exv10w1






Exhibit 10.1




EXECUTION VERSION




 

 






PURCHASE AND SALE AGREEMENT




by and among



MAVERICK STIMULATION COMPANY, LLC



MAVERICK COIL TUBING SERVICES, LLC



MAVERICK THRU-TUBING SERVICES, LLC



MCM HOLDINGS, LLC



THE MAVERICK COMPANIES, LLC



MAVERICK SOLUTIONS, LLC



MSM LEASING, LLC



THE SELLERS SET FORTH HEREIN



KRISTIAN E. GRIMLAND, AS SELLERS’ REPRESENTATIVE



and



BASIC ENERGY SERVICES, L.P.



Dated
as of July 6, 2011



 

 
















 









 
















TABLE OF CONTENTS







	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE I      DEFINITIONS	 	 	1	 
	ARTICLE II     PURCHASE OF EQUITY INTERESTS	 	 	1	 
	Section 2.1
	 	The Purchase	 	 	1	 
	Section 2.2
	 	Payment of the Purchase Price	 	 	4	 
	Section 2.3
	 	Tax Consequences and Allocation of Purchase Price.	 	 	5	 
	Section 2.4
	 	Withholding Rights	 	 	6	 
	ARTICLE III     REPRESENTATIONS AND WARRANTIES OF THE COMPANIES	 	 	6	 
	Section 3.1
	 	Corporate Organization; Qualification	 	 	6	 
	Section 3.2
	 	Capitalization	 	 	6	 
	Section 3.3
	 	Authorization	 	 	6	 
	Section 3.4
	 	Noncontravention; Approvals and Consents	 	 	7	 
	Section 3.5
	 	Financial Statements; Absence of Undisclosed Liabilities	 	 	7	 
	Section 3.6
	 	Absence of Certain Changes	 	 	8	 
	Section 3.7
	 	Litigation	 	 	10	 
	Section 3.8
	 	Taxes	 	 	10	 
	Section 3.9
	 	Employee Benefits	 	 	11	 
	Section 3.10
	 	Labor Matters	 	 	13	 
	Section 3.11
	 	Compliance with Laws	 	 	14	 
	Section 3.12
	 	Permits	 	 	14	 
	Section 3.13
	 	Environmental	 	 	15	 
	Section 3.14
	 	Brokers and Finders	 	 	15	 
	Section 3.15
	 	Affiliate Transactions	 	 	15	 
	Section 3.16
	 	Intellectual Property	 	 	16	 
	Section 3.17
	 	Material Contracts	 	 	17	 
	Section 3.18
	 	Real Property	 	 	19	 
	Section 3.19
	 	Major Suppliers and Customers	 	 	19	 
	Section 3.20
	 	Personnel	 	 	19	 
	Section 3.21
	 	Assets	 	 	19	 
	Section 3.22
	 	Insurance	 	 	19	 
	Section 3.23
	 	Minute Books	 	 	20	 






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TABLE OF CONTENTS
(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	Section 3.24
	 	Bank Accounts	 	 	20	 
	Section 3.25
	 	Inventory	 	 	20	 
	Section 3.26
	 	Accounts Receivable	 	 	20	 
	ARTICLE IIIA     REPRESENTATIONS AND WARRANTIES OF THE SELLERS	 	 	20	 
	Section 3A.1
	 	Corporate Organization; Qualification	 	 	20	 
	Section 3A.2
	 	Title	 	 	21	 
	Section 3A.3
	 	Authorization	 	 	21	 
	Section 3A.4
	 	Noncontravention	 	 	21	 
	Section 3A.5
	 	Brokers and Finders	 	 	21	 
	ARTICLE IV     REPRESENTATIONS AND WARRANTIES OF BUYER	 	 	21	 
	Section 4.1
	 	Organization; Foreign Qualification	 	 	21	 
	Section 4.2
	 	Authorization	 	 	22	 
	Section 4.3
	 	Noncontravention; Approvals and Consents	 	 	22	 
	Section 4.4
	 	Brokers and Finders	 	 	22	 
	Section 4.5
	 	Investment Intent	 	 	23	 
	Section 4.6
	 	Buyer’s Independent Investigation	 	 	23	 
	Section 4.7
	 	Funding	 	 	23	 
	Section 4.8
	 	Solvency	 	 	23	 
	ARTICLE V     CLOSING	 	 	23	 
	Section 5.1
	 	Closing	 	 	23	 
	Section 5.2
	 	Deliveries of the Companies and the Sellers	 	 	23	 
	Section 5.3
	 	Deliveries of the Buyer	 	 	25	 
	Section 5.4
	 	Conditions to Closing of the Buyer	 	 	26	 
	Section 5.5
	 	Conditions to Closing of the Sellers	 	 	27	 
	Section 5.6
	 	Additional Agreements	 	 	28	 
	Section 5.7
	 	Termination	 	 	37	 
	ARTICLE VI     SURVIVAL AND INDEMNITY	 	 	38	 
	Section 6.1
	 	Survival of Representations and Warranties	 	 	38	 
	Section 6.2
	 	Indemnification by the Sellers	 	 	39	 
	Section 6.3
	 	Indemnification by the Buyer	 	 	40	 






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TABLE OF CONTENTS
(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	Section 6.4
	 	Defense of Claims	 	 	40	 
	Section 6.5
	 	Indemnification Deductible	 	 	41	 
	Section 6.6
	 	Limitations on Indemnification	 	 	41	 
	Section 6.7
	 	Other Matters Pertaining to Indemnification	 	 	41	 
	Section 6.8
	 	Release of Escrow Payment	 	 	43	 
	ARTICLE VII     MISCELLANEOUS	 	 	44	 
	Section 7.1
	 	Notices	 	 	44	 
	Section 7.2
	 	Fees and Expenses	 	 	45	 
	Section 7.3
	 	Amendments; No Waivers	 	 	45	 
	Section 7.4
	 	Further Assurances	 	 	45	 
	Section 7.5
	 	Successors and Assigns	 	 	45	 
	Section 7.6
	 	Counterparts; Effectiveness	 	 	45	 
	Section 7.7
	 	Third Party Beneficiaries	 	 	45	 
	Section 7.8
	 	Governing Law	 	 	46	 
	Section 7.9
	 	Jurisdiction	 	 	46	 
	Section 7.10
	 	Entire Agreement	 	 	46	 
	Section 7.11
	 	Authorship	 	 	46	 
	Section 7.12
	 	Severability	 	 	46	 
	Section 7.13
	 	Headings; Construction	 	 	46	 
	Section 7.14
	 	Sellers’ Representative	 	 	47	 
	Section 7.15
	 	Disclosure Schedules	 	 	48	 
	Section 7.16
	 	Waiver of Jury Trial	 	 	48	 
	Section 7.17
	 	Legal Representation	 	 	48	 







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PURCHASE AND SALE AGREEMENT




     This PURCHASE AND SALE AGREEMENT (this “Agreement”) is made and entered into this
6th day of July, 2011 (the “Effective Date”), by and among (a) Maverick
Stimulation Company, LLC, Maverick Coil Tubing Services, LLC, MCM Holdings, LLC, Maverick
Thru-Tubing Services, LLC, The Maverick Companies, LLC, Maverick Solutions, LLC and MSM Leasing,
LLC (individually, a “Company” and collectively, the “Companies”), (b) Jerry Don
Gregory, J.D. Gregory, Kristian E. Grimland, Timothy L. Anderson, Lyle Schadegg, Larry Young
(collectively, the “Primary Seller Group”) and the Employee/Members listed on Exhibit
A (each member of the Primary Seller Group and each Employee/Member listed on Exhibit A
shall individually be referred to as a “Seller” and collectively referred to as the
“Sellers”), (c) Kristian E. Grimland, as Sellers’ Representative and (d) Basic Energy
Services, L.P., a Delaware limited partnership (the “Buyer”).



PRELIMINARY STATEMENTS




     A. The Sellers own all of the issued and outstanding Equity Interests of the Companies, with
the percent of ownership of Equity Interests of each Seller in each Company being set forth on
Exhibit B hereto.



     B. Sellers desire to sell their Equity Interests in the Companies to Buyer and Buyer desires
to purchase the Equity Interests from the Sellers.



AGREEMENT




     NOW, THEREFORE, in consideration of the preliminary statements above and of the mutual
agreements, covenants, representations, and warranties contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, each intending to be legally bound, hereby agree as follows:



ARTICLE I

DEFINITIONS




     Capitalized terms used and not otherwise defined herein shall have the meanings set forth in
the Glossary attached hereto as Annex I.



ARTICLE II

PURCHASE OF EQUITY INTERESTS




     Section 2.1 The Purchase.



          (a) Purchase Price. Subject to the terms and conditions set forth in this Agreement,
Buyer hereby agrees to purchase from the Sellers 100% of the Equity Interests of each Seller in
each of the Companies, and each Seller hereby agrees to sell 100% of the Equity Interests owned by
such Seller in each of the Companies, as applicable, to Buyer, free and clear of all Indebtedness,
for One Hundred Eighty Million Dollars ($180,000,000), as adjusted in accordance with Sections
2.1(c) and (d) and for the payment of any Indebtedness in accordance with Section
5.2 (g)(the “Purchase Price”).




PURCHASE AND SALE AGREEMENT




1









 









          (b) Walk-A-Way Deposit. Concurrently with the execution and delivery of this
Agreement by the Companies and the Sellers, Buyer and The Maverick Companies, LLC shall instruct
Wells Fargo Bank, N.A. (“Escrow Agent”) to deposit by wire transfer of immediately
available funds, an amount equal to $3,600,000 (the “Walk-A-Way Deposit”) that was being
held pursuant to that certain Escrow Agreement, dated June 1, 2011, by and between Buyer, The
Maverick Companies, LLC and Escrow Agent, into an escrow account pursuant to an Escrow Agreement in
the form attached hereto as Exhibit C (the “Deposit Escrow Agreement”). If none of
the Sellers or the Companies are in breach of the covenants, agreements, representations and
warranties of such Sellers and the Companies in this Agreement and the Companies and all of the
conditions set forth in Sections 5.4(a), (b) and (e) (other than any condition
that, by its terms, is to be satisfied at Closing) have been satisfied or waived, then the
Walk-A-Way Deposit must be paid to the Companies by the Escrow Agent in accordance with the terms
of the Deposit Escrow Agreement to the accounts designated by The Maverick Companies, LLC upon the
first to occur of (i) the Termination Date, (ii) the date this Agreement is terminated by Sellers’
Representative pursuant to Sections 5.7(a)(iii) or (iii) the failure by Buyer to satisfy
any of the conditions set forth in Sections 5.5(a) and (b). If Buyer is not in
breach of its covenants, agreements, representations and warranties in this Agreement and all of
the conditions set forth in Sections 5.5(a) and (b) have been satisfied or waived,
then the Walk-A-Way Deposit must be paid to Buyer by the Escrow Agent in accordance with the terms
of the Deposit Escrow Agreement upon the first to occur of (A) the date this Agreement is
terminated by Buyer pursuant to Section 5.7(a)(ii) or (B) the failure by the Sellers and
the Companies to satisfy any of the conditions set forth in Sections 5.4(a), (b) and
(e) (other than any condition that, by its terms, is to be satisfied at Closing) prior to
the Termination Date and Buyer terminates this Agreement pursuant to Section 5.7(a)(iv).
Each of the parties hereto acknowledges that (x) the agreements contained in this Section
2.1(b) are an integral part of the transactions contemplated by this Agreement; (y) the damages
resulting from termination of this Agreement under circumstances where the Walk-A-Way Deposit is
payable are uncertain and incapable of accurate calculation and therefore, the amounts payable
pursuant to this Section 2.1(b) are not a penalty, but rather are liquidated damages in a
reasonable amount that will compensate the Companies for the efforts and resources expended and
opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on
the expectation of the consummation of the transactions contemplated hereby, which amount would
otherwise be impossible to calculate with precision; and (z) without the agreements contained in
this Section 2.1(b), the parties would not have entered into this Agreement.




          (c) Adjustments. No more than three (3) business days prior to the Closing Date,
Sellers’ Representative will prepare and deliver to Buyer (i) an estimated consolidated balance
sheet for the Companies as of the Closing Date, together with supporting or back-up schedules and
documentation reasonably requested by Buyer (the “Estimated Closing Date Balance Sheets”)
and (ii) a calculation and statement of the estimated Net Working Capital as of the Closing Date,
the estimated Net Distributable Proceeds and the Pro Rata Share payable to each Seller calculated
from the Estimated Closing Date Balance Sheet (the “Estimated Statement”). The Sellers’
Representative will prepare the Estimated Closing Balance Sheet and the Estimated Statement in good
faith and in accordance with GAAP, applied consistently with the past practices of the Companies,
in a manner consistent with the terms of this Agreement, and consistent with the principles,
procedures and sample calculation set forth on Schedule 2.1(c) (the “Working Capital
Schedule”), subject to Buyer’s good faith review and




PURCHASE AND SALE AGREEMENT




2









 







reasonable
satisfaction. In the event of any conflict between GAAP and the Working Capital Schedule, the
Working Capital Schedule shall control. If the Net Working Capital set forth on the Estimated
Statement (the “Estimated Net Working Capital”) is positive, then the Purchase Price and
the Net Distributable Proceeds shall be increased on a dollar for dollar basis by an amount equal
to such excess. If the Estimated Net Working Capital is negative, then the Purchase Price and the
Net Distributable Proceeds shall be decreased on a dollar for dollar basis by an amount equal to
such deficiency. Any increase or decrease in the Purchase Price based on working capital
adjustments will be payable at Closing.




     By way of illustration, the preliminary calculation of the Net Working Capital using the March
31, 2011 Consolidated Balance Sheet of the Companies is set forth on the Working Capital Schedule.



          (d) Post Closing Matters. As soon as practicable but in no event later than ninety
(90) days following the Closing Date (the “Determination Date”), Buyer will prepare and
deliver to Sellers’ Representative (i) a consolidated balance sheet for the Companies as of the
Closing Date, together with supporting or back-up schedules and documentation reasonably requested
by Sellers’ Representative (the “Closing Date Balance Sheet”) and (ii) a calculation and
statement of the Net Working Capital as of the Closing Date (the “Closing Date Statement”).
Buyer will prepare the Closing Date Balance Sheet and the Closing Date Statement in good faith and
in a manner consistent with the procedure used to prepare the Working Capital Schedule, subject to
the Sellers’ Representative’s good faith review and reasonable satisfaction. Sellers’
Representative may submit to Buyer, not later than fifteen (15) days after the receipt of the
Closing Date Statement from Buyer, a notice setting forth, in reasonable detail, a list of any
items or components in the Closing Date Statement with which Sellers’ Representative disagrees (a
“Dispute Notice”), in which case the disagreement shall be resolved pursuant to the
procedures set forth in Section 2.1(g). If Sellers’ Representative does not issue a
Dispute Notice prior to such date, the Closing Date Statement, as supplied to Sellers’
Representative, shall be deemed to have been accepted and agreed to by the Sellers’ Representative,
and shall be final and binding on the parties to this Agreement. For purposes of this Agreement,
“Final Closing Statement” shall mean the Closing Date Statement, if such Closing Date Statement is
undisputed, or, if it is disputed, the Closing Date Statement that is finally resolved in
accordance with this Section 2.1(d) and Section 2.1(g).




          (e) Distribution of Holdback to Buyer. If the Net Working Capital
set forth in the Final Closing Statement is less than the Estimated Net Working Capital, then the
Escrow Agent shall promptly release the amount of such deficiency from the Holdback Amount to Buyer
in accordance with the terms of the Escrow Agreement. If the amount of such deficiency owed to
Buyer is less than the Holdback Amount, then the Escrow Agent shall promptly distribute to the
Sellers, at the direction of the Sellers’ Representative, the remainder of the Holdback Amount in
accordance with the terms of the Escrow Agreement. If the Holdback Amount is insufficient to
satisfy the amount of such deficiency, the Buyer shall be entitled to deduct the amount of such
deficiency in excess of the Holdback Amount from the Escrow Payment.




          (f) Distribution of Holdback to Sellers’ Representative. If the Net Working Capital as set forth in the
Final Closing Statement is equal to or more than the Estimated Net Working Capital, then




PURCHASE AND SALE AGREEMENT




3









 







the Escrow Agent shall promptly distribute the Holdback Amount to Sellers’ Representative in
accordance with the terms of the Escrow Agreement and Buyer shall
promptly pay to the Sellers’
Representative the excess of the Net Working Capital over the Estimated Net Working Capital, by
wire transfer of immediately available funds in accordance with the wiring instructions provided to
Buyer by the Sellers’ Representative on or prior to the Closing
Date. The Sellers’ Representative shall pay such excess to the Sellers
in accordance with each Seller’s Pro Rata Share percentage set forth on
Schedule 2.2(a), as such percentage may be adjusted (in the Sellers’
Representative’s reasonable discretion), based on the final Net
Working Capital and final Closing Date Statement to reflect changes
in each Company’s relative net working capital (the “Final Pro Rata
Share”).




          (g) Arbitration Accountant. If a Dispute Notice is timely delivered to Buyer by
Sellers’ Representative, Buyer and Sellers’ Representative will, during the fifteen (15) days
following delivery of the Dispute Notice, use commercially reasonable efforts to reach agreement on
the disputed items on the Closing Date Statement, which amounts must be within the ranges thereof
shown in the Dispute Notice and the amounts thereof shown in the Closing Date Statement. If after
such 15-day period, there are remaining items in dispute with respect to the Closing Date
Statement, Buyer and Seller’s Representative shall promptly thereafter cause an independent
accounting firm of recognized national or regional standing to be mutually agreed upon by Buyer, on
the one hand, and the Sellers’ Representative, on the other hand, acting reasonably and in good
faith, or if Buyer and the Sellers’ Representative are unable to agree as to such independent
accounting firm within five (5) days after the conclusion of such 15-day period, either Buyer, on
the one hand, and the Sellers’ Representative, on the other hand, may request that the American
Arbitration Association appoint an independent third party accounting firm meeting the
aforementioned requirements to resolve the dispute (in either case, the “Arbitrating
Accountant”), to review this Agreement and the remaining disputed items or amounts on the
Closing Date Statement. Buyer and Sellers’ Representative shall submit to the Arbitrating
Accountant a statement detailing their position as to the nature and amount of each item remaining
in dispute and setting forth their calculation of the Net Working Capital and any other items on
the Closing Date Statement as of the Closing Date. The Arbitrating Accountant shall make its
written determination of the existence of any disputed items or the amounts thereof on the Closing
Date Statement, which determination must be limited to items set forth in, and within the range of
the amounts thereof shown in, the statements submitted by the parties. The Independent Accounting
Firm will deliver to Buyer and the Sellers’ Representative, as promptly as practicable, a report
setting forth, in reasonable detail, its written determination of the Closing Date Statement and
the Net Working Capital as of the Closing. Such report will be the Final Closing Statement and
will be binding upon the parties. The cost of the Arbitrating Accountant’s review and report will
be borne by Buyer, on the one hand, and by the Seller’s Representative on behalf of the Sellers, on
the other hand, in the same proportion that the dollar amount of the disputed items or amounts that
are not resolved in favor of Buyer, on the one hand, and the Sellers’ Representative, on the other
hand (as applicable), bears to the total dollar amount of items or amounts in dispute resolved by
the Arbitrating Accountant. Each party will bear all of its other expenses incurred in connection
with matters contemplated by this Section 2.1(g).




     Section 2.2 Payment of the Purchase Price.



          (a) The Estimated Statement will list the estimated amount of the Net Distributable Proceeds
and each Seller’s Pro Rata Share. At the Closing, Buyer shall
pay each Seller’s Pro Rata Share
by wire transfer of immediately available funds to the bank accounts designated by the Sellers’
Representative. The Sellers (by their execution hereof) acknowledge that any payments by Buyer to
(or at the direction of ) the Sellers’ Representative on behalf of the Sellers constitute payment
to the Sellers.




