Exhibit
10.59


 


EXECUTION
COPY


 


ASSET
PURCHASE AGREEMENT


 


BY AND
AMONG


 


TW
CYLINDERS LLC,


 


TAYLOR-WHARTON
INTERNATIONAL LLC

(as to Sections 2.6, 3.1(b), 3.2(b), 3.3, 5.8, 5.18, and ARTICLE IX)


 


AND


 


NORRIS
CYLINDER COMPANY


 


 


DATED AS
OF


 


APRIL 30,
2010


 

















 


TABLE OF
CONTENTS


 


	
  ARTICLE
  I. DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.1

  	
  Certain Defined Terms.

  	
  1

  
	
   

  	
  1.2

  	
  Other Defined Terms.

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  II. PURCHASE AND SALE

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  Purchase and Sale of
  the Sold Assets.

  	
  11

  
	
   

  	
  2.2

  	
  Excluded Assets.

  	
  13

  
	
   

  	
  2.3

  	
  Assumption of Liabilities.

  	
  14

  
	
   

  	
  2.4

  	
  Purchase Price.

  	
  17

  
	
   

  	
  2.5

  	
  Net Working Capital.

  	
  18

  
	
   

  	
  2.6

  	
  Escrow.

  	
  20

  
	
   

  	
  2.7

  	
  Allocation of Total
  Consideration.

  	
  21

  
	
   

  	
  2.8

  	
  The Closing.

  	
  21

  
	
   

  	
  2.9

  	
  Deliveries at the
  Closing.

  	
  22

  
	
   

  	
  2.10

  	
  Further Assurances.

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  III. REPRESENTATIONS AND WARRANTIES OF THE SELLER

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Organization.

  	
  27

  
	
   

  	
  3.2

  	
  Authorization;
  Enforceability.

  	
  27

  
	
   

  	
  3.3

  	
  Membership Interests.

  	
  27

  
	
   

  	
  3.4

  	
  Financial Statements;
  Accounting Controls and Procedures.

  	
  28

  
	
   

  	
  3.5

  	
  No Approvals or
  Conflicts.

  	
  29

  
	
   

  	
  3.6

  	
  Compliance with Law;
  Permits.

  	
  29

  
	
   

  	
  3.7

  	
  Proceedings.

  	
  30

  
	
   

  	
  3.8

  	
  Tax Matters.

  	
  30

  
	
   

  	
  3.9

  	
  Employee Benefits.

  	
  31

  
	
   

  	
  3.10

  	
  Labor
  Relations.

  	
  31

  
	
   

  	
  3.11

  	
  Intellectual
  Property.

  	
  32

  
	
   

  	
  3.12

  	
  Contracts.

  	
  33

  
	
   

  	
  3.13

  	
  Environmental
  Matters.

  	
  35

  
	
   

  	
  3.14

  	
  Personal
  Property Assets.

  	
  36

  
	
   

  	
  3.15

  	
  Seller
  Owned Real Property.

  	
  36

  
	
   

  	
  3.16

  	
  No
  Brokers’ or Other Fees.

  	
  37

  
	
   

  	
  3.17

  	
  Undisclosed
  Liabilities.

  	
  37

  
	
   

  	
  3.18

  	
  Customers
  and Suppliers.

  	
  38

  
	
   

  	
  3.19

  	
  Product
  and Services Liability.

  	
  38

  
	
   

  	
  3.20

  	
  Acquired
  Inventory.

  	
  39

  
	
   

  	
  3.21

  	
  Accounts
  Receivable.

  	
  40

  
	
   

  	
  3.22

  	
  Acquisitions
  and Divestitures.

  	
  40

  
	
   

  	
  3.23

  	
  Certain
  Business Relationships with the Seller.

  	
  40

  



 


i

















 


	
   

  	
  3.24

  	
  Employees;
  Employment Matters.

  	
  41

  
	
   

  	
  3.25

  	
  Sufficiency
  of Sold Assets.

  	
  41

  
	
   

  	
  3.26

  	
  Absence of Changes.

  	
  41

  
	
   

  	
  3.27

  	
  Capital Expenditures.

  	
  42

  
	
   

  	
  3.28

  	
  Disclosure.

  	
  42

  
	
   

  	
  3.29

  	
  No
  Other Representations or Warranties.

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IV. REPRESENTATIONS AND WARRANTIES OF THE BUYER

  	
  43

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  Organization.

  	
  43

  
	
   

  	
  4.2

  	
  Authorization;
  Enforceability.

  	
  44

  
	
   

  	
  4.3

  	
  No
  Approvals or Conflicts.

  	
  44

  
	
   

  	
  4.4

  	
  Proceedings.

  	
  44

  
	
   

  	
  4.5

  	
  Compliance
  with Laws; Permits.

  	
  44

  
	
   

  	
  4.6

  	
  Financing.

  	
  45

  
	
   

  	
  4.7

  	
  No
  Brokers’ or Other Fees.

  	
  45

  
	
   

  	
  4.8

  	
  Condition of the
  Business.

  	
  45

  
	
   

  	
  4.9

  	
  Solvency.

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  V. COVENANTS AND AGREEMENTS

  	
  46

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Conduct
  of Business Prior to the Closing.

  	
  46

  
	
   

  	
  5.2

  	
  Access
  to Books and Records; Cooperation.

  	
  47

  
	
   

  	
  5.3

  	
  Tax
  Matters: Cooperation; Preparation and Filing of Tax Returns; Transfer Taxes
  and other Tax Matters.

  	
  49

  
	
   

  	
  5.4

  	
  Treatment
  of Payments.

  	
  52

  
	
   

  	
  5.5

  	
  Employees;
  Employment Matters.

  	
  52

  
	
   

  	
  5.6

  	
  Labor
  Matters.

  	
  53

  
	
   

  	
  5.7

  	
  Contact
  With Customers and Suppliers.

  	
  53

  
	
   

  	
  5.8

  	
  Non-Solicitation
  by Buyer and its Affiliates.

  	
  53

  
	
   

  	
  5.9

  	
  Corporate
  Names.

  	
  53

  
	
   

  	
  5.10

  	
  Further
  Actions.

  	
  54

  
	
   

  	
  5.11

  	
  Elimination
  of Debt Obligations.

  	
  55

  
	
   

  	
  5.12

  	
  Bulk Transfer Laws.

  	
  55

  
	
   

  	
  5.13

  	
  Confidentiality.

  	
  55

  
	
   

  	
  5.14

  	
  No
  Exclusivity.

  	
  56

  
	
   

  	
  5.15

  	
  Non-Solicitation and
  Non-Competition by Seller and its Affiliates.

  	
  56

  
	
   

  	
  5.16

  	
  Bankruptcy Conditions.

  	
  57

  
	
   

  	
  5.17

  	
  Advice of Changes.

  	
  59

  
	
   

  	
  5.18

  	
  Contracts Related to
  the Huntsville Business Held by TW International.

  	
  60

  
	
   

  	
  5.19

  	
  Servicing Warranty
  Claims.

  	
  60

  
	
   

  	
  5.20

  	
  Harrisburg Assets.

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI. CONDITIONS TO THE SELLER’S OBLIGATIONS

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
  Representations
  and Warranties.

  	
  61

  
	
   

  	
  6.2

  	
  Performance.

  	
  61

  



 


ii

















 


	
   

  	
  6.3

  	
  Governmental
  Orders.

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VII. CONDITIONS TO THE BUYER’S OBLIGATIONS

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.1

  	
  Representations
  and Warranties.

  	
  62

  
	
   

  	
  7.2

  	
  Performance.

  	
  62

  
	
   

  	
  7.3

  	
  Governmental
  Orders.

  	
  62

  
	
   

  	
  7.4

  	
  Plan not Effective.

  	
  62

  
	
   

  	
  7.5

  	
  Key Employee.

  	
  62

  
	
   

  	
  7.6

  	
  No Material Adverse
  Effect.

  	
  62

  
	
   

  	
  7.7

  	
  Assumption and
  Assignment of Sold Contracts.

  	
  63

  
	
   

  	
  7.8

  	
  Approval of the
  Break-up Fee and Expense Reimbursement.

  	
  63

  
	
   

  	
  7.9

  	
  Satisfaction
  with Certain Due Diligence Items.

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII. TERMINATION

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  Termination.

  	
  63

  
	
   

  	
  8.2

  	
  Procedure
  and Effect of Termination.

  	
  64

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IX. INDEMNIFICATION

  	
  65

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
  Indemnification
  by the Seller.

  	
  65

  
	
   

  	
  9.2

  	
  Indemnification
  by the Buyer.

  	
  66

  
	
   

  	
  9.3

  	
  Exclusive
  Remedy.

  	
  67

  
	
   

  	
  9.4

  	
  Indemnification
  Calculations.

  	
  67

  
	
   

  	
  9.5

  	
  Survival.

  	
  68

  
	
   

  	
  9.6

  	
  Notice
  and Opportunity to Defend.

  	
  68

  
	
   

  	
  9.7

  	
  Additional
  Limitations.

  	
  69

  
	
   

  	
  9.8

  	
  Subrogation.

  	
  69

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  X. MISCELLANEOUS

  	
  70

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.1

  	
  Fees
  and Expenses.

  	
  70

  
	
   

  	
  10.2

  	
  Governing
  Law; Jurisdiction.

  	
  70

  
	
   

  	
  10.3

  	
  Certain
  Interpretive Matters.

  	
  70

  
	
   

  	
  10.4

  	
  Amendment.

  	
  71

  
	
   

  	
  10.5

  	
  Assignment.

  	
  72

  
	
   

  	
  10.6

  	
  Waiver.

  	
  72

  
	
   

  	
  10.7

  	
  Notices.

  	
  72

  
	
   

  	
  10.8

  	
  Complete
  Agreement.

  	
  74

  
	
   

  	
  10.9

  	
  Counterparts.

  	
  74

  
	
   

  	
  10.10

  	
  Publicity.

  	
  74

  
	
   

  	
  10.11

  	
  Severability.

  	
  74

  
	
   

  	
  10.12

  	
  Third
  Parties.

  	
  75

  
	
   

  	
  10.13

  	
  Non-Recourse.

  	
  75

  
	
   

  	
  10.14

  	
  No
  Successor Liability.

  	
  75

  



 


iii

















 


SCHEDULES


 


	
  Schedule 1.1—1

  	
  TWI Loan Documents

  
	
  Schedule 1.1—2

  	
  Reference Working
  Capital Calculation

  
	
  Schedule 1.1-3

  	
  Harrisburg Assets

  
	
  Schedule 2.1(a)

  	
  Acquired Equipment - Huntsville

  
	
  Schedule 2.1(b)(ii)

  	
  Consigned Inventory

  
	
  Schedule 2.1(c)

  	
  Sold Contracts

  
	
  Schedule 2.1(e)

  	
  Acquired Intellectual Property

  
	
  Schedule 2.1(f)

  	
  Seller Owned Real Property

  
	
  Schedule 2.1(g)

  	
  Motor Vehicles

  
	
  Schedule 2.2(c)

  	
  Excluded Contracts

  
	
  Schedule 2.9(a)(x)

  	
  Material Closing
  Condition Consents

  
	
  Schedule 3.4

  	
  Financial Statements
  and Interim Financial Statements

  
	
  Schedule 3.5

  	
  No Approvals or
  Conflicts

  
	
  Schedule 3.6(i)

  	
  Compliance with Law

  
	
  Schedule 3.6(ii)

  	
  Permits

  
	
  Schedule 3.7

  	
  Proceedings

  
	
  Schedule 3.8

  	
  Tax Matters

  
	
  Schedule 3.9

  	
  Benefit Plans

  
	
  Schedule 3.10

  	
  Labor Relations

  
	
  Schedule 3.11

  	
  Information Regarding
  Acquired Intellectual Property

  
	
  Schedule 3.12(a)

  	
  Material Contracts

  
	
  Schedule 3.12(c)

  	
  Material Contracts not
  in Full Force and Effect

  
	
  Schedule 3.13

  	
  Environmental Reports;
  Environmental Matters

  
	
  Schedule 3.14

  	
  Personal Property
  Assets

  
	
  Schedule 3.15

  	
  Information Regarding
  Seller Owned Real Property

  
	
  Schedule 3.15(b)

  	
  Proceedings Affecting
  Seller Owned Real Property

  
	
  Schedule 3.17

  	
  Undisclosed Liabilities

  
	
  Schedule 3.18

  	
  Customers and Suppliers

  
	
  Schedule 3.19(a)

  	
  Product and Services
  Liability

  
	
  Schedule 3.19(b)

  	
  Product Liability
  Claims

  
	
  Schedule 3.19(c)

  	
  Rebate Obligations

  
	
  Schedule 3.19(d)

  	
  No Pending Litigation

  
	
  Schedule 3.20

  	
  Consigned Inventory

  
	
  Schedule 3.21(a)

  	
  Acquired Accounts
  Receivable

  
	
  Schedule 3.23

  	
  Related Party
  Transactions

  
	
  Schedule 3.24(a)

  	
  Compliance with Laws
  Related to Employees and Employment Matters

  
	
  Schedule 3.24(b)

  	
  WARN Act

  
	
  Schedule 3.26

  	
  Absence of Changes

  
	
  Schedule 3.27

  	
  Conditions of Sold
  Assets

  
	
  Schedule 5.1

  	
  Exceptions to Covenants
  Regarding Conduct of Business Prior to the Closing

  
	
  Schedule 5.3(h)

  	
  Jurisdictions where
  Seller files Tax Returns

  
	
  Schedule 5.5(a)(i)

  	
  Certain Huntsville
  Employees

  
	
  Schedule 5.5(a)(ii)

  	
  Certain Designated
  Employees of the Seller

  
	
  Schedule 5.6

  	
  Labor Matters

  



 


iv

















 


EXHIBITS


 


	
  A

  	
  Transition Services
  Agreement

  
	
  B

  	
  Products

  
	
  1.1-A

  	
  Agreed Principles

  
	
  2.6

  	
  Escrow Agreement

  
	
  2.9(a)(ii)

  	
  Bill of Sale

  
	
  2.9(a)(iii)

  	
  Assignment and
  Assumption Agreement

  
	
  2.9(a)(xiv)

  	
  Amendment to Sherwood
  Supply Agreement

  
	
  3.13

  	
  Buyer’s Phase I
  Environmental Site Assessment 

  
	
  5.2(d)

  	
  Scope of Phase II
  Review 

  
	
  5.2(e)

  	
  Insurance Requirements

  
	
  5.16(a)(i)

  	
  Bidding Procedures

  
	
  5.16(a)(iii)

  	
  Sale Order

  
	
   

  	
   

  



 


v

















 


ASSET
PURCHASE AGREEMENT


 


This ASSET  PURCHASE
AGREEMENT (this “Agreement”), dated as of April 30, 2010, is by and
among TW CYLINDERS LLC, a
Delaware limited liability company (the “Seller”), TAYLOR-WHARTON
INTERNATIONAL LLC, a Delaware limited liability company (“TW International”)
(as to Sections 2.6, 3.1(b), 3.2(b), 3.3, 5.8, 5.18 and ARTICLE IX), and NORRIS CYLINDER COMPANY, a Delaware
corporation (the “Buyer”).


 


RECITALS


 


WHEREAS, the Seller is
engaged in the business of, among other
things, the engineering, design, manufacture, marketing and sale of high
and low pressure cylinders  (the “Business”);
and


 


WHEREAS, the Seller
desires to sell, and the Buyer desires to purchase, (i) substantially all
of the assets of the Seller that relate to the Huntsville Business (as defined
below) and (ii) the Harrisburg Assets (as defined below), on the terms and
subject to the conditions set forth in this Agreement; and


 


WHEREAS, on November 18,
2009 Seller and certain of its Affiliates (as defined below) filed for
protection under the Bankruptcy Code (as defined below) in the Bankruptcy Court
(as defined below); and


 


WHEREAS, on December 4,
2009, Seller and certain of its Affiliates filed their Joint Plan of
Reorganization dated as of December 4, 2009 (the “Plan”), which in
furtherance of such Plan provides for the sale of the Business; and


 


WHEREAS, the Seller and
the Buyer desire, unless the Effective Date of the Plan (as defined below)
occurs before the Closing, to effect the transactions contemplated by this
Agreement in the manner and subject to the terms and conditions set forth in
this Agreement and, the Sale Order (as defined below) and in accordance with
Sections 105, 363, 365 and 1146 of the Bankruptcy Code (as defined below).


 


NOW, THEREFORE, in
consideration of the premises and the representations, warranties, covenants
and agreements contained in this Agreement and intending to be legally bound
hereby, the parties hereto hereby agree as follows:


 


ARTICLE
I.

DEFINITIONS


 


1.1                                 Certain Defined Terms.


 


As used in this Agreement,
the following terms shall have the following meanings:


 


“Affiliate” shall
mean, with respect to any specified Person, any other Person that directly, or
indirectly through one or more intermediaries, Controls, is Controlled by, or
is under common Control with, such specified Person.


 


1

















 


“Agreed Principles”
means GAAP except that the value of inventory is determined in accordance with
the provisions of Exhibit 1.1-A.


 


“Ancillary Agreements”
shall mean (a) with respect to the Sold Assets, such Deeds, bills of sale,
endorsements, assignments, affidavits and other instruments of sale,
conveyance, transfer and assignment from the Seller, in form and substance
reasonably satisfactory to the Seller and the Buyer, as shall be necessary
under Law or contemplated by this Agreement in order to transfer to the Buyer
all right, title and interest in and to the Sold Assets in accordance with the
terms hereof, (b) with respect to the Assumed Liabilities, such
instruments of assumption, in form and substance reasonably satisfactory to the
Seller and the Buyer, as shall be necessary under Law or contemplated by this
Agreement in order for the Assumed Liabilities to be effectively assumed by the
Buyer and (c) the Transition Services Agreement.


 


“Aviation Recall”
means the matter described in Schedule 3.19(b).


 


“Avoidance Actions”
means any and all actions which a trustee or debtor-in-possession or other
appropriate party in interest may assert under applicable state statutes or
Chapter 5 of the Bankruptcy Code, including actions under one or more
provisions of Sections 542, 543, 544, 545, 546, 547, 548, 549, 550, 551 and 553
of the Bankruptcy Code.


 


“Bankruptcy Case”
means the Jointly Administered bankruptcy case of Taylor-Wharton International
LLC and its affiliated debtors, Case No. 09-14089 (BLS), pending in the
United States Bankruptcy Court for the District of Delaware.


 


“Bankruptcy
Code” shall mean Title 11 of the United States Code, as amended.


 


“Bankruptcy
Court” shall mean the United States Bankruptcy Court for the District of
Delaware.


 


“Business Day”
shall mean any day that is not a Saturday, a Sunday or any other day on which
banks are required or authorized by Law to be closed in the city of New York,
New York, United States.


 


“Business Real
Property” shall mean, collectively, the Seller Leased Real Property and the
Seller Owned Real Property.


 


“Cash” shall mean
the sum of cash and cash equivalents, plus all uncollected bank deposits and
less all outstanding checks and other draws and drafts (including overdrafts)
as of the applicable measurement date (it being understood that “Cash” can be a
negative number).


 


“Change of Control
Payments” shall mean any payment in the nature of compensation that becomes
payable to any Person by the Seller or any of its Affiliates as a result of, or
in connection with, the transactions contemplated by this Agreement, including
stay bonuses, sale or transaction bonuses, or similar change of control
payments.


 


“COBRA” means the
requirements of Code Section 4980B and Part 6 of Subtitle B of Title
I of ERISA and any similar state law legal requirement.


 


2

















 


“Code” shall mean
the Internal Revenue Code of 1986, as amended.


 


“Competition/Foreign
Investment Law” shall mean any Law that prohibits, restricts or regulates (a) foreign
investment or (b) antitrust, monopolization, restraint of trade or
competition.


 


“Confidentiality
Agreement” shall mean the confidentiality agreement executed by TriMas Corporation
and Taylor-Wharton International LLC dated February 5, 2009, as amended by
that certain amendment to add Windpoint as a party thereto effective March 15,
2010.


 


“Control”
(including the terms “controlled by” and “under common control with”), with respect
to the relationship between or among two or more Persons, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the affairs or management of a Person, whether through the
ownership of voting securities, by contract or otherwise, including the
ownership, directly or indirectly, of securities having the power to elect a
majority of the board of directors or similar body governing the affairs of
such Person.


 


“Debt Obligations”
shall mean, with respect to any Person as of any date without duplication, (a) all
indebtedness of such Person for borrowed money, whether or not current,
short-term or long-term, secured or unsecured, (b) all indebtedness of
such Person for the deferred purchase price of property or services, including
obligations represented by a note, earnout or contingent purchase payment
agreement, (c) all indebtedness of such Person created or arising under
any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (d) all indebtedness of such
Person secured by a purchase money mortgage or other lien to secure all or part
of the purchase price of the property subject to such mortgage or lien, (e) all
lease obligations of such Person under leases that are capital leases in
accordance with GAAP, (f) all credit extended on behalf of such Person in respect
of banker’s acceptances and letters of credit (other than stand-by letters of
credit in support of ordinary course trade payables), (g) all liabilities
of such Person with respect to interest rate swaps, collars, caps and similar
hedging obligations, (h) any accrued and unpaid interest, fees and other
expenses on any of the foregoing, and (i) all indebtedness referred to in
clauses (a) through (h) above of any Person other than such Person
that is either guaranteed by, or secured by an Encumbrance upon any property
owned by, such Person.


 


“Deed” shall mean
the special or limited warranty deed with covenants against grantor’s acts
conveying the Seller Owned Real Property to the Buyer, subject only to
Permitted Encumbrances.


 


“Disclosure Schedules”
shall mean the schedules delivered by the Seller prior to or concurrently with
the execution and delivery of this Agreement.


 


3

















 


“Due Date” shall
mean the due date with respect to any applicable Tax Return (taking into
account valid extensions).


 


“Duty” shall mean
any stamp, transaction or registration, duty or similar charge imposed by any
Governmental Authority, including any interest, fine, penalty, charge or other
amount imposed in respect thereof.


 


“Effective Date of
the Plan” shall
mean the Effective Date (as defined in the Plan).


 


“Encumbrance”
shall mean any security interest, pledge, mortgage, lien, transfer restriction,
lease, charge, option, easement, claim or right of first refusal.


 


“Environment” shall
mean soil, surface water, groundwater, stream sediment, surface or subsurface
strata and ambient air.


 


“Environmental Claim”
shall mean any written notice, claim, demand, action, suit, complaint  or proceeding by any Person alleging any
actual or potential liability or violation under any Environmental Law.


 


“Environmental Laws”
shall mean all Laws relating to the protection of human health, the
environment, and/or regulating the use, presence, testing, storage, treatment,
generation, transportation, processing, handling, production, removal or
disposal of Hazardous Materials and the enforceable policies, decisions, orders
of federal, state and local governmental agencies and courts with respect
thereto, including the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. §9601 et seq., the Clean Air Act, 42 U.S.C. §401 et
seq., the Clean Water Act, 33 U.S.C. §1251 et seq., the Hazardous Materials
Transportation Act, 40 U.S.C. §1801 et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. §6901 et seq., and the Toxic Substances Control Act, 15
U.S.C. §2601 et seq., all as amended.


 


“ERISA” shall mean
the Employee Retirement Income Security Act of 1974, as amended, and the rules and
regulations promulgated thereunder.


 


“ERISA Affiliate”
shall mean any Person that,
together with the Seller, is or was at any time treated as a single employer
under Section 414 of the Code or Section 4001 of ERISA and any
general partnership of which the Seller is or has been a general partner.


 


“GAAP” shall mean
United States generally accepted accounting principles and practices.


 


“General
Enforceability Exceptions” shall mean the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
Laws relating to or affecting creditors’ rights generally and general equitable
principles (whether considered in a proceeding in equity or at Law).


 


4

















 


“Governmental
Authority” shall mean any government, agency, governmental department,
commission, board, bureau, court, arbitration panel or instrumentality of the
United States of America or any foreign government or any state, municipality
or other political subdivision in or of any of the foregoing (whether now or
hereafter constituted and/or existing) and any court, agency, instrumentality,
regulatory commission or other entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to the
federal government of the United States of America or any foreign government or
any state, municipality or other political subdivision in or of any of the
foregoing.


 


“Governmental Order”
shall mean any order, writ, injunction, decree, judgment, assessment or
arbitration award of a Governmental Authority.


 


“Harrisburg Assets”
shall mean all of the assets listed on Schedule 1.1-3.


 


“Harrisburg Holdback”
shall mean an amount equal to $375,000 which will be held and paid in
accordance with the provisions of Section 2.9(c).


 


“Hazardous Material”
shall mean, without limitation, any flammable material, radon, radioactive
materials, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, petroleum and petroleum-based materials, methane, pollutants,
hazardous materials, hazardous wastes, hazardous or toxic substances and any
other substances regulated under any Environmental Law.


 


“Huntsville Business”
means all of the business conducted at the Seller Owned Real Property and the
business of designing, manufacturing, repairing, selling and distributing the
Products as conducted by Seller anywhere in the world.


 


“Income Taxes”
shall mean (a) all Taxes based upon, measured by, or calculated with
respect to (i) net income or profits (including Texas margins tax,
Michigan business tax, Michigan single business tax and any capital gains or
minimum Tax, but not including any sales, use, real or personal property,
transfer or similar Taxes) or (ii) multiple bases (including, but not
limited to, corporate franchise or doing business) if one or more Taxes upon
which such Tax may be based, measured by or calculated with respect to, is
described in clause (a)(i) above; and (b) all U.S., state, local and
foreign franchise Taxes, including, in the case of each of clauses (a) and
(b), any related interest and penalties, additions to such Tax or additional
amounts imposed with respect thereto by any Governmental Authority.


 


“Intellectual Property”
shall mean any and all:  (a) inventions
(whether patentable or unpatentable and whether or not reduced to practice),
all improvements thereto, and all patents, patent applications and patent
invention disclosures, and all other rights of inventorship together with all
reissuances, continuations, continuations-in-part, divisions, revisions,
extensions and re-examinations thereof; (b) registered and unregistered
trademarks, trade names, trade dress, brand names, logos, slogans and Internet
domain names and their associated goodwill and all registrations thereof and
applications therefor; (c) copyrights and copyrightable works and all
other rights of authorship recognized by statute or otherwise (including
software, source code, object code, databases, schematics, flowcharts and
related items) and all 


 


5

















 


applications, registrations
and renewals in connection therewith; (d) trade secrets, ideas, processes,
formulae, compositions, technology, manufacturing and production processes and
techniques, technical data, engineering production and other designs,
engineering notebooks, industrial models, discoveries, know-how,
specifications, designs, plans, manuals, drawings, research, financial,
marketing and business data, pricing and cost information, business and
marketing plans, customer and supplier lists and information and all other
confidential or proprietary information; (e) rights to sue for and
remedies against past, present and future infringements of any or all of the
foregoing and rights of priority and protection of interests therein under the
Laws of any jurisdiction; (f) copies and tangible embodiments of all of
the foregoing; and (g) all other proprietary, intellectual property or
other rights relating to any of the foregoing.


