exv10w1






Exhibit 10.1




EXECUTION VERSION




 





STOCK PURCHASE AGREEMENT




by and among



Thor Industries, Inc., as Purchaser



Heartland RV Holdings, L.P., as Seller



Towable Holdings, Inc., as Holdings



Heartland Recreational Vehicles, LLC, as the Company



and



the other parties listed on the signature pages hereto



September 16, 2010



 




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	Article I PURCHASE AND SALE
	 	 	1	 
	SECTION 1.01 Purchase and Sale
	 	 	1	 
	 
	 	 	 	 
	Article II PURCHASE PRICE
	 	 	1	 
	SECTION 2.01 Purchase Price
	 	 	1	 
	SECTION 2.02 Post Closing Adjustment of the Purchase Price
	 	 	2	 
	 
	 	 	 	 
	Article III REPRESENTATIONS AND WARRANTIES OF SELLER, HOLDINGS AND THE COMPANY
	 	 	6	 
	SECTION 3.01 Organization; Good Standing
	 	 	7	 
	SECTION 3.02 Capitalization; Subsidiaries
	 	 	7	 
	SECTION 3.03 No Operations
	 	 	8	 
	SECTION 3.04 Authority Relative to this Agreement
	 	 	8	 
	SECTION 3.05 Consents and Approvals; No Violations
	 	 	9	 
	SECTION 3.06 Financial Statements
	 	 	10	 
	SECTION 3.07 Absence of Undisclosed Liabilities
	 	 	10	 
	SECTION 3.08 Absence of Certain Changes or Events
	 	 	11	 
	SECTION 3.09 Material Agreements
	 	 	12	 
	SECTION 3.10 Real Property
	 	 	13	 
	SECTION 3.11 Machinery and Equipment
	 	 	14	 
	SECTION 3.12 Inventories
	 	 	14	 
	SECTION 3.13 Accounts Receivable
	 	 	14	 
	SECTION 3.14 Intellectual Property Rights
	 	 	14	 
	SECTION 3.15 Licenses
	 	 	15	 
	SECTION 3.16 Title to Assets
	 	 	16	 
	SECTION 3.17 Corporate Minute Books; Bank Accounts; Powers of Attorney
	 	 	16	 
	SECTION 3.18 Taxes
	 	 	16	 
	SECTION 3.19 Employees
	 	 	18	 
	SECTION 3.20 Benefits Plans
	 	 	19	 
	SECTION 3.21 Insurance
	 	 	20	 
	SECTION 3.22 Litigation
	 	 	21	 
	SECTION 3.23 Compliance with Laws
	 	 	21	 
	SECTION 3.24 NHTSA; Other Safety Standards
	 	 	22	 
	SECTION 3.25 Product Liability; Product Recalls
	 	 	22	 
	SECTION 3.26 Warranties
	 	 	22	 
	SECTION 3.27 Dealer Network; Rebates and Refunds
	 	 	22	 
	SECTION 3.28 Environmental Matters
	 	 	23	 
	SECTION 3.29 Disclosure
	 	 	26	 
	SECTION 3.30 Certain Interests
	 	 	26	 
	SECTION 3.31 Business Names
	 	 	26	 
	SECTION 3.32 No Additional Representations
	 	 	26	 






i









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE
III.A ADDITIONAL REPRESENTATIONS AND WARRANTIES OF SELLER
	 	 	26	 
	SECTION 3.01A Organization; Good Standing
	 	 	27	 
	SECTION 3.02A Title
	 	 	27	 
	SECTION 3.03A Authority Relative to this Agreement
	 	 	27	 
	SECTION 3.04A Consents and Approvals; No Violations
	 	 	27	 
	SECTION 3.05A Litigation
	 	 	28	 
	SECTION 3.06A Related Party Transactions
	 	 	28	 
	SECTION 3.07A Ownership
	 	 	28	 
	SECTION 3.08A NO ADDITIONAL REPRESENTATIONS
	 	 	29	 
	 
	 	 	 	 
	ARTICLE III.B REPRESENTATIONS AND WARRANTIES OF THE SELLER
OWNERS
	 	 	29	 
	SECTION 3.01B Organization; Good Standing
	 	 	29	 
	SECTION 3.02B Authority Relative to this Agreement
	 	 	29	 
	SECTION 3.03B Consents and Approvals; No Violations
	 	 	30	 
	SECTION 3.04B Litigation
	 	 	30	 
	SECTION 3.05B NO ADDITIONAL REPRESENTATIONS
	 	 	30	 
	 
	 	 	 	 
	Article IV REPRESENTATIONS AND WARRANTIES OF PURCHASER
	 	 	31	 
	SECTION 4.01 Organization; Good Standing
	 	 	31	 
	SECTION 4.02 Authority Relative to this Agreement
	 	 	31	 
	SECTION 4.03 Consents and Approvals; No Violations
	 	 	31	 
	SECTION 4.04 Litigation
	 	 	32	 
	SECTION 4.05 Capitalization of Purchaser
	 	 	32	 
	SECTION 4.06 Real Property Holding Corporation Status
	 	 	32	 
	SECTION 4.07 SEC Reports
	 	 	33	 
	SECTION 4.08 Private Placement
	 	 	33	 
	SECTION 4.09 NYSE Listing Requirements
	 	 	33	 
	SECTION 4.10 NO ADDITIONAL REPRESENTATIONS
	 	 	33	 
	 
	 	 	 	 
	Article V COVENANTS
	 	 	34	 
	SECTION 5.01 Public Disclosure
	 	 	34	 
	SECTION 5.02 Books and Records
	 	 	34	 
	SECTION 5.03 Tax Matters
	 	 	34	 
	SECTION 5.04 Indemnification of Officers and Directors
	 	 	39	 
	SECTION 5.05 Litigation Support
	 	 	39	 
	SECTION 5.06 Legends
	 	 	40	 
	SECTION 5.07 Issuance of Equity Consideration
	 	 	40	 
	 
	 	 	 	 
	Article VI CLOSING DELIVERABLES
	 	 	40	 
	SECTION 6.01 Closing Deliverables of Seller
	 	 	40	 
	SECTION 6.02 Closing Deliverables of Purchaser
	 	 	42	 
	 
	 	 	 	 
	Article VII CLOSING
	 	 	42	 
	SECTION 7.01 Closing
	 	 	42	 
	SECTION 7.02 Further Assurances
	 	 	42	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	Article VIII SURVIVAL; INDEMNIFICATION
	 	 	43	 
	SECTION 8.01 Survival of Representations and Warranties
	 	 	43	 
	SECTION 8.02 Indemnification
	 	 	43	 
	SECTION 8.03 Limitations on Indemnification
	 	 	45	 
	SECTION 8.04 Tax Indemnification
	 	 	46	 
	SECTION 8.05 Indemnification Procedures
	 	 	48	 
	SECTION 8.06 Tax Treatment of Indemnification
	 	 	49	 
	 
	 	 	 	 
	Article IX FINDER’S FEES
	 	 	49	 
	SECTION 9.01 Finder’s Fees
	 	 	49	 
	 
	 	 	 	 
	Article X NOTICES
	 	 	50	 
	 
	 	 	 	 
	Article XI MISCELLANEOUS
	 	 	51	 
	SECTION 11.01 Expenses
	 	 	51	 
	SECTION 11.02 Entire Agreement
	 	 	52	 
	SECTION 11.03 Amendments and Waivers
	 	 	52	 
	SECTION 11.04 Successors and Assigns
	 	 	52	 
	SECTION 11.05 Governing Law
	 	 	52	 
	SECTION 11.06 Severability
	 	 	52	 
	SECTION 11.07 No Third-Party Beneficiaries
	 	 	53	 
	SECTION 11.08 Attorneys’ Fees
	 	 	53	 
	SECTION 11.09 Remedies
	 	 	53	 
	SECTION 11.10 Consent to Jurisdiction and Service of Process; WAIVER OF JURY TRIAL
	 	 	53	 
	SECTION 11.11 Counterparts
	 	 	54	 
	SECTION 11.12 Certain References; Captions
	 	 	54	 
	SECTION 11.13 Interpretation
	 	 	54	 
	SECTION 11.14 Knowledge
	 	 	54	 
	SECTION 11.15 Material Adverse Effect
	 	 	54	 
	SECTION 11.16 Delivery to Purchaser
	 	 	55	 
	SECTION 11.17 Defined Terms
	 	 	55	 






	 	 	 
	EXHIBITS	 	 
	 
	 	 
	EXHIBIT 6.01(i)
	 	Form of Non-Competition Agreement
	 
	 	 
	EXHIBIT 6.01(j)
	 	Form of Registration Rights Agreement
	 
	 	 
	EXHIBIT 6.01(k)
	 	Form of Release
	 
	 	 
	EXHIBIT 6.01(m)
	 	Form of Stock Restriction Agreement
	 
	 	 
	EXHIBIT 6.01(n)
	 	Investment Letters






iii









 






	 	 	 
	ANNEXES	 	 
	 
	 	 
	ANNEX 2.01
	 	Capital Leases
	 
	 	 
	ANNEX 2.01(a)(i)
	 	Indebtedness to be Repaid at Closing
	 
	 	 
	ANNEX 2.01(a)(ii)
	 	Transaction Expenses
	 
	 	 
	ANNEX 2.01(b)
	 	Seller Limited Partners (to be updated in accordance with Section 5.07)
	 
	 	 
	ANNEX 2.02
	 	Determination of Stockholder Equity
	 
	 	 
	ANNEX 5.03(b)
	 	Historic Tax Indemnitees
	 
	 	 
	ANNEX 6.01(a)
	 	Governmental Entities Consent
	 
	 	 
	ANNEX 8.02(a)(iii)
	 	Other Indemnified Matters







iv











 





STOCK PURCHASE AGREEMENT




          STOCK PURCHASE AGREEMENT dated as of September 16, 2010 (this “Agreement”) by and
among Thor Industries, Inc., a Delaware corporation (“Purchaser”), Heartland RV Holdings,
L.P., a Delaware limited partnership (“Seller”), Towable Holdings, Inc., a Delaware
corporation (“Holdings”), Heartland Recreational Vehicles, LLC, an Indiana limited
liability company (the “Company” and, together with Holdings, the “Company
Parties”), and, solely with respect to Section 2.02(a)(vii), (viii) and
(ix), Article III.B., Article VIII, Article IX, Article X
and Article XI of this Agreement, the other parties listed on the signature pages hereto
(the “Seller Owners”).




W I T N E S S E T H:




          WHEREAS, the Company is engaged in the business (the “Business”) of manufacturing and
marketing recreational vehicles, consisting of travel trailers and fifth-wheel vehicles (the
“Products”);




          WHEREAS, Seller owns all of the issued and outstanding capital stock of Holdings (the
“Purchased Shares”) and has agreed to cause Holdings and the Company to enter into this
Agreement and consummate the transactions contemplated hereby and, in its capacity as sole
stockholder of Holdings, to enter into this Agreement and consummate the transactions contemplated
hereby; and




          WHEREAS, Purchaser desires to acquire the Purchased Shares from Seller and Seller desires to
sell the Purchased Shares to Purchaser, all in accordance with the terms and conditions of this
Agreement and the documents contemplated hereby.




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




Article I

PURCHASE AND SALE




          SECTION 1.01 Purchase and Sale.



     Upon the terms and subject to the conditions set
forth in this Agreement, at the Closing, Seller shall sell, transfer, assign, convey and deliver to
Purchaser, and Purchaser shall purchase from Seller, all of the Purchased Shares, free and clear of
any and all Liens.




Article II

PURCHASE PRICE




          SECTION
2.01 Purchase Price. 

     The aggregate amount of consideration to be paid
by Purchaser to Seller for all of the Purchased Shares shall be (x) One Hundred Million Dollars
($100,000,000) minus the amounts outstanding on the capital leases of the Company in accordance
with United States generally accepted accounting principles (“GAAP”) listed on Annex
2.01 (the “Estimated Capital Leases Amount”) (the amount calculated in accordance with
this clause (x), the “Cash Consideration”) and (y) 4,300,000 shares of common stock, par
value $0.10 per share, of Purchaser (the “Equity Consideration” and, together with the Cash





 









 








Consideration,
the “Purchase Price”), as such Purchase Price may be subject to adjustment in
accordance with Section 2.02. The initial Purchase Price shall be paid at the Closing
as follows:




          (a) The Cash Consideration shall be paid at Closing, as follows: 





          (i) First, Purchaser shall pay off the outstanding indebtedness under the financing
arrangements set forth on Annex 2.01(a)(i) (the “Closing Date Debt
Obligations”) (pursuant to the payoff letters described in Section 6.01(d)) that
remains outstanding after giving effect to the use by the Company of all of the Estimated
Closing Cash to repay a portion of the Closing Date Debt Obligations, where “Estimated
Closing Cash” means the cash and cash equivalents of Holdings and its Subsidiaries,
determined in accordance with GAAP as in effect on the date hereof, as of immediately prior
to the Closing (and, for the avoidance of doubt, without giving effect to the use of such
cash and cash equivalents in accordance with this Section 2.01(a)(i)) in an amount
estimated by Seller and communicated in writing by Seller to Purchaser on the Closing Date;




          (ii) Second, Purchaser shall pay to one or more accounts designated by Seller in
writing on the Closing Date an amount equal to the fees and expenses incurred by or on
behalf of Seller, Seller Owners, Seller Limited Partners and/or Holdings and its
Subsidiaries in connection with the transactions contemplated by this Agreement, payable by
any such Persons to outside legal counsel, accountants, advisors, brokers and other third
parties and unpaid as of immediately prior to the Closing, all as set forth on Annex
2.01(a)(ii); and




          (iii) Third, Purchaser shall pay to Seller by wire transfer of immediately available
funds to an account or accounts designated by Seller in writing on the Closing Date an
amount equal to the Cash Consideration minus the amounts payable at the Closing
pursuant to Section 2.01(a)(i) and (ii); provided, that in no event
shall the aggregate amount payable by Purchaser pursuant to Section 2.01(a)(i) and
(a)(ii) and this Section 2.01(a)(iii) exceed the Cash Consideration;



          (b) Seller hereby instructs Purchaser to deliver the Equity Consideration to the limited
partners of Seller or the parent entities of such limited partners (the “Seller Limited
Partners”) as set forth on Annex 2.01(b) which shall be updated by Seller in accordance
with Section 5.07. The Equity Consideration shall be in the form of stock certificates
evidencing the ownership of Equity Consideration in the respective share amounts set forth opposite
the names of the Persons on Annex 2.01(b). The Equity Consideration shall be validly
issued, fully paid and nonassessable and free and clear of any Liens, except, with respect to the
Seller Limited Partners who are party thereto, as set forth in the Stock Restriction Agreement (as
defined in Section 6.01(l)) for the Seller.




          SECTION
2.02 Post Closing Adjustment of the Purchase Price. 

     Following the Closing
and pursuant to Section 2.02(a), the Purchase Price will be adjusted downward, on a dollar
for dollar basis, to the extent that Holdings’ stockholder equity as of immediately prior to the
Closing (but without giving effect to the payments contemplated by Section 2.01(a)(i)) as
finally determined in accordance with GAAP, as in effect on the date
hereof, applied on a basis consistent with the Company Parties’ past practices (to the extent
applicable), except as





2









 







otherwise set forth in Annex 2.02 (“Stockholder
Equity”), is less than Forty-Seven Million Five Hundred Thousand Dollars ($47,500,000). The
Stockholder Equity shall be determined and calculated strictly in accordance with
Annex 2.02 using the applicable line items set forth on the Audited Closing
Balance Sheet (as defined below) as agreed upon by the parties in accordance with
Section 2.02(a). Following the Closing and pursuant to Section 2.02(a),
the Purchase Price shall also be adjusted (x) (A) upward, on a dollar for dollar basis, if the
Final Closing Cash (as defined below) exceeds the Estimated Closing Cash or (B) downward, on a
dollar for dollar basis, if the Estimated Closing Cash exceeds the Final Closing Cash (any such
adjustment, whether upward or downward, a “Cash Adjustment”) and (y) (A) upward, on a
dollar for dollar basis, if the Estimated Capital Leases Amount exceeds the Final Capital Leases
Amount or (B) downward, on a dollar for dollar basis, if the Final Capital Leases Amount exceeds
the Estimated Capital Leases Amount (any such adjustment, whether upward or downward, a
“Capital Leases Adjustment”).




          (a) Determination of Final Purchase Price.





          (i) In order to conclusively determine the Stockholder Equity as of the Closing,
Purchaser, with the cooperation of Seller, will cause a consolidated balance sheet of
Holdings and its Subsidiaries as of immediately prior to the Closing (but without giving
effect to the payments contemplated by Section 2.02(a)(i) and (ii)) (the
“Proposed Closing Balance Sheet”) to be prepared as promptly as practicable
following the Closing Date and in no event more than forty-five (45) days following the
Closing Date and Purchaser will engage Crowe Horwath LLP (“Crowe”) to perform an
audit, in accordance with generally accepted auditing standards, of the Proposed Closing
Balance Sheet (as so audited, the “Audited Closing Balance Sheet”) and will allow
Crowe to independently select its audit team. The Audited Closing Balance Sheet shall set
forth, among other things, the final amount of all cash and cash equivalents of Holdings and
its Subsidiaries as of immediately prior to the Closing (but without giving effect to the
payments contemplated by Section 2.01(a)(i)) (the “Audited Closing Cash”).
The Proposed Closing Balance Sheet and the Audited Closing Balance Sheet shall be prepared
based upon the books and records of the Company Parties in accordance with GAAP and, to the
extent applicable, consistent with the past practices of the Company Parties (but without
giving effect to the payments contemplated by Section 2.01(a)(i)). The parties will
use commercially reasonable efforts to cause Crowe to complete and deliver the Audited
Closing Balance Sheet to Seller and Purchaser within sixty (60) days after Crowe’s receipt
of the Proposed Closing Balance Sheet (the date of such delivery, the “Closing Audit
Date”). The parties shall cooperate with Crowe in connection with such audit, and shall
provide Crowe with all books, records and other papers necessary for such purpose. The
parties shall use commercially reasonable efforts to cause Crowe to make available to the
parties Crowe’s books, records and other papers related to the final amounts set forth on
the Audited Closing Balance Sheet, including work papers, in connection with Crowe’s
preparation of the Audited Closing Balance Sheet.




          (ii) Within thirty (30) days after the Closing Audit Date, Purchaser shall deliver to
Seller Purchaser’s calculation of (x) the Stockholder Equity, which shall be calculated
based on the Audited Closing Balance Sheet, (y) the cash and cash
equivalents of Holdings and its Subsidiaries, determined in accordance with GAAP as in



3









 






effect on the date hereof, as of immediately prior to the Closing (and, for the avoidance of
doubt, without giving effect to the use of such cash and cash equivalents in accordance with
Section 2.01(a)(i)), which shall be calculated based on the Audited Closing Cash
(the “Proposed Cash Amount”), and (z) the aggregate amount outstanding on the
capital leases of the Company, determined in accordance with GAAP as in effect on the date
hereof, as of immediately prior to the Closing (the “Proposed Capital Leases
Amount”) in each case together with reasonable documentation in support thereof.
Purchaser’s calculation of Stockholder Equity, the Proposed Cash Amount and the Proposed
Capital Leases Amount shall be final and binding on the Parties unless within forty-five
(45) days after Seller’s receipt of Purchaser’s calculation of Stockholder Equity, the
Proposed Cash Amount and the Proposed Capital Leases Amount Seller shall give Purchaser a
notice of objection (an “Objection Notice”). The Objection Notice shall specify
each item Seller objects to in Purchaser’s calculations of Stockholder Equity, the Proposed
Cash Amount and/or the Proposed Capital Leases Amount, together with a calculation of each
disputed amount and reasonable documentation in support thereof. Any item in Purchaser’s
calculation of Stockholder Equity, the Proposed Cash Amount or the Proposed Capital Leases
Amount that is not objected to in the Objection Notice shall be deemed agreed and shall be
final and binding on the parties.




          (iii) From and after the Closing Date and prior to the date the Objection Notice is
required to be timely delivered, Purchaser shall make available to Seller and any of its
accountants and advisors, upon reasonable request and during the Company’s normal business
hours, the Company Parties’ accounting personnel, (including the chief financial officer),
and the books and records of the Company Parties and any other documents relating to the
preparation of the Audited Closing Balance Sheet, Purchaser’s calculation of Stockholder
Equity, the Cash Adjustment and the Capital Leases Adjustment, and shall use reasonable
efforts to make available to Seller the Company Parties’ and Purchaser’s accountants, for
the purposes of determining whether to deliver an Objection Notice. Purchaser agrees that
following the Closing Date and prior to the completion of the Audited Closing Balance Sheet
and the final determination of Stockholder Equity, the Cash Adjustment and the Capital
Leases Adjustment in accordance with this Section 2.02, Purchaser shall, and shall
cause the Company Parties to, preserve and not alter or destroy any of the books and records
of any Company Party relating to the calculation of the Audited Closing Balance Sheet, the
Cash Adjustment or the Capital Leases Adjustment.




