STOCK
      PURCHASE AGREEMENT

     

    by
      and among


     

    APPALACHIAN
      OIL COMPANY, INC.


     

    JAMES
      R. MACLEAN


     

    SARA
      G. MACLEAN


     

    THE
      LINDA R. MACLEAN IRREVOCABLE TRUST


     

    JEFFREY
      H. BENEDICT


     

    REFUEL
      AMERICA ACQUISITION CORPORATION

     

    and
      


     

    NEWGEN
      TECHNOLOGIES, INC.


     

    January
      16, 2006

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     


    TABLE
      OF CONTENTS

     

    


     

     

     

    


     

    

      
        	 	 
	 	
                Page
                  No. 

              
	
                ARTICLE
                  I DEFINITIONS

              	
                1

              
	 	
                 

              
	
                ARTICLE
                  II SALE AND TRANSFER OF SHARES; CLOSING

              	
                7

              
	
                 

              	
                2.1
                  Shares

              	
                7

              
	
                 

              	
                2.2
                  Purchase Price

              	
                7

              
	
                 

              	
                2.3
                  Closing

              	
                7

              
	
                 

              	
                2.4
                  Closing Obligations

              	
                8

              
	
                 

              	
                2.5
                  Escrow

              	
                8

              
	 	
                 

              
	
                ARTICLE
                  III REPRESENTATIONS AND WARRANTIES REGARDING THE
                  COMPANY

              	
                9

              
	
                 

              	
                3.1
                  Organization and Good Standing

              	
                9

              
	
                 

              	
                3.2
                  Authority; No Conflict

              	
                9

              
	
                 

              	
                3.3
                  Capitalization

              	
                10

              
	
                 

              	
                3.4
                  Financial Statements

              	
                10

              
	
                 

              	
                3.5
                  Books and Records

              	
                11

              
	
                 

              	
                3.6
                  Title to Properties; Encumbrances

              	
                11

              
	
                 

              	
                3.7
                  Intellectual Property Matters

              	
                12

              
	
                 

              	
                3.8
                  Absence of Material Adverse Change

              	
                13

              
	
                 

              	
                3.9
                  No Undisclosed Liabilities

              	
                13

              
	
                 

              	
                3.10
                  Taxes

              	
                13

              
	
                 

              	
                3.11
                  Employee Benefits

              	
                15

              
	
                 

              	
                3.12
                  Compliance with Legal Requirements; Governmental
                  Authorizations

              	
                16

              
	
                 

              	
                3.13
                  Legal Proceedings

              	
                17

              
	
                 

              	
                3.14
                  Absence of Certain Changes and Events

              	
                18

              
	
                 

              	
                3.15
                  Material Contracts; No Defaults

              	
                19

              
	
                 

              	
                3.16
                  Insurance

              	
                20

              
	
                 

              	
                3.17
                  Environmental Matters

              	
                21

              
	
                 

              	
                3.18
                  Brokers or Finders

              	
                23

              
	
                 

              	
                3.19
                  Accounts Receivable

              	
                23

              
	
                 

              	
                3.20
                  Inventory

              	
                23

              
	
                 

              	
                3.21
                  Sufficiency of Assets

              	
                24

              
	
                 

              	
                3.22
                  Relationships with Customers, Dealers and Suppliers

              	
                24

              
	
                 

              	
                3.23
                  Related Party Transactions

              	
                24

              
	
                 

              	
                3.24
                  Employee and Labor Relations

              	
                24

              
	
                 

              	
                3.25
                  Closing Date

              	
                25

              
	
                 

              	
                3.26
                  Disclosures

              	
                26

              


      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        	
                ARTICLE
                  IV REPRESENTATIONS AND WARRANTIES OF SELLERS

              	
                25

              
	
                 

              	
                4.1
                  Legal Capacity, Organization and Good Standing

              	
                25

              
	
                 

              	
                4.2
                  Authority; No Conflict

              	
                25

              
	
                 

              	
                4.3
                  Ownership of Shares

              	
                26

              
	
                 

              	
                4.4
                  Absence of Claims

              	
                
                  26

                

              
	
                 

              	
                4.5
                  Brokers or Finders

              	
                
                  26

                

              
	
                 

              	
                4.6
                  Closing Date

              	
                
                  26

                

              
	 	
                 

              
	
                ARTICLE
                  V REPRESENTATIONS AND WARRANTIES OF BUYER

              	
                
                  26

                

              
	
                 

              	
                5.1
                  Organization and Good Standing

              	
                
                  26

                

              
	
                 

              	
                5.2
                  Authority; No Conflict

              	
                27

              
	
                 

              	
                5.3
                  Investment Intent

              	
                27

              
	
                 

              	
                5.4
                  Certain Proceedings

              	
                
                  27

                

              
	
                 

              	
                5.5
                  Buyer’s Investigation

              	
                
                  27

                

              
	
                 

              	
                5.6
                  Brokers or Finders

              	
                
                  27

                

              
	 	
                 

              
	
                ARTICLE
                  VI COVENANTS OF COMPANY AND SELLERS PRIOR TO CLOSING
                  DATE

              	
                
                  27

                

              
	
                 

              	
                6.1
                  Access and Investigations

              	
                
                  27

                

              
	
                 

              	
                6.2
                  Operation of the Company

              	
                28

              
	
                 

              	
                6.3
                  Negative Covenant

              	
                
                  28

                

              
	
                 

              	
                6.4
                  Cooperation Regarding Financial Statement Audit

              	
                29

              
	
                 

              	
                6.5
                  Non-Solicitation

              	
                29

              
	
                 

              	
                6.6
                  Notice of Developments—Company and Seller

              	
                
                  29

                

              
	
                 

              	
                6.7
                  Consents

              	
                30

              
	
                 

              	
                6.8
                  Stockholder Agreements

              	
                
                  
                    30

                  

                

              
	
                 

              	
                6.9
                  Excise Tax

              	
                
                  30

                

              
	
                 

              	
                6.10
                  Environmental Due Diligence

              	
                
                  30

                

              
	
                 

              	
                6.11
                  Assignments

              	
                31

              
	 	
                 

              
	
                ARTICLE
                  VII COVENANTS

              	
                
                  31

                

              
	
                 

              	
                7.1
                  Approvals of Governmental Bodies

              	
                
                  31

                

              
	
                 

              	
                7.2
                  WARN Act

              	
                32

              
	
                 

              	
                7.3
                  Notice of Developments—Buyer

              	
                32

              
	
                 

              	
                7.4
                  Special Arrangements Involving Departing Principals and Their
                  Affiliates

              	
                
                  32

                

              
	
                 

              	
                7.5
                  Noncompetition and Nonsolicitation

              	
                
                  32

                

              
	
                 

              	
                7.6
                  Confidentiality

              	
                33

              


      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        	
                ARTICLE
                  VIII CONDITIONS PRECEDENT TO BUYER’S OBLIGATION TO
                  CLOSE

              	
                34

              
	
                 

              	
                8.1
                  Accuracy of Representations

              	
                
                  34

                

              
	
                 

              	
                8.2
                  Covenants

              	
                
                  34

                

              
	
                 

              	
                8.3
                  Consents

              	
                
                  34

                

              
	
                 

              	
                8.4
                  No Proceedings

              	
                
                  34

                

              
	
                 

              	
                8.5
                  Management Agreements

              	
                
                  34

                

              
	
                 

              	
                8.6
                  Closing Deliveries

              	
                35

              
	
                 

              	
                8.7
                  Intentionally Left Blank

              	
                35

              
	
                 

              	
                8.8
                  Financing

              	
                
                  35

                

              
	
                 

              	
                8.9
                  Opinion

              	
                
                  35

                

              
	
                 

              	
                8.10
                  FIRPTA Affidavit

              	
                
                  35

                

              
	
                 

              	
                8.11
                  Certificates

              	
                
                  35

                

              
	
                 

              	
                8.12
                  Section 280G Approval or Disapproval

              	
                
                  35

                

              
	
                 

              	
                8.13
                  Termination of Stockholder Agreements

              	
                
                  35

                

              
	
                 

              	
                8.14
                  Financial Statements; Audit

              	
                
                  35

                

              
	
                 

              	
                8.15
                  Satisfaction of Environmental Condition

              	
                36

              
	
                 

              	
                8.16
                  Affiliate Leases

              	
                
                  
                    36

                  

                

              
	
                 

              	
                8.17
                  Satisfaction of Legal and Financial Due Diligence

              	
                
                  37

                

              
	
                 

              	
                8.18
                  Escrow Agreement

              	
                
                  37

                

              
	 	
                 

              
	
                ARTICLE
                  IX CONDITIONS
                  PRECEDENT TO SELLERS’ OBLIGATION TO CLOSE

              	
                
                  37

                

              
	
                 

              	
                9.1
                  Accuracy of Representations

              	
                
                  37

                

              
	
                 

              	
                9.2
                  Covenants

              	
                
                  37

                

              
	
                 

              	
                9.3
                  Consents

              	
                
                  37

                

              
	
                 

              	
                9.4
                  No Proceedings

              	
                
                  37

                

              
	
                 

              	
                9.5
                  Certificates

              	
                38

              
	
                 

              	
                9.6
                  Escrow Agreement

              	
                38

              
	 	
                 

              
	
                ARTICLE
                  X TERMINATION

              	
                
                  38

                

              
	
                 

              	
                10.1
                  Termination Events.

              	
                
                  38

                

              
	
                 

              	
                10.2
                  Effect of Termination

              	
                
                  39

                

              
	 	
                 

              
	
                ARTICLE
                  XI SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND
                  AGREEMENTS

              	
                
                  39

                

              
	 	
                11.1
                  Representations and Warranties

              	
                
                  39

                

              
	 	
                11.2
                  Covenants

              	
                
                  39

                

              
	 	
                11.3
                  General

              	
                
                  39

                

              


      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        	
                ARTICLE
                  XII INDEMNIFICATION

              	
                40

              
	 	
                12.1
                  Indemnification and Payment of Damages by Seller

              	
                
                  40

                

              
	 	
                12.2
                  Indemnification and Payment of Damages by Buyer

              	
                
                  40

                

              
	 	
                12.3
                  Indemnitee’s Tax Benefits

              	
                
                  40

                

              
	 	
                12.4
                  Limitations

              	
                
                  40

                

              
	 	
                12.5
                  Procedures for Indemnification -- Third Party Claims

              	
                
                  41

                

              
	 	
                12.6
                  Procedure for Indemnification -- Other Claims

              	
                42

              
	 	
                12.7
                  Exclusive Remedy

              	
                42

              
	 	
                12.8
                  Tax Treatment

              	
                42

              
	 	
                12.9
                  Manner of Payment

              	
                43

              
	 	
                 

              
	
                ARTICLE
                  XIII TAX MATTERS

              	
                
                  43

                

              
	 	
                13.1
                  Tax Indemnification

              	
                
                  43

                

              
	 	
                13.2
                  Tax Periods Ending On or Before the Closing Date

              	
                
                  43

                

              
	 	
                13.3
                  Cooperation on Tax Matters

              	
                
                  43

                

              
	 	
                13.4
                  Tax Sharing Arrangements

              	
                44

              
	
                 

              	
                13.5
                  Transfer Taxes

              	
                
                  44

                

              
	
                 

              	
                13.6
                  Audits and Contests Regarding Taxes

              	
                
                  44

                

              
	 	
                 

              
	
                ARTICLE
                  XIV GENERAL PROVISIONS

              	
                45

              
	
                 

              	
                14.1
                  Expenses

              	
                
                  45

                

              
	
                 

              	
                14.2
                  Public Announcements.

              	
                
                  45

                

              
	
                 

              	
                14.3
                  Confidentiality

              	
                
                  45

                

              
	
                 

              	
                14.4
                  Notices

              	
                
                  45

                

              
	
                 

              	
                14.5
                  Jurisdiction; Service of Process

              	
                46

              
	
                 

              	
                14.6
                  Further Assurances

              	
                
                  46

                

              
	
                 

              	
                14.7
                  Waiver

              	
                
                  46

                

              
	
                 

              	
                14.8
                  Entire Agreement and Modification

              	
                47

              
	
                 

              	
                14.9
                  Disclosure Schedules

              	
                
                  47

                

              
	
                 

              	
                14.10
                  Assignments, Successors, and No Third-Party Rights

              	
                
                  47

                

              
	
                 

              	
                14.11
                  Severability

              	
                
                  47

                

              
	
                 

              	
                14.12
                  Article and Section Headings, Construction

              	
                
                  47

                

              
	
                 

              	
                14.13
                  Time of Essence

              	
                
                  47

                

              
	
                 

              	
                14.14
                  Governing Law

              	
                48

              
	
                 

              	
                14.15
                  Counterparts

              	
                
                  48

                

              
	
                 

              	
                14.16
                  Sellers’ Representatives

              	
                
                  48

                

              


      

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    

      DISCLOSURE
        SCHEDULES

      


      
        	
                Schedule
                  3.1(a)

              	
                Executive
                  Officers & Directors; Business Qualification

              
	
                Schedule
                  3.1(b)

              	
                Subsidiaries;
                  Executive Officers & Directors 

              
	
                Schedule
                  3.2(b)

              	
                No
                  Conflicts

              
	
                Schedule
                  3.2(c)

              	
                Company
                  Required Consents

              
	
                Schedule
                  3.3(a)

              	
                Capitalization
                  and Agreements in Respect of Equity Securities

              
	
                Schedule
                  3.3(b)

              	
                Options,
                  Warrants and Similar Rights

              
	
                Schedule
                  3.4

              	
                Financial
                  Statements

              
	
                Schedule
                  3.6

              	
                Title
                  to Assets; Encumbrances

              
	
                Schedule
                  3.7

              	
                Intellectual
                  Property

              
	
                Schedule
                  3.9

              	
                Undisclosed
                  Liabilities

              
	
                Schedule
                  3.10

              	
                Taxes

              
	
                Schedule
                  3.11

              	
                Plans
                  and Benefit Obligations; Retiree Benefits

              
	
                Schedule
                  3.12

              	
                Compliance
                  with Legal Requirements

              
	
                Schedule
                  3.13

              	
                Legal
                  Proceedings

              
	
                Schedule
                  3.14

              	
                Absence
                  of Certain Changes and Events

              
	
                Schedule
                  3.15(a)

              	
                Material
                  Contracts

              
	
                Schedule
                  3.15(b)

              	
                Restrictive
                  Contracts

              
	
                Schedule
                  3.15(c)

              	
                Validity
                  of Material Contracts

              
	
                Schedule
                  3.15(d)

              	
                No
                  Violation of Material Contracts

              
	
                Schedule
                  3.16

              	
                Insurance

              
	
                Schedule
                  3.17

              	
                Environmental
                  Matters

              
	
                Schedule
                  3.19

              	
                Accounts
                  Receivable

              
	
                Schedule
                  3.20

              	
                Inventory

              
	
                Schedule
                  3.22

              	
                Relationship
                  with Customers, Dealers and Suppliers

              
	
                Schedule
                  3.23

              	
                Related
                  Party Transactions

              
	
                Schedule
                  3.24

              	
                Employee
                  and Labor Relations

              
	
                Schedule
                  4.2

              	
                No
                  Conflict of Sellers

              
	
                Schedule
                  4.4

              	
                Absence
                  of Claims

              


      

       

      OTHER
        SCHEDULES

      


      
        	
                Schedule
                  6.2(a)

              	
                Operation
                  of the Company

              
	
                Schedule
                  6.3

              	
                Negative
                  Covenant

              
	
                Schedule
                  8.3

              	
                Consents

              


      

       

      EXHIBITS

      


      
        	
                Exhibit
                  A

              	
                Buyer’s
                  Required Consents

              


      

    


    
      
        
          


        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
          


           

        

      

    


    STOCK
      PURCHASE AGREEMENT

     

    This
      STOCK PURCHASE AGREEMENT
      (this
“Agreement”)
      is
      dated as of January 16, 2006, by and among Appalachian Oil Company, Inc., a
      Tennessee corporation (the “Company”),
      the
      stockholders of the Company identified on the signature page hereto
      (collectively referred to herein as “Sellers”
and
      each individually as a “Seller”),
      NewGen
      Technologies, Inc., a Nevada corporation
      (“Parent”) and Refuel
      America Acquisition Corporation, a Delaware corporation
      (“Acquisition
      Subsidiary”)
      and a
      wholly-owned subsidiary of Parent.

     

    RECITAL

     

    Sellers
      desire to sell, and Buyer (as defined below) desires to purchase, in the
      aggregate, all of the issued and outstanding common stock, zero par value per
      share, of the Company (collectively, the “Shares”),
      for
      the consideration and on the terms and conditions set forth in this
      Agreement.

     

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

     

    ARTICLE
      I

     

    DEFINITIONS

     

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

     

    “Accounts
      Receivable”
      means
      all
      of the Company’s trade
      accounts receivable, notes receivable, employee advances and other miscellaneous
      receivables.

     

    “Acquisition
      Proposal”
has
      the
      meaning set forth in Section 6.5(b).

     

    “Acquisition
      Subsidiary”
has
      the
      meaning set forth in the first paragraph of this Agreement.

     

    “Affiliate”
shall
      mean, with respect to any Person, any other Person which directly or indirectly
      controls, is controlled by, or is under common control with such Person. For
      the
      purposes of this definition, “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 agreement or
      otherwise.

     

    “Affiliated
      Group”
means
      any affiliated group within the meaning of IRC §1504(a) or any similar
      group defined under a similar provision of state, local or foreign
      law.

     

    “Agreement”
has
      the
      meaning set forth in the first paragraph of this Agreement.

     

    “All
      Appropriate Inquiries”
has
      the
      meaning set forth in Section 6.10.

     

    “Basket”
has
      the
      meaning set forth in Section 12.4.

     

    “Benedict”
means
      Jeffrey H. Benedict.

     

    “Benedict
      Indebtedness”
means
      the indebtedness owed by Benedict to the Company as of June 7, 2006 and
      which was incurred in connection with certain services rendered by the Company
      to Benedict.

     

    “Benefit
      Obligation”
has
      the
      meaning set forth in Section 3.11(a).

     

    
      
        
        

      

      
        1

        
          

        

      

      
        
        

      

       

    

    “Business
      Day”
means
      any day other than a Saturday, Sunday or public holiday under the laws of the
      State of New York.

     

    “Buyer”
means
      Parent and Acquisition Subsidiary, jointly and severally, unless this Agreement
      explicitly provides otherwise.

     

    “Buyer’s
      Accountants”
means
      Buyer’s independent, nationally recognized, certified public accountants.


     

    “Cap”
has
      the
      meaning set forth in Section 12.4.

     

    “Closing”
has
      the
      meaning set forth in Section 2.4.

     

    “Closing
      Date”
has
      the
      meaning set forth in Section 2.4.

     

    “Common
      Stock”
means
      the common stock of the Company, zero par value per share.

     

    “Company”
has
      the
      meaning set forth in the first paragraph of this Agreement.

     

    “Company
      Facility”
      has
      the
      meaning set forth in Section 3.17(b).

     

    “Company
      Intellectual Property Assets”
means
      the Intellectual Property Assets owned or used by the Company.

     

    “Consent”
means
      any approval, consent, ratification, waiver, or other authorization (including
      any Governmental Authorization), including the satisfaction of any requirement
      to pay any fees or other amounts under any Contract or instrument, arising
      in
      connection with the transactions contemplated hereby.

     

    “Consent
      Fees”
means
      all fees and other amounts payable to contractual counter-parties, Governmental
      Bodies (except for any transfer taxes) and other third parties in connection
      with obtaining the Consents, other than the Consents that are or should have
      been set forth on Exhibit A hereto.

     

    “Contract”
means
      any written (or oral) agreement, contract, license, sublicense, lease, sublease
      or binding commitment or arrangement.

     

    “CPI”
shall
      have the meaning set forth in Section 8.16.

     

    “Current
      Company Facility”
has
      the
      meaning set forth in Section 3.17(c).

     

    “Damages”
means
      any and all losses, damages, liabilities, obligations, costs and expenses,
      including without limitation, reasonable fees and disbursements of counsel,
      sustained or incurred by the applicable Person. 

     

    “Disclosure
      Schedules”
means,
      collectively, those schedules delivered by the Company and the Sellers and
      attached to this Agreement that set forth the facts and circumstances that
      qualify the representations and warranties of the Company and the Sellers in
      Articles III and IV of this Agreement, and “Schedule” means any
      individual schedule comprising part of the Disclosure Schedules. 

     

    “Encumbrance”
means
      any mortgage, easement, right of way, charge, claim, equitable interest, lien,
      option, pledge, security interest, right of first refusal, or restriction of
      any
      kind, including any restriction on use, voting, transfer, receipt of income,
      or
      exercise of any other attribute of ownership.

     

    “Environmental
      Claim”
has
      the
      meaning set forth in Section 3.17.

     

    “Environmental
      Laws”
has
      the
      meaning set forth in Section 3.17.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

       

    

    “Environmental
      Permits”
has
      the
      meaning set forth in Section 3.17.

     

    “Equipment”
means
      all equipment used by the Company in its operations or otherwise held by the
      Company, whether owned, leased or licensed, and whether located at any Current
      Company Facility or not, including, without limitation, all fuel pumps, fuel
      tanks, trucks, cash registers, computers, telephones, printers and other related
      equipment.