 


“Knowledge of the
Buyer” shall mean the actual knowledge  of
the following individuals: Jerry Van Auken and Joshua Sherbin.  It is understood that any input by such
individuals under this Agreement is only in their capacities as employees or
officers (as applicable) of the Buyer and not in any personal capacity.


 


“Knowledge of the
Seller” shall mean the actual knowledge  of
the following individuals: Stuart Jara, Bill Corbin, Mike Camp, Mark Erb, Peter
Smith, Robert Gerkins and Leonard York. It is understood that any input by such
individuals under this Agreement is only in their capacities as employees or
officers (as applicable) of the Seller and/or TW International and not in any
personal capacity.


 


“Law” shall mean
any statute, law, ordinance,  regulation or rule of
any Governmental Authority and binding orders, judgments, decrees, common law
or any other provisions having the force or effect of law.


 


“Liabilities”
shall mean any debt, liability, obligation, deficiency, penalty, assessment,
fine, claim, cause of action or other loss (whether direct or indirect, absolute or contingent, accrued or unaccrued,
liquidated or unliquidated, asserted or unasserted, or due or to become due),
including all costs and expenses relating thereto.


 


“Material Adverse
Effect” shall mean any material adverse effect on the business, results of
operations, properties, assets, Liabilities, or financial condition of the
Huntsville Business, taken as a whole, but shall exclude any effect (a) resulting
from general economic conditions, (b) affecting companies in the gas
technologies industry generally, (c) resulting from the announcement or
performance of this Agreement or the transactions contemplated hereby, or (d) resulting
from any changes in applicable Laws or accounting rules.


 


“Membership Interests”
shall mean all of the membership interests of the Seller.


 


“Permits” shall
mean any permits, licenses, certificates, approvals
and authorizations of any Governmental Authority and any industry
certifications.


 


“Permitted
Encumbrances” shall mean (a) statutory Encumbrances for current Taxes
not yet due and payable, (b) Encumbrances in respect of property or assets
imposed by 


 


6

















 


Law that were incurred in
the ordinary course of business, such as carriers’, warehousemen’s, materialmen’s
and mechanics’ liens and other similar liens with respect to amounts which are
not yet due and owing, and (c) easements, restrictions, covenants or
similar matters relating to real property; provided that none of the foregoing described in clause (c) above
do or will, individually or in the aggregate, materially impair the value of
the property to which they relate or the continued use and operation thereof in
the Business as conducted by the Seller since December 7, 2007.


 


“Person” shall
mean any individual, partnership, firm, corporation, association, trust,
unincorporated organization, joint venture, limited liability company,
Governmental Authority or other entity.


 


“Pre-Closing Tax  Period” shall mean a taxable period (or portion of any
Straddle Period) that ends before the Closing Date.


 


“Proceeding” shall
mean any judicial, administrative or arbitral actions, suits or proceedings (public or private) by or before any
Governmental Authority or before any arbitrator, mediator or other alternative
dispute resolution provider pursuant to any collective bargaining agreement,
contractual agreement or Law, and including any audit or examination, or other
administrative or court proceeding with respect to Taxes or Tax Returns.


 


“Products” shall
mean any and all products manufactured at
the Seller Owned Real Property and all products listed on Exhibit B.


 


“Reference Working
Capital” shall mean $4,056,000,  as determined
pursuant to Schedule 1.1 —2.


 


“Release” shall
have the meaning provided in 42 U.S.C. Section 9601(22).


 


“Seller Leased Real
Property” shall mean the real property that is the subject of that certain
Lease Agreement, dated December 7, 2007, by and between Harsco Corporation
and TW International, as amended.


 


“Straddle Period”
shall mean any taxable period that includes but does not end on the Closing
Date.


 


“Subsidiary” shall
mean, with respect to any Person, any other Person 50% or more of the voting
equity of which is owned, directly or indirectly, by such first Person.


 


“Tax” or “Taxes”
shall mean all (a) taxes, charges, withholdings, fees, levies, imposts,
Duties and governmental fees or other like assessments or charges of any kind
whatsoever, whether computed on a separate or consolidated, unitary or combined
basis or in any other manner, whether disputed or not, imposed by any United
States federal, state, local or foreign or other Governmental Authority
(including those related to income, net income, gross income, receipts,
commercial activities, Texas margins tax, capital, windfall profit, severance,
property (real and personal), production, sales, goods and services, use,
business and occupation, 


 


7

















 


Michigan business tax,
Michigan single business tax, license, excise, registration, franchise,
employment, payroll (including social security contributions), deductions at
source, withholding, alternative or add-on minimum, intangibles, ad valorem,
transfer, gains, stamp, customs, duties, estimated, transaction, title,
capital, paid-up capital, profits, premium, value added, recording, inventory and
merchandise, business privilege, federal highway use, commercial rent or
environmental tax, and any liability under unclaimed property, escheat, or
similar Laws), (b) interest, penalties, fines, additions to tax or
additional amounts imposed by any Governmental Authority in connection with (i) any
item described in clause (a) or (ii) the failure to comply with any
requirement imposed with respect to any Tax Return, and (c) liability in
respect of any items described in clause (a) and/or (b) payable by reason
of contract (including any Tax Sharing Agreement), assumption, transferee,
successor or similar liability, operation of law (including pursuant to
Treasury Regulations Section 1.1502-6 (or any predecessor or successor
thereof or any analogous or similar state, local, or foreign Law)) and
including any obligation to indemnify or otherwise assume or succeed to the Tax
Liability of any other Person.


 


“Tax Return” shall
mean any return, declaration, form, report, claim, informational return
(including all Forms 1099) or statement required by any Governmental Authority
to be filed with respect to Taxes, including any schedule or attachment thereto
or amendment thereof.


 


“Tax Sharing Agreement”
shall mean any Tax indemnity agreement, Tax sharing agreement, Tax allocation
agreement or similar contract or arrangement, whether written or unwritten.


 


“Taxing Authority”
shall mean, with respect to any Tax or Tax Return, the Governmental Authority
that imposes such Tax or requires a Person
to file such Tax Return and the agency (if any) charged with the collection of
such Tax or the administration of such Tax Return, in each case, for such
Governmental Authority.


 


“Third Party Expenses”
shall mean all fees and expenses incurred by the Seller in connection with the
negotiation and effectuation of the terms and conditions of this Agreement and
the transactions contemplated hereby, including all legal, accounting,
financial advisory, consulting and all other fees and expenses of third parties
in connection therewith.


 


“Transition Services
Agreement” shall mean a transition services agreement, dated as of the
Closing Date, to be entered into by TW International and the Buyer,
substantially in the form of Exhibit A.


 


“Treasury Regulations”
shall mean the Treasury regulations promulgated under the Code, as such
Treasury Regulations may be amended from time to time.  Any reference herein to a particular
provision of the Treasury Regulations means, where appropriate, the
corresponding successor provision.


 


“TWI Holdings”
shall mean Taylor-Wharton Intermediate Holdings LLC, a Delaware limited
liability company.


 


8

















 


“TW International”
shall mean Taylor-Wharton International LLC, a Delaware limited liability
company.


 


“TWI Loan Documents”
shall mean the Credit Agreement, dated December 7, 2007, among the Seller,
TW International, TW Cryogenics LLC, Sherwood Valve LLC, American Welding &
Tank LLC, Structural Composites Industries LLC and General Electric Capital
Corporation, the agreements ancillary thereto to which the Seller is a party
and the other agreements listed on Schedule 1.1—1.


 


“United States” or
“U.S.” shall mean the United States of America.


 


1.2                                 Other Defined Terms.


 


The following terms shall
have the meanings defined for such terms in the Sections set forth below:


 


	
  Term

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  Acquired Accounts
  Receivable

  	
   

  	
  3.21(a)

  
	
  Acquired Intellectual
  Property

  	
   

  	
  2.1(e)

  
	
  Acquired Inventory

  	
   

  	
  2.1(b)

  
	
  Acquisition Transaction

  	
   

  	
  5.14

  
	
  Agreement

  	
   

  	
  Preamble

  
	
  Allocation Schedule

  	
   

  	
  2.6(a)

  
	
  Alternate Transaction

  	
   

  	
  5.16(b)(ii)

  
	
  Assumed Liabilities

  	
   

  	
  2.3(a)

  
	
  Auction

  	
   

  	
  5.16(b)(ii)

  
	
  Basket

  	
   

  	
  9.1

  
	
  Benefit Plans

  	
   

  	
  3.9

  
	
  Bidding Procedures

  	
   

  	
  5.16

  
	
  Break-Up Fee

  	
   

  	
  5.16

  
	
  Business

  	
   

  	
  Recitals

  
	
  Buyer

  	
   

  	
  Preamble

  
	
  Buyer Indemnified
  Persons

  	
   

  	
  9.1

  
	
  Cap

  	
   

  	
  9.1

  
	
  Claim Notice

  	
   

  	
  9.6(a)

  
	
  Closing

  	
   

  	
  2.8(a)

  
	
  Closing Balance Sheet

  	
   

  	
  2.5(b)

  
	
  Closing Date

  	
   

  	
  2.8

  
	
  Closing NWC Adjustment

  	
   

  	
  2.4

  
	
  Closing Purchase Price

  	
   

  	
  2.4

  
	
  Contracts

  	
   

  	
  3.12(a)

  
	
  CPA Firm

  	
   

  	
  2.5(c)

  
	
  Cure Costs

  	
   

  	
  2.3(c)

  
	
  Customers

  	
   

  	
  3.18

  
	
  Equipment

  	
   

  	
  2.1(a)

  
	
  Escrow Agreement

  	
   

  	
  2.6

  



 


9

















 


	
  Escrow Amount

  	
   

  	
  2.6

  
	
  Estimated Net Working
  Capital

  	
   

  	
  2.5(a)

  
	
  Excluded Assets

  	
   

  	
  2.2

  
	
  Excluded Liabilities

  	
   

  	
  2.3(a)(ii)

  
	
  Expense Reimbursement

  	
   

  	
  5.16

  
	
  Final Allocation
  Schedule

  	
   

  	
  2.6(c)

  
	
  Final Net Working
  Capital

  	
   

  	
  2.5(b)

  
	
  Final NWC Adjustment

  	
   

  	
  2.5(d)

  
	
  Final Statement of Net
  Working Capital

  	
   

  	
  2.5(c)

  
	
  Financial Statements

  	
   

  	
  3.4

  
	
  Huntsville Business

  	
   

  	
  Recitals

  
	
  Huntsville Employee

  	
   

  	
  5.5(a)

  
	
  Indemnification
  Acknowledgement

  	
   

  	
  9.6(a)

  
	
  Indemnified Party

  	
   

  	
  9.6(a)

  
	
  Indemnifying Party

  	
   

  	
  9.6(a)

  
	
  Indemnity Limitations

  	
   

  	
  9.1

  
	
  Interim Financial
  Statements

  	
   

  	
  3.4

  
	
  Inventory

  	
   

  	
  2.1(b)

  
	
  Losses

  	
   

  	
  9.1

  
	
  Material Contracts

  	
   

  	
  3.12(a)

  
	
  Net Working Capital

  	
   

  	
  2.5(a)

  
	
  Net Working Capital
  Objection

  	
   

  	
  2.5(a)

  
	
  Net Working Capital
  Statement

  	
   

  	
  2.5(b)

  
	
  NWC True-Up

  	
   

  	
  2.5(d)

  
	
  Objections Notice

  	
   

  	
  2.6(a)

  
	
  Periodic Taxes

  	
   

  	
  5.3(d)

  
	
  Phase II Review

  	
   

  	
  5.2(d)

  
	
  Potential Bidder

  	
   

  	
  5.16(b)(i)

  
	
  Plan

  	
   

  	
  Recitals

  
	
  Plant

  	
   

  	
  2.9(c)

  
	
  Prime Rate

  	
   

  	
  2.5(d)

  
	
  Product Liability
  Claims

  	
   

  	
  3.19(b)

  
	
  Prohibited Parties

  	
   

  	
  5.15(a)

  
	
  Purchase Price

  	
   

  	
  2.4

  
	
  Rebate Obligations

  	
   

  	
  3.19(c)

  
	
  Related Party

  	
   

  	
  3.23

  
	
  Reports

  	
   

  	
  3.13(e)

  
	
  Response Period

  	
   

  	
  2.6(a)

  
	
  Sale Hearing

  	
   

  	
  5.16(a)

  
	
  Sale Order

  	
   

  	
  5.16(a)

  
	
  Sale Motion

  	
   

  	
  5.16(a)

  
	
  Sale Motion Filing Date

  	
   

  	
  5.16(a)

  
	
  Seller

  	
   

  	
  Preamble

  
	
  Seller Indemnified
  Persons

  	
   

  	
  9.2

  
	
  Seller Owned Real Property

  	
   

  	
  2.1(f)

  



 


10

















 


	
  Sold Assets

  	
   

  	
  2.1

  
	
  Sold Contracts

  	
   

  	
  2.1(c)

  
	
  Special Warranties

  	
   

  	
  9.5

  
	
  Statement of Assets and
  Liabilities

  	
   

  	
  3.4

  
	
  Suppliers

  	
   

  	
  3.18

  
	
  Tax Controversy

  	
   

  	
  9.6(b)

  
	
  Taxing Jurisdiction

  	
   

  	
  5.3(h)

  
	
  Third Party Claim

  	
   

  	
  9.6(a)

  
	
  Title Insurer

  	
   

  	
  2.9(a)(i)(A)(1)

  
	
  Total Consideration

  	
   

  	
  2.4

  
	
  Transaction Financing

  	
   

  	
  4.6

  
	
  Transferred Employees

  	
   

  	
  5.5(a)

  
	
  Transfer Taxes

  	
   

  	
  5.3(a)

  
	
  WARN Act

  	
   

  	
  3.24(b)

  



 


ARTICLE
II.

PURCHASE AND SALE


 


2.1                                 Purchase and Sale of the Sold Assets.


 


On the Closing Date and
subject to the terms and conditions set forth in this Agreement, the Seller
shall sell, assign, transfer, convey and deliver to the Buyer, and the Buyer
shall purchase and acquire from the Seller, all of the right, title and
interest in and to the Sold Assets.  The term “Sold Assets”
means: (i) the Harrisburg Assets, and (ii) all properties, assets and
rights of every nature, kind and description, tangible or intangible, whether
real, personal or mixed, whether or not reflected on the books and records of
the Seller and whether now existing or hereafter acquired, used in or held for
use by Seller in connection with, or related to the Huntsville Business, or
arising out of the Huntsville Business, or located at the Seller Owned Real
Property, including the assets and rights listed below (excluding only the
Excluded Assets):


 


(a)           all machinery, equipment, spare
parts, computer hardware, computer software, tools, office equipment, business
machines, furniture, furnishings and other tangible personal property (the “Equipment”)
of the Seller located at the Seller Owned Real Property, including the
Equipment listed on Schedule 2.1(a);


 


(b)           all inventories of raw material, work
in progress, finished goods, spare parts, replacement and component parts,
packaging, office and other supplies and inventory (the “Inventory”) of
the Seller held by the Seller at the Seller Owned Real Property, or used or
held for use in connection with the Huntsville Business (excluding any
Inventory manufactured by Seller or its Affiliates in whole or in part at any
location other than the Seller Owned Real Property) and (ii) the Inventory
of the Seller held by a third party on consignment, that is listed on Schedule
2.1(b)(ii) (the Inventory identified in subparts (i) and (ii) of
this Section 2.1(b), collectively, the “Acquired Inventory”);


 


 


11














 


(c)           all rights and incidents of interest
of, and benefits accruing to, the Seller in and to (i) the contracts and
agreements set forth on Schedule 2.1(c), (ii) open sales orders or
other contracts for the sale of Products or services with respect to the Huntsville
Business, which Products or services have not been delivered, whether or not
set forth on Schedule 2.1(c), or (iii) any open purchase orders or
other contracts made in the ordinary course of business, consistent with past
practice, for the acquisition of materials by the Seller with respect to the
Huntsville Business (collectively, the “Sold Contracts”);


 


(d)           all rights and benefits of the
credits, prepaid expenses, deferred charges, advance payments, security
deposits and prepaid items of the Seller with respect to or arising out of the
Huntsville Business;


 


(e)           all Seller’s or TWI’s right, title
and interest in and to the Intellectual Property used in, held for use in, or
arising out of, the Huntsville Business including the Intellectual Property set
forth on Schedule 2.1(e) (the “Acquired Intellectual
Property”);


 


(f)            all real property set forth on Schedule 2.1(f),
including the buildings, structures, fixtures and improvements located thereon
together with (i) any and all rights, title and interest of the Seller in
and to air, mineral, subsurface and riparian rights and all tenements,
easements, hereditaments, privileges and appurtenances appertaining thereto, (ii) any
and all right, title and interest of the Seller in and to adjacent streets, alleys
or rights of way abutting the real property, (iii) any pending or future
award made in condemnation or to be made in lieu thereof, and any unpaid award
for damages to the real property; (iv) any rights or awards with respect
to tax assessment appeals, including any current or pending appeals; and (v) the
use of appurtenant easements, whether or not of record, adjacent, contiguous,
or adjoining the real property (the “Seller Owned Real Property”);


 


(g)           all motor vehicles set forth on Schedule 2.1(g);


 


(h)           subject to Section 5.10, all
Permits (including applications for issuance or renewal thereof) of the Seller
with respect to the Huntsville Business or the other Sold Assets;


 


(i)            all billed and unbilled accounts,
notes and other receivables including trade accounts receivables and all
correspondence relating thereto with respect to the Huntsville Business and the
lockboxes (but not the corresponding bank accounts) utilized by the Huntsville
Business with respect to receipt of customer payments, excluding accounts
receivable arising from the sale of Inventory manufactured by Seller or its
Affiliates in whole or in part at any location other than the Seller Owned Real
Property;


 


(j)            all copies of the books, records,
ledgers, files, documents, correspondence, customer, supplier or other lists,
manufacturing and engineering drawings and specifications, patterns, jigs,
program maps, sales information, environmental records and files, business and
marketing plans and proposals, service, maintenance and warranty records,
procedure manuals, computer records, and other technical and business records
of the Seller with respect to the Huntsville Business; provided, however,
that the Seller shall be entitled to retain copies of any such materials that
are necessary in its reasonable judgment for its Tax, accounting, personnel or
legal purposes;


 


12

















 


(k)           all other assets and rights used or
held for use in the Huntsville Business;


 


(l)            all Avoidance Actions relating to any
of the Sold Assets;


 


(m)          any claim, remedy, refund or right of
the Seller relating to any asset listed in clauses (a) through (l) above,
including  any insurance benefits arising from or
relating to such assets prior to the Closing and any right under any warranties
or guarantees relating to any of the foregoing as of the Closing.


 


Seller shall transfer,
assign or otherwise convey to the Buyer the Sold Assets free and clear of all
Encumbrances other than Permitted Encumbrances and Encumbrances that may be created
by or on behalf of the Buyer.


 


2.2                                 Excluded Assets.


 


The Sold Assets shall not
include, and the Seller shall not sell, assign, transfer, convey or deliver to
the Buyer, and the Buyer shall not purchase or acquire, any right, title or
interest in or to any of the Excluded Assets.  The term “Excluded
Assets” shall mean the following:


 


(a)           the Equipment of the Seller located
at the Seller Leased Real Property that is not listed on Schedule 1.1-3;


 


(b)           all of Seller’s right, title and
interest in and to Intellectual Property, including any trademarks, corporate
names, trade names, logos, domain names, or any variation thereof, and any
rights or interests therein, and the goodwill associated therewith,
incorporating the name “Taylor-Wharton” or any abbreviation thereof (including “TW”), and including those set forth on
subsection 3.11(m) of Schedule 3.11, but excluding the
Acquired Intellectual Property;


 


(c)           any Contract that is not a Sold
Contract, including the Contracts set forth on Schedule 2.2(c);


 


(d)           all rights and incidents of interest
of, and benefits accruing to, the Seller with respect to real property,
including the Seller Leased Real Property, but excluding the Seller Owned Real
Property;


 


(e)           all accounts, notes and other
receivables carried on the Seller’s books with respect to the Business (other
than the Huntsville Business) and all lockboxes utilized by the Business with
respect to receipt of customer payments;


 


(f)            all books, records, ledgers, files,
documents, correspondence, customer, supplier or other lists, manufacturing and
engineering drawings and specifications, patterns, jigs, program maps, sales
information, environmental records and files, business and marketing plans and
proposals, service, maintenance and warranty records, procedure manuals,
computer records, and other technical and business records of the Seller with
respect to the Business (other than the Huntsville Business and the Sold
Assets);


 


(g)           any Cash owned by the Seller;


 


13

















 


(h)           the organizational documents,
taxpayer and other identification numbers, minute and record books and the
company seal of the Seller;


 


(i)            any Inventory that has been used or
disposed of in the ordinary course, consistent with past practice, since the
date of this Agreement;


 


(j)            any rights to the Seller’s insurance
policies, premiums or proceeds from insurance coverages relating to Excluded
Liabilities or the assets of the Business (other than the Sold Assets) for any
period, and any other recovery by the Seller for the benefit of or otherwise
relating to the Business (other than the Huntsville Business or the Sold
Assets) from any Person;


 


(k)           any rights to any refunds, and any
deposits, of the Seller with any Governmental Authority, relating to Taxes for
Pre-Closing Tax Periods;


 


(l)            all Tax Returns and financial
statements of the Seller and the Business and all records (including working
papers) related to the Seller or the Business pertaining to the Excluded Assets
or the Excluded Liabilities;


 


(m)          all of the Seller’s causes of action,
claims, credits, demands or rights of set-off against third parties, to the
extent related to any other Excluded Asset;


 


(n)           all rights that accrue to the Seller
under this Agreement;


 


(o)           any Inventory manufactured by Seller
or its Affiliates in whole or in part at any location other than the Seller
Owned Real Property;


 


(p)           any accounts receivable arising from
the sale of Inventory manufactured by Seller or its Affiliates in whole or in
part at any location other than the Seller Owned Real Property;


 


(q)           all Benefit Plans of Seller and any
ERISA Affiliate, and all rights of the Seller under, and any funds and property
held in trust or any other funding vehicle pursuant to, or any insurance
contract providing funding for, any Benefit Plan;


 


(r)            the rights and benefits of all
credits, prepaid expenses, deferred charges, advance payments, security
deposits and prepaid items of the Seller with respect to the Business (other
than the Huntsville Business);


 


(s)           all Permits (including applications
for issuance or renewal thereof) of the Seller with respect to the Business
(other than the Huntsville Business).


 


2.3                                 Assumption of Liabilities.


 


(a)           Assumed Liabilities.  On the terms and subject to the conditions
set forth in this Agreement, at the Closing, the Buyer shall assume effective
as of the Closing, and shall thereafter pay, perform, be responsible for and
discharge as and when due only the following Liabilities of the Seller, but
excluding any Excluded Liabilities (the “Assumed Liabilities”):


 


14

















 


(i)            all
Liabilities to be performed under the Sold Contracts after the Closing Date
(but not (A) any Liability thereunder arising out of or in connection with
any breach of any such Sold Contract occurring on or prior to the Closing Date
or (B) any Liability relating to any product sold by the Business, the
Seller or any Affiliate of the Seller on or prior to the Closing Date); and


 


(ii)           all
Liabilities of the Seller with respect to the  Huntsville
Business for accounts payable and other current liabilities, but only to the
extent included in the calculation of the Final Net Working Capital;


 


(iii)          all
Liabilities arising out of or relating to accidents, occurrences and other
incidents (including all Proceedings relating thereto) occurring after the
Closing that result in (A) personal injury, (B) property damage or (C) any
other Losses but only to the extent, in each case, such Liabilities result
from, are caused by or arise out of, or are alleged to have resulted from, been
caused by or arisen out of, directly or indirectly, use of, exposure to or
otherwise on account of, any Product that is both (x) manufactured by
Seller or any of its Affiliates at the Seller Owned Real Property  prior to the Closing Date and (y) sold, shipped or
distributed by or on behalf of Buyer or any of its Affiliates on or after the
Closing Date; and


 


(iv)          all
Liabilities relating to recalls, product liability claims or warranty claims
with respect to any Product that is both (A) manufactured by Seller or any
of its Affiliates at the Seller Owned Real Property prior to the Closing Date
and (B) sold, shipped or distributed by or on behalf of the Buyer or any
of its Affiliates on or after the Closing Date.


 


Notwithstanding anything
herein the contrary, Buyer shall have no Liability with respect to high
pressure cylinders manufactured in whole in part at any facility of Seller
other than the Seller Owned Real Property.


 


(b)           Excluded Liabilities.  The
Buyer shall not assume, and shall not have been deemed to assume, any
Liabilities other than the Assumed Liabilities.  The term “Excluded
Liabilities” shall mean all Liabilities of the Seller whether arising on or
before the Closing Date, other than the Assumed Liabilities, including:


 


(i)            all
Liabilities arising out of Excluded Assets;


 


(ii)           all
Liabilities under any Benefit Plan of Seller or any ERISA Affiliate;


 


(iii)          all
employee and/or labor related Liabilities (including workers’ compensation
Liabilities);


 


(iv)          all
Liabilities (including with respect to loss of life, personal injury, damage to
any real property, Environmental Claims, or natural resource damages) arising
out of or resulting from any violation of any Environmental Law, Release of
Hazardous Materials into the Environment or storage or off-site disposal of any
Hazardous Materials: (A) occurring at or emanating from the Seller Owned
Real Property 


 


15

















 


at any time prior
to the Closing, or occurring at or emanating from the Seller Leased Real
Property at any time whether at, before or after the Closing (except to the
extent that the Liability arises out of or relates to a matter for which the
Buyer is responsible pursuant to Section 2.9(c)), or (B) arising from
the operation of the Business at any time prior to the Closing;


 


(v)           (A) all
Liabilities of, or imposed on, the Seller related or attributable to Taxes and (B) all
Periodic Taxes related or attributable to the Sold Assets for all Pre-Closing
Tax Periods (determined in accordance with Section 5.3(d));


 


(vi)          all
Liabilities arising out of any Debt Obligations of the Seller;


 


(vii)         all
Liabilities for any Third Party Expenses, severance pay obligations with
respect to terminations on or prior to the Closing Date, or Change of Control
Payments;


 


(viii)        all
Liabilities arising out of or relating to accidents, occurrences and other
incidents (including all Proceedings relating thereto), whether known or
unknown and whether or not reported, that result in (A) personal injury, (B) property
damage or (C) any other Losses, but only to the extent that, in each case,
such Liabilities result from, are caused by or arise out of, or are alleged to
have resulted from, been caused by or arisen out of, directly or indirectly, (1) use
of, exposure to or otherwise on account of any Product manufactured, sold or
distributed, or any service rendered, by or on behalf of the Seller on or prior
to the Closing Date (other than any Product that is both (x) manufactured
by Seller or any of its Affiliates at the Seller Owned Real Property prior to
the Closing Date and (y) sold, shipped or distributed by or on behalf of
Buyer or any of its Affiliates on or after the Closing Date); (2) automobile
liability occurrences relating to the Seller on or prior to the Closing Date;
or (3) workers’ compensation occurrences relating to the Seller on or
prior to the Closing Date;


 


(ix)           all
Liabilities for outstanding checks and other draws and drafts (including
overdrafts) of the Seller;


 


(x)            all
Liabilities owed to any Affiliate of Seller, other than the obligations under
the TWI Supply Agreement made as of January 1, 2009 between the Seller and
Sherwood Valve, LLC, as amended (but not any Liability thereunder arising out
of or in connection with any breach of such agreement occurring on or prior to
the Closing Date);


 


(xi)           all
Liabilities relating to recalls, product liability claims or warranty claims
with respect to products sold by the Business on or prior to the Closing Date,
including the Aviation Recall;


 


(xii)          all
Liabilities under any Contract which is not a Sold Contract;


 


(xiii)         all
Liabilities relating to any damage to the Seller Leased Real Property or any
assets or Persons located at the Seller Leased Real Property (i) occurring



 


16

















 


on or before the
Closing, or (ii) occurring after the Closing, except to the extent the
Buyer is responsible for such Liability pursuant to Section 2.9(c);


 


(xiv)        all
Liabilities of Seller relating to any agreement to provide any customer any
rebate, discount or refund;


 


(xv)         except
as provided in Section 2.9(c), all Liabilities related to any of Seller’s
operations not located at the Seller Owned Real Property;


 


(xvi)        all
Liabilities of Seller and its Affiliates under COBRA, including, but not
limited to, any Liabilities on any type of “successor employer” basis under
COBRA with respect to any current or former Benefit Plan or any current or
former practice by Seller or any Affiliate of Seller to provide or make available
group health plan coverage to any former employee or non-employee service
provider or other non-employee individual (and their spouses and dependents).


