Exhibit
10.6


EXECUTION COPY


AGREEMENT AND PLAN OF MERGER


among


THE TECHS HOLDINGS, INC.


and


STEEL DYNAMICS, INC.




Dated as of June 6, 2007
















TABLE OF CONTENTS


	
   

   	
    

   	
    

   	
    

   	
   Page

   
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I            DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.1

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II           MERGER
  OF MERGER SUB INTO THE COMPANY

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1

  	
   

  	
  Merger

  	
   

  	
  11

  
	
  2.2

  	
   

  	
  Closing

  	
   

  	
  11

  
	
  2.3

  	
   

  	
  Effective Time

  	
   

  	
  11

  
	
  2.4

  	
   

  	
  Effects of the Merger

  	
   

  	
  11

  
	
  2.5

  	
   

  	
  Certificate of Incorporation and By Laws

  	
   

  	
  11

  
	
  2.6

  	
   

  	
  Directors and Officers

  	
   

  	
  11

  
	
  2.7

  	
   

  	
  Conversion of Shares

  	
   

  	
  12

  
	
  2.8

  	
   

  	
  Dissenting Shares

  	
   

  	
  12

  
	
  2.9

  	
   

  	
  Options

  	
   

  	
  12

  
	
  2.10

  	
   

  	
  Payment of Merger Consideration

  	
   

  	
  13

  
	
  2.11

  	
   

  	
  Redemption

  	
   

  	
  16

  
	
  2.12

  	
   

  	
  Merger Consideration Adjustment

  	
   

  	
  17

  
	
  2.13

  	
   

  	
  Letters of Credit

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III          REPRESENTATIONS
  AND WARRANTIES OF THE COMPANY

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.1

  	
   

  	
  Due Incorporation; Capitalization

  	
   

  	
  19

  
	
  3.2

  	
   

  	
  Financial Statements

  	
   

  	
  20

  
	
  3.3

  	
   

  	
  Title to Properties

  	
   

  	
  20

  
	
  3.4

  	
   

  	
  Intellectual Property

  	
   

  	
  20

  
	
  3.5

  	
   

  	
  Contracts

  	
   

  	
  21

  
	
  3.6

  	
   

  	
  Insurance

  	
   

  	
  21

  
	
  3.7

  	
   

  	
  Employee Benefit Plans

  	
   

  	
  22

  
	
  3.8

  	
   

  	
  Taxes

  	
   

  	
  23

  
	
  3.9

  	
   

  	
  Litigation

  	
   

  	
  24

  
	
  3.10

  	
   

  	
  Brokers and Finders

  	
   

  	
  24

  
	
  3.11

  	
   

  	
  Due Authorization

  	
   

  	
  24

  
	
  3.12

  	
   

  	
  Consents and Approvals; Governmental Authority
  Relative to This Agreement

  	
   

  	
  24

  



 



 i
 









 


	
   

   	
    

   	
    

   	
    

   	
   Page

   
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   3.13

   	
    

   	
   Environmental Matters

   	
    

   	
   25

   
	
   3.14

   	
    

   	
   Absence of Changes

   	
    

   	
   25

   
	
   3.15

   	
    

   	
   Labor Relations; Compliance

   	
    

   	
   25

   
	
   3.16

   	
    

   	
   Real Property

   	
    

   	
   26

   
	
   3.17

   	
    

   	
   Compliance with Applicable Laws; Permits

   	
    

   	
   26

   
	
   3.18

   	
    

   	
   Absence of Interest Bearing Indebtedness

   	
    

   	
   27

   
	
    

   	
    

   	
    

   	
    

   	
    

   
	
   ARTICLE IV          REPRESENTATIONS
   AND WARRANTIES OF PARENT AND MERGER SUB

   	
    

   	
   27

   
	
    

   	
    

   	
    

   	
    

   	
    

   
	
   4.1

   	
    

   	
   Due Incorporation

   	
    

   	
   27

   
	
   4.2

   	
    

   	
   Due Authorization

   	
    

   	
   27

   
	
   4.3

   	
    

   	
   Consents and Approvals; No Violations

   	
    

   	
   27

   
	
   4.4

   	
    

   	
   Parent’s and Merger Sub’s Examination

   	
    

   	
   28

   
	
   4.5

   	
    

   	
   Broker

   	
    

   	
   28

   
	
   4.6

   	
    

   	
   Investigation; Limitation on Warranties

   	
    

   	
   28

   
	
   4.7

   	
    

   	
   Available Funds

   	
    

   	
   29

   
	
   4.8

   	
    

   	
   Solvency

   	
    

   	
   29

   
	
   4.9

   	
    

   	
   Acquisition for Investment

   	
    

   	
   29

   
	
   4.10

   	
    

   	
   Plant Closings and Mass Lay-Offs

   	
    

   	
   29

   
	
    

   	
    

   	
    

   	
    

   	
    

   
	
   ARTICLE V           COVENANTS

   	
    

   	
   29

   
	
    

   	
    

   	
    

   	
    

   	
    

   
	
   5.1

   	
    

   	
   Access to Information and Facilities

   	
    

   	
   29

   
	
   5.2

   	
    

   	
   Conduct and Preservation of Business

   	
    

   	
   30

   
	
   5.3

   	
    

   	
   Exclusivity

   	
    

   	
   31

   
	
   5.4

   	
    

   	
   Efforts

   	
    

   	
   31

   
	
   5.5

   	
    

   	
   Maintenance of Insurance

   	
    

   	
   32

   
	
   5.6

   	
    

   	
   Supplemental Information

   	
    

   	
   32

   
	
   5.7

   	
    

   	
   Preservation of Records; Post-Closing Access and
   Cooperation; Litigation Support

   	
    

   	
   33

   
	
   5.8

   	
    

   	
   Employees and Benefits

   	
    

   	
   33

   
	
   5.9

   	
    

   	
   Public Announcements

   	
    

   	
   34

   
	
   5.10

   	
    

   	
   Indemnification of Directors and Officers

   	
    

   	
   34

   
	
   5.11

   	
    

   	
   Filing of Tax Returns; Tax Matters

   	
    

   	
   35

   



 



 ii
 









 


	
   

   	
    

   	
    

   	
    

   	
   Page

   
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.12

  	
   

  	
  Stockholders Action

  	
   

  	
  35

  
	
  5.13

  	
   

  	
  Release

  	
   

  	
  35

  
	
  5.14

  	
   

  	
  Redemption of Preferred Stock

  	
   

  	
  36

  
	
  5.15

  	
   

  	
  Execution of Stockholder Support Agreements

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI          CONDITIONS
  PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.1

  	
   

  	
  Warranties True as of Present Date

  	
   

  	
  37

  
	
  6.2

  	
   

  	
  Compliance with Agreements and Covenants

  	
   

  	
  37

  
	
  6.3

  	
   

  	
  Competition Filings

  	
   

  	
  37

  
	
  6.4

  	
   

  	
  No Prohibition or Proceeding

  	
   

  	
  37

  
	
  6.5

  	
   

  	
  Stockholder Approval

  	
   

  	
  38

  
	
  6.6

  	
   

  	
  Documents

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII        CONDITIONS
  PRECEDENT TO OBLIGATIONS OF THE COMPANY

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.1

  	
   

  	
  Warranties True as of Present Date

  	
   

  	
  40

  
	
  7.2

  	
   

  	
  Compliance with Agreements and Covenants

  	
   

  	
  40

  
	
  7.3

  	
   

  	
  Competition Filings

  	
   

  	
  40

  
	
  7.4

  	
   

  	
  No Prohibition or Proceeding

  	
   

  	
  40

  
	
  7.5

  	
   

  	
  Documents

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII       TERMINATION

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.1

  	
   

  	
  Termination

  	
   

  	
  41

  
	
  8.2

  	
   

  	
  Effect of Termination

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX         MISCELLANEOUS

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.1

  	
   

  	
  Expenses

  	
   

  	
  42

  
	
  9.2

  	
   

  	
  Survival of Representations and Warranties

  	
   

  	
  42

  
	
  9.3

  	
   

  	
  Amendment

  	
   

  	
  43

  
	
  9.4

  	
   

  	
  Notices

  	
   

  	
  43

  
	
  9.5

  	
   

  	
  Waivers

  	
   

  	
  43

  
	
  9.6

  	
   

  	
  Counterparts

  	
   

  	
  44

  
	
  9.7

  	
   

  	
  Interpretation

  	
   

  	
  44

  
	
  9.8

  	
   

  	
  APPLICABLE LAW

  	
   

  	
  44

  



 



 iii
 









 


	
   

   	
    

   	
    

   	
    

   	
   Page

   
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.9

  	
   

  	
  Binding Agreement

  	
   

  	
  44

  
	
  9.10

  	
   

  	
  Assignment

  	
   

  	
  44

  
	
  9.11

  	
   

  	
  Absence of Third Party Beneficiaries

  	
   

  	
  44

  
	
  9.12

  	
   

  	
  Further Assurances

  	
   

  	
  45

  
	
  9.13

  	
   

  	
  Entire Understanding

  	
   

  	
  45

  
	
  9.14

  	
   

  	
  Specific Performance

  	
   

  	
  45

  
	
  9.15

  	
   

  	
  JURISDICTION OF DISPUTES

  	
   

  	
  45

  
	
  9.16

  	
   

  	
  WAIVER OF JURY TRIAL

  	
   

  	
  46

  
	
  9.17

  	
   

  	
  Disclosure Schedule

  	
   

  	
  46

  
	
  9.18

  	
   

  	
  Severability

  	
   

  	
  46

  
	
  9.19

  	
   

  	
  Construction

  	
   

  	
  47

  
	
  9.20

  	
   

  	
  Provision Respecting Representation of Company

  	
   

  	
  47

  
	
  9.21

  	
   

  	
  Authority and Rights of Representative; Limitations
  on Liability

  	
   

  	
  47

  



 



 iv














	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  –

  	
  Stockholder
  Support Agreement

  
	
   

  	
   

  	
   

  
	
  Exhibit B

  	
  –

  	
  Director
  Indemnification Agreements

  
	
   

  	
   

  	
   

  
	
  Exhibit C

  	
  –

  	
  Temporary Escrow
  Agreement

  
	
   

  	
   

  	
   

  
	
  DISCLOSURE SCHEDULE

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SCHEDULE I – FULLY DILUTED STOCKHOLDER TABLE

  
	
   

  
	
  SCHEDULE II – TARGET WORKING CAPITAL

  



 



 i














AGREEMENT AND PLAN OF MERGER


THIS AGREEMENT AND PLAN OF MERGER is made as June 6,
2007, by and among THE TECHS HOLDINGS, INC., a Delaware corporation (“Company”),
STEEL DYNAMICS, INC., an Indiana corporation (“Parent”), a newly-formed
Delaware corporation (“Merger Sub”) to be organized and wholly-owned by
Parent.  Certain capitalized terms used
herein are defined in Article I.


W  I  T  N  E  S  S
E  T  H:


WHEREAS, upon the terms and subject to the conditions
set forth in this Agreement, Parent, Merger Sub and the Company have approved
the acquisition of the Company by Parent, by means of a merger of Merger Sub
with and into the Company (the “Merger”), with the Company continuing as
the surviving corporation and a wholly owned subsidiary of Parent (as such, the
“Surviving Corporation”);


WHEREAS, the boards of directors of Parent, Merger Sub
and the Company each have (i) determined that the Merger is advisable and fair
to, and in the best interests of their respective stockholders and (ii)
approved this Agreement and the transactions contemplated hereby; and


WHEREAS, Parent and the Company will, on or prior to
June 13, 2007, enter into stockholder support agreements in the form attached
hereto as Exhibit A (the “Stockholder Support Agreements”) with
Fully-Diluted Stockholders holding 95% of the outstanding Common Stock  pursuant to which such stockholders will
agree to vote all of the shares of Common Stock owned by them in favor of the
Merger and the adoption of this Agreement by the Company, upon the terms and
conditions set forth in the Stockholder Support Agreements.


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


ARTICLE I


DEFINITIONS


1.1           Definitions.  The following terms shall have the following
meanings for the purposes of this Agreement:


“2004 Stock Incentive Plan” shall mean the 2004
Stock Incentive Plan of The Techs Holdings, Inc.


“280G Approval” shall have the meaning set
forth in Section 5.12.


“Affiliate” shall mean, with respect to any
specified Person, any other Person which, directly or indirectly, controls, is
under common control with, or is controlled by, such specified Person.


“Agreement” shall mean this Agreement,
including the Disclosure Schedule and all other exhibits and schedules hereto,
as it and they may be amended from time to time.












“Audited Balance Sheet” shall mean the audited
consolidated balance sheet of the Company and the Subsidiary dated as of
December 31, 2006, included in the Financial Statements and set forth in the
Disclosure Schedule.


“Benefit Plans” shall have the meaning set
forth in Section 3.7(b).


“Business Day” shall mean any day other than a
Saturday, Sunday or other day on which banking institutions in the State of New
York are authorized or required by law or other action of a Governmental
Authority to close.


“Cash” shall mean the aggregate amount of cash,
cash equivalents, marketable securities, instruments and deposits of the
Company and the Subsidiary.


“Certificate” shall mean a stock certificate
which immediately prior to the Effective Time represents shares of Common
Stock.


“Certificate of Incorporation” shall mean the
Certificate of Incorporation of the Company, as amended from time to time, and
as filed as of the date hereof with the Secretary of State of the State of
Delaware.


“Certificate of Merger” shall have the meaning
set forth in Section 2.3.


“Claims” shall have the meaning set forth in Section
5.13.


“Closing” shall mean the consummation of the
transactions contemplated herein.


“Closing Date” shall have the meaning set forth
in Section 2.2.


“Closing Date Statement” shall have the meaning
set forth in Section 2.12(c).


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


“Common Stock” shall have the meaning set forth
in Section 3.1(b).


“Common Stockholder” and “Common
Stockholders” shall mean each of the holders of the Company’s common stock
as set forth on Schedule I hereto and, as of the Closing Date, shall
include each Person who holds Common Stock upon exercise of the Options.


“Company” shall have the meaning set forth in
the Preamble.


“Company Claim” shall have the meaning set
forth in Section 5.13(b).


“Company Intellectual Property” shall have the
meaning set forth in Section 3.4.


“Company Letters of Credit” shall have the
meaning set forth in Section 2.13.


“Company Permits” shall have the meaning set
forth in Section 3.17.


“Company Releasee” shall have the meaning set
forth in Section 5.13(b).



 2
 








“Company Releasor” shall have the meaning set
forth in Section 5.13(b).


“Competing Transaction” shall have the meaning
set forth in Section 5.3.


“Confidentiality Agreement” shall mean the
Confidentiality & Non-Disclosure Agreement, executed as of February 7,
2007, between the Company and Parent relating to the transactions contemplated
hereby.


“Contamination” or “Contaminated” shall
mean the presence of Hazardous Substances in, on or under the land, soil,
substrata, sediment, drinking water, groundwater, surface water, air or other
environmental media or terrestrial or aquatic biota to an extent that any
Response Action is legally required by an Governmental Authority under any
Environmental Law with respect to such presence of Hazardous Substances.


“Credit Suisse Pay-off Letter” shall mean the
meaning set forth in Section 2.10(b)(v)(B).


“Designated Contacts” shall have the meaning
set forth in Section 5.1(a).


“DGCL” shall mean the Delaware General
Corporation Law, as amended.


“Director Indemnification Agreements” shall
mean the Director Indemnification Agreements between the Company and the
Subsidiary and each member of the Company’s board of directors, in the form
attached hereto as Exhibit B.


“Disclosure Schedule” shall mean the Disclosure
Schedule delivered by the Company to Parent and Merger Sub on the date of this
Agreement, as amended, modified or supplemented in accordance with Section
5.6(a) or Section 9.3.


“Dissenting
Shares” shall have the meaning set forth in Section 2.8.


“Dollars” or numbers preceded by the symbol “$”
shall mean amounts in United States Dollars, unless otherwise noted.


“Effective Time” shall have the meaning set
forth in Section 2.3.


“Employees” shall have the meaning set forth in
Section 5.8.


“Environmental Law” shall mean any federal,
state or local statute, order, regulation or ordinance pertaining to the
protection of the environment and any applicable orders, judgments, decrees,
permits, licenses or other authorizations or mandates under such laws, each as
in existence on the date hereof.


“Environmental Reports” shall have the meaning
set forth in Section 3.13(a).


“ERISA” shall mean the Employee Retirement
Income Security Act of 1974, as amended.


“Escrow Agent” shall mean HSBC Bank USA, a New
York banking corporation, or another financial institution designated by the
Representative and Parent.



 3
 








“Estimated Cash” shall have the meaning set
forth in Section 2.12(a).


“Estimated Merger Consideration” shall have the
meaning set forth in Section 2.10(b).


“Estimated Working Capital” shall have the
meaning set forth in Section 2.12(a).


“Final Cash” shall mean the final determination
of Cash as reflected in the Final Closing Date Statement in accordance with Section
2.12(e).