     

    “ERISA”
means
      the Employee Retirement Income Security Act of 1974, as amended, or any
      successor law, and regulations and rules issued pursuant to that Act or any
      successor law.

     

    “ERISA
      Affiliate”
has
      the
      meaning set forth in Section 3.11(a).

     

    “Escrow
      Account”
has
      the
      meaning set forth in Section 2.5.

     

    “Escrow
      Agent”
has
      the
      meaning set forth in Section 2.5. 

     

    “Escrow
      Agreement”
      has the
      meaning set forth in Section 2.5.

     

    “Escrow
      Amount”
has
      the
      meaning set forth in Section 2.5.

     

    “FIRPTA
      Affidavit”
shall
      have the meaning set forth in Section 8.10.

     

    “Former
      Company Facility”
has
      the
      meaning set forth in Section 3.17(c).

     

    “Fundamental
      Representations”
      has
      the
      meaning set forth in Section 11.1.

     

    “GAAP”
means
      United States generally accepted accounting principles as in effect at the
      relevant time.

     

    “Governmental
      Authorization”
means
      any approval, consent, license, permit, certification, registration, waiver,
      or
      other authorization issued, granted, given, required, or otherwise made
      available by or under the authority of any Governmental Body or pursuant to
      any
      Legal Requirement.

     

    “Governmental
      Body”
means
      any:

     

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

     

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

     

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

     

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

     

    “Hazardous
      Materials”
has
      the
      meaning set forth in Section 3.17.

     

    “Indebtedness”
means
      at any particular time, without duplication, (i) any indebtedness for
      borrowed money or issued in substitution for or exchange of indebtedness for
      borrowed money, (ii) any indebtedness evidenced by any note, bond,
      debenture or other debt security, (iii) any indebtedness for the deferred
      purchase price of property or services with respect to which a Person is liable,
      contingently or otherwise, as obligor or otherwise (other than trade payables
      and other current liabilities incurred in the ordinary course of business which
      are not more than three months past due), (iv) any banker’s acceptances
      that are not used to purchase Inventory, (v) any indebtedness guaranteed in
      any manner by a Person (including, without limitation, guarantees in the form
      of
      an agreement to repurchase or reimburse), (vi) any obligations under
      capitalized leases with respect to which a Person is liable, contingently or
      otherwise, as obligor, guarantor or otherwise, or with respect to which
      obligations a Person assures a creditor against loss, (vii) any
      indebtedness secured by an Encumbrance on a Person’s assets, and
      (viii) accrued interest in respect of any of the obligations described in
      the foregoing clauses (i) through (vii) of this definition and all
      premiums, penalties, charges, fees, expenses and other amounts which would
      become due in connection with the payment and satisfaction in full of such
      obligations on the Closing Date.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

       

    

    “Insurance
      Claim”
means
      that certain claim to insurance proceeds as a result of the destruction of
      a
      building located on the land of one of the Company’s stores, to which the
      Company succeeded as a result of the Company’s acquisition of such store during
      its fiscal year 2003.

     

    “Intellectual
      Property Assets”
means
      all: (A) patents, patent applications and patent disclosures;
      (B) trademarks, service marks, trade dress, trade names, logos and slogans
      (and all translations, adaptations, derivations and combinations of the
      foregoing) and Internet domain names, together with all goodwill associated
      with
      each of the foregoing; (C) copyrightable works and copyrights;
      (D) registrations and applications related to any of the foregoing;
      (E) trade secrets, know-how, confidential information and inventions;
      (F) computer software (including but not limited to source code, executable
      code, data, databases and documentation); (G) rights of publicity and
      privacy relating to the use of the names, likenesses, voices, signatures and
      biographical information of real persons; and (H) other intellectual
      property.

     

    “Interim
      Financial Statements”
has
      the
      meaning set forth in Section 3.4.

     

    “Inventory”
means
      all inventory owned, used or held for sale by the Company, including, without
      limitation, fuel, fuel-derivative products and convenience store merchandise,
      and all raw materials, work in process, finished products, shipments in transit,
      and related items owned, used or held for use by the Company. 

     

    “IRC”
means
      the Internal Revenue Code of 1986, as amended, or any successor law, and
      regulations issued by the IRS pursuant to the Internal Revenue Code or any
      successor law.

     

    “IRS”
means
      the United States Internal Revenue Service or any successor agency, and, to
      the
      extent relevant, the United States Department of the Treasury.

     

    “Knowledge”
with
      respect to the Company, means knowledge of any member of Management, in each
      case, assuming a reasonable inquiry.
      

     

    “Leased
      Real Property”
      has
      the
      meaning set forth in Section 3.6(a).

     

    “Leases”
      has
      the
      meaning set forth in Section 3.6(a).

     

    “Legal
      Requirement”
means
      any federal, state, local, municipal, foreign, international, multinational,
      or
      other administrative order, constitution, law, ordinance, principle of common
      law, court order, consent, decree, regulation, license, permit, statute, or
      treaty. 

     

    “Letter
      of Intent”
means
      that certain letter agreement, dated June 7, 2006, by and among Parent, the
      Company and each of the Sellers, which set forth the general terms pursuant
      to
      which the Buyer, the Company and the Sellers would attempt to consummate the
      transactions contemplated under this Agreement. 

     

    “Management”
means
      each of Benedict,
      James R. MacLean, Ronald L. Prewitt and Ernestine Clark,
      in
      their respective roles in the management of the Company. 

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

       

    

    “Marketing
      Agreements”
means
      the marketing agreements by and between the Company (or any of its Subsidiaries)
      and Exxon, BP, Marathon, Citgo and Sunoco, respectively, as may be supplemented
      by the Buyer prior to the Closing, subject to the approval of the Sellers,
      which
      approval shall not be unreasonably withheld. 

     

    “Material
      Adverse Effect (or Change)”
      means,
      with
      respect to a particular Person, any event, fact, circumstances or condition
      that, individually or in the aggregate with any other such events, facts,
      circumstances or conditions, has had or would be reasonably expected to have
      (a) a
      material adverse effect on the business,
      results
      of operations, assets or financial condition of such
      Person and its subsidiaries (if any),
      taken
      as a whole,
      or
      (b) a material impairment of such Person’s ability to consummate the
      transactions contemplated hereby;
      provided, however, that the term “Material Adverse Effect or (Change)” shall not
      include any event, fact, circumstances or condition to the extent resulting
      from
      an action affirmatively taken by Buyer or its Affiliates after the date hereof
      and prior to the Closing Date; general economic changes or changes in the
      general industry of the Company; acts of terrorism or war; or political or
      civil
      instability, disturbance or unrest.

     

    “Material
      Contracts”
has
      the
      meaning set forth in Section 3.15(a).

     

    “Multi-Employer
      Plan”
has
      the
      meaning set forth in Section 3.11(a).

     

    “Naelcam
      Indebtedness”
means
      the Company’s accounts receivable owed by Naelcam, LLC, which shall be
      cancelled effective as of the Closing. 

     

    “Noncompete
      and Non-Solicitation Period”
      has
      the
      meaning set forth in
      Section
      7.5(a).

     

    “Organizational
      Documents”
means:
      (a) the articles or certificate of incorporation and the bylaws of a
      corporation; (b) the partnership agreement and any statement of partnership
      of a general partnership; (c) the limited partnership agreement and the
      certificate of limited partnership of a limited partnership; (d) the
      certificate of organization or formation and limited liability company agreement
      of a limited liability company, including, without limitation, an operating
      agreement; (e) any charter or similar document adopted or filed in
      connection with the creation, formation, or organization of a Person; and
      (f) any amendment to any of the foregoing.

     

    “Owned
      Real Property”
      has
      the
      meaning set forth in Section 3.6(a).

     

    “Parent”
has
      the
      meaning set forth in the first paragraph of this Agreement. 

     

    “Pension
      Plan”
has
      the
      meaning set forth in Section 3.11(a).

     

    “Permitted
      Encumbrances”
has
      the
      meaning set forth in Section 3.6(b).

     

    “Person”
means
      any individual, corporation (including any non-profit corporation), general
      or
      limited partnership, limited liability company, joint venture, estate, trust,
      association, organization, labor union, or other entity or Governmental
      Body.

     

    “Phase
      I”
      has
      the
      meaning set forth in Section 6.10.

     

    “Phase
      I assessment”
      has
      the
      meaning set forth in Section 6.10.

     

    “Phase
      II”
      has
      the
      meaning set forth in Section 6.10.

     

    “Phase
      II assessment”
      has
      the
      meaning set forth in Section 6.10.

     

    “Plan”
has
      the
      meaning set forth in Section 3.11(a).

     

    “Potential
      280G Benefits”
has
      the
      meaning set forth in Section 6.9.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

       

    

    “Proceeding”
means
      any action, arbitration, audit, claim, grievance, hearing, investigation,
      litigation, or suit (whether civil, criminal, administrative, investigative,
      or
      informal) commenced, brought, conducted, or heard by or before, or otherwise
      involving, any Governmental Body or arbitrator.

     

    “Purchase
      Price”
has
      the
      meaning set forth in Section 2.2(a).

     

    “Purchase
      Rights”
has
      the
      meaning set forth in Section 3.3(b).

     

    “Qualified
      Plan”
has
      the
      meaning set forth in Section 3.11(a).

     

    “Release”
has
      the
      meaning set forth in Section 3.17.

     

    “Released”
has
      the
      meaning set forth in Section 3.17. 

     

    “Representative”
means
      with respect to a particular Person, any director, officer, employee, agent,
      consultant, advisor, or other representative of such Person, including legal
      counsel, accountants, and financial advisors.

     

    “Sellers”
has
      the
      meaning set forth in the first paragraph of this Agreement. 

     

    “Sellers’
      Accountants”
means
      Blackburn, Childers & Steagall, PLC.

     

    “Sellers’
      Representatives”
has
      the
      meaning set forth in Section 14.16.

     

    “Senior
      Lender”
means
      each of First Tennessee Bank, Lee Bank and Trust, Amsouth Bank, Powell Valley
      Bank and Elizabeth N. Graham.

     

    “Senior
      Lender Credit Agreements”
shall
      mean each of the credit agreements or loan agreements by and between (or among)
      the Company and the Senior Lenders under which the Senior Lender Obligations
      have arisen.

     

    “Senior
      Lender Obligations”
shall
      mean all indebtedness and obligations owed by the Company to the Senior Lenders
      arising
      under or in connection with
      the
      Senior Lender Credit Agreements, as secured by the security agreements entered
      into by the Company in connection therewith; provided that the Senior Lender
      Obligations shall not include any letters of credit or any banker’s acceptances
      issued in favor of vendors of the Company’s Inventory to procure such Inventory.


     

    “Shares”
has
      the
      meaning set forth in the Recital of this Agreement.

     

    “Subsidiary”
means
      each Person listed on Schedule 3.1(b). 

     

    “Tax”
and
      “Taxes”
means
      (a) all
      income,
      gross receipts, franchise, estimated, excise, transfer, severance, value added,
      ad valorem, fuel, sales, use, wage, payroll, workmen’s compensation, employment,
      withholding, social security, alternative minimum, add-on minimum, occupation,
      and real and personal property taxes; taxes measured by or imposed on capital;
      levies, imposts, duties, (license and legislation fees); other taxes imposed
      by
      any Governmental Body, including assessments in the nature of taxes; interest,
      penalties, fines, assessments and deficiencies relating to any tax or
      taxes;
      (b) liability for the payment of any amounts of the type described in
      clause (a) arising as a result of being (or ceasing to be) a member of any
      Affiliated Group (or being included (or required to be included) in any Tax
      Return relating thereto); and (c) liability for the payment of any amounts
      of the type described in clause (a) as a result of any express or implied
      obligation to indemnify or otherwise assume or succeed to the liability of
      any
      other person. 

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

       

    

    “Tax
      Claim”
means
      any claim based upon, arising out of or otherwise in respect of, any inaccuracy
      in or any breach of any representation or warranty of any Seller or the Company
      contained in this Agreement related to Taxes, including, without limitation,
      Section 3.10, and any claim for Damages pursuant to
      Section 13.1. 

     

    “Tax
      Liability”
means
      any liability (whether known or unknown, whether asserted or unasserted, whether
      absolute or contingent, whether accrued or unaccrued, whether liquidated or
      unliquidated, and whether due or to become due) for Taxes.

     

    “Tax
      Return”
means
      any return (including any information or amended return), report, statement,
      schedule, notice, form, or other document or information filed with or submitted
      to, or required to be filed with or submitted to, any Governmental Body
      (including any schedule attached thereto) in connection with the determination,
      assessment, collection, or payment of any Tax or in connection with the
      administration, implementation, or enforcement of or compliance with any Legal
      Requirement relating to any Tax.

     

    “Taxing
      Authority”
means
      any Governmental Body (whether federal, state, local, municipal, foreign or
      otherwise) responsible for the imposition, collection or administration of
      any
      Tax.

     

    “Third
      Party”
has
      the
      meaning set forth in Section 6.5(b).

     

    “Title
      IV Plan”
has
      the
      meaning set forth in Section 3.11(a).

     

    “Transfer
      Taxes”
has
      the
      meaning set forth in Section 13.6. 

     

    “Year
      End Financial Statements”
has
      the
      meaning set forth in Section 3.4.

     

    ARTICLE
      II

     

    SALE
      AND TRANSFER OF SHARES; CLOSING

     

    2.1 Shares.
      Subject
      to the terms and conditions of this Agreement, at the Closing, Sellers will
      sell
      and transfer the Shares to Acquisition Subsidiary, and Parent will purchase
      the
      Shares (on Acquisition Subsidiary’s behalf) from Sellers. 

     

    2.2 Purchase
      Price. 

     

    (a) The
      purchase price for the Shares is $30,000,000
      (such
      amount, the “Base
      Purchase Price”),
      subject to all amounts and adjustments contemplated by this Agreement (as so
      adjusted, the “Purchase
      Price”).
      

     

    (b) The
      Purchase Price shall be paid in immediately available funds at the Closing
      as
      follows:

     

    (i) first,
      to
      the Escrow Agent in the Escrow Amount, as provided by Section 2.5 hereof;
      and

     

    (ii) then,
      to
      each Seller as set forth on Schedule 3.3(a) hereto.

     

    2.3 Closing.
      The
      purchase and sale (the “Closing”)
      provided for in this Agreement will take place in Charlotte, North Carolina
      at
      the offices of the Buyer, at 6000 Fairview Rd., 12th Floor, at 10:00 a.m.
      (local time) on the later of (the “Closing
      Date”):
      (a) December 29,
      2006 or
      (b) the date that is five Business Days following the satisfaction of the
      closing conditions set forth in Articles VIII and IX (other than those
      conditions which by their nature are to be satisfied at the Closing, but subject
      to the satisfaction or waiver thereof), or at such other date, time and place
      as
      the parties may agree. Subject to the provisions of Article X, failure to
      consummate the purchase and sale provided for in this Agreement on the date
      and
      time and at the place determined pursuant to this Section 2.3 will not
      result in the termination of this Agreement and will not relieve any party
      of
      any obligation under this Agreement.

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

       

    

    2.4 Closing
      Deliveries. At
      the
      Closing:

     

    (a)
       Sellers
      or the
      Company, as appropriate, will deliver or arrange to be delivered to
      Buyer:

     

    (i)
       certificates
      representing the Shares, duly endorsed (or accompanied by duly executed stock
      powers) for transfer to Acquisition Subsidiary; 

     

    (ii)
       a
      certificate executed by each of the Sellers certifying as to the satisfaction
      of
      the Closing conditions set forth in Sections 8.1 and 8.2 hereof with
      respect to such Seller; 

     

    (iii)  a
      certificate executed by the Company certifying as to the satisfaction of the
      Closing conditions set forth in Sections 8.1 and 8.2 hereof with
      respect to the Company; 

     

    (iv)  the
      Escrow Agreement,
      duly
      executed by the Sellers and by the Escrow Agent, and duly executed copies of
      all
      other agreements, certifications, and other documents required to be executed
      and delivered by the Company and Sellers hereunder at the Closing;
      and

     

    (v)  written
      resignations of each of the directors and officers of the Company.

     

    (b) Buyer
      will deliver to:

     

    (i) the
      Sellers, the portion of the Purchase Price payable to such Persons in accordance
      with Section 2.2(b)(iii) hereof; 

     

    (ii) the
      Escrow Agent, the Escrow Amount, in accordance with Sections 2.2(b)(ii)
      and 2.5;

     

    (iii) the
      Sellers, a certificate executed by Buyer certifying as to the satisfaction
      of
      the Closing conditions set forth in Sections 9.1 and 9.2 hereof;
      and

     

    (iv) the
      Sellers, the Escrow Agreement, duly executed by the Buyer, and duly executed
      copies of all
      other
      agreements, certifications, and other documents required to be executed and
      delivered by Buyer hereunder at the Closing.

     

    2.5 Escrow.
      At
      the
      Closing, Buyer shall withhold an amount equal to $1,000,000 (the “Escrow
      Amount”),
      on
      a pro
      rata basis among all Sellers in proportion to the aggregate amount of the
      Purchase Price each Seller would otherwise be entitled to receive, and shall
      instead deliver the Escrow Amount to an escrow agent jointly selected by, and
      reasonably acceptable to each of, the Buyer and the Sellers’ Representatives
      (the “Escrow
      Agent”)
      for
      deposit into escrow (the “Escrow
      Account”).
      The
      Escrow Amount shall be held pursuant to the provisions of an escrow agreement
      in
      form and substance reasonably satisfactory to the Buyer and the Sellers (the
      “Escrow
      Agreement”)
      and
      will be available to compensate Buyer for Damages and Tax Claims as provided
      in
      Article XII and Section 13.1 hereof. To the extent that there is any
      portion, or all, of the Escrow Amount remaining in the Escrow Account which
      has
      not been reserved for claims under the Escrow Agreement on the date that is
      eighteen (18) months after the Closing Date, such portion, or all, of the
      Escrow Amount will be released.

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

       

    

    ARTICLE
      III

     

    REPRESENTATIONS
      AND WARRANTIES REGARDING THE COMPANY

     

    The
      Company represents and warrants to Buyer as follows:

     

    3.1 Organization
      and Good Standing. 

     

    (a) The
      Company is a corporation duly organized, validly existing, and in good standing
      under the laws of the State of Tennessee, with full corporate power and
      authority to conduct its business as it is now being conducted and to own or
      use
      the properties and assets that it purports to own or use. Schedule 3.1(a)
sets
      forth the current directors and executive officers of Company. The
      Company is duly
      qualified and authorized to transact business as a foreign corporation and
      is in
      good standing in every jurisdiction where required except as disclosed on
      Schedule 3.1(a) hereto, such exceptions not giving rise, either
      individually or in the aggregate, to a Material Adverse Effect.

     

    (b)  Schedule 3.1(b)
      sets
      forth, as of the date hereof, Company’s direct or indirect ownership interest in
      any subsidiary companies or any other Person, its percentage ownership interest
      therein (and the ownership interest of any other Person therein) and the
      jurisdiction in which each Subsidiary was organized. Each of the Subsidiaries
      is
      a corporation or other entity duly organized, validly existing and in good
      standing under the laws of the jurisdiction of its incorporation or formation.
      The Subsidiaries have all necessary corporate power and authority to own or
      lease their respective properties and assets, as applicable, and to carry on
      their respective businesses as now conducted and are duly qualified or licensed
      to do business as foreign corporations or other entities in good standing in
      all
      jurisdictions in which the ownership of their property or the conduct of their
      business requires such qualification. Schedule 3.1(b) sets forth the
      current directors and executive officers of each Subsidiary.

     

    (c)  The
      Company has made available to Buyer prior to the execution of this Agreement,
      true and complete copies of the Organizational Documents of the Company and
      each
      Subsidiary, as currently in effect.

     

    3.2 Authority;
      No Conflict. 

     

    (a) This
      Agreement constitutes the legal, valid, and binding obligation of the Company,
      enforceable against the Company in accordance with its terms. The Company has
      all corporate right, power and authority to execute and deliver this Agreement
      and to perform its obligations under this Agreement.

     

    (b) Except
      as
      set forth on Schedule 3.2(b), the execution, delivery and performance of
      this Agreement will not, directly or indirectly (with or without notice or
      lapse
      of time):

     

    (i) contravene,
      conflict with, or result in a violation of (A) any provision of the
      Organizational Documents of the Company, or (B) any resolution of the
      Company adopted by its board of directors or stockholders;

     

    (ii) contravene,
      conflict with, or result in a violation of any of the terms or requirements
      of,
      or give any Governmental Body the right to revoke, withdraw, suspend, cancel,
      terminate, or modify, any Governmental Authorization that is held by the
      Company; or

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

      
         

        (iii) contravene,
          conflict with, or result in a violation or breach of any provision of,
          or give
          any Person the right to declare a default or exercise any remedy under,
          or to
          accelerate the maturity or performance of, or to cancel, terminate, or
          modify,
          any Material Contract.

         

      

    

    (c) Except
      as
      set forth on Schedule 3.2(c), the Company is not, and will not be, required
      to give any notice to or obtain any Consent from any Person in connection with
      the execution, delivery or performance of this Agreement.