          (iv) In the event an Objection Notice is given, Purchaser and Seller, together with
their respective accountants and other advisors, shall use commercially reasonable efforts
to resolve any objection and arrive at a final determination. If Purchaser and Seller are
unable to arrive at a final determination within twenty (20) days after an Objection Notice
is given, the matter shall be submitted to PricewaterhouseCoopers LLP (the “Independent
Firm”). The Independent Firm shall make a final determination in writing as to all
matters in dispute within thirty (30) days after its appointment, provided, that,
notwithstanding the Independent Firm’s determination of the Stockholder Equity, the Cash
Adjustment and/or the Capital Leases Adjustment, for purposes hereof (A) the Stockholder
Equity shall be neither less than the
amount of Stockholder Equity as calculated by Purchaser and delivered to Seller
pursuant



4









 






to Section 2.02(a)(ii) nor greater than the amount specified by Seller in
the Objection Notice, (B) the final amount of cash and cash equivalents of Holdings and its
Subsidiaries as of the Closing used to determine the Cash Adjustment (calculated in
accordance with the provisions set forth in this Section 2.02(a)) shall be neither
less than the amount of such cash and cash equivalents as calculated by Purchaser and
delivered to Seller pursuant to Section 2.02(a)(ii) nor greater than the amount
specified by Seller in the Objection Notice, and (C) the final aggregate amount outstanding
on the capital leases of the Company used to determine the Capital Leases Adjustment
(calculated in accordance with the provisions set forth in this Section 2.02(a))
shall be neither less than the amount specified by Seller in the Objection Notice nor
greater than the amount as calculated by Purchaser and delivered to Seller pursuant to
Section 2.02(a)(ii), and in each case shall, absent mathematical error, be final and
binding on the parties. The Stockholder Equity as finally determined in accordance with the
procedures and provisions set forth in this Section 2.02(a) is hereinafter referred
to as the “Final Stockholder Equity”. The amount of cash and cash equivalents of
Holdings and its Subsidiaries as of the Closing as finally determined in accordance with the
procedures and provisions set forth in this Section 2.02(a) is hereinafter referred
to as the “Final Closing Cash”. The aggregate amount outstanding on the capital
leases of the Company used to determine the Capital Leases Adjustment as finally determined
in accordance with the procedures and provisions set forth in this Section 2.02(a)
is hereinafter referred to as the “Final Capital Leases Amount.”




          (v) Within five (5) days after the engagement of the Independent Firm, Seller and
Purchaser shall each furnish, at their own expense, to the Independent Firm and the other
party, a written statement of their position with respect to each matter in dispute as set
forth in the Objection Notice. Within five (5) days after expiration of the original five
(5) day period, Seller and Purchaser may deliver to the Independent Firm and to the other
party their response to the other’s position on matters in dispute. With each submission,
Seller and Purchaser may also furnish to the Independent Firm such other information and
documents as they deem relevant or such information and documents as may be requested by the
Independent Firm with appropriate copies or notification being given to the other party.
The Independent Firm may, in its discretion, conduct a conference concerning the
disagreement with Seller and Purchaser, at which conference each party shall have the right
to present additional documents, materials and other information and to have present its
advisors, counsel and accountants. In connection with such process, there shall be no
hearings, oral examinations, testimony, depositions, discovery or other similar proceedings
conducted by any party or by the Independent Firm.




          (vi) Purchaser shall pay any fees owing to Crowe in connection with its engagement
under this Section 2.02(a). Any fees owing to the Independent Firm in connection
with its engagement under this Section 2.02(a) shall be paid by Purchaser and/or
Seller in direct proportion to the amounts of the disputed items that are lost by Purchaser
and/or Seller, as the case may be, determined at the time of the final resolution of this
matter by the Independent Firm.



5









 






          (vii) In the event that the Final Stockholder Equity is less than $47,500,000, Seller
and each of the Seller Owners jointly and severally shall pay Purchaser the amount equal to
the difference in cash by wire transfer of immediately available funds. In the event that
the Final Stockholder Equity is greater or equal to $47,500,000, no adjustment to the
Purchase Price shall be made pursuant to this Section 2.02(a)(vii).




          (viii) In the event of an upward Cash Adjustment as finally determined pursuant to this
Section 2.02(a), Purchaser shall pay Seller the amount equal to the upward Cash
Adjustment, and in the event of a downward Cash Adjustment as finally determined pursuant to
this Section 2.02(a) Seller and each of the Seller Owners jointly and severally
shall pay Purchaser the amount equal to the downward Cash Adjustment as finally determined
pursuant to this Section 2.02(a), in each case, in cash by wire transfer of
immediately available funds.




          (ix) In the event that the Estimated Capital Leases Amount exceeds the Final Capital
Leases Amount, Purchaser shall pay Seller the amount equal to the difference in cash by wire
transfer of immediately available funds. In the event that the Final Capital Leases Amount
exceeds the Estimated Capital Leases Amount, Seller and each of the Seller Owners jointly
and severally shall pay Purchaser the amount equal to the difference in cash by wire
transfer of immediately available funds.




          (x) Seller and/or Purchaser shall make any payments pursuant to Sections
2.02(a)(vii), (a)(viii) and/or (a)(ix) within three (3) Business Days
following the date on which the Final Stockholder Equity, the Final Closing Cash and the
Final Capital Leases Amount have all been determined pursuant to this Section
2.02(a). Any amounts payable to Seller pursuant to Section 2.02(a)(viii) and/or
(a)(ix) shall be netted against any amount payable to Purchaser pursuant to
Section  2.02(a)(vii).



          (b) Withholding Rights. Purchaser shall be entitled to deduct and withhold from
amounts otherwise payable pursuant to this Agreement to Seller such amounts as Purchaser is
required to deduct and withhold with respect to the making of such payment under the Internal
Revenue Code of 1986, as amended (the “Code”) or any provision of state, local or foreign
tax law; provided, that Purchaser and Seller shall use reasonable efforts to cooperate to
reduce or eliminate any such withholding. To the extent that amounts are so withheld and paid over
to the appropriate taxing authority by Purchaser such withheld amounts shall be treated for all
purposes of this Agreement as having been paid to Seller.




Article III

REPRESENTATIONS AND WARRANTIES OF

SELLER, HOLDINGS AND THE COMPANY




     Except as set forth in the corresponding sections or subsections of the disclosure letter
delivered to Purchaser by Seller, Holdings and the Company prior to entering into this Agreement
(the “Disclosure Schedule”), Seller, Holdings and the Company hereby jointly and severally
represent, warrant and agree, as follows (it being agreed that the disclosure of any matter in any
section or subsection of the Disclosure Schedule shall be deemed to be a disclosure



6









 




in another section or subsection in the Disclosure Schedule only to the extent that it is
reasonably apparent from the face of such disclosure that it is relevant to such other section or
subsection):




          SECTION
3.01 Organization; Good Standing. 

     Each Company Party is an entity duly
organized, validly existing and in good standing under the laws of the state of its incorporation
or organization, has full power and authority, corporate and other, to own and operate its property
(including the operation of leased property), and to carry on its business as it is now being
conducted, and is duly qualified or licensed as a foreign corporation to do business and is in good
standing in each jurisdiction (all of which other jurisdictions, if any, are listed in Section 3.01
of the Disclosure Schedule) in which the character of the property owned or the nature of the
business transacted by it makes such qualification or licensing necessary, except to the extent
failure to be qualified in such jurisdiction would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect. True and complete copies of the
Articles of Incorporation and By-laws or Certificate of Formation and limited liability company
agreement (or similar documents and instruments), including all amendments thereto, as in effect on
the date hereof (the “Organizational Documents”), of each Company Party have been delivered
to Purchaser or made available to Purchaser prior to the date hereof on the Company’s datasite on
Bowne SmartRoom established in connection with the transactions contemplated by this Agreement (the
“Datasite”). “Subsidiaries” means, when used with reference to any Person, any
corporation, partnership, limited liability company or other entity, a majority of the outstanding
voting power or economic interests of which is owned directly or indirectly by such Person.
“Person” means any individual, corporation (including not-for-profit), general or limited
partnership, limited liability company, joint venture, estate, trust, association, organization,
Governmental Entity (as defined in Section 3.05) or other entity of any kind or
nature.




          SECTION
3.02 Capitalization; Subsidiaries.


          (a) Holdings’ authorized capital
stock consists solely of 1,000 shares of common stock, par value $0.01 per share (the “Holdings
Common Stock”), all of which shares of Holdings Common Stock are issued and outstanding. All
outstanding shares of Holdings Common Stock are validly issued, fully paid and nonassessable.
Seller owns, free and clear of any Liens (other than Liens which shall not survive the Closing (but
subject to the filing of UCC-3 termination statements for Liens described in clause (D) of the
definition of Permitted Liens)), all of the issued and outstanding shares of Holdings Common Stock.




          (b) Section 3.02(b) of the Disclosure Schedule contains a true and complete list, as of the
date hereof, of each Subsidiary of Holdings. All outstanding equity interests of each such
Subsidiary are validly issued, fully paid and nonassessable, except
as set forth on Section 3.02(b) of the Disclosure Schedule. Holdings owns, free and clear of any Liens (other
than Liens which shall not survive the Closing), all of the issued and outstanding equity interests
of its Subsidiaries.




          (c) Except as set forth above, there are no outstanding subscriptions, options, rights,
warrants or other commitments entitling any person to purchase or otherwise subscribe for or
acquire any shares of capital stock or other equity or voting interests of any Company Party or any security convertible into or exchangeable for shares of capital stock or other equity or
voting interests of any Company Party, nor is there presently outstanding any security convertible
into or exchangeable for shares of capital stock or other equity or voting interests of any Company






7









 








Party, nor has any Company Party entered into any agreement with respect to any of the foregoing.
No Company Party has any obligation to repurchase, redeem or otherwise acquire any shares of
capital stock of, or other equity or voting interests in, any Company Party. There are no
irrevocable proxies and no voting agreements to which any Company Party is a party with respect to
any shares of the capital stock or other equity or voting securities of any Company Party.




          SECTION
3.03 No Operations. 

          (a) Except as set forth in Section 3.02(b) of the
Disclosure Schedule, Holdings does not have, nor has Holdings ever had, any Subsidiaries, and
Holdings does not own, nor has the Company ever owned, directly or indirectly, any capital stock
of, or other equity or voting interests in, any Person. Holdings has never (i) directly operated
any business, manufactured or sold any products (including the Products) or provided any services;
(ii) except as set forth on Section 3.03(a) of the Disclosure Schedule, incurred any liabilities or
obligations of any kind, including but not limited to any liabilities that are known or unknown,
secured or unsecured (whether accrued, absolute, contingent or otherwise) (except for liabilities
for Taxes and except for de minimis liabilities related to its formation); (iii) directly owned or
leased, or been in possession of, any assets or properties of any kind, including but not limited
to any real property interest, machinery or equipment, inventory, accounts receivable, Intellectual
Property Rights and Licenses (except for the equity interests in the Company and Heartland
Financial Services, LLC (“HFS”)); (iv) directly employed or engaged any employees,
consultants or agents (except for legal counsel and for accountants rendering routine accounting
services) or maintained any Company Benefit Plans (as defined in Section 3.20(a)); or
(v) except as set forth on Section 3.03(a)(v) of the Disclosure Schedule been a party to or bound
by any agreement or any contracts, commitments or understandings other than with respect to its
Organizational Documents.




          (b) On September 15, 2010, the sole member of HFS approved the dissolution of HFS and caused
the certificate of dissolution of HFS to be filed with the Indiana Secretary of State, specifying
that such dissolution shall be effective September 16, 2010. A copy of such certificate of
dissolution has been delivered to Purchaser or made available on the Datasite. HFS never owned
any capital stock of, or other equity or voting interests in, any Person. Except as set forth in
Section 3.03(b) of the Disclosure Schedule, HFS never directly or indirectly (i) operated
any business, manufactured or sold any products (including the Products) or provided any services;
(ii) incurred any liabilities or obligations of any kind, including but not limited to any
liabilities that are known or unknown, secured or unsecured (whether accrued, absolute, contingent
or otherwise) except for de minimis liabilities related to its formation; (iii) owned or leased, or
possessed any assets or properties of any kind, including but not limited to any real property
interest, machinery or equipment, inventory, accounts receivable, Intellectual Property Rights and
Licenses; (iv) employed or engaged any employees, consultants or agents (except for legal counsel
and accountants rendering routine accounting services); or (v) was a party to or was bound by any
agreement or any contracts, commitments or understandings, other than with respect to its
Organizational Documents.




          SECTION
3.04 Authority Relative to this Agreement. 

     Each Company Party has the
full legal right and power and all authority and approval required by law to enter into this
Agreement and the documents and instruments to be executed and delivered by it pursuant hereto, and
to perform fully its obligations hereunder and thereunder. The execution, delivery





8












 





and performance by each Company Party of this Agreement and the documents and
instruments to be executed and delivered by it pursuant hereto have been duly authorized by all
requisite corporate or other action (including all action required of Holdings’ Board of Directors
(including any committees of Holdings’ Board of Directors, to the extent applicable) and Seller),
and no other corporate proceedings or other action on the part of any Company Party are necessary
to approve this Agreement or the documents and instruments to be executed and delivered by it
pursuant hereto, or to consummate the transactions contemplated hereby or thereby. This Agreement
is, and the documents and instruments to be executed and delivered by a Company Party pursuant
hereto will be, duly executed and delivered by such Company Party and is, in the case of this
Agreement, and will be, in the case of the documents and instruments to be executed and delivered
by a Company Party pursuant hereto, the legal, valid and binding obligations of such Company Party
enforceable against it in accordance with their terms.




          SECTION
3.05 Consents and Approvals; No Violations.

          (a) Except for applicable
requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR
Act”) (the requirements of the HSR Act being complied with by the Company Parties prior to the
date hereof), no filing or registration with, and no permit, authorization, consent or approval of,
any Governmental Entity (as defined below), is necessary for the consummation by the Company
Parties of the transactions contemplated by this Agreement. “Governmental Entity” means
any national, federal, state, provincial, local or foreign court, tribunal, arbitral body,
administrative agency or commission or other governmental or regulatory authority or
instrumentality.




          (b) Neither the execution and delivery of this Agreement nor the documents and instruments to
be executed and delivered pursuant hereto by the Company Parties nor the consummation by the
Company Parties of the transactions contemplated hereby or thereby, nor compliance by the Company
Parties with any of the provisions hereof or thereof, will (i) conflict with or result in any
breach of any provision of the Organizational Documents of any Company Party, (ii) except as set
forth on Section 3.05(b) of the Disclosure Schedule, result in a violation or breach of,
or constitute (with or without due notice or lapse of time or both) a default or give rise to any
right of termination, cancellation or acceleration of or loss of a material benefit under, or
result in the creation of any Lien (as defined below) (except for Permitted Liens, as defined
below) in or upon any of the properties or assets of any Company Party under, or give rise to any
increased, additional, accelerated or guaranteed rights or entitlements under, or require any
consent, approval or notice under, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, license, contract, agreement, lease or other instrument or obligation to which
any Company Party is a party or by which it or any of its properties or assets may be bound, or
(iii) violate any order, writ, injunction, decree, statute, rule or regulation applicable to any
Company Party or any of its properties or assets, except in the case of (ii) or (iii) for
violations, breaches or defaults which would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect. For purposes of this Agreement, the term
“Liens” shall mean all liens, pledges, mortgages, security interests, claims, charges,
guarantee
obligations and other encumbrances of any kind or nature whatsoever (including preemptive
rights or rights of first refusal), and the term “Permitted Liens” shall mean (A) Liens for
Taxes, assessments or governmental charges, or landlords’, mechanics’, materialmen’s, carrier’s,
supplier’s or similar Liens, in each case that are not delinquent or which are being contested in
good faith (and in the case of contested liens, are set forth on Section 3.05(b) of the Disclosure






9









 








Schedule; (B) zoning, building codes and other land use laws regulating the use or occupancy of
Real Property or the activities conducted thereon which are imposed by any Governmental Entity
having jurisdiction over such Real Property which are not violated by the current use or occupancy
of such Real Property or the operation of the Business or any violation of which would not,
individually or in the aggregate, reasonably be expected to have a material adverse effect on the
value of the Real Property; (C) easements, covenants, conditions, restrictions and other similar
matters affecting title to the Real Property which (i) are listed on Schedule B of that certain
Owner’s Policy of Title Insurance number 511001801, dated April 9, 2010, issued by Lawyers Title
Insurance Corporation or (ii) would not, individually or in the aggregate, reasonably be expected
to have a material adverse effect on the value of any Real Property; and (D) Liens to be released
at Closing securing the obligations of the Company for indebtedness to be paid off at Closing
pursuant to Section 2.02(a)(i). For the avoidance of doubt, licenses of Intellectual
Property Rights shall not be deemed “Liens” hereunder.




          SECTION
3.06 Financial Statements. 


     Section 3.06 of the Disclosure
Schedule contains (a) the balance sheet of the Company as of January 2, 2010 (the “Company
Audited Balance Sheet”), January 3, 2009 and December 29, 2007 and the related statements of
income, retained earnings and cash flow for the fiscal years then ended, together with the notes
thereto, audited by Crowe, certified public accountants (together with the Company Audited Balance
Sheet, the “Company Audited Statements”); (b) the unaudited balance sheet of the Company as
of July 31, 2010, and the related unaudited statements of income, retained earnings and cash flow
for the seven-month period then ended, prepared by or on behalf of the Company (the “Company
Unaudited Statements”); and (c) the unaudited balance sheet of Holdings as of July 31, 2010
(the “Holdings Unaudited Balance Sheet”), and the related unaudited statements of income,
retained earnings and cash flow for the seven-month period then ended, prepared by or on behalf of
Holdings (together with the Holdings Unaudited Balance Sheet, the “Holdings Unaudited
Statements” and together with the Company Unaudited Statements, the “Unaudited
Statements”). All such statements (collectively, the “Financial Statements”) have been
prepared in conformity with GAAP applied on a consistent basis throughout the periods involved and
fairly present in all material respects the financial position of the Company or Holdings, as
applicable, as of the dates indicated and the results of the Company’s or Holdings’, as applicable,
operations and cash flows for the periods then ended (subject, in the case of the Unaudited
Statements, to normal and recurring year-end audit adjustments, none of which, individually or in
the aggregate, are expected, to the knowledge of the Company Parties, to be material, and the
absence of footnotes otherwise required under GAAP).




          SECTION
3.07 Absence of Undisclosed Liabilities. 


     Except as and to the extent
reflected or reserved against in the Company Audited Balance Sheet or as set forth in Section
3.07 of the Disclosure Schedule, the Company had no
liabilities or obligations that were required to be recorded in accordance with GAAP, as of
the date of such balance sheet (other than (a) obligations of continued performance under the
Material Agreements (as defined in Section 3.09) and (b) commitments and arrangements
arising in the ordinary course of business consistent with past practice, known or reasonably
estimated), secured or unsecured (whether accrued, absolute, contingent or otherwise). Except as
and to the extent reflected or reserved against in the Company Unaudited Statements or as set forth
in Section 3.07 of the Disclosure Schedule, the Company has not incurred any liabilities or
obligations since January 2, 2010 other than liabilities and commitments and arrangements incurred
in the ordinary course of business





10









 







consistent with past practice and obligations of continued
performance under the Material Agreements (as defined in Section 3.09).




          SECTION
3.08 Absence of Certain Changes or Events. 


     Except as set forth on
Section 3.08 of the Disclosure Schedule, since January 2, 2010, the Company has conducted its
business only in the ordinary course consistent with past practice, and there has not occurred any
change, event, circumstance, occurrence or condition which would, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect, and, without limiting the generality
of the foregoing, the Company has not (a) incurred any obligation or liability, secured or
unsecured (whether accrued, absolute, contingent or otherwise), whether due or to become due,
except current liabilities in the ordinary course of business consistent with past practice or
those reflected on the Company Unaudited Statements, (b) discharged or satisfied any Lien (except
for Permitted Liens), or paid any obligation or liability, except current liabilities becoming due
in the ordinary course of business consistent with past practice, (c) mortgaged, pledged, or
subjected to Lien (except for Permitted Liens) any of its properties or assets, (d) sold,
transferred, licensed or otherwise disposed of any of the Company’s material properties or assets
other than in the ordinary course of business consistent with past practice, (e) increased the
compensation payable or to become payable by it to any of its directors, officers, employees or
individual independent contractors whose total annual compensation for services rendered after any
such increase is more than $125,000, except as provided by any agreement, either written or oral,
the terms of which have been disclosed on Section 3.08 of the Disclosure Schedule, or made any
bonus, percentage of compensation or other like benefit accruing to or for the credit of any such
directors, officers, employees or independent contractors (except in the ordinary course of
business consistent with past practices and in accordance with any Company Benefit Plan set forth
in Section 3.20 of the Disclosure Schedule), (f) terminated or received any notice of termination
of any Material Agreement, trademark, trade secret, patent, patent application, copyright or trade
name protection, (g) suffered any damage, destruction or Loss (whether or not covered by insurance)
to its properties or assets which, individually or in the aggregate, has resulted in or would,
individually or in the aggregate, reasonably be expected to result in, a Material Adverse Effect,
(h) suffered any taking or seizure of all or any part of its properties or assets by condemnation
or eminent domain, (i) experienced any material change in its relations with its vendors,
suppliers, lenders, dealers, distributors or customers which, individually or in the aggregate, has
resulted in or would, individually or in the aggregate, reasonably be expected to result in, a
Material Adverse Effect, (j) acquired any capital stock or other securities of any Person or any
interest in any Person, or otherwise made any loan or advance to or investment in any Person (other
than advances to employees for expenses in the ordinary course of business consistent with past
practice), (k) made any capital expenditures or capital additions exceeding $100,000 singly or
$500,000 in the
aggregate, (l) instituted, settled or agreed to settle any litigation, action or proceeding
before any court or governmental body affecting its financial condition, its property or its
business operations involving a single claim (or series of related claims) with damages requested,
agreed upon or paid in excess of $100,000, (m) made any material purchase commitment in excess of
normal, ordinary and usual requirements, or made any material change in its selling, pricing, or
personnel practices, in each case, other than in the ordinary course of business consistent with
past practice, (n) made any change in accounting principles or methods, or in the manner of keeping
books, accounts and records of the Company which is, or may be, inconsistent with the principles or
methodology by which the Financial Statements have been prepared, (o) entered into any contract,
agreement, lease or transaction





11









 







requiring payments in excess of $100,000 per annum, except in the
ordinary course of business consistent with past practice, (p) changed the authorized capital
structure of the Company, redeemed any equity securities of the Company, issued, sold or otherwise
disposed of any equity securities of the Company or any option to acquire equity securities of the
Company, or any securities convertible into or exchangeable for equity securities of the Company or
made any declaration, setting aside or payment of any dividend or any other distribution (whether
in cash, stock or property) in respect of its equity securities, (q) other than in the ordinary
course of business: made any election with respect to Taxes (as defined in Section
3.18(k)), filed any amended Tax Return (as defined in Section 3.18(k)), entered into
any closing agreement, settled any Tax claim or assessment relating to the Company Parties and/or
HFS, surrendered any right to claim a refund of Taxes or consented to any extension or waiver of
the limitation period applicable to any Tax claim or assessment relating to the Company Parties
and/or HFS if such election, adoption, change, amendment, agreement, settlement, surrender or
consent would have the effect of materially increasing the Tax liability of the Company Parties
and/or HFS for any period ending after the Closing Date or materially decreasing any Tax attribute
of the Company existing on the Closing Date; or (r) entered into any agreement or made any
commitment to do any of the things described in the preceding subsections (a) through (q) of this
Section 3.08.




