**Exhibit 2.3**ExecutionCopyAGREEMENT AND PLAN OF MERGERTHIS AGREEMENT AND PLAN OF MERGER, made as of the 27th day of July, 2007, by and among RioVista Energy Partners L.P., a Delaware limited partnership (“Buyer”); Regional Enterprises,Inc., a Virginia corporation and newly formed, wholly owned subsidiary of Buyer (“MergerSub”); Regional Enterprizes, Inc. (also known as Regional Enterprises, Inc.), a Virginiacorporation (“Company”); the shareholders of Company as set forth on Schedule 1(individually, a “Shareholder” and collectively, the “Shareholders”); and W. GaryFarrar, Jr. (“Principal”).RECITALS**:**Shareholders own 100.00% of the issued and outstanding shares of capital stock of Company,with the number of such shares owned by each of the Shareholders set forth opposite the names ofthe respective Shareholders on Schedule 3.1;Company is engaged in the business of transportation, storage and transloading of bulk liquids(the “Business”);Principal is a founding principal and current President of Company and will benefitsubstantially from the transactions contemplated herein;The Board of Managers of the general partner of Buyer and the Board of Directors of Companyhave each approved and deem it advisable and in the best interests of their respective equityholders for Buyer to acquire Company upon the terms and subject to the conditions of thisAgreement;It is intended that the transaction be accomplished by a merger of Company with and intoMerger Sub, with Merger Sub continuing as the surviving corporation (the “Merger”);The Board of Directors of Company has approved the transactions contemplated by this Agreementand has recommended the approval of the Merger by its shareholders in accordance with theprovisions of Section 13.1-718 of the Virginia Stock Corporation Act (the “VSCA”);The shareholders of Company have approved the transactions contemplated by this Agreement; andA list of defined terms appears in Section 17 of this Agreement, and reference is madeto that Section for the definitions of capitalized terms used herein which are not definedelsewhere.AGREEMENT:NOW, THEREFORE, in consideration of the premises and of the mutual covenants hereinafter setforth, the parties hereto, intending to be legally bound, hereby agree as follows:1. The Merger.1.1 Generally. Upon the terms and subject to the conditions contained in thisAgreement, and in accordance with the VSCA, at the Effective Time, Company shall be merged with andinto Merger Sub, the separate corporate existence of Company shall thereupon cease, Merger Subshall continue as the surviving corporation (sometimes hereinafter referred to as the“Surviving Corporation”) and shall continue its corporate existence under the laws of the Commonwealth of Virginia,and, in accordance with Section 13.1-721 of the VSCA, all of the rights, privileges, powers,immunities, purposes and franchises of Company and Merger Sub shall vest in the SurvivingCorporation and all of the debts, liabilities, obligations and duties of Company and Merger Subshall become the debts, liabilities, obligations and duties of the Surviving Corporation.
 
 

 
1.2 Effective Time. The Merger shall become effective at the time of filing of, or atsuch later time specified in, properly executed articles of merger, in the form required by andexecuted in accordance with the VSCA, filed with the State Corporation Commission of theCommonwealth of Virginia, in accordance with the provisions of Section 13.1-720 of the VSCA (the“Articles of Merger”). Such filing shall be made contemporaneously with, or immediatelyafter, the Closing. When used in this Agreement, the term “Effective Time” shall mean thedate and time at which the Merger shall become effective.1.3 Articles of Incorporation and Bylaws. From and after the Effective Time, theArticles of Incorporation of Merger Sub as in effect immediately prior to the Effective Time shallbe the Articles of Incorporation of the Surviving Corporation until thereafter amended inaccordance with applicable law. From and after the Effective Time, the Bylaws of Merger Sub ineffect immediately prior to the Effective Time shall be the Bylaws of the Surviving Corporationuntil thereafter amended in accordance with applicable law.1.4 Directors and Officers. The directors of Merger Sub immediately prior to theEffective Time shall be directors of the Surviving Corporation, each to hold office in accordancewith the articles of incorporation and the bylaws of the Surviving Corporation, and the officers ofMerger Sub immediately prior to the Effective Time shall be the officers of the SurvivingCorporation, in each case until their respective successors are duly elected or appointed andqualified.1.5 Merger Consideration; Conversion and Cancellation of Securities*.*At the EffectiveTime, by virtue of the Merger and without any further action on the part of Company, Merger Sub orBuyer or the holders of any of their securities:(a) Conversion of Shares of Company. Subject to the other provisions of this Section1, each share of voting common stock of Company and each share of nonvoting common stock of Company(collectively, the “Shares”) issued and outstanding immediately prior to the Effective Timeshall be converted into the right to receive Nine Hundred and 00/100 Dollars ($900.00) per Share incash, payable as set forth in this Section 1. Notwithstanding the foregoing, if between the dateof this Agreement and the Effective Time the outstanding Shares shall have been changed into adifferent number of shares or a different class, by reason of any stock dividend, subdivision,reclassification, recapitalization, split, combination or exchange of shares, the consideration setforth herein shall be correspondingly adjusted to reflect such stock dividend, subdivision,reclassification, recapitalization, split, combination or exchange of shares.(b) Shares No Longer Outstanding. All Shares converted pursuant to Section1.5(a) at the Effective Time shall no longer be outstanding and shall automatically becancelled and retired and shall cease to exist, and each holder of a certificate which immediatelyprior to the Effective Time represented such outstanding Shares shall cease to have any rights as ashareholder of Company, except the right to receive the consideration set forth herein for eachsuch Share.(c) Conversion of Shares of Merger Sub. Each share of common stock of Merger Subissued and outstanding immediately prior to the Effective Time shall be converted into one share ofcommon stock of the Surviving Corporation.
 
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(d) Exchange Procedures. At the Closing, each Shareholder, upon surrender of anoutstanding certificate or certificates heretofore representing the Shares, or delivery of a loststock affidavit in form and substance acceptable to all parties, shall be entitled to receive inexchange therefor the consideration set forth herein for each such Share.1.6 Payment of Consideration. At the Closing, the Surviving Corporation shall payeach Shareholder Eight Hundred and 00/100 Dollars ($800.00) per Share held by such Shareholder atthe time of the Closing in immediately available funds, subject to the provisions of Section1.5(a), Section 1.7,Section 1.8 and Section 1.9(a). Such amountsshall be payable to the Shareholders in the individual amounts set forth on Schedule 1.The aggregate of such amounts payable at the Closing shall be referred to as the “InitialConsideration.” On the dates which are six (6), twelve (12), eighteen (18) and twenty-four(24) months after the Effective Time, the Surviving Corporation shall pay each ShareholderTwenty-Five and 00/100 Dollars ($25.00) per Share held by such Shareholder immediately prior toClosing, in immediately available funds. The aggregate of such amounts payable after the Closingshall be referred to as the “Deferred Consideration.” The aggregate of the InitialConsideration and the Deferred Consideration shall be referred to as the “TotalConsideration,” which shall not exceed Nine Million and 00/100 Dollars ($9,000,000) (subject tothe Working Capital adjustment set forth in Section 1.8).1.7 Escrow.(a) Indemnification Holdback. A portion of the Initial Consideration in the amount ofFive Hundred Thousand and 00/100 Dollars ($500,000) (the “Indemnification Holdback Amount”)shall be delivered to an escrow agent (the “Escrow Agent”) for purposes of providingadditional security for the indemnification obligations of the Sellers under Section 11.The Escrow Agent shall be selected by Buyer and be reasonably acceptable to Company. TheIndemnification Holdback Amount shall be placed in an interest-bearing escrow account by the EscrowAgent and shall be subject to the applicable provisions of this Agreement and the provisions of theEscrow Agreement in substantially the form attached as Exhibit A (the “EscrowAgreement”) between Buyer, the Shareholders’ Agent and the Escrow Agent. Subject to the EscrowAgreement and subject to any claims asserted by Buyer or the Surviving Corporation pursuant toSection 11, the Indemnification Holdback Amount (together with accrued interest) shall bereleased in full to the Shareholders’ Agent for the benefit of the Shareholders on the date whichis thirty (30) days following the first anniversary of the Effective Time.(b) Norfolk Southern Holdback. An additional portion of the Initial Consideration inthe amount of One Million and 00/100 Dollars ($1,000,000.00) (the “Norfolk Southern HoldbackAmount”) shall be delivered to the Escrow Agent for purposes of providing additional securitypending the Closing of the Norfolk Southern Matter. The Norfolk Southern Holdback Amount shall beplaced in an interest-bearing escrow account by the Escrow Agent and shall be subject to theapplicable provisions of this Agreement and the provisions of the Escrow Agreement. Subject to theEscrow Agreement, the Norfolk Southern Holdback Amount (together with accrued interest) shall bereleased in full upon the first to occur of: (i) the date of the Closing of the Norfolk SouthernMatter, in which event the Norfolk Southern Holdback Amount shall be released to the Shareholders’Agent for the benefit of the Shareholders; (ii) the date which is three (3) years after theEffective Time, in which event the Norfolk Southern Holdback Amount shall be released to theShareholders’ Agent for the benefit of the Shareholders; (iii) the date on which the SurvivingCorporation or its successor voluntarily elects to vacate the Norfolk Southern Properties, in whichevent the Norfolk Southern Holdback Amount shall be released to the Shareholders’ Agent for thebenefit of the Shareholders; (iv) the cancellation or termination of the Norfolk Southern Lease byNorfolk Southern prior to the Closing of the Norfolk Southern Matter, in which event the NorfolkSouthern Holdback Amount shall be released to the Surviving Corporation; and (v) any other exclusion of the Surviving Corporation from access to oruse of the Norfolk Southern Properties prior to the Closing of the Norfolk Southern Matter, whichexclusion has or could reasonably be expected to have a material adverse effect on the SurvivingCorporation’s operations, in which event the Norfolk Southern Holdback Amount shall be released tothe Surviving Corporation.
 
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1.8 Working Capital.(a) At the Closing, (i) the Working Capital of Company shall be an amount that is at least$475,000.00 ($500,000 less $25,000 as imputed interest on the IRS Payable) and shall include atleast $150,000.00 in cash, and (ii) the aggregate total of all accounts payable and all accruedliabilities of Company (excluding the IRS Payable) shall be no more than $250,000.00. “WorkingCapital” means the total of cash and accounts receivable (excluding any accounts receivablewhich are more than sixty (60) days old or the collection of which is doubtful for any reason,which are based on transactions with any Related Party or any employee of Company, or which are notfrom the Ordinary Course of Business), inventory, and employee loans receivable, minus allaccounts payable and all accrued liabilities and expenses with respect to all periods ending on orbefore the Closing Date (including all Taxes for such periods). In addition to such minimumWorking Capital requirement, there shall remain in the Company at Closing cash in the amount of$32,500 to satisfy the occupational health and safety claims or citations identified inSchedule 2.17 (the “OSHA Claims”).(b) Buyer shall perform a preliminary calculation of the Working Capital amount in good faithat or immediately before the Closing. In the event of any disagreement between the partiesregarding such preliminary calculation, the preliminary Working Capital amount shall be determinedby the parties before the Closing. If Buyer elects to close notwithstanding a shortfall inCompany’s required Working Capital (or the cash portion thereof), the Initial Consideration will bereduced by the amount of any such shortfall. In addition, there shall be a corresponding upwardadjustment in the Initial Consideration if there is an excess in such amount at Closing;provided, however, that if such upward adjustment exceeds $100,000.00, Buyer may in itsdiscretion elect to pay down such excess (as may be adjusted upon final calculation of WorkingCapital) to the Shareholders’ Agent for the benefit of the Shareholders on a monthly basis duringthe period the accounts receivable comprising the excess are collected by the Company afterClosing.(c) The parties shall perform the final calculation of the Working Capital amount within onehundred twenty (120) days following the Closing. In the event of any disagreement between theparties regarding such final calculation, the final Working Capital amount shall be jointlydetermined by Buyer’s and Company’s independent public accountants (Burton McCumber & Cortez L.L.P.and Keiter, Stephens, Hurst, Gary & Shreaves, P.C., respectively), and such calculation shall befinal and binding on the parties. If such accounting firms fail to agree upon a final calculationof the Working Capital amount within thirty (30) days of such dispute having been submitted to themfor resolution, such accounting firms shall jointly appoint a third independent public accountingfirm to make such calculation (with the costs of such third firm shared equally between Buyer andthe Shareholders), and such calculation shall be final and binding on the parties. If such finalcalculation shows that there was a shortfall in Working Capital as of the Closing Date in excess ofany previous downward adjustment of the Initial Consideration, at Buyer’s election either (i) Buyermay notify Escrow Agent to pay the amount of such additional shortfall to Buyer from theIndemnification Holdback Amount, in which event Shareholders shall cause Shareholders’ Agent toreplenish the Indemnification Holdback Amount by the amount of such additional shortfall withinthirty (30) days, or (ii) Shareholders shall cause Shareholders’ Agent to reimburse the SurvivingCorporation in the amount of such additional shortfall within thirty (30) days following writtennotice from Buyer of same. Similarly, if there is an excess in the amount of Working Capital as ofthe Closing Date above the amount of any previous upward adjustmentof the Initial Consideration, the Buyer shall pay such additional upward adjustment amount to theShareholders within thirty (30) days following written notice from the Shareholders’ Agent;provided, however, that if such upward adjustment exceeds $100,000.00 upon finalcalculation of Working Capital, Buyer may in its discretion elect to pay down such excess to theShareholders’ Agent for the benefit of the Shareholders (or continue to pay down such excess if ithas already been doing so under Section 1.8(b) above) on a monthly basis during the periodthe accounts receivable comprising the excess are collected by Company after Closing.
 
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(d) Following the Closing, Buyer shall make a good faith effort to collect any accountsreceivable that are excluded from the calculation of Working Capital pursuant to Section1.8(a), and any amounts so collected shall be paid to the Shareholders’ Agent for the benefitof the Shareholders. Any such accounts receivable remaining outstanding after six (6) monthsfollowing the Closing shall be assigned to the Shareholders’ Agent for the benefit of theShareholders.1.9 Other Matters.(a) Transfer of Rights to Net Income. Company and the Shareholders agree that theamount (if positive) of Net Income of Company for the period commencing on July 2, 2007, and endingas of the Closing Date, minus a per diem credit computed on the basis of five percent (5%)per annum of the Total Consideration, shall be deducted from the Initial Consideration at Closing.Buyer shall perform a preliminary calculation of such Net Income amount in good faith at orimmediately before the Closing. In the event of any disagreement between the parties regardingsuch preliminary calculation, such preliminary Net Income amount shall be determined jointly by theBuyer’s and Company’s independent public accountants (as identified in Section 1.8(c)), and thededuction from the Initial Consideration shall be made accordingly. The parties shall perform thefinal calculation of such Net Income amount within one hundred twenty (120) days following theClosing. In the event of any disagreement between the parties regarding such final calculation,such final Net Income amount shall be determined jointly by Buyer’s and Company’s independentpublic accountants (as identified in Section 1.8 (c)), and such calculation shall be final andbinding on the parties. Any excess or shortfall in such Net Income amount previously deducted fromthe Initial Consideration based on the final calculation shall be paid by Buyer or theShareholders, respectively, as the case may be, within ten (10) days of the final calculationhaving been determined. Any disagreement among the parties’ independent public accountants will beresolved in accordance with the procedure set forth in Section 1.8(c).(b) IRS Receivable. Following the Closing, the Surviving Corporation shall make agood faith effort to collect the IRS Receivable, and any amounts so collected shall be paid to theShareholders’ Agent for the benefit of the Shareholders.(c) OSHA Claims. In the event that following the Closing, the OSHA Claims are settledor otherwise resolved for less than $32,500, the Surviving Corporation shall pay to theShareholders’ Agent for the benefit of the Shareholders the difference between $32,500 and theaggregate amount of payments actually made on the OSHA Claims.(d) Indemnification for Claims Pursuant to Employee Retention Agreements. The Sellershereby jointly and severally indemnify and agree to hold harmless Buyer and the SurvivingCorporation and their successors and assigns and each such entity’s officers, directors,shareholders and agents (each of whom shall be a third party beneficiary hereof) from, against andin respect of the amount of any and all claims asserted or brought by any employee or formeremployee of Company or the Surviving Corporation against Company, Buyer or the SurvivingCorporation or their successors and assigns or any such entity’s officers, directors, shareholdersor agents arising out of or in any way relating to the retention agreements identified inSchedule 2.15.
 