 


(c)           Cure Costs.  To the extent any amount is required to be
paid to cure any monetary defaults which exists as of the Closing Date with
respect to any executory contracts (as defined in the Bankruptcy Code) included
in the Sold Contracts, Seller shall cure such monetary defaults at or prior to
the Closing to the extent such cure is required by Section 365 of the
Bankruptcy Code (any such amounts paid to cure any defaults, being referred to
as the “Cure Costs”).  For the
sake of clarity, Buyer shall be responsible to pay all amounts due with respect
to Sold Contracts, together with accounts payable and other current
liabilities, to the extent the obligations to pay such amounts constitute
Assumed Liabilities, it being understood that nothing in this Section 2.3(c) is
intended to expand the Assumed Liabilities.


 


(d)           Further Assurances.  Each
of the Buyer and the Seller covenants that it will do, execute and deliver, or
will cause to be done, executed and delivered, all such further acts and
instruments that the other party hereto or any of its successors or permitted
assigns may reasonably request in order to more fully evidence the assumption
of the Assumed Liabilities provided for in this Section 2.3 and the sale
and transfer of the Sold Assets.


 


2.4                                 Purchase Price.


 


On the Closing Date and
subject to the terms and conditions set forth in this Agreement, in
consideration of the sale, assignment and transfer of the Sold Assets, the
Buyer shall (a) pay to the Seller an aggregate amount equal to $11,000,000
in cash, minus Cure Costs not paid by Seller prior to the Closing,  minus the Escrow Amount, minus the
Harrisburg Holdback, plus the amount, if any, by which the Estimated Net
Working Capital is greater than the Reference Working Capital or minus
the amount, if any, by which the Estimated Net Working Capital is less than the
Reference Working Capital (such amount, the “Closing NWC Adjustment”),
by wire transfer of immediately available funds in U.S. dollars to one or more
accounts of the Seller designated at least two Business Days prior to the
Closing Date (the amount determined pursuant to this first sentence of Section 2.4,
the “Closing Purchase Price”), and (b) assume the Assumed
Liabilities (the payment, delivery and assumption described in subparts (a) and
(b) of this Section 2.4, collectively, the “Total Consideration”).  The Closing Purchase Price shall be 


 


17

















 


adjusted after the
Closing Date pursuant to Section 2.5. 
The Closing Purchase Price, plus or minus the adjustment amounts
determined pursuant to Section 2.5, shall be the “Purchase Price.”


 


2.5                                 Net Working Capital.


 


(a)           Estimated Net Working Capital. 
No later than three Business Days prior to the Closing Date, the Seller
shall prepare and deliver to the Buyer a good faith estimate of the Net Working
Capital as of the Closing Date, together with all calculations related thereto
(the “Estimated Net Working Capital”). 
“Net Working Capital” shall mean (i) the total current
assets of the Seller included in the Sold Assets less any reserves against such
current assets determined in accordance with the Agreed Principles, less
(ii) the current Liabilities of the Seller included in the Assumed
Liabilities, in each case, as of 12:01 a.m. (Eastern Time) on the Closing
Date, determined in accordance with  the
Agreed Principles.


 


(b)           Physical Inventory; Closing
Balance Sheet; Net Working Capital Statement.  On the Closing Date, Buyer or its
representatives shall have the right to conduct a physical inventory count of
the Inventory of the Huntsville Business. 
Seller shall have the right to observe any such physical inventory.  Within 90 days after the Closing Date, the
Buyer shall cause to be prepared and delivered to the Seller and the Seller
will reasonably cooperate with Buyer in connection with such preparation as reasonably
requested by the Buyer:  (i) a balance
sheet (the “Closing Balance Sheet”) of the Seller as of 12:01 a.m.
(Eastern Time) on the Closing Date in accordance with the Agreed Principles;
and (ii) a net working capital statement (the “Net Working Capital
Statement”), setting forth the Net Working Capital (the “Final Net
Working Capital”) determined based on the Closing Balance Sheet.  During the 30  days following receipt by the Seller of the Net Working
Capital Statement, the Buyer shall, at the request of the Seller, afford the
Seller reasonable access to the books and records with respect to the Sold
Assets, the Assumed Liabilities and the Huntsville Business (to the extent
relevant to the evaluation of the Net Working Capital Statement) and otherwise
reasonably cooperate with the Seller in connection with its evaluation of the
Net Working Capital Statement.


 


(c)           Dispute.  Within 30 days following receipt by the
Seller of the Net Working Capital Statement, the Seller shall deliver written
notice to the Buyer of any dispute the Seller has with respect to the Net
Working Capital Statement (the “Net Working Capital Objection”) setting
forth a specific description of the basis of the Net Working Capital Objection,
the adjustments to the Net Working Capital Statement that the Seller believes
should be made, and the Seller’s calculation of the Final Net Working
Capital.  During such 30-day period, the
Buyer shall, at the request of the Seller, afford the Seller reasonable access
to the books and records with respect to the Sold Assets, the Assumed Liabilities
and the Huntsville Business (to the extent relevant to the determination of the
Final Net Working Capital) and otherwise reasonably cooperate with the Seller
in connection with its review of the Net Working Capital Statement and
preparation of any Net Working Capital Objection.  The Seller shall be deemed to have accepted
the Net Working Capital Statement except to the extent specifically disputed in
the Net Working Capital Objection. 
Failure to so notify the Buyer within such 30-day period shall
constitute acceptance and approval of the Buyer’s calculation of the Final Net
Working Capital.  The Buyer shall have 30
days following the date the Buyer receives the Net Working Capital Objection to
review and respond to the Net Working Capital Objection.  If the Seller and the Buyer are unable to
resolve all of their disagreements with respect to the items 


 


18

















 


specified in the Net
Working Capital Objection by the 30th day following the Buyer’s response thereto,
after having used their commercially reasonable efforts to reach a resolution,
they shall refer their remaining differences to PricewaterhouseCoopers, LLP or, if such firm refuses to accept
such engagement (or such firm is, at the relevant time, doing any work for the
Buyer or the Seller), another nationally recognized firm of independent public
accountants as to which the Seller and the Buyer mutually agree acting promptly
and in good faith (in either case, the “CPA Firm”), which shall, acting
as experts in accounting, determine on a basis consistent with the requirements
of this Agreement, and only with respect to the specific remaining
accounting-related differences so submitted, whether and to what extent, if
any, the Net Working Capital Statement requires adjustment.  The Buyer and the Seller each agree to
execute, if requested by the CPA Firm, a reasonable engagement letter.  The Seller and the Buyer shall request the CPA
Firm to render its determination within 45 days.  All fees and expenses of the CPA Firm
relating to this work shall be borne equally by the Seller and the Buyer.  All determinations made by the CPA Firm will
be limited to the matters submitted to the CPA Firm by the Buyer and the Seller
and shall be final, conclusive and binding on the parties and neither the Buyer
nor the Seller nor any of their respective Affiliates shall seek further
recourse to courts or other tribunals, other than to enforce the CPA Firm’s
determination.  Judgment may be entered
to enforce such determination in any court of competent jurisdiction.  The Seller and the Buyer shall make
reasonably available to the CPA Firm all relevant books and records, any work
papers (including those of the parties’ respective accountants) and supporting
documentation relating to the Net Working Capital Statement and all other items
reasonably requested by the CPA Firm. 
The “Final Statement of Net Working Capital” shall be (i) the
Net Working Capital Statement in the event that (A) no Net Working Capital
Objection is delivered to the Buyer during the initial 30-day period specified
above with respect thereto or (B) the Seller and the Buyer so agree, (ii) the
Net Working Capital Statement, adjusted in accordance with the Net Working
Capital Objection, in the event that (A) the Buyer does not object in
writing to the Net Working Capital Objection during the 30-day period specified
above following receipt by the Buyer of the Net Working Capital Objection or (B) the
Seller and the Buyer so agree or (iii) the Net Working Capital Statement,
as adjusted pursuant to the agreement of the Buyer and the Seller or as
adjusted by the CPA Firm together with any other modifications to the Net
Working Capital Statement agreed upon by the Seller and the Buyer.


 


(d)           Adjustment.  For purposes of this Agreement, (i) the
term “Final NWC Adjustment” shall mean the amount by which the Final Net
Working Capital (as set forth on the Final Statement of Net Working Capital) is
greater than or less than the Reference Working Capital, and (ii) the term
“NWC True-Up” shall mean the amount equal to the Final NWC Adjustment
(expressed as a positive number, if such adjustment amount was positive, and as
a negative number, if such adjustment amount was negative) minus the Closing NWC Adjustment
(expressed as a positive number, if such adjustment amount was positive, and as
a negative number, if such adjustment amount was negative).  For example, if the Closing NWC Adjustment
was a three million dollar increase, and the Final NWC Adjustment is a two
million dollar increase, then the NWC True-Up would be negative one million
dollars; and if the Closing NWC Adjustment was a three million dollar decrease,
and the Final NWC Adjustment is a two million dollar increase, then the NWC
True-Up would be a positive five million dollars (i.e., subtracting a negative
number converts it into a positive number). 
If the NWC True-Up amount is a positive number, the Buyer shall pay such
positive amount, plus interest computed at the rate declared on the Closing
Date by PNC Bank, National Association
as its “base rate” (calculated 


 


19

















 


on the basis of 365 days
and the actual number of days elapsed, the “Prime Rate”) for the period
from the Closing Date to the date of such payment, by wire transfer of
immediately available funds to an account designated by the Seller.  If the NWC True-Up amount is a negative
number, the Seller shall pay such negative amount, plus interest computed at
the Prime Rate for the period from the Closing Date to the date of such
payment, by wire transfer of immediately available funds to an account
designated by the Buyer.   In each case,
such payment shall be made within three Business Days after the date on which
the Final Net Working Capital Statement is determined.


 


2.6                                 Escrow.


 


(a)           On the Closing Date, (i) the
Buyer will deposit a portion of the Purchase Price equal to $1,750,000 (the “Escrow
Amount”) with Wells Fargo Bank N.A., or another bank mutually acceptable to
Buyer and Seller the “Escrow Agent”), by wire transfer of immediately
available funds, to secure any obligation of the Seller, and TW International
to make a payment under Section 2.5 above or Section 9.1 below or as
provided in Section 5.3(h) below (ii) the Buyer, the Seller and
TW International shall enter into an escrow agreement substantially in the form
of Exhibit 2.6 with the Escrow Agent (the “Escrow Agreement”),
which shall provide, among other things, for the release of $875,000 to Seller
(less the sum of any unresolved claims against the Escrow Amount and payments
made from the Escrow Amount to Buyer) on the first anniversary of the Closing
Date and the release of the balance of the Escrow Amount to Seller (including
any accrued interest on the Escrow Amount, less the amount of any unresolved
claims made against the Escrow Amount) on the date which is 18 months after the
Closing Date; provided that any Escrow Amount that is not released in
accordance with this Section 2.6 due the presence of one or more
unresolved claims shall be promptly released to Seller upon the resolution of
such claims to the extent that such claims have been resolved in favor of
Seller in accordance with the provisions of the Escrow Agreement.


 


(b)           Seller grants Buyer a continuing
security interest in all of Seller’s right, title and interest in the Escrow
Amount and the Escrow Agreement to secure the payment of amounts owing or which
may become owing to Buyer under this Agreement or the Escrow Agreement;
provided that, upon release of all or any part of the Escrow Amount to Seller
in accordance with Section 2.6(a), the security interest granted by this Section 2.6(b) with
respect to the amount so released will be immediately terminated without any
further action by either party.


 


(c)           Buyer will not enforce any of its
rights against the Escrow Amount as collateral for the obligations secured and
has no right to payment or distribution from the Escrow Account except as set
forth in this Agreement.


 


(d)           Seller authorizes Buyer to file one
or more UCC financing statements describing the Escrow Amount.  Seller also will execute such other documents
as are necessary to perfect the security interest in favor of Buyer granted
herein.  Notwithstanding the foregoing,
upon termination of Buyer’s security interest in all or any part of the Escrow
Amount, to the extent necessary to terminate Buyer’s security interest in the
portion of the Escrow Amount released, Buyer shall immediately file UCC
termination statements with respect to that part of the Escrow Amount and
execute such other documents as are necessary to terminate all of its security
interest that part of the Escrow Amount.


 


20

















 


(e)           For so long as a part of the Escrow
Amount remains subject to Buyer’s security interest granted pursuant to this Section 2.6,
Seller shall not grant any other security interest in or lien on that part of
the Escrow Amount to any other Person.


 


2.7                                 Allocation of Total Consideration.


 


Within 90 days after the
Closing Date, the Buyer shall prepare or have prepared and deliver to the
Seller a schedule (an “Allocation Schedule”) allocating the Total
Consideration among the Sold Assets immediately after Closing, in such amounts
reasonably determined by the Buyer to be consistent with Section 1060 of
the Code and the Treasury Regulations thereunder; provided however the Seller
and the Buyer will agree upon the portion of the Total Consideration to be
allocated to the Seller Owned Real Property at or before the Closing.


 


(a)           The Seller shall have a period of
five Business Days after the delivery of the Allocation Schedule (the “Response
Period”) to present in writing to the Buyer notice of any objections the
Seller may have to the allocations set forth therein (an “Objections Notice”).  Unless the Seller timely objects, such
Allocation Schedule shall be binding on the parties without further adjustment,
absent manifest error.


 


(b)           The Seller shall raise any objections
within the Response Period, and the Buyer and the Seller shall negotiate in
good faith and use their reasonable best efforts to resolve such dispute.  If the parties fail to agree within 15 days
after the delivery of the Objections Notice, then the disputed items shall be
resolved by the CPA Firm, whose determination shall be final and binding on the
parties; provided that the CPA Firm shall not adjust the Allocation Schedule
except to the extent the Allocation Schedule is inconsistent (and no more than
necessary to make the Allocation Schedule consistent) with Agreed Principles.  The CPA Firm shall resolve the dispute within
30 days after the item has been referred to it. 
The costs, fees and expenses of the CPA Firm shall be borne equally by
the Seller and the Buyer.


 


(c)           The Buyer and the Seller, and their
respective Affiliates, shall report, act and file Tax Returns (including, but
not limited to, Internal Revenue Service Form 8594) in all respects and
for all purposes consistent with the Allocation Schedule, as modified by
agreement of the parties or by determination above (the “Final Allocation
Schedule”).  Each of the Buyer and
the Seller hereby covenants and agrees that such Person and its respective
Affiliates will not take a position on any federal, state, local or foreign
income, franchise, excise, sales or other Tax Return, before any Governmental
Authority charged with the collection of any income, franchise, excise, sales
or other Tax, or in any Proceeding, that is in any way inconsistent with the
terms of this Section 2.7 and the Final Allocation Schedule.  The Seller and the Affiliates of the Seller
shall cooperate with the Buyer, and provide to the Buyer such documents, forms
and other information as the Buyer may reasonably request to prepare such
allocation.


 


2.8                                 The Closing.


 


Unless this Agreement
shall have been terminated pursuant to ARTICLE VIII subject to ARTICLE VI and
ARTICLE VII, the closing (the “Closing”) of the transactions
contemplated by this Agreement shall take place at the executive offices of the
Seller, 4718 Old Gettysburg Rd., Suite 300, Mechanicsburg, PA 17055, on
the third Business Day following the satisfaction 


 


21

















 


or waiver of all of the
conditions set forth in ARTICLE VI and ARTICLE VII (other than those conditions
that are to be satisfied at the Closing) (the “Closing Date”), or at
such other place and time as may be agreed upon by the parties hereto.  All proceedings to be taken and all documents
to be executed and delivered by all parties at the Closing shall be deemed to
have been taken and executed and delivered simultaneously and no proceedings
shall be deemed to have been taken nor documents executed or delivered until
all have been taken, executed and delivered. 
Legal title, equitable title and risk of loss with respect to the Sold
Assets will be deemed transferred to or vested in the Buyer, and the
transactions contemplated by this Agreement will be deemed effective for Tax,
accounting and other computational purposes, and the parties will treat the
Closing as if it had occurred, as of 12:01 a.m. (Eastern Time) on the
Closing Date.


 


2.9                                 Deliveries at the Closing.


 


(a)           Deliveries by the Seller.  At or prior to the Closing, the Seller shall
deliver or cause to be delivered to the Buyer the following:


 


(i)            the
Ancillary Agreements to which the Seller or any of its Affiliates is a party,
duly executed by the Seller or such Affiliates, including the following
documents pertaining to the transfer of the Seller Owned Real Property:


 


(A)          Seller
Owned Real Property Documents:


 


(1)           Deed.  The
Deed in recordable form executed and acknowledged by the Seller in favor of the
Buyer, in form and substance reasonably acceptable to the Buyer, its counsel
and First American Title Insurance Company (the “Title Insurer”), the
delivery and recording of which will vest in the Buyer good, marketable and
indefeasible fee title in and to such real property and improvements, subject
only to the Permitted Encumbrances;


 


(2)           Title
Policy.  Prior to Closing, at the Seller’s and the Buyer’s
equally shared cost and expense, a commitment for an owner’s policy of title
insurance, in the form and condition as set forth below in this paragraph; at
the Seller’s and the Buyer’s equally shared cost and expense, an ALTA Form 2006
owner’s policy of title insurance, with standard exceptions, dated the date and
time of the Closing (or a written binding commitment from the Title Insurer to
deliver the policy of title insurance at a future date), with an amount of
insurance equivalent to the allocation of Purchase Price as set forth herein,
insuring the Buyer as sole owner of good, marketable and indefeasible fee title
to said real property and improvements, subject only to the Permitted
Encumbrances, and containing such customary endorsements as are reasonably
acceptable to the Seller and the Buyer, of which the following shall be deemed
reasonably acceptable if available in the applicable jurisdiction: (a) extended
coverage over standard or general exceptions; (b) access; (c) location;
(d) survey equivalency; (e) utility facility; (f) zoning with
parking; (g) restrictions; (h) encroachment, if applicable; (i) subdivision,
if applicable; (j) mineral rights, if applicable; and (k) contiguity,
if applicable;


 


22

















 


(3)           Survey.  Prior to Closing, the most recent land title
survey of the Seller Owned Real Property in Seller’s possession, which survey
was prepared in accordance with ALTA/ACSM standards and made by a surveyor or
civil engineer that was duly licensed in the jurisdiction in which the Seller
Owned Real Property is located as of the time the survey was prepared;


 


(4)           Transfer
Tax Forms.  All state, city and/or county Transfer Tax forms and
returns required to be completed, filed or recorded at the Closing with respect
to the Seller Owned Real Property;


 


(5)           Other
Title and Escrow Documents.  Such other documents as may be
reasonably necessitated by the Title Insurer in connection with effectuating
the issuance of the Title Policy and any related closing escrows, including an
owner’s affidavit or statement in customary and commercially reasonable form; provided,
that this delivery shall not require any special or exception-specific
indemnifications to permit the deletion or “insuring over” of any non-standard
title exception; and


 


(6)           Assignment
of Rights.  Subject to Section 5.10,
general assignment from the Seller to the Buyer with respect to any and all
rights and claims in and to any Permits applicable to the Seller Owned Real
Property, plans and specifications in the Seller’s possession, if any,
applicable to the Seller Owned Real Property, and any manufacturers’ or
contractors’ warranties applicable to the Seller Owned Real Property;


 


(ii)           a
bill of sale in the form attached hereto as Exhibit 2.9(a)(ii);


 


(iii)          an
assignment and assumption agreement in the form attached hereto as Exhibit 2.9(a)(iii);


 


(iv)          possession
and occupancy of the Seller Owned Real Property, and possession of the Sold
Assets;


 


(v)           a
certificate of good standing (A) of
the Seller, issued by the Secretary of State of the State of Delaware, dated
within 10 Business Days of the Closing;
and (B) of the Seller issued by the Secretary of State of the State of
Alabama, dated as of the most recent practicable date;


 


(vi)          certified
copies of resolutions duly adopted by the board of managers of the Seller,
evidencing the taking of all limited liability company action necessary to
authorize the execution, delivery and performance of this Agreement and the
Ancillary Agreements to which the Seller is a party and the consummation of the
transactions contemplated hereby and thereby;


 


(vii)         a certificate stating that the Seller is not a “foreign”
person within the meaning of Section 1445 of the Code, which certificate
shall set forth all information required by, and otherwise be executed in
accordance with, Treasury Regulation Section 1.1445-2(b)(2), in a form
reasonably acceptable to the Buyer;


 


23

















 


(viii)        a
certificate of the Secretary or Assistant Secretary of the Seller identifying
the name and title and bearing the signatures of the officers of the Seller
authorized to execute this Agreement and the other agreements, documents,
certificates and instruments contemplated hereby;


 


(ix)           a
receipt for the Closing Purchase Price paid on the Closing Date;


 


(x)            amendments/releases
to the TWI Loan Documents, duly executed by the parties thereto, which provide
that the Seller is no longer a party thereto and confirm that the Seller has no
Liabilities of any kind with respect thereto;


 


(xi)           forms
of UCC-3 Termination Statements in proper form for filing upon the Closing and
such other release documents and/or forms necessary to terminate validly or
release all Encumbrances (other than Permitted Encumbrances) granted by the
Seller or any of its Affiliates in favor of any Person against the Sold Assets;


 


(xii)          evidence of the consents set forth on Schedule
2.9(a)(xii);


 


(xiii)         Intellectual
Property assignments, executed by the Seller or any of its Affiliates,
assigning the Seller’s or any of its Affiliates’ entire right, title and
interest in, to and under the trademarks, patents and domain names and their
associated goodwill listed on subsection 3.11(b) of Schedule 3.11
(but excluding those set forth on subsection 3.11(m) of Schedule 3.11);


 


(xiv)        an
amendment to the TWI Supply Agreement made as of January 1, 2009 between
the Seller and Sherwood Valve, LLC in the form attached hereto as Exhibit 2.9(a)(xiv);
and


 


(xv)         a
certificate in a form reasonably acceptable to Buyer dated the Closing Date and
signed by the Seller certifying that the representations and warranties of the
Seller contained in ARTICLE III are true, complete and correct in all material
respects as of the Closing Date and representing and warranting that the
conditions set forth in Sections 7.1, 7.2, 7.4, 7.7 and 7.8 have been
satisfied; provided however if the Effective Date of the Plan occurs after June 12,
2010 and Buyer nevertheless elects to Close the transactions contemplated by
this Agreement, such certificate shall not be required to refer to the conditions
contained in Sections 7.4, 7.7 or 7.8.


 


(b)           Deliveries by the Buyer.  At or prior to the Closing, the Buyer shall
deliver or cause to be delivered to the Seller the following:


 


(i)            the
Closing Purchase Price, by wire transfer of immediately available funds to an
account or accounts designated by the Seller, payable in accordance with Section 2.4
hereof;


 


(ii)           the
Ancillary Agreements to which the Buyer is a party, duly executed by the Buyer;


 


24

















 


(iii)          a
certificate of good standing of the Buyer, issued by the Secretary of State (or
similar Governmental Authority) of its jurisdiction of incorporation, dated as
of the most recent practicable date;


 


(iv)          a
copy of the certificate of incorporation (or equivalent document) of the Buyer,
certified by the Secretary of State (or similar Governmental Authority) of its
jurisdiction of incorporation, dated as of the most recent practicable date;


 


(v)           certified
copies of resolutions duly adopted by the board of directors of the Buyer
evidencing the taking of all corporate action necessary to authorize the
execution, delivery and performance of this Agreement and the Ancillary
Agreements to which the Buyer is a party and the consummation of the
transactions contemplated hereby and thereby;


 


(vi)          an
amendment to the TWI Supply Agreement made as of January 1, 2009 between
the Seller and Sherwood Valve, LLC in the form attached hereto as Exhibit 2.9(a)(vi);


 


(vii)         an
assignment (in form and substance reasonably satisfactory to Buyer) by TWI to
the Buyer of all right, title and interest in and to the Acquired Intellectual
Property; and


 


(viii)        a certificate of the Secretary or Assistant Secretary
of the Buyer identifying the name and title and bearing the signatures of the
officers of the Buyer authorized to execute this Agreement and the other
agreements, documents, certificates
and instruments contemplated hereby.