          SECTION
3.09 Material Agreements. 


     Except as set forth on Section 3.09 of the
Disclosure Schedule, the Company is not a party to any written or, to the knowledge of the Company
Parties, any oral executory agreements (including dealer and distributor agreements), vendor
purchase orders which involve the payment of more than $100,000 (other than purchase commitments
for raw materials and supplies in the ordinary course of business), bailment agreements, equipment
leases, commitments, contracts, employment agreements, repurchase or floorplan financing
agreements, warranties, guarantees, understandings or other agreements (a) which involve the
payment by the Company of more than $100,000 per annum, (b) which are of a duration in excess of
twelve (12) months from the date of execution thereof, (c) to which any equity holder, officer,
director or employee of the Company or, to the knowledge of the Company Parties, any member of such
person’s immediate family, or any business entity in which such person is a partner, majority
investor, officer or director is a party as a counterparty to the Company (other than the
Organizational Documents), (d) which contain a covenant restricting the ability of the Company (or
which, following the Closing, would restrict the ability of Purchaser or any of its Subsidiaries,
including the Company) to manufacture or sell the Products in any geographic area, compete in any
business in any geographic area or employ or solicit to employ any Persons, (e) which relate to any
indebtedness (which term shall include capital leases) of the Company or any guarantees of or by
the Company of indebtedness of any other Person, in each case in an amount in excess of
$100,000, or (f) which create or evidence a Lien (other than a Permitted Lien) upon any assets or
properties of the Company (such agreements, together with any Real Property Leases required to be
set forth in Section 3.10(b) of the Disclosure Schedule, including all amendments and modifications
thereto, being referred to herein collectively as the “Material Agreements”). True and
complete copies of each of the Material Agreements, as amended or modified to date, have been
delivered to Purchaser or made available on the Datasite. Each of the Material Agreements is in
full force and effect, is between the Company and the counterparty named on Section 3.09 of the
Disclosure Schedule and constitutes the entire material agreement between the parties thereto with
respect to the subject matter thereof. There is no default under any Material Agreement either by
the Company Party party thereto or, to the knowledge of the Company Parties, by any other party
thereto, and no





12









 







event has occurred that with notice or lapse of time or both would constitute a
default thereunder by the Company Party party thereto or, to the knowledge of the Company Parties,
any other party thereto.




          SECTION
3.10 Real Property. 


          (a) Section 3.10(a) of the Disclosure
Schedule lists all real property interests owned by the Company (the “Owned Real Property”)
and any contract for the purchase or sale of real property. The Company has good and marketable
title to the Owned Real Property, free and clear of all Liens except Permitted Liens or those
exceptions to title identified on Section 3.10(a) of the Disclosure Schedule. Each parcel of Owned
Real Property, together with all improvements located thereon, (i) complies in all material
respects with all covenants, conditions and restrictions affecting such property, either recorded
or of which the Company Parties have knowledge, (ii) is not presently occupied or used by any party
other than its owner, (iii) other than the right of Purchaser pursuant to this Agreement, is not
subject to any option to purchase or lease, right of first refusal to purchase or lease,
reversionary interest or other instrument or Lien, whether recorded or unrecorded, which would
prohibit or require the consent or waiver of another party to the transactions contemplated hereby
or any subsequent sale or lease of the property, and (iv) except for Permitted Liens or as set
forth on Section 3.10(a) of the Disclosure Schedule, is not subject to any mortgage, deed of trust
or other Lien securing debt which will not be entirely released and satisfied at the Closing. The
Company has delivered to Purchaser or made available on the Datasite or the Purchaser already had
in its possession (to the extent they predated ownership by the Company) accurate and complete
copies of all title insurance policies, surveys and other documents and records relating to the
Owned Real Property that Purchaser or its representatives have requested to the extent that such
material was actually in the possession of the Company Parties.




          (b) Section 3.10(b) of the Disclosure Schedule sets forth the address of all leases,
subleases, licenses or occupancy agreements, whether written or oral, of all real property to which
the Company is a party or is bound (the “Real Property Leases” and the premises that are
the subject of such Real Property Leases, the “Leased Real Property”). True and correct
copies of each of the written Real Property Leases (including all amendments thereto) have been
delivered to Purchaser or made available on the Datasite. Except as set forth on Section 3.10(b)
of the Disclosure Schedule, the Company has valid and enforceable leasehold interests in the Leased
Real Property, free and clear of all Liens (other than Permitted Liens), and except as set forth in
Section 3.10(b) of the Disclosure Schedule, each Real Property Lease affords the
Company peaceful and undisturbed possession of the Leased Real Property covered thereby, and
there exists no event of default or event, occurrence, condition or act (including the transactions
contemplated by this Agreement) on the part of the Company, or, to the knowledge of the Company
Parties, on the part of the lessor thereunder, which, with the giving of notice, the lapse of time
or the happening of any further event or condition, would become a material default under such Real
Property Lease, give rise to a right in the lessor to terminate the Real Property Lease or change
any of the material terms thereof or render the lessee liable to incur any expenditure under such
Real Property Lease. In the event any such Real Property Lease requires the lessee to exercise, on
or before the date hereof, an option to renew in order to continue the term thereof, the Company
has properly exercised such option to renew.




          (c) To the knowledge of the Company Parties, the Owned Real Property and the Leased Real
Property (collectively, the “Real Property”) are the only real property necessary



13









 






or
required in connection with the operation of the Business as it is now being conducted. To the
knowledge of the Company Parties, the Real Property and improvements thereon may lawfully be used
in connection with the Business.




          Notwithstanding the foregoing, no representation or warranty is made in this Section
3.10 with respect to environmental, health or safety matters, which are covered exclusively in
Sections 3.23 and 3.28.




          SECTION
3.11 Machinery and Equipment.


     All material machinery, equipment and
other tangible assets of the Company, necessary and utilized in the operation of the Business, are
in good operating condition, subject to normal wear and tear, and in a state of repair sufficient
for the conduct of normal operations without, to the knowledge of the Company Parties, the
necessity of any capital expenditure in excess of $50,000 in the aggregate. The material tangible
assets and personal properties of the Company (including material leased tangible assets and
personal properties, if any) are adequate to enable it to conduct the Business as now being
conducted. The Company has no commitment or plan to make any capital expenditure in excess of
$100,000 in the fiscal year 2010 that has not been set forth on Section 3.11 of the Disclosure
Schedule.




          SECTION
3.12 Inventories.


     
The inventories of the Company consist of raw
materials, work in process, and finished goods of a quality and quantity usable or salable in the
normal course of the Business, except for any slow moving, obsolete inventory or inventory of
below-standard quality, all of which has been written off or written down to realizable value or
for which there has been a reserve established pursuant to the Financial Statements. The valuation
at which the inventories of the Company are carried reflects the normal inventory valuation policy
of the Company (applied in accordance with GAAP).




          SECTION
3.13 Accounts Receivable.


     
The accounts receivable of the Company result
from bona fide sales made by the Company in the ordinary course of business consistent with past
practice. The amounts due in respect of such accounts receivable are not, to the knowledge of the
Company Parties, in dispute
and no setoffs or counterclaims have been asserted against any such accounts receivable other
than (i) provisions for doubtful accounts and other reserves in the accounts receivable and (ii)
setoff warranty claims netted against the account receivable of the Company Parties’ dealers in the
ordinary course of business.




          SECTION
3.14 Intellectual Property Rights.


     
As used in this Agreement,
“Intellectual Property Rights” shall mean the following: (i) trademarks, service marks,
trade names, logos, trade dress, and all registrations and applications therefor, and the good will
symbolized thereby; (ii) copyrights, copyright registrations and applications therefor, works of
authorship in any media (including print and electronic), mask works, proprietary software and
software programs, and all other rights corresponding thereto throughout the world; (iii) domain
names, uniform resource locators and other names and locators associated with the Internet; (iv)
patents and applications therefor and all reissues, divisionals, renewals, extensions,
provisionals, continuations and continuations-in-part thereof; (v) inventions (whether patentable
or not), invention disclosures, improvements, trade secrets, know-how and proprietary and/or
confidential information, in each case to the extent protectable under applicable Law; and (vi)
industrial designs and any registrations and applications therefor, and (vii) the right to recover




14









 







for damages and profits for past and future infringements and misappropriations of any part of the
foregoing and the right to sue for and recover the same throughout the world. Intellectual
Property Rights owned or used by, or material to, the Company in the conduct of the Business as
currently conducted by the Company are referred to herein as “Company Intellectual Property
Rights”.




          (a) Attached hereto as Section 3.14(a) of the Disclosure Schedule is a true and complete list
of all of the registrations and applications for registration of Company Intellectual Property
Rights owned by the Company. All of the registered Company Intellectual Property Rights listed on
Section 3.14(a) of the Disclosure Schedule are subsisting and, to the knowledge of the Company
Parties, valid and enforceable.




          (b) The Company Parties, individually and/or collectively, own, free from any Liens (other
than Permitted Liens), or are validly licensed or, to the knowledge of the Company Parties,
otherwise have the valid and enforceable right to use all the Company Intellectual Property Rights
material to the conduct of the Business as conducted by the Company as of the Closing, and, to the
knowledge of Seller or the Company Parties, none of the Company Intellectual Property Rights owned
by the Company is subject to any order or judgment that limits or restricts the Company Parties’
ability to use, assign, convey, and transfer such Intellectual Property Rights to Purchaser.
Except as set forth on Section 3.14(b) of the Disclosure Schedule no Company Parties have granted
any license or other right and have no obligation to grant any license or other right with respect
to any material Intellectual Property Rights owned by the Company.




          (c) The Company has taken reasonable measures to protect, maintain and preserve the
confidentiality of all material trade secrets owned by the Company and used in the Business as
currently conducted by the Company.




          (d) To the knowledge of the Company Parties, the Company has not in the past six (6) years
infringed upon, violated or misappropriated any Intellectual Property Rights of any other person.
Except as noted on Section 3.14(d) of the Disclosure Schedule, there is no claim, demand or
proceeding pending or, to the knowledge of the Company Parties, threatened, against the Company
that challenges the right of the Company to use any of the Company Intellectual Property Rights
(including any claim that the Company must license or refrain from using any Intellectual Property
Rights or other proprietary information of any other person but excluding office actions issued in
the ordinary course of prosecution of any Intellectual Property Rights). Except as set forth in
Section 3.14(d) of the Disclosure Schedule, to the knowledge of the Company Parties, no person has
infringed upon or misappropriated any Intellectual Property Rights owned by the Company.




          (e) Without limiting the generality of the foregoing, the licenses under which the Company
uses any third-party Intellectual Property Rights are, to the knowledge of the Company Parties, in
full force and effect. To the knowledge of the Company Parties, the Company has not breached any
such license in any material respect.




          SECTION
3.15 Licenses.


     
The Company possesses all franchises, permits, licenses,
certificates and consents required from any Governmental Entity or any other person




15









 







necessary to
enable it to carry on the Business as conducted as of Closing and to own and operate its properties
(including leased property) as owned and operated as of Closing (collectively, “Licenses”),
except for those licenses that are not, individually or in the aggregate, material to the operation
of the Business. Each of the Licenses will remain in full force and effect following consummation
of the transactions contemplated by this Agreement. Section 3.15 of the Disclosure Schedule is a
true and complete list of all such Licenses.




          Notwithstanding the foregoing, no representation or warranty is made in this Section
3.15 with respect to Environmental Permits, which are covered exclusively in Section
3.28, or Intellectual Property Rights.




          SECTION
3.16 Title to Assets.


     
The Company owns, free and clear of all Liens
whatsoever (except Permitted Liens), or the Company leases or has licenses or other rights to use,
all of the material assets and properties necessary or required in connection with the operation of
the Business as conducted as of the date hereof, and the consummation of the transactions
contemplated by this Agreement will not give rise to any Lien on such assets or properties (except
for Permitted Liens or Liens arising from the actions of or ownership by Purchaser).




          SECTION
3.17 Corporate Minute Books; Bank Accounts; Powers of Attorney.


          
(a) The
minute book of the Company contains complete and accurate records in all material respects of all
meetings which were required to be convened and other written corporate actions of the Company’s
members and directors and committees of directors or managers or committees of managers (if any)
which were required to be taken, in each case pursuant to the Organizational Documents of the
Company, applicable laws and/or any material
agreements to which the Company is a party. The minute book of Holdings contains complete and
accurate records in all material respects of all meetings convened and other written corporate
actions of the stockholders and directors or committees of directors (if any) of Holdings. True
and complete copies of the minute books of Holdings and the Company have been delivered to
Purchaser or made available on the Datasite.




          (b) Section 3.17(b) of the Disclosure Schedule contains a complete and correct list of all
bank accounts and safe deposit boxes of each Company Party and persons authorized to sign or
otherwise act with respect thereto as of the date hereof and a complete and correct list of all
persons holding a general or special power of attorney granted by any Company Party (other than
powers of attorney entered into in the ordinary course of business consistent with past practice in
connection with the importation or exportation of goods to and from Canada).




          SECTION
3.18 Taxes. 


          
Except as set forth in Section 3.18 of the Disclosure
Schedule:


          (a) Each Company Party has timely filed (or has had timely filed on its behalf) all (i)
U.S. federal income Tax Returns required to be filed by it and (ii) each other Tax Return required
to be filed by it except to the extent the failure to file such Tax Return would not result in a
material amount of unpaid Tax for a Pre-Closing Tax Period. Each Company Party has paid (or has
had paid on its behalf) all material amounts of Taxes due and payable by it for a Pre-Closing Tax
Period, except for any such Taxes being contested in good faith by appropriate proceedings or
reserved against in the Financial Statements or the Audited




16









 







Closing Balance Sheet. Each Company
Party has withheld and, to the extent due, paid over to the appropriate Governmental Entity all
material amounts of Tax required by law to be withheld, including from the wages or salaries of
employees. No Company Party has requested any extension of time within which to file any U.S.
federal income or other material Tax Return in respect of any taxable year which has not since been
filed, and no currently effective waivers regarding the application of the statute of limitations
with respect to any material Taxes or Tax Returns has been given by or on behalf of any Company
Party. For each Taxable year ending on or after December 27, 2007, true and complete copies of all
Federal and material state income Tax Returns of the Company Parties have been delivered or made
available to Purchaser.




          (b) No deficiencies, assessments or adjustments for any material amounts of Taxes have been
proposed, asserted or assessed in writing against any Company Party that are not reflected in the
Financial Statements to the extent required by GAAP, or, with respect to the period in which the
Closing occurs, that will not be reflected in the Audited Closing Balance Sheet (excluding those
Taxes resulting from or attributable to the transactions contemplated by this Agreement). There is
no audit, examination, deficiency or refund litigation pending with respect to any material amount
of Taxes and during the past three (3) years no taxing authority has given written notice of the
intent to commence any such examination, audit or refund litigation and which such examination,
audit or refund litigation has not yet ended. None of the assets or properties of any Company
Party is subject to any material Tax lien, other than any such liens for (i) Taxes which are not
due and payable, (ii) which may thereafter be paid without penalty or the validity of which are
being contested in good faith by appropriate proceedings or (iii) for which adequate provisions are
being maintained in accordance with GAAP.




          (c) Since January 1, 2008, no Company Party has constituted either a “distributing
corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code)
in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code.




          (d) There is no material amount of taxable income of a Company Party that will be required
under applicable Tax law to be reported by Purchaser or any of its affiliates, including a Company
Party, for a taxable period ending after the Closing Date as a result of any (i) adjustment
pursuant to Section 481 of the Code, (ii) “closing agreement” (as described in Section 7121 of the
Code) executed on or prior to the Closing Date; (iii) intercompany transaction or excess loss
account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or
similar provisions of state, local, or non-U.S. income Tax law); (iv) installment sale or open
transaction disposition made on or prior to the Closing Date; or (v) prepaid amount received before
the Closing with respect to transactions outside of the ordinary course of business.




          (e) Each Company Party has disclosed on its federal income Tax Returns (or has had disclosed
on its behalf) all positions taken therein that could give rise to substantial understatement of
federal income Tax within the meaning of Section 6662 of the Code.




          (f) No Company Party has, or ever had, a permanent establishment in any country other than the
United States or Canada, or has engaged in a trade or business in any country other than the United
States or Canada that subjected it to Tax in such country. To the





17









 







knowledge of the Company
Parties, no Company Party has, or ever had, a permanent establishment in Canada.




          (g) No Company Party has participated in any listed transaction, as defined in Treasury
Regulation Section 1.6011-4(b)(2).




          (h) No claim has been made in writing by a taxing authority in a jurisdiction where any
Company Party does not file Tax Returns to the effect that such Company Party is subject to
taxation by that jurisdiction.




          (i) No Company Party has been a member of an affiliated, consolidated, combined or unitary
group for Tax purposes (other than another any such group of which a Company Party is or was a
common parent).




          (j) No Company Party is a party to any tax sharing agreement, and no Company Party is under
any obligation to pay any amounts as a result of having been a party to such an agreement.




          (k) As used in this Agreement, “Taxes” shall mean all (i) domestic and foreign
(whether national, federal, state, provincial, local or otherwise) income, franchise, property,
sales, excise, employment, payroll, social security, value-added, ad valorem, transfer, withholding
and other taxes, including taxes based on or measured by gross receipts, profits, sales, use or
occupation, tariffs, levies, impositions, assessments or governmental charges of any nature
whatsoever, including any interest, penalties or additions with respect to any of the foregoing,
and (ii) liability for the payment of any amounts as a result of being party to any tax
sharing agreement or as a result of any legal obligation to indemnify any other person with
respect to the payment of any amounts of the types described in clause (i) or (ii). As used in
this Agreement, “Tax Return” shall mean any report, return, document, declaration or other
information or filing required to be supplied to any taxing authority or jurisdiction with respect
to taxes, including information returns, any documents with respect to or accompanying payments of
estimated taxes, or with respect to or accompanying requests for the extension of time in which to
file any such report, return, document, declaration or other information.




          Notwithstanding anything to the contrary contained in this Agreement, this Section
3.18, Section 3.03(a), Section 3.06 (as it relates to Taxes), Section
3.07 (as it relates to Taxes), Section 3.08(q), Section 3.19(b) and Section
3.20 contain the sole representations and warranties of Seller, Holdings and the Company
regarding Tax matters.




          SECTION
3.19 Employees. 


          
(a) General; Compliance.





               (i) Attached hereto as Section 3.19(a) of the Disclosure Schedule is a true and
complete list of the names, positions and salary rates of all present directors, officers
and employees of the Company whose total annual compensation for the fiscal year ended
January 2, 2010 was, or whose total annual compensation for the current fiscal year is
reasonably expected to be, $200,000 or more (each, a “Key Employee”), together with
a summary showing the salaries and bonuses, if any, paid or payable to such persons for the
fiscal year ended January 2, 2010 and the current fiscal year. To the knowledge of the
Company Parties, no brand manager or vice president or higher level



18









 






employee has any present
intentions to terminate his or her employment with the Company, nor does the Company have
any present intention to terminate the employment of any officer or Key Employee, whether as
a result of the consummation of the transactions contemplated by this Agreement or
otherwise.




               (ii) Within the past two years, the Company has not incurred any liability or
obligation which remains unsatisfied under the Worker Adjustment and Retraining Notification
Act or any similar state or local law.




               (iii) The Company Parties’ employment and compensation practices are in compliance, in
all material respects, with applicable federal , state, and local laws and regulations.
Without limiting the generality of this Section 3.19(a)(iii), the Company Parties
have properly calculated and paid salary and wages, including overtime pay, to all current
and former employees throughout the three year period ending on the Closing Date. The
Company Parties do not know of any employees who have performed work for which they have not
been compensated or who claim to have performed work off the clock.



          (b) Change of Control Payments. Except as set forth on Section 3.19(b) of the
Disclosure Schedule, the Company is not a party to or bound by, nor to the knowledge of the Company
Parties, is Seller or any of its affiliates a party to or bound by, (i) any agreement with any
director, officer, employee or individual independent contractor of the Company the benefits
of which are contingent, or the terms of which are materially altered, upon the occurrence of
the transactions contemplated by this Agreement (other than Seller’s incentive units), or (ii) any
agreement or plan, including without limitation, any equity incentive plan (other than Seller’s
incentive units), equity purchase plan, cash incentive plan or deferred compensation plan, any of
the benefits of which will be increased, or the vesting or other realization of the benefits of
which will be accelerated, by the occurrence of the transactions contemplated by this Agreement or
the value of any of the benefits of which will be calculated on the basis of the transactions
contemplated by this Agreement. Except as set forth in Section 3.19(b) of the Disclosure Schedule,
the Company has not made or will not become obligated to make, or will not, as a result of any
event connected with the transactions contemplated herein, make or become obligated to make, any
“excess parachute payment” as defined in Section 280G of the Code (without regard to subsection
(b)(4) thereof).