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(e) Prorations. All prepaid insurance, prepaid expenses, and prepaid income taxes ofCompany shall be pro rated to the Closing.2. Representations and Warranties of Company and the Sellers. As material inducementto Buyer and Merger Sub to enter into this Agreement and to close hereunder, Company and theSellers hereby jointly and severally make the following representations, warranties and agreementsto and with Buyer and Merger Sub:2.1 Due Organization; Capitalization; and Articles, Bylaws and Records.2.1.1 Company is a corporation duly organized, validly existing and in good standing under thelaws of the Commonwealth of Virginia and has the full corporate power and authority to own itsproperties, carry on its business as it is now being conducted and perform its obligations underall Contracts, and is duly qualified to do business as a foreign corporation in the jurisdictionsspecified in Schedule 2.1, which constitute all jurisdictions in which such qualificationis required except where such failure to file would not have a material adverse affect on theCompany or the Business.2.1.2 The authorized capital stock of Company consists of 10,000 shares of Common Stock,$10.00 par value per share, of which 1,100 of such shares are designated as voting shares and 8,900of such shares are designated as non-voting shares. All 10,000 of such shares are outstanding andowned by the Shareholders, free and clear of all Encumbrances, all of which outstanding shares arevalidly issued, fully paid and non-assessable. There are no treasury shares of Company’s capitalstock. There are no options, warrants, rights, shareholder agreements or other instruments oragreements outstanding giving any person the right to acquire any shares of capital stock ofCompany or any subsidiary of Company, nor are there any commitments to issue or execute any suchoptions, warrants, rights, shareholder agreements or other instruments or agreements. There are nooutstanding stock appreciation rights or similar rights measured with respect to any of Company’sor any Company subsidiary’s capital stock, nor are there any instruments or agreements givinganyone the right to acquire any such rights. Each Shareholder has delivered to Buyer accurate andcomplete copies of the stock certificates evidencing the Shares.2.1.3 The books of account, stock records and other records (except minute books) of Companyare complete and accurate in all respects, the minute books of Company are complete and accurate inall material respects, and all signatures included in the minute books and stock records are thegenuine signatures of the persons indicated as signing. True, correct and complete copies ofCompany’s and each subsidiary’s minute books and stock records, including Company’s and eachsubsidiary’s Articles of Incorporation and Bylaws and all amendments to both, have been deliveredto Buyer. Neither Company nor any subsidiary is in default under or in violation of any provisionof its Articles of Incorporation or its Bylaws.2.2 Authority; Binding Nature of Agreements. Company has the absolute andunrestricted right, power and authority to enter into and to perform its obligations under thisAgreement and all other agreements, certificates and instruments contemplated to be executed anddelivered by Company in connection with this Agreement, and the execution, delivery and performanceby Company of this Agreement and such other agreements, certificates and instruments have been dulyauthorized by all necessary action on the part of Company and its shareholders, board of directorsand officers. Each of this Agreement and such other agreements, certificates and instrumentsconstitutes, or upon execution and delivery will constitute, the legal, valid and bindingobligation of Company, enforceable against Company in accordance with its terms, except asenforceability may be limited by bankruptcy and other similar laws affecting creditors rightsgenerally and by principles of equity regarding the availability of remedies.
 
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2.3 Non Contravention; Consents. Except as set forth on Schedule 2.3, neitherthe execution and delivery of any of this Agreement, nor the consummation or performance of any ofthe transactions contemplated hereby, will directly or indirectly (with or without notice or lapseof time):2.3.1 Contravene, conflict with or result in a violation of (a) any of the provisions ofCompany’s Articles of Incorporation or Bylaws, or (b) any resolution adopted by Company’sshareholders or board of directors or any committee thereof;2.3.2 Contravene, conflict with or result in a violation of, or give any Governmental Body orother Person the right to challenge any of the transactions contemplated hereby or to exercise anyremedy or obtain any relief under, any Legal Requirement or any Order to which Company or anyShareholder, or any of the assets owned or used by Company, is subject;2.3.3 Cause Company to become subject to, or to become liable for the payment of, any Tax;2.3.4 Contravene, conflict with or result in a violation of any of the terms or requirementsof, or give any Governmental Body the right to revoke, withdraw, suspend, cancel, terminate ormodify, any Governmental Authorization that is held by Company or any of its employees or thatotherwise relates to Company’s business or to any of the assets owned or used by Company;2.3.5 Contravene, conflict with or result in a violation or breach of, or result in a defaultunder, any provision of any of the Contracts;2.3.6 Give any Person the right to (a) declare a default or exercise any remedy under anyContract, (b) accelerate the maturity or performance of any Contract, or (c) cancel, terminate ormodify any Contract;2.3.7 Give any Person the right to any payment by Company or give rise to any acceleration orchange in the award, grant, vesting or determination of options, warrants, rights, severancepayments or other contingent obligations of any nature whatsoever of Company in favor of anyPerson, in any such case as a result of the change in control or merger of Company or otherwiseresulting from the transactions contemplated hereby;2.3.8 Contravene, conflict with or result in a violation or breach of or a default under anyprovision of, or give any Person the right to declare a default under, any Contract to which anySeller is a party or by which any Seller is bound; or2.3.9 Result in the imposition or creation of any Encumbrance upon or with respect to anyasset owned or used by Company.2.3.10 Except as set forth on Schedule 2.3, neither Company nor any Seller was, is orwill be required to make any filing with or give any notice to, or to obtain any consent orapproval from, any Person in connection with the execution and delivery of the Agreement or theconsummation or performance of any of the transactions contemplated hereby.2.4 Subsidiaries and Joint Ventures. Except as disclosed on Schedule 2.4,there is no Entity in which Company owns, directly or indirectly, a controlling interest or amajority of the outstanding shares or other equity interest issued by such Entity, nor does Companyown any other capital stock, security, partnership interest or other interest of any kind, eitherdirect or indirect, in any Entity. Schedule 2.4 states the jurisdiction of incorporation of each such subsidiary and thejurisdictions in which it is qualified to do business as a foreign entity. Each such subsidiary isqualified in all jurisdictions in which such qualification is required.
 
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2.5 Financial Statements; Capital Expense Budgets.2.5.1 Company has delivered to Buyer the following financial statements and notes, which areincluded in Schedule 2.5 (collectively, the “Financial Statements”):(a) compiled balance sheet of Company as of October 31, 2006, and the related compiledstatements of operations, changes in shareholder’s equity and fund balance and cash flows ofCompany for the fiscal years ended October 31, 2005 and 2006, together with the notes thereto andthe report of Company’s accountant relating thereto (the “Compiled Financial Statements”);and(b) The interim balance sheet of Company as of July 1, 2007, and related interim statements ofoperations for the period from the date of the Compiled Financial Statements (the “InterimFinancial Statements”)2.5.2 The Financial Statements are complete and correct, in accordance with the books andrecords of Company, present fairly and accurately the consolidated financial position of Companyand its subsidiaries as of the respective dates thereof and the results of operations and changesin shareholder’s equity and cash flows of Company for the respective periods covered thereby. TheCompiled Financial Statements have been prepared in conformity with GAAP applied on a consistentbasis, except with respect to the contingent liabilities of the Company listed on Schedule2.6. The Interim Financial Statements have been prepared in conformity with GAAP applied on aconsistent basis, subject to normal recurring year-end adjustments, except as otherwise notedtherein or set forth in Schedule 2.5. The Financial Statements do not contain any items ofspecial or nonrecurring income or any other income not earned in the Ordinary Course of Businessexcept as specified therein. Company has delivered to Buyer true and correct copies of allcorrespondence sent by all legal counsel for Company and its subsidiaries to the accountants whichcompiled such Financial Statements in response to letters from Company to such counsel requestingthat such counsel supply the accountants with certain information regarding pending or threatenedlitigation, unasserted claims and other matters relevant to the accountants’ compilation of suchfinancial statements.2.5.3 The Financial Statements contain accurate and complete information with respect tocapital expenditures, equipment and vehicle repair, and equipment and vehicle replacement, andCompany has had no capital expenditures since the date of the Interim Financial Statements, and,except as listed and described in Schedule 2.5, Company has no currently budgeted capitalexpenditures.2.6 Liabilities.2.6.1 To the Knowledge of Company and each Seller, Company has no Liabilities, except for:(a) Liabilities reflected as part of the Interim Financial Statements;(b) Liabilities incurred by Company in the Ordinary Course of Business since the date of theInterim Financial Statements;(c) Company’s obligations under the Contracts listed in Schedule 2.6;
 
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(d) Company’s contingent liabilities listed on Schedule 2.6; and(e) Liabilities disclosed on, or arising out of or resulting from any other matter disclosedon, any of the Schedules attached to this Agreement. As used in this Section 2.6.1(e),“other matter” shall mean a description of a set of facts or circumstances which reasonablycontemplates or indicates a Liability or potential Liability.2.6.2 Schedule 2.6: (a) provides an accurate and complete breakdown and aging ofCompany’s accounts payable as of the date of the Interim Financial Statements; (b) provides anaccurate and complete breakdown of all customer deposits and other deposits held by Company as ofthe date of the Interim Financial Statements; and (c) provides an accurate and complete breakdownof Company’s long term debt as of the date of this Agreement. Except as disclosed in Schedule2.6, neither Company nor any Seller has any notice of or reason to believe that any supplier ofCompany will cease to be a supplier of Company after the Closing.2.7 Absence of Changes. Except as set forth in Schedule 2.7, since the dateof the Compiled Financial Statements:2.7.1 There has not been any material adverse change in Company’s business, condition, assets,liabilities, operations, financial performance, results of operations or prospects, and no eventhas occurred that likely would have a material adverse effect on Company’s business, condition,assets, liabilities, operations, financial performance, results of operations or prospects;2.7.2 There has not been any loss, damage or destruction to, or any interruption in the useof, any of Company’s assets (whether or not covered by insurance);2.7.3 Company has not (i) declared, accrued, set aside or paid any dividend or made any otherdistribution in respect of any shares of capital stock, (ii) repurchased, redeemed or otherwisereacquired any shares of capital stock or other securities, or (iii) transferred assets of any kindto any Shareholder; provided, that, subject to the minimum Working Capital and otherrequirements of Section 1.8, Company intends to declare and pay a dividend to theShareholders prior to Closing;2.7.4 Company has not sold or otherwise issued any shares of capital stock or any othersecurities;2.7.5 Company has not amended its Articles of Incorporation or Bylaws, failed to maintain itscorporate existence or powers or failed to maintain its qualification as a foreign corporation ineach jurisdiction where it is so qualified, where such failure to maintain its qualification as aforeign corporation would have a material adverse effect on the Company or the Business, and hasnot effected or been a party to any Acquisition Transaction, recapitalization, reclassification ofshares, stock split, reverse stock split or similar transaction;2.7.6 Company has not purchased or otherwise acquired any asset from any other Person, exceptfor assets acquired by Company in the Ordinary Course of Business;2.7.7 Company has not leased or licensed any asset from any other Person except for assetsleased or licensed in the Ordinary Course of Business;2.7.8 Company has not made any individual capital expenditure, measured by invoice amount, inexcess of $25,000.00;
 
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2.7.9 Company has not sold or otherwise transferred, and has not leased or licensed, any assetto any other Person except for products sold by Company from its inventory in the Ordinary Courseof Business;2.7.10 Company has not written off as uncollectible, or established any extraordinary reservewith respect to, any account receivable or other indebtedness;2.7.11 Company has not pledged or hypothecated any of its assets or otherwise permitted any ofits assets to become subject to any Encumbrance;2.7.12 Company has not made any loan or advance to any other Person or assumed or guaranteedany Liability of any other Person;2.7.13 Company has not (a) established or adopted any Employee Benefit Plan, or (b) paid anybonus or made any profit sharing or similar payment to, or increased the amount of the wages,salary, commissions, fringe benefits or other compensation or remuneration payable to, any of itsdirectors, officers or employees;2.7.14 Company has not entered into, and neither Company nor any of the assets owned or usedby Company has become bound by, any Contract, other than Contracts entered in the Ordinary Courseof Business; and no Contract under which Company has or had any rights or interest, has beenamended or terminated;2.7.15 Company has not incurred, assumed or otherwise become subject to any Liability, otherthan Liabilities incurred by Company in the Ordinary Course of Business;2.7.16 Company has not discharged any Encumbrance or discharged or paid any indebtedness orother Liability, except any that (a) have been incurred by Company in the Ordinary Course ofBusiness, since the date of the Compiled Financial Statements and (b) have been discharged or paidin the Ordinary Course of Business;2.7.17 Company has not forgiven any debt or otherwise released or waived any right or claim;2.7.18 Company has not changed any of its methods of accounting or accounting practices in anyrespect;2.7.19 Company has not entered into any transaction or taken any other action outside theOrdinary Course of Business;2.7.20 Company has not made any payment, direct or indirect, of any Liability before the sameshall have become due in accordance with its terms;2.7.21 Company has not entered into any agreements regarding any merger or consolidation of orby Company with any other corporation or any acquisition of all or any part of the stock, equityinterest or the business or assets of any other Person;2.7.22 Company has not entered into any agreement regarding the purchase or lease of anyproperty from any officer, director, employee or shareholder of Company, or any member of his orher family or any Affiliate or associate of any such Person;
 
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2.7.23 Company has not failed to perform any of its obligations in any material respect orsuffered or permitted any default to exist under, or received a notice of termination, breach ordefault with respect to any Contract to which Company is a party or by which it or any of itsproperty may be bound or affected;2.7.24 There have been no incidents involving any labor union organizing activity, labordispute, trouble, strike or threatened strike, stoppage or other occurrence, event or condition ofany similar character, or material change in relations with its employees, agents, customers orsuppliers;2.7.25 Company has not transferred or granted any rights in or entered into any settlementregarding the Proprietary Assets;2.7.26 Company has not terminated or closed any business operation of Company;2.7.27 Company has used its best efforts to preserve its business organization intact, to keepavailable the services of its employees and to preserve its relationships with its customers,suppliers and others with whom it deals;2.7.28 Company has not lost the services of any employee and has not sustained a terminationof its relationship with any customer, supplier or other person with whom it deals and whoserelationship is material to Company, and no such termination is anticipated;2.7.29 Company has not instituted, settled or agreed to settle any Proceeding before anyGovernmental Body relating to Company or any of its property;2.7.30 Company has not failed to replenish its Inventories in a normal and customary mannerconsistent with prior practice, or entered into purchase commitments in excess of the normal,ordinary and usual requirements of the Business or at any price in excess of the then currentmarket price, or changed its selling, pricing, advertising or personnel practices inconsistent withprior practice; and2.7.31 Company has not agreed or committed (in writing or otherwise), to take any of theactions referred to in Sections 2.7.3 through 2.7.30.2.8 Real Estate.2.8.1 Neither Company nor any subsidiary has any interest in any real estate except thoseproperties disclosed on Schedule 2.8 for which Company alone holds fee simple title (the“Owned Properties”) and those properties disclosed on Schedule 2.8 which Companyleases or subleases, as tenant or subtenant (the “Leased Properties,” and together with theOwned Properties, the “Real Properties”). Neither Company nor any subsidiary has receivedfrom any Governmental Body any written notice of any violation of any applicable law with respectto the use or condition of any of the Real Properties, including, without limitation, applicablebuilding and zoning codes and regulations of any Governmental Body having jurisdiction. To theKnowledge of Company and each Seller, no owner of any Leased Property has received such a notice.2.8.2 To the Knowledge of Company and each Seller, Company has good and marketable fee simpletitle to each of the Owned Properties, free and clear of all Encumbrances and exceptions to titleand rights of third parties except as otherwise disclosed on Schedule 2.8. To the Knowledgeof Company and each Seller, all buildings, structures and improvements located on the OwnedProperties are located wholly within the boundaries thereof and donot encroach upon any easement, or any other rights (including any riparian or permitted rights or interests) of otherparties, under which such encroachment is not and was not permitted.
 
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2.8.3 Except as otherwise disclosed on Schedule 2.8, to the Knowledge of Company andeach Seller, all of the buildings, improvements and equipment situated on and comprising part ofthe Owned Properties and all plumbing, electrical and other mechanical facilities which are partof, or which service, such buildings, improvements and equipment are in good working order.2.8.4 Company has not received any notice from the holder of any mortgage, deed of trustpresently or previously encumbering any of the Owned Properties, any insurance company which hasissued a policy with respect to any of the Real Properties or from any public official or board offire underwriters (or other body exercising similar functions) claiming any defects or deficienciesin, or suggesting or requesting the performance of any repairs, alterations or other work to, anyof the Real Properties.2.8.5 There are no current property management, service, equipment, supply, security,maintenance, construction or concession Contracts with respect to or affecting the Real Properties,except as disclosed on Schedule 2.8.2.8.6 To the Knowledge of Company and each Seller, except as set forth on Schedule2.8, the current use of each of the Real Properties is permitted as of right or by duly issuedpermit or other approval by Governmental Bodies under or pursuant to the applicable zoningclassification. To the Knowledge of Company and each Seller, none of the Owned Properties and, noneof the Leased Properties is subject to a permitted “nonconforming use,” permitted “nonconformingstructure,” or “special exception,” “variance” or other similar zoning classification. No noticeof a violation of any applicable state or local code has been issued or threatened for any of theReal Properties. Neither Company nor any subsidiary has received from any Governmental Body anywritten notice of any violation of any applicable law with respect to the use or condition of anyof the Real Properties, including applicable building and zoning codes and regulations of anyGovernmental Body having jurisdiction, and, to the Knowledge of Company and each Seller, Companyand the Owned Properties are in compliance with such applicable laws. To the Knowledge of Companyand each Seller, no owner of any Leased Property has received such a notice and the LeasedProperties and Company’s use of same are in compliance with such applicable laws. All certificatesof occupancy and all other Governmental Authorizations required by all Governmental Bodies havingjurisdiction and any requisite certificates of the local board of fire underwriters (or other bodyexercising similar functions) for the Real Properties and Company’s operation thereof have beenissued, are in full force and effect and will not be invalidated, violated or otherwise adverselyaffected by the execution or performance of this Agreement or the consummation of any of thetransactions contemplated herein.2.8.7 Neither Company nor any subsidiary has received any notice of any condemnationproceeding or any other proceeding in the nature of eminent domain (a “Taking”) inconnection with any of the Real Properties, and to Company’s and each Seller’s Knowledge, no Takinghas been threatened.2.8.8 All the leases, subleases or other agreements (written or oral) for the use andoccupancy of, or access to, any of the Owned Properties by persons or entities (includingsubsidiaries) other than Company (the “Tenant Leases”) are disclosed on Schedule2.8. Company has delivered to Buyer true and correct copies of the written Tenant Leases andall amendments and supplements thereto. Neither the execution and delivery of this Agreement northe consummation of any of the transactions contemplated herein will result in a breach of orconstitute a default under any Tenant Lease.
 