     

    3.3 Capitalization.
      

     

    (a)  The
      total
      authorized capital stock of the Company consists of 500,000 shares of common
      stock, zero par value per share, of which 60,188 shares are issued and
      outstanding. The Shares have been duly authorized and are validly issued and
      are
      fully paid and nonassessable and, except as set forth on Schedule 3.3(a)
      hereto, are not subject to preemptive rights or any rights of first refusal
      or
      rights of rescission. Except as referenced on Schedule 3.3(a), there are no
      Contracts for the issuance, sale or transfer of any equity securities or other
      securities or interests of the Company. The Shares are held of record by the
      Persons with the addresses of record and in the amounts
      and pro
      rata percentages
      set
      forth on Schedule 3.3(a).

     

    (b)  Schedule 3.3(b)
      contains a list of equity incentive plans that are currently in effect. Except
      for the transactions contemplated by this Agreement and except as otherwise
      set
      forth on Schedule 3.3(b), there are no options, warrants, calls, rights,
      exchangeable or convertible securities, commitments or agreements of any
      character, written or oral, to which the Company is a party or by which it
      is
      bound (collectively, “Purchase
      Rights”)
      obligating the Company to (i) issue, deliver, sell, repurchase or redeem,
      or cause to be issued, delivered, sold, repurchased or redeemed, any equity
      or
      other security or interest in the Company or (ii) grant, extend, accelerate
      the vesting of, change the price of, otherwise amend or enter into any such
      option, warrant, call, right, exchangeable or convertible securities, commitment
      or agreement. All Shares and all issued and outstanding Purchase Rights have
      been offered, sold and delivered by the Company in material compliance with
      applicable federal and state securities laws. 

     

    3.4 Financial
      Statements.
      Attached
      hereto as Schedule 3.4(a) are: (a) the unaudited balance sheet of the
      Company as at September 30 in each of the years 2003 through 2005, and the
      related unaudited statements of income, changes in stockholders’ equity, and
      cash flow for each of the fiscal years then ended, together with the notes
      thereto, reviewed by Sellers’
      Accountants (the
      September 30, 2005 balance sheet, the related unaudited statements of
      income, changes in stockholders’ equity, and cash flow for the fiscal year then
      ended, together with the notes thereto are referred to herein collectively
      as
      the “Year
      End Financial Statements”);
      and
      (b) the unaudited balance sheet of the Company as at May 31, 2006 and
      the related unaudited statement of income, change in stockholders’ equity, and
      cash flow for the eight months then ended (collectively, the “Interim
      Financial Statements”),
      reviewed by Sellers’
      Accountants based upon an
      agreed-upon procedure engagement, the tests, procedures, and scope of which
      shall have been agreed with Buyer in writing prior to commencement
      thereof.
      (The
      unaudited balance sheet of the Company as at September 30, 2006 and related
      unaudited statements of income, changes in stockholders’ equity, and cash flow,
      together with the notes thereto, reviewed by Sellers’ Accountants, will be
      provided by the Company as soon as they are available, but, in any case, no
      later than December 22, 2006.)
      Such
      Year-End Financial Statements and Interim Financial Statements fairly present
      in
      all material respects the financial condition and the results of operations,
      changes in stockholders’ equity, and cash flow of the Company, as applicable, as
      at the dates of and for the periods referred to in such financial statements,
      all of which have been prepared in accordance with GAAP (except as set forth
      on
      Schedule 3.4(b)), subject, in the case of the Interim Financial Statements,
      to normal recurring year-end adjustments and the absence of notes. The Year-End
      Financial Statements referred to in this Section 3.4 reflect the consistent
      application of GAAP throughout the period involved, except as disclosed in
      the
      notes to such financial statements or on Schedule 3.4(b). 

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

       

    

    3.5 Books
      and Records.
      The
      books of account, minute books, stock record books, and other records of the
      Company, all of which have been made available to Buyer prior to the execution
      of this Agreement, are complete and correct in all material
      respects.

     

    3.6 Title
      to Assets; Encumbrances.
      (a)
      Schedule 3.6(a) contains a complete and accurate list of all (x) land,
      buildings and real property owned by the Company (the “Owned
      Real Property”)
      and
      (y) all leases and other agreements (including all guaranties, assignments,
      amendments, extensions and renewals of such leases and other agreements) (the
      “Leases”)
      under
      which the Company holds any leasehold estates and other similar rights to use
      or
      occupy any land, buildings or other similar interest in real property (the
      “Leased
      Real Property”).
      The
      Company has delivered or made available to Parent copies of the deeds and other
      instruments (as recorded) by which the Company acquired its interest in the
      Owned Real Property, and copies of all title insurance policies, opinions,
      abstracts, and surveys in the possession of the Company and relating to such
      property or interest. Except as set forth on Schedule 3.6(a), the
      Company has not leased, subleased or granted the right to use or occupy any
      portion of the Owned Real Property or Leased Real Property to any Person.
Except
      as
      set forth on Schedule 3.6(a), the
      Company owns or holds a valid and enforceable (i) title, in the case of
      Owned Real Property, and (ii) leasehold interest under the Leases, in the
      case of Leased Real Property, in each case free and clear of all Encumbrances
      other than (A) liens for real estate Taxes assessed with respect to the
      Owned Real Property or Leased Real Property for the current fiscal tax year
      but
      not yet due and payable; (B) with respect to Leased Real Property, monetary
      Encumbrances granted by a landlord under any financing to such landlord with
      regards to which the Company has been granted non-disturbance rights as tenant;
      and (iii) other defects in title or Encumbrances that do not materially
      restrict or impair the Company’s use of the Owned Real Property or Leased Real
      Property in the ordinary course of business. 

     

    (b) Except
      as
      set forth on Schedule 3.6(b), the
      Company has good and marketable title to, or, in the case of leased properties
      and assets, a valid leasehold interest in, all its material properties and
      assets (whether real, personal, or mixed and whether tangible or intangible)
      used by the Company, located on any of the premises of the Company or reflected
      in the books and records of the Company, including all of the properties and
      assets reflected in the balance sheet portion of the Year End Financial
      Statements and the balance sheet portion of the Interim Financial Statements
      (except for Inventory sold since the date of the Year End Financial Statements
      and the Interim Financial Statements, as the case may be, to customers in the
      ordinary course of business). To the Knowledge of the Company, the buildings,
      plants, structures, and other material assets owned, leased or licensed by
      the
      Company are in reasonably good operating condition and repair, in all material
      respects, ordinary wear and tear excepted, and are reasonably fit for the
      purposes for which they are used by the Company, except for such conditions
      as
      would not have a materially adverse impact upon the use thereof. Except as
      set
      forth on Schedule 3.6(b), all material properties and assets reflected in
      the balance sheet portions of the Year End Financial Statements and the Interim
      Financial Statements are free and clear of all Encumbrances except:


     

    (i) the
      Senior Lender Obligations;

     

    
      
        
        

      

      
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    (ii) mortgages
      or security interests incurred in connection with the purchase of property
      or
      assets and shown on the balance sheet portions of the Year End Financial
      Statements or the Interim Financial Statements as securing only such property
      or
      assets so purchased, with respect to which no default (or event that, with
      notice or lapse of time or both, would constitute a default)
      exists;

     

    (iii) mortgages
      or security interests incurred in connection with the purchase of property
      or
      assets after the date of the Interim Financial Statements (such mortgages and
      security interests being limited to the property or assets so acquired), with
      respect to which no default (or event that, with notice or lapse of time or
      both, would constitute a default) exists; 

     

    (iv) liens
      for
      current Taxes not yet due; 

     

    (v) the
      matters set forth on Schedule 3.6(b); and

     

    (vi) other
      defects of title or Encumbrances with respect to the Owned Real Property or
      Leased Real Property which do not, individually or in the aggregate, materially
      restrict or impair the Company’s use of its Owned Real Property or Leased Real
      Property.

     

    The
      Encumbrances set forth in clauses (ii)-(vi) above are collectively referred
      to as the “Permitted
      Encumbrances.”

     

    (c) Schedule
      3.6(c) contains a complete and accurate list of all Equipment items owned,
      leased or licensed by the Company, grouped by category of Equipment and the
      nature of the Company’s interest (owned, leased or licensed) with respect
      thereto. To the Knowledge of the Company, each
      Equipment item is in reasonably good operating condition and repair, in all
      material respects, ordinary wear, tear, breakage and malfunctions excepted,
      and
      is reasonably fit for the purpose for which it is used by the Company in its
      ordinary course of business, except for such conditions as would not have a
      materially adverse impact upon the use thereof.

     

    3.7 Intellectual
      Property Matters.
      Schedule
      3.7(a) attached hereto sets forth a complete and correct list of all of the
      following that are owned by the Company: patents; patent applications; trademark
      applications; trademark registrations; Internet domain names; service mark
      applications; service mark registrations; copyright registrations and material
      unregistered trademarks, service marks and copyrights. Schedule 3.7(b) sets
      forth all agreements relating to the licensing of Intellectual Property Assets
      by the Company to a third party or by a third party to the Company, and all
      other agreements affecting the Company’s ability to use or disclose any
      Intellectual Property Assets, except for licenses for commercially available
      off-the-shelf computer software programs, applications or products purchased
      or
      licensed for less than a total cost of $25,000. 

     

    Except
      as
      set forth on Schedule 3.7(c) and except to the extent that the inaccuracy
      of any of the following, individually or in the aggregate, would not have a
      Material Adverse Effect on the Company:

     

    (a)  the
      Company Intellectual Property Assets owned by the Company are not
      subject to any pending, or, to the Knowledge of the Company, threatened claim,
      judgment or dispute of any nature; 

     

    (b)  the
      Company has not: (i) consented to or otherwise acquiesced in the use by
      another Person of the Company’s name or a name that is substantially similar to
      the Company’s name; or (ii) received any notice or claims from any third
      party alleging that the operation of the Company’s business infringes or
      misappropriates the Intellectual Property Assets of such third party;


     

    
      
        
        

      

      
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    (c)  to
      the
      Company’s Knowledge, no third party has infringed, misappropriated or otherwise
      conflicted with, any of the Company Intellectual Property Assets and the Company
      does not have Knowledge of any facts that indicate a likelihood of any of the
      foregoing; 

     

    (d)  the
      Company Intellectual Property Assets are subsisting and in full force and effect
      and, to the Knowledge of the Company, are valid and enforceable;
      and

     

    (e)  the
      Company owns and possesses the entire right, title and interest in and to all
      material Intellectual Property Assets created or developed by, for or under
      the
      direction or supervision of the Company, including any of the foregoing created
      or developed by any employee, consultant or contractor, and all Persons who
      have
      participated in the creation or development of any such material Intellectual
      Property Assets, including, without limitation, the Intellectual Property Assets
      set forth on Schedule 3.7(a), have executed and delivered to the Company a
      valid and enforceable agreement (i) providing for the non-disclosure by
      such Person of any confidential information of the Company and
      (ii) providing for the assignment by such Person to the Company of any
      material Intellectual Property Assets arising out of such Person’s employment
      by, engagement by or contract with the Company.

     

    3.8 Absence
      of Material Adverse Change.
      To the
      Knowledge of the Company, and except as set forth on Schedule 3.8, since
      the date of the Interim Financial Statements and, to the extent not fully
      reflected in the Interim Financial Statements, since the date of the Year End
      Financial Statements, there has not been any Material Adverse Change with
      respect to the Company.

     

    3.9 No
      Undisclosed Liabilities.
      To the
      Knowledge of the Company, and except as set forth on Schedule 3.9, the
      Company has no material liabilities or obligations of any nature (whether
      absolute, accrued, contingent, known or otherwise), except for the Senior Lender
      Obligations, liabilities or obligations reflected in or reserved against in
      the
      balance sheet portion of the Interim Financial Statements, current liabilities
      incurred in the ordinary course of business since the date of the Interim
      Financial Statements (none of which is a liability resulting from non-compliance
      with any applicable law, the breach of any Contract, the commission of any
      tort
      or act of infringement, or any other Proceeding) and liabilities that do not
      or
      would not reasonably be expected to have a Material Adverse Effect.

     

    3.10 Taxes. 

     

    (a) The
      Company
      has filed or caused to be filed all Tax Returns required to have been filed
      by
      it pursuant to applicable Legal Requirements. All such Tax Returns are true,
      correct and complete in all material respects. Except as set forth in the
      Disclosure Schedules, the Company has paid all Taxes shown on all Tax Returns
      it
      has filed, except such Taxes, if any, as are listed on Schedule 3.10(a) and
      are being contested in good faith and as to which adequate reserves (determined
      in accordance with GAAP) have been provided on the face of the balance sheet
      portion of the Year End Financial Statements and the balance sheet portion
      of
      the Interim Financial Statements. The Company is not currently the beneficiary
      of any extension of time within which to file any Tax Return. 

     

    (b) Except
      as
      set forth on Schedule 3.10(b) there is no dispute or claim concerning any
      Tax Liability of the Company either (A) claimed or raised by any Taxing
      Authority in writing that has been received by the Company or (B) as to
      which any of the Sellers or the Company has Knowledge based upon personal
      contact with any agent of such Taxing Authority. Schedule 3.10 lists all
      federal, state, local, and foreign income Tax Returns filed with respect to
      the
      Company for taxable periods commencing January 1, 2001 and ended on or
      before December 31, 2005, indicates those Tax Returns that have been
      audited, and indicates those Tax Returns that currently are the subject of
      audit. Except as set forth on Schedule 3.10(b), (x) no claim has been
      made by an authority in a jurisdiction where the Company does not file Tax
      Returns that it is or may be subject to taxation by that jurisdiction and
      (y) there are no Liens for Taxes (other than Taxes not yet due and payable)
      upon any of the assets of the Company. The Sellers and the Company have
      delivered or made available to the Buyer correct and complete copies of all
      such
      federal income Tax Returns, examination reports with respect to such income
      Tax
      Returns, and statements of income Taxes assessed against or agreed to by the
      Company since January 1, 2001 which were not shown on the face of such
      income Tax Return. Except as described on Schedule 3.10(b), the Company has
      withheld and paid all Taxes required to have been withheld and paid in
      connection with any amounts paid or owing to any employee, independent
      contractor, creditor, stockholder or other third party, as shown on all Forms
      W-2 and 1099 filed by the Company, and all such Forms W-2 and 1099
      have been properly filed.

     

    
      
        
        

      

      
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    (c) Except
      as
      described on Schedule 3.10(c), the Company has not executed any
      agreement waiving
      any statute of limitations in respect of assessment or collection of Taxes
      or
      agreed to any extension of time with respect to a Tax assessment or deficiency
      that has continuing effect, or granted any power of attorney in respect to
      the
      Company with respect to any matter related to Taxes which is currently in force.
      Except as described on Schedule 3.10(c), there are no agreements currently
      in effect between the Company and any Taxing Authority with respect to the
      payment in installments of any Tax Liability after the Closing
      Date.

     

    (d) Subject
      to the provisions of Section 6.9 hereof, the Company has not made any
      payments and is not obligated to make any payments in connection with the
      transactions contemplated by this Agreement that would be excess parachute
      payments within the meaning of IRC § 280G. The Company has not been a
      United States real property holding corporation within the meaning of
      IRC §897(c)(2) during the applicable period specified in
      IRC §897(c)(1)(A)(ii). The Company (A) has never been a member of an
      Affiliated Group filing a consolidated federal income Tax Return (other than
      a
      group the common parent of which was the Company) and (B) does not have any
      Tax Liability for the Taxes of any Person (other than the Company) under
      Treasury Regulation §1.1502-6, as a transferee or successor, by contract,
      or otherwise. 

     

    (e) The
      unpaid Taxes of the Company did not, as of July 31, 2006, 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 balance sheet portion of the Interim Financial Statements (rather than
      in
      any notes thereto). The reserve for unpaid federal income taxes maintained
      by
      the Company is in accordance with the past custom and practice of the
      Company.

     

    (f) The
      Company will not be required to include any item of income in, nor will the
      Company exclude any item of deduction from, taxable income for any taxable
      period (or portion thereof) beginning after the Closing Date as a result of
      any
      change in method of accounting for a taxable period ending on or prior to the
      Closing Date under IRC §481(c) (or any corresponding or similar provision
      of state, local or foreign income Tax law). The Company is not a party to any
      “closing agreement” as described in IRC §7121 (or any corresponding or
      similar provision of state, local or foreign income Tax law) executed on or
      prior to the Closing Date that would have continuing effect after the Closing
      Date. Except as set forth on Schedule 3.10(f), the Company is not a party to
      or
      bound by any Tax allocation, sharing, or similar agreement, and the Company
      has
      no (A) gain from any intercompany transaction which has been deferred pursuant
      to Treasury Regulations Section 1.1502-13 or any excess loss account described
      in Treasury Regulations Section 1.1502-13 (or any corresponding or similar
      provision of state, local or foreign income Tax law) arising in any taxable
      period or portion thereof ending before the Closing Date; (B) installment sale
      or open transaction disposition made on or prior to the Closing Date, income
      from which would be required to be reported by the Company after the Closing
      Date; or (C) prepaid income amount received on or prior to the Closing Date
      not
      required to have been reported in computing taxable income for periods ending
      on
      or before the Closing Date.

     

    
      
        
        

      

      
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    (g) The
      Company has never made an election under Section 1362(a) of the IRC to be
      treated as an S corporation within the meaning of Section 1361 of the
      IRC, nor has it been treated in a similar manner for purposes of the income
      tax
      laws of any state in which it has been subject to taxation where analogous
      treatment is legally available. During the last seven years, the Company has
      not
      distributed stock of another Person, nor has had its stock distributed by
      another Person, in a transaction that was purported or intended to be governed
      by whole or in part by § 355 or § 361 of the IRC. 

     

    3.11 Employee
      Benefits. 

     

    (a) As
      used
      in this Section 3.11, the following terms have the meanings set forth
      below.

     

    “Benefit
      Obligations”
means
      all obligations, arrangements, or customary practices to provide benefits as
      compensation for services rendered, to present or former directors, employees,
      or agents, other than obligations, arrangements, and practices that are Plans.
      

     

    “ERISA
      Affiliate”
means,
      with respect to the Company, any other person that, together with the Company,
      would be treated as a single employer under IRC § 414.

     

    “Multi-Employer
      Plan”
has
      the
      meaning given in ERISA § 3(37)(A).

     

    “Pension
      Plan”
has
      the
      meaning given in ERISA § 3(2)(A).

     

    “Plan”
has
      the
      meaning given in ERISA § 3(3).

     

    “Qualified
      Plan”
means
      any Pension Plan that meets or purports to meet the requirements of
      IRC § 401(a).

     

    “Title
      IV Plans”
means
      all Pension Plans that are subject to Title IV of ERISA,
      29 U.S.C. § 1301 et
      seq.,
      other
      than Multi-Employer Plans.

     

    (b) Schedule 3.11
      contains a complete and accurate list of all Plans and material Benefit
      Obligations sponsored, maintained or contributed to by the Company on behalf
      of
      or for the benefit of its current or former employees, directors or independent
      contractors. The Company has delivered or made available to Buyer a true and
      correct copy of the governing plan document for each Plan (including all
      amendments thereto), its summary plan description and its most recent
      Form 5500 with all schedules and attachments (if applicable), and any trust
      agreement, insurance contract or other document under which Plan assets are
      held
      and invested or benefits provided. The Company has further delivered or made
      available to Buyer the material Benefit Obligations, and a copy of any document
      furnished to employees which summarizes or describes each material Benefit
      Obligation. Except as set forth on Schedule 3.11, each Plan and each
      Benefit Obligation complies in form and operation in all material respects
      with
      its terms and the applicable requirements of ERISA, the IRC and other applicable
      Legal Requirements. Except as set forth on Schedule 3.11, neither the
      Company nor any ERISA Affiliate has at any time during the six years preceding
      this Agreement and through the date hereof sponsored, maintained, contributed
      to
      or been obligated to contribute to any Qualified Plan, including without
      limitation any Title IV Plan or Multi-Employer Plan, and no facts or
      circumstances exist or are expected that could result in material liability
      or
      potential material liability to the Company or any ERISA Affiliate pursuant
      to
      Title IV or Section 302 of ERISA or IRC § 412. Neither the
      Company or, to the Knowledge of the Company, any fiduciary with respect to
      any
      Plan has engaged in any nonexempt prohibited transaction under
      ERISA § 406, or incurred any liability for breach of fiduciary duty or
      any other failure to comply with any Legal Requirement in connection with the
      administration or investment of assets of any Plan. Except as set forth on
      Schedule 3.11, no action, suit, Proceeding, hearing, audit or investigation
      with respect to the administration or investment of assets of any Plan or
      Benefit Obligation (other than routine claims for benefits) is pending or,
      to
      the Knowledge of the Company, threatened. Except as otherwise disclosed on
      Schedule 3.11, the Company does not provide health or other welfare
      benefits for any retired or former employee and is not obligated to provide
      health or welfare benefits to any active employee following such employee’s
      retirement or other termination of service (other than “COBRA” continuation
      coverage required under ERISA §§ 601 et
      seq.
      and
      IRC § 4980B). All contributions (including employer and employee
      contributions) or premium payments with respect to each Plan or Benefit
      Obligation for all periods ending on or prior to the Closing Date have been
      made
      or, to the extent not required to be made, have been made or properly accrued.
      Except as otherwise disclosed on Schedule 3.11, neither the execution of
      this Agreement, shareholder approval of this Agreement nor the consummation
      of
      the transactions contemplated hereby will accelerate the time of payment or
      vesting, result in any payment or funding of any benefits, or increase the
      amount payable or benefits provided under any Plan or Benefit Obligation. The
      Company has not granted to any Person an interest in a nonqualified deferred
      compensation plan or arrangement that is, or is reasonably likely to be, subject
      to the tax imposed by IRC § 409A(a)(1)(B) or (b)(4). All
      persons classified by the Company as independent contractors satisfy and have
      at
      all times satisfied the requirements of applicable law to be so classified;
      the
      Company has fully and accurately reported their compensation on IRS
      Forms 1099 when required to do so; and the Company has no obligations to
      provide benefits with respect to such persons under any Plan or Benefit
      Obligation. No individuals are currently providing, or have ever provided,
      services to the Company pursuant to a leasing agreement or similar type of
      arrangement, nor has the Company entered into any arrangement whereby services
      will be provided by such individuals.