          (c) Collective Bargaining Agreements. The Company is not a party to or bound by a
collective bargaining agreement or any labor union contract. To the knowledge of the Company
Parties, there are no activities or proceedings by any labor union or labor organization to
organize any employees of the Company or to compel the Company to bargain with any union or labor
organization. There is no pending strike, work stoppage, walkout, slowdown, or other material
labor dispute, or, to the knowledge of the Company Parties, any threat thereof. No unfair labor
practice charge or proceeding has been filed, is pending or, has been threatened against the
Company.




          SECTION
3.20 Benefits Plans.


          
(a) Section 3.20 of the Disclosure Schedule
contains a true and complete list of all bonus, profit-sharing, equity purchase, equity option,
profits interest arrangement pension, retirement, loan, health, welfare, severance pay or deferred






19









 







compensation plan, programs or arrangements and other material fringe benefits, including, without
limitation, all “employee benefit plans” (as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), all “employee welfare benefit plans” (as
defined in Section 3(1) of ERISA) and all “employee pension benefit plans” (as defined in Section
3(2) of ERISA) maintained or contributed to by the Company for the benefit of any current or former
directors, officers, employees or individual independent contractors of the Company (collectively,
“Company Benefit Plans”).




          (b) The Company has delivered to Purchaser or made available on the Datasite, true and
complete copies of, to the extent applicable, (A) each written Company Benefit Plan, (B) the most
recent annual report on Form 5500 required to be filed with the Internal Revenue Service (the
“IRS”) with respect to each Company Benefit Plan (if any such report was required), (C) the
most recent summary plan description for each Company Benefit Plan for which such summary plan
description is required, (D) each trust agreement and group annuity contract relating to any
Company Benefit Plan and (E) written descriptions of any unwritten material Company Benefit Plan
and any unwritten material modifications to the terms of any material Company Benefit Plan of
which, in the case of this clause (E), the Company Parties have knowledge. Each Company Benefit
Plan has been administered in all material respects in accordance with its terms. The Company
Benefit Plans are in compliance in all
material respects with all applicable provisions of ERISA and the Code and all other
applicable law.




          (c) The Company does not maintain, contribute to, have any obligation to contribute to or any
liability or obligation (whether accrued, absolute, contingent or otherwise) with respect to any
employee benefit plan that is subject to Title IV of ERISA or Section 412 of the Code including,
without limitation, a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA.




          (d) All contributions made or required to be made under the terms of any Company Benefit Plan
for any period since January 2, 2010 have been timely made in all material respects or have been
accrued in accordance with the past custom and practice of the Company.




          (e) The Company does not have any liability or obligation to provide retiree health and/or
life benefits under any Company Benefit Plan (other than benefits required by Section 4980B of the
Code).




          SECTION 3.21 Insurance.




     Attached hereto as Section 3.21 of the Disclosure Schedule is a true and complete list of all
insurance policies maintained with respect to the assets of the Company Parties or the Business,
identifying the type of coverage, the coverage limit, the term thereof, and the annual premiums
payable thereon. To the knowledge of the Company Parties all such policies are adequate to insure
the risks covered thereby. As of the Closing Date, no Company Party is in default in any respect
nor has been denied coverage under any such policy. All reservation of rights or similar letters
regarding material losses claimed under such policies from the insurers




20









 







under such policies,
together with any material correspondence relating thereto, have been delivered to Purchaser or
made available on the Datasite. 

          SECTION
3.22 Litigation.




     Section 3.22 of the Disclosure Schedule sets forth each legal action, suit, arbitration, or
other legal or administrative proceeding or investigation pending or, to the knowledge of the
Company Parties, threatened in writing, to which any Company Party is a party. To the knowledge of
the Company Parties, except as set forth on Section 3.22 of the Disclosure Schedule, there is no
fact or facts existing which would be reasonably expected to result in or be a basis for any such
action, suit, arbitration, or other legal or administrative proceeding or investigation which, if
determined adversely to the Company Parties would reasonably be expected to result in a liability
in excess of $250,000 that are not covered by insurance or result in a material equitable remedy
against any Company Party. Section 3.22 of the Disclosure Schedule identifies, with respect to
each action, suit, arbitration, or other proceeding or investigation set forth thereon, the parties
thereto, the nature of the claim and the court or other tribunal in which such claim is being
heard. No Company Party is party to or subject to any order, writ, injunction, decree, judgment or
other restriction of any Government Entity which, individually or in the aggregate, has resulted in
or would, individually or in the aggregate, reasonably be expected to result in, a Material Adverse
Effect or would be reasonably likely to
prevent or materially delay the ability of any Company Party to enter into this Agreement or
any other documents or instruments to be executed and delivered pursuant hereto or consummate the
transactions contemplated hereby or thereby.



          SECTION 3.23 Compliance with Laws.



     Each Company Party has complied with, is in compliance with, and has not received written
notice of any violation of, any and all applicable Law (as defined below), except to the extent
such non-compliance, would not, individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect.


          “Law” means any law (both common and statute law and civil and
criminal law), treaty, convention, rule, directive, legislation, ordinance, regulatory code
(including, without limitation, statutory instruments, guidance notes, circulars, directives,
decisions, rules and regulations) or similar provision having the force of law or an order of any
Governmental Entity or any self-regulatory organization, including U.S. Export Control Laws (as
defined below), the U.S. Foreign Corrupt Practices Act of 1977, the U.S. embargo or sanctions
regulations enforced by the Office of Foreign Assets Control of the U.S. Department of the
Treasury, as amended, or applicable comparable anti-bribery laws of any other country, and laws
making illegal the payment or delivery of any fees, commissions or other sums of money or items of
property.



          “U.S. Export Control Laws” means U.S. export control laws including the Export
Administration Act, 50 U.S.C. app. §§ 2401-2420, the Arms Export Control Act, 22 U.S.C. §§
2751-2794, the Trading With the Enemy Act, 50 U.S.C. App. § 5 et seq. and the International
Emergency Economic Powers Act, 50 U.S.C. § 1701 et seq., and regulations including the Export
Administration Regulations, 15 C.F.R. Parts 730-774, and International Traffic in Arms Regulations,
22 C.F.R. Parts 120-130; U.S. Foreign Trade Regulations, 15 C.F.R. Part 30.




          Notwithstanding the foregoing, no representation or warranty is made in this Section
3.23 with respect to environmental, health or safety matters, which are covered exclusively in
Section 3.28, or Intellectual Property Rights.




21









 








          SECTION
3.24 NHTSA; Other Safety Standards.




     Except as set forth on Section 3.24 of the Disclosure Schedule, no Company Party has received
any written notices or other correspondence from the National Highway Traffic Safety Administration
(“NHTSA”) relating to the Products. To the knowledge of the Company Parties, each Company
Party has complied with NHTSA requirements in all material respects, including but not limited to
Federal Motor Vehicle Safety Standards, in effect from time to time in connection with the
manufacture of the Products. Except as set forth on Section 3.24 of the Disclosure Schedule, to
the knowledge of the Company Parties, all of the Products were at the time of sale in compliance in
all material respects with all other safety standards, including, but not limited to, all
applicable mandatory standards of the Recreational Vehicle Industry Association and the Canadian
Standards Association and those imposed on the Business prior to the Closing Date by applicable
Law, and no Company Party has received written notice of any such infractions or been required to
undertake any material remedial measures in response thereto.



          SECTION
3.25 Product Liability; Product Recalls.




     Except as set forth on Section 3.25 of the Disclosure Schedule, to the knowledge of the
Company Parties, all of the Products that the Company has manufactured and sold have been
merchantable, free from material defects in material and workmanship, and suitable for the purpose
for which they were sold in all material respects. Neither the Products nor, to the knowledge of
the Company Parties, any components of the Products supplied by third parties, have been subject to
any product recall (including any safety or NHTSA-related recall) or service bulletin and the
Financial Statements include, and the Audited Closing Balance Sheet will include, an adequate
reserve (or shall otherwise reflect an adequate accrual), determined in accordance with GAAP, for
all liability resulting or arising from any product recall that has been initiated prior to the
date hereof or breach of warranty claims that have been asserted prior to the date hereof, in
connection with Products manufactured and sold by the Company, in each case, as of the date of such
Financial Statements or Audited Closing Balance Sheet, as the case may be.



          SECTION
3.26 Warranties.




     The Company has not issued or provided any oral or written warranties on the Products
manufactured or sold by the Company, other than as set forth and described in Section 3.26 of the
Disclosure Schedule and any warranties that may be imposed by operation of Law.



          SECTION
3.27 Dealer Network; Rebates and Refunds.




          (a) Section 3.27(a) of the Disclosure Schedule sets
forth a true and complete list of the Company’s top ten (10) dealers (the “Top Dealers”) in
terms of the Company’s sales, together with the sales made thereto, for the fiscal year ended
January 2, 2010 and for the period January 3, 2010 through July 31, 2010. True and complete copies
of any written dealer agreements, if any, with the Top Dealers have been delivered to Purchaser or
made available on the Datasite. To the knowledge of the Company Parties, there has been no
material adverse change in the Company’s relationship with any of the Top Dealers, nor, to the
knowledge of the Company Parties has any such Top Dealer indicated to the Company in writing that
it does not intend to continue to carry the Products.




          (b) The Company Parties have disclosed or delivered to Purchaser or made available on the
Datasite (i) all material refunds, rebates, discounts and return policies or practices that the
Company has engaged in with respect to persons supplying goods and services to the Company and (ii)
all material annual programs relating to refunds, rebates, discounts and





22









 







return policies or
practices that the Company has engaged in with respect to furnishing the Products to others in
connection with the Business.




          SECTION
3.28 Environmental Matters.


     
Except as set forth in Section 3.28 of the
Disclosure Schedule:




          (a) Permits and Authorizations. Each Company Party possesses all Environmental
Permits (as defined below) necessary to conduct and operate the Business and
related operations as currently conducted, except for those Environmental Permits that are
not, individually or in the aggregate, material to the operation of the Business.




          (b) Compliance.





               (i) Each Company Party possesses, has for the past five (5) years complied with, and is
in compliance with all Environmental Permits (as defined below) necessary to occupy the
facilities and conduct and operate the Business and related operations as currently
conducted other than the failure to possess or non-compliance that would not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Effect. All
Environmental Permits are in full force and effect, free from breach, and the transactions
contemplated by this Agreement will not adversely affect them except as would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect.




               (ii) No Company Party has received any (x) oral or written communication from any
Governmental Entity or other person that alleges that such Company Party or any of its
facilities has violated or is liable under any Environmental Law, including any
investigatory, remedial or corrective liabilities; or (y) written request for information
pursuant to Section 104(e) of the U.S. Comprehensive Environmental Response, Compensation
and Liability Act or similar state statute concerning the treatment, recycling, storage,
disposal or arrangement for disposal of Hazardous Materials (as defined below); in each case
that remains pending or unresolved other than any of the foregoing that would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect.




               (iii) There exists no present, or to the knowledge of the Company Parties, no past,
facts, events, conditions, circumstances, activities, practices, incidents, actions or plans
of the Company (or, to the knowledge of Seller or the Company Parties, it predecessors)
which would reasonably be expected to cause noncompliance with any applicable Environmental
Laws or Environmental Permits, or which would reasonably be expected to give rise to any
liability under Environmental Laws for any claim, action, suit, proceeding, hearing or
investigation, including, those based on or related to the disposal, arrangement for
disposal, storage, handling, manufacture, processing, distribution, use, treatment or
transportation, or the emission, discharge, Release or threatened Release into the
environment by the Company (or, to the knowledge of Seller or the Company Parties, its
predecessors) of any Hazardous Materials, except in each case as would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company
Parties have reported to the appropriate



23









 






environmental agencies, to the extent required by
applicable Environmental Laws, all past and present sites owned or operated by the Company
Parties (or its predecessors) where Hazardous Materials have been treated, stored, disposed
of or otherwise handled, except to the extent the failure to report would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.




               (iv) The transactions will not result in any liabilities for site investigation or
cleanup, or require the consent of any person, pursuant to any
Environmental Laws, including any so-called “transaction-triggered” or “responsible
party transfer” requirements, other than any of the foregoing that would not reasonably be
expected to have a Material Adverse Effect.



          (c) Environmental Claims. There are no Environmental Claims (as defined below) (i)
pending or, to the knowledge of the Company Parties, threatened against any Company Party or (ii)
to the knowledge of the Company Parties, pending or threatened against any person whose liability
for any Environmental Claim any Company Party has retained or assumed, either contractually or by
operation of law; except in each case for clauses (i) and (ii) above for such Environmental Claims
which would not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect. Except as set forth in Section 3.26(c) of the Disclosure Schedule, no Company
Party (or any of its predecessors or affiliates) has contractually retained or assumed any
liabilities or obligations of any other person relating to Environmental Laws, including any
obligation for corrective or remedial action, that would be expected to provide the basis for any
Environmental Claim, except for such liabilities or obligations that would not, individually or in
the aggregate, reasonably be expected to result in a Material Adverse Effect. There are not any,
nor have there been any, Environmental Claims pending or, to the knowledge of the Company Parties,
threatened against any Company Party by any landlord or third party pursuant to any of the Real
Property Leases, nor, to the knowledge of the Company Parties, is there currently, or has there
been previously, any basis therefor, except for such Environmental Claims which would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
There is no on-site or off-site location to which any Company Party has transported or disposed of
Hazardous Materials or arranged for the transportation or disposal of Hazardous Materials which is
the subject of any enforcement action or any other investigation by any Governmental Entity which
would reasonably be expected to lead to any claim against any Company Party for any response costs,
clean-up cost, remedial or corrective work, or damage to natural resources under any Environmental
Law and there is no on-site or off-site location to which any Company Party has transported or
disposed of Hazardous Materials or arranged for the transportation or disposal of Hazardous
Materials which would reasonably be expected to become the subject of any enforcement action by any
Governmental Entity which would lead to any liability of the Company for any clean-up cost,
remedial work, or damage to natural resources under any Environmental Law, except in each case for
any of the foregoing which would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect.




          (d) Releases. To the knowledge of the Company Parties, there has been no Release (as
defined below) or threatened Release of any Hazardous Materials at, from, in, to, under or on any
property currently or previously owned or operated by any Company Party, other than in compliance
with applicable Environmental Laws or the terms of any applicable




24









 







Environmental Permit or as would
not reasonably be expected to result in liability under Environmental Laws, and no such property is
contaminated by any Hazardous Materials that would reasonably be expected to form the basis of any
Environmental Claim, except for such Releases which would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.




          (e) Recognized Environmental Conditions. None of the following exists at any Owned
Real Property and none of the following exist at any Leased Real Property where any
Company Party has responsibility for or liability with respect to any of the following: (i)
under or above-ground storage tanks, (ii) asbestos containing material in any form or condition,
(iii) materials or equipment containing polychlorinated biphenyls (“PCBs”), or (iv)
landfills, surface impoundments, or disposal areas; except in each case for any of the foregoing
which would not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect. Holdings has delivered to Purchaser or made available on the Datasite copies of
all material environmental investigations, assessments, studies, audits, reviews and other analyses
conducted by or on behalf, and which are in the possession, of any Company Party respecting any
facility site or other property previously or presently owned or operated by any Company Party.




          (f) Notwithstanding anything herein to the contrary, the representations and warranties in
this Section 3.28 are the sole and exclusive representations and warranties of the Company
concerning environmental, health or safety matters, including any matters arising under
Environmental Laws or relating to Hazardous Materials.




          (g) Definitions.





               (i) “Environmental Claims” means any and all regulatory or judicial written
actions, orders, decrees, suits, demand letters, directives, claims, liens, investigations,
proceedings or notices of noncompliance or violation by any Governmental Entity or other
person alleging potential responsibility or liability of any Company Party under
Environmental Laws, including potential or actual responsibility or liability for costs of
enforcement, investigation, cleanup, governmental response, removal or remediation, for
natural resources damages, administrative or criminal penalties or for contribution,
indemnification, cost recovery, compensation or injunctive relief arising out of, based on
or related to (A) the presence, Release or threatened Release of, any Hazardous Materials at
any location, whether or not owned, operated, leased or managed by any Company Party, or (B)
circumstances forming the basis of any violation or alleged violation of any Environmental
Law or Environmental Permit by any Company Party.




               (ii) “Environmental Laws” means all domestic or foreign (whether national,
federal, state, provincial or otherwise) laws, rules, regulations, orders, decrees, common
law, judgments or legally binding agreements issued, promulgated or entered into by or with
any Governmental Entity as enacted prior to the Closing Date and in effect on the Closing
Date relating to pollution or protection of the environment (including ambient air, surface
water, groundwater, soils or subsurface strata) or protection of worker health and safety as
it relates to the environment, including laws and regulations relating to Releases or
threatened Releases of Hazardous Materials or




25












 






otherwise relating to the presence, production, emission, discharge, recycling,
transfer, disposal, importing, labeling, testing, generation, manufacture, processing,
distribution, use, treatment, storage, transport, handling of or exposure to, or other
action or failure to act involving cleanup of any, Hazardous Materials.




          (iii) “Environmental Permits” means all permits, licenses, registrations and
other authorizations required under applicable Environmental Laws.




          (iv) “Hazardous Materials” means all hazardous, toxic, explosive or radioactive
substances, wastes or other pollutants, including petroleum or petroleum distillates,
asbestos or asbestos-containing material, PCBs or PCB-containing materials or equipment,
radon gas, infectious or medical wastes and all other substances, pollutants, contaminants,
materials or wastes of any nature subject to investigation, control or remediation or
regulated pursuant to any Environmental Law because of their dangerous or deleterious
characteristics.




          (v) “Release” means any spill, emission, leaking, dumping, injection, pouring,
deposit, disposal, discharge, dispersal, pumping, emptying, escaping, leaching or migration
or other release into the environment (including ambient air, surface water, groundwater,
land surface or subsurface strata).



          SECTION 3.29 Disclosure. No representation or warranty made pursuant to this
Article III contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the circumstances in which they are
made, not false or misleading.

          SECTION
3.30  Certain Interests.Except as set forth in
Section 3.30 of the Disclosure Schedule, no Company Party has any economic, voting or ownership
interest in any competitor, supplier or customer of the Company or the Business.


          SECTION
3.31 Business Names.Except as set forth in Section 3.31 of the Disclosure Schedule, the
Company does not, and in the past five (5) years has not, conducted the Business under any
fictitious business names.

          SECTION
3.32 No Additional Representations.


     EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS ARTICLE  III, (A) NEITHER HOLDINGS
NOR THE COMPANY MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES AND (B) HOLDINGS AND THE COMPANY
EXPRESSLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED,
INCLUDING AS TO THE CONDITION (INCLUDING THE ENVIRONMENTAL CONDITION), VALUE OR QUALITY OF THE
BUSINESS OR THE ASSETS OF HOLDINGS AND ITS SUBSIDIARIES, AND ANY REPRESENTATION OR WARRANTY OF
MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE
ASSETS OF HOLDINGS AND ITS SUBSIDIARIES, OR ANY PART THEREOF.




ARTICLE III.A

ADDITIONAL REPRESENTATIONS AND WARRANTIES OF SELLER




     Except as set forth in the corresponding sections or subsections of the Disclosure Schedule,
Seller represents and warrants and agrees as follows (it being agreed that the disclosure of any
matter in any section or subsection of the Disclosure Schedule shall be deemed to be a disclosure
in another section or subsection in the Disclosure Schedule only to the extent



26









 




that it is
reasonably apparent from the face of such disclosure that it is relevant to such other section or
subsection):




          SECTION 3.01A  Organization; Good Standing.




     Seller is duly organized or formed, validly existing and in good standing under the laws of
the State of Delaware.



          SECTION 3.02A Title.




          (a) Seller owns, of record and beneficially, as of the date hereof, all of the issued and
outstanding Common Stock of Holdings, free and clear of all Liens, and the consummation by Seller
of the transactions contemplated by this Agreement will not give rise to any Liens thereon.




          (b) There are no rights or other commitments entitling any person to purchase or acquire any
shares of capital stock of Holdings held by Seller or any security convertible into or exchangeable
for shares of capital stock of Holdings held by Seller, nor has Seller entered into any agreement
with respect to any of the foregoing. There are no irrevocable proxies and no voting agreements to
which Seller is a party with respect to any shares of capital stock or other voting securities of
Holdings held by Seller.




          SECTION 3.03A Authority Relative to this Agreement.




     Seller has the full legal right, power and all authority and approval required by law to enter
into this Agreement and the documents and instruments to be executed and delivered by it pursuant
hereto, and to perform fully its obligations hereunder and thereunder. The execution, delivery and
performance by Seller of this Agreement and the documents and instruments to be executed and
delivered by Seller pursuant hereto have been duly authorized by all necessary actions required
under its Organizational Documents, and no other actions or proceedings are necessary to approve
this Agreement or the documents and instruments to be executed and delivered by it pursuant hereto,
or to consummate the transactions contemplated hereby or thereby. This Agreement is, and the
documents and instruments to be executed and delivered by Seller pursuant hereto will be, duly
executed and delivered by Seller and this Agreement is, and the documents and instruments to be
executed and delivered by Seller pursuant hereto will be, the legal, valid and binding obligations
of Seller enforceable against Seller in accordance with their terms.



          SECTION 3.04A Consents and Approvals; No Violations.




          (a) Except for applicable requirements of the HSR Act, the requirements of which have been
satisfied by Seller prior to the date hereof, no filing or registration with, and no
permit, authorization, consent or approval of, any Governmental Entity is necessary for the
consummation by Seller of the transactions contemplated by this Agreement.