 


(c)           Post-Closing Delivery of
Harrisburg Assets; Harrisburg Holdback. 
Promptly following the Closing the Seller and the Buyer will agree upon
on a date mutually convenient for the Seller and the Buyer, but not more than
45 days after the Closing Date, when the Buyer will remove the Harrisburg
Assets from the Seller Leased Real Property (the “Plant”).  Seller will provide sufficient access to the
Plant so that Buyer may remove the Harrisburg Assets.  In the event the Buyer is prevented by Seller
or any third party, from accessing or reasonably removing the Harrisburg
Assets, the above 45 day period will be extended until such time as Buyer is
provided with the required access to the Plant to remove the Harrisburg
Assets.  The Buyer shall remove the
Harrisburg Assets from the Seller Leased Real Property by means reasonably
acceptable to Seller and dispose of the Harrisburg Assets in compliance with
all applicable Laws.  The Buyer shall be
responsible for any damage to the Seller Leased Real Property caused by the
removal of the Harrisburg Assets from the Seller Leased Real Property; but not
any damage or condition which existed on, at, or under the Seller Leased Real
Property prior to the date the Harrisburg Assets are removed from the Seller
Leased Real Property.  By way of further
clarification, Buyer will not be responsible for any repair costs, restoration
costs, testing costs, reporting costs or remediation costs which may result
from a preexisting condition which is revealed upon removal of the Harrisburg
Assets; provided that Buyer will be responsible for any such repair costs,
restoration costs, testing costs, reporting costs or remediation costs to the
extent that Buyer’s negligence or willful misconduct exacerbates or otherwise
adversely affects the preexisting condition. 
TW International and the Seller will be 


 


 


25

















 


solely responsible for
resolving any dispute with the owner of the Seller Leased Real Property
relating to Buyer’s access to the Seller Leased Real Property for purposes of
removing the Harrisburg Assets in a reasonable manner.  At the sole cost and expense of TW
International and Seller, TW International and Seller will take all actions,
including, if reasonably necessary, instituting legal action, as may be
reasonably necessary to provide Buyer the access to the Plant required to
permit Buyer to remove the Harrisburg Assets. 
In regard to any legal actions required in connection with the
immediately preceding sentence, Seller will use counsel reasonably acceptable
to Buyer.  If requested by Seller, Buyer
will reasonably cooperate in Seller’s efforts to resolve such dispute at Seller’s
and TWI’s sole cost and expense.  Upon
receipt by Buyer of possession of the Harrisburg Assets on or prior to October 31,
2010, it will pay to Seller the Harrisburg Holdback less any amounts it was
required to expend if Seller fails to pursue its obligations under this Section 2.9(c) diligently
in good faith or otherwise expend at Seller’s request in connection with the
resolution of any dispute regarding its access to the Plant to remove the
Harrisburg Assets.  In the event that
Buyer does not receive possession of the Harrisburg Assets due to Seller’s
failure to provide Buyer with access to the Plant reasonably necessary to
permit Buyer to remove the Harrisburg Assets on or before October 31,
2010, Seller will pay to Buyer $125,000 and Buyer may irrevocably retain the
Harrisburg Holdback.  Irrespective of
whether Buyer is paid $125,000 and entitled to retain the Harrisburg Holdback,
Buyer may thereafter continue efforts to obtain access to the Harrisburg Assets
and gain possession of the Harrisburg Assets, however after, October 31,
2010, it must do so at its own cost and expense.


 


2.10                           Further Assurances.


 


Each party hereto
covenants that it will do, execute and deliver, or will cause to be done,
executed and delivered, all such further acts and instruments that the other
party hereto or any of its successors or permitted assigns may reasonably
request in order to more fully evidence the sale and transfer of the Sold
Assets.  To the extent any payment of any
amounts owed to the Buyer are received by the Seller after the Closing, the
Seller will, within five Business Days, (i) notify the Buyer of such
receipt and (ii) transfer such funds and related supporting customer
remittance or other lockbox receipt details received to the Buyer, without set
off, recoupment, holdback, or debit or any kind or nature.  To the extent any payment of any amounts owed
to the Seller are received by the Buyer after the Closing, the Buyer will,
within five Business Days, (i) notify Seller of such receipt and (ii) transfer
such funds and related supporting customer remittance or other lockbox receipt
details received to the Seller, without set off, recoupment, holdback, or debit
or any kind or nature.  In the event
either of the Seller or the Buyer receive any checks made payable to the other
in payment of any amounts owed to the other party, each party will promptly
endorse such checks to the order of the other party and take such other actions
to enable the proper party to deposit such checks in the party’s accounts.


 


ARTICLE
III.

REPRESENTATIONS AND WARRANTIES OF THE SELLER


 


The Seller and TW
International (with respect to Sections 3.1(b), 3.2(b) and 3.3)  represent and warrant to the Buyer as of the
date of this Agreement and as of the Closing Date as follows:


 


26

















 


3.1                                 Organization.


 


(a)           The Seller is a limited liability company
duly formed, validly existing and in good standing under the Laws of the State
of Delaware.  The Seller has all
requisite power and authority to own, lease and operate its assets and to carry
on its business as now being conducted and is duly qualified or licensed to do
business and is in good standing in the jurisdictions in which the ownership, lease or operation of its property
or the conduct of its business requires such qualification or license, except
where the failure to be so qualified or licensed would not have and could not
reasonably be expected to have a Material Adverse Effect or a material adverse
effect on the ability of the Seller to consummate the transactions contemplated
by this Agreement.  The Seller is qualified or licensed to do
business in the State of Alabama and the Commonwealth of Pennsylvania.


 


(b)           TW International is a limited
liability company duly formed, validly existing and in good standing under the
Laws of the State of Delaware.  TW
International has all requisite power and authority to own, lease and operate
its assets and to carry on its business as now being conducted and is duly
qualified or licensed to do business and is in good standing in the
jurisdictions in which the ownership, lease or operation of its property or the
conduct of its business requires such qualification or license, except where
the failure to be so qualified or licensed would not have and could not
reasonably be expected to have a material adverse effect on the ability of TW
International to perform its obligations under this Agreement.


 


3.2                                 Authorization; Enforceability.


 


(a)           The Seller has the limited liability
company power and authority to execute and deliver this Agreement and each
Ancillary Agreement to which it is a party and perform its obligations
hereunder and thereunder.  The execution
and delivery of this Agreement and the Ancillary Agreements to which the Seller
is a party and the performance by it of its obligations hereunder and
thereunder have been duly authorized by all necessary limited liability company
action on the part of the Seller.  This
Agreement has been duly executed and delivered by the Seller and, assuming due
authorization, execution and delivery by the Buyer, constitutes a valid and
binding agreement of the Seller, enforceable against it in accordance with its
terms, subject to General Enforceability Exceptions.


 


(b)           TW International has the limited
liability company power and authority to execute and deliver this Agreement and
each Ancillary Agreement to which it is a party and perform its obligations
hereunder and thereunder.  The execution
and delivery of this Agreement and the Ancillary Agreements to which TW
International is a party and the performance by it of its obligations hereunder
and thereunder have been duly authorized by all necessary limited liability
company action on the part of TW International. 
This Agreement has been duly executed and delivered by TW International
and, assuming due authorization, execution and delivery by the Buyer,
constitutes a valid and binding agreement of TW International, enforceable
against it in accordance with its terms, subject to General Enforceability Exceptions.


 


3.3                                 Membership Interests.


 


TW International owns all
of the membership interests of the Seller.


 


27

















 


3.4                                 Financial Statements; Accounting Controls
and Procedures.


 


(a)           Attached as Schedule 3.4 are (i) the
unaudited statement of assets and liabilities of the Huntsville Business as of December 31,
2008, and the unaudited statement of income of the Huntsville Business for the
year then ended, (ii) the unaudited statement of assets and liabilities of
the Huntsville Business as of December 31, 2009, and the unaudited
statement of income of the Huntsville Business for the year then ended
(collectively, the “Financial Statements”), and (iii) unaudited
statement of assets and liabilities of the Huntsville Business as of March 31,
2010 and the unaudited statement of income of the Huntsville Business for the
three-month period then ended (the “Interim Financial Statements”).   The foregoing income statements and
statements of assets and liabilities included in the Financial Statements and
Interim Financial Statements include the corporate allocations (such as
insurance and selling, general and administrative expenses) described on
Schedule 3.4.  The Financial Statements and
Interim Financial Statements present fairly, in all material respects, the
financial condition and the results of operations of the Huntsville Business as
of their respective dates and for the respective periods then ended.  The Financial Statements have been prepared
in accordance with GAAP, except with respect to (A) accounting for
inventory and the capitalization of manufacturing labor and overhead variances
into inventory and the testing of lower cost or market, (B) the
recognition of pension accounting and (C) other
minor deviations from GAAP that are not material in the aggregate.


 


(b)           The Seller, with respect to the
Huntsville Business, maintains a separation of duties in the management of its
financial books and records.  The Seller
maintains responsibility for control over its cash receipts and disbursements
separate from the accounting organization in its treasury department.  The treasury department scrutinizes the
Seller’s cash receipts and other receivables. 
The treasury department requires a three way match of purchase order,
receipt of goods, and invoice before a payment is made and any deviations from
this practice require the approval of the Seller’s treasurer.  The Seller maintains its cash holdings at a
physical location separate from the Seller Owned Real Property.  The information technology enterprise
resource planning systems of the Seller include controls that limit user access
to the functions and information necessary for each user to perform his or her
responsibilities.  The Seller’s
accounting organization reconciles accounts and Seller’s financial management
periodically (though not systematically) reviews key accounts.  The Seller performs a count of all
inventories one time per year and reconciles the count to its ledgers.  The Seller performs a count on certain inventory
items on a more regular basis.  The
Seller’s controller compiles the financial results of the Seller.  These results are reviewed periodically with
the Seller’s management and board of managers and delivered to the Seller’s
lenders with an attestation as to the validity thereof from the Seller’s chief
financial officer.  To the Knowledge of
the Seller, the foregoing controls and procedures provide reasonable assurance
that material transactions are duly authorized, executed and recorded on the
books and records of the Seller.  The
Seller does not have an internal audit department and there is no independent
audit of the Seller’s books and records. 
Nothing in this Section 3.4(b) shall be deemed to limit the
representations and warranties contained in Section 3.4(a).


 


28

















 


3.5                                 No Approvals or Conflicts.


 


(a)           Except as set forth on Schedule
3.5, the execution, delivery and performance by the Seller of this
Agreement and the Ancillary Agreements to which it is a party and the
consummation by the Seller of the transactions and performance of its
obligations contemplated hereby and thereby do not and will not (i) violate,
conflict with or result in a breach by the Seller of its organizational
documents (including its certificate of formation and limited liability company
agreement), (ii) violate, conflict with or result in a breach of, or
constitute a default by the Seller (or create an event that, with notice or
lapse of time or both, would constitute a default) or give rise to any payment
or other penalty or any right of termination, cancellation or acceleration that could be materially adverse to the
transactions contemplated by this
Agreement, or result in the creation of any Encumbrance upon any of the
Sold Assets, under any material note, bond, mortgage, indenture, deed of trust,
license, franchise, permit (including the permits listed on Schedule 3.13),
lease, contract or other instrument to which the Seller or any of the Sold
Assets may be bound, (iii) violate or result in a material breach of any
Governmental Order or Law applicable to the Seller or any of the Sold Assets or
(iv) except for filings with the Bankruptcy Court and the issuance of the
Sale Order and as may be required by any unique aspect of Buyer, require any
order, consent, approval or authorization of, or notice to, or declaration,
filing, application, qualification or registration with, any Governmental
Authority.


 


(b)           The execution, delivery and
performance by TW International of this Agreement and the Ancillary Agreements
to which it is a party and the performance of its obligations contemplated
hereby and thereby do not and will not (i) violate, conflict with or
result in a breach by TW International of its organizational documents (including
its certificate of formation and limited liability company agreement), (ii) violate,
conflict with or result in a breach of, or constitute a default by TW
International (or create an event that, with notice or lapse of time or both,
would constitute a default) or give rise to any payment or other penalty or any
right of termination, cancellation or acceleration, under any material note,
bond, mortgage, indenture, deed of trust, license, franchise, permit, lease,
contract or other instrument to which TW International or its assets may be
bound, (iii) violate or result in a material breach of any Governmental
Order or Law applicable to TW International or any of the Sold Assets or (iv) except
for filings with the Bankruptcy Court and the issuance of the Sale Order and as
may be required by any unique aspect of Buyer, require any order, consent,
approval or authorization of, or notice to, or declaration, filing,
application, qualification or registration with, any Governmental Authority.


 


3.6                                 Compliance with Law; Permits.


 


Except as set forth on Schedule
3.6(i) (and except with respect to compliance with Environmental Laws,
which is covered solely by Section 3.13), since December 7, 2007,  the Seller has conducted the Huntsville
Business, and the Sold Assets have been maintained, in compliance in all
material respects with all Laws.  Except
with respect to Permits required under Environmental Laws (which are covered
solely by Section 3.13), the Seller possesses all material Permits
necessary to conduct the Huntsville Business as conducted since December 7,
2007, and as necessary to own, lease or operate the Sold Assets as owned,
leased or operated by Seller since December 7, 2007.  All Permits described in the immediately
preceding sentence are listed 


 


29

















 


on Schedule 3.6(ii).  All
such Permits necessary to
conduct the Huntsville Business as conducted since December 7, 2007 and
operate the Sold Assets as operated since December 7, 2007 are in full
force and effect and, except as set forth on Schedule 3.5 or Schedule
3.6, are transferable to the Buyer at the Closing.  Since December 7,
2007, the Huntsville Business has been conducted, in all material respects, in
accordance with the requirements of such Permits.


 


3.7                                 Proceedings.


 


Except as set forth on Schedule
3.7 (and except with respect to Environmental Claims, which are covered
solely by Section 3.13), there are no Proceedings pending or, to the
Knowledge of the Seller, threatened against the Huntsville Business or the
Seller.


 


3.8                                 Tax Matters.


 


Except as set forth on Schedule
3.8:


 


(a)           (i) All Tax Returns of the
Seller and all other income, sales and other material Tax Returns that relate
to the Huntsville Business or the Sold Assets have been timely filed, and all
such Tax Returns have been properly completed in compliance with all applicable
Laws, and are true, correct and complete; and (ii) all Taxes shown to be
due on any such Tax Return, and all other Taxes due and payable by Seller or
that relate or are attributable to the Huntsville Business or the Sold Assets,
have been timely paid (whether or not shown or required to be shown on any Tax
Return) except for Taxes specifically listed on Schedule 3.8 being
contested in good faith and for which adequate reserves have been established
and maintained in accordance with the Agreed Principles of the Seller and
specifically listed on Schedule 3.8.


 


(b)           The Seller  has
duly and timely collected and remitted all sales, use, excise or similar Taxes
related or attributable to the Sold Assets or the Huntsville Business in
accordance with applicable Law.  The
Seller does not have any Liability for the Taxes of any third Person with
respect to the Sold Assets as a transferee or successor, by contract or
otherwise.


 


(c)           No material reassessments (for
property, ad valorem or other Tax purposes) of any of the Sold Assets have been
proposed in writing.


 


(d)           There are no Encumbrances relating to
Taxes encumbering any Sold Assets, except for Permitted Encumbrances.


 


(e)           The Seller is, and has been for its
entire existence, a disregarded entity within the meaning of Treasury
Regulations Section 301.7701-3(b)(1)(ii).


 


(f)            No claim has ever been made by any
Governmental Authority in a jurisdiction where the Seller does not file Tax
Returns that the Seller is or may be subject to taxation by that
jurisdiction.  All Taxes that the Seller
is required to have withheld or collected have been duly withheld or collected
and, to the extent required, have been paid to the appropriate Taxing Authority,
including, without limitation, all Taxes required to have been withheld or
collected and paid in connection with amounts paid or owing to any employee,
former employee, partner, independent contractor, creditor, shareholder,
member, affiliate, customer, supplier or other third party, and all Forms W-2
and 1099 required with respect thereto 


 


30

















 


have been properly
completed and timely filed.  None of the
Sold Assets (i) is stock of any corporation or other entity classified for
federal income tax purposes as an association taxable as a corporation, (ii) is
“tax-exempt use property” within the meaning of Section 168(h) of the
Code, or (iii) secures any debt, the interest on which is exempt from Tax
under Section 103 of the Code.  The
Seller is not a party to any “safe harbor lease” that is subject to the
provisions of Section 168(f)(8) of the Internal Revenue Code as in
effect prior to the Tax Reform Act of 1986. 
No Change in Control Payments will be nondeductible under Section 280G
or 162(m) of the Code or subject to Tax under Section 4999 of the
Code.  No member of the Seller and no
manager, director or officer (or employee responsible for Tax matters) of
Seller expects any Governmental Authority to assess any additional Taxes for
any period for which Tax Returns have been filed.  To the Knowledge of the Seller
there is no dispute or claim concerning any Tax Liability of the Seller.


 


(g)           The unpaid Taxes of the Seller (A) did
not, as of March 31, 2010, exceed the reserve for Tax Liability (rather
than any reserve for deferred Taxes established to reflect timing differences
between book and Tax income) set forth on the face of the balance sheet
included in the Interim Financial Statements (rather than in any notes thereto)
and (B) do not exceed that reserve as adjusted for the passage of time
through the Closing Date in accordance with the past custom and practice of
Seller in filing their Tax Returns.


 


3.9                                 Employee Benefits.


 


Schedule 3.9 sets forth a list of (a) each “employee
benefit plan” (within the meaning of Section 3(3) of ERISA), (b) all
other severance, salary continuation, Change of Control Payment, employment,
incentive, bonus, option, membership interest purchase, restricted membership
interest, retirement, pension, redundancy, profit sharing or deferred
compensation plans (whether qualified or nonqualified), programs, agreements or
policies and (c) all other employee benefit plans or programs, in each
case (i) in which Huntsville Employees participate (other than any such
plans, programs, agreements or policies required by Law to be provided to any
such employees, including workers’ compensation or similar benefits) sponsored
or maintained by the Seller, (ii) with respect to which the Seller has made
or is required to make payments, transfers or contributions for Huntsville
Employees or (iii) or with respect to which the Seller has any current or
contingent Liability (collectively, the “Benefit Plans”).  There is no lien pursuant to Code Sections
412(n) (as in effect through the date of its repeal) or 430(k) or
pursuant to ERISA Sections 303(k), 4062 or 4068 in favor of, or enforceable by,
the Pension Benefit Guaranty Corporation or any other entity with respect to
any of the Sold Assets.  For purposes of
this Section 3.9 only, the term “Seller” includes any ERISA
Affiliate.


 


3.10                           Labor Relations.


 


(a)           The Seller is not a party to any collective
bargaining agreement applicable to the Huntsville Employees, nor is any such contract or
agreement presently being negotiated; (b) there is no unfair labor
practice charge or complaint pending or, to the Knowledge of the Seller,
threatened against the
Seller with respect to the Huntsville Employees; (c) there have been no
grievances, arbitrations or other similar proceedings since December 7,
2007 under, or pertaining to, any collective bargaining agreement or any
associated side letters or agreements applicable to employees of the Seller; and (d) there is, and
since December 7, 2007 there has 


 


31

















 


been,
no labor strike, slowdown, work stoppage, or lockout in effect, or, to the
Knowledge of the Seller, threatened against or otherwise affecting the Seller. 
To the Knowledge of the Seller, there is no effort to organize employees
of the Seller  that is pending or threatened as of the
date hereof.


 


3.11                           Intellectual
Property.


 


(a)           Notwithstanding anything to the contrary
contained in this Agreement, only the representations and warranties contained
in this Section 3.11 shall apply to the Acquired Intellectual Property.


 


(b)           Schedule 3.11
sets forth a complete and correct list of all of the registered forms
(including all applications for registration) and all material unregistered
forms of the Acquired Intellectual Property.


 


(c)           Except as otherwise
specifically identified on Schedule 3.11, all registered forms
(including all applications for registration) of the Acquired Intellectual
Property identified on Schedule 3.11 have been duly issued (or in the
case of applications for registration, duly filed) and have not been cancelled,
abandoned or otherwise terminated.


 


(d)           None of the unregistered
forms of the Acquired Intellectual Property identified on Schedule 3.11
has been abandoned.


 


(e)           Except as otherwise
specifically set forth on Schedule 3.11, all actions required to have
been taken from and after December 7, 2007 to record each owner throughout
the chain of title of all of the Acquired Intellectual Property required to
have been listed on Schedule 3.11, with each applicable Governmental
Authority up to the date of this Agreement, have been taken, including payment
of all costs, fees, taxes and expenses associated with such recording
activities.


 


(f)            Except as otherwise
specifically set forth on Schedule 3.11 or Schedule 3.12(a),
the Seller is the sole owner of
all right, title and interest in and to all of the registered forms (including
all applications for registration) and all of the material unregistered forms
of the Acquired Intellectual Property, free and clear of all Encumbrances other
than Permitted Encumbrances, and all governmental fees associated therewith and
due as of the date of this Agreement have been paid in full.


 


(g)           Except as otherwise
specifically set forth on Schedule 3.11 or Schedule 3.12(a),
to the Knowledge of the Seller, since December 7, 2007, the Seller has used commercially reasonable
efforts to protect the secrecy and confidentiality of the trade secrets used or
held for use primarily in the Huntsville Business.


 


(h)           Set forth on Schedule
3.11 is a complete and correct list of all proprietary software included in
the Acquired Intellectual Property.


 


(i)            Except pursuant to a
Contract set forth in subsection 3.12(a)(v) of Schedule 3.12(a),
since December 7, 2007, the Seller has not licensed any material Intellectual Property with
respect to the Huntsville Business from any Person.


 


32

















 


(j)            Except pursuant to a
Contract set forth in subsection 3.12(a)(v) of Schedule 3.12(a),
since December 7, 2007, the Seller has not granted any license or other right that does or
that will, subsequent to the Closing, permit or enable any third Person other
than the Buyer to use any Acquired Intellectual Property, and no such licenses or rights are in effect.


 


(k)           Except as set forth on Schedule
3.7, since December 7, 2007, the Seller has not received any written
notice of any claim and, to the Knowledge of the Seller, there is no threatened
claim against the
Seller asserting that any of the Acquired Intellectual Property infringes upon or
otherwise conflicts with the Intellectual Property of any Person, and the Seller has not given any notice to any
Person asserting infringement by such Person of any of the Acquired
Intellectual Property.


 


(l)            Except as otherwise specifically set
forth on Schedule 3.11 or in subsection 3.12(a)(v) of Schedule 3.12(a),
immediately upon Closing, the Buyer shall own all registered forms of
(including all applications for registration) and all unregistered forms of
Intellectual Property included in the Acquired Intellectual Property.


 


(m)          Subsection 3.11(m) of Schedule
3.11 is a complete and correct list of all registered trademarks and domain
names (including applications for registration) owned by the Seller that
include the “Taylor-Wharton” name and abbreviations thereof (including “TW”).  The continued ownership and
the use after the Closing of such trademarks and domain names shall be governed
by Sections 2.2(b) and 5.8, hereof.


 


3.12                           Contracts.


 


(a)           Schedule 3.12(a)sets
forth all of the following contracts and agreements (“Contracts”) to
which the Seller is a party or by which it is bound (in either case, with
respect to the Huntsville Business) as of the date of this Agreement, other
than Benefit Plans (collectively, the “Material Contracts”):


 


(i)            Contracts involving the expenditure by the Seller (with
respect to the Huntsville Business) of more than $10,000  in
any instance for the purchase of materials (other than raw materials, which is
covered by clause (xii) below), supplies, equipment or services;


 


(ii)           indentures, mortgages, loan agreements, capital leases,
security agreements, or other Contracts for the borrowing of money by the
Seller, other than any of the foregoing from which the Sold Assets will be
released in connection with the transactions contemplated hereby;


 


(iii)          guarantees of the obligations of other Persons, other than
any of the foregoing from which the Sold Assets will be released in connection
with the transaction contemplated hereby;


 


(iv)          Contracts that restrict the assignees of the Seller after
the date of this Agreement from engaging in any line of business in any
geographic area or competing with any Person;


 


33














 


(v)           Contracts under which the Seller has licensed material Intellectual Property
(other than shrink-wrap, click-wrap and off-the-shelf software) to or from any
other Person (including Affiliates of the Seller);


 


(vi)          partnership, limited liability company, joint venture
agreements or other agreements involving a sharing of the profits or expenses
by the Seller;


 


(vii)         Contracts under which the Seller will have obligations or contingent
Liabilities after the date of this Agreement relating to the acquisition or
sale of any business enterprise;


 


(viii)        Contracts by and among the Seller, on the one hand, and any of its
Affiliates, on the other hand, including the Supply Agreement, dated January 1,
2009, by and between the Seller and Sherwood Valve LLC;


 


(ix)          any Contract (including employment and consulting
Contracts) with any current or former manager, officer or employee of the Seller;


 


(x)           distributor, sales representative, agency, dealer or
similar Contracts;


 


(xi)          except as set forth with respect to clause (v) above,
any Contract providing that the Seller will receive future payments (with respect to the
Huntsville Business) aggregating more than $10,000 prior to the expiration of
such Contract, other than purchase orders for the sale of Products by the Seller
in the ordinary course of business;


 


(xii)         Contracts involving the expenditure by the Seller (with respect to the
Huntsville Business) of more than $10,000 for the purchase of raw materials;


 


(xiii)        any Contract which obligates the Seller or the Huntsville
Business to provide any rebates or discounts; and


 


(xiv)        any Contract
containing any “take or pay” provisions or minimum purchase conditions or
requirements involving the expenditure by the Seller (with respect to the Huntsville
Business) of more than $10,000 in any instance
for the purchase of raw materials, excluding any such Contracts that are terminable by the
Seller without penalty on not more than 30 days’ notice.


 


(b)           Except for the TWI Loan
Documents, true and complete copies (or, if oral, written summaries) of each of
the Material Contracts have been provided to the Buyer or its representatives.


 


(c)           Except as set forth on Schedule
3.12(c), each Material Contract is in full force and effect, and is a valid
and binding agreement of the Seller and, to the Knowledge of the Seller, each of the other
parties thereto, enforceable by or against the Seller and, to the Knowledge of the
Seller, each of such other parties thereto in accordance with its terms,
subject to the General Enforceability Exceptions.  Except for the Proceedings in the Bankruptcy
Court 


 


34

















 


 


and
as set forth on Schedule 3.12(c), no condition exists or event has
occurred since December 7, 2007 that (whether with or without notice or
lapse of time or both) would constitute a material default by (i) the Seller under any Material Contract or (ii) to
the Knowledge of the Seller, any other party to any Material Contract.


 


3.13                        Environmental
Matters.


 


To
the extent that Seller or TW International makes any representation or warranty
in this Section 3.13 with respect to any period of time, or any event,
occurrence or other matter that occurred, prior to December 7, 2007, that
representation or warranty is hereby qualified by and made solely with respect
to the Knowledge of the Seller.  Except
as otherwise disclosed in any audit, study, report, analysis or result of
investigation identified on Schedule 3.13 or the report attached hereto
as Exhibit 3.13:


 


(a)           The Seller with respect
to the Seller Owned Real Property is in compliance with all applicable
Environmental Laws.  All licenses and
permits currently held by the Seller pursuant to Environmental Laws with
respect to the Seller Owned Real Property are identified on Schedule 3.13(a).  The Seller is in full compliance with such
licenses and permits and, to the extent required prior to Closing, timely and
complete application has been or will be made for renewal, extension, or
reissuance of all such licenses and permits, and no Governmental Authority has
provided the Seller with any written statement to the effect that such renewal,
extension, or reissuance will be denied. 
To the Knowledge of the Seller , no Governmental authority has indicated
that any license or permit held by Seller with respect to the Seller Owned Real
Property, the Sold Assets or the Huntsville Business may not be renewed,
extended or reissued in due course and as requested without the imposition of a
penalty.


 


(b)           The Seller is not
subject to an order of any court or Governmental Authority relating to any
Environmental Law and there is no Environmental Claim pending or, to the
Knowledge of the Seller, threatened against the Seller with respect to the
Seller Owned Real Property.


 


(c)           No Hazardous Materials
have been stored, transported, treated or disposed of on, in, under, or from
the Seller Owned Real Property in any manner that violates applicable
Environmental Laws.


 


(d)           Except for routine
inspections, there have been and are no investigations of the Seller Owned Real
Property under any Environmental Law, or any activities conducted thereon, by
any Governmental Authority or other Person.


 


(e)           Schedule 3.13(e) lists
all environmental audits, studies, reports, analyses and results of
investigations related to the past or present environmental condition or
compliance status of the Sold Assets and/or the Seller Owned Real Property (“Reports”)
in Seller’s possession, custody or control. 
The Seller has provided to the Buyer true and complete copies of all
such Reports.