“Final Closing Date Statement” shall have the
meaning set forth in Section 2.12(e).


“Final Merger Consideration” shall have the
meaning set forth in Section 2.12(b).


“Final Working Capital” shall mean the final
determination of Working Capital as reflected in the Final Closing Date
Statement in accordance with Section 2.12(e).


“Financial Statements” shall mean the
following:


(a)           the
audited consolidated financial statements of the Company and the Subsidiary as
of December 31, 2005 and December 31, 2006 (including all notes thereto) which
are included in the Disclosure Schedule consisting of the consolidated balance
sheet at such date and the related consolidated statements of operations,
changes in shareholders equity and comprehensive income and cash flows for the
fiscal year then ended; and


(b)           the
unaudited consolidated financial statements of the Company and the Subsidiary
as of  April 30, 2007, which are included
in the Disclosure Schedule, consisting of the consolidated balance sheet at
such date and the related consolidated statements of earnings and cash flows
for the four month period then ended.


“Foreign Governmental Approval” shall have the
meaning set forth in Section 5.4(b).


“Fully-Diluted Outstanding Stock” shall mean
the total number of shares of Common Stock outstanding (determined on a
fully-diluted, as-if-exercised basis and assuming the exercise of all
outstanding Options, whether or not exercised, exercisable or vested).


“Fully-Diluted Stockholder” means each holder
of the Fully-Diluted Outstanding Stock (including the Options) as set forth on
Schedule I hereto.


“Fully-Diluted Stockholder Proceeds” shall have
the meaning set forth in Section 2.10(b).


“GAAP” shall mean U.S. generally accepted
accounting principles.


“Governmental Authority” shall mean any U.S.,
state, local or foreign governmental, regulatory or administrative body, agency
or authority, any court or judicial authority or arbitration tribunal, whether
national, Federal, state or local or otherwise, or any Person lawfully
empowered by any of the foregoing to enforce or seek compliance with any
applicable law, statute, regulation, order or decree.



 4
 








“Hazardous Substance” shall mean petroleum, any
petroleum based product, polychlorinated biphenyls, asbestos, radon, mold, any
hazardous, toxic or radioactive substance, material or waste as such terms are
defined, listed or regulated under any Environmental Law, and any other
contaminant, pollutant, substance, chemical, material or waste regulated
pursuant to, or with respect to which liability may be imposed under, any
Environmental Law.


“HSR Act” shall mean the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, and the regulations promulgated
thereunder.


“Interest Bearing Indebtedness” shall mean,
with respect to any Person, and without duplication, any obligation of such
Person for borrowed money, whether or not interest is charged, and further whether
or not reflected on the face of the balance sheet contained in the Financial
Statements, provided, that, Interest Bearing Indebtedness will
exclude (i) all letters of credit and similar instruments, including Company
Letters of Credit, (ii) any operating lease obligations, (iii) all intercompany
indebtedness, obligations or liabilities, (iv) all hedging and similar
obligations and liabilities relating to commodities used in the operation of
the Company’s or the Subsidiary’s business and (v) any obligations, premiums or
receivables relating to any captive insurance or other self-insurance policies
or programs.


“Initial Closing Date Statement” shall have the
meaning set forth in Section 2.12(a).


“Knowledge of the Company” shall mean the
actual knowledge of Wilson J. Farmerie, Ronald J. McCormick and James S.
Anderson.


“Latest Balance Sheet” shall mean the unaudited
consolidated balance sheet of the Company and the Subsidiary dated as of April
30, 2007, set forth in the Disclosure Schedule.


“Lease” shall have the meaning set forth in Section
3.16(a).


“Leased Real Property” shall have the meaning
set forth in Section 3.16(a).


“Letter of Transmittal” shall have the meaning
set forth in Section 2.10(d)(i).


“Liabilities” shall have the meaning set forth
in Section 3.2(b).


“Lien” shall mean all liens, encumbrances,
mortgages, charges, claims, restrictions, pledges, security interests, title
defects, easements, rights of way, covenants and encroachments.


“Loss” or “Losses” shall mean any and
all actually incurred out-of-pocket losses, liabilities, deficiencies, fines,
costs, provable damages, penalties and expenses (including reasonable attorneys’
fees and expenses and litigation, settlement and judgment and interest costs),
and any legal or other expenses reasonably incurred in connection with
investigating or defending any claims or actions but not including special,
speculative, punitive, indirect, incidental, or consequential damages or
damages relating to business interruption or lost profits (even if advised of
the possibility thereof), or, in particular, no “multiple of profits” or “multiple
of cash flow” or similar valuation methodology shall be used in the calculating
the amount of any Losses.  All Losses
shall be net of any other recoveries realized or to be realized by a Person and
its Affiliates.



 5
 








“Material Adverse Effect” shall mean any effect
or change that would be materially adverse to the business, assets, condition
(financial or otherwise), operating results, or operations of the Company or
the Subsidiary, taken as a whole, including without limitation, earthquakes,
tornadoes, hurricanes, floods, fires, explosions, and acts of God which render
one (1) or more of the Company’s plants to be inoperable and unlikely to be
rendered operable within a period of not less than ninety (90) days; provided,
however, that in determining whether there has been a Material Adverse
Effect, any adverse effect principally attributable to any of the following
shall be disregarded:  (i) general
economic, business, industry or financial market conditions (whether in the
United States or internationally), including, without limitation conditions
affecting generally the industries served by the Company and the Subsidiary;
(ii) the taking of any action required or permitted by this Agreement or the
Related Agreements; (iii) the entry into and announcement of this Agreement or
pendency of the Merger, (iv) the breach of this Agreement or any Related
Agreement by Parent or Merger Sub, (v) the taking of any action with the written
approval of Parent, (vi) acts of war, sabotage, terrorism, military actions or
the escalation thereof; (vii) any changes in applicable laws, regulations or
accounting rules, including GAAP or interpretations thereof; and (viii) any
adverse change in or effect on the business of the Company and the Subsidiary
that is cured by or on behalf of the Company before the earlier of the Closing
Date and termination of this Agreement as set forth in Article VIII.


“Material Contracts” shall have the meaning set
forth in Section 3.5.


“Measurement Time” shall mean (i) if the
Closing Date is July 2, 2007, the close of business on June 30, 2007, or (ii)
if the Closing Date is not July 2, 2007, the close of business on the Business
Day immediately preceding the Closing Date.


“Multiemployer Plan” shall have the meaning set
forth in Section 3(37) of the Code.


“Merger” shall have the meaning set forth in
the Recitals.


“Merger Consideration” shall mean have the
meaning set forth in Section 2.10(a).


“Merger Sub” shall have the meaning set forth
in the Preamble.


“Option Assignment Agreement” shall mean the
outstanding options to purchase shares of Common Stock.


“Optionholder” and “Optionholders” means
each of the holders of the Company’s Options as set forth on Schedule I
hereto.


“Options” shall mean the outstanding options to
purchase shares of Common Stock under the 2004 Stock Incentive Plan.


“Option Proceeds” shall mean the amount
determined by multiplying (i) the number of unexercised Options outstanding
immediately prior to the Closing by (ii) the exercise price for all of the
Options in clause (i) as set forth on Schedule I hereto.


“Owned Real Property” shall have the meaning
set forth in Section 3.16(b).



 6
 








“Ownership Percentage” shall mean the
percentage set forth opposite each Fully-Diluted Stockholder’s name on Schedule
I hereto.


“Parent” shall have the meaning set forth in
the Preamble.


“Per Option Merger Consideration” shall mean,
with respect to each Option, the Per Share Common Stock Merger Consideration minus
(b) the exercise price of such Option as set forth on Schedule I hereto.


“Per Share Common Stock Merger Consideration”
shall mean, with respect to each share of Common Stock, the per share cash
amount determined by dividing (A) the sum of: (i) the Fully-Diluted
Stockholder Proceeds, (ii) the Option Proceeds and (iii) the Temporary Escrow
Amount (less any distributions to Parent from such amount made in accordance
with Section 2.12(g))  by
(B) the Fully-Diluted Outstanding Stock.


“Permitted Liens” shall mean (a) Liens for
Taxes, assessments and governmental charges or levies not yet delinquent or for
which adequate reserves are maintained on the financial statements of the
Company and the Subsidiary as of the Closing Date; (b) Liens imposed by law,
such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s liens
and other similar liens arising in the ordinary course of business securing
obligations that are not overdue for a period of more than 60 days or which
have been determined in good faith by the Company to be invalid and are being
contested in good faith by appropriate proceedings; (c) to the extent disclosed
in the Disclosure Schedule, pledges or deposits to secure obligations under
workers’ compensation laws or similar legislation or to secure public or
statutory obligations; (d) to the extent disclosed in the Disclosure Schedule,
deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations
of a like nature incurred in the ordinary course of business consistent with
past practice, (e) all matters of record which constitute “survey exceptions”
and all applicable zoning, entitlement, conservation restrictions and other
land use and environmental regulations, (f) all exceptions, restrictions,
easements, charges, rights-of-way and other Liens set forth in any permits, any
deed restrictions, groundwater or land use limitations or other institutional
controls utilized in connection with any required environmental remedial
actions, or other state, local or municipal franchise applicable to the Company
or the Subsidiary or any of their respective properties, (g) Liens securing the
obligations of the Company or the Subsidiary under the Senior Credit Agreement,
(h) Liens specifically identified as “Liens” in the Disclosure Schedule; and
(i) Liens which are not material.


“Person” shall mean an individual, corporation,
partnership, joint venture, trust, association, estate, joint stock company,
limited liability company, Governmental Authority or any other organization of
any kind (other than the Company or the Subsidiary).


“Referral Firm” shall have the meaning set
forth in Section 2.12(e).


“Related Agreements” shall mean the Temporary
Escrow Agreement, the Stockholder Support Agreements, the releases provided for
by Section 5.13(b), the Confidentiality Agreement and any other contract
which is or is to be entered into by the Company and/or the Fully-Diluted
Stockholders at the Closing or otherwise pursuant to this Agreement or in
connection with the 



 7
 








transactions contemplated
hereby.  The Related Agreements executed
by a specified Person shall be referred to as “such Person’s Related
Agreements,” “its Related Agreements” or another similar expression.


“Release” means, for purposes of Section
3.13 and related definitions, disposing, discharging, injecting, spilling,
leaking, leaching, dumping, emitting, escaping, emptying, seeping, placing and
the like.


“Releasee” shall have the meaning set forth in Section
5.13(a).


“Releasor” shall have the meaning set forth in Section
5.13(a).


“Representative” shall mean The Jordan Company,
L.P. who has been authorized and appointed under the Stockholder Support
Agreements to act as the true and lawful attorney and representative for the Fully-Diluted
Stockholders in connection with the transactions contemplated by this Agreement
and the Related Agreements as provided therein.


“Response Action” shall mean any action taken
to investigate, abate, remediate, remove or mitigate any violation of Environmental
Law, any Contamination of any property owned, leased or occupied by the Company
or the Subsidiary or any Release or threatened Release of Hazardous
Substances.  Without limitation, Response
Action shall include any action that would be a response as defined by the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended at the date of Closing, 42 U.S.C. §9601 (25).


“SEC” shall mean the Securities and Exchange
Commission.


“Securities Act” shall mean the Securities Act
of 1933, as amended.


“Seller Group” shall have the meaning set forth
in Section 9.20.


“Senior Credit Agreement” shall mean the
Amended and Restated Credit Agreement dated as of August 3, 2006, by and among
The Techs Industries, Inc., a Delaware corporation, each of the Guarantors (as
therein defined), the Lenders (as therein defined), National City Bank, as
Syndication Agent, Wachovia Bank, National Association, as Co-Documentation
Agent, Manufacturers Traders Trust Company, as Co-Documentation Agent, and PNC
Bank, National Association, in its capacity as administrative agent for the
Lenders, as further amended, restated or otherwise modified from time to time
and, in each case, all agreements and documents executed in connection
therewith.


“Senior Lender” shall mean the lending
institutions party to the Senior Credit Agreement.


“Senior Lender Pay-off Letter” shall have the
meaning set forth in Section 2.10(b)(i).


“Series A Preferred Stock” shall have the
meaning set forth in Section 3.1(b).


“Stock Units” shall mean the vested Stock Units
as defined and determined in accordance with the Stock Unit Letter Agreement.



 8
 








“Stock Unit Holder” shall mean Wilson J.
Farmerie.


“Stock Unit Letter Agreement” shall mean the
letter agreement between the Company and the Stock Unit Holder dated January
14, 2004, as amended.


“Stock Unit Pay-off Letter” shall have the
meaning set forth in Section 2.10(b)(vii).


“Stockholder Support Agreement” shall have the
meaning set forth in the Recitals.


“Subsidiary” shall mean The Techs Industries,
Inc.


“Surviving Corporation” shall have the meaning
set forth in the Recitals.


“Target Working Capital” shall mean
$24,954,000, calculated as set forth in Schedule II attached hereto.


“Tax Benefit Payments” shall mean, in relation
to payments made pursuant to Section 2.10(b), as follows: (a) payments
to Optionholders; (b) payment to the Stock Unit Holder under the Stock Unit
Letter Agreement; (c) sale bonus payments to Employees; and (d) the amount of
unamortized fees written off in connection with the payoff of the Senior Credit
Agreement.


“Tax Returns” shall mean any report, return
(including any information return), declaration or other filing required to be
supplied to any taxing authority or jurisdiction with respect to Taxes,
including any amendments or attachments to such reports, returns, declarations
or other filings.


“Taxes” shall mean all taxes, charges, fees,
duties, levies or other assessments which are imposed by the United States, or
any state, local or foreign government or subdivision or agency thereof, and
such term shall include any interest, penalties or additions to tax
attributable to such Taxes.


“Temporary Escrow Agreement” shall mean the
Temporary Escrow Agreement, dated the Closing Date among Parent, the Escrow
Agent and the Representative, on behalf of the Fully-Diluted Stockholders, in
the form of Exhibit C hereto.


“Temporary Escrow Amount” shall have the
meaning set forth in Section 2.10(b)(iv).


“The Techs” shall mean The Techs, a
Pennsylvania limited partnership.


“The Techs Note” shall mean the Subordinated
Promissory Note dated June 30, 2006 and in the amount of $20,000,000 issued by
the Subsidiary in favor of The Techs.


“The Techs Pay-off Letter” shall have the
meaning set forth in Section 2.10(b)(ii).


“TJC Buy-Out and Termination Payments” means
payments made in consideration of the buy-out and termination of the TJC
Consulting Agreement.



 9
 








“TJC Consulting Agreement” shall mean the TJC
Management Consulting Agreement, dated as of January 14, 2004, by and between
The Jordan Company, L.P. and The Techs Holdings, Inc.


“TJC Pay-off Letter” shall have the meaning set
forth in Section 2.10(b)(v)(A).


“Transaction Tax Benefits” shall mean Tax
benefits in an amount equal to (i) the aggregate amount of Tax Benefit Payments
made by the Company and the Subsidiary in connection with the transactions
contemplated by this Agreement and that are deductible for U.S. federal income
tax purposes, multiplied by (ii) a combined marginal federal, state and local
income tax rate of 40% (the “Combined Marginal Rate”), in each case
assuming (a) the Company and the Subsidiary can currently fully utilize such
Tax benefits against income taxes payable at the Combined Marginal Rate and (b)
for state and local income Tax purposes, the Company and the Subsidiary can
utilize such Tax benefits at the same time and in the same amounts as such
parties can utilize such Tax benefits for U.S. federal income tax purposes; provided,
however, that in no case shall the Transaction Tax Benefits exceed
$9,000,000.


“Transaction Tax Benefits Notice” shall have
the meaning set forth in Section 2.10(a)(iv).


“WARN Act” shall mean the Worker Adjustment and
Retraining Notification Act of 1988, as amended.


“Withholding Taxes” shall have the meaning set
forth in Section 2.10(d)(vi).


“Working Capital” shall mean the amount by
which (a) the aggregate current assets of the Company and the Subsidiary on a
consolidated basis exceeds (b) the aggregate current liabilities of the Company
and the Subsidiary on a consolidated basis, calculated in accordance with the
calculation of Target Working Capital set forth on Schedule II and on a basis
consistent with the methodologies, policies, practices, classifications,
judgments, estimation techniques, assumptions and principles currently used by
the Company and the Subsidiary in its Financial Statements, provided, however,
that (i) “current assets” shall exclude (A) all Cash of the Company and the
Subsidiary, and (B) all deferred Tax assets (for clarity, up to $500,000 in
respect of the overpayment of U.S. Federal Income Taxes shall be included in
current assets), and (ii) “current liabilities” shall exclude (A) all amounts,
fees and expenses paid or payable in accordance with Section 2.10(b) and
including any related accruals or reserves therefor, (B) all deferred Tax
liabilities, (C) Interest Bearing Indebtedness and any of the items excluded
therefrom pursuant to clauses (i) through (v) of the definition thereof, (D) to
the extent and limited to those obligations disclosed in the Disclosure Schedule,
any deferred compensation, Benefit Plans or any termination, severance or
similar obligation in respect of officers and employees (whether arising in
connection with this Agreement, under applicable law, or otherwise), (E) all
capital leases, (F) all mortgages, (G) all interest rate derivative, hedging,
swap and similar obligations and liabilities, and (H) any reserves and accruals
relating to litigation and claims set forth on Section 3.9 of the Disclosure
Schedule.  For purposes of this
definition, including the calculation of “current assets” and “current
liabilities,” and Article II, the parties shall disregard any
adjustments arising from purchase accounting or otherwise arising out of the
transactions contemplated by this Agreement.