          (b) Neither the execution and delivery of this Agreement or the documents and instruments to
be executed and delivered pursuant hereto by Seller, nor the consummation by Seller of the
transactions contemplated hereby or thereby, nor compliance by Seller with any




27









 







of the provisions
hereof or thereof will (i) conflict with or result in any breach of any provision of the
Organizational Documents of Seller, (ii) except as set forth in Section 3.04A of the Disclosure
Schedule, result in a violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default or give rise to any right of termination, cancellation or acceleration of
or loss of a material benefit under, or result in the creation of any Lien (except for Permitted
Liens) or give rise to any increased, additional, accelerated or guaranteed rights or entitlements
under, or require any consent, approval or notice under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, contract, agreement, lease or other instrument or
obligation to which Seller is a party or by which its or any of its properties or assets may be
bound, or (iii) violate any order, writ, injunction, decree, statute, rule or regulation applicable
to Seller or any of its properties or assets, except in the case of (ii) or (iii) for violations,
breaches or defaults which would not, individually or in the aggregate, have a material adverse
effect on Seller.




          SECTION 3.05A Litigation.




     There is no legal action, suit, arbitration, or other legal or administrative proceeding or
investigation before any Governmental Entity pending or, to the knowledge of Seller, threatened in
writing, to which Seller is a party that if determined adversely to Seller, would have a material
adverse effect on the ability of Seller to perform its obligations under this Agreement or any such
other documents or instruments. Seller is not a party to or subject to any order, writ,
injunction, decree, judgment or other restriction of any Governmental Entity which would reasonably
be likely to prevent or materially delay Seller’s ability to enter into this Agreement or any other
documents or instruments to be executed and delivered pursuant hereto or consummate the
transactions contemplated hereby or thereby.



          SECTION 3.06A Related Party Transactions.




     Except as set forth on Section 3.06A of the Disclosure Schedule, neither Seller nor any
affiliate of Seller (including the Seller Owners and their respective affiliates but excluding the
Company Parties) is a party to any contract, agreement, lease or other arrangement or transaction
to which any Company Party is a counterparty or any of the Company Parties’ assets or properties
are bound (other than the Organizational Documents of the Seller and the Company Parties).



          SECTION 3.07A Ownership.




          (a) The Seller Limited Partners, collectively, beneficially own 100% of the limited
partnership interests of Seller which represent all of the economic interests of Seller.




          (b) The distribution of the Equity Consideration by Seller to the Seller Limited Partners in
accordance with Section 2.01(b) and Section 5.07 hereof is and will be in
accordance with (i) the Limited Partnership Agreement of Seller, dated as of July 2, 2007, as
amended by that certain Amendment No. 1 to Limited Partnership Agreement, dated as of May 28, 2008
(as amended, the “Seller Partnership Agreement”), and (ii) the respective Organizational
Documents of any other Person in the equity chain between Seller and the Seller Limited Partners,
including in the case of the foregoing clauses (i) and (ii) the respective




28









 







distribution waterfalls
thereunder. In determining the share amounts set forth opposite the names of the Seller Limited
Partners on Annex 2.01(b), shares have been allocated to the Seller Limited Partners in
accordance with the terms of the Seller Partnership Agreement and the Organizational Documents
described in clause (ii) of the immediately preceding sentence.




          (c) After the Closing, neither Purchaser nor any other Purchaser Indemnified Person (including
the Company Parties) shall become subject to any claim or suffer or incur any Losses whatsoever
with respect to the allocation of the Equity Consideration in accordance with the terms of this
Agreement. 




          SECTION 3.08A NO ADDITIONAL REPRESENTATIONS.




     EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE III, THIS
ARTICLE III.A, OR ARTICLE IX, SELLER (A) MAKES NO OTHER REPRESENTATIONS OR
WARRANTIES AND (B) EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE,
EXPRESS OR IMPLIED, INCLUDING AS TO THE CONDITION (INCLUDING THE ENVIRONMENTAL CONDITION), VALUE OR
QUALITY OF THE BUSINESS OR THE ASSETS OF HOLDINGS AND ITS SUBSIDIARIES, AND ANY REPRESENTATION OR
WARRANTY OF MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT
TO THE ASSETS OF HOLDINGS AND ITS SUBSIDIARIES, OR ANY PART THEREOF.



ARTICLE III.B

REPRESENTATIONS AND WARRANTIES OF THE SELLER OWNERS




     Except as set forth in the corresponding sections or subsections of the Disclosure Schedule,
each of the Seller Owners jointly and severally represents and warrants and agrees as follows (it
being agreed that the disclosure of any matter in any section or subsection of the Disclosure
Schedule shall be deemed to be a disclosure in another section or subsection in the Disclosure
Schedule only to the extent that it is reasonably apparent from the face of such disclosure that it
is relevant to such other section or subsection):



          SECTION 3.01B Organization; Good Standing.




     Each of the Seller Owners is a duly formed limited partnership, validly existing and in good
standing under the laws of the state or other jurisdiction of its organization.



          SECTION 3.02B Authority Relative to this Agreement.




     Each Seller Owner has the full legal right and power and all authority and approval required
by law to enter into this Agreement and the documents and instruments to be executed
and delivered by it pursuant hereto, and to perform fully its obligations hereunder and
thereunder. The execution, delivery and performance by each Seller Owner of this Agreement and the
documents and instruments to be executed and delivered by it pursuant hereto have been duly
authorized by all necessary actions required under its Organizational Documents and no other
actions or proceeding on the part of any Seller Owner are necessary to approve this



29









 




Agreement or
the documents and instruments to be executed and delivered by it pursuant hereto or thereto, or to
consummate the transactions contemplated hereby or thereby. This Agreement is, and the documents
and instruments to be executed and delivered by any Seller Owner pursuant hereto will be, duly
executed and delivered by such Seller Owner and this Agreement is, and the documents and
instruments to be executed and delivered by any Seller Owner will be, the legal, valid and binding
obligations of such Seller Owner enforceable against such Seller Owner in accordance with its
terms.




          SECTION 3.03B Consents and Approvals; No Violations. 


          (a) Except for applicable requirements of the HSR
Act, the requirements of which have been satisfied by the Seller Owners prior to the date hereof,
no filing or registration with, and no permit, authorization, consent or approval of, any
Governmental Entity is necessary for the consummation by the Seller Owners of the transactions
contemplated by this Agreement.




          (b) Neither the execution and delivery of this Agreement or the documents and instruments to
be executed and delivered pursuant hereto by any Seller Owner, nor the consummation by any Seller
Owner of the transactions contemplated hereby or thereby, nor compliance by any Seller Owner with
any of the provisions hereof or thereof will (i) conflict with or result in any breach of any
provision of the Organizational Documents of any Seller Owner, (ii) result in a violation or breach
of, or constitute (with or without due notice or lapse of time or both) a default or give rise to
any right of termination, cancellation or acceleration of or loss of a material benefit under, or
result in the creation of any Lien (except for Permitted Liens) or give rise to any increased,
additional, accelerated or guaranteed rights or entitlements under, or require any consent,
approval or notice under, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, agreement, lease or other instrument or obligation to which any
Seller Owner is a party or by which its or any of its properties or assets may be bound, or (iii)
violate any order, writ, injunction, decree, statute, rule or regulation applicable to any Seller
Owner or any of its properties or assets.




          SECTION 3.04B Litigation.




     There is no legal action, suit, arbitration, or other legal or administrative proceeding or
investigation before any Governmental Entity pending or, to the knowledge of Seller Owners,
threatened in writing, to which any Seller Owner is a party that if determined adversely to any
Seller Owner, would have a material adverse effect on the ability of any Seller Owner to perform
its obligations under this Agreement or any such other documents or instruments. Neither Seller
Owner is a party to or subject to any order, writ, injunction, decree, judgment or other
restriction of any Governmental Entity which would reasonably be likely to prevent or materially
delay any Seller Owner’s ability to enter into this Agreement or any other documents or instruments
to be executed and delivered pursuant hereto or consummate the transactions contemplated hereby or
thereby.



          SECTION 3.05B NO ADDITIONAL REPRESENTATIONS.




          EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS ARTICLE III.B, (A)
NEITHER SELLER OWNER MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES AND (B) SELLER OWNERS EXPRESSLY





30









 







DISCLAIM ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING AS
TO THE CONDITION (INCLUDING THE ENVIRONMENTAL CONDITION), VALUE OR QUALITY OF THE BUSINESS OR THE
ASSETS OF HOLDINGS AND ITS SUBSIDIARIES, AND ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY,
USAGE, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE ASSETS OF HOLDINGS AND
ITS SUBSIDIARIES, OR ANY PART THEREOF.




Article IV

REPRESENTATIONS AND WARRANTIES OF PURCHASER




     Except as set forth in the corresponding sections or subsections of the Disclosure Schedule,
Purchaser represents, warrants and agrees as follows (it being agreed that the disclosure of any
matter in any section or subsection of the Disclosure Schedule shall be deemed to be a disclosure
in another section or subsection in the Disclosure Schedule only to the extent that it is
reasonably apparent from the face of such disclosure that it is relevant to such other section or
subsection):



          SECTION 4.01 Organization; Good Standing. 



     Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the state of Delaware, has full
power and authority, corporate and other, to own and operate its property (including the operation
of leased property), and to carry on its business as it is now being conducted, and is duly
qualified or licensed as a foreign corporation to do business and is in good standing in each
jurisdiction in which the character of the property owned or the nature of the business transacted
by it makes such qualification or licensing necessary, except to the extent failure to be qualified
in such jurisdiction would not, individually or in the aggregate, reasonably be expected to result
in a material adverse effect on Purchaser.




          SECTION 4.02 Authority Relative to this Agreement. 


     Purchaser has the full legal
right and power and all authority and approval required by law to enter into this Agreement and the
documents and instruments to be executed and delivered by it pursuant hereto, and to perform fully
its obligations hereunder and thereunder. The execution, delivery and performance by Purchaser of
this Agreement and the documents and instruments to be executed and delivered by it pursuant hereto
have been duly authorized by all requisite corporate or other action (including all action required
of Purchaser’s of Board of Directors (including any committees of Purchaser’s Board of Directors,
to the extent applicable)), and no other corporate proceedings or other action on the part of
Purchaser are necessary to approve this Agreement or the documents and instruments to be executed
and delivered by it pursuant hereto, or to consummate the transactions contemplated hereby or
thereby. This Agreement is, and the documents and instruments to be executed and delivered by
Purchaser pursuant hereto will be, duly executed and delivered by Purchaser and is, in the
case of this Agreement, and will be, in the case of the documents and instruments to be executed
and delivered by Purchaser pursuant hereto, the legal, valid and binding obligations of Purchaser
enforceable against it in accordance with their terms.




          SECTION 4.03 Consents and Approvals; No Violations. 


          (a) Except for applicable
requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the
Securities Act of 1933, as amended (the “Securities Act”) state Blue Sky laws and the HSR
Act




31









 








(the requirements of the HSR Act being complied with by Purchaser prior to the date hereof), no
filing or registration with, and no permit, authorization, consent or approval of, any Governmental
Entity is necessary for the consummation by Purchaser of the transactions contemplated by this
Agreement.




          (b) Neither the execution and delivery of this Agreement or the documents and instruments to
be executed and delivered pursuant hereto by Purchaser nor the consummation by Purchaser of the
transactions contemplated hereby or thereby, nor compliance by Purchaser with any of the provisions
hereof or thereof, will (i) conflict with or result in any breach of any provision of the
Organizational Documents of Purchaser, (ii) result in a violation or breach of, or constitute (with
or without due notice or lapse of time or both) a default or give rise to any right of termination,
cancellation or acceleration of or loss of a material benefit under, or result in the creation of
any Lien (as defined below) (except for Permitted Liens, as defined below) in or upon any of the
properties or assets of Purchaser under, or give rise to any increased, additional, accelerated or
guaranteed rights or entitlements under, or require any consent, approval or notice under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture, license, contract,
agreement, lease or other instrument or obligation to which Purchaser is a party or by which it or
any of its properties or assets may be bound, or (iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to Purchaser or any of its properties or assets, except in
the case of (ii) or (iii) for violations, breaches or defaults which would not, in the aggregate,
have a material adverse effect and which would not prevent or materially delay or have a material
adverse effect on the consummation of the transactions contemplated hereby.




          SECTION 4.04 Litigation. 


     There is no legal action, suit, arbitration, or
other legal or administrative proceeding or investigation before any Governmental Entity pending
or, to the knowledge of Purchaser, threatened, to which Purchaser is a party that (a) except as set
forth on Section 4.04 of the Disclosure Schedule, if decided adversely to Purchaser would have a
material adverse effect on the assets or properties of Purchaser and its Subsidiaries, taken as a
whole, (b) except as set forth on Section 4.04 of the Disclosure Schedule, if adversely determined,
would be likely to have a material adverse effect on the ability of Purchaser to perform its
obligations under this Agreement or any such other documents or instruments. To the knowledge of
Purchaser, there is no fact or facts existing which are reasonably expected to result in, nor is
there any basis for, any such action, suit, arbitration, or other proceeding or investigation.




          SECTION 4.05 Capitalization of Purchaser. 


          The Equity Consideration will be validly issued, fully paid and nonassessable and, when
delivered by Purchaser, free and clear of any Liens whatsoever, except as set forth in the Stock
Restriction Agreements with respect to certain Seller Limited Partners, and not subject to, or
issued in violation of, any preemptive rights. The Equity Consideration will be issued in
compliance with Purchaser’s Organizational Documents and the issuance of the Equity Consideration
will not violate any provision of any Organizational Document.




          SECTION 4.06 Real Property Holding Corporation Status. 


          Purchaser is not, and
reasonably does not expect that it will become, a United States real property holding




32









 







corporation
within the meaning of Section 897(c) of the Code and the Treasury Regulations promulgated
thereunder.




          SECTION 4.07 SEC Reports.


      Since August 1, 2009, Purchaser has filed with the
Securities and Exchange Commission (the “SEC”) all reports, schedules, forms, statements,
amendments and other documents required to be filed by it under the Exchange Act, including
pursuant to Section 13(a) or 15(d), or the Securities Act thereof (collectively, the “SEC
Reports”). As of their respective dates, or, if amended, as of the date of such amendment, the
SEC Reports complied in all material respects with the requirements of the Exchange Act or the
Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder
applicable to such SEC Reports. As of their respective dates, or, if amended, as of the date of
such amendment, the SEC Reports did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading. The financial
statements (including the related notes) included in the SEC Reports comply as to form in all
material respects with applicable accounting requirements and the published rules and regulations
of the SEC with respect thereto in effect at the time of filing, have been prepared in accordance
with GAAP (except, in the case of unaudited statements, as permitted by Form 10-Q of the SEC)
applied on a basis consistent with the historical practices of Purchaser during the periods
involved (except as may be indicated in the notes thereto) and fairly present in all material
respects the consolidated financial position of Purchaser and its consolidated subsidiaries as of
the dates thereof and their consolidated results of operations and cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal and recurring year-end audit
adjustments and the absence of footnotes otherwise required under GAAP). Purchaser does not have
pending before the SEC any request for confidential treatment of information. Purchaser is not an
issuer identified in Rule 144(i)(1) under the Securities Act.




          SECTION 4.08 Private Placement. 


     Assuming the accuracy of the representations
and warranties set forth in Article III.A. (other than Section 3.06A) and the
representations and warranties of the Seller Limited Partners set forth in the Investment Letters,
no registration under the Securities Act is required for the issuance of the Equity Consideration
to the Seller Limited Partners.




          SECTION 4.09 NYSE Listing Requirements. 


     Purchaser is in compliance in all material respects with all applicable New York Stock
Exchange (“NYSE”) continued listing requirements. There are no proceedings pending or
threatened in writing, or to the Purchaser’s knowledge, threatened orally, against Purchaser
relating to the continued listing of the common stock of Purchaser on the NYSE and Purchaser has
not received any written, or to the Purchaser’s knowledge, oral notice of the delisting of its
common stock from the NYSE. The issuance by Purchaser of the Equity Consideration hereunder does
not contravene any rules and regulations of the NYSE applicable to Purchaser and does not require
the approval of Purchaser’s stockholders under any stockholder approval provision of such rules and
regulations.




          SECTION 4.10 NO ADDITIONAL REPRESENTATIONS.


     EXCEPT FOR THE REPRESENTATIONS
AND WARRANTIES SET FORTH IN THIS ARTICLE IV, OR ARTICLE IX, PURCHASER (A) MAKES NO
OTHER REPRESENTATIONS OR WARRANTIES AND (B) EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR




33









 







WARRANTIES
OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, REGARDING PURCHASER, ITS SUBSIDIARIES, THEIR RESPECTIVE
BUSINESSES OR THE EQUITY CONSIDERATION, INCLUDING AS TO THE CONDITION (INCLUDING THE ENVIRONMENTAL
CONDITION), VALUE OR QUALITY OF THEIR RESPECTIVE BUSINESSES OR ASSETS, AND ANY REPRESENTATION OR
WARRANTY OF MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT
TO THEIR RESPECTIVE ASSETS, OR ANY PART THEREOF.




Article V

COVENANTS




          SECTION 5.01 Public Disclosure. 


     The parties have agreed on the form of press
releases to be issued on the Closing Date by Seller and Purchaser, respectively. After the Closing
Date, Purchaser shall provide Seller with a copy of the proposed Form 8-K that it intends to file
with the SEC to report the transactions contemplated by this Agreement at least one (1) Business
Day prior to the filing thereof. Except for the foregoing, no party to this Agreement shall make
or cause to be made any press release or similar public announcement or communication in any form
with respect to this Agreement or the transactions contemplated hereby, without the consent of the
other parties, provided that nothing herein shall restrict any party from complying with
requirements of applicable law or the rules of the NYSE, in which event such party will provide the
other parties with a copy of the proposed press release or other public announcement to the extent
practicable at least two (2) Business Days prior to its disclosure and nothing herein shall limit
Seller Owners from discussing the transactions contemplated hereby with their respective limited
partners. This Agreement shall supersede the Confidentiality Agreement dated as of April 23, 2010,
by and between the Purchaser and the Company.




          SECTION 5.02 Books and Records.


      From and after the Closing Date, the Company Parties shall maintain such books and records of
the Company Parties as were in existence as of the Closing Date until the time for the taking of
any federal Tax audit of the Company for its fiscal year 2010 shall have expired and shall provide
Seller and its representatives reasonable access thereto following reasonable notice and during the
Company’s normal business hours, in order to enable Seller to (a) prepare its Tax Returns, and (b)
perform any other acts reasonably related to its former interest in the Company Parties and HFS;
provided, that prior to destroying such books and records, Purchaser shall notify Seller
and allow Seller to request copies of such books and records at Seller’s sole cost and expense.




          SECTION 5.03 Tax Matters. 


          (a) Any sales, use, transfer, documentary, stamp or
other similar non-income Taxes that are payable as a result of the consummation of the transactions
contemplated hereby shall be paid fifty percent (50%) by Seller and fifty percent (50%) by
Purchaser. Purchaser agrees that it shall not make an election under Section 338 of the Code (or
under any similar provision of state, local or non-United States law) with respect to its
acquisition of the Purchased Shares.




          (b) Certain State Tax Returns. Purchaser and Seller shall cooperate to file original
or amended Tax Returns in Indiana, and original or amended Tax Returns in States other than
Indiana, for certain Pre-Closing Tax Periods, in each case to reflect an apportionment of




34









 







income of
the Company Parties away from Indiana and to the other States. Notwithstanding the other
provisions of this Section 5.03, such Tax Returns (i) shall be prepared and filed in
Purchaser’s sole discretion by Purchaser’s accountants at the sole cost of Purchaser and (ii) in
the case of States other than Indiana, may, if Purchaser so determines, be filed under the
voluntary disclosure procedures of the applicable State. Notwithstanding Section 8.02(a)
and Section 8.04(a), under no circumstance shall Seller or any Seller Owner be required to
indemnify any Purchaser Indemnified Person for any Tax or other Loss arising as a direct or
indirect result of the filing of any Tax Return described in this Section 5.03(b). If, as
a result of all of the Tax Returns filed pursuant to this Section 5.03(b), taken together,
there is a net Tax cost or net Tax benefit to the Company Parties, then that net Tax cost and net
Tax Benefit shall be for the account of Purchaser and the Company Parties. Purchaser and the
Company Parties shall indemnify and hold harmless each Historic Tax Indemnitee from and against any
Tax or other Loss for any Pre-Closing Tax Period arising as a direct or indirect result of the
filing of any Tax Return described in this Section 5.03(b). As used in this Agreement,
“Historic Tax Indemnitee” shall mean the Persons listed on Annex 5.03(b).




          (c) Seller shall cause to be timely filed all Tax Returns of the Company Parties that are due
on or prior to the Closing Date. The applicable Company Party shall timely pay any Taxes shown to
be due thereon. Purchaser shall file or cause to be filed all other Tax Returns required to be
filed by the Company Parties in respect of any Pre-Closing Tax Period. Purchaser shall not cause
or permit any Company Party to file an amended Tax Return, or to modify any Tax election, of any
Company Party with respect to any Pre-Closing Tax Period, unless (i) Seller consents in its sole
discretion, or (ii) Purchaser receives and provides to Seller written advice of reputable Tax
advisors, in substance reasonably acceptable to Seller, to the effect that such amended return or
modification is required by law, or (iii) in the case of such a
filing solely to claim a refund or credit of Taxes described in the proviso to the first
sentence of Section 5.03(f), Seller consents in its reasonable discretion.