     

    
      
        
        

      

      
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    3.12 Compliance
      with Legal Requirements; Governmental Authorizations. 

     

    (a) Except
      as
      set forth on Schedule 3.12 or Schedule 3.17 or except where any
      failure to comply or any violation would not have a Material Adverse Effect
      on
      the Company:

     

    (i) the
      Company is in material compliance with each Legal Requirement that is or was
      applicable to it or to the conduct or operation of its business or the ownership
      or use of any of its assets;

     

    (ii) no
      event
      has occurred or circumstance exists that (with or without notice or lapse of
      time) may constitute or result in a material violation by the Company of, or
      a
      material failure on the part of the Company to comply with, any Legal
      Requirement; and

     

    
      
        
        

      

      
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    (iii) to
      the
      Company’s Knowledge, it has not received any written notice or communication
      from any Governmental Body regarding: (A) any actual or alleged violation
      of, or failure to comply with, any Legal Requirement, or (B) any actual or
      alleged obligation on the part of the Company to undertake, or to bear all
      or
      any portion of the cost of, any remedial action of any nature.

     

    (b) To
      the
      Knowledge of the Company, Schedule 3.12 and Schedule 3.17, taken
      together, contain a list that is complete and accurate in all material respects
      of each Governmental Authorization that is held by the Company or that otherwise
      relates to the business of, or to any of the assets owned or used by, the
      Company. To the Knowledge of the Company, the Company holds all Governmental
      Authorizations necessary to conduct the Company’s business as presently
      conducted without any material violation of any Legal Requirement. To the
      Knowledge of the Company, each Governmental Authorization listed on
      Schedule 3.12 or Schedule 3.17 is valid and in full force and effect.
      To the Knowledge of the Company, and except as set forth on Schedule 3.12
      or Schedule 3.17, or except where any failure to comply, violation or other
      event or circumstances would not have a Material Adverse Effect on the
      Company:

     

    (i) the
      Company is in compliance with all of the terms and requirements of each
      Governmental Authorization identified or required to be identified on
      Schedule 3.12 or 3.17;

     

    (ii) no
      event
      has occurred or circumstance exists that may (with or without notice or lapse
      of
      time): (A) constitute or result directly or indirectly in a violation of or
      a
      failure to comply with any term or requirement of any Governmental Authorization
      listed on Schedule 3.12 or 3.17, or (B) result directly or indirectly in
      the revocation, withdrawal, suspension, cancellation, modification, or
      termination of, any material Governmental Authorization listed on
      Schedule 3.12 or 3.17;

     

    (iii) the
      Company has not received any written notice or communication from any
      Governmental Body regarding: (A) any actual, alleged or potential violation
      of or failure to comply with any term or requirement of any Governmental
      Authorization, or (B) any actual or threatened revocation, withdrawal,
      suspension, cancellation, modification or termination of any material
      Governmental Authorization; and

     

    (iv) all
      applications required to have been filed for the renewal of any material
      Governmental Authorizations listed or required to be listed on
      Schedule 3.12 or 3.17 have been duly filed on a timely basis with the
      appropriate Governmental Bodies, and all other filings required to have been
      made with respect to such Governmental Authorizations have been duly made on
      a
      timely basis with the appropriate Governmental Bodies.

     

    3.13 Legal
      Proceedings.
      Except
      as set forth on Schedule 3.13, there is no pending Proceeding:

     

    (a) that
      has
      been commenced by or against the Company or any of the material assets owned
      or
      used by the Company; or

     

    (b) that
      challenges, or that may have the effect of preventing, delaying, making illegal,
      or otherwise interfering with, any of the transactions contemplated by this
      Agreement.

     

    Except
      as
      set forth on Schedule 3.13, to
      the
      Knowledge of the Company, no such Proceeding has been threatened. Except
      as
      set forth on Schedule 3.13, there
      is
      no judgment, decree, injunction, rule or order of any Governmental Body or
      arbitrator outstanding against the Company.

     

    
      
        
        

      

      
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    3.14 Absence
      of Certain Changes and Events.
      Except
      as set forth on Schedule 3.14, since the date of the Interim Financial
      Statements, and, to the extent not fully reflected in the Interim Financial
      Statements, since the date of the Year End Financial Statements, the Company
      has
      conducted its business only in the ordinary course of business consistent with
      past practices, and there has not been any:

     

    (a) change
      in
      the Company’s authorized or issued capital stock or the ownership thereof; grant
      of any stock option or right to purchase shares of capital stock of the Company;
      issuance of any security convertible into such capital stock; grant of any
      registration rights; purchase, redemption, retirement, or other acquisition
      by
      the Company of any shares of any such capital stock;

     

    (b) amendment
      to the Organizational Documents of the Company;

     

    (c) acquisition
      of any stock or business of, or merger or consolidation with, another Person,
      or
      any action with respect to liquidating, dissolving, recapitalizing, reorganizing
      or otherwise winding up the Company’s business;

     

    (d) payment
      or increase by the Company of any bonuses, salaries, or other compensation
      to
      any stockholder, director, officer, or employee (except, with respect to
      non-executive employees, in the ordinary course of business consistent with
      past
      practice) or entry into any new, or material amendment of any existing,
      employment, consulting, independent contractor, severance, change of control
      or
      similar Contract;

     

    (e) adoption
      of any profit sharing, bonus, deferred compensation, savings, insurance,
      pension, retirement, or other employee benefit plan;

     

    (f) damage
      to
      or destruction or loss of any asset or property of the Company, whether or
      not
      covered by insurance, which has had, or would reasonably be expected to have,
      a
      Material Adverse Effect on the Company;

     

    (g) sale
      (other than sales of Inventory in the ordinary course of business), lease,
      license, distribution or other disposition of any material asset(s) or property
      of the Company, or any waiver, release, transfer or assignment of any right
      of
      material value, or any mortgage, pledge, or imposition of any lien or other
      Encumbrance on any material asset(s) or property of the Company except as noted
      on Schedule 3.6 or except as explicitly permitted under Section 6.2 or
      required under any other provision of this Agreement;

     

    (h) entry
      into any Contract or other agreement providing for payments by the Company
      in an
      aggregate amount exceeding $25,000 that is not terminable by the Company,
      without penalty, upon sixty (60) days notice, with the exception of
      agreements for the purchase of fuel entered into by the Company in the ordinary
      course of its business and consistent with past practice;

     

    (i) any
      capital expenditure in excess of $25,000;

     

    (j) change
      in
      any annual accounting period or accounting methods used by the
      Company;

     

    (k) any
      modification, termination or amendment to a Material Contract or waiver of
      any
      right or claim thereunder;

     

    (l) loss
      of
      use of any Company Intellectual Property Assets; 

     

    (m) change
      in
      methods, practices, principles or timing regarding the purchase of inventory
      or
      the payment or accrual of operating expenses, including accounts payable;
      or

     

    
      
        
        

      

      
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    (n) entry
      into any Contract, whether oral or written, by the Company to do any of the
      foregoing.


     

    3.15 Material
      Contracts; No Defaults.
      To the
      Knowledge of the Company, after having made inquiry of all Company employees
      authorized to enter into Material Contracts on behalf of the
      Company:

     

    (a) Schedule 3.15(a)
      contains a complete and accurate list, and the Company has delivered or made
      available to Buyer prior to the execution of this Agreement true and complete
      copies, of the following Contracts (together with the Leases listed on
      Schedule 3.6 and the Contracts listed on Schedule 3.7(b), the
“Material
      Contracts”):

     

    (i) each
      Contract that involves performance of services or delivery of goods or materials
      by the Company of an amount or value in excess of $250,000 either
      (A) during fiscal 2005 or (B) reasonably expected for fiscal 2006 or
      any fiscal year thereafter, except
      for purchase orders for fuel, fuel components or finished goods in the ordinary
      course of business, consistent with past practices;

     

    (ii) each
      Contract that involves performance of services or delivery of goods or materials
      to the Company of an amount or value in excess of $250,000 either
      (A) during fiscal 2005 or (B) reasonably expected for fiscal 2006 or
      any fiscal year thereafter, except
      for (y) Contracts for the purchase of fuel, fuel components or other
      finished goods in the ordinary course of business, consistent with past
      practices and (z) Contracts that are terminable by the Company without
      penalty or notice;

     

    (iii) each
      Contract entered into by the Company outside the ordinary course of business
      involving, or reasonably expected to involve, expenditures or receipts of the
      Company in excess of $25,000;

     

    (iv) each
      Lease, rental or occupancy agreement, license, installment or conditional sale
      agreement, or other Contract affecting the ownership of, leasing of, title
      to,
      use of, or any leasehold or other interest in, any real or personal property
      (except personal property leases and installment and/or conditional sales
      agreements involving aggregate payments of less than $25,000);

     

    (v) each
      joint venture, partnership, and other similar Contract (however named) involving
      (or reasonably expected to involve) a sharing of profits, losses, costs, or
      liabilities by the Company with any other Person;

     

    (vi) each
      Contract containing covenants that restrict the business activity of the Company
      or limit the freedom of the Company to engage in any line of business or to
      compete with any Person;

     

    (vii) each
      Contract for capital expenditures in excess of $25,000; 

     

    (viii) each
      indenture, mortgage, trust, deed, promissory note, loan agreement, security
      agreement, guarantee or other material agreement or material commitment for
      Indebtedness;

     

    (ix) any
      indemnification agreements or other similar arrangements under which the Company
      is obligated to indemnify any Person;

     

    (x) any
      settlement, conciliation or similar agreement pursuant to which the Company
      is
      required to pay consideration in excess of $25,000 after the date
      hereof;

     

    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

       

    

    (xi) each
      Contract between the Company and any of its customers that involves the
sale
      of
      goods by the Company to such distributor of an amount in excess of $100,000 either
      (A) during fiscal 2005 or (B) reasonably expected for fiscal
      2006;
      and

     

    (xii) each
      Contract with any officer, director, employee, consultant or independent
      contractor of the Company;

     

    (xiii) each
      Contract providing for payments in an aggregate amount exceeding $25,000
per
      annum
that
      is
      not terminable by the Company, without penalty, upon sixty (60) days
      notice; and

     

    (xiv) each
      amendment, supplement, and modification (whether oral or written) in respect
      of
      any of the foregoing.

     

    (b) Except
      as
      set forth on Schedule 3.15(b):

     

    (i) no
      Seller
      has or may acquire any rights under, and no Seller has or may become subject
      to
      any obligation or liability under, any Contract that relates to the business
      of,
      or any of the assets owned or used by, the Company; and

     

    (ii) to
      the
      Knowledge of the Company, no officer, director, agent, employee, consultant,
      or
      contractor of the Company is bound by any Contract that purports to limit the
      ability of such officer, director, agent, employee, consultant, or contractor
      to: (A) engage in or continue any conduct, activity, or practice relating
      to the business of the Company; or (B) assign to the Company or to any
      other Person any rights to any invention, improvement, or
      discovery.

     

    (c) Except
      as
      set forth on Schedule 3.15(c), each Material Contract identified or
      required to be identified on Schedule 3.15(a) is in full force and effect
      and is valid and enforceable in accordance with its terms.

     

    (d) Except
      as
      set forth on Schedule 3.15(d):

     

    (i) the
      Company is in material compliance with all applicable terms and requirements
      of
      each Material Contract;

     

    (ii) to
      the
      Knowledge of the Company, each other Person that has any obligation or liability
      under any Material Contract is in material compliance with all applicable terms
      and requirements of such Material Contract;

     

    (iii) to
      the
      Knowledge of the Company, no event has occurred or circumstance exists that
      (with or without notice or lapse of time) may contravene, conflict with, or
      result in a violation or breach of, or give the Company or other Person the
      right to declare a default or exercise any remedy under, or to accelerate the
      maturity or performance of, or to cancel, terminate, or modify, any Material
      Contract; and

     

    (iv) to
      the
      Knowledge of the Company, the Company has not given to or received from any
      other Person, at any time since the date of the Interim Financial Statements,
      or
      to the extent not reflected in the Interim Financial Statements, since the
      date
      of the Year End Financial Statements, any written notice or communication
      regarding any actual, alleged, possible, or potential violation or breach of,
      or
      default under, any Material Contract.

     

    3.16 Insurance. 

     

    (a) The
      Company has delivered or made available to Buyer:

    
       

      (i) true
        and
        complete copies or coverage abstracts or summaries of all policies of insurance
        to which the Company is a party or under which the Company, or any officer
        or
        director of the Company, is or has been covered at any time within the
        two (2) years preceding the date of this Agreement (a list of material
        policies is set forth on Schedule 3.16(a)); and

       

    

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

       

    

    (ii) true
      and
      complete copies of all pending applications for policies of insurance (a list
      of
      which applications is set forth on Schedule 3.16(a)).

     

    The
      policies referred to in clause (i) above provide
      coverage required by any Material Contract to which the Company is party.


     

    (b) Except
      as
      set forth on Schedule 3.16(b):

     

    (i) To
      the
      Knowledge of the Company, the Company has not received: (A) any refusal of
      coverage or any notice that a defense will be afforded with reservation of
      rights, or (B) any notice of cancellation or any other indication that any
      material insurance policy is no longer in full force or effect or will not
      be
      renewed or that the issuer of any policy is not willing or able to perform
      its
      obligations thereunder.

     

    (ii) To
      the
      Knowledge of the Company, the Company has paid all premiums due (or has accrued
      for such on its financial statements), and has otherwise performed all of its
      obligations, under each policy to which the Company is a party or that provides
      coverage to the Company or any director thereof.

     

    3.17 Environmental
      Matters.
      To the
      Knowledge of the Company:

     

    (a) Except
      as
      set forth on Schedule 3.17(a) and except to the extent that the inaccuracy
      of any of the following, individually or in the aggregate, would not have a
      Material Adverse Effect on the Company:

     

    (i) the
      Company holds and is in compliance with all Environmental Permits, and is and
      has otherwise been in compliance with all applicable Environmental Laws and
      there is no condition that is reasonably likely to prevent or materially
      interfere with compliance by the Company with Environmental Laws;

     

    (ii) no
      modification, revocation, reissuance, alteration, transfer or amendment of
      any
      Environmental Permit, or review by, or approval of, any third party, including,
      without limitation, any Governmental Body, of any Environmental Permit or of
      the
      environmental condition any real property owned by the Company or any of its
      Subsidiaries is required in connection with the execution or delivery of this
      Agreement or the consummation by the Company of the transactions contemplated
      hereby or the operation of the business of the Company on the date of the
      Closing;

     

    (iii) the
      Company has not received any Environmental Claim, nor, to the Knowledge of
      the
      Company, has any Environmental Claim been threatened against the Company;
      and

     

    (iv) the
      Company has not entered into or agreed to any outstanding judgment, decree,
      order or consent arrangement with any Governmental Body under any Environmental
      Laws, including without limitation those relating to compliance with any
      Environmental Laws or to the investigation, cleanup, remediation or removal
      of
      Hazardous Materials.

     

    
      
        
        

      

      
        21

        
          

        

      

      
        
        

      

       

    

    (b) Set
      forth
      on Schedule 3.17(b) are all of the parcels of real property that are now,
      or have heretofore been, owned or leased by the Company or its Subsidiaries,
      or
      otherwise used by the Company or its Subsidiaries for the conduct of the
      Company’s business (each, a “Company
      Facility”),
      or to
      which any Hazardous Materials generated by the Company or its Subsidiaries
      have
      been delivered during the last 10 years by a third party.

     

    (c) Except
      as
      set forth on Schedule 3.17(c) or as disclosed in Buyer’s environmental due
      diligence under Section 6.10, except
      for Hazardous Materials which are required for the conduct of the business
      of
      the Company or any of its Subsidiaries as currently conducted and
      which
      are
      being stored and
      disposed of by
      the
      Company
or
      any
      of
      its Subsidiaries
      in
      accordance with applicable
      Environmental
      Laws, no
      Hazardous Materials have been Released at or onto or, to Knowledge of the
      Company or its Subsidiaries, are migrating onto or from any Company Facility
      currently leased or owned by the Company or any Subsidiary (a “Current
      Company Facility”)
      (including, without limitation, the soil, groundwater, surface water, or ambient
      air, or building materials thereof).
      Except
      as
      set forth on Schedule 3.17(c) or as disclosed in Buyer’s environmental due
      diligence under Section 6.10, no
      Hazardous Materials were Released at or onto, and, to the Knowledge of the
      Company, no Hazardous Materials migrated onto or from, any Company Facility
      previously leased or owned by the Company or any Subsidiary (a “Former
      Company Facility”)
      during
      the ownership or leasing by the Company or any Subsidiary of such Former Company
      Facility. Except
      as
      set forth on Schedule 3.17(c) or as disclosed in Buyer’s environmental due
      diligence under Section 6.10, except
      for Hazardous Materials used, generated, stored and Released in accordance
      with
      applicable Environmental Laws, to the Knowledge of the Company, no Hazardous
      Material which was
      generated, discarded, transported, or Released by the Company or its
      Subsidiaries prior to the Closing Date is present, in a concentration or amount
      exceeding legally allowable limits applicable
      to the use of the property in question
      or
      in a
      manner which violates any applicable
      Environmental
      Law or that is reasonably likely to require any investigation, removal or
      response activity under any
      applicable
      Environmental Law, on any other real property, including, without limitation
      any
      disposal site to which Hazardous Materials generated or transported by the
      Company have been delivered. 

    


    (d) The
      Company has delivered to Parent (or made available for Parent’s inspection) all
      reports, records, tests, evaluations, Governmental Body and third party
      correspondence, and other documents relating to the storage, use, Release,
      manufacture, remediation, investigation, or removal of Hazardous Materials
      by
      the Company or any of its Subsidiaries or the presence of any Hazardous Material
      on or about any Company Facility. 

    


    (e) Except
      as
      set forth on Schedule 3.17(e), no
      person
      has been exposed to any Hazardous Material stored, used, Released, generated,
      or
      transported by or for the Company or any of its Subsidiaries in a manner which
      has caused, or is reasonably likely to cause, an adverse health
      effect.

     

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

     

    “Environmental
      Claim”
means
      any written complaint, notice, claim, demand, action, suit or judicial,
      administrative or arbitral proceeding by any Person to the Company asserting
      liability or potential liability (including without limitation, liability or
      potential liability for investigatory costs, cleanup costs, governmental
      response costs, natural resource damages, property damage, personal injury,
      fines or penalties) arising out of, relating to, based on or resulting from:
      (i) the presence, Release or threatened Release of any Hazardous Materials
      at any location, (ii) circumstances forming the basis of any violation or
      alleged violation of any Environmental Laws or Environmental Permits, or
      (iii) otherwise relating to obligations or liabilities under any
      Environmental Law.

     

    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

       

    

    “Environmental
      Laws”
means
      all applicable federal, state, county, and local statutes, rules, regulations,
      ordinances, orders and decrees, and all common law, in each case relating in
      any
      manner to pollution, protection of human health and the environment, the
      exposure of Persons, property or the environment to any Hazardous Materials,
      or
      the Release or threatened Release of any Hazardous Materials, to the extent
      and
      in the form that such exist at the date hereof.

     

    “Environmental
      Permits”
means
      all permits, licenses, registrations, exemptions and other governmental
      authorizations required under Environmental Laws for the Company to conduct
      its
      operations as presently conducted.

     

    “Hazardous
      Materials”
means
      all hazardous or toxic substances, wastes, materials or chemicals, petroleum
      and
      petroleum products, asbestos and asbestos-containing materials, pollutants,
      contaminants and all other materials and substances, including but not limited
      to radiologically-contaminated materials regulated pursuant to any Environmental
      Laws or that could result in liability under any Environmental
      Laws.

     

    “Release”
means
      any
      spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
      escaping, leaching, dumping, or disposing into the environment (including but
      not limited to any ventilated or indoor air) or into any building or other
      man-made structure. 