 10














ARTICLE II


MERGER OF MERGER SUB INTO
THE COMPANY


2.1                                 Merger.  Upon the terms and subject to the conditions
set forth in this Agreement, at the Effective Time, Merger Sub shall be merged
with and into the Company in accordance with the terms of, and subject to the
conditions set forth in, this Agreement and the DGCL.  Following the Merger, the Company shall
continue as the Surviving Corporation and the separate corporate existence of
Merger Sub shall cease.


2.2                                 Closing.  The Closing shall take place at the offices
of Mayer, Brown, Rowe & Maw LLP, 1675 Broadway, New York, New York 10019,
at 10:00 A.M. on the latest of:  (i) July
2, 2007 or (ii) three (3) Business Days after the satisfaction or waiver of the
conditions precedent set forth in Sections 6.3 and 7.3 or (iii)
such other date, time and place as may be agreed by Parent, the Company and the
Representative; provided, however, that the date of the Closing
shall be automatically extended from time to time for so long as any of the
conditions set forth in Articles VI and VII shall not be
satisfied or waived, subject, however, to the provisions of Section 8.1.  The date on which the Closing occurs in
accordance with the preceding sentence is referred to in this Agreement as the “Closing
Date.”


2.3                                 Effective
Time.  Contemporaneously with the
Closing, the parties hereto shall cause a Certificate of Merger meeting the
requirements of Section 251 of the DGCL (the “Certificate of Merger”) to
be properly executed and filed with the Secretary of State of the State of
Delaware in accordance with the terms and conditions of the DGCL.  The Merger shall become effective at the time
of filing of the Certificate of Merger with the Secretary of State of the State
of Delaware in accordance with the DGCL, or at such later time which the
parties hereto shall have agreed upon and designated in such filing as the
effective time of the Merger (the “Effective Time”).


2.4                                 Effects
of the Merger.  The Merger shall have
the effects set forth in the applicable provisions of the DGCL.  Without limiting the generality of the
foregoing and subject thereto, at the Effective Time all the property, rights,
privileges, immunities, powers and franchises of the Company and Merger Sub
shall vest in the Surviving Corporation, and all debts, liabilities,
obligations and duties of the Company and Merger Sub shall become the debts,
liabilities, obligations and duties of the Surviving Corporation.


2.5                                 Certificate
of Incorporation and By Laws.  The
certificate of incorporation and by laws of Merger Sub in effect immediately
prior to the Effective Time shall be the certificate of incorporation and by
laws of the Surviving Corporation as of the Effective Time, until duly amended
in accordance with applicable law.


2.6                                 Directors
and Officers.  Until duly removed or
until successors are duly elected or appointed and qualified, the directors of
Merger Sub immediately prior to the Effective Time shall be the directors of
the Surviving Corporation as of the Effective Time and the officers of the
Company immediately prior to the Effective Time shall be the officers of the
Surviving Corporation as of the Effective Time.



 11
 








2.7                                 Conversion
of Shares.  At the Effective Time:


(a)                                  By
virtue of the Merger and without any action on the part of any party:


(i)                                     Each
share of common stock, par value $0.01 per share, of Merger Sub issued and
outstanding immediately prior to the Effective Time shall remain outstanding
and shall represent one share of common stock, par value $0.01 per share, of
the Surviving Corporation, so that, after the Effective Time, Parent shall be
the holder of all of the issued and outstanding shares of the Surviving
Corporation’s common stock.


(ii)                                  Each
share of the Company’s Common Stock issued and outstanding immediately prior to
the Effective Time (other than Dissenting Shares) and all rights in respect
thereof, shall by virtue of the Merger and without any action on the part of
the holder thereof, be converted into the right to receive the payment set
forth in Section 2.10(c), in cash, payable to the holder thereof without
interest, on the terms and subject to the conditions set forth in Section
2.10(d), and such shares shall otherwise cease to be outstanding, shall be
canceled and retired and cease to exist.


(iii)                               Each
share of Common Stock held in the treasury of the Company immediately prior to
the Effective Time shall be cancelled and retired without any conversion
thereof, and no payment or distribution shall be made with respect thereto.


(iv)                              Each
issued and outstanding share of Series A Preferred Stock shall be redeemed as
provided in this Agreement.


2.8                                 Dissenting
Shares.  Notwithstanding any other
provision of this Agreement to the contrary, shares of Common Stock that are
outstanding immediately prior to the Effective Time and which are held by stockholders
who shall have not voted in favor of the Merger or consented thereto in writing
and who shall have properly demanded and are entitled to appraisal for such
shares in accordance with Section 262 of the DGCL (collectively, the “Dissenting
Shares”) shall not be converted into or represent the right to receive the
Per Share Common Stock Merger Consideration. 
Such stockholders instead shall be entitled to receive payment of the
appraised value of such shares of Common Stock held by them in accordance with
the provisions of Section 262 of the DGCL, except that all Dissenting Shares
held by stockholders who shall have failed to perfect or who effectively shall
have withdrawn or otherwise are not entitled to appraisal of such shares of
Common Stock under such Section 262 of the DGCL shall thereupon be deemed to
have been converted into and to have become exchangeable, as of the Effective
Time, for the right to receive, without any interest thereon, the appropriate
Per Share Common Stock Merger Consideration upon surrender in the manner
provided in Sections 2.10 and 2.12(g), of the Certificate or
Certificates that, immediately prior to the Effective Time, evidenced such
shares of Common Stock.  The
Fully-Diluted Stockholders who have voted in favor of the Merger, and not the
Surviving Corporation, shall be responsible for any appraisal action under
Section 262 of the DGCL brought by the holders of Dissenting Shares.


2.9                                 Options.  Schedule I contains the names of the holders
of Options, the number of shares of the Common Stock that each such holder is
entitled to purchase, and the exercise price for all such Options.  Schedule I will be provided within seven (7)
days of the date of this 



 12
 








Agreement and may be updated from time to time prior
to the Closing Date by written notice from Representative to Parent.  The board of the directors of the Company
shall take all action necessary under the 2004 Stock Incentive Plan so that
immediately prior to the Effective Time (i) each Option which is unexercisable
or otherwise unvested shall automatically be deemed exercisable or otherwise
vested and (ii) all Options shall be automatically cancelled for the Per Option
Merger Consideration.


2.10                           Payment
of Merger Consideration


(a)                                  For
purposes of this Agreement, the “Merger Consideration” will be an
aggregate amount equal to:


(i)                                     Three
Hundred Sixty Million Dollars ($360,000,000);


(ii)                                  plus,
Estimated Cash;


(iii)                               plus,
the amount (if any) by which the Estimated Working Capital exceeds the Target
Working Capital or minus, the amount (if any) by which the Target
Working Capital exceeds the Estimated Working Capital; and


(iv)                              plus,
an amount equal to the Transaction Tax Benefits set forth in a written notice
to be delivered by the Company to Parent at least three (3) Business Days prior
to the closing (the “Transaction Tax Benefits Notice”).  Parent shall have 24 hours following receipt
of the Transaction Tax Benefits Notice to allege any non-conformance between
the calculation of the Transaction Tax Benefits as set forth in the Transaction
Tax Benefits Notice and the calculation as called for by this Agreement.


(b)                                 The
Merger Consideration paid at Closing (the “Estimated Merger Consideration”)
shall be set forth on the Initial Closing Date Statement and be subject to
adjustment all as provided in Section 2.12.  Parent shall pay the Estimated Merger
Consideration to the Company at the Closing and the Company shall apply the
Estimated Merger Consideration as follows:


(i)                                     to
pay all principal of, interest on, premium, if any, expenses and other amounts
owing to the Senior Lender in respect of the Senior Credit Agreement (except
for Company Letters of Credit pursuant to Section 2.13 and all
derivative, hedging, swap and similar obligations and liabilities excluded from
the definition of Interest Bearing Indebtedness), or such lesser amounts as
negotiated between the Company and the Senior Lender, as such amounts are set
forth in the pay-off, discharge and release letter in form and substance
reasonably acceptable to Parent executed by the Senior Lender and delivered to
the Company and Parent at the Closing (the “Senior Lender Pay-off Letter”);


(ii)                                  to
pay all principal of, interest on, premium, if any, expenses and other amounts
owing to The Techs in respect of The Techs Note, or such lesser amounts as
negotiated between the Company and The Techs, as such amounts are set forth in
the pay-off, discharge and release letter in form and substance reasonably
acceptable to Parent executed by The Techs and delivered to the Company and
Parent at the Closing (the “The Techs Pay-off Letter”);



 13
 








(iii)                               to
pay the redemption price, including all accrued and unpaid dividends through
the Closing Date, in respect of the Company’s Series A Preferred Stock redeemed
in accordance with Section 2.11;


(iv)                              to
pay and deposit two million dollars ($2,000,000) (the “Temporary Escrow
Amount”) to the escrow account established pursuant to the Temporary Escrow
Agreement;


(v)                                 to
pay (A) all accrued and unpaid management and consulting fees and expenses,
investment banking and financial advisory fees in connection with this
Agreement and the transactions contemplated hereby under the TJC Consulting
Agreement, including the TJC Buy-Out and Termination Payments, as such amounts
are set forth in the pay-off, discharge and release letter in form and
substance reasonably acceptable to Parent executed by The Jordan Company, L.P.
and delivered to the Company and Parent at the Closing (the “TJC Pay-off
Letter”), (B) fees and expenses to Credit Suisse Securities (USA) LLC as
investment banking and financial advisory fees in connection with this
Agreement and the transactions contemplated hereby, as set forth in the pay-off
letter executed by Credit Suisse Securities (USA) LLC and delivered to the
Company and Parent at the Closing (the “Credit Suisse Pay-off Letter”),
and (C) any other investment banking and financial advisory fees in connection
with this Agreement and the transactions contemplated hereby;


(vi)                              to
pay transaction fees and expenses incurred or payable by or on behalf of the
Company or the Subsidiary in connection with this Agreement and the
transactions contemplated hereby in accordance with this Agreement, including
those of all attorneys, accountants, actuaries, consultants, experts or other
professionals, if any, engaged by or on behalf of the Company or the Subsidiary
in connection with this Agreement and the transactions contemplated hereby and
any other amounts payable in connection with the consummation of the
transactions contemplated hereby;


(vii)                           to pay
amounts owing to the Stock Unit Holder pursuant to the Stock Unit Letter
Agreement as set forth in the pay-off, discharge and release letter in form and
substance reasonably acceptable to Parent executed by the Stock Unit Holder and
delivered to the Company and Parent at the Closing (the “Stock Unit Pay-off
Letter”);


(viii)                        to pay any
sale bonus payments to Employees payable in connection with the Merger; and


(ix)                                to
pay the remainder of the Estimated Merger Consideration after deduction of the
amounts set forth in clauses (b)(i) through (b)(viii) above (the “Fully-Diluted
Stockholder Proceeds”) to the Representative for distribution in accordance
with Section 2.10(c).


This Agreement does not constitute an obligation of
the Company to pay in full any obligations of the Company for which separate
pay-off amounts have been negotiated. 
Each of the foregoing payments shall be made by the wire transfer of
immediately available funds to such 



 14
 








account or accounts as are indicated by the
Representative in a “funds flow memo” to be delivered to Parent on or prior to
the Closing Date.


(c)                                  At
the Closing, the Representative shall pay out of the Fully-Diluted Stockholder
Proceeds, to the extent available and on a pro rata basis, (i) to each Common
Stockholder, the Per Share Common Stock Merger Consideration (for clarity, exclusive of the amount
contributed to the Temporary Escrow Amount in respect of such Common
Stockholder) for each share of Common Stock held by such Common Stockholder and (ii) to each
Optionholder the Per Option Merger Consideration (for clarity, exclusive of the amount contributed to the Temporary
Escrow Amount in respect of such Optionholder) for each Option held by
such Optionholder  and surrendered to the Representative,
in accordance with Section 2.10(d).


(d)                                 The
Company and the Representative shall comply with the following provisions
applicable to payment of the Per Share Common Stock Merger Consideration and
the Per Option Merger Consideration:


(i)                                     Prior
to the Effective Time, the Company will mail or will cause to be mailed to each
record holder of Certificates and Options a letter of transmittal in form and
substance reasonably satisfactory to Parent and the Company (the “Letter of
Transmittal”) which shall specify that delivery shall be effected only upon
proper delivery of the Certificates or an option assignment agreement (“Option
Assignment Agreement”), as applicable, together with such Letter of
Transmittal properly completed and duly executed, to the Representative, and
instructions for use in (1) surrendering such Certificates and receiving the
Per Share Common Stock Merger Consideration in respect of the Common Stock
evidenced thereby and (2) executing such Option Assignment Agreement and
receiving the aggregate Per Option Merger Consideration in respect of the
Options.  Upon the surrender of each such
Certificate or delivery of an Option Assignment Agreement, as applicable, a
properly completed and duly executed Letter of Transmittal and a duly executed
Stockholder Support Agreement, the Representative shall pay the holder of such
Certificate or Option an amount from the Fully-Diluted Stockholder Proceeds as
determined in accordance with Section 2.10(c), in consideration
therefor, and such Certificate or Option, as applicable, shall forthwith be
cancelled.  Until so surrendered, each
such Certificate or Option (other than Certificates representing Common Stock
held by the Company or the Subsidiary of the Company or held in the treasury of
the Company) shall represent solely the right to receive the Per Share Common
Stock Merger Consideration or Per Share Option Consideration relating thereto.


(ii)                                  After
the Effective Time, there shall be no transfers on the stock transfer books of
the Surviving Corporation of any shares of Common Stock that were outstanding
immediately prior to the Effective Time. 
If, after the Effective Time, Certificates formerly representing shares
of Common Stock are presented to the Surviving Corporation or the
Representative, they shall be surrendered and cancelled as provided in this Article
II.  If, after the Effective Time,
Option Assignment Agreement are delivered to the Surviving Corporation or the
Representation, the underlying Options shall be assigned and cancelled, as
provided in this Article II.



 15
 








(iii)                               No
interest shall accrue or be paid on the cash payable upon the delivery of
Certificates, Option Assignment Agreements or Letters of Transmittal.  Neither the Representative nor any party
hereto shall be liable to a Common Stockholder or Optionholder for any cash or
interest thereon delivered to a public official pursuant to any applicable
abandoned property, escheat or similar laws.


(iv)                              The
Representative will deliver or will cause to be delivered to the Surviving
Corporation, surrendered Certificates or Option Assignment Agreements and
Letters of Transmittal.  Common
Stockholders or Optionholders will be entitled to look only to the
Representative for payment of their claims for the consideration set forth in
this Section 2.10, without interest thereon.


(v)                                 In
the event that any Certificate shall have been lost, stolen or destroyed, upon
the making of an affidavit of that fact by the Person claiming such Certificate
to be lost, stolen or destroyed, the Representative will issue, or will cause
to be issued, in exchange for such lost, stolen or destroyed Certificate the
payments with respect to such Certificate to which such Person is entitled
pursuant to this Article II.


(vi)                              Prior
to the Closing Date, the Representative and Parent shall cooperate in
determining the need to deduct and withhold from payments payable to a holder
of a Certificate or Option any withholding and stock transfer taxes and such
other amounts as are required to be withheld under the Code or any applicable
provision of state, local or foreign tax law (collectively, the “Withholding
Taxes”).  To the extent that
Withholding Taxes are required to be deducted or withheld, the Company shall
reduce by the amount of such Withholding Taxes the Fully-Diluted Stockholder
Proceeds paid to the Representative for distribution pursuant to Section
2.10(c), and such deducted or withheld amounts shall be treated for all
purposes of this Agreement (including determination of Cash and Working
Capital) as having been paid to the holder of the Certificate or Option in
respect of which such deduction or withholding was made.  The Company shall provide to the
Representative, on behalf of the holder of such Certificate or Option, written
notice of any Withholding Taxes so deducted or withheld.  Any Withholding Taxes so withheld shall be
paid by the Surviving Corporation to the appropriate taxing authorities.


(vii)                           If
payment of any portion of the Merger Consideration in respect of the Common
Stock is to be made to a Person other than the Person in whose name a
surrendered certificate of Common Stock is registered, it shall be a condition
to such payment that the certificate of Common Stock so surrendered shall be
properly endorsed or shall be otherwise in proper form for transfer and that
the Person requesting such payment shall have paid any transfer and other Taxes
required by reason of such payment in a name other than that of the registered
holder of the certificate surrendered or shall have established to the
reasonable satisfaction of the Representative that such Taxes either have been
paid or are not payable.