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2.8.9 All essential utilities (including public water, public sanitary sewer, gas, storm sewerand drains, electricity, telephone, and cable service) are available to each of the Real Propertiesat capacities sufficient for Company’s operation thereof, and Company’s facilities and operationsat the Real Properties are connected to public water and sewer. All utility connections at the RealProperties are pursuant to valid Governmental Authorizations, Legal Requirements, and/or otherrequired approvals or granted rights and are operated in accordance with same, and, to theKnowledge of Company and each Seller, there are no illicit or unlawful connections at or flows from(both as to volume and content) the Real Properties to such utilities or any third party sites,including any cross-connections between sanitary sewer lines and storm water sewer or drainagelines or routes.2.8.10 (a) All written and oral leases or subleases (collectively, the “Leases”) ofthe Leased Properties are disclosed on Schedule 2.8; (b) Company has delivered to Buyertrue and complete copies of all Leases, all amendments and supplements thereto and allnon-disturbance agreements affecting the applicable Real Property; (c) except as otherwisedisclosed on Schedule 2.8, Company or a Subsidiary is the holder of the lessee’s orsublessee’s interest, as applicable, in each Lease, and Company has not assigned any Lease or anyinterest therein or subleased any portion of the Leased Properties; (d) each Lease is in full forceand effect; (e) Company is not, and, to the Knowledge of Company and each Seller, each landlordunder any Lease is not, in default under any Lease, and no event has occurred which, with thegiving of notice or passage of time or both, would constitute a default by Company or, to theKnowledge of Company and each Seller, any landlord under any Lease; and (f) neither the executionor performance of this Agreement nor the consummation of any of the transactions contemplatedherein will result in a breach of or constitute a default under any of the Leases.2.8.11 Except as otherwise disclosed on Schedule 2.8, all of the buildings,improvements and equipment situated on and comprising part of the Real Properties and all StorageTank Systems, plumbing, electrical and other mechanical facilities which are part of, or whichservice, such buildings and improvements and Real Properties are in good working order.2.8.12 Each of the Real Properties adjoins, or is part of a building or development whichadjoins, dedicated public roadways or has, or is part of a building or development which has,access to such roadways by valid easements for Company’s and its customers’, suppliers’ andvendors’ motor vehicles, which access is suitable and in compliance with all traffic and railroadcrossing safety requirements imposed by applicable Legal Requirements, for the kind and volume ofmotor vehicle traffic associated with Company’s operations, and to the Knowledge of Company andeach Seller, there are no conditions existing which could result in the termination or reduction ofthe current access to existing roadways.2.9 Title to Assets. Except as set forth in Schedule 2.9, Company owns, freeand clear of Encumbrances:2.9.1 All assets reflected on the Interim Financial Statements;2.9.2 All assets acquired by Company since the date of the Interim Financial Statements;2.9.3 All assets referred to in Schedules 2.10, 2.11 and 2.16 and all of Company’srights under Contracts; and2.9.4 All other assets reflected in Company’s books and records as being owned by Company.
 
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2.10 Receivables; Major Customers.2.10.1 Schedule 2.10 provides an accurate and complete breakdown and aging of allaccounts and notes receivable and a list of all other receivables of Company as of the date of theInterim Financial Statements.2.10.2 Except as otherwise set forth in Schedule 2.10, all existing accountsreceivable of Company (including those accounts receivable reflected on the Interim FinancialStatements that have not yet been collected and those accounts receivable that have arisen sincethe date of the Interim Financial Statements and have not yet been collected): (a) represent validobligations of customers of Company arising from bona fide transactions entered into in theOrdinary Course of Business; and (b) are current and where known collection problems exist, suchproblems have been disclosed. No account debtor has any valid set-off, deduction or defense withrespect thereto and no account debtor has asserted any such set-off, deduction or defense.2.10.3 Except as otherwise disclosed in Schedule 2.10, neither Company nor anyShareholder has any notice of or reason to believe that any customer of Company will cease to be acustomer of Company after the Closing.2.11 Equipment*.*2.11.1 Schedule 2.11 consists of a Company capital equipment and depreciationschedule, which describes historical cost and depreciation information with respect to all ofCompany’s capital equipment, furniture, fixtures, improvements and other tangible personalproperty. Schedule 2.11 also accurately identifies all material tangible personal propertyleased to Company.2.11.2 Except as shown on Schedule 2.11, each improvement to and structure on the RealProperties, electrical or mechanical system, item of capital equipment, and each other materialasset of Company: (a) is in good working order; (b) complies in all material respects and is beingoperated and otherwise used in full compliance with all applicable Legal Requirements; (c) isadequate and suitable for the uses to which it is being put; (d) is adequate and suitable for theconduct of Company’s Business in the manner in which such Business is currently being conducted;(e) has been maintained in accordance with reasonable maintenance schedules; and (f) is owned byCompany free and clear of any Encumbrance.2.12 Inventories.2.12.1 All products held or owned by the Company (“Inventories”) reflected in theInterim Financial Statements or acquired thereafter comply with all Legal Requirements. AllInventories at the Closing will be owned by Company free and clear of any Encumbrance.2.12.2 The values net of reserves at which the Inventories are carried on the InterimFinancial Statements reflect the normal and consistent inventory valuation method of Company ofvaluing inventory all in accordance with GAAP.2.12.3 Except as specifically disclosed in Schedule 2.12, the Inventories to be heldor owned between the date hereof and the Closing comply with or will comply with all applicableLegal Requirements.2.12.4 Company’s handling and storage practices, composition and labeling for its Inventoriesand its customers’ products are in compliance with, and Companymay store, distribute and sell each of its and its customers’ products on and after the Closing Date without violating anyLegal Requirements.
 
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2.13 Sufficiency of the Assets. As of the Closing Date, the properties and assetsowned or leased by Company will constitute all the properties and assets currently used, and sincethe date of the Interim Financial Statements have been used, by Company in its Business, except fordispositions made in the Ordinary Course of Business, and are sufficient for the operation of itsBusiness on a basis consistent with past practices.2.14 Tax Matters.2.14.1 Except as set forth in Schedule 2.14, each Tax required to have been paid, orclaimed by any Governmental Body to be payable, by Company (whether pursuant to any Tax Return orotherwise) has been duly paid in full on a timely basis. Any Tax required to have been withheld orcollected by Company has been duly withheld and collected, and (to the extent required) each suchTax has been paid to the appropriate Governmental Body.2.14.2 All Tax Returns required to be filed by or on behalf of Company with any GovernmentalBody with respect to any taxable period ending on or before the Closing Date, including monthlypayroll returns (“Company Returns”) (a) have been or will be filed when due, and (b) havebeen, or will be when filed, accurately and completely prepared in full compliance with allapplicable Legal Requirements. All amounts shown on Company Returns to be due on or before theClosing Date, and all amounts otherwise payable in connection with Company Returns on or before theClosing Date, have been or will be paid on or before the Closing Date. Company has delivered toBuyer accurate and complete copies of Company Returns (other than monthly payroll returns) filed byCompany. Schedule 2.14 lists all categories of Company Returns filed for the past three(3) tax years for each type of Company Return.2.14.3 Except as otherwise disclosed in Schedule 2.14, Company’s liability for unpaidTaxes for all periods ending on or before the date of the Interim Financial Statements does not, inthe aggregate, exceed the amount of the current liability accruals for Taxes (excluding reservesfor deferred Taxes) reported in the Interim Financial Statements.2.14.4 Schedule 2.14 accurately identifies (i) each examination or audit of anyCompany Return that has been conducted by any Governmental Body and (ii) any open tax years stillsubject to examination or audit by any Governmental Body as of the effective date of thisAgreement. Company has delivered to Buyer accurate and complete copies of all audit reports andsimilar documents (to which Company has access) relating to Company Returns. Except as set forthin Schedule 2.14, no extension or waiver of the limitation period applicable to any ofCompany Returns has been granted (by Company or any other Person), and no such extension or waiverhas been requested from Company.2.14.5 Except as set forth in Schedule 2.14, no claim or other Proceeding is pendingor, to the Knowledge of Company and each Seller, has been threatened against or with respect toCompany or any Seller in respect of any Tax. There are no unsatisfied Liabilities for Taxes(including Liabilities for interest, additions to Tax and penalties thereon and related expenses)with respect to any notice of deficiency or similar document received by any Seller or Company.Company has not been, and will not be, required to include any adjustment in taxable income for anyTax period (or portion thereof) pursuant to Section 481 or 263A of the Code or any comparableprovision under state or foreign Tax laws as a result of transactions or events occurring, oraccounting methods employed, prior to the Closing.
 
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2.14.6 There is no agreement, plan, arrangement or other Contract covering any employee orindependent contractor or former employee or independent contractor of Company that, individuallyor collectively, could give rise directly or indirectly to the payment of any amount that would notbe deductible pursuant to Section 280G or Section 162 of the Code.2.14.7 Company is not, and has never been, a party to or bound by any Tax indemnity agreement,Tax sharing agreement, Tax allocation agreement or similar Contract.2.14.8 Company is not a United States real property holding corporation within the meaning ofSection 897(c)(2) of the Code and has not been a United States real property holding corporationwithin the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.2.14.9 Except as set forth in Schedule 2.14, Company has no net operating losses orother Tax attributes presently subject to limitation under Code Sections 382, 383 or 384 or thefederal consolidated return regulations.2.14.10 All Taxes required to be withheld from employees, deemed employees or other personsup to and through the Closing Date will have been withheld and timely deposited prior to theClosing.2.14.11 The requirements of Section 274 of the Code (disallowance of certain entertainmentand similar expenses) have been complied with in all material respects.2.14.12 No non-deductible expenses have been deducted on the federal income Tax Return forany year open to audit by the IRS.2.14.13 Except as set forth in Schedule 2.14, no IRS or state, county or local Taxaudit is currently in progress.2.14.14 Company has disclosed on its federal income Tax Returns all positions taken thereinthat could give rise to a substantial understatement penalty within the meaning of Code Section6662. Company has not participated in a “listed transaction” within the meaning of TreasuryRegulations Section 1.6011-4(b)(2) (determined without regard to whether such transaction is a“reportable transaction” under such regulation).2.15 Contracts.2.15.1 Schedule 2.15 identifies each Contract. Except as identified in Schedule2.15, all Contracts are in writing. Company has delivered to Buyer accurate and complete copiesof all written Contracts identified in Schedule 2.15, including all amendments thereto.2.15.2 Each Contract is valid and in full force and effect, and is enforceable by Company inaccordance with its terms.2.15.3 Except as set forth in Schedule 2.15: (a) no Person acting for Company hasviolated or breached, or declared or committed any default under, any Contract; (b) to theKnowledge of Company and each Seller, no event has occurred, and no circumstance or conditionexists, that likely would (with or without notice or lapse of time) (i) result in a violation orbreach of any of the provisions of any Contract, (ii) give any Person the right to declare adefault or exercise any remedy or hinder any Contract, (iii) give any Person the right toaccelerate the maturity or performance of any Contract, or (iv) give any Person the right to cancel, terminate or modify any Contract; and (c) Company has notwaived any of its rights under any Contract.
 
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2.15.4 To the Knowledge of Company and each Seller, each Person against which Company has ormay acquire any rights under any Contract is solvent and is able to satisfy all of such Person’scurrent and future monetary obligations and other obligations and Liabilities to Company.2.15.5 Except as otherwise set forth in Schedule 2.15: For the past three (3) years,(a) Company has not been a guarantor and has not otherwise agreed to cause, insure or become liablefor, and has not currently pledged any of its assets to secure, the performance or payment of anyobligation or other Liability of any other Person except in the Ordinary Course of Business; and(b) Company has not been a party to or bound by (i) any joint venture agreement, partnershipagreement, profit sharing agreement, royalty agreement, cost sharing agreement, loss sharingagreement or similar Contract, or (ii) any Contract that creates or grants to any Person, orprovides for the creation or grant of, any stock appreciation right, phantom stock right or similarright or interest. Except as set forth in Schedule 2.15, all such guarantees, if any, madeon behalf of Company under clause (i) and all commitments and obligations made under clause (ii) ofthis Section 2.15.5, if any, have been fully satisfied, terminated, or otherwise resolved and arereflected as such in the Financial Statements.2.15.6 The performance of the Contracts will not result in any violation of or failure tocomply with any Legal Requirement.2.15.7 Except as identified in Schedule 2.15, no Person is renegotiating, or has thecontractual right to renegotiate, any amount paid or payable to Company under any Contract or anyother term or provision of any Contract.2.15.8 The Contracts identified in Schedule 2.15 collectively constitute all of theContracts necessary to enable Company to conduct its Business in the manner in which its Businessis currently being conducted and in the manner in which its Business is proposed to be conducted.2.15.9 Except as set forth in Schedule 2.15: (a) the Contracts of Company, includingbut not limited to those described in Schedule 2.15, are legally valid, binding andenforceable agreements of Company, except as enforceability may be limited by bankruptcy and othersimilar laws affecting creditors’ rights, and, to the Knowledge of Company and each Seller, theother parties thereto; Company is not and, to the Knowledge of Company and each Seller, no otherparty to any such Contract is in violation of or in default under such Contracts and no event orcircumstances have occurred which constitute, or after notice or lapse of time, or both, wouldconstitute, a violation or default thereunder on the part of Company or, to the Knowledge ofCompany and each Seller, any other party thereto or result in a right to accelerate or loss ofrights; and such Contracts will continue to be binding in accordance with their terms after theClosing, assuming any required consents listed in Schedule 2.15 are obtained; (b) Companyhas fulfilled all obligations required pursuant to each Contract to have been performed by it, andCompany and the Sellers have no reason to believe that Company will not be able to fulfill all ofits obligations under the Contracts which remain to be performed after the date hereof, and (c)none of the payments required to be made under any Contract has been prepaid by more than 30 daysprior to the due date of such payment thereunder and the estimated cost to complete any Contract ofCompany, plus expenses incurred by them on that Contract, will not exceed the total Contract price.2.16 Proprietary Assets.2.16.1 Attached as Schedule 2.16 is (a) a description of all Proprietary Assets ownedby, licensed to or used in the business of Company together with a designation of ownership, and(b) a listing of all Contracts or arrangements which affect the ownership or use of any Proprietary Asset.Except as otherwise set forth in Schedule 2.16, Company is the owner of all right, titleand interest in and to each such Proprietary Asset free and clear of all Encumbrances or has theright to use, free and clear of royalties or any claims or rights of others, such ProprietaryAssets.
 
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2.16.2 No current or former employee or consultant of Company has executed an agreementregarding confidentiality and proprietary information.2.16.3 To the Knowledge of Company and each Seller, Company is not infringing, and has not atany time infringed any Proprietary Asset owned or used by any other Person. Neither the Companynor any Seller has received any notice or other communication (in writing or otherwise) of anyactual, alleged, possible or potential infringement of any Proprietary Asset owned or used by anyother Person. To the Knowledge of Company and each Seller, no other Person is infringing, and noProprietary Asset owned or used by any other Person infringes or conflicts with, any ProprietaryAsset owned or used by Company.2.16.4 The Proprietary Assets identified in Schedule 2.16 constitute all of theProprietary Assets necessary to enable Company to conduct its Business in the manner in which itsBusiness is currently being conducted.2.16.5 Company has not licensed or sublicensed any party to use any of the Proprietary Assets.2.16.6 There are no Orders pending against or affecting the Proprietary Assets.2.16.7 There is no unexpired valid patent on products or processes that Company uses inconnection with its products that Company is not entitled to use.2.16.8 No Seller, officer, director or employee of Company or, to the Knowledge of Company orany Seller, any third party has an interest in any of the Proprietary Assets.2.16.9 To the Knowledge of Company and each Seller, there is no governmental restriction orlimitation, domestic or foreign, on the manner in which any of the Proprietary Assets may be used.2.17 Proceedings; Orders.2.17.1 Except as set forth in Schedule 2.17, there is no pending Proceeding, and noPerson has threatened to commence any Proceeding: (a) that involves Company or that otherwiserelates to or likely would affect Company’s Business or any of the assets owned or used by Company(whether or not Company is named as a party thereto); or (b) that challenges, or that may have theeffect of preventing, delaying, making illegal or otherwise interfering with, any of thetransactions contemplated hereby.2.17.2 Except as set forth in Schedule 2.17, to the Knowledge of Company and eachSeller, no event has occurred, and no claim, dispute or other condition or circumstance exists,that likely would directly or indirectly give rise to or serve as a basis for the commencement ofany such Proceeding.2.17.3 Except as set forth in Schedule 2.17, and except for unemployment claims, noProceeding has been commenced by or against Company, and no Proceeding otherwise involving orrelating to Company has been pending or threatened, in the past five (5) years.
 