PURCHASE AND SALE AGREEMENT




4









 








          (b) On the Closing Date, Buyer shall deposit by wire transfer of immediately available funds,
the Escrow Payment and the Holdback Amount into separate escrow accounts pursuant to the Escrow
Agreement attached hereto as Exhibit D (the “Escrow Agreement”) for and on behalf
of the Sellers and the Buyer, as their interests may appear. The Escrow Payment shall be held in
escrow following Closing subject to the provisions of Article VI hereof and pursuant to the
terms and subject to the conditions set forth in the Escrow Agreement and shall be used exclusively
for the payment of any obligations of the Sellers under the provisions of Article VI and
for adjustments to the Net Working Capital to the extent the Holdback Amount is insufficient.
Buyer will pay, or cause to be paid out of the Purchase Price, all Indebtedness in full at the
Closing. In order to facilitate any payments of the Indebtedness by Buyer, Sellers’ Representative
shall cause the Companies to obtain payoff letters, at least three (3) business days before the
Closing, for all Indebtedness, which payoff letters will indicate that such parties have agreed to
release their applicable Liens (or other claims) upon receipt of the amounts indicated in such
payoff letters. The Holdback Amount shall be used exclusively for adjustments to the Net Working
Capital pursuant to Section 2.1(c) held in escrow pursuant to the terms and subject to the
conditions set forth in the Escrow Agreement until such time (the “Holdback Period”) as the
Final Closing Statement is determined pursuant to Section 2.1(d), at which time the
Holdback Amount shall be disbursed pursuant to Sections 2.1(e) and (f) and the
terms of the Escrow Agreement.




          (c) The Escrow Payment (to the extent the Holdback Amount is insufficient therefor) and the
Holdback Amount will be utilized to adjust for deficiencies in the Net Working Capital.




     Section 2.3 Tax Consequences and Allocation of Purchase Price.



          (a) For federal and applicable state and local income Tax purposes, the purchase and sale of
the Equity Interests hereunder shall be treated with respect to Sellers as a purchase and sale of
their Equity Interests, and with respect to Buyer as a purchase and sale of the assets of the
Companies, in accordance with Revenue Ruling 99-6, 1999-1 C.B. 432.




          (b) Sellers’ Representative and Buyer shall agree on an allocation of the Purchase Price (as
adjusted pursuant to this Agreement, and including any liabilities deemed to be assumed) among the
assets of each of the Companies within ninety (90) days after the final determination of the Net
Working Capital pursuant to Section 2.1, which allocation shall be made in accordance with
Section 1060 of the Code (such allocation, as adjusted pursuant to this Agreement, the
“Purchase Price Allocation”). If Sellers’ Representative and Buyer are unable to agree on
such allocation within such ninety (90) day period, then the allocation shall be resolved pursuant
to the procedures set forth in Section 2.1(g) as if it were a dispute regarding a Net
Working Capital adjustment. Neither Buyer, the Sellers nor the Sellers’ Representative shall take
or cause to be taken any position or other action inconsistent with the Purchase Price Allocation
determined under this Agreement for any Tax reporting purpose (including, without limitation, for
purposes of Sections 741 and 751 of the Code), upon examination of any Tax Return, in any refund
claim, or in any litigation, investigation or otherwise, unless otherwise required by a
“determination” (within the meaning of Section 1313(a) of the Code or any similar provision of
other applicable Law).




PURCHASE AND SALE AGREEMENT




5









 








     Section 2.4 Withholding Rights. For any Seller that does not supply the required
Federal Tax Identification Number, Buyer shall be entitled to deduct and withhold from the Purchase
Price otherwise payable hereunder to any Seller any amounts that Buyer is required to deduct and
withhold with respect to payment under any provision of federal, state, local or foreign Tax Law.
To the extent that amounts are so withheld, the withheld amounts shall be treated for all purposes
of this Agreement as having been paid to the Seller.



ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANIES




     The Companies hereby make the representations and warranties to Buyer that are set forth in
this Article III. All representations and warranties of the Companies are made subject to
and modified by the exceptions noted in the disclosure schedules (the “Schedules”)
delivered by the Companies to Buyer concurrently herewith as they may be modified from time to time
pursuant to Section 5.6(d).



     Section 3.1 Corporate Organization; Qualification. Each of the Companies is a limited
liability company duly organized, validly existing and in good standing under the Laws of the State
of Colorado, and has all power and authority required to own, lease and operate their properties
and to carry on its businesses as it is now conducted. Each Company is duly qualified to do
business as a foreign entity and is in good standing in each jurisdiction where the character of
the property owned, leased or operated by it or the nature of its activities makes qualification
necessary, except where the failure to be so qualified would not reasonably be expected to have a
Material Adverse Effect. Each Company has made available to Buyer true, complete and correct
copies of its Articles of Organization and its Operating Agreements, each as in effect as of the
date hereof (respectively, the “Companies’ Articles of Organization” and the
“Companies’ Operating Agreements”). None of the Companies has any subsidiaries.



     Section 3.2 Capitalization.



          (a) The issued and outstanding Equity Interests of each of the Companies are set forth on
Schedule 3.2, which Schedule sets forth the names of the holders of the Equity Interests in
each of the Companies and the number of Equity Interests owned by each Seller. Except as reflected
on Schedule 3.2, there are no Equity Interests outstanding. All of the issued and
outstanding Equity Interests are duly authorized and validly issued and free of preemptive or
similar rights. None of the Equity Interests are represented by membership certificates.




          (b) Except as set forth in Section 3.2(a), none of the Companies have issued any
Equity Interests and there are no outstanding agreements or other obligations of the Companies to
issue, sell, repurchase, redeem or otherwise acquire any Equity Interests in the Companies. There
are no other agreements, voting trusts, proxies or similar agreements to which any of the Companies
or, to the Knowledge of the Companies, any holder of Equity Interests in any of the Companies is a
party or by which any of the Equity Interests in any of the Companies are bound.




     Section 3.3 Authorization. Each of the Companies has all power and authority to
execute and deliver this Agreement and to perform its obligations hereunder. The execution,



PURCHASE AND SALE AGREEMENT



6









 




delivery and performance of this Agreement and the other Transaction Documents to which each
is a party, have been duly and validly authorized by the managers or members, as applicable, of
each of the Companies and by the Sellers and no other proceedings on the part of the Companies are
necessary to authorize or consummate this Agreement and the other Transaction Documents. This
Agreement has been duly and validly executed and delivered by each of the Companies, and (assuming
the due authorization, execution and delivery hereof by the Buyer and the Sellers) constitutes the
legal, valid and binding obligation of each of the Companies, enforceable against each of the
Companies in accordance with its terms, except as may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar Laws affecting the rights of creditors generally and general
principles of equity.




     Section 3.4 Noncontravention; Approvals and Consents.



          (a) The execution, delivery and performance by the Companies of this Agreement and the other
Transaction Documents to which they are a party, do not and will not at, or immediately upon the
consummation of the Transactions at Closing, contravene, conflict with, constitute a violation or
breach of, constitute (with or without notice or lapse of time or both) a default under, result in
or give to any Person any right of payment or reimbursement, termination, cancellation,
modification or acceleration, loss of a material benefit under or result in the creation or
imposition of any Lien upon any of the assets or properties of the Companies or any Equity
Interests of Sellers under any of the terms, conditions or provisions of (i) the Companies’
Articles of Organization, the Companies’ Operating Agreements or otherwise, subject to the actions
described in Section 3.4(b), (ii) any Laws binding upon or applicable to the Companies or
by which any of their respective assets or properties are bound, (iii) any Material Contract to
which any of the Companies is a party or by which any of their respective assets or properties are
bound, or (iv) any Permit binding on the Companies, excluding from the foregoing clauses (i), (ii),
(iii) and (iv) contraventions, conflicts, violations, breaches, defaults, rights of payment or
reimbursement, terminations, cancellations, modifications, accelerations, loss of benefits under
and creations and impositions of Liens that, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect (but not excluding any conflicts, violations,
breaches, defaults, rights of payment or reimbursement, terminations, cancellations, modifications,
accelerations and creations or impositions of Liens under any Material Contract).




          (b) Except for filings under the Hart-Scott Rodino Antitrust Improvements Act of 1976, as
amended (the “HSR Act”) and as set forth in Schedule 3.4(b), no consent, waiver,
approval or action of, filing with or notice to any Governmental Entity or Third Party is necessary
or required under any of the terms, conditions or provisions of any Law or any Material Contract
for the execution, delivery and performance by the Companies of this Agreement and the other
Transaction Documents to which they are a party, excluding from the foregoing such consents,
waivers, approvals, actions, filings and notices that the failure to make or obtain, as the case
may be, individually or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect (but not excluding any consents, approvals, actions, filings and notices necessary
or required under any Material Contract or under Section 7A of the Clayton Act, 15 USCA, Section 18
a).




     Section 3.5 Financial Statements; Absence of Undisclosed Liabilities.



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          (a) The (i) reviewed, but unaudited, consolidated financial statements for each of the two (2)
years ended December 31, 2009 and 2010 (attached hereto as Schedules 3.5(a)(1) and
3.5(a)(2), respectively) (the “Reviewed Financial Statements”), and (ii) unaudited
interim consolidated financial statements for the three (3) months ended March 31, 2011 (attached
hereto as Schedule 3.5(a)(3)) (the “March 31 Financial Statements” and, together
with the Reviewed Financial Statements, the “Financial Statements”) of the Companies
(including the notes thereto), were prepared in accordance with GAAP consistently applied
throughout the periods involved (except as may be indicated therein or in the notes thereto and, in
the case of the March 31 Financial Statements, except for the treatment of deferred income taxes,
normal year-end adjustments and the absence of footnotes) and accurately and fairly present in all
material respects the consolidated financial position of the Companies as at the respective dates
thereof and the results of its operations and cash flows for the respective periods then ended
(except, in the case of the Unaudited Financial Statements, for normal year-end adjustments and the
absence of footnotes).




          (b) Except as set forth in Schedule 3.5(b), the Companies do not have any material
liabilities of any kind whatsoever, whether accrued, contingent, absolute, determined, determinable
or otherwise, except for liabilities (i) disclosed in, provided for, adequately reflected in,
reserved against or otherwise described in the Financial Statements (including in any notes
thereto) or that are or will be included in the calculations of Net Working Capital, (ii) under any
Material Contract (or a Contract not required to be disclosed on Schedule 3.17 to avoid a
breach of Section 3.17) or under any of the Companies’ Employee Plans or otherwise
disclosed in or contemplated by this Agreement, including any Schedules thereto, (iii) that have
arisen in the Ordinary Course since the March 31, 2011, (iv) under the Transaction Documents or in
connection with the Transactions, or (v) existing as of March 31, 2011 that would not have been
required to be disclosed in, provided for, reflected in, reserved against or otherwise described in
the Financial Statements (including in any notes thereto) in accordance with GAAP. For purposes of
this Section 3.5(b) only, “material liabilities” shall mean liabilities of the Companies in
excess of $1,800,000 in the aggregate.




     Section 3.6 Absence of Certain Changes. Since January 1, 2011, except as set forth in
Schedule 3.6 and except for the Transaction Documents and the Transactions, each of the
Companies has conducted its respective business in the Ordinary Course and there has been no event,
occurrence or development, that individually or in the aggregate, constitutes or would be
reasonably expected to have a Material Adverse Effect. Without limiting the generality of the
foregoing, since January 1, 2011, except as set forth in Schedule 3.6 and except as
contemplated by this Agreement, there has not been:



               (i) any amendment or change in the Articles of Organization or the Operating Agreements of any
of the Companies;



               (ii) any material change by the Companies in their accounting methods, principles or
practices;



               (iii) any material Tax election, any change in method of accounting with respect to material
Taxes or any compromise or settlement of any proceeding with respect to any material Tax liability;



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               (iv) any declaration, setting aside or payment of any dividend or distribution (whether in
cash, Equity Interest or property) or capital return in respect of any Equity Interest or any
redemption, purchase or other acquisition of any Equity Interests in any of the Companies, or any
amendment of any material term of any Equity Interest;



               (v) any sale, assignment, transfer, lease or other disposition or agreement to sell, assign,
transfer, lease or otherwise dispose of any of the assets of any of the Companies other than in the
Ordinary Course;



               (vi) any acquisition (by merger, consolidation, or acquisition of stock or assets (except for
the acquisition of assets in the Ordinary Course)) by any of the Companies of any corporation,
partnership or other business organization or division thereof or any Equity Interest therein for
consideration, or any loan or advance to any Person;



               (vii) any incurrence of, guarantee with respect to, or provision of credit support for, any
indebtedness by any of the Companies or any creation or assumption by any of the Companies of any
Lien on any material asset;



               (viii) (A) any employment, deferred compensation, severance or similar agreement entered into
or amended by any of the Companies and any employee, (B) any increase in the compensation payable
or to become payable by any of the Companies to any of their respective managers or officers or
generally applicable to all or any category of employees of any of the Companies, (C) except in the
Ordinary Course, any increase in the coverage or benefits available under any vacation pay, company
awards, salary continuation or disability, sick leave, deferred compensation, bonus or other
incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement
made to, for or with any of the managers of officers of any of the Companies or generally
applicable to all or any category of the employees of any of the Companies or (D) severance pay
arrangements made to, for or with such managers, officers or employees other than, in the case of
clauses (B) and (C) of this Section 3.6(viii) and only with respect to employees who are
not officers or managers of any of the Companies, increases in the Ordinary Course and that in the
aggregate have not resulted in a material increase in the benefits or compensation expense of any
of the Companies;



               (ix) any loan, advance or capital contribution made by any of the Companies, or investment in,
any Person;



               (x) any waiver, direct or indirect, by any of the Companies of (A) any right or rights of
material value or (B) any payment of any material debt, liability or other obligation, except for
waivers made in the Ordinary Course;



               (xi) any payment, loan or advance of any amount to or in respect of, or the sale, transfer or
lease of any properties or assets (whether real, personal or mixed, tangible or intangible) to, or
entering into of any agreement, arrangement, or transaction with or on behalf of, any officer or
manager of any of the Companies or a Seller, or any business or entity in which any of the
Companies has any material, direct or indirect, interest, except payment of managers’ fees and
compensation to the officers and employees of any of the Companies in the Ordinary



PURCHASE AND SALE AGREEMENT




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Course, advancement or reimbursement of expenses in the Ordinary Course and rent paid on real
estate pursuant to the Leases (as hereafter defined);




               (xii) any issuance, sale or disposition of any Equity Interest in any of the Companies or
issuance or grant of any options, warrants or other rights to purchase any such Equity Interest or
any securities convertible into or exchangeable for Equity Interest or any other change in the
issued and outstanding capitalization of any of the Companies;



               (xiii) any amendment, alteration or modification in the terms of any currently outstanding
options, warrants or other rights to purchase any Equity Interest in any of the Companies or any
securities convertible into or exchangeable for such Equity Interests, including, without
limitation, any reduction in the exercise or conversion price of any such rights or securities, any
change to the vesting or acceleration terms of any such rights or securities, or any change to
terms relating to the grant of any such rights or securities;



               (xiv) any amendment, alteration or modification in the terms of any currently outstanding
Leases;



               (xv) any amendment, alteration or modification in the terms of any currently outstanding
loans, including any increase in the interest rate or any change to the payment terms;



               (xvi) any amendment, alteration or modification in the terms of any currently outstanding
Contracts with any Affiliate; or



               (xvii) any agreement to take any of the actions specified in this Section 3.6, except
for this Agreement.



     Section 3.7 Litigation. All actions, suits, claims, investigations, arbitrations or
proceedings pending, or to the Knowledge of any of the Companies, threatened , against any of the
Companies or any of the officers, managers, employees, assets or properties of any of the Companies
before any arbitrator or Governmental Entity and a description thereof are set forth in
Schedule 3.7. There is no action, suit, claim, investigation, arbitration or proceeding
pending, or to the Knowledge of any of the Companies threatened, against any of the Companies or
any of the assets or properties of any of the Companies before any arbitrator or Governmental
Entity. Except as set forth in Schedule 3.7, neither the Companies nor, to the Knowledge
of the Companies, nor any Seller, officers, managers or employees of any of the Companies have been
permanently or temporarily enjoined by any order, judgment or decree of any Governmental Entity
from engaging in or continuing any conduct or practice in connection with the business or assets of
any of the Companies nor, to the Knowledge of any of the Companies, are the Companies or any of
their respective officers, managers or employees under any investigation related to any of the
Companies’ business by any Governmental Entity.



     Section 3.8 Taxes. (a) Each of the Companies has filed (or joined in the filing of)
when due all Tax Returns required by applicable Law to be filed with any Governmental Entity; (b)
all such Tax Returns were true, correct and complete in all material respects as of the time of
such filing; (c) all Taxes relating to periods ending on or before the Closing Date owed by any of
the Companies (whether or not shown on any Tax Return) at any time on or prior to the Closing



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Date, if required to have been paid, have been or will be timely paid (except for Taxes that
are being contested in good faith in appropriate proceedings, and for which adequate reserves have
been established on the Financial Statements in accordance with GAAP and that are set forth on
Schedule 3.8) hereto; (d) the amount of the liability of any of the Companies for unpaid
Taxes for all periods (or portions thereof) ending on or before the Closing Date will not, in the
aggregate, exceed the amount of current liability accruals for Taxes (excluding reserves for
deferred Taxes established to reflect timing differences between book and Tax income) as such
accruals are reflected in the Financial Statements, except for liabilities for Taxes incurred after
the Balance Sheet Date in in the Ordinary Course; (e) there is no action, suit, proceeding,
investigation, audit or claim now pending against, or with respect to, any of the Companies in
respect of any material Tax or Tax assessment or Tax Return, nor has any claim for additional
material Tax or Tax assessment been asserted in writing or, to any of the Companies’ Knowledge been
proposed by any Tax authority; (f) no written claim has been made by any Government Authority in a
jurisdiction where any of the Companies do not currently file any Tax Returns that any of them is
or may be subject to Tax by such jurisdiction, nor to any of the Companies’ Knowledge has any such
assertion been threatened or proposed in writing; (g) none of the Companies are a party to any tax
sharing agreement or other agreement, whether written or unwritten, providing for the payment of
Taxes, payment for Tax losses, entitlements to refunds or similar Tax matters; (h) each of the
Companies has withheld and paid all material Taxes required to be withheld by such Company in
connection with any amounts paid or owing to any employee, creditor, independent contractor or
other third party; (i) none of the Companies have been audited by any Governmental Entity within
the last five years; (j) none of the Companies has executed or filed with the Internal Revenue
Service or any other Governmental Entity any agreement or other document extending, or having the
effect of extending, the period for assessment or collection of any Taxes that is currently in
effect; (k) none of the Companies are or have been a member of any affiliated, combined, unitary or
similar group for Tax purposes; and (l) there are no liens for Taxes (other than current Taxes not
yet due and payable) upon the assets of any of the Companies. For purposes of this Agreement, “Tax
Returns” shall mean all returns, reports, exhibits, schedules, information statements and other
documentation (including any additional or supporting material) filed or maintained, or required to
be filed or maintained, in connection with the calculation, determination, assessment or collection
of any Tax and shall include any amended returns required as a result of examination adjustments
made by the Internal Revenue Service or other Governmental Entity. For purposes of this Agreement,
“Tax” or “Taxes” shall mean any and all federal, state, local, foreign and other taxes, levies,
fees, imposts and duties of whatever kind (including any interest, penalties or additions to the
tax imposed in connection therewith or with respect thereto), including, without limitation, taxes
imposed on, or measured by, income, franchise, profits or gross receipts, and ad valorem, value
added, sales, use, service, real or personal property, capital stock, license, payroll,
withholding, employment, social security, workers’ compensation, unemployment compensation,
utility, severance, production, excise, stamp, occupation, premium, windfall profits, transfer and
gains taxes and customs duties.




     Section 3.9 Employee Benefits.



          (a) Except as set forth in Schedule 3.9(a), the Companies do not maintain, administer,
sponsor or otherwise have any material liability with respect to (i) any “employee benefit plan”,
as defined in section 3(3) of the Employee Retirement Income Security Act of




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1974, as amended (“ERISA”), (ii) any other plan, program, policy or arrangement
(written or oral) whether or not subject to ERISA (including any funding mechanism therefor now in
effect or required) providing for retirement, bonuses or other incentive compensation,
profit-sharing, stock option, stock purchase, restricted stock, stock unit, other stock related
rights, deferred compensation, vacation, health or medical benefits, life insurance, disability
benefits, cafeteria (section 125), workers’ compensation, supplemental unemployment benefits,
severance benefits, salary continuation, leave of absence or other fringe benefits, or (iii)
employment, consulting, termination, retention, severance, or change of control agreement or
arrangement, in each case which covers any current or former employee or manager of any of the
Companies. The items required to be listed in Schedule 3.9(a) are referred to collectively
herein as the “Companies’ Employee Plans.”




          (b) The Companies have delivered to Buyer accurate and complete copies of the following
documents with respect to each of the Companies’ Employee Plans (as applicable) (i) the plan
document, as currently in effect, and any related trust documents, insurance contracts or other
funding arrangements (in each case, as currently in effect), (ii) the most recent summary plan
description and summary of material modification, if any, and (iii) for the two most recent plan
years the Forms 5500 and all attachments thereto, if any, and (B) actuarial valuation reports, if
any.