     

    “Released”
means
      spilled, leaked, pumped, poured, emitted, emptied, discharged, injected, allowed
      to escape, allowed to leach, dumped, or disposed of into the environment
      (including but not limited to any ventilated or indoor air) or into any building
      or other man-made structure. 

     

    3.18 Brokers
      or Finders.
      The
      Company has incurred no obligation or liability, contingent or otherwise, for
      brokerage or finders’ fees or agents’ commissions or other similar payment in
      connection with this Agreement or the transactions contemplated
      hereby.

     

    3.19 Accounts
      Receivable.
      Except
      as set forth on Schedule 3.19, all Accounts Receivable of the Company are
      reflected properly on its books and records, are valid receivables and, to
      the
      Knowledge of the Company, are collectible in accordance with their terms at
      their recorded amounts, subject only to the reserve for doubtful accounts set
      forth in the balance sheet portion of the Interim Financial Statements (rather
      than in any notes thereto) as adjusted for the passage of time through the
      Closing Date in accordance with the past custom and practice of the
      Company.

     

    3.20 Inventory.
      Except
      as set forth on Schedule 3.20, all
      Inventory is useable and saleable in the ordinary course of business, except
      for
      obsolete items of below-standard quality, all of which have been written off
      or
      written down to estimated net realizable value (or reserves have been
      established for such Inventory) in the books and records of the Company in
      accordance with GAAP. Except as set forth in Schedule 3.20, the Inventory
      is reflected on the balance sheet portion of the Year End Financial Statements
      and the Interim Financial Statements in accordance with GAAP. Liquid fuel
      Inventory is reflected at the lower of cost, using the last-in, first-out (LIFO)
      method, or market. All other Inventory is reflected at the lower of cost, using
      the first-in, first-out method (FIFO), or market.

     

    
      
        
        

      

      
        23

        
          

        

      

      
        
        

      

       

    

    3.21 Sufficiency
      of Assets. The
      Company owns, or has a valid leasehold interest in or license for, in each
      case
      free and clear of all Encumbrances except for Permitted Encumbrances, all assets
      materially necessary for the conduct of its business as presently conducted
      consistent with past practices.

     

    3.22 Relationships
      with Customers, Dealers and Suppliers.  

     

    (a) Attached
      hereto as Schedule 3.22(a) is a true and accurate list of (i) the
      names of the Company’s top twenty customers or dealers (by dollar volume of
      sales to such customers or dealers) and (ii) the names of the top twenty
      suppliers of the Company (by dollar volume of purchases from such suppliers),
      for the 2004, 2005 and 2006 fiscal years and, for each such customer or
      supplier, as applicable, the volume of purchases by such customer or dealer
      or
      from such supplier, as applicable, for each such fiscal year. The Company has
      not received any written notice from any material customer or dealer (except
      as
      listed on Schedule 3.22(a)) to the effect that, and the Company, to its
      Knowledge, has no reason to believe that, any material customer or dealer will
      stop, materially decrease the rate of, or materially change the terms (whether
      related to payment, volume, price or otherwise) with respect to, buying
      materials, products or services from the Company (whether as a result of the
      consummation of the transactions contemplated hereby or otherwise). The Company
      has not received any written notice from any of its material suppliers (except
      as listed on Schedule 3.22(a)) to the effect that, and the Company, to its
      Knowledge, has no reason to believe that, such supplier will stop, materially
      decrease the rate of, or materially change the terms (whether related to
      payment, volume, price or otherwise) with respect to, supplying materials,
      products or services to the Company (whether as a result of the consummation
      of
      the transactions contemplated hereby or otherwise).

     

    (b) The
      Company has not induced, encouraged or attempted to induce or encourage any
      customer or dealer to purchase or maintain any inventory of the Company’s
      products at a level in excess of the level of inventory historically purchased
      or maintained by such customer or dealer in such manner that, after the Closing,
      would reasonably be expected to result in decreased orders or increased returns
      from such customer or dealer as compared to the normal historical orders or
      returns of such customer or dealer.

    


    3.23 Related
      Party Transactions. Except
      as
      set forth on Schedule 3.23, no director, officer, partner, employee,
      Affiliate or “associate” (as such term is defined in Rule 12b-2 under the
      Securities Exchange Act of 1934, as amended) of the Company or its Subsidiaries
      (i) has borrowed any monies from or has outstanding any indebtedness or
      other similar obligations to the Company or its Subsidiaries; (ii) owns any
      direct or indirect interest of any kind in, or is a director, officer, employee,
      partner, Affiliate or associate of, or consultant or lender to, or borrower
      from, or has the right to participate in the management, operations or profits
      of, any person or entity which is (x) a competitor, supplier, customer,
      distributor, lessor, tenant, creditor or debtor of the Company or its
      Subsidiaries, (y) engaged in a business related to the Company's business
      or (z) participating in any transaction to which the Company or its
      Subsidiaries is a party; or (iii) otherwise is or has been a party to any
      contract, arrangement, understanding or transaction with the Company or its
      Subsidiaries. Except as set forth on Schedule 3.23, each of such
      agreements, obligations and arrangements shall have been paid in full or, in
      the
      case of executory obligations, terminated prior to the Closing Date.


     

    3.24 Employee
      and Labor Relations.
      (a) Schedule 3.24(a)
      hereto correctly sets forth the name and current annual salary of each of the
      Company’s employees receiving more than $50,000 in annual compensation and
      whether any employees are absent from active employment, including, but not
      limited to, leave of absence or disability. 

     

    
      
        
        

      

      
        24

        
          

        

      

      
        
        

      

       

    

    (b) Schedule 3.24(b)
      sets forth the bonuses paid and reasonably expected to be paid to the Company’s
      officers and employees for the fiscal year ended September 30, 2006.


     

    (c) Except
      as
      set forth on Schedule 3.24(c): 

     

    (i) the
      Company is not party to any collective bargaining agreement or
      relationship;

     

    (ii) 
      to the
      Company’s Knowledge, no key employee or group of employees of the Company have
      any plans to terminate employment with the Company; and 

     

    (iii) to
      the
      Company’s Knowledge, it does not have any material labor relations problems
      (including any union organization or decertification activities, threatened
      or
      actual strikes or work stoppages or material employee grievances).

     

     

    3.25 Closing
      Date.
      Each of
      the representations and warranties of Company contained in this Article 3,
      in the Schedules attached hereto or in any certificate delivered by or on behalf
      of Company to Buyer pursuant hereto shall be true and correct as of the Closing
      Date as though then made and as though the Closing Date was substituted for
      the
      date hereof (or any other reference to the date hereof or the date of this
      Agreement) throughout such representations and warranties; provided,
      however,
      that
      the Company and the Sellers shall update the Schedules hereto at or prior to
      the
      Closing Date to reflect changed conditions or circumstances after the date
      hereof, although Buyer shall have the right to terminate this Agreement without
      any liability whatsoever as a result of any such update to the Schedules.


     

    3.26 Disclosures.
      Neither
      this Agreement nor any of the Disclosure Schedules annexed hereto, nor any
      report, certificate or instrument furnished by the Company or Sellers in writing
      to Buyer or its counsel in connection with the transactions contemplated by
      this
      Agreement, when read together, contains or will contain any material
      misstatement of fact or omits or will omit to state a material fact necessary
      to
      make the statements contained herein or therein not misleading in any material
      respect. The Company and Sellers have not, after due inquiry, knowingly withheld
      from Buyer any information or fact which has, or would reasonably be expected
      to
      have, a Material Adverse Effect on the Company.

    


    ARTICLE
      IV

     

    REPRESENTATIONS
      AND WARRANTIES OF SELLERS

     

    Each
      Seller represents and warrants jointly and severally to Buyer as
      follows:

     

    4.1 Legal
      Capacity, Organization and Good Standing.
      Each
      Seller that is a natural person has the legal capacity and all requisite power
      and authority to enter into this Agreement, to comply with the provisions hereof
      and to carry out the transactions contemplated hereby. Each Seller that is
      not a
      natural person, including any trust, corporation, limited partnership, or other
      entity, is duly organized, validly existing and in good standing under the
      laws
      of the jurisdiction of such entity’s incorporation or formation and has all
      requisite power and authority to enter into this Agreement and to comply with
      the provisions hereof.

     

    4.2 Authority;
      No Conflict. 

    
       

      (a) This
        Agreement constitutes the legal, valid, and binding obligation of such Seller,
        enforceable against such Seller in accordance with its terms. Each Seller
        has
        the absolute and unrestricted right, power, authority, and capacity to execute
        and deliver this Agreement and the other documents to be executed in connection
        herewith and to perform its obligations under this Agreement and the documents
        to be executed in connection herewith.

       

    

    
      
        
        

      

      
        25

        
          

        

      

      
        
        

      

       

    

    (b) Except
      as
      set forth on Schedule 4.2, neither the execution and delivery of this
      Agreement by any Seller nor the consummation or performance of any of the
      transactions contemplated by this Agreement by a Seller will give any Person
      the
      right to prevent, delay, or otherwise materially interfere with any of the
      transactions contemplated by this Agreement pursuant to:

     

    (i) any
      provision of any Seller’s Organizational Documents;

     

    (ii) 
      any
      resolution or consent adopted by the board of directors or stockholders of
      any
      Seller;

     

    (iii) 
      any
      Legal Requirement to which a Seller may be subject; or

     

    (iv) 
      any
      material Contract to which a Seller is a party or by which a Seller may be
      bound.

     

    4.3 Ownership
      of Shares.
      Each
      Seller is and will be on the Closing Date the record and beneficial owner and
      holder of the Shares set forth opposite its name on Schedule 3.3(a). Each
      Seller represents that its Shares will be transferred to Buyer on the Closing
      Date, free and clear of all Encumbrances except for restrictions imposed under
      any federal or state securities law.

     

     

    4.4 Absence
      of Claims.
      Except
      as set forth on Schedule 4.4, such Seller has no commitment, action, debt,
      claim, counterclaim, suit, cause of action or similar right, at law or in
      equity, contingent or otherwise, against the Company or the officers, directors,
      employees, stockholders, Affiliates, predecessors, successors or assigns of
      any
      of them, including, but not limited to, any claims which relate to or arise
      out
      of such Seller’s prior relationship with the Company or his, her or its rights
      or status as a stockholder, officer, director, or employee of the
      Company.

     

    4.5 Brokers
      or Finders.
      No
      Seller has incurred any obligation or liability, contingent or otherwise, for
      brokerage, finders’ fees, agents’ commissions or other similar payment(s) in
      connection with this Agreement or the transactions contemplated
      hereby.

     

    4.6 Closing
      Date.
      Each of
      the representations and warranties of the Sellers contained in this
      Article 4, in the Schedules attached hereto or in any certificate delivered
      by or on behalf of the Sellers to Buyer pursuant hereto shall be true and
      correct as of the Closing Date as though then made and as though the Closing
      Date was substituted for the date hereof (or any other reference to the date
      hereof or the date of this Agreement) throughout such representations and
      warranties. 

     

    ARTICLE
      V

     

    REPRESENTATIONS
      AND WARRANTIES OF BUYER

     

    Buyer
      represents and warrants to Sellers as follows:

    
       

      5.1 Organization
        and Good Standing.
        Parent
        is a corporation duly
        organized, validly existing, and in good standing under the laws of the State
        of
        Nevada. Acquisition Subsidiary is a corporation duly
        organized, validly existing, and in good standing under the laws of the State
        of
        Delaware. 

       

    

    
      
        
        

      

      
        26

        
          

        

      

      
        
        

      

    

     

    5.2 Authority;
      No Conflict. 

     

    (a) This
      Agreement constitutes the legal, valid, and binding obligation of Buyer,
      enforceable against Buyer in accordance with its terms. Buyer has the absolute
      and unrestricted right, power, and authority to execute and deliver this
      Agreement and the other documents to be executed in connection herewith and
      to
      perform its obligations under this Agreement and the documents to be executed
      in
      connection herewith.

     

    (b) Except
      as
      set forth in Exhibit A, Buyer is not and will not be required to obtain any
      Consent from any Person in connection with the execution and delivery of this
      Agreement or the consummation or performance of any of the transactions
      contemplated in this Agreement.

     

    (c) Except
      as
      expressly set forth in this Agreement or in the attachments hereto, and except
      for paragraph 9 of the Letter of Intent, the Buyer is not a party to any
      other agreement or understanding with any of the Sellers, the Company or any
      of
      the Company’s employees.

     

    5.3 Investment
      Intent.
      Buyer is
      acquiring the Shares for its own account and not with a view to their
      distribution within the meaning of Section 2(a)(11) of the Securities Act
      of 1933, as amended.

     

    5.4 Certain
      Proceedings.
      There is
      no pending Proceeding that has been commenced against Buyer and that challenges,
      or may have the effect of preventing, delaying, making illegal, or otherwise
      interfering with the performance of this Agreement or the transactions
      contemplated herein. To Buyer’s Knowledge, no such Proceeding has been
      threatened.

     

    5.5 Buyer’s
      Investigation.
      Buyer
      hereby acknowledges that to its knowledge, Buyer and its Representatives have
      been (a) given access to the premises, properties, books, contracts and
      records of the Company and (b) furnished with all additional financial and
      operational data and other information concerning the Company’s assets as Buyer
      and its Representatives have requested in connection with Buyer’s determination
      to enter into this Agreement. 

     

    5.6 Brokers
      or Finders.
      Buyer
      and its officers and agents have incurred no obligation or liability, contingent
      or otherwise, for brokerage or finders’ fees or agents’ commissions or other
      similar payment in connection with this Agreement and will indemnify and hold
      Sellers harmless from any such payment alleged to be due from Sellers by or
      through Buyer as a result of the action of Buyer or its officers or
      agents.

     

    ARTICLE
      VI

     

    COVENANTS
      OF COMPANY AND SELLERS PRIOR TO CLOSING DATE

     

    6.1 Access
      and Investigations. 

     

    (a) Between
      the date of this Agreement and the Closing Date, the Company and its
      Representatives will, during normal business hours: (i)  afford Buyer and
      its Representatives reasonable access to the Company’s properties, contracts,
      books and records, and other documents and data, (ii) afford Buyer and its
      Representatives reasonable access to the Company’s personnel, customers,
      suppliers and licensors, provided
      that the
      Buyer notifies the Company in advance of the personnel, customers, suppliers
      and
      licensors to which it wants access, and will allow the Company to participate
      in
      any contacts with such personnel, customers, suppliers and licensors,
      (iii) furnish or make available to Buyer and Buyer’s Representatives copies
      of all such contracts, books and records, and other existing documents and
      data
      as Buyer may reasonably request, and (iv) furnish or make available to
      Buyer and Buyer’s Representatives such additional financial, operating, and
      other data and information as Buyer may reasonably request so long as such
      request does not unreasonably interfere with the operation of the Company’s
      business in the ordinary course. 

     

    
      
        
        

      

      
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    (b) Between
      the date of this Agreement and the Closing Date, the Company and its
      Representatives will furthermore provide Buyer’s financial employee or officer
      designee (to be selected by Buyer in its sole discretion) and Buyer’s
      Accountants reasonable access to the Company’s properties, contracts, books and
      records, and other documents and data in order to (i) enable Buyer’s
      Accountants to perform the audits provided for under Sections 6.4
      and 8.14 hereof, (ii) keep Buyer informed as to the Sellers’ and the
      Company’s compliance with the pre-Closing covenants set forth in this
      Article VI, and (iii) assist Buyer in its efforts to integrate the
      Company’s business with Buyer’s existing business and to perform its legal and
      financial due diligence.

     

    6.2 Operation
      of the Company. 

     

    Between
      the date of this Agreement and the Closing Date, the Company (and, where
      applicable, the Sellers) shall:

     

    (a) except
      as
      set forth on Schedule 6.2(a), conduct the business of the Company only in
      the ordinary course of business consistent with past practice;

     

    (b) not
      pay
      dividends or make any distributions to the Sellers, except for payment of
      salaries established prior to September 30, 2006 and customary year-end
      bonuses in an amount consistent with prior years’ practices;

     

    (c) not
      withdraw cash or liquidate marketable securities for the payment of amounts
      outside of the ordinary course of business, except for the drawing down of
      an
      aggregate amount of $2,000,000 of free cash and/or cash obtained from the
      liquidation of investments held via its marketable securities account for the
      payment of Senior Lender Obligations as directed by Buyer;

     

    (d) not
      amend
      any of its Organization Documents;

     

    (e) not
      issue
      any shares of its stock or rights to acquire shares of its stock; 

     

    (f) use
      commercially reasonable efforts to maintain the goodwill of the Company’s
      suppliers, customers, distributors, licensors and employees; and

     

    (g) not
      create, incur, assume or suffer to exist any Indebtedness not in existence
      on
      the date of this Agreement except pursuant to the Senior Lender Credit
      Agreements, as such agreements are in existence on the date hereof.


     

    6.3 Negative
      Covenant.
      Except
      as otherwise expressly permitted by this Agreement or as set forth on
      Schedule 6.3, between
      the date of this Agreement and the Closing Date,
      the
      Company will not, without the prior consent of Buyer, take any affirmative
      action, or fail to take any reasonable action within its control, as a result
      of
      which any of the changes or events listed in Section 3.14 would reasonably
      be expected to occur. 

     

    
      
        
        

      

      
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    6.4 Cooperation
      Regarding Financial
      Statement Audit. Between
      the date of this Agreement and the Closing Date,
      the
      Company, together with the Sellers, shall cooperate with Buyer and Buyer’s
      Accountants in their timely preparation of audited, consolidated financial
      statements of the Company that meet the requirements of Item 9.01(a) of
      Form 8-K for the period required by Rule 3-05(b) of
      Regulation S-X promulgated by the Securities and Exchange
      Commission.

     

    6.5 Non-Solicitation.
      

     

    (a) From
      and
      after the date of this Agreement until the earlier to occur of the Closing
      or
      termination of this Agreement pursuant to Article X, the Company and the
      Sellers will not, and will not permit their respective Representatives to,
      directly or indirectly enter into any agreement or understanding with, any
      Person (other than Buyer and its Affiliates) for the purpose of making, or
      otherwise facilitate the making of, an “Acquisition Proposal” (as defined
      below). In furtherance of the foregoing, the Company or Sellers will promptly
      notify Buyer if it receives any proposal, inquiry or request for information
      in
      connection with an Acquisition Proposal or potential Acquisition Proposal.
      

     

    (b) For
      the
      purposes of this Agreement, “Acquisition
      Proposal”
shall
      mean any one of the following (other than the transactions among the Company,
      the Sellers and Buyer contemplated hereunder): (i) a proposal for any
      transaction pursuant to which any Person or group of Persons (other than the
      Sellers) (a “Third
      Party”)
      proposes to acquire beneficial ownership of any equity securities of the
      Company, whether from the Company or pursuant to a tender offer, exchange offer,
      recapitalization, reorganization or otherwise, (ii) a proposal for any
      merger, consolidation or other business combination involving the Company
      pursuant to which any Third Party proposes to acquire beneficial ownership
      of
      any equity securities of the Company or of the entity surviving such merger,
      consolidation or other business combination, (iii) a proposal for any other
      transaction or series of related transactions (including any license) pursuant
      to which any Third Party proposes to acquire control of any assets of the
      Company (other than a proposal to acquire inventory in the ordinary course
      of
      business consistent with past practices), or (iv) any public announcement
      of a proposal, plan or intention to do any of the foregoing or any agreement
      to
      engage in any of the foregoing.

     

    (c) Notwithstanding
      the foregoing, no provision of this Section 6.5 shall be construed (i) to
      prohibit any of the Company, Sellers or their respective Representatives from
      responding to any proposal, inquiry or request for information in connection
      with an Acquisition Proposal or potential Acquisition Proposal for the purpose
      of advising the Person making such proposal, inquiry or request of the Company’s
      and Sellers’ obligations under this Section 6.5 or (ii) to require any
      of the Company, Sellers or their respective Representatives to disclose to
      Buyer
      any terms and conditions of any such proposal, inquiry or request, including
      the
      identity of the party making an Acquisition Proposal. 

     

    6.6 Notice
      of Developments—Company and Seller. Any
      of
      the Sellers or the Company shall give prompt written notice to Buyer of any
      development causing, or which would reasonably be expected to cause, a breach
      of
      any of the Company’s representations and warranties set forth in
      Article III above, and each Seller shall give prompt written notice to the
      other parties hereto of any development causing, or which would reasonable
      be
      expected to cause, a breach of any of such Seller’s representations and
      warranties set forth in Article IV above. No disclosure by any Seller or
      the Company pursuant to this Section 6.6, however, shall be deemed to amend
      or supplement the Disclosure Schedules or to prevent or cure any
      misrepresentation or breach of warranty by such Seller.