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2.17.4 Company has made available to Buyer accurate and complete copies of all pleadings,correspondence and other written materials to which Company has access that relate to theProceedings identified in Schedule 2.17.2.17.5 There is no Order to which Company or any of the assets owned or used by Company, issubject, and no Seller is subject to any Order that relates to Company’s Business or to any of theassets owned or used by Company.2.17.6 No officer or, to the Knowledge of Company and each Seller, employee of Company issubject to any Order that prohibits such officer or employee from engaging in or continuing anyconduct, activity or practice relating to Company’s Business.2.17.7 There is no proposed Order that, if issued or otherwise put into effect, (a) would havean adverse effect on Company’s business, condition, assets, liabilities, operations, financialperformance, net income or prospects (or on any aspect or portion thereof) or on the ability ofCompany or any Seller to comply with or perform any covenant or obligation under the Agreement, or(b) may have the effect of preventing, delaying, making illegal or otherwise interfering with anyof the transactions contemplated hereby.2.17.8 Except as disclosed in Schedule 2.17, each Proceeding listed in Schedule2.17 is covered by existing policies of insurance up to the maximum applicable policy limit(excluding required deductibles).2.17.9 Except as disclosed in Schedule 2.17, Company is not a party to any Proceedingas a party plaintiff, nor is Company presently contemplating the initiation of any such Proceeding.2.18 Employee and Labor Matters.2.18.1 Schedule 2.18 accurately sets forth, with respect to each employee of Company(including any employee of Company who is on a leave of absence or on layoff status): (a) the nameof such employee and the date as of which such employee was originally hired by Company; and (b)such employee’s title and salary.2.18.2 Except as otherwise specifically described in Schedule 2.18, there is no formeremployee of Company who is receiving or is scheduled to receive (or whose spouse or other dependentis receiving or is scheduled to receive) any benefits or payments (whether from Company orotherwise) relating to such former employee’s employment with Company.2.18.3 Except as otherwise set forth in Schedule 2.18, Company is not a party to orbound by, and has never been a party to or been bound by, any union contract, collective bargainingagreement or similar Contract, and is not a party to or bound by, and has not for the past five (5)years been a party to or been bound by, any employment agreement.2.18.4 Except as otherwise set forth in Schedule 2.18, the employment of each ofCompany’s employees is terminable by Company at will. Company has made available to Buyer accurateand complete copies of all employee manuals and handbooks, disclosure materials, policy, statementsand other materials relating to the employment of the current and former employees of Company.2.18.5 To the Knowledge of Company and each Seller: (a) no employee of Company intends toterminate his employment with Company; (b) no employee ofCompany has received an offer to join a business that likely would be competitive with Company’s Business; and (c) no employee ofCompany is a party to or is bound by any confidentiality agreement, non-competition agreement orother Contract (with any Person) that likely would have an adverse effect on (i) the performance bysuch employee of any of his duties or responsibilities as an employee of Company, or (ii) Company’sBusiness or operations.
 
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2.18.6 Company is not engaged, and has not been engaged within the past five (5) years, in anyunfair labor practice of any nature. There has never been any slowdown, work stoppage, labordispute or union organizing activity, or any similar activity or dispute, affecting Company or anyof its employees. There is not now pending, and to the Knowledge of Company and each Seller noPerson has threatened to commence, any such slowdown, work stoppage, labor dispute or unionorganizing activity or any similar activity or dispute.2.18.7 Except as set forth in Schedule 2.18, no present or former employee of Companyhas any claim against Company (whether under a Legal Requirement, any employment Contract orotherwise) on account of or for (a) unaccrued overtime pay, other than overtime pay for the currentpayroll period; (b) unaccrued wages or salaries (excluding wages or salaries for the currentpayroll period); (c) unaccrued vacations, time off or pay in lieu of vacation or time off, otherthan vacation or time off (or pay in lieu thereof) earned in respect of the current fiscal year, orseverance pay; (d) any violation of any Legal Requirement relating to minimum wages or maximumhours of work; or (e) breach of any fiduciary duty of Company or of any trustee of any of CompanyPlans.2.18.8 Except as set forth in Schedule 2.18, no person or party (including, but notlimited to, Governmental Bodies) has made any claim, and, to the Knowledge of Company and eachSeller, there is no basis or grounds for any claim, against Company arising out of any LegalRequirement including but not limited to discrimination on any basis, sexual harassment or hostilework environment, retirement policies or practices, labor relations, workers’ compensation, equalemployment opportunity policies or practices, or occupational, safety and/or health standards.2.19 Benefit Plans; ERISA.2.19.1 Schedule 2.19 provides a true and complete list of each Current Benefit Planmaintained by Company and each Past Benefit Plan for the past five (5) years. Company does not haveany Liability with respect to any Employee Benefit Plan, past or present, except for Company Plansidentified in Schedule 2.19; and Company does not provide or make available any fringebenefit, whether or not the value of such benefit is includible in the recipient’s gross income, asdetermined in accordance with Section 132 of the Code or other applicable sections, or othermaterial benefit of any nature to any of its employees, except as set forth in Schedule2.19.2.19.2 No Company Plan: (i) provides or has provided any benefit guaranteed by the PensionBenefit Guaranty Corporation (the “PBGC”); (ii) is or has been subject to the minimumfunding standards of Section 412 of the Code or Section 4001(a)(3) and Section 302 of ERISA, or(iii) is or has been a “Multiemployer Plan” as defined in Section 3(37)(A) of ERISA. Thereis no Person that (by reason of common control or otherwise) is or has been treated together withCompany as a single employer within the meaning of Section 414 of the Code.
 
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2.19.3 Company has delivered to Buyer, with respect to each Company Plan maintained byCompany, a current, accurate and complete copy of such Company Plan and all other documents withrespect to which the administrator of such plan would be required to provide copies pursuant toSection 104(b)(4) of ERISA, including, to the extent applicable, copies of the most recent (a) IRSdetermination letter and any outstanding request for a determination letter; (b) Form 5500 seriesAnnual Return/Report that may have been prepared, in draft or final form, with respect to the plan year ending October31, 2006, whether or not such form was actually filed with the IRS; (c) with respect to any pensionbenefit plan, a comprehensive financial statement of plan assets held in the accompanying trust andstatements of financial activity in the individual participant accounts for the plan year endingOctober 31, 2006, including the fair market value of assets as of October 31, 2006; (d) attorney’sresponse to accountants’ request for information; (e) collective bargaining agreements or othersupplemental agreements relating thereto; (f) letter ruling and any outstanding request for aletter ruling with regard to any aspect of a Company Plan; and (g) general notification toemployees of their rights under Section 4980B(f)(6) of the Code and form of letter(s) distributedupon the occurrence of a qualifying event described in Section 4980B(f)(3) of the Code, in the caseof a Company Plan that is a “group health plan” as defined in Section 4980B(g)(2) of the Code.2.19.4 Each Current Benefit Plan maintained by Company is being, and has been at all times,operated and administered in compliance with the provisions thereof. Each contribution or otherpayment that is required to have been accrued or made under or with respect to any Company Planmaintained by Company has been duly accrued and made on a timely basis, including, withoutlimitation, any contribution that is required to satisfy the requirements of Code Section 401(a) etseq., as well as Code Sections 401(k) and 401(m).2.19.5 With respect to each Current Benefit Plan which is an employee pension benefit plan (assuch term is defined in ERISA Section 3(2)) intended to qualify under Section 401(a) of the Code,Company has received a favorable determination letter as to its qualification under the Code andnothing has occurred, whether by action or failure to act, which would cause the loss of suchqualification.2.19.6 Company’s financial statement(s) reflect all of Company’s employee benefit liabilitiesin a manner satisfying the requirements set forth in FASB Statement Nos. 87, 106 and 112.2.19.7 Except as set forth in Schedule 2.19, each Current Benefit Plan maintained byCompany complies and is being operated and administered in compliance with, and has at all timescomplied and been operated and administered in compliance with, all applicable reporting,disclosure and other requirements of ERISA and the Code and all other applicable LegalRequirements. Company has never incurred any Liability to the IRS nor any other Governmental Bodywith respect to any Company Plan maintained by Company; and no event has occurred, and no conditionor circumstance exists, that likely would (with or without notice or lapse of time) give risedirectly or indirectly to any such Liability. Neither Company nor any Person that is or was anadministrator or fiduciary of any Company Plan maintained by Company (or that acts or has acted asa shareholder of Company or any such administrator or fiduciary) has engaged in any transaction orhas otherwise acted or failed to act in a manner that has subjected or likely would subject anySeller or Company to any Liability for breach of any fiduciary duty or any other duty. There areno Proceedings or claims (other than routine claims for benefits in the ordinary course) pending,or to the Knowledge of any Seller or Company, threatened, and neither any Seller nor Company hasKnowledge of any facts which would give rise to any such Proceedings or claims (other than routineclaims for benefits in the Ordinary Course of Business).2.19.8 No Company Plan maintained by Company has been terminated by Company, except forCompany’s Employee Stock Ownership Plan, which was terminated in 1991 (the “Former ESOP”),and no Company Plan is due to expire or is otherwise scheduled or threatened to be terminated bythe Company or any Seller or, to the Knowledge of Company and each Seller, the provider of anyCompany Plan within one year of the date hereof.
 
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2.19.9 With respect to any Company Plan maintained by Company which is an employee welfarebenefit plan (within the meaning of ERISA Section 3(l)) (a “Welfare Benefit Plan”): (a)each such Welfare Benefit Plan which is intended to meet the requirement for tax favored treatmentunder Subchapter B of Chapter I of the Code meets all such requirements; (b) there is nodisqualified benefit (as such term is defined in Section 4976(b) of the Code); (c) each and everyWelfare Benefit Plan which is a group health plan (as such term is defined in Section 4980B(g)(2))complies with, and in each and every case has complied with, the applicable requirements of CodeSection 4980B; and (d) each such Welfare Benefit Plan (including any plan covering former employeesof Company) may be amended or terminated by Company or the Surviving Corporation on or at any timeafter the Closing Date.2.19.10 Neither Company nor any Affiliate has incurred any liability to the PBGC or to theIRS with respect to any pension plan qualified under Section 401 of the Code except liabilities tothe PBGC pursuant to Section 4007 of ERISA, all of which have been fully paid (including interestcharges and penalties on late payments, if applicable), nor has any reportable event under Section4043(b) of ERISA occurred with respect to any such pension plan.2.19.11 Neither Company nor any Company Plan fiduciary has engaged in a “prohibitedtransaction” (which shall mean any transaction in violation of Section 406 of ERISA and not exemptunder Section 408 of ERISA or defined in Section 4975(c)(1) of the Code) with respect to anyCompany Plan.2.19.12 No proceedings by the PBGC to terminate an employee pension benefit plan maintainedby Company or by any corporation or other trade or business under common control with Companypursuant to Subtitle C of Title IV of ERISA have been instituted or threatened.2.19.13 Company does not sponsor or participate in any plan or arrangement, whether qualifiedor unqualified, providing for either shutdown benefits or post-employment medical benefits, otherthan COBRA benefits.2.19.14 All plans and arrangements listed in Schedule 2.19 are legally valid andbinding and in full force and effect.2.19.15 All contributions, including but not limited to salary deferrals and premiums, duewith respect to any qualified or non-qualified Company Plan sponsored or participated in by Companyfor any plan year or portion thereof ending on or prior to the Closing Date shall have been chargedto the statement of income and contributed to the respective Company Plan trusts.2.19.16 Except as disclosed in Schedule 2.19, Company has no liability under anyinsurance policy covering benefits provided under a welfare Plan in the nature of a retroactiverate adjustment or loss sharing or similar arrangement.2.20 Insurance.2.20.1 Schedule 2.20 accurately sets forth, with respect to each insurance policymaintained by or at the expense of, or for the direct or indirect benefit of, Company: (a) thename of the insurance carrier that issued such policy and the policy number of such policy; (b)whether such policy is a “claims made” or an “occurrences” policy; (c) a description of the type ofcoverage provided by such policy and the material terms of such policy (including all applicablecoverage limits, deductible amounts and co-insurance arrangements); (d) the annual premium payablewith respect to such policy; and (e) a description of any claims pending, and any claims that havebeen asserted in the past, with respect to such policy. Schedule 2.20 also identifies (i)each pending application for new, renewed, or amended insurance that has been submitted by or on behalf of Company, and (ii) each self-insurance orrisk-sharing arrangement affecting Company or any of its assets. Company has delivered to theBuyer accurate and complete copies of all of the insurance policies identified in Schedule2.20 (including all renewals thereof and endorsements thereto) and all of the pendingapplications identified in Schedule 2.20. Any insurance policy or endorsement of Companyused as financial responsibility or assurance pursuant to any applicable Legal Requirement isidentified as such in Schedule 2.20 along with the relevant Legal Requirement.
 
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2.20.2 Each of the policies identified in Schedule 2.20 is valid, enforceable and infull force and effect, and all pending applications identified in Schedule 2.20 were timelyfiled to ensure against loss of or gaps in coverages. All of the information contained in theapplications submitted in connection with said policies was (at the times said applications weresubmitted) accurate and complete, all premiums and other amounts owing with respect to saidpolicies have been paid in full on a timely basis, and no additional premium is or will be due withrespect to said policies for any period before the Closing.2.20.3 Except as set forth in Schedule 2.20, there is no pending claim under or basedupon any of the policies identified in Schedule 2.20, and, to the Knowledge of Company andeach Seller, no event has occurred, and no condition or circumstance exists, that would likely(with or without notice or lapse of time) directly or indirectly give rise to or serve as a basisfor any such claim.2.20.4 Except as set forth in Schedule 2.20, Company has not received: (a) any noticeor other communication (in writing or otherwise) regarding the actual or possible cancellation orinvalidation of any of the policies identified in Schedule 2.20 or regarding any actual orpossible adjustment in the amount of the premiums payable with respect to any of said policies; (b)any notice or other communication (in writing or otherwise) regarding any actual or possiblerefusal of coverage under, or any actual or possible rejection of any claim under, any of thepolicies identified in Schedule 2.20; (c) any indication that the issuer of any of thepolicies identified in Schedule 2.20 may be unwilling or unable to perform any of itsobligations thereunder; or (d) any notice, allegation or indication that any insurance coverage orendorsement of Company used as financial responsibility or assurance pursuant to any applicableLegal Requirement is insufficient, nonconforming, out of date, or otherwise not in compliance withsuch applicable Legal Requirement.2.20.5 Except as disclosed in Schedule 2.20, since January 1, 2000 there has been noperiod during which Company has not maintained insurance coverage in amounts and against losses andrisks normal for businesses similar to its business, and neither Company nor any Seller has beennotified by any insurance carrier or its agent that the Real Properties or any of its facilities oroperations thereof are in need of improvements to maintain or renew such insurance (even if atdifferent rates).2.21 Related Party Transactions. Except as set forth in Schedule 2.21 andexcept for the transactions contemplated by this Agreement:2.21.1 No Related Party now has, or at any time since January 1, 2001 had, any direct orindirect interest of any nature in any asset used in or otherwise relating to the Business ofCompany;2.21.2 No Related Party is, or at any time since January 1, 2001 was, indebted to Company;2.21.3 Since January 1, 2001, no Related Party has entered into, or has had any direct orindirect financial interest in, any Contract, transaction or business dealing of any natureinvolving Company;
 
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2.21.4 No Related Party is competing, or has at any time since January 1, 2001, competed,directly or indirectly, with Company in any market served by Company;2.21.5 No Related Party has purchased or sold products or services from or to Company;2.21.6 No Related Party has any claim or right against Company; and2.21.7 No event has occurred, and no condition or circumstance exists, that likely would (withor without notice or lapse of time) directly or indirectly give rise to or serve as a basis for anyclaim or right in favor of any Related Party against Company.2.22 Sale of Products; Performance of Services.2.22.1 To the Knowledge of Company and each Seller, Company will not incur or otherwise becomesubject to any Liability, arising directly or indirectly from any product sold, or any servicesperformed by, Company on or at any time prior to the Closing Date.2.22.2 Except as set forth in Schedule 2.22, within the past seven (7) years nocustomer or other Person has asserted or threatened to assert any material claim against Company(a) under or based upon any warranty provided by or on behalf of Company; or (b) under or basedupon any other warranty relating to any product sold by Company or any services performed byCompany. To the Knowledge of Company and each Seller, no event has occurred, and no condition orcircumstance exists, that likely would (with or without notice or lapse of time) directly orindirectly give rise to or serve as a basis for the assertion of any such claim.2.23 Bank Accounts; Powers of Attorney.2.23.1 Schedule 2.23 accurately sets forth, with respect to each account maintained byor for the benefit of Company at any bank or other financial institution: (a) the name andlocation of the institution at which such account is maintained; (b) the name in which such accountis maintained and the account number of such account; and (c) the names of all individualsauthorized to draw on or make withdrawals from such account. There are no safe deposit boxes orsimilar arrangements maintained by or for the benefit of Company.2.23.2 Except as set forth in Schedule 2.23, Company has no general or special powersof attorney outstanding (whether as grantor or grantee thereof).2.24 Compliance with Legal Requirements. Except as set forth in Schedule2.24:2.24.1 Company, to its and each Seller’s Knowledge, is in full compliance in all materialrespects with each Legal Requirement that is applicable to it or to the conduct of its Business orthe ownership or use of any of its assets.2.24.2 To Company’s and each Seller’s Knowledge, no event has occurred, and no condition orcircumstance exists, that likely would (with or without notice or lapse of time) constitute orresult directly or indirectly in any violation by Company of, or a failure on the part of Companyto comply with, any Legal Requirement.
 