          (c) None of the Companies’ Employee Plans is subject to title IV of ERISA or section 412 of
the Code. Neither the Company nor any ERISA Affiliate has, at any time during the last six years,
had any liability (whether absolute or contingent) under title IV of ERISA or under section 412 of
the Code. An “ERISA Affiliate” means any Person that would be treated as a single employer with
the Companies under section 414(b), (c), (m) or (o) of the Code.




          (d) Each of the Companies’ Employee Plans that is intended to be qualified under section
401(a) of the Code (i) is the subject of an unrevoked favorable determination letter from the
Internal Revenue Service, (ii) has a request for such a letter pending with the Internal Revenue
Service or has remaining a period of time under the Code or applicable Treasury regulations or
Internal Revenue Service pronouncements in which to request, and make any amendments necessary to
obtain, such a letter from the Internal Revenue Service, or (iii) is a prototype or volume
submitter plan entitled, under applicable Internal Revenue Service guidance, to rely on the
favorable opinion or advisory letter issued by the Internal Revenue Service to the sponsor of such
prototype or volume submitter plan, and to the Knowledge of the Companies, nothing has occurred,
whether by action or failure to act, that could reasonably be expected to cause the loss of such
qualification. The Companies have furnished to Buyer true, complete and correct copies of the most
recent Internal Revenue Service determination letter, if any, with respect to each of the relevant
Companies’ Employee Plans.




          (e) Each of the Companies’ Employee Plans has been maintained in material compliance with its
terms and with the requirements prescribed by any and all applicable Laws, including ERISA and the
Code. None of the Companies nor, to the Knowledge of the Companies, any other Person has, with
respect to any Companies Benefit Plans, (i) engaged in a “prohibited transaction,” within the
meaning of section 406 of ERISA or section 4975 of the Code for which an exemption is not available
and which would subject the Companies to a material penalty under section 502(i) of ERISA or a
material Tax under section 4975 of the Code




PURCHASE AND SALE AGREEMENT




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(assuming the taxable period of any such transaction expired as of the date hereof), or (ii)
breached any fiduciary duty imposed on it pursuant to ERISA in such a way as would result in a
material liability to the Companies.




          (f) Except as set forth in Schedule 3.9(f), neither the execution and delivery of this
Agreement nor the consummation of the Transactions will, either alone or in combination with any
other event, (i) result in any payment becoming due to any present or former employee of any of the
Companies, (ii) increase any benefits otherwise payable under any of the Companies’ Employee Plans,
(iii) result in the acceleration of the time of payment or vesting of any such payment or benefit,
or (iv) give rise to the payment of any amount not deductible pursuant to the terms of Section 280G
(except to the extent required by section 411(d)(3) of the Code).




          (g) Except as set forth in Schedule 3.9(g), there has been no amendment to, written
interpretation or announcement (whether or not written) relating to, or change in employee
participation or coverage under, any of the Companies’ Employee Plans that would materially
increase the expense of maintaining such Company Employee Plan above the level of the expense
incurred in respect thereof for the year ended December 31, 2010.




          (h) None of the Companies have any obligation or liability (contingent or otherwise) with
respect to any retiree health insurance, retiree life insurance or other retiree welfare benefits
(within the meaning of Section 3(1) of ERISA) under any of the Companies’ Employee Plans, other
than as mandated by section 4980B of the Code or under applicable Law and at the expense of the
participant or the participant’s beneficiary, except to the extent applicable Law requires the
Companies to pay for all or a portion of the cost of such benefits. Each of the Companies’
Employee Plans may be amended or terminated in accordance with the amendment or termination
provisions of said plan without incurring any material liability thereunder to any of the Companies
(except for routine administrative and termination expenses and benefits accrued through the date
of amendment or termination).




          (i) None of the Companies’ Employee Plans are under audit or investigation by the Internal
Revenue Service, the Department of Labor or any other Governmental Entity, nor, to the Knowledge of
the Companies, are any such audits or investigations pending or threatened. No actions, suits,
termination proceedings or claims (other than routine claims for benefits, appeals of such claims
and domestic relations orders) are pending or, to the Knowledge of the Companies, threatened with
respect to any of the Companies’ Employee Plans, the assets of any of the Companies’ Employee
Plans, or, to the Knowledge of the Companies, the plan administrator or any fiduciary of any of the
Companies’ Employee Plans with respect to the operation of such plan, and to the Knowledge of the
Companies, there are no facts or circumstances existing that would reasonably be expected to give
rise to any such actions, suits, termination proceedings or claims.




     Section 3.10 Labor Matters.



          (a) None of the Companies are parties to any labor or collective bargaining agreement, and, to
the Knowledge of the Companies, no employees of any of the Companies are represented by any labor
or similar organization. Within the preceding three years, there have




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been no representation or certification proceedings, or petitions seeking a representation
proceeding, pending, or to the Knowledge of the Companies, threatened to be brought or filed with
the National Labor Relations Board or any other labor relations tribunal or authority. To the
Knowledge of the Companies, within the preceding three years there have been no organizing
activities involving any of the Companies in respect of any group of employees of any of the
Companies.




          (b) There are no strikes, work stoppages, slowdowns, lockouts, arbitrations or grievances or
other labor disputes pending, or to the Knowledge of the Companies threatened, against or involving
any of the Companies. There are no unfair labor practice charges, grievances or complaints
pending, or to the Knowledge of any of the Companies threatened, by or on behalf of any employee or
group of employees of any of the Companies.




          (c) There are no charges, grievances, complaints or claims against any of the Companies
pending or, to the Knowledge of any of the Companies, threatened to be brought or filed with any
Governmental Entity or arbitrator based on, arising out of, in connection with, or otherwise
relating to the employment or termination of employment of any Person by any of the Companies.




          (d) To the Knowledge of any of the Companies, all employees of the Companies possess all
applicable passports, visas, permits and other authorizations required by all applicable
immigration or similar Laws to be employed by and to perform services for and on behalf of the
Companies. The Companies have complied in all material respects with all applicable immigration
and similar Laws.




          (e) The Companies do not engage or use any leased employees or independent contractors with
respect to the business of the Companies.




     Section 3.11 Compliance with Laws. The Companies are not in material violation of,
and have not materially violated, any applicable provisions of any Laws. The Companies have not
received written notice of and, to the Knowledge of any of the Companies, none of the Companies are
being investigated with respect to, and have not been threatened in writing to be charged with or
given notice of, any material violation of any applicable Law. To the Knowledge of the Companies,
none of the Companies nor any manager, officer, agent or employee of any of the Companies has (i)
used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related
to political activity, (ii) made any unlawful payment to foreign or domestic government officials
or employees or to foreign or domestic political parties or campaigns or violated any provision of
the Foreign Corrupt Practices Act of 1977, as amended, or (iii) made any other unlawful payment.



     Section 3.12 Permits. Except as set forth in Schedule 3.12-1 (or as set forth
in Schedule 3.13 with respect to Environmental Permits), the Companies have, maintain in
full force and effect, and are in material compliance with, all Permits required by the Companies
to own, lease and operate their properties and to carry on their businesses as currently conducted,
except where the failure to have a Permit would not have a Material Adverse Effect. Schedule
3.12-2 sets forth all actions, proceedings or investigations, pending, or to the Knowledge of
the Companies,



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threatened against any of the Companies that would reasonably be expected to result in the
suspension, loss or revocation of any Permit.




     Section 3.13 Environmental. Except as set forth in Schedule 3.13:



          (a) to the Knowledge of any of the Companies, the Companies are and, for the past five years,
have been in material compliance with all Environmental Laws and the Companies have, maintain in
full force and effect and are in material compliance with, all Environmental Permits for the
Companies to own, lease and operate their properties and to carry on their businesses as currently
conducted, except where the failure to so comply with Environmental Laws or to obtain and comply
with such Environmental Permits would not result in Environmental Liabilities that could reasonably
be expected to exceed One Hundred Thousand Dollars ($100,000) in the aggregate, and all such
Environmental Permits held by the Company are valid, uncontested and in good standing;




          (b) to the Knowledge of the Companies, the Real Property and any Real Property previously
owned, leased or operated by the Companies or any Company or business acquired by any of the
Companies, is free of contamination by Hazardous Substances that could reasonably be expected to
result in Environmental Liabilities in excess of One Hundred Thousand Dollars ($100,000);




          (c) there are no investigations, claims or proceedings pending or, to the Knowledge of the
Companies, threatened against any of the Companies or any Real Property or, to the Knowledge of the
Companies, any Real Property previously owned, leased or operated by the Companies or any Company
or business acquired by any of the Companies, with respect to violations of or potential liability
under Environmental Laws or Environmental Permits;




          (d) none of the Companies, to the Knowledge of the Companies, have entered into or assumed by
contract or operation of law or otherwise, any material obligation, liability, order, settlement,
judgment or decree relating to or arising under Environmental Laws; and




          (e) the Companies have provided to Buyer copies of all existing environmental reports, reviews
and audits in the Companies’ possession and all written information pertaining to actual or
potential material Environmental Liabilities, in each case relating to any of the Companies, any
predecessor or any company or business acquired by any of the Companies, and in each case in the
Companies’ possession.




     Section 3.14 Brokers and Finders. Except as set forth in Schedule 3.14, there
is no investment banker, financial advisor, broker, finder or other financial intermediary that has
been retained by, or is authorized to act on behalf of, the Companies that might be entitled to any
fee or commission from any of the Companies or any of their Affiliates upon consummation of the
Transaction.



     Section 3.15 Affiliate Transactions. Except as set forth in Schedule 3.15,
and except for employment agreements with officers or employees of the Companies set forth in
Schedule 3.17(a)(viii), there are no Contracts with any (a) present or former employee,
manager or officer of any of the Companies or any of their immediate family members, (b) record or
beneficial



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owner of five percent or more of any voting securities of any of the Companies or (c)
Affiliate of any of the Companies or any of the Sellers.




     Section 3.16 Intellectual Property.



          (a) Schedule 3.16(a) sets forth an accurate and complete list of all pending
applications and registrations for: (i) Patents, (ii) Marks (registered and unregistered), (iii)
Copyrights (registered and unregistered), and (iv) domain names, in each case, owned or filed by
any of the Companies. Schedule 3.16(a) lists the record owner of each such item of
Intellectual Property and the jurisdictions in which each such item of Intellectual Property has
been issued or registered or in which each such application for issuance or registration of such
item of Intellectual Property has been filed.




          (b) Except as set forth in Schedule 3.16(b), to the Knowledge of the Companies: (i)
the Companies each have all right, title and interest in, or a valid, binding and continuing
license to use, all Intellectual Property used in their respective businesses as currently
conducted, free and clear of all Liens or obligations to others (other than as provided in any
license obtained or granted by any of the Companies for any such item); (ii) the Intellectual
Property owned by or licensed to any of the Companies includes all of the Intellectual Property
necessary to enable the Companies to conduct their respective businesses in all material respects
in the manner in which such business is currently being conducted.




          (c) The current development, manufacture, reproduction, use, license, marketing, importation,
exportation, offer for sale or sale of the products or services of the Companies and the current
business practices and methods of the Companies do not, to the Knowledge of any of the Companies,
infringe, violate or constitute an unauthorized use or misappropriation of any Intellectual
Property of any Person. To the Knowledge of the Companies, no Person is infringing,
misappropriating or violating any Intellectual Property owned by or exclusively licensed to any of
the Companies, and no such claims have been made against any Person by any of the Companies.




          (d) To the Knowledge of the Companies, no claims have been asserted or threatened against any
of the Companies by any Person challenging any of the Companies’ ownership or use of any such
Intellectual Property or the validity, effectiveness or enforceability of any such Intellectual
Property.




          (e) No material Trade Secret of any of the Companies, has been authorized to be disclosed or,
to the Knowledge of the Companies, has been actually disclosed by any of the Companies to any
employee or any other Person other than pursuant to a written non-disclosure agreement that
includes restrictions on the disclosure and use of such Trade Secrets. The Companies have taken
reasonable security measures (as determined by the industry in which the Companies operate) to
protect the secrecy and confidentiality of all material Trade Secrets of the Companies, that any of
the Companies.




          (f) There are no orders, judgments, decrees, writs, rulings, arbitration awards, settlement
agreements or judicial stipulations to which the Companies are a party or by which




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the Companies are bound that restrict their rights to use any Intellectual Property used
by any of the Companies in the operation of their respective businesses as currently conducted.




          (g) Except as set forth in Schedule 3.16(g), the consummation of the Transactions will
not result in the loss or impairment of Buyer’s right to own or use any Intellectual Property used
in the business of any of the Companies as currently conducted.




     Section 3.17 Material Contracts.



          (a) Schedule 3.17 sets forth a true, complete and correct list of the following
Contracts to which any of the Companies are a party or by which any of their assets or properties
are bound (collectively, the “Material Contracts”):




               (i) Each Contract, the performance of which could reasonably be expected to require net
payments by or receipts to the Companies in excess of Two Hundred Fifty Thousand Dollars ($250,000)
per Company, in any calendar year (excluding employee compensation arrangements);



               (ii) Each Contract providing for any future contingent payment by any of the Companies in
excess of Two Hundred Fifty Thousand Dollars ($250,000) in the aggregate;



               (iii) Each Contract with any Major Customer or Major Supplier;



               (iv) Each Contract containing covenants limiting the freedom of the Companies or any Affiliate
of the Companies (including Buyer and its Affiliates after Closing) to negotiate and enter into
this Agreement, engage in any line of business or compete with any Person, in any product line or
line of business, or operate at any location;



               (v) Each Contract or other instruments providing for the borrowing or lending of money, in an
amount in excess of Fifty Thousand Dollars ($50,000), whether as borrower, lender or guarantor;



               (vi) Each Contract relating to joint ventures, alliances, partnerships, or joint development
or similar arrangements with any Third Party;



               (vii) Each Contract, consent, royalty or similar agreements relating to Intellectual Property
involving payments in an amount in excess of One Hundred Thousand Dollars ($100,000) annual (other
than shrink-wrap or other off-the-shelf license agreements and other Intellectual Property not
material to the conduct of the business of the Companies);



               (viii) Each Contract with current or former officers, employees, directors, consultants,
independent contractors or agents for employment and all severance, change in control or similar
arrangements with any current or former directors, officers, employees, consultants, independent
contractors or agents that will result in any obligation (absolute or contingent) of any of the
Companies to make any payment in excess of Twenty Five Thousand Dollars ($25,000) to any current or
former managers, officers, employees, consultants,



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independent contractors or agents following either the consummation of the Transactions,
termination of employment (or the relevant relationship), or both;




               (ix) Each Contract with any Governmental Entity that has a remaining term in excess of thirty
(30) days or is not cancelable (without material penalty, cost or other liability) within thirty
(30) days;



               (x) Each Contact relating to any material Permits;



               (xi) Each Contract relating to the Real Property;



               (xii) Each Contract or commitment in which any of the Companies have granted manufacturing
rights or exclusive marketing rights relating to any product or service, any group of products or
services or any territory;



               (xiii) Each Contract for the acquisition or sale, directly or indirectly (by merger or
otherwise) of assets (whether tangible or intangible, other than inventory sold in the Ordinary
Course) or any Equity Interest to another Person;



               (xiv) Each Contract relating to the Equity Interests or other ownership in assets of another
Person, including each Contract containing voting, management, change of control, or transfer
provisions related to such capital stock or other assets; or



               (xv) Each Contract requiring bonuses to be paid to any Seller, at any time after December 31,
2010 or for any services performed prior to the Effective Date.



          (b) True, complete and correct copies of the written Material Contracts and descriptions of
oral Material Contracts, if any, have been delivered to Buyer. Each of the Material Contracts is a
valid and binding obligation of one or more of the Companies and, to the Knowledge of the
Companies, enforceable against one or more of the Companies and the other parties thereto, in
accordance with its terms, except as may be limited by bankruptcy, insolvency, moratorium,
reorganization or similar Laws affecting the rights of creditors generally and general principles
of equity. Except for the consummation of the Transactions, no event has occurred that would, on
notice or lapse of time or both, entitle the holder of any indebtedness issued pursuant to a
Material Contract to accelerate, or that does accelerate, the maturity of any such indebtedness.




          (c) None of the Companies has received any written notice from any Third Party alleging that
any of the Companies are, or, to the Knowledge of the Companies, any Third Party is, in breach,
default or violation (each a “Default”) (and no event has occurred or not occurred through
the Companies’ action or inaction or, to the Knowledge of the any of the Companies, through the
action or inaction of any Third Parties, which with notice or the lapse of time or both would
constitute a Default) of any term, condition or provision of any Material Contract.




          (d) None of the Companies have received written notice of the termination of, or intent to
terminate or otherwise fail to fully perform any Material Contract. To the




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Knowledge of any of the Companies, no third party has threatened to terminate or not
materially perform its obligations under any Material Contract.




     Section 3.18 Real Property. Schedule 3.18 sets forth each parcel of real
property owned, leased or used by any of the Companies (the “Real Property”). The
Companies have made available to Buyer a true and complete copy of each real estate lease to which
any of the Companies are a party for the locations used by any of the Companies in their businesses
(the “Leases”). To the Knowledge of the Companies, each Company has a valid leasehold
interest in each of the Leases to which it is a party, free and clear of all Liens other than
Permitted Liens. The use of the Real Property by the Companies in their businesses as presently
conducted conforms in all material respects with applicable zoning Laws, regulations and Permits.
The Companies enjoy peaceful and undisturbed possession under the Leases for all Real Property that
is leased by the Companies.



     Section 3.19 Major Suppliers and Customers. Set forth in Schedule 3.19-1 is a
list of the 10 largest suppliers and service providers to the Companies based on the dollar value
of materials or services purchased by the Companies during the year ended December 31, 2010 and the
three months ended March 31, 2011 (collectively, the “Major Suppliers”). Set forth in
Schedule 3.19-2 is a list of the 10 largest customers of the Companies based on the dollar
value of revenue generated by such customers for the year ended December 31, 2010 and the three
months ended March 31, 2011 (collectively, the “Major Customers”). As of the date of this
Agreement, none of the Companies have received written notice (or, to the Knowledge of the
Companies, oral notice) of the termination or cancellation of, or any material adverse modification
or change in the business relationship of the Company with any Major Supplier or Major Customer.



     Section 3.20 Personnel. Set forth in Schedule 3.20 is a list setting forth:
(a) the name of each officer, manager and employee of each of the Companies receiving annual
compensation in excess of $75,000, specifying the title of such officer, manager and employee and
the annual salary, bonus, and other compensation that such officer, manager and employee is
currently entitled to receive and (b) all arrangements with respect to any bonuses to be paid to
any officer, manager or employee from and after the Effective Date, all pending claims for bonus by
employees and former employees and all accrued vacation or paid time off benefits.



     Section 3.21 Assets. Schedule 3.21 includes a complete list of the material
assets and properties owned, leased or licensed by each of the Companies as of March 31, 2011.
Except as set forth in Schedule 3.21, and except for assets sold, used or otherwise
disposed of since March 31, 2011 in the Ordinary Course, each of the Companies has good title to or
a valid leasehold estate in, free and clear of any Liens other than Permitted Liens, all personal
properties and assets reflected on the March 31 Balance Sheet. To the Knowledge of the Companies,
all material operating equipment listed on Schedule 3.21 has not materially changed since
March 31, 2011, ordinary wear and tear excepted.



     Section 3.22 Insurance. Schedule 3.22 contains a true, complete and correct
list of all insurance policies of each of the Companies (the “Insurance Policies”),
specifying the insurer, coverage, deductible, and term of each Insurance Policy. Each Insurance
Policy is in full force and effect and is valid, outstanding and enforceable, and all premiums due
thereon have been



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paid in full. To the Knowledge of the Companies, none of the Insurance Policies will
terminate or lapse (or be affected in any other materially adverse manner) by reason of the
Transactions. The Companies have complied in all material respects with the provisions of each
Insurance Policy. To the Knowledge of each of the Companies, no insurer under any Insurance Policy
has canceled or generally disclaimed liability under any such policy or, indicated in writing any
intent to do so or not to renew any such policy. All claims under the Insurance Policies have been
filed in a timely fashion. Since December 31, 2007, all of the Insurance Policies have been
maintained in continuous force and effect.




     Section 3.23 Minute Books. The minute books of each of the Companies accurately
reflect in all respects all material actions taken by written consent or resolution and meetings,
by the respective members, managers and committees of each of them. Each Company’s Operating
Agreement contains schedules or exhibits that accurately reflect all transactions in such Company’s
Equity Interest of all classes. True, correct and complete copies of the minute books, if any, of
each of the Companies have been made available to Buyer prior to the date hereof.