2.11                           Redemption.  At the Closing, the Company shall redeem in
full the Company’s Series A Preferred Stock and each Person who is a holder of
such capital stock shall deliver to 



 16
 








the Company the certificates evidencing their shares
of Preferred Stock, as applicable, and the Company shall cancel such
certificates upon such redemption in full.


2.12                           Merger
Consideration Adjustment.


(a)                                  At
least two (2) Business Days prior to the Closing Date, the Company shall
deliver to Parent a certificate (the “Initial Closing Date Statement”),
executed by the Company, setting forth good faith estimates of (i) Cash as of
the Measurement Time (the “Estimated Cash”) and (ii) Working Capital as
of the Measurement Time (the “Estimated Working Capital”).


(b)                                 Subsequent
to the Closing and subject to Section 2.12(g), the Estimated Merger
Consideration shall be increased or decreased as follows:


(i)                                     minus
the amount (if any) by which Estimated Cash exceeds the Final Cash, or plus
the amount (if any) by which Final Cash exceeds Estimated Cash; and


(ii)                                  minus
the amount (if any) by which the Estimated Working Capital exceeds the Final
Working Capital, or plus the amount (if any) by which Final Working
Capital exceeds Estimated Working Capital.


The Estimated Merger Consideration, as so increased or
decreased in accordance with this Section 2.12(b), shall be the “Final
Merger Consideration” hereunder.


(c)                                  As
soon as reasonably practicable, but not later than thirty (30) calendar days
after the Closing Date, the Representative shall (i) prepare a statement of the
calculation of Cash and Working Capital, in each case as of the Measurement
Time, together with calculations of the Final Merger Consideration (the “Closing
Date Statement”), and (ii) deliver the Closing Date Statement to
Parent.  The Closing Date Statement shall
be prepared in accordance with GAAP applied on a basis consistent with the
methodologies, policies, practices, classifications, judgments, estimation techniques,
assumptions and principles used in the Financial Statements.


(d)                                 In
connection with the preparation of the Closing Date Statement, Parent shall
permit the Representative and its representatives reasonable access to books
and records, personnel, and facilities of the Company to permit it to prepare
the Closing Date Statement.  Parent shall
have the right to review the work papers of the Representative underlying or
utilized in preparing the Closing Date Statement and the calculation of the
Final Merger Consideration to the extent reasonably necessary to verify the
accuracy and fairness of the presentation of the Closing Date Statement and
calculation of the Final Merger Consideration in conformity with this
Agreement.


(e)                                  Within
thirty (30) calendar days after its receipt of the Closing Date Statement,
Parent shall either inform the Representative in writing that the Closing Date
Statement is acceptable or object thereto in writing, setting forth a specific
description of each of its objections.  If
Parent so objects and the parties do not resolve such objections on a mutually
agreeable basis within thirty (30) calendar days after the Representative’s
receipt of Parent’s objections, the remaining disputed items shall be resolved
within an additional thirty (30) calendar days by Deloitte & Touche LLP or
another mutually agreed accounting firm (the “Referral Firm”).  Parent shall make available to the
Representative (upon request following the 



 17
 








giving of any objection to the Closing Date Statement)
the workpapers of Parent generated in connection with its review of the Closing
Date Statement.  Upon the agreement of
the parties, the decision of the Referral Firm or if Parent fails to deliver an
objection to the Representative within the first 30-day period referred to
above, then the Closing Date Statement, as so adjusted (the “Final Closing
Date Statement”), shall be final, conclusive and binding against the
parties hereto. The statements of Cash and Working Capital set forth in the
Final Closing Statement shall be the “Final Cash” and “Final Working
Capital” for all purposes hereunder.


(f)                                    In
resolving any disputed item, the Referral Firm (i) shall be bound by the
provisions of this Section 2.12, (ii) may not assign a value to any item
greater than the greatest value claimed for such item or less than the smallest
value for such item claimed by either Parent or the Representative, (iii) shall
limit its decision to such items as are in dispute and (iv) shall make its
determination based solely on presentations by Parent and the Representative which
are in accordance with the guidelines and procedures set forth in this
Agreement (i.e. not on the basis of independent review).  The fees and expenses of the Referral Firm
shall be allocated between Parent and the Representative in such a way that (i)
Parent shall be responsible for that portion of the fees and expenses
multiplied by a fraction, the numerator of which is the aggregate dollar value
of disputed items submitted to the Referral Firm that are resolved against
Parent (as finally determined by the Referral Firm) and the denominator of
which is the total dollar value of the disputed items so submitted and (ii) the
Representative shall be responsible for the remaining amount of fees and
expenses, which such amount shall be paid out of the Temporary Escrow
Amount.  In the event of any dispute
regarding such allocation, the Referral Firm shall determine the allocation of
its fees and expenses as between Parent and the Representative in accordance
with such allocation methodology, such determination to be final and binding on
both Parent and the Representative.


(g)                                 Promptly
after their receipt of the Final Closing Date Statement, the Representative and
Parent shall compute the difference, if any, between the Estimated Merger
Consideration and the Final Merger Consideration.  If the Estimated Merger Consideration exceeds
the Final Merger Consideration, then Parent shall be entitled to receive,
promptly and in any event within five (5) Business Days, from the Fully-Diluted
Stockholders (in accordance with their Ownership Percentages) an amount in cash
equal to such excess amount, plus interest at the rate of five percent 5% per
annum from the Closing Date to the date of payment, to be paid solely out of
the Temporary Escrow Agreement.  PARENT
AGREES THAT ITS SOLE SOURCE OF RECOVERY UNDER THIS SECTION 2.12 SHALL BE
LIMITED TO, AND SHALL NOT EXCEED IN THE AGGREGATE, THE TEMPORARY ESCROW
AMOUNT.  If the Estimated Merger
Consideration is less than the Final Merger Consideration, the Representative
shall be entitled to receive, promptly and in any event within five (5)
Business Days, from Parent an amount in cash equal to such deficiency, plus
interest at the rate of five percent 5% per annum from the Closing Date to the
date of payment, which amount will be distributed by the Representative to the
Fully-Diluted Stockholders in accordance with their Ownership Percentages.


(h)                                 The
parties agree that the purpose of preparing the Closing Date Statement
hereunder is to measure the Cash and Working Capital as of the closing of
business on the Business Day immediately preceding the Closing Date in
accordance with GAAP applied on a basis consistent with the methodologies,
policies, practices, classifications, judgments, 



 18
 








estimation techniques, assumptions and principles used
in the preparation of the calculation of Target Working Capital and the Initial
Closing Date Statement.


2.13                           Letters
of Credit.  With regard to letters of
credit or similar financial guaranties issued under the Senior Credit Agreement
and outstanding at the Closing Date (collectively, the “Company Letters of
Credit”), Parent will either, at the Closing, (a) arrange for the issuance
of replacement letters of credit therefor that are reasonably satisfactory in
form and substance to the beneficiaries of the Company Letters of Credit so
that such beneficiaries fully release and discharge the Company Letters of
Credit to the satisfaction of the Senior Lender under the Senior Credit
Agreement, or (b) arrange for the issuance of additional letters of credit to
support and back-up the Company Letters of Credit to the reasonable
satisfaction of the Senior Lender under the Senior Credit Agreement, in either
case, such that the Senior Lender under the Senior Credit Agreement will
release and discharge the Company and the Subsidiary under the Senior Credit
Agreement even though the Company Letters of Credit remain outstanding.


ARTICLE III


REPRESENTATIONS AND
WARRANTIES OF THE COMPANY


The Company hereby represents and warrants to Parent
and Merger Sub that the statements contained in this Article III are
true and correct except as set forth in the Disclosure Schedule. The
disclosures set forth in the Disclosure Schedule shall qualify only the
disclosure under the section number referred to or cross-referenced in the Disclosure
Schedule.


3.1                                 Due
Incorporation; Capitalization.


(a)                                  The
Company and the Subsidiary are each corporations duly organized, validly
existing and in good standing under the laws of the State of Delaware.  Each of the Company and the Subsidiary has all
requisite power and authority to own and operate its respective assets and
properties as they are now being owned and operated.  The jurisdictions in which the Company and
the Subsidiary are qualified to do business as foreign corporations are set
forth in Schedule 3.1 of the Disclosure Schedule, and constitute all of the
jurisdictions in which the conduct or nature of the Company’s and the
Subsidiary’s business makes such qualification necessary, except where the
failure to qualify would not have a Material Adverse Effect.  The Subsidiary is wholly-owned by the
Company.  The Company does not own any
equity interest in any Person other than the Subsidiary.


(b)                                 The
entire authorized capital stock of the Company is 210,000 shares consisting of
(A) 10,000 shares of Common Stock, par value $0.01 per share (the “Common
Stock”) and (B) 200,000 shares of Serial Preferred Stock, par value $0.01
per share, of which 81,000 shares have been designated as 13% Series A
Redeemable Cumulative Preferred Stock (the “Series A Preferred Stock”).  Of such authorized shares, (A) 5,009.83172
shares of Common Stock are issued and outstanding and (B) 81,000 shares of
Series A Preferred Stock are issued and outstanding. The Company has reserved
347.59358 shares of Common Stock for grant and issuance pursuant to the Company’s
2004 Stock Incentive Plan, 267.15775 of which have been granted and 80.43583 of
which are available for future grant as of the date hereof.  Of the 267.15775 Options that have been
granted as of the date hereof, 217.99915 Options are currently 



 19
 








outstanding and the remainder have been exercised or
cancelled.  All of the outstanding shares
of the Company’s capital stock are duly authorized, validly issued, fully paid
and nonassessable.  No shares were issued
in violation of the preemptive rights of any shareholder.  Except as set forth above or in Schedule I
and Schedule 3.1 of the Disclosure Schedule, there are no options, warrants,
rights, convertible securities or other agreements or commitments obligating
the Company or the Subsidiary to issue, transfer or sell, or cause the
issuance, transfer or sale of, any shares of capital stock of the Company or
the Subsidiary or to make any payments in respect of the value of any shares of
the Company or the Subsidiary.


(c)                                  When
delivered, Schedule I will accurately list the owners and holders of the Common
Stock, the Series A Preferred Stock, and the number of shares held. Schedule I
will further accurately list the holders of Options, the number of shares of
Common Stock that each holder is entitled to purchase, and the exercise price.


3.2                                 Financial
Statements.


(a)                                  The
Financial Statements set forth in Schedule 3.2 of the Disclosure Schedule have
been prepared in accordance with GAAP, consistently applied (except as set forth
in the footnotes attached thereto) and present fairly, in all material
respects, the consolidated financial position of the Company and the Subsidiary
as of the dates thereof and the results of operations and cash flows of the
Company and the Subsidiary for the periods covered thereby, except that interim
financial statements omit footnotes and are subject to year-end adjustments and
accruals.


(b)                                 Except
as set forth in Schedule 3.2 of the Disclosure Schedule or in the Financial
Statements, the Company has no liabilities, debts, claims or obligations of any
nature on the date of this Agreement, whether accrued, absolute, direct or
indirect, contingent or otherwise, whether due or to become due, that would be
required to be included on a balance sheet prepared in accordance with GAAP,
consistently applied (the “Liabilities”), except (i) Liabilities
disclosed in the Disclosure Schedule, (ii) Liabilities incurred in the ordinary
and usual course of business since the date of the Latest Balance Sheet, (iii) Liabilities
incurred in connection with or as a result of the transactions contemplated by
this Agreement and the Related Agreements that are to be paid or are directed
to be paid pursuant to Section 2.10(b), and (iv) Liabilities reflected
on the Audited Balance Sheet and the Latest Balance Sheet (including to the
extent reserved therefor therein) or disclosed in the notes thereto and (v)
Liabilities that, individually or in the aggregate, do not exceed $1,000,000.


3.3                                 Title
to Properties.  Except as disclosed
in Schedule 3.3 of the Disclosure Schedule, the Company and the Subsidiary have
good and marketable title to, or a valid leasehold interest in, each of its
assets reflected in the Financial Statements, free and clear of any Lien,
except for Permitted Liens.


3.4                                 Intellectual
Property.  Schedule 3.4 of the
Disclosure Schedule contains a true and complete list as of the date of this
Agreement of all of the patents and patent applications, trademark
registrations and applications and registered copyrights that are owned by the
Company and material to the Company’s business (“Company Intellectual
Property”).  Except as disclosed in
Schedule 3.4 of the Disclosure Schedule: 
(a) neither the Company nor the Subsidiary has granted any license to a
third party or agreed to pay to or receive from a third 



 20
 








party any royalty in respect of any of such Company
Intellectual Property; and (b) to the Knowledge of the Company, there are no
pending claims, proceedings or litigation alleging infringement or
misappropriation by the Company or the Subsidiary of any third party patent or
trademark rights, except where such claims, proceedings or litigation would not
have a Material Adverse Effect.


3.5                                 Contracts.  Schedule 3.5 of the Disclosure Schedule
contains an accurate list as of the date of this Agreement of all the Contracts
of the following types to which the Company or the Subsidiary is a party or to
which any of its assets or properties is subject (the “Material Contracts”):


(a)                                  any
collective bargaining agreement with respect to its employees;


(b)                                 any
Contract with any officer, employee, consultant, director, stockholder or other
Affiliate;


(c)                                  any
Contract that obligates the Company or the Subsidiary not to compete with
another Person;


(d)                                 any
profit sharing, stock option, stock purchase, stock appreciation, deferred
compensation, severance or other material plan or arrangement for the benefit
of its current or former directors, officers and employees;


(e)                                  other
than those agreements being paid or discharged in accordance with Section
2.10, any Contract which involves the payment or receipt of an amount in
excess of $1,000,000;


(f)                                    other
than those agreements being paid or discharged in accordance with Sections
2.10(b)(i) and (ii), any credit agreement, loan agreement, indenture,
note, mortgage, security agreement, loan commitment or other Contract relating
to the borrowing of Interest Bearing Indebtedness by the Company or the
Subsidiary;


(g)                                 any
Contract granting to any Person a right of first refusal or option to purchase
or acquire any assets;


(h)                                 any
partnership or joint venture agreement; and


(i)                                     any
Contract under which the consequences of a default or termination would have a
Material Adverse Effect.


(j)                                     The
Material Contracts are legal, valid, binding, enforceable and in full force and
effect.  Neither the Company nor the
Subsidiary, nor, to the Knowledge of the Company, any other party thereto is in
default under any Material Contract.


3.6                                 Insurance.  Schedule 3.6 of the Disclosure Schedule
contains an accurate and complete list of all policies of fire, liability,
workmen’s compensation and other forms of insurance owned by the Company or the
Subsidiary.



 21














3.7                                 Employee
Benefit Plans.


(a)                                  General.  Except as set forth in Schedule 3.7(a) of the
Disclosure Schedule, neither the Company nor the Subsidiary maintains:


(i)                                     any
“employee welfare benefit plan” or “employee pension benefit plan” (as those
terms are respectively defined in Sections 3(1) and 3(2) of ERISA), other than
a Multiemployer Plan, referred to collectively hereinafter as “plans”; or


(ii)                                  any
retirement or deferred compensation plan, incentive compensation plan, stock
plan, share appreciation right, unemployment compensation plan, vacation pay,
severance pay, bonus arrangement, health benefit plan, profit sharing plan,
death or disability plan or any other fringe benefit arrangements (referred to
collectively hereinafter as “fringe benefit arrangements”) for any
employee, director, consultant or agent.


(b)                                 Plan
Documents and Reports.  A true and
correct copy of each of the material documents embodying the plans and fringe
benefit arrangements set forth in Schedule 3.7(b) of the Disclosure Schedule (collectively,
the “Benefit Plans”) has been made available to Parent and Merger
Sub.  A true and correct copy of the most
recent annual report, summary plan description and Internal Revenue Service
determination letter with respect to each Benefit Plan, to the extent
applicable, has been made available to Parent and Merger Sub by the Company.


(c)                                  Compliance
With Laws; Liabilities.  As to all
Benefit Plans that are intended to be qualified under Section 401(a) of the
Code, each such Benefit Plan is the subject of a favorable determination letter
from the Internal Revenue Service or a request for a favorable determination
letter has been timely filed with the Internal Revenue Service.  Except as set forth in Schedule 3.7(c) of the
Disclosure Schedule, (i) all Benefit Plans comply in all material respects with
the requirements of law applicable thereto; (ii) there are no actions, suits or
claims (other than routine claims for benefits) pending involving any Benefit
Plan; (iii) the Company has no liability under any Benefit Plan for providing
health or medical benefits after an Employee’s termination of employment,
whether voluntary or involuntary, other than statutory liability for providing
group health plan continuation coverage under Part 6 of Subtitle B of Title I
of ERISA and Section 4980B of the Code or applicable law; (iv) the Company and
the Subsidiary have not engaged in any non-exempt transaction prohibited by
ERISA or by Section 4975 of the Code with respect to any Benefit Plan which
would result in a Material Adverse Effect; (v) all contributions,
reimbursements, premium payments and other payments required to have been made
under or with respect to each Benefit Plan as of or prior to the date hereof
have been made on a timely basis in accordance with applicable law; (vi) there
are no inquiries or proceedings pending or, to the knowledge of the Company nor
the Subsidiary, threatened by the Internal Revenue Service, the U.S. Department
of Labor, or by any other governmental authority; and (vii) neither the Company
nor the Subsidiary is bound by a collective bargaining or labor agreement, or
any individual employment contract or agreement, to maintain any plan described
in either Section 3.7(a)(i) or 3.7(a)(ii) above.