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2.24.3 Except as set forth on Schedule 2.24, and except for violations individually orin the aggregate not having a material adverse effect on Company or its business, Company has notreceived in the past ten (10) years any notice or other communication (in writing or otherwise)from any Governmental Body or any other Person regarding (i) any actual, alleged, possible orpotential violation of, or failure to comply with, any Legal Requirement; or (ii) any actual,alleged, possible or potential obligation on the part of Company to undertake, or to bear all orany portion of the cost of, any environmental cleanup or any remedial, corrective or responseaction of any nature.2.24.4 To Company and each Seller’s Knowledge, no Governmental Body has proposed or isconsidering any Legal Requirement that, if adopted or otherwise put into effect, would specificallyaffect Company and either (i) may have an adverse effect on Company’s business, condition, assets,liabilities, operations, financial performance, results of operations or prospects or on theability of Company or the Sellers to comply with or perform any covenant or obligation under theAgreement; or (ii) may have the effect of preventing, delaying, making illegal or otherwiseinterfering with any of the transactions contemplated hereby.2.24.5 Without limiting the foregoing, Company has obtained and now holds all materiallicenses, permits, certificates, authorizations, and sufficient financial responsibility orassurance demonstrations needed or required for the current conduct of its business and the use ofits properties and the premises occupied by it. Company has properly filed all reports and otherdocuments required to be filed with any Governmental Body. All material GovernmentalAuthorizations and Orders currently in effect and pertaining to the property, assets or Business ofCompany or any subsidiary, including expiration or termination dates, are disclosed on Schedule2.24.2.25 Environmental Matters.2.25.1 Except as disclosed in Schedule 2.25, Company is in compliance in all materialrespects with all applicable Environmental Laws. Except as disclosed in Schedule 2.25,Company has not received any notice or other communication (in writing or otherwise) that allegesthat Company is not in compliance with any Environmental Law, and there are no circumstances thatlikely would prevent or interfere with Company’s compliance with any Environmental Law in thefuture.2.25.2 Except as disclosed in Schedule 2.25, Company (a) has not disposed of, orreceived any notice from any Person alleging that Company has disposed of, any Hazardous Materialson any properties currently or previously owned by, leased by or leased to or operated by Company,and, to the Knowledge of Company and each Seller, no Hazardous Materials has ever been disposed ofon such properties or sites by any other party, except in material compliance with all applicableEnvironmental Laws; (b) has not transported any Hazardous Materials to or disposed of any HazardousMaterials on third party sites except in material compliance with all applicable EnvironmentalLaws; or (c) has not otherwise incurred any potential Liability for the generation, treatment,transportation, storage or disposal, lawful or otherwise, of Hazardous Materials at any third partysites. Except as disclosed in Schedule 2.25, Company has not received any notice of claimof, and has no other information indicating that Company is or may be subject to, any Liability orcontingent Liability or lien pursuant to any Environmental Law in connection with the past orcurrent generation, treatment, transportation, storage or disposal of Hazardous Materials, or anyarrangement of these activities, by or on behalf of Company or otherwise related to the RealProperties. To the Knowledge of Company and each Seller, all past and present vendors,transporters, disposal and other Hazardous Materials management facilities receiving or managingHazardous Materials from or on behalf of Company have had and do have all required GovernmentalAuthorizations and sufficient insurance coverages pertaining to such receipt and management ofHazardous Materials.
 
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2.25.3 Except as disclosed in Schedule 2.25, there is not constructed, deposited,stored, disposed, placed or located on any of the Real Properties currently or previously owned by,leased by or leased to or operated by Company or in any of Company’s fixed assets, any (a) asbestosin any form which is friable; (b) urea formaldehyde foam insulation; (c) transformers or otherequipment which contain dielectric fluid containing levels of polychlorinated biphenyls in excessof fifty (50) parts per million; (d) active or out-of-service Storage Tank Systems or sites fromwhich such Storage Tank Systems have been removed in part or in whole; or (e) any HazardousMaterials or any other chemical, material, substance or other matter of any kind whatsoever,exposure to which or other handling or management is prohibited, limited or regulated by anyEnvironmental Law.2.25.4 Except as disclosed in Schedule 2.25, neither Company nor any Seller is awareof any Environmental Law due to be imposed on the Business or assets of Company which will increasethe cost of complying with the Environmental Laws or which would require any material capitalexpenditure by Company or any other party for Company operations to continue or expand as plannedby Company.2.25.5 Schedule 2.25 sets forth a correct and complete list of all GovernmentalAuthorizations issued by Governmental Bodies pursuant to any Environmental Law material to ornecessary for the operation of the Company, copies of which have been delivered to Buyer. TheGovernmental Authorizations listed on Schedule 2.25 constitute all of the GovernmentalAuthorizations that are material or necessary to conduct the Business of Company in compliance withEnvironmental Law, are in full force and effect and not subject to any pending or anticipatedamendment or modification, and all fees payable in connection therewith have been paid in full.Neither the execution and delivery of this Agreement nor any of the transactions contemplatedherein will cause any of the Governmental Authorizations to be invalidated, violated or otherwiseadversely affected.2.25.6 Company has made available to Buyer copies of all: (a) applications, reports, plans,materials evidencing financial responsibility or assurance, or other notices and materialssubmitted to any Governmental Body by Company in compliance with Environmental Law; (b) records andmanifests required to be maintained by Company pursuant to Environmental Law; (c) notices ofviolation, summonses, Orders, complaints, or other documents received by Company relating tocompliance with or liability under Environmental Law or the discharge, emission, disposal, orrelease of any Hazardous Material at, affecting or in any way relating to the Real Properties; (d)records of analyses of any environmental, engineering and geological tests and assessmentspertaining to the Real Properties, including, without limitation, the results of any air, surfacewater, groundwater or soil analyses, tank integrity testing, or radon testing; and (e) letters of“case closure,” “no further action,” and other communications of completion of remedial action orclosure of any Storage Tank System.2.25.7 Schedule 2.25 discloses a correct and complete listing of all facilities (a) atwhich Company has generated, treated, stored or disposed of Hazardous Material; (b) to or fromwhich Hazardous Material had been transported, or arranged to be transported, by Company other thanin the Ordinary Course of Business; or (c) at which any third party under contract with Companygenerates, treats, or stores, or has generated, treated, stored or disposed of, Hazardous Materialreceived from Company other than in the Ordinary Course of Business.2.25.8 Company has not retained or assumed, either contractually, by operation of law orotherwise, the liability or obligation of any other Person under any Environmental Law.2.25.9 No part of or interest in the Real Properties is subject to any restriction orlimitation of use as the result of any Encumbrance or other legal mechanism due to the presence ofHazardous Material on, in or below the Real Properties.
 
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2.25.10 All forms of environmental bonds, financial assurance and financial responsibilityrequired under all applicable Environmental Laws for the Business of Company have been properly andfully posted or obtained and maintained and, as required, filed with and approved by all relevantGovernmental Bodies, a complete list of which is set forth in Schedule 2.25.2.25.11 No Inspections, or other investigation made or environmental assessment obtained byBuyer, shall limit or invalidate any representation or warranty made within or disclosures requiredunder this Agreement.2.25.12 All Storage Tank Systems are registered with Governmental Bodies pursuant to allapplicable Legal Requirements, and all inactive Storage Tank Systems have been properly put intoinactive or closed status. Company has provided to Buyer a complete and correct copy of its currentregistration(s) of Storage Tanks with Governmental Bodies.2.26 Brokers. Except as set forth in Schedule 2.26, no broker or finder hasacted for any Seller or Company in connection with this Agreement or the transactions contemplatedhereby, and no broker or finder is entitled to any brokerage or finder’s or similar fees or othercommissions in respect of such transactions based in any way on agreements, arrangements orunderstandings made by or on behalf of any Seller or Company. The Shareholders, jointly andseverally, are responsible for paying the fees of any such brokers, including the fees of DominionPartners, L.C.2.27 Full Disclosure. None of the representations and warranties of any Seller orCompany in the Agreement contains or will contain any untrue statement of material fact or omits orwill omit to state any fact necessary to make any of the representations, warranties or statementscontained therein not misleading. As of the date of this Agreement, Company has provided Buyer andBuyer’s Representatives with full and complete access to all of Company’s records and otherdocuments and data requested by them.3. Further Representations and Warranties of the Sellers. As material inducement toBuyer and Merger Sub to enter into this Agreement and to close hereunder, each Seller severallymakes the following representations and warranties to Buyer and Merger Sub:3.1 Ownership of Capital Stock of Company. Each Shareholder owns the number of Sharesset forth opposite such Shareholder’s name on Schedule 3.1. Each Shareholder has good,marketable and unencumbered title to such Shares, free and clear of all Encumbrances, options andrights of others (collectively, “Stock Rights”). There are no restrictions on anyShareholder’s right to consummate the transactions contemplated by this Agreement. Between the datehereof and Closing, no transfer of record ownership of, or beneficial interest in, any of suchShares will be made and no Stock Rights with respect to any such Shares will be created.3.2 Authorization; Valid and Binding Agreement. The execution, delivery andperformance of this Agreement have been duly authorized by all necessary corporate or Entity actionby each Shareholder that is a corporation or other Entity, and each such Shareholder is dulyorganized, validly existing and in good standing under the laws of the jurisdiction of itsorganization. This Agreement and the documents contemplated hereby have been, or will be whenexecuted and delivered at or prior to the Closing, duly executed and delivered by each Seller andconstitute, or will constitute when executed and delivered, the legal, valid and bindingobligations of the Sellers, enforceable against the Sellers in accordance with their terms, exceptas the enforceability hereof or thereof may be limited by bankruptcy, insolvency, moratorium andother similar laws affecting creditors’ rights generally and by general principles of equity,whether considered in a proceeding at law or in equity. NoGovernmental Authorization is required to consummate the transactions contemplated hereby, except anyGovernmental Authorizations heretofore obtained.
 
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3.3 Agreement Not in Breach of Other Instruments Affecting the Sellers. The executionand delivery of this Agreement, the consummation of the transactions provided for herein, and thefulfillment of the terms hereof by the Sellers do not and will not, with or without the giving ofnotice, the lapse of time, or both, result in the breach of any of the terms and provisions of, orconstitute a default under, or conflict with, any Contract or other instrument (including Company’sArticles of Incorporation and Bylaws) by which any Seller is bound, any Order, or any applicablelaw, rule or regulation.4. Representations and Warranties of Buyer and Merger Sub. As material inducement toCompany and the Sellers to enter into this Agreement, Buyer and Merger Sub hereby jointly andseverally make the following representations and warranties to Company and the Sellers:4.1 Corporate Status and Authority. Buyer is a limited partnership duly organized,validly existing and in good standing under the laws of the State of Delaware and has thepartnership power to consummate the transactions contemplated herein. Merger Sub is a corporationduly incorporated, validly existing and in good standing under the laws of the Commonwealth ofVirginia and has the corporate power to consummate the transactions contemplated herein. Theexecution, delivery and performance of this Agreement by Buyer and Merger Sub have been dulyauthorized by all necessary partnership action on the part of Buyer and corporate action on thepart of Merger Sub, and this Agreement constitutes the valid and binding obligation of Buyer andMerger Sub, enforceable against each in accordance with its terms, except as enforceability may belimited by bankruptcy, insolvency, moratorium and other similar laws affecting creditors’ rightsgenerally and by general principles of equity, whether considered in a proceeding at law or inequity.4.2 Agreement Not in Breach of Other Instruments Affecting Buyer. The execution anddelivery of this Agreement and the consummation of the transactions provided for herein by Buyerand Merger Sub do not and will not, with or without the giving of notice, the lapse of time orboth, result in the breach of any of the terms and provisions of, or constitute a default under, orconflict with, or cause any acceleration of any obligation of Buyer or Merger Sub under, anyagreement, indenture or other instrument by which Buyer or Merger Sub is bound, Buyer’s Certificateand Agreement of Limited Partnership, Merger Sub’s Articles of Incorporation or Bylaws, any Orderor any applicable law, rule or regulation.4.3 Studies and Investigations.(a) Buyer has provided to Company, for Company’s and Sellers’ review and information only,complete and correct copies of (i) all reports prepared by or on behalf of Buyer by itsenvironmental and engineering consultants in connection with its review of Company and Company’sproperties, assets, business and operations, and (ii) all surveys and title insurance commitmentsprepared by or on behalf of Buyer in connection with its review of Company and Company’sproperties, assets, business and operations. Notwithstanding the foregoing: (a) any opinionsexpressed by such consultants that is intended to assist Buyer in its assessment of its risksshould it proceed with the transaction contemplated in this Agreement or which are intended toassist Buyer in its dealings with Company or the Sellers in connection with the transactioncontemplated in this Agreement or which otherwise are intended to assist Buyer’s legal counsel torender legal advice to Buyer are or may be redacted from the copy of such reports provided toCompany, which redacted portions shall be evident in the copies provided to Company; (b) Companyand the Sellers acknowledge that such reports and additional materials are provided for Company’sand Sellers’ review and information only in connection with the transaction contemplated by thisAgreement, and are not entitled to rely on such reports or any information contained
 
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therein for such purposes or any other purpose; (c) Company and the Sellers agree toindemnify, defend, release and hold harmless Buyer and Buyer’s consultants from and against anydamages, injuries, losses, or any other claims arising from Company’s and Sellers’ use of theinformation contained in such reports and additional materials; and (d) upon either the Closing orsooner termination of this Agreement, Company or the Sellers shall return to Buyer the copies ofsuch reports and additional materials provided by Buyer to Company, and any additional copies, inpart or in whole, of such reports made by Company or any Seller in the interim shall be destroyedor returned to Buyer simultaneously with return of the full copy first provided by Buyer toCompany.(b) Buyer has informed Company and the Sellers of, or provided them with, any results orinformation received or discovered by Buyer in connection with its review of Company and itsproperties, assets, business and operations, including without limitation the reports, surveys, andtitle commitments provided by Buyer to Sellers and Company pursuant to Section 4.3(a) ofthe Agreement, that materially conflicts with, is materially inconsistent with, or constitutes amaterial breach of, any Schedules attached hereto or any representation or warranty made by Companyor the Sellers herein.5. Continuation and Survival of Representations and Warranties. All representationsand warranties, including information disclosed in the Schedules, made in this Agreement shallcontinue to be true and correct at and as of the Closing Date and at all times between the signingof this Agreement and the Closing Date, as if made at each of such times. If any party heretoshall learn of a representation or warranty being or becoming untrue at or prior to Closing, suchparty shall promptly give notice thereof to all of the other parties hereto, but such notice shallnot modify such representation or warranty or limit the liability of any party therefor. Allrepresentations and warranties contained herein shall survive the consummation of the transactionsprovided for in this Agreement; shall continue in full force and effect; and shall provide thebasis for the remedies set forth herein or otherwise available to the non-breaching party. Eachrepresentation and warranty contained herein is independent of all other representations andwarranties contained herein (whether or not covering an identical or a related subject matter) andmust be independently and separately complied with and satisfied. Exceptions or qualifications toany specific representation or warranty contained herein and in the corresponding Schedule shallnot be construed as exceptions or qualifications to any other warranty or representation. Norepresentation or warranty contained herein shall be deemed to have been waived, affected orimpaired by any investigation made by or Knowledge of any party to this Agreement.6. Buyer’s Inspection Rights. Through the Closing Date, Company shall give to Buyerand its designated Representatives full access to all of the properties, facilities and assets ofCompany, to Company’s stock books, and to all of Company’s documents, books and records relating toits current and past operations and Business. Company shall permit such Representatives to makecopies of Company’s written materials and, subject to prior approval by Company (such approval notto be unreasonably withheld), interview and question Company’s employees. Buyer may also performor have Buyer’s Representatives perform, and Company hereby grants to Buyer and Buyer’sRepresentatives right of entry to perform through the Closing Date, such tests, inspections,sampling, and assessments as it deems desirable in its sole discretion of the Real Properties andall premises and improvements, soils, surface water, and groundwater thereon or thereunder, toconfirm the environmental condition and conduct surveys and engineering and facility analyses(collectively, “Inspections”); provided, however, that such Inspections shall be performedso as to minimize where reasonably feasible interference with the ongoing operations of Company andBuyer shall provide reasonable prior notice of such Inspections to Company and coordinatescheduling of same with Company. All Inspections and analyses and reports resulting from sameshall be for the benefit and use of Buyer. Buyer hereby agrees to indemnify and hold Companyharmless from and against any and all damages, claims, losses, liabilities, expenses (includingreasonable attorneys’ fees) related to or arising out of any property damage or personal injuriesresulting from Buyer’s Inspections. In the event Closing hereunder does not occur for any reason, Buyer shallrepair and return the Real Properties to the condition they were in prior to any Inspections in allmaterial respects.
 