     

    
      
        
        

      

      
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    6.7 Consents.
      The
      Company and the Sellers shall use their reasonable best efforts to obtain as
      soon as practicable after the date on which the Buyer notifies the Company
      and
      the Sellers that the Buyer’s financing contingency set forth in Section 8.8
      hereof has been satisfied or waived by the Buyer all third-party Consents
      (including those identified on Schedules 3.2(b), 3.2(c) and 4.2,
      and including any Consents required under the Marketing Agreements to which
      the
      Company or any Subsidiary is a party), and give, as soon as practicable after
      the date hereof, all third-party notices, in each case which may be required
      under any instruments, Contracts, commitments, or arrangements in connection
      with the consummation of the transactions contemplated hereby, and Buyer
will
      cooperate with the Company and the Sellers in assisting them to obtain such
      third-party Consents and to deliver such third-party notices; provided that
      nothing herein shall be deemed to require Buyer to incur any costs or expenses
      in connection with such cooperation.
      The
      Sellers shall pay all Consent Fees required in connection with obtaining such
      third-party consents, approvals or the giving of such notices, including,
      without limitation, any fees or other amounts payable under any Contract in
      connection with the transactions contemplated hereby.

    


    6.8 Stockholder
      Agreements.
      Between
      the date hereof and the Closing Date, the Sellers and the Company shall
      terminate any and all existing stockholder agreements among any of the Sellers
      and/or the Company relating to the voting or disposition of the Shares or any
      other similar matters, in each case, on terms and conditions reasonably
      satisfactory to Buyer and with no further obligation or liability of the Company
      or any other party thereto.

    


    6.9 Excise
      Tax. Prior
      to
      the Closing, the Company shall deliver to Parent evidence reasonably
      satisfactory to Parent that, with respect to any payments of cash or sales
      and
      purchases of stock or other payment or benefits provided by the Company that
      may
      be deemed to constitute “parachute payments” pursuant to Section 280G of
      the IRC (“Potential
      280G Benefits”),
      (i) the Company’s stockholders have approved by the requisite vote (which
      is more than 75% of the Company’s disinterested stockholders, as defined in the
      regulations promulgated under IRC Section 280G) all such Potential
      280G Benefits with respect to any disqualified individual (as defined in
      IRC Section 280G and the regulations thereunder), or (ii) such
      requisite stockholder approval was sought and the Company’s stockholders did not
      approve such Potential 280G Benefits, and therefore such Potential 280G Benefits
      shall not be made or provided to any disqualified individual. The procedures
      for
      obtaining such stockholder approval as described in IRC Section 280G and
      the regulations issued thereunder shall be subject to the reasonable approval
      of
      Parent. 

    


    6.10 Environmental
      Due Diligence.
      Regarding any Current Company Facility, the Company and the Sellers shall
      provide Buyer with the right, but not the obligation, to take all steps
      necessary to conduct all appropriate inquiries pursuant to
      Section 101(35)(B) of the federal Comprehensive Environmental Response,
      Compensation and Liability Act of 1980, as amended, 42 U.S.C.
      Section 9601(35)(B), as the United States Environmental Protection Agency
      has defined such inquiries in a rule promulgated at 70 Fed.
      Reg. 66070
      (November 1, 2005) and effective on November 1, 2006 (hereinafter,
“All
      Appropriate Inquiries”).
      Buyer’s performance of All Appropriate Inquiries shall include but not be
      limited to, performance by or for Buyer, at Buyer’s sole cost, of any of the
      actions described in this Section 6.10. Within five (5) days of
      execution of this Agreement, Sellers shall make available to Buyer all records
      held by Sellers concerning each Current Company Facility and environmental
      conditions thereon, including but not limited to, for each Current Company
      Facility, any environmental site assessments, analytical results of sampling,
      remedial reports, investigations, permits, licenses, underground or aboveground
      storage tank test results, inventory records, administrative or judicial
      notices, and estimates of the cost of any environmental remediation,
      investigation, monitoring, or compliance. Sellers shall also provide to Buyer
      a
      list of, and make available to Buyer any written information on any
      environmental conditions at, every Former Company Facility. Buyer shall have
      the
      right, but not the obligation, to perform or cause to be performed an
      environmental site assessment of each Current Company Facility (each, a
“Phase I
      assessment”)
      and to
      produce or cause to be produced a written report of each such assessment and
      any
      recommendations made as a result of each such assessment (each, a “Phase I”).
      If
      any Phase I recommends that samples of any environmental medium, including
      but not limited to any air, soil, surface water, ground water, sediment, rock,
      or bedrock at, above, or beneath any portion of a Current Company Facility,
      should be taken, or if any environmental site assessment or report provided
      to
      Buyer shows any contamination or remediation at a Current Company Facility,
      Buyer shall have the right, but not the obligation, to sample such Current
      Company Facility or cause it to be sampled, at Buyer’s sole cost (a
“Phase II
      assessment”).
      A
      written report of any such Phase II assessment, any other efforts to
      address any concern raised or condition noted in any Phase I or any
      information obtained by Buyer, and any recommendations for further action (a
      “Phase II”)
      shall
      be prepared by or for Buyer at Buyer’s sole cost. Buyer shall provide Sellers
      with copies of the final Phase I and Phase II reports as each such
      report is generated. Sellers hereby grant Buyer and agents of Buyer all access
      to each Current Company Facility and to any individual representatives of
      Sellers which is or may be needed by or for Buyer to undertake All Appropriate
      Inquiries regarding each Current Company Facility. 

     

    
      
        
        

      

      
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    6.11 Assignments.
      Between
      the date of this agreement and the Closing Date, the Sellers and Company (or
      their Affiliates, as applicable) shall execute and have executed necessary
      and
      proper assignment documents evidencing the assignment, for no additional
      consideration (beyond the entry into this Agreement), of all Company
      Intellectual Property Assets or other assets used in or necessary for the
      conduct of the Company’s business as conducted the ownership of which is
      currently vested in employees, consultants or Affiliates of the Company or
      the
      Sellers. For the sake of clarification, the foregoing sentence shall not require
      the assignment to the Company of any real property that is currently leased
      to
      the Company pursuant to a valid, written lease agreement. 

     

    ARTICLE
      VII

     

    COVENANTS

     

    7.1 Approvals
      of Governmental Bodies.
      As
      promptly as practicable after the date of this Agreement and in any event prior
      to the tenth (10th)
      Business Day following execution of this Agreement, the Buyer will make all
      filings required by Legal Requirements to be made by it to consummate the
      transactions contemplated by this Agreement. Between the date of this Agreement
      and the Closing Date, the Buyer will cooperate with the Company and Sellers
      with
      respect to all filings that are required by Legal Requirements to be made in
      connection with the transactions contemplated herein. Buyer will
      (i) cooperate with the Company and the Sellers in assisting them to obtain
      the consents referred to in Section 6.7 hereof, including those consents
      identified on Schedules 3.2(b), 3.2(c) and 4.2; provided that nothing
      herein shall be deemed to require Buyer to incur any costs or expenses in
      connection with the obtaining of such consents; and (ii) exercise
      commercially reasonable efforts to obtain all consents identified in
      Exhibit A.

     

    
      
        
        

      

      
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    7.2 WARN
      Act.
      In the
      event Buyer discontinues all or part of the operations of the Company and/or
      fails to employ or discontinues the employment permanently or temporarily of
      any
      Company employees on and after the Closing Date, Buyer shall be liable and
      responsible for compliance with and liability under the Federal Worker
      Adjustment and Retraining Act by the Company and any similar state or local
      law
      or ordinance.

     

    7.3 Notice
      of Developments—Buyer. The
      Buyer
      shall give prompt written notice to the other parties hereto of any Material
      Adverse Change (but in no event later than five (5) Business Days after
      Buyer becomes aware of any such Material Adverse Change) causing, or which
      would
      reasonably be expected to cause, a breach of any of Buyer’s representations and
      warranties set forth in Article V above, or which would prevent or
      adversely impact, in a material way, Buyer’s ability to obtain financing for the
      transactions described hereunder as contemplated under Section 8.8 hereof.
      No disclosure by Buyer pursuant to this Section 7.3, however, shall be
      deemed to amend or supplement Exhibit A annexed hereto or to prevent or
      cure any misrepresentation or breach of warranty by Buyer.

     

    7.4 Special
      Arrangements Involving Departing Principals and Their Affiliates.


     

    (a) Buyer
      agrees that following the Closing and for a period of ten (10) years
      thereafter, James R. MacLean shall be entitled to (i) use of an office
      at the Company’s headquarters in Blountville, Tennessee, (ii) occasional
      use of clerical help from the Company, (iii) payment of his family health
      insurance policy premiums by the Company, (iv) reasonable supply of
      gasoline for his personal vehicles by the Company, (v) continued use of a
      car which he currently uses and which is owned by the Company and
      (vi) occasional use of the Company’s maintenance personnel. 

     

    (b) Buyer
      agrees that following the Closing, Benedict shall be entitled to (w) access
      to a small office at the Company’s headquarters in Blountville, Tennessee for
      ten years after the Closing, (x) the transfer to him by the Company of the
      automobile and the computer used by him over the course of his employment with
      the Company and which is currently owned by the Company, (y) the payment of
      his family health insurance premiums for the two (2) year period
      immediately following the Closing and (z) reasonable supply of gasoline for
      his personal vehicles by the Company for the two (2) year period
      immediately following the Closing. In addition, the Benedict Indebtedness shall
      be cancelled by the Company, effective as of the Closing. 

     

    (c) Benedict
      agrees, beginning with the date hereof and extending past the Closing for a
      period of two (2) years following the Closing, to provide to the Buyer,
      without any additional compensation to be paid by the Buyer or the Company
      therefor, advice, guidance and any information concerning the Company, its
      assets or operations or any other related matter as may be reasonably requested
      by the Buyer.

     

    (d) Buyer
      agrees that the Naelcam Indebtedness shall
      be
      cancelled by the Company effective as of the Closing.

     

    7.5 Noncompetition
      and Nonsolicitation.
      Each of
      the Sellers hereby agrees that: 

     

    (a) During
      the period from the Closing Date to and including the fifth anniversary of
      the
      Closing Date (the “Noncompete
      and Non-Solicitation Period”),
      such
      Seller shall not, directly or indirectly through any entity (including via
      Cummins Terminals, Inc.), (i) induce or attempt to induce any employee of
      the Company to leave the employ of the Company, or in any way interfere with
      the
      relationship between the Company and any employee thereof, (ii) hire any
      person who then is, or was at anytime during the immediately preceding one
      year
      period, an employee of the Company, (iii) induce or attempt to induce any
      customer, supplier, licensee, licensor, franchisee, lessor or other business
      relation of the Company to cease doing business with the Company, or in any
      way
      interfere with the relationship between any such customer, supplier, licensee,
      licensor, franchisee or other business relation and the Company (including,
      without limitation, making any negative statements or communications about
      the
      Company) or (iv) directly or indirectly acquire or attempt to acquire an
      interest in any business relating to the business of the Company and with which
      the Company has entertained discussions or requested and received information
      relating to the acquisition of such business by the Company as of the Closing
      Date.

     

    
      
        
        

      

      
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    (b) The
      parties hereto acknowledge and agree that the covenants set forth in this
      Section 7.5 are reasonable with respect to period, geographical area and
      scope. Notwithstanding anything in this Section 7.5 to the contrary, if at
      any time, in any judicial proceeding, any of the restrictions stated in this
      Section 7.5 are found by a final order of a court of competent jurisdiction
      to be unreasonable or otherwise unenforceable under circumstances then existing,
      the parties agree that the period, scope or geographical area, as the case
      may
      be, shall be reduced to the extent necessary to enable the court to enforce
      the
      restrictions to the extent such provisions are allowable under law, giving
      effect to the agreement and intent of the parties hereto that the restrictions
      contained herein shall be effective to the fullest extent permissible. The
      Sellers acknowledge and agree that money damages may not be an adequate remedy
      for any breach or threatened breach of the provisions of this Section 7.5
      and that, in such event, Buyer, the
      Company or their respective successors or assigns
      shall,
      in addition to any other rights and remedies existing in its favor, be entitled
      to seek specific performance, injunctive and/or other relief from any court
      of
      competent jurisdiction in order to enforce or prevent any violations of the
      provisions of this Section 7.5 (including
      the extension of the Noncompete and Non-Solicitation Period applicable to any
      Seller by a period equal to the length of court proceedings necessary to stop
      such violation), provided that such Seller is found to have been in violation
      of
      the provisions of this Section 7.5. Any injunction shall be available
      without the posting of any bond or other security. In the event of an alleged
      breach or violation by any Seller of any of the provisions of this
      Section 7.5, the Noncompete and Non-Solicitation Period will be tolled for
      such Seller until such alleged breach or violation is resolved; provided that
      if
      such Seller is found to have not violated the provisions of this
      Section 7.5, then the Noncompete and Nonsolicitation Period will not be
      deemed to have been tolled. The Sellers agree that the restrictions contained
      in
      this Section 7.5 are reasonable in all respects and are necessary to
      protect the goodwill of the Company’s business. 

     

    7.6 Confidentiality.

     

    (a) Each
      Seller, Sellers’ Representatives and, prior to the Closing, the Company, agree
      to use their respective best efforts to maintain the confidentiality of all
      proprietary and other non-public information regarding the Company, except
      as
      required to file tax returns and as required by law, and to turn over to Buyer
      at the Closing all such materials (and all copies thereof) they have in their
      possession. In the event of the breach of any of the provisions of this
      Section 7.6, Buyer, in addition and supplementary to other rights and
      remedies existing in its favor, may apply to any court of law or equity of
      competent jurisdiction for specific performance and/or injunctive or other
      relief (without the posting of bond or other security) in order to enforce
      or
      prevent any violations of the provisions hereof.

     

    (b) In
      the
      event that any party hereto reasonably believes after consultation with counsel
      that it is required by law to disclose any confidential information described
      in
      this Section 7.6, the disclosing party will (i) to the extent
      permitted by such applicable law, provide the other parties with prompt notice
      before such disclosure in order that such other parties may attempt to obtain
      a
      protective order or other assurance that confidential treatment will be accorded
      such confidential information and (ii) cooperate with the other parties in
      attempting to obtain such order or assurance. The provisions of this
      Section 7.6 shall not apply to any information, documents or materials
      which are, as shown by appropriate written evidence, in the public domain or,
      as
      shown by appropriate written evidence, shall come into the public domain, other
      than by reason of default by the applicable party bound hereunder or its
      Affiliates.

     

    
      
        
        

      

      
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    ARTICLE
      VIII

     

    CONDITIONS
      PRECEDENT TO BUYER’S OBLIGATION TO CLOSE

     

    Buyer’s
      obligation to purchase the Shares and to take the other actions required to
      be
      taken by Buyer at the Closing is subject to the satisfaction, at or prior to
      the
      Closing, of each of the following conditions (any of which may be waived in
      writing by Buyer, in whole or in part):

     

    8.1 Accuracy
      of Representations.
      Each of
      the representations and warranties of Company and the Sellers contained in
      this
      Agreement, including any updated Schedules as contemplated by Section 3.25
      hereof, or in any certificate delivered to Buyer in connection herewith shall
      be
      true and correct (but determined in each case, other than with respect to
      Section 3.8, without giving effect to any qualifications therein
      referencing the terms “material” or “Material Adverse Effect” or other terms of
      similar import or effect) when made and as of the Closing (with the same force
      and effect as if made as of the Closing), except where all failures of such
      representations and warranties to be so true and correct have not had, and
      would
      not reasonably be expected to have, in the aggregate, a Material Adverse Effect
      on the Company or the Buyer. 

     

    8.2 Covenants.
      Each of
      the covenants and other agreements contained in this Agreement to be complied
      with by the Company or the Sellers on or before the Closing Date shall have
      been
      complied with in all material respects.

     

    8.3 Consents.
      Each of
      the Consents identified on Schedule 8.3 hereto shall have been obtained by
      the Company or Sellers on terms and conditions reasonably acceptable to Buyer
      and shall be in full force and effect (which, for purposes of clarification,
      shall include all Consents required under Marketing Agreements to which the
      Company or any Subsidiary is party). 

     

    8.4 No
      Proceedings.
      Since
      the date of this Agreement, there must not have been commenced against Buyer,
      or
      against any Person affiliated with Buyer, any Proceeding that, in the reasonable
      good faith judgment of Buyer, based on the advice of outside counsel, would
      have
      a reasonable prospect of surviving a motion for summary judgment by Buyer before
      any Governmental Body of competent jurisdiction which (a) seeks to enjoin,
      restrain or otherwise prohibit the consummation of the transactions contemplated
      hereby; (b) seeks to impose criminal penalties in connection with the
      consummation of the transactions contemplated hereby; or (c) would
      reasonably be expected to have a Material Adverse Effect on the Company or
      Buyer, including, without limitation, preventing, delaying, making illegal,
      or
      otherwise interfering with the consummation of any of the transactions
      contemplated hereby.

     

    8.5 Management
      Employment Agreements. Each
      member of Management, other than Benedict
      and James R. MacLean,
      shall
      have entered into employment agreements with the Company and Buyer or its
      affiliate on terms and conditions reasonably satisfactory to Buyer, which
      arrangements shall be in full force and effect and shall constitute the legal,
      valid and binding obligations of such member of Management.

     

    
      
        
        

      

      
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    8.6 Closing
      Deliveries.
      Buyer
      shall have received each of the deliveries set forth in Section 2.5(a)
      hereto.

     

    8.7 Intentionally
      Left Blank. 

     

    8.8 Financing.
      Buyer
      shall have received a financing commitment to provide all requisite financing
      required by Buyer to consummate the transactions contemplated
      hereunder.

     

    8.9 Opinion.
       Buyer
      shall have received from Woolf, McClane, Bright, Allen
& Carpenter, PLLC, counsel for the Sellers and the Company, an
      opinion addressed to Buyer and Buyer’s lenders, dated as of the Closing Date and
      in form and substance reasonably satisfactory to Buyer.

     

    8.10 FIRPTA
      Affidavit. The
      Sellers shall have delivered to Buyer an affidavit, under penalty of perjury
      (a
      so-called “FIRPTA
      Affidavit”)
      duly
      executed by each of the Sellers, in form and substance required under Treasury
      Regulation §1.897-2(h), certifying facts that would exempt the Buyer from
      withholding requirements of the Foreign Investment in Real Property Tax
      Act.

     

    8.11 Certificates.
      Sellers
      and the Company shall have delivered to Buyer: (i) a copy of the
      Organizational Documents of the Company (in the case of the Company’s charter
      documents, as certified by the Secretary of State of the State of Tennessee);
      (ii) a certificate of good standing for the Company from the State of
      Tennessee; (iii) certificates of good standing or qualification for each
      other jurisdiction in which the Company is qualified or admitted to do business,
      with respect to each of (i)-(iii) above, such certificates to be dated no
      more than ten days prior to the Closing Date; and (iv) a certificate, dated
      as of the Closing Date and executed by the Secretary of the Company, certifying
      to (A) the incumbency of all officers executing this Agreement and/or any
      document contemplated hereby on behalf of the Company, (B) the accuracy and
      completeness of attached copies of the Company’s Organizational Documents,
      (C) the resolutions of the Board of Directors and requisite shareholders of
      the Company authorizing and approving the execution and delivery of this
      Agreement by the Company, the performance of its obligations hereunder, and
      the
      consummation of the transactions contemplated hereby.

     

    8.12 Section 280G
      Approval or Disapproval.
      If
      required in order for the Company to comply with its pre-Closing covenant under
      Section 6.9 hereof, the stockholders of the Company shall have voted or
      acted by written consent to either (i) approve, by the requisite majority,
      any Potential 280G Benefits, or (ii) not approve such Potential 280G
      Benefits by the requisite majority. If the Company’s stockholders shall have not
      provided the requisite approval, any disqualified individual (as such term
      is
      defined in the regulations promulgated under IRC Section 280G) shall
      have agreed to forfeit any Potential 280G Benefits.

     

    8.13 Termination
      of Stockholder Agreements.
      The
      Company and the Sellers shall have fully complied with the covenants set forth
      in Section 6.8 hereto.

     

    8.14 Financial
      Statements;
      Audit. 

     

    (a) The
      Buyer
      (together with Buyer’s Accountants) shall have prepared audited, consolidated
      financial statements of the Company that meet the requirements of
      Item 9.01(a) of Form 8-K for the period required by Rule 3-05(b)
      of Regulation S-X promulgated by the Securities and Exchange Commission,
      and Buyer’s Accountants shall have consented to Parent’s use of the Company’s
      audited consolidated financial statements with respect to any of the Parent’s
      filings under the Securities Act of 1933, as amended, and the Securities
      Exchange Act of 1934, as amended.

     

    
      
        
        

      

      
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    (b) The
      Buyer
      (together with Buyer’s Accountants) shall have conducted an audit of Seller’s
      Accountants work in reviewing the Company’s financial statements for the three
      year period ended September 30, 2006, the results of which shall be
      reasonably satisfactory to Buyer and shall have evidenced whether (i) there
      are no material changes to the corresponding information contained in the
      financial statements prepared by the Company and reviewed by Seller’s
      Accountants with respect to such three year period and (ii) the information
      obtained as a result of such audit of the Company’s financial statements at
      September 30, 2006 is consistent with corresponding information contained
      in the Interim Financial Statements (as at May 31, 2006).