 


(f)            To the Knowledge of
Seller, there are not and have never been located at the Seller Owned Real
Property any underground storage tanks, above-ground storage tanks, dry
cleaning or laundry operations, gasoline filling stations, automobile repair
operations, waste 


 


35

















 


treatment,
storage or disposal areas, asbestos-containing materials, polychlorinated
biphenyls, or any other condition that may be a basis for Liability under any
Environmental Law.


 


(g)           The Seller has not
disposed or arranged for the disposal of any Hazardous Material at any off-site
location in any manner that may give rise to Liability under any Environmental
Law, including, but not limited to, the Comprehensive Environmental Response,
Compensation, and Liability Act, as amended, 42 USC 9601 et seq.


 


No
representations or warranties in this Agreement other than those set forth in
this Section 3.13 will be deemed to relate to Environmental Laws, Releases
of Hazardous Materials or other environmental matters.


 


3.14                        Personal Property
Assets.


 


(a)           The Seller has good and valid title to, or
holds by valid and existing lease or license, all the material tangible
personal property assets included in the Sold Assets, reflected as assets on
the Statement of Assets and Liabilities, or acquired after December 31,
2009, except with respect to inventory disposed of in the ordinary course of
business consistent with past practice since such date, free and clear of all
Encumbrances except for Permitted Encumbrances.  The Harrisburg Assets are not subject to any
lien in favor of the landlord of the Seller Leased Real Property.


 


(b)           Except as set forth on Schedule
3.14, all such personal property
assets included in the Sold Assets (other than the Harrisburg Assets) are (x) free from any
material defects, (y) in reasonably good maintenance, operating condition
and repair, normal wear and tear excepted and (z) reasonably suitable for
the purposes for which such personal property is has been used since December 7, 2007.


 


(c)           As of January 27,
2010, the forge and draw bench which are included in the Harrisburg Assets were
in good working condition.  Such forge
and draw bench have not been used since January 27, 2010 and, to the
Knowledge of the Seller, remain in the same condition as they were in on January 27,
2010.  Except as otherwise set forth in this Agreement, Seller makes no representation or warranty of any kind
whatsoever, whether express or implied, oral or written, regarding any Harrisburg Assets, and, except as set forth in this
Agreement, Buyer acknowledges and agrees that it is purchasing the tangible personal
property assets listed
on Schedule 2.1(a)(ii) on an AS IS WHERE IS basis.  All of the Harrisburg Assets are located at
the Seller Leased Real Property.


 


3.15                        Seller Owned Real
Property.


 


With respect to the
Seller Owned Real Property, except as otherwise specified on Schedule 3.15:


 


(a)           the Seller has good and marketable
fee simple title to the Seller Owned Real Property, free and clear of any
Encumbrances, except for Permitted Encumbrances;


 


36

















 


(b)           there are no pending or, to the
Knowledge of the Seller, threatened Proceedings (including condemnation or land
use or zoning related actions) affecting the Seller Owned Real Property, except
for such Proceedings as are listed on Schedule 3.15(b);


 


(c)           all real property Taxes and
assessments are current and have been paid when due and the Seller has not
received notice of any pending or threatened special assessment proceedings
affecting the Seller Owned Real Property;


 


(d)           except for Permitted Encumbrances,
the Seller Owned Real Property is not subject to a lease, sublease, license or
other agreement, written or, to the Knowledge of the Seller, oral, granting any
Person any right to the use, occupancy or enjoyment thereof (or any portion
thereof);


 


(e)           to the Knowledge of the Seller,
water, electric, gas and sewer utility services and septic tank and storm
drainage facilities currently available are adequate in all material respects
for the present use of the Seller Owned Real Property in the conduct of the
Huntsville Business;


 


(f)            the electrical, mechanical,
plumbing, heating, air conditioning, ventilation, fire detection and sprinkler
systems in the buildings, and the boilers, and the roofs and walls and
foundations of the buildings, are in reasonably good maintenance, operating
condition and repair, subject to ordinary wear and tear; and


 


(g)           there are no existing violations of
any Laws applicable to the Seller Owned Real Property, including zoning
ordinances, regulations, orders or requirements of departments of housing,
building, fire, labor, health, or other municipal departments or other
Governmental Authority having jurisdiction against or affecting the Seller Owned
Real Property, that could have a Material Adverse Effect on the Huntsville
Business.


 


3.16                        No Brokers’ or Other
Fees.


 


No
Person has acted, directly or indirectly, as a broker, finder, financial
advisor or investment banker for the Seller in connection with the transactions
contemplated by this Agreement and no Person is entitled to any fee or
commission or like payment in respect thereof.


 


3.17                        Undisclosed
Liabilities.


 


Except
for Liabilities (a) expressly reflected or reserved against on the Interim
Financial Statements, (b) arising in the ordinary course of business since
the date of the Interim Financial Statements under any Contract (excluding any
Liability for a breach of any such Contract) to which the Seller (with respect to the
Huntsville Business) is a party, (c) otherwise incurred in the ordinary
course of business since the date of the Interim Financial Statements or (d) specifically
disclosed on Schedule 3.17 or any other Disclosure Schedule to this
Agreement, the Seller
(with respect to the Huntsville Business) does not have any Liabilities required to
be set forth on a balance sheet prepared in accordance with GAAP or in the
notes to such a balance sheet.


 


37

















 


3.18                        Customers and
Suppliers.


 


Schedule
3.18 lists the 10 largest customers of the Seller with respect to the Huntsville Business (based on gross
sales) during the 2008 and 2009 fiscal years (the “Customers”) and the
10 largest suppliers of goods or services (the “Suppliers”) to the Seller with respect to the Huntsville
Business (based on expenditures) during the 2008 and 2009 fiscal years, and, with
respect to each, the name and dollar volume involved.  Since December 31, 2009, no Customer or
Supplier has terminated or materially and adversely altered its relationship
with the Seller (with
respect to the Huntsville Business). 
To the Knowledge of the Seller no Customer or Supplier has any intention
to terminate or materially and adversely alter its relationship with the Seller (with respect to the Huntsville
Business), including, without limitation, to:


 


(a)           cease the use of the Products or
services of the Huntsville Business;


 


(b)           substantially reduce the use of the
Products or services of the Huntsville Business;


 


(c)           seek to reduce the price it will pay
for the Products or services of the Huntsville Business;


 


(d)           seek to increase the price it will
charge for Products or services supplied to the Business;


 


(e)           threaten Seller or place Seller on
probation or put Seller on the “no bid” or similar list for future orders;


 


(f)            seek to materially change the
volume, timing or specifications of any present or new business; or


 


(g)           seek to alter the specifications of
any Products, in any material respect.


 


The parties agree that
Seller will not be in breach of this representation if, between the date of
this Agreement and the Closing, a Customer notifies Seller or Seller otherwise
becomes aware, that a Customer intends to take an action described in this Section 3.18
as a result of the termination of the rebate agreement set forth on Schedule
2.2(c) with such Customer, if any; provided that Seller complies with its
obligation to provide Buyer with prompt written notice of the receipt of such
notification or that it has become aware of such intention.


 


3.19                        Product and Services
Liability.


 


(a)           A complete and correct
copy of the standard terms and conditions of sale for each of the Products or
services of the Seller constituting a part of the Huntsville Business
(containing applicable guaranty, warranty and indemnity provisions) is attached
as Schedule 3.19(a).  Except
as set forth on Schedule 3.19(a), no product manufactured, sold, or
delivered by, or service rendered by or on behalf of, the Seller with respect
to the Huntsville Business is subject to any guaranty, warranty or other
indemnity, express or implied, other than as expressly provided under such
standard terms and conditions attached hereto.


 


38

















 


(b)           Set forth on Schedule 3.19(b) is
a list and brief description of every claim (whether based on strict liability,
negligence, breach of warranty (express, implied or as required by applicable
law), breach of contract, tort or otherwise) that has been made since December 7,
2007, or that is pending or, to the Knowledge of the Seller, threatened,
against the Seller in respect of any product, component or other item
manufactured, sold, designed or produced or service rendered by the Seller in
connection with the Huntsville Business. 
Set forth on Schedule 3.19(b) is a list of every claim
(whether based on strict liability, negligence, breach of warranty (express,
implied or as required by applicable law), breach of contract, tort or
otherwise) that, to the Knowledge of the Seller, has been made or is pending or
threatened, against Harsco Corporation, in respect of any product, component or
other item manufactured, sold, designed or produced or service rendered by
Harsco Corporation in respect of its business conducted at the Seller Owned Real Property.


 


(c)           Except as set forth on Schedule
3.19(c), Seller has not entered into, or offered to enter into, any
agreement, contract commitment or other arrangement (whether written or oral)
pursuant to which the Huntsville Business or the Seller is or will be obligated
to make any rebates, discounts, promotional allowances or similar payments or
arrangements to any customer of the Huntsville Business (“Rebate Obligations”).  All Rebate Obligations are fully and
accurately reflected in the Financial Statements.


 


(d)           Except as set forth on Schedule
3.19(d), there is and there has been, no pending or, to the Knowledge of
the Seller, threatened claim, action, suit, proceeding, arbitration or
investigation against the Seller for injury to person or property of employees
or any third parties suffered as a result of the sale of any product or
performance of any service by the Seller in connection with the Huntsville
Business, including claims arising out of the alleged defective or unsafe
nature of its products or services.


 


(e)           Except for the Aviation
Recall, there is no pending or, to the Knowledge of the Seller, threatened
recall (whether government required or initiated by Seller) or investigation of
any product designed, manufactured or sold by the Seller in connection with the
Huntsville Business.


 


3.20                        Acquired Inventory.


 


All
of the Acquired Inventory are in good and usable condition, are useable or
saleable in the ordinary course of business and are carried on the books and
records of the Seller (including the Financial Statements and the Interim
Financial Statements) at the lower of cost (determined on a first-in-first-out
basis) or market value in accordance with the Agreed Principles, subject to any reserves
(determined in accordance with the Agreed Principles) for obsolete or slow-moving
inventory set forth on such financial statements.  Since December 31, 2009, there has not
been a material change in the method of valuing the Acquired Inventory or in
the determination of how and whether costs or other items are capitalized into
inventory.  Schedule 3.20 sets
forth all material consignment agreements pursuant to which Acquired Inventory are now consigned or have been
consigned to others since December 7, 2007.  All Acquired Inventory (other than Acquired
Inventory in transit or Acquired Inventory consigned to others) are located at
the Seller Owned Real Property.  None of
the Acquired Inventory was manufactured in whole or in part by Seller at a
location other than the Seller Owned Real Property.


 


39

















 


3.21                        Accounts Receivable.


 


(a)           Schedule 3.21(a) sets
forth a true, correct and complete list as of the date set forth thereon of the
accounts, notes and other receivables of the Seller with respect to the Huntsville Business (collectively, the “Acquired
Accounts Receivable”).  Schedule
3.21(a) includes an aging of all the Acquired Accounts Receivable
showing amounts due in 30-day aging categories. 
Not less than five Business Days prior to the Closing Date, the Seller
shall deliver to the Buyer a true, complete and correct list of all Acquired
Accounts Receivable, including an aging in 30-day categories, as of a date not
more than five Business Day  prior to the
Closing Date, which shall be attached to Schedule 3.21(a).  None of the Acquired Accounts Receivable
arose from the sale of Inventory manufactured in whole or in part by Seller at
a location other than the Seller Owned Real Property.


 


(b)           The Acquired Accounts
Receivable represent or will
represent valid obligations arising solely out of bona fide sales, performance
of services and other business transactions in the ordinary course of business
consistent with past practice, and are
not subject to set-offs, counterclaims or valid defenses, subject to allowances
for bad debt recorded (i) on the Interim Financial Statements as of the
date of such Interim Financial Statements or (ii) on the Closing Balance
Sheet as of the date of such Closing Balance Sheet.  No person has made any request or agreement
for deduction or discount under any Acquired Accounts Receivable.  No such Acquired Accounts Receivable are owed
by a Person or entity that has sought the protection of any bankruptcy or
insolvency Law or is the subject of any dispute as to payment.  All Acquired Accounts Receivable, net of
rebates, are current and collectible.


 


3.22                        Acquisitions and
Divestitures.


 


The Seller was formed solely to acquire the Business and,
prior to the Seller’s acquisition of the Business on December 7, 2007, the
Seller had no assets or liabilities and did not conduct any operations.  Seller does not own any equity interest in
any other Person.


 


3.23                        Certain Business
Relationships with the Seller.


 


Except
as disclosed on Schedule 3.23, neither
the Seller, any Affiliate of Seller nor any current director, manager or
officer of the Seller (each, a “Related
Party”):  (a) owns, directly or
indirectly, any interest in any Person that is a competitor, supplier or
customer of the Huntsville Business; (b) owns, directly or indirectly, in
whole or in part, any material property, asset or right, real, personal or
mixed, tangible or intangible that is utilized by or in connection with the
Huntsville Business (including any of the Acquired Intellectual Property); (c) is
a customer or supplier of the Huntsville Business; or (d) directly or
indirectly has an interest in or is a party to any contract, agreement, lease,
arrangement or understanding, whether or not in writing, pertaining or relating
to the Huntsville Business, except for employment, consulting or other personal
service agreements; provided, however, the beneficial ownership of not more
than 2% of securities of any entity that are traded on a national securities
exchange or over-the-counter market shall not be deemed to breach this Section 3.23.


 


40

















 


3.24                        Employees;
Employment Matters.


 


(a)           Compliance with Laws.  Except as set forth on Schedule 3.24(a),
since December 7, 2007, the Seller (with respect to Huntsville Business) has complied in all
material respects with all applicable Laws relating to labor or labor relations
and employment standards, including any provisions thereof relating to wages,
hours, immigration control, discrimination, accommodation, retaliation or “whistle-blowing”,
employee safety and health, termination pay, vacation pay, fringe benefits,
employee benefits, collective bargaining and the payment and/or accrual of the
same and all insurance and all other costs and expenses applicable thereto.


 


(b)           WARN Act.  With respect to the transactions contemplated
by this Agreement, any notice required under any Law has been given or will be
timely given.  Except as set forth on Schedule
3.24(b), the
Seller has not implemented any plant closing or layoff of employees with respect
to the Huntsville Business that could implicate the Worker Adjustment and
Retraining Notification Act of 1988, as amended, or any similar foreign, state
or local law, regulation or ordinance (collectively, the “WARN Act”); provided,
however, that the foregoing representation shall not be deemed breached
by the Seller because of any action taken by the Buyer on or after the Closing
that, when combined with any action taken by the Seller prior to the Closing,
triggers, results in or causes to arise a Liability or obligation of the Seller
under the WARN Act.


 


3.25                        Sufficiency of Sold
Assets.


 


The
Sold Assets are adequate and sufficient for the operation of the Huntsville
Business, and constitute all of the assets, rights and properties necessary to
conduct the Huntsville Business, as conducted by the Seller since December 7,
2007.  The Sold Assets constitute all of
the assets, rights and properties owned by the Seller or its Affiliates and
used or held for use in the operation of the Huntsville Business.


 


3.26                        Absence of Changes.


 


Except as
disclosed on Schedule 3.26 and except for the transactions contemplated
by this Agreement, the Huntsville Business has been operated only in the
ordinary course consistent with the practice of the Seller since December 7,
2007.  Since December 31, 2009, and
with respect to the Huntsville Business, except as disclosed on Schedule
3.26 and except for the transactions contemplated by this Agreement, Seller
has not with respect to the Huntsville Business:


 


(a)           suffered any change in its condition
(financial or otherwise), operations (present or prospective), business
(present or prospective), properties, assets or liabilities, other than changes
in the ordinary course of business which have not had a Material Adverse
Effect;


 


(b)           suffered any damage, destruction or
loss of real or personal property (whether or not covered by insurance) having
a Material Adverse Effect;


 


(c)           incurred or agreed to incur any
indebtedness for borrowed money (excluding working capital borrowings in the
ordinary course of business consistent with past practice);


 


41

















 


(d)           paid nor became obligated to pay in
excess of $5,000 in the aggregate for fixed assets;


 


(e)           sold, purchased, transferred or
otherwise disposed of, or agreed to sell, purchase, transfer or otherwise
dispose of, through merger, consolidation, sale of assets, purchase of assets
or otherwise, any assets, or canceled, or agreed to cancel, any debts or
claims, other than the sale of inventory in the ordinary course of business
consistent with past practice;


 


(f)            mortgaged, pledged or subjected to
any Encumbrance, or agreed to mortgage, pledge or subject to any Encumbrance,
any of the Sold Assets;


 


(g)           entered into any new agreement or
arrangement with any Affiliates;


 


(h)           been threatened with or placed on
probation or put on the “no bid” or similar list by any Customer or Supplier or
had any material order canceled or, to the Knowledge of the Seller, been
threatened with cancellation of any material order;


 


(i)            entered into, made or permitted any
material amendment or termination of any of the Material Contracts other than
in the ordinary course of business;


 


(j)            experienced any shortage or
difficulty in obtaining any raw materials or components which caused a stoppage in
the operations of a customer;


 


(k)           made any change in its Tax or
accounting methods or practices with respect to its condition, operations,
business, properties, assets or liabilities;


 


(l)            made any change in its practices
with respect to the collection of its Accounts Receivables, payment of accounts
payable or purchase and sale of Inventory;


 


(m)          deferred or delayed any capital
expenditures; or


 


(n)           instituted, settled or agreed to
settle any material litigation, action or Proceeding before any court or Governmental
Authority.


 


3.27                        Capital Expenditures.


 


Set forth on Schedule 3.27
is a list of all expenditures made by the Seller with respect to the Huntsville
Business in 2008 and 2009 that should be treated as capital expenditures on a
balance sheet prepared in accordance with GAAP.


 


3.28                        Disclosure.


 


No statement,
representation or warranty made by the Seller in this Agreement or any
Ancillary Agreement schedules, attachments or exhibits attached to this
Agreement or any Ancillary Agreement, contains any untrue statement of any
material fact or omits a material fact necessary to make the statements
contained in this Agreement, the Ancillary Agreements or such schedules,
attachments or exhibits, not misleading.


 


42

















 


3.29                        No Other
Representations or Warranties.


 


Except
for the representations and warranties contained in this ARTICLE III (as
modified by the Disclosure Schedules hereto), neither the Seller nor any other
Person makes any other express or implied representation or warranty with
respect to the Seller, TW International, the Huntsville Business, the Sold
Assets, the Assumed Liabilities or the transactions contemplated by this
Agreement, and, except for the representations and warranties contained in this
ARTICLE III (as modified by the Disclosure Schedules hereto),the Seller
disclaims any other representations or warranties, whether made by the Seller, any Affiliate of the Seller or any of
their respective officers, directors, employees, agents or representatives, including any representation or warranty regarding the probable success
or profitability of the Huntsville Business or any projections, forecasts or
budgets provided with respect thereto, and including any confidential
memoranda distributed on behalf of the Seller relating to the Huntsville Business or other
publications or data room information provided to the Buyer or its
representatives, or any other document or information in any form provided to
the Buyer or its representatives, including management presentations, in
connection with the sale of the Huntsville Business and the Sold Assets, the
assumption of the Assumed Liabilities and the transactions contemplated
hereby.  Except for the representations
and warranties contained in this ARTICLE III (as modified by the Disclosure
Schedules hereto), the Seller (a) expressly disclaims any representation or
warranty, express or implied, at common law, by statute or otherwise relating
to the condition of the Huntsville Business or the Sold Assets (including any
implied or expressed warranty of merchantability or fitness for a particular
purpose, or of conformity to models or samples of materials) and (b) disclaims all
liability and responsibility for any representation, warranty, statement or
information made, communicated or furnished (orally or in writing) to the Buyer
or its Affiliates or representatives (including any opinion, information or
advice that may have been or may be provided to the Buyer by any director,
manager, officer, employee, agent, consultant or representative of the Seller
or any of its Affiliates).  The Seller makes no representations or
warranties to the Buyer regarding the probable success or profitability of the
Huntsville Business.


 


ARTICLE IV.

REPRESENTATIONS AND WARRANTIES OF THE BUYER


 


The
Buyer hereby represents and warrants to the Seller as follows:


 


4.1                               Organization.


 


The
Buyer is a corporation duly formed, validly existing and in good standing under
the Laws of the State of Delaware.  The
Buyer has all requisite power and authority to own, lease or operate its assets
and to carry on its business as now being conducted and is duly qualified or
licensed to do business and is in good standing in the jurisdictions in which
the ownership of its property or the conduct of its business requires such
qualification or license, except where the failure to be so qualified or
licensed would not reasonably be expected, individually or in the aggregate, to
have a material adverse effect on the ability of the Buyer to consummate the transactions
contemplated by this Agreement.


 


43

















 


4.2                               Authorization;
Enforceability.


 


The
Buyer has the corporate power and authority to execute and deliver this
Agreement and the Ancillary Agreements to which it is a party and perform its
obligations hereunder and thereunder. 
The execution and delivery of this Agreement and the Ancillary
Agreements to which it is a party by the Buyer and the performance by it of its
obligations hereunder and thereunder have been duly authorized by all necessary
corporate action by the
Buyer.  This Agreement has been duly
executed and delivered by the Buyer and, assuming due authorization, execution
and delivery by the Seller, constitutes a valid and binding agreement of the
Buyer, enforceable against it in accordance with its terms, subject to the General Enforceability Exceptions.


 


4.3                               No Approvals or
Conflicts.


 


The
execution, delivery and performance by the Buyer of this Agreement and the
Ancillary Agreements to which it is a party and the consummation by the Buyer
of the transactions contemplated hereby and thereby do not and will not (a) violate,
conflict with or result in a breach by the Buyer of (i) its organizational
documents (including its certificate of incorporation and bylaws) or (ii) any resolution(s) adopted
by the board of directors of the Buyer, (b) violate, conflict with
or result in a breach of, or constitute a default by the Buyer (or create an
event that, with notice or lapse of time or both, would constitute a default)
or give rise to any payment or other penalty or any right of termination,
cancellation or acceleration under, or result in the creation of any
Encumbrance upon any of the properties of the Buyer under, any material note,
bond, mortgage, indenture, deed of trust, license, franchise, Permit, lease,
contract, agreement or other material instrument to which the Buyer or any of
its properties may be bound, (c) violate or result in a material breach of
any Governmental Order or Law applicable to the Buyer or any of its properties
or (d) require any order, consent, approval or authorization of, or notice
to, or declaration, filing, application, qualification or registration with,
any Governmental Authority.


 


4.4                               Proceedings.


 


There
are no Proceedings pending or, to the Knowledge of the Buyer, threatened
against the Buyer or any of its Subsidiaries that would have a material adverse
effect on the ability of the Buyer to consummate the transactions contemplated
by this Agreement.  The Buyer is not
subject to any Governmental Order that would have a material adverse effect on
the ability of the Buyer to consummate the transactions contemplated by this
Agreement.


 


4.5                               Compliance with
Laws; Permits.


 


Neither
the Buyer nor any of its Subsidiaries is in violation of any Governmental Order
or Law applicable to them or any of their respective properties, except where
noncompliance would not have a material adverse effect on the ability of the
Buyer to consummate the transactions contemplated by this Agreement.


 


44

















 


4.6                               Financing.


 


The
Buyer has sufficient funds to pay the Purchase Price and all related
transaction expenses incurred by or on behalf of the Buyer and to consummate
the transactions contemplated hereby (the “Transaction Financing”).  There are no conditions precedent or other
contingencies related to the funding of the full amount of the Transaction
Financing.


 


4.7                               No Brokers’ or Other
Fees.


 


No
Person has acted, directly or indirectly, as a broker, finder, financial
advisor or investment banker for the Buyer in connection with the transactions
contemplated by this Agreement and no Person is entitled to any fee or
commission or like payment in respect thereof.


 


4.8                               Condition of the Business.


 


Notwithstanding anything
contained in this Agreement to the contrary, the Buyer acknowledges and agrees
that the Seller is not making any representations or warranties whatsoever,
express or implied, beyond those expressly given by the Seller in ARTICLE III
(as modified by the Disclosure Schedules hereto as supplemented or amended),
and the Buyer acknowledges and agrees that, except for the representations and
warranties contained in ARTICLE III, the Sold Assets and the Huntsville
Business are being transferred on a “where is” and, as to condition, “as is”
basis.  Any claims the Buyer may have for breach of representation or
warranty shall be based solely on the representations and warranties of the
Seller set forth in ARTICLE III (as modified by the Disclosure Schedules hereto
as supplemented or amended).  The Buyer further represents that
neither the Seller nor any of its Affiliates nor any other Person has made any
representation or warranty, express or implied, as to the accuracy or
completeness of any information regarding the Seller, the Huntsville Business,
the Sold Assets, the Assumed Liabilities or the transactions contemplated by
this Agreement not expressly set forth in ARTICLE III, and none of the Seller,
any of its Affiliates or any other Person will have or be subject to any
liability to the Buyer or any other Person resulting from the distribution to
the Buyer or its representatives or the Buyer’s use of any such information,
including any confidential memoranda distributed on behalf of the Seller
relating to the Huntsville Business, the Sold Assets, the Assumed Liabilities
or other publications or data room information provided to the Buyer or its
representatives, or any other document or information in any form provided to
the Buyer or its representatives, including management presentations, in
connection with the sale of the Huntsville Business and the Sold Assets, the
assumption of the Assumed Liabilities and the transactions contemplated hereby.


 


4.9          Solvency.


 


In completing the
transactions contemplated by this Agreement, the Buyer does not intend to
hinder, delay or defraud any present or future creditors of the Buyer or the
Seller.  Immediately after giving effect
to the consummation of the transactions contemplated by this Agreement, and
assuming the accuracy of the Seller’s representations and warranties contained
herein:


 


45

















 


(a)           the fair saleable value (determined
on a going concern basis) of the assets of the Buyer shall be greater than the
total amount of its Liabilities (including all Liabilities, whether or not
reflected in a balance sheet prepared in accordance with GAAP); and


 


(b)           the Buyer shall be able to pay its
debts and obligations in the ordinary course of business as they become due.


 


ARTICLE V.