(d)                                 Multiemployer
Plans; Defined Benefit Pension Plans. Except as listed in Section 3.7(d) of
the Disclosure Schedule, neither the Company nor the Subsidiary (nor any entity
which is under common control with Company or Subsidiary, within the meaning of
§4001(b) of ERISA) maintains, sponsors, participates in, or contributes to any
Multiemployer Plan and/or



 22
 








any defined benefit pension plan subject to Title IV
of ERISA and has not maintained, sponsored or contributed to any such plans
during the six year period ending on the Effective Time.


(e)                                  409A
Plans.  Except as listed in Schedule
3.7(e) of the Disclosure Schedule, neither the Company nor the Subsidiary
maintains, or sponsors any nonqualified deferred compensation plan subject to
409A of the Code. With respect to any such nonqualified deferred compensation
plan listed in Schedule 3.7(e) of the Disclosure Schedule, (i) such plan has
been operated in good faith with 409A of the Code and the guidance issued
thereunder, and (ii) the transaction contemplated by this Agreement will not
result in 409A of the Code imposing any tax consequences to the participants in
such plan (including the inclusion in income of deferred amounts, or any
additional tax pursuant to 409A(a)(1)(B) of the Code.


(f)                                    Payments
or Funding Resulting from this Transaction. 
Except as set forth in Schedule 3.7(f) of the Disclosure Schedule,
neither Company nor the Subsidiary will have any obligations that arise as a
result of the transaction contemplated by this Agreement to make severance,
deferred compensation, or other payments to employees or former employees, or
will have any obligation to fund or further fund any material deferred
compensation arrangement that has previously been unfunded or only partially
unfunded.


(g)                                 Current
Funding of Benefit Plans.  Except as
set forth in Schedule 3.7(g) of the Disclosure Schedule, all contributions to
all Benefit Plans have been made in accordance with applicable law and the
terms of the Benefit Plans (or have been properly accrued) and all material
fees, premiums, and charges for administration, insurance, reinsurance or other
obligation directly or indirectly related to the Benefit Plans have been fully
paid (or properly accrued) and any such contract, insurance policy or
reinsurance policy is in full force and effect.


(h)                                 Absence
of Change of Control Agreements. 
Except as set forth in Schedule 3.7(h) of the Disclosure Schedule,
neither the Company nor the Subsidiary (i) is a party to any agreement that
provides for the making of any payment that would be considered a “parachute
payment” under §280G of the Internal Revenue Code, (ii) is otherwise obligated
to make any payment that would be considered a “parachute payment” under §280G
of the Internal Revenue Code, or (iii) has made, in the three (3) year period
ending in the Effective Time, any payment that was or is considered a “parachute
payment” under §280G of the Code.


3.8                                 Taxes.  Except as set forth in Schedule 3.8 of the
Disclosure Schedule,


(a)                                  all
income Tax Returns required to be filed by or with respect to the Company and
the Subsidiary have been timely filed, and such Tax Returns are complete and
correct in all material respects; all Taxes required to be paid on or prior to
the date hereof pursuant to those Tax Returns, have been timely paid (other
than those Taxes, if any, that are listed in Schedule 3.8 of the Disclosure
Schedule, and are being actively contested by the Company or the Subsidiary in
good faith and by appropriate proceedings and as to which adequate reserves,
under GAAP, have been provided for in the Audited Balance Sheet and the Latest
Balance Sheet);


(b)                                 all
material Taxes required to be withheld on or prior to the date hereof by the
Company and the Subsidiary have been withheld and, to the extent required, have
been paid over to the proper taxing authorities; and



 23
 








(c)                                  with
respect to each taxable period of the Company and the Subsidiary ending prior
to the date of this Agreement, (i) the Tax Returns filed by the Company and the
Subsidiary with respect to such period have either not been audited or have
been audited and such audit has been completed without the issuance of any
notice of deficiency or similar notice of additional liability, or (ii) the
time for assessing Taxes with respect to such taxable period has closed and
such taxable period is not subject to review by any taxing authority.


3.9                                 Litigation.  Schedule 3.9 of the Disclosure Schedule sets
forth each instance in which the Company or the Subsidiary (a) is subject to
any unsatisfied judgment, order, decree, stipulation, injunction, or charge, or
(b) is a party to any charge, complaint, action, suit, proceeding, hearing, or
investigation of or in any court or quasi judicial or administrative agency of
any federal, state, local, or foreign jurisdiction, or (c) to the Knowledge of
the Company, is threatened to be made a party to any such action and, in the
case of either clauses (a), (b) or (c), which would
reasonably be expected to result in damages in excess of $1,000,000.


3.10                           Brokers
and Finders.  The Company has not
used any broker or finder in connection with the transactions contemplated
hereby other than (a) TJC Management Corp., whose fees and expenses shall be
paid pursuant to Section 2.10(b)(v)(A) and (b) Credit Suisse Securities
(USA) LLC whose fees and expenses shall be paid pursuant to Section
2.10(b)(v)(B).


3.11                           Due
Authorization.  The Company has full
power and authority to enter into this Agreement and its Related Agreements and
to consummate the transactions contemplated hereby and thereby.  The execution, delivery and performance by
the Company of this Agreement and its Related Agreements have been duly and
validly approved by the board of directors of the Company and no other
corporate actions or proceedings on the part of the Company are necessary to
authorize this Agreement, its Related Agreements and the transactions
contemplated hereby and thereby (other than the approval of the Merger by the
stockholders of the Company in accordance with the DGCL).  The Company has duly and validly executed and
delivered this Agreement and has duly and validly executed and delivered (or
prior to or at the Closing will duly and validly execute and deliver) its
Related Agreements.  This Agreement
constitutes the legal, valid and binding obligation of the Company, and the
Company’s and Representative’s Related Agreements, upon execution and delivery
by the Company, will constitute legal, valid and binding obligations of the
Company in each case, enforceable in accordance with their respective terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect which affect
the enforcement of creditors’ rights generally and by equitable principles.


3.12                           Consents
and Approvals; Governmental Authority Relative to This Agreement.  Except for (a) filings under Section 2.3,
(b) filings under the HSR Act, (c) the Foreign Governmental Approvals and (d)
as set forth on Schedule 3.12 of the Disclosure Schedule, the execution,
delivery and performance by the Company of this Agreement and its Related
Agreements and the consummation of the transactions contemplated by this
Agreement will not (i) violate any law, regulation, judgment, or order of any
Governmental Authority applicable to the Company or the Subsidiary; (ii)
require any filing or registration by the Company or the Subsidiary with, or
consent or approval with respect to the Company or the Subsidiary of, any
Governmental Authority; (iii) violate or conflict with the Certificate of
Incorporation or by-laws of the Company; (iv) constitute a default under or
give rise to a right of termination, cancellation,



 24
 








or acceleration (with or without due notice or lapse
of time or both) of any right or obligation of the Company or the Subsidiary
pursuant to a Material Contract; or (v) result in the creation of any Lien on
any asset of the Company or the Subsidiary; except in the case of clauses
(i) through (v),
where any such filing, registration, notice, consent or approval, if not made
or obtained, or any such violation, conflict, breach or default, would not have
reasonably be expected to result in a loss of $1,000,000 or more.


3.13                           Environmental
Matters.


(a)                                  The
Company and the Subsidiary’s existing Phase I and Phase II Environmental
Reports are set forth on Schedule 3.13 of the Disclosure Schedule (the “Environmental
Reports”), portions of which have been made available for inspection by
Parent. Except as described in Schedule 3.13 of the Disclosure Schedule or in
the Environmental Reports:


(i)                                     to
the Knowledge of the Company, the Company and the Subsidiary are in compliance
with all applicable Environmental Laws, including without limitation, the
possession of all permits, licenses and authorizations required under
applicable Environmental Laws; and compliance with their terms and conditions,
except to the extent such noncompliance would not have a Material Adverse
Effect;


(ii)                                  neither
the Company nor the Subsidiary has received notice of, nor is there, to the
Knowledge of the Company, threatened against the Company or the Subsidiary, any
civil, criminal or administrative suit, claim, action, proceeding or
investigation under any Environmental Law relating to any property or facility
owned, operated or leased, by any of them or any of their predecessors for
which the Company or the Subsidiary has any or may be deemed to have any
liability, except to the extent that any such matter would not have a Material
Adverse Effect;


(iii)                               neither
the Company nor the Subsidiary has received from any Governmental Authority
written notice that it has been named or may be named as a responsible or
potentially responsible party under any Environmental Law for any site
Contaminated by Hazardous Substances; and


(iv)                              except
to the extent such Contamination would not have a Material Adverse Effect, to
the Knowledge of the Company, no portion of any property currently owned,
leased or occupied by the Company or the Subsidiary is Contaminated.


3.14                           Absence
of Changes.  Except as disclosed in
Schedule 3.14 of the Disclosure Schedule, since December 31, 2006, except as
otherwise expressly contemplated by this Agreement, the Company and the
Subsidiary have not sustained any damage, destruction, or other casualty loss
(whether or not covered by insurance) or any action, event, occurrence,
development, or state of circumstances or facts that, individually or in the
aggregate, would have a Material Adverse Effect.


3.15                           Labor
Relations; Compliance.  Neither the
Company nor the Subsidiary is a party to any collective bargaining agreement or
other labor contract.  Except as set
forth on Schedule 3.15 of the Disclosure Schedule, there is not presently
pending or existing and, to the Knowledge of the Company, there is not
threatened, (a) any strike, slowdown, picketing, work stoppage, or



 25
 








employee grievance process, (b) any proceeding against
or affecting the Company or the Subsidiary relating to the alleged violation of
any laws or governmental regulations pertaining to labor relations or
employment matters, including any charge or complaint filed by an employee or
union with the National Labor Relations Board, the Equal Employment Opportunity
Commission, or any comparable Governmental Authority, or (c) any application
for certification of a collective bargaining agent.


3.16                           Real
Property.


(a)                                  Leased
Real Property.  Schedule 3.16(a) of
the Disclosure Schedule contains a list and brief description of all leases
(each, a “Lease”) pursuant to which the Company or the Subsidiary leases
real property as tenant (“Leased Real Property”).  Each Lease is legal, valid, binding,
enforceable and in full force and effect. 
Neither the Company nor the Subsidiary, nor, to the Knowledge of the
Company, any other party is in default under any Lease.


(b)                                 Owned
Real Property.  Schedule 3.16(b) of
the Disclosure Schedule contains a list and brief description of all real
property owned by the Company or the Subsidiary (the “Owned Real Property”).  Except as set forth on Schedule 3.16(b) of
the Disclosure Schedule, the Subsidiary has good and marketable fee simple
title to all of the Owned Real Property, free and clear of any Lien other than
Permitted Liens.


(c)                                  No
Proceedings.  There are no
condemnation, eminent domain or other similar proceedings pending, or to the
Knowledge of the Company, threatened, that affect any portion of the Owned Real
Property or the Leased Real Property.


3.17                           Compliance
with Applicable Laws; Permits. 
Except as set forth in Schedule 3.17 of the Disclosure Schedule,


(a)                                  The
Company and the Subsidiary and their relevant personnel and operations are in
material compliance with all applicable laws, including those relating to
occupational health and safety.  Neither
Company nor the Subsidiary has received any written communication during the
past three (3) years from a Governmental Authority that alleges that the
Company or the Subsidiary is not in compliance in any material respect with any
applicable law.


(b)                                 The
Company and the Subsidiary have in effect all material permits, licenses,
variances, exemptions, authorizations, operating certificates, franchises,
orders and approvals of all Governmental Authorities (collectively, “Company
Permits”), necessary or advisable for them to own, lease or operate their
properties and assets and to carry on their businesses as now conducted; and
there has occurred no violation of, default (with or without the lapse of time
or the giving of notice, or both) under, or event giving to others any right of
termination, amendment or cancellation of, with or without notice or lapse of
time or both any such Company Permit. 
There is no event which would reasonably be expected to result in the
revocation, cancellation, non-renewal or adverse modification of any such
Company Permit which is not readily replaceable and would reasonably be
expected to adversely affect the Company’s operations in any material respect.



 26
 








3.18                           Absence
of Interest Bearing Indebtedness. 
After taking into account payment of the amounts described in Section
2.10(b), the Company will have no obligation for Interest Bearing
Indebtedness on the Closing Date.


ARTICLE IV


REPRESENTATIONS AND
WARRANTIES OF PARENT AND MERGER SUB


Parent and Merger Sub jointly and severally represent
and warrant to the Company that the statements contained in this Article IV
are true and correct.


4.1                                 Due
Incorporation.  Each of Parent and
Merger Sub is a corporation duly organized, validly existing and in good
standing under the laws of the States of Indiana and Delaware respectively with
all requisite power and authority to own and operate its assets and properties
as they are now being owned and operated. 
All of the issued and outstanding capital stock of Merger Sub is owned
directly by Parent.


4.2                                 Due
Authorization.  Each of Parent and
Merger Sub has full power and authority to enter into this Agreement and its
Related Agreements and to consummate the transactions contemplated hereby and
thereby.  The execution, delivery and
performance by each of Parent and Merger Sub, as applicable, of this Agreement
and its Related Agreements have been duly authorized by all necessary
corporation or other action of Parent and Merger Sub.  Each of Parent and Merger Sub has duly and
validly executed and delivered this Agreement and has duly and validly executed
and delivered (or prior to or at the Closing will duly and validly execute and
deliver) its Related Agreements.  This
Agreement constitutes the legal, valid and binding obligation of each of Parent
and Merger Sub and its Related Agreements, upon execution and delivery by
Parent and Merger Sub, as applicable, will constitute legal, valid and binding
obligations of Parent and Merger Sub, in each case, enforceable in accordance
with their respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or similar laws
in effect which affect the enforcement of creditors’ rights generally and by
equitable principles.


4.3                                 Consents
and Approvals; No Violations.  Except
for (a) filings under Section 2.3, (b) filings under the HSR Act and (c)
the Foreign Governmental Approvals, the execution, delivery and performance by
Parent and Merger Sub of this Agreement and its Related Agreements will not (i)
violate any law, regulation or order of any Governmental Authority applicable
to Parent or Merger Sub; (ii) require any filing or registration by Parent or
Merger Sub with, or consent or approval with respect to Parent or Merger Sub
of, any Governmental Authority; (iii) violate or conflict with or result in a
breach or default under any Contract to which Parent or Merger Sub. is a party
or by which Parent or Merger Sub or any of their assets or properties are
bound; or (iv) violate or conflict with the certificate of incorporation or
by-laws of Parent or Merger Sub, except where any such filing, registration,
consent or approval, if not made or obtained, or any such violation, conflict,
breach or default, would not have a material adverse effect on Parent or Merger
Sub or their respective ability to perform their obligations under this
Agreement and their Related Agreements. 
Parent shall pay all filing fees required with respect to the notification,
report and other requirements of the HSR Act and Foreign Governmental
Approvals.



 27
 








4.4                                 Parent’s
and Merger Sub’s Examination. 
Parent, Merger Sub and their representatives have received or been given
access to information concerning the Company and the Subsidiary and have
further received certain information requested by them.  Parent, Merger Sub and their representatives
have been afforded the opportunity to meet with, ask questions of and receive
answers from the management of the Company and the Subsidiary in connection
with the determination by Parent and Merger Sub to enter into this Agreement
and the Related Agreements and consummate the transactions contemplated hereby
and thereby.


4.5                                 Broker.  Neither Parent nor Merger Sub is committed to
pay any brokers’ or finders’ fees in connection with the transactions
contemplated by this Agreement.


4.6                                 Investigation;
Limitation on Warranties.


(a)                                  Parent
and Merger Sub acknowledge and agree that neither the Company nor the
Subsidiary, nor any other Person acting on behalf of the Company or any of
their respective Affiliates or representatives has made any representation or
warranty, express or implied, as to the accuracy or completeness of any
information regarding the Company or the Subsidiary or their respective
businesses or assets, except as expressly set forth in this Agreement or as and
to the extent required by this Agreement to be set forth in the Disclosure
Schedule.  Parent and Merger Sub further
agree that no Fully-Diluted Stockholder or any other Person will have or be
subject to any liability to Parent or any other Person resulting from the
distribution or use by Parent, the Surviving Corporation, any Affiliate thereof
or any of their agents, consultants, accountants, counsel or other representatives
of any such information, including the Confidential Descriptive Memorandum
prepared by Credit Suisse Securities (USA) LLC, dated March 2007 and any legal
opinions, memoranda, summaries or any other information, document or material
made available to Parent or its Affiliates or representatives in certain “data
rooms,” management presentations or any other form otherwise provided in
expectation of the transactions contemplated by this Agreement.