     

    8.15 Satisfaction
      of Environmental Condition.
      Buyer
      shall have made All Appropriate Inquiries concerning each Current Company
      Facility and shall have obtained a Phase I
      and, if necessary, a Phase II with
      respect to each Current Company Facility for which Buyer has exercised its
      rights under Section 6.10 hereof, in each case in a form which allows Buyer
      to rely on such reports. Upon receipt of such Phase I and Phase II
      reports, Buyer shall be deemed to have obtained and investigated all
      investigations, sampling, reports, and information concerning the presence
      of
      Hazardous Materials on or about each Current Company Facility, at which point
      Buyer shall have determined, based on the results obtained by such
      investigations, that Buyer is satisfied that no Hazardous Materials have been
      Released to, on, or from any Current Company Facility in concentrations or
      amounts which exceed limits legally allowable under any applicable Environmental
      Law for the use of the property in question, or which require any investigation,
      removal or response activity under any applicable Environmental Law, or which
      otherwise violate any Environmental Law. Regarding Former Company Facilities
      and
      any real property to which any Hazardous Materials generated or transported
      by
      the Company were sent for disposal or onto which such materials were Released,
      Buyer shall have determined that the Company is not liable or potentially liable
      under any Environmental Laws for any investigation into or remediation of any
      Release of any Hazardous Materials at such real property in an amount which
      would have a Material Adverse Effect on the Company. 

     

    8.16 Affiliate
      Leases. The
      Buyer
      shall have been granted access to and reviewed all real property leases entered
      into by and between the Company (and/or
      its Subsidiaries)
      and any
officer,
      director, stockholder, employee or Affiliate
      of the Company (or an Affiliate of any of the foregoing), and the terms of
      each
      such lease shall have been satisfactory to Buyer in its sole and absolute
      discretion (subject to the following sentence of this Section 8.16).
      Notwithstanding the foregoing, all such real property leases shall have been
      amended to reflect the following terms:

     

    (i) the
      approval or objection by the Company (and/or its Subsidiaries), as lessor under
      each such lease, to improvements proposed to be effected by the lessee to the
      real property covered by such lease shall be provided by the lessor within
      thirty (30) days of receipt of notification by the lessee of each such
      proposed improvement; consent to any such proposed improvement (of which lessor
      is notified in a timely fashion in accordance with the terms of the lease)
      shall
      not be unreasonably withheld by the lessor; 

     

    
      
        
        

      

      
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    (ii) rent
      payments under each such lease during the extension period of the lease shall
      be
      calculated without reference to the Consumer Price Index (the “CPI”)
      and
      shall not increase due to a rise in the CPI; and

     

    (iii) in
      lieu
      of CPI-based increases, rent payable by the lessee under each such lease shall
      be increased by fifteen percent (15%) during each five year extension
      period under the lease.

     

    8.17 Satisfaction
      of Legal and Financial Due Diligence.
      Buyer
      and its counsel shall have completed their legal and financial due diligence
      concerning the Company, the results of which shall have been satisfactory to
      Buyer in its sole discretion. 

     

    8.18 Escrow
      Agreement.
      The
      Sellers and the Escrow Agent shall have executed and delivered the Escrow
      Agreement to the Buyer.

     

    ARTICLE
      IX

     

    CONDITIONS
      PRECEDENT TO SELLERS’ OBLIGATION TO CLOSE

     

    Sellers’
      obligation to sell the Shares and to take the other actions required to be
      taken
      by Sellers at the Closing is subject to the satisfaction, at or prior to the
      Closing, of each of the following conditions (any of which may be waived in
      writing on behalf of all Sellers by Sellers’ Representatives, in whole or in
      part):

     

    9.1 Accuracy
      of Representations.
      Each of
      the representations and warranties of Buyer contained in this Agreement or
      in
      any certificate delivered to the Sellers in connection herewith shall be true
      and correct (but determined in each case without giving effect to any
      qualifications therein referencing the terms “material” or “Material Adverse
      Effect” or other terms of similar import or effect) when made and as of the
      Closing (with the same force and effect as if made as of the Closing), except
      where all failures of such representations and warranties to be so true and
      correct have not had, and would not reasonably be expected to have, in the
      aggregate, a Material Adverse Effect on the Company or the Sellers.


     

    9.2 Covenants.
      Each of
      the covenants and other agreements contained in this Agreement to be complied
      with by the Buyer on or before the Closing Date shall have been complied with
      in
      all respects, except where all failures to so comply with such covenants in
      the
      aggregate have not resulted, and would not reasonably be expected to result,
      in
      a material adverse effect on the Sellers or the ability of the Buyer to
      consummate the transactions contemplated in this Agreement.

     

    9.3 Consents.
      Each
      of
      the Consents identified in Exhibit A as a pre-condition to Closing must have
      been obtained and must be in full force and effect, except where the Buyer’s
      failure to obtain such consents: (a) was due to a breach by the Company or
      the Sellers of their obligation to cooperate with Buyer to obtain such consents
      under the standard outlined by Section 6.4; and (b) would not be
      reasonably likely to have a Material Adverse Effect on the Buyer or a Material
      Adverse Effect on the ability of the Buyer to consummate the transactions
      contemplated by this Agreement.

     

    9.4 No
      Proceedings.
      Since
      the date of this Agreement, there must not have been commenced against Sellers
      or the Company, or against any Person affiliated with Sellers or the Company,
      any Proceeding that, in the reasonable good faith judgment of Sellers or the
      Company, based on the advice of outside counsel, would have a reasonable
      prospect of surviving a motion for summary judgment by Sellers or the Company
      before any Governmental Body of competent jurisdiction which (a) seeks to
      enjoin, restrain or otherwise prohibit the consummation of the transactions
      contemplated hereby; (b) seeks to impose criminal penalties in connection
      with the consummation of the transactions contemplated hereby; or (c) would
      reasonably be expected to have a Material Adverse Effect on Sellers, including,
      without limitation, preventing, delaying, making illegal, or otherwise
      interfering with the consummation of any of the transactions contemplated
      hereby.

     

    
      
        
        

      

      
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    9.5 Certificates.
      Buyer
      shall have delivered to the Sellers and the Company: (i) a copy of the
      Articles or Certificate of Incorporation (as the case may be) of the Parent
      and
      Acquisition Subsidiary, certified by the Secretaries of State of the States
      of
      Nevada and Delaware, respectively; (ii) a certificate of good standing for
      the Parent and Acquisition Subsidiary from the States of Nevada and Delaware,
      respectively; (iii) certificates of good standing or qualification for each
      other jurisdiction in which Parent or Acquisition Subsidiary is qualified or
      admitted to do business, with respect to each of (i)-(iii) above, such
      certificates to be dated no more than ten days prior to the Closing Date; and
      (iv) a certificate or certificates, dated as of the Closing Date and
      executed by the Secretaries of each of the Parent and Acquisition Subsidiary,
      certifying to (A) the incumbency of all officers executing this Agreement
      and/or any document contemplated hereby on behalf of the Parent or Acquisition
      Subsidiary (as the case may be), (B) the accuracy and completeness of
      attached copies of the Parent’s or Acquisition Subsidiary’s Organizational
      Documents (as the case may be), (C) the resolutions of the Board of
      Directors and requisite shareholders of the Parent or Acquisition Subsidiary
      (as
      the case may be) authorizing and approving the execution and delivery of this
      Agreement by the Parent or Acquisition Subsidiary (as appropriate), the
      performance of its obligations hereunder, and the consummation of the
      transactions contemplated hereby.

     

    9.6. Escrow
      Agreement. Buyer
      and
      the Escrow Agent shall have executed and delivered the Escrow Agreement to
      the
      Sellers.

     

    ARTICLE
      X

     

    TERMINATION

     

    10.1 Termination
      Events.
      This
      Agreement may, by notice given prior to or at the Closing, be
      terminated:

     

    (a) by
      either
      Buyer or Sellers if a material breach of any provision of this Agreement has
      been committed by the Company or any of the Sellers (in the case of a
      termination by Buyer) or Buyer (in the case of a termination by the Sellers’
Representatives) and such breach has not been waived, provided that written
      notice has been given to such other party of the intention to terminate under
      this Section 10.1(a) due to such breach and such other party has not cured
      such breach within fifteen (15) days of receipt of such notice,
or
      if
      such breach is unable to be cured within such 30-day period, the breaching
      party
      has made commercially reasonable efforts to cure such breach and such breach
      is
      cured not later that thirty (30) days after notice thereof; 

     

    (b)  
      (i) by
      Buyer
      if any of the conditions in Article VIII have not been satisfied as of the
      Closing Date or if satisfaction of such a condition is or becomes impossible
      (other than through the failure of Buyer to comply with its obligations under
      this Agreement) and Buyer has not waived such condition on or before the Closing
      Date; or

     

    (ii) by
      Sellers’ Representatives, if any of the conditions in Article IX have not
      been satisfied as of the Closing Date or if satisfaction of such a condition
      is
      or becomes impossible (other than through the failure of the Company or any
      of
      the Sellers to comply with their obligations under this Agreement) and Sellers’
Representatives have not waived such condition on or before the Closing Date;
      

     

    
      
        
        

      

      
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    (c) by
      mutual
      written consent of Buyer and Sellers; or

     

    (d) by
      Buyer
      or Sellers if the Closing has not occurred (other than through the failure
      of
      any party seeking to terminate this Agreement to comply with its obligations
      under this Agreement) on or before February 28,
      2007, or such later date that the parties may agree upon in
      writing.

     

    10.2 Effect
      of Termination.
      Each
      party’s right of termination under Section 10.1 is in addition to any other
      rights it may have under this Agreement or otherwise, and the exercise of a
      right of termination will not be an election of remedies. If this Agreement
      is
      terminated pursuant to Section 10.1, all further obligations of the parties
      under this Agreement will terminate, except that the provisions of
      Article XIV will survive after such termination; provided
      that if
      this Agreement is terminated by a party because of the breach of the Agreement
      by the other party or because one or more of the conditions to the terminating
      party’s obligations under this Agreement is not satisfied as a result of the
      other party’s failure to comply with its obligations under this Agreement, the
      terminating party’s right to pursue all legal remedies will survive such
      termination unimpaired for a period of six (6) months after such
      termination.

     

    ARTICLE
      XI

     

    SURVIVAL
      OF REPRESENTATIONS,

     

    WARRANTIES,
      COVENANTS AND AGREEMENTS

     

    11.1 Representations
      and Warranties.
      All
      representations and warranties in this Agreement and the certificates delivered
      pursuant to Section 2.5(a)(ii) and (iii) hereof shall expire on the
      date which is eighteen (18) months after the Closing Date, with the
      exception of (i) the representations and warranties set forth in
      Sections 3.1 (Organization; Good Standing), 3.2 (Authority; No
      Conflict), 3.3 (Capitalization), 3.18 (Brokers or Finders),
      4.1 (Authority; No Conflict) and 4.3 (Ownership of Shares)
      (collectively, the “Fundamental
      Representations”),
      which
      shall survive the Closing and remain in full force and effect forever; and
      (ii) representations and warranties related to any Tax Claim (including
      without limitation the representations and warranties set forth in
      Section 3.10 hereof), which shall
      terminate on the later of (x) sixty (60) days following the date upon
      which the liability to which any such Tax Claim may relate is barred by all
      applicable statutes of limitation (including any extension or waiver of such
      periods) and (y) sixty (60) days following the date upon which any
      claim for refund or credit related to such Tax Claim is barred by all applicable
      statutes of limitations (including any extension or waiver of such
      periods).

     

    11.2 Covenants.
      Claims
      with respect to any breach of a covenant or obligation in this Agreement must
      be
      brought within eighteen (18) months of such breach coming to the attention
      of the other party; provided that claims with respect to any covenant or
      obligation to be performed and complied with by any party prior to the Closing
      Date must be brought within eighteen (18) months after the Closing
      Date.

     

    11.3 General.
      Neither
      Buyer nor any Seller shall have any liability whatsoever with respect to any
      claim for breach of a representation, warranty, covenant or obligation brought
      after the respective expiration dates set forth in this Article XI, except
      in the case of fraud or willful misconduct. Except as otherwise set forth
      herein, each of the parties hereto intends to shorten the statute of
      limitations, and each party agrees that no claims or causes of action may be
      brought against the other party arising out of, or based upon, any such
      representation, warranty, covenant or obligation after the respective expiration
      dates set forth in this Article XI, other than in the case of fraud or
      willful misconduct.

     

    
      
        
        

      

      
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    ARTICLE
      XII

     

    INDEMNIFICATION

     

    12.1 Indemnification
      and Payment of Damages by Sellers. 

     

    (a) Representations,
      Warranties and Covenants.  Except
      as
      limited by Article XI hereof, and subject to the further provisions of this
      Article XII and Section 13.1 hereof, each Seller shall, jointly and
      severally, protect, defend, indemnify, and hold Buyer and its Affiliates
      harmless from and against any and all Damages sustained, incurred or suffered
      by
      or asserted against any of them, directly or indirectly, as a result of or
      relating to or arising out of: (i) any
      breach of any representation or warranty made by Sellers or the Company in
      this
      Agreement or in any certificate delivered to Buyer in connection herewith (in
      each case, other than with respect to Section 3.8, determined without
      giving effect to any qualifications therein referencing the terms “material” or
“Material Adverse Effect” or other terms of similar import or effect) or
      (ii) any breach by any Seller of any covenant or obligation of any Seller
      in this Agreement or any breach by the Company or any Seller of any pre-Closing
      covenant or pre-Closing obligation of the Company or such Seller in this
      Agreement. Except
      as
      otherwise provided herein, any assertion by Buyer that Sellers are liable under
      the terms of this Section 12.1(a) must be made by Buyer in writing and must
      be sent to Sellers on or prior to the expiration of the survival period of
      the
      particular representation, warranty or covenant as provided in Article XI
      hereof. 

     

    (b) Supplemental
      Tax Indemnification. Notwithstanding
      and in addition to the provisions of Section 12.1(a), the Sellers shall be
      obligated to indemnify Buyer with respect to Taxes as set forth in
      Section 13.1 hereof. All such indemnification obligations related to Taxes
      shall be treated as Tax Claims for purposes of the survival provisions of
      Section 11.1(ii), and shall not be subject to the Basket and Cap (each, as
      defined hereinafter in Section 12.4) limitations that are set forth in
      Section 12.4 hereof. For purposes of clarification, any and all references
      to “Damages” found within Sections 12.3 through 12.8 (other than
      Section 12.4) hereof shall include Damages for which a Tax Claim is
      asserted by Buyer hereunder.

     

    12.2 Indemnification
      and Payment of Damages by Buyer.
      Buyer
      will indemnify and hold harmless Sellers, and will pay to them the amount of
      any
      Damages arising, directly or indirectly, from or in connection with (a) any
      breach of any representation or warranty made by Buyer in this Agreement or
      in
      any certificate delivered to Sellers’ Representatives in connection herewith (in
      each case, determined without giving effect to any qualifications therein
      referencing the terms “material” or “Material Adverse Effect” or other terms of
      similar import or effect), or (b) any breach by Buyer of any covenant or
      obligation of Buyer in this Agreement or any breach by the Company of any
      post-Closing covenant or post-Closing obligation under this Agreement.


     

    12.3 Indemnitee’s
      Tax Benefits.  Indemnification
      payments under this Article XII and Section 13.1 hereof shall be paid
      by the indemnifying party without reduction for any tax benefits available
      to
      the indemnified party. 

     

    12.4 Limitations.
      No
      claims for breaches of representations, warranties, covenants or obligations
      may
      be brought after the time limitations set forth in Article XI.
      Notwithstanding anything herein to the contrary, other than with respect to
      a
      claim arising out of fraud or willful misconduct, no party shall have any
      obligation to indemnify the other hereunder, unless (i) (except with
      respect to a claim arising out of Sections 12.1(a)(ii)) the amount of
      Damages sustained or incurred with respect to a particular claim (together
      with
      all related claims) exceeds $5,000 and (ii) (except with respect to a
      breach of any Fundamental Representation, breach of any covenant or obligation,
      or with respect to a Tax Claim) the aggregate amount of Damages sustained or
      incurred with respect to all claims by such party pursuant to this Agreement
      exceeds $150,000 (the “Basket”),
      and
      then (except with respect to a breach of any Fundamental Representation, breach
      of any covenant or obligation, or with respect to a Tax Claim) only to the
      extent of the excess of the aggregate amount of Damages sustained or incurred
      by
      such party with respect to all claims by such party pursuant to this Agreement
      above the Basket amount up to (but not in excess of) a maximum aggregate
      indemnity for such Damages of an amount (the “Cap”)
      equal
      to (a)
      for
      claims made within one (1) year after the Closing, twenty-five
      percent (25%) of the Purchase Price; and (b) for claims made more than
      one (1) year after the Closing, ten percent (10%) of the Purchase
      Price.

     

    
      
        
        

      

      
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    12.5 Procedures
      for Indemnification -- Third Party Claims. 

     

    (a) Promptly
      after receipt by an indemnified party under Section 12.1 or 12.2 of
      notice of the commencement of any Proceeding against it, such indemnified party
      will, if a claim is to be made against an indemnifying party under such Section,
      give notice to the indemnifying party of the commencement of such claim, but
      the
      failure to notify the indemnifying party will not relieve the indemnifying
      party
      of any liability that it may have to any indemnified party, except, and only
      to
      the extent that, the indemnifying party demonstrates that the defense of such
      action is materially prejudiced by the indemnifying party’s failure to give such
      notice.

     

    (b) If
      any
      Proceeding referred to in Section 12.5(a) is brought against an indemnified
      party and it gives notice to the indemnifying party of the commencement of
      such
      Proceeding, the indemnifying party will be entitled to participate in such
      Proceeding and, to the extent that it wishes (unless the indemnifying party
      is
      also a party to such Proceeding or the indemnified party determines in good
      faith that joint representation would be inappropriate), to assume the defense
      of such Proceeding with counsel reasonably satisfactory to the indemnified
      party; provided that the indemnifying party provides written notice of its
      election to assume the defense of such Proceeding to the indemnified party
      within ten (10) days of receipt by the indemnifying party of the notice of
      claim by the indemnified party, and, after delivery of such written notice
      from
      the indemnifying party to the indemnified party, the indemnifying party will
      not, as long as it diligently conducts such defense, be liable to the
      indemnified party under this Article XII for any fees of other counsel or
      any other expenses with respect to the defense of such Proceeding, in each
      case
      subsequently incurred by the indemnified party in connection with the defense
      of
      such Proceeding, other than reasonable costs of investigation. If the
      indemnifying party assumes the defense of a Proceeding: 

     

    (i) it
      will
      be conclusively established for purposes of this Agreement that the claims
      made
      in that Proceeding are within the scope of and subject to indemnification;
      

     

    (ii) no
      compromise or settlement of such claims may be effected by the indemnifying
      party without the indemnified party’s consent unless: (A) there is no
      finding or admission of any violation of Legal Requirements or any violation
      of
      the rights of any Person and no effect on any other claims that may be made
      against the indemnified party, and (B) the sole relief provided is monetary
      damages that are paid in full by the indemnifying party; and 

     

    
      
        
        

      

      
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    (iii) the
      indemnified party will have no liability with respect to any compromise or
      settlement of such claims effected without its consent, other than reasonable,
      documented costs of investigation. 

     

    (c) Notwithstanding
      the foregoing, if (i) the indemnifying party does not, within ten (10)
      days after the indemnified party’s notice is given pursuant to this
      Section 12.5, give written notice to the indemnified party of its election
      to assume the defense of such Proceeding as permitted under
      Section 12.5(b), or (ii) the indemnified party determines in good
      faith that there is a reasonable probability that a Proceeding may adversely
      affect it or its Affiliates other than as a result of monetary damages for
      which
      it would be entitled to indemnification under this Agreement, then in either
      case the indemnified party may, by notice to the indemnifying party, assume
      the
      exclusive right to defend, compromise, or settle such Proceeding, but, in such
      case the indemnifying party will not be bound by any compromise or settlement
      effected without its consent (which consent will not be unreasonably withheld)
      unless such compromise or settlement: (A) results in no finding or
      admission of any violation of Legal Requirements or any violation of the rights
      of any Person and (B) does not obligate the indemnifying party to pay
      monetary damages.

     

    12.6 Procedure
      for Indemnification -- Other Claims.
      A claim
      for indemnification for any matter not involving a third-party claim may be
      asserted by notice to the party from whom indemnification is
      sought.

     

    12.7 Exclusive
      Remedy.
      (a)
      Buyer
      hereby agrees that besides the termination rights afforded under Article X
      hereof, the rights and remedies of Buyer contained in this Article XII and
      in Section 13.1 to recover Damages (subject to the limitations set forth
      herein) shall be the sole and exclusive rights and remedies that they shall
      have
      against the Company or any Seller arising out of, relating to or resulting
      from
      a breach of representation, warranty or covenant (except for any covenant set
      forth in Article II or Article VIIA) under this Agreement, except with
      respect to any claim arising out of fraud or the willful misconduct of any
      Seller or the Company. 