COVENANTS AND AGREEMENTS


 


5.1                               Conduct of Business
Prior to the Closing.


 


Without
the consent of the Buyer, which consent shall not be unreasonably withheld,
conditioned or delayed, except as contemplated by this Agreement or as
disclosed on Schedule 5.1, from and after the date of this
Agreement and until the Closing, the Seller shall (i) conduct the
operations of the Huntsville Business in the ordinary course consistent in all material
respects with past practice and (ii) use its commercially reasonable efforts
to maintain satisfactory relationships with suppliers, customers and others
having material business relationships with the Huntsville Business. 
Without limiting the generality of the foregoing, except as contemplated
by this Agreement and except as set forth on Schedule 5.1, the Seller
(with respect to the Sold Assets and the Huntsville Business) shall not do any
of the following without the prior written consent of the Buyer, which consent
shall not be unreasonably withheld, conditioned or delayed:


 


(a)           sell or otherwise
dispose of any of the Sold Assets having
an aggregate value exceeding $10,000, excluding sales of inventory in the
ordinary course of business consistent with past practice;


 


(b)           acquire assets that will
be included in the Sold Assets having an aggregate value exceeding $10,000,
excluding (i) acquisitions of inventory in the ordinary course of business
consistent with past practice, and (ii) capital expenditures permitted by
clause (d) below; 


 


(c)           merge or consolidate
with any Person;


 


(d)           make any material
capital commitments with respect to the Huntsville Business in excess of
$10,000;


 


(e)           incur, assume or
guarantee any material Debt Obligation that would become an Assumed Liability;


 


(f)            incur any Encumbrance
on any material Sold Assets, other than Permitted Encumbrances;


 


(g)           increase the cash
compensation of Huntsville Employees other than (i) in the ordinary course
of business or (ii) as required by any Contract in effect as of the date
hereof and listed on Schedule 3.12(a) or as required by Law;


 


46

















 


(h)           enter into any Contract
that restricts or will restrict the Huntsville
Business after the date of this Agreement from engaging in any line of business
in any geographic area or competing with any Person that materially impairs the operation of the Huntsville Business;


 


(i)            enter into any partnership, limited liability company or joint venture
agreement that
materially impairs the operation of the Huntsville Business;


 


(j)            enter into, amend or renew any collective bargaining agreements regarding
the Huntsville Employees;


 


(k)           terminate or make any
material amendment to or waive any material rights under a Material Contract;


 


(l)            permit the Effective
Date of the Plan to occur on or prior to June 12, 2010; or


 


(m)          agree or commit to do any
of the foregoing.


 


Notwithstanding anything
to the contrary contained herein, the Seller shall be permitted (without notice
or consent to Buyer) to distribute all Cash held by it as of the Closing Date
to TW International.  Notwithstanding the
foregoing, Seller shall not be deemed to have breached this Section 5.1,
if (a) such breach was inadvertent, (b) is capable of being cured and
(c) Seller cures such breach within five days after such breach occurs.  Seller shall promptly notify Buyer if it
discovers it has breached any provision of this Section 5.1.


 


5.2                               Access to Books and
Records; Cooperation.


 


Except
as provided in Section 5.3 and in clause (f) of this Section 5.2:


 


(a)           From the Closing and until
the seventh anniversary of the Closing, during normal business hours, upon at
least five days prior notice, the Buyer shall permit, at the Seller’s sole cost and expense, the
Seller and its counsel, accountants and other authorized representatives to have
reasonable access to the officers, directors, employees, accountants and other
advisors and agents, properties, books, records and contracts of the Buyer related to the Huntsville
Business and the Sold Assets, and the right, at Seller’s expense, to make
copies and extracts from such books, records and contracts, to the extent
necessary to facilitate the resolution of any claims made by or against or
incurred by the Seller with respect to the Sold Assets, the Huntsville Business
or the Excluded Liabilities.


 


(b)           From the Closing and
until the seventh anniversary of the Closing, during normal business hours,
upon at least five days prior notice, the Seller shall permit, at the Buyer’s sole cost and expense, the
Buyer and its counsel, accountants and other authorized representatives to have
reasonable access to the officers, managers, employees, accountants and other
advisors and agents, properties, books, records and contracts of the Seller as they relate to the Huntsville
Business, the Sold Assets or the Assumed Liabilities, and the right, at
Buyer’s expense, to make copies and extracts from such books, records and
contracts, to the extent necessary to facilitate the resolution of any claims
made by or against or incurred by the Buyer with respect to the Sold Assets,
the Huntsville Business or the Assumed Liabilities.


 


47

















 


(c)           Until the seventh anniversary
of the Closing, the Buyer shall not, and shall cause its Affiliates not to,
destroy, at any time any files or records that are subject to Section 5.2(a) without
giving written notice to the Seller and giving the Seller 60 days following
receipt of such notice to request in writing that all or a portion of the
records intended to be destroyed be delivered to the Seller at the Seller’s
expense.


 


(d)           During the period
commencing on the date hereof and ending on the Closing, the Seller shall
afford the Buyer and its counsel, accountants and other authorized
representatives, reasonable access, during normal business hours, upon
reasonable advance notice, to the officers, managers, employees, accountants
and other advisors and agents, properties, books, records and contracts of the Seller with respect to the Huntsville
Business, Sold Assets or Assumed Liabilities, including such access as
is reasonably necessary for Buyer and its consultants to conduct a Phase II
environmental review of the Seller Owned Real Property in accordance with the
scope of work set forth in Exhibit 5.2(d) (the “Phase II
Review”); provided, that such access does not interfere in any
material respect with the Seller’s normal business operations.  The parties agree that the provisions of the
Confidentiality Agreement shall continue in full force and effect following the
execution and delivery of this Agreement as provided in Section 5.13.  All information obtained by the Buyer and its
counsel, accountants and representatives pursuant to this Section 5.2(d) shall
be kept confidential in accordance with Section 5.13.


 


(e)           Notwithstanding any
provision in Section 5.2(d) to the contrary, the Buyer’s right to
conduct the Phase II Review  shall be
subject to the following conditions: (i) the Buyer shall provide evidence
that the Buyer and each consultant, representative or agent of the Buyer that
performs or participates in the Phase II Review 
maintain the minimum insurance coverages specified in Exhibit 5.2(e),
(ii) upon performance and upon completion of the Phase II Review, the
Buyer shall be responsible and shall restore or cause its representatives to
restore, at Buyer’s sole cost and expense, the property affected by the Phase
II Review to the condition it was in immediately before the Phase II Review and
repair any damage occasioned by the Phase II Review; provided that the
foregoing obligation shall not be deemed to include any obligation with respect
to any latent condition on, under or affecting Seller Owned Real Property which
is exacerbated, expanded, discovered or modified, by the testing conducted
within the agreed scope of the Phase II Review, (iii) the Buyer and its
consultant, representative or agent shall not perform any testing, drilling,
sampling or any other work at the Seller Owned Real Property except pursuant to
the scope of work set forth in Exhibit 5.2(d), (iv) the Seller
and its consultants, agents and representatives shall have the right to inspect
and monitor all aspects of the Phase II Review, (v) at Seller’s request
not less than 24 hours prior to commencement of the Phase II Review, the Buyer
shall provide the Seller with sufficient quantities of all samples and other
materials obtained by the Buyer and its consultants, representatives and agents
in connection with the Phase II Review to enable the Seller to perform its own
independent testing of the same, (vi) upon Seller’s request, the Buyer
shall provide the Seller with a copy of any final reports produced as a result
of the Phase II Review upon the Buyer’s receipt of the same and any such final
reports produced will be certified for Seller’s use and reliance to the same
extent as for Buyer.  Seller agrees that
any report, sample or other information provided to Seller in connection with
the Phase II Review is subject to the terms of the Confidentiality Agreement
and Seller agrees to hold it in strict confidence, not to disclose it to any
third party and to use it solely for purposes of exercising or enforcing its
rights under this Agreement.


 


48

















 


(f)            The Seller shall, on
the one hand, use, and the Buyer shall, on the other hand, use, all
commercially reasonable efforts to obtain and to cooperate in obtaining any
consent, approval, authorization or order of, and in making any registration or
filing with, any Governmental Authority or other Person required in connection
with the execution, delivery or performance of this Agreement by such party.


 


(g)           Nothing in this
Agreement shall impose obligations on the Seller to give the Buyer or its
counsel, accountants or other authorized representatives access to information
if such access could reasonably be expected to cause the Seller or any of its
Affiliates to be in breach of any duty of confidence or any other duty or
obligation under applicable Law (including Laws affecting privacy, personal
information and the collection, handling, storage, processing, use or
disclosure of data).  Nothing in this
Agreement shall impose obligations on the Buyer to give the Seller copies of
Tax Returns of the Buyer or any Affiliate of Buyer.  Nothing in this Agreement shall restrict any
party to this Agreement from destroying any information in accordance with its
record retention policies that are generally applicable to such information or
require it to provide any notice of such destruction.


 


5.3                               Tax Matters:  Cooperation; Preparation and Filing of Tax Returns;
Transfer Taxes and other Tax Matters.


 


(a)           Cooperation.  Subject to the other provisions of this
Agreement, the Buyer and the Seller agree to furnish or cause to be furnished
to each other, upon request, such information and assistance relating to the Huntsville Business and the Sold Assets (including
access to books and records, employees, contractors and representatives) as is
reasonably necessary for the filing of all Tax Returns, the making of any
election related to Taxes, the preparation for any audit or other examination by any Taxing
Authority, and the prosecution or defense of any Proceeding relating to any Tax
Return.  Further, the Seller shall be
permitted to retain, in its discretion, copies of any such books and records
relating to the Huntsville Business and
the Sold Assets as are necessary for any of such purposes as set forth
above.  The Buyer and the Seller shall
retain, and the Seller shall cause TWI Holdings and TW International to retain,
all books and records with respect to Taxes pertaining to the Huntsville Business and the Sold Assets until
the expiration of all relevant statutes of limitations (and, to the extent
notified by the Buyer or the Seller, any extensions thereof).  At the end of such period, each party shall
provide the other with at least 60 days prior written notice before destroying
any such books and records, during which period the party receiving such notice
can elect to take possession, at its own expense, of such books and records.


 


(b)           Pre-Closing Taxes.  All Liabilities for Periodic Taxes
attributable to the Huntsville Business or the Sold Assets for Pre-closing Tax
Periods shall be the responsibility of the Seller, and any refunds or credits
or rights to refunds or credits with respect thereto shall be the property of
the Seller.


 


(c)           Post-Closing Taxes.  All Liabilities for Periodic Taxes
attributable to the Huntsville Business
or the Sold Assets for Tax periods (or the portion of any Straddle Period)
beginning on or after the Closing Date shall be the responsibility of the
Buyer, and any refunds or credits or rights to refunds or credits with respect
thereto shall be the property of the Buyer.


 


49

















 


(d)           Proration of Taxes.  All real property Taxes, personal property
Taxes and similar ad valorem obligations levied with respect to the Huntsville Business
or the Sold Assets for a Straddle Period, whether such Taxes are payable to a
Governmental Authority, a landlord or other third party (“Periodic Taxes”)
shall be apportioned between Sections 5.3(b) and 5.3(c) as of the
Closing Date based upon, respectively, the number of calendar days in the
portion of such Straddle Period ending on the Closing Date and the number of
calendar days in the portion of such Straddle Period commencing on the day
following the Closing Date.  Such
prorations shall be based upon the most recent available Tax statement and
latest Tax valuation.  If the Closing
occurs before the Tax rate is fixed for the then current Tax period, the
proration of the corresponding Taxes shall be on the basis of the Tax rate for
the last preceding Tax period applied to the latest assessed valuation.  The Seller shall be responsible for filing
all Tax Returns relating to such Taxes with respect to the Huntsville Business
and the Sold Assets that are required to be filed on or prior to the Closing
Date, and the Buyer shall be responsible for filing all Tax Returns relating to
such Taxes with respect to the Huntsville
Business and the Sold
Assets required to be filed after the Closing Date.  The portion of any Periodic Taxes which were
paid by Seller in advance but relate to portion of the Straddle Period
commencing on the day after the Closing Date will be treated as a prepaid current
asset on the Closing Balance Sheet, and the portion of any Periodic Taxes which
relate to a portion of the Straddle Period ending on or prior to the Closing
Date but which are required to be paid by Buyer after the Closing Date, will be
treated as a accrued current liability on the Closing Balance Sheet.


 


(e)           Transfer Taxes.  The Buyer shall pay 50% of and the Seller
shall pay 50% of any (i) transfer, real property transfer, documentary,
sales, use, stamp, recording and similar Taxes (including all applicable real
estate transfer Taxes, but excluding any Taxes based on or attributable to
income or gains) and related fees (including any penalties, interest and
additions to Tax) incurred in connection with the sale and transfer of the Sold Assets by the Seller to the Buyer pursuant
to the terms of this Agreement and (ii) Duties that may be imposed
by any Governmental Authority in connection with the sale and transfer of the Sold Assets by the Seller to the Buyer
pursuant to the terms of this Agreement (together, “Transfer Taxes”). 
The Seller  shall be responsible
for preparing and filing all Tax Returns or other applicable documents in
connection with the Transfer Taxes, to the extent permitted by applicable
Law.  The Buyer shall cooperate with the
Seller in the preparation and filing of all Tax Returns or other applicable
documents for or with respect to Transfer Taxes.  The Seller shall (A) unless the Closing
occurs after the Effective Date of the Plan, use commercially reasonable
efforts to cause the transactions contemplated by this Agreement to be exempt
from Transfer Taxes under 11 U.S.C. § 1146, and (B) in any event,
make any and all filings (including applications for tax clearance
certificates) reasonably available under applicable Law to be relieved of (and
to relieve Buyer from) any Transfer Taxes otherwise applicable to the
contemplated transactions.  Seller shall,
at least five (5) days prior to Closing, deliver to Buyer for review and
comment all Tax Returns and other documentation which Seller is, pursuant to
this Section 5.3(e), required to prepare. 
To the extent any such Tax Returns (adjusted to take into account Buyer’s
comments that are reasonably acceptable to Seller) reflect that any Transfer
Taxes will be due, Buyer may elect to withhold the 50% of the amount of such
Taxes that is payable by the Seller pursuant to this Section 5.3(e) from
the Purchase Price, and cause such Taxes to be paid directly to the appropriate
taxing authority in connection with the filing of such Tax Returns (which Buyer
may, by notice to Seller, elect to file and, to the extent so filed on behalf
of Seller, shall be executed by Seller as 


 


50

















 


Buyer
directs).  To the extent any Tax Returns
with respect to Transfer Taxes are required by Law to be filed by Buyer, Buyer
will file such Tax Returns.


 


(f)            Reimbursements.  If the Buyer (or an Affiliate of the Buyer)
or the Seller (or an Affiliate of the Seller) pays any Taxes to be borne by
another Person under this Section 5.3, the other Person shall promptly reimburse
the payor for the Taxes paid.  If any
party (or an Affiliate thereof) receives any refunds or credits that are the
property of another party under this Section 5.3, the party receiving such
refunds or credits shall promptly pay (or cause its Affiliate to pay, as the
case may be) the amount of such refunds or credits to the other party hereto.


 


(g)           Employment Taxes.  Forms W-2 for those employees of the Business
hired by the Buyer shall be prepared and filed in accordance with the “alternate
procedure” pursuant to Internal Revenue Service Revenue Procedure 2004-53,
I.R.B. 2004-34, and any comparable provisions of applicable state and local
Laws.  Additionally, as required by the “alternate
procedure,” Schedule D of Form 941 shall be prepared and timely filed by
both the Buyer and the Seller to explain any discrepancies between Form W-2
and Form 941 reporting.


 


(h)           Tax Clearance.  Set forth on Schedule 5.3(h) is a
list of each jurisdiction in which the Seller files any income, franchise,
sales, use or property Tax Returns together with a good faith estimate of the
revenues Seller received from each such jurisdiction during the year ended December 31,
2009.  To the extent that, in Delaware,
Pennsylvania, Alabama or any other taxing jurisdiction, with respect to which
Seller has paid or is required to pay that jurisdiction an amount more than
$5,000 with respect to income, franchise, sales, use or property, Taxes with
respect to calendar year 2009 (each such jurisdiction a “Taxing Jurisdiction”),
any tax clearance or other procedure is available for obtaining certification
that all of such Taxes have been paid to that Taxing Jurisdiction, Seller shall
apply for such tax clearance certificates and obtain preliminary or conditional
tax clearances or such similar assurance as may be available in that Taxing
Jurisdiction as to the amount of any Tax due in that Taxing Jurisdiction.  In addition, Seller shall conduct lien
searches in Delaware, Pennsylvania and Alabama not less than 30 days after the
Closing Date nor more than 60 days after the Closing Date.  The Seller shall, prior to Closing, provide
Buyer with a copy of all such applications to be made by the Seller and any
preliminary or conditional tax clearances or similar assurance received by
Seller.  In the event that any Taxing
Jurisdiction to which application is made pursuant to this Section 5.3(h) indicates
that any Taxes of Seller are due and owing or the above referenced preliminary
or conditional tax clearances or the lien searches otherwise indicate that any
Taxes of Seller are due and owing, a portion of the Escrow Amount equal to the
amount of any such Taxes shall remain in the escrow and shall not be released
to Seller until such time as both of the following are true: (i) the
amount would otherwise be released from the escrow but for this Section 5.3(h),
and (ii) Seller provides Buyer with (A) a copy of the check or wire
transfer in the amount of such Taxes delivered to the Taxing Jurisdiction, (B) other
evidence, reasonably satisfactory to Buyer, that the amount of such Taxes has
been paid in full or (C) a statement from the Taxing Jurisdiction
reasonably satisfactory to Buyer (such as a tax clearance certificate) that
such Taxes are not due and owing.


 


51

















 


5.4                               Treatment of
Payments.


 


The
Buyer and the Seller will treat any amounts payable after the Closing by the
Seller to the Buyer (or by the Buyer to the Seller) pursuant to this Agreement
as an adjustment to the Purchase Price, unless a final determination by the
appropriate Taxing Authority or court causes any such payment not to be treated
as an adjustment to the Purchase Price for Tax purposes.


 


5.5                               Employees;
Employment Matters.


 


(a)           Employees.  For purposes of this Agreement, a “Huntsville
Employee” means (i) any employee of the Seller with respect to the Huntsville Business who are still
employed on the Closing Date, including the following employees, each of whom
will be listed on Schedule 5.5(a)(i), which shall be delivered to the
Buyer at least five Business Days prior to the Closing Date:  (A) who are temporarily absent due to
the Family Medical Leave Act, military or other approved leave or absence in
compliance with the applicable written policies of the Seller or applicable Law; (B) who are on short term or
long term disability leave; or (C) who are receiving workers’ compensation
payments as required by Law and have the right to re-employment in accordance
with applicable Law.  Subject to Section 5.5(e) and
subject to Buyer’s standard hiring practices and procedures, on or prior to the Closing Date, the Buyer
shall, make offers of ongoing employment (which offers shall be made in
compliance with applicable Law) at substantially the same level of compensation
as in effect immediately prior to the Closing to all Huntsville Employees
(conditioned upon the Closing) other than those persons set forth on Schedule
5.5(a)(ii), employees on lay-off, suspension or who have been terminated
prior to the Closing and other than Persons who have received notice of
termination prior to the Closing and who are still employed on the Closing
Date.  All Huntsville Employees described
in the immediately preceding sentence who accept the Buyer’s offer of
employment as of the Closing Date are hereinafter referred to collectively as
the “Transferred Employees”.


 


(b)           Cessation of Active Participation
in Benefit Plans.  Effective as of the Closing Date, all
Transferred Employees will cease active participation in, and any benefit
accrual under, each of the Benefit Plans, except as required by Law.


 


(c)           No Right to
Employment.  Nothing herein expressed
or implied shall confer upon any of the employees of the Seller, the Buyer or any of their respective Affiliates any
additional rights or remedies, including any additional right to employment, or
continued employment for any specified period, of any nature or kind whatsoever
under or by reason of this Agreement.


 


(d)           No Third Party
Beneficiary.  No provision in this Section 5.5
shall (i) create any third party beneficiary or other rights in any
employee or former employee (including any beneficiary or dependent thereof) of
the Seller, the Buyer or any
other Person other than the parties hereto and their respective successors and
permitted assigns, (ii) constitute or create, or be deemed to constitute
or create, an employment agreement or (iii) constitute or be deemed to
constitute an amendment to any employee benefit plan sponsored or maintained by
the Seller, the Buyer or any of their respective Affiliates.


 


52














 


(e)           No COBRA Successor
Liability.  Buyer shall not be a “successor
employer” of Seller or any Affiliate of Seller under COBRA with respect to any
current or former Benefit Plan or any current or former practice by Seller or
any Affiliate of Seller to provide or make available group health plan coverage
to any former employee or non-employee service provider or other non-employee
individual (and their spouses and dependents).


 


5.6                               Labor Matters.


 


The
Seller shall take, or cause to be taken, any and all actions in connection with
any required notification to, or any required consultation with, the employees and
relevant government agencies concerning the transactions contemplated by this
Agreement with respect to the employees of the Seller, and the Buyer will reasonably cooperate with the
Seller in connection with the foregoing, including by providing any such
notification requested by the Seller, whether before or after the Closing.  Set forth on Schedule 5.6 is a list of
all Employees of Seller terminated by Seller within the period beginning 30
days prior to the date of this Agreement and ending on the Closing Date.


 


5.7                               Contact With
Customers and Suppliers.


 


Prior
to the Closing, the Seller shall use commercially reasonable efforts to
cooperate with and assist the Buyer in preserving the business organization and operations of the Huntsville
Business and the goodwill of those having business relationships with the Huntsville Business.  Consistent with
applicable Competition/Foreign Investment Laws, upon the Seller’s prior written
consent (which the Seller may not unreasonably withhold, but which the Seller
may condition upon a designee of the Seller being present at any meeting or
conference referenced in this sentence) the Buyer and its representatives shall
be permitted to contact and communicate with the employees, customers,
suppliers and licensors of the
Huntsville Business in connection with the transactions contemplated by
this Agreement.


 


5.8                               Non-Solicitation by
Buyer and its Affiliates.


 


For
a period of two years following the Closing Date, without the prior written
consent of TW International, the Buyer shall not, and shall cause its
Affiliates not to, solicit or hire any employee of the TW International or its
Affiliates, excluding the Huntsville Employees,
for employment or consulting services by the Buyer or any of its Affiliates.  An
employee shall be deemed not to have been solicited for employment if such
employee responded to a general solicitation. 
Seller
and TW International will cause their sales agent Richardo Fechi (A) to
provide Buyer (either through TW International or directly) with the names and
contact information of his contacts at customers for sale of Products and (B) personally
introduce Buyer’s designated sales representative to each customer with respect
to whom Mr. Fechi has been Seller’s representative with respect to the
Products, at such reasonable times as may be mutually convenient to Mr. Fechi
and Buyer’s designee.


 


5.9                               Corporate Names.


 


(a)           The Buyer shall remove
or cover the names “Taylor-Wharton”, “TW” and any trademarks, corporate names,
trade names, logos, domain names, brandmarks, brand names


 


53

















 


or
trade dress relating to such names, including those set forth on subsection
3.11(m) of Schedule 3.11, from all: 
(i) invoices, sales acknowledgement forms and other shipping
documents (including bills of lading, packing lists and export documents) of the Sold Assets, the Huntsville Business
and/or the Buyer no later than 90
days after the Closing Date, unless such period is extended with the
consent of the Seller, such consent not
to be unreasonably withheld; and (ii) signage, letterhead
(including internal memo forms and fax forms), envelopes, business cards, sales
literature, exhibits and displays and promotional items of the Sold Assets, the Huntsville Business
and/or the Buyer no later than 90
days after the Closing Date, unless such period is extended with the
consent of the Seller, such consent not to be unreasonably withheld.  The Buyer shall have the right to sell
products manufactured prior to Closing (including identification plates) and
packaging (including shipping boxes and packaging materials) bearing the name “Taylor-Wharton”
or any abbreviation thereof (including “TW”) for a period not to exceed 90 days following the Closing Date,
as reasonably required, to exhaust the inventory of such products and packaging
existing as of the Closing Date.  The
Buyer shall have the right to use product instruction manuals and instruction
sheets bearing the name “Taylor-Wharton” or any abbreviation thereof (including
“TW”) following the Closing to exhaust the inventory of such instruction
manuals and instruction sheets existing as of the Closing Date.  Except as provided in this Section 5.9,
the Buyer shall neither use nor permit the
Huntsville Business or any of its Affiliates to use the name “Taylor-Wharton”
or any abbreviation thereof (including “TW”) or any trademarks, corporate
names, trade names, logos, domain names, brandmarks, brand names or trade dress
relating or confusingly similar to such names, in connection with the Huntsville Business or otherwise.


 


(b)           As soon as commercially
practical and in any event no later than 30 days after the Closing Date, the
Seller shall, and shall cause its Affiliates to, immediately cease all use of
the trademarks and the domain names included in the Acquired Intellectual
Property.


 


5.10                        Further Actions.


 


Each
of the parties hereto shall use commercially reasonable efforts to take, or cause
to be taken, all appropriate action, do or cause to be done all things
necessary, proper or advisable under applicable Law, and execute and deliver
such documents and other papers, as may be reasonably required to consummate
the transactions contemplated by this Agreement.  Without limiting the generality of the
foregoing, the Seller agrees that it shall use its best commercially reasonable
efforts to assist in the transfer to Buyer of all Permits relating to the
Huntsville Business and Sold Assets and to obtain prior to the Closing all
consents and to deliver prior to the Closing all notices required in connection
with the transactions contemplated hereby, including those listed on Schedule
3.5.  Notwithstanding anything in this Agreement to the
contrary, this Agreement shall not constitute an agreement to sell, convey,
assign or transfer any asset if any attempted sale, conveyance, assignment or
transfer of such asset, without the consent of another Person to such transfer,
would constitute a breach by the Seller or the Buyer with respect to such asset
if such consent shall not have been received. 
If any required consent is not obtained on or prior to the Closing, the
Seller shall use its commercially reasonable efforts to (i) provide to the
Buyer the material benefits of the applicable contract, agreement, permit or
other asset, (ii) cooperate in any reasonable and lawful arrangement
designed to provide such material benefits to the Buyer and (iii) enforce
at the request of the Buyer and for the account of the Buyer and at the Buyer’s
expense any rights of Seller arising from any such contract or 


 


54

















 


agreement (including the
right to elect to terminate or renew such contract or agreement in accordance with the
terms thereof upon the request of the Buyer).


 


5.11                        Elimination of Debt Obligations.


 


At or prior to the Closing, the Seller shall cause
all Debt Obligations, if any, of the Seller that relate to the Sold Assets or
Assumed Liabilities (other than letters of credit entered into in the ordinary
course of business) to be repaid in full or otherwise satisfied or eliminated
without any continuing liability or obligation of the Buyer.


 


5.12                        Bulk Transfer Laws.


 


The Buyer and the Seller
hereby waive compliance with any bulk transfer laws applicable to the
transactions contemplated by this Agreement.


 


5.13                        Confidentiality.


 


(a)           The Buyer hereby
confirms and agrees that, with respect to any information directly or
indirectly furnished by or on behalf of the Seller or any of its Affiliates,
whether before, on or after the date hereof, the Buyer shall continue to be
bound by the terms of the Confidentiality Agreement.


 


(b)           The Buyer understands
and agrees that the Seller is making available confidential information and
trade secrets to the Buyer concerning the operations of the Seller, which
information would be damaging to the Seller and its Affiliates if disclosed to
a competitor or made available to any other Person, and that such information
has been divulged in confidence.  The
Buyer acknowledges that after the Closing the Seller and its Affiliates could
be irreparably damaged if any nonpublic or proprietary information about the
Seller or its Affiliates that does not relate to the Sold Assets or Assumed Liabilities were disclosed by
the Buyer or its Affiliates after the Closing to any Person other than the
Seller or its Affiliates, and the Buyer will not, and will cause its officers,
directors, employees and other Affiliates not to, without the prior written consent
of the Seller, disclose or use (or permit to be disclosed or used) in any way
any such information, unless (i) compelled to disclose such confidential
information by judicial or administrative process or, in the opinion of its
counsel, by other requirements of Law and, in any such event, the Buyer shall,
to the extent practicable, give the Seller prompt written notice of any such
requirement prior to any such disclosure, (ii) such confidential
information is generally available to the public through no fault of the Buyer
or any of its Affiliates, or (iii) such confidential information is
publicly disclosed by the Buyer or one of its Affiliates with the Seller’s
prior written consent, or (iv) such confidential information is or becomes
available to Buyer or one of its Affiliates on a nonconfidential basis from a
source other than the Seller or one of its Affiliates, which source is entitled
to disclose such information without breach of any obligation of
confidentiality known to the Buyer or one of its Affiliates.