(b)                                 Each
of Parent and Merger Sub acknowledges and agrees that except for the
representations and warranties of the Company expressly set forth in Article
III hereof, the capital stock of the Company is being acquired AS IS
WITHOUT ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR INTENDED USE OR
OTHER EXPRESSED OR IMPLIED WARRANTY. 
Each of Parent and Merger Sub acknowledges and agrees that it is
consummating the Merger without any representation or warranty, express or
implied, by any Person, except for the representations and warranties of the
Company expressly set forth in Article III hereof.


(c)                                  In
connection with Parent’s and Merger Sub’s investigation of the Company and the
Subsidiary, Parent and Merger Sub have received from or on behalf of the
Company certain projections, including projected statements of operating
revenues and income from operations of the Company and the Subsidiary and
certain business plan information of the Company and the Subsidiary.  Parent and Merger Sub acknowledge that there
are uncertainties inherent in attempting to make such estimates, projections
and other forecasts and plans, that Parent and Merger Sub are familiar with
such uncertainties, that Parent and Merger Sub are taking full responsibility
for making its own evaluation of the adequacy and accuracy of all estimates,
projections and other forecasts and plans so furnished to it (including the
reasonableness of the



 28
 








assumptions underlying such estimates, projections and
forecasts), and that Parent and Merger Sub shall have no claim against any
Fully-Diluted Stockholder or any other Person with respect thereto.  Accordingly, the Company makes no
representations or warranties whatsoever with respect to such estimates,
projections and other forecasts and plans (including the reasonableness of the
assumptions underlying such estimates, projections and forecasts).


4.7                                 Available
Funds.  Parent has sufficient cash
resources on hand in an aggregate amount sufficient to pay in cash any and all
amounts required to be paid by it and Merger Sub pursuant to this Agreement,
including the Merger Consideration and all fees and expenses related to the
transactions contemplated by this Agreement to be paid by Parent or Merger Sub.


4.8                                 Solvency.  Immediately after giving effect to the
Closing and the transactions contemplated by this Agreement, the Surviving
Corporation and the Subsidiary shall be able to pay their respective debts as
they become due and shall own property which has a fair saleable value greater
than the amounts required to pay their respective debts (including a reasonable
estimate of the amount of all contingent liabilities).  Immediately after giving effect to the
transactions contemplated by this Agreement, the Surviving Corporation and the
Subsidiary shall have adequate capital to carry on their respective
businesses.  No transfer of property is
being made and no obligation is being incurred in connection with the
transactions contemplated by this Agreement with the intent to hinder, delay or
defraud either present or future creditors of the Company or the Subsidiary.


4.9                                 Acquisition
for Investment.  The capital stock of
the Surviving Corporation acquired by Parent pursuant to this Agreement is
being acquired for investment only and not with a view to any public
distribution thereof, and Parent will not offer to sell or otherwise dispose of
such stock so acquired by it in violation of any of the registration
requirements of the Securities Act or any comparable state Law.  Parent is an “accredited investor” within the
meaning of Regulation D promulgated pursuant to the Securities Act.


4.10                           Plant
Closings and Mass Lay-Offs.  Parent
does not currently plan any plant closings, reductions in force or terminations
that, in the aggregate, would constitute a mass lay-off of the employees of the
Company and the Subsidiary under or any similar federal, state or local statute
or ordinance.


ARTICLE V


COVENANTS


5.1                                 Access
to Information and Facilities.


(a)                                  From
the date of this Agreement to the earlier of the Closing Date or the date this
Agreement is terminated, subject to the Confidentiality Agreement, the Company
shall give Parent and Merger Sub and Parent’s and Merger Sub’s representatives,
upon reasonable notice, reasonable access during normal business hours to the
offices, facilities, books and records of the Company and the Subsidiary, and
shall make the officers and employees of the Company and the Subsidiary
available to Parent and Merger Sub and their representatives as Parent, Merger
Sub and their representatives shall from time to time reasonably request, in
each case to the extent



 29
 








that such access and disclosure would not obligate the
Company or the Subsidiary to take any actions that would unreasonably disrupt
the normal course of their businesses or violate the terms of any Contract to
which the Company or the Subsidiary is bound or any applicable law or
regulation; provided, further that all requests for access shall
be directed to Credit Suisse Securities (USA) LLC or as otherwise set forth in
the Confidentiality Agreement (the “Designated Contacts”); provided,
however, that nothing herein shall require the Company to provide access
or to disclose any information to Parent if such access or disclosure (i) would
cause significant competitive harm to the Company or the Subsidiary if the
transactions contemplated by this Agreement are not consummated or (ii) would
be in violation of applicable laws or regulations of any Governmental Authority
(including the HSR Act and other anti-competition laws) or the provisions of
any agreement to which the Company or the Subsidiary is a party.  Other than the Designated Contacts or as
expressly provided in the preceding sentence, Parent is not authorized to and
shall not (and shall cause its employees, agents, representatives and
Affiliates not to) contact any officer, director, employee, franchisee,
customer, supplier, distributor, lender or other material business relation of
the Company or the Subsidiary prior to the Closing without the prior written
consent of the Company.


(b)                                 Parent,
Merger Sub and their representatives shall treat and hold strictly confidential
any Confidential Information in accordance with the terms of the
Confidentiality Agreement.


5.2                                 Conduct
and Preservation of Business.


(a)                                  From
the date of this Agreement until the Closing Date, other than as specifically
contemplated by this Agreement or with the prior consent of Parent (such
consent not to be unreasonably withheld or delayed), (i) the Company and the
Subsidiary and the business of the Company and Subsidiary shall be operated in
the ordinary and usual course of business and consistent with past practice,
and (ii) the Company shall use commercially reasonable efforts to preserve the
current relationships of the Company and the Subsidiary with customers,
suppliers and other persons with which the Company or the Subsidiary has
significant business relations.


(b)                                 Without
limiting the generality of the foregoing, the Company and the Subsidiary shall
not, other than as specifically contemplated by this Agreement or with the
prior consent of Parent (which shall not be unreasonably withheld or delayed),


(i)                                     amend
their respective certificates of incorporation or by-laws;


(ii)                                  sell,
lease, transfer, assign or otherwise dispose of any assets, other than the
disposition of inventory in the ordinary course of business consistent with
past practice;


(iii)                               enter
into any agreement preventing or restricting any business activities in any
location of the Company or the Subsidiary after the Closing Date;


(iv)                              except
in the ordinary course of business, sale bonuses to be paid pursuant to Section
2.10(b) and option grants in respect of the 80.43583 Options in treasury,
(1) make any change in employment terms of, or increase the compensation
payable or to become payable or the benefits provided to, its employees,
directors, or officers, (2)



 30
 








except as required by any
existing agreement or Benefit Plan that has been disclosed in connection
herewith, grant any severance or termination pay to, or enter into any
employment or severance agreement with, any employee, director or officer, or
(3) establish, adopt, enter into or amend any bonus, profit-sharing, thrift,
compensation, stock option, restricted stock, pension, retirement, deferred
compensation, employment, termination, severance or other plan, agreement,
trust, fund, policy or arrangement for the benefit of any director, officer,
employee, or group of employees; or


(v)                                 except
in the ordinary course of business and consistent with past practice, make,
change or revoke any Tax election, settle or compromise any Tax liability,
consent to any claim or assessment relating to an amount of Taxes or any waiver
of the statute of limitations, change any method of Tax accounting or, file any
amended Tax Return or claim for refund of Taxes.


5.3                                 Exclusivity.  From the date of this Agreement until the earlier
of the Closing Date or termination of this Agreement in accordance with its
terms, neither the Company nor the Subsidiary shall, directly or indirectly,
through any officer, director, employee, agent, partner, affiliate or
otherwise, solicit, initiate or encourage the submission of any proposal or
offer from any person or entity relating, with respect to the Company or the
Subsidiary, to any (i) liquidation, dissolution or recapitalization, (ii)
merger or consolidation, (iii) acquisition or purchase of all or a significant
portion of the assets of, or any material equity interest in, the Company or
the Subsidiary or (iv) similar transaction or business combination (a “Competing
Transaction”), nor participate in any or continue any ongoing discussions or
negotiations regarding, or furnish to any other person or entity any
information with respect to, or otherwise cooperate in any way with, or assist
or participate in, facilitate or encourage, any effort or attempt by any person
or entity to effect a Competing Transaction. 
The Company shall, and shall cause all Persons acting on behalf of it to
immediately cease any existing activities, discussions and negotiations with
any Persons with respect to any of the foregoing.


5.4                                 Efforts.


(a)                                  Subject
to the terms and conditions hereof, each party hereto shall use its
commercially reasonable efforts to consummate the transactions contemplated
hereby as promptly as practicable.


(b)                                 The
Company and Parent will, within five (5) Business Days after the date hereof,
file with the Federal Trade Commission and the Department of Justice the
notification and report forms required for the transactions contemplated hereby
and any supplemental information that may be reasonably requested in connection
therewith pursuant to the HSR Act, which notification and report forms and
supplemental information will comply in all material respects with the
requirements of the HSR Act and request early termination of the waiting period
contemplated by the HSR Act.  The Company
and a Parent will, within ten (10) Business Days after the date hereof, make
all filings or submissions as are required to obtain all Foreign Governmental
Approvals, if any.  For purposes of this
Agreement, “Foreign Governmental Approvals” means any consent or order
of any foreign governmental authority set forth on Schedule 5.4(b).  Each of Parent and the Company will promptly
furnish to the other (i) all necessary information as the other may reasonably
request in connection with the preparation of



 31
 








any filing or submission pursuant to the HSR Act or
any Foreign Governmental Approval and (ii) copies of all written communications
(and memoranda setting forth the substance of any oral communication) in
connection with any Foreign Governmental Approval or the Federal Trade
Commission or Department of Justice in connection with this Agreement.  Each of Parent and the Company will consult
with the other prior to any meetings, by telephone or in person, with the staff
of the Federal Trade Commission, Department of Justice or any other
Governmental Authority, and each of Parent and the Company will have the right
to have a representative present at any such meeting.  Parent shall pay all filing fees required
with respect to the notification, report and other requirements of the HSR Act
and Foreign Governmental Approvals.


(c)                                  The
Parties shall promptly respond to any request for additional information
pursuant to the HSR Act.  Upon the terms
and subject to the provisions hereof, the Parties shall each use their
reasonable best efforts to resolve objections, if any, as may be asserted by
any Governmental Authority with respect to the transactions contemplated by
this Agreement under any antitrust or trade or regulatory laws or regulations
of any Governmental Authority and to cause the waiting periods or other
requirements under the HSR Act and all other anti-competition laws to terminate
or expire at the earliest possible date. 
For purposes hereof, “reasonable best efforts” of Parent does not
include any obligation of Parent to hold separate and divest such businesses,
products and assets of Parent and its Affiliates as may be necessary to obtain
the agreement of any Governmental Authority not oppose the transactions
contemplated hereby.  Parent shall not
(and Parent shall not permit the Surviving Corporation and the Subsidiary to)
consummate another transaction or enter into an agreement with respect to
another transaction or take any other action if the intent or reasonably
anticipated consequence of such transaction or action is, or would be, to cause
any Governmental Authority not to grant approval of any required regulatory
approval or materially delay either such approval.


5.5                                 Maintenance
of Insurance.  The Company and the
Subsidiary will continue to carry its existing insurance through the Business
Day immediately preceding the Closing Date, and shall not allow any breach,
default or cancellation (other than expiration and replacement of policies in
the ordinary cause of business) of such insurance policies or agreements to occur
or exist that would have a Material Adverse Effect.


5.6                                 Supplemental
Information.


(a)                                  The
Company shall update the Disclosure Schedule provided to the Parent and Merger
Sub on the date of this Agreement and deliver such updated Disclosure Schedule
to the Parent and Merger Sub within seven (7) days of the date of this
Agreement.  Parent shall have five (5)
days following the delivery of the Disclosure Schedule to review the new
information and facts so disclosed.  In
the event that such new information or facts would reasonably be expected to
result in a Material Adverse Effect, Parent may deliver to the Company a notice
setting forth in reasonable detail the basis for such conclusion and its
election to terminate its obligations under this Agreement no later than 5:00
p.m. Eastern Time on the sixth calendar day following the date of such
disclosure.  In the event that Parent has
the right to terminate this Agreement pursuant to this Section 5.6(a)
and Section 8.1(c)(i), then such termination shall be Parent’s sole
remedy for any breach of any representation, warranty, agreement or covenant
contained herein which would have existed by reason of the Company not having
supplemented



 32
 








or amended the Disclosure Schedule.  In the event that Parent does not have the
right or for any reason does not terminate this Agreement pursuant to this Section
5.6(a) following any such disclosure, then such disclosure shall be deemed
to amend and/or supplement the original Disclosure Schedule hereto and cure and
correct for all purposes any breach of any representation, warranty, agreement
or covenant contained herein which would have existed by reason of the Company
not having so amended or supplemented the Disclosure Schedule.


(b)                                 Thereafter,
the Company shall give prompt notice to Parent, and Parent shall give prompt
notice to the Company of (1) the occurrence, or non-occurrence of any event the
occurrence, or non-occurrence of which the notifying party determines could
reasonably be expected to cause any representation or warranty contained in
this Agreement to be untrue or inaccurate in any material respect, and (2) any
failure of the Company, Parent or Merger Subsidiary, as the case may be, to
comply with or satisfy, in any material respect, any covenant or agreement to
be complied with or satisfied by it hereunder; provided, however,
that the delivery of any notice pursuant to this Section 5.6(b) shall
not limit or otherwise affect any remedies available hereunder to the party
receiving such notice.


5.7                                 Preservation
of Records; Post-Closing Access and Cooperation; Litigation Support.


(a)                                  For
a period of seven (7) years after the Closing Date or such other period (if
longer) required by applicable law, the Surviving Corporation shall preserve
and retain, all material corporate, accounting, legal, auditing, human
resources and other books and records of the Surviving Corporation and the
Subsidiary (including any documents relating to any governmental or
non-governmental claims, actions, suits, proceedings or investigations) relating
to the conduct of the business and operations of the Surviving Corporation and
the Subsidiary prior to the Closing Date.


(b)                                 Parent
and the Surviving Corporation shall, after the Closing Date, afford to the
Representative during normal business hours reasonable access to the offices,
facilities, books, records, officers and employees of the Surviving
Corporation, to the extent reasonably necessary in connection with litigation
or a governmental proceeding or investigation, for the benefit of the Representative
or any Fully Diluted Stockholder.


5.8                                 Employees
and Benefits.


(a)                                  Parent
is not planning to, and has no present intention to, cause the Surviving
Corporation and the Subsidiary to effect any categorical layoffs or to close or
move any lines, or to make any material and adverse changes in the terms and
conditions of employment or any employment practices with respect to any group
of employees employed by the Company and the Subsidiary as of the Closing Date
(including, without limitation, those on temporary layoffs or approved leave of
absence) (“Employees”).  Nothing
herein shall be construed, however, as a contract of employment or continued
employment on the part of any Employee or group of Employees, nor shall it be
construed as a limitation on Parent’s plans to integrate the Company’s
workforce and Benefit Plans with those of the Parent.  Except for any existing employment agreement
in place as of the Closing Date, all Employees shall continue as employees at
will.  Parent shall, or shall cause the
Surviving Corporation to assume (or by virtue of the Merger, be



 33
 








deemed to have assumed) all liabilities and
obligations with respect to existing employment agreements disclosed on
Schedule 3.5 of the Disclosure Schedule.


(b)                                 On
or after closing, Parent and the Surviving Corporation shall continue to be
responsible for any and all notices, liabilities, costs, payments and expenses
arising from any action by Parent or the Surviving Corporation (including
breach of contract, defamation or retaliatory discharge) regarding any
Employee, including any such liability (i) under any applicable law that
relates to employees, employee benefit matters or labor matters, (ii) for
dismissal, wrongful termination, constructive dismissal or termination, or
severance pay or other termination pay, if any, or (iii) under or with respect
to any existing benefit plan, program, or contract of the Company and
Subsidiary, including with respect to severance or retention plans, or to the
extent such severance or retention plans provide payments or benefits with
respect to any Employee.


(c)                                  In
any termination or layoff of any employee by Parent or the Surviving
Corporation on or after the Closing, Parent and the Surviving Corporation will
comply fully, if applicable, with the WARN Act and all other applicable
foreign, Federal, state and local laws, including those prohibiting
discrimination and requiring notice to employees.  Parent shall not, and shall cause the
Surviving Corporation and the Subsidiary not to, at any time prior to sixty
(60) days after the Closing date, effectuate a “plant closing” or “mass layoff”
as those terms are defined in the WARN Act affecting in whole or in part any
facility, site of employment, operating unit or employee of the Surviving
Corporation or the Subsidiary without complying fully with the requirements of
the WARN Act.  Parent and Surviving
Corporation will bear the cost of compliance with (or failure to comply with)
any such laws.