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7. Conduct of the Business of Company Pending Closing.7.1 Between the date hereof and the Closing hereunder, Company shall and Sellers shall causeCompany to:7.1.1 Not take or suffer or permit any action which would render untrue any of therepresentations or warranties of Company herein contained, and not omit to take any action, theomission of which would render untrue any such representation or warranty;7.1.2 Conduct its Business in a good and diligent manner in the ordinary and usual course;7.1.3 Not enter into any Contract, commitment or arrangement with any party, absent the priorwritten consent of Buyer, other than Contracts for the sale of products or services (excludingemployment services) and Contracts for the purchase of materials, services and supplies in theOrdinary Course of Business;7.1.4 Use its best efforts to preserve its Business organization intact, to keep available theservices of its employees and to preserve its relationships with customers, suppliers and otherswith whom it deals;7.1.5 Maintain in full force and effect all of the insurance policies listed on Schedule2.20 and all environmental financial assurance and responsibility mechanisms and make no changein any insurance policy or coverage or financial assurance and responsibility mechanism (other thanto extend such existing coverage through the Closing Date) without the prior written consent ofBuyer;7.1.6 Keep the Real Properties and all of its equipment and other tangible personal propertyin good order and repair and perform all necessary repairs and maintenance;7.1.7 Continue to maintain all of its usual Business books and records in accordance with itspast practices;7.1.8 Not amend its Articles of Incorporation or Bylaws;7.1.9 Not declare or make any dividend or other payment on or with respect to its capitalstock, redeem or otherwise acquire any shares of its capital stock or issue any capital stock orany option, warrant or right relating thereto, except that Company may declare and pay apre-Closing dividend to the Shareholders;7.1.10 Not waive any right or cancel any claim;7.1.11 Except for normal raises pursuant to annual reviews consistent with past practices, notincrease the compensation or rate of compensation payable to or pay any unaccrued bonus to any ofits employees unless prior written approval has been obtained from Buyer (such approval not to beunreasonably withheld);
 
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7.1.12 Maintain its corporate existence and not merge or consolidate with any other Entity;7.1.13 Comply with all provisions of all applicable laws, rules and regulations and allrelevant Governmental Authorizations and maintain all relevant Governmental Authorizations andfinancial responsibility or assurance required under any Legal Requirement (including making anytimely and complete applications therefore and diligently prosecuting same);7.1.14 Not make any capital expenditure exceeding $25,000 as to any individual expenditure orseries of related expenditures, and not exceeding $100,000 in the aggregate; and7.1.15 Use its best efforts to obtain any necessary third party consents and take otheractions in order to consummate the transactions contemplated by this Agreement.7.2 Between the date hereof and the Closing hereunder, Company and Sellers shall promptlynotify Buyer in writing of any event, condition, fact or circumstance of which Company or any ofits Representatives or any Seller has Knowledge that may make the timely satisfaction of any of theconditions set forth in this Section 7 impossible or unlikely.7.3 During the pre-Closing period, Company and the Sellers shall promptly notify Buyer of:7.3.1 The discovery by Company or any Seller of any event, condition, fact or circumstancethat occurred or existed on or prior to the date of this Agreement and that caused or constitutes abreach of any representation or warranty made by Company or any Seller in this Agreement;7.3.2 Any event, condition, fact or circumstance that occurs, arises or exists after the dateof this Agreement and that would cause or constitute a breach of any representation or warrantymade by Company or any Seller in this Agreement if (a) such representation or warranty had beenmade as of the time of the occurrence, existence or discovery of such event, condition, fact orcircumstance, or (b) such event condition, fact or circumstance had occurred, arisen or existed onor prior to the date of this Agreement; and7.3.3 Any breach of any covenant or obligation of Company or any Seller.7.4 Company and the Sellers agree to take all reasonable precautions to prevent any trading insecurities of Buyer or Buyer’s Affiliates by Company or Company’s officers, directors,Shareholders, employees and agents having knowledge of the transactions contemplated by thisAgreement until the tenth business day following the earlier of the termination of this Agreementin accordance with Section 18 and the Closing.7.5 Within twenty (20) days of the end of each month prior to the Closing, Company shallprovide Buyer with copies of Company’s Interim Financial Statements updated as of the last day ofthe month just ended.8. Conditions Precedent to Buyer’s and Merger Sub’s Obligation to Close. Thefollowing shall be conditions precedent to the obligation of Buyer and Merger Sub to closehereunder, any of which may be waived in whole or in part by Buyer and Merger Sub:8.1 Buyer shall be satisfied, in its sole discretion, with the results of all due diligenceinvestigation, including without limitation the Inspections, conducted at any time before theClosing by or on behalf of Buyer with respect to the Shares, Company, Company’s assets and liabilities, theBusiness and all matters disclosed (or required to be disclosed) in the Schedules.
 
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8.2 Each of the representations and warranties of Company and the Sellers contained in thisAgreement is now and, except as to those expressly limited to the date hereof or some otherspecific date, at all times after the date of this Agreement to and including the time of Closingshall be, true and correct individually and collectively in all material respects, provided thatany further references to materiality in any representation and warranty shall be disregarded forpurposes of this provision.8.3 Each of the agreements, covenants and undertakings of Company and the Sellers contained inthis Agreement, except for those calling for performance after Closing, will have been fullyperformed and complied with at or before Closing.8.4 No litigation, governmental actions or other proceeding involving or potentially involvinga liability, obligation or loss on the part of Company of $25,000 or more, in the aggregate, orwhich by reason of the nature of the relief sought might have a material adverse effect onCompany’s Business or financial condition, shall be threatened or commenced against Company withrespect to any matter; no litigation, governmental action or other Proceeding shall be threatenedor commenced against Company or any Seller after the date of the Agreement with respect to theconsummation of the transactions provided for herein; and neither Company nor any Seller shall haveany Knowledge of any basis for such litigation, governmental action or Proceeding.8.5 All indebtedness owing to Company by any Seller or any director, officer or manager ofCompany (except Daniel Matthews) will be paid in full, forgiven or otherwise satisfied at or priorto Closing.8.6 All actions, Proceedings, instruments and documents required to enable Company and theSellers to perform this Agreement or matters incident thereto (other than matters for which Buyeris responsible under the terms of this Agreement), and all other legal matters not relating to adefault by Buyer of its obligations hereunder, shall have been duly taken, satisfied, executed ordelivered, as the case may be, to the reasonable satisfaction of Buyer.8.7 All documents required to be delivered by the Sellers at or prior to Closing shall havebeen delivered or shall be tendered at the time and place of Closing.8.8 The Board of Managers of the General Partner of Buyer and the Board of Directors of MergerSub shall have approved this Agreement and all other transactions contemplated hereby.8.9 The Shareholders’ Agent shall have executed and delivered to Buyer the Escrow Agreement,in the form attached as Exhibit A, on behalf of each of the Shareholders.8.10 Each of the Shareholders and each director and officer of Company shall have executed anddelivered a General Release, in the form attached as Exhibit B (the “GeneralReleases”) releasing Company, the Surviving Corporation and Buyer from all liability to suchpersons.8.11 W. Gary Farrar, III shall have executed and delivered to Buyer an Employment andNon-Competition Agreement, in the form attached as Exhibit C (the “EmploymentAgreement”), which shall require him to provide full-time services to the Surviving Corporationfollowing the Closing.
 
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8.12 Principal shall have executed and delivered to Buyer a Consulting and Non-CompetitionAgreement, in the form attached as Exhibit D (the “Consulting Agreement”), whichshall require him to provide certain consulting services to Buyer or the Surviving Corporation, asapplicable, following the Closing.8.13 Buyer shall have received the favorable legal opinion of Cantor Arkema, P.C., counsel forthe Sellers and Company, dated the Closing Date, as to the matters set forth in Exhibit E(the “Legal Opinion”).8.14 Buyer shall have received consents to the transaction contemplated by this Agreementexecuted by the Persons listed on Schedule 8.14 (the “Consents”); provided,however, that Buyer hereby (i) waives any notice required under Company’s TransloadingAgreement with Norfalco dated April 1, 2003, and (ii) agrees to provide the required notice toNorfalco following Closing.8.15 Buyer shall have received financing in an amount sufficient in Buyer’s sole discretion,on terms and conditions satisfactory to Buyer.8.16 Buyer and the Sellers shall have agreed upon the preliminary calculation of WorkingCapital as provided in Section 1.8.8.17 Company shall have closed and completed the purchase of the tanker trailer currentlyowned by Oil Services, Inc., and Company shall have provided to Buyer copies of such closingdocuments for same. By way of clarification and not limitation, the representations and warrantiesmade by Company in Section 2 applicable to tanker trailers owned by Company shall apply inall respects to the tanker trailer so purchased by Company from Oil Services, Inc.8.18 Buyer shall have received from appropriate Governmental Bodies a zoning letter withrespect to the Real Properties in form and substance satisfactory to Buyer.8.19 Buyer shall have received from the Sellers a consent to the collateral assignment byBuyer and/or Surviving Corporation (as may be required by the Lender) to the Lender of thisAgreement and other agreements, instruments and documents executed in connection herewith orpursuant hereto, in form and substance satisfactory to Buyer and the Lender (the “LenderConsent”).9. Conditions Precedent to Company’s and the Sellers’ Obligations to Close. Thefollowing shall be conditions precedent to the obligations of Company and the Sellers to closehereunder, any of which may be waived in whole or in part by Company and the Sellers:9.1 Each of the representations and warranties of Buyer and Merger Sub contained in thisAgreement is now and, except as to those expressly limited to the date hereof or some otherspecified date, at all times after the date of this Agreement to and including the time of Closingshall be, true and correct individually and collectively in all material respects, provided thatany references to materiality in any representation or warranty shall be disregarded for purposesof this provision.9.2 Each of the agreements, covenants and undertakings of Buyer and Merger Sub contained inthis Agreement, except for those calling for performance after Closing, will have been fullyperformed and complied with at or before Closing.9.3 No litigation, governmental action or other Proceeding shall be threatened or commencedagainst Buyer or Merger Sub with respect to the consummation of thetransactions provided for herein, and Buyer and Merger Sub shall have no Knowledge of any basis for any such litigation,governmental action or other Proceeding.
 
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9.4 All actions, Proceedings, instruments and documents required to enable Buyer and MergerSub to perform this Agreement or matters incident thereto (other than matters for which Companyand/or the Sellers are responsible under the terms of this Agreement), and all other legal mattersnot relating to a default by Company or the Sellers of their obligations hereunder, shall have beenduly taken, satisfied, executed or delivered, as the case may be, to the reasonable satisfaction ofCompany and the Sellers.9.5 All documents required to be delivered by Buyer or Merger Sub at or prior to Closing shallhave been delivered or shall be tendered at the time and place of Closing.9.6 Company and the Sellers shall have received the executed Consents.9.7 Buyer and the Sellers shall have agreed upon the preliminary calculation of WorkingCapital as provided in Section 1.8.9.8 Merger Sub shall have executed and delivered the Employment Agreement.10. Closing.10.1 Closing Date. The closing of the transactions provided for in this Agreement(herein sometimes called the “Closing”) shall take place at the offices of Christian &Barton, L.L.P., 909 East Main Street, Suite 1200, Richmond, Virginia 23219, on July 27, 2007, orsuch other place and time as shall be agreed to between the President of Buyer and theShareholders’ Agent. The date and time of Closing is sometimes herein called the “ClosingDate.”10.2 Deliveries by the Sellers and Company at Closing. At Closing, the Sellers andCompany will deliver or cause to be delivered to Buyer or Merger Sub the following:10.2.1 Certificates for 10,000 shares of Common Stock of Company, which constitute all of theShares, endorsed by the Shareholders in blank, or with stock transfer powers executed by theShareholders in blank attached, with signatures properly notarized;10.2.2 Certificates of the President of Company and the Sellers, dated as of the Closing Date,confirming (a) the truth and correctness of all of the representations and warranties of Companyand the Sellers contained in Section 2 and Section 3 herein as of the Closing Dateand as of all times between the date hereof and the Closing Date, subject to the provisions ofSection 5 hereof, and (b) that all agreements and covenants of Company and the Sellersspecified herein have been complied with;10.2.3 The Certificate of the Secretary or an Assistant Secretary of Company, dated theClosing Date, that the necessary corporate action by the Board of Directors and shareholders ofCompany has been taken to authorize the consummation by Company of the transactions provided forherein;10.2.4 The signed resignations of all directors and all officers of Company and each of itssubsidiaries dated and effective as of the Closing Date;
 
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10.2.5 The stock books and records, corporate minute books (containing the originals of allminutes and resolutions ever adopted or consented to or agreed to by the shareholders, directors orany committee of directors of Company) and the corporate seal of Company;10.2.6 “Good Standing” certificates for Company issued by the State Corporation Commission ofthe Commonwealth of Virginia and the Secretary of State of the State of Tennessee, and a certifiedcopy of the Articles of Incorporation and all amendments thereto issued by the State CorporationCommission of the Commonwealth of Virginia, each dated as of a date within fifteen (15) days priorto the Closing Date;10.2.7 Escrow Agreement in accordance with Section 8.9;10.2.8 General Releases in accordance with Section 8.10;10.2.9 The Employment Agreement in accordance with Section 8.11;10.2.10 The Consulting Agreement in accordance with Section 8.12;10.2.11 The Legal Opinion in accordance with Section 8.13;10.2.12 A certification by each Shareholder pursuant to the Foreign Investment Real PropertyTax Act, in the form attached hereto as Exhibit F;10.2.13 The Consents in accordance with Section 8.14;10.2.14 The original copy of each document listed on Schedule 2.15;10.2.15 The Articles of Merger executed by Company;10.2.16 The Lender Consent executed by the Sellers; and10.2.17 Such other documents as may be reasonable necessary to consummate the transactionscontemplated by this Agreement.10.3 Deliveries by Buyer at Closing. At the Closing, Buyer will deliver or cause tobe delivered to the Sellers the following:10.3.1 Payment of a total of $6,500,000 in immediately available funds to the Shareholders inaccordance with their respective interests as set forth on Schedule 1, subject to anyadjustments pursuant to Section 1.8 or Section 1.9(a);10.3.2 Payment of a total of $1,500,000 to the Escrow Agent in accordance with Section1.7;10.3.3 The Certificates of the President of Buyer and the President of Merger Sub, dated theClosing Date, confirming the truth and correctness of all of the representations and warranties ofBuyer and Merger Sub, respectively, contained herein as of the Closing Date and as of all timesbetween the date hereof and the Closing Date;10.3.4 The Certificates of the Secretary or an Assistant Secretary of Buyer and the Secretaryor an Assistant Secretary of Merger Sub, dated the Closing Date, thatthe necessary action by the Board of Managers of the general partner of Buyer and the Board of Directors of Merger Sub,respectively, has been taken to authorize the consummation by Buyer and Merger Sub of thetransactions provided for herein;
 
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10.3.5 The Escrow Agreement executed by Buyer and the Escrow Agent;10.3.6 The Employment Agreement and Consulting Agreement executed by the Surviving Corporationor Buyer, as applicable;10.3.7 The Articles of Merger executed by Merger Sub; and10.3.8 Such other documents as may be reasonable necessary to consummate the transactionscontemplated by this Agreement.11. Indemnification.11.1 Agreement to Indemnify. The Sellers hereby jointly and severally indemnify andagree to hold harmless Buyer and the Surviving Corporation and their successors and assigns andeach such entity’s officers, directors, shareholders and agents (each of whom shall be a thirdparty beneficiary hereof) from, against and in respect of the amount of any and all Buyer Losses(as hereinafter defined). Buyer hereby indemnifies and agrees to hold harmless each of the Sellersand their successors and assigns from, against and in respect of the amount of any and all SellerLosses (as hereinafter defined). As defined below, Buyer Losses and Seller Losses are collectivelyreferred to herein as “Losses”.11.2 Definition of “Buyer Losses.” As used in this Section 11, “BuyerLosses” means any and all loss, damage, cost, liability, expense or claim to or againstBuyer or the Surviving Corporation resulting from:11.2.1 Any misrepresentation, breach of warranty, or any non-fulfillment of any representationor warranty, covenant or agreement on the part of Company or the Sellers contained herein;11.2.2 Any error contained in any statement, report, certificate or other document orinstrument delivered to Buyer pursuant to this Agreement or contained in any Schedule attachedhereto;11.2.3 Any actual or alleged claim, debt, liability, obligation, loss, fine, penalty, damageor diminution in value suffered by the Surviving Corporation or incurred by the SurvivingCorporation to any party, first incurred prior to Closing hereunder or arising from any matterfirst occurring prior to Closing hereunder, with respect only to (a) Taxes, employment-relatedmatters or environmental matters (subject to the limitations and restrictions set forth inSection 11.6) and (b) ownership of or title to the capital stock of Company, includingclaims by former shareholders and claims relating to the Former ESOP.11.2.4 Any shortfall in the amount of Working Capital as of the Closing Date as provided inSection 1.8; and11.2.5 Any and all Proceedings, demands, assessments, judgments, reasonable attorneys’ fees,costs, expenses and interest incident to any of the foregoing.
 