 


(c)           The Seller understands and agrees that the Buyer is making available
confidential information to the Seller concerning the finances and operations
of the Buyer, which information would be damaging to the Buyer and its
Affiliates if disclosed to a competitor or made available to any other Person,
and that such information has been divulged in confidence.  In addition, from and after the Closing Date,
the Seller understands and agrees that the Seller and 


 


55

















 


its Affiliates (i) will not use any
confidential information of the Buyer or regarding the Huntsville Business,
Sold Assets or Assumed Liabilities for the Seller’s or its Affiliates’ own
purposes or for the purposes of any Person other than the Buyer or its
Affiliates and (ii) will not disclose any confidential information of the
Buyer or regarding the Huntsville Business, Sold Assets or Assumed Liabilities
to any Person other than the Buyer or its Affiliates, unless (1) compelled
to disclose such confidential information by judicial or administrative process
or, in the opinion of its counsel, by other requirements of Law and, in any
such event, the Seller shall, to the extent practicable, give the Buyer prompt
written notice of any such requirement prior to any such disclosure, (2) such
confidential information is generally available to the public through no fault
of the Seller or any of its Affiliates, (3) such confidential information
is publicly disclosed by the Seller or one of its Affiliates with the Buyer’s
prior written consent, or (4) such confidential information is or becomes
available to Seller or one of its Affiliates on a nonconfidential basis from a
source other than the Seller or one of its Affiliates, which source is entitled
to disclose such information without breach of any obligation of
confidentiality known to the Seller or one of its Affiliates.  From and after the Closing Date, the Seller
agrees, and shall cause its Affiliates, to take all reasonable precautions to
prevent inadvertent disclosure or use of such confidential information and
shall maintain confidential and in complete secret such confidential
information, except as set forth above. 
The Seller understands the importance of this obligation of
confidentiality to the Buyer and its Affiliates and acknowledges that the use
or disclosure of such confidential information in contravention of this Section 5.13(c) could
be damaging to the business or operations of the Buyer or its Affiliates,
particularly if such use or disclosure is to a competitor or any Person who may
be working with or assisting a competitor.


 


5.14                        No Exclusivity.


 


From
the date of the issuance of the Bidding Procedures Order until completion of
the Auction, the Seller shall have the right, directly or indirectly:  (a) to solicit, initiate or encourage
any inquiry, proposal or offer from any Person relating to any transaction
involving the sale of the Sold Assets, all or any material part of the Business
(including the Huntsville Business) or the Membership Interests, or any merger,
consolidation, business combination, or similar transaction involving the
Business or the Seller (an “Acquisition
Transaction”); (b) to participate in any discussions or negotiations
or enter into any agreement with, or provide any non-public information to, any
Person relating to or in connection with a possible Acquisition Transaction or
facilitate an Acquisition Transaction in any manner; or (c) to accept any
proposal or offer from any Person relating to a possible Acquisition
Transaction.


 


5.15                        Non-Solicitation and Non-Competition by
Seller and its Affiliates.


 


(a)           From and after the Closing Date until
the fifth anniversary of the Closing Date, none of the Seller, TW International
or any direct or indirect Subsidiaries of TW International (including new
Subsidiaries of TW International acquired while TW International is Controlled
by its current beneficial owners) (“Prohibited Parties”) shall, anywhere
in the world, directly or indirectly, either for themselves or any other
Person, own, manage, operate, join, consult with, render services for,
participate in, control, finance, permit their name to be used by, or otherwise
assist in any manner, in any business that manufactures, engineers, designs,
markets or sells (i) steel constructed acetylene cylinders up to 450 cubic
foot in capacity, (ii) steel constructed high pressure cylinders up to 150
cubic foot capacity, or (iii) steel 


 


56

















 


constructed high pressure
carbon dioxide cylinders up to 20 pounds in capacity (the “Competitive
Business”).


 


(b)           The foregoing Section 5.15 shall
not apply to, or be deemed to restrict, a Person that operates a Competitive
Business prior to acquiring a Prohibited Party from continuing such business
after its acquisition of a Prohibited Party; provided that, if the Prohibited
Party is acquired via a sale of substantially all of its equity interests or is
merged with and into an entity with no prior business operations, the
Prohibited Party or surviving entity of such merger shall not directly or
indirectly conduct a Competitive Business in violation of Section 5.15.


 


(c)           From and after the Closing Date until
the second anniversary of the Closing Date, none of the Prohibited Parties
shall, anywhere in the world, directly or indirectly, either for themselves or
any other Person, solicit, attempt to solicit, hire or attempt to hire,
directly or indirectly, any employee of the Buyer without the prior written
consent of the Buyer, provided that an employee shall not be deemed solicited
for hire by a general, non targeted, solicitation.


 


(d)           The parties hereto specifically
acknowledge and agree that the remedy at law for any breach of the provisions
of this Section 5.15 will be inadequate and that the Buyer, in addition to
any other relief available to it, shall be entitled to temporary and permanent
injunctive relief, specific performance or other equitable relief without the
necessity of proving actual damage. In the event that the provisions of this Section 5.15
should ever be deemed to exceed the limitations provided by applicable Law,
then the parties hereto agree that such provisions shall be reformed to set
forth the maximum limitations permitted. 
The Seller acknowledges and agrees that this Section 5.15 is a
significant inducement for the Buyer to enter into and perform its obligations
under this Agreement and this Section 5.15 is reasonable and necessary to
protect and preserve legitimate business interests of the Buyer.


 


5.16                        Bankruptcy Conditions.


 


(a)           Unless the parties otherwise agree,
the Seller shall file or cause to be filed (such filing date shall be referred
to as the “Sale
Motion Filing Date”) with the Bankruptcy Court a motion (the “Sale
Motion”) seeking (i) approval of an order (the “Bidding Procedures
Order”) that provides for the conduct of the sale of the Sold Assets in
accordance with the bidding procedures that will contain such provisions
described more fully on Exhibit 5.16(a)(i) (the “Bidding
Procedures”); (ii) to schedule a hearing (the “Sale Hearing”)
for the approval of the sale of the Sold Assets pursuant to the terms and
conditions of this Agreement and deadlines for filing and service of objections
and responses to the relief requested in the Sale Motion; (iii) to approve
the form, manner and sufficiency of notice of the Sale Motion and Sale Hearing
to be given and published by the Seller; and (iv) entry of an
non-appealable order (the “Sale Order”) that:  (1) approves the sale of the Sold Assets
in accordance with the terms and conditions of this Agreement, (2) authorizes
and requires the Seller to sell the Sold Assets pursuant to 11 U.S.C. § 363(b) and
pursuant to and in accordance with the terms of this Agreement free and clear
of all liens, claims and encumbrances, whether arising pre-petition or post
petition, and (3) finds that the Buyer is a good faith purchaser pursuant
to 11 U.S.C. § 363(m).  The Sale Order
shall be in the form attached as Exhibit 5.16(a)(iii), with only
such changes as are mutually agreed upon by 


 


57

















 


Buyer and Seller.  If this Agreement is filed with the
Bankruptcy Court it will be filed without attaching the Exhibits and Schedules.


 


(b)           The Seller’s Sale Motion shall
contain, and the transactions contemplated by this Agreement shall be subject
to, the following provisions:


 


(i)            Due
Diligence by Additional Bidders. 
Until entry of the Bidding Procedures Order, Seller shall not solicit
bids from any other Person and shall not permit any other Person other than
Buyer to conduct due diligence in respect of the Huntsville Business, the Sold
Assets, the Membership Interests or substantially all of the Seller’s
assets.  From and after the entry of the
Bidding Procedures Order, unless otherwise ordered by the Bankruptcy Court for
cause shown, if any Person other than the Buyer (a “Potential Bidder”) delivers to the
Seller a request for information or a proposal for the purchase of the
Membership Interests, the Huntsville Business, the Sold Assets or substantially
all of the Seller’s assets, the Seller shall have the right to permit the
Potential Bidder to conduct due diligence with respect to the Membership
Interests, the Huntsville Business, the Sold Assets or otherwise with respect
to Seller’s assets.  Such due diligence
access may include management presentations as may be scheduled by the Seller,
access to data rooms, delivery of written materials by the Seller, on-site
inspections by the Potential Bidder or its authorized representatives and such
other matters that a Potential Bidder may request and as to which the Seller,
in its sole discretion, may accept.


 


(ii)           Sale
Hearing.  Subject to the Seller’s
right to consummate the Plan and insure that the Effective Date thereunder has
occurred at any time after June 12, 2010, the Seller will conduct an
auction of the Membership Interests, the Huntsville Business, the Sold Assets
or substantially all of the Seller’s assets, as the case may be (the “Auction”)
in accordance with the Bidding Procedures Order.  Notwithstanding any provision in this
Agreement to the contrary, if the successful bidder at the Auction is a Person
other than the Buyer, the Seller may proceed to sell the Membership Interests,
the Huntsville Business, the Sold Assets, the Business or substantially all of
the Seller’s assets, as the case may be, to the successful bidder (an “Alternate
Transaction”).  If the Buyer or
another bidder is the successful bidder at the Auction, but the purchase price
is higher than that provided for in this Agreement, then this Agreement shall
be modified accordingly, as provided in an appropriate order of the Bankruptcy
Court authorizing the sale to the Buyer or such other bidder, and the parties
will proceed to consummate the transactions contemplated by this Agreement in accordance
with the terms hereof, with such changes as shall be necessitated by the
applicable order of the Bankruptcy Court . 
If no bids other than the offer of the Buyer embodied in this Agreement
are received at the Sale Hearing, the Seller shall request the Bankruptcy Court
to enter the Sale Order and the parties will proceed to consummate the
transactions contemplated by this Agreement in accordance with the terms
hereof.


 


If the Seller enters into
a written agreement regarding an Alternate Transaction with a Person other than
the Buyer or any of its Affiliates before the termination of this Agreement,
whether pursuant to a sale, plan of reorganization or otherwise, the Seller
shall pay to the Buyer concurrently with the closing of such transaction, a break-up
fee in an amount equal to $352,500 


 


58

















 


(the “Break-up Fee”).  If this Agreement is terminated pursuant to Section 8.1(b),
8.1(e), 8.1(g) or 8.1(h), then the Seller shall pay the Buyer an amount
equal to the actual costs and expenses reasonably incurred by the Buyer in
connection with the negotiation, execution and performance of this Agreement,
provided that such amount shall in no event exceed $250,000 (the “Expense
Reimbursement”).  In no event will
the Buyer be entitled to payment of both the Expense Reimbursement and the
Break-up Fee, but, if the Buyer would otherwise be entitled to payment of both
the Expense Reimbursement and the Break-up Fee, the Buyer will be paid the
greater thereof.   Any Break-up Fee or
Expense Reimbursement payable to the Buyer pursuant to this section shall be
paid as an allowed administrative claim under Section 507(a)(2) of
the Bankruptcy Code against the Seller’s bankruptcy estate.


 


(c)           Notwithstanding any provision in this
Agreement to the contrary, the Seller shall have the right to consummate the
Plan and insure that the Effective Date thereunder has occurred at any time
after June 12, 2010; provided that such right shall not effect the Seller’s
obligation to file the Sale Motion within three Business Days after the
execution of this Agreement or Buyer’s right to terminate this Agreement
pursuant to Section 8.1(i) if the Bidding Procedures Order is not
approved by the Bankruptcy Court within 20 days after the date Sale Motion is
filed; provided further, that the parties agree that Buyer may terminate this
Agreement in such event under Section 8.1(b) if the Effective Date of
the Plan occurs prior to June 12, 2010 and under Section 8.1(e) if
the Effective Date of the Plan occurs after June 12, 2010.  Any Break-Up Fee or Expense Reimbursement
payable to the Buyer pursuant to this section shall be paid as an allowed
administrative claim under Section 507(a)(2) of the Bankruptcy Code
with priority over any and all administrative claims other than claims based on
the DIP Obligations and the Carve-Out (each as defined in Final Order (I) Authorizing
Debtors (A) To Obtain Postpetition Secured Financing Pursuant to 11 U.S.C.
§§ 105, 361, 362, 364(c)(1), 364(c)(2), 364(c)(3), 364(d)(1) and 364(e),
and (B) To Utilize Cash Collateral Pursuant To 11 U.S.C. §363, And (II) Granting
Adequate Protection To Prepetition Secured Parties Pursuant to 11 U.S.C. §§
361, 362, 363, and 364) entered by the Bankruptcy Court in the Bankruptcy Case.


 


5.17                        Advice of Changes.


 


Between the date of this
Agreement and the Closing Date or the earlier termination of this Agreement
pursuant to ARTICLE VIII,  the Seller
will promptly notify the Buyer in writing of any fact that, had the fact had existed
or actually been known by the persons identified in the definition of Knowledge
of the Seller as the date of this Agreement, would have been required to be set
forth in this Agreement or disclosed pursuant to this Agreement or which would
materially affect or change any of the information set forth in the Disclosure
Schedules.  If any such fact requires any
change to the Disclosure Schedules, then within three Business Days of becoming
aware of the fact (but in any event prior to the Closing Date), the Seller
shall deliver to the Buyer a supplement to the Disclosure Schedules specifying
such change; provided, that any such supplement shall not be taken into account
for purposes of determining whether the condition contained in Section 7.1
has been satisfied; and provided further, that if any supplement to the
Disclosure Schedules reflects any state of facts, change, occurrence or event
that would result in the failure of the condition precedent set forth in Section 7.1,
the Buyer may, in accordance with Section 8.1(b), cause this Agreement to
be terminated by giving written notice to the Seller.  Neither the termination of this Agreement by
Buyer pursuant to Section 8.1(b) nor Buyer’s election to proceed to
Closing notwithstanding a disclosure under this Section 5.17 shall affect 


 


59

















 


Buyer’s rights and
remedies with respect to any breach of representations or warranties arising
from the matters disclosed under this Section 5.17; provided that if a
representation and warranty was true at the time this Agreement was executed
but becomes untrue at or prior to the Closing Date as the result of an
occurrence which is outside of the Seller’s reasonable control and the Buyer
elects to terminate this Agreement, Buyer may not also seek indemnification
from Seller for breach of such representation and warranty.


 


5.18                        Contracts Related to the Huntsville
Business Held by TW International.


 


To the extent any
Contract, Intellectual Property or other asset or right related to, arising out
of, used in or held for use in the Huntsville Business is held by or in the
name of  TW International, TW
International will assign such Contract, Intellectual Property or other asset
or right to the Seller prior to the Closing, and such Contract will be deemed
to be a Contract, Intellectual Property right or other asset or right held by
the Seller in the name of the Seller for all purposes of this Agreement.


 


5.19                        Servicing Warranty Claims.


 


Buyer shall, at Seller’s
request and at Seller’s sole cost and expense, use Buyer’s commercially
reasonable efforts to make any repairs to, or provide replacements for,
Products that are the responsibility of the Seller (but not Products
manufactured at a location other than the Seller Owned Real Property); provided
that this obligation of Buyer is conditioned upon Buyer having adequate
capacity and resources and the necessary tooling and equipment.  Buyer shall not charge Seller an amount
greater than Buyer’s cost of providing such repairs or replacement
Products.  For purposes of this Section 5.19,
Buyer’s cost will include to the extent incurred by Buyer and not paid directly
by Seller: all out-of-pocket costs, return freight charges, the cost of
producing a replacement cylinder or to otherwise repair such cylinder based on
Buyer’s then current standard costs for material, labor (including overtime),
overhead incurred to produce such replacement cylinder or to perform such
repair, any refund to customer for return and cancellation, and/or any customer
related additional charges associated with the warranty claim and return
freight to customer.  Repair services are
understood to include, but not be limited to, repainting, re-testing hydro,
re-valve (includes new valve at current cost/price), repair threads, internal/
external shot blast and re-Stamp / buffing head markings.  Specific costs which are outside of the
ordinary practice of Buyer for addressing a given type of claim must be
approved in advance by Seller, and if not approved, Buyer shall not be required
to incur such cost or entitled to reimbursement for such cost under this Section 5.19.


 


5.20                        Harrisburg Assets.


 


The Seller will not allow
any Person to operate the forge or draw bench included in the Harrisburg Assets and
will permit to have access to the building in which the Harrisburg Assets are
located only Buyer, Harsco Corporation, their respective employees,
representatives and agents, and such other Persons who need such access for
purposes of preparing any assets for removal from the Seller Leased Real Property
or for purposes of conducting an evaluation of the assets located at the Seller
Leased Real Property in connection with such other Person’s participation in an
auction with respect to any such assets. 
All such access will be supervised by the Seller or its authorized
employees, representatives or agents.


 


60

















 


ARTICLE VI.

CONDITIONS TO THE SELLER’S OBLIGATIONS


 


The
obligation of the Seller to effect the Closing under this Agreement is subject
to the satisfaction, at or prior to the Closing, of each of the following
conditions (any and all of which may be waived by the Seller in whole or in
part to the extent permitted by applicable Law); provided, however,
that the Seller may not rely on the failure of any condition set forth
in this ARTICLE VI if such failure was caused by the Seller’s failure to comply
with any provision of this Agreement:


 


6.1                               Representations and
Warranties.


 


The
representations and warranties made by the Buyer in this Agreement shall be
true and correct (provided that any
representation and warranty contained herein that is subject to a materiality,
material adverse effect or similar qualification will not be so qualified for
purposes of determining the existence of any breach thereof on the part of the
Buyer) as of the Closing Date as though such representations and
warranties were made at such date (except to the extent such representations
and warranties are made as of a specified date, which representations and
warranties, subject to the elimination
of materiality qualifications as provided in the parenthetical above, shall
be true and correct as of such earlier date), except for such breaches that
would not, individually or in the aggregate with any other breaches of representations and warranties on
the part of the Buyer, reasonably be expected to materially and adversely
affect the ability of the Buyer to consummate the transactions contemplated by
this Agreement.


 


6.2                               Performance.


 


The
Buyer shall have performed and complied in all material respects with all
agreements and obligations required by this Agreement to be so performed or
complied with by it prior to the Closing and shall have delivered the items in Section 2.9(b) hereof.


 


6.3                               Governmental Orders.


 


At
the Closing, (a) there shall not be in effect any Governmental Order
restraining, enjoining or otherwise prohibiting the transactions contemplated
hereby and (b) if the Seller is subject to the jurisdiction of the
Bankruptcy Court as of the Closing, the Bankruptcy Court shall have issued a
final, nonappealable Sale Order in form and substance reasonably acceptable to
the parties hereto that, among other things (i) approves and authorizes the sale of the Sold Assets to the Buyer
in accordance with the terms and conditions of this Agreement, and (ii) provides
for the assignment of this Agreement to the reorganized Seller and the
reorganized TW International and the assumption of this Agreement by the
reorganized seller and reorganized TW International.


 


ARTICLE VII.

CONDITIONS TO THE BUYER’S OBLIGATIONS


 


The
obligation of the Buyer to effect the Closing under this Agreement is subject
to the satisfaction, at or prior to the Closing, of each of the following
conditions (any and all of which may be waived by the Buyer in whole or in part
to the extent permitted by applicable Law); 


 


61

















 


provided, however, that
the Buyer may not rely on the failure of any conditions set forth in this
ARTICLE VII if such failure was caused by the Buyer’s failure to comply with
any provision of this Agreement:


 


7.1                               Representations and
Warranties.


 


The
representations and warranties made by the Seller in this Agreement shall be
true and correct (provided that any
representation or warranty of the Seller contained herein that is subject to a
materiality, Material Adverse Effect, material adverse effect or similar
qualification will not be so qualified for purposes of determining the
existence of any breach thereof on the part of the Seller) as of the
Closing Date as though such representations and warranties were made at such
date (except to the extent such representations and warranties are made as of a
specified date, which representations and warranties, subject to the elimination of any materiality qualifications as
provided in the parenthetical above, shall be true and correct as of
such earlier date), except for such breaches that would not, individually or in
the aggregate with any other breaches of
representations and warranties on the part of the Seller, reasonably be
expected to have a Material Adverse Effect.


 


7.2                               Performance.


 


The
Seller shall have performed and complied in all material respects with all
agreements and obligations required by this Agreement to be performed or
complied with by it prior to the Closing and shall have delivered the items in Section 2.9(a) hereof.


 


7.3                               Governmental Orders.


 


At
the Closing, (a) there shall not be in effect any Governmental Order
restraining, enjoining or otherwise prohibiting the transactions contemplated hereby
and (b) if the Seller is subject to the jurisdiction of the Bankruptcy
Court as of the Closing, the Bankruptcy Court shall have issued a final,
nonappealable Sale Order approving and authorizing the sale of the Sold Assets to the Buyer in accordance
with the terms and conditions of this Agreement.


 


7.4                               Plan not Effective.


 


The Effective Date of the
Plan shall not have occurred.


 


7.5                               Key Employee.


 


The Buyer and Mike Camp
shall have reached agreement on the terms of Mike Camp’s employment with the
Buyer in accordance with a mutually acceptable offer letter.


 


7.6                               No Material Adverse Effect.


 


Since December 31,
2009, there shall not have been any change in or with respect to the Huntsville
Business or the Sold Assets which constitutes, or could reasonably be expected
to constitute, a Material Adverse Effect.


 


62

















 


7.7                               Assumption and Assignment of Sold
Contracts.


 


Unless the Closing will
occur after the Effective Date of the Plan, Seller shall have obtained a final
and non-appealable order of the Bankruptcy Court in the Bankruptcy Case, in
form and substance reasonably acceptable to the Buyer, providing for the
assumption and assignment, pursuant to section 365 of the Bankruptcy Code, of
the Sold Contracts.


 


7.8                               Approval of the Break-up Fee and Expense
Reimbursement.


 


Entry of the Bidding
Procedures Order and approval of the Break-up Fee and Expense Reimbursement.


 


7.9                               Satisfaction with
Certain Due Diligence Items.


 


The
Buyer shall have been satisfied in its reasonable discretion with the results
of the Phase II Review, which it will commence promptly following the date the
bankruptcy Court enters on its docket the Bidding Procedures Order; provided
that, if the Buyer does not provide notice to the Seller that it desires to
terminate this Agreement as a result of the failure of this condition on or
before the date that is 15 Business Days after the date that the Bankruptcy
Court enters on its docket the Bidding Procedures Order, the Buyer shall be
deemed to have irrevocably waived this condition.


 


ARTICLE VIII.

TERMINATION


 


8.1                               Termination.


 


This
Agreement may be terminated at any time prior to the Closing:


 


(a)           by the mutual written
consent of the Seller and the Buyer;


 


(b)           by the Buyer, at any
time prior to the Closing in the event that the Seller is in breach of any
representation, warranty or covenant made by it in this Agreement and such
breach renders the conditions set forth in ARTICLE VII incapable of being
satisfied absent a written waiver of such conditions by the Buyer; 


 


(c)           by the Buyer, at any
time prior to the expiration of the 15 Business Day period commencing on the
date that the Bankruptcy Court enters on its docket the Bidding Procedures
Order, if the condition contained in Section 7.9 has not been satisfied by
such date;


 


(d)           by the Seller, at any
time prior to the Closing in the event that the Buyer is in breach of any
representation, warranty or covenant made by it in this Agreement and such
breach renders the conditions set forth in ARTICLE VI incapable of being
satisfied absent a written waiver of such conditions by the Seller;


 


(e)           by the Seller or the
Buyer if the Closing has not occurred on or before the later of (i) June 12,
2010 or (ii) the first to occur of the Effective Date of the Plan or July 31,



 


63

















 


2010,
unless the failure of such consummation is due to the failure of the party
attempting to terminate to comply in all material respects with the agreements
and covenants contained herein;


 


(f)            by either the Seller or
the Buyer if any Governmental Authority of competent jurisdiction shall have
issued an order, decree or ruling or taken any other action, which order,
decree or ruling or other action shall have become final and nonappealable, (i) restraining,
enjoining or otherwise prohibiting the transactions contemplated hereby, or (ii) approving
or authorizing the sale of the Sold Assets, substantially all of the assets of
the Seller or the Membership Interests to another Person;


 


(g)           by the Buyer if a motion
to dismiss the Bankruptcy Case or a motion to convert the Bankruptcy Case to a
case under Chapter 7 of the Bankruptcy Code or the appointment of a trustee,
receiver, liquidator or other similar person for the purpose of liquidating any
of the Sold Assets other than pursuant to this Agreement is granted in the
Bankruptcy Case;


 


(h)           by Buyer if the Seller
fails to file the Sale Motion within three (3) Business Days after the
execution of this Agreement; provided that the Buyer must deliver its written
notice of termination pursuant to this subsection prior to the date that the
Seller files the Sale Motion;


 


(i)            by the Buyer if the
Bidding Procedures Order is not approved by the Bankruptcy Court within 20 days
after the date Sale Motion is filed with the Bankruptcy Court; provided that
Buyer must deliver its written notice of termination pursuant to this
subsection prior to the date that the Bidding Procedures Order is approved by
the Bankruptcy Court; or


 


(j)            by the Buyer if the
provisions of this Agreement with respect to the Break-Up Fee and the Expense
Reimbursement are not approved by the Bankruptcy Court within 20 days after the
date the Seller files the Sale Motion is filed with the Bankruptcy Court;
provided that the Buyer must deliver its written notice of termination pursuant
to this subsection prior to the date that the Break-Up Fee and the Expense
Reimbursement are approved by the Bankruptcy Court.


 


This
Agreement shall terminate without any further action by any party hereto upon the
approval by the Bankruptcy Court of an Alternative Transaction.


 


8.2                               Procedure and Effect
of Termination.


 


(a)           A party desiring to
terminate this Agreement pursuant to Section 8.1 must give written notice
of such termination to the other party in accordance with Section 10.7,
specifying the provision hereof pursuant to which such termination is
effective.  If this Agreement is
terminated as provided herein:


 


(i)            the Buyer will redeliver to the Seller all documents,
work papers and other material of the Seller relating to the transactions
contemplated hereby, whether so obtained before or after the execution hereof;


 


64

















 


(ii)           the provisions of the Confidentiality Agreement shall
continue in full force and effect in
accordance with its terms; and


 


(iii)          no party to this Agreement shall have any liability under
this Agreement to any other party except (A) nothing herein shall relieve
any party from any liability for any willful breach of any of the representations
or warranties or breach of any covenants or agreements set forth in this
Agreement (and the damages recoverable by the non-breaching party shall include
all attorneys’ fees reasonably incurred by such party in connection with the
transactions contemplated by this Agreement), (B) the payment of the
Expense Reimbursement or Break-up Fee as contemplated by Section 5.17 and (C) as
contemplated by Section 5.14 and by clause (ii) above.