          (d) With respect to each Tax Return relating to a Company Party for a Pre-Closing Tax Period
that is required to be filed by Purchaser pursuant to Section 5.03(c), (i) all such Tax
Returns shall be filed in accordance with the prior positions and practices of the Company Parties,
unless Purchaser receives and provides to Seller written advice of reputable Tax advisors, in
substance reasonably acceptable to Seller, that a change is required by law, and (ii) Purchaser
shall provide each such Tax Return to Seller at least thirty (30) days prior to the due date of
such Tax Return for Seller’s review, and Purchaser shall make all changes reasonably requested by
Seller. The applicable Company Party shall pay any Taxes shown to be due on any such Tax Return,
to the extent that the aggregate unpaid Taxes of the Company Parties, as of the Closing Date, do
not exceed the amount of the reserve for Taxes on the Audited Closing Balance Sheet (the “Tax
Reserve”). Seller shall remit to Purchaser in accordance with Section 8.04 the amount,
if any, by which the Taxes shown to be due on any such Tax Return cause the unpaid Taxes of the
Company Parties, as of the Closing Date, to exceed the amount of the Tax Reserve. With respect to
any Pre-Closing Tax Period, upon Seller’s reasonable request and at its expense, Purchaser shall,
or shall cause the applicable Company Party to, initiate a claim for a refund of Taxes, or amend
any Tax Return, of a Company Party.




          (e) With respect to Tax Returns of the Company Parties for each Straddle Period, (i) all such
Tax Returns shall be filed in accordance with the prior positions and practices





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of the Company Parties, unless Purchaser, in consultation with reputable tax advisors,
determines that a change is required by law, and (ii) Purchaser shall provide each such Tax Return,
accompanied by an allocation in accordance with Section 8.04 between Seller and Purchaser
of the Taxes shown to be due on such Tax Return, to Seller at least thirty (30) days prior to the
due date of such Tax Return for Seller’s review. Each such Tax Return and allocation shall be
final and binding on Seller and Purchaser, unless, within twenty (20) days after the date of
receipt by Seller of such Tax Return and allocation, Seller delivers to Purchaser a written request
for changes to such Tax Return or allocation. If Seller delivers such a request, then Seller and
Purchaser shall undertake in good faith to resolve the issues raised in such request. If Seller
and Purchaser are unable to resolve any issue by the earlier of (i) ten (10) days after the date of
receipt by Purchaser of the request for changes or (ii) ten (10) days prior to the due date
(including any extension thereof) for filing of the Tax Return in question, then Seller and
Purchaser shall jointly engage the Independent Firm (in the manner set forth in Section
2.02) to resolve such dispute, and the decision of the Independent Firm shall be final. The
applicable Company Party shall pay any Taxes shown to be due on any such Tax Return, to the extent
that (i) such Taxes relate to the Post-Closing Tax Period or (ii) to the extent that such Taxes
relate to the Pre-Closing Tax Period, the aggregate unpaid Taxes of the Company Parties, as of the
Closing Date, do not exceed the amount of the Tax Reserve. Seller shall remit to Purchaser in
accordance with Section 8.04 the amount, if any, by which the Taxes (as relate to the
Pre-Closing Tax Period) shown to be due on any such Tax Return cause the unpaid Taxes of the
Company Parties, as of the Closing Date, to exceed the amount of the Tax Reserve.




          (f) Subject to Section 5.03(b), Seller shall be entitled to any refund or credit of
Taxes (including any interest paid thereon) of the Company Parties for any Pre-Closing Tax Period
and for the portion of any Straddle Period for which Seller is responsible pursuant to Section
8.04; provided however, that Purchaser and the Company Parties shall be
entitled to any refund or credit of Taxes (including any interest paid thereon) of the Company
Parties for any Pre-Closing Tax Period and for the portion of any Straddle Period for which Seller
is responsible pursuant to Section 8.04 to the extent the refund or credit results from the
carryback of net operating losses, if any, attributable to the Company Parties incurred in any
taxable year or portion thereof during the period beginning the day after the Closing Date and
ending on July 31, 2012. Purchaser will, and will cause the Company Parties to, execute such
documents, take reasonable additional actions and otherwise reasonably cooperate as may be
necessary for the Company Parties to perfect their rights in and obtain all Tax refunds and credits
for which any such Company Party is eligible and to which Seller is entitled. None of Purchaser or
any Company Party shall forfeit, fail to collect or otherwise minimize any Tax refund or credit to
which Seller would be entitled under this Section, whether through any election to carry forward a net operating
loss or otherwise.




          (g) If (i) a Governmental Entity asserts a claim for Taxes against any Company Party and (ii)
Seller could be responsible for any portion of those Taxes under Section 8.04 (any such
claim, a “Tax claim”), then the party hereto first receiving notice (whether directly, or
indirectly through an Affiliate of such party) of such Tax claim shall promptly provide to the
other parties hereto written notice specifying in reasonable detail the basis for such Tax claim
and shall include a copy of the relevant portion of any correspondence received from the
Governmental Entity in respect of such Tax claim; provided, however, that the





36









 







failure of such party to give such prompt and detailed notice shall not relieve the other party of any of its
obligations under Section 8.04, except if and only to the extent that the other party is
actually prejudiced thereby.




          (h) If, within sixty (60) days after Seller receives notice of a Tax claim (whether from a
Governmental Entity or pursuant to Section 5.03(a)), Seller provides to
Purchaser a written notice in which Seller elects to contest, and to control the defense or
prosecution of, such Tax claim (an “Election Notice”), then, subject to the provisions of
this Section 5.03, Seller shall have the right to defend or prosecute and the
right to control, at its sole cost and expense, such Tax claim by all appropriate proceedings.
For any Tax claim the defense or prosecution of which Seller controls (a “Seller Controlled
Proceeding”), (i) Seller shall defend or prosecute the Tax claim diligently and in good faith;
(ii) Seller shall not, without the prior written consent of Purchaser, which consent shall not be
unreasonably withheld, conditioned or delayed, enter into any compromise or settlement of such Tax
claim that would reasonably be expected to result in any material Tax for which Purchaser or any
Company Party would be responsible pursuant to Section 8.04(b); (iii) Seller
shall inform Purchaser of all material developments and events relating to such Tax claim
(including providing to Purchaser copies of relevant portions of all written materials relating to
such Tax claim); (iv) Purchaser shall provide or cause to be provided to Seller any information
reasonably requested by Seller relating to such Tax claim, and Purchaser shall otherwise cooperate
with Seller and its representatives in good faith in order to contest effectively such Tax claim;
(v) Purchaser or its authorized representative shall be entitled, at the expense of Purchaser, to
attend, but not participate in or control, all conferences, meetings and proceedings relating to
such Tax claim; and (vi) in the event that Purchaser reasonably withholds consent to a compromise
or settlement pursuant to clause (ii) above, Purchaser shall be entitled to assume the defense or
prosecution of such Tax claim, and, in any event, the liability of Seller in connection with such
Tax claim shall not exceed the amount of the liability under the proposed settlement or compromise
as to which Purchaser withheld consent.




          (i) Purchaser shall control the defense or prosecution of any Tax claim that is not a Seller
Controlled Proceeding (each, a “Purchaser Controlled Proceeding”). For any Purchaser
Controlled Proceeding, (i) Purchaser shall defend or prosecute the Tax claim diligently and in good
faith; (ii) Purchaser shall not, without the prior written consent of Seller, which consent shall
not be unreasonably withheld, delayed or conditioned, enter into any compromise or settlement of
such Tax claim that would reasonably be expected to result in any material Tax for which Seller
would be responsible pursuant to Section 8.04; (iii) Purchaser shall inform
Seller of all material developments and events relating to such Tax claim (including providing to
Seller copies of relevant portions of all written materials relating to such Tax claim); (iv) if
requested by Purchaser, Seller shall provide or cause to be provided to Purchaser any information
reasonably requested by Purchaser relating to such Tax claim, and Seller shall otherwise cooperate
in good faith with Purchaser and its authorized representatives in order to contest effectively
such Tax claim; and (v) Seller or its authorized representatives shall be entitled, at the expense
of Seller, to attend, but not participate in or control, all conferences, meetings and proceedings
relating to such Tax claim.




          (j) In the case of a Tax claim that relates to a Straddle Period, such Tax claim shall be
prosecuted or defended and shall be controlled by (i) Seller, if the amount of Tax for





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which Seller is responsible under Section 8.04(a) with respect to such Tax claim is
reasonably expected to equal or exceed the amount of Tax with respect to such Tax claim for which
Purchaser and the Company Parties are responsible under Section 8.04(b), and (ii)
Purchaser, otherwise. The reasonable documented costs incurred by Seller (in a proceeding described
in clause (i) of the preceding sentence) or by Purchaser (in a proceeding described in clause (ii)
of the preceding sentence) that are properly attributable to the Tax claim shall be divided between
and borne by the parties in accordance with their relative share of the underlying Tax liabilities
under Section 8.04. In the case of any such Tax claim, (i) the controlling party shall
provide the noncontrolling party with a timely and reasonably detailed account of each stage of
such Tax Claim and a copy of relevant portions of all documents relating to such Tax claim; (ii)
the controlling party shall consult with the noncontrolling party before taking any significant
action with respect to such Tax claim that would reasonably be expected to affect adversely the
noncontrolling party; (iii) the controlling party shall consult with the noncontrolling party and
offer the noncontrolling party an opportunity to comment before submitting any written materials
prepared or furnished in connection with such Tax claim (including, to the extent practicable, any
documents furnished to the applicable Governmental Entity in connection with any discovery request)
to the extent such materials concern matters in such Tax claim that would reasonably be expected to
affect adversely the noncontrolling party; (iv) unless the noncontrolling party otherwise consents
in writing, the controlling party shall defend the Tax claim diligently and in good faith as if the
controlling party were the only party in interest in connection with such Tax claim to the extent
that such Tax claim might adversely affect the noncontrolling party, and the noncontrolling party
shall reasonably facilitate to the extent requested by the controlling party, and shall not impede,
the controlling party’s control of such Tax claim; and (v) the controlling party shall not settle,
compromise, abandon or discharge any such Tax claim without obtaining the prior written consent,
which consent shall not be unreasonably withheld, delayed or conditioned, of the noncontrolling
party, if such settlement, compromise, abandonment or discharge would reasonably be expected to
have an adverse impact on the noncontrolling party. In the event that the noncontrolling party
reasonably withholds such consent pursuant to clause (v) of the preceding sentence, the
noncontrolling party shall be entitled to assume the defense of such Tax claim; provided,
however, that the original controlling party’s liability in connection with such Tax claim
shall not exceed the amount that it would have been responsible for under the proposed settlement,
compromise, abandonment or discharge.




          (k) In the case of any Tax audit, examination, contest or other proceeding (other than a Tax
Proceeding that involves a Tax claim) (“Tax Proceeding”) of any Company Party, to the
extent that such Tax Proceeding would reasonably be expected to result in any non-de minimis Tax to
a Company Party for which Seller could reasonably be expected to be responsible pursuant to
Section 8.04(a): (i) Purchaser shall not, without the prior written consent of
Seller, which consent shall not be unreasonably withheld, delayed or conditioned, enter into any
compromise or settlement of such Tax Proceeding, (ii) Purchaser shall inform Seller of all material
developments and events relating to such Tax Proceeding (including providing to Seller copies of
relevant portions of all written materials relating to such Tax Proceeding), (iii) such Tax
Proceeding shall be defended or prosecuted diligently by Purchaser in good faith as if Purchaser
were the only party in interest in such Tax Proceeding and (iv) Seller or its authorized
representatives shall be entitled, at the expense of Seller, to attend, but not participate in or
control, all conferences, meetings and proceedings relating to such Tax Proceeding. In the event
that Seller reasonably withholds consent to a compromise or settlement pursuant to clause (i) of





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the previous sentence, Seller shall be entitled to assume the defense of such Tax Proceeding;
provided, however, that the liability of Purchaser in connection with such Tax
Proceeding shall not exceed the amount of such liability under the proposed settlement or
compromise as to which Seller withheld its consent. This Section 5.03(k) shall
not eliminate or reduce any obligation of Purchaser imposed by other
provisions of this Section 5.03.




          (l) Seller, Purchaser and the Company Parties shall cooperate fully, as and to the extent
reasonably requested by any another party to this Agreement, in connection with the filing of any
Tax Return of a Company Party, in any audit, litigation or other proceeding with respect to Taxes
of a Company Party, and in allowing Seller to review Tax Returns of the Company Parties for
Pre-Closing Tax Periods and Straddle Periods. Such cooperation shall include the retention and
(upon the other party’s request) the provision of records and information that are reasonably
relevant to any such audit, litigation or other proceeding and making employees available on a
mutually convenient basis to provide additional information and explanation of any materials
provided hereunder. Seller, Purchaser, and the Company Parties agree to retain all books and
records with respect to Tax matters pertinent to the Company Parties and that relate to a
Pre-Closing Tax Period or a Straddle Period until the expiration of the applicable statute of
limitations (and, if notified in writing by another party, any extensions thereof), and to abide by
all record retention agreements entered into with any Governmental Entity. The parties agree to
give each other party reasonable written notice prior to transferring, destroying or discarding any
such books and records, and if another party so requests, to give such other party possession of
such books and records. Seller, Purchaser and the Company Parties further agree, upon request, to
use their commercially reasonable efforts to obtain any certificate or other document from any Tax
authority or any other Person or take any other action as may be necessary to mitigate, reduce or
eliminate any Tax that could be imposed on any party hereto (including with respect to the
transactions contemplated by this Agreement).





           SECTION 5.04 Indemnification of Officers and Directors. 

          The provisions of the
Organizational Documents of the Company Parties with respect to the limitation or elimination of
liability and indemnification of directors or officers in effect immediately prior to the Closing
shall not be amended, repealed or otherwise modified for a period of six (6) years after the
Closing in any manner that would adversely affect the rights thereunder of individuals who at or
prior to the Closing were directors or officers of the Company Parties, including any such director
or officer who, at the request of the Company Parties, served as an officer or director or in any
other capacity of another entity, and were entitled to indemnification pursuant to the
Organizational Documents of the Company Parties. The provisions of this Section 5.04 are
intended to be for the benefit of, and shall be enforceable by, each director or officer of the
Company Parties or other Person entitled to indemnification under the Organizational Documents of
the Company Parties immediately prior to the Closing, and each such Person’s heirs, legatees,
representatives, successors and assigns, it being expressly agreed that such Persons shall be
third-party beneficiaries of this Section 5.04.



          SECTION 5.05 Litigation Support.



     From and after the Closing, in the event and
for so long as any party hereto actively is contesting or defending against any action, suit,
proceeding, hearing, investigation, charge, complaint, claim or demand in connection with any fact, situation, circumstance, status,
condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or
transaction on or prior to the Closing Date involving the





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Company Parties, the other parties shall reasonably cooperate with the contesting or defending party and its counsel in the contest or
defense, make available its personnel, and provide such testimony and access to its books and
records as shall be necessary in connection with the contest or defense.



          SECTION 5.06 Legends. 


          (a) Until removed pursuant to the provisions of the
investor letters signed by each of the Seller Limited Partners (the “Investor Letters”),
each certificate representing the Equity Consideration shall have stamped, printed or typed thereon
the following legend:




THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED, EXCEPT (1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND A CURRENT PROSPECTUS, (2) IN ACCORDANCE WITH RULE 144
UNDER THE SECURITIES ACT, OR (3) PURSUANT TO ANOTHER APPLICABLE EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT.



          (b) In addition, each certificate issued to the parties to the Stock Restriction Agreements
shall have stamped, printed or typed thereon the legend required pursuant to the Stock Restriction
Agreement.




          SECTION 5.07 Issuance of Equity Consideration.




     Immediately following the determination of the closing price of Purchaser’s Common Stock on the
Closing Date, Seller shall deliver to Purchaser the final Annex 2.01(b) setting forth the
allocation of the Equity Consideration among the Seller Limited Partners. Immediately following
Purchaser’s receipt of the final Annex 2.01(b) from Seller (and in no event after the Closing
Date), Purchaser shall submit an instruction letter to Purchaser’s transfer agent in a form and
substance acceptable to Seller and Purchaser shall cause such transfer agent to issue the Equity
Consideration to the Seller Limited Partners in the amounts and names set forth on the final Annex
2.01(b). Purchaser shall use its reasonable best efforts to cause the transfer agent to issue such
Equity Consideration within two (2) Business Days and shall provide to the transfer agent any
documents, fees and other expenses required by the transfer agent to issue the Equity Consideration
to the Seller Limited Partners.



Article
VI
 CLOSING DELIVERABLES 




          SECTION 6.01 Closing Deliverables of Seller.



     Contemporaneously with the execution of this Agreement, Seller shall deliver the following
documents to Purchaser; provided, however, that Purchaser may waive the receipt any
one or more of such deliverables:




          (a) Evidence that all necessary written approvals of Governmental Entities and, to the extent
specified on Annex 6.01(a) annexed hereto, consents of third parties to the transactions
contemplated by this Agreement have been obtained;





40









 








          (b) Resolutions of the Board of Directors (or similar governing body) of Seller, Seller Owners
and the Company Parties (including any committees of the Board of Directors (or similar governing
body) to the extent applicable) authorizing the execution, delivery and performance of this
Agreement and the documents and instruments to be executed and delivered by them pursuant hereto,
and the transactions contemplated hereby and thereby, certified by a senior executive officer of
each such party and dated the Closing Date;




          (c) [reserved]




          (d) Payoff letters with respect to the indebtedness specified on Annex 2.01(a)(i) in
forms reasonably acceptable to Purchaser and Seller and UCC-3 termination statements reasonably
satisfactory to Purchaser pursuant to which Liens on any of the assets of the Company Parties
(except for Permitted Liens) shall be duly released or terminated;




          (e) Written certification by Seller as of the Closing Date, in compliance with Section
1.1445-2 of the Treasury Regulations, that Seller is a not a foreign person for purposes of
Sections 897 and 1445 of the Code;




          (f) Resignations, to be effective as of the Closing, in form and substance satisfactory to
Purchaser, of the officers and directors of each Company Party identified on Section 6.01(f) of the
Disclosure Schedule;




          (g) Evidence, in form and substance satisfactory to Purchaser, that the Management Services
Agreement, by and between the Company and an affiliate of the Seller Owners, dated as of February
9, 2007, has been terminated and is of no further force or effect;




          (h) Certificates representing the Purchased Shares, together with stock powers duly executed
by Seller, in form and substance satisfactory to Purchaser;




          (i) A non-competition agreement, in the form of Exhibit 6.01(i) annexed hereto, duly
executed by each of Brian Brady (“Brady”), Jack Culbertson (“Culbertson”), Tim
Hoffman (“Hoffman”) and John Rhymer (“Rhymer”) (collectively, the
“Non-Competition Agreements”);




          (j) A registration rights agreement, substantially in the form of Exhibit 6.01(j)
annexed hereto, by and among Purchaser and each Seller Limited Partner (the “Registration
Rights Agreement”), duly executed by each Seller Limited Partner;




          (k) A release, in the form of Exhibit 6.01(k) annexed hereto, duly executed by Seller,
the Seller Owners and each Seller Limited Partner (the “Seller Releases”);




          (l) [reserved]




          (m) A stock restriction agreement, in the form of Exhibit 6.01(m) annexed hereto, by
and between Purchaser and certain parties listed on Section 6.01(l) of the Disclosure Schedule (the
“Restricted Parties”) (the “Stock Restriction Agreement”), duly executed by such
Restricted Parties;





41









 








          (n) Investor Letters from each Seller Limited Partner, in the form of Exhibit 6.01(n) annexed
hereto, relating to their acquisition of the Equity Consideration in exchange for the sale of their
indirect equity interests in Holdings; and




          (o) Any further documentation or instruments as Purchaser or its counsel may reasonably
require to effectuate the terms of this Agreement.




          SECTION 6.02 Closing Deliverables of Purchaser. 


     Contemporaneously with the
execution of this Agreement, Purchaser shall deliver the following documents to Seller;
provided, however, that Seller may waive the receipt any one or more of such
deliverables:




          (a) Evidence that all necessary approvals of Governmental Entities and consents of third
parties to the transactions contemplated by this Agreement have been obtained;




          (b) Resolutions of Purchaser’s Board of Directors authorizing the execution, delivery and
performance by it of this Agreement and the documents and instruments to be executed and delivered
by Purchaser pursuant hereto, and the transactions contemplated hereby and thereby, each certified
by the Chief Executive Officer of Purchaser and dated the Closing Date;




          (c) The Cash Consideration and the Estimated Closing Cash in accordance with Section 2.01(a);




          (d) The Registration Rights Agreement, duly executed by Purchaser;




          (e) The Equity Consideration in accordance with Section 2.01(b);




          (f) The Stock Restriction Agreement, duly executed by Purchaser;




          (g) The Investor Letters, duly executed by Purchaser;




          (h) The Non-Competition Agreements, duly executed by Purchaser; and




          (i) Any further documentation or instruments as Seller or its counsel may reasonably require
to effectuate the terms of this Agreement.




Article VII

CLOSING




          SECTION 7.01 Closing. 


     The closing (the “Closing”) of the purchase and
sale of the Purchased Shares contemplated by this Agreement shall take place at 10:00 a.m., local
time, on the date hereof (the “Closing Date”) at the offices of Akin Gump Strauss Hauer &
Feld LLP, One Bryant Park, New York, New York 10036. The effective time of the Closing shall be
11:59 p.m., Eastern Daylight Time, on the Closing Date.




          SECTION 7.02 Further Assurances. 


     Each party agrees that at any time or from
time to time after the Closing Date that upon request of the other party or parties, such party, as
the case may be, will execute, acknowledge and deliver such other and further instruments and






42









 








take such other action or actions as the requesting party may reasonably request in order to effectuate
the terms of this Agreement and the documents and instruments contemplated hereby. Purchaser
shall, and shall cause the Company Parties to, reasonably cooperate with Seller and provide
information and access as reasonably requested by Seller in connection with Seller’s purchase of
representations and warranties insurance.