     

    (b)
      Each
      Seller hereby agrees that it shall not (and shall cause its Affiliates not
      to)
      directly or indirectly make any claim for indemnification or contribution
      against the Buyer, the Company or any of their respective Affiliates by reason
      of the fact that any Seller or any Affiliate of any Seller is or was a
      shareholder, director, manager, officer, employee or agent of the Company or
      any
      of its Affiliates or is or was serving at the request of the Company or any
      of
      its Affiliates as a partner, manager, trustee, director, officer, employee
      or
      agent of another entity (whether such claim is for judgments, damages,
      penalties, fines, costs, amounts paid in settlement, losses, expenses or
      otherwise and whether such claim is pursuant to any statute, charter document,
      bylaw, agreement or otherwise) with respect to any action, suit, proceeding,
      complaint, claim or demand brought by the Buyer or any of its Affiliates against
      Sellers pursuant to this Agreement or applicable law or otherwise. In no event
      shall the Company or any of its Affiliates have any liability whatsoever to
      any
      Seller (or any Affiliate of any Seller) for breaches of the representations,
      warranties, agreements or covenants of such Seller or the Company hereunder,
      and
      no Seller shall (and each shall cause its Affiliates not to) in any event seek
      contribution from the Company or any of its Affiliates in respect of any
      payments required to be made by any Seller pursuant to this
      Agreement.

     

    12.8 Tax
      Treatment. All
      indemnification payments shall constitute adjustments to the Purchase Price
      for
      all Tax purposes, and no party hereto shall take any position inconsistent
      with
      such characterization, unless a final determination by any Governmental Body
      causes any such amount not to constitute an adjustment to the Purchase Price
      for
      Tax purposes.

     

    
      
        
        

      

      
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    12.9 Manner
      of Payment; Right of Set-Off.
      Except
      as otherwise provided herein, any indemnification of the Buyer or any Seller
      hereunder shall be effected by wire transfer of immediately available funds
      from
      the Sellers or Buyer, as the case may be, to an account(s) designated by the
      Buyer or the Sellers’ Representatives, as the case may be, within ten (10)
      days after the determination thereof. Notwithstanding anything to the contrary
      set forth in this Section 12.9 or otherwise in this Agreement, Buyer and
      its Affiliates shall first recover any Damages under Section 12.1 from the
      Escrow Account. To the extent the Escrow Amount is insufficient for any portion
      of such recovery, Buyer and its Affiliates may recover the remaining portion
      of
      any Damages required to be paid to Buyer or any of its Affiliates pursuant
      hereto from the Sellers on a joint and several basis.

     

    ARTICLE
      XIII 

     

    TAX
      MATTERS

     

    The
      following provisions shall govern the allocation of responsibility for, and
      the
      rights and remedies of the Buyer and Sellers with respect to, certain Tax
      matters:

     

    13.1 Tax
      Indemnification.
      Subject
      to Sections 12.1(b), 12.3, 12.5, 12.6 12.7 and 12.8 hereof, each
      Seller shall, jointly and severally, protect, defend, indemnify, and hold Buyer
      and its Affiliates harmless from and against (i) all Taxes (or the
      non-payment thereof) of the Company for all taxable periods ending on or before
      the Closing Date, (ii) all Taxes of any Person (other than the Company)
      imposed on the Company as a transferee or successor, by contract or pursuant
      to
      any law, rule or regulation, which Taxes relate to an event or transaction
      occurring before the Closing, (iii) all Taxes of any member of an
      Affiliated Group of which the Company (or any predecessor of the foregoing)
      is
      or was a member for taxable periods ending on or before the Closing Date,
      including pursuant to Treasury Regulation §1.1502-6 (or any analogous or
      similar state, local, or foreign law or regulation), and (iv) any Taxes
      imposed under IRC §1374 (and any corresponding provision of state or local
      law). Notwithstanding anything herein to the contrary, Sellers shall have no
      obligation to protect, defend, indemnify or hold Buyer and its Affiliates
      harmless from and against any Taxes to the extent such Taxes may be offset
      by
      deposits, installments, other payments, credits, reserves or net operating
      losses paid or arising on or before the Closing Date. Sellers shall reimburse
      Buyer for any taxes of the Company or any Subsidiary which are the
      responsibility of Sellers pursuant to this Section 13.1 at least
      five (5) days prior to payment of such Taxes by Buyer or the
      Company.

    


    13.2 Tax
      Periods Ending On or Before the Closing Date.
      The
      Company shall prepare or cause to be prepared and shall file or cause to be
      filed (in a manner consistent with past custom and practice of the Company)
      all
      Tax Returns of the Company for all Tax periods ending on or before the Closing
      Date. 

     

    13.3 Cooperation
      on Tax Matters.
      The
      Buyer, the Company and the Sellers shall cooperate fully, as and to the extent
      reasonably requested by the other party, in connection with the filing of Tax
      Returns and any audit, litigation or other proceeding with respect to Taxes.
      Such cooperation shall include the retention and (upon the other party’s
      request) the provision of records and information reasonably relevant to any
      such audit, litigation or other proceeding and making employees available on
      mutually convenient basis to provide additional information and explanation
      of
      any material provided hereunder. The Company, the Sellers and the Buyer agree
      (i) to retain all books and records with respect to Tax matters pertinent
      to the Company relating to any taxable period beginning before the Closing
      Date
      until the expiration of the statute of limitations (and, to the extent notified
      by the Buyer or the Seller, any extensions thereof) of the respective taxable
      periods, and to abide by all record retention agreements entered into with
      any
      Taxing Authority, and (ii) to give the other party reasonable written
      notice prior to transferring any such books or records and, if the other party
      so requests, the Company or the Sellers, as the case may be, shall allow the
      other party to take possession of such books and records.

     

    
      
        
        

      

      
        43

        
          

        

      

      
        
        

      

       

    

    13.4 Tax
      Sharing Arrangements.
      The
      Sellers and the Company will cause all Tax sharing agreements or similar
      agreements, if any, and all powers of attorney with respect to Taxes or Tax
      Returns that involve the Company to be terminated prior to the Closing and,
      after the Closing, the Company will not be bound thereby or have any liability
      thereunder. 

     

    13.5 Transfer
      Taxes. Notwithstanding
      Section 12.1(b) and any other provision of this Article XIII, the
      parties agree that all transfer, documentary, sales, use, stamp, registration
      and other such taxes and fees (including any penalties and interest thereon,
      “Transfer
      Taxes”)
      incurred by the Company in connection with this Agreement shall be borne by
      the
      Buyer. The Buyer shall prepare at its own expense any Tax Returns relating
      to
      Transfer Taxes required to be filed by Buyer, and, if required by applicable
      law, any other party hereto will, and will cause its Affiliates to, join in
      the
      execution of any such Tax Returns and other documentation required to be filed
      by Buyer.

     

    13.6. Audits
      and Contests Regarding Taxes. Any
      party
      hereto who receives any notice of a pending or threatened Tax audit, assessment,
      or adjustment relating to the Company, or the Sellers with respect to the
      Company, which may give rise to liability of another party hereto, shall
      promptly notify Buyer and the Sellers’ Representatives within ten (10)
      business days of the receipt of such notice. The parties hereto each agree
      to
      consult with and to keep the other parties hereto informed on a regular basis
      regarding the status of any Tax audit or proceeding to the extent that such
      audit or proceeding could affect the liability of such other parties (including
      indemnity obligations hereunder). The Sellers’ Representatives shall have the
      right to represent the Company’s interests in any Tax audit or administrative or
      judicial proceeding and to employ counsel of its choice and at Sellers’ expense,
      but reasonably satisfactory to Buyer, but only to the extent such audit or
      other
      proceeding pertains to taxable periods ending on or before the Closing Date.
      Buyer shall have the right to participate in such proceeding at its own expense,
      and shall be entitled to control the disposition of any issue involved in such
      proceeding which does not affect a potential liability of any Seller. The Buyer
      and the Sellers’ Representatives shall be entitled to represent its own
      interests in light of its responsibilities (including indemnity obligations)
      for
      the related Taxes, at its own expense, in any audit or administrative or
      judicial proceedings involving a taxable period that includes but does not
      end
      on the Closing Date, provided that with respect to any such period, no party
      hereto shall communicate with Representatives of an auditing Taxing Authority
      on
      any substantive matter without advising all other parties hereto of the
      communication in advance, and if oral, providing the other parties hereto an
      adequate opportunity to participate in such communication. Notwithstanding
      the
      foregoing, the Seller Representatives shall not agree to any settlement for
      any
      taxable period that would affect Tax liabilities of Buyer or the Company for
      any
      taxable period beginning on or after the Closing Date without prior written
      consent of Buyer. Except as provided in this Section 13.7, the provisions
      of Article XII including the provisions therein addressing settlement
      authority, shall govern the manner in which Tax audit or administrative or
      judicial Proceedings are resolved. 

     

    
      
        
        

      

      
        44

        
          

        

      

      
        
        

      

    

     

    ARTICLE
      XIV

     

    GENERAL
      PROVISIONS

     

    14.1 Expenses.
      Buyer
      will bear its expenses incurred in connection with the preparation, execution,
      and Buyer’s performance under this Agreement and of the transactions
      contemplated herein, including all fees and expenses of Buyer’s agents,
      Representatives, counsel, and accountants. Additionally, Buyer shall
      be
      responsible to pay when due all transfer, documentary, sales, use, value added,
      stamp, registration, goods and services taxes, as well as all conveyance fees,
      recording charges and other fees and charges, incurred in connection with the
      transactions contemplated by this Agreement (as required under Section 13.3
      hereof), regardless of whether the obligation to pay any such taxes, fees or
      charges would otherwise be the obligation of the Company or Sellers under
      applicable law or by custom or practice. Sellers
      shall pay all expenses of the Company and Sellers incurred in connection with
      the preparation, execution and Sellers’ and the Company’s performance under this
      Agreement and of the transactions contemplated herein, including all fees and
      expenses of agents, Representatives, outside counsel and accountants of Sellers
      and the Company; provided,
      however,
      that
      Sellers shall not be responsible for fees and expenses incurred by the Company
      in connection with the preparation, execution and performance by the Company
      under this Agreement to the extent that such fees and expenses are incurred
      for
      services rendered by the Company’s employees or are incurred for copying
      services or substantially similar administrative services performed at the
      Company’s offices. 

     

    14.2 Public
      Announcements.
      Prior to
      the Closing, any public announcement or similar publicity with respect to this
      Agreement or the transactions contemplated herein will be issued, if at all,
      at
      such time and in such manner as Buyer and the Company shall reasonably
      determine. The Company and Buyer will consult with each other concerning the
      means by which the public and the Company’s employees, distributors, customers,
      and suppliers and others having dealings with the Company will be informed
      of
      the transactions contemplated herein and, prior to the Closing, no announcement
      shall be made by any party without the prior written consent of the other
      parties.

     

    14.3 Confidentiality.
      The
      provisions of paragraph 9 of the Letter of Intent will continue in full
      force and effect and will survive the execution and delivery of this Agreement
      and shall terminate upon the Closing.

     

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

     

    
      	
              If
                to the Company:

               

              Appalachian
                Oil Company

              P.O.
                Box 1500

              1992
                Highway 75 

              Blountville,
                TN 37617

              Fax:
                (423) 279-6752

              Attention:
                Jeffrey H. Benedict

               

            	
              With
                a copy to:

               

              Woolf,
                McClane, Bright, Allen & Carpenter, PLLC

              900
                S. Gay Street, Suite 900

              Knoxville,
                TN 37902

              Fax:
                (865) 215-1001

              Attention:
                Dennis R. McClane

            


    

     

    
      
        
        

      

      
        45

        
          

        

      

      
        
        

      

    

     

    
      	
              and
                to each Seller at the address set forth on Schedule 3.3(a) with a
                copy to Woolf, McClane, Bright, Allen & Carpenter, PLLC (set
                forth above); or at such other address as Company or the Sellers
                may
                designate by advance written notice to the other parties hereto;
                and

            
	 	 
	
              If
                to Acquisition Subsidiary:

               

              c/o
                NewGen
                Technologies, Inc

              6000
                Fairview Rd., 12th Floor

              Charlotte,
                NC 28210

              Attention:
                Bruce Wunner

              Fax:
                (866) 403-0070 

            	
              With
                a copy to:

               

              Reed
                Smith LLP 

              599
                Lexington Avenue

              29th
                Floor

              New
                York, NY 10022

              Fax:
                212-521-5450

              Attention:
                Gerard S. DiFiore, Esq.

               

            
	
              If
                to Parent:

               

              NewGen
                Technologies, Inc 

              6000
                Fairview Rd., 12th Floor

              Charlotte,
                NC 28210

              Attention:
                Bruce Wunner

              Fax: (704)
                552-3705 

            	
              With
                a copy to:

               

              Reed
                Smith LLP 

              599
                Lexington Avenue

              29th
                Floor

              New
                York, NY 10022

              Fax:
                212-521-5450

              Attention:
                Gerard S. DiFiore, Esq.

            


    

    or
      at
      such other address as Buyer may designate by advance written notice to the
      other
      parties hereto.

     

    14.5 Jurisdiction;
      Service of Process.
      Any
      action or proceeding seeking to enforce any provision of, or based on any right
      arising out of, this Agreement may be brought against any of the parties in
      the
      courts of (a) the State of Tennessee, County of Sullivan, or, if it has or
      can acquire jurisdiction, in the United States District Court for the Eastern
      District of Tennessee, or (b) the State of North Carolina, County of
      Mecklenburg, or if it has or can acquire jurisdiction, in the United States
      District Court for the Western District of North Carolina. Each of the parties
      consents to the jurisdiction of such courts (and of the appropriate appellate
      courts) in any such action or proceeding and waives any objection to venue
      laid
      therein. Process in any action or proceeding referred to in the preceding
      sentence may be served on any party anywhere in the world.

     

    14.6 Further
      Assurances.
      The
      parties agree before and after Closing: (a) to furnish upon request to each
      other such further information, (b) to execute and deliver to each other
      such other documents, and (c) to do such other acts and things, all as the
      other party may reasonably request for the purpose of carrying out the intent
      of
      this Agreement and the documents referred to in this Agreement.

     

    14.7 Waiver.
      The
      rights and remedies of the parties to this Agreement are cumulative and not
      alternative. Neither the failure nor any delay by any party in exercising any
      right, power, or privilege under this Agreement or the documents referred to
      in
      this Agreement will operate as a waiver of such right, power, or privilege,
      and
      no single or partial exercise of any such right, power, or privilege will
      preclude any other or further exercise of such right, power, or privilege or
      the
      exercise of any other right, power, or privilege. To the maximum extent
      permitted by applicable law: (a) no claim or right arising out of this
      Agreement or the documents referred to in this Agreement can be discharged
      by
      one party, in whole or in part, by a waiver or renunciation of the claim or
      right unless in writing signed by the other party; (b) no waiver that may
      be given by a party will be applicable except in the specific instance for
      which
      it is given; and (c) no notice to or demand on one party will be deemed to
      be a waiver of any obligation of such party or of the right of the party giving
      such notice or demand to take further action without notice or demand as
      provided in this Agreement or the documents referred to in this
      Agreement.

     

    
      
        
        

      

      
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    14.8 Entire
      Agreement and Modification.
      This
      Agreement supersedes all prior agreements between the parties with respect
      to
      its subject matter (other than paragraph 9 of the Letter of Intent, which
      shall survive the execution and/or termination of this Agreement in accordance
      with its terms) and constitutes (along with the documents referred to in this
      Agreement and paragraph 9 of the Letter of Intent) a complete and exclusive
      statement of the terms of the agreement between the parties with respect to
      its
      subject matter. This Agreement may not be amended except by a written agreement
      executed by Buyer, the Company and the Sellers’ Representatives. 

     

    14.9 Disclosure
      Schedules.
      If and
      to the extent any information required to be furnished in any Schedule is
      contained in another Schedule, such information will be deemed to be included
      in
      all Schedules in which such information is required to be included, to the
      extent the relevance of such disclosure to such other Schedules is reasonably
      apparent on its face.

     

    14.10 Assignments,
      Successors, and No Third-Party Rights.
      No party
      may assign any of its rights under this Agreement without the prior consent
      of
      the other parties hereto; provided that Buyer may,
      without the consent of any other party, assign all or any portion of its rights
      hereunder to: (a) any of its Affiliates; (b) to any acquiror of
      substantially all of the assets of Buyer or any Affiliates of such acquiror;
      and/or (c) for collateral security purposes, to any lenders of Buyer or any
      of its Affiliates.
      Subject
      to the preceding sentence, this Agreement will apply to, be binding in all
      respects upon, and inure to the benefit of the successors and permitted assigns
      of the parties. Nothing expressed or referred to in this Agreement will be
      construed to give any Person other than the parties to this Agreement any legal
      or equitable right, remedy, or claim under or with respect to this Agreement
      or
      any provision of this Agreement. This Agreement and all of its provisions and
      conditions are for the sole and exclusive benefit of the parties to this
      Agreement and their successors and assigns.

     

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

     

    14.12 Article
      and Section Headings, Construction.
      The
      headings of Sections in this Agreement are provided for convenience only and
      will not affect its construction or interpretation. All references to “Article”,
“Articles”, “Section” or “Sections” refer to the corresponding Article,
      Articles, Section or Sections of this Agreement. All words used in this
      Agreement will be construed to be of such gender or number as the circumstances
      require. Unless otherwise expressly provided, the word “including” does not
      limit the preceding words or terms.

     

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

     

    
      
        
        

      

      
        47

        
          

        

      

      
        
        

      

       

    

    14.14 Governing
      Law.
      This
      Agreement will be governed by the laws of the State of Tennessee without regard
      to conflicts of laws principles.

     

    14.15 Counterparts.
      This
      Agreement may be executed in one or more counterparts, each of which will be
      deemed to be an original copy of this Agreement and all of which, when taken
      together, will be deemed to constitute one and the same agreement.

     

    14.16 Sellers’
      Representatives. 

     

    (a) By
      virtue
      of their approval of this Agreement, the Sellers shall have constituted and
      appointed James R. MacLean and Benedict, acting together, to serve as
      seller representatives (collectively, “Sellers’
      Representatives”)
      for
      and on behalf of the Sellers, to give and receive notices and communications,
      to
      agree to, negotiate, enter into settlements and compromises of, and comply
      with
      orders of courts with respect to such claims,
      to take all other actions on behalf of the Sellers as is explicitly contemplated
      by this Agreement or the Escrow Agreement and to take all actions necessary
      or
      appropriate in the judgment of the Sellers’ Representatives for the
      accomplishment of the foregoing. No bond shall be required of the Sellers’
Representatives, and the Sellers’ Representatives shall receive no compensation
      for their services. Notices or communications to or from the Sellers’
Representatives shall constitute notice to or from each Seller.

     

    (b) The
      Sellers’ Representatives shall not be liable for any act done or omitted
      hereunder as Sellers’ Representatives while acting in good faith and in the
      exercise of reasonable judgment and any act done or omitted pursuant to the
      advice of counsel or with the consent of two-thirds in interest of the Sellers
      shall be conclusive evidence of such good faith. The Sellers shall severally
      indemnify the Sellers’ Representatives and hold each of them harmless against
      any loss, liability or expense incurred without gross negligence or bad faith
      on
      the part of such Sellers’ Representatives and arising out of or in connection
      with the acceptance or administration of his duties hereunder.

     

    (c) Notwithstanding
      anything to the contrary set forth in this Agreement, any decision, act, consent
      or instruction of the Sellers’ Representatives with
      respect to any matters contemplated hereby shall be deemed to be the decision,
      act, consent or instruction of all of the Sellers and shall be final, binding
      and conclusive upon each of the Sellers, and Buyer and the Escrow Agent may
      rely
      on each such decision, act, consent or instruction of the Sellers’
Representatives as being the decision, act, consent or instruction of each
      of
      the Sellers. Buyer is hereby relieved from any liability to any person for
      any
      acts done by them in reliance upon, or in accordance with, any such decision,
      act, consent or instruction of the Sellers’ Representatives.

     

    [REMAINDER
      OF PAGE INTENTIONALLY LEFT BLANK]


    
      
        
        

      

      
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    IN
      WITNESS WHEREOF, the parties have executed and delivered this Stock Purchase
      Agreement as of the date first written above.

     

    
      	 	 	 
	APPALACHIAN
              OIL
              COMPANY, INC. 	THE
              LINDA R.
              MACLEAN IRREVOCABLE TRUST
	 
 	 
 	 
 
	By: /s/
              Jeffery H. Benedict	By:  	/s/ Sara G. MacLean
	
              
                
Name:
                Jeffery H. Benedict

              Title:  
                President

            	
              

              Name:
                Sara G. MacLean

              Title:  
                Trustee

            
	 

               

            	 


    

     

    
      	 	 	 
	
               

            	NEWGEN
              TECHNOLOGIES, INC.
	 
 	 
 	 
 
	/s/ James R. MacLean	By:  	/s/ S. Bruce Wunner
	
              

              JAMES
                R. MACLEAN

            	
              

              Name:
                S. Bruce Wunner

              Title:  
                Vice Chairman and CEO

            
	 	
            


    

    
      	 	 	 
	 	REFUEL AMERICA ACQUISITION
              CORPORATION
	 
 	 
 	 
 
	/s/
              Sara
              G. MacLean	By:  	/s/ S. Bruce Wunner
	
              
SARA
              G. MACLEAN	
              

              
                Name:
                  S. Bruce Wunner

                Title:  
                  CEO and President

              

            
	/s/ Jeffery H. Benedict	 
	
              

              JEFFREY
                H. BENEDICT

            	 


    

     

    
      
        
        

      

      
        49