 


ARTICLE IX.

INDEMNIFICATION


 


9.1                               Indemnification by
the Seller.


 


(a)           From and after the
Closing, the Seller and TW International, jointly and severally, shall
indemnify, defend, and hold harmless the Buyer and its Affiliates and each of
their respective equity holders, officers, directors, managers, members,
employees, agents and representatives (collectively, the “Buyer Indemnified
Persons”) from and against any and all claims, losses, damages, costs and
expenses (including reasonable fees and expenses of attorneys) (collectively, “Losses”),
that any Buyer Indemnified Person suffers or incurs arising out of or resulting
from:


 


(i)            any breach or inaccuracy of any
representation or warranty made by the Seller or TW International in ARTICLE III;


 


(ii)           the failure to
perform any covenant or agreement of the Seller or TW International contained
in this Agreement; or


 


(iii)          any Excluded Liability.


 


(b)           Notwithstanding
anything to the contrary contained in this ARTICLE IX, (i) none of the
Buyer Indemnified Persons shall be entitled to recover from the Seller or TW
International for any Losses under Section 9.1(a)(i) unless the total
of all Losses exceeds $62,500 (the
“Basket”), in which event the Buyer Indemnified Persons will be entitled
to indemnification only for such Losses in excess of the Basket; (ii) the
Buyer Indemnified Persons shall not be entitled to recover more than an aggregate amount equal to $2,200,000 (the “Cap”
and, together with the Basket, the “Indemnity Limitations”) from the
Seller with respect to all Losses indemnifiable pursuant to Section 9.1(a)(i);
provided however, the Indemnity Limitations shall not apply to breaches,
inaccuracies or misrepresentations with respect to any Special Warranties or to
any claim based on fraud or intentional misrepresentation.


 


(c)           Notwithstanding
anything in this Section 9.1 or elsewhere in this Agreement to the
contrary, except in the case of fraud
or an intentional misrepresentation by the Seller in any representation or
warranty made by the Seller with respect to the matters set forth in this Section 9.1(c),
neither the Seller nor TW International shall be obligated to indemnify,



 


65

















 


defend,
or hold harmless any Buyer Indemnified Person from and against any Losses that
any Buyer Indemnified Person suffers or incurs arising out of or resulting
from:


 


(i)            any
Liabilities (including with respect to loss of life, personal injury, damage to
any real property, Environmental Claims, or natural resource damages) arising
out of or resulting from any violation or alleged violation of any Environmental
Law, Release of Hazardous Materials into the Environment or storage or off-site
disposal of any Hazardous Materials: (1) occurring at or emanating from
the Seller Owned Real Property at any time before December 7, 2007, or (2) arising
from the operation of the business conducted by Harsco Corporation or any other
Person at the Seller Owned Real Property or Seller Leased Real Property at any
time before December 7, 2007;


 


(ii)           any
Liabilities arising out of or relating to accidents, occurrences and other
incidents (including all Proceedings relating thereto), whether known or
unknown and whether or not reported, that result in (1) personal injury, (2) property
damage or (3) any other Losses and, in each case, that result from, are
caused by or arise out of, or are alleged to have resulted from, been caused by
or arisen out of, directly or indirectly, use of, exposure to or otherwise on
account of any product manufactured (in whole or in part), sold, shipped or
distributed, or any service rendered, (A) by or on behalf of Harsco
Corporation or (B) in connection with the operation of the business
conducted by Harsco Corporation or any other Person at the Seller Owned Real
Property at any time before December 7, 2007; or


 


(iii)          any
Liabilities relating to recalls, product liability claims or warranty claims
with respect to products manufactured (in whole or in part), sold or
distributed (1) by or on behalf of Harsco Corporation or (2) in
connection with the operation of the business conducted by Harsco Corporation
or any other Person at the Seller Owned Real Property at any time before December 7,
2007.


 


(d)           The parties acknowledge and agree
that Seller’s and TWI’s responsibility to indemnify Buyer for Excluded
Liabilities shall not be affected by the fact that Seller may have made
representations and warranties in this Agreement which have not been breached.


 


9.2                               Indemnification by
the Buyer.


 


From
and after the Closing, the Buyer shall indemnify and hold harmless the Seller
and its Affiliates and their respective officers, managers, directors,
employees, agents and representatives (collectively, the “Seller Indemnified
Persons”) from and against any and all Losses that any Seller Indemnified
Person actually suffers or incurs arising out of or resulting from:


 


(a)           any material breach,
inaccuracy or misrepresentation of any representation or warranty of the Buyer
contained in ARTICLE IV;


 


(b)           the failure to perform
any covenant or agreement of the Buyer contained in this Agreement;


 


(c)           any Assumed Liability; and


 


66

















 


(d)           the possession, ownership, use,
operation and management of the Sold Assets or the Huntsville Business by the
Buyer after the Closing.


 


9.3                               Exclusive Remedy.


 


The
indemnification provided in this ARTICLE IX and the recourse to the Escrow
Amount under the Escrow Agreement, subject to the limitations set forth in this
Agreement and the Escrow Agreement, shall be the sole and exclusive
post-Closing remedies available to any party in connection with any Losses
arising out of or resulting from this Agreement, the transactions contemplated
hereby, or the Buyer’s ownership or operation of the Sold Assets or the Huntsville Business, whether based in
contract or tort or otherwise; provided, however, that the provisions of this Section 9.3
shall not prevent or limit a cause of action at Law or in equity (a) to
obtain an injunction or injunctions to prevent breaches of this Agreement and
to enforce specifically the terms and provisions of this Agreement or (b) based
upon fraud or intentional
misrepresentation by
the Seller of any representation or warranty made by the Seller in ARTICLE III
or by the Buyer of any representation or warranty made by the Buyer in ARTICLE
IV, nor shall such provision prevent or limit the rights of the parties hereto
with respect to Sections 2.5(c) or 2.6(c). 
Notwithstanding the immediately preceding sentence or anything else in
this Agreement to the contrary, if the Buyer is paid the Break-up Fee or Expense
Reimbursement, then that amount shall be the Buyer’s sole and exclusive
remedy in connection with any Losses arising out of or resulting from this
Agreement, the transactions contemplated hereby, or the Buyer’s ownership or
operation of the Sold Assets or the Huntsville Business, whether based in contract or
tort or otherwise.  Buyer’s right of recourse against the
Harrisburg Holdback, and the obligation of Seller to pay to Buyer $125,000,
pursuant to the terms of Section 2.9(c) shall be Buyer’s sole and
exclusive recourse against Seller and TW International with respect to Seller’s
obligation to provide Buyer access to the Plant to permit Buyer to remove the
Harrisburg Assets therefrom and the other obligations of Seller under Section 2.9(c).


 


9.4                               Indemnification
Calculations.


 


The
amount of any Losses for which indemnification is provided under this ARTICLE
IX shall be computed net of any insurance proceeds received by the Indemnified
Party from a third party insurer in
connection with such Losses, including insurance proceeds or other amounts
included among the Sold Assets under Section 2.1(m).  If an Indemnified Party receives insurance
proceeds from a third party insurer
in connection with Losses for which it has received full indemnification
hereunder, such party shall refund to the Indemnifying Party the amount of such
insurance proceeds when received, up to the amount of indemnification received,
less any increases in insurance premiums that result from the making of such
claim.  If an Indemnified Party receives
insurance proceeds in connection with Losses for which it has received partial
indemnification hereunder, such party shall refund to the Indemnifying Party
the amount of such insurance proceeds when received, in excess of the amount
necessary to provide the Indemnified Party with a full recovery when combined
with the partial indemnification hereunder, less any increases in insurance
premiums that result from the making of such claim.  An Indemnified Party shall use its
commercially reasonable efforts to pursue insurance claims with respect to any
Losses; provided, however, that the reasonable costs and expenses associated
with the pursuit of such insurance claim shall be Losses hereunder.  The Buyer and the Seller agree to treat any amounts
payable pursuant to this ARTICLE IX as an adjustment to the Purchase Price,
unless a 


 


67

















 


final
determination by the appropriate Taxing Authority or court causes any such
payment not to be treated as an adjustment to the Purchase Price for Tax
purposes.


 


9.5                               Survival.


 


The
representations and warranties contained in this Agreement shall survive the Closing Date until
the date which is eighteen (18) months after the Closing Date, except that
claims based on intentional misrepresentation shall survive indefinitely and
the following representations and warranties (the “Special Warranties”)
shall survive for the following specified periods:  (a) the representations and warranties
set forth in Sections 3.1, 3.2, 3.3, 3.14(a), 3.15(a) and 3.16 shall
survive indefinitely; (b) the representations and warranties set forth in
Sections 4.1, 4.2 and 4.7 shall survive indefinitely; (c) the
representations and warranties set forth in Section 3.13 shall survive the
Closing Date until the date which is three years after the Closing Date; and (d) the
representations and warranties set forth in Section 3.8, shall survive for
the applicable statute of limitations period (taking into account all
extensions) plus 60 days.  The covenants
and agreements contained in this Agreement to be performed following the
Closing Date will survive the Closing Date in accordance with their terms or if
no survival period is specified, without limit. 
All claims for indemnification based on a breach of a representation or
warranty must be asserted on or prior to the date of the termination of the
respective survival periods set forth in this Section 9.5, except such
claims may be pursued thereafter if written notice thereof (specifying in
reasonable detail the basis for such claim) was duly given within such
period.  Any claim for indemnification
based on a breach of a representation or warranty not made by the Buyer on or
prior to the date of termination of the applicable survival period will be
irrevocably and unconditionally released and waived, whether or not a longer
period would be permitted by applicable Law.


 


9.6                               Notice and
Opportunity to Defend.


 


(a)           If there occurs an event
which a party asserts is an indemnifiable event pursuant to Section 9.1 or
9.2, the party or parties seeking indemnification (the “Indemnified Party”)
shall promptly notify the other party or parties obligated to provide
indemnification (the “Indemnifying Party”), which notice shall specify
the nature and basis of such claim and the amount thereof, to the extent
known.  If such event involves any claim
or the commencement of any action or proceeding by a third Person (a “Third
Party Claim”), the Indemnified Party shall give such Indemnifying Party prompt written notice (the “Claim
Notice”) of such claim or the commencement of such action or proceeding,
which notice shall specify the nature and basis of such claim and the amount
thereof, to the extent known, and shall be accompanied by copies of all
relevant documentation with respect to such claim, including any summons,
complaint or other pleadings that may have been served, any written demand or
any other relevant document or instrument; provided, however, that
the failure to provide such prompt notice will not relieve the Indemnifying
Party of its obligations hereunder unless such failure prejudices the
Indemnifying Party hereunder.  In the
case of a Third Party Claim, the Indemnifying Party shall be entitled to assume
the defense thereof, with counsel selected by the Indemnifying Party and, after
notice from the Indemnifying Party to the Indemnified Party of such election so
to assume the defense thereof (an “Indemnification Acknowledgement”),
the Indemnifying Party shall not be liable to the Indemnified Party for any
legal expenses of other counsel or any other expenses subsequently incurred by
such Indemnified Party in connection with the defense thereof.  The 


 


68

















 


Indemnifying
Party and the Indemnified Party agree to cooperate reasonably with each other
and their respective counsel in connection with the defense, negotiation or
settlement of any such action or asserted liability.  Notwithstanding anything else set forth in
this Section 9.6, the Indemnified Party shall at all times have the right
to participate at its own expense in the defense of such action or asserted
liability.  If the Indemnifying Party
assumes the defense of an action, no settlement or compromise thereof may be
effected (i) by the Indemnifying Party without the written consent of the
Indemnified Party (which consent shall not be unreasonably withheld or delayed)
unless the settlement involves solely money damages and all such relief is paid
or satisfied in full by the Indemnifying Party and the Indemnified Party
receives a full release from all claimants or (ii) by the Indemnified
Party without the consent of the Indemnifying Party.  In no event shall an Indemnifying Party be
liable for any settlement effected without its written consent.


 


(b)           Notwithstanding anything
to the contrary set forth in this Agreement, from and after the time when the
aggregate amount of claims paid or potentially payable by an Indemnifying Party
under this Agreement, which are subject to the Cap, exceeds or could
potentially exceed the Cap based upon claims paid and pending in accordance
with this Agreement, the Indemnified Party shall have the right, at its own
cost and expense, to jointly control the defense and settlement of any pending
indemnification claims the liability for which could potentially result in the
aggregate claims exceeding the Cap.  Any
such time as the aggregate amount of claims subject to the Cap that have been
paid or settled (subject to being paid) exceeds the Cap, the Indemnifying Party
shall no longer have the right or obligation to participate in the control or
defense of such claims.


 


9.7                               Additional
Limitations.


 


(a)           Except for Losses
resulting from an action brought by a third party against a Buyer Indemnified
Person or a Seller Indemnified Person, no such party shall be entitled to indemnification
under ARTICLE IX for punitive damages, or for lost revenues, income or profits,
consequential, incidental, exemplary or special damages.


 


(b)           Notwithstanding anything
in this ARTICLE IX to the contrary, no Buyer Indemnified Person is entitled to
make any claim under any provision of this Agreement for reimbursement or
indemnification for any Losses pursuant to this ARTICLE IX to the extent such
Losses have been reflected in the adjustment to the Purchase Price pursuant to Section 2.4
or Section 2.5.  In addition, no
party shall be entitled to be compensated more than once for the same Loss.


 


9.8                               Subrogation.


 


Nothing
in this Agreement shall limit or be construed to limit the right of the Seller
to assert any claims, demands or rights by subrogation against appropriate Persons (other than a
Buyer Indemnified Person) for any amounts paid or reimbursed in respect of
Losses successfully asserted by a Buyer Indemnified Person pursuant to Section 9.1.


 


69

















 


ARTICLE X.

MISCELLANEOUS


 


10.1                        Fees and Expenses.


 


Except
as otherwise provided in this Agreement, each party hereto shall bear its own
expenses and the expenses of its Affiliates in connection with the preparation
and negotiation of this Agreement and the consummation of the transactions
contemplated by this Agreement.


 


10.2                        Governing Law;
Jurisdiction.


 


The
laws of the State of Delaware, without regard to principles of conflicts of
laws, will govern this Agreement and its subject matter, construction and the
determination of any rights, duties or remedies of the Parties arising out of
or relating to this Agreement, its subject matter or any of the transactions
contemplated by this Agreement.  Without
limiting any party’s right to appeal any Order of the Bankruptcy Court, (i) the
Bankruptcy Court shall retain exclusive jurisdiction to enforce the terms of
this Agreement and to decide any claims or disputes which may arise or result
from, or be connected with, this Agreement, any breach or default hereunder, or
the transactions contemplated hereby, and (ii) any and all proceedings
related to the foregoing shall be filed and maintained only in the Bankruptcy
Court, and the parties hereby consent to and submit to the jurisdiction and
venue of the Bankruptcy Court and shall receive notices at such locations as
indicated in Section 10.7; provided, however, that if the Bankruptcy Case
has closed, the Parties agree to unconditionally and irrevocably submit to the
exclusive jurisdiction of any state or Federal court located in the State of
Delaware with respect to any case or controversy arising out of or relating to
this Agreement, its subject matter or any of the transactions contemplated by
this Agreement and that all litigation arising out of or relating to this Agreement,
its subject matter or any of the transactions contemplated by this Agreement
will be commenced in the State of Delaware. 
The Parties agree that any process, summons, notice or document sent by
U.S. registered or certified mail addressed to a party shall be effective
service of process for any action, suit or proceeding brought against it in any
such court.  The Parties irrevocably and
unconditionally waive any objection to the laying of venue of any such suit,
action or proceeding brought in any such court and any claim that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum.  The Parties agree
that a final judgment in any such suit, action or proceeding brought in any
such court shall be conclusive and binding upon the Parties and may be enforced
in any other courts to whose jurisdiction a party is or may be subject, by suit
upon such judgment.


 


10.3                        Certain Interpretive
Matters.


 


(a)           Unless otherwise
expressly provided, for purposes of this Agreement, the following rules of
interpretation shall apply:


 


(i)            When calculating the period of time before which, within
which or following which, any act is to be done or step taken pursuant to this
Agreement, the date that is the reference date in calculating such period shall
be excluded.  If the last day of such
period is a non-Business Day, the period in question shall end on the next
succeeding Business Day.


 


70

















 


(ii)           Any reference in this Agreement to $ shall mean U.S.
dollars.


 


(iii)          The Exhibits and Disclosure Schedules to this Agreement are
hereby incorporated and made a part hereof and are an integral part of this
Agreement.  All Exhibits and Disclosure
Schedules annexed hereto or referred to herein are hereby incorporated in and
made a part of this Agreement as if set forth in full herein.  Any matter or item disclosed on one
Disclosure Schedule shall be deemed to have been disclosed on each other
Disclosure Schedule to which it would
be applicable by its terms.  No
disclosure on a Disclosure Schedule relating to a possible breach or violation
of any contract, Law or Governmental
Order shall be construed as an admission or indication that such breach or
violation exists or has actually occurred. 
Any capitalized terms used in any Disclosure Schedule or Exhibit but
not otherwise defined therein shall be defined as set forth in this Agreement.


 


(iv)          Any reference in this Agreement to gender shall include all
genders.


 


(v)           The provision of a Table of Contents, the division of this
Agreement into Articles, Sections and other subdivisions and the insertion of
headings are for convenience of reference only and shall not affect or be
utilized in construing or interpreting this Agreement.  All references in this Agreement to any “Section”
are to the corresponding Section of this Agreement unless otherwise
specified.


 


(vi)          The words such as “herein,” “hereinafter,” “hereof” and “hereunder”
refer to this Agreement as a whole and not merely to a subdivision in which
such words appear unless the context otherwise requires.


 


(vii)         The word “including” or any variation thereof means (unless
the context of its usage otherwise requires) “including, without limitation”
and shall not be construed to limit any general statement that it follows to
the specific or similar items or matters immediately following it.


 


(viii)        For purposes of this Agreement, the term “commercially
reasonable efforts” shall not be deemed to require any Person to give any
guarantee or other consideration of any nature, including in connection with
obtaining any consent or waiver, or to consent to any change in the terms of
any agreement or arrangement.


 


(b)           The parties hereto have
participated jointly in the negotiation and drafting of this Agreement and, in
the event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as jointly drafted by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provision of this Agreement.


 


10.4                        Amendment.


 


This
Agreement may not be amended, modified or supplemented except upon the
execution and delivery of a written agreement executed by the parties hereto.


 


71

















 


10.5                        Assignment.


 


This
Agreement will bind and inure to the benefit of the parties and their
successors, assigns and transferees; provided that no party hereto may assign
this Agreement, any Ancillary Agreement or any rights under this Agreement or
any Ancillary Agreement to any other person without the prior written consent
of the other party, except that Buyer may assign this Agreement to any
Subsidiary of the Buyer or to any lender to the Buyer as security for
obligations to such lender in respect of the financing arrangements entered
into in connection with the transactions contemplated hereby and any
refinancings, extensions, refundings or renewals thereof; provided, further,
that no such assignment to any Subsidiary of the Buyer or to such lender to the
Buyer shall in any way affect or otherwise limit the Buyer’s obligations or
liabilities under this Agreement and the Buyer shall remain liable with respect
to all of its Liabilities under this Agreement. 
Any attempted assignment in violation of this Section 10.5 will be
null and void.  Notwithstanding anything
herein to the contrary, the Buyer may assign any of its right to
indemnification or reimbursement hereunder or under any of the Ancillary
Agreements to any Person that is not an Affiliate of the Buyer upon a sale or
transfer of all or substantially all of the assets of the Buyer or any division
of the Buyer to that Person.


 


10.6                        Waiver.


 


Any
of the terms or conditions of this Agreement that may be lawfully waived may be
waived in writing at any time by the party that is entitled to the benefits
thereof.  Any waiver of any of the
provisions of this Agreement by any party hereto shall be binding only if set
forth in an instrument in writing signed on behalf of such party.  No failure to enforce any provision of this
Agreement shall be deemed to or shall constitute a waiver of such provision and
no waiver of any of the provisions of this Agreement shall be deemed to or
shall constitute a waiver of any other provision hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.  The representations and warranties of the
Seller shall not be affected or deemed waived by reason of any investigation
made by or on behalf of the Buyer (including, but not limited to, by any of its
advisors, consultants or representatives) or by reason of the fact that the
Buyer or any of such advisors, consultants or representatives knew or should
have known that any such representation or warranty is or might be inaccurate.


 


10.7                        Notices.


 


Any
notice, demand, or communication required or permitted to be given by any
provision of this Agreement shall be deemed to have been sufficiently given or
served for all purposes if (a) personally delivered, (b) sent by a
nationally recognized overnight courier service to the recipient at the address
below indicated or (c) delivered by facsimile which is confirmed in
writing by sending a copy of such facsimile to the recipient thereof pursuant
to clause (a) or (b) above:


 


72

















 


If
to the Buyer:


 


Norris Cylinder Company


4818 W. Loop 281


Longview, TX 
75603


Attn:
Jerry Van Auken, President


Facsimile:
903-237-7657


 


With
a copy to:


 


TriMas
Corporation


39400
Woodward Avenue


Suite 130


Bloomfield
Hills, MI 48304


Attn:  Joshua A. Sherbin, Esq.


Facsimile:  (248) 631-5502


 


and


 


Honigman
Miller Schwartz and Cohn LLP


2290
First National Building


660
Woodward Avenue


Detroit, Michigan 48226


Attn: Donald J. Kunz, Esq.


Facsimile: (313) 465-7455


 


If
to the Seller:


 


TW
Cylinder LLC


4718
Old Gettysburg Rd., Suite 300


Mechanicsburg,
PA 17055


Attn:
Chief Financial Officer


Facsimile:
610-398-0659


 


With
a copy to:


 


Taylor-Wharton
International LLC


4718
Old Gettysburg Rd., Suite 300


Mechanicsburg,
PA 17055


Attn:
General Counsel


Facsimile:
717-731-7988


 


73

















 


And:


 


McNees
Wallace & Nurick LLC


100
Pine Street


P.O. Box
1166


Harrisburg,
PA 17108


Attn:  Jeffrey J. van Bastelaar


Facsimile:  717-260-1751


 


or
to such other address or facsimile number as any party hereto may, from time to
time, designate in a written notice given in like manner.  Except as otherwise provided herein, any
notice under this Agreement will be deemed to have been duly given (x) on
the date such notice is personally delivered or delivered by facsimile or (y) the
next succeeding Business Day after the date such notice is delivered to the
overnight courier service if sent by overnight courier; provided that in each
case notices received after 4:00 p.m. (local time of the recipient) shall
be deemed to have been duly given on the next Business Day.


 


10.8                        Complete Agreement.


 


This
Agreement (including the Disclosure Schedules and Exhibits hereto), the
Confidentiality Agreement and the Ancillary Agreements contain the entire
understanding of the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.


 


10.9                        Counterparts.


 


This
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement and each of which shall be deemed an
original.


 


10.10                 Publicity.


 


The
Seller and the Buyer will consult with each other and will mutually agree upon
any publication or press release of any nature with respect to this Agreement
or the transactions contemplated hereby and shall not issue any such
publication or press release prior to such consultation and agreement except as
may be required by applicable Law or by obligations pursuant to any listing
agreement with any securities exchange or any securities exchange regulation,
in which case the party proposing to issue such publication or press release
shall make all commercially reasonable efforts to consult in good faith with
the other party before issuing any such publication or press release and shall
provide a copy thereof to the other party prior to such issuance.


 


10.11                 Severability.


 


Any
provision of this Agreement that is invalid, illegal or unenforceable in any jurisdiction
shall, as to that jurisdiction, be ineffective to the extent of such
invalidity, illegality or unenforceability, without affecting in any way the
remaining provisions hereof in such 


 


74

















 


jurisdiction
or rendering that or any other provision of this Agreement invalid, illegal or
unenforceable in any other jurisdiction. 
Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby are consummated as originally contemplated to
the greatest extent possible.


 


10.12                 Third Parties.


 


Except
as provided in ARTICLE IX, nothing herein expressed or implied is intended or
shall be construed to confer upon or give to any Person, other than the parties
hereto and their permitted successors or assigns, any rights or remedies under
or by reason of this Agreement.


 


10.13                 Non-Recourse.


 


Except
to the extent provided in this Agreement with respect to TW International, no
past, present or future director, manager, partner, officer, employee,
incorporator, member, stockholder, agent, attorney or representative of the
Seller or its Affiliates, on the one hand, or Buyer or its Affiliates, on the
other hand, shall have any liability for any obligations or liabilities of the
Seller or Buyer, as applicable, under this Agreement or the Ancillary
Agreements or for any claim based thereon, in respect thereof, or by reason
thereof.


 


10.14                 No Successor Liability.


 


Upon
the Closing, it is the intent of the parties that the Buyer shall not be
deemed: (a) to be the successor of the Seller or any of its Affiliates
(including, but not limited to, any status as a “successor employer” of Seller
or any Affiliate of Seller under COBRA with respect to any current or former
Benefit Plan or any current or former practice by Seller or any Affiliate of
Seller to provide or make available group health plan coverage to any former
employee or non-employee service provider or other non-employee individual (and
their spouses and dependents)); (b) to have, de facto, or otherwise,
merged with or into the Seller or any of its Affiliates; (c) to be a mere
continuation or substantial continuation of the Seller or any of its Affiliates
or the enterprise(s) of the Seller or any of its Affiliates; or (d) to
be liable for any acts or omissions of the Seller or any of its Affiliates in
the conduct of the Business or arising under or related to the Sold Assets,
other than as expressly set forth in this Agreement. Without limiting the
generality of the foregoing, and except as otherwise provided in this
Agreement,  it is the intention of the
parties that the Buyer shall not be liable for any claims against the Seller or
its Affiliates or any of their predecessors, and the Buyer shall have no
successor or vicarious liability of any kind or character whether known or
unknown as of the Closing, whether now existing or hereafter arising, or
whether fixed or contingent, with respect to the Business or any obligations of
the Seller or its Affiliates arising prior to the Closing of the Transactions,
except as expressly provided in this Agreement, including, but not limited to,
Liabilities on account of any Taxes arising, accruing, or payable under, out
of, in connection with, or in any way relating to the operation of the Business
prior to the Closing.


 


(Signature page follows)


 


75

















 


IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed by its duly authorized officer, in each case as of the date first
above written.


 


	
   

  	
  TW CYLINDERS LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/ Bill Corbin

  
	
   

  	
  Name:
   Bill Corbin

  
	
   

  	
  Title:
   Chairman, C.E.O.

  
	
   

  	
   

  
	
   

  	
  NORRIS CYLINDER COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jerry Van Auken

  
	
   

  	
  Name:
   Jerry Van Auken

  
	
   

  	
  Title:
   President

  
	
   

  	
   

  
	
  Solely
  with respect to Sections 2.6, 3.1(b), 3.2(b), 3.3, 5.8, 5.18 and ARTICLE IX:

  
	
   

  	
   

  
	
   

  	
  TAYLOR-WHARTON INTERNATIONAL LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bill Corbin

  
	
   

  	
  Name:  Bill Corbin

  
	
   

  	
  Title:
   Chairman, C.E.O.