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11.3 Definition of “Seller Losses”. As used in this Section 11, “SellerLosses” means any and all loss, damage, cost, liability, expense or claim to or against aSeller resulting from:11.3.1 Any misrepresentation, breach of warranty, or any non-fulfillment of anyrepresentation, warranty, covenant or agreement on the part of Buyer or Merger Sub containedherein;11.3.2 Any actual or alleged claim, debt, liability, obligation, loss, fine, penalty or damagesuffered by a Seller or incurred by a Seller to any party with respect to or resulting from anyliability of Buyer or the Surviving Corporation first incurred following Closing or any matter orCompany action first occurring after Closing hereunder; and11.3.3 Any and all Proceedings, demands, assessments, judgments, reasonable attorneys’ fees,costs, expenses and interest incident to any of the foregoing.11.4 Procedures for Establishment of Losses.11.4.1 If any claim shall be asserted against a party (the “Indemnifying Party”) which, ifsustained, would result in a Loss, the party suffering the Loss (the “Indemnified Party”), within areasonable time after learning of such claim, shall notify the Indemnifying Party of such claim,and shall extend to the Indemnifying Party a reasonable opportunity to defend against such claim,at the Indemnifying Party’s sole expense and through legal counsel satisfactory to the IndemnifiedParty, provided that the Indemnifying Party proceeds in good faith, expeditiously and diligently.No effort to recover the amount of the Loss related to such claim shall be made by the IndemnifiedParty pursuant to Section 11.4.2 while such defense is still being made until the earlierof (a) the resolution of such claim by the Indemnifying Party with the claimant, or (b) thetermination of the defense by the Indemnifying Party against such claim or the failure of theIndemnifying Party to prosecute such defense in good faith in an expeditious and diligent manner.The Indemnified Party shall be entitled to rely upon the opinion of its counsel as to theoccurrence of either of such events. The Indemnified Party shall, at its option and expense, havethe right to participate in any defense undertaken by the Indemnifying Party with legal counsel ofits own selection. No settlement or compromise of any claim which may result in a Loss may be madeby the Indemnifying Party without the prior written consent of the Indemnified Party unless (i)prior to such settlement or compromise the Indemnifying Party acknowledges in writing itsobligation to pay in full the amount of the settlement or compromise and all associated expenses,(ii) the Indemnified Party is furnished with security reasonably satisfactory to the IndemnifiedParty that the Indemnifying Party will in fact pay such amount and expenses, (iii) such settlementor compromise contains a full release of the Indemnified Party and its Affiliates and (iv) suchsettlement or compromise does not impose, or purport to impose, any affirmative or negativecovenant that could adversely affect the Indemnified Party.11.4.2 In the event that the Indemnified Party asserts the existence of any Loss, theIndemnified Party shall give written notice to the Indemnifying Party of the nature and amount ofthe Loss asserted. If the Indemnifying Party, within a period of thirty (30) days after the givingof such notice by the Indemnified Party, does not give written notice to the Indemnified Partyannouncing its intention to contest such assertion of the Indemnified Party (such notice by theIndemnifying Party being hereinafter called the “Contest Notice”), such assertion of theIndemnified Party shall be deemed accepted and the amount of the Loss shall be deemed established.If, however, a Contest Notice is given to the Indemnified Party within such 30-day period, then thecontested assertion of a Loss shall be settled in accordance with the procedures set forth inSection 19.14. The determination of the arbitrator(s) shall be delivered in writing to theIndemnifying Party and the Indemnified Party and shall be final, binding and conclusive upon all ofthe parties hereto, and the amount of the Loss, if any, determined to exist by the arbitrator(s)shall be deemed established.
 
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11.4.3 The Indemnified Party and the Indemnifying Party may agree in writing, at any time, asto the existence and amount of a Loss, and, upon the execution of such agreement, such Loss shallbe deemed established.11.5 Payment of Losses. The Indemnifying Party, jointly and severally in the case ofthe Sellers, hereby agrees to pay in immediately available funds the amount of each establishedLoss to the Indemnified Party within thirty (30) days after the establishment of such amount. Anyamounts not paid by the Indemnifying Party when due under this Section 11.5 shall bearinterest from the due date thereof until the date paid at a rate equal to the lesser of ten percent(10%) per annum or the highest legal rate permitted by applicable law.11.6 Limitations. Notwithstanding the foregoing, liability for Losses pursuant tothis Section 11 is subject to the following limitations:11.6.1 There shall be no such liability for any Losses incurred by either party unless theaggregate of all such Losses incurred by such party exceeds $50,000.00, in which event there shallbe liability for all Losses incurred by such party in excess of $50,000.00;11.6.2 In addition, there shall be no such liability for any Buyer Losses:(a) For a claim not relating to Section 2.1, 2.9, 2.14, 2.19, or 3.1, unless the claimtherefor has been asserted pursuant to Section 11.4 within two (2) years and ninety (90)days after the Closing; and(b) For a claim relating to Section 2.1, 2.9, 2.14, 2.19, or 3.1, unless the claimtherefor has been so asserted pursuant to Section 11.4 within the longer of the applicablestatute of limitation and two (2) years and ninety (90) days after the Closing; and11.6.3 The maximum liability for any Buyer Losses shall be as follows:(a) With respect to any claim related to Section2.1, 2.2,2.4, 2.14, 2.18, 2.19 or 3.1, the maximum liability shallbe $9,000,000.(b) With respect to any claim related to Section 2.25 of which (i) Company and thePrincipal had no Knowledge prior to Closing or (ii) any causative, indicative, or associatedcondition or circumstance was not described, set forth, referenced, addressed or otherwise revealedin Buyer’s consultants’ reports provided to Company pursuant to Section 4.3, the maximumliability shall be zero ($0.00). The parties hereby agree that the representations and warrantiesset forth in sections of this Agreement other than Section 2.25 shall not be applied orinterpreted in a manner that modifies or circumvents the limitation on Sellers’ liability for theenvironmental matters described in, or contemplated by, this Section 11.6.3(b). By way ofillustration and not limitation, the parties hereby agree that the representations and warrantiescontained in Section 2.24 shall not be interpreted or applied to modify or circumvent thelimitation on Seller’s liability for environmental matters as provided in this Section 11.6.3(b).
 
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(c) With respect to any claim involving or arising from any condition or circumstance that (i)first existed or occurred prior to Closing of which Company or any Seller had Knowledge prior toClosing or which was described, set forth, referenced, addressed or otherwise revealed in Buyer’sconsultants’ reports provided to Company pursuant to Section 4.3, and (ii) directly orindirectly has resulted in or given rise to, or does result in or give rise to, a claim based onany mandate, obligation, standard or requirement of any Environmental Law (or common law havingapplicability to environmental matters), any Governmental Authorization related to environmentalmatters, or any directive or order of any Governmental Body related to environmental matters (whichany of the foregoing may include but are not limited to any matter described in Section2.25, the taking of corrective actions to address any instance of noncompliance or remediationor cleanup, or the payment of any fines or penalties), then Sellers’ liability for any such claimshall be fifty percent (50%) of the amount actually paid by Buyer or the Surviving Corporation withrespect to such claim; provided, however, that Sellers’ maximum aggregate liabilityfor all such claims shall be $150,000. Notwithstanding anything set forth herein to the contrary,the Sellers shall have liability under this Section 11.6.3(c) only if the applicable claim(i) is initiated by a Governmental Body or (ii) arises or obtains from a final adjudicated actionbrought by a third party unrelated to Buyer or Surviving Corporation. The parties hereby agreethat the representations and warranties set forth in sections of this Agreement other thanSection 2.25 shall not be applied or interpreted in a manner that modifies or circumventsthe limitation on Sellers’ liability for the environmental matters described in, or contemplatedby, this Section 11.6.3(c). By way of illustration and not limitation, the parties herebyagree that the representations and warranties contained in Section 2.24 shall not beinterpreted or applied to modify or circumvent the limitation on Seller’s liability forenvironmental matters as provided in this Section 11.6.3(c).(d) With respect to all other claims for Losses pursuant to this Section 11, themaximum, aggregate liability shall be $2,000,000; provided, however, that themaximum liability for such claims shall be reduced to $1,500,000 upon the first anniversary date ofClosing. Once the applicable limit is met, the Sellers shall have the no further liability for anysuch claims.(e) Notwithstanding anything set forth in this Section 11.6 or elsewhere in thisAgreement to the contrary, Sellers shall not have any liability for Buyer Losses arising out of orresulting from any Liability or any other matter disclosed on the Schedules to this Agreement,except as otherwise expressly provided in Section 11.6.3(c), Section 11.2.3, orSection 11.2.4. As used in this Section 11.6.3(e), “other matter” shall mean adescription of a set of facts or circumstances which reasonably contemplates or indicates aLiability or potential Liability.12. [*This Section Intentionally Deleted*]13*. *Further Assurances. Buyer, Merger Sub, Company and the Sellers agree to executeand deliver all such other instruments and take all such other action as any party may reasonablyrequest from time to time, before or after Closing and without payment of further consideration, inorder to effectuate the transactions provided for herein. The parties shall cooperate fully witheach other and with their respective counsel and accountants in connection with any steps requiredto be taken as part of their respective obligations under this Agreement, including the preparationof financial statements and tax returns.14. Restrictive Covenants.14.1 Duration and Extent of Restriction.14.1.1 Principal acknowledges and agrees that it would substantially diminish the value toBuyer and Merger Sub of the transactions contemplated herein and the assets and the goodwill ofCompany were Principal to compete against Buyer subsequent to the consummation of this transaction.Principal agrees that for a period of three (3) years following the Closing hereunder, Principalwill not directly or indirectly engage in, or directly or indirectly be financially interested in,any business which is engaged in the Business in the southeastern United States. Nothing in theforegoing sentence shall be deemed, however, to prevent any Seller from owning securities of Buyer,or of any other publicly owned company engaged in any such Business, provided that the total amount of securitiesof each class owned by Principal either of record or beneficially in such other publicly ownedcompany does not exceed one percent (1%) of the outstanding securities of such class.
 
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14.1.2 In addition, for a period of three (3) years following the Closing hereunder, theSellers will not, directly or indirectly, induce or attempt to influence any employee, customer,independent contractor or supplier of Company or the Surviving Corporation to terminate his or heremployment or any other relationship with Company or the Surviving Corporation.14.1.3 The Sellers shall not at any time following the Closing use for the Sellers’ ownbenefit, or disclose, communicate or divulge to, or use for the direct or indirect benefit of anyperson, any confidential information of Company. As used in the preceding sentence,“Confidential Information” means any information regarding Company’s business methods,business policies, procedures, techniques, research or development projects or results; historicalor projected financial information, budgets, trade secrets or other knowledge or processes of ordeveloped by Company; any names and addresses of customers or clients or any data on or relating topast, present or prospective Company customers or clients; or any other confidential informationrelating to or dealing with the business, operations or activities of Company, excepting in eachcase information otherwise lawfully known generally by, or readily accessible to, the trade or thegeneral public.14.1.4 On and at all times after the date of this Agreement, the Sellers shall keep strictlyconfidential the existence and terms of this Agreement. Except to the extent specifically agreedin writing by Buyer, none of the Sellers, Company or any of their respective Representatives shall(a) make any disclosure of any nature to any of Company’s suppliers, customers, landlords,creditors or employees or to any other person regarding the transactions contemplated by thisAgreement, or (b) issue or disseminate any press release or other publicity concerning thetransactions contemplated by this Agreement, or permit any press release or other publicityconcerning the transactions contemplated by this Agreement to be issued or otherwise disseminatedby or on behalf of the Sellers, Company or their respective Representatives.14.2 Remedies for Breach. Each Seller acknowledges that the restrictions contained inSection 14.1 are reasonable and necessary in order to protect Buyer’s legitimate interestsand that any violation thereof would result in irreparable injury to Buyer. Each Seller thereforeacknowledges and agrees that, in the event of any violation thereof, Buyer shall be authorized andentitled to obtain, from any court of competent jurisdiction, preliminary and permanent injunctiverelief as well as an equitable accounting of all profits or benefits arising out of such violation,which rights and remedies shall be cumulative and in addition to any other rights or remedies towhich Buyer may be entitled. In the event that Section 14.1 is held to be in any respectan unreasonable restriction upon any Seller, then the court so holding may reduce the scope, extentor duration of such restriction, or effect any other change to the extent necessary to render suchSection enforceable by such court.14.3 Extension of Restriction. In the event of any breach or violation of therestriction contained in Section 14.1, the duration therein specified shall abate duringthe time of any violation thereof and that portion of such duration remaining at the time ofcommencement of any violation shall not begin to run until such violation has been fully andfinally cured.14.4 No Separate Consideration. The parties agree that the restrictions on the Sellersin this Section 14 are an integral part of the overall transaction contemplated by thisAgreement; no part of the overall consideration being paid by Buyer to Sellers hereunder is beingallocated separately to such restrictions; and no party will take a position inconsistent with thisSection 14.4 for Tax or any other purpose.
 
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15. Designation of Agent. Each Shareholder hereby irrevocably appoints W. Gary FarrarJr. as such Shareholder’s attorney-in-fact and agent (the “Shareholders’ Agent”) to takeany action and to execute any documents on such Shareholder’s behalf with respect to this Agreementand the transactions provided for herein, including but not limited to the making and execution ofany amendments to this Agreement, execution and delivery of the Escrow Agreement and any amendmentsthereto, the giving and receipt of any notices pursuant hereto (including notices to or from theEscrow Agent), the execution of any and all documents, including the stock certificates, requiredto be executed in order to complete Closing hereunder, the acceptance of service of process inconnection with any claim related to this Agreement and the compromise or settlement of any and alldisputes (including indemnification claims and claims submitted to the Escrow Agent) which mayhereafter arise pursuant to any provision of this Agreement, the Escrow Agreement or any matter orthing growing out of this Agreement or the transactions provided for herein. Such appointmentshall, to the fullest extent permitted by law, survive the death or incompetency of anyShareholder. In the event of the incompetency, incapacity, bankruptcy, death or resignation of theShareholders’ Agent, the Shareholders shall irrevocably appoint a successor within thirty (30) daysto serve in such capacity and shall give Buyer written notice of such appointment.16. No Solicitation.16.1 From and after the date of this Agreement until the earlier of the termination of thisAgreement in accordance with Section 18 or the Closing, Company and its Affiliates shallnot, directly or indirectly, through any Seller, Representative or agent:16.1.1 Solicit, initiate, continue or encourage any inquiries or proposals that constitute, orcould reasonably be expected to lead to, a proposal or offer for any Acquisition Transaction;16.1.2 Engage in negotiations or discussions concerning, or provide any non-public informationto any third party relating to, any Acquisition Transaction;16.1.3 Supply any information to or for the benefit of any third party contemplating anytransaction of a type referred to in Section 16.1.1;16.1.4 Reveal to any person (other than Company’s executive officers, directors, counsel andother business advisors and consultants on a confidential need-to-know basis) any informationconcerning the transactions contemplated by this Agreement; or16.1.5 Agree to or recommend any Acquisition Transaction.16.2 Company and the Sellers will immediately cease any and all existing activities,discussions or negotiations of the nature described in Section 16.1 with any partiesconducted prior to the execution of this Agreement and will use reasonable efforts to obtain thereturn of any confidential information furnished to any such parties.16.3 Company shall notify Buyer promptly after receipt by Company or the Shareholders of anyunsolicited proposal for an Acquisition Transaction or any request for nonpublic information inconnection with an unsolicited Acquisition Transaction or for access to the properties, books orrecords of Company by any third party that it is considering making, or has made, an unsolicitedproposal for an Acquisition Transaction.
 
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16.4 If Company or any of the Sellers breaches any of the provisions of this Section16, and the Closing does not occur by on or beforeAugust 17, 2007, as a result of such breach (and provided that Buyer is not then in default under this Agreement), Company shall pay Buyer anamount equal to Buyer’s reasonable, out-of-pocket expenses in connection with this transaction(including attorneys’ and consultants’ fees and costs), plus $100,000.00. The foregoing amountshall be in addition to, not in lieu of, the liability of Company and the Sellers for any otherbreach of this Agreement.17. Defined Terms. The following terms used in this Agreement shall have the meaningsindicated below:“Acquisition Transaction” shall mean any transaction (other than the transactions withBuyer contemplated by this Agreement) involving:(a) The sale, lease, transfer or other disposition of all or any material portion of Company’sbusiness or assets (other than in the Ordinary Course of Business);(b) The issuance, sale, transfer or other disposition of (i) any of the capital stock ofCompany, (ii) any option, call, warrant or right (whether or not immediately exercisable) toacquire any of the capital stock of Company, or (iii) any security, instrument or obligation thatis or may become convertible into or exchangeable for any of the capital stock of Company;(c) Any merger, consolidation, business combination, share exchange, reorganization or similartransaction involving Company; or(d) Any other transaction alternative to or competitive with the transactions with Buyercontemplated by this Agreement.“Affiliate” shall mean any Person that, directly or indirectly through one or moreintermediaries, controls, is controlled by, or is under common control with another Person andincludes the power to direct or cause the direction of the management and policies of a Person,whether through the ownership of securities, by contract or otherwise.“Agreement” shall mean this Agreement and Plan of Merger, as it may be amended fromtime to time, together with the Exhibits and Schedules.“Articles of Merger” shall have the meaning given in Section 1.2 of thisAgreement.“Business” shall have the meaning given in the recitals to this Agreement.“Buyer” shall have the meaning given in the heading of this Agreement.“Buyer Losses” shall have the meaning given in Section 11.2 of this Agreement.“Closing” shall have the meaning given in Section 10.1 of this Agreement.“Closing Date” shall have the meaning given in Section 10.1 of this Agreement.“Closing of the Norfolk Southern Matter” shall mean (i) the closing and settlement onboth the purchase of a portion and lease of the remaining portion of the Norfolk SouthernProperties by the Surviving Corporation from Norfolk Southern, or (ii) the entry into a lease, fora term of no less than five (5) years, of the Leased Properties leased pursuant to the NorfolkSouthern Lease, either of which shall be on such terms and conditions acceptable to the SurvivingCorporation in its reasonable discretion.
 