     Section 3.24 Bank Accounts. Schedule 3.24 hereto lists all banks and other
financial institutions at which any of the Companies maintain deposit or other accounts or safe
deposit boxes and such Schedule correctly identifies the name, address and telephone number of each
depository, the name in which the account is held, a description of the purpose of the account, the
complete account number therefor and the authorized signatories or Persons having access to such
accounts.



     Section 3.25 Inventory. No portion of the inventory of the Companies reflected on the
March 31 Balance Sheet is not useable and saleable in the Ordinary Course, subject to the allowance
for excess and obsolete inventory reflected on the March 31 Balance Sheet (or in any notes
thereto), as adjusted for operations and transactions through the date hereof and the Closing Date
in the Ordinary Course.



     Section 3.26 Accounts Receivable. All Accounts Receivable of the Companies that are
reflected on the March 31 Balance Sheet represent valid obligations arising from sales actually
made or services actually performed in the Ordinary Course. As of the date hereof, there is no
contest, claim or express right of set-off, other than returns in the Ordinary Course of Business
of the applicable Company, under any Contract with any obligor of any such Accounts Receivable
regarding the amount or validity of such Accounts Receivable. Notwithstanding the foregoing,
nothing in this Section 3.26 will constitute a guarantee (or similar assurance) of
collection of any Accounts Receivable.



ARTICLE IIIA

REPRESENTATIONS AND WARRANTIES OF THE SELLERS




     Each Seller, individually and not jointly and severally, hereby makes the representations and
warranties to the Buyer with respect to such Seller (and only such Seller) that are set forth in
this Article IIIA.



     Section 3A.1 Corporate Organization; Qualification. If Seller is a corporation,
limited partnership, limited liability company, bank, trust company, trust or other entity, Seller
is duly



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organized, validly existing and in good standing under the Laws of its jurisdiction of
incorporation, formation or organization (as applicable).




     Section 3A.2 Title. Seller has good and valid title to all Equity Interests set forth
next to Seller’s name on Schedule 3.2(a), free and clear of any Lien (other than
restrictions imposed by securities Laws applicable to securities generally, rights of Buyer
hereunder and any restrictions as set forth in the Companies’ Operating Agreements).



     Section 3A.3 Authorization. The Seller has all power and authority to execute and
deliver this Agreement and to perform its, his or her obligations hereunder. If Seller is a
corporation, limited partnership, limited liability company, bank, trust company, trust or other
entity, the execution and performance of this Agreement by Seller have been duly approved prior to
the date of this Agreement by all requisite action of its board of directors, general partners,
managers, trustees or the like (as the case may be). This Agreement has been duly and validly
executed and delivered by the Seller, and (assuming the due authorization, execution and delivery
hereof by the other parties) constitutes the legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except as may be limited by
bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the rights of
creditors generally and general principles of equity.



     Section 3A.4 Noncontravention. The execution, delivery and performance by the Seller
of this Agreement do not and will not at the Closing contravene, conflict with, constitute a
violation or breach of, constitute (with or without notice or lapse of time or both) a default
under, result in or give to any Person any right of payment or reimbursement, termination,
cancellation, modification or acceleration, loss of a material benefit under or result in the
creation or imposition of any Lien upon any of the Equity Interests of the Seller under, any of the
terms, conditions or provisions of (a) any Laws binding upon or applicable to the Seller or by
which the Seller’s Equity Interests are bound, (b) any material Contract to which the Seller is a
party, or (c) any Permit binding on such Seller. Other than the Companies’ Operating Agreements,
the Seller is not a party to any agreement, voting trust, proxy or similar agreements relating to
the Equity Interests.



     Section 3A.5 Brokers and Finders. There is no investment banker, financial advisor,
broker, finder or other financial intermediary that has been retained by, or is authorized to act
on behalf of the Sellers that might be entitled to any fee or commission from any of the Companies
or any of its Affiliates upon consummation of the Transactions.



ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF BUYER




     Buyer represents and warrants to the Sellers that:



     Section 4.1 Organization; Foreign Qualification. Buyer is a limited partnership duly
organized, validly existing and in good standing under the Laws of the State of Delaware. Buyer
has all requisite power and authority required to own, lease and operate its properties and to
carry on its business as now conducted. Buyer is duly qualified to do business as a foreign



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corporation and is in good standing in each jurisdiction where the character of the property
owned, leased or operated by it or the nature of its activities makes qualification necessary.




     Section 4.2 Authorization. Buyer has all requisite power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. The execution, delivery and
performance of this Agreement and the Transactions have been duly and validly authorized by the
sole general partner of Buyer and no other authorization proceedings on the part of Buyer are
necessary to authorize the execution of this Agreement. This Agreement has been duly and validly
executed and delivered by Buyer, and (assuming the due authorization, execution and delivery hereof
by the other parties) constitutes the legal, valid and binding obligation of Buyer, enforceable
against Buyer in accordance with its terms, except as may be limited by bankruptcy, insolvency,
moratorium, reorganization or similar Laws affecting the rights of creditors generally and of
general principles of equity.



     Section 4.3 Noncontravention; Approvals and Consents.



          (a) The execution, delivery and performance by Buyer of this Agreement, the Transaction
Documents and the Transactions do not and will not contravene, conflict with, constitute a
violation or breach of, constitute (with or without notice or lapse of time or both) a default
under, result in or give to any Person any right of payment or reimbursement, termination,
cancellation, modification or acceleration, loss of a material benefit under or result in the
creation or imposition of any Lien upon any of the assets or properties of Buyer under, any of the
terms, conditions or provisions of (i) the partnership agreement of Buyer, or (ii) (A) any Laws
binding upon or applicable to Buyer or by which any of its assets or properties are bound, (B) any
Contract to which Buyer is a party or by which any of its assets or properties are bound, or (C)
any Permit, excluding from the foregoing clauses (A), (B) and (C) contraventions, conflicts,
violations, breaches, defaults, rights of payment or reimbursement, terminations, cancellations,
modifications, accelerations and creations and impositions of Liens that, individually or in the
aggregate, would not reasonably be expected to have a material adverse effect on Buyer’s ability to
perform its obligations under this Agreement or to consummate the Transactions.




          (b) Except for filings under the HSR Act, no consent, waiver, approval or action of, filing
with or notice to any Governmental Entity or Third Party (other than that required under Section 7A
of the Clayton Act, 15 USCA, Section 18 a) is necessary or required under any of the terms,
conditions or provisions of any Law or any Contract to which Buyer is a party or by which any of
its assets or properties are bound for the execution, delivery and performance by Buyer of the
Transaction Documents and the Transactions, excluding from the foregoing such consents, waivers,
approvals, actions, filings and notices that the failure to make or obtain, as the case may be,
individually or in the aggregate, would not reasonably be expected to have a material adverse
effect on Buyer’s ability to perform its obligations under this Agreement or to consummate the
Transactions.




     Section 4.4 Brokers and Finders. There is no investment banker, financial advisor,
broker, finder or other intermediary that has been retained by, or is authorized to act on behalf
of, Buyer that might be entitled to any fee or commission from the Companies or the Sellers upon
consummation of the Transactions.



PURCHASE AND SALE AGREEMENT




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     Section 4.5 Investment Intent. Buyer is an “accredited investor” within the meaning
of Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the “Securities
Act”) and is acquiring the Equity Interests for its own account and not with a view to their
distribution within the meaning of Section 2(11) of the Securities Act. Buyer understands that the
Equity Interests have not been registered under the Securities Act or any state securities Laws and
are being transferred Buyer, in part, in reliance on the foregoing representation.



     Section 4.6 Buyer’s Independent Investigation. Buyer has performed an independent
investigation, examination, analysis and verification of the business, assets, liabilities,
operations and financial condition of the Companies, including Buyer’s own estimate of the value of
the Equity Interests. Buyer has had the opportunity to visit with each of the Companies and meet
with such representatives of the Companies to discuss the foregoing matters. All materials and
information requested by Buyer have been provided to Buyer to its reasonable satisfaction. Buyer
has performed the due diligence Buyer deems adequate regarding all matters relating to this
Agreement and the Transactions, including those described above. In connection with the foregoing,
Buyer and its representatives have received certain estimates, budgets, forecasts, plans and
financial projections (collectively, “Forward Looking Statements”). There are uncertainties
inherent in the Forward Looking Statements, and Buyer is familiar with such uncertainties. Buyer
is taking full responsibility for making its own evaluation of, and hereby assumes all risks
regarding, the adequacy and accuracy of all Forward Looking Statements (including the
reasonableness of the assumptions underlying the Forward Looking Statements).



     Section 4.7 Funding. On the date hereof Buyer has available cash or existing
available borrowing capacity under committed borrowing facilities, and at Closing Buyer will have
available cash, in each case that is sufficient to enable Buyer to consummate the Transactions.
Buyer’s obligations hereunder are not contingent upon procuring any financing.



     Section 4.8 Solvency. Immediately after giving effect to the Closing, Buyer: (a) will
be solvent (in that both the fair value of its assets will not be less than the sum of its debts
and that the present fair saleable value of its assets will not be less than the amount required to
pay its probable liability on its debts as they become absolute and matured), (b) will have
adequate capital with which to engage in its business after the Closing; and (c) will not have
incurred and will not plan to incur debts beyond its ability to pay as they become absolute and
matured.



ARTICLE V

CLOSING




     Section 5.1 Closing. The Closing of Transactions shall be held at the offices of the
Buyer, 500 W. Illinois, Suite 100, Midland, Texas on a date not later than July 15, 2011 effective
as of 7:00 a.m. Denver, Colorado time (the “Termination Date”) (or such other date, time
and place as agreed by the parties). The date on which the Closing occurs in accordance with the
preceding sentence is referred to as the “Closing Date.”



     Section 5.2 Deliveries of the Companies and the Sellers. At the Closing, the
Companies and the Sellers, as applicable, shall deliver or cause to be delivered to the Buyer:



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          (a) The original of all documents evidencing 100% the Equity Interest of the Companies,
together with endorsements or assignments transferring ownership to Buyer, if applicable;




          (b) employment agreements (which shall be in a form acceptable to Buyer and the parties
executing same) between Buyer and each of the Employment Agreement Parties (the “Employment
Agreements”), duly executed by such parties;




          (c) consulting agreements (which shall be in a form acceptable to Buyer and the parties
executing same) between Buyer and each of the Consulting Agreement Parties (the “Consulting
Agreements”), duly executed by such parties;




          (d) resignation letters from all persons who are officers or managers of any of the Companies,
which letters shall evidence each such person’s resignation from his or her office or manager
position effective as of the Closing (but not their resignation as an employee, if they are to
become employees of the Buyer);




          (e) original certificates of title for all vehicles owned by any of the Companies free and
clear of any Liens, and copies of certificates of title for all vehicles owned by any of the
Companies that are subject to a Lien;




          (f) all Material Consents on terms reasonably satisfactory to Buyer, all duly executed;




          (g) a payoff letter or other documentation from each Person that is owed any Indebtedness to
be paid out of the Purchase Price, setting forth the amount necessary for Buyer to pay (at the
written direction of the Sellers’ Representative) such indebtedness in full as of the Closing Date;




          (h) a Certificate of an officer of each of the Companies certifying:




               (i) resolutions of the managers and members of each of the Companies granting the president or
other duly authorized officers of each of the Companies the authority to execute the Transaction
Documents to which they are a party; and



               (ii) the incumbency relating to the president and each person executing on behalf of each of
the Companies any document executed and delivered to the Buyer pursuant to the terms hereof;



          (i) evidence of termination of all 401(k) plans of each of the Companies;




          (j) the Escrow Agreement, duly executed by the Companies and the Sellers;




          (k) non-competition agreements (which shall be in a form acceptable to Buyer and the parties
executing the same) between Buyer and each of the Non-Compete Parties (the “Non-Competition
Agreements”);




PURCHASE AND SALE AGREEMENT




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          (l) a legal opinion, dated the Closing Date, from the law office of Perkins Coie LLP, special
counsel for the Companies, in the form and substance satisfactory to Buyer, to the effect that (i)
each of the Companies is a limited liability company with valid legal existence and is in good
standing under the Laws of the State of Colorado; (ii) each of the Companies has all requisite
power and authority to enter into this Agreement and perform its respective obligations hereunder;
and (iii) this Agreement has been duly executed and delivered by, and is the legal, valid and
binding obligation of the Company and is enforceable against each of the Companies in accordance
with its terms, except as the enforceability may be limited by (A) equitable principles of general
applicability or (B) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent
conveyance or similar Laws affecting the rights of creditors generally. In rendering such opinion,
such counsel may rely upon (x) certificates of public officials and of officers of the Companies or
the Sellers as to matters of fact and (y) on the opinion or opinions of other counsel; and




          (m) releases of all Liens on the Assets of the Companies and the Equity Interests and evidence
of the termination of all UCC-1 financing statements (other than Permitted Liens).




     Section 5.3 Deliveries of the Buyer. At the Closing, the Buyer shall deliver or cause
to be delivered to the Sellers, or the other appropriate Persons, as directed in writing by the
Seller Representative:



          (a) the Net Distributable Proceeds in accordance with Section 2.2, and the Escrow
Payment and Holdback Amount to the Escrow Agent;




          (b) a Certificate of an officer of Buyer certifying:




               (i) resolutions of the governing board of the Buyer approving this Agreement and the other
Transaction Documents to which it is a party and granting the chief executive officer or the
president or other duly authorized officers of Buyer the authority to execute the Transaction
Documents; and



               (ii) the incumbency relating to the chief executive officer or president and each person
executing on behalf of the Buyer any document executed and delivered to the Sellers pursuant to the
terms hereof.



          (c) the Employment Agreements, duly executed by Buyer;




          (d) the Consulting Agreements, duly executed by Buyer ;




          (e) the Escrow Agreement, with proper insertions and duly executed by Buyer;




          (f) the Non-Competition Agreements, duly executed by Buyer; and




          (g) a legal opinion, dated as of the Closing Date, from Lynch, Chappell & Alsup, a
Professional Corporation, counsel for Buyer, in form and substance satisfactory to the Sellers, to
the effect that: (i) Buyer has been duly organized and is validly existing as a limited
partnership in good standing under the Laws of the State of Delaware; (ii) Buyer has the requisite




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power and authority to carry on its business as currently conducted and to own and operate the
properties currently used and operated by it, and is duly qualified to do business and is in good
standing as a foreign limited partnership in the State of Colorado; (iii) all proceedings required
to be taken by or on the part of Buyer to authorize the execution of this Agreement and the
implementation of the Transactions have been taken; and (iv) this Agreement has been duly executed
and delivered by and is the legal, valid and binding obligation of Buyer and is enforceable against
Buyer in accordance with its terms, except and enforceability may be limited by: (A) equitable
principles of general applicability or (B) bankruptcy, insolvency, reorganization, fraudulent
conveyance or similar Laws affecting the rights of creditors generally. In rendering such opinion,
such counsel may rely upon: (x) certificates of public officials and of officers of Buyer as to
matters of fact and (y) the opinion or opinions of other counsel.




     Section 5.4 Conditions to Closing of the Buyer. The obligation of Buyer to purchase
the Equity Interests of the Companies as contemplated hereby is subject to the satisfaction on or
before the Closing Date of the conditions set forth below, any of which may be waived by Buyer in
writing.



          (a) Representations, Warranties and Covenants. The representations and warranties of
each of the Companies and each of the Sellers contained in this Agreement shall be true and correct
in all material respects on and as of the Closing Date, in each case with the same force and effect
as though such representations and warranties had been made or given on and as of the Closing Date,
except (i) to the extent that the failure of such representations and warranties to be true and
correct has not caused a Material Adverse Effect, (ii) for changes contemplated by this Agreement,
and (iii) for those representations and warranties that address matters as of any other particular
date. Each and all of the agreements and covenants of the Companies and each of the Sellers to be
performed or complied with by them on or before the Closing Date pursuant to this Agreement shall
have been performed and complied with in all material respects. Each of the Companies and each of
the Sellers shall have delivered to Buyer a certificate in a form reasonably satisfactory to Buyer,
dated the Closing Date, regarding the matters set forth in this Section 5.4.




          (b) Good Standing. The Sellers’ Representative shall have delivered to Buyer
certificates issued by appropriate Governmental Entities evidencing the status of the Companies, as
of a date not more than five calendar days prior to the Closing Date, in the State of Colorado, and
as of a date not more than five calendar days prior to the Closing Date, or such longer period as
is reasonably practicable under the circumstances, in each other jurisdiction specified in
Schedule 5.4(b) hereto.




          (c) Closing Deliveries. The Sellers shall have delivered or be standing ready to
deliver to Buyer each of the items specified in Section 5.2 hereof and any such additional
instruments of transfer of the Equity Interests as shall be reasonably requested by Buyer to vest
in Buyer all the right, title and interest in and to the Equity Interests, in each case executed
and dated the Closing Date.




          (d) No Litigation. No preliminary or permanent injunction or other order of any court
or other Governmental Entity shall be in effect or threatened nor shall there be in effect any
statute, rule, regulation or executive order promulgated or enacted by any Governmental




PURCHASE AND SALE AGREEMENT




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Entity that, in any such case, prevents the consummation of the Transactions. No suit, action,
claim, proceeding or investigation before any Governmental Entity shall have been commenced or
threatened by any Person (other than Buyer or its Affiliates) seeking to prevent the sale of the
Equity Interests or asserting that the sale of all or a portion of the Equity Interests would be
unlawful.




          (e) No Company Material Adverse Event. No Material Adverse Effect on the Companies
shall have occurred since the date of this Agreement.




          (f) Licenses, Consents and Approvals. All licenses, consents or approvals of
Governmental Entities required for the Sellers to consummate the Transactions shall have been
obtained. The Sellers shall have delivered to Buyer a copy of each of the licenses, consents,
approvals and other authorizations from Governmental Entities necessary or appropriate for the
Sellers to consummate the Transactions.




          (g) Consents of Third Persons. All of the Material Consents shall have been obtained
on terms reasonably satisfactory to Buyer.




          (h) Resolutions. If and as applicable, the Sellers shall have delivered to Buyer
certified copies of resolutions of the governing board or other equivalent body of each of the
Sellers and the Companies approving this Agreement and the Transactions in a form reasonably
acceptable to Buyer.




          (i) Employment and Consulting Agreements. Each of the Employment Agreement Parties
shall have executed and delivered an Employment Agreement and each of the Consulting Agreement
Parties shall have executed and delivered a Consulting Agreement.




          (j) Non-Competition Agreements. Each of the Non-Compete Parties shall have executed
and delivered a Non-Competition Agreement.




          (k) HSR. All waiting periods set forth in the HSR Act and the rules promulgated
thereunder shall have expired or shall have been terminated.




     Section 5.5 Conditions to Closing of the Sellers. The obligation of Sellers to sell
the Equity Interests in the Companies as contemplated hereby is subject to the satisfaction on or
before the Closing Date of the conditions set forth below, any of which may be waived by the
Sellers in writing.



          (a) Representations, Warranties and Covenants. The representations and warranties of
Buyer contained in this Agreement shall be true and correct in all material respects on and as of
the Closing Date, in each case with the same force and effect as though such representations and
warranties had been made or given on and as of the Closing Date, except (i) to the extent that the
failure of such representations and warranties to be true and correct has not caused a Material
Adverse Effect, (ii) for changes contemplated by this Agreement, and (iii) for those
representations and warranties that address matters as of any other particular date. Each and all
of the agreements and covenants of Buyer to be performed or complied with by it on or before the
Closing Date pursuant to this Agreement shall have been performed and complied




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with in all respects. Buyer shall have delivered to the Sellers a certificate in a form
reasonably acceptable to Sellers, dated the Closing Date, regarding the matters set forth in this
Section 5.5.




          (b) Good Standing. Buyer shall have delivered to the Sellers a copy of a certificate
issued by appropriate Governmental Entities evidencing the status of Buyer, as of a date not more
than five calendar days prior to the Closing Date, in the State of Delaware.




          (c) Closing Deliveries. Buyer shall have delivered or be standing ready to deliver to
the Sellers each of the items specified in Section 5.3 hereof.




          (d) Licenses, Consents and Approvals. All licenses, consents or approvals of
Governmental Entities required for Buyer to consummate the Transactions shall have been obtained
(including, specifically, that required under Section 7 A of the Clayton Act 18 USCA, Section 18
a). Buyer shall have delivered to the Sellers a copy of each of the licenses, consents, approvals
and other authorizations from Governmental Entities necessary or appropriate for Buyer to
consummate the Transactions.