Article VIII

SURVIVAL; INDEMNIFICATION




          SECTION 8.01 Survival of Representations and Warranties. 


     Any investigation or
examination by Purchaser of the business, properties or affairs of the Company Parties shall not
affect the representations and warranties of Seller, Seller Owners or the Company Parties herein
contained. The respective representations and warranties of the parties herein contained shall
survive the Closing for a period of one (1) year; provided that (i) the representations and
warranties of Seller and the Company Parties set forth Sections 3.03 (No Operations),
Section 3.18 (Taxes) (other than Sections 3.18(e) and 3.18(f) which shall
not survive the Closing), and Section 3.20 (Benefit Plans) shall survive the Closing for
the applicable statute of limitations plus sixty (60) days; (ii) the representations and
warranties of Seller and the Company Parties set forth in Section 3.01 (Organization; Good
Standing), Section 3.02 (Capitalization; Subsidiaries) and Section 3.04 (Authority)
shall survive the Closing indefinitely; (iii) the representations and warranties of Seller and the
Company Parties set forth in Section 3.28 (Environmental Matters) shall survive the Closing
for a period of five (5) years; (iv) the representations and warranties of Seller and the Company
Parties set forth in Section 3.25 (Product Liability; Product Recalls), shall survive the
Closing for the earlier of (x) the applicable statute of limitations and (y) a period of five (5)
years; (v) the representations and warranties of Seller set forth in Section 3.01A
(Organization; Good Standing), Section 3.02A (Title), Section 3.03A (Authority) and
Section 3.07A (Ownership) shall survive the Closing indefinitely; (vi) the representations
and warranties of Seller Owners set forth in Section 3.01B (Organization; Good Standing)
and Section 3.02B (Authority) shall survive the Closing indefinitely; (vii) the
representations and warranties of Purchaser set forth in Section 4.01 (Organization, Good
Standing), Section 4.02 (Authority) and Section 4.05 (Capitalization of
Purchaser) shall survive the Closing indefinitely and (viii) the representations and warranties of
Purchaser set forth in Section 4.06 (Real Property Holding Company Status) shall survive
the Closing for the earlier of (x) the applicable statute of limitations and (y) a period of five
(5) years.




          SECTION 8.02 Indemnification. 


          (a) Indemnification by Seller and Seller
Owners. Seller and each Seller Owner shall, jointly and severally, indemnify, defend and hold
Purchaser and its officers, directors, employees, Subsidiaries and affiliates (“Purchaser
Indemnified Persons”) harmless from and against any and all liabilities, losses, damages,
claims, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys’
and accounting fees (collectively, “Losses”) incurred by such Purchaser Indemnified Person,
arising out of, resulting from or attributable to (i) any breach of any representation or warranty
made by Seller, Seller Owners or the Company Parties contained in this Agreement or in any schedule
hereto (other than any representations or warranties contained in Sections 3.18(e) and
3.18(f)), (ii) the nonperformance of any covenant or obligation to be performed by Seller,
Seller Owners or the Company Parties under this Agreement and/or (iii) the matters set forth on
Annex 8.02(a)(iii) to this Agreement; provided, however, that Losses shall
be reduced by any Tax Benefit Amount



43









 






resulting from, and any proceeds (after deducting any costs of collection) collected by Purchaser pursuant to Purchaser insurance policies or other contractual
indemnities which are contained outside of this Agreement (such other indemnities, “Collateral
Sources”) in connection with, the circumstances underlying the claims giving rise to
indemnification hereunder. Subject to the limitations set forth below, to the extent that any Loss
is eligible to be covered by insurance policies maintained by the Company prior to the Closing or
any Collateral Sources, the Company shall use commercially reasonable efforts to recover any Losses
from such insurance policies or Collateral Sources; provided that if any Purchaser
Indemnified Party makes any payment with respect to such Losses and within ninety (90) days of
making such payment such Purchaser Indemnified Party: (x) has not been reimbursed in full by the
insurance carrier and/or Collateral Sources under the applicable policy and/or contractual
indemnities for which recovery has been sought under this Section 8.02(a) and/or (y) any
such insurance carrier delivers a notice of denial of coverage or a reservation of rights or
similar letters under such policy or any such Collateral Source delivers a notice denying its
indemnification obligation, then such Purchaser Indemnified Party shall be permitted to immediately
seek indemnification for any Losses (including Losses associated with seeking recovery from the
insurance carrier and/or Collateral Sources) from Seller and Seller Owners as contemplated by this
Section 8.02(a). In connection with the foregoing, the Purchaser Indemnified Parties shall
not be under any obligation to keep Seller or Seller Owners notified of its correspondence with any
insurance carrier other than to inform such parties of the conditions set forth in clauses (x)
and/or (y) above.




          (b) Indemnification by Purchaser. Purchaser shall indemnify, defend and hold Seller
indemnify, defend and hold Purchaser and its officers, directors, employees, Subsidiaries and
affiliates (“Seller Indemnified Persons”) harmless from and against any and all Losses
incurred by any Seller Indemnified Persons arising out of, resulting from or attributable to (i)
any breach of any representation or warranty made by Purchaser contained in this Agreement, and/or
(ii) the nonperformance of any covenant or obligation to be performed by Purchaser under this
Agreement; provided, however, that Losses shall be reduced by any Tax Benefit
Amount and any proceeds (after deducting any costs of collection) collected by Seller or Seller Owners
pursuant to Seller or Seller Owners insurance policies or Collateral Sources in connection with the
circumstances underlying the claims giving rise to indemnification hereunder.




          (c) To the extent that there is an increase in the Tax Benefit Amount of any Indemnitee (or an
affiliate thereof) with respect to a Loss that is the subject of an indemnification payment under
this Agreement, the Indemnitor shall be entitled to such increase and the Indemnitee shall promptly
(and in any event, no later than ten (10) days after filing of the Tax Return(s) associated with
the increase in Tax Benefit Amount) pay to the Indemnitor the increase in the Tax Benefit Amount at
such times and to the extent that the Indemnitee (or affiliate thereof) actually realizes an
increase in a Tax Benefit Amount. For purposes of this Agreement, (x) “Tax Benefit Amount” shall
mean, for any taxable period of any Person with respect to any Loss, the excess of (i) such
Person’s cumulative liability for Taxes through the end of such taxable year (calculated by
excluding all Tax Attributes attributable to the Loss) over (ii) such Person’s actual cumulative
liability for Taxes through the end of such taxable year (calculated by taking into account all Tax
Attributes attributable to the Loss), and (y) “Tax Attribute” shall mean, with respect to any
Person, any item of loss, deduction, credit, basis or other Tax item of a type that decreases the
amount of Taxes paid by, or increases the amount of a Tax refund paid to, such Person.





44









 








          SECTION 8.03 Limitations on Indemnification. 





     Notwithstanding anything to the
contrary set forth in this Agreement:




          (a) Neither Seller nor any Seller Owner shall be obligated to indemnify any Purchaser
Indemnified Person for breaches of representations and warranties pursuant to Section
8.02(a)(i) (other than Fundamental Representations) and Purchaser shall not be obligated to
indemnify any Seller Indemnified Person for breaches of representations and warranties pursuant to
Section 8.02(b)(i) (other than Fundamental Representations), in each case, for any claim
the Losses for which do not exceed Ten Thousand Dollars ($10,000) (the “Threshold”).




          “Fundamental Representations” means the representations and warranties set forth in
Section 3.01 (Organization, Good Standing), Section 3.02 (Capitalization;
Subsidiaries), Section 3.01A (Organization, Good Standing), Section 3.02A (Title),
Section 3.03A (Authority), Section 3.07A (Ownership), Section 3.01B
(Organization, Good Standing), Section 3.02B (Authority), Section 4.01
(Organization; Good Standing), Section 4.02 (Authority) and Section 4.05
(Capitalization of Purchaser).




          (b) Neither Seller nor any Seller Owner shall be obligated to indemnify any Purchaser
Indemnified Person for breaches of representations and warranties pursuant to Section
8.02(a)(i) (other than Fundamental Representations) and Purchaser shall not be obligated to
indemnify any Seller Indemnified Person for breaches of representations and warranties pursuant to
Section 8.02(b)(i) (other than Fundamental Representations), in each case, until the
Purchaser Indemnified Persons or the Seller Indemnified Persons, as applicable, have incurred
aggregate Losses in excess of One Million Dollars ($1,000,000) (the “Deductible”) and then
only in excess of the Deductible; provided, that, for the avoidance of doubt, no single
Loss which is less than the Threshold shall be applied to satisfying the Deductible.




          (c) The maximum amount of all monetary Losses (the “Cap”) subject to indemnification
by Seller and Seller Owners, on the one hand, or Purchaser, on the other hand, pursuant to this
Article VIII shall be as follows:





          (i) For Losses arising out of, resulting from or attributable to breaches of
representations and warranties (other than Fundamental Representations) for which
indemnification pursuant to Section 8.02(a)(i) or Section 8.02(b)(i), as
applicable, is available, Fifteen Million Dollars ($15,000,000) in the aggregate;




          (ii) For all other Losses for which indemnification is available pursuant to pursuant
to Section 8.02(a), Section 8.02(b), Section 8.04(a) or Section
8.04(b) (other than those subject to the Cap set forth in Section 8.03(c)(i)),
the Purchase Price. In no event shall Seller’s and Seller Owners’, on the one hand, or
Purchaser’s, on the other hand, indemnification obligations under this Agreement exceed, in
the aggregate, the Purchase Price.




The value of Equity Consideration to be included in the Purchase Price for the purposes of
Section 8.03(c) shall be equal to the product of 4,300,000 multiplied by the
per share average closing price for the ten (10) consecutive trading days prior to the date
hereof.




45











 





          (d) No party responsible for indemnification under this Article VIII, shall be
liable for any consequential damages, including loss of revenue, income or profits, loss in value
of assets or securities, punitive, special or indirect damages, relating to any breach of this
Agreement, except in the case of fraud, intentional misconduct or intentional misrepresentation.




          (e) In any case where a Purchaser Indemnified Person recovers under insurance policies or from
Collateral Sources any amount in respect of a matter for which such Purchaser Indemnified Person
previously was indemnified pursuant to this Agreement, such Purchaser Indemnified Person shall
promptly pay over to Seller the amount so recovered but not in excess of the sum of (i) any amount
previously so paid to or on behalf of such Purchaser Indemnified Person in respect of such matter,
and (ii) any amount expended by Seller in pursuing or defending any claim arising out of such
matter.




          (f) In any case where a Seller Indemnified Person recovers under insurance policies or from
Collateral Sources any amount in respect of a matter for which such Seller Indemnified Person
previously was indemnified pursuant to this Agreement, such Seller Indemnified Person shall
promptly pay over to Purchaser the amount so recovered but not in excess of the sum of (i) any
amount previously so paid to or on behalf of such Seller Indemnified Person in respect of such
matter, and (ii) any amount expended by Purchaser in pursuing or defending any claim arising out of
such matter.




          (g) AFTER THE CLOSING, EXCEPT IN THE EVENT OF FRAUD, INTENTIONAL MISCONDUCT OR INTENTIONAL
MISREPRESENTATION INDEMNIFICATION PURSUANT TO THE PROVISIONS OF ARTICLES VIII AND
IX SHALL BE THE SOLE AND EXCLUSIVE REMEDY FOR MONETARY DAMAGES FOR THE PARTIES HERETO FOR
ANY MISREPRESENTATION OR BREACH OF ANY WARRANTY, COVENANT OR OTHER PROVISION CONTAINED IN THIS
AGREEMENT OR IN ANY CERTIFICATE DELIVERED PURSUANT HERETO (INCLUDING WITH RESPECT TO ANY
ENVIRONMENTAL, HEALTH OR SAFETY MATTERS, INCLUDING THOSE ARISING UNDER CERCLA OR ANY OTHER
ENVIRONMENTAL LAWS OR ANY OTHER ENVIRONMENTAL MATTERS OR TAX MATTERS); PROVIDED THAT
NOTHING IN THIS SECTION 8.03(g) SHALL LIMIT PURCHASER’S ABILITY TO RECOVER MONETARY DAMAGES FROM
THE PARTIES TO, AND PURSUANT TO, THE STOCK RESTRICTION AGREEMENTS, THE RELEASES, THE REGISTRATION
RIGHTS AGREEMENT, THE NON-COMPETITION AGREEMENTS OR THE INVESTOR LETTERS.




          (h) In valuing a Loss, no adjustment shall be made as a result of any multiple, increase
factor, or any other premium over fair market value, book or historical value which may have been
paid by Purchaser for the Purchased Stock whether or not such multiple, increase factor or other
premium had been used by Purchaser at the time of, or in connection with, calculating or preparing
its proposed purchase price for the Purchased Stock.




          SECTION 8.04 Tax Indemnification.



          (a) Seller and each Seller Owner shall,
jointly and severally, indemnify Purchaser Indemnified Persons and hold them harmless from and
against, any loss, claim, liability, expense, or other damage attributable to (i) all Taxes (or the
non-payment thereof) of the Company Parties for all taxable periods
ending on or before the



46









 







Closing
Date and the portion through the end of the Closing Date for any taxable period that includes (but
does not end on) the Closing Date (“Pre-Closing Tax Period”), (ii) all Taxes of any member
of an affiliated, consolidated, combined or unitary group of which the Company Parties (or any
predecessor of any of the foregoing) is or was a member on or prior to the Closing Date, including
pursuant to Treasury Regulation §1.1502-6 or any analogous or similar state, local, or non-U.S. law
or regulation, and (iii) any and all Taxes of any Person (other than the Company Parties) imposed
on the Company Parties as a transferee or successor, by contract (other than (x) any contract
solely among the Company Parties and (y) any credit or other commercial contract or agreement the
principal purpose of which does not relate to Taxes) or pursuant to any law, rule, or regulation,
which Taxes relate to an event or transaction occurring before the Closing; provided,
however, that in the case of clauses (i), (ii), and (iii) above, Seller and Seller Owners shall be
liable (jointly and severally) only to the extent that such Taxes exceed the sum of the Tax Reserve
and the amount of any refund or credit of Taxes described in the proviso to the first sentence of
Section 5.03(f) to which Purchaser or the Company Parties are entitled (to the extent such
refund or credit is not already accounted for in the Tax Reserve). Notwithstanding any other
provision of this Agreement, in calculating the Taxes for which Seller and Seller Owners, on the
one hand, and Purchaser and the Company Parties, on the other hand, are responsible for pursuant to
Section 8.04(a) and Section 8.04(b), any items of income and gain that arise after
the Closing on the Closing Date and that are not in the ordinary course of business of the Company
Parties shall be deemed to arise on the day immediately succeeding the Closing Date. Seller and
Seller Owners shall reimburse Purchaser for any Taxes of the Company Parties that are the
responsibility of Seller and Seller Owners pursuant to this Section 8.04(a) within fifteen
(15) Business Days after payment of such Taxes by Purchaser or the Company Parties.




          (b) Purchaser and the Company Parties shall, jointly and severally, indemnify and hold
harmless Seller and Seller Indemnified Persons from and against any Taxes of the Company Parties
(x) for any Post-Closing Tax Period or, to the extent that the responsibility for such Taxes is
allocable to Purchaser under Section 8.04(c), for any Straddle Period, or (y) arising from
any action taken by Purchaser or any Company Party on the Closing Date (after the Closing) that is
not in the ordinary course of business.




          (c) For purposes of this Agreement, including in determining the amount of Taxes for which
Seller or Purchaser is responsible under Section 8.04(a) or Section 8.04(b):





          (i) In the case of any Taxes based on the income or receipts of the Company Parties
that are payable with respect to a taxable period that includes but does not end on the
Closing Date (each, a “Straddle Period”), the portion of such Taxes allocable to (x)
the portion of the Straddle Period ending on or before the Closing Date (for which Seller
shall be responsible under Section 8.04(a)) and (y) the portion of the Straddle
Period beginning on the day next succeeding the Closing Date (for which Purchaser shall be
responsible under Section 8.04(b)) shall be determined on the basis of a deemed
closing at the end of the Closing Date of the books and records of the Company Parties.




          (ii) In the case of any Taxes (other than Taxes covered by clause (A) above) of the
Company Parties that are payable with respect to a Straddle Period, the portion of such
Taxes allocable to the portion of such period ending on or before the



47









 






Closing Date (for
which Seller shall be responsible under Section 8.04(a)) shall be equal to the
product of such Taxes multiplied by a fraction the numerator of which is the number of days
in the Straddle Period from the beginning of the Straddle Period through and including the
Closing Date and the denominator of which is the number of days in the entire Straddle
Period, and the remaining such Taxes shall be allocable to the portion of the Straddle
Period beginning on the day next succeeding the Closing Date (for which Purchaser shall be
responsible under Section 8.04(b).



          SECTION 8.05 Indemnification Procedures.



          (a) If Purchaser, on the one hand, or
Seller, on the other hand, shall receive notice of any matter which such party or any of its
officers, directors Subsidiaries, employees, agents, Subsidiaries or affiliates (any of the
foregoing, an “Indemnitee”), has determined has given, or, with respect to any matters
other than a breach of a representation or warranty set forth in Section  3.24, is
reasonably likely to result in, a right of indemnification under this Agreement, the Indemnitee
shall promptly give the indemnifying party (the “Indemnitor”) written notice of such claim,
stating the amount of the Losses, if known, and method of computation thereof, all with reasonable
particularity and including documentary proof, if available, and containing a reference to the
provisions of this Agreement in respect of which such right of indemnification is claimed or
arises; provided, however, that failure to so notify the Indemnitor shall not
relieve the Indemnitor from any liability which it may have on account of the claim, except to the
extent the Indemnitor shall have been actually and materially prejudiced by such failure.




          (b) If an Indemnitee shall receive notice of any claim or proceeding initiated by a third
party which is or may be subject to indemnification (other than in the case of a Tax claim or Tax
Proceeding, which shall be governed by the provisions of Section 5.03) (each, a “Third
Party Claim”), the Indemnitee shall promptly give the Indemnitor written notice of such Third
Party Claim; provided, however, that failure to so notify the Indemnitor shall not
relieve the Indemnitor from any liability which it may have on account of the Third Party Claim,
except to the extent the Indemnitor shall have been actually and materially prejudiced by such
failure. If the Indemnitor acknowledges in writing its obligation to indemnify the Indemnitee
hereunder against all Losses that may result from such Third Party Claim and the Indemnitee is
reasonably satisfied that the Indemnitor has sufficient funds available to pay any Losses resulting
from such Third Party Claim, then the Indemnitor shall be entitled, at its option, to assume and
control the defense of such claim by counsel of its own choice and at its own expense,
provided that the Indemnitor and its counsel shall proceed with diligence and good faith
with respect thereto and Indemnitor shall be obligated to post any bonds required in connection
with such Third Party Claim. Notwithstanding the foregoing, the Indemnitee shall have the right to
control the defense of such Third Party Claim and employ separate counsel in such Third Party Claim
and the fees and expenses of such counsel shall be at the expense of such Indemnitor if: (i) the
Indemnitor has failed to promptly assume the defense and employ counsel, (ii) the Indemnitor fails
to conduct the defense of the applicable Third Party Claim with diligence and good faith, (iii) the
Third Party Claim seeks an injunction or other equitable relief or is a criminal proceeding, (iv)
settlement of, or an adverse judgment with respect to, the Third Party Claim is, in the good faith
judgment of the Indemnitee, likely to establish a precedential custom or practice adverse to the
continuing business interests or the reputation of the Indemnitee, or (v) the named parties to any
such Third Party Claim (including any impleaded parties) include such Indemnitee and any
Indemnitor, and such Indemnitee shall have been advised by its counsel that there is a conflict of





48









 







interest between the Indemnitor and such Indemnitee with respect to such Third Party Claim or with
respect to any legal defense which may be available; provided, however, that the
Indemnitor shall not in such event be responsible hereunder for the fees and expenses of more than
one firm of separate counsel (in addition to local counsel) in connection with any claim or
proceeding.




          (c) In the event the Indemnitor exercises its right to undertake the defense of any Third
Party Claim, the Indemnitee shall cooperate with the Indemnitor in such defense and make available
to the Indemnitor witnesses, pertinent records, materials and information in its possession or
under its control relating thereto as are reasonably requested by the Indemnitor. Similarly, in
the event the Indemnitee is, directly or indirectly, conducting the defense against any Third Party
Claim, the Indemnitor shall cooperate with the Indemnitee in such defense and make available to the
Indemnitee witnesses, pertinent records, materials and information in its possession or under its
control relating thereto as are reasonably requested by the Indemnitee. No Third Party Claim may
be settled by the Indemnitor without the written consent of the Indemnitee, which consent shall not
be unreasonably withheld or delayed. No Third Party Claim which is being defended in good faith by
the Indemnitee alone, or jointly with the Indemnitor, shall be settled by the Indemnitee without
the written consent of the Indemnitor, which consent shall not be unreasonably withheld.




          SECTION 8.06 Tax Treatment of Indemnification. 

      Purchaser, Seller and Seller
Owners agree to treat for tax purposes any indemnity payment made
pursuant to this Article VIII as an adjustment to the Purchase Price.




Article IX

FINDER’S FEES




          SECTION 9.01 Finder’s Fees.



      Seller, Seller Owners and the Company Parties
represent and warrant to Purchaser that, except as set forth in Section 9.01 of the Disclosure
Schedule, and Purchaser represents and warrants to Seller and Seller Owners that, except as set
forth in Section 9.01 of the Purchaser Disclosure Schedule, that neither they nor their respective
affiliates respectively have had any dealings with any finder, broker, financial advisor or
investment banker in connection with the transactions contemplated by this Agreement. Seller and
each Seller Owner will jointly and severally indemnify and hold Purchaser harmless from and against
any and all liabilities (including but not limited to reasonable attorneys’ fees) to which it may
be subjected by reason of any finder’s, broker’s, financial advisor’s, investment banker’s or
similar fee or commission with respect to the transactions contemplated by this Agreement to the
extent such fee is attributable to any action undertaken by Seller, any Seller Owner or any Company
Party (on behalf of Seller or any Seller Owner) or their respective affiliates. Purchaser will
indemnify and hold Seller and Seller Owners harmless from and against any and all liabilities
(including but not limited to reasonable attorneys’ fees) to which it may be subjected by reason of
any finder’s, broker’s, financial advisor’s, investment banker’s or similar fee or commission with
respect to the transactions contemplated by this Agreement to the extent such fee is attributable
to any action undertaken by Purchaser or its Subsidiaries (including the Company Parties after the
Closing).




49









 









Article X

NOTICES




     Any notice required or permitted to be given by any party under this Agreement shall be given
in writing and shall be deemed effectively given upon personal delivery to the party to be
notified, on the next Business Day after delivery to a nationally recognized overnight courier
service, when sent by confirmed facsimile if sent during normal business hours of the recipient, or
if not, then on the next Business Day, or five days after deposit with the United States Post
Office, by registered or certified mail, postage prepaid, and addressed to the party to be notified
at the address or facsimile number indicated below for such party, or at such other address as such
party may designate upon written notice to the other parties (except that notice of change of
address shall be deemed given upon receipt). Telephone numbers and email addresses are provided
herein for convenience only, and communications by such means shall not constitute effective notice
hereunder.


(a)  In the case of Purchaser:



Thor Industries, Inc.

419 West Pike Street

Jackson Center, Ohio 45334

Attn: Chief Executive Officer

Facsimile: 937-596-6539

Telephone: 937-596-6849



With a copy to (which shall not constitute notice):



Akin Gump Strauss Hauer & Feld LLP

One Bryant Park

New York, New York 10036

Attn: Ackneil M. Muldrow, III, Esq.

Facsimile: 212-872-1002

Telephone: 212-872-1000

E mail: tmuldrow@akingump.com



(b)  In the case of Seller or Seller Owners:



c/o Catterton Partners

7 Greenwich Office Park

599 W. Putnam Ave., Suite 200

Greenwich, Connecticut 06830

Attn: Scott Dahnke, Marc Magliacano and David McPherson

Facsimile: 203-629-4903

Telephone: 203-629-4901

E mail: scottd@cpequity.com

             marcm@cpequity.com

             davem@cpequity.com





50









 







With a copy to (which shall not constitute notice):




Kirkland & Ellis LLP

601 Lexington Avenue

New York, New York 10022

Attn: Eunu Chun, Esq. and Ariel Yehezkel, Esq.

Facsimile: 212-446-4900

Telephone: 212-446-4800

E-mails: eunu.chun@kirkland.com

              ariel.yehezkel@kirkland.com



(c)  After the Closing, in the case of the Company Parties:



c/o Heartland Recreational Vehicles, LLC

1001 All-Pro Drive

Elkhart, Indiana 46514

Attn: Chief Executive Officer

Facsimile: 574-266-8702

Telephone: 574-266-8726

E mail: bbirish74@aol.com



and



Thor Industries, Inc.

419 West Pike Street

Jackson Center, Ohio 45334

Attn: Chief Executive Officer

Facsimile: 937-596-6539

Telephone: 937-596-6849



With a copy to (which shall not constitute notice):



Akin Gump Strauss Hauer & Feld LLP

One Bryant Park

New York, New York 10036

Attn: Ackneil M. Muldrow, III, Esq.

Facsimile: 212-872-1002

Telephone: 212-872-1000

E mail: tmuldrow@akingump.com




Article XI

MISCELLANEOUS




          SECTION 11.01 Expenses.

          (a) Except as otherwise expressly provided herein, all
costs and expenses incurred in connection with the negotiation and execution of this Agreement and
any other documents or instruments to be executed and delivered pursuant hereto, and the
transactions contemplated hereby shall be paid by the party incurring or required to incur such
expenses; provided, that Seller and each Seller Owner jointly and severally shall pay all
such




51









 







costs and expenses that Seller, the Company Parties and/or the Seller Limited Partners
incurred prior to the Closing. After the Closing, any costs and expenses incurred by any party in
connection with such party’s exercise of any rights hereunder or under the other documents and
agreements executed in connection herewith shall also be paid by the party incurring such costs and
expenses. The direction of the payment of the Cash Consideration pursuant to Section
2.01(a)(ii) shall in no way relieve Seller or the Seller Owners of their obligations under this
Section 11.01(a).




          (b) In the event that any costs or expenses of Seller, Seller Owners, Seller Limited Partners
or the Company Parties not paid by Seller pursuant to Section 4.01(a) and, instead, are
payable by the Company Parties following the Closing, such costs and expenses shall be accrued and
reserved on the Audited Closing Balance Sheet for purposes of Section 2.02.




          SECTION 11.02 Entire Agreement. 

     This Agreement, together with the Exhibits,
Schedules and Annexes annexed hereto, and the other documents and instruments to be executed and
delivered pursuant hereto and thereto, constitutes the entire understanding and agreement by and
among the parties hereto and thereto with respect to the subject matter hereof, and supersedes all
prior negotiations, agreements and understandings among such parties with respect to the subject
matter hereof.




          SECTION 11.03 Amendments and Waivers.


      Any term of this Agreement may be amended
only by an instrument in writing and signed by all the Parties hereto. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or be construed as a
further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No
failure on the part of any party hereto, to exercise, and no delay in exercising, any right, power
or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of
such right, power or remedy by any party hereto, preclude any other or further exercise thereof or
the exercise of any other right, power or remedy.




          SECTION 11.04 Successors and Assigns. 


     Neither this Agreement nor any rights
hereunder may be assigned by any party without the prior written consent of the other parties.
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.




          SECTION 11.05 Governing Law.


      This Agreement, including the validity hereof and
the rights and obligations of the parties hereunder, and all amendments and supplements hereof and
all waivers and consents hereunder, shall be construed in accordance with and governed by the
domestic substantive laws of the State of New York without giving effect to any choice of law or
conflicts of law provision or rule that would cause the application of the domestic substantive
laws of any other jurisdiction.




          SECTION 11.06 Severability.




     If any provisions of this Agreement as applied to any part or to any circumstance shall be
adjudged by a court to be invalid or unenforceable, the same shall in no way affect any other
provision of this Agreement, the application of such provision in any other circumstances or the
validity or enforceability of this Agreement.



52









 





          SECTION 11.07 No Third-Party Beneficiaries.




     Nothing in this Agreement, express or implied, shall create or confer on any person other than
the parties or their respective successors and permitted assigns, any rights, remedies, obligations
or liabilities, except as expressly provided in Article VIII hereof and except that any
Person expressly entitled to the rights set forth under Section 5.03 or Section
5.04 shall be an express third party beneficiary to this Agreement solely for the enforcement
rights under such Section 5.03 or Section 5.04, as applicable.



          SECTION 11.08 Attorneys’ Fees.


      If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement or any other document or instrument to be
executed or delivered pursuant hereto, the prevailing party shall be entitled to reasonable
attorneys’ fees, costs and disbursements in addition to any other relief to which such party may be
entitled.




          SECTION 11.09 Remedies.


      In case any one or more of the covenants and/or
agreements set forth in this Agreement shall have been breached by any party hereto, the party or
parties entitled to the benefit of such covenants or agreements may, except as may otherwise be
expressly provided in this Agreement, proceed to protect and enforce their rights either by suit in
equity and/or by action at law, including, but not limited to, an action for damages as a result of
any such breach and/or an action for specific performance of any such covenant or agreement
contained in this Agreement. The rights, powers and remedies of the parties under this Agreement
are cumulative and not exclusive of any other right, power or remedy which such parties may have
under any other agreement or law. No single or partial assertion or exercise of any right, power
or remedy of a party hereunder shall preclude any other or further assertion or exercise thereof.
Notwithstanding anything to the contrary set forth herein, from and after the Closing Date, the
provisions contained in Article VIII herein shall be the sole and exclusive remedy for
monetary damages arising out of, resulting from or attributable to the breach of any
representations or warranties made pursuant to Article III, Article
III.A, Article III.B or Article IV of this Agreement, absent fraud,
intentional misconduct or intentional misrepresentation.




          SECTION 11.10 Consent to Jurisdiction and Service of Process; WAIVER OF JURY
TRIAL. 


     Each party hereby consents to the personal jurisdiction of the courts of the County and
State of New York located in New York, New York and of the United States District Court for the
Southern District of New York, each as may have competent jurisdiction, with respect to any dispute
or controversy arising under or in connection with this Agreement and agrees that process issued
out of any such court or in accordance with the rules of practice of such court may be served by
mail or other form of substituted service to such party at the addresses and with copies as
provided in Article X and that any actions therein may be consolidated in a single action.
Each party also agrees not to bring any dispute or controversy arising under or in connection with
this Agreement in any other court. Each party waives any defense of inconvenient forum to the
maintenance of any dispute or controversy so brought and waives any bond, surety, or other security
that may be required of any other party hereto with respect such dispute or controversy. Nothing
contained herein shall be deemed to prevent any party from effecting service of process upon any
other party in any other manner permitted by law. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY





53









 







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 11.10.




          SECTION 11.11 Counterparts. 


     This Agreement may be executed in two or more
counterparts (including facsimile and scanned and emailed counterparts), each of which shall be
deemed an original, but all of which taken together shall constitute one and the same instrument.




          SECTION 11.12 Certain References; Captions.


      Whenever the context may require,
any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa.
The terms “herein”, “hereof” or “hereunder” or similar terms as used in this Agreement refer to
this entire Agreement and not to the particular provision in which the term is used. The terms
“include”, “including” or other similar terms shall be deemed to be followed by the words “without
limitation” or “but not limited to”. The headings and captions used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this Agreement. Unless
otherwise stated, all references herein to Articles, Sections, subsections or other provisions are
references to Articles, Sections, subsections or other provisions of this Agreement. All
references to the term “Business Day” shall mean any day on which banks in New York are not
required or permitted to be closed.




          SECTION 11.13 Interpretation. 


     This Agreement shall be construed reasonably to
carry out its intent without presumption against or in favor of any party.




          SECTION 11.14 Knowledge.


      As used in this Agreement, the term
“knowledge” (or words of similar import) means, with respect to (a) the Company Parties,
the actual knowledge of Brady, Culbertson, Hoffman, Rhymer and Dennis Donat, (b) Purchaser, the
actual knowledge of Peter B. Orthwein, Christian G. Farman, Richard E. Riegel, III, Ronald Fenech
and Walter L. Bennett and (c) Seller, the actual knowledge of Scott A. Dahnke, David Heidecorn and
Marc Magliacano, in each case after reasonable inquiry of their direct reports.




          SECTION 11.15 Material Adverse Effect.


      As used in this Agreement, the term
“Material Adverse Effect” means, with respect to the Company Parties, any change, event,
circumstance, occurrence or effect that has a material adverse effect on the financial condition,
business, results of operations or prospects of the Company Parties taken as a whole or the
consummation of the transactions contemplated by this Agreement; provided, that any change,






54









 







event, circumstance, occurrence or effect arising from or attributable to: (a) the United States
economy generally; (b) acts of terrorism, acts of war or the escalation of hostilities; (c)
financial, banking or securities markets (including any disruption thereof and any decline in the
price of any security or any market index); (d) changes in GAAP; (e) changes in any laws, rules,
regulations, orders, or other binding directives issued by any Governmental Entity; (f) the public
announcement of the transactions contemplated by this Agreement prior to the date hereof; (g) any
failure by any Company Party to meet any internal or published projections, or forecasts of revenue
or earnings predictions, for any period ending on or after the date of this Agreement; or (h) the
completion of the transactions contemplated hereby, shall, not be taken into account in determining
whether a “Material Adverse Effect” has occurred or would reasonably be expected to occur;
provided, further, however, that (x) changes, events, circumstances,
occurrences or effects set forth in clause (a), (b), (c), (d) or (e) above may be taken into
account in determining whether there has been or is a Material Adverse Effect to the extent such
changes, events, circumstances, occurrences or effects have a materially disproportionate adverse
effect on the Company Parties as compared to other participants in the market segments in which the
Company Parties operate, and (y) the exceptions in clauses (g) above shall not prevent or otherwise
affect a determination that the underlying cause of any failure referred to therein is a Material
Adverse Effect.




          SECTION 11.16 Delivery to Purchaser. 


     As used in Article III of this
Agreement, the term “delivered” with respect to documents and other materials delivered to
Purchaser means delivery to Purchaser or Purchaser’s advisors (including attorneys and accountants)
that were engaged by Purchaser or its Subsidiaries in connection with the transactions contemplated
by this Agreement.




          SECTION 11.17 Defined Terms.1




     The following terms used in this Agreement shall have the meanings set forth in the corresponding Sections or subsections of this Agreement:



	 	 	 

	“Agreement”

	 	Heading Paragraph
	“Audited Closing Balance Sheet”

	 	Section 2.02(a)(ii)
	“Audited Closing Cash”

	 	Section 2.02(a)(i)
	“Brady”

	 	Section 6.01(i)
	“Business”

	 	Whereas Clause 1
	“Business Day”

	 	Section 11.12
	“Cap”

	 	Section 8.03(c)
	“Capital
Leases Adjustment”

	 	Section 2.02
	“Cash
Adjustment”

	 	Section 2.02
	“Cash Consideration”

	 	Section 2.01
	“Closing”

	 	Section 7.01
	“Closing
Audit Date”

	 	Section 2.02(a)
	“Closing Date”

	 	Section 7.01
	“Closing Date Debt Obligations”

	 	Section 2.01(a)(i)
	“Code”

	 	Section 2.02(b)
	“Collateral Sources”

	 	Section 8.02(a)
	“Company”

	 	Heading Paragraph








 




			
	1	 	Note to Draft: To be updated.




55









 










	 	 	 

	“Company Audited Balance Sheet”

	 	Section 3.06
	“Company Audited Statements”

	 	Section 3.06
	“Company Benefit Plans”

	 	Section 3.20(a)
	“Company Intellectual Property Rights”

	 	Section 3.14
	“Company
Parties”

	 	Heading Paragraph
	“Company Unaudited Statements”

	 	Section 3.06
	“Crowe”

	 	Section 2.02(a)(i)
	“Culbertson”

	 	Section 6.01(i)
	“Datasite”

	 	Section 3.01
	“delivered”

	 	Section 11.16
	“Deductible”

	 	Section 8.03(b)
	“Disclosure Schedule”

	 	Article III
	“Election Notice”

	 	Section 5.03(h)
	“Environmental Claims”

	 	Section 3.28(g)(i)
	“Environmental Laws”

	 	Section 3.28(g)(ii)
	“Environmental Permits”

	 	Section 3.28(g)(iii)
	“ERISA”

	 	Section 3.20(a)
	“Estimated Capital Leases Amount”

	 	Section 2.01
	“Estimated
Closing Cash”

	 	Section 2.01(a)(i)
	“Equity Consideration”

	 	Section 2.01
	“Exchange Act”

	 	Section 4.03(a)
	“Financial Statements”

	 	Section 3.06
	“Final
Capital Leases Amount”

	 	Section 2.02(a)(iv)
	“Final
Closing Cash”

	 	Section 2.02(a)(iv)
	“Final
Stockholder Equity”

	 	Section 2.02(a)(iv)
	“Fundamental Representations”

	 	Section 8.03(a)
	“GAAP”

	 	Section 2.01
	“Governmental Entity”

	 	Section 3.05
	“Hazardous Materials”

	 	Section 3.28(g)(iv)
	“HFS”

	 	Section 3.03(a)
	“Historic Tax Indemnitee”

	 	Section 5.03(b)
	“Holdings”

	 	Heading Paragraph
	“Holdings Common Stock”

	 	Section 3.02(a)
	“Holdings
Unaudited Balance Sheet”

	 	Section 3.06
	“Holdings
Unaudited Statements”

	 	Section 3.06
	“Hoffman”

	 	Section 6.01(i)
	“HSR
Act”

	 	Section 3.05(a)
	“Indemnitee”

	 	Section 8.05(a)
	“Indemnitor”

	 	Section 8.05(a)
	“Independent Firm”

	 	Section 2.02(a)(iv)
	“Intellectual Property Rights”

	 	Section 3.14
	“Investor Letter”

	 	Section 5.06
	“IRS”

	 	Section 3.20(b)
	“Key Employee”

	 	Section 3.19(a)(i)
	“knowledge”

	 	Section 11.14
	“Law”

	 	Section 3.23
	“Leased Real Property”

	 	Section 3.10(b)
	“Licenses”

	 	Section 3.15
	“Liens”

	 	Section 3.05(b)
	“Losses”

	 	Section 8.02(a)
	“Material Adverse Effect”

	 	Section 11.15
	“Material Agreements”

	 	Section 3.09
	“NHTSA”

	 	Section 3.24
	“Non-Competition Agreements”

	 	Section 6.01(i)
	“NYSE”

	 	Section 4.09






56









 







	 	 	 

	“Objection Notice”

	 	Section 2.02(a)(ii)
	“Organizational Documents”

	 	Section 3.01
	“Owned Real Property”

	 	Section 3.10(a)
	“PCBs”

	 	Section 3.28(e)
	“Permitted Liens”

	 	Section 3.05(b)
	“Person”

	 	Section 3.01
	“Pre-Closing Tax Period”

	 	Section 8.04(a)
	“Products”

	 	Whereas Clause 1
	“Proposed
Cash Amount”

	 	Section 2.02(a)(ii)
	“Proposed
Capital Leases Amount”

	 	Section 2.02(a)(ii)
	“Proposed
Closing Balance Sheet”

	 	Section 2.02(a)
	“Purchaser”

	 	Heading Paragraph
	“Purchaser Controlled Proceeding”

	 	Section 5.03(i)
	“Purchaser Indemnified Persons”

	 	Section 8.02(a)
	“Purchase Price”

	 	Section 2.01
	“Purchased Shares”

	 	Whereas Clause 2
	“Real Property”

	 	Section 3.10(c)
	“Real Property Leases”

	 	Section 3.10(b)
	“Release”

	 	Section 3.28(g)(v)
	“Registration Rights Agreement”

	 	Section 6.01(j)
	“Restricted Parties”

	 	Section 6.01(m)
	“Rhymer”

	 	Section 6.01(i)
	“SEC”

	 	Section 4.07
	“SEC Reports”

	 	Section 4.07
	“Securities Act”

	 	Section 4.03(a)
	“Seller”

	 	Heading Paragraph
	“Seller Controlled Proceeding”

	 	Section 5.03(h)
	“Seller
Indemnified Persons”

	 	Section 8.02(b)
	“Seller
Limited Partners”

	 	Section 2.01(b)
	“Seller Owners”

	 	Heading Paragraph
	“Seller Partnership Agreement”

	 	Section 3.07A(b)
	“Seller Releases”

	 	Section 6.01(k)
	“Stock Restriction Agreement”

	 	Section 6.01(m)
	“Stockholder Equity”

	 	Section 2.02
	“Straddle Period”

	 	Section 8.04(c)(i)
	“Subsidiaries”

	 	Section 3.01
	“Tax
Attribute”

	 	Section 8.02(c)
	“Tax Claim”

	 	Section 5.03(g)
	“Tax
Proceeding”

	 	Section 5.03(k)
	“Tax Return”

	 	Section 3.18(k)
	“Tax Reserve”

	 	Section 5.03(d)
	“Taxes”

	 	Section 3.18(k)
	“Third Party Claim”

	 	Section 8.05(b)
	“Threshold”

	 	Section 8.03(a)
	“Top Dealers”

	 	Section 3.27(a)
	“Unaudited Statements”

	 	Section 3.06
	“U.S. Export Control Laws”

	 	Section 3.23






[signature page follows]




57









 







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



	 	 	 	 	 
	SELLER: 	 HEARTLAND RV HOLDINGS, L.P.

 	 
	 	By:  	/s/ Scott A. Dahnke	 
	 	 	Name:  	Scott A. Dahnke	 
	 	 	Title:  	President	 
	 
	HOLDINGS:	 TOWABLE HOLDINGS, INC.

 	 
	 	By:  	/s/ Brian R. Brady	 
	 	 	Name:  	Brian R. Brady	 
	 	 	Title:  	President	 
	 
	COMPANY:	 HEARTLAND RECREATIONAL VEHICLES, LLC

 	 
	 	By:  	/s/ Brian R. Brady	 
	 	 	Name:  	Brian R. Brady	 
	 	 	Title:  	President	 
	 
	SELLER OWNERS:	 CATTERTON PARTNERS VI, L.P.




By: Catterton Managing Partner VI, L.L.C., its managing

general partner




By: CP6 Principals, L.L.C., its managing member

 	 
	 	By:  	/s/ Scott A. Dahnke	 
	 	 	Name:  	Scott A. Dahnke	 
	 	 	Title:  	Authorized Signatory	 
	 
	 	CATTERTON PARTNERS VI OFFSHORE, L.P.




By: Catterton Managing Partner VI, L.L.C., its managing

general partner



 	 













 






	 	 	 	 	 

	 	By: CP6 Principals, L.L.C., its managing member


 	 
	 	By:  	/s/ Scott A. Dahnke	 
	 	 	Name:  	Scott A. Dahnke	 
	 	 	Title:  	Authorized Signatory	 
	 
	PURCHASER: 	 THOR INDUSTRIES, INC.

 	 
	 	By:  	/s/ Peter B. Orthwein	 
	 	 	Name:  	Peter B. Orthwein	 
	 	 	Title:  	Chief Executive Officer	 
	 




2