreement, or to fulfill their
conditions to Closing under this Agreement, or (iii) the ability of the Purchaser to own and
operate the Business after the Closing in all material respects as it is currently being
operated, and no event has occurred or circumstance exists that may result in such a
Material Adverse Change. It is understood and agreed, however, that none of the following
shall be deemed to constitute, nor shall any of the following be taken into account in
determining whether there has occurred a Material Adverse Change: (i) any change in general
economic conditions or in the United States economy, other than any such changes which have
had a materially disproportionate affect on the Business; (ii) any change affecting any
industry in which the Sellers operate, other than any such changes which have had a
materially disproportionate affect on the Business; (iii) the announcement of this Agreement
and the transactions contemplated hereby; (iv) the taking of any action required by this
Agreement or to which Purchaser has given its written consent; or (v) any changes or effects
resulting from the actions of Purchaser.



     7.02 Authorization.




     (a) Each Seller has full corporate power and authority to execute and deliver this
Agreement, the Bill of Sale transferring the Acquired Assets that are not real property, the
form of which is attached hereto as Exhibit D (the “Bill of Sale”), the Assignment
and Assumption Agreement, the Escrow Agreement, the Environmental



19









 







Escrow Agreement, the
Access Agreement, the Lease Amendment, and all other agreements and instruments executed by
it in connection with this Agreement (collectively, the “Ancillary Agreements”), and to
consummate the transactions contemplated hereby and thereby. The execution and delivery by
each Seller of this Agreement and the Ancillary Agreements to which it is a party, the
performance by each Seller of its respective obligations hereunder and thereunder, and the
consummation by each Seller of the transactions contemplated hereby and thereby, have been
duly authorized, by all necessary action of its Board of Directors and shareholders. With
respect to each Seller, no other corporate action on the part of such Seller is necessary to
authorize the execution and delivery of this Agreement and the Ancillary Agreements to which
it is a party or the consummation of the transactions contemplated hereby and thereby.




     (b) Each of Bouras and the Foundation has the absolute and unrestricted right, power,
authority, and capacity to execute and deliver this Agreement and the Ancillary Agreements
to which it is a party, to consummate the transactions contemplated hereby and thereby, and
to perform its respective obligations under this Agreement and the Ancillary Agreements to
which it is a party.




     (c) With respect to each of the Sellers and each of Bouras and the Foundation: (i) this
Agreement, and each of the Ancillary Agreements to which it is a party, has been duly and
validly executed and delivered by it; and (ii) upon due authorization, execution, and
delivery by all other parties hereto and thereto, this Agreement, and each of the Ancillary
Agreements to which it is a party, will constitute the valid and binding obligation of such
party enforceable against it in accordance with its terms, except as limited by (i)
bankruptcy, insolvency, reorganization, moratorium or other laws of general application
affecting enforcement of creditors’ rights, and (ii) general principles of equity that
restrict the availability of equitable remedies.



     7.03 No Violation.




     (a) The execution and delivery by each Seller of this Agreement and the Ancillary
Agreements to which such Seller is a party, the performance by Sellers of their respective
obligations hereunder and thereunder, and the consummation by Sellers of the transactions
contemplated hereby and thereby will not (a) violate or result in any breach of any provision
of the Certificate of Incorporation or Bylaws, or other organizational or governance
documents or instruments, of any Seller, (b) except as set forth in Schedule 7.03,
violate or result in a breach of, or constitute a default (with or without due notice or
lapse of time or both) under, permit the termination of, result in the acceleration of,
entitle any party to accelerate any obligation under, or result in the loss of any benefit of
any Seller under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust, Permit, lease, agreement, contract or other instrument or
obligation to which any Seller is a party or by which any Seller or any of its properties or
assets may be bound or affected, (c) assuming that all consents, approvals, authorizations



20









 







and permits described in Section 7.05 have been obtained and all filings and
notifications described in Section 7.05 have been made and any waiting periods
thereunder have terminated or expired, conflict with or violate any Law or Order of any
Governmental Authority applicable to any Seller or any of their respective assets and
properties, (d) cause Purchaser or the Acquired Assets to become subject to, or cause
Purchaser to become liable for the payment of, any Tax (as hereinafter defined), except as
may arise under any “bulk transfer” or similar laws of any jurisdiction (e) except for the
Company Real Estate, cause any of the Acquired Assets to be reassessed or revalued by any
taxing authority or other Governmental Authority, or (f) result in the imposition or creation
of any Lien upon or with respect to any of the Acquired Assets.




     (b) For purposes of this Agreement: (i) “Law” shall mean and include any law, statute,
ordinance, Order, rule or regulation of, and the terms of any permit or other governmental
authorization issued by, any Governmental Authority; (ii) “Order” shall mean and include any
order, judgment, injunction, decree, ruling, pronouncement, determination, stipulation,
decision, opinion, sentence, subpoena, writ or award issued, made, entered or rendered by
any court, administrative agency or other Governmental Authority or by any arbitrator; and
(iii) “Governmental Authority” shall mean any (A) national, federal, state, provincial,
county, city, town, village, district, or other jurisdiction, domestic or foreign, (B)
national, federal, state, provincial, municipal, local, foreign or other government, or (C)
governmental or quasi-governmental authority (including any governmental agency, branch,
department, office or entity and any court or other tribunal).



     7.04 Ownership.




     (a) The authorized capital stock of the Company consists solely of 1,000 shares of
common stock, no par value, of which 1,000 shares are duly authorized, validly issued and
outstanding, fully paid and non-assessable. All of the issued and outstanding capital
stock of the Company is owned of record and beneficially by Bouras and the Foundation;
Bouras owns 50.1% and the Foundation owns 49.9%.




     (b) The authorized capital stock of NJBI consists solely of 1,000 shares of common
stock, no par value, of which 100 shares are duly authorized, validly issued and
outstanding, fully paid and non-assessable. All of the issued and outstanding capital
stock of NJBI is owned of record and beneficially by the Company.




     (c) The authorized capital stock of USD consists solely of 300 shares of common stock,
no par value, of which 100 shares are duly authorized, validly issued and outstanding, fully
paid and non-assessable. All of the issued and outstanding capital stock of USD is owned
of record and beneficially by the Company.




     (d) The authorized capital stock of ABA consists solely of 2,400 shares of common
stock, no par value, of which 500 shares are duly authorized, validly issued and



21









 







outstanding, fully paid and non-assessable. All of the issued and outstanding capital
stock of ABA is owned of record and beneficially by the Company.




     (e) The authorized capital stock of NCJC consists solely of 1,000 shares of common
stock, $1.00 par value, of which 1,000 shares are duly authorized, validly issued and
outstanding, fully paid and non-assessable. All of the issued and outstanding capital
stock of NCJC is owned of record and beneficially by the Company.



     7.05 Consents and Approvals. Except as set forth in Schedule 7.05, Section
9.16 and under the rules and regulations of the Antitrust Laws, no filing or registration with,
no notice to and no Permit, consent or waiver of any third party is necessary for the consummation
by Sellers of the transactions contemplated by this Agreement and the Ancillary Agreements,
including, without limitation, the assignment to Purchaser of the Assumed Contracts.



     7.06 Financial Statements; Schedule of Contracts.




     (a) Each Seller has delivered to Purchaser (i) copies of its audited balance sheets as
of February 29, 2004, February 28, 2005 and February 28, 2006, and its related audited
statements of income and retained earnings and cash flow for the years then ended, and the
notes thereto, accompanied by the report thereon of the applicable firm of independent
public accountants (collectively, the “Annual Financial Statements”), and (ii) copies of the
unaudited balance sheets of each Seller as of November 30, 2006 (the “2006 Balance Sheet”),
together with the related unaudited statement of operations, retained earnings and cash
flows for the interim period ended on such date (collectively, the “2006 Financial
Statements”), certified by the chief financial officer of each Seller (such Annual Financial
Statements and 2006 Financial Statements being hereinafter collectively referred to as the
“Financial Statements”). The Financial Statements, including the notes thereto, (i) were
prepared in accordance with generally accepted accounting principles applied on a consistent
basis (“GAAP”) throughout the periods covered thereby, except as otherwise disclosed in
Schedule 7.06(a), (ii) present fairly the financial position, results of operations
and changes in cash flows of the Sellers as of their respective dates and for the periods
then ended (subject, in the case of the 2006 Financial Statements, to normal year-end
adjustments consistent with prior periods that would not be material, individually or in the
aggregate), and (iii) in the case of the Annual Financial Statements, have been audited in
accordance with generally accepted auditing standards.



22









 






     (b) Schedule 7.06(b), sets forth, with respect to all Unfinished Customer
Contracts as of the date of this Agreement, the names of the parties, the date of the
contract, and the total payments expected by Sellers under each. Schedule 7.06(b)
shall be amended every thirty (30) days from the execution of this Agreement, two (2) days
prior to the Closing Date, and as of the Closing Date to include a final list of all
Unfinished Customer Contracts that Purchaser is assuming after giving effect to the
provisions of Section 2.02.




     (c) Sellers hereby represent and warrant that (i) the information listed on
Schedule 7.06(b) is correct and complete in all material respects, (ii) as of the
Closing, each Unfinished Customer Contract may be assigned without causing a violation,
breach or default under, such contract and without causing a violation of applicable Law,
(iii) as of the Closing, the work performed under the Unfinished Customer Contracts, prior
to Closing, was in compliance in all material respects with the terms and conditions of the
Unfinished Customer Contracts, and to Sellers’ knowledge, there are no current or
anticipated delays (other than delays arising in the ordinary course of business consistent
with past practice) with respect to the completion of such contracts, (iv) as of the
Closing, all subcontracts awarded to third parties relating to the Unfinished Customer
Contracts have been awarded (A) in material compliance with the terms and conditions of the
respective Unfinished Customer Contracts and all applicable Laws and (B) in the ordinary
course of business consistent with past practices of the Sellers and with the bid price and
budget related to each Unfinished Customer Contract, and (v) as of the Closing, all
approvals, consents, and notices required under the Unfinished Customer Contracts have been
obtained from or given to all required persons and within the required time period. Except
as set forth on Schedule 7.06(c), there are no Unfinished Customer Contracts that
are expected to result in a net loss to the Sellers; provided, however, that
Sellers make no representation or warranty regarding Purchaser’s actual receipt of payments
by customers under the Unfinished Customer Contracts after the Closing.



     7.07 Absence of Undisclosed Liabilities. Except for matters relating to the transactions
contemplated by the Agreement and the Ancillary Agreements, there are no liabilities or financial
obligations of the Sellers whatsoever (whether known or unknown and whether absolute, accrued,
contingent or otherwise, and whether due or to become due), other than liabilities and obligations
(a) for which fully funded reserves are provided in the Financial Statements or (b) of a short-term
nature arising after the date of the 2006 Balance Sheet in the ordinary course of business
consistent with past practices.



     7.08 Absence of Certain Changes. Except as disclosed in the 2006 Balance Sheet or
Schedule 7.08, since November 30, 2006, there has been no material adverse change in the
Business, financial condition or results of operations of the Sellers from that reflected in the
Financial Statements, and to Sellers’ knowledge, no event has occurred or circumstance exists that
may result in such a material adverse change.



23









 





     Without limiting the foregoing, since November 30, 2006, and except as disclosed in
Schedule 7.08, the Sellers have:




     (a) conducted the Business in the ordinary course of business;




     (b) not entered into or amended any material transaction or contract, except in the
ordinary course of business;




     (c) not mortgaged, sold, transferred, distributed or otherwise disposed of any of its
material assets, except in the ordinary course of business;




     (d) not experienced any damage or destruction to, or loss of, any of its material
assets, except in the ordinary course of business and except to the extent that any such
asset required for the operation of the Business which has been damaged, destroyed or lost
has been repaired or replaced;




     (e) not made or agreed to make any capital expenditures for additions to property,
plant or equipment, except for expenditures and commitments not exceeding $50,000
individually and $200,000 in the aggregate;




     (f) not made or agreed to make any change in the compensation payable to any employee,
except for increases in compensation in the ordinary course of business substantially
consistent with past practices of the Sellers; or




     (g) not granted credit to any customer or distributor on terms materially more
favorable than the terms on which credit has been extended to such customer or distributor
in the past nor materially changed the terms of any credit previously extended.



     7.09 Litigation. Except as set forth on Schedule 7.09 and Schedule 7.19,
there is no: (a) action, suit, inquiry, judicial or administrative proceeding, arbitration or
investigation (“Litigation”) pending or, to the knowledge of any Seller, threatened against the
Sellers or any of their respective properties, assets or rights before any Governmental Authority;
or (b) judgment or other Order issued by any Governmental Authority outstanding against the
Sellers.



     7.10 Liens and Encumbrances. The Sellers own the Company Real Estate. Except as set
forth in Schedule 7.10, all of the Acquired Assets (other than the Company Real Estate
which is to be conveyed pursuant to Article VI hereof) are owned by Sellers free and clear
of all liens (choate or inchoate), encumbrances, mortgages, pledges, equities, charges, covenants,
restrictions, rights of first refusal, options, reservations, conditional sale or other title
retention agreements, security interests and other burdens, whether arising by contract or under
law (collectively, “Liens”), other than Permitted Exceptions (as defined below). The title
conveyed hereby to all Acquired Assets (other than the Company Real Estate which is to be conveyed
pursuant to Article VI hereof) is good and transferable (and the transfer hereby is
rightful), free of all Liens other than (i) the Permitted Exceptions and (ii) any other Liens set
forth on Schedule



24









 







7.10. Except as set forth on Schedule 7.10, there have been no
major repairs, renovations or improvements made to the Company Real Estate during the last four (4)
months. For the purposes hereof, a major repair, renovation or improvement is one which costs
Twenty-Five Thousand Dollars ($25,000.00) or more to perform.



     As used herein, “Permitted Exceptions” means any: (i) liens for Taxes, assessments, and other
governmental charges or assessments not yet due or delinquent or that may thereafter be paid
without penalty; (ii) liens of carriers, warehouseman, mechanics, and material-men incurred in the
ordinary course of business, in each case for sums not yet due and payable or due but not
delinquent or being contested in good faith by appropriate proceedings that do not materially
interfere with the conduct of the Business or with the use of the Acquired Assets and do not
materially affect the value of the Acquired Assets; (iii) liens incurred in the ordinary course of
business in connection with workers’ compensation, unemployment insurance, and other types of
social security or to secure the performance of tenders, statutory obligations, surety and appeal
bonds, bids, leases, government contracts, performance and return of money bonds, and similar
obligation; (iv) purchase money liens to the extent that the underlying indebtedness secured by
such liens are Assumed Liabilities; (v) with respect to any real property or any interest in real
property, any (A) easements, covenants, encroachments, rights-of-way, and other restrictions of
record that do not affect the current use of Company Real Estate, (B) governmental charges which
are not due and payable, and (C) zoning and other similar restrictions; (vi) any Lien that will be
paid or discharged at or before the Closing Date; (vii) any exceptions set forth in any Binder
that, pursuant to Section 6.03, are (A) not timely objected to by Purchaser, (B) waived by
Purchaser, or (C) not satisfied by the Sellers.



     7.11 Location and Sufficiency of Assets. Except as set forth on Schedule 7.11,
Seller has not received written notice that the Company Real Estate (or any portion thereof or its
current use is in violation of any applicable zoning legal requirements or other applicable Laws.
Except to the extent any of the Excluded Assets are used in, or reasonably necessary for, the
operation of the Facilities in the manner and to the extent currently operated by the Sellers, the
Acquired Assets constitute all of the assets, rights, and properties used in, or reasonably
necessary for, the operation of the Facilities in the manner and to the extent currently operated
by the Sellers. The Acquired Assets will be adequate to enable Purchaser to continue to operate
the Facilities in the manner and to the extent currently operated by the Sellers, except insofar as
the foregoing may be limited by Purchaser’s failure to purchase the Excluded Assets. Except as set
forth on Schedule 7.11, all Tangible Assets (other than trucking, transportation and
related equipment) listed on Schedule 1.01 are in good repair and operating condition and
are located at the Facilities. Schedule 1.01 identifies all “commercial motor vehicles”
(as defined at 49 C.F.R. Section 390.5) included in the Acquired Assets, and such commercial motor
vehicles meet the relevant requirements of 49 C.F.R. 393, subpart 1 (which are the obligation of
the Purchaser after transfer). All other trucking, transportation and related equipment listed on
Schedule 1.01 is being sold hereunder “as is” and “where is”, and the Sellers make no
representation or warranty whatsoever with respect to the condition of such equipment or its
adequacy for any particular business or other use. All Tangible Assets other than Inventory are
valued on the 2006 Balance Sheet at cost, less accumulated depreciation, as applicable, determined
in accordance with



25









 







GAAP. To the knowledge of Sellers, the Company Real Estate and the improvements
thereon are adequately served by all necessary utilities including, without limitation, storm water
systems, sanitary sewer, water, electricity, telephone, gas and other utility services necessary to
operate the Company Real Estate and all improvements thereon. To the knowledge of Sellers, except
as set forth in Schedule 7.11, there are no latent or patent defects or deficiencies in or
to the fixtures, improvements and structures situated or constructed upon the Company Real Estate,
the soil or fixtures of the Company Real Estate that would have a Material Adverse Effect on the
Company Real Estate (or any portion thereof) or its current use. To the knowledge of Sellers,
except as set forth on Schedule 7.11, there is no dry rot, termite infestation or other
wood destroying organisms present in the Company Real Estate that would have a Material Adverse
Effect on the Company Real Estate (or any portion thereof) or its current use. To the knowledge of
Sellers, except as set forth on Schedule 7.11, the plumbing, electrical, mechanical or
other systems of the Company Real Estate, and improvements constructed thereon are not in need of
any material repair and are generally in good working order, reasonable wear and tear excepted.
All leases of real or personal property to which the Sellers are a party are fully effective. No
Seller has received any written notice from any Governmental Authority with appropriate
jurisdiction that it or the Company Real Estate is in violation of any zoning, building, safety, or
other ordinance, regulation, or requirement applicable to the operation of the Facilities and with
which it has not complied.



     7.12 Condemnations. Sellers have not been served with any papers with respect to, or
received written notice of, any condemnation proceeding or similar action affecting the Facilities
or the Company Real Estate, and no such proceeding or similar action is currently pending before
any Governmental Authority or, to the knowledge of the Sellers, threatened.