          (e) No Litigation. No preliminary or permanent injunction or other order of any
Governmental Entity shall be in effect or threatened nor shall there be any statute, rule,
regulation or executive order promulgated or enacted by any Governmental Entity that, in any such
case, prevents the consummation of the Transactions. No suit, action, claim, proceeding or
investigation before any court or other Governmental Entity shall have been commenced or threatened
by any Person (other than the Sellers or any of their respective Affiliates) seeking to prevent the
sale of the Equity Interests or asserting that the sale of all or a portion of the Equity Interests
would be unlawful.




          (f) Resolutions. Buyer shall have delivered to the Sellers a copy of certified
resolutions of the Buyer (and its parent, Basic Energy Services, Inc.) approving this Agreement and
the Transactions.




          (g) Agreements. The Buyer shall have delivered to the Sellers executed copies of the
Employment Agreements, Consulting Agreements and Non-Competition Agreements.




          (h) HSR. All waiting periods set forth in the HSR Act and the rules promulgated
thereunder shall have expired or shall have been terminated.




     Section 5.6 Additional Agreements.



          (a) Access to Information; Confidentiality.




               (i) Until the Closing, the Companies will furnish, Buyer and its employees, officers,
accountants, attorneys, agents, investment bankers and other authorized representatives with all
financial, operating and other data and information concerning the assets, commitments and
properties of each of the Companies as Buyer shall from time to time reasonably request and will
afford Buyer reasonable access to the offices, properties, books, records, contracts and documents
of the Companies and will be given the opportunity to ask questions of, and receive answers from,
representatives of each of the Companies and the



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28









 







Companies customers, vendors, counsel and advisors. As part of its investigation, Buyer shall
have the right to conduct environmental assessments of the Companies’ properties as it deems
appropriate. The Companies and the Sellers will cooperate with Buyer in the preparation of any
documents or other materials that may be required by any Governmental Entity.




               (ii) The Company, Sellers and Buyer agree that the Confidentiality Agreement, dated as of
February 28, 2011 (the “Confidentiality Agreement”), between the Companies and Buyer shall
remain in full force and effect; provided, that the Companies and the Sellers hereby consent to
Buyer and its representatives contacting, and engaging in discussions and conducting its due
diligence investigation with employees, customers and suppliers of the Companies regarding the fact
that Buyer has obtained Information (as defined in the Confidentiality Agreement) and that Buyer is
engaged in evaluation and due diligence activities concerning this Agreement and the Transactions.



               (iii) Each Seller agrees to hold in confidence all, and not to disclose to others for any
reason whatsoever any, non-public information received by it or its representatives from the Buyer
in connection with the Transactions except (A) as required by Law or any legal proceeding; (B) for
disclosure to officers, managers, employees and representatives of such party as necessary in
connection with the Transactions or as necessary to the operation of such party’s business; and (C)
for information that becomes publicly available other than through such party. If the Transactions
are not consummated, each party hereto (x) will return to the other party hereto all non-public
documents and other material obtained from such other party, and all copies, summaries and extracts
thereof, or certify to such other party that such information has been destroyed and (y) agrees not
to use for its own benefit or for the benefit of any other Person any non-public information
received by it or its representatives or Affiliates from the other party in connection with the
Transactions. Notwithstanding the foregoing, each party and its representatives (I) may retain one
set of the confidential information to the extent required to comply with Law or governmental
regulations and (II) will not be obligated to erase any confidential information that is contained
in an archived computer system backup in accordance with such party’s security and/or disaster
recovery procedures; provided, however, that any such information retained under this paragraph
shall continue to be subject to the terms of this Agreement.



          (b) Conduct of Business. The Companies covenant and agree with the Buyer that from
and after the date hereof until the Closing or until this Agreement is terminated in accordance
with its terms, except as expressly contemplated by this Agreement or as expressly consented to in
writing by such other party, that the Companies shall:




               (i) operate only in the Ordinary Course with a view to maintaining the goodwill that each such
entity now enjoys and, to the extent consistent with such operation, use all reasonable efforts to
preserve intact its present business organization, keep available the services of their respective
employees and preserve their relationships with their respective customers, suppliers, distributors
and other Persons having business relations with each such entity, except as would not individually
or in the aggregate have a Material Adverse Effect;



               (ii) use reasonable efforts to maintain its assets in a state of repair, order and condition
consistent with past practice;



PURCHASE AND SALE AGREEMENT




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               (iii) maintain its books of account and records in the usual, regular and ordinary manner, in
accordance with the usual accounting practices of each such entity applied on a consistent basis
and not increase the carrying value of any assets above their historical costs;



               (iv) comply in all material respects with all statutes, Laws, orders and regulations
applicable to it and to its businesses, operations, properties or assets;



               (v) not sell, assign, transfer, lease or otherwise dispose of any of its assets or properties,
except for dispositions of inventories or equipment for value in the usual and Ordinary Course;



               (vi) preserve and maintain all rights that it now enjoys in and to its respective Intellectual
Property and not sell, assign, transfer, lease or otherwise dispose of any of such Intellectual
Property;



               (vii) not enter into any material Contract that is not in the Ordinary Course;



               (viii) not amend or modify any Material Contract, except in the Ordinary Course and as would
not materially adversely affect its rights under any such contract;



               (ix) not consent to the termination of any Material Contract or waive any of its rights with
respect thereto;



               (x) not permit any insurance policy naming it as a beneficiary or a loss payee to be canceled
or terminated or any of the coverage thereunder to lapse unless simultaneously with such
termination or cancellation replacement policies providing substantially the same coverage are in
full force and effect;



               (xi) not make or rescind any Tax election, settle or compromise any proceeding with respect
to any Tax liability, or except as may be required by applicable Law, make any change in method of
accounting with respect to Taxes;



               (xii) not make or change any method of accounting or application of any principles under GAAP;



               (xiii) except as set forth on Schedule 5.6(b)(13), not change the terms of employment
of any officer or senior employee or increase the compensation or rate of compensation or
commissions or bonuses payable by it to any of its employees;



               (xiv) not authorize or issue, sell, pledge, dispose of or encumber any its Equity Interests;



               (xv) not grant any options, warrants or other rights to acquire Equity Interests (including
any “phantom” shares);



               (xvi) not amend or otherwise modify any Articles of Organization or Operating Agreements;



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               (xvii) not amend any Benefit Plan except as required by Law or this Agreement; and



               (xviii) promptly notify the Buyer in writing if it becomes aware of any change in its business
or operations that shall have occurred or that shall have been threatened (or any development that
shall have occurred or that shall have been threatened involving a prospective change) that would
reasonably be expected to have a Material Adverse Effect.



          (c) Negotiation with Others. The Companies and the Sellers agree that from the date
hereof until the Closing Date or the termination of this Agreement pursuant to Section 5.7
hereof, the Sellers and the Companies will not, directly or indirectly, through any representative
or otherwise, solicit or entertain offers from, negotiate with or in any manner encourage, discuss
or accept or consider any proposal or offer from any Person not a party hereto or not affiliated
with a party hereto with respect to a merger, consolidation, asset purchase, stock purchase or any
similar transaction involving the Companies or their assets or properties. During such period, the
Sellers’ Representative will immediately notify Buyer regarding any such contact regarding any such
offer or proposal or any related inquiry.




          (d) Information; Supplements to Schedules.




               (i) During the period from the date of this Agreement to the Closing Date, Buyer, each of the
Companies and the Sellers will promptly inform each other in writing of any claim, action or any
proceeding commenced against such party with respect to the Transactions or any assets or property
of the Companies.



               (ii) Buyer and the Companies shall from time to time up to the Closing Date, by notice in
accordance with this Agreement, supplement, amend or create any Schedule to reflect changes in any
disclosure from the date of this Agreement or items mistakenly omitted from disclosure at the time
of this Agreement (all of such updates, amendments and supplements together with the Schedules that
were made a part of this Agreement upon its execution, is the “Updated Disclosure
Schedule”). No such Updated Disclosure Schedule shall be evidence, in and of itself, that the
representations and warranties in the corresponding section are no longer true and correct in all
material respects. It is specifically agreed that such Schedules may be supplemented or amended to
add immaterial, as well as material, items thereto. Notwithstanding the foregoing, (A) for
purposes of determining the satisfaction of the conditions in Sections 5.4 and 5.5,
the Schedules will only contain the items contained in the Schedules upon this Agreement’s
execution and the Updated Disclosure Schedule will have no effect and (B) if the Closing occurs,
then thereafter for purposes of determining the presence of a breach of any representation or
warranty made on the date of this Agreement or on the Closing Date for purposes of Article
VI and rights to indemnification, the Schedules will be deemed to also contain each item in the
Updated Disclosure Schedule; provided, however, that, for any breach of any representation or
warranty made on the date of this Agreement, the Updated Disclosure Schedule will have no effect if
such breach did not rise to the level of giving Buyer the right to refuse to effect the Closing
under the terms of this Agreement (whether such breach is taken alone or combined with any other
such breaches that occurred on the date of this Agreement).



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          (e) Delivery of Documents and Other Materials.




               (i) Each of the Companies shall maintain all documents, agreements, instruments, certificates,
writings, notices, consents, affidavits, letters, telegrams, telexes, statements, files, computer
disks, microfiches or other documents in electronic format, schedules, exhibits or any other paper
or record whatsoever relating to the Companies that are in the possession or control of any of the
Companies or the any of the Sellers, including, without limitation, computer disks reflecting any
books or records, documents or other papers, or other information or data relating to the operation
of the Companies stored on any electronic media, including computers (“Documents and Other
Materials”). For a period of six (6) years after the Closing Date, Buyer agrees to provide the
Sellers’ Representative with access to such Documents and Other Materials to the extent required
for tax, financial accounting or legal purposes on a reasonable basis during normal business hours
and to permit copies to be made of such Documents and Other Materials as may be reasonably needed,
all at the expense of the Sellers seeking such information.



               (ii) The Companies and the Sellers agree to provide Buyer with access to any Documents and
Materials not delivered to Sellers pursuant to Section 5.6(e)(i) above to the extent
required for tax, financial, accounting, legal, operational or other reasonable purpose on a
reasonable basis during normal business hours and to permit copies to be made of such Documents and
Other Materials as may be reasonably needed; provided, however, that if any of such Documents and
Other Materials retained by the Sellers and not otherwise delivered to Buyer at Closing are
material to business or operation of the Companies, copies of such Documents and Other Materials
shall be provided to Buyer at Closing.



               (iii) All such Documents and Other Materials so copied by any Seller pursuant to Sections
5.6(e)(i) and (ii) above shall be maintained by such party in confidence, except to the extent
required to be disclosed under Law or in furtherance of any defense by such party or any thereof to
any action, suit or proceeding against such party or such Affiliate; provided, however, that the
party possessing such Documents and Other Materials shall be advised of any such proposed
disclosure in advance and be entitled to seek a limitation on the use of such information and scope
of such disclosure.



          (f) Further Assurances. Each of the Sellers shall execute, acknowledge and deliver or
cause to be executed, acknowledged and delivered to Buyer such bills of sale, assignments
(including but not limited to assignments of leases) and other instruments of transfer, assignment
and conveyance, in form and substance satisfactory to counsel for Buyer, as shall be necessary to
vest in Buyer all the right, title and interest in and to the Equity Interests free and clear of
all Liens and shall use his or its best efforts to cause to be taken such other action as Buyer may
require to more effectively implement and carry into effect the Transactions, including promptly
providing access to and copies of any Documents and Other Materials requested by Buyer pursuant
hereto.



          (g) Release.



               (i) As of the Closing Date, each of the Sellers hereby for himself, herself or itself and his,
her or its successors and assigns release, acquit and forever discharge



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Buyer, the Companies and their respective Affiliates, the officers, directors, employees and
agents thereof and their respective successors and assigns, of and from any and all claims,
demands, liabilities, responsibilities, disputes, causes of action and obligations of every nature
whatsoever, liquidated or unliquidated, known or unknown, matured or unmatured, fixed or
contingent, that such Seller or its Affiliates as of the Closing Date has, owns or holds or has at
any time previously had, owned or held against such parties, including, without limitation, all
liabilities created as a result of the negligence, gross negligence and willful acts of any of the
Companies or the Sellers and their employees and agents, or under a theory of strict liability,
existing as of the Closing Date or relating to any action, omission or event occurring on or prior
to the Closing Date; provided, however, that any claims, liabilities, debts or causes of action
that may arise in the connection with the failure of any of the parties hereto to perform any of
their obligations hereunder or under any Transaction Document or other agreement relating to the
Transactions or from any breaches by any of them of any representations or warranties herein or in
connection with any of such other agreements shall not be released or discharged pursuant to this
Agreement. Notwithstanding the foregoing, the releases and other agreements set forth in this
Section 5.6(g) shall not apply to or otherwise limit, restrict or affect the
indemnification, exculpation and other obligations set forth in Section 5.6(m) and in any
other document or agreement.




               (ii) As of the Closing Date, each of the Sellers will represent and warrant that such Seller
has not previously assigned or transferred, or purported to assign or transfer, to any Person or
entity whatsoever all or any part of the claims, demands, liabilities, responsibilities, disputes,
causes of action or obligations released herein. Each of the Sellers covenants and agrees that such
Seller will not assign or transfer to any Person or entity whatsoever all or any part of the
claims, demands, liabilities, responsibilities, disputes, causes of action or obligations to be
released herein. Each of the Sellers represents and warrants that such Seller has read and
understands all of the provisions of this section and that such Seller has been represented by
legal counsel of such Seller’s own choosing in connection with the negotiation, execution and
delivery of this Agreement.



               (iii) The release provided by the Sellers pursuant to this section shall apply notwithstanding
that the matter for which release is provided may relate to the ordinary, sole or contributory
negligence, gross negligence, willful misconduct or violation of Law by a released party, including
Buyer, its Affiliates, officers, directors, employees and agents, and for liabilities based on
theories of strict liability, and shall be applicable whether or not negligence of the released
party is alleged or proven, it being the intention of the parties to release the released party
from and against its ordinary, sole and contributory negligence and gross negligence as well as
liabilities based on the willful actions or omissions of the released party and liabilities based
on theories of strict liability.



          (h) Tax Matters.




               (i) Sellers’ Representative shall prepare and file (or cause to be prepared and filed) the
final Tax Return on Form 1065 (and any similar form under applicable state and local Law) of each
of the Companies for the Tax period ending on the Closing Date.


 PURCHASE AND SALE AGREEMENT




33









 





               (ii) Buyer shall, in accordance with the past practice of the Companies, prepare and file (or
cause to be prepared and filed) all Tax Returns of the Companies (other than Tax Returns described
in Section 5.6(h)(i)) that relate to periods (or portions thereof) ending on or before the
Closing Date and that are required to be filed after the Closing Date (after taking into account
extensions therefor). Buyer shall provide Sellers’ Representative with a copy of each such Tax
Return prior to the filing thereof for Sellers’ Representative’s review and approval which shall
not be unreasonably withheld, delayed or conditioned. Sellers’ Representative shall cooperate with
Buyer as reasonably requested by Buyer in the preparation of such Tax Returns.



               (iii) After the Closing Date, each of Buyer, the Companies, and the Sellers shall cooperate
fully in preparing any Tax Returns of each of the Companies and in preparing for any audits of, or
disputes or litigation with, taxing authorities regarding any Tax Returns with respect to any of
the Companies and make available to the other parties and to any taxing authority as reasonably
requested all information and documents relating to Taxes of the Companies.



               (iv) In the case of any Straddle Period, the amount of any Taxes with respect to the portion
thereof ending on the Closing Date, (A) in the case of Taxes based on or measured by income, sales,
gross receipts, wages, transfers or other taxable events, shall be determined based on an interim
closing of the books as of the Closing Date, and (B) in the case of any other Tax, shall be deemed
to be the amount of such Tax for the entire Straddle Period multiplied by a fraction, the numerator
of which is the number of days in the portion of such Straddle Period ending on the Closing Date
and the denominator of which is the total number of days in such Straddle Period



               (v) Buyer shall pay, and shall indemnify Sellers from and against all sales, use, transfer,
Equity Interest transfer, real property transfer, and recording Taxes, and other similar Taxes and
fees arising directly out of the Transactions.



          (i) Public Announcement. Buyer has previously issued a news release concerning the
Transactions and Buyer (or its parent) has made filings with the Securities and Exchange Commission
disclosing the Transaction. Sellers and the Company agree that, notwithstanding the provisions of
Section 5.6(a)(iii) to the contrary, Buyer may make additional public disclosure regarding the
Transactions contemplated hereby, including, but not limited to, by means of an additional news
release or in filings made by Buyer (or its parent company) with the Securities and Exchange
Commission and in connection with any offering of securities by Buyer or Buyer’s parent company
and, if such disclosure involves confidential information concerning the Companies or the Seller,
such disclosure shall be subject to Buyer providing a copy of any news release or filing in advance
and Buyer agrees to correct any incorrect statements identified by the Companies prior to such
public disclosure. In addition, the Sellers and the Companies agree to provide to Buyer (at Buyer’s
sole cost and expense) such information as Buyer reasonably requests in connection with the
preparation and distribution of disclosure documents to be used in connection with any securities
offerings of Buyer (or its parent) and the Sellers and the Companies consent to the disclosure of
such information in connection with any such offering.






 PURCHASE AND SALE AGREEMENT




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          (j) Termination of Certain Agreements. Except for the agreements listed on
Schedule 5.6(j) hereto, effective prior to or as of the Closing, the Sellers and the
Companies (as applicable) shall have terminated or cancelled all existing agreements between the
Companies, on the one hand, and the Sellers or their respective Affiliates, on the other hand.
Furthermore, any and all options to acquire Equity Interests (whether vested or unvested) shall
automatically terminate.




          (k) Employee Matters. Active employees of the Companies as of the Closing who are
legally eligible to work in the United States of America, successfully pass Buyer’s pre-employment
drug screening, and otherwise qualify for employment with Buyer will be eligible for employment
with Buyer or employment by Buyer, subject to Buyer’s standard employment requirements. The
Companies’ employees employed by the Companies or Buyer immediately following Closing will be
eligible to participate in Buyer’s employee benefit programs, i.e., 401(k), health plan, vision
insurance, life insurance, accidental death and dismemberment insurance, long-term disability,
short-term disability, and supplemental insurance, subject to the eligibility requirements of each
plan, including, where applicable, any waiting period requirements. Notwithstanding the above, no
employee of a Company employed by Buyer immediately following Closing who was participating in the
Companies’ group health plan at the time of Closing, nor any participating eligible dependent of
such employee, will suffer a lapse in group health coverage during any waiting period required by
Buyer’s health plan. For the purpose of determining eligibility to participate, vesting, accrual
of and entitlement to benefits (including, without limitation, determining rate of accrual for Paid
Time Off and any health plan premium discount, but not for accrual of benefits under any “defined
benefit plan,” as defined in Section 3(35) of ERISA) and all other purposes, all service with the
Companies and their Subsidiaries and ERISA Affiliates (and predecessor employers to the extent any
Company, Company Subsidiary or ERISA Affiliate or an analogous Companies’ Employee Plan provides
past service credit) prior to the Closing will be credited as service with Buyer and its
Subsidiaries. To the extent permitted under applicable Law, Buyer shall cause each of Buyer’s
benefit programs that is an “employee welfare benefit plan,” within the meaning of Section 3(1) of
ERISA, in which any of the Companies’ employees (or the spouse or any dependent of any such
employee) participates or becomes eligible to participate after the Closing (i) to waive any and
all eligibility waiting periods, evidence of insurability requirements, pre-existing condition
limitations and other exclusions and limitations with respect to the Companies’ employees and their
spouses and dependents to the extent waived, satisfied or not included under the analogous
Companies’ Employee Plan, and (ii) to recognize for each Company employee and his or her spouse and
dependents for purposes of applying annual deductible, co-payment and out-of-pocket maximums under
such plan any deductible, co-payment and out-of-pocket expenses paid by such employee and his or
her spouse and dependents under the analogous Companies’ Employee Plan during the plan year of such
Companies’ Employee Plan in which occurs the later of the Closing Date and the date on which the
continuing employee begins participating in such Buyer plan.




          (l) HSR Filing. Prior to the date of this Agreement, the parties have made the
initial filings required under the HSR Act with respect to the Transactions and shall use their
commercially reasonable efforts to make all subsequent filings and submissions required under the
HSR Act requested of Buyer and deemed commercially prudent by the Sellers’ Representative, in order
to consummate the Transactions. In furtherance of the foregoing, each




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party will (i) promptly comply with any additional request for documents or information
relating thereto, (ii) cooperate and cause its Affiliates (as required) to cooperate and assist in
such filings and compliance, (iii) keep each other reasonably informed regarding the content of any
communication to or from any Governmental Entity or representative with respect thereto, and (iv)
defend against any action of any Governmental Entity or other Person that attempts to enjoin the
Transactions; provided, however, that the parties’ obligations hereunder shall not be interpreted
to require any party to divest assets with a value in excess of $1,800,000. As part of such
filings, each party will request early termination of the applicable waiting period under the HSR
Act and will, and will cause its Affiliates to, use commercially reasonable efforts to cause the
expiration or early termination of the waiting period under the HSR Act. Each party will use its
commercially reasonable efforts to resolve such objections, if any, as any Governmental Entity or
any other Person may assert under relevant antitrust and competition Laws with respect to the
Transaction. The parties shall not take any action with the intention to or that such party
believes would reasonably be expected to hinder or delay the obtaining of clearance or any
necessary approval of any Governmental Entity under applicable antitrust and competition Laws, the
expiration of any required waiting period thereunder or the early termination of any such waiting
period.




          (m) For a period of seven (7) years following the Closing, Buyer shall cause the Companies (or
their successors) to maintain in effect in the applicable Company’s organizational documents the
provisions regarding limitation of liability and indemnification of current and former directors,
officers and employees, and trustees or administrators of any of the Companies’ benefit plans, and
the advancement of expenses incurred, contained in the organizational documents of the Companies,
as applicable, immediately prior to the Closing and shall honor and fulfill to the fullest extent
permitted by applicable Law such limitation of liability and indemnification obligations.
Subsequent to the Closing, Buyer also agrees to cause the Companies to indemnify and advance
expenses to current and former directors, officers and employees of the Companies and trustees or
administrators of the Companies’ benefit plans, to the same extent as provided in the preceding
sentence. For a period of at least seven (7) years following the Closing, Buyer shall cause the
Companies to maintain (or cause to be maintained), in effect, either (i) the current policy of
directors’ and officers’ liability insurance maintained by the Companies (provided, that the Buyer
may substitute therefor policies of at least the same coverage and amounts containing terms and
conditions which are no less advantageous in any material respect to the insured parties
thereunder) with respect to claims arising from facts or events that occurred at or before the
Closing (including consummation of the Transactions) or (ii) a run off (i.e., “tail”)
policy or endorsement with respect to the current policy of directors’ and officers’ liability
insurance covering claims asserted within seven (7) years after the Closing arising from facts or
events that occurred at or before the Closing (including consummation of the Transactions). Such
policies or endorsements shall name as insureds thereunder all current and former directors and
officers of the Companies. From and after the Closing Date, the Buyer shall cause the Companies to
abide by and honor each of the Companies’ contractual obligations, if any, to provide directors’
and officers’ liability insurance to any other Person, to the extent of such contractual
obligation. It is expressly agreed that each Person to whom this Section relates will be a third
party beneficiary of this Section. The premiums for any such insurance coverage shall not be
deducted (without duplication) in determining Net Working Capital except to the extent paid before
Closing. Buyer shall not cancel, amend or modify any such policies without the consent of all
Persons covered by such policy.





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          (n) Except for the representations and warranties expressly set forth in Article III
and Article III-A (which, for the avoidance of doubt, are qualified by any related item in
the Schedules), the Companies and the Sellers are not making, and shall not be deemed to have made
and nor will any Seller (or any other Person) have or be subject to any liability or damages
arising out of, relating to or resulting from, any other representations or warranties, written or
oral, statutory, express or implied (including with respect to merchantability or suitability or
fitness for any particular purpose), as to the accuracy or completeness of any information
regarding the Equity Interests, the Companies, the Sellers, or the business, assets (including the
condition, value, quality or suitability of any assets or the business) or liabilities of the
Companies and the Buyer, including in each case regarding (i) any information or document given or
made available (or not given or made available) to Buyer or any Person on Buyer’s behalf regarding
any of the Companies, (ii) the effect of any of the Transactions on the business of Buyer or on any
of the Companies or the reaction thereto of any Person or (iii) any Forward Looking Statement
(including any underlying assumption). Buyer hereby expressly assumes all risks arising out of,
relating to or resulting from, and Buyer hereby disclaims all reliance upon, the matters in the
preceding sentence (other than as expressly made in Article III and Article III-A)
and Buyer hereby acknowledges and agrees that Buyer is acquiring the Equity Interests and the
Companies and such other assets and interests on an “as is, where is” basis. BUYER REPRESENTS,
WARRANTS AND ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY PROVIDED IN ARTICLE III AND ARTICLE
III-A, NONE OF THE COMPANIES OR ANY SELLER HAVE MADE, AND EACH COMPANY AND EACH SELLER HEREBY
EXPRESSLY DISCLAIM AND NEGATE, AND EACH OF BUYER AND ITS AFFILIATES HEREBY EXPRESSLY WAIVES AND IS
NOT RELYING ON, ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, AT COMMON LAW, BY STATUTE OR
OTHERWISE RELATING TO, AND EACH OF BUYER AND ITS AFFILIATES HEREBY EXPRESSLY WAIVES AND
RELINQUISHES ANY AND ALL RIGHTS, CLAIMS AND CAUSES OF ACTION IN CONNECTION WITH, THE ACCURACY,
COMPLETENESS OR MATERIALITY OF ANY STATEMENTS, INFORMATION, DATA OR OTHER MATERIALS (WRITTEN OR
ORAL) OR DOCUMENTS HERETOFORE FURNISHED OR MADE AVAILABLE TO BUYER AND ITS REPRESENTATIVES AND
AFFILIATES BY OR ON BEHALF OF THE COMPANIES AND THE SELLERS. EXCEPT AS SET FORTH EXPRESSLY IN THIS
AGREEMENT, SELLERS DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY RELATING TO THE EQUITY INTERESTS OR ANY
ASSET (TANGIBLE, INTANGIBLE OR MIXED) OF THE COMPANIES, INCLUDING IMPLIED WARRANTIES OF FITNESS,
NONINFRINGEMENT, MERCHANTABILITY OR SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.




     Section 5.7 Termination.



          (a) Termination Rights. The obligation of the parties to close the Transactions and
this Agreement may be terminated as follows:




               (i) at any time, by mutual agreement of Buyer and the Sellers’ Representative;



               (ii) at any time, by Buyer, if a material default shall be made by any of the Companies or any
of the Sellers in the observance or in the due and timely performance by



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37









 




any of the Companies or any of the Sellers of any agreements and covenants of any of the
Companies and the Sellers herein contained or if there shall have been a material breach by any of
the Sellers or the Companies (individually or in the aggregate) of any of the warranties and
representations of the Sellers or Companies herein contained, in each case in a manner that would
have a Material Adverse Effect, and such default or breach has not been waived by Buyer or has not
been cured to Buyer’s reasonable satisfaction within ten (10) business days after receipt by the
Sellers from Buyer of written notice of its intention to terminate pursuant to this Section
5.7(a)(ii);




               (iii) at any time, by the Sellers’ Representative, if a material default shall be made by
Buyer in the observance or in the due and timely performance by Buyer of any agreements and
covenants of Buyer herein contained or if there shall have been a breach by Buyer of any of the
warranties and representations of Buyer herein contained and such default or breach has not been
waived or has not been cured to the Sellers’ Representative reasonable satisfaction within ten (10)
days after receipt by Buyer from the Sellers of written notice of its intention to terminate
pursuant to this Section 5.7(a)(iii); or



               (iv) by Buyer or the Sellers’ Representative if the Closing shall not have occurred on or
before the Termination Date or such other date as the Buyer and the Sellers’ Representative may
agree upon, except in the case of a termination by Buyer, if a failure or impossibility to effect
the Closing has been proximately caused by the Buyer breaching any representation, warranty,
covenant or agreement contained in this Agreement or any of the other Transaction Documents, or, in
the case of a termination by the Sellers’ Representative, if a failure or impossibility to effect
the Closing has been proximately caused by the Sellers or the Companies breaching any
representation, warranty, covenant or agreement contained in this Agreement or any of the other
Transaction Documents.



          (b) Liability Upon Termination. Subject to the payment of the Walk-A-Way Deposit
pursuant to Section 1.2(b), if the obligation to close the Transactions is terminated
pursuant to any provision of Section 5.7(a) hereof, then this Agreement shall forthwith
become void and there shall not be any liability or obligation with respect to the terminated
provisions of this Agreement on the part of the Sellers or Buyer, except that the Confidentiality
Agreement will survive such termination and except and to the extent that such termination results
from the willful and intentional breach by a party of any of its representations, warranties or
agreements hereunder. The termination of this Agreement shall not relieve any party of its
obligations under this Section 5.7(b).




          (c) Notice of Termination. The parties hereto may exercise their respective rights of
termination under this Section 5.7 only by delivering written notice to that effect to the
other party or parties, and such notice is received on or before the Closing Date.




ARTICLE VI

SURVIVAL AND INDEMNITY




     Section 6.1 Survival of Representations and Warranties. Subject to the limitations
contained in this Article VI, all of the representations, warranties, covenants and
agreements


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contained in this Agreement and the other Transaction Documents shall survive the Closing as
follows:




          (a) All of the representations and warranties made by the Companies in Sections 3.1, 3.2,
3.3, 3.4, and 3.15 of this Agreement shall survive for the applicable statute of
limitations. All of the representations and warranties made by the Sellers in Article III-A
of this Agreement shall survive for the applicable statute of limitations;




          (b) All other representations and warranties made by Sellers or the Companies under this
Agreement and the other Transaction Documents shall survive for a period ending twelve (12) months
following the Closing Date;




          (c) All of the representations and warranties made by Buyer herein shall survive for a period
ending twelve (12) months following the Closing Date; and




          (d) All of the covenants, agreements and other obligations under this Agreement and the other
Transaction Documents shall survive for the applicable statute of limitations.




     It is the express intent of the parties that, if the applicable survival period for an item as
contemplated by this Article VI is shorter than the statute of limitations that would
otherwise have been applicable to such item, then, by contract, the applicable statute of
limitations with respect to such item shall be reduced to the shortened survival period
contemplated hereby. The parties further acknowledge that the time periods set forth in this
Article VI for the assertion of claims under this Agreement are the result of arms’-length
negotiation among the parties and that they intend for the time periods to be enforced as agreed by
the parties.



     Section 6.2 Indemnification by the Sellers. Subject to the limitations of this
Article VI, from and after the Closing Date, each Seller, severally and not jointly, shall
indemnify, save, defend and hold harmless the Buyer from and against any and all costs, lawsuits,
losses, liabilities, deficiencies, claims and expenses, including interest, penalties, attorneys’
fees and all amounts paid in investigation, defense or settlement of any of the foregoing
(collectively referred to herein as “Damages”), incurred in connection with or arising out
of or resulting from or incident to any (a) breach of any covenant of any of the Companies or the
Sellers; (b) breach or inaccuracy of the representations and warranties of the Companies or the
Sellers set forth in this Agreement or (c) any matter (if any) identified by the Sellers’
Representative on Schedule 6.2(c). Notwithstanding the foregoing, for purposes of this
Agreement “Damages” shall include only actual direct damages and shall not include any
consequential, incidental, special, indirect or punitive damages.



     The parties acknowledge and agree that the representations and warranties contained in
Article III-A and the covenants and agreements made by each Seller (except as provided
above) in this Agreement are made individually by each Seller as to itself or himself only, and any
Seller who has breached any such representation, warranty, covenant or agreement as to itself or
himself shall be liable with respect to all Damages as a result of the breach thereof to the extent
such Damages are proximately caused by such breach, subject to the limitations set forth in this
Article VI, and no other Seller shall be liable with respect to such Damages. In no event
will



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Buyer or any other Person be entitled to indemnification for the same Damages from more than one
source. Subject to the other limitations set forth in this Article VI, the parties further
acknowledge and agree that the Sellers’ indemnification obligations hereunder with respect to
breaches of the representations and warranties of the Companies contained in Article III
and the covenants and agreements of the Companies contained herein that are to be performed on or
prior to the Closing shall be the joint and several obligations of each member of the Primary
Seller Group.




     Section 6.3 Indemnification by the Buyer. Subject to the limitations of this
Article VI, from and after the Closing Date, Buyer shall indemnify, save, defend and hold
harmless the Sellers from and against any and all Damages incurred in connection with or arising
out of or resulting from or incident to any (a) breach of any covenant of Buyer or (b) breach or
inaccuracy of the representations and warranties of Buyer set forth in this Agreement.



     Section 6.4 Defense of Claims. If any lawsuit or enforcement action is filed against
any party entitled to the benefit of indemnity hereunder, or any claim to Damages is to be asserted
hereunder, written notice thereof describing such lawsuit, enforcement action or claim in
reasonable detail and indicating the amount (estimated, if necessary) or good faith estimate of the
reasonably foreseeable estimated amount of Damages (which estimate shall in no way limit the amount
of indemnification the indemnified party is entitled to receive hereunder), shall be given to the
indemnifying party as promptly as practicable (and in any event within ten (10) days, after the
service of the citation or summons) and prior to the expiration of the survival periods set forth
in Section 6.1 (“Notice of Action”); provided that the failure of any
indemnified party to give timely notice shall not affect its rights to indemnification hereunder to
the extent that the indemnified party demonstrates that the amount the indemnified party is
entitled to recover exceeds the actual damages to the indemnifying party caused by such failure to
so notify within ten (10) days and provided that such notice is given prior to the expiration of
the survival periods set forth in Section 6.1. The indemnifying party may elect to
compromise or defend any such asserted liability and to assume all obligations contained in this
Section 6.4 (subject to the limitations set forth in this Article VI) to indemnify
the indemnified party by a delivery of notice of such election (“Notice of Election”)
within ten (10) days after delivery of the Notice of Action. Subject to the limitations set forth
in this Article VI, upon delivery of the Notice of Election, the indemnifying party shall
be entitled to take control of the defense and investigation of such lawsuit, action or claim and
to employ and engage attorneys of its own choice to handle and defend the same, at the indemnifying
party’s sole cost, risk and expense, and the indemnified party shall cooperate in all reasonable
respects, at the indemnifying party’s sole cost, risk and expense, with the indemnifying party and
such attorneys in the investigation, trial, and defense of such lawsuit, action or claim and any
appeal arising therefrom; provided, however, that the indemnified party may, at its own cost, risk
and expense, participate in such investigation, trial and defense of such lawsuit, action or claim
and any appeal arising therefrom. If a Notice of Election is delivered to the indemnified party,
the indemnified party shall not pay, settle or compromise such claim without the indemnifying
party’s consent. The indemnifying party may pay, settle or compromise any such claim in its sole
discretion; provided that the indemnifying party may not pay, settle or compromise any such claim
without the consent of the indemnified party (which consent may not be unreasonably withheld or
delayed), if the indemnified party is not given a full and complete release of any and all
liability and if the claim involves remedies against the indemnified party other than the payment
of monetary Damages. If the indemnifying



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party elects not to defend the claim of the indemnified party or does not deliver to the
indemnified party a Notice of Election within ten (10) days after delivery of the Notice of Action,
the indemnified party may, but shall not be obligated to defend, or the indemnified party may
compromise or settle (exercising reasonable business judgment) the claim or other matter on behalf,
for the account, and at the risk, of the indemnifying party but subject to the limitations set
forth in this Article VI.




     Section 6.5 Indemnification Deductible. The parties shall not be entitled to
indemnification under the provisions of this Article VI for any breaches of
representations, warranties, covenants or agreements by any other party for any individual claim
less than $50,000 (the “Minimum Claim Amount”), and until such time as the total of all
individual claims exceeding the Minimum Claim Amount, and are therefore subject to indemnification,
exceed $1,000,000 (the “Deductible”), at which time the indemnified party will be entitled
to indemnification only for the amounts exceeding the Deductible.



     Section 6.6 Limitations on Indemnification. Sellers’ and Buyer’s aggregate liability
for indemnification obligations pursuant to this Agreement shall be as follows:



          (a) For breaches and inaccuracies of representations and warranties made by the Companies
pursuant to Sections 3.1, 3.2, 3.3 and 3.14 and by the Sellers under Article
III-A, the Sellers shall not be obligated to indemnify Buyer for any amounts that, when
aggregated with all other indemnification claims against the Sellers pursuant to this Article
VI, exceed each Seller’s Pro Rata Share;




          (b) For breaches and inaccuracies of all other representations, warranties, covenants and
agreements made by the Sellers in this Agreement and the other Transaction Documents, the Sellers,
in the aggregate, shall not be obligated to indemnify Buyer for any amounts that, when aggregated
with all other indemnification claims against the Sellers pursuant to this Article VI,
exceed $13,500,000; and




          (c) For breaches and inaccuracies of all representations, warranties, covenants and agreements
made by the Buyer in this Agreement and the other Transaction Documents, Buyer shall not be
obligated to indemnify Sellers for any amounts that, when aggregated with all other indemnification
claims against the Buyer pursuant to this Article VI, exceed $13,500,000.




          (d) No party may bring any claim for indemnification under this Article VI to the
extent notice of such claim is sent after the expiration of the survival periods set forth in
Section 6.1. Any Damages for which a party would otherwise be obligated to provide
indemnification hereunder will be offset to the extent such Damages are reflected in the
adjustments to the Purchase Price under Article II or to the extent such party has already
recovered Damages with respect to such matter pursuant to another provision of this Agreement.
Until the Escrow Payment has been depleted, the Escrow Payment will be the sole source of funds
from which to satisfy all indemnification claims hereunder and no claim may be made against any
individual Seller until such time. In no event will any Seller’s aggregate liability for Damages
under this Article VI or otherwise exceed, in the aggregate, such Seller’s Pro Rata Share.



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     Section 6.7 Other Matters Pertaining to Indemnification.



          (a) Each Person entitled to indemnification hereunder shall take all reasonable steps to
mitigate all Damages after becoming aware of any event which could reasonably be expected to give
rise to any Damages that are indemnifiable or recoverable hereunder or in connection herewith,
including refraining from encouraging or soliciting any Third Party Claim. The amount of any
Damages for which indemnification is provided under this Article VI shall be net of (i) any
amounts actually recovered by the indemnified party under insurance policies in effect and
applicable to such Damages (it being agreed that the indemnified party shall use its commercially
reasonable efforts to obtain recovery under such insurance policies), and (ii) any amounts received
by the indemnified party from any Third Party in respect of such Damages and (iii) any Tax Benefit
received by the indemnified party as a result of any Damages. Buyer shall, and shall cause the
Companies to, seek full recovery under all insurance policies and other collateral sources covering
any Damages to the same extent as they would if such Damages were not subject to indemnification
hereunder, and Buyer shall not, and shall cause the Companies not to, terminate or cancel any
insurance policies in effect for periods prior to the Closing. If an insurance or other recovery
is made by Buyer or any of the Companies or any of their respective Affiliates with respect to any
Damages for which any such Person has been indemnified hereunder, then a refund equal to the
aggregate amount of the recovery (net of all direct collection expenses) shall be made promptly to
the Sellers’ Representative (on behalf of each Seller in accordance with the instructions of the
Sellers’ Representative). If an indemnifying party makes an indemnification payment to a Person
hereunder with respect to any Damages then such indemnifying party will be subrogated, to the
extent of such payment, to all related rights and remedies of such Person under any insurance
policy or otherwise against or with respect to such Damages, except with respect to amounts not yet
recovered by such Person (or any other such Person entitled to indemnification hereunder) under any
such insurance policy or otherwise that already have been netted against such Damages for purposes
of determining the indemnifiable amount of such Damages. Promptly following such indemnifying
party’s request, such Person will take all reasonably necessary, proper or desirable actions
(including the execution and delivery of any document reasonably requested) to accomplish the
foregoing.




          (b) Except for Section 5.6(h)(v) and Section 7.14, the remedies that cannot be
waived as a matter of Law and injunctive and provisional relief (including specific performance),
if the Closing occurs, indemnification pursuant to the provisions of this Article VI shall
be the sole and exclusive remedy of the parties with respect to any matters arising under,
resulting from or relating to this Agreement, any closing document executed and delivered pursuant
to the provisions hereof and the Transactions, and the only legal action that may be asserted by
any party with respect to any matter that is the subject of this Article VI shall be a
contract action to enforce, or to recover damages for the breach of, this Article VI. In
furtherance of the foregoing, to the maximum extent permitted by applicable Law, each party hereto
hereby waives and (if necessary to give effect to this Section 6.7(b) will cause each
indemnified Person, as applicable, to waive), all claims, causes of action and other remedies of
such Person against any party hereto as a matter of contract, equity, tort, strict liability, under
or based upon any applicable Law or otherwise (including for rescission), except to the extent
expressly stated in this Article VI. Except as provided by this Article VI and in
Sections 5.6(h)(v) and 7.14, no claim, action or remedy shall be brought or
maintained after the Closing by Buyer against the Sellers, and no recourse shall be brought or
granted against the Sellers, by virtue of or based upon any alleged




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misstatement or omission respecting an inaccuracy in, or breach or nonperformance of, any of
the representations, warranties, covenants or agreements of the Companies or Sellers set forth in
this Agreement. In addition, no claim shall be brought or maintained by Buyer or any other Buyer
indemnified party or any of their respective successors or permitted assigns against any officer,
member, manager, employee (present or former), partner or Affiliate of any party hereto which is
not otherwise expressly identified as a party hereto, and no recourse shall be brought or granted
against any of them, by virtue of or based upon any alleged misrepresentation or inaccuracy in or
breach or nonperformance of any of the representations, warranties, covenants or agreements of any
party hereto set forth or contained in this Agreement or any exhibit or schedule hereto or any
certificate or other document delivered hereunder.




          (c) The parties hereto agree that the sole and exclusive remedy of the Companies and the
Sellers with respect to the failure of the Buyer to consummate the Transactions are as set forth in
Section 2.1(b). Each party hereto acknowledges and agrees that the other rights and obligations of
each party set forth in this Agreement, including Buyer’s rights to consummate the Transactions,
are unique and that, if this Agreement is not performed in accordance with its terms or is
otherwise breached, a non-breaching party may be damaged irreparably and have no adequate remedy at
law. Accordingly, and except as set forth in Section 2.1(b), the parties hereto agree that any
such non-breaching party shall have the right, in addition to any other rights and remedies
existing in its favor at law or in equity, to enforce such non-breaching party’s rights and the
breaching party’s obligations under the terms of this Agreement by bringing an action or actions
for specific performance (including the right of Buyer for specific performance of any and all of
the Transactions), injunctive and/or other equitable relief (without posting of bond or other
security). If any party brings any action to enforce specifically the performance of the terms and
provisions hereof by any other party prior to the Closing, the Termination Date shall automatically
be extended by (i) the amount of time during which such action is pending, plus 20 business days or
(ii) such other time period established by the court presiding over such action.




          (d) The indemnities herein are intended solely for the benefit of the Persons expressly
identified in this Article VI (and their permitted successors and assigns) and are in no
way intended to, nor shall they, constitute an agreement for the benefit of, or be enforceable by,
any other Person.




          (e) Notwithstanding any other term herein, no Person will have any right to indemnification
from the Sellers hereunder (i) regarding any breach of any of the representations, warranties,
covenants and agreements set forth herein or any of the other Transaction Documents if Buyer had
actual knowledge of such breach (or the facts and circumstances giving rise to such breach) on or
prior to the date hereof, or (ii) for any Damages or alleged Damages by any Person to the extent
such Damages or alleged Damages resulted from a breach for which Buyer could have terminated this
Agreement. Buyer shall have no indemnification obligations with respect to Damages by a Seller to
the extent that prior to the date hereof any Seller had actual knowledge of the material facts
required to constitute such claim; and no party shall have any indemnification obligation hereunder
to the extent that a claim for indemnification is related to a representation, warranty, covenant
or agreement that has expired pursuant to Article VI hereof and is brought after such
expiration.




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          (f) Any indemnification payments made pursuant to this Agreement shall be treated by the
parties for all Tax purposes as an adjustment to the Purchase Price, unless otherwise required by a
“determination” (within the meaning of Section 1313(a) of the Code or any similar provision of
other applicable Law).




     Section 6.8 Release of Escrow Payment. On the date that is twelve (12) months
following the Closing Date, or if such date is not a business day, the first business day following
such date, the Escrow Agent shall disburse to the Sellers to the accounts designated by the
Sellers’ Representative based on each Seller’s share (based on the Final Pro Rata Share, as adjusted to reflect any indemnification obligations of any Seller) of the remaining Escrow Payment, an amount
equal to the remaining Escrow Payment (plus any interest) as of such date less (a) the amount, if
any, of the Escrow Payment which the Escrow Agent has been instructed to disburse in accordance
with the Escrow Agreement but not actually disbursed as of such date and (b) a reasonable reserve
amount in the amount of any claims for Damages submitted by Buyer prior to such date in accordance
with this Article VI that remain unresolved as of such date.



ARTICLE VII

MISCELLANEOUS




     Section 7.1 Notices. All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile or similar writing) and shall be given,


if to Buyer, to:




Basic Energy Services, L.P.

500 W. Illinois, Suite 100

Midland, Texas 79701

Attention: Mr. Kenneth V. Huseman, President and CEO

Facsimile No.: 432-620-5501




with a copy, which shall not constitute notice, to:




Lynch, Chappell & Alsup, P.C.

300 N. Marienfeld, Suite 100

Midland, Texas 79701

Attention: Mr. James M. Alsup

Facsimile No.: 432-683-2587




if to the Companies, to:




The Maverick Companies, LLC

88 Inverness Circle East G-101

Englewood, CO 80112

Attention: Mr. Kristian E. Grimland

Facsimile No: 303-757-7610




if to the Sellers or the Sellers’ Representative, to:




Mr. Kristian E. Grimland





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88 Inverness Circle East G-101

Englewood, CO 80112

Facsimile No: 303-757-7610




with a copy, which shall not constitute notice, to:




Perkins Coie LLP

1900 Sixteenth Street, Suite 1400

Denver, Colorado 80202

Attention: Mr. Nathaniel G. Ford

Facsimile No.: 303-291-2400




     or such other address or facsimile number as a party may hereafter specify for the purpose by
notice to the other parties hereto. Each notice, request or other communication shall be effective
only if given by facsimile, when the facsimile is transmitted to the facsimile number specified in
this Section 7.1 and the appropriate facsimile confirmation is received or if given by
overnight courier or personal delivery when delivered at the address specified in this Section
7.1.



     Section 7.2 Fees and Expenses. Except as otherwise specifically provided herein, all
fees and expenses incurred in connection herewith and the Transactions shall be paid by the party
incurring such fees and expenses, whether or not the Transactions are consummated.



     Section 7.3 Amendments; No Waivers. Any provision of this Agreement may be amended or
waived if, and only if, the amendment or waiver is in writing and signed by the Sellers’
Representative and Buyer. No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any other right, power or
privilege.



     Section 7.4 Further Assurances. Each of the parties hereto will act in good faith and
use commercially reasonable efforts to take, or cause to be taken, all actions to file, or cause to
be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable
to consummate and make effective the Transactions as promptly as practicable, including obtaining
all necessary consents, waivers, approvals, authorizations, Permits or orders from Governmental
Entities or other Third Parties. Each of the parties hereto shall also refrain from taking,
directly or indirectly, any action that would impair such party’s ability to consummate the
Transactions.



     Section 7.5 Successors and Assigns. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors and assigns.
No party may assign, delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the Buyer and the Sellers’ Representative. Any purported
assignment in violation hereof shall be null and void.



     Section 7.6 Counterparts; Effectiveness. This Agreement may be executed in one or
more counterparts (including by means of telecopied signature pages or signature pages delivery by
electronic transmission in portable document format (pdf)), all of which taken together shall
constitute one and the same instrument. This Agreement to the extent signed and delivered by means
of a facsimile machine or electronic transmission in portable document format (pdf), shall



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be treated in all manner and respects as an original instrument and shall be considered to
have the same binding legal effect as if it were the original signed version thereof delivered in
person. At the request of any party hereto or to any such instrument, each other party shall
re-execute original forms thereof and deliver them to all of the parties. No party hereto or to
any such instrument shall raise the use of a facsimile machine or electronic transmission in
portable document format (pdf) to deliver a signature or the fact that any signature or instrument
was transmitted or communicated through the use of a facsimile machine or electronic transmission
in portable document format (pdf) as a defense to the formation of a contract and each such party
forever waives any such defense, except to the extent such defense relate to lack of authenticity.




     Section 7.7 Third Party Beneficiaries. Except as set forth in Section 5.6(m),
the terms and provisions of this Agreement are intended solely for the benefit of the parties
hereto and their respective successors and permitted assigns, and no provision of this Agreement is
intended to confer upon any Person other than the parties hereto any rights or remedies hereunder.



     Section 7.8 Governing Law. This Agreement shall be construed in accordance with and
governed by the internal Laws of the State of Delaware applicable to contracts executed and fully
performed within the State of Delaware, notwithstanding any conflict of law provisions to the
contrary.



     Section 7.9 Jurisdiction. Except as otherwise expressly provided in this Agreement,
the parties hereto agree that any suit, action or proceeding seeking to enforce any provision of,
or based on any matter arising out of or in connection with, this Agreement or the Transactions
shall be brought in any state or federal court in the State of Delaware, and each of the parties
hereby consents to the exclusive jurisdiction of those courts (and of the appropriate appellate
courts therefrom) in any suit, action or proceeding and irrevocably waives, to the fullest extent
permitted by Law, any objection that it may now or hereafter have to the laying of the venue of any
suit, action or proceeding in any of those courts or that any suit, action or proceeding that is
brought in any of those courts has been brought in an inconvenient forum. Process in any suit,
action or proceeding may be served on any party anywhere in the world, whether within or without
the jurisdiction of any of the named courts. Without limiting the foregoing, each party agrees
that service of process on it by notice as provided in Section 7.1 shall be deemed
effective service of process.



     Section 7.10 Entire Agreement. This Agreement, together with the Confidentiality
Agreement and the Schedules, Exhibits and Annexes hereto, constitute the entire agreement between
the parties with respect to the subject matter hereof, and supersede all prior agreements and
understandings, both oral and written, between the parties with respect to the subject matter
hereof.



     Section 7.11 Authorship. The parties agree that the terms and language of this
Agreement were the result of negotiations between the parties and, as a result, there shall be no
presumption that any ambiguities in this Agreement shall be resolved against any party. Any
controversy over construction of this Agreement shall be decided without regard to events of
authorship or negotiation.




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     Section 7.12 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other
terms and provisions of this Agreement shall nevertheless remain in full force and effect so long
as the economic or legal substance of the Transactions is not affected in any manner adverse to any
party. Upon a determination that any term or other provision is invalid, illegal or incapable of
being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to
affect the original intent of the parties as closely as possible in an acceptable manner to the end
that the Transactions are fulfilled to the extent possible.



     Section 7.13 Headings; Construction. The section and article headings contained in
this Agreement are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. In this Agreement (a) the word “including” shall mean “including
without limitation,” whether or not expressed, (b) any reference herein to an annex, article,
clause, section, or schedule refers to an annex, article, clause, section, or schedule to this
Agreement, unless otherwise stated, and (c) when calculating the period of time within or following
which any act is to be done or steps taken, the date that is the reference day in calculating such
period shall be excluded and if the last day of such period is not a Business Day, then the period
shall end on the next day that is a Business Day. Words in the singular shall be held to include
plural and vice versa. Words of one gender shall be held to include the other genders as the
context requires and words denoting natural persons shall include corporations, limited liability
companies and other entities and vice versa, as applicable.



     Section 7.14 Sellers’ Representative. The Sellers hereby designate Kristian E.
Grimland to act as Sellers’ Representative hereunder and serve as each Seller’s attorney-in-fact
and agent in connection with the consummation of the Transactions and the performance of all
obligations hereunder. This power is irrevocable and coupled with an interest and shall not be
affected by the death, incapacity, illness, dissolution or other inability to act of any Seller.
Sellers’ Representative may execute any and all instruments or other documents on behalf of
Sellers, and do any and all other acts or things on behalf of Sellers, which Sellers’
Representative may deem necessary or advisable, or which may be required pursuant to this Agreement
or otherwise. Without limiting the generality of the foregoing, Sellers’ Representative shall have
the full and exclusive authority to (a) agree with Buyer with respect to any matter or thing
required or deemed necessary by Sellers’ Representative in connection with the provisions of this
Agreement calling for the agreement of any or all Sellers, give and receive notices on behalf of
any or all Sellers, and act on behalf of Sellers in connection with any matter as to which any or
all Sellers are or may be obligated under this Agreement or any document executed in conjunction
herewith, all in the absolute discretion of Sellers’ Representative, (b) in general, do all things
and perform all acts, including without limitation executing and delivering all agreements,
certificates, receipts, consents, elections, instructions, and other instruments or documents
contemplated by, or deemed by Sellers’ Representative to be necessary or advisable in connection
with, this Agreement on behalf of the Sellers and the Companies, (c) take all actions necessary or
desirable in connection with the defense or settlement of any indemnification claims pursuant to
Article VI and performance of obligations under Article II, (d) take all actions
and make all decisions regarding the allocation and/or pro-ration of such items as proceeds,
expense items, taxes, escrow amounts, indemnification expenses or liabilities and other similar
types of items, and (e) take all actions necessary with respect to the payment of fees owed to
accountants and attorneys in connection with the Transactions. Sellers shall



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cooperate with Sellers’ Representative and any accountants, attorneys or other agents whom it
may retain to assist in carrying out its duties hereunder. All decisions by Sellers’
Representative shall be binding upon all Sellers, and no Seller shall have the right to object,
dissent, protest or otherwise contest the same. Sellers’ Representative may communicate with any
Seller or any other Person concerning its responsibilities hereunder, but it is not required to do
so. Sellers’ Representative has a duty to serve in good faith the interests of Sellers in the
performance of its designated role under this Agreement, but Sellers’ Representative shall have no
financial liability, fiduciary or similar duties, or other responsibility whatsoever to any Person
relating to its service hereunder (including any action taken or omitted to be taken), except that
it shall be liable for harm which it directly causes by an act of willful misconduct. Sellers
shall indemnify, defend and hold harmless Sellers’ Representative against any loss, expense
(including reasonable attorney’s fees) or other liability arising out of its service as Sellers’
Representative under this Agreement, other than for harm directly caused by an act of willful
misconduct by Sellers’ Representative. Seller’s Representative may retain in his sole discretion,
up to $500,000 from the Purchase Price as a fund for the payment of expenses payable by Sellers
pursuant to the provisions hereof, which shall be deducted from each Seller’s Pro Rata Share.
Sellers’ Representative may resign at any time by notifying Buyer and Sellers in writing and the
Sellers shall be entitled to appoint a successor Sellers’ Representative. By written notice to the
Buyer, the Sellers holding more than 50% of the proceeds to be distributed pursuant to this
Agreement may appoint a different Sellers’ Representative from time to time.




     Section 7.15 Disclosure Schedules. Certain information is contained in the Schedules
solely for informational purposes, may not be required to be disclosed pursuant hereto and will not
imply that such information or any other information is required to be disclosed. Inclusion of
such information will not establish any level of materiality or similar threshold or be an
admission that any of such information is material to the business, assets, liabilities, financial
position, operations or results of operations of any Person or otherwise material regarding such
Person. Each matter disclosed in any Schedule, representation or warranty in a manner that makes
its relevance to one or more other Schedules, representations or warranties readily apparent will
be deemed to have been appropriately included in each such other Schedule, representation or
warranty (notwithstanding the presence or absence of any reference in or to any Schedule,
representation or warranty).



     Section 7.16 Waiver of Jury Trial. The Buyer, the Sellers’ Representative and each
Seller hereby waive, to the extent permitted by applicable Law, trial by jury in any litigation in
any court with respect to, in connection with or arising out of this Agreement or the validity,
protection, interpretation or enforcement thereof. The Buyer, the Sellers’ Representative and each
Seller agree that this Section is a specific and material aspect of this Agreement and would not
enter into this Agreement if this Section were not part of this Agreement.



     Section 7.17 Legal Representation. Each of the parties to this Agreement hereby
agrees, on its own behalf and on behalf of its directors, members, partners, officers, employees
and Affiliates, that Perkins Coie LLP has served as counsel to the Companies, in connection with
the negotiation, preparation, execution and delivery of the Transaction Documents and the
Transactions, and that, following consummation of the transactions contemplated hereby or thereby,
Perkins Coie LLP may serve as counsel to the Sellers’ Representative in connection with any
litigation, claim or obligation arising out of or relating to the Transaction Documents or



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the Transactions or any other matter notwithstanding such representation (or any continued
representation) of the Companies, and each of the parties hereto hereby consents thereto and waives
any conflict of interest arising therefrom, and each of such parties will cause any Affiliate
thereof to consent to waive any conflict of interest arising from such representation.




* * * * *




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     IN WITNESS WHEREOF, each party has executed this Agreement effective as of the date first
above written.



	 	 	 	 	 
	 	COMPANIES:



MAVERICK STIMULATION COMPANY, LLC

 	 
	 	By:  	/s/ Kristian E. Grimland
 	 
	 	 	Name:  	Kristian E. Grimland 	 
	 	 	Title:  	General Manager 	 
	 
	 	MAVERICK COIL TUBING SERVICES, LLC

 	 
	 	By:  	/s/ Kristian E. Grimland
 	 
	 	 	Name:  	Kristian E. Grimland 	 
	 	 	Title:  	General Manager 	 
	 
	 	MCM HOLDINGS, LLC

 	 
	 	By:  	/s/ Kristian E. Grimland
 	 
	 	 	Name:  	Kristian E. Grimland 	 
	 	 	Title:  	General Manager 	 
	 
	 	MAVERICK THRU-TUBING SERVICES, LLC

 	 
	 	By:  	/s/ Kristian E. Grimland
 	 
	 	 	Name:  	Kristian E. Grimland 	 
	 	 	Title:  	General Manager 	 
	 
	 	THE MAVERICK COMPANIES, LLC

 	 
	 	By:  	/s/ Kristian E. Grimland
 	 
	 	 	Name:  	Kristian E. Grimland 	 
	 	 	Title:  	General Manager 	 
	 



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	 	MAVERICK SOLUTIONS, LLC

 	 
	 	By:  	/s/ Kristian E. Grimland
 	 
	 	 	Name:  	Kristian E. Grimland 	 
	 	 	Title:  	General Manager 	 
	 
	 	MSM LEASING, LLC

 	 
	 	By:  	/s/ Kristian E. Grimland
 	 
	 	 	Name:  	Kristian E. Grimland 	 
	 	 	Title:  	General Manager 	 
	 
	 	SELLERS’ REPRESENTATIVE:

 	 
	 	By:  	     /s/ Kristian E. Grimland
 	 
	 	 	Kristian E. Grimland 	 
	 	 	 	 
	 
	 	PRIMARY SELLER GROUP:

 	 
	 	/s/ Timothy L. Anderson
 	 
	 	Timothy L. Anderson 	 
	 	 	 
	 	                                              /s/   J.D. Gregory
 	 
	 	J.D. Gregory 	 
	 	 	 
	 	                                               /s/ Jerry Don Gregory
 	 
	 	Jerry Don Gregory 	 
	 	 	 
	 	                                               /s/ Kristian E. Grimland
 	 
	 	Kristian E. Grimland 	 
	 	 	 
	 	                                               /s/ Lyle F. Schadegg
 	 
	 	Lyle F. Schadegg 	 
	 	 	 
	 	                                               /s/ Larry J. Young
 	 
	 	Larry J. Young 	 



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	 	OTHER SELLERS:

 	 
	 	/s/ Robert V. Bruce
 	 
	 	Robert V. Bruce 	 
	 	 	 
	 	                                               /s/ Michael R. Cole
 	 
	 	Michael R. Cole 	 
	 	 	 
	 	                                               /s/ Jacob R. Cuckow
 	 
	 	Jacob R. Cuckow 	 
	 	 	 
	 	                                               /s/ Stanley E. Dayley
 	 
	 	Stanley E. Dayley 	 
	 	 	 
	 	                                               /s/ Matthew J. Hoffman
 	 
	 	Matthew J. Hoffman 	 
	 	 	 
	 	                                               /s/ Wayne E. Larsen
 	 
	 	Wayne E. Larsen 	 
	 	 	 
	 	                                               /s/ Shane A. Madden
 	 
	 	Shane A. Madden 	 
	 	 	 
	 	                                               /s/ Alan G. Moehr
 	 
	 	Alan G. Moehr 	 
	 	 	 
	 	                                               /s/ Joseph W. Sanders
 	 
	 	Joseph W. Sanders 	 
	 	 	 
	 	                                               /s/ Michael Cuckow
 	 
	 	Michael Cuckow 	 
	 	 	 
	 	                                               /s/ John T. Pursley
 	 
	 	John T. Pursley 	 
	 	 	 



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	 	BUYER:



BASIC ENERGY SERVICES, L.P.

By: Basic Energy Services GP, LLC,

its General Partner

 	 
	 	By:  	/s/ Kenneth V. Huseman
 	 
	 	 	Name:  	Kenneth V. Huseman 	 
	 	 	Title:  	President 	 
	 



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Annex I

Glossary





     “Arbitrating Accountant” has the meaning specified in Section 2.1(g).



     “Affiliate” means (i) Sellers’ Immediate Family Members; (ii) any Seller or any
Seller’s Immediate Family Members; or (iii) any Person, any other Person, directly or indirectly,
controlling, controlled by, or under common control with, such Person, or any of their Immediate
Family Members. For purposes of this definition, the term “control” (including the correlative
terms “controlling”, “controlled by” and “under common control with”) means the possession,
directly or indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by Contract or otherwise.



     “Accounts Payable” means any and all accounts payable or amounts owing and payable by
any of the Companies, all as of the Closing Date.



     “Accounts Receivable” means any and all accounts receivable and notes receivable of or
amounts owing or payable to any of the Companies, net of the reserves calculated consistent with
the Companies’ past practices and in accordance with GAAP, consistently applied, all as of the
Closing Date.



     “Agreement” has the meaning specified in the preamble to this Agreement.



     “Balance Sheet Date” means December 31, 2010.



     “Business Day” means any day, other than a Saturday, Sunday or one on which banks are
authorized by Law to be closed in Denver, Colorado.



     “Buyer” has the meaning specified in the preamble to this Agreement.



     “Cash” means, with respect to the Companies, an amount equal to all cash equivalents
held by the Companies, in each case, on a consolidated basis at the close of business on the day
immediately preceding the Closing Date (as such amount would be reported on a consolidated balance
sheet of the Companies as of such date that was prepared in a manner consistent with the
preparation of the Financial Statements). For purposes of this definition, “cash equivalents”
means an amount equal to all cash on hand in the Companies bank, lock box and other accounts
(including cash resulting from the clearance of checks deposited with the Companies prior to the
Closing Date, whether or not such clearance occurs before, on or after the Closing Date) net of all
“cut” but un-cashed checks outstanding as of the close of business on the business day immediately
preceding the Closing Date, plus the amount of all marketable securities owned by the Companies,
plus the amount of all deposits held by Third Parties for the benefit of the Companies.



     “Closing” has the meaning specified in Section 2.1.



     “Closing Date” has the meaning specified in Section 5.1.



     “Closing Date Statement” has the meaning specified in Section 2.1(d).



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     “Code” means the United States Internal Revenue Code of 1986, as amended, together
with the rules and regulations promulgated thereunder.



     “Companies” means Maverick Stimulation Company, LLC, Maverick Coil Tubing Services,
LLC, Maverick Thru-Tubing Services, LLC, MCM Holdings, LLC, The Maverick Companies, LLC, Maverick
Solutions, LLC and MSM Leasing, LLC, collectively.



     “Companies’ Articles of Organization” has the meaning specified in Section
3.2.



     “Companies Balance Sheet” means the Companies’ balance sheet for the fiscal year ended
December 31, 2009.



     “Companies’ Employee Plans” has the meaning assigned in Section 3.9(a).



     “Companies’ Operating Agreements” has the meaning specified in Section 3.2.



     “Confidentiality Agreement” has the meaning specified in Section 5.6(a)(2).



     “Consulting Agreement Parties” means Kristian E. Grimland and any other Person
mutually agreed upon by the Sellers’ Representative and the Buyer and listed on Schedule
5.2(c).



     “Consulting Agreement” has the meaning specified in Section 5.2(c).



     “Contract” means any written or oral contract, agreement, lease, note, loan, bond,
mortgage, security agreement, indenture, guaranty, license, franchise, permit, concession, option,
or other obligation or agreement.



     “Current Assets” means the consolidated assets of the Companies that are treated as
current assets under GAAP including Cash, the Accounts Receivable, inventory, and lease deposits,
licenses and permits, prepaid rent and other prepaid expenses to third party vendors for goods or
services reasonably expected to be delivered or provided within twelve months and such amount as is
required to reimburse the Companies for the capital expenditures set forth on Schedule I
and such other capital expenditures made by the Companies between the date of this Agreement and
the Closing Date, in each case as specifically identified on the Working Capital Schedule.



     “Current Liabilities” means the consolidated liabilities of the Companies that are
treated as current liabilities under GAAP (exclusive of Indebtedness to the extent included in the
calculation of the Net Distributable Proceeds, whether or not categorized as current liabilities
under GAAP) plus the deferred payment liabilities as set forth on Schedule II and all as
determined in accordance with the Working Capital Schedule.



     “Damages” has the meaning specified in Section 6.2.



     “Deductible” has the meaning specified in Section 6.5.



     “Default” has the meaning specified in Section 3.17(c).



     “Determination Date” has the meaning specified in Section 2.1(d).



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     “Dispute Notice” has the meaning specified in Section 2.1(d).



     “Documents and Other Materials” has the meaning specified in Section 5.6(e).



     “Effective Date” has the meaning specified in the preamble to this Agreement.



     “Employment Agreement Parties” means Timothy Anderson, Lyle F. Schadegg, Larry J.
Young and John Sokol and any other Person mutually agreed upon by the Sellers’ Representative and
the Buyer and listed on Schedule 5.2(b).



     “Employment Agreements” has the meaning specified in Section 5.2(b).



     “Environmental Laws” means any Law (excluding the common law) currently in effect and
as may be amended or supplemented, and any judicial or administrative interpretation thereof,
relating to Hazardous Substances or pollution or the regulation and protection of human health,
safety, the environment or natural resources, including, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq.; the Emergency Planning and
Community Right-to-Know Act, 42 U.S.C. § 11001 et seq.; the Resource Conservation and Recovery Act,
42 U.S.C. § 6901 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; the
Clean Air Act, 42 U.S.C. § 7401 et seq.; the Federal Insecticide, Fungicide and Rodenticide Act, 7
U.S.C. § 136 et seq.; the Safe Drinking Water Act, 42 U.S.C. § 300f et seq.; the Toxic Substance
Control Act, 15 U.S.C. § 2601 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. § 5101 et seq.; the Atomic Energy Act, 42 U.S.C.
§ 2011 et seq.; the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq.; and the
Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.; and each of their state and local
counterparts or equivalents.



     “Environmental Liabilities” means all liabilities, obligations, responsibilities,
response, remedial and removal costs, investigation and feasibility study costs, capital costs,
operation and maintenance costs, losses, damages, punitive damages, property damages, natural
resource damages, consequential damages, treble damages, costs and expenses (including all
reasonable fees, disbursements and expenses of counsel, experts and consultants), fines, penalties,
sanctions and interest incurred as a result of or related to any claim, suit, action,
investigation, proceeding or demand by any Person, whether based in contract, tort, implied or
express warranty, strict liability, criminal or civil statute or common law, including any arising
under or related to any Environmental Laws, Environmental Permits, or in connection with any
Release or threatened Release or presence of a Hazardous Substance whether on, at, in, under, from
or about or in the vicinity of any real or personal property.



     “Environmental Permits” means all Permits required by any Governmental Entity under
any Environmental Law.



     “Equity Interest” means with respect to any Person:



          (a) any and all shares, interests, participations, rights in, or other equivalents (however
designated and whether voting or non-voting) of such Person’s capital stock or other equity
interests (including, without limitation, partnership or membership interests in a partnership or
limited liability company or any other interest or participation that confers on




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57









 







a Person the right to receive a share of the profits and losses, or distributions of assets, of the
issuing Person);




          (b) securities of such Person convertible into or exchangeable for any such shares, interests,
participations, rights in, or other equivalents described in clause (a) above; and




          (c) options, warrants or other rights to acquire from such Person, or obligations of such
Person to issue, any shares, interests, participations, rights in, or other equivalents described
in clause (a) above or securities described in clause (b) above, or requiring payments based on the
value of any such shares, interests, participations, rights in, or other equivalents described in
clause (a) above.




     “ERISA” has the meaning specified in Section 3.10(a).



     “ERISA Affiliate” has the meaning specified in Section 3.10(c).



     “Escrow Agent” has the meaning specified in Section 2.1(b).



     “Escrow Agreement” has the meaning specified in Section 2.2(b).



     “Estimated Closing Date Balance Sheets” has the meaning specified in Section
2.1(c).



     “Estimated Net Working Capital” has the meaning specified in Section 2.1(c).



     “Estimated Statement” has the meaning specified in Section 2.1(c).



     “Escrow Payment” shall be Ten Million Dollars ($10,000,000).



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.



     “Financial Statements” has the meaning specified in Section 3.5(a).



     “Forward-Looking Statements” has the meaning specified in Section 4.6.



     “GAAP” means United States generally accepted accounting principles, applied on a
consistent basis.



     “Governmental Entity” means any supranational, federal, state, local or foreign
government, court, administrative agency or commission or other governmental or regulatory
authority or instrumentality.



     “Hazardous Substances” means any material, substance or waste that is classified,
regulated or otherwise characterized under any Environmental Law as hazardous, toxic, explosive,
radioactive, a contaminant or a pollutant or by other words of similar meaning or regulatory
effect, including any petroleum or petroleum-derived substance or waste, asbestos, polychlorinated
biphenyls, and naturally-occurring radioactive material.



     “Holdback Amount” shall be Five Hundred Thousand Dollars ($500,000).



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     “Holdback Period” has the meaning specified in Section 2.2(b).



     “HSR Act” has the meaning specified in Section 3.4(b).



     “Immediate Family Members” means any son, daughter, step-son, step-daughter, spouse,
parent, step-parent, or parent or step-parent of spouse of such Person.



     “Indebtedness” means any obligation or other liability of the Company under or for any
of the following (excluding any trade payable incurred in the Ordinary Course): (a) indebtedness
for borrowed money (including if guaranteed or for which a Person is otherwise liable or
responsible, including an obligation to assume indebtedness); (b) obligation evidenced by a note,
bond, debenture or similar instrument; (c) surety bond; (d) swap or hedging Contract; (e) capital
lease; (f) banker acceptance; (g) purchase money mortgage, indenture, deed of trust or other
purchase money lien or conditional sale or other title retention agreement; (h) indebtedness
secured by any mortgage, indenture or deed of trust upon any asset; or (i) interest, fee or other
expense regarding any of the foregoing.



     “Insurance Policies” has the meaning specified in Section 3.22.



     “Intellectual Property” means (a) all inventions (whether patentable or unpatentable
and whether or not reduced to practice) and all improvements thereto, (b) all patents, patent
applications, and patent disclosures, together with all provisionals, reissuances, continuations,
continuations-in-part, divisions, revisions, extensions, and reexaminations thereof (collectively,
“Patents”), (c) all trademarks, service marks, trade dress, logos, brand names, trade
names, domain names and corporate names, together with all translations, adaptations, derivations,
and combinations thereof and including all goodwill associated therewith, and all applications,
registrations, and renewals in connection therewith (collectively, “Marks”), (d) all
copyrightable works, all copyrights, any and all website content, and all applications,
registrations, and renewals in connection therewith (collectively, “Copyrights”), (e) all
mask works and all applications, registrations, and renewals in connection therewith, (f) all trade
secrets and confidential business information (including research and development, know-how,
formulas, compositions, manufacturing and production processes and techniques, technical data,
designs, drawings, specifications, research records, records of inventions, test information,
customer and supplier lists, pricing and cost information, and business and marketing plans and
proposals) (collectively, “Trade Secrets”), (g) all source code and object code versions of
computer software (including data and related documentation), (h) all other proprietary rights, and
(i) all copies and tangible embodiments thereof (in whatever form or medium), any rights in or
licenses of any of the foregoing, and any claims or causes of actions (pending, filed) arising out
of or related to any infringement or misappropriation of any of the foregoing.



     “Knowledge” means the actual knowledge of Kristian E. Grimland, Larry Young, Lyle
Schadegg, Robert V. Bruce, Andrew Iverson, and Timothy L. Anderson.



     “Law” means any supranational, federal, state, local, or foreign law, common law,
rule, regulation, judgment, code, ruling, statute, order, decree, injunction, ordinance or other
legal requirement, including any arbitral decision or award.



     “Leases” has the meaning specified in Section 3.18.



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     “Lien” means any mortgage, claim, lien, limitation, condition, equitable interest,
pledge, charge, security interest, option, easement, encroachment, right of first refusal or other
right to purchase, adverse claim or restriction or reservation of any kind, including any
restriction on transfer or other assignment, as security or otherwise, of or relating to use, quiet
enjoyment, voting, transfer, receipt of income or exercise of any other attribute of ownership or
any other encumbrance of any kind whatsoever; provided, however, that the term “Lien” shall
not include the Permitted Liens.



     “Major Customers” has the meaning specified in Section 3.19.



     “Major Suppliers” has the meaning specified in Section 3.19.



     “March 31 Balance Sheet” has the meaning specified in Section 3.5.



     “Material Adverse Effect” means any change, circumstance, effect, event, occurrence,
state of facts or development that is, or would reasonably be expected to be, materially adverse to
the business, assets, condition (financial or otherwise) or results of operations of the Companies,
taken as a whole; provided, however, that none of the following shall be deemed to constitute, and
none of the following shall be taken into account in determining whether there has been, a Material
Adverse Effect: (a) any adverse change, event, development, or effect arising from or relating to
(i) general business or economic conditions, including such conditions related to any industry in
which the Companies operate, (ii) national or international political or social conditions,
including the engagement by the United States in hostilities, whether or not pursuant to the
declaration of a national emergency or war, or the occurrence of any military or terrorist attack
upon the United States, or any of its territories, possessions, or diplomatic or consular offices
or upon any military installation, equipment or personnel of the United States, (iii) financial,
banking, or securities markets (including any disruption thereof and any decline in the price of
any security or any market index), (iv) the taking of any action or the satisfaction of any
obligation contemplated by this Agreement and the other Transaction Documents, (v) the announcement
of the Transactions, (vi) the identity of Buyer and its Affiliates and Buyer’s post-Closing plans
for the business of the Companies and the Companies’ suppliers, customers and employees, (vii)
changes generally applicable to the Companies’ industry, including changes in the accounting
principles and practices and Laws, rules and regulations applicable to the Companies’ business and
industry, or (viii) natural disasters, labor unrest, strikes, sabotage and other “acts of God;” or
(b) any adverse effect regarding the business, assets, condition (financial or otherwise) or
results of operations of the Companies that is, in all material respects, cured or otherwise
mitigated before the Closing Date.



     “Material Consent” means any consent, approval, waiver, notice, authorization, or
novation, as the case may be, required by the terms of any Material Contract or any other agreement
or Permit set forth on Schedule 5.4(g) in connection with the consummation of the
Transactions, the failure of which to obtain would reasonably be expected to (i) cause a Material
Adverse Effect, (ii) cause the applicable Company’s loss of its right, title and interest to a
Material Contract, or (iii) otherwise materially interfere with the applicable Company’s ability to
realize the benefits of such Material Contract following the Closing.



     “Material Contracts” has the meaning specified in Section 3.17(a).



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     “Minimum Claim Amount” has the meaning specified in Section 6.5.



     “Net Distributable Proceeds” means the Purchase Price (as adjusted by the Estimated
Net Working Capital), less the Escrow Payment, less the Holdback Amount and
less any Indebtedness.



     “Net Working Capital” means the Current Assets less the Current Liabilities of the
Companies on the date of such calculation.



     “Non-Compete Parties” means each of the Primary Seller Group and any other Person
mutually agreed upon by the Sellers’ Representative and the Buyer and listed on Schedule
5.2(k).



     “Non-Competition Agreements” has the meaning specified in Section 5.2(k).



     “Notice of Action” has the meaning specified in Section 6.4.



     “Notice of Election” has the meaning specified in Section 6.4.



     “Ordinary Course” means any action taken by any of the Companies that (a) is
consistent with the past practices of such Company and is taken in the ordinary course of the
normal day-to-day operations of such Company and (b) is not required to be authorized by the
governing body Company (or by any Company or group of Companies exercising similar authority) and
is not required to be authorized by the parent company (if any) of such Person.



     “Permit” means any permit, license, easement, variance, exemption, consent,
certificate, approval, authorization of and registration with and under all Laws and from all
Governmental Entities.



     “Permitted Liens” means any: (a) Lien listed in the Disclosure Schedule or noted in
any of the Financial Statements; (b) Lien for any Tax, assessment or other governmental charge that
is not yet due and payable or that may thereafter be paid without penalty; (c) Lien arising under
any original purchase price conditional sales contract or equipment lease; (d) easement, covenant,
condition or restriction of record; (e) easement, covenant, condition or restriction not of record
as to which no material violation or encroachment exists or, if such violation or encroachment
exists, as to which the cure of such violation or encroachment would not materially interfere with
the conduct of the business of any of the Companies; (f) zoning or other governmentally established
Lien; (g) pledge or deposit to secure any obligation under any workers or unemployment compensation
Law or to secure any other public or statutory obligation; (h) mechanic’s, materialmen’s,
landlord’s, carrier’s, supplier’s or vendor’s lien or similar Lien arising or incurred in the
Ordinary Course of the applicable Person that secures any amount that is not overdue for a period
of more than 90 days; (i) railroad trackage agreement, utility, slope or drainage easement,
right-of-way easement or lease regarding any sign; or other imperfection of title or license or
other Lien, if any, that does not materially impair the use or operation of any asset to which it
relates in the conduct of the business of the applicable Person as presently conducted; (j)
restrictions imposed by securities Laws applicable to securities generally; and (k) restrictions
set forth in the Companies’ Operating Agreements.



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     “Person” means an individual, corporation, limited liability company, partnership,
association, trust or any other entity or organization, including any Governmental Entity.



     “Primary Seller Group” has the meaning specified in the preamble to this Agreement.



     “Pro Rata Share” means each Seller’s pro rata portion of the Net Distributable
Proceeds, calculated in accordance with each Seller’s Equity Interest in each Company, as set forth
on Schedule 2.2(a).



     “Purchase Price” has the meaning specified in Section 2.1.



     “Real Property” has the meaning specified in Section 3.18.



     “Release” means any release, spill, emission, leaking, pumping, injection, deposit,
disposal, discharge, dispersal, leaching or migration of any Hazardous Substance into the
environment or into or out of any property, including the movement of any Hazardous Substance
through or in the air, soil, surface water, groundwater or property.



     “Representatives” means the officers, managers, employees, attorneys, accountants,
advisors, representatives and agents of a Person.



     “Returns” has the meaning specified in Section 3.9.



     “Reviewed Financial Statements” has the meaning specified in Section 3.5(a).



     “SEC” means the United States Securities and Exchange Commission.



     “Securities Act” has the meaning specified in Section 4.5.



     “Sellers” has the meaning specified in the preamble to this Agreement.



     “Sellers’ Representative” shall mean the Person designated in Section 7.14
hereof to serve as the representative of the Sellers.



     “Straddle Period” means any complete Tax period of any of the Companies relating to
any Tax that includes but does not end on the Closing Date.



     “Subsidiary” means, with respect to any Person, any other Person (including joint
ventures) of which such Person, directly or indirectly, (a) has the right or ability to elect,
designate or appoint a majority of the board of directors or other Persons performing similar
functions for such Person, whether as a result of the beneficial ownership of Equity Interests,
contractual rights or otherwise or (b) beneficially owns a majority of the voting Equity Interests
or a majority of the economic interests.



     “Tax” or “Taxes” means all United States federal, state, local or foreign
income, profits, estimated gross receipts, windfall profits, environmental (including taxes under
Section 59A of the Code), severance, property, intangible property, occupation, production, sales,
use, license, excise, emergency excise, franchise, escheat, capital gains, capital stock,
employment,



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withholding, social security (or similar), disability, transfer, registration, stamp, payroll,
goods and services, value added, alternative or add-on minimum tax, estimated, or any other tax,
custom, duty or governmental fee, or other like assessment or charge of any kind whatsoever, and
any interest, penalties, fines, related liabilities or additions to taxes that may become payable
with respect to Taxes described above that are imposed by any Governmental Entity, whether disputed
or not.




     “Tax Benefit” shall mean any refund of Taxes paid or reduction in the amount of Taxes
which otherwise would have been paid, in each case computed at the highest marginal tax rates.



     “Tax Return” has the meaning specified in Section 3.8.



     “Third Party” means any Person (or group of Persons) other than Buyer, the Companies,
the Sellers, or any Affiliates of the foregoing.



     “Transaction Documents” means this Agreement and all the other agreements,
certificates, instruments and other documents required to be executed in connection with the
transactions contemplated by this Agreement.



     “Transactions” means the transactions contemplated by the Transaction Documents.



     “Unaudited Financial Statements” has the meaning specified in Section 3.6(a).



     “Updated Disclosure Schedule” has the meaning specified in Section 5.6(d).



     “Walk-A-Way Deposit” has the meaning specified in Section 2.1(b).



PURCHASE AND SALE AGREEMENT





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