(d)                                 For
periods on and after the Closing Date, the Surviving Corporation and the
Subsidiary shall honor the obligations of the Company and the Subsidiary under
the provisions of all Benefit Plans, provided, however, that this
provision shall not prevent Parent, the Surviving Corporation or the Subsidiary
from amending, suspending or terminating any such Benefit Plan to the extent
permitted under the respective terms of such Benefit Plan, including in
connection with a transition to Parent’s or the Surviving Corporation’s other
benefit plans.


5.9                                 Public
Announcements.  The Company, Parent
and Merger Sub will consult with each other, and otherwise comply with Section
8(b) of the Stockholder Support Agreement, before issuing any press release or
otherwise making any public statements or disclosure with respect to the
transactions contemplated by this Agreement, including the terms hereof, and no
party shall, without the prior written consent of the other parties, issue any
such press release or make any such public statement, except as may be required
by applicable law.


5.10                           Indemnification
of Directors and Officers.


(a)                                  For
six years from and after the Closing Date, Parent and the Surviving Corporation
agree to indemnify and hold harmless all past and present officers and
directors of the Company and of the Subsidiary to the same extent such persons
are currently indemnified by the Company pursuant to the Company’s Certificate
of Incorporation, By-Laws and Director Indemnification Agreements for acts or
omissions occurring at or prior to the Closing Date, and Parent shall not, and shall
not permit the Surviving Corporation or the Subsidiary to, amend,



 34
 








repeal or modify any provision in the Surviving
Corporation’s or the Subsidiary’s certificate of incorporation or by-laws
relating to the exculpation or indemnification of former officers and directors
as in effect immediately prior to the Effective Time.


(b)                                 Notwithstanding
anything contained in this Agreement to the contrary, this Section 5.10
shall survive the consummation of the Closing.


5.11                           Filing
of Tax Returns; Tax Matters.   Upon
request of the Parent, the Fully-Diluted Stockholders will cooperate fully with
Parent and the Surviving Corporation in connection with (i) the preparation and
filing of any U.S. federal, state, local or foreign Tax Returns that include
the business and operations of the Company and the Subsidiary with respect to
any taxable periods on or prior to the Closing Date and (ii) any audit
examination by any taxing authority of the Tax Returns referred to in clause
(i).  Such cooperation shall include,
without limitation, the furnishing or making available of records, books of
account or other materials of the Company and the Subsidiary necessary or
helpful for the defense against assertions of any taxing authority as to any
Tax Returns referred to in clause (i) above.


5.12                           Stockholders
Action.


(a)                                  Prior
to Closing, the Company will take all action required by the DGCL, its
Certificate of Incorporation and its by-laws to cause the stockholders of the
Company to consider and vote upon the approval of the Merger.


(b)                                 Prior
to the Closing, the Company (i) shall deliver to its stockholders, and if
necessary, the stockholders of the Subsidiary, a disclosure statement that
satisfies the disclosure obligations under Section 280G(b)(5)(B)(ii) of the
Code, which disclosure statement, if approved by the stockholders, will result
in §280G of the Code not being applicable to any payments made by the Company
or the Subsidiary pursuant to or in connection with the transactions
contemplated by this Agreement, and (ii) as contemplated by and in compliance
with §280G(b)(5)(B), solicit the approval of the stockholders of the Company,
and if necessary, the Subsidiary (the “§280G Approval”).


5.13                           Release.


(a)                                  Effective
as of the Closing Date, each of Parent and the Surviving Corporation (each a “Releasor”),
on behalf of itself and its heirs, legal representatives, successors and
assigns, hereby releases, acquits and forever discharges, to the fullest extent
permitted by law, each of the Fully-Diluted Stockholders, the Representative, The
Jordan Company, L.P. and each of their respective past and present officers,
managers, directors, shareholders, partners, members, Affiliates and employees
(each a “Releasee”) of, from and against any and all actions, causes of
action, claims, demands, damages, judgments, debts, dues and suits of every
kind, nature and description whatsoever which such Releasor or its heirs, legal
representatives, successors or assigns ever had, now has or may have, but
limited to a matter relating to the Company that is in existence on or prior to
the Closing Date (collectively, “Claims”). 
Each Releasor agrees not to, and agrees to cause its respective
Affiliates and subsidiaries not to, assert any Claim against the
Releasees.  Notwithstanding the
foregoing, each Releasor and its respective heirs, legal representatives,
successors and assigns retain, and do not release, their rights and interests
under



 35
 








the terms of this Agreement and the Related Agreements
or with respect to any Claim or liability resulting from such Person’s fraud or
other criminal act.


(b)                                 Effective
as of the Closing Date, the Representative, and The Jordan Company, L.P. (each
a “Company Releasor”) shall execute and deliver, at Closing, a release,
in form reasonably acceptable to the Parent, on behalf of itself and its heirs,
legal representatives, successors and assigns, and whereby pursuant to such
release, each Company Releasor releases, acquits and forever discharges, to the
fullest extent permitted by law, each of the Company and the Parent and each of
their respective past and present officers, managers, directors, shareholders,
partners, members, Affiliates, and employees (each a “Company Releasee”)
of, from and against any and all actions, causes of action, claims, demands,
damages, judgments, debts, dues and suits of every kind, nature and description
whatsoever which such Company Releasor or its heirs, legal representatives,
successors or assigns ever had, now has or may have, but limited to a matter
relating to the Company and that is in existence on or prior to the Closing
Date (collectively, “Company Claims”). 
Each Company Releasor agrees not to, and agrees to cause its respective
Affiliates and subsidiaries not to, assert any Company Claim against the
Company Releasees.  Notwithstanding the foregoing,
each Company Releasor and its respective heirs, legal representatives,
successors and assigns retain, and do not release, their rights and interests
under the terms of this Agreement and the Related Agreements or with respect to
any Company Claim or liability resulting from such Person’s fraud or other
criminal act.


5.14                           Redemption
of Preferred Stock.   The Company
will take all action required by the DGCL, its Certificate of Incorporation,
its by-laws and any other governing instrument to ensure that the Company’s
Series A Preferred Stock is redeemable in full at Closing as contemplated by
this Agreement.


5.15                           Execution
of Stockholder Support Agreements. 
The Company shall use its commercially reasonably efforts to arrange for
the execution of Stockholder Support Agreements by the holders of 95% of the
issued and outstanding Common Stock, Preferred Stock, and Options within seven
(7) days of the date of this Agreement.


5.16                           Incorporation of Merger Sub.  On or prior to June 13, 2007, Parent shall cause
(a) Merger Sub to be duly organized and incorporated in the State of Delaware
as a wholly-owned subsidiary of Parent and (b) Merger Sub to execute a joinder,
in form and substance reasonably satisfactory to Parent and the Company, that
legally binds Merger Sub to the perform the obligations of the Merger Sub under
this Agreement.


ARTICLE VI


CONDITIONS PRECEDENT TO
OBLIGATIONS

OF PARENT AND MERGER SUB


The obligations of Parent and Merger Sub to consummate
the transactions to be performed by them in connection with the Closing under
this Agreement are subject to the



 36














satisfaction (or waiver
by Parent) of the following conditions precedent on or before the Closing Date:


6.1                                 Warranties
True as of Present Date.  Each of the
representations and warranties of the Company contained in Article III
(a) that are qualified as to Material Adverse Effect shall be, without giving
any effect to any supplement to the Disclosure Schedule, true and correct when
made and as of the Closing Date as if made anew as of such date (except to the
extent such representations and warranties expressly relate to an earlier date
(in which case as of such earlier date)), except to the extent of changes or
developments caused by the transactions contemplated hereby, (b) except for and
excluding the representations and warranties set forth in Sections 3.1, 3.2,
and 3.18, those not so qualified shall, without giving any effect to any
supplement to the Disclosure Schedule, be true and correct when made, and shall
be true and correct as of the Closing Date as if made anew as of such date
(except to the extent such representations and warranties expressly relate to
an earlier date (in which case as of such earlier date)), except to the extent
of changes or developments caused by the transactions contemplated hereby and
except for failures of the representations and warranties referred to in this
clause (b) to be true and correct as do not and would not reasonably be
expected to have, in the aggregate, a Material Adverse Effect, (c) the
representations and warranties set forth in Sections 3.1 and 3.2
shall, without giving any effect to any supplement to the Disclosure Schedule,
be true and correct in all respects when made and as of the Closing Date, and
(d) the representations and warranties set forth in Section 3.18 shall,
without giving any effect to any supplement to the Disclosure Schedule, be true
and correct in all respects when made and as of the Closing Date; provided,
however, with respect to Section 3.18, this condition shall be
deemed satisfied as long as the aggregate amount of Interest Bearing Indebtedness
that would remain after making all the payments described in Section 2.10(b)
does not exceed $250,000.


6.2                                 Compliance
with Agreements and Covenants.  The
Company shall have performed and complied in all respects with the covenants,
obligations, and agreements set forth in Section 5.15.  In addition, without limiting the foregoing,
the Company shall have performed and complied with all of the covenants,
obligations and agreements contained in this Agreement to be performed and
complied with by it on or prior to the Closing Date, except as otherwise
permitted by Parent or Merger Sub and except as would not have a Material
Adverse Effect.


6.3                                 Competition
Filings.  The applicable waiting
period under the HSR Act shall have expired or been earlier terminated without
action by the Department of Justice or the Federal Trade Commission to prevent
consummation of the transactions contemplated by this Agreement and all Foreign
Governmental Approvals necessary to close the transactions contemplated by this
Agreement shall have been received by Parent or Company, as applicable.


6.4                                 No
Prohibition or Proceeding.  No law or
injunction shall have been adopted, promulgated or entered by any Governmental
Authority which prohibits or which would be reasonably expected to prohibit the
consummation of the transactions contemplated hereby. No lawsuit, proceeding,
or investigation shall have been commenced or threatened against Company or the
Fully-Diluted Stockholders (a) involving a challenge to, or seeking damages or
other relief in connection with the transactions contemplated by this Agreement
which would reasonably be expected to have a Material Adverse Effect, or (b)
that would reasonably be expected to prohibit, delay, or otherwise materially
interfere with the transactions contemplated hereby.



 37
 








6.5                                 Stockholder
Approval.


(a)                                  (i)
This Agreement and the transactions contemplated hereby shall have received the
affirmative vote or written consent of 95% the Common Stockholders and not more
than 5% of the Common Stockholders shall have exercised any dissenters’ rights
under the DGCL and (ii) the Parent shall have received Stockholder Support
Agreements executed by the holders of at least 95% of the issued and
outstanding Common Stock, Preferred Stock and Options.


(b)                                 Neither
the Company nor the Subsidiary (i) shall be a party to any agreement that
provides for the making of any payment that is a “parachute payment” under
§280G of the Internal Revenue Code, (ii) shall be otherwise obligated to make
any payment that is a “parachute payment” under §280G of the Internal Revenue
Code, or (iii) shall not have made, subsequent to the date of this Agreement,
any payment that was or is considered a “parachute payment” under §280G of the
Code.


6.6                                 Documents.  Parent shall have received:


(a)                                  the
Senior Lender Pay-off Letter;


(b)                                 the
Techs Pay-off Letter;


(c)                                  the
TJC Pay-off Letter;


(d)                                 the
Credit Suisse Pay-off Letter;


(e)                                  the
Stock Unit Pay-off Letter;


(f)                                    the
Temporary Escrow Agreement executed by the Company and the Representative which
shall be in full force and effect (assuming execution and delivery by Parent
and the Escrow Agent);


(g)                                 a
certificate, dated the Closing Date, of an officer of the Company substantially
to the effect set forth in Sections 6.1 and 6.2;


(h)                                 the
Certificate of Incorporation of the Company certified by the Secretary of State
of the State of Delaware and the By-laws of the Company certified by the
secretary, assistant secretary or equivalent Person of the Company and a
certificate of the secretary, assistant secretary or equivalent Person of the
Company certifying resolutions of the Company’s Board of Directors and Common
Stockholders approving and authorizing the execution, delivery and performance
of this Agreement and its Related Agreements and the consummation of the
transactions contemplated hereby and thereby (together with an incumbency and
signature certificate regarding the officer(s) signing on behalf of Company);


(i)                                     a
certificate of good standing for the Company and the Subsidiary from the
Secretary of State of the State of Delaware;



 38
 








(j)                                     a
legal opinion of counsel for the Company addressed to the Parent and the Merger
Sub and dated as of the Closing Date, subject to customary assumptions,
qualifications and exceptions, in form and substance to the effect that:


(i)                                     The
Company and the Subsidiary are validly existing corporations in good standing
under the laws of the State of Delaware.


(ii)                                  The
Company has the requisite corporate power and authority to enter into the
Agreement and to consummate the Merger and other transactions contemplated
thereby.


(iii)                               Except
as disclosed in the Disclosure Schedule, the execution, delivery and
performance of the Agreement by the Company, and the consummation by the
Company of the transactions contemplated thereby, and compliance by the Company
with the provisions thereof do not violate or conflict with any term or
provision of the Company’s Certificate of Incorporation or Bylaws.


(iv)                              All
corporate action, including approval by the Company’s Board of Directors and
shareholders, required to be taken on the part of the Company to authorize the
Agreement and consummate the Merger and other transactions contemplated thereby
has been taken.


(v)                                 The
Agreement has been duly and validly authorized, executed and delivered by the
Company and constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as
enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar laws affecting
creditors’ rights, and subject to general equity principles and to limitations
on availability of equitable relief, including specific performance.


(vi)                              The
authorized capital stock of the Company consists of 210,000 shares, consisting
of (a) 10,000 shares of Common Stock, of which 5,009.83172 shares were issued
and outstanding on the date of this opinion, and (b) 200,000 shares of Series A
Preferred Stock, of which 81,000 shares were issued and outstanding on the date
of this opinion.


(k)                                  the
releases provided for by Section 5.13(b); and


(l)                                     a
certificate stating that the Company was not a “United States real property
holding corporation” within the meaning of Section 897(c)(2) of the Code at any
time during the five-year period ending on the Closing Date.



 39
 








ARTICLE VII


CONDITIONS PRECEDENT TO
OBLIGATIONS OF THE COMPANY


The obligations of the Company at Closing to
consummate the transactions to be performed by it in connection with this
Agreement are subject to the satisfaction (or waiver by the Representative) of
the following conditions precedent on or before the Closing Date:


7.1                                 Warranties
True as of Present Date.  Each of the
representations and warranties of Parent contained in Article IV (a)
that are qualified as to “material adverse effect” shall be true and correct
when made and as of the Closing Date as if made anew as of such date (except to
the extent such representations and warranties expressly relate to an earlier
date (in which case as of such earlier date)), except to the extent of changes
or developments caused by the transactions contemplated hereby, and (b) those
not so qualified shall be true and correct when made and as of the Closing Date
as if made anew as of such date (except to the extent such representations and
warranties expressly relate to an earlier date (in which case as of such
earlier date)), except to the extent of changes or developments caused by the
transactions contemplated hereby and except for failures of the representations
and warranties referred to in this clause (b) to be true and correct as do not
and would not reasonably be expected to have, in the aggregate, a material
adverse effect on Parent’s ability to consummate the transactions contemplated
hereby.


7.2                                 Compliance
with Agreements and Covenants. 
Parent and Merger Sub shall have performed and complied with all of
their covenants, obligations and agreements contained in this Agreement to be
performed and complied with by it on or prior to the Closing Date, in all
material respects.


7.3                                 Competition
Filings.  The applicable waiting
period under the HSR Act shall have expired or been earlier terminated without
action by the Department of Justice or the Federal Trade Commission to prevent
consummation of the transactions contemplated by this Agreement and all Foreign
Governmental Approvals necessary to close the transactions contemplated by this
Agreement shall have been received by the Company or Parent, as applicable.


7.4                                 No
Prohibition or Proceeding.  No law or
injunction shall have been adopted, promulgated or entered by any Governmental
Authority which prohibits or which would be reasonably expected to prohibit the
consummation of the transactions contemplated hereby. No lawsuit, proceeding,
or investigation shall be commenced or threatened against Parent (a) involving
a challenge to, or seeking damages or other relief in connection with the
transactions contemplated by this Agreement which would reasonably be expected
to have a Material Adverse Effect, or (b) that would reasonably be expected to
prohibit, delay, or otherwise materially interfere with the transactions
contemplated hereby.