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“COBRA” shall mean Part 6 of Subtitle B of Title I of ERISA or Section 4980B of theCode and any similar state law.“Code” shall mean the Internal Revenue Code of 1986, as amended.“Company” shall have the meaning given in the heading of this Agreement.“Company Plan” shall mean any Current Benefit Plan or Past Benefit Plan.“Company Return” shall have the meaning given in Section 2.14.2 of thisAgreement.“Compiled Financial Statements” shall have the meaning given in Section 2.5.1of this Agreement.“Confidential Information” shall have the meaning given in Section 14.1.3 ofthis Agreement.“Consent Returns” shall have the meaning given in Section 2.14.2 of thisAgreement.“Consents” shall have the meaning given in Section 8.14 of this Agreement.“Contest Notice” shall have the meaning given in Section 11.3.2 of thisAgreement.“Consulting Agreement” shall have the meaning given in Section 8.12 of thisAgreement.“Contract” shall mean, with respect to Company, any written, oral, implied or otheragreement, contract, license, obligation, promise or undertaking that is valid and legally binding.“Current Benefit Plan” shall mean any Employee Benefit Plan that is currently ineffect and:(a) That was established or adopted by Company or any ERISA Affiliate or is maintained orsponsored by Company;(b) In which Company participates;(c) With respect to which Company or any ERISA Affiliate is or may be required or permitted tomake any contribution; or(d) With respect to which Company or any ERISA Affiliate is or may become subject to anyLiability.“Deferred Consideration” shall have the meaning given in Section 1.6 of thisAgreement.“Effective Time” shall have the meaning given in Section 1.2 of thisAgreement.“Employee Benefit Plan” shall have the meaning given in Section 3(3) of ERISA.“Employment Agreement” shall have the meaning given in Section 8.11 of thisAgreement.“Encumbrance” shall mean any charge, claim, community property interest, condition,encumbrance, equitable interest, lien, deed of trust, mortgage, deed of trust, easement,right-of-way, license, lease (including ground lease), covenant, conditional sale agreement, title retentionagreement, option, pledge, security interest, right of first refusal or restriction of any kind,including any restriction on use, voting, transfer, receipt of income or exercise of any otherattribute of ownership.
 
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“Entity” shall mean any corporation (including any non-profit corporation), generalpartnership, limited partnership, limited liability partnership, joint venture, estate, trust,cooperative, foundation, society, political party, union, company (including any limited liabilitycompany or joint stock company), firm or other enterprise, association, organization or entity.“Environmental Law” shall mean any federal, state or local statute, law, rule,regulation, ordinance, code, binding policy or rule of common law in effect and in each case asamended, and any judicial or administrative Order relating to the protection of the environment,health or safety, or the release or disposal of Hazardous Materials, including without limitationthe Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §9601*et seq.*; the Resource Conservation and Recovery Act, 42 U.S.C. §9601 *et seq.*; the Federal WaterPollution Control Act, 33 U.S.C. §1251 *et seq.*; the Toxic Substances Control Act, 15 U.S.C. §2601*et seq.*; the Clean Air Act, 42 U.S.C. §7401 *et seq.*; the Safe Drinking Water Act, 42 U.S.C. §300f*et seq.*; the Oil Pollution Act of 1990, 33 U.S.C. §2701 *et seq.*; and their state and localcounterparts and equivalents.“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.“ERISA Affiliate” shall mean any Person that is, was or would be treated as a singleemployer with Company under Section 414 of the Code.“Escrow Agent” shall have the meaning given in Section 1.7(a) of thisAgreement.“Escrow Agreement” shall have the meaning given in Section 1.7(a) of thisAgreement.“Exhibit” or “Exhibits” shall mean the exhibit(s), the form of which isattached to this Agreement and incorporated in the Agreement by reference.“Financial Statements” shall have the meaning given in Section 2.5.1 of thisAgreement.“Former ESOP” shall have the meaning given in Section 2.19.8 of thisAgreement.“GAAP” shall mean United States generally accepted accounting principles, applied on abasis consistent with the basis on which the Financial Statements were prepared.“General Releases” shall have the meaning given in Section 8.10 of thisAgreement.“Governmental Authorization” shall mean any:(a) Permit, license, certificate, franchise, concession, approval, consent, ratification,permission, clearance, confirmation, endorsement, waiver, certification, designation, rating,registration, qualification, or authorization that is issued, granted, given or otherwise madeavailable by or under the authority of any Governmental Body or pursuant to any Legal Requirement;or(b) Right under any Contract with any Governmental Body.
 
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“Governmental Body” shall mean any:(a) Nation, principality, state, commonwealth, province, territory, city, county,municipality, district or other jurisdiction of any nature;(b) Federal, state, local, municipal, foreign or other government;(c) Governmental or quasi-governmental authority of any nature (including any governmentaldivision, subdivision, department, agency, bureau, branch, office, commission, council, board,instrumentality, officer, official, representative, organization, unit, body or Entity and anycourt or other tribunal);(d) Multi-national organization or body; or(e) Individual, Entity or body exercising, or entitled to exercise, any executive,legislative, judicial, administrative, regulatory, police, military or taxing authority or power ofany nature.“Hazardous Materials” shall mean (i) any hazardous substance, pollutant, contaminant,flammable, explosive, radioactive material, hazardous, toxic or dangerous wastes, and any otherchemicals, materials or substances which are identified, defined, or regulated pursuant to anyEnvironmental Laws, or the release, discharge or exposure to which is prohibited, limited orregulated by any Governmental Body under Environmental Laws and (ii) any petroleum or petroleumderivative or product or by product, waste oil, used oil, asbestos in any form, urea formaldehyde,and transformers or other equipment or any fluids that contain polychlorinated biphenyls.“Indemnification Holdback Amount” shall have the meaning given in Section1.7(a) of this Agreement.“Indemnified Party” shall have the meaning given in Section 11.4.1 of thisAgreement.“Indemnifying Party” shall have the meaning given in Section 11.4.1 of thisAgreement.“Initial Consideration” shall have the meaning given in Section 1.6 of thisAgreement.“Inspections” shall have the meaning given in Section 6 of this Agreement.“Interim Financial Statements” shall have the meaning given in Section 2.5.1of this Agreement.“Inventories” shall have the meaning given in Section 2.12.1 of thisAgreement.“IRS” shall mean the United States Internal Revenue Service.“IRS Payable” shall mean the deferred Tax Liability of Company to the IRS identifiedin Schedule 2.14.“IRS Receivable” shall mean the account receivable of Company from the IRS identifiedin Schedule 2.10.“Knowledge” of a Person shall mean (i) the actual knowledge of such Person, and (ii)the knowledge of such Person after making such due inquiry regarding the fact or other matter inquestion as a prudent businessperson would be expected to make in the management of his or herbusiness affairs, including but not limited to due inquiry of those officers, directors and keyemployees who could be reasonably expected to have actual knowledge and professional advisors(including attorneys, accountants and consultants) of Company who reasonably could be expected to have knowledge of the matter inquestion.
 
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“Leased Properties” shall have the meaning given in Section 2.8.1 of thisAgreement.“Leases” shall have the meaning given in Section 2.8.10 of this Agreement.“Legal Opinion” shall have the meaning given in Section 8.13 of thisAgreement.“Legal Requirement” shall mean any federal, state, local, municipal, foreign or otherlaw, statute, legislation, constitution, principle of common law, ordinance, code, Order, edict,decree, treaty, convention, rule, regulation, ruling, directive, requirement, determination ordecision of any Governmental Body.“Lender” shall mean RZB Finance LLC, a Delaware limited liability company, or anysuccessor or replacement lender selected by Buyer in its sole discretion.“Lender Consent” shall have the meaning given in Section 8.19 of thisAgreement.“Liability” shall mean any debt, obligation, duty or liability of any nature includingany unknown, undisclosed, unmatured, unaccrued, unasserted, contingent, indirect, conditional,implied, vicarious, derivative, joint, several or secondary liability, regardless of whether suchdebt, obligation, duty or liability would be required to be disclosed on a balance sheet preparedin accordance with GAAP and regardless of whether such debt, obligation, duty or liability isimmediately due and payable.“Losses” shall have the meaning given in Section 11.1 of this Agreement.“Merger Sub” shall have the meaning given in the heading of this Agreement.“Multiemployer Plan” shall have the meaning given in Section 2.19.2 of thisAgreement.“Net Income” shall mean net income as determined in accordance with GAAP.“Norfolk Southern” shall mean Norfolk Southern Railway Company, a Virginiacorporation.“Norfolk Southern Holdback Amount” shall have the meaning given in Section1.7(b) of this Agreement.“Norfolk Southern Lease” shall mean that certain Lease, dated January 1, 2003, by andbetween Norfolk Southern and Company.“Norfolk Southern Letter” shall mean that certain letter, dated May 29, 2007, fromWilliam A. Gorby of Norfolk Southern to Principal.“Norfolk Southern Properties” shall mean those properties leased by Norfolk Southernto Company pursuant to the Norfolk Southern Lease and those additional properties generallyreferenced in the Norfolk Southern Letter.
 
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“Order” shall mean any:(a) Order, judgment, injunction, edict, decree, ruling, pronouncement, determination,decision, opinion, verdict, sentence, subpoena, writ or award that is issued, made, entered,rendered or otherwise put into effect by or under the authority of any court, administrative agencyor other Governmental Body or any arbitrator or arbitration panel; or(b) Contract or consent agreement, decree or order with any Governmental Body that is enteredinto in connection with any Proceeding.“Ordinary Course of Business” shall have the following meaning: An action taken by oron behalf of Company shall be deemed to have been taken in the Ordinary Course of Business if:(a) Such action is consistent with Company’s past practices and is taken in the ordinarycourse of Company’s normal operations; and(b) Such action is not required to be authorized by Company’s shareholders, Company’s Board ofDirectors or any committee of Company’s Board of Directors and does not require any other separateor special authorization of any nature.“OSHA Claims” shall have the meaning given in Section 1.8(a) of thisAgreement.“Owned Properties” shall have the meaning given in Section 2.8.1 of thisAgreement.“Past Benefit Plan” shall mean any Employee Benefit Plan (other than a Current BenefitPlan):(a) Of which Company or any ERISA Affiliate has ever been a “plan sponsor” (as defined inSection 3(6)(B) of ERISA) or that otherwise has at any time been established, adopted, maintainedor sponsored by Company or by any ERISA Affiliate;(b) In which Company or any ERISA Affiliate has ever participated;(c) With respect to which Company or any ERISA Affiliate has ever made, or has ever beenrequired or permitted to make, any contribution; or(d) With respect to which Company or any ERISA Affiliate has ever been subject to anyLiability.“PBGC” shall have the meaning given in Section 2.19.2 of this Agreement.“Person” shall mean any individual, Entity or Governmental Body.“Principal” shall have the meaning given in the heading of this Agreement.“Proceeding” shall mean any action, suit, litigation, arbitration, proceeding(including any civil, criminal, administrative, investigative or appellate proceeding and anyinformal proceeding), prosecution, contest, hearing, inquiry, inquest, audit, examination orinvestigation, commenced, brought, conducted or heard by or before, or otherwise has involved, anyGovernmental Body or any arbitrator or arbitration panel.“Prohibited Transaction” shall have the meaning given in Section 2.19.11 ofthis Agreement.
 
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“Proprietary Asset” shall mean any patent, patent application, trademark (whetherregistered or unregistered and whether or not relating to a published work), trademark application,trade name, fictitious business name, service mark (whether registered or unregistered), servicemark application, copyright (whether registered or unregistered), copyright application, domainname, trade secret, internet domain name, website, know how, franchise, system, computer software,invention, design, blueprint, proprietary product, technology, customer list, proprietary right orother intellectual property right or intangible asset.“Real Properties” shall have the meaning given in Section 2.8.1 of thisAgreement.“Related Party” shall be deemed to be each of the following:(a) The Sellers, the settlors and beneficiaries of the Shareholders, and each member of thefamily of any such individual;(b) Each individual who is, or who has at any time been, a director and/or an officer ofCompany and each member of the family of any such individual; and(c) Any Entity (other than Company) in which any one of the Persons referred to in clauses (a)or (b) above holds (or in which more than one of such individuals collectively hold), beneficiallyor otherwise, a material voting, proprietary or equity interest.“Representatives” shall mean officers, directors, employees, attorneys, accountants,advisors and representatives.“Schedule” or “Schedules” shall mean the schedule(s), dated as of the date ofthe Agreement, delivered to Buyer on behalf of Company and the Sellers, a copy of which is attachedto the Agreement and incorporated in the Agreement by reference.“Seller” or “Sellers” shall mean, individually or collectively, as the casemay be, each of the Shareholders and Principal.“Seller Losses” shall have the meaning given in Section 11.3 of thisAgreement.“Shareholders” shall have the meaning given in the heading of this Agreement.“Shareholders’ Agent” shall have the meaning given in Section 15 of thisAgreement.“Shares” shall have the meaning given in Section 1.5(a) of this Agreement.“Stock Rights” shall have the meaning given in Section 3.1 of this Agreement.“Storage Tank System” shall mean any storage tank and its connected piping andaffiliated operational and detection equipment that may be located above, on or below the groundsurface, in whole or in part, including without limitation any “underground storage tank,” “aboveground storage tank,” “UST,” “AST,” or “UST System” as those terms are defined or used in anyEnvironmental Law or other Legal Requirement.“Surviving Corporation” shall have the meaning given in Section 1.1 of thisAgreement.
 
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“Taxes” shall mean any taxes (including but not limited to any income tax, franchisetax, capital gains tax, estimated tax, gross receipts tax, value added tax, surtax, excise tax, advalorem tax, transfer tax, stamp tax, sales tax, use tax, property tax, business tax, occupationtax, inventory tax, occupancy tax, withholding tax or payroll tax), levy, assessment, tariff,impost, imposition, toll, duty (including any customs duty), deficiency or fee, fine, penalty orinterest and any other related charge or amount, (a) imposed, assessed or collected by or under theauthority of any Governmental Body, or (b) payable pursuant to any tax sharing agreement or similarContract.“Tax Return” shall mean any return (including any information return), report,statement, declaration, estimate, schedule, notice, notification, form, election, certificate orother document or information that is, has been or may in the future be filed with or submitted to,or required to be filed with or submitted to, any Governmental Body in connection with thedetermination, assessment, collection or payment of any Tax or in connection with theadministration, implementation or enforcement of or compliance with any Legal Requirement relatingto any Tax required to be filed by or on behalf of Company with any Governmental Body with respectto any taxable period ending on or before the Closing Date.“Total Consideration” shall have the meaning given in Section 1.6 of thisAgreement.“VSCA” shall have the meaning given in the recitals to this Agreement.“Welfare Benefit Plan” shall have the meaning given in Section 2.19.9 of thisAgreement.“Working Capital” shall have the meaning given in Section 1.8(a) of thisAgreement.18. Termination.18.1 This Agreement may be terminated at any time prior to the Closing Date:18.1.1 By the written agreement of Buyer and Company;18.1.2 By either Buyer or Company by written notice to the other parties if the transactionscontemplated hereby shall not have been consummated pursuant hereto by 5:00 p.m. Central Time onAugust 31, 2007, unless such date shall be extended by the mutual written consent of Buyer andCompany, provided that no party may give such notice if its breach of this Agreement has precludedthe consummation of this Agreement;18.1.3 By Buyer by written notice to the other parties if (i) the representations andwarranties of Company and the Sellers shall not have been true and correct in all respects (in thecase of a representation or warranty containing a materiality qualification) or in all materialrespects (in the case of a representation or warranty not containing a materiality qualification)as of the date when made, or (ii) any of the conditions set forth in Section 8 shall nothave been, or if it becomes apparent that any of such conditions will not be, fulfilled by 5:00p.m. Central Time on August 31, 2007, unless such failure shall be due to the failure of Buyer toperform or comply with any of the covenants, agreements or conditions hereof to be performed orcomplied with by it prior to the Closing.18.2 In the event of the termination of this Agreement pursuant to Section 18.1, thisAgreement shall become void, without any liability to any party in respect hereof or of thetransactions contemplated hereby on the part of any party hereto, or any of its agents,consultants, Representatives, stockholders or Affiliates, except for any liability resulting fromsuch party’s breach of this Agreement and except for the provisions of Section 16.4.
 
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19. Miscellaneous.19.1 Waivers. Neither the failure nor any delay on the part of either party toexercise any right, remedy, power or privilege under this Agreement shall operate as a waiverthereof, nor shall any single or partial exercise of any right, remedy, power or privilege precludeany other or further exercise of the same or of any other right, remedy, power or privilege, norshall any waiver of any right, remedy, power or privilege with respect to any occurrence beconstrued as a waiver of such right, remedy, power or privilege with respect to any otheroccurrence. No waiver shall be effective unless it is in writing and is signed by the partyasserted to have granted such waiver.19.2 Controlling Law. This Agreement is to be construed in accordance with andgoverned by the internal laws of the Commonwealth of Virginia without giving effect to any choiceof law rule that would cause the application of the laws of any jurisdiction other than theinternal laws of the State of Delaware to the rights and duties of the parties.19.3 Notices. All notices, requests, demands and other communications required orpermitted under this Agreement shall be in writing and shall be deemed to have been duly given,made and received only (i) when personally delivered, or (ii) on the day specified for deliverywhen deposited with a courier service for delivery to the intended addressee, or (iii) three (3)business days following the day when deposited in the United States mail, registered or certifiedmail, postage prepaid, return receipt requested, addressed as set forth below: (a) If to Buyer or Merger Sub:Rio Vista Energy Partners L.P.