     7.13 Agreements; Bids. 




     (a) Schedule 7.13 sets forth, as of the date hereof, a list of all of the
following contracts and other agreements to which any Seller is a party or by which any
Seller, or any of its properties or assets, is bound or subject:




     (i) employment contracts, severance agreements and other agreements with any
current or former officer, director, employee or consultant;




     (ii) contracts and other agreements with any labor union or association
representing any employee of the Sellers;




     (iii) contracts or other agreements relating to the Sellers and between the
Sellers, on the one hand, and any shareholder of the Sellers (or any of his, her or
its Affiliates), on the other hand (other than any such contracts and agreements
among the Company and any of the Subsidiaries);




     (iv) joint venture agreements;



26









 






     (v) Assumed Contracts under which the Sellers agree to indemnify any party,
other than purchase orders from Sellers’ customers on Sellers’ standard purchase
order form;




     (vi) contracts and other agreements relating to the borrowing of money and
other instruments placing any Liens on any Acquired Assets (other than any such
contracts and agreements among the Company and any of the Subsidiaries);




     (vii) contracts and other agreements relating to the lease of real property
(other than any such contracts and agreements among the Company and any of the
Subsidiaries); or




     (viii) any other contract or other agreement involving the sale of goods or
services involving payments totaling $100,000 or more, whether or not made in the
ordinary course of business (other than any such contracts and agreements among the
Company and any of the Subsidiaries).




     Schedule 7.13 also sets forth the amount of all payment, performance or similar
bonds (each a “Performance Bond”) relating to the Assumed Contracts. All Performance Bonds
are in good standing, and the Sellers have (i) not violated, breached or defaulted (with or
without due notice or lapse of time or both), or permitted the termination, or acceleration
of, or entitled any party to accelerate any obligation under any of the terms, conditions or
provisions of any Performance Bond.




     (b) All contracts, agreements and understandings of the type described above and
referenced in Schedule 7.13 are valid and binding and are in full force (other than
contracts, agreements or understandings which are by their terms no longer in force or
effect) and effect and enforceable in accordance with their respective terms, except as
limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of
general application affecting enforcement of creditors’ rights and by general principles of
equity that restrict the availability of equitable remedies. Except as set forth in
Schedule 7.13, (i) no approval or consent of, or notice to, any person is needed in
order that such contract, agreement or understanding shall continue in full force and effect
in accordance with its terms without penalty, acceleration or rights of early termination
following the consummation of the transactions contemplated by this Agreement, and (ii) each
Seller is not now, nor with the passage of time will be, in violation or breach of, or
default under, any such contract, agreement or understanding nor, to the knowledge of any
Seller, is any other party to any such contract, agreement or understanding.




     (c) Schedule 7.13 also sets forth, as of the date hereof, a list of all of the
bids, proposals and similar documents with an expected contract price of $100,000 or more
under which Sellers would provide materials or services to a customer.



27









 






     (d) True and complete copies of all written contracts and other agreements listed on
Schedule 7.13 have been delivered or made available to Purchaser.



     7.14 Taxes. Except as set forth in Schedule 7.14:




     (a) The Sellers have timely filed or caused to be filed all federal, state, local and
foreign Tax Returns required to be filed and has paid or caused to be paid all Taxes
required to be paid in respect of the periods for which Tax Returns are due and have
established prior to the date hereof adequate funded reserves under GAAP on their books for
the payment of all Taxes at least equal to the liability for Taxes expected to be payable in
respect of the period subsequent to the last Tax Return required to be filed for the portion
of such period up to and through the date hereof.




     (b) All Taxes that the Sellers are or were required to withhold or collect have been
duly withheld or collected and, to the extent required, have been paid to the proper
Governmental Authority. All Tax Returns of the Sellers are true, correct and complete in
all material respects. The Sellers are not a party to any Tax sharing agreement.




     (c) There is no delinquency by the Sellers in the payment of any Tax. No deficiencies,
assessment or governmental charges for any Tax have been assessed, claimed, proposed or, to
the Sellers’ knowledge threatened against the Sellers or their respective assets. Except as
set forth on Schedule 7.14, consummation of the purchase of the Acquired Assets by
Purchaser will not result in the imposition or creation of any Tax Obligations on the
Acquired Assets except for Tax Obligations that are Retained Liabilities.




     (d) No waiver or extension of time to assess any Taxes has been given or requested.
Except for jurisdictions in which the Sellers file Tax returns, the Sellers have not
received notice of any claim made by any taxing authority in any jurisdiction that the
Sellers are or may be subject to taxation by that jurisdiction.




     (e) The federal, state, local and foreign Tax returns of the Sellers have not been
audited since the date of the most recent audit set forth in Schedule 7.14 by the
Internal Revenue Service or comparable state or local agencies.




     (f) The purchase by Purchaser of the equipment and machinery included in the Acquired
Assets is exempt from sales tax under the laws of New Jersey.




     (g) There are no Liens for Taxes (other than the Permitted Exceptions) on any of the
Acquired Assets.



     For the purposes of this Agreement, the following capitalized terms have the following
meanings:



28









 





     “Tax” means all Federal, state, local, foreign and other governmental net income, gross
income, gross receipts, sales, transaction, privilege, use, ad valorem, transfer, franchise,
profits, license, lease, service, service, use, withholding, payroll, employment, unemployment,
excise, severance, stamp, occupation, premium, property (including, but not limited to, personal
property taxes) or windfall profits tax, any customs or duties (including, but not limited to,
penalties or assessments), any amounts owed for unclaimed or escheated property (including, but not
limited to, assessments, penalties, fees or charges related thereto) or any other taxes, fees,
assessments or charges of any kind whatsoever claimed by any governmental body, together with any
interest, penalties, additions to tax or additional amounts with respect thereto.



     “Tax Obligations” means Taxes which are attributable or related to the assets or the business
of Sellers, or ownership of Sellers, for any periods ending on or before the effective time of
Closing, or which may be applicable because of Sellers’ sale of the Acquired Assets to Purchaser.
Tax Obligations are Retained Liabilities.



     “Tax Return” means any return (including any information return), report, statement, schedule,
notice, form, or other document or information submitted to any governmental body in connection
with the determination, assessment, collection, or payment of any Tax.



     7.15 Compliance with Applicable Law. No Seller has received any written notice from any
Governmental Authority with appropriate jurisdiction alleging that (i) the Company Real Estate
violates any currently applicable municipal, county, state or federal Law applicable to the Company
Real Estate including, but not limited to, building codes and zoning requirements; or (ii) the
Facilities are non-conforming uses under the applicable zoning requirements. The Sellers (i) hold
all material Permits necessary for the lawful conduct of the Business and (ii) are conducting the
Business in compliance in all material respects with all applicable Laws and all required Permits
and other governmental authorizations or approvals. The Permits listed on Schedule 1.04
are all the material Permits required for the operation of the Business. All Permits held by the
Sellers are valid, and the Sellers have not received any written notice from any Governmental
Authority stating that it intends to modify, suspend, cancel, terminate, or not renew any such
Permit.



     7.16 Brokers’ Fees and Commissions. None of Sellers, any of their respective directors and
officers, or, to the Sellers’ knowledge, their respective employees or agents have employed any
investment banker, broker or finder in connection with the transactions contemplated hereby.



     7.17 Proprietary Rights.




     (a) Except as set forth in Schedule 1.02, and except for customer lists, the
Sellers do not own or possess any intangible assets necessary for the conduct of the
Business as currently conducted by the Sellers. Schedule 7.17 lists all
Intellectual Property (as defined below) owned or used under license (or similar use
agreement) by the Sellers in the conduct of the Business (collectively, the “Business
Intellectual



29









 







Property”). For purposes of this Agreement, “Intellectual Property” means: all
trademarks (registered or unregistered), trade names, and service marks, and applications
therefore (collectively, “Marks”); all patents and patent applications (collectively
“Patents”); all registered and unregistered copyrights in both published works and
unpublished works (collectively, “Copyrights”); and all other know-how, trade secrets and
confidential information (including, but not limited to, customer lists).




     (b) Schedule 7.17 lists all notices or claims currently pending or received by
the Sellers which claim infringement by Sellers of any Intellectual Property rights of any
third party. Except as set forth in Schedule 7.17, the Sellers have not infringed
or misappropriated any Intellectual Property rights of any third party. To the Sellers’
knowledge, all letters, patents, registrations and certificates issued by any Governmental
Authority relating to any of the Business Intellectual Property, and all licenses and other
agreements pursuant to which the Sellers use any of the Business Intellectual Property, are
valid and subsisting, have been properly maintained and neither the Sellers nor any other
person is in default or violation thereunder.



     7.18 Insurance. Schedule 7.18 lists all insurance policies insuring the Sellers or
the Acquired Assets, copies of all of which have been made available to Purchaser. Such insurance
policies are in full force and effect for such amounts and are sufficient for material compliance
with all requirements of Law. To the Sellers’ knowledge, no event has occurred which limits or
impairs the rights of the Sellers under any such insurance policies.



     7.19 Environmental Matters.




     (a) For purposes of this Agreement, the following terms shall have the following
meanings:




     (i) “Environmental Claim” means any written accusation, allegation, notice of
violation, action, claim, environmental lien, demand, abatement, Order or direction
(conditional or otherwise) by any Governmental Authority or any other person (1) for
personal injury (including sickness, disease or death), damage to tangible or
intangible property, damage to the environment (including natural resources),
nuisance, pollution, contamination, trespass or other adverse effects on property or
to the environment arising under any Environmental Requirement or in connection with
any Hazardous Material, or (2) for any Environmental Costs or Liabilities or (3) for
the conduct of any Remedial Action;




     (ii) “Environmental Costs and Liabilities” means any and all losses,
liabilities, obligations, damages (including natural resources damages), fines,
penalties, judgments, actions, claims, costs and expenses (including, without
limitation, fees, disbursements and expenses of legal counsel, experts, engineers
and consultants and the costs of investigation and feasibility studies and Remedial
Action) arising from or under or resulting from or based upon (A) the existence,




30









 








or the continuation of the existence, of a Release or threatened Release of, or
exposure to, any Hazardous Material, odor or noise arising or occurring (i) in
connection with the operation of the Business, (ii) on or about the Facilities
(including properties adjacent to the Facilities), (iii) in connection with any act,
omission or conduct of the Sellers or (iv) related to any property currently or
formerly owned, operated or leased by the Sellers or any activities or operations
thereof; (B) the transportation, storage, treatment or disposal of Hazardous
Materials by or on behalf of the Sellers or in connection with the Facilities or
other property currently or formerly owned, operated or leased by the Sellers or
utilized in the conduct of the Business; or (C) any violation or alleged violation
of any Environmental Requirement or any liability or alleged liability under any
Environmental Requirement;




     (iii) “Environmental Law” means any federal, state, local, or foreign law
(including common law), statute, code, ordinance, rule, regulation or other
requirement relating to the environment, natural resources, or public or employee
health and safety and includes, but is not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601
et seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq., the
Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq., the Clean
Water Act, 33 U.S.C. § 1251 et seq., the Clean Air Act, 33 U.S.C. § 2601 et seq.,
the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., the Federal Insecticide,
Fungicide, and Rodenticide Act, 7 U.S.C. § 136 et
seq., the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq., Federal Safe
Drinking Water Act 42 U.S.C. § 300 F et seq., the Occupational Safety and Health
Act, 29 U.S.C. § 651 et seq., ISRA (as hereinafter defined), the New Jersey Spill
Compensation and Control Act, N.J.S.A. § 58:10-23.11 et seq., as such laws have been
amended or supplemented, and the regulations promulgated pursuant thereto, and all
analogous state or local statutes as in effect on the date hereof;




     (iv) “Environmental Permit” means any permit, approval, authorization, license,
variance, registration, or permission required under any Environmental Law or Order;




     (v) “Environmental Requirement” means any requirement under Environmental Law,
any Environmental Permit or Environmental Order;




     (vi) “Governmental Authority” means any nation or government, any state or
other political subdivision thereof and any entity exercising any executive,
legislative, judicial, regulatory or administrative function of or pertaining to
government;



31









 






     (vii) “Hazardous Material” means any substance, material or waste which is
regulated under any Environmental Law or which otherwise constitutes a risk to human
health or the environment and is regulated by any Governmental Authority, including,
without limitation, any material, substance or waste which is defined as a
“hazardous waste,” “hazardous material,” “hazardous substance,” “extremely hazardous
substance,” “restricted hazardous waste,” “contaminant,” “toxic waste” or “toxic
substance” under any provision of Environmental Law, and including, without
limitation, petroleum, petroleum products (including crude oil and any fraction
thereof), asbestos, asbestos-containing materials, urea formaldehyde and
polychlorinated biphenyls;




     (viii) “ISRA” shall mean , the New Jersey Industrial Site Recovery Act, NJSA §§
13:1K-6, et seq. and its implementing regulations and the Technical Requirements for
Site Remediation, N.J.A.C. 7:26E et seq.




     (ix) “New Jersey Real Estate” shall mean the Sellers’ property located at 14
Harmich Road, South Plainfield, New Jersey 07080, as more fully described on Annex
1.03 to Schedule 1.03 attached hereto;




     (x) “Environmental Order” means any order, injunction, judgment, decree,
ruling, assessment or arbitration award issued under any Environmental Law or in
connection with any Hazardous Material;




     (xi) “Release” means any unpermitted release, spill, emission, leaking,
pumping, pouring, dumping, emptying, injection, deposit, disposal, discharge,
dispersal, leaching, or migration (including vapor migration) on, through or into
the indoor or outdoor environment or into or out of any property (whether
sudden or non-sudden, accidental or non-accidental); and




     (xii) “Remedial Action” means any action, including, without limitation, any
capital expenditures, required or voluntarily undertaken to (1) clean up, remove,
treat, or in any other way address any Hazardous Material; (2) prevent the Release
or threat of Release, or minimize the further Release of any Hazardous Material; (3)
perform pre-remedial studies and investigations or post-remedial monitoring and care
with respect to any Hazardous Material; or (4) bring facilities on any property
owned, operated or leased by the Sellers and the facilities located and operations
conducted thereon into compliance with any Environmental Requirement.




     (b) Except as set forth in Schedule 7.19(b):




     (i) the Facilities are not currently being used, and the Facilities, to
Sellers’ knowledge, have never been used, for the generation (except in material



32









 







compliance with Environmental Law), storage, or disposal of Hazardous Materials or
as a landfill as each such term is defined by RCRA;




     (ii) no Hazardous Materials have been Released to or from the Facilities and no
threat of Release of Hazardous Materials has occurred at the Facilities in amounts
that could result in liability, or obligations under any Environmental Law;




     (iii) the Business and the Facilities are in material compliance with all
applicable Environmental Requirements and each Seller has not received any written,
or to Seller’s Knowledge, other notice alleging a violation of any Environmental
Requirement;




     (iv) The Company or the Subsidiaries (A) have obtained and currently maintain
and have timely filed any necessary renewal applications for, all Environmental
Permits necessary for the conduct of the Business, (B) have owned and operated, and
own and operate, the Facilities, in material compliance with all requirements of
those Environmental Permits, and (C) have not received written, or to Seller’s
Knowledge, other notice of any (I) requirement for any additional Environmental
Permit, or (II) any written, or to Seller’s Knowledge, other threat or proceeding to
revoke, modify or otherwise affect any of those Environmental Permits;




     (v) there are no legal proceedings pending or threatened against the Sellers or
the Facilities alleging or asserting any Environmental Claim, the Sellers have
received no notice of any Environmental Claim against the Sellers or the Facilities,
and to Seller’s Knowledge, there exists no reasonable basis for the assertion
against the Sellers or the Facilities of any Environmental Claim;




     (vi) neither the Sellers, nor, to Sellers’ knowledge, any predecessor of the
Sellers, or any current owner or any former owner or operator of any real or
personal property currently owned, leased or operated by the Sellers has filed any
notice under any Environmental Law reporting a Release or threatened Release of any
Hazardous Material or received any notice of any Environmental Claim with respect
thereto;




     (vii) the Sellers and the Facilities are not currently subject to, or the
subject of, any Environmental Order, and to Sellers’ knowledge, the Sellers and the
Facilities have not, in the past, been subject to, or the subject of, any Order;



33









 






     (viii) neither the Sellers nor any predecessor of the Sellers has given any
contractual indemnity, release, or other liability shifting mechanism to any person
with respect to any actual or potential Environmental Claim or Environmental Costs
and Liabilities;




     (ix) neither the Sellers, nor to Sellers’ knowledge any predecessors of the
Sellers, has made any claim under any insurance policy relating to Hazardous
Materials, Environmental Claims or Environmental Costs and Liabilities; and




     (x) the Sellers have provided or otherwise made available to Purchaser all
environmental audits, reports and assessments concerning the Business and the
Facilities within Sellers’ possession, custody or control.




     (c) Underground and Above Ground Storage Tanks. Except as set forth on
Schedule 7.19(c), no underground or aboveground storage tanks containing petroleum,
petroleum products, any wastes or any Hazardous Materials are currently located on the
Facilities, and to the knowledge of any Seller, no underground or aboveground storage tanks
containing petroleum, petroleum products, any wastes or any Hazardous Materials have ever
been located on the Facilities or on any property formerly owned, operated or leased by
Sellers.



     7.20 Customers, Suppliers and Employees.
Except as described in Schedule 7.20(a), since November 30, 2006: (i), there has not been
any material adverse change in the business relationship of any Seller with any of the 2006
Customers and Suppliers (as defined below); and (ii) to Sellers’ knowledge, no such customer or
supplier has informed Sellers that it will not do business with Purchaser following Closing. To
Sellers’ knowledge, none of the employees listed on Schedule 7.20(b) has informed Sellers
that they will not work for Purchaser if the transactions contemplated by this Agreement (other
than with respect to employment of such employee) are consummated. Schedule 7.20(c)
contains a complete and accurate list of the ten (10) largest suppliers and ten (10) largest
customers of each Seller (measured in dollars of annual purchases and sales, as applicable),
respectively, during the fiscal years ended February 29, 2004, February 28, 2005, and February 28,
2006 (such customers and suppliers listed on Schedule 7.20(c) with respect to the fiscal
year ended February 28, 2006 are collectively referred to herein as the “2006 Customers and
Suppliers”).



     7.21 Information.
No representation or warranty by Sellers contained in this Agreement (including the Schedules
hereto) contains any untrue statement of a material fact, or omits or will omit to state any
material fact necessary, in light of the circumstances under which it was or will be made, in order
to make the statements herein or therein not misleading.



     7.22 Certain Business Practices and Regulations; Potential Conflicts of Interest.




     (a) None of the Sellers nor, to the Sellers’ knowledge, any of their respective
directors, officers, agents and employees have: (i) used any corporate funds for unlawful



34









 







contributions, gifts, entertainment or other unlawful expenses relating to political
activity; (ii) made any unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns from corporate funds or
violated any provision of the Foreign Corrupt Practices Act of 1977, as amended; or (iii)
made any other unlawful payment.




     (b) To the Sellers’ knowledge, except as described in Schedule 7.22, none of
the shareholders, officers or directors of the Sellers or any entity controlled by any of
the foregoing (i) owns, directly or indirectly, any significant interest in, or is a
director, officer, employee, consultant or agent of, any person which is a competitor,
lessor, lessee or customer of, or supplier of funds, goods or services to, the Sellers, (ii)
owns, directly or indirectly, in whole or in part, any real property, leasehold interest or
other property that is used in the Business, (iii) has any cause of action or other suit,
action or claim whatsoever against, or owes any amount to, the Sellers other than claims in
the ordinary course of business, (iv) has sold to, or purchased from, the Sellers any assets
or property for aggregate consideration in excess of $10,000 since May 31, 2006, or (v) is a
party to any contract or participates in any arrangement, written or oral, pursuant to which
the Company provides office space or services of any nature to any such individual or
entity, or pursuant to which any such shareholders, officers, employees or directors of the
Company provide services to the Company, except in any such individual’s capacity as an
employee of the Company.




     (c) None of the Sellers, nor, to the Sellers’ knowledge, any of their respective
directors, officers, agents, shareholders, or employees or any entity controlled by any of
the foregoing, have made any contribution, gift, bribe, rebate, payoff, influence payment,
kickback, or other payment to any person, private or public, regardless of form, whether in
money, property, or services (i) to obtain favorable treatment in securing business, (ii) to
pay for favorable treatment for business secured, or (iii) to obtain special concessions or
for special concessions already obtained, in each case for or in respect of the Sellers.



     7.23 Employee Benefit Plans.




     (a) Schedule 7.23(a) sets forth a true and complete list of (i) all “employee
benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), including, without limitation, any
“multiemployer plans” as that term is defined in Section 4001 of ERISA and any plans
that are subject to Title IV of ERISA or Section 412 of the Code, (ii) all specified fringe
benefit plans as defined in Section 6039D of the Code, and (iii) all other bonus, deferred
compensation, incentive compensation, stock option, stock purchase, restricted stock,
employment, consulting, severance or termination pay, health, disability, hospitalization or
other medical, life, flexible spending arrangement, cafeteria plan, sick leave and vacation
policies or other welfare benefit plans, insurance, supplemental unemployment benefit,
profit sharing or retirement plan, program, agreement, or arrangement (A) in



35









 







which any
director, officer or employee of the Sellers or any company which along with any of the
Sellers would be treated as a single employer under Section 414 of the Code or Section
4001(a)(14) or 4001(b) of ERISA (an “ERISA Affiliate”) participates or has participated as
of the date of this Agreement, or (B) which the Sellers or any ERISA Affiliate sponsors or
has sponsored, contributes to or is required to contribute to, has contributed to or has
been required to contribute to, participates in or has participated in as of the date of
this Agreement, or (C) with respect to which the Company or any ERISA Affiliate has any
liability, contingent or otherwise, as of the date of this Agreement, except that with
respect to “employee pension benefit plans” within the meaning of Section (3)(2) of ERISA
that are subject to Title IV of ERISA or Section 412 of the Code (including any
“multiemployer plans” as that term is defined in Section 4001 of ERISA), Schedule
7.23(a) shall include all such plans which the Sellers or any ERISA Affiliate currently
or at any time during the six (6)-year period preceding the Closing Date has sponsored,
contributes to or is required to contribute to, has contributed to or has been required to
contribute to, participates in or has participated in (an “Employee Benefit Plan”).




     (b) With respect to any Employee Benefit Plan being assumed by the Purchaser, neither
the Sellers nor any of their respective predecessors or ERISA Affiliates has engaged in or
knowingly permitted to occur and to the Sellers’ knowledge, no other party has engaged in or
permitted to occur any transaction prohibited by Section 406 of ERISA or “prohibited
transaction” under Section 4975 of the Code, except for any transactions which are exempt
under Section 408 of ERISA or Section 4975 of the Code, which could subject the Sellers or
Purchaser to any liability or civil penalty assessed pursuant to Section 502(i) of ERISA or
a tax, assessment or charge imposed by Section 4975 of the Code. None of the Sellers nor
any of their respective predecessors or ERISA Affiliates nor any employees of any of the
foregoing who may be administrators or fiduciaries of any Employee Benefit Plan being
assumed by the Purchaser, and to the Sellers’ knowledge, no third party administrator or
third party fiduciary of any Employee Benefit Plan being assumed by the Purchaser (or agent
of any such administrator or fiduciary of any Employee Benefit Plan being assumed by the
Purchaser (or agent of any of the foregoing) has engaged in any transaction or acted or
failed to act in a manner which is likely to subject the Sellers or Purchaser to any
liability for a breach of fiduciary or other duty under ERISA or any other applicable law.
The transactions contemplated by this Agreement will not be a, or cause any, prohibited
transaction or breach of fiduciary duty.




     (c) Each Seller and each ERISA Affiliate is, with respect to all Employee Benefit Plans
being assumed by the Purchaser in full compliance with ERISA, the Code and all other
applicable laws, other than any immaterial, operational non-compliance with the terms of
such Plans and applicable Laws. There are no pending or, to the knowledge of Sellers,
threatened or anticipated disputes, lawsuits, investigations, audits, complaints or claims
(other than routine claims for benefits) by, on behalf of or against any of the Employee
Benefit Plans being assumed by the Purchaser or any trusts related thereto



36









 







except as
individually, or in the aggregate, would not result in any loss to the Sellers or Purchaser
or the imposition of any Lien on the Acquired Assets.




     (d) Except for any formal written qualification requirement with respect to which the
remedial amendment period set forth in Section 401(b) of the Code, and any regulations,
rulings or other IRS releases thereunder, has not expired (i) each Employee Benefit Plan
that is intended to be “qualified” within the meaning of section 401(a) of the Code
(“Qualified Plan”), has received a favorable determination letter from the IRS and is
qualified in form and operation under Section 401(a) of the Code, and each trust for each
such Employee Benefit Plan is exempt from federal income tax under Section 501(a) of the
Code and (ii) to the Sellers’ knowledge no event has occurred or circumstance exists that
gives rise to disqualification or loss of tax-exempt status of any such Employee Benefit
Plan or trust.




     (e) All filings required by ERISA and the Code as to each Employee Benefit Plan being
assumed by the Purchaser have been timely filed and all notices and disclosures to
participants required by ERISA or the Code have been timely provided, and each such Employee
Benefit Plan has been operated in accordance with the terms and conditions of the plan
documents.




     (f) The Sellers and any ERISA Affiliates have performed in all material respects all of
their obligations under all Employee Benefit Plans being assumed by the Purchaser, and all
contributions and other payments required to be made by the Sellers or ERISA Affiliates to
any Employee Benefit Plan being assumed by the Purchaser have been made.




     (g) No Employee Benefit Plan provides (or has any obligation or commitment to provide)
health, medical, disability, life or other similar benefits with respect to any current or
former employees (or beneficiary thereof) of the Sellers beyond their retirement or other
termination of service (other than coverage mandated by Title I, Subtitle B, Part 6 of
ERISA, (“COBRA continuation coverage”) which coverage is fully paid by the former employee
or his dependents). No Employee Benefit Plan is a “multiple employer welfare arrangement”
within the meaning of Section 3(40) of ERISA.




     (h) Except as provided in Schedule 7.23(h), there are no former employees of
the Sellers (or their eligible dependents) who are either (i) currently receiving COBRA
continuation coverage under a group health plan of the Company; or (ii) eligible to receive
COBRA continuation coverage under such group health plan as the result of a “qualifying
event,” as defined in Section 4980B(f)(3) of the Code, that occurred prior to
the Closing Date and with respect to whom the “election period,” as defined in Section
4980B(f)(5) of the Code, has not expired.




     (i) All group health plans that are Employee Benefit Plans being assumed by the
Purchaser have been operated in compliance with the group health plan continuation



37









 







coverage
requirements of Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code and
the portability, nondiscrimination and other requirements of Part 7 of Subtitle B of Title I
of ERISA and Sections 9801 through 9833 of the Code, inclusive, and the regulations issued
thereunder.




     (j) There are no agreements which will provide payments to any officer, employee,
shareholder, or highly compensated individual of the Sellers which will be “parachute
payments” under Section 280G of the Code that are nondeductible to the Sellers or subject to
tax under Section 4999 of the Code.




     (k) Except as described in Schedule 7.23(k), the none of the Sellers is a party
to any oral or written agreement, plan or arrangement with any officer, director or employee
of the Sellers (i) the benefits of which are contingent, or the terms of which are altered,
upon the occurrence of a transaction involving the Sellers of the nature of any of the
transactions contemplated by this Agreement or the Ancillary Agreements, (ii) providing
severance benefits or other benefits after the termination of employment regardless of the
reason for such termination of employment, or (iii) any of the benefits of which will be
increased, or the vesting of benefits of which will be accelerated, by the occurrence of any
of the transactions contemplated by this Agreement or any of the Ancillary Agreements or the
value of any of the benefits of which will be calculated on the basis of any of the
transactions contemplated by this Agreement or any of the Ancillary Agreements.




     (l) Except as set forth in Schedule 7.23(l), no Employee Benefit Plan is a
“multiemployer plan,” as that term is defined in Section 4001 of ERISA or an “employee
benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title IV of ERISA or
Section 412 of the Code.




     (m) No employer securities, employer real property (as defined in Section 407(d)(2) of
ERISA) or other employer property is included in the assets of any Employee Benefit Plan
being assumed by the Purchaser.




     (n) None of the Sellers nor any ERISA Affiliate has filed or been required to file any
notices, forms or reports with the Internal Revenue Service (“IRS”), the Pension Benefit
Guaranty Corporation (“PBGC”) or the Department of Labor (“DOL”), pursuant to statute, other
than annual reports, with respect to any Employee Benefit Plan being assumed by the
Purchaser within the four (4) years preceding the date hereof.




     (o) None of the Sellers nor any ERISA Affiliate has received any notice from the IRS,
the PBGC, or the DOL relating to any Employee Benefit Plan being assumed by the Purchaser
regarding an audit of any Employee Benefit Plan or the assessment of a material penalty.




     (p) There are no trusts funding any Employee Benefit Plans which are intended to be
qualified under Section 501(c)(9) of the Code.



38









 






(q) Sellers have delivered to Purchaser:




     (i) copies of the current Employee Benefit Plan document and any amendments
thereto for each Employee Benefit Plan being assumed by the Purchaser and copies of
any related trusts (and for any such Employee Benefit Plan that is not in writing, a
written description of such Plan), and (1) the most recent summary plan descriptions
of such Employee Benefit Plans for which the Company or any ERISA Affiliate is
required to prepare, file, and distribute summary plan descriptions, and (2) the
most recent copy of all summaries and descriptions furnished to participants and
beneficiaries regarding such Employee Benefit Plans for which a plan description or
summary plan description is not required;




     (ii) the Form 5500 filed in each of the most recent three (3) plan years with
respect to each Employee Benefit Plan being assumed by the Purchaser, including all
schedules thereto and any opinions of independent accountants relating thereto;




     (iii) with respect to Employee Benefit Plans being assumed by the Purchaser
that are Qualified Plans, the most recent determination letter for each such
Employee Benefit Plan;




     (iv) copies of all notices delivered to the Sellers’ group health plan
participants, as required by applicable law, for the past six years, including, but
not limited COBRA notices and certificates of creditable coverage under the Health
Insurance Portability and Accountability Act of 1996, as amended, with respect to
the Employee Benefit Plans being assumed by the Purchaser;




     (v) all insurance policies or agreements regarding other funding arrangements
that are currently in force which were purchased by or that provide benefits under
any Employee Benefit Plan being assumed by the Purchaser or otherwise reimburse for
benefits paid under the Employee Benefit Plans; and




     (vi) all written agreements that are currently in force with third party
administrators, investments managers, consultants and service providers relating to
any Employee Benefit Plan being assumed by the Purchaser and any and all written
reports, including discrimination testing, submitted to the Sellers by such third
party administrators, investment managers, consultants and service providers within
the four (4) years preceding the date hereof.



     7.24 Labor Relations.



39









 






     (a) Schedule 7.24(a) sets forth an accurate and complete list of all written
agreements, arrangements or understandings with officers, directors and employees of the
Sellers regarding wages, benefits or services to be rendered.




     (a) Except as described on Schedule 7.24(b), each Seller (i) is and has been
for the past three (3) years in compliance with all applicable laws regarding employment and
employment practices, terms and conditions of employment, non-discrimination, wages, hours,
plant closings, occupational safety and health and worker’s compensation, and (ii) has not
engaged in any unfair labor practices and has not had any unfair labor practice charges or
complaints pending or threatened against it before the National Labor Relations Board. In
the past three (3) years, each Seller has not had any grievances pending or threatened
against it pursuant to any grievance procedure nor has it had in the past three (3) years
any charges pending before the Equal Employment Opportunity Commission or any state or local
agency responsible for the prevention of unlawful employment practices, except as set forth
on Schedule 7.24(b).




     (b) Except as set forth in Schedule 7.24(c), there exists no collective
bargaining agreement or other labor union contract applicable to any employee of the Sellers
and no such agreement or contract has been requested by any employee or group of employees
of the Sellers, nor has there been any discussion with respect thereto by management of the
Sellers with any employees of the Sellers. Except as described in Schedule 7.23(c):
(i) the Sellers have not received any written notification of any unfair labor practice
charges or complaints pending before any agency having jurisdiction thereof; and (ii) to the
Sellers’ knowledge (A) there are no current union representation claims involving any of the
employees of the Sellers, and no such charges or claims have been threatened, (B) there is
no labor strike, slowdown, work stoppage or lockout pending or threatened against the
Sellers, and (C) no union organizational campaign or representation petition is currently
pending with respect to any of the employees of the Sellers, nor has there been any such
occurrence or activity during the last five (5) years.




     (c) Schedule 7.24(d) sets forth (i) the name, date of hire, and the current
salary (or rate of pay) of and the bonus paid during the last fiscal year to each employee
of the Sellers (which for all purposes shall include employees leased by the Sellers from a
third party); (ii) any increase to become effective after the date of this Agreement in the
total compensation or rate of total compensation payable by the Sellers to each such person;
(iii) any increase to become payable after the date of this Agreement by the Sellers to
employees other than those specified in clause (i) of this Section 7.24(d); (iv) all
presently outstanding loans and advances (other than routine travel advances) to be repaid
or formally accounted for within sixty (60) days made by the Sellers to, or made to the
Sellers by, any director, officer or employee of the Sellers; and (v) all accrued but unpaid
vacation pay owing to the employees of the Sellers.



40









 






     (d) The Sellers are not in violation of the Worker Adjustment and Retraining
Notification Act (the “WARN Act”) or any similar state or local law. Within the last ninety
(90) days, the Sellers have terminated ten (10) employees.



     7.25 Books and Records.
All books of account, minute books and other similar records of the Sellers in the Sellers’
possession have been made available to Purchaser.



     7.26 Government Contracts.
No Seller is a party to any governmental contracts subject to price redetermination or
renegotiation.



     7.27 Claims.
Except for the Excluded Assets or as set forth in the 2006 Financial Statements, no officer,
director or Affiliate of any Seller has any claim or interest in any property or asset used by or
in the possession of the Sellers with respect to the Business or any claim against the Sellers with
respect to the Tangible Assets, the Intangible Assets, the Assumed Contracts or the operation of
business at the Facilities



     7.28 Solvency.
Each Seller is solvent and immediately after the performance of the obligations required to be
performed by it at Closing, will be solvent and will be able to pay all of its debts and
obligations as and when they may become due and payable.



     7.29 Inventory. 




     (a) Except as set forth on Schedule 7.29(a), all items included in the
Inventory are of a quality usable and, with respect to the Finished Goods Inventory, salable
in the ordinary course of business of the Sellers consistent with past practice and industry
standards.




     (b) All of the Inventory has been valued, for financial reporting and tax purposes, at
the lower of cost or market value on a last in, first out basis. Items constituting WIP
Inventory are currently valued, and will be valued on the Closing Date, according to GAAP.




     (c) Schedule 7.29(c) contains a true complete and accurate description done in
accordance with GAAP of how the Sellers recognize revenue from the sales of Inventory.



     7.30 Owner-Operator Leases and Deposits.
Schedule 7.30 contains a complete and accurate list of: (i) the name and address of each
owner-operator currently used by the Sellers in connection with the Business (collectively, the
“Owner-Operators”); (ii) all leases between the Sellers and such owner-operators (copies of each of
which have been provided to Purchaser); (iii) the amounts of any and all deposits paid to the
Sellers by such owner-operators; and (iv) the date each such deposit was made. Except as
described in Schedule 7.30, since November 30, 2006: (i) there has not been any material
adverse change in the business relationship of Sellers



41









 







with any Owner-Operator, and (ii) to
Sellers’ knowledge, no Owner-Operator has informed Sellers that it will not do business with
Purchaser.



     7.31 Internal Controls.




     (a) Each of the Sellers maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP, to maintain asset
accountability and to provide reasonable assurance regarding the reliability of financial
reporting, and (iii) access to assets is permitted only in accordance with management’s
general or specific authorization. There are no significant deficiencies or material
weaknesses in the design or operation of internal controls over financial reporting that are
reasonably likely to adversely affect the Company’s ability to record, process, summarize
and report financial information.




     (b) Since November 30, 2006, no officer or employee (including any employee director)
of Sellers and, to the knowledge of Bouras and Sellers, no non-employee director, auditor,
accountant, attorney or representative of the Sellers has received or otherwise had or
obtained knowledge of (i) any written complaint, allegation, assertion or claim regarding
the accounting or auditing practices, procedures, methodologies, or methods of the Sellers
or their respective internal accounting controls, including any complaint, allegation,
assertion or claim that the Sellers have engaged in questionable accounting or auditing
practices, or (ii) any fraud, whether or not material, that involves management or other
employees of the Sellers who have a significant role in such internal controls.




     (c) No attorney representing Bouras, the Foundation or any of the Sellers, whether or
not employed by Bouras, the Foundation or the Sellers, has reported evidence of a violation
of securities laws, breach of fiduciary duty or similar violation by the Sellers or any of
their officers, directors, employees or agents.



     VIII. REPRESENTATIONS AND WARRANTIES OF PURCHASER



     As a material inducement to the Sellers, Bouras and the Foundation to execute and perform
their obligations under this Agreement, and in addition to any other representation and warranty
contained herein, Purchaser represents and warrants to the Sellers, Bouras and the Foundation as
follows:



     8.01 Organization of Purchaser.
Purchaser is a corporation duly incorporated, validly existing, and in good standing under the
laws of the State of Delaware. Purchaser has all requisite corporate power and authority to carry
on its business as it is presently being conducted, to enter into this Agreement and to carry out
and perform the terms and provisions of this Agreement.



42









 





     8.02 Authorization.
Purchaser has full corporate power and authority to execute and deliver this Agreement and the
Ancillary Agreements to which it is a party and to consummate the transactions contemplated hereby
and thereby. The execution and delivery by the Purchaser of this Agreement and the Ancillary
Agreements to which it is a party, the performance by the Purchaser of its respective obligations
hereunder and thereunder, and the consummation by Purchaser of the transactions contemplated hereby
and thereby, have been duly authorized by its Board of Directors. Except for approval by the Board
of Directors of Purchaser, no other corporate action on the part of the Purchaser is necessary to
authorize the execution and delivery of this Agreement and the Ancillary Agreements or the
consummation of the transactions contemplated hereby and thereby. This Agreement has been duly and
validly executed and delivered by Purchaser and constitutes the valid and binding obligation of the
Purchaser, and all Ancillary Agreements executed and delivered by the Purchaser will be, when so
executed and delivered, enforceable against it in accordance with their respective terms.



     8.03 No Violation.
The execution and delivery of this Agreement and the Ancillary Agreements by the Purchaser,
the performance by the Purchaser of its obligations hereunder and thereunder and the consummation
by the Purchaser of the transactions contemplated hereby and thereby will not (a) violate or result
in any breach of any provision of the Certificate of Incorporation or Bylaws, or (b) assuming that
all consents, approvals, authorizations and permits described in Section 8.04 have been
obtained and all filings and notifications described in Section 8.04 have been made and any
waiting periods thereunder have terminated or expired, conflict with or violate any order, writ,
judgment, injunction, decree, statute, rule or regulation, of any court or Governmental Authority
applicable to Purchaser or any of its properties or assets.



     8.04 Consents and Approvals.
Except under the rules and regulations of the Antitrust Laws, no notice to and no Permit, consent
or waiver of any third party is necessary for the consummation by Purchaser of the transactions
contemplated by this Agreement and the Ancillary Agreements.



     8.05 Brokers’ Fees and Commissions.
Purchaser and its respective directors and officers, and to Purchaser’s knowledge, its
employees or agents, have not employed any investment banker, broker or finder in connection with
the transactions contemplated hereby.



     8.06 Certain Proceedings.
There is no pending action, suit, proceeding, claim, or similar action against Purchaser that
challenges, or may have the effect of preventing, delaying, making illegal, or otherwise
interfering with, any of the transactions contemplated by this Agreement. To Purchaser’s
knowledge, no such action, suit, proceeding, claim, or similar action has been threatened.



     8.07 Solvency.
Purchaser is not, and after the consummation of the transactions contemplated hereby will not be,
“insolvent” (as such term is defined in the United States Bankruptcy Code, Title 11 of the United
States Code) or unable to pay its debts as they become due.



43









 





     IX. CONDUCT AND TRANSACTIONS PRIOR TO AND AFTER CLOSING



     9.01 Access to Records and Properties.
Between the date of this Agreement and Closing, the Sellers will use commercially reasonable
efforts to give to Purchaser and its advisors such access to the premises, books and records of the
Sellers, and to cause the officers, employees and accountants of the Sellers to furnish such
financial and operating data and other information with respect to the Sellers as Purchaser shall
from time to time reasonably request. Without limiting the generality of the foregoing, the
Sellers will use their commercially reasonable efforts to give to Purchaser and its representatives
access during normal business hours to the Facilities and operations of the Sellers so that
Purchaser may obtain evaluations of the assets and properties to be acquired. Any investigation
pursuant to this Section 9.01 shall be conducted at Purchaser’s sole expense and in such
manner as not to interfere unreasonably with the business and operations of the Sellers.



     9.02 Confidentiality.
Through their ownership, affiliation and/or operation of the Business, Sellers, Bouras and the
Foundation have acquired confidential or proprietary information concerning the business of the
Sellers. Accordingly, Bouras, the Foundation and each Seller agrees and covenants, both before and
after the Closing, to treat and maintain as confidential any and all such information, including,
but not limited to, (i) the financial and other details of this Agreement and the transactions
contemplated hereby and (ii) financial information, technical information and know-how, sales and
marketing plans and strategies, customer lists, pricing policies and practices and corporate
development plans and strategies of the Sellers. The restrictions set forth in the first sentence
of this Section 9.02 shall cease to apply upon the earliest to occur of (i) the termination
of this Agreement pursuant to Article XIV hereof, (ii) five (5) years from the Closing
Date, (iii) with respect to any item of information, upon such item becoming known or generally
available to the public other than through a breach of this Section 9.02 by any person or
entity subject to the limitations set forth in this Section 9.02, and (iv) with respect to
any item of information, upon such item being required to be disclosed by a court or as otherwise
required by law. The provisions of this Section 9.02 are in addition to, and not in
limitation of, any of the obligations imposed under this Agreement.



     9.03 Operation of the Sellers.
Between the date hereof and the Closing, except as contemplated herein or except with the prior
written consent of Purchaser, each Seller shall:




     (a) except as otherwise provided in this Agreement, operate its business as presently
operated, only in the ordinary course, and in compliance with all applicable Laws;




     (b) cause such Seller’s tangible assets to be maintained and repaired in accordance
with past practices of such Seller;



44









 






     (c) not dispose of, or commit to dispose of, any assets or properties expected to be
sold or leased to Purchaser pursuant to this Agreement, except in the ordinary course of
business consistent with the past practices of the Sellers;




     (d) use commercially reasonable efforts to (i) keep available the services of its
current officers, employees and agents and (ii) maintain its relations and good will with
suppliers, customers, landlords, creditors, employees, agents and others having business
relationships with such Seller;




     (e) continue in effect all present, or mutually acceptable replacement, insurance
coverage with respect to the assets and properties expected to be acquired by Purchaser;




     (f) perform in all material respects each and every obligation imposed on such Seller
by any executory contract (including, without limitation, the Assumed Contracts and any
Performance Bonds related to the Unfinished Customer Contracts);




     (g) except in the ordinary course of business consistent with past practices, not grant
any increase in the rates of pay of any of the employees at the Facilities, grant or
increase any benefits provided for any such employees, or pay any bonuses;




     (h) not amend, modify or terminate the Certificate of Incorporation or Bylaws of such
Seller; not cause or permit the issuance of any additional shares of the capital stock or
equity interests (or options, warrants or other rights to acquire capital stock or equity
securities of such Seller); and not amend, modify or terminate, or consent to the amendment,
modification or termination of, any Assumed Contract;




     (i) use commercially reasonable efforts to preserve intact the current business
organization of such Seller and not take any action to dissolve or wind up;




     (j) continue in effect all present or mutually acceptable replacement insurance
coverage with respect to the Business and employees of the Sellers;




     (k) not amend, modify, terminate or enter into any customer contract obligating such
Seller to provide goods or services in excess of $500,000 for customer contracts entered
into using Sellers’ standard form and in excess of $100,000 for all other customer
contracts; and




     (l) use commercially reasonable efforts to remain solvent and pay its debts as they
become due.



     From the date hereof until the Closing, Sellers shall use commercially reasonable efforts to
operate and maintain, or to cause to be operated and maintained, the Business and their
respective assets and properties in such a manner so that the representations and warranties
of the



45









 







Sellers contained herein shall continue to be true and correct as of the Closing as if made
as of the
Closing. Anything to the contrary in this Agreement notwithstanding, nothing in this
Agreement shall affect (i) the ability of PCM to sell all or any portion of its assets and
properties or enter into any merger or other business combination transaction or (ii) the ability
of the Company to sell all or any portion of the capital stock of PCM.



     9.04 Consents.
Sellers shall use commercially reasonable efforts to obtain any consents of Governmental
Authorities, suppliers, distributors, and other persons or entities required in order for the
Sellers to consummate the transactions contemplated by this Agreement.



     9.05 No Public Announcements .
The parties hereto shall not issue any press release or make any public statement regarding the
transactions contemplated by this Agreement without obtaining the prior consent of the other party,
which consent shall not be unreasonably withheld; provided, however, that Purchaser
and its Affiliates may make such public statements as may be required by applicable law or
regulation or pursuant to a listing agreement with the New York Stock Exchange; and provided,
further, that upon execution of this Agreement Sellers may make an announcement (orally or in
writing) to their employees and key vendors in substantially the form set forth on Schedule
9.05 hereto.



     9.06 Forbearance.
Unless and until this Agreement shall have been terminated in accordance with Article
XIV hereof, neither the Sellers, Bouras, nor the Foundation, nor any of their respective
officers or directors of the Sellers, nor any Affiliates of any of them whom they are able to
control, shall:




     (a) directly or indirectly, encourage, solicit, initiate or participate in any
discussions or negotiations with any corporation, partnership, person or other entity or
group (other than to Purchaser or an Affiliate of Purchaser) concerning any merger, sale of
substantial assets, business combination, sale of shares of capital stock or similar
transaction involving the sale of the Business or the Acquired Assets (whether by providing
non-public information or otherwise), except as otherwise provided herein; or




     (b) disclose, directly or indirectly, any information not customarily disclosed to any
person or entity concerning their business and properties, afford to any other person or
entity access to their properties, books or records or otherwise assist or encourage any
person or entity in connection with any of the foregoing, except as otherwise provided
herein.



     In the event Bouras, the Foundation or any Seller shall receive any offer for a transaction of
the type referred to in this Section 9.06, Bouras, the Foundation or such Seller shall
promptly inform Purchaser as to any such offer and its terms, unless such disclosure to Purchaser
is prohibited by applicable Law.



     9.07 Reasonable Efforts to Satisfy Conditions.
Sellers, Bouras and the Foundation shall use commercially reasonable efforts to cause the
conditions to the obligations of Purchaser



46









 







contained in Article XI to be satisfied.
Purchaser shall use commercially reasonable efforts to cause the conditions to the obligations of
Bouras, the Foundation and Sellers contained in Article XII to be satisfied.



     9.08 Insurance.
The Sellers shall maintain product liability insurance for four (4) years after the Closing Date
and environmental insurance for the remaining term of Sellers’ existing policy. The coverage of any
occurrences covered by such policies as of the Closing Date shall not be terminated as a result of
the Closing hereunder, and Purchaser shall be entitled to the benefits, if any, thereof to the
limited extent to which Purchaser may be entitled to such benefits under the terms of this
Agreement. Copies of such policies have been provided to Purchaser prior to the date hereof, and,
at Purchaser’s request, Sellers shall make additional copies of such policies available to
Purchaser and shall assist Purchaser in determining whether any claim or loss is covered by such
policies of insurance. Sellers shall not be covered by Purchaser’s insurance policies for any act
or occurrence.



     After the Closing Date, Purchaser shall give to Sellers prompt notice of the assertion by any
person or entity of any claim against the Sellers which might be subject to the insurance coverage
described in this Section 9.08. Purchaser shall cooperate, at Sellers’ expense, with
Sellers and any applicable insurance carrier in any investigation by Sellers or any applicable
insurance carrier of any such claim and shall, at Sellers’ expense, give to Sellers and any
applicable insurance carrier reasonable access to any records constituting Acquired Assets and
personnel formerly of the Sellers to the extent reasonably necessary to enable Sellers and any
applicable insurance carrier to investigate such claim.



     9.09 Payment of Liabilities; Sales Taxes.




     (a) Except as otherwise provided herein, the Sellers shall pay or otherwise satisfy in
the ordinary course all claims, liabilities, and obligations not specifically assumed by
Purchaser pursuant to this Agreement. Purchaser shall pay when due all sales, transfer, or
similar Taxes (other than federal, state, and local income Taxes) which may become
applicable in respect of the consummation of the transactions contemplated hereby;
provided, however, it is the understanding of the parties hereto that the
purchase by Purchaser of the equipment and machinery included in the Acquired Assets is
exempt from sales tax under the laws of New Jersey. In the event that the purchase by
Purchaser of the equipment and machinery is not exempt, Sellers shall pay such sales,
transfer, or similar taxes. Sellers and Purchaser, as the case may be, shall provide the
other with evidence of payment of any such Taxes as soon as practicable following the
Closing. To the extent that either Purchaser or the Sellers is billed, invoiced, or
otherwise charged with a claim, liability or obligation that is allocated to the other party
pursuant to the terms of this Agreement, the party receiving such item shall immediately
forward it to the other party for payment or satisfaction in the ordinary course of
business. In the event that any such bill or invoice contains items allocable to both
Purchaser and the Sellers under this Agreement, each party shall pay or otherwise satisfy
that portion of the bill or
invoice attributable to it in the ordinary course of business. At or prior to the
Closing,



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Purchaser shall deliver to Sellers: (i) a completed Resale Certificate on Form ST-3
pursuant to the New Jersey Sales and Use Tax Act; and (ii) an equivalent form (or other
filing), duly completed, with respect to each other jurisdiction in which sales, transfer,
or similar taxes may be imposed in connection with the purchase and sale of the Acquired
Assets as contemplated hereby.




     (b) Anything to the contrary in this Agreement notwithstanding, Purchaser hereby waives
compliance by Sellers with the provisions of any “bulk transfer” or similar laws of any
jurisdiction in connection with the sale of the Acquired Assets to Purchaser. The Company
will indemnify Purchaser against, and pay and reimburse Purchaser for, any and all costs,
losses and liabilities that may be asserted by third parties against Purchaser as a result
of noncompliance with any such bulk transfer law.



     9.10 Vacate Facilities.
Sellers shall vacate the Facilities on the Closing Date.



     9.11 Allocation of Ad Valorem Taxes.
Sellers and Purchaser shall each pay their respective pro rata portion of all 2007 ad valorem or
similar Taxes on any property, or under any lease, included in the Acquired Assets, as provided in
the Escrow Instructions.



     9.12 Maintenance of Transferred Records.
Following the Closing, Purchaser shall maintain the records of the Sellers transferred to Purchaser
at the Closing (the “Transferred Records”) until the end of the Sellers’ tax year during which the
third (3rd) anniversary of the Closing Date occurs. Purchaser shall maintain the
Transferred Records in accordance with its customary practices for the maintenance of, and with the
same care as, Purchaser’s existing records. Prior to destroying any of the Transferred Records,
Purchaser shall notify Sellers in writing of its intent to destroy the Transferred Records. Within
forty-five (45) days of such written notice, Sellers shall, at Sellers’ expense, have the right to
take possession of the Transferred Records and Purchaser shall assist Sellers in all reasonable
respects with the transfer of possession of the Transferred Records to Sellers. If Sellers do not
take possession of the Transferred Records within such forty-five (45) day period, then Purchaser
shall have the right to dispose of or destroy the Transferred Records.



     9.13 Remove Excluded Assets.
Sellers shall, with such assistance from Purchaser as shall be reasonably requested by
Sellers, but with no cost to Purchaser, remove all Excluded Assets from the Facilities and the
Company Real Estate within ninety (90) days after the Closing Date.



     9.14 Notification.
Between the date of this Agreement and the Closing, Sellers shall promptly notify Purchaser in
writing if any of them becomes aware of (a) any fact or condition that causes or constitutes a
breach of or inaccuracy in any of Sellers’ representations and warranties made as of the date of
the Agreement; or (b) the occurrence after the date of the Agreement of any fact or condition that
would be reasonably likely to (except as expressly contemplated by this Agreement) cause or
constitute a breach of or inaccuracy in any such representation or warranty had that representation
or warranty been made as of the time of the



48









 







occurrence of such fact or condition. During the same
period, Sellers also shall promptly notify Purchaser of the occurrence of any breach of any
covenant to Purchaser in this Article IX or of the occurrence of any event that may make
the satisfaction of the conditions in Article XII impossible or unlikely.



     9.15 Change of Sellers’ Names.
As promptly as is reasonably practicable following the Closing, USD, ABA and NCJC shall cease to
use the names “United Steel Deck, Inc.”, “ABA Trucking Corporation”, and “New Columbia Joist
Company”, or any similar name. As soon as practical thereafter, each of USD, ABA and NCJC will
file with the appropriate office in the jurisdiction of its organization, and in all jurisdictions
wherein it is qualified to do business as a foreign corporation, all documents necessary to change
its name so as to comply with this Section 9.15.



     9.16 Remediation Agreement. 




     (a) Remediation of New Jersey Real Estate. The Company and Subsidiaries shall
comply with all ISRA requirements for which the Companies and/or Subsidiaries are currently
responsible under any existing ISRA oversight document, including without limitation the
Remediation Agreement dated April 10, 1996 or which are otherwise applicable to the
Company’s and/or Subsidiaries’ operations at the Property, regardless of whether the full
extent of any conditions required to be addressed pursuant to ISRA are now known or are
hereafter discovered and regardless of how or by whom discovered and shall be solely
responsible for any investigatory or remedial action required by the New Jersey Department
of Environmental Protection (“NJDEP”) pursuant to ISRA (collectively, the “Remedial Work”).




     (i) ISRA Closing Conditions. Prior to Closing, Sellers shall obtain
NJDEP approval as required by ISRA, and Purchaser acknowledges that such approval
may be in the form of a Remediation Agreement, or Amended Remediation Agreement for
the transactions described in this Agreement. Prior to or in conjunction with its
application for a Remediation Agreement or Amended Remediation Agreement, Sellers
shall disclose all information concerning the environmental condition of the New
Jersey Real Estate to the NJDEP, including, without limitation, any additional soil
or groundwater data not previously provided to the NJDEP and any additional areas of
concern (“AOCs”), as that term is used in N.J.A.C. 7:26E-1.1 et seq, and any
Preliminary Assessment Report (“PAR”), as that term in used in relation to ISRA,
prepared by Sellers or Purchaser concerning the New Jersey Real Estate. As between
Purchaser and Sellers, Sellers shall pay all costs in connection with the Remedial
Work including, without limitation, all installation, operation, maintenance,
testing, and monitoring costs, all power and utility costs and any and all pumping
taxes or fees that may be applicable to Sellers’ activities.



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     (ii) Remediation Funding Source. Sellers have established a
remediation trust fund pursuant to ISRA (“Funding Source”). Prior to Closing,
Sellers shall petition NJDEP to increase said Funding Source in an amount
commensurate with a revised remedial cost estimate; said estimate shall be
reasonably acceptable to Purchaser. Sellers agree to annually (on the anniversary
of the applicable Remediation Agreement) develop a cost estimate to complete the
Remedial Work and will provide that estimate to Purchaser for approval, which
approval shall not be unreasonably withheld or delayed. Such approved cost estimate
shall be referred to as the “Annual Cost Estimate.” If the Annual Cost Estimate
exceeds the Funding Source, Sellers will petition the NJDEP to increase the amount
of the Funding Source and to supplement the Funding Source accordingly. Similarly,
on an annual basis, Sellers shall have the right to petition the NJDEP to decrease
the Funding Source in the event that the Annual Cost Estimate is less than the
Funding Source. The Funding Source shall be renewed and kept in force by Sellers, at
Sellers’ own expense, until such time as Sellers shall have received approval of the
cleanup and a release of the Funding Source from NJDEP.




     (iii) Conduct of Remedial Work. The Company and Subsidiaries shall
immediately commence and shall diligently and as expeditiously as possible: (i)
complete the Remedial work in a good, safe and workmanlike manner, in strict
compliance with all Environmental Laws, and (ii) obtain a final, unconditional no
further action letter (“NFA”) (with no post-NFA obligations other than obligations
for the plugging and abandonment of wells and the disposal of then-existing
investigation derived wastes or as otherwise provided in N.J.A.C. 7:26C-2.6) for any
New Jersey Real Estate subject to ISRA, but in any event shall obtain an NFA no
later than eight (8) years following the Closing. In performing the Remedial Work,
the Company and Subsidiaries shall further comply with the following deadlines:




	 	1.	 	Sellers shall submit a Remedial Investigation
Workplan (“RIW”) to NJDEP for the delineation of all areas of concern
(“AOCs”) within 60 days of the Closing.
	 
	 	2.	 	Sellers shall complete and submit an
NJDEP-approvable Final Remedial Investigation Report (“RIR”)
delineating all AOCs in accordance with the NJDEP’s Technical
Requirements for Site Remediation, and submission of report to the
NJDEP, within 240 days of NJDEP approval of the RIW. To the extent that
NJDEP requests additional investigation in response to the RIR, Sellers
will submit a supplemental RIR within 60 days of NJDEP’s request; if,
however, NJDEP requires an additional RIW, Sellers will submit the
additional RIW within 60 days of NJDEP’s request for additional
investigation and will submit a supplemental RIR within 90 days of
NJDEP’s approval of the additional RIW, provided that if NJDEP, in
response to 




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	 	 	 	a Supplemental RIR requests an additional RIW, Sellers will
submit the additional RIW within 30 days of NJDEP’s request and will
submit
a supplemental RIR within 60 days of NJDEP’s approval of the additional
RIW. To the extent that the investigation work under an RIW requires
access to third-party property other than property identified on
Exhibit E, which is aHIBIT J- Tnon-annuitant
tables map to identify property on which work is
currently planned or is reasonably expected: (i) Sellers shall use their
best efforts to timely obtain access in the above time frames; (ii) if
despite these best efforts, Sellers are unable to timely obtain such
access, Sellers shall avail themselves of all legal avenues to obtain
such access as expeditiously as practicable in conformance with N.J.S.A.
58:10B-16 and N.J.A.C. 7:26C-8 and shall complete within the above time
frames those parts of the investigation which can be completed without
the access; and (iii) Seller shall within 90 days of obtaining access,
submit an RIR containing the data from the off site access.






	 	3.	 	Sellers shall submit a Remedial Action Workplan
(“RAW”) as to all AOCs within 90 days of NJDEP approval of RIR or any
supplements thereto or within 12 months of the submission of the
original RIR, whichever is later.
	 
	 	4.	 	If the remedy in the approved RAW is limited to
removal of soils and no active treatment of groundwater (excluding the
MNA Remedy as defined below), Seller shall submit a Remedial Action
Report (“RAR”) within 210 days of NJDEP approval of the RAW. If the
remedy in the approved RAW includes active treatment of groundwater or
saturated soils, Seller shall initiate site work within 180 days of
NJDEP approval of the RAW, shall submit the first Remedial Action
Progress Report (“RAPR”) within 210 days of NJDEP approval of the RAW,
thereafter shall submit RAPRs in accordance with N.J.A.C. 7: 26E-6.6 no
less frequently than semi-annually, and shall submit an RAR no later
than four (4) years from the date of Closing, provided,
however, that Sellers may request from Purchaser an extension
of time of up to two (2) years in which to submit the RAR. Purchaser
shall grant the extension if Sellers prove to Purchaser’s satisfaction
that the extension is necessary and unavoidable despite Sellers’ best
efforts, and is strictly limited in duration to the time it will take
to complete the groundwater or soil treatment using Sellers’ best
efforts. If the NJDEP and the Purchaser have approved a monitored
natural attenuation remedy in conjunction with a Classification
Exception Area (“MNA Remedy”), then Sellers shall submit the first RAPR
within 180 days of NJDEP approval of the RAW.




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	 	5. 	 	If an MNA Remedy is approved by the NJDEP and
Purchasers, Sellers shall obtain a conditional NFA (indicating that all
source areas have been remediated, or that an appropriate deed
restriction is in place to address the source areas, as provide by
Section 9.16(a)(vii) and groundwater contamination is trending
downward) within four (4) years of Closing.





     For any of the above submittals, to the extent that any regulatory or NJDEP-required deadline
imposes a shorter timeframe for a submittal, Sellers shall comply with the shorter timeframe.
Sellers shall not request any extension of a regulatory deadline without CMC’s consent, which shall
not be unreasonably withheld or delayed.




     (iv) Efforts to Complete Remedial Work. The Sellers, Company and
Subsidiaries and Purchaser acknowledge and agree that the obligations of the Company
and Subsidiaries as described in Section 9.16(a)(iii) shall include, without
limitation, any and all reasonable efforts that may be undertaken, including,
without limitation, any administrative appeals and alternative technical approaches
to investigate and/or remediate the New Jersey Real Estate, in order to expedite the
completion of the Remedial Work and the NJDEP’s review and approval of any required
workplans or reports.




     (v) Conduct of Remediation Activities. Sellers shall monitor all
equipment associated with the Remedial Work and promptly notify Purchaser of any
failures or irregularities in the operation of such equipment. In all cases,
Sellers shall ensure that the Remedial Work is conducted so as not to unreasonably
interfere with Purchaser’s or any tenant’s use of the New Jersey Real Estate.
Purchaser agrees to cooperate and not unreasonably interfere with Sellers’ conduct
on the Remedial Work so long as such Remedial Work is conducted in compliance with
this Agreement and with the requirements set forth in this Agreement and Exhibit
F and Seller, Company and Subsidiaries are not otherwise in breach of the their
obligations under Section 9.16. Sellers and Purchaser shall execute an
access agreement in substantially the same form as that presented in Exhibit
F upon Closing.




     (vi) Restoration of Property. Promptly upon Sellers’ completion of the
Remedial Work and satisfaction of all of their obligations pursuant to Sections
9.16(a), Sellers shall permanently seal or cap all monitoring wells and test
holes to industry standards and in compliance with applicable Environmental Law,
remove all associated equipment, and restore the Property to its condition existing
immediately prior to Closing, which shall include, without limitation, the repair of
any surface damage, including paving, caused by Sellers’ activities hereunder.



52









 






     (vii) Deed Restrictions. Any deed restrictions or other similar
instruments restricting, limiting, or otherwise affecting the New Jersey Real Estate
other than restricting groundwater usage are not permitted except as follows:




(A) Sellers may propose additional deed restrictions on the New Jersey Real
Estate where the Remedial Cost Savings, as defined below, of such additional
deed restriction (i.e., deed restrictions other than those on ground water)
will be at least $5,000,000; and




(B) Sellers shall pay Purchaser the Diminished Property Value, as defined
below, from funds other than the Funding Source or the Environmental Escrow.




Upon satisfaction of conditions (A) and (B), Purchaser covenants to consent to the
imposition of an additional deed restriction, on behalf of itself and any successors
and assigns to the New Jersey Real Estate for a period of eight (8) years after
Closing and provided that Sellers are not in breach of their obligations under this
section 9.16 and Purchaser has not exercised its right to assume control under
Section 9.16(d). Nothing stated herein shall prohibit Sellers from proposing and
Purchaser from accepting a deed restriction that does not meet the conditions of (A)
and (B) above, provided however, that Purchaser may elect to reject any deed
restriction that does not meet the conditions of (A) and (B) above in its sole and
absolute discretion.




 “Remedial Cost Savings” shall mean the cost difference between the cost of the
Remedial Work without the proposed additional deed restriction and the cost of the
Remedial Work with the proposed additional deed restriction. In order to determine
the cost difference, Sellers shall submit to Purchaser with its request for an
additional deed restriction, a cost estimate prepared by its environmental
consultant showing the cost difference and the calculations and supporting
information used to determine the cost difference. If Purchaser does not agree with
the Sellers’ estimate of the cost difference, Purchaser shall notify Sellers within
forty-five (45) days of receipt of Sellers’ cost estimate and Purchaser shall,
within ninety (90) days of receipt of Sellers’ cost estimate, provide its
environmental consultant’s cost estimate showing the cost difference and the
calculations and supporting information used to determine the cost difference. In
addition, the Sellers and the Purchaser shall select and engage by mutual agreement,
a third environmental consultant from a firm with a national presence and experience
with remediation projects in New Jersey to prepare a third cost estimate of the cost
difference (the “Independent Estimate”). The Remedial Cost Savings will then be
determined by taking the average of the two closest in value of the Sellers’ cost
estimate, Purchaser’s cost estimate and the Independent Estimate. In implementing
this provision, each party shall bear the cost of its



53









 







environmental consultant, and
the parties shall split evenly the cost of the Independent Estimate. Further, the
parties shall cooperate in the prompt exchange of information relating to the site,
the remediation, the support for calculations
and such other information as a party may reasonably request to perform its cost
estimate.




“Diminished Property Value” shall mean difference in value of the New Jersey Real
Estate without the proposed additional deed restriction and the value of the New
Jersey Real Estate with the proposed additional deed restriction. In order to
determine the cost difference, Sellers shall submit to Purchaser with its request
for an additional deed restriction, an appraisal report prepared by its appraiser
showing the difference in value and the calculations and supporting information used
to determine the difference in value. If Purchaser does not agree with the Sellers’
appraisal of the difference in value, Purchaser shall notify Sellers within
forty-five (45) days of receipt of Sellers’ appraisal and Purchaser shall, within
ninety (90) days of receipt of Sellers’ appraisal, provide its appraiser’s report on
the difference in value and the calculations and supporting information used to
determine the difference in value. In addition, the Sellers and the Purchaser shall
select and engage by mutual agreement, a third appraiser from a firm with a national
presence and experience with contaminated properties to prepare a third appraisal of
the difference in value (the “Independent Appraisal”). The Diminished Property
Value will then be determined by taking the average of the two closest in value of
the Sellers’ difference in value, Purchaser’s difference in value and the
Independent Appraisal. In implementing this provision, each party shall bear the
cost of its appraisers, and the parties shall split evenly the cost of the third
appraiser. Further, the parties shall cooperate in the prompt exchange of
information relating to the site, the remediation, the support for calculations and
such other information as a party may reasonably request to perform its appraisal.




     (viii) Purchaser’s Right to Participation. While performing the
Remedial Work, Sellers shall keep the Purchaser reasonably informed of all
developments concerning the resolution of any claim, action, suit, investigation or
proceeding, or the performance of the Remedial Work. Sellers will provide Purchaser
with reasonable notice of, and Purchaser shall have the right to be present at and
participate in, any meetings or substantive telephone conversations with NJDEP
concerning environmental conditions at the New Jersey Real Estate. For meetings,
such notice shall be at least five (5) working days; for Seller initiated telephone
conversations, such notice shall be at least three (3) working days; and for NJDEP
initiated telephone conversations, such notice shall be at least one (1) working
day. Sellers shall give Purchaser a draft copy of any investigative or remedial
workplan or report (including without limitation, any plans for the installation of
any assessment, investigation, remediation or monitoring system, or the design,
construction and/or maintenance of any cap, whether or not a part of any submittal
to NJDEP or other government authority)



54









 







for Purchaser’s approval, which such
approval shall not be unreasonably withheld. Purchaser shall use reasonable efforts
to review and respond within five (5) working days but shall be deemed to have
approved such draft if it has not responded to Sellers within ten (10) working days
of receipt of the draft (except in such cases where Company and Subsidiaries are
directed by the government
agency to respond in less than fifteen (15) days, in which case the time period
shall for Purchaser review shall be three (3) working days). Only upon consultation
with and consent of Purchaser, not to be unreasonably withheld or delayed, shall
Sellers treat, dispose of, transfer or excavate any sediment, soil, surface or
groundwater or other material on the New Jersey Real Estate of the Purchaser.
Purchaser and Sellers shall retain responsibility for their own costs associated
with these meetings, discussions, reviews, consultations, and approvals so long as
Purchaser complies with its obligations under this Section 9.16.




     (ix) Documentation. Sellers shall copy Purchaser on all correspondence
(including email correspondence) with any governmental authority regarding the New
Jersey Real Estate and shall provide Purchaser with copies of all final, reports,
studies and other similar documents relating to the New Jersey Real Estate as they
are generated and upon request from Purchaser, a copy of all data generated relating
to the New Jersey Real Estate.




     (x) Selection of Contractor. Sellers agree that their selection of and
retention agreement with a remedial contractor shall meet the following minimum
criteria: (1) the contractor shall have insurance of at least (x) $3,000,000
coverage, per occurrence, for contractor’s errors and omissions, (y) worker’s
compensation and employer’s liability insurance in accordance with any law that may
be applicable to all of its employees, agents or subcontractors engaged in
performing the Remedial Work, and (z) comprehensive general liability and automobile
liability insurance against any claims for bodily injury, death, or property damage
occurring in or about the New Jersey Real Estate, with limits of not less than
$3,000,000 for each occurrence and aggregate limits of $3,000,000; (2) Purchaser
shall be an additional named insured on the contractor’s insurance; (3) the
contractor shall be required to maintain the foregoing insurance at all times during
the performance of the Remedial Work; and (4) Purchaser shall be a third-party
beneficiary to the retention agreement and assignment of the retention agreement to
Purchaser is permitted. Sellers further agree that their selection and retention of
a remedial contractor (including the retention agreement with such contractor) shall
be approved by Purchaser, but such approval shall not be unreasonably withheld or
delayed.




     (xi) Subrogation/Contribution. Sellers shall retain all rights of
contribution against third parties for any Environmental Claims or Liabilities
associated with the New Jersey Real Estate, except for any damages incurred by
Purchaser and not promptly reimbursed by Sellers.




55










 






          (xii) Breach and Cure. If Purchaser contends that Sellers are in
breach of their obligations under Section 9.16(a), Purchaser shall provide
written notice to Sellers of said breach and Sellers shall have thirty (30) days
following such notice to cure such breach.




          (xiii) Indemnification. In the event that the costs of obtaining a NFA
for the New Jersey Real Estate exceeds the funds available in escrow established
pursuant to Section 9.16(e), Sellers shall indemnify Purchaser for any
out-of-pocket costs (including counsel fees, consultant fees and other expert fees)
associated with the pursuit of the NFA in excess of amounts available pursuant to
the Environmental Escrow, within thirty (30) days of presentment.




          (b) Remediation of Pennsylvania Real Estate. The Company and Subsidiaries
shall remediate the Pennsylvania Real Estate in accordance with all applicable Pennsylvania
requirements. The Company and Subsidiaries shall either (1) obtain closure from the
Pennsylvania Department of Environmental Protection (“PADEP”) prior to Closing or (2)
establish an escrow account to fund this remediation in an amount equal to $300,000, to be
released upon closure approval from the PADEP. The remediation of the Pennsylvania Real
Estate shall not rely upon any deed restrictions or other limitations on the property use,
other than a restriction on excavation of soils underlying the building adjacent to the
former tank location or immediately adjacent to the building only to the extent that
excavation of such soil would undermine the structural stability of the building or the
adjacent railroad siding owned and controlled by Sellers as shown on the map attached hereto
as Exhibit G, and will not result in any ongoing obligation related to the property
other than the maintenance of a slab or parking in these areas or other than a prohibition
on excavation in the area of the railroad siding as provided in this section or in any
expense for Purchaser other than the routine filing of documents regarding such maintenance.
In all events, any such deed restriction on the excavation of soils shall be as narrowly
tailored as practicable to those areas of contamination and with respect to the railroad
siding, Purchaser shall have the option, in its sole and absolute discretion, of requiring
Sellers to excavate the contaminated soil in lieu of accepting a deed restriction provided
Purchaser is willing to accept the interference with its operations at the Pennsylvania Real
Estate.




          (i) Completion of Closing. If the closure from the PADEP is not
completed prior to Closing, Company and Subsidiaries shall immediately commence and
shall diligently and as expeditiously as possible obtain a final, closure from the
PADEP, but in any event, Company and Subsidiaries shall obtain such closure no later
than four (4) years following the Closing.




          (ii) Access. Sellers shall ensure that the Remedial Work is conducted
so as not to unreasonably interfere with Purchaser’s or any tenant’s use of the
Pennsylvania Real Estate. Purchaser agrees to cooperate and not unreasonably



56









 





interfere with Sellers’ conduct on the work to achieve closure from the PADEP so
long as such work is conducted in compliance with this Agreement and with the
requirements set forth in this Agreement and Exhibit F and Sellers, Company
and Subsidiaries are not otherwise in breach of the their obligations under
Section 9.16. If the closure from the PADEP is not obtained prior to
Closing, Sellers and Purchaser shall execute an access agreement in substantially
the same form as that presented in Exhibit F upon Closing.




          (iii) Communications. While performing the Remedial Work, Sellers shall
keep the Purchaser reasonably informed of all developments concerning the
performance of the Remedial Work. Sellers will provide Purchaser with reasonable
notice (such notice being at least five working days) of, and Purchaser shall have
the right to be present at and participate in, any meetings or telephone
conversations with PDEP concerning environmental conditions at the Pennsylvania Real
Estate. Sellers shall give Purchaser a draft copy of any submittals to PDEP for
Purchaser’s approval, which such approval shall not be unreasonably withheld.
Purchaser shall be deemed to have approved such draft if it has not responded to
Sellers within ten (10) working days of receipt of the draft. Only upon consultation
with and consent of Purchaser, not to be unreasonably withheld or delayed, shall
Sellers: (i) treat, dispose of, transfer or excavate any sediment, soil, surface or
groundwater or other material on the Pennsylvania Real Estate; or (ii) install any
assessment, investigation, remediation or monitoring system, or design, construct
and/or maintain any cap. Purchaser and Sellers shall retain responsibility for
their own costs associated with these meetings, discussions, reviews, consultations,
and approvals so long as Purchaser complies with its obligations under this
Section 9.16.




          (iv) Documentation. Sellers shall copy Purchaser on all correspondence
(including email correspondence) with any governmental authority regarding the
Pennsylvania Real Estate and shall provide Purchaser will copies of all final
reports, studies and other similar documents relating to the Pennsylvania Real
Estate as they are generated and upon request from Purchaser, a copy of all data
generated related to the Pennsylvania Real Estate.




          (v) Retention of Contractor. Sellers retention of a contractor to
perform work on the Pennsylvania Real Estate shall comply with the provisions of
Section 9.16(a)(x) above.




     (c) Environmental Insurance. In connection with the environmental insurance
for Premises Pollution Liability Coverage issued by ACE American Insurance Company (“ACE”),
Sellers represent and warrant that they have disclosed all known information regarding the
environmental condition of the insured properties to ACE, the NJDEP and PADEP, as
applicable. Sellers further covenant to comply with all requirements for maintaining said
environmental insurance, satisfy any conditions to said coverage, and


57









 






 disclose all
environmental information to ACE, the NJDEP and PADEP, as and when required by policy or
regulation.




     Purchaser retains the right to obtain remediation cost cap insurance at its own
expenses, at any time. If Purchaser assumes control of the Remedial Work, it shall have
the right, at its sole discretion, to use funds from the Environmental Escrow to meet the
self-insured retention amount provided for in the remediation cost cap insurance policy and
for policy premiums and out-of-pocket costs associated with said insurance. In either
situation, Sellers shall, and shall cause their consultants to, fully cooperate with
Purchaser in obtaining, maintaining and/or collecting any amounts under said insurance. If
such insurance is obtained by Purchaser following a breach, Seller shall bear the costs of
such cooperation; otherwise, Purchaser will reimburse Seller for the reasonable
out-of-pocket expenses for such cooperation.




     The above-stated rights of Purchaser notwithstanding, Sellers retain the right to
obtain, at their own expense, their own remediation cost cap insurance at any time.
Purchaser shall, and shall cause it consultants to, fully cooperate with Sellers in
obtaining said insurance; however, Sellers shall bear the consultants’ fees associated with
such cooperation.




     (d) Purchaser’s Right to Assume Control. Notwithstanding Sellers’ election to
perform the Remedial Work referenced in Sections 9.16(a) and 9.16(b) above,
Purchaser shall have the right, but not the obligation, to assume control over the Remedial
Work at Sellers’ expense if Sellers have breached their obligations under Sections
9.16(a) and 9.16(b) above, in accordance with Section 5 of the Environmental
Escrow Agreement.




     (e) Environmental Escrow.




          (i) Notwithstanding the minimum Funding Source established by Sellers pursuant
to ISRA, Sellers shall establish, with proceeds from the Closing, an environmental
escrow in the amount of $4,500,000 of the Purchase Price “Environmental Escrow
Amount”), guaranteeing the performance and completion of the Company’s and the
Subsidiaries’ obligations pursuant to ISRA and pursuant to this Section 9.16
(“Environmental Escrow”). The Company and Subsidiaries shall be able to withdraw
monies from the Environmental Escrow reasonably necessary to fund the Remedial Work,
consistent with the Environmental Escrow Agreement (the form of which is attached in
Exhibit I), provided that a minimum Environmental Escrow of $1,500,000 (the
“Minimum Environmental Escrow”) is maintained until such time as the Company and
Subsidiaries have received final approval of the cleanup, in the form of a final
unconditional NFA from NJDEP. Notwithstanding the foregoing sentence, in the event
that Purchaser and the NJDEP approve an MNA Remedy for the New Jersey Real Estate,
then upon the NJDEP’s issuance of a conditional NFA, the



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minimum amount remaining in
the Minimum Environmental Escrow may be reduced from $1,500,000 to the amount of the
MNA Remedy Operational Cost, as defined below. Upon receipt of the NFA and the
fulfillment of all conditions within the NFA, the Company and Subsidiaries may
withdraw any funds remaining in the Environmental Escrow, including the Minimum
Environmental Escrow. Earnings on the Environmental Escrow will be retained in the
environmental escrow account and used to either fund the Remedial Work or for
reimbursement of taxes (such taxes to be the responsibility of Sellers and such
taxes not to exceed forty-two percent (42%) of the earnings annually) to the
responsible party; like the Minimum Environmental Escrow, the remainder of the
earnings shall be released to Sellers upon receipt of a NFA. The availability or
non-availability of funds from the Environmental Escrow shall not in any manner
limit, modify or change the obligations of Sellers, the Company and the Subsidiaries
under this Agreement.




          (ii) “MNA Remedy Operational Cost” shall mean all costs incurred to complete
the MNA Remedy, including, without limitation, all operation and maintenance costs
and costs incurred to comply with applicable requirements pursuant to N.J.A.C.
7:26E-8.1 et seq., as determined pursuant to the following procedure: Sellers shall
submit to Purchaser an estimate of the foregoing costs prepared by its environmental
consultant showing the calculations and supporting information used to determine the
estimate. If Purchaser does not agree with the Sellers’ estimate of the cost,
Purchaser shall notify Sellers within forty-five (45) days of receipt of Sellers’
cost estimate and Purchaser shall, within ninety (90) days of receipt of Sellers’
cost estimate, provide its environmental consultant’s cost estimate showing the
calculations and supporting information used to determine the cost difference. In
addition, the Sellers and the Purchaser shall select and engage by mutual agreement,
a third environmental consultant from a firm with a national presence and experience
with remediation projects in New Jersey to prepare a third cost estimate of the cost
difference (the “Independent MNA Remedy Operational Cost Estimate”). The MNA Remedy
Operational Cost will then be determined by taking the average of the two closest in
value of the Sellers’ cost estimate, Purchaser’s cost estimate and the Independent
MNA Remedy Operational Cost Estimate. In implementing this provision, each party
shall bear the cost of its environmental consultant, and the parties shall split
evenly the cost of the third environmental consultant. Further, the parties shall
cooperate in the prompt exchange of information relating to the site, the MNA
Remedy, the support for calculations and such other information as a party may
reasonably request to perform its cost estimate.




          (iii) With respect to the Pennsylvania Real Estate, if the Company and
Subsidiaries do not obtain closure from the PADEP prior to Closing, they shall put
into the Environmental Escrow an additional $300,000 to fund the


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 remediation of the
Pennsylvania Real Estate, to be released upon closure approval from the PADEP.




     (f) Liens. Sellers shall not to cause or suffer any liens to be recorded
against the Property as a consequence of, or in any way related to, the Known Environmental
Conditions in or about the Property, or related in any way to Sellers’ activities pursuant
to this Agreement, including any mechanics’ liens and any so-called state, federal or local
“Superfund” lien relating to such matters. Sellers shall have sixty (60) days to remove any
such liens.




     (g) Survival. All of the foregoing covenants of Sellers and Purchaser shall
survive the Closing until such time as the No Further Action letter for the New Jersey Real
Estate and the closure from the PDEP for the Pennsylvania Real Estate are issued.




     (h) Restoration of Property. Promptly upon Sellers’ completion of the Remedial
Work and satisfaction of all of its obligations pursuant to Sections 9.16(a) and
9.16(b) above, Sellers shall permanently seal or cap all monitoring wells and test
holes to industry standards in compliance with applicable Environmental Law, remove all
associated equipment, and restore the Property to its condition existing immediately prior
to Closing to the maximum extent practicable, which shall include, without limitation, the
repair of any surface damage, including paving, caused by Sellers’ activities hereunder.




     (i) Access. Purchaser shall provide reasonable access to Sellers to perform
its obligations under this Section 9.16 pursuant to the access agreement in a form
substantially similar to that in Exhibit F.



     9.17 Appropriate Action; Consents; Filings.




     (a) Each Seller and the Purchaser shall: (i) as soon as practicable, and in any event
no later than ten (10) business days after the date of this Agreement, make any initial
filings required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended,
and the rules and regulations thereunder (the “HSR Act”); and (ii) any other additional
filings required by any other applicable Antitrust Laws (as defined below). The parties
hereto shall consult and cooperate with one another, afford one another (or one another’s
counsel) an opportunity to review in advance any analyses, appearances, presentations,
memoranda, briefs, arguments, opinions and proposals to be made or submitted by or on behalf
of any party hereto in connection with proceedings under or relating to any Antitrust Law,
and consider in good faith the views of one another, in connection with any analyses,
appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or
submitted by or on behalf of any party hereto in connection with proceedings under or
relating to the HSR Act or any foreign or other Antitrust Law; provided,
however, that, with respect to any such analyses, appearances, presentations,
memoranda, briefs, arguments, opinions or proposals, each Seller and the Purchaser need not
supply the other (or its counsel) with copies (or in case of oral presentations, a summary)
to the extent that any applicable Law to such party requires



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such party to restrict or
prohibit access to any such properties or information. Unless otherwise agreed, to the
extent reasonably practical and permitted by applicable Law, no party shall have any
material discussions or communications with any Governmental Authority with respect to the
transactions contemplated by this Agreement without, where practical, consulting with a
representative of the other party.




     (b) Each party will notify the other promptly upon the receipt of (i) any comments
from any officials of any Governmental Authority in connection with any filings made
pursuant hereto and (ii) any request by any officials of any Governmental Authority for
amendments or supplements to any filings made pursuant to, or information provided to comply
in all material respects with, any Laws. Whenever any event occurs that is required to be
set forth in an amendment or supplement to any filing made pursuant to Section
9.17(a), each party will promptly inform the other of such occurrence and cooperate in
filing with the applicable Governmental Authority such amendment or supplement.




     (c) Each Seller and the Purchaser shall use commercially reasonable efforts to resolve
such objections, if any, as may be asserted by any Governmental Authority with respect to
the transactions contemplated by this Agreement under the HSR Act, the Sherman Act, as
amended, the Clayton Act, as amended, the Federal Trade Commission Act, as amended, Council
Regulation 139/2004 of the European Community and any other Law of any Governmental
Authority that is designed to prohibit, restrict or regulate actions having the purpose or
effect of monopolization or restraint of trade (collectively, “Antitrust Laws”). Each
Seller and the Purchaser shall use commercially reasonable efforts to take such action as
may be required to cause the expiration of the notice periods or the receipt of approval
decisions under the HSR Act or other Antitrust Laws with respect to such transactions as
promptly as possible after the execution of this Agreement. Without limiting the foregoing,
Sellers and Purchaser shall take any and all of the following actions to the extent
necessary to obtain the approval of any Governmental Authority with jurisdiction over the
enforcement of any applicable Laws regarding the transactions contemplated hereby: (i)
entering into negotiations, (ii) providing information required by Law, and (iii)
substantially complying with any “second request” for information pursuant to the Antitrust
Laws.




     (d) Notwithstanding anything in this Agreement to the contrary, if any administrative
or judicial action or proceeding is instituted (or threatened to be instituted) challenging
any transaction contemplated by this Agreement as violative of any Antitrust Law, it is
expressly understood and agreed that (i) none of the Sellers nor Purchaser shall have any
obligation to litigate or contest any administrative or judicial action or proceeding or any
decree, judgment, injunction or other order, whether temporary, preliminary or permanent,
and (ii) Purchaser shall be under no obligation to make proposals, execute or carry out
agreements or submit to orders providing for the sale, license or other disposition or
holding separate (through the establishment of a trust or otherwise) of any assets or
categories of assets of the Sellers.



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     (e) Notwithstanding the foregoing or any other provision of this Agreement, nothing in
this Section 9.17 shall limit a party’s right to terminate this Agreement pursuant
to Article XIV so long as such party has until such date complied in all material
respects with its obligations under this Section 9.17.



     9.18 Certain Notices. Each of the Sellers and Purchaser will notify the other party in
writing promptly after learning of (i) any notice or other communication from any person alleging
that the consent of such person is or may be required in connection with this Agreement, (ii) any
notice or other communication from any Governmental Authority in connection with this Agreement,
(iii) any action, suit, arbitration, mediation, proceeding, claim or investigation by or before any
Governmental Authority initiated by or against it, or known by it to be threatened against it or
any of their respective directors, officers, employees or stockholders in their capacity as such,
or of any verbal or written correspondence from any person asserting or implying a claim against
the Sellers or Purchaser or with respect to any of their respective assets or properties, (iv) any
change, occurrence or event not in the ordinary course of the Sellers’ or Purchaser’s business, (v)
any change, occurrence or event that is reasonably likely to result in, individually or in the
aggregate with any other changes, occurrences and events, a Material Adverse Change or that is
reasonably likely to cause any of the conditions to Closing set forth in Article XI or
Article XII not to be satisfied.



     9.19 Performance Bonds. As promptly as is reasonably practicable following the Closing,
Purchaser shall obtain payment or performance bonds, as applicable, for each Contract for which
Sellers have obtained a payment or performance bond which is outstanding as of Closing.
Simultaneously therewith, Purchaser shall cooperate with Sellers to enable Sellers to obtain
cancellation and termination of all Performance Bonds outstanding as of the Closing.



     9.20 Access to Transferred Records and Employees. For a period of three (3) years
following the Closing, Purchaser will, upon the reasonable request of Sellers, provide Sellers with
reasonable access during normal business hours to the Transferred Records and to such employees of
Purchaser (including, without limitation, the Transferred Employees) as Sellers shall reasonably
request. Purchaser shall maintain the Transferred Records in accordance with its customary
practices for the maintenance of, and with the same care as, Purchaser’s existing records. Prior
to destroying any of the Transferred Records, Purchaser shall notify the Sellers in writing of its
intent to destroy the Transferred Records. Within forty-five (45) days of such written notice, the
Sellers shall, at their sole expense, have the right to take possession of the Transferred Records.
If the Sellers do not take possession of the Transferred Records within such forty-five (45) day
period, then Purchaser shall have the right to dispose of or destroy the Transferred Records.



     9.21 Time Bank Liability. Sellers agree that on or prior to the Closing, they will pay or
otherwise provide for the payment and discharge of, the accrued or earned “time bank liability”
(Personal Time Off Program for hourly employees) of the Sellers, as determined pursuant to
Section 5.01.



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     9.22 Purchaser’s Compliance with WARN Act.
Purchaser shall not violate the WARN Act or any similar state or local law with regard to the
transfer of the Sellers employees to Purchaser in connection with the transactions contemplated by
this Agreement. Purchaser agrees to offer employment to 90% of Sellers’ employees that are legally
employable at the time of Closing.



     9.23 Employment Agreements. Purchaser and Tim Day and Purchaser and Kevin Gennarelli shall
execute and deliver at Closing employment agreements, effective as of the Closing Date, in form and
substance reasonably satisfactory to Purchaser (the “Employment Agreements”).



     X. INDEMNIFICATION



     10.01 Indemnity.




     (a) Sellers, Bouras and the Foundation, jointly and severally, shall indemnify and hold
Purchaser and its officers, directors, stockholders, Affiliates, employees, agents and
employee plan fiduciaries (collectively, the “Purchaser Indemnitees”), harmless from any and
all damages, losses (which shall include any diminution in value), liabilities (joint or
several), payments, obligations (including without limitation reasonably foreseeable future
obligations), penalties, claims, response costs, litigation, demands, defenses, judgments,
suits, proceedings, costs, disbursements or expenses (including without limitation,
reasonable fees, disbursements and expenses of attorneys, accountants and other professional
advisors and of expert witnesses and costs of investigation and preparation) of any kind or
nature whatsoever (collectively “Damages”), directly or indirectly resulting from, relating
to or arising out of:




          (i) any breach of or inaccuracy in any representation or warranty of Bouras,
the Foundation or any Seller contained in this Agreement or any Ancillary Agreement,
including the Schedules and Exhibits hereto and any other certificate or document
delivered by Bouras, the Foundation or any of Sellers pursuant to this Agreement or
any Ancillary Agreement;




          (ii) any breach or non-performance, partial or total, by Bouras, the Foundation
or any Seller of any covenant or agreement of Bouras, the Foundation or such Seller
contained in this Agreement or any Ancillary Agreement;




          (iii) (A) any condition related to any presence of or to any Release of a
Hazardous Material at the Facilities, first occurring on or prior to Closing, and or
threatened Release (B) any Environmental Claim, Environmental Costs and Liabilities
or any other liability or obligation under Environmental Law arising from conditions
first occurring on or prior to Closing, including without limitation, disposal at
offsite facilities or violations of Environmental Requirements;



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          (iv) any liability (other than the Assumed Liabilities) arising out of the
operation of the Business and the Acquired Assets by the Sellers prior to the
Closing;




          (v) the Retained Liabilities;




          (vi) any Liens on the Acquired Assets other than (A) Permitted Exceptions, (B)
those Liens identified on Schedule 7.10, and (C) any other Liens on the
Acquired Assets not required to be discharged hereunder;




          (vii) the aggregate sum of all Adjustment Values (as determined pursuant to
Section 2.02(e)), if such sum is a positive number; and




          (viii) as provided in Section 5.03(b), the amount by which the
aggregate claims of M&A Qualified Beneficiaries under Purchaser’s group health plan
exceed the aggregate premiums collected by Purchaser from the M&A Qualified
Beneficiaries for continuation coverage under COBRA.




     (b) Purchaser shall indemnify and hold Bouras, the Foundation and Sellers and each of
their respective officers, directors and shareholders (collectively, the “Seller
Indemnitees”), harmless from any and all Damages resulting from or arising out of:




          (i) any breach of or inaccuracy in any representation or warranty of the
Purchaser contained in this Agreement or any Ancillary Agreement, including the
Schedules and Exhibits hereto and any other certificate or document delivered by the
Purchaser pursuant to this Agreement or any Ancillary Agreement;




          (ii) any breach or non-performance, partial or total, by Purchaser of any
covenant or agreement of the Purchaser contained in this Agreement or any Ancillary
Agreement;




          (iii) the ownership, management, operation or use of the Business or the
Acquired Assets by the Purchaser after the Closing Date; and




          (iv) Purchaser’s failure to obtain payment or performance bonds in accordance
with Section 9.19.



     In determining whether there has been a breach of a representation or warranty for the
purposes of this Article X and the amount of Damages pursuant to this Article X,
each representation and warranty shall be read without regard and without giving effect to any
“materiality” or “material adverse effect” standard of qualification contained in such
representation or warranty (i.e., if such standard or qualification were deleted from such
representation or warranty).



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     10.02 Notice, Participation and Duration. If a claim by a third party is made against a
Purchaser Indemnitee or a Seller Indemnitee (each, an “Indemnitee”), and if such Indemnitee intends
to seek indemnity with respect thereto under this Article X, the Indemnitee shall promptly,
and in any event within thirty (30) days after the assertion of any claim or the discovery of any
fact upon which Indemnitee intends to base a claim for indemnification under this Agreement
(“Claim”), notify the party or parties from whom indemnification is sought (“Indemnitor”) of such
Claim; provided, however, that the failure or delay in giving such notice shall not
preclude Indemnitee from making any Claim thereon if the failure or delay in giving such notice did
not prejudice Indemnitor. In the event of any Claim, Indemnitor shall be entitled to participate
in the defense of such Claim and, to the extent that it wishes (unless (i) the Indemnitor is also a
party to the proceedings concerning such Claim and the Indemnitee determines in good faith that
joint representation would be inappropriate, or (ii) the Indemnitor fails to provide reasonable
assurance to the Indemnitee of its financial capacity to defend such Claim and provide
indemnification with respect to such Claim), to assume the defense of such Claim with counsel
reasonably satisfactory to the Indemnitee and, after notice from the Indemnitor to the Indemnitee
of its election to assume the defense of such Proceeding, given within thirty (30) days of receipt
of Indemnitee’s notice of the Claim, the Indemnitor will not, as long as it diligently conducts
such defense, be liable to the Indemnitee under this Article X for any fees of other
counsel or any other expenses with respect to the defense of such Claim, in each case subsequently
incurred by the Indemnitee in connection with the defense of such Claim, other than reasonable
costs of investigation. In the event that Indemnitor elects to undertake the defense of any Claim
hereunder, it will be conclusively established for purposes of this Agreement that the Claim is
within the scope of and subject to indemnification. Indemnitee shall cooperate with Indemnitor to
the fullest extent possible in regard to all matters relating to the Claim (including, without
limitation, corrective actions required by applicable Law, assertion of defenses, and the
determination, mitigation, negotiation, and settlement of all amounts, costs, actions, penalties,
damages, and the like related thereto) so as to permit Indemnitor’s management of same with regard
to the amount of Damages payable by the Indemnitor hereunder. No Indemnitor shall be entitled to
settle any Claim without the prior written consent Indemnitee (which consent shall not be
unreasonably withheld), unless (A) there is no finding or admission of any violation of any Law or
any violation of the rights of any Person; (B) the sole relief provided is monetary damages that
are paid in full by the Indemnitor; and (C) the Indemnitee shall have no liability with respect to
any compromise or settlement of such Claim effected without its consent.



     10.03 Escrow.



     (a) In order to ensure the Purchaser Indemnitees that assets of Sellers will be available to
resolve claims asserted against the Purchaser Indemnitees or the assets acquired by Purchaser from
Sellers, Purchaser shall, at the Closing, deposit $6,500,000 of the Purchase Price (the “General
Escrow Amount”) with The Bank of New York, as escrow agent (the “Escrow Agent”), for a period of
twenty-four (24) months (the “Escrow Period”) from the Closing Date pursuant to the terms and
conditions of an escrow agreement in substantially the form attached hereto as hereto as
Exhibit H (the “Escrow Agreement”).



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     (b) Additionally, Purchaser shall fund the Environmental Escrow established by the Sellers
pursuant to Section 9.16(d) by depositing, at the Closing, the Environmental Escrow Amount
with the Escrow Agent, pursuant to the terms and conditions of the Environmental Escrow Agreement
in substantially the form attached hereto as Exhibit I.



     (c) Purchaser and Sellers agree that the General Escrow Amount shall be reduced over the
course of the Escrow Period as follows: (i) upon the one-year anniversary of the Closing, Purchaser
shall release 1/2 of the General Escrow Amount to Sellers less any amounts for outstanding Claims
asserted by any Purchaser Indemnitee; and (ii) upon the two-year anniversary of the Closing,
Purchaser shall release the remaining General Escrow Amount to Sellers less any amounts for
outstanding Claims asserted by any Purchaser Indemnitee.



     10.04 Limitation of Indemnification. Notwithstanding the provisions of this Article
X and any other provision of this Agreement to the contrary, except as provided in this
Section 10.04, neither Bouras, the Foundation, the Sellers nor Purchaser, as the case may
be, shall be liable for Damages under this Article X (i) unless the aggregate amount of
such Damages exceeds $500,000, in which event Bouras, the Foundation, Sellers or Purchaser, as the
case may be, shall be liable for all such Damages, and (ii) except with respect to claims of, or
causes of action arising from, fraud by Bouras, the Foundation or Sellers or Purchaser, as the case
may be, the maximum liability of Bouras, the Foundation and Sellers collectively for any Damages
under this Article X shall not exceed $65,000,000. In determining the amount of Damages
pursuant to this Article X, each representation and warranty, shall be read without regard
and without giving effect to any “materiality”, “material adverse change” or “material adverse
effect” standard of qualification contained in such representation or warranty (i.e., as if such
standard or qualification were deleted from such representation or warranty). This Section
10.04 shall not apply to any breach by Bouras, the Foundation or any Seller of Section
1.07(c), Section 10.01(a)(vii) or any covenant of Bouras, the Foundation or
such Seller contained in this Agreement or any Ancillary Agreement.



     10.05 Insurance Proceeds. In computing the amount of any Damages to which a party shall be
entitled to indemnification hereunder, such computation shall be net of insurance proceeds, to the
extent such proceeds are actually paid to the indemnified party as a result of such Damages



     10.06 Exclusive Remedy. In the absence of fraud or intentional misrepresentation, the
rights of each Indemnitee under this Article X shall be the sole and exclusive remedy of
such Indemnitee with respect to matters covered under this Article X. Each Indemnitee
shall have an obligation to mitigate all Damages under this Agreement, and to that end each of
Purchaser and each Seller shall use its reasonable efforts to mitigate, and each shall consult and
cooperate with the other with a view towards mitigating, Damages.



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     XI. CONDITIONS PRECEDENT TO CLOSING BY PURCHASER



     The obligation of Purchaser to consummate the transactions contemplated by this Agreement is
subject to and conditioned upon the satisfaction, at or prior to Closing, of each of the following
conditions, any one or more of which may be waived by Purchaser:



     11.01 Compliance With Agreement. All of the covenants and obligations that Bouras, the
Foundation and the Sellers are required to perform or comply with on or before the Closing Date,
including the delivery to Purchaser of all schedules, documents, certificates and instruments
required to be delivered to Purchaser by this Agreement, shall have been performed and complied
with in all respects.



     11.02 Accuracy of Representations and Warranties of Bouras, the Foundation and Sellers.
All representations and warranties made by Bouras, the Foundation and Sellers in this Agreement, in
any Schedules hereto and/or in any written statement delivered by Bouras, the Foundation or any
Seller under this Agreement (a) qualified by materiality, be true and correct in all respects as of
the Closing Date (except for representations and warranties which are as of a specific date or
which relate to a specific period other than or not including the Closing Date, as the case may be,
which need only to be true and correct as of such date or with respect to such period); and (b) to
the extent not qualified by materiality, be true and correct in all material respects as of the
Closing Date (except for representations and warranties which are as of a specific date or which
relate to a specific period other than or not including the Closing Date, as the case may be, which
need only to be true and correct in all material respects as of such date or with respect to such
period).



     11.03 Certification. Purchaser shall have received a certificate, dated the Closing Date,
signed by Sellers, Bouras and the Foundation, certifying that the conditions specified in
Sections 11.01, 11.02, 11.07, 11.08, 11.10, 11.12, and 11.14 hereof, insofar as each is
applicable to Bouras, the Foundation and such Seller, have been fulfilled in all respects.



     11.04 Ancillary Agreements. At Closing, Sellers, the Foundation and Bouras shall have
delivered to Purchaser properly executed Ancillary Agreements, including without limitation the
Deeds conveying title to the Company Real Estate, the Bill of Sale, the Assignment and Assumption
Agreement, the Escrow Agreement, the Environmental Escrow Agreement, the Access Agreement and the
Lease Amendment.



     11.05 Good Standing of Sellers. Each Seller shall have delivered to Purchaser certificates
issued by appropriate governmental authorities evidencing that (i) such Seller is in good standing
and existing, as of a date not more than ten (10) days prior to the Closing Date, in the state of
its organization, and (ii) such Seller is qualified to do business and is in good standing as a
foreign corporation in each jurisdiction wherein the failure by such Seller to be so qualified
would result in a Material Adverse Change.



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     11.06 Resolutions. Purchaser shall have received certified resolutions of the Board of
Directors of each Seller and, if required for the consummation of the transactions contemplated
hereby, such Seller’s shareholders, in form satisfactory to counsel for Purchaser authorizing the
execution, delivery and performance of this Agreement by the such Seller and all actions to be
taken by such Seller hereunder.



     11.07 Absence of Litigation. No action, suit or proceeding before any court or other
Governmental Authority pertaining to the transactions contemplated by this Agreement or their
consummation shall have been instituted on or before the Closing Date and which could reasonably be
expected, if adversely determined, to have a material adverse effect on (i) the Sellers’ ability to
sell the Acquired Assets to Purchaser, (ii) Purchaser’s ability to operate the Facilities following
the Closing Date, or (iii) the consummation of the transactions contemplated hereby.



     11.08 Consents. The consents of the third parties listed on Schedule 11.08 shall
have been obtained.



     11.09 Shareholder Approval. To the extent required to consummate the transactions
contemplated hereby, this Agreement shall have been approved by the affirmative vote of all of the
holders of the shares of outstanding common stock of the Company.



     11.10 Unfinished Customer Contracts. No events or circumstances shall have occurred
between the date hereof and the Closing Date that would make it likely that Purchaser would incur a
loss in the aggregate in connection with the completion of the Unfinished Customer Contracts.



     11.11 [Intentionally Omitted].



     11.12 No Material Adverse Change. Since the date of this Agreement, there shall not have
occurred any Material Adverse Change. For purposes of this Section 11.12, a Material
Adverse Change shall be deemed to have occurred if, during the period from the date hereof until
the Closing, the Sellers shall have suffered an adverse effect of $4,000,000 in the aggregate or
more on the Business.



     11.13 Agreement on Inventory Value. The Inventory Value shall have been determined in
accordance with Section 1.07 hereof.



     11.14 Opinion of Counsel for Sellers. Sellers shall have delivered to Purchaser an opinion
dated as of the Closing Date, of Sellers’ counsel, Riker Danzig Scherer Hyland & Perretti, LLP, in
a form reasonably satisfactory to Purchaser containing the opinions set forth in Exhibit J
to this Agreement (“Sellers’ Counsel’s Opinion”).



     11.15 Permit Transfers. Sellers shall have executed all documents deemed necessary by the
Purchaser to effectuate the transfer of all Permits, including without limitation,


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 Environmental
Permits (other than Permits which, under applicable Law, cannot be transferred to Purchaser)
associated with the Acquired Assets.
 



     11.16 ISRA Compliance.




     (a) Sellers shall have received from the NJDEP and provided to Purchaser, either (i) a
non-applicability letter stating that the contemplated transaction is not subject to the
requirements of ISRA, (ii) written approval by the NJDEP of Sellers’ negative declaration or
“No Further Action letter” and “Covenant Not to Sue” as to all areas of concern located at
the New Jersey Real Estate, (iii) an NJDEP-approved “Remediation Agreement” with a Funding
Source, as defined Section 9.16(a) above; or (iv) an NJDEP-approved
Remediation-in-Progress Waiver, as all such terms are defined pursuant to ISRA.




     (b) Sellers shall have provided or otherwise made available to Purchaser true and
complete copies of all documents, reports, submissions and correspondence provided by
Sellers to the NJDEP and all documents, directives and correspondence provided by the NJDEP
to Sellers. Sellers shall also promptly furnish to Purchaser true and complete copies of
all sampling, test results and reports (including any “Preliminary Assessment Report” and/or
“Site Investigation Report,” as defined under ISRA) obtained from samples and tests taken at
and around the premises upon receipt thereof from Sellers’ environmental consultant.



     11.17 HSR Act. Any applicable waiting periods, together with any extensions thereof, under
the HSR Act and any other applicable Antitrust Laws required to consummate the Agreement shall have
expired or been terminated.



     11.18 Summit Lease. Subject to the terms and conditions of this Agreement, Sellers shall
have caused Bouras Properties, LLC., as landlord (the “Landlord”), to amend the Summit Lease
substantially in the form attached hereto as Exhibit K (the “Lease Amendment”; the Summit
Lease as amended by the Lease Amendment, the “New Lease”), which shall provide, among other
matters, for a minimum eighteen (18) month term and give the Purchaser the right to terminate the
New Lease at any time after the eighteenth (18th) month. With respect to any such
termination, Purchaser shall notify the Landlord in writing at least six (6) months prior to
Purchaser’s intended termination date.



     11.19 Removal of Drums. Except for drums of investigation derived wastes and for
normal quantities of wastes generated in the operations at the Facilities, Sellers shall have
removed all other drums of wastes from the Facilities. Sellers shall agree in the Access Agreement
to retain ownership of any remaining investigation derived wastes and shall agree to handle such
wastes in accordance with the procedures of the Access Agreement.



69









 





     XII. CONDITIONS PRECEDENT TO CLOSING BY SELLERS, BOURAS AND THE FOUNDATION



     The obligation of Sellers, Bouras and the Foundation to consummate the transactions
contemplated by this Agreement is subject to and conditioned upon the satisfaction, at or prior to
Closing, of each of the following conditions, any one or more of which may be waived by Sellers,
Bouras and the Foundation; provided, however, that Closing shall not constitute a
waiver of any breached representation or warranty:



     12.01 Compliance With Agreement. All of the covenants and obligations that Purchaser is
required to perform or comply with on or before the Closing Date, including the delivery to
Sellers, Bouras and the Foundation of all schedules, documents, and instruments required to be
delivered to Sellers, Bouras and the Foundation by this Agreement, shall have been performed and
complied with in all respects.



     12.02 Accuracy of Representations and Warranties of Purchaser. All representations and
warranties made by Purchaser in this Agreement, in any Schedules hereto and/or in any written
statement delivered by Purchaser under this Agreement shall: (a) to the extent qualified by
materiality, be true and correct in all respects as of the Closing Date (except for representations
and warranties which are as of a specific date or which relate to a specific period other than or
not including the Closing Date, as the case may be, which need only to be true and correct as of
such date or with respect to such period); and (b) to the extent not qualified by materiality, be
true and correct in all material respects as of the Closing Date (except for representations and
warranties which are as of a specific date or which relate to a specific period other than or not
including the Closing Date, as the case may be, which need only to be true and correct in all
material respects as of such date or with respect to such period).



     12.03 Certification. Sellers shall have received a certificate, dated the Closing Date,
signed by an appropriate officer of Purchaser, certifying that the conditions specified in
Sections 12.01 and 12.02 hereof have been fulfilled in all respects.



     12.04 Agreement on Inventory Value. The Inventory Value shall have been determined in
accordance with Section 1.07 hereof.



     12.05 Opinions of Counsel for Purchaser. Purchaser shall have delivered to Sellers
opinions dated as of the Closing Date, of David M. Sudbury and Haynes and Boone, LLP, in forms
reasonably satisfactory to Purchaser (“Purchaser’s Counsel’s Opinion”).



     12.06 Offers of Employment. Purchaser shall have made all offers of employment
required to have been made pursuant to Section 9.22 hereof.



70









 





     XIII. CLOSING DELIVERIES



     13.01 Sellers’ Deliveries. At the Closing, Sellers will deliver to Purchaser such deeds,
bills of sale, endorsements, assignments, and other good and sufficient instruments of conveyance
and transfer in form satisfactory to Purchaser and containing full warranties of title, as shall be
effective to vest in Purchaser good, absolute, and marketable title to the Acquired Assets.
Without limiting the generality of the foregoing, Sellers will deliver the following items to
Purchaser:




     (a) All Assumed Contracts together with any required consents and estoppel letters
provided for in this Agreement.




     (b) Deeds conveying title to the Company Real Estate described in Schedule
1.03, together with any necessary transfer declarations or other filings.




     (c) The Assignment and Assumption Agreement.




     (d) The ALTA Policy.




     (e) The Bill of Sale.




     (f) The Escrow Agreement and the Environmental Escrow Agreement.




     (g) The Access Agreement.




     (h) The Lease Amendment.




     (i) The Employment Agreements.




     (j) Certified resolutions of the Board of Directors of each Seller in a form
satisfactory to counsel for Purchaser authorizing the execution, delivery and performance of
this Agreement by such Seller and all actions to be taken by such Seller hereunder.




     (k) Copies of all consents and approvals obtained by Sellers relating to the
transactions contemplated by this Agreement.




     (l) Certificates of Existence and Good Standing from the Secretary of State of each
Seller’s applicable jurisdiction of organization.




     (m) Releases of all Liens on any of the Acquired Assets, including, without limitation,
UCC-3 termination statements.



71









 






     (n) A letter from the Sellers’ independent public accountants, addressed to Purchaser,
stating that Purchaser shall be entitled to rely on the auditor’s reports of such
accountants with respect to the Financial Statements.




     (o) A certification of non-foreign tax status pursuant to Section 1445 of the Code, in
form and substance satisfactory to Purchaser.




     (p) The Sellers’ Counsel’s Opinion.




     (q) Such other documents as Purchaser may reasonably request for the purpose of (i)
evidencing the accuracy of any of Bouras’, the Foundation’s or Sellers’ representations and
warranties, (ii) evidencing the performance by Bouras, the Foundation and any Seller of, or
the compliance by Bouras, the Foundation and any Seller with, any covenant or obligation
required to be performed or complied with by Bouras, the Foundation and such Seller, (iii)
evidencing the satisfaction of any condition referred to in this Agreement, or (iv)
otherwise facilitating the consummation or performance of any of the transactions
contemplated by this Agreement.



     Simultaneously with such delivery, Sellers will take all such steps as may be requisite to put
Purchaser in actual possession, operation, and control of the Acquired Assets to be transferred
hereunder.



     13.02 Purchaser’s Deliveries. At the Closing, Purchaser will deliver the following items
to Sellers:




     (a) To Sellers by wire transfer of immediately available funds, the Purchase Price as
adjusted under this Agreement and the Non-Compete Payment pursuant to Article IV.




     (b) The Assignment and Assumption Agreement.




     (c) The Bill of Sale.




     (d) The Escrow Agreement and the Environmental Escrow Agreement.




     (e) The Access Agreement.




     (f) The Lease Amendment.




     (g) The Employment Agreements.




     (h) Such other documents as Sellers may reasonably request for the purpose of (i)
evidencing the accuracy of any representation or warranty of Purchaser, (ii) evidencing the
performance by Purchaser of, or the compliance by Purchaser with, any



72









 





covenant or obligation
required to be performed or complied with by Purchaser, (iii) evidencing the satisfaction of
any condition referred to in this Agreement, or (iv) otherwise facilitating the consummation
of any of the transactions contemplated by this Agreement.



     XIV. TERMINATION OF AGREEMENT



     14.01 Termination. This Agreement may, by written notice given at or prior to Closing in
the manner hereinafter provided, be terminated or abandoned:




     (a) By Bouras, the Foundation and Sellers or by Purchaser if the Closing shall not have
occurred on or before the first Monday following the end of the month, in which the 120th
day following the date of this Agreement shall fall;




     (b) By Purchaser if a material default or material breach shall be made by Bouras, the
Foundation or any Seller with respect to the due and timely performance of any of Bouras’,
the Foundation’s or such Seller’s covenants and agreements contained herein, or with respect
to the correctness of any of their representations and warranties contained in Article
VII hereof;




     (c) By Bouras, the Foundation or any Seller if a material default or material breach
shall be made by Purchaser with respect to the due and timely performance of any of its
covenants and agreements contained herein, or with respect to the correctness of or due
compliance with any of its representations and warranties contained in Article VIII
hereof; and




     (d) By mutual consent of Sellers and Purchaser.



     14.02 Continuing Obligations. In the event this Agreement is terminated pursuant to
Section 14.01, all further obligations of the parties hereunder shall terminate, except
that the obligations set forth in Sections 9.05, 15.03, 15.05, 15.07 and
Article X shall survive; provided, however, that if this Agreement is so
terminated by one party because one or more of the conditions to such party’s obligations hereunder
are not satisfied as a result of the other party’s failure to comply with Article XI or
Article XII or any of its obligations under any other provision of this Agreement, it is
expressly agreed and understood that the terminating party’s right to pursue all legal remedies for
breach of contract and damages shall also survive such termination unimpaired.



     XV. MISCELLANEOUS



     15.01 Assignment. This Agreement shall not be assignable by Bouras, the Foundation,
Sellers or Purchaser without the consent of the other, except that Purchaser may assign this
Agreement to a wholly-owned subsidiary of Purchaser (or a wholly-owned subsidiary of any Affiliate
of Purchaser which is directly or indirectly in a line of corporate ownership with



73









 





Purchaser as the
ultimate parent corporation) now in, or hereinafter to come into, existence. If such assignment is
made, such assignee shall be substituted for and succeed to all the rights and privileges of
Purchaser under this Agreement. Any purported assignment in violation of this Agreement shall be
void. Nothing in this Agreement, expressed or implied, is intended to confer upon any person,
other than the parties hereto and their successors and Purchaser Indemnitees and Seller
Indemnitees, any rights or remedies under or by reason of this Agreement.



     15.02 Survival; Effect of Investigation; Waiver of Conditions and Performance. All of the
terms, conditions, representations, covenants and warranties contained herein on behalf of any
party hereto shall survive for a period of two (2) years, except that the provisions of
Sections 7.01, 7.02, 7.10, 7.14, 7.19 and 7.23 shall survive the Closing until the
expiration of the relevant statute of limitations, and the provisions of Section 9.16 shall
survive the Closing until such time as the No Further Action letter for the New Jersey Real Estate
and the closure from the PDEP for the Pennsylvania Real Estate are issued. The right to
indemnification, reimbursement or other remedy based upon any representations, warranties,
covenants and obligations of any party shall not be affected by any investigation whatsoever
(including any environmental investigation or assessment) conducted with respect to, or any
knowledge acquired (or capable of being acquired) at any time by any person or entity having such
right to indemnification, reimbursement or other remedy, whether before or after the execution and
delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or
compliance with any such representation, warranty, covenant or obligation.



     15.03 Attorneys’ Fees. If any party shall be required to employ attorneys to enforce or
defend its rights hereunder, the prevailing party shall be entitled to recover its reasonable
attorneys’ fees.



     15.04 IRS Documentation. Sellers and Purchaser agree to cooperate and exchange necessary
information so that all tax reporting requirements of both parties, including IRS Form 8594, shall
be accurately disclosed in a consistent manner and in accordance with the terms of this Agreement.



     15.05 Expenses. Each of the parties shall bear all expenses incurred by them in connection
with this Agreement and in the consummation of the transactions contemplated hereby and in
preparation thereof, including, to the extent applicable, any brokers’ and finders’ fees;
provided, however, that Sellers and Purchaser shall pay one-half of the filing
fee(s) for filings made pursuant to Antitrust Laws.



     15.06 Amendment and Waiver. This Agreement may be amended or modified at any time and in
all respects, and any provision may be waived, only by an instrument in writing executed by
Purchaser, and all of the Sellers, Bouras, the Foundation or any of them in the case of waiver by
such party. The rights and remedies of the parties to this Agreement are cumulative and not
alternative. Neither the failure nor any delay by any party in exercising any right, power, or
privilege under this Agreement or the documents referred to in this Agreement will operate as a
waiver of such right, power, or privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of such right,



74









 





power, or privilege
or the exercise of any other right, power, or privilege. To the maximum extent permitted by
applicable law, (a) no claim or right arising out of this Agreement or the documents referred to in
this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of
the claim or right unless in writing signed by the other party; (b) no waiver that may be given by
a party will be applicable except in the specific instance for which it is given; and (c) no notice
to or demand on one party will be deemed to be a waiver of any obligation of such party or of the
right of the party giving such notice or demand to take further action without notice or demand as
provided in this Agreement or the documents referred to in this Agreement.



     15.07 Notices. All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand
(with written confirmation of receipt), (b) sent by telecopier (with written electronic
confirmation of receipt), provided that a copy is mailed by registered mail, return receipt
requested, or (c) when received by the addressee, if sent by a nationally recognized overnight
delivery service (receipt requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a party may designate
by notice to the other parties):


To Purchaser:



Commercial Metals Company

President CMC Steel Group

P.O. Box 1046

Dallas, Texas 75221

Facsimile No.: (214) 689-5835



with copies (which shall not constitute notice) to:



David M. Sudbury

General Counsel

Commercial Metals Company

6565 N. MacArthur Blvd.

Suite 800

Irving, Texas 75039

Facsimile No.: (214) 689-4326



and



Haynes and Boone, LLP

901 Main Street, Suite 3100

Dallas, Texas 75202

Attention: William R. Hays, III

Facsimile No.: (214) 200-0467




75









 







To any Seller:



c/o The Nicholas J. and Anna K. Bouras Foundation, Inc.

Bouras Industries, Inc.

25 DeForest Avenue

P.O. Box 662

Summit, New Jersey 07902-0662

Attention: President

Facsimile No.: (908) 277-1619



with copies to:



Riker Danzig Scherer Hyland & Perretti, LLP

Headquarters Plaza

One Speedwell Avenue

Morristown, New Jersey 07962-1981

Attention: Andrew J. Stamelman, Esq.

Facsimile No.: (973) 451-8618




     15.08 Choice of Law; Jurisdiction. IT IS THE INTENTION OF THE PARTIES THAT THE LAWS OF THE
STATE OF DELAWARE SHOULD GOVERN THE VALIDITY OF THIS AGREEMENT, THE CONSTRUCTION OF ITS TERMS, AND
THE INTERPRETATION OF THE RIGHTS AND DUTIES OF THE PARTIES, WITHOUT REGARD TO SUCH STATE’S
CONFLICTS OF LAW PRINCIPLES. ANY ACTION OR PROCEEDING SEEKING TO ENFORCE ANY PROVISION OF, OR
BASED ON ANY RIGHT ARISING OUT OF, THIS AGREEMENT MAY BE BROUGHT AGAINST ANY OF THE PARTIES IN THE
COURTS OF THE STATE OF DELAWARE, OR, IF IT HAS OR CAN ACQUIRE JURISDICTION, IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF DELAWARE, AND EACH OF THE PARTIES CONSENTS TO THE JURISDICTION
OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS) IN ANY SUCH ACTION OR PROCEEDING AND
WAIVES ANY OBJECTION TO VENUE LAID THEREIN. PROCESS IN ANY ACTION OR PROCEEDING REFERRED TO IN THE
PRECEDING SENTENCE MAY BE SERVED ON ANY PARTY ANYWHERE IN THE WORLD.



     15.09 Section and Other Headings. Section, paragraph, and other headings contained in this
Agreement are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. The words “herein,” “hereof,” “hereto” and “hereunder” and other
words of similar import refer to this Agreement as a whole and not to any particular Article,
Section or other subdivision.



76









 





     15.10 Counterpart Execution. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute but one and
the same instrument.



     15.11 Gender. All personal pronouns used in this Agreement shall include the other genders
whether used in the masculine or feminine or neuter gender, and the singular shall include the
plural whenever and as often as may be appropriate.



     15.12 Parties in Interest. All the terms and provisions of this Agreement shall be binding
upon and inure to the benefit of, and be enforceable by, the parties hereto and their successors
and permitted assigns. Nothing expressed or referred to in this Agreement will be construed to
give any Person other than the parties to this Agreement any legal or equitable right, remedy or
claim under or with respect to this Agreement or any provision of this Agreement.



     15.13 Integrated Agreement. This Agreement (including the Schedules and Exhibits hereto),
the Ancillary Agreements and the other documents delivered pursuant hereto and referenced herein
constitute the entire agreement between the parties hereto, and there are no agreements,
understandings, restrictions, warranties, or representations between the parties other than those
set forth herein or herein provided for.



     15.14 Severability. If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Agreement will remain in full
force and effect. Any provision of this Agreement held invalid or unenforceable only in part or
degree will remain in full force and effect to the extent not held invalid or unenforceable.



     15.15 Time of Essence. With regard to all dates and time periods set forth or referred to
in this Agreement, time is of the essence.



     15.16 Further Assurances. From time to time after Closing, at the reasonable request of
any party hereto and without further consideration, Purchaser, on the one hand, and Sellers, on the
other hand, shall execute and deliver to the requesting party such instruments and documents and
take such other action (but without incurring any material financial obligation) as such requesting
party may reasonably request in order to consummate more fully and effectively the transactions
contemplated hereby.



     15.17 Post-Closing Cooperation. After Closing, Sellers shall cooperate in all reasonable
respects with Purchaser in effecting Permit transfers, including Environmental Permits (to the
extent such are transferable to Purchaser), and in providing any reasonably necessary information
related to compliance with Environmental Requirements by Purchaser.



     15.18 Consequential Damages. Notwithstanding anything to the contrary in this Agreement,
Sellers and their respective Affiliates, shall be liable by reason of any breach of any
representation, warranty, covenant, condition or other term of this Agreement (including Article
X), or any duty of common law, for consequential, special, incidental, or punitive loss or damage



77









 





(whether for loss of current or future profits, loss of enterprise value or otherwise);
provided, however, the maximum liability of Sellers collectively for any loss or
damage under this Section 15.18 shall not exceed $2,500,000.



* * * * * *




78









 








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



	 	 	 	 	 	 	 	 	 
	 	 	PURCHASER:
	 
	 	 	 	 	 	 	 	 
	 	 	COMMERCIAL METALS COMPANY,
	 	 	a Delaware corporation
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Russell B. Rinn	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Russell B. Rinn	 	 
	 

	 	 	 	Title:	 	Executive
Vice President

	 	 
	 

	 	 	 	 	 	 

	 	 






	 	 	 	 	 	 	 	 	 
	 	 	SELLERS:
	 
	 	 	 	 	 	 	 	 
	 	 	BOURAS INDUSTRIES, INC.,
	 	 	a New Jersey corporation
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Nicholas J.
Bouras	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Nicholas J. Bouras	 	 
	 

	 	 	 	Title:
	 	President

	 	 
	 

	 	 	 	 	 	 

	 	 






	 	 	 	 	 	 	 	 	 
	 	 	NICHOLAS J. BOURAS, INC.,
	 	 	a New Jersey corporation
	 
	 	 	 	 	 	 	 	 
	 
	 	By:	 	/s/ Nicholas J. Bouras	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Nicholas J. Bouras	 	 
	 

	 	 	 	Title:
	 	President

	 	 
	 

	 	 	 	 	 	 

	 	 






	 	 	 	 	 	 	 	 	 
	 	 	UNITED STEEL DECK, INC.,
	 	 	a New Jersey corporation
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Nicholas J.
Bouras	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Nicholas J. Bouras	 	 
	 

	 	 	 	Title:	 	President

	 	 
	 

	 	 	 	 	 	 

    	 	 






SIGNATURE PAGE TO AGREEMENT FOR PURCHASE AND SALE OF ASSETS




 









 








	 	 	 	 	 	 	 	 	 
	 	 	ABA TRUCKING CORPORATION.,
	 	 	a New Jersey corporation
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Nicholas J. Bouras	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Nicholas J. Bouras	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	President
	 	 
	 	 	 	 	 	 	 	 	 






	 	 	 	 	 	 	 	 	 
	 	 	THE NEW COLUMBIA JOIST COMPANY,
	 	 	a Delaware corporation
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Nicholas J. Bouras 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Nicholas J. Bouras	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	President
	 	 
	 	 	 	 	 	 	 	 	 






	 	 	 	 	 	 	 	 	 
	 	 	/s/
Nicholas J. Bouras	 	 
	 	 	NICHOLAS J. BOURAS, Individually	 	 
	 
	 	 	THE NICHOLAS J. AND ANNA K. BOURAS FOUNDATION, INC.
	 
	 

	 	By:	 	/s/ Nicholas J. Bouras	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Nicholas J. Bouras	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Sole member for the Foundation
	 	 
	 	 	 	 	 	 	 	 	 






SIGNATURE PAGE TO AGREEMENT FOR PURCHASE AND SALE OF ASSETS






 









 








List of Omitted Exhibits and Schedules




Exhibits:




	 	 	 
	Exhibit A -
	 	Assignment and Assumption Agreement
	Exhibit B -
	 	Turnover and Retirement Assumptions
	Exhibit C -
	 	Surveyor’s Certificate
	Exhibit D -
	 	Bill of Sale
	Exhibit E -
	 	RIW Map
	Exhibit F -
	 	Access Agreement
	Exhibit G -
	 	Map of Pennsylvania Real Estate
	Exhibit H -
	 	Escrow Agreement
	Exhibit I -
	 	Environmental Escrow Agreement
	Exhibit J -
	 	Sellers’ Counsel’s Opinion
	Exhibit K -
	 	Lease Amendment
	 
	 	 
	Schedules:
	 	 
	 
	 	 
	Schedule 1.00
	 	Facilities
	Schedule 1.01
	 	Included Tangible Assets
	Schedule 1.02
	 	Included Intangible Assets
	Schedule 1.03
	 	Company Real Estate
	Schedule 1.04(a)
	 	Non-Transferable Permits
	Schedule 1.04(b)
	 	Permits
	Schedule 1.05
	 	Excluded Assets
	Schedule 1.06
	 	Allocation of Purchase Price
	Schedule 1.07(a)
	 	Inventory Valuation Method
	Schedule 1.07(a)(i)
	 	Raw Material Inventory
	Schedule 1.07(a)(ii)
	 	Work-in-Process Inventory
	Schedule 1.07(a)(iii)
	 	Finished Goods Inventory
	Schedule 2.01
	 	Assumed Liabilities
	Schedule 5.01
	 	Accrued Vacation Liability and
“Time Bank” Liability
	Schedule 6.04
	 	Exceptions to Title
	Schedule 7.01
	 	Subsidiaries
	Schedule 7.03
	 	Violations, Breach or Default of Obligations, Agreements, Permits, Etc.
	Schedule 7.05
	 	Required Consents and Approvals
	Schedule 7.06(a)
	 	Financial Statements; Exceptions
	Schedule 7.06(b)
	 	Unfinished Customer Contracts
	Schedule 7.06(c)
	 	Net Loss on Unfinished Customer Contracts
	Schedule 7.08
	 	Absence of Certain Changes
	Schedule 7.09
	 	Litigation
	Schedule 7.10
	 	Liens and Encumbrances
	Schedule 7.11
	 	Location and Sufficiency of Assets
	Schedule 7.13
	 	Agreements; Bonds
	Schedule 7.14
	 	Taxes
	Schedule 7.17
	 	Proprietary Rights






 









 






	 	 	 
	Schedule 7.18
	 	Insurance Policies
	Schedule 7.19(b)
	 	Environmental Matters
	Schedule 7.19(c)
	 	Underground and Above Ground Storage Tanks
	Schedule 7.20(a)
	 	Relationships with Customers and Suppliers
	Schedule 7.20(b)
	 	Employees
	Schedule 7.20(c)
	 	Top Customers and Suppliers
	Schedule 7.22
	 	Conflicts of Interest
	Schedule 7.23(a)
	 	Employee Benefit Plans
	Schedule 7.23(h)
	 	COBRA Participation
	Schedule 7.23(k)
	 	Employment/Severance Agreements with Officers, Directors or Employees
	Schedule 7.23(l)
	 	Multi-Employer Plans
	Schedule 7.24(a)
	 	Labor Relations
	Schedule 7.24(b)
	 	Compliance with Employment Laws
	Schedule 7.24(c)
	 	Collective Bargaining Agreements
	Schedule 7.24(d)
	 	Employees
	Schedule 7.29(a)
	 	Inventory
	Schedule 7.29(c)
	 	Revenue Recognition from Sales of Inventory
	Schedule 7.30
	 	Owner-Operator Leases and Deposits
	Schedule 9.05
	 	Public Announcement
	Schedule 11.08
	 	Consents