7.5                                 Documents.  The Company shall have received, in form and
substance satisfactory to it:


(a)                                  certificates,
dated the Closing Date, of an officer of each of Parent and Merger Sub
substantially to the effect set forth in Sections 7.1 and 7.2;



 40
 








(b)                                 certificates
of the secretary, assistant secretary or equivalent Person of each of Parent
and Merger Sub certifying resolutions of the board of directors of Parent and
Merger Sub approving and authorizing the execution, delivery and performance of
this Agreement and their Related Agreements and the consummation of the
transactions contemplated hereby and thereby (together with an incumbency and
signature certificate regarding the officers signing on behalf of Parent and
Merger Sub);


(c)                                  the
Articles of Incorporation and Certificate of Incorporation of each of Parent
and Merger Sub certified by the Secretary of State of the State of Indiana and
the Secretary of State of Delaware respectively and the By-laws of Parent and
Merger Sub certified by the secretary, assistant secretary or equivalent
Persons of Parent and Merger Sub;


(d)                                 certificates
of good standing or existence  for each
of Parent and Merger Sub from the Secretary of State of the State of Indiana
and the Secretary of the State of Delaware respectively;


(e)                                  the
Senior Lender Pay-off Letter;


(f)                                    the
Techs Pay-off Letter;


(g)                                 the
TJC Pay-off Letter;


(h)                                 the
Credit Suisse Pay-off Letter;


(i)                                     the
Stock Unit Pay-off Letter; and


(j)                                     the
Temporary Escrow Agreement executed by Parent which shall be in full force and
effect (assuming execution and delivery by the Company, the Representative and
the Escrow Agent).


ARTICLE VIII


TERMINATION


8.1                                 Termination.  This Agreement may be terminated at any time
on or prior to the Closing Date:


(a)                                  with
the mutual written consent of the Company, Parent and Merger Sub;


(b)                                 by
written notice from the Company or Parent to the other, if the Closing shall
not have taken place on or before July 2, 2007, or, if the Closing has not
occurred solely due to the failure of the conditions set forth in Sections
6.3 and 7.3, then on or before August 2, 2007,  provided, however, that the
right to terminate this Agreement under this Section 8.1(b) shall not be
available to any party whose failure to perform any obligation under this
Agreement has been the cause of or resulted in the failure of the Closing to
occur on or before such date;


(c)                                  by
Parent (i) in accordance with Section 5.6(a) or (ii) if there has been a
breach on the part of the Company in the representations, warranties or
covenants set forth herein or any 



 41
 








failure on the part of the Company to comply with its
obligations hereunder which breach or failure would result in a Material
Adverse Effect, such that, in any such case, any of the conditions to the
Closing set forth in Article VI hereof could not be satisfied prior to
July 2, 2007 or, if the Closing has not occurred solely due to the failure of
the conditions set forth in Sections 6.3 and 7.3, then on or
before August 2, 2007;


(d)                                 by
the Company if there has been a breach of Parent or Merger Sub in its
representations, warranties or covenants set forth herein, including any
failure by Parent or Merger Sub to comply with its obligations hereunder, such
that, in any such case, any of the conditions to the Closing set forth in Article
VII hereof could not be satisfied on or prior to July 2, 2007 or, if the
Closing has not occurred solely due to the failure of the conditions set forth
in Sections 6.3 and 7.3, then on or before August 2, 2007; or


(e)                                  by
written notice from the Company or Parent to the other, if any court of
competent jurisdiction or other governmental body shall have issued an order,
decree or ruling or taken any other action permanently restraining, enjoining
or otherwise prohibiting the transactions contemplated hereby and such order,
decree, ruling or other action shall have become final and nonappealable.


8.2                                 Effect
of Termination.  If this Agreement is
terminated pursuant to Section 8.1, all obligations of the parties
hereunder (except for the obligations set forth in Sections 5.1(b), 5.9, 8.2, 9.1
through 9.19, which shall survive the termination of this Agreement)
shall terminate without liability to any party hereto (or any stockholder,
Affiliate, director, officer, employee, agent, consultant or representative of
such party) or any other Person, except that no such termination shall relieve
any party hereto from liability for any breach of this Agreement prior to such
termination and, in the case of Parent, any failure to have sufficient
immediately available funds for the consummation of the transaction
contemplated hereby, and such party shall be fully liable for any and all
Losses sustained or incurred by any other party from such breach.  For avoidance of doubt, the terms and
conditions of the Confidentiality Agreement survive termination of this
Agreement for any reason.


ARTICLE IX


MISCELLANEOUS


9.1                                 Expenses.  Each party hereto shall bear its own expenses
(including fees and expenses of counsel, accountants, investment bankers,
finders and brokers) with respect to this Agreement and the transactions
contemplated hereby, except that such expenses of the Company and the
Fully-Diluted Stockholders shall be paid by the Representative, on behalf of
the Company and the Fully-Diluted Stockholders, in accordance with Section
2.10.


9.2                                 Survival
of Representations and Warranties. 
The representations and warranties of the Company contained herein
and/or in any certificate or other writing delivered pursuant hereto shall
terminate and have no further force or effect at the Effective Time or upon the
termination of this Agreement pursuant to Section 8.1, as the case may
be.



 42
 








9.3                                 Amendment.  Prior to the Effective Time, this Agreement may
be amended, modified or supplemented but only in a writing signed by Parent and
the Company.  Following the Effective
Time, this Agreement may be amended, modified or supplemented but only in a
writing signed by Parent, the Surviving Corporation and the Representative.


9.4                                 Notices.  Any notice, request, instruction or other
document to be given hereunder by a party hereto shall be in writing and shall
be deemed to have been given, (i) when received if given in person or by
courier or a courier service, (ii)  on
the next Business Day if sent by an overnight delivery service, or (iii) five
Business Days after being deposited in the U.S. mail, certified or registered
mail, postage prepaid:


(a)                                  If
to the Company or the Representative, addressed as follows:


c/o The Jordan Company, L.P.

767 Fifth Avenue

48th Floor

New York, New York 10153

Attention: A. Richard Caputo, Jr.


with a copy to:


Mayer, Brown, Rowe & Maw LLP

1675 Broadway

New York, New York 10019

Attention: Philip O. Brandes


(b)                                 If
to Parent or Merger Sub, or after the Closing, the Surviving Corporation,
addressed as follows:


Steel Dynamics, Inc.

6714 Pointe Inverness Way, Suite 200

Fort Wayne, IN 46804

Attention:  Gary Heasley


with a copy to:


Barrett & McNagny LLP

ATTN: Robert S. Walters

215 E. Berry Street

Fort Wayne, IN 46802


or to such other individual or address as a party
hereto may designate for itself by notice given as herein provided.


9.5                                 Waivers.  The failure of a party hereto at any time or
times to require performance of any provision hereof shall in no manner affect
its right at a later time to enforce the same, except as provided in Section
5.6.  No waiver by a party of any
condition or of any breach of any term, covenant, representation or warranty
contained in this Agreement shall be effective unless 



 43
 








in writing, and no waiver in any one or more instances
shall be deemed to be a further or continuing waiver of any such condition or
breach in other instances or a waiver of any other condition or breach of any
other term, covenant, representation or warranty.


9.6                                 Counterparts.  This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.  A facsimile transmission of an executed
counterpart signature page shall be deemed an original.


9.7                                 Interpretation.  The headings preceding the text of Articles
and Sections included in this Agreement and the headings to Sections of the
Disclosure Schedule are for convenience only and shall not be deemed part of
this Agreement or the Disclosure Schedule or be given any effect in
interpreting this Agreement or the Disclosure Schedule.  The use of the masculine, feminine or neuter
gender herein shall not limit any provision of this Agreement.  The use of the terms “including” or “include”
shall in all cases herein mean “including, without limitation” or “include,
without limitation,” respectively. 
Underscored references to Articles, Sections, Exhibits or Schedules
shall refer to those portions of this Agreement.  Time is of the essence of each and every
covenant, agreement and obligation in this Agreement.  Neither the Company, on the one hand, nor
Parent or Merger Sub, on the other hand, shall be deemed to be in breach of any
covenant contained in this Agreement if such party’s deemed breach is the
result of any action or inaction on the part of the other.


9.8                                 APPLICABLE
LAW.  THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF
LAW THEREOF.


9.9                                 Binding
Agreement.  This Agreement and the
Related Agreements shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.


9.10                           Assignment.  This Agreement and all of the provisions
hereof shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, successors and permitted assigns; provided
that neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned (including by operation of law) by Parent or the
Surviving Corporation without the prior written consent of the Company and the
Representative.  For all purposes hereof,
a transfer, sale or disposition of a majority of the capital stock or other
voting interest of Parent or the Surviving Corporation (whether by contract or
otherwise) shall be deemed an assignment hereunder.  Any purported assignment in contravention of
this Section 9.10 shall be null and void.


9.11                           Absence
of Third Party Beneficiaries.  This
Agreement is solely for the benefit of the parties hereto and no provision of
this Agreement shall be deemed to confer upon third parties, either express or
implied, any remedy, claim, liability, reimbursement, cause of action or other
right.  Notwithstanding the foregoing,
the Representative, the Fully-Diluted Stockholders and the Persons referred to
in Sections 5.10, 5.13 and 9.20 are hereby made third party beneficiaries of this
Agreement, with all of the rights, remedies, claims, liabilities, 



 44
 








reimbursements, causes of action and other rights
accorded the Representative, the Fully-Diluted Stockholders or such Persons
under this Agreement and the Related Agreements.


9.12                           Further
Assurances.  Upon the reasonable
request of Parent or the Representative, each party will on and after the
Closing Date execute and deliver to the other parties such other documents,
assignments and other instruments as may be reasonably required to effectuate
completely the Merger, and to effect and evidence the provisions of this
Agreement and the Related Agreements and the transactions contemplated hereby.


9.13                           Entire
Understanding.  The Exhibits,
Schedules and Disclosure Schedule identified in this Agreement are incorporated
herein by reference and made a part hereof. 
This Agreement and the Related Agreements set forth the entire agreement
and understanding of the parties hereto and supersedes any and all prior
agreements, arrangements and understandings among the parties.


9.14                           Specific
Performance.  Each of the parties
acknowledge and agree that the other party would be damaged irreparably and
could not be made whole by monetary damages in the event any of the provisions
of this Agreement are not performed in accordance with their specific terms or
otherwise are breached.  Therefore, each
party agrees to the granting of specific performance of this Agreement and
injunctive or other equitable relief in favor of the other party as a remedy for
any such breach, in addition to any other remedy to which it may be entitled,
at law or in equity.


9.15                           JURISDICTION
OF DISPUTES.  IN THE EVENT ANY PARTY
TO THIS AGREEMENT COMMENCES ANY LITIGATION, PROCEEDING OR OTHER LEGAL ACTION IN
CONNECTION WITH OR RELATING TO THIS AGREEMENT, ANY RELATED AGREEMENT OR ANY
MATTERS DESCRIBED OR CONTEMPLATED HEREIN OR THEREIN, WITH RESPECT TO ANY OF THE
MATTERS DESCRIBED OR CONTEMPLATED HEREIN OR THEREIN, THE PARTIES TO THIS
AGREEMENT HEREBY (A) AGREE UNDER ALL CIRCUMSTANCES ABSOLUTELY AND IRREVOCABLY
TO INSTITUTE ANY LITIGATION, PROCEEDING OR OTHER LEGAL ACTION IN A COURT OF
COMPETENT JURISDICTION LOCATED IN THE SOUTHERN DISTRICT OF NEW YORK, NEW YORK,
WHETHER A STATE OR FEDERAL COURT; (B) AGREE THAT IN THE EVENT OF ANY SUCH
LITIGATION, PROCEEDING OR ACTION, SUCH PARTIES WILL CONSENT AND SUBMIT TO
PERSONAL JURISDICTION IN ANY SUCH COURT DESCRIBED IN CLAUSE (A) OF THIS SECTION
AND TO SERVICE OF PROCESS UPON THEM IN ACCORDANCE WITH THE RULES AND STATUTES
GOVERNING SERVICE OF PROCESS (IT BEING UNDERSTOOD THAT NOTHING IN THIS SECTION
SHALL BE DEEMED TO PREVENT ANY PARTY FROM SEEKING TO REMOVE ANY ACTION TO A
FEDERAL COURT IN NEW YORK, NEW YORK); (C) AGREE TO WAIVE TO THE FULL EXTENT
PERMITTED BY LAW ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE VENUE
OF ANY SUCH LITIGATION, PROCEEDING OR ACTION IN ANY SUCH COURT OR THAT ANY SUCH
LITIGATION, PROCEEDING OR ACTION WAS BROUGHT IN AN INCONVENIENT FORUM; (D)
DESIGNATE, APPOINT AND DIRECT CT CORPORATION SYSTEM AS ITS AUTHORIZED AGENT TO
RECEIVE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS AND DOCUMENTS IN ANY LEGAL
PROCEEDING IN THE 



 45
 








STATE OF NEW YORK; (E) AGREE TO NOTIFY THE OTHER
PARTIES TO THIS AGREEMENT IMMEDIATELY IF SUCH AGENT SHALL REFUSE TO ACT, OR BE
PREVENTED FROM ACTING, AS AGENT AND, IN SUCH EVENT, PROMPTLY TO DESIGNATE
ANOTHER AGENT IN THE CITY OF NEW YORK, SATISFACTORY TO THE REPRESENTATIVE AND
PARENT, TO SERVE IN PLACE OF SUCH AGENT AND DELIVER TO THE OTHER PARTY WRITTEN
EVIDENCE OF SUCH SUBSTITUTE AGENT’S ACCEPTANCE OF SUCH DESIGNATION; (F) AGREE AS
AN ALTERNATIVE METHOD OF SERVICE TO SERVICE OF PROCESS IN ANY LEGAL PROCEEDING
BY MAILING OF COPIES THEREOF TO SUCH PARTY AT ITS ADDRESS SET FORTH IN SECTION
9.4 FOR COMMUNICATIONS TO SUCH PARTY; (G) AGREE THAT ANY SERVICE MADE AS
PROVIDED HEREIN SHALL BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND
(H) AGREE THAT NOTHING HEREIN SHALL AFFECT THE RIGHTS OF ANY PARTY TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.


9.16                           WAIVER
OF JURY TRIAL.  EACH PARTY
ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH
PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.  EACH
PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.16.


9.17                           Disclosure
Schedule.  The inclusion of
information in the Disclosure Schedule shall not be construed as an admission
that such information is material to any of the Company or the Subsidiary.  In addition, matters reflected in the
Disclosure Schedule are not necessarily limited to matters required by this
Agreement to be reflected in the Disclosure Schedule.  Such additional matters are set forth for
informational purposes only and do not necessarily include other matters of a
similar nature.


9.18                           Severability.  Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity of enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other situation or in any other jurisdiction.  If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope, duration,
or area of the term or provision, to delete specific words or phrases, or to
replace any invalid or unenforceable term or provision with a term or provision
that is valid and enforceable and that comes closest to 



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expressing the intention of the invalid or
unenforceable term or provision, and this Agreement shall be enforceable as so
modified after the expiration of the time within which the judgment may be
appealed.


9.19                           Construction.   The parties have participated jointly in the
negotiation and drafting of this Agreement.  
In the event an ambiguity or question of intent or interpretation
arises, the language shall be construed as mutually chosen by the parties to
express their mutual intent, and no rule of strict construction shall be
applied against any party.  Any reference
to any federal, state, local, or foreign statute or law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless the context
requires otherwise.


9.20                           Provision
Respecting Representation of Company. 
Each of the parties to this Agreement hereby agrees, on its own behalf
and on behalf of its directors, member, partners, officers, employees and
Affiliates, that Mayer, Brown, Rowe & Maw LLP may serve as counsel to each
and any of the Representative, Fully-Diluted Stockholders and their respective
Affiliates (individually and collectively, the “Seller Group”), on the
one hand, and the Company and the Subsidiary, on the other hand, in connection
with the negotiation, preparation, execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby, and that, following
consummation of the transactions contemplated hereby, Mayer, Brown, Rowe &
Maw LLP may serve as counsel to the Seller Group or any director, member, partner,
officer, employee or Affiliate of the Seller Group, in connection with any
litigation, claim or obligation arising out of or relating to this Agreement or
the transactions contemplated by this Agreement notwithstanding such
representation or any continued representation of the Company and/or the
Subsidiary, and each of the parties hereto hereby consents thereto and waives
any conflict of interest arising therefrom, and each of such parties shall
cause any Affiliate thereof to consent waive any conflict of interest arising
from such representation.


9.21                           Authority
and Rights of Representative; Limitations on Liability.  The Representative shall have such powers and
authority as are necessary or appropriate to carry out the functions assigned
to it under this Agreement and the Related Agreements.  All actions, notices, communications and
determinations by the Representative to carry out such functions shall
conclusively be deemed to have been authorized by, and shall be binding upon,
the Fully-Diluted Stockholders.  The
Representative shall be entitled to engage such counsel, experts and other
agents and consultants as it shall deem necessary in connection with exercising
its powers and performing its function hereunder and (in the absence of bad
faith on the part of the Representative) shall be entitled to reasonably rely
on the opinions and advice of such Persons.


[Signature Pages Follow.]



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IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed and delivered as of the date first above written.


	
  

  	
  THE TECHS HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  












 


	
  

  	
  STEEL DYNAMICS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: