exhibit103eaglesecuritie






                                                                   EXHIBIT 10.3                                                                                                                                             EXECUTION VERSION    [*****] Text omitted for confidential treatment. The redacted information has been excluded  because it is (i) not material and (ii) would likely cause competitive harm to the registrant if  publicly disclosed.                              SECURITIES PURCHASE AGREEMENT                                                                          BY AND AMONG                             CORAM MATERIALS CORP.,                                                                 MILLER PLACE DEVELOPMENT LLC,                                                                       A.B. OF SAYVILLE, LTD.,                                                                        MLFF REALTY CORP.,                                                                        BSLH REALTY CORP.,                                                                       MICHAEL VIGLIAROLO,                                                                      LORRAINE VIGLIAROLO                                                                                and                                                                        USC ATLANTIC, INC.                           _____________________________                               Dated February 24, 2020                                                        302010047 v18 





 






                               TABLE OF CONTENTS                                                                        Page   ARTICLE I DEFINITIONS ............................................................................................................. 1  Section 1.01   Certain Definitions ............................................................................................ 1  Section 1.02   Terms Defined Elsewhere in this Agreement .................................................... 1   ARTICLE II PURCHASE AND SALE ........................................................................................... 3  Section 2.01   Purchase and Sale .............................................................................................. 3  Section 2.02   Consideration ..................................................................................................... 3  Section 2.03   Transactions to be Effected at the Closing; Closing Deliveries ........................ 4  Section 2.04   Closing Purchase Price Adjustment ................................................................... 6  Section 2.05   Closing ............................................................................................................... 9  Section 2.06   Withholding Tax ................................................................................................ 9   ARTICLE III REPRESENTATIONS AND WARRANTIES REGARDING THE                 COMPANIES .................................................................................................... 9  Section 3.01   Organization, Authority and Qualification of the Companies ........................... 9  Section 3.02   Capitalization ................................................................................................... 10  Section 3.03   Subsidiaries ...................................................................................................... 10  Section 3.04   No Conflicts; Consents .................................................................................... 10  Section 3.05   Financial Statements ........................................................................................ 10  Section 3.06   Undisclosed Liabilities .................................................................................... 11  Section 3.07   Absence of Certain Changes, Events and Conditions...................................... 11  Section 3.08   Material Contracts ........................................................................................... 13  Section 3.09   Title to Assets; Real Property .......................................................................... 15  Section 3.10   Sufficiency of Assets ....................................................................................... 16  Section 3.11   Intellectual Property Assets ............................................................................. 16  Section 3.12   Inventory; Reserves ......................................................................................... 17  Section 3.13   Customers and Suppliers ................................................................................. 18  Section 3.14   Insurance .......................................................................................................... 18  Section 3.15   Legal Proceedings; Orders ............................................................................... 19  Section 3.16   Compliance with Laws; Permits ...................................................................... 19  Section 3.17   Environmental Matters .................................................................................... 20  Section 3.18   Employee Benefit Matters ............................................................................... 21                                                                               i  302010047 v18 





 






   Section 3.19   Employment Matters ....................................................................................... 23  Section 3.20   Taxes ................................................................................................................ 25  Section 3.21   Product Warranties .......................................................................................... 26  Section 3.22   Performance Bonds .......................................................................................... 27  Section 3.23   Accounts with Banks and Brokerages; Powers of Attorney ............................ 27  Section 3.24   Absence of Certain Business Practices ............................................................ 27  Section 3.25   Affiliate Interests ............................................................................................. 27  Section 3.26   Capital Expenditures ........................................................................................ 27  Section 3.27   Indebtedness .................................................................................................... 27  Section 3.28   Brokers............................................................................................................. 27  Section 3.29   Full Disclosure ................................................................................................. 28   ARTICLE IV REPRESENTATIONS AND WARRANTIES REGARDING SELLERS ............. 28  Section 4.01   Authority of Seller ........................................................................................... 28  Section 4.02   Title to Securities ............................................................................................. 28  Section 4.03   No Conflicts ..................................................................................................... 28  Section 4.04   Brokers............................................................................................................. 29  Section 4.05   Legal Proceedings ............................................................................................ 29  Section 4.06   Tax Matters ...................................................................................................... 29  Section 4.07   Disclaimer. ....................................................................................................... 29   ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER .................................... 29  Section 5.01   Organization and Authority of Buyer .............................................................. 29  Section 5.02   No Conflicts; Consents .................................................................................... 30  Section 5.03   Brokers............................................................................................................. 30  Section 5.04   Legal Proceedings ............................................................................................ 30  Section 5.05   Investment Purpose .......................................................................................... 30   ARTICLE VI COVENANTS ......................................................................................................... 31  Section 6.01   Confidentiality ................................................................................................. 31  Section 6.02   Non-competition; Non-solicitation. ................................................................. 31  Section 6.03   Governmental Approvals and Consents .......................................................... 33  Section 6.04   Books and Records .......................................................................................... 34  Section 6.05   Use of Name .................................................................................................... 34  Section 6.06   Public Announcements .................................................................................... 35  Section 6.07   Further Assurances; Litigation Cooperation .................................................... 35  Section 6.08   Performance Bond. .......................................................................................... 35                                                                              ii  302010047 v18 





 






   Section 6.09   Insurance. ......................................................................................................... 36  Section 6.10   Termination of Related Party Agreements. ..................................................... 36  Section 6.11   401(k) Plan Termination. ................................................................................. 37  Section 6.12   Bank Account Transition. ................................................................................ 37   ARTICLE VII TAX MATTERS .................................................................................................... 37  Section 7.01   Tax Covenants ................................................................................................. 37  Section 7.02   No Existing Tax Sharing Agreements ............................................................. 38  Section 7.03   Tax Indemnification ........................................................................................ 38  Section 7.04   Straddle Period ................................................................................................ 38  Section 7.05   Contests ........................................................................................................... 38  Section 7.06   Cooperation and Exchange of Information ...................................................... 39  Section 7.07   Tax Treatment of Indemnification Payments .................................................. 39  Section 7.08   Survival ............................................................................................................ 39  Section 7.09   Overlap ............................................................................................................ 39  Section 7.10   Section 338(h)(10) Elections ........................................................................... 39  Section 7.11   Purchase Price Allocation ................................................................................ 40   ARTICLE VIII INDEMNIFICATION .......................................................................................... 40  Section 8.01   Survival ............................................................................................................ 40  Section 8.02   Indemnification by Sellers ............................................................................... 41  Section 8.03   Indemnification by Buyer ................................................................................ 42  Section 8.04   Certain Limitations .......................................................................................... 43  Section 8.05   Indemnification Procedures ............................................................................. 46  Section 8.06   Payments .......................................................................................................... 49  Section 8.07   Insured Claims ................................................................................................. 49   ARTICLE IX MISCELLANEOUS ................................................................................................ 50  Section 9.01   Expenses .......................................................................................................... 50  Section 9.02   Notices ............................................................................................................. 50  Section 9.03   Interpretation ................................................................................................... 52  Section 9.04   Headings .......................................................................................................... 52  Section 9.05   Severability ...................................................................................................... 53  Section 9.06   Entire Agreement ............................................................................................. 53  Section 9.07   Successors and Assigns ................................................................................... 53  Section 9.08   No Third Party Beneficiaries ........................................................................... 53  Section 9.09   Amendment and Modification; Waiver ........................................................... 53                                                                              iii  302010047 v18 





 






   Section 9.10   Governing Law; Submission to Jurisdiction .................................................... 53  Section 9.11   WAIVER OF JURY TRIAL ........................................................................... 54  Section 9.12   Specific Performance ....................................................................................... 54  Section 9.13   Counterparts..................................................................................................... 54      Annex A    –  Certain Definitions    Exhibit A  –  Sellers  Exhibit B  –  Form of Consulting Agreement  Exhibit C  –  Form of Offer Letter  Exhibit D  –  Form of Seller Release  Exhibit E  –  Form of Seller Affidavit  Exhibit F  –  Form of Spousal Consent  Exhibit G  –  Purchase Price Allocation  Exhibit F  –  Prepaid Expenses    Schedule I –  Resignations  Schedule II  –  Net Trade Working Capital Principles  Schedule III  –  Excluded Items  Schedule IV  –  Closing Indebtedness                                                                                   iv  302010047 v18 





 






                        SECURITIES PURCHASE AGREEMENT         This Securities Purchase Agreement (this “Agreement”), dated as of February 24, 2020, is entered  into by and among Coram Materials Corp., a New York corporation (“Coram”), Miller Place Development  LLC, a New York limited liability company (“MPD LLC”), A.B. of Sayville, Ltd., a New York corporation  (“A.B. of Sayville”), MLFF Realty Corp., a New York corporation (“MLFF”), and BSLH Realty Corp., a  New York corporation (“BSLH,” and collectively with Coram, MPD LLC, A.B. of Sayville and MLFF,  the “Companies” and each, a “Company”), Michael Vigliarolo, an individual resident of the State of New  York (“Michael”), Lorraine Vigliarolo, an individual resident of the State of New York (“Lorraine”) (each  of  Michael  and  Lorraine,  a  “Seller” and,  collectively,  “Sellers”),  and  USC  Atlantic,  Inc.,  a  Delaware  corporation (“Buyer”).                                      RECITALS         WHEREAS,  the  Companies  collectively  operate  a  sand and  stone  quarry  business  located  in  Suffolk County, New York;         WHEREAS,  Sellers  together  own  all  of  the  issued  and  outstanding  membership  interests  and  capital stock, as applicable (collectively, the “Securities”), of each of the Companies; and         WHEREAS,  Sellers  wish  to  sell  to  Buyer,  and  Buyer  wishes  to  purchase  from  Sellers,  the  Securities, subject to the terms and conditions set forth herein.         NOW,  THEREFORE, in consideration of the mutual covenants  and agreements hereinafter set  forth and  for  other  good  and  valuable  consideration,  the  receipt  and  sufficiency  of  which  are  hereby  acknowledged, the parties hereto agree as follows:                                     ARTICLE I                                  DEFINITIONS         Section 1.01 Certain Definitions. For purposes of this Agreement, capitalized terms used and  not otherwise defined herein have the meanings ascribed to such terms in Annex A hereto.         Section 1.02 Terms Defined Elsewhere in this Agreement. For purposes of this Agreement,  the following terms have the meanings set forth on the page indicated:   A.B. of Sayville............................................................................................................................................. 1  Accounts Payable .......................................................................................................................................... 6  Accounts Receivable ..................................................................................................................................... 6  Adjustment Amount ...................................................................................................................................... 8  Agreement ..................................................................................................................................................... 1  Balance Sheet .............................................................................................................................................. 11  Balance Sheet Date ..................................................................................................................................... 11  Benefit Plan ................................................................................................................................................. 21  BSLH ............................................................................................................................................................ 1  Buyer ............................................................................................................................................................. 1  Buyer Deductible Exclusions ...................................................................................................................... 43  Buyer Fundamental Representations .......................................................................................................... 41  Buyer Indemnitees ...................................................................................................................................... 41  Cash Deposit ............................................................................................................................................... 35                                                                                   1  302010047 v18 





 






   Class V Allocation Schedule ...................................................................................................................... 40  Closing .......................................................................................................................................................... 9  Closing Date.................................................................................................................................................. 9  Closing Purchase Price ................................................................................................................................. 3  Closing Statement ......................................................................................................................................... 6  Collective Bargaining Agreement ............................................................................................................... 23  Companies..................................................................................................................................................... 1  Company ....................................................................................................................................................... 1  Company Fundamental Representations ..................................................................................................... 40  Company Indebtedness ............................................................................................................................... 27  Company Personal Property ....................................................................................................................... 16  Consulting Agreement .................................................................................................................................. 4  Coram ............................................................................................................................................................ 1  Deductible ................................................................................................................................................... 43  Direct Claim ................................................................................................................................................ 48  Dispute Notice .............................................................................................................................................. 7  Disputed Item ................................................................................................................................................ 7  DOL ............................................................................................................................................................ 21  Effective Time .............................................................................................................................................. 9  Environmental Indemnification Matters ..................................................................................................... 44  Environmental Indemnification Provisions ................................................................................................ 49  Environmental Policy .................................................................................................................................. 36  Environmental Representation .................................................................................................................... 41  Estimated Closing Indebtedness ................................................................................................................... 6  Estimated Transaction Expenses ................................................................................................................... 6  Excluded Assets ............................................................................................................................................ 5  Final Closing Statement ................................................................................................................................ 7  Financial Statements ................................................................................................................................... 11  FLSA ........................................................................................................................................................... 24  Indemnified Party ........................................................................................................................................ 46  Indemnifying Party ..................................................................................................................................... 46  Indemnity Payment ..................................................................................................................................... 46  Independent Accountant ............................................................................................................................... 7  Insurance Escrow Amount .......................................................................................................................... 36  Insurance Policies ....................................................................................................................................... 18  Insured Indemnification Claim ................................................................................................................... 49  IT Assets ..................................................................................................................................................... 17  Landfill Indemnification Matters ................................................................................................................ 44  Letter of Credit ............................................................................................................................................ 35  Licensed Intellectual Property .................................................................................................................... 14  Lorraine ......................................................................................................................................................... 1  Material Contracts ....................................................................................................................................... 13  Material Customers ..................................................................................................................................... 18  Material Intellectual Property ..................................................................................................................... 16  Material Security Breach ............................................................................................................................ 17  Material Suppliers ....................................................................................................................................... 18  Michael ......................................................................................................................................................... 1  Mineral Rights ............................................................................................................................................ 16  MLFF ............................................................................................................................................................ 1  MLRL Permit .............................................................................................................................................. 35  Non-Compete Parties .................................................................................................................................. 31                                                                                  2  302010047 v18 





 






   NYSDEC .................................................................................................................................................... 35  Offer Letter ................................................................................................................................................... 4  Ordinary Course of Business ...................................................................................................................... 11  Outstanding Consents ................................................................................................................................. 33  Performance Bonds ..................................................................................................................................... 27  PLL Policy .................................................................................................................................................. 19  Post-Closing Payments ................................................................................................................................. 3  Privacy Laws ............................................................................................................................................... 17  Purchase Price ............................................................................................................................................... 4  Qsub ............................................................................................................................................................ 25  Qualified Benefit Plan ................................................................................................................................. 21  Real Property .............................................................................................................................................. 15  Related Party Matters .................................................................................................................................. 27  Restricted Period ......................................................................................................................................... 31  RMF ............................................................................................................................................................ 36  S Corporations ............................................................................................................................................ 25  Section 338(h)(10) Elections ...................................................................................................................... 39  Section 338(h)(10) Forms ........................................................................................................................... 39  Securities ....................................................................................................................................................... 1  Seller ............................................................................................................................................................. 1  Seller Deductible Exclusions ...................................................................................................................... 43  Seller Fundamental Representations ........................................................................................................... 40  Seller Indemnitees ....................................................................................................................................... 42  Seller Release ................................................................................................................................................ 4  Sellers ............................................................................................................................................................ 1  Straddle Period ............................................................................................................................................ 38  Target Net Trade Working Capital ............................................................................................................... 6  Tax Claim ................................................................................................................................................... 38  Terminated 401(k) Plan ................................................................................................................................ 6  Third Party Claim ....................................................................................................................................... 47  Trade Working Capital ................................................................................................................................. 6  Union .......................................................................................................................................................... 23                                     ARTICLE II                               PURCHASE AND SALE         Section 2.01 Purchase and Sale. Subject to the terms and conditions set forth herein, at the  Closing, each Seller shall sell to Buyer, and Buyer shall purchase from each Seller, the Securities, as set  forth  next  to  such  Seller’s  name  on Exhibit  A hereto,  in  each  case,  free  and  clear  of  any  and  all  Encumbrances, for the consideration specified in Section 2.02.         Section 2.02 Consideration.  As consideration for the purchase and sale of the Securities and  subject to the terms and conditions of this Agreement, at the Closing, Buyer shall pay to each Seller: (a) an  amount  in  cash  equal  to  one-half  of  the  Closing  Purchase  Price  plus  (b)  an  amount  in  cash  equal  to  $1,000,000, one-half of which shall be payable on the first anniversary of the Closing Date and one-half of  which shall be payable on the second anniversary of the Closing Date (the payments described in this clause  (b) of this Section 2.02, the “Post-Closing Payments” ). The “Closing Purchase Price” shall be calculated  as follows: (i) $140,000,000, minus (ii) the aggregate amount of the Estimated Closing Indebtedness, minus  (iii) the aggregate amount of the Estimated Transaction Expenses. The Closing Purchase Price shall be  subject to further adjustment following the Closing pursuant to Section 2.04, and the Closing Purchase                                                                                   3  302010047 v18 





 






   Price, as so adjusted, together with the Post-Closing Payments, are referred to herein collectively as the  “Purchase Price”.         Section 2.03 Transactions to be Effected at the Closing; Closing Deliveries.               (a)   At the Closing, Buyer will pay all Closing Indebtedness and Transaction Expenses  set forth on, and in accordance with, the Payoff Letters, which Sellers shall cause to be delivered to Buyer  no later than three (3) Business Days prior to the anticipated Closing Date.               (b)   At the Closing, Buyer shall deliver to each Seller (or, in the case of clause (iii), the  Sellers collectively):                     (i)   such  Seller’s  share  of  the  Closing  Purchase  Price,  determined  in        accordance  with Section  2.02,  by  wire  transfer  of  immediately  available  funds  to  the  account        designated by such Seller to Buyer in writing no later than two (2) Business Days prior to the        Closing Date;                      (ii)  an executed counterpart to a Consulting Agreement between Buyer (or an        Affiliate of Buyer) and such Seller, in substantially the form attached hereto as Exhibit B (each, a        “Consulting Agreement” ), duly executed by Buyer; and                      (iii) an  executed  counterpart  to  an  offer  letter  to  Michael  Vigliarolo,  Jr.        describing the material terms and conditions of employment by Buyer (or an Affiliate of Buyer),        in substantially the form attached hereto as Exhibit C (the “Offer Letter” ), duly executed by Buyer.               (c)   At the Closing, each Seller (or, in the case of clauses (ii), (iii), (vii), (x) and (xi),  the Sellers, collectively) shall deliver to Buyer:                     (i)   stock  or  membership  interest  certificates,  as  applicable,  evidencing  the        Securities  owned  by  such  Seller  (as  reflected  on Exhibit  A),  free  and  clear  of  any  and  all        Encumbrances, duly endorsed in blank or accompanied by stock powers or other instruments of        transfer duly executed in blank;                      (ii)  an executed counterpart to the Seller Release, in substantially the form        attached hereto as Exhibit D (the “Seller Release”), duly executed by such Seller;                     (iii) duly and properly executed Forms 8023 evidencing the Section 338(h)(10)        Elections, each duly executed by each Seller;                     (iv)  an affidavit of non-foreign status from each Seller that complies with the        Treasury Regulations under Section 1445 of the Code;                     (v)   affidavits  of  each  Seller  regarding  certain  matters  related  to  the  Real        Property, in substantially the form attached hereto as Exhibit E;                      (vi)  such documents and certificates as the title company selected by Buyer        may reasonably require in order to issue at the Closing one or more ALTA pro forma owner’s title        insurance policy(ies) in a form reasonably acceptable to Buyer and in an amount to be determined        by  Buyer,  insuring  the  applicable  Company’s  Real Property  in  which  it  holds  fee  simple  title,        together with mechanic’s lien coverage and such endorsements (including endorsements for non-       deed transfers) as Buyer may reasonably request, in each case subject to no exceptions other than                                                                                  4  302010047 v18 





 






         the Title Exceptions and the Permitted Encumbrances; provided, however, that the issuance of such        title insurance policy(ies) shall not be a condition to Closing hereunder;                     (vii) a spousal consent of the spouse of each Seller, in substantially the form        attached hereto as Exhibit F;                     (viii) an  executed  counterpart  to  such  Seller’s  Consulting  Agreement,  duly        executed by such Seller;                      (ix)  an  executed  counterpart  to  the  Offer  Letter,  duly  executed  by  Michael        Vigliarolo, Jr.; and                     (x)   any documentation reasonably required to transfer such Seller’s cell phone        number and, in the case of Lorraine, Lorraine’s personal computer (collectively, the “Excluded        Assets”), and any and all associated Liabilities (whether arising prior to, on or after the Closing),        from the applicable Company to such Seller, in form and substance reasonably acceptable to Buyer.               (d)   At  or  prior  to  the  Closing,  the  Sellers  shall cause  the  Companies  to  deliver to  Buyer:                     (i)   written resignations, effective as of the Closing Date, of the members or        directors, as applicable, and officers of the Companies set forth on Schedule I, each in form and        substance reasonably acceptable to Buyer;                      (ii)  originals or copies of all consents, waivers, approvals or notices set forth,        or required to be set forth, on Section 3.04 or Section 4.03 of the Disclosure Schedules, each in        form and substance reasonably acceptable to Buyer;                      (iii) fully executed Payoff Letters and any and all instruments and documents        necessary or desirable to release any and all Encumbrances on the Securities and on any assets,        properties, stock or equity, or other rights of the Companies with respect to the Indebtedness of the        Companies, including recordable releases of all deeds of trust and/or mortgages (and any related        documents, assignments of leases and rents, collateral assignments, and/or similar instruments and        documents)  and  UCC  financing  statement  amendments  (termination  statements)  with  respect        thereto, each in form and substance reasonably acceptable to Buyer;                     (iv)  an  executed  counterpart  to  each  Seller  Release,  duly  executed  by  each        Company;                     (v)   any books or records of the Companies that are not located on the Real        Property; and                     (vi)  certificates dated as of the Closing Date, duly signed by an officer of each        Company, in such officer’s capacity as an officer and not in such officer’s individual capacity:        (A) certifying  that  attached  thereto  are  true,  correct  and  complete  copies  of  such  Company’s        Organizational Documents, and any amendments thereto, in effect at the Closing; (B) attaching a        long-form certificate of status and good standing issued as of a date not more than five (5) days        prior to the anticipated Closing Date, duly certified by the Secretary of State of the State of New        York; (C) certifying that attached thereto are true, correct and complete copies of resolutions duly        adopted  by  the  members  or  directors  (or  comparable  governing  body),  as  applicable,  of  such        Company authorizing and approving the execution, delivery and performance of the Transaction                                                                                  5  302010047 v18 





 






         Documents  to  which  such  Company  is  a  party  and  the  consummation  of  the  transactions        contemplated  thereby;  (D)  certifying  the  names  of  the  officers  and  members  or  directors  (or        comparable governing body), as applicable, of such Company in office immediately prior to the        Closing;  and  (E)  certifying  the  incumbency,  signature  and  authority  of  the  officers  of  such        Company authorized to execute, deliver and perform the Transaction Documents to which such        Company is a party and all other documents, instruments or agreements contemplated thereby to        which such Company is a party; and               (e)   At or prior to the Closing, Sellers shall have caused each Company, as applicable,  to adopt appropriate resolutions and to take all other necessary action to terminate the Benefit Plan set forth  on Section 2.03(e) of the Disclosure Schedules (such plan, as so terminated, the “Terminated 401(k) Plan”  ), effective immediately prior to the Closing Date and contingent on the Closing.  Except as set forth in this  Section 2.03(e), nothing herein is intended, nor shall it be deemed to, amend any Benefit Plan.         Section 2.04 Closing Purchase Price Adjustment.                (a)   For  purposes  of  this  Agreement,  the  following  terms  shall  have  the  respective  meanings assigned to such terms below:                     (i)   “Accounts Receivable” means the accounts receivable of the Companies,        without  duplication,  as  of the  Effective  Time,  in  each  case,  (A) calculated  in  accordance  with        GAAP  and  in  a  manner  consistent  with  those  methodologies,  policies,  procedures,  practices,        estimation techniques, assumptions and principles set forth on Schedule II and (B) excluding any        Closing Cash.                      (ii)  “Accounts Payable” means the accounts payable, accrued expenses, and        other current liabilities of the Companies (including refunds and credits owed to customers and        vendors, Taxes and employees’ accrued but unpaid salary, wages, vacation and paid time off),        without  duplication,  as  of the  Effective  Time,  in  each  case,  (A) calculated  in  accordance  with        GAAP  and  in  a  manner  consistent  with  those  methodologies,  policies,  procedures,  practices,        estimation techniques, assumptions and principles set forth on Schedule II and (B) excluding any        amounts included in Closing Indebtedness or Transaction Expenses.                     (iii) “Net Trade Working Capital” means an amount equal to the sum of: (A)        Accounts Receivable minus (B) Accounts Payable.                      (iv)  “Target Net Trade Working Capital” means $1,000,000.00.               (b)   Estimate by Sellers. At least three (3) Business Days, but not more than five (5)  Business Days, prior to the anticipated Closing Date, Sellers shall deliver to Buyer a written notice setting  forth  the  Sellers’  good  faith  estimate,  as of  the  anticipated  Closing  Date,  of  each  of  (i)  the  Closing  Indebtedness (the “Estimated Closing Indebtedness”) and (ii) the Transaction Expenses (the “Estimated  Transaction Expenses”).               (c)   Closing Statement. As  promptly as practicable,  but no later than  one  hundred  twenty (120) days after the Closing Date, Buyer shall prepare and deliver, or cause to be prepared and  delivered, to Sellers (i) a written statement of Buyer’s calculation of each of the Trade Working Capital,  Closing  Cash,  Closing  Indebtedness  and  Transaction  Expenses  (the  “Closing  Statement”)  and  (ii)  statements supporting the calculations thereof, including supporting documentation and work papers with  respect thereto.                                                                                   6  302010047 v18 





 






               (d)   Examination and Review. The Closing Statement delivered by Buyer to Sellers  shall be  final, conclusive and  binding upon the  parties unless Sellers,  within forty-five  (45) days  after  delivery to Sellers of the Closing Statement, notifies Buyer in writing that Sellers dispute any of the amounts  set forth therein (a “Dispute Notice”). To be valid and effective, the Dispute Notice shall contain a specific  list of the disputed line items and, for each individual disputed line item, reasonable detail regarding the  nature and the basis for such disputed line item and Sellers’ proposed calculation thereof (each such item,  a “Disputed Item”). Prior to the final resolution of the Closing Statement, Buyer may supplement or revise  its  position  with  respect  to  any  item  or  amount  contained  in  the  Closing  Statement.  Any  supplement  delivered by Buyer shall be deemed an amendment to the Closing Statement and shall entitle Sellers to  amend its Dispute Notice (and the Disputed Items) in its entirety by delivery of an amended Dispute Notice  within thirty (30) days after delivery to Sellers of such supplemental or revised items. If a timely Dispute  Notice is delivered by Sellers, then the Closing Statement shall become final, conclusive and binding on  the parties on the earlier of (i) the date Buyer and Sellers resolve in writing any differences they have with  respect to all Disputed Items and (ii) the date all Disputed Items are finally resolved in writing by the  Independent Accountant.               (e)   Resolution of Disputes. Buyer and Sellers shall in good faith attempt to resolve  all Disputed Items and, if Buyer and Sellers so resolve all such Disputed Items, the Closing Statement, as  amended  to the  extent  necessary  to  reflect  the agreed  resolution  of the  Disputed  Items,  shall  be  final,  conclusive and binding on the parties, absent manifest error. Notwithstanding their good faith efforts, if  Buyer and Sellers do not reach agreement resolving the Disputed Items within thirty (30) days after such  Dispute Notice (or amended Dispute Notice if Buyer supplements its position pursuant to Section 2.04(d)  and such amended Dispute Notice is timely and properly delivered to Buyer), either Buyer or Sellers may  submit the  dispute to PricewaterhouseCoopers  or, if PricewaterhouseCoopers  is  unwilling or unable  to  serve,  an  independent  accounting  firm  of  national  reputation  mutually  agreeable to  Buyer  and  Sellers  (PricewaterhouseCoopers or such other mutually agreeable independent accounting firm, the “Independent  Accountant”). If either Buyer or Sellers submit the dispute to the Independent Accountant then each party  shall take all actions reasonably requested by the Independent Accountant in connection with resolving  such dispute, including submitting written claims to the Independent Accountant, if so requested, and each  party shall request that the Independent Accountant deliver to Buyer and Sellers its resolution in writing  not more than thirty (30) days after its engagement. All determinations made by the Independent Accountant  shall be in writing and shall be final, conclusive and binding on the parties absent fraud or manifest error.  In resolving any Disputed Item, the Independent Accountant (i) shall be bound by the provisions of this  Section 2.04, including the matters set forth on Schedule II and (ii) may not assign a value to any individual  Disputed Item greater than the greatest value for such Disputed Item claimed by Buyer or Sellers or less  than the smallest value for such Disputed Item claimed by Buyer or Sellers. None of Sellers, Buyer and the  Companies (and none of their respective Representatives) shall have any ex parte conversations or meetings  with the Independent Accountant without the prior consent (not to be withheld, conditioned or delayed  unreasonably) of (i) with respect to Sellers,  Buyer, and (ii) with respect to Buyer and the  Companies,  Sellers. The fees, costs and expenses of the Independent Accountant shall be allocated to and borne by  Buyer, on the one hand, and Sellers, on the other, based on the inverse of the percentage that the Independent  Accountant’s determination (before such allocation) bears to the total amount of the Disputed Items as  originally  submitted  to  the  Independent  Accountant.  For  example,  if  Sellers  claim  that  the  Net  Trade  Working Capital is $1,000 greater than the amount claimed by Buyer, if Buyer contests only $500 of such  amount claimed by Sellers and if the Independent Accountant ultimately resolves the dispute by awarding  Sellers $300 of the $500 so contested, then the fees, costs and expenses of the Independent Accountant will  be allocated sixty percent (60%) (i.e., 300 ÷ 500) to Buyer and forty percent (40%) (i.e., 200 ÷ 500) to  Sellers. Any fees, costs and expenses allocated to and to be borne by a party pursuant to the foregoing  sentence shall be paid by such party, or its designee, within five (5) Business Days of receipt of any invoice  or bill for such fees, costs and expenses. “Final Closing Statement” means (i) Buyer’s Closing Statement  delivered  pursuant  to Section 2.04(c) if  no  Dispute  Notice  is  timely  delivered  by  Sellers  pursuant  to                                                                                  7  302010047 v18 





 






   Section 2.04(d); or (ii) if a Dispute Notice is timely delivered, (A) as agreed by Buyer and Sellers pursuant  to Section 2.04(e) or (B) in the  absence  of such agreement, as shown in the Independent Accountant’s  calculation delivered pursuant to Section 2.04(e).               (f)   Cooperation.  Buyer  and  Sellers  shall,  and  shall  cause  their  respective  Representatives  to,  cooperate  and  assist  in  the  conduct  of the  review  referred  to  in  this Section 2.04,  including by making available to the extent necessary books, records, work papers and personnel and  accountants.               (g)   Adjustment.  The  parties  agree  to  the  following  adjustment  to  the  Closing  Purchase Price following the Closing (the amount of such adjustment, the “Adjustment Amount”), which  shall be calculated as follows:                     (i)   the amount, expressed as a negative or positive number, of Closing Cash        (as set forth in the Final Closing Statement); plus                     (ii)  the amount, if any, by which the Net Trade Working Capital (as set forth        in the Final Closing Statement) is greater than the Target Net Trade Working Capital; minus                      (iii) the amount, if any, by which the Net Trade Working Capital (as set forth        in the Final Closing Statement) is less than the Target Net Trade Working Capital; plus                     (iv)  the amount, if any, by which the Transaction Expenses (as set forth in the        Final Closing Statement) are less than Estimated Transaction Expenses; minus                     (v)   the amount, if any, by which the Transaction Expenses (as set forth in the        Final Closing Statement) are greater than the Estimated Transaction Expenses; plus                     (vi)  the amount, if any, by which the Closing Indebtedness (as set forth in the        Final Closing Statement) is less than the Estimated Closing Indebtedness; minus                     (vii) the amount, if any, by which the Closing Indebtedness (as set forth in the        Final Closing Statement) is greater than the Estimated Closing Indebtedness.               (h)   If the Adjustment Amount, as calculated pursuant to Section 2.04(g), is a negative  number, then each Seller shall pay one-half of such amount to Buyer as an adjustment to the Closing  Purchase  Price  in  the  manner  provided  in Section 2.04(i).  If  the  Adjustment  Amount,  as  calculated  pursuant to Section 2.04(g), is a positive number, then Buyer shall pay one-half of such amount to each  Seller in accordance with the instructions provided by such Seller as an adjustment to the Closing Purchase  Price in the manner provided in Section 2.04(i).                (i)   Payments of Adjustment to Closing Purchase Price. Any payment pursuant to  Section 2.04(h) shall be made, by wire transfer of immediately available funds by Buyer or Sellers, as the  case may be, within five (5) Business Days after the Final Closing Statement has been determined in  accordance with Section 2.04(e) above, to the account of such other party as may be designated in writing  by such other party.               (j)   Adjustments for Tax Purposes. Any payments made pursuant to Section 2.04  shall be treated as an adjustment to the aggregate purchase price for the Securities by the parties for Tax  purposes, unless otherwise required by Law, and shall be allocated in accordance with the principles set  forth in Section 7.07.                                                                                    8  302010047 v18 





 






         Section 2.05 Closing. Subject to the terms and conditions of this Agreement, the purchase and  sale of the  Securities and the  other transactions  contemplated hereby shall take place  at a closing (the  “Closing”) to take place electronically via email or facsimile at 10:00 a.m., New York City time, on the  date hereof, or at such other time, date or place as Sellers and Buyer may mutually agree upon in writing  (the day on which the Closing takes place being the “Closing Date”); provided, however, that the Closing  will be deemed to be effective as of 11:59 p.m. on the Closing Date (the “Effective Time”).         Section 2.06 Withholding  Tax. Buyer  and  the  Companies  shall  be  entitled  to  deduct  and  withhold from the aggregate purchase price for the Securities all Taxes that Buyer and the Companies may  be required to deduct and withhold under any provision of Tax Law. All such withheld amounts shall be  treated as delivered to Sellers hereunder.                                    ARTICLE III         REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANIES         Except as disclosed in the corresponding numbered section of the Disclosure Schedules, Sellers,  jointly and severally, hereby represent and warrant to Buyer as set forth in this Article III. Items and matters  disclosed in the Disclosure Schedules are organized to correspond to the Sections of this Article III to which  the matters relate.          Section 3.01 Organization, Authority and Qualification of the Companies.                (a)   Each  of  Coram,  A.B.  of  Sayville,  MLFF  and  BSLH  is  a  corporation  duly  organized, validly existing and in good standing under the Laws of the State of New York. MPD LLC is a  limited liability company duly organized, validly existing and subsisting under the Laws of the State of  New York. Each Company has all requisite power and authority, as applicable, to own, operate or lease the  properties and assets now owned, operated or leased by it and to carry on its business as it is currently  conducted. Section 3.01 of  the  Disclosure  Schedules  sets  forth,  with  respect  to  each  Company,  each  jurisdiction in which such Company is licensed or qualified to do business, and such Company is duly  licensed or qualified to do business and is in good standing in each jurisdiction in which the properties and  assets owned, operated or leased by it or the operation of its business as currently conducted makes such  licensing or qualification necessary, except where the failure to be so licensed or qualified does not have a  Material Adverse Effect.                (b)   Sellers have heretofore furnished to Buyer true, correct and complete copies of the  Organizational Documents of each Company. Such Organizational Documents are in full force and effect.  No Company is in violation of any of the provisions of its Organizational Documents. The minutes, written  consents and other materials of each Company traditionally contained in corporate kits/minute books, and  the stock records of each Company, have been made available to Buyer and are accurate and correct.               (c)   The execution and delivery by each Company of this Agreement and each other  Transaction  Document  to  which  such  Company  is  a  party,  the  performance  by  such  Company  of  its  obligations  hereunder  and  thereunder  and  the  consummation  by  such  Company  of  the  transactions  contemplated hereby and thereby have been duly authorized by all requisite action on the part of such  Company. This Agreement and each other Transaction Document to which such Company is, or will be, a  party has been duly executed and delivered by such Company, and (assuming due authorization, execution  and delivery by each of the other parties) this Agreement constitutes a legal, valid and binding obligation  of such Company, enforceable against such Company in accordance with its terms, except that (i) such  enforcement may be subject to any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer  or other laws, now or hereafter in effect, relating to or limiting creditors’ rights generally and (ii) the remedy  of specific performance and injunctive and other forms of equitable relief, may be subject to equitable                                                                                  9  302010047 v18 





 






   defenses and to the discretion of the court before which any proceeding therefor may be brought.          Section 3.02 Capitalization.               (a)   The authorized capital stock of each Company is set forth on Section 3.02(a) of the  Disclosure Schedules. All of the Securities are held of record by the Sellers in such amounts as set forth on  Exhibit A, and such Securities constitute all of the issued and outstanding capital stock or membership  interests, as  applicable, of the  Companies.  All of the Securities  have been duly authorized, are  validly  issued, fully paid and non-assessable.                (b)   All of the Securities were issued in compliance with Laws. None of the Securities  were issued in violation of the Organizational Documents of the applicable Company or any other Contract  to which Sellers or such Company is a party or is subject to or in violation of any preemptive or similar  rights of any Person.               (c)   Except  for  the Securities  set  forth  in Exhibit  A,  there  are  no  (i)  issued  or  outstanding shares, equity securities, or other form of capital stock of any Company or (ii) outstanding or  authorized  options,  warrants,  convertible  securities  or  other  rights,  agreements,  arrangements  or  commitments of any character relating to the capital stock of or any other interest in any Company or  obligating any Seller or any Company to issue, exchange or sell any shares of capital stock of, in, or any  other  interest  in,  any  Company.  No Company  has  any  outstanding  or  authorized  stock  appreciation,  phantom stock, profit participation or similar rights. No Company has any bond, note, debenture or other  Indebtedness having the right to vote or convertible or exchangeable for securities having the right to vote.  Except as set forth on Section 3.02(c) of the Disclosure Schedules, there are no voting trusts, stockholder  agreements, proxies or other Contracts in effect that relate to the voting, selling, issuing, repurchasing,  redeeming, disposition of or transfer of any of the Securities or unissued capital stock or other equity or  ownership interests of any Company.          Section 3.03 Subsidiaries. No Company (a) has any direct or indirect Subsidiaries; (b) has any  direct or indirect interest in or is under any current or prospective obligation to receive an interest in, any  shares or ownership interest in any other Person; and (c) is a member of or participant in any partnership,  joint venture, or similar entity.          Section 3.04 No Conflicts; Consents. Except as set forth on Section 3.04 of the Disclosure  Schedules, the execution, delivery and performance by each Company of each Transaction Document to  which it is, or will be, a party, and the consummation of the transactions contemplated hereby and thereby,  do not and will not: (a) conflict with or result in a violation or breach of, or default under, any provision of  the Organizational Documents of such Company; (b) conflict with or result in a violation or breach of any  provision of any Law or Order applicable to such Company; (c) require the consent, notice or other action  by any Person under, conflict with, result in a violation or breach of, constitute a default or an event that,  with or without notice or lapse of time or both, would constitute a default under, result in the acceleration  of or create in any party the right to accelerate, terminate, modify or cancel any Material Contract or any  Permit  affecting  the  properties,  assets  or  business  of  such  Company;  or  (d) result  in  the  creation  or  imposition of any Encumbrance, other than Permitted Encumbrances, on any properties or assets of such  Company.  Except  as  set  forth in Section 3.04 of  the  Disclosure  Schedules,  no consent,  Permit,  Order,  declaration or filing with, or notice to, any Governmental Authority is required by or with respect to any  Company  in  connection  with  the  execution  and  delivery  of  this  Agreement  and  the  other  Transaction  Documents and the consummation of the transactions contemplated hereby and thereby.         Section 3.05 Financial Statements. True, correct and complete copies of the compiled financial  statements of each Company, consisting of the balance sheet of each Company as at December 31 in each                                                                                  10  302010047 v18 





 






   of  the  years  2019,  2018,  2017  and  2016  and  the  related  statements  of  income  and  retained  earnings,  stockholders’ equity and cash flows for the years then ended (the “Financial Statements”), are set forth on  Section 3.05 of the Disclosure Schedules. The Financial Statements have been prepared in accordance with  GAAP applied on a consistent basis throughout the periods involved, subject to the statements set forth on  Schedule II. The Financial Statements are true, correct and complete, in all material respects, and have been  prepared  in  accordance  with  the  books  and  records  of  each  Company  and  fairly  present  the  financial  condition of each Company as of the respective dates thereof and the cash flows and results of the operations  of each Company for the periods indicated. The balance sheet of each Company as of December 31, 2018  is referred to herein as the “Balance Sheet” and the date of the Balance Sheet as the “Balance Sheet Date”.  Each Company maintains a standard system of accounting established and administered in accordance with  GAAP,  subject  to  the  statements  set  forth  on Schedule  II.   The  Accounts  Receivable  reflected  on  the  Financial Statements and the Accounts Receivable arising after the Balance Sheet Date (i) have arisen from  bona fide transactions entered into by the Companies involving the sale of goods or the rendering of services  in the ordinary course of the Companies’ business consistent with past practice (the “Ordinary Course of  Business” ), and (ii) constitute only valid, undisputed claims of the Companies not subject to claims of set- off or other defenses or counterclaims other than normal cash discounts accrued in the Ordinary Course of  Business.         Section 3.06 Undisclosed  Liabilities.  The  Companies  do  not  have  any  Liabilities,  except  (a) those that are reflected or reserved against in the Financial Statements for the year ended December 31,  2019, and (b) those that have been incurred in the Ordinary Course of Business since January 1, 2020 and  which are not, individually or in the aggregate, material in amount.         Section 3.07 Absence  of  Certain  Changes,  Events  and  Conditions.  Except as set  forth  in  Section 3.07 of the Disclosure Schedules, since the Balance Sheet Date, the Companies have conducted  their business only in the Ordinary Course of Business and there has not been, with respect to any Company,  any:               (a)   event, occurrence or development that has had, or could reasonably be expected to  have, individually or in the aggregate, a Material Adverse Effect;               (b)   amendment of any Company’s Organizational Documents;               (c)   split, combination or reclassification of any shares of any Company’s capital stock  or other ownership interests;               (d)   issuance, sale or other disposition of any Company’s capital stock or creation of  any Encumbrance on the capital stock or other ownership interests of any Company, or grant of any options,  warrants  or  other  rights  to  purchase  or  obtain  (including  upon  conversion,  exchange  or  exercise)  any  Company’s capital stock or other ownership interests;               (e)   declaration or payment of any dividends or distributions on or in respect of any  Company’s capital stock or redemption, purchase or acquisition of any Company’s capital stock or other  ownership interests;               (f)   change  in  any  method  of  accounting  or  accounting  practice  of  any  Company,  except as required by GAAP or applicable Law, or as disclosed in the notes to the Financial Statements;               (g)   acceleration of the billing of customers or the collection of its accounts receivable  or delay in payment of accounts payable or accrued expenses or the deferment of expenses;                                                                                   11  302010047 v18 





 






               (h)   transfer, assignment, sale or other disposition of any inventory of any Company at  lower  than  normal  pricing,  any  shut-down  of  the  normal  inventory  mining,  extraction,  removal  or  processing processes of any Company at a date materially earlier than past practice, or any start-up of any  such  processes  at  a  date  materially  later  than  past  practice  (taking  into  account  reasonable  business  judgment considerations based on weather conditions);               (i)   incurrence,  assumption  or  guarantee  by any  Company  of  any  Indebtedness  for  borrowed money, except unsecured current obligations and Liabilities incurred in the Ordinary Course of  Business;               (j)   transfer, assignment, sale (other than sales of inventory in the Ordinary Course of  Business) or other disposition of any  of the  assets  shown or reflected in the  Interim Balance  Sheet or  cancellation of any debts or entitlements by any Company;               (k)   transfer,  assignment,  conveyance,  abandonment,  cancellation,  Encumbrance  or  grant by any Company of any license or sublicense of any material rights under or with respect to any  Intellectual Property owned, used or held for use by any Company;               (l)   material damage to, destruction of or loss of (whether or not covered by insurance)  any Company’s property, including any Real Property;               (m)   capital investment in or by, or any loan from, any Company to any other Person;               (n)   acceleration, termination, material modification to or cancellation of any Material  Contract;               (o)   material capital expenditures by any Company not set forth on Section 3.26 of the  Disclosure Schedules;               (p)   imposition of any Encumbrance upon any of the properties, Real Property, capital  stock, ownership interests or assets, tangible or intangible, of any Company;               (q)   commencement or settlement of any Action related to any Company;               (r)   grant, establishment, adoption, increase, modification, termination or amendment  of any (or commitment to, entry into a  Contract to or representation to any Person  that it will do so):  (i) employment, severance, retention or other agreement with any Company’s current or former officers,  directors, employees, independent contractors or consultants (including any bonus arrangement or plan,  whether monetary or otherwise, or any action to accelerate the vesting or payment of any compensation or  benefit), (ii) Benefit Plan or (iii) Collective Bargaining Agreement or other Agreement with a Union, in  each case, whether written or oral;               (s)   loan by any Company to (or forgiveness of any loan by any Company to), or entry  into any other transaction with, any Company’s members, directors, officers and employees or entry by any  Company into any transaction involving payments to or from or other financial obligations owed to or  owing from any Seller or any Affiliate of any Seller;               (t)   entry  by  any  Company  into  a  new  line  of  business  or  abandonment  or  discontinuance of existing lines of business;               (u)   adoption by any Company of any plan of merger, consolidation, reorganization,                                                                                  12  302010047 v18 





 






   liquidation or dissolution or filing by any Company of a petition in bankruptcy under any provisions of  federal or state bankruptcy Law or consent by any Company to the filing of any bankruptcy petition against  it under any similar Law;               (v)   purchase, lease or other acquisition by any Company of the right to own, use or  lease any property or assets for an amount in excess of $25,000 individually (in the case of a lease, per  annum) or $50,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including  any option term), except for purchases of inventory or supplies in the Ordinary Course of Business;               (w)   acquisition by merger or consolidation with, or by purchase of a substantial portion  of the assets or stock or other equity of or by any other manner, any business or any Person or any division  thereof by any Company;               (x)   action by any Company to make, change or rescind any Tax election, amend any  Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into  any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of  Buyer in respect of any Post-Closing Tax Period; or               (y)   entry into any Contract by any Company or any Seller to do any of the foregoing  or any act or omission that would result in any of the foregoing.         Section 3.08 Material Contracts.               (a)   Section 3.08(a) of the Disclosure Schedules sets forth a true, correct and complete  list of each of the following Contracts of each Company that are currently in effect or under which a party  has enforceable or outstanding rights or obligations (whether known or unknown, asserted or unasserted,  absolute or contingent, or disputed or undisputed) (such Contracts set forth, or required to be set forth, on  Section 3.08(a) of the Disclosure Schedules, together with all Contracts set forth, or required to be set forth,  on Section 3.09(b), Section  3.09(e), Section  3.11(c), Section 3.14, Section 3.18(a), Section 3.21 and  Section 3.22 of the Disclosure Schedules, the “Material Contracts”):                     (i)   all Contracts of each Company that (A) provide for payment or receipt by        such Company of more than $25,000 per year, (B) have a term of greater than one (1) year and that        cannot  be  terminated  or  cancelled  by  such  Company  on  less  than  thirty  (30)  days’  notice  and        without  any  penalty  or  other  payment  or  (C)  are  material  to  the  business,  operations,  assets,        financial condition, results of operation or prospects of such Company, taken as a whole;                     (ii)  all Contracts that require any Company to purchase its total requirements        of any product or service from a third party or that contain “take or pay” provisions;                     (iii) all Contracts that provide for the indemnification by any Company of any        Person or the assumption of any Tax or environmental Liability of any Person;                     (iv)  all Contracts that relate to the acquisition or disposition of any business, a        material amount of equity or assets of any other Person or any real property (whether by merger,        sale of stock or other equity interests, sale of assets or otherwise);                     (v)   all broker, distributor, dealer, agency, sales promotion, market research,        marketing consulting and advertising Contracts providing for payments of more than $10,000 to or        by any Person based on sales, purchases or profits, other than direct payments for goods;                                                                                   13  302010047 v18 





 






                     (vi)  all employment agreements and Contracts with independent contractors or        consultants (or similar arrangements);                     (vii) except for Contracts relating to trade receivables, all Contracts relating to        Indebtedness (including guarantees, notes, mortgages or other grants of security interests) of any        Company;                     (viii) all Contracts with any Governmental Authority,                      (ix)  all Contracts whereby any Company is or has granted any rights, interests        and  authority, whether on an  exclusive  or non-exclusive  basis,  with respect to any  Intellectual        Property, other than commercially available, non-customized “off-the-shelf” software licensed to        any Company with annual license fee of less than $5,000.00 (the “Licensed Intellectual Property”);                      (x)   all Contracts related to the settlement of any Action;                     (xi)  all Contracts (A) that limit or purport to limit the ability of any Company        to compete in any line of business or with any Person or in any geographic area or during any period        of time, (B) that restrict the right of any Company to sell to or purchase from any Person, (C) that        restrict the right of any Company to hire any Person, or (D) that grant the other party or any third        person “most favored nation” status or any type of special discount rights;                     (xii) all Contracts that require  a consent to or otherwise contain a  provision        relating  to  a  “change  of  control,”  or  that  would  prohibit  or  delay  the  consummation  of  the        transactions contemplated by this Agreement or any other Transaction Documents;                     (xiii) all Contracts premised on small business status, minority-owned business        status, disadvantaged business status, protégé status, “8(a)” status or other preferential status;                     (xiv) all  Contracts  that  provide  for  any  joint  venture,  partnership  or  similar        arrangement by any Company;                      (xv)  all Contracts between or among any Company on the one hand, and any        Seller or any Affiliate of any Seller (other than a Company), on the other hand, which shall be        terminated at the Closing pursuant to Section 6.10;                      (xvi) all Collective Bargaining Agreements or Contracts with any Union; and                     (xvii) all consignment Contracts.               (b)   Except as set forth in Section 3.08(b) of the Disclosure Schedules, each Material  Contract has been duly authorized by, and is valid and binding on the Company party thereto in accordance  with its terms and is in full force and effect and, upon consummation of the transactions contemplated by  this  Agreement,  shall  continue  in full force and  effect  without penalty  or  other  adverse  consequences.  Neither such Company, nor, to Sellers’ Knowledge, any other party to such Material Contract is in breach  of or default under (or is alleged to be in breach of or default under), or has provided or received any notice  of any intention to terminate, such Material Contract. No event or circumstance has occurred that, with  notice or lapse of time or both, would constitute an event of default under any Material Contract or result  in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation  or the loss of any benefit thereunder. True, correct and complete copies of each Material Contract (including  all modifications, amendments and supplements thereto and waivers thereunder) have been made available                                                                                  14  302010047 v18 





 






   to Buyer. The loss of small business status, minority-owned business status, disadvantaged business status,  protégé status, “8(a)” status or other preferential status would not result in a termination of any Material  Contract or a loss in any Company’s business relations with any customer.         Section 3.09 Title to Assets; Real Property.               (a)   The Companies do not hold a fee interest in any real property, other than as set  forth in the letter delivered by the Sellers and the Companies to Buyer as of the date of this Agreement, nor  any leasehold or other similar interest (e.g., license, sublicense, sublease, sub-sublease, etc.) in any real  property.  Subject to the  Title Exceptions and the Permitted  Encumbrances, the Companies  have  good,  marketable and insurable fee simple title to all of the real property listed or required to be listed in such  letter as owned in fee simple. The Companies have legal or equitable title to all real property, including  granted land use rights for any such land and all buildings, structures, improvements and facilities located  thereon, owned by the Companies, as applicable, or used or occupied by it (such property owned, used or  occupied by the Companies, collectively, the “Real Property”), other than as set forth in the letter delivered  by the  Sellers and the Companies to Buyer as  of the  date  of this  Agreement, subject only to the  Title  Exceptions and the Permitted Encumbrances. The Real Property has access to (A) public roads or valid  easements over private streets or private property for such ingress to and egress from such Real Property  and (B) water supply, storm and sanitary sewer facilities, telephone, gas and electrical connections, fire  protection, drainage and other public utilities, in the case of each of clauses (A) and (B), as is necessary to  comply with Law or to conduct the business of the Companies, in all material respects, as it is currently  conducted. Except as provided in Section 3.09(a) of the Disclosure Schedules, the Real Property and its  continued use, occupancy and operation as currently used, occupied and operated, does not constitute a  nonconforming use under any Law relating to building, zoning, subdivision or other land use.               (b)   The  Real  Property  is  free  and  clear  of  any  and  all  Encumbrances,  except  as  provided in Section 3.09(b) of the Disclosure Schedules and for the Title Exceptions and the Permitted  Encumbrances, which Title Exceptions and Encumbrances do not materially interfere with or impair the  operation,  function  or  efficiency  of  the  Companies’  business.  No  Company  has  assigned,  mortgaged,  transferred, or hypothecated any fee interest in any of the Real Property or leased or subleased all or any  portion of the Real Property, and no Company is a grantor under any lease, sublease, or other instrument  granting  to  any  other  Person  any  right  to  the  possession,  lease,  occupancy  or  enjoyment  of  any  Real  Property, except as provided in Section 3.09(b) of the Disclosure Schedules.                (c)   There are no, and no Company has received written notice of any, (i) assessments,  pending  or  threatened,  that  could  adversely  affect  Buyer’s  operation,  use  or  maintenance  of  the  Real  Property  from  and  after  the  Closing  Date  or  Sellers’  ability  to  perform  under  this  Agreement  or  (ii)  condemnation or eminent domain proceedings pending or threatened against the Real Property nor any  material damages to the Real Property due to fire or casualty.  There have been no adverse claims by any  Person (including adjoining property owners) or encroachments with respect to the Real Property, and the  Companies  have  made  available  to  Buyer  all  notices,  correspondence,  complaints,  pleadings  or  other  communications or documentation with respect to any such claims. Except as set forth in Section 3.09(c)  of the Disclosure Schedules, during the past five (5) years, no Company has received any written notice  from any Governmental Authority of any material violation of or non-compliance with any Law, regulation  or ruling, whether federal, state, local, or administrative which affects the Real Property, including any  building, fire safety or zoning code violations relating to the Real Property.                (d)   No Company has granted, is a party to, or is obligated under any right, option,  obligation or agreement to purchase, transfer or acquire any interest in any of the Real Property.                                                                                   15  302010047 v18 





 






               (e)   Other than as set forth in the letter delivered by the Sellers and the Companies to  Buyer as of the  date  of this  Agreement, the  Companies have  all necessary mineral rights,  surface  and  subsurface rights, water rights and rights in water, rights of way, licenses, easements, ingress, egress and  access rights, and all other rights and interests granting the Companies the exclusive right and ability to  mine, extract, remove, process, transport and market the sand and mineral reserves owned or controlled by  the  Companies,  in  the  Ordinary  Course  of  Business  (the  “Mineral  Rights”),  free  and  clear of  any  Encumbrances  (other  than  the  Permitted  Encumbrances).  Except  as  set  forth  in Section  3.09(e) of  the  Disclosure Schedules and except for the Title Exceptions and the Permitted Encumbrances, there are no  leases, subleases, licensees, concessions, rights-of-way, easements or other agreements (whether written or  oral), granting third parties the right of use or occupancy of, any Mineral Right (or the surface thereof).   There are no existing production royalties or other payments of any kind which are payable with respect to  the Mineral Rights, or any resources or anything else of value that may be mined or produced from the  Mineral Rights or the Real Property.               (f)   Section 3.09(f) of the Disclosure Schedules sets forth, as of the date hereof, all  material personal property and other material assets reflected in the Financial Statements (including leased  personal  property),  acquired  after  the  Balance  Sheet  Date,  or  located  on  the  Real  Property  other  than  personal property and assets acquired, sold or otherwise disposed of in the Ordinary Course of Business  since the Balance Sheet Date (the “Company Personal Property”). The Companies hold good, marketable  and valid title to all owned and a good, marketable and valid lease interest in all leased Company Personal  Property in their possession, free of any and all Encumbrances, except for Permitted Encumbrances, which  Permitted  Encumbrances  are  not  material  to  the  operation,  function  or  efficiency  of  the  Companies’  business.         Section 3.10 Sufficiency of Assets. The Real Property, buildings, plants, structures, furniture,  fixtures, machinery, equipment, vehicles and other items of tangible personal property of the Companies  are structurally sound, are in good operating condition and repair and are adequate for the uses to which  they are being put, and none of such buildings, plants, structures, furniture, fixtures, machinery, equipment,  vehicles and other items of tangible personal property is in need of maintenance or repairs other than those  that are not material in nature or cost or which are within the Ordinary Course of Business. The buildings,  plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal  property currently owned or leased by the Companies, together with all other properties and assets of the  Companies, all of which shall remain the property of the Companies as of and immediately following the  Closing,  other  than  the  Excluded  Assets,  are  sufficient  for  the  continued  conduct  of the  Companies’  business after the Closing in substantially the same manner as currently conducted and constitute all of the  rights, property and assets necessary to conduct the business of the Companies as currently conducted.         Section 3.11 Intellectual Property Assets.               (a)   Section 3.11(a) of the Disclosure Schedules sets forth a complete and accurate list  of all Owned Intellectual Property that is material in the conduct of the Companies’ business as currently  conducted and contemplated to be conducted as of the date hereof (the “Material Intellectual Property”).   The Companies collectively own exclusively, all right, title and interest in and to the Material Intellectual  Property, free and clear of any and all Encumbrances, except for Permitted Encumbrances, which Permitted  Encumbrances are not material to the  operation, function or efficiency of the  Companies’ business, or  otherwise have a valid and enforceable right to use, assign, convey and transfer all Material Intellectual  Property and its  subsidiaries have not and  are  not in violation of any open  source license  agreements.  Neither this Agreement nor the consummation of the transactions contemplated hereby will result, in any  manner, in the abandonment, cancellation, loss or impairment of such Material Intellectual Property or the  Companies’ rights in or to any Material Intellectual Property.                                                                                   16  302010047 v18 





 






               (b)   The activities and operations of the Companies’ business as currently conducted,  and the Material Intellectual Property, to the Knowledge of Sellers, have not and do not infringe, violate or  misappropriate any rights, including Intellectual Property rights, of any Person. No Seller nor any Company  has  received  any  written  communication,  and  no  Action  has  been  instituted,  settled  or,  to  Sellers’  Knowledge,  threatened  that  alleges  any  such  infringement,  violation  or  misappropriation.  None  of  the  Material Intellectual Property is (i) subject to any outstanding Order or any other restrictions, including  contractual,  affecting  the  use,  assignability  or  validity  of such  Material  Intellectual  Property;  or  (ii) to  Sellers’ Knowledge, no third party is  infringing, violating, or otherwise misappropriating any  Material  Intellectual Property.               (c)   Except as set forth in Section 3.11(c) of the Disclosure Schedules, no Company (i)  owns any proprietary software or (ii) is a party to any Contract pursuant to which such Company grants  rights, interests or authority to any Person with respect to any Owned Intellectual Property or Licensed  Intellectual Property.                (d)   The Companies collectively maintain reasonable and appropriate (i) data backup,  data storage, system redundancy and disaster recovery procedures, (ii) business continuation programs and  (iii) administrative, physical and technical security controls for all of their collective computer systems,  networks, hardware and infrastructure (collectively, the “IT Assets”) that are intended to safeguard such IT  Assets from the risk of business disruption arising from attacks (including virus, worm and denial-of-service  attacks), unauthorized activities of any employee, hackers or any other Person. The IT Assets have not  suffered any material failure within the past three (3) years, to Seller’s Knowledge, and are reasonably  secure against intrusion.                (e)   Each  Company  has  taken  commercially  reasonable  measures  to  protect  the  confidentiality of the Trade Secrets and any personally identifiable information (e.g., personally identifiable  information related to vendor/customer information) included in the Material Intellectual Property.                (f)   Except as set forth on Section 3.11(f) of the Disclosure Schedules, each Company  has, at all times, to Sellers’ Knowledge, complied in all material respects with applicable privacy and data  security Laws and regulations, including internal privacy policies (collectively, “Privacy Laws”) and, the  execution, delivery and performance of this Agreement complies with all such Privacy Laws. No Company  has, in the prior three (3) years, (a) received a written notice that there has been a material breach or violation  of security or unauthorized access to or unauthorized acquisition, use, loss, destruction, compromise or  disclosure  of  any  personal  information  maintained  or  stored  by  or  for  any  Company  in  violation  of  applicable Privacy Laws (a “Material Security Breach”); or (b) received a written notice from any users or  customers  of  the  internet  websites  owned, maintained  or  operated  by  or  for  any  Company  asserting  a  Material Security Breach or seeking compensation for breach or violation of a Privacy Law.         Section 3.12 Inventory;  Reserves. All  inventory  of  the  Companies,  including,  without  limitation, all raw materials, work in process, supplies, finished goods and other materials salable in the  Ordinary Course of Business, whether or not reflected in the Financial Statements, (a) was acquired and  has been maintained in the Ordinary Course of Business and (b) consists of a quality and quantity usable  and salable in the Ordinary Course of Business, except for obsolete, damaged, defective or slow-moving  items that have been written off or written down to fair market value or for which adequate reserves have  been  established.  All  such  inventory  is  owned  by  the  Companies  free  and  clear  of  any  and  all  Encumbrances, except for Permitted Encumbrances, which Permitted Encumbrances are not material to the  operation, function or efficiency of the Companies’ business, and no inventory is held on a consignment  basis. The quantities of each item of such inventory are not excessive, but are reasonable in the present  circumstances of the Companies. All such inventory of the Companies is located at the Real Property and  there is no such inventory of any Company with customers, distributors, Representatives or other Persons                                                                                  17  302010047 v18 





 






   on consignment or otherwise that could be returned to any Company for a refund of all or part of the  purchase price therefor.  Sellers have  provided or otherwise made  available to Buyer true, correct and  complete copies of any and all reports, studies, audits, records, sampling data, and other similar documents  that are in the possession or control of any Seller or any Company related to any and all sand and mineral  reserves owned or controlled by any Company.         Section 3.13 Customers and Suppliers.               (a)   Section 3.13(a)(i) of  the  Disclosure  Schedules  sets  forth,  with  respect  to  the  Companies, operating as a whole, the ten (10) largest customers of the Companies, by dollar volume, for  each  of  the  following  periods: (i)  the  fiscal  year  ended  December  31,  2017,  (ii)  the  fiscal  year  ended  December 31, 2018 and (iii) the period beginning on January 1, 2019 and ending on January 31, 2020, and  set forth opposite the name of each such customer is the volume, average selling price and dollar amount  of revenue attributable to such customer for such periods (collectively, the “Material Customers”). Except  as set forth in Section 3.13(a)(ii) of the Disclosure Schedules, since December 31, 2017, no Company has  received any written notice or, to Sellers’ Knowledge, any other communication, and has no reason to  believe that any of the Material Customers has ceased, or to Sellers’ Knowledge, intends to cease, to use  the Companies’ goods or services or to otherwise terminate or materially reduce its business relationship  with any Company.  For the avoidance of doubt, none of Sellers or the Companies makes any representation  or warranty that any Material Customer will maintain its relationship with the Companies following the  Closing.               (b)   Section 3.13(b)(i) of  the  Disclosure  Schedules  sets  forth,  with  respect  to  the  Companies, operating as a whole, the ten (10) largest vendors of the Companies, by dollar volume, for each  of the following periods: (i) the fiscal year ended December 31, 2017, (ii) the fiscal year ended December  31, 2018 and (iii) the period beginning on January 1, 2019 and ending on January 31, 2020, and set forth  opposite  the  name  of  each  such  vendor  is  the  dollar  amount  of  purchases  or  consideration  paid  or  attributable to such vendor for such periods (collectively, the “Material Suppliers”). Except as set forth in  Section 3.13(a)(ii) of the Disclosure Schedules, since December 31, 2017, no Company has received any  written notice or, to Sellers’ Knowledge, any other communication, and has no reason to believe that any  of the Material Suppliers has ceased, or, to Sellers’ Knowledge, intends to cease, to supply goods or services  to any Company or to otherwise terminate or materially reduce its business relationship with any Company.   For the avoidance of doubt, none of Sellers or the Companies makes any representation or warranty that  any Material Supplier will maintain its relationship with the Companies following the Closing.         Section 3.14 Insurance. Section 3.14 of the Disclosure Schedules sets forth a true, correct and  complete list of all current policies of, binders of, or programs covering, fire, liability, product liability,  umbrella liability, real and personal property, workers’ compensation, vehicular, directors’ and officers’  liability,  fiduciary  liability  and  other  casualty  and  property  insurance,  self-insurance  or  co-insurance  maintained  by  Sellers  or  their  Affiliates  (including  the  Companies)  relating  to  the  assets,  business,  operations,  employees,  officers,  members  or  directors  of  the  Companies  (collectively,  the  “Insurance  Policies”), including the annual premium, deductible and coverage limits for each Insurance Policy. True  and correct copies of each Insurance Policy have been made available to Buyer.  Neither the Sellers nor any  of their Affiliates (including the Companies) has received any written notice of cancellation of, premium  increase with respect to, alteration of coverage under, or non-renewal or conditional renewal of, any of such  Insurance  Policies.  All  premiums  then  currently  due  and  payable  on such  Insurance  Policies  as  of  the  Closing Date will have been paid at or prior to the Closing.  The Insurance Policies do not provide for any  retrospective premium adjustment or other experience-based liability on the part of any Company. All such  Insurance Policies (a) are valid and binding in accordance with their terms, (b) are, to Sellers’ Knowledge,  provided by carriers who are financially solvent and (c) have not been subject to any lapse in coverage.  There are no claims related to the business of the Companies pending under any such Insurance Policies as                                                                                  18  302010047 v18 





 






   to which coverage has been questioned, denied or disputed or in respect of which there is an outstanding  reservation of rights. None of Sellers or any of their Affiliates (including the Companies) is in default under,  or  has  otherwise  failed  to  comply  with,  in  any  material  respect,  any  provision  contained  in  any  such  Insurance  Policy.  To  Sellers’  Knowledge,  the  Insurance  Policies  are  of  the type  and  in  the  amounts  customarily carried by Persons conducting a business similar to the Companies.  The Insurance Policies are  sufficient for compliance with all Contracts to which any Company is a party or by which it is bound and,  to  Sellers’  Knowledge,  for  compliance  with  all  Laws.   In  connection  with  the  underwriting  of  the  Environmental Site Liability Insurance policy (the “PLL Policy” ) or any previous policy for which the  PLL Policy is a renewal thereof, Sellers and the Companies disclosed (i) all discharges, dispersals, seepages,  migrations, releases or escapes of any solid, liquid, gaseous or thermal irritant or contaminant that contained  any Emerging Contaminant into or upon land, or any structure on land, the atmosphere or any groundwater,  watercourse or body of water, in each case that were known to Sellers or any officer, director or partner of  the  Companies,  any  manager  of  the  Real  Property,  or  the  manager  or  supervisor  of  the  Companies  responsible for environmental affairs, control or compliance and (ii) all documents contained in the folder  “Project Eagle 2019>Insurance>PLL Underwriting” in the Workshare document repository maintained by  Sellers.          Section 3.15 Legal Proceedings; Orders.               (a)   Except as set forth on Section 3.15(a) of the Disclosure Schedules, there are no  Actions pending or, to Sellers’ Knowledge, threatened (i) against or by any Company, any Seller or any  Affiliate  of  any  Seller  that  challenges  or  seeks  to  prevent,  enjoin  or  otherwise  delay  the  transactions  contemplated by this Agreement and (ii) against or by any Company or affecting any Company’s properties  or assets, including the Real Property (or by or against Sellers or any Affiliate thereof and relating to any  Company). No event has occurred or circumstances exist that may give rise to, or serve as a basis for, any  such Action.               (b)   There are no outstanding Orders and no unsatisfied judgments, penalties or awards  against or affecting any Company or any Company’s properties or assets, including the Real Property (or  against any Seller or any Affiliate thereof and relating to the Companies).         Section 3.16 Compliance with Laws; Permits.               (a)   Except as set forth on Section 3.16(a) of the Disclosure Schedules, each Company  is in compliance, and for the past ten (10) years has been in compliance, in all material respects, with all  Laws and Orders applicable to it or its business, properties or assets, including the Real Property. Except  as set forth on Section 3.16(a) of the Disclosure Schedules, no Company, nor any of the executive officers  of any Company, has received during the past ten (10) years, nor, to Sellers’ Knowledge, is there any basis  for, any notice, Order, complaint or other communication from any Governmental Authority or any other  Person that any Company is not in compliance, in all material respects, with any Law or Order applicable  to it.               (b)   Except as set forth on Section 3.16(b)(i) of the Disclosure Schedules, all Permits  material to the conduct of each Companies’ business and the maintenance of the Real Property have been  obtained by such Company and are valid and in full force and effect and to Seller’s Knowledge there is no  pending Action with respect to potential loss, expiration or suspension of, any Permit. Section 3.16(b)(ii)  of the Disclosure Schedules sets forth a true, correct and complete list of all current Permits issued to each  Company, including the names of the Permits and their respective dates of issuance and expiration. No  event has occurred that, with or without notice or lapse of time or both, would, to Sellers’ Knowledge,  reasonably be expected to result in the revocation, suspension, lapse or limitation of any Permit set forth or  required to be set forth in Section 3.16(b)(ii) to the Disclosure Schedules.                                                                                   19  302010047 v18 





 






         Section 3.17 Environmental Matters.               (a)   Except as set forth on Section 3.17(a) of the Disclosure Schedules, each Company  is in compliance, and since January 1, 2007, has been in compliance, in all material respects, with (i) all  Environmental Laws and (ii) all Environmental Permits necessary for the ownership, lease, operation or  use of the business or assets, or occupation of the facilities of such Company. All such Environmental  Permits are valid and in full force and effect in accordance with all Environmental Laws, and there is no  pending Action with respect to or, to Sellers’ Knowledge, potential loss, expiration, or suspension of any  Environmental Permit. No event has occurred that, with or without notice or lapse of time or both, would,  to Sellers’ Knowledge, reasonably be expected to result in the revocation, suspension, lapse or limitation  of  any  such  Environmental  Permits.  No  Company  or  Seller  has  received  from  any  Person  any:  (i) Environmental Notice or Environmental Claim; or (ii) request for information pursuant to Environmental  Law, which, in each case, either remains pending or unresolved, or is the source of ongoing investigatory,  remedial or corrective obligations or requirements as of the Closing Date.               (b)   Except as set forth on Section 3.17(b) of the Disclosure Schedules, since January  1,  2007,  there  has  been  no  (i)  generation,  manufacture,  refinement,  transportation,  treatment,  storage,  handling,  disposal,  arrangement  for  or  permitting  for  the  disposal,  transfer,  production,  recycling  or  processing of any Hazardous Materials by any Company except in material compliance with all applicable  Environmental Laws, (ii) Release of Hazardous Materials in contravention of Environmental Law with  respect to the business or assets of any Company or any real property currently or formerly owned, operated  or leased by any Company, including the Real Property, or (iii) violation of Environmental Law or term of  any Environmental Permit by, any Seller or any Company. Except as set forth on Section 3.17(b) of the  Disclosure Schedules, no Company has retained or assumed, by contract or operation of Law, any Liabilities  of  any  other  Person  relating  to  under  Environmental  Law,  including  any  obligation  for  corrective  or  remedial action.               (c)   Except as set forth on Section 3.17(c) of the Disclosure Schedules, none of the  following  exists  at  any  real  property  or  facility  currently  or  previously  owned,  operated  or  leased  in  connection with the business of the Companies, including the Real Property: (i) under- or above-ground  storage tanks, (ii) materials or equipment containing polychlorinated biphenyls, (iii) asbestos or asbestos- containing materials in any form or (iv) landfills, surface impoundments or disposal areas.                (d)   Sellers  have  provided  or  otherwise  made  available  to  Buyer  true,  correct  and  complete  copies  of:  (i)  any  and  all  environmental  reports,  studies,  audits,  records,  sampling  data,  site  assessments, risk assessments, and other similar documents with respect to the business or assets of the  Companies or any currently or previously owned, operated or leased real property that are in the possession  or control of any Seller or any Company related to compliance with Environmental Laws, Environmental  Claims or an Environmental Notice or the Release of Hazardous Materials; and (ii) any and all material  documents  concerning  planned  or  anticipated  capital  expenditures  required  to  reduce,  offset,  limit  or  otherwise control pollution and/or emissions, manage waste or otherwise ensure compliance with current  or future Environmental Laws (including costs of remediation, pollution control equipment and operational  changes).               (e)   This Agreement and the transactions contemplated hereby will not result in any  Liabilities  for  site  investigation  or  cleanup,  or  require  the  consent  of  any  Person,  pursuant  to  any  Environmental Laws, including any so-called  “transaction-triggered”  or “responsible  property transfer”  requirements.               (f)   Notwithstanding  any  other  representation  or  warranty  in Article  III of  this  Agreement,  the  representations  and  warranties  contained  in  this Section  3.17 constitute  the  sole                                                                                  20  302010047 v18 





 






   representations  and  warranties  of  the  Companies  and  Sellers  regarding  matters  relating  to any  Environmental Law, Environmental Notice or Environmental Permit.         Section 3.18 Employee Benefit Matters.               (a)   Section 3.18(a) of the Disclosure Schedules contains a true and complete list of  each  pension,  benefit,  retirement,  executive  compensation,  profit-sharing,  deferred  compensation,  incentive, performance award, phantom equity, stock or stock-based, or other equity, change in control,  retention,  severance,  salary  continuation,  employment,  consulting,  disability,  death  benefit,  group  insurance,  hospitalization,  medical,  dental,  life,  Code  Section 125  “cafeteria”  or  “flexible”  benefit,  employee loan, educational assistance, vacation, paid time off, fringe-benefit or perk (including any benefit  or payments made to or on behalf of employees, such as gym memberships, car allowances or similar  arrangements or benefits) and other similar plan, policy, program, agreement or payroll practice (and any  amendments thereto, and including any funding mechanism therefor now in effect or required in the future  as a result of the transaction contemplated by this Agreement or otherwise), in each case whether or not  reduced to writing and whether funded or unfunded, including each “employee benefit plan” as defined in  Section 3(3)  of  ERISA,  whether  or  not  tax-qualified  and  whether  or  not  subject  to  ERISA,  that  is  maintained, sponsored, contributed to, or required to be contributed to by any Company (or, where indicated  below, any ERISA Affiliate of any Company) for the benefit of any current or former employee, leased  employee, officer, director, consultant or agent of any Company (or, where indicated below, any ERISA  Affiliate of any Company) or any spouse or dependent or other beneficiary of such individual, or under  which any Company has or may have any Liability contingent or otherwise (as listed on Section 3.18(a) of  the Disclosure Schedules, each, a “Benefit Plan”).               (b)   With respect to each Benefit Plan, Sellers have made available to Buyer accurate,  current and complete copies of each of the following, to the extent applicable: (i) where the Benefit Plan  has been reduced to writing, the most recent plan document together with all amendments thereto; (ii) where  the Benefit Plan has not been reduced to writing, Section 3.18(a) of the Disclosure Schedules sets forth an  accurate written summary of all material plan terms; (iii) any trust agreements or other funding instruments  or arrangements and all other material contracts with respect to such Benefit Plan (including all custodial  agreements, insurance policies and contracts, administration agreements, and investment management or  investment advisory agreements); (iv) the most recent summary plan description, summaries of material  modifications  and  any  other  written  communication by  any  Company  to its  employees  concerning the  extent of  the  benefits  provided  under a  Benefit  Plan;  (v) the  most recent  determination  letter  from  the  Internal Revenue Service; (vi) the three most recent Forms 5500, with schedules attached; (vii) actuarial  valuations and reports related to any Benefit Plans with respect to the most recently completed plan year;  (viii) all discrimination tests  for the  three  most  recent  plan  years;  and  (ix) all  correspondence  with the  Internal  Revenue  Service,  Department  of  Labor  (the  “DOL”)  and  any  other  Governmental  Authority  relating to the Benefit Plan.               (c)   Each  Benefit  Plan  has  been  established,  administered  and  maintained  in  all  material respects in accordance with its terms and in material compliance with all Laws (including ERISA  and the Code). With respect to each Benefit Plan, all reports, returns, notices and other documentation that  is required to have been filed with or furnished to the Internal Revenue Service, the DOL or any other  Governmental Authority, or to the participants or beneficiaries of such Benefit Plan, have been filed in or  furnished on a timely basis. Each Benefit Plan that is intended to be qualified under Section 401(a) of the  Code (a “Qualified Benefit Plan”) is so qualified and has received a favorable and current determination  letter  from  the  Internal  Revenue  Service  to  the  effect  that  such  Qualified  Benefit  Plan  satisfies  the  requirements  of  Section 401(a)  of  the  Code  and  that  its  related  trust  is  exempt from  taxation  under  Section 501(a) of the Code, and, to the Knowledge of Sellers, there are no facts or circumstances that could  reasonably be expected to cause the loss of such qualification or the imposition of any material Liability,                                                                                  21  302010047 v18 





 






   penalty or Tax under ERISA, the Code or any other Law. No individual who has performed services for  any Company has been improperly excluded from participation in any Benefit Plan. There are no audits or  proceedings initiated under the Internal Revenue Service Employee Plans Compliance Resolution System  (currently  set  forth  in  Revenue  Procedure  2013-12)  or  similar  proceedings  pending  with  the  Internal  Revenue Service or DOL with respect to any Benefit Plan.                (d)   No Company nor any of their respective ERISA Affiliates has, or has had, any  liability or obligation to contribute to any Benefit Plan  that is subject to Title IV of ERISA or related  provisions of the Code or foreign Law relating to employee benefit plans.               (e)   None  of  the  Benefit  Plans  (including  for  such  purpose  any  “employee benefit  plan,” as defined in Section 3(3) of ERISA), previously maintained or contributed to by any Company or  any  of  their  respective  ERISA  Affiliates  (i) is  a  “multiple  employer  plan”  within  the  meaning  of  Section 413(c) of the Code or a “multiple employer welfare arrangement” as defined in Section 3(40) of  ERISA; (ii) is or at any time in the past six (6) years was funded through a “welfare benefit fund” as defined  in Section 419(e) of the Code; (iii) currently provides or at any time in the past six (6) years has provided  benefits through a voluntary employee’s beneficiary association (within the meaning of Section 501(c)(9)  of the Code) or a supplemental unemployment benefit plan (within the meaning of Section 501(c)(17) of  the Code); or (iv) is a “pension plan” as defined in Section 3(2) of ERISA that is not intended to be qualified  under Section 401(a) of the Code.               (f)   Except as required by Law, no provision of any Benefit Plan could reasonably be  expected to result in any limitation on Buyer or any of its Affiliates from amending, merging or terminating  any Benefit Plan. No Company has any commitment or obligation nor has made any representations to any  employee, officer, director, manager, independent contractor or consultant, whether or not legally binding,  to  adopt,  amend  or  modify,  in  any  material  respect,  any  Benefit  Plan  or  any  Collective  Bargaining  Agreement, in connection with the consummation of the transactions contemplated by this Agreement.               (g)   Other than as required under Part 6 of Subtitle B of Title I of ERISA or other Law,  no Benefit Plan provides post-termination or retiree welfare benefits to any individual for any reason, and  no Company nor any of their respective ERISA Affiliates has any Liability to provide post-termination or  retiree welfare benefits to any individual.               (h)   Other  than  routine  claims  for  benefits,  there  is  no  pending  or,  to  Sellers’  Knowledge, contemplated or threatened Action or lien relating to any Benefit Plan.               (i)   No  Company,  nor,  to  Sellers’  Knowledge,  any  other  “party  in  interest”  or  “disqualified person” with respect to any Benefit Plan has engaged in a non-exempt “prohibited transaction”  as defined in Section 406 of ERISA or Section 4975 of the Code involving such Benefit Plan that could  reasonably be expected to subject any Company to a material Tax or penalty imposed by Section 4975 of  the Code or Section 501, 502 or 510 of ERISA. To Sellers’ Knowledge, no fiduciary has any liability for  breach of fiduciary duty or any other failure to act or comply with the requirements of ERISA, the Code or  any other Law in connection with the administration or investment of the assets of any Benefit Plan.               (j)   With  respect  to  each  Benefit  Plan  that  is  a  “group  health  plan”  as  defined  in  Section 607(1) of ERISA, each Company and each ERISA Affiliate of each Company has complied in all  material respects with the continuation coverage requirements of Part 6 of Subtitle B of Title I of ERISA  and Section 4980B of the Code.               (k)   Each Benefit Plan that is subject to Section 409A of the Code has been operated in  compliance  with  such  section  and  all  applicable  regulatory  guidance  (including  notices,  rulings  and                                                                                  22  302010047 v18 





 






   proposed and final regulations) since January 1, 2007.               (l)   Each individual who is classified by any Company as an independent contractor or  as an employee has been properly classified in all material respects for purposes of participation and benefit  accrual under each Benefit Plan. No Company has any Liability with respect to any employee leased from  another employer.               (m)   Neither the execution of this Agreement nor any of the transactions contemplated  by this Agreement will (either alone or in combination with another event): (i) entitle any current or former  director, officer, employee, independent contractor or consultant (or their respective beneficiaries) of any  Company to severance pay or any other payment; (ii) accelerate the time of payment, funding or vesting,  or increase the amount of compensation due to any such individual; (iii) increase the amount payable under  or result in any other material obligation pursuant to any Benefit Plan; or (iv) result in the payment of any  amount that  could,  individually  or  in  combination  with  any  other such  payment,  constitute  an  “excess  parachute payment” as defined in Section 280G(b)(1) of the Code. No current or former director, officer,  employee, independent contractor or consultant (or their respective beneficiaries) has or will obtain a right  to receive a gross-up payment from any Company with respect to any excise taxes that may be imposed on  such individual pursuant to Section 409A of the Code, Section 4999 of the Code or otherwise.               (n)   No Benefit Plan covers any officers or employees (or their respective beneficiaries)  of any Company outside of the United States.         Section 3.19 Employment Matters.                (a)   Section 3.19(a) of the Disclosure Schedules contains a list of all individuals who  are employees, independent contractors or consultants of each Company as of the date hereof, and sets forth  for each such individual the following: for employees (i) name; (ii) title or position (including whether full-  or part-time); (iii) hire date; (iv) current annual base compensation rate (or hourly rate); (v) exempt/non- exempt  status;  (vi)  the  amount(s)  of  commission,  bonus  or  other  incentive-based  compensation  the  individual is eligible to receive pursuant to any written agreement, or, if the individual is not party to any  such written  agreement, then  such amount(s) paid during the most recently completed  fiscal year; and  (vii) accrued unused vacation, and, for independent contractors or consultants, (i) name; (ii) description of  services;  (iii)  length  of  engagement;  (iv)  whether  the  independent  contractor  or  consultant  is  engaged  pursuant to a written agreement; (v) method of compensation; and (vi) rate of compensation. As of the date  hereof,  all  compensation,  including  wages,  commissions  and  bonuses,  due  and  payable  to  employees,  independent contractors or consultants of each Company for services performed on or prior to the date  hereof have been paid in full (or accrued in full on the balance sheet contained in the Closing Statement)  and there are no outstanding agreements, understandings or commitments of any Company with respect to  any compensation, commissions or bonuses.               (b)   (i) No Company is, nor has been for the past three (3) years, a party to, bound by  or otherwise subject to any collective bargaining agreement, works council agreement, labor union contract,  trade  union  agreement  or  other  similar  agreement  or  other  Contract  (each,  a  “Collective  Bargaining  Agreement”) with a union, works council or labor organization (each, a “Union”); (ii) as of the date hereof,  no Collective Bargaining Agreement is being negotiated by any Company; (iii) there is not, and has not  been for the past three (3) years, any Union representing or purporting to represent any employee of any  Company, and, to Sellers’ Knowledge, no Union or group of employees is seeking or has sought to organize  employees for the purpose of collective bargaining, made a demand for recognition or certification, sought  to  bargain  collectively  with  any  Company  or  filed  a  petition  for  recognition  with  any  Governmental  Authority; and (iv) there has not been during the past three (3) years, nor to the Knowledge of Sellers has  there been during the past three (3) years any threat of, any strike, slowdown, work stoppage, lockout,                                                                                  23  302010047 v18 





 






   boycott,  handbilling,  picketing,  walkout,  demonstration,  leafleting,  sit-in,  sick-out,  material  grievance,  concerted refusal to work overtime or other collective bargaining form of organized protest dispute, and no  such action is pending or, to Sellers’ Knowledge, threatened. No consent, approval, declaration or filing  with or notice to a Union is required by Law, pursuant to any Collective Bargaining Agreement or pursuant  to any other Material Contract in connection with the execution and delivery of this Agreement and the  other Transaction Documents and the consummation of the transactions contemplated hereby and thereby.                (c)   Except  as  set  forth  on Section 3.19(c) of  the  Disclosure  Schedules,  (i) each  Company is, and has been for the past six (6) years, in compliance in all material respects with all applicable  Laws relating to the employment of labor, including provisions thereof relating to wages, hours, equal  employment  opportunity,  employment practices,  the  hiring,  promotion,  assignment  and  termination  of  employees,  discrimination,  disability,  labor  relations,  hours  of  work,  payment  of  wages,  immigration,  workers’ compensation, employee benefits, working conditions, occupational safety and health, family and  medical leave, data privacy, data protections and collective bargaining; (ii) within the past six (6) years,  each person or entity classified by any Company as an “independent contractor,” consultant, volunteer,  subcontractor, “temp,” leased employee or other contingent worker is and has been properly classified under  all governing Laws, and each Company has fully and accurately reported all payments to all independent  contractors and other contingent workers on Internal Revenue Service Form 1099s or as otherwise required  by Laws; (iii) within the past six (6) years, each employee classified as “exempt” from overtime under the  Fair Labor Standards Act (“FLSA”) and any state laws governing wages, hours and overtime pay has been  properly classified as such, and no Company has incurred any liabilities under the FLSA or any state wage  and hour laws; (iv) within the past six (6) years, each employee not subject to the FLSA has been properly  categorized according to Law, and has been paid overtime wages consistent with Law; (v) there are no  workers’ compensation claims pending against any Company; (vi) to the Sellers’ Knowledge, no employee  of any Company is subject to any secrecy or noncompetition agreement or any other agreement or restriction  of any kind that would impede in any way the ability of such employee to carry out fully all activities of  such employee in furtherance of Buyer’s operation of the Companies’ business after Closing; (vii) each of  the employees of each Company has all work permits, immigration permits, visas or other authorizations  required by law for such employee given the duties and nature of such employee’s employment; (viii) all  employees  of  each  Company  are  legally  employed,  and  each  Company  is  in  compliance  with  all  requirements of the Immigration and Reform Control Act of 1986, except to the extent that failure to so  comply  would  not  have,  individually  or  in  the  aggregate,  a  Material  Adverse  Effect;  (ix) there  are  no  pending  or,  to  the  Sellers’  Knowledge,  threatened  lawsuits,  grievances,  unfair  labor  practice  charges,  arbitrations, charges, investigations, hearings, actions, claims or proceedings (including any administrative  investigations, charges, claims, actions or proceedings), against any Company brought by or on behalf of  any  applicant  for  employment,  any  current  or  former  employee,  representative,  agent,  consultant,  independent contractor, subcontractor or any leased employee, volunteer or “temp” of any Company, or  any group or class of any of the foregoing, in each case in connection with his or her affiliation with, or the  performance of his, her or their duties to, any Company, any person alleging to be a current or former  employee,  or  any  group  or  class  of  any  of  the  foregoing,  or  any  Governmental  Authority,  or  alleging  violation of any labor or employment laws, breach of any Collective Bargaining Agreement, breach of any  express  or  implied  contract  of  employment,  wrongful  termination  of  employment  or  any  other  discriminatory,  wrongful  or  tortious  conduct  in  connection  with  the  employment  relationship;  (x) no  individual has been improperly excluded from, or wrongly denied benefits under, any Benefit Plan; and  (xi) each Company is in material compliance with the terms of the Collective Bargaining Agreements and  other Contracts listed on Section 3.19(c) of the Disclosure Schedules.                (d)   Within the past six (6) years, no Company has failed to provide advance notice of  layoffs or terminations as required by the WARN Act or any state or local Laws, or any Law for employees  outside the United States, regarding the termination or layoff of employees, and no Company has incurred  any liability or obligation under the WARN Act or any such other laws.                                                                                  24  302010047 v18 





 






         Section 3.20 Taxes.                (a)   All  Tax  Returns  required  to  be  filed  on  or  before  the  Closing  Date  by  each  Company have been, or will be, timely filed with the requisite Governmental Authority. Such Tax Returns  are, or will be, true, complete  and correct in all respects. All Taxes due and owing by each  Company  (whether or not shown on any Tax Return) have been, or will be, timely paid.               (b)   Each Company has withheld and paid all Taxes required to have been withheld  and paid in connection with amounts paid or owing to any employee, independent contractor, creditor,  customer, shareholder, member  or  other  party, and  has filed  (or  caused to  be  filed) all associated  Tax  Returns and has complied with all backup withholding provisions of Law.               (c)   No claim has been made by any Governmental Authority in any jurisdiction to the  effect that any Company did not file a Tax Return that it was required to file or pay a type of Tax that it  was required to pay. No extensions or waivers of statutes of limitations have been given or requested with  respect to any Taxes of any Company.  No power of attorney has been executed by or on behalf of any  Company with respect to Taxes that is currently in force.               (d)   At all times since inception, (i) each Company other than MPD LLC (collectively,  the “S Corporations”) has validly elected and consistently been treated as an “S corporation” within the  meaning of Code Section 1361(a) and has validly and consistently been treated in a similar manner for  purposes  of  the  income  tax  laws  of  all  states  in  which  it  has  been  subject  to  taxation.  None  of  the  S  Corporations has taken any position on any Tax return nor has there been any act or omission by any Person  that could form the basis for any revocation, termination or invalidity of such S Corporation’s S corporation  status. None of the S corporations is subject to the Tax under Section 1374 of the Code. No S Corporation  has in the past ten (10) years (i) acquired assets from another Person in a transaction in which the Tax basis  of the acquired assets was determined, in whole or in part, by reference to the Tax basis of the acquired  assets (or any other property) in the hands of the transferor; or (ii) acquired the stock of any Person that is  a “qualified subchapter S subsidiary” within the meaning of Section 1361(b)(3)(B) of the Code (a “Qsub”).               (e)   MPD LLC is taxed as partnership for U.S. federal income tax purposes.                (f)   The amount of each Company’s Liability for unpaid Taxes for all periods ending  on  or  before  December  31,  2019  does  not, in  the  aggregate,  exceed the  amount  of accruals  for  Taxes  (excluding  reserves  for  deferred  Taxes)  reflected  on  the  Financial  Statements.  The  amount  of  each  Company’s Liability for unpaid Taxes for all periods following the end of the recent period covered by the  Financial  Statements  shall  not,  in  the  aggregate,  exceed  the  amount  of  accruals  for  Taxes  (excluding  reserves for deferred Taxes) as adjusted for the passage of time in accordance with the past custom and  practice of such Company.               (g)   Section 3.20(g) of the Disclosure Schedules sets forth:                     (i)   the taxable years of each Company as to which the applicable statutes of        limitations on the assessment and collection of Taxes have not expired;                     (ii)  those  years  for  which  examinations  by  Governmental  Authorities  have        been completed; and                     (iii) those taxable years for which examinations by Governmental Authorities        are presently being conducted.                                                                                   25  302010047 v18 





 






               (h)   All deficiencies asserted, or assessments made, against any Company as a result of  any examinations by any Governmental Authority have been fully paid.               (i)   No Company is a party to any Tax dispute by any Governmental Authority. There  is no pending or threatened Tax dispute against any Company by any Governmental Authority.               (j)   Sellers have delivered or made available to Buyer true, correct and complete copies  of all Tax Returns, examination reports and statements of deficiencies assessed against, or agreed to by,  each Company for all Tax periods ending in the last three fiscal years.               (k)   There are no Encumbrances for Taxes (other than for current Taxes not yet due  and payable) upon the assets of any Company.               (l)   No Company is a party to, or bound by, (i) any Tax indemnity, Tax-sharing, Tax  allocation  or  similar  agreement  or  (ii)  any  closing  agreement,  gain  recognition  agreement,  offer  in  compromise  or  any  other  agreement  with  any  Governmental  Authority  with  respect  to  Taxes  of  any  Company. No private letter rulings, technical advice memoranda or similar rulings have been requested,  entered into or issued by any Governmental Authority with respect to Taxes of any Company.               (m)   For United States federal Tax purposes, no Company has been a member of an  affiliated, combined, consolidated or unitary Tax group. No Company has Liability for Taxes of any Person  under Treasury Regulations Section 1.1502-6 (or any corresponding provision of state, local or foreign  Law), as transferee or successor, by contract or otherwise.               (n)   No Company has agreed to make, nor is required to make, any adjustment under  Sections 481(a) or 263A of the Code or any comparable provision of state, local or foreign Tax Laws by  reason of a change in accounting method or otherwise. No Company has taken any action that could defer  a Liability for Taxes of any Company from any Pre-Closing Tax Period to any Post-Closing Tax Period.               (o)   No  Seller  is  a  “foreign  person”  as  that  term  is  used  in  Treasury  Regulations  Section 1.1445-2.                (p)   No  Company  has  been  (i)  a  party  to  any  joint  venture,  partnership  or  other  arrangement  of  contract  that  could  be  treated  as  a  partnership  for  federal  income  Tax  purposes;  (ii)  a  “distributing  corporation”  or  a  “controlled  corporation”  in  connection  with  a  distribution  described  in  Section 355 of the Code; or (iii) a personal holding company under Section 542 of the Code.               (q)   No  Company  has  (i)  taken  a  reporting  position  on  a  Tax  Return  that,  if  not  sustained, would be reasonably likely to give rise to a penalty for substantial understatement of federal  income Tax under Section 6662 (or any similar provision of state, local or foreign Tax law), without regard  to the disclosure thereof, or (ii) engaged in any transaction that would constitute a “reportable transaction”  within the meaning of Section 6707A(c)(1) of the Code and Treasury Regulations Section 1.6011-4(b).               (r)   None of the assets of any Company is property that such Company is required to  treat as being owned by any other person pursuant to the so-called “safe harbor lease” provisions of former  Section 168(f)(8) of the Internal Revenue Code of 1954, as amended.         Section 3.21 Product Warranties. Section 3.21 of the Disclosure Schedules sets forth all the  terms and conditions of any product or service express warranties given by any Company. The aggregate  amount of Losses incurred by reason of allowances, customer dissatisfaction or Liabilities arising under  such  warranties  and  guarantees  did  not  exceed  the  lesser  of  ten  percent  (10%)  of  the  applicable                                                                                  26  302010047 v18 





 






   consideration received with respect to any applicable purchase order and $5,000.00 per purchase order  during any of the five (5) years preceding the date hereof.         Section 3.22 Performance Bonds. Section 3.22 of the Disclosure Schedules sets forth a true,  correct  and  complete  list  of  (a)  all  Contracts  for  which,  or  legal  requirements  pursuant  to  which,  any  Company has, or is required to provide, performance or surety bonds or similar instruments, (b) the amount  of such bonds, (c) the Person issuing such bonds, and (d) each such bond number (such bonds referenced  thereon collectively, the “Performance Bonds”). Section 3.22 of the Disclosure Schedules further identifies  all payments, if any, that have been made during the five (5) years preceding the date hereof under any  Performance Bond.         Section 3.23 Accounts with Banks and Brokerages; Powers of Attorney. Section 3.23 of the  Disclosure Schedules sets forth a true, correct and complete list of (a) the name of each financial institution  or brokerage firm in which each Company has accounts or safe deposit boxes, (b) the names in which the  accounts or boxes are held, (c) the type of account and (d) the name of each Person authorized to draw  thereon or have access thereto. No Person holds a general or special power of attorney from any Company.         Section 3.24 Absence of Certain Business Practices. No Company, no Seller nor any of their  respective Affiliates has directly or indirectly made any contribution, gift, bribe, rebate, payoff, influence  payment, kickback, or other payment to any Person, private or public, regardless of form, whether in money,  property or services (a) to obtain favorable treatment in securing business for any Company in violation of  Law, (b) to pay for favorable treatment for business secured by any Company in violation of Law, or (c) to  obtain special concessions or for special concessions already obtained, in each case for the benefit of any  Company in violation of Law.         Section 3.25 Affiliate  Interests.  Except  as  set  forth  on Section 3.25 of  the  Disclosure  Schedules, no Related Party of any Company: (a) owns or has owned, directly or indirectly, any equity or  other  financial  or  voting  interest  in  any  competitor,  supplier,  licensor,  lessor,  distributor,  independent  contractor or customer of any Company or the Companies’ business (including any Material Customer or  Material Supplier); (b) owns or has owned, directly or indirectly, or has or has had any interest in any  property (real or personal, tangible or intangible) that any Company or the Companies’ business uses or has  used in or pertaining to the business of the Companies; (c) has or has had any business dealings or a financial  interest  in  any  transaction  with  any  Company  or  the  Companies’  business  or  involving  any  assets  or  property of any Company or the Companies’ business; or (d) is or has been employed by any Company  (such matters set forth on or required to be set forth on Section 3.08(a)(xv) or Section 3.25 of the Disclosure  Schedules, the “Related Party Matters”).          Section 3.26 Capital Expenditures. Section 3.26 of the Disclosure Schedules sets forth a true,  correct and complete copy of the Companies’ capital expenditure budget, which budget sets forth the total  amount of capital expenditures currently budgeted to be incurred by the Companies in excess of $50,000 in  the aggregate on any project or series of related projects, during the balance of the Companies’ current  fiscal year.         Section 3.27 Indebtedness. Except as set forth on Section 3.27 of the Disclosure Schedules, no  Company has any Indebtedness (any Indebtedness set forth, or required to be set forth on, in Section 3.27  of the Disclosure Schedule, “Company Indebtedness”).         Section 3.28 Brokers.  No  broker,  finder  or  investment  banker  is  entitled  to  any  brokerage,  finder’s or other fee or commission in connection with the transactions contemplated by this Agreement or  any other Transaction Document based upon arrangements made by or on behalf of any Company.                                                                                   27  302010047 v18 





 






         Section 3.29 Full Disclosure. No representation or warranty by Sellers in this Agreement, as  modified by the Disclosure Schedules, contains any untrue statement of a material fact, or omits to state a  material fact necessary to make the statements contained therein, in light of the circumstances in which they  are made, not misleading.                                    ARTICLE IV            REPRESENTATIONS AND WARRANTIES REGARDING SELLERS         Each Seller, severally and not jointly, represents and warrants to Buyer as follows:         Section 4.01 Authority of Seller. Such Seller has full power and authority to enter into this  Agreement and the other Transaction Documents to which such Seller is a party, to carry out its obligations  hereunder  and  thereunder  and  to  consummate  the  transactions  contemplated  hereby  and  thereby.  The  execution and delivery by such Seller of this Agreement and any other Transaction Document to which  such Seller is a party, the performance by such Seller of its obligations hereunder and thereunder and the  consummation  by  such  Seller  of  the  transactions  contemplated  hereby  and  thereby  have  been  duly  authorized by all requisite action on the part of such Seller. This Agreement has been duly executed and  delivered  by  such  Seller,  and  (assuming  due  authorization,  execution  and delivery  by  Buyer)  this  Agreement constitutes a legal, valid and binding obligation of such Seller enforceable against such Seller  in  accordance  with  its  terms,  except  that  (a) such  enforcement  may  be  subject  to  any  bankruptcy,  insolvency,  reorganization, moratorium,  fraudulent  transfer  or  other  laws,  now  or  hereafter  in  effect,  relating to or limiting creditors’ rights generally and (b) the remedy of specific performance and injunctive  and other forms of equitable relief, may be subject to equitable defenses and to the discretion of the court  before which any proceeding therefor may be brought. When each other Transaction Document to which  such  Seller  is  or  will  be  a  party  has  been  duly  executed  and  delivered  by  such  Seller  (assuming  due  authorization,  execution  and  delivery  by  each  other  party  thereto),  such  Transaction  Document  will  constitute a legal and binding obligation of such Seller enforceable against it in accordance with its terms,  except that (i) such enforcement may be subject to any bankruptcy, insolvency, reorganization, moratorium,  fraudulent transfer or other laws, now or hereafter in effect, relating to or limiting creditors’ rights generally  and (ii) the remedy of specific performance and injunctive and other forms of equitable relief, may be  subject to equitable defenses and to the discretion of the court before which any proceeding therefor may  be brought.         Section 4.02 Title to Securities. Such Seller has good and marketable title to and is the legal  and beneficial owner of the Securities described on Exhibit A as being owned by such Seller, free and clear  of any and all Encumbrances, and such Seller has the right, authority and power to sell, assign and transfer  such Securities pursuant to this Agreement and the other Transaction Documents. Upon delivery to Buyer  of certificates for such Securities at the Closing, Buyer shall acquire good, valid and marketable title to  such Securities, free and clear of any and all Encumbrances other than Encumbrances created by Buyer on  or after the Closing.         Section 4.03 No Conflicts. Except as set forth on Section 4.03 of the Disclosure Schedules, the  execution, delivery and performance by such Seller of this Agreement and the other Transaction Documents  to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not  and will not: (a) conflict with or result in a violation or breach of, or default under, any provision of the  Organizational Documents of such Seller; (b) conflict with or result in a violation or breach of any provision  of any Law or Order applicable to such Seller; or (c) require the consent, notice or other action by any  Person under, conflict with, result in a violation or breach of, constitute a default or an event that, with or  without notice or lapse of time or both, would constitute a default under, result in the acceleration of or  create in any party the right to accelerate, terminate, modify or cancel any Contract to which such Seller is  a party. No consent, approval, Permit, Order, declaration or filing with or notice to any Governmental                                                                                  28  302010047 v18 





 






   Authority is required by or with respect to such Seller in connection with the execution and delivery of this  Agreement and the other Transaction Documents and the consummation of the transactions contemplated  hereby and thereby.          Section 4.04 Brokers. No  broker,  finder  or  investment  banker  is  entitled  to  any  brokerage,  finder’s or other fee or commission in connection with the transactions contemplated by this Agreement or  any other Transaction Document based upon arrangements made by or on behalf of the Sellers or any of  their Affiliates.         Section 4.05 Legal Proceedings. There are no Actions pending or, to the Knowledge of Sellers,  threatened against or by any Seller or any Affiliate of any Seller that challenge or seek to prevent, enjoin or  otherwise delay the transactions contemplated by this Agreement. No event has occurred or circumstances  exist that may give rise or serve as a basis for any such Action.         Section 4.06 Tax Matters. No Seller has taken any position on any Tax return nor has there  been any act or omission by any Person that could form the basis for any revocation or invalidity of any S  Corporation’s S corporation status.  Each Seller has filed all Tax Returns on a basis consistent with the  Forms K-1 issued by each Company to such Seller and has paid all Taxes attributable to the ownership and  operation of the business conducted by each Company.         Section 4.07 Disclaimer.  THE  REPRESENTATIONS  AND  WARRANTIES  SET  FORTH  HEREIN  ARE  IN  LIEU  OF  ALL  OTHER  REPRESENTATIONS  AND  WARRANTIES,  WHETHER  STATUTORY,  WRITTEN  OR  ORAL,  EXPRESS  OR  IMPLIED,  INCLUDING  WITHOUT  LIMITATION,  IMPLIED  WARRANTIES  OF  MERCHANTABILITY  AND  FITNESS  FOR  A  PARTICULAR  PURPOSE  AND  NON-INFRINGEMENT,  AND  WARRANTIES  ARISING  FROM  COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.   In particular, without limiting the foregoing disclaimer, neither the Companies or Sellers nor any other  Person makes or has made any representation or warranty to Buyer, any of its Affiliates or Representatives  with respect to any financial projection, forecast, estimate, budget or prospect information relating to any  Company or their respective businesses.                                    ARTICLE V                  REPRESENTATIONS AND WARRANTIES OF BUYER         Buyer represents and warrants to Sellers as follows:         Section 5.01 Organization and Authority of Buyer. Buyer is a corporation duly organized,  validly existing and in good standing under the Laws of the State of Delaware. Buyer has full corporate  power and authority to enter into this Agreement and the other Transaction Documents to which Buyer is a  party,  to  carry  out  its  obligations  hereunder  and  thereunder  and  to  consummate  the  transactions  contemplated hereby and thereby. The execution and delivery by Buyer of this Agreement and any other  Transaction Document to which Buyer is a party, the performance by Buyer of its obligations hereunder  and thereunder and the consummation by Buyer of the transactions contemplated hereby and thereby have  been duly authorized by all requisite corporate action on the part of Buyer. This Agreement has been duly  executed and delivered by Buyer, and (assuming due authorization, execution and delivery by each Seller  and each Company) this Agreement constitutes a legal, valid and binding obligation of Buyer enforceable  against  Buyer  in  accordance  with  its  terms,  except  that  (a) such  enforcement  may  be  subject  to  any  bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other laws, now or hereafter in  effect, relating to or limiting creditors’ rights generally and (b) the remedy of specific performance and  injunctive and other forms of equitable relief, may be subject to equitable defenses and to the discretion of  the court before which any proceeding therefor may be brought. When each other Transaction Document                                                                                  29  302010047 v18 





 






   to  which  Buyer  is  or  will  be  a  party  has  been  duly  executed  and  delivered by  Buyer  (assuming  due  authorization,  execution  and  delivery  by  each  other  party  thereto),  such  Transaction  Document  will  constitute a legal and binding obligation of Buyer enforceable against it in accordance with its terms, except  that  (a) such  enforcement  may  be  subject  to  any  bankruptcy,  insolvency,  reorganization,  moratorium,  fraudulent transfer or other laws, now or hereafter in effect, relating to or limiting creditors’ rights generally  and  (b) the remedy of specific performance and injunctive and  other forms of equitable relief, may be  subject to equitable defenses and to the discretion of the court before which any proceeding therefor may  be brought.         Section 5.02 No Conflicts; Consents. The execution, delivery and performance by Buyer of  this Agreement and the other Transaction Documents to which it is a party, and the consummation of the  transactions contemplated hereby and thereby, do not and will not: (a) conflict with or result in a violation  or breach of, or default under, any provision of the Organizational Documents of Buyer; (b) conflict with  or result in a violation or breach of any provision of any Law or Order applicable to Buyer; or (c) require  the consent, notice or other action by any Person under, conflict with, result in a violation or breach of,  constitute a default or an event that, with or without notice or lapse of time or both, would constitute a  default under, result in the acceleration of or create in any party the right to accelerate, terminate, modify  or cancel any Contract to which such Buyer is a party. No consent, approval, Permit, Order, declaration or  filing with or notice to any Governmental Authority is required by or with respect to Buyer in connection  with  the  execution  and  delivery  of  this  Agreement  and  the  other  Transaction  Documents  and  the  consummation of the transactions contemplated hereby and thereby.         Section 5.03 Brokers.  No  broker,  finder  or  investment  banker  is  entitled  to  any  brokerage,  finder’s or other fee or commission in connection with the transactions contemplated by this Agreement or  any other Transaction Document based upon arrangements made by or on behalf of Buyer.         Section 5.04 Legal  Proceedings.  There  are  no  Actions  pending  or,  to  Buyer’s  knowledge,  threatened  against  or  by  Buyer  or  any  Affiliate  of  Buyer  that  challenge  or  seek  to  prevent,  enjoin  or  otherwise delay the transactions contemplated by this Agreement. No event has occurred or circumstances  exist that may give rise or serve as a basis for any such Action.         Section 5.05 Investment Purpose.  Buyer is acquiring the Securities solely for its own account  for investment purposes and not with a view to, or for offer or sale in connection with, any distribution  thereof. Buyer acknowledges that the Securities are not registered under the Securities Act of 1933, as  amended, or any state securities laws, and that the Securities may not be transferred or sold except pursuant  to  the  registration  provisions  of  the  Securities  Act  of  1933,  as  amended  or  pursuant  to  an  applicable  exemption therefrom and subject to state securities laws and regulations, as applicable.  Buyer has such  knowledge and experience in financial and business matters that it is capable of evaluating the merits and  risks of the transactions contemplated by this Agreement.  Buyer acknowledges that Sellers have made  available to Buyer and its Representatives the opportunity to ask questions of Representatives of Sellers, to  engage in due diligence, to visit the Real Property, and to request information about the business, assets  and financial condition of the Companies.  Notwithstanding the foregoing, Sellers acknowledge that Buyer  has relied on the representations and warranties of Sellers and the Company herein and the other terms of  this Agreement in connection with its execution and delivery of this Agreement and its evaluation of the  transactions  contemplated  hereby. Buyer specifically  acknowledges  that,  except  as  expressly  set  forth  herein, no representation or warranty has been made, and that Buyer has not relied on any representation or  warranty other than those expressly set forth herein, including any representations or warranties as to the  accuracy of any projections, estimates or budgets, future revenues, future results from operations, future  cash flows, the future condition of the Companies, Real Property, personal property, or any assets of the  Companies.                                                                                   30  302010047 v18 





 






                                    ARTICLE VI                                   COVENANTS         Section 6.01 Confidentiality. The Confidentiality Agreement and the obligations of the parties  thereunder shall terminate on the Closing.  For the avoidance of doubt, the fact that this Agreement has  been entered into between the parties, and the terms and conditions hereof, (a) shall be subject to the terms  of the Confidentiality Agreement, and (b) Sellers shall, and shall cause each of their Affiliates (including,  prior to the Closing, the Companies) to, hold, and shall use their reasonable best efforts to cause their  Representatives to hold, in confidence and not disclose, directly or indirectly, such matters, in each case  except as disclosure hereof and thereof is expressly contemplated and permitted pursuant to the terms and  conditions  of this  Agreement.  From and after the  Closing, Sellers shall, and shall cause each of their  Affiliates to, hold, and shall use their reasonable best efforts to cause their Representatives to hold, in  confidence  and  not  disclose,  directly  or  indirectly,  any  and  all  information,  whether  written  or  oral,  concerning the Companies, including any and all Trade Secrets, proprietary information, and confidential  information of the Companies, except to the extent that Sellers can show that such information is or becomes  publicly available through no fault of Sellers or any of their respective Affiliates or Representatives, or to  the extent necessary in connection with providing continuing services to the Companies, in each case, at  and in accordance with the request of the applicable Company. If a Seller or any of his or her Affiliates or  Representatives are compelled to disclose any such information by judicial or administrative process or by  other requirements of Law, such Seller shall promptly notify Buyer in writing and shall disclose only that  portion of such information that such Seller or his or her respective Affiliates or Representatives are advised  by their counsel in writing is legally required to be disclosed; provided, however, that such Seller shall use,  and cause his or her respective Affiliates and Representatives to use, reasonable best efforts to obtain an  appropriate protective order or other reasonable assurance that confidential treatment will be accorded such  information, at the cost and expense of Buyer.         Section 6.02 Non-competition; Non-solicitation.                (a)   Each  Seller acknowledges the  highly competitive  nature of the  business  of the  Companies.  In connection with  the  sale  of  all  of its Securities, including the  Companies’  goodwill, in  exchange for good and valuable consideration offered to such Seller for its Securities, for a period of five  (5) years commencing on the Closing Date (the “Restricted Period”), each of the Sellers (collectively, the  “Non-Compete Parties”) agrees that he or she shall not, and shall not permit any of his or her Affiliates to,  directly or indirectly, whether acting alone or as a partner, shareholder, member joint venture, equity or  security holder, officer, director, employee, principal, agent, trustee, consultant, independent contractor or  lender  (other  than  in  connection  with  providing  services  to  any  Company  or  other  Affiliate  of  Buyer,  including any entity acquired by any Company or Buyer or its Affiliates after Closing, in each case, at and  in accordance with the request of such Company), (i) engage in or assist others in engaging in the Restricted  Business in the Territory; (ii) have an interest in any Person that engages, directly or indirectly, in the  Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, joint  venture,  equity  or  security  holder,  officer,  director,  employee,  principal,  agent,  trustee,  consultant,  independent contractor or lender; or (iii) intentionally interfere in any material respect with the business  relationships (whether formed prior to or after the date of this Agreement) between any Company and any  customers or suppliers of such Company. Notwithstanding the foregoing, each of the Non-Compete Parties  and their Affiliates may own, directly or indirectly, solely as an investment, securities of any Person traded  on any national securities exchange only if such Non-Compete Party or Affiliate is not a controlling Person  of, or a member of a group which controls, such Person and does not, directly or indirectly, own 1% or  more of any class of securities of such Person.                (b)   During the  Restricted  Period, the Non-Compete Parties shall not, and shall not  permit any of its Affiliates to, directly or indirectly, for themselves or another, solicit for employment any                                                                                  31  302010047 v18 





 






   current or former employee, contractor, or consultant of any Company, encourage any such employee,  contractor, or consultant to leave such employment or contract period with Buyer or its Affiliates, or hire,  retain, or otherwise utilize the services of (whether as an employee, consultant, volunteer or otherwise) any  such employee, contractor, or consultant so solicited or encouraged, except pursuant to a general solicitation  that is not directed specifically to any such employees, contractors, or consultants; provided, however, that  nothing  in  this Section 6.02(b) shall  prevent  the  Non-Compete  Parties  or  any  of  their  Affiliates  from  soliciting (i) after six months any employee whose employment or contract has been terminated by the  applicable Company or Buyer, (ii) after six months from the date of termination of employment or contract  period, any employee, contractor, or consultant whose employment or contract has been terminated by the  employee, contractor, or consultant or (iii) the individual set forth in Section 6.02(b) of the Disclosure  Schedules.               (c)   During the  Restricted  Period, the Non-Compete Parties shall not, and shall not  permit any of its Affiliates to, directly or indirectly, for themselves or on behalf of another, solicit or entice,  or attempt to solicit or entice, any Person that (i) was on the Closing Date a client or customer of any  Company, (ii) is a Material Customer, (iii) to the Knowledge of such Seller is, on the Closing Date, or has  been within one year prior to that time, a client or customer of any Company or potential client or customer  of any Company, or (iv) to the Knowledge of such Seller is, on the Closing Date, or has been within one  year prior to that time, actively solicited by any Company to become a client or customer of any Company,  with the intent of diverting their business or services from any Company, including by requesting, advising  or inducing such Person to withdraw, curtail or cancel, or engage in other activity that could adversely  affect, the relationship such Person has with any Company.               (d)   The Non-Compete Parties acknowledge and agree (i) that the provisions of, and  Sellers’ obligations under, Section 6.01 and Section 6.02 are reasonable in scope and necessary for the  protection of Buyer and its legitimate business interests, and constitute a material inducement to Buyer to  enter into this Agreement and consummate the transactions contemplated by this Agreement, (ii) that any  of the Non-Compete Parties’ breach or threatened breach of any provision or obligation in this Section 6.01  or Section 6.02 would give rise to irreparable harm to Buyer for which monetary damages would not be an  adequate remedy, and (iii) that Buyer shall be entitled to seek and obtain, in addition to any and all other  rights  and  remedies  that may  be  available  to it in respect  of  such breach, equitable  relief, including  a  temporary restraining order, an injunction, specific performance and any other relief that may be available  from  a  court  of  competent  jurisdiction,  to  prevent  and/or  remedy  such  a  breach  or threatened  breach  (without first having to demonstrate any actual damage, post any bond or furnish any other security interest  thereof). In any proceeding for an injunction and upon any motion for a temporary or permanent injunction,  Buyer’s right to receive monetary damages shall not be a bar, or be interposed as a defense, to the granting  of such relief. Buyer’s right to injunctive relief is in addition to, and not in lieu of, any other rights and  remedies available to it or them under law or in equity.  Each Non-Compete Party agrees that the provisions  of this Section 6.01 and Section 6.02 shall be assignable to and enforceable by any successor to or assignee  of Buyer, the Companies or the business of the Companies.               (e)   In the event that any covenant contained in Section 6.01 or Section 6.02 should  ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by  Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant  shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or  other limitations permitted by Law. The covenants contained in Section 6.01 and Section 6.02 and each  provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of  any  such  covenant or  provision  as  written  shall  not  invalidate  or  render  unenforceable  the  remaining  covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not  invalidate or render unenforceable such covenant or provision in any other jurisdiction.                                                                                   32  302010047 v18 





 






               (f)   If any Non-Compete Party or any Affiliate of any Non-Compete Party violates this  Section 6.02, then the period of time during which the provisions thereof are applicable will automatically  be extended for a period of time equal to the time that such violation began until such violation permanently  ceases  as  (i) agreed  to  between  any  such  breaching  Non-Compete  Party  or  any  Affiliate  of  any  Non- Compete Party and Buyer, or (ii) as finally determined by a court of competent jurisdiction.         Section 6.03 Governmental Approvals and Consents.               (a)   If any consent, approval or authorization necessary to preserve any right or benefit  under any Contract to which any Company is a party is not obtained prior to the Closing, Sellers shall,  subsequent to the Closing, cooperate with Buyer and the Companies in attempting to obtain such consent,  approval or authorization as promptly thereafter as practicable. If such consent, approval or authorization  cannot be obtained, Sellers shall use their reasonable best efforts to provide the Companies with the rights  and benefits of the affected Contract for the term thereof, and, if Sellers provide such rights and benefits,  the applicable Company shall assume all obligations and burdens thereunder.               (b)   Sellers shall use their commercially reasonable efforts to obtain or provide, at the  earliest practicable date as determined by Sellers and Buyer, each consent, waiver, approval, Order, Permit  (including any Environmental Permit) or authorization of, or declaration or filing with, or notification to,  any Governmental Authority required or necessary pursuant to any Material Contract, Permit, or applicable  Law, including any Environmental Law, Environmental Notice, or Environmental Permit (whether with or  without notice or lapse of time or both) applicable to any Company, any Real Property, or any assets,  business  or  operations  with  respect  thereto  in  connection  with,  as  a  result  of  or  arising  from the  consummation of the transactions contemplated by this Agreement or the Transaction Documents (any such  consent,  waiver,  approval,  Order,  Permit  (including any  Environmental  Permit)  or  authorization  of,  or  declaration or filing with, or notification to, any Governmental Authority not obtained prior to the Closing,  the “Outstanding Consents”); provided, however, that any Losses arising in connection with the failure to  obtain or provide an Outstanding Consent shall be and is agreed to constitute an Excluded Item and Loss  indemnifiable pursuant to Section 8.02(h); provided further, that for the avoidance of doubt, any approvals  or clearances under the HSR Act shall not constitute Outstanding Consents.  The parties hereto agree that  they will keep the other parties apprised in a timely manner of the status of matters referred to in this Section  6.03 and,  to  the  extent  permitted  by  Law,  promptly  furnish  the  others  with  copies  of  notices  or  other  communications (or, in the case of material oral communications, advise the other of such communications  (orally or otherwise)) between the parties hereto and their representatives, as the case may be, and any  Governmental Authority with respect to such transactions.               (c)   All  analyses,  appearances,  meetings,  discussions,  presentations,  memoranda,  briefs, filings, arguments and proposals made by or on behalf of either party before any Governmental  Authority or the staff or regulators of any Governmental Authority, in connection with the transactions  contemplated hereunder (but, for the avoidance of doubt, not including any interactions between Sellers or  any Company with Governmental Authorities in the Ordinary Course of Business, any disclosure which is  not permitted by Law or any disclosure containing confidential information) shall be disclosed to the other  party hereunder in advance of any filing, submission or attendance, it being the intent that the parties will  consult and cooperate with one another, and consider in good faith the views of one another, in connection  with  any  such  analyses,  appearances,  meetings,  discussions,  presentations,  memoranda,  briefs,  filings,  arguments  and  proposals.  Each  party  shall  give  notice  to  the  other  party  with respect to  any  meeting,  discussion,  appearance  or  contact  with  any  Governmental  Authority  or  the  staff  or  regulators  of  any  Governmental Authority, with such notice being sufficient to provide the other party with the opportunity  to attend and participate in such meeting, discussion, appearance or contact.  Each of the parties hereto  agrees that none of the information regarding it or any of its Affiliates supplied or to be supplied by it, or  to be supplied on its behalf, in writing specifically for inclusion in any documents to be filed with any                                                                                  33  302010047 v18 





 






   Governmental Authority in connection with the transactions contemplated hereby will, at the respective  times  such  documents  are  filed  with  any  Governmental  Authority,  contain  any  untrue  statement  of  a  material fact or omit to state a material fact required to be stated therein or necessary in order to make the  statements therein, in light of the circumstances under which they were made, not misleading.                 (d)   Nothing in this Agreement shall require, or be construed to require, Buyer or any  of its Affiliates to agree to (i) sell, hold separate, divest, discontinue or limit, before or after the Closing  Date, any assets, businesses or interests of Buyer, any Company or any of their respective Affiliates; (ii)  any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or  interests  which,  in  either  case,  could  reasonably  be  expected  to result  in  a  Material  Adverse  Effect  or  materially  and  adversely  impact  the  economic  or  business  benefits  to  Buyer  of  the  transactions  contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions  of this Agreement.         Section 6.04 Books and Records.               (a)   All  books  and  records  of  each  Company  are  located  at  the  Real  Property  and  possession of same will be transferred to Buyer at Closing.               (b)   Buyer and each Company shall provide access, upon reasonable advance notice  and  during  normal  business  hours,  to  all  of  the  Companies’  respective  books,  records  and  financial  information relating to periods prior to the Closing, at the cost and expense of Sellers, in connection with  (i) any Tax or any other Governmental Authority audit, inquiry, investigation, etc. of Sellers or (ii) any  matter for which Sellers are required to provide indemnification hereunder.               (c)   Following the Closing, during the period set forth in clauses (e) and (f) of Section  8.04,  Buyer  shall  provide  to  Sellers  copies  of  all  (i)  reports  to  applicable  Governmental  Authorities  regarding the Companies’ compliance with its periodic maintenance and monitoring requirements under  any applicable Law or Environmental Permit related to the landfill located on the Real Property and (ii)  Environmental Notices, Environmental Claims, or requests for information pursuant to Environmental Law,  in each case to the extent related to the use and operation of the Real Property and/or the Companies on and  after the Closing Date.                 (d)   Neither Buyer nor Sellers shall be obligated to provide the other party with access  to any books, records or other information (including personnel files) pursuant to this Section 6.04 where  such access would violate any Law.               (e)   Sellers shall maintain, and promptly following the Closing, shall provide Buyer  with, an electronic copy of all materials contained in the “Project Eagle” and “Project Eagle 2019” folders  of the Workshare document repository maintained by Sellers as of 11:59 p.m., prevailing Central Time, on  the date that is two Business Days prior to the Closing Date.         Section 6.05 Use of Name. All uses of the name “Coram Materials,” “MLFF,” “BSLH,” “A.B.  of Sayville,” “Miller Place Development” and any derivations thereof are assets of the applicable Company  and, as such, are being transferred to Buyer hereunder. Each Seller agrees that it will not take any action  that reasonably could be expected to adversely affect Buyer’s or the applicable Company’s right to those  names or cause confusion with respect to Buyer’s, the applicable Company’s or any of its Affiliates’ use of  those names. All goodwill with respect to the use of the names shall inure to the benefit of Buyer, the  applicable Company and their respective Affiliates and none of Sellers nor any of their respective Affiliates  shall have any rights to sue or recover against any Person with respect to the use of those names.                                                                                   34  302010047 v18 





 






         Section 6.06 Public  Announcements. Unless otherwise required by Law or stock exchange  requirements (based upon the announcing party’s good faith determination and the reasonable advice of  counsel), no party to this Agreement shall make any public announcements in respect of this Agreement or  the transactions contemplated hereby or otherwise communicate with any news media without the prior  written consent of the other parties (which consent shall not be unreasonably withheld, conditioned, or  delayed), and the parties shall cooperate as to the timing and contents of any such announcement; provided,  however, that, for the avoidance of doubt, the ultimate parent entity of Buyer, currently U.S. Concrete, Inc.,  shall be permitted to disclose in its filings with the Securities and Exchange Commission and similar public  filings and disclosures the transactions contemplated hereby, including the Transaction Documents, without  the consent of, but on reasonable prior advance written notice to, Sellers.         Section 6.07 Further Assurances; Litigation Cooperation.                (a)   Following  the  Closing,  each  of  the  parties  hereto  shall,  and  shall  cause  their  respective  Affiliates  to,  execute  and  deliver  such  additional  documents,  instruments,  conveyances  and  assurances and take such further actions as may be reasonably required to carry out the provisions hereof  and give effect to the transactions contemplated by this Agreement.               (b)   From  and  after  the  Closing  Date,  Sellers  shall  use  reasonable  efforts  to  make  themselves and their Representatives available to Buyer and the Companies, upon written request, for fact  finding, consultation and interviews and as witnesses to the extent that any such person may reasonably be  required in connection with any Actions in which the requesting party may from time to time be involved  (whether as plaintiff or defendant) relating to (i) the conduct of the Companies’ business and the ownership  and operation of the Companies’ properties and assets prior to the Closing Date or (ii) to any Company’s  claim to legal or equitable title to any properties located within the quarry operated by the Companies or  the mining, mineral or possessory rights thereto.  Buyer shall reimburse the applicable Seller for his or her  reasonable and documented out-of-pocket expenses (including reasonable and documented attorneys’ and  other professional fees and expenses) incurred in connection with providing information and witnesses  pursuant to this Section 6.07(b).  Subject to the terms and conditions of Article VIII, in the event that Buyer  or its Affiliates shall participate in any Action concerning the Companies’ business or the ownership and  operation of the Companies’ properties and assets conducted prior to the Closing Date, each Seller shall,  upon  the  request  of  the  party  involved  in  such  Action,  cooperate  fully  with  such  party  in  connection  therewith, subject to reimbursement by the requesting party for such Seller’s reasonable and documented  out-of-pocket expenses (including reasonable and documented attorneys’ and other professional fees and  expenses).  Notwithstanding the foregoing, the provisions of this Section 6.07(c) shall not apply to Actions  brought between Buyer and its Affiliates, on the one hand, and Sellers and their respective Affiliates, on  the other hand.         Section 6.08 Performance Bond.  Until July 1, 2020, Buyer shall have the benefit of using that  certain Irrevocable Standby Letter of Credit No. SB-2225, issued on November 29, 2017 and having a  current expiration date of November 29, 2020, issued by People’s United Bank in favor of New York State  Department of Environmental Conservation (“NYSDEC” ) on behalf of Coram, in the current amount not  to exceed $1,267,141.42 and not in any greater amount (the “Letter of Credit” ) to secure Coram’s mined  land reclamation obligations as prescribed by the NYSDEC under the Mined Land Reclamation permit  issued to Coram by NYSDEC (the “MLRL Permit” ), together with all cash on deposit with People’s United  Bank as financial security for the Letter of Credit (the “Cash Deposit” ).  On or prior to July 1, 2020, Buyer  shall cause Coram to (i) obtain an alternative reclamation bond or other surety for Coram’s obligations as  required by the MLRL Permit, (ii) terminate the Letter of Credit with Peoples United Bank and (iii) pay, or  use commercially reasonable efforts to cause People’s United Bank to pay, to Sellers the Cash Deposit.   Prior to the earlier of (a) July 1, 2020 and (b) the date on which the Letter of Credit is terminated, Sellers  shall not take any action to terminate the Letter of Credit or withdraw the Cash Deposit from People’s                                                                                  35  302010047 v18 





 






   United Bank.  For the avoidance of doubt, subject to the provisions of this Section 6.08, neither Coram nor  Buyer nor any of its Affiliates shall have any rights whatsoever with respect to the Cash Deposit following  the Closing.         Section 6.09 Insurance.               (a)   Buyer and Sellers acknowledge that prior to the Closing, Sellers have deposited  $210,000 (the “Insurance Escrow Amount”) with Ruskin Moscou Faltischeck, P.C. (“RMF” ), which RMF  has agreed to hold in RMF’s trust account pursuant to a separate letter agreement between RMF and Buyer.   Within ten (10) calendar days following the Closing Date, Sellers shall make a written request for (i) one  or more endorsements to the PLL Policy permitting and enacting the pre-purchase, for an amount equal to  the Insurance Escrow Amount, of a supplemental extended reporting period, such that an extended reporting  period shall be in effect beginning on September 19, 2021 and ending on November 19, 2025, and otherwise  leaving the terms and conditions of the PLL Policy unchanged (including the policy period), and (ii) an  “insured contract endorsement” under the PLL Policy describing this Agreement, and shall take all actions  necessary or appropriate to ensure that each such endorsement is validly and effectively issued and obtained.   Upon the reasonable request of Sellers, Buyer shall, and shall cause Coram to, cooperate with Sellers in all  reasonable respects in connection with such request.  Sellers shall provide written notice to Buyer and RMF  of such written request, accompanied by written instruction to RMF to disburse to the insurer under the  PLL Policy the Insurance Escrow Amount in satisfaction of the additional premium for the endorsement  described  in  clause  (i)  of  this Section  6.09(a).   If,  for  any  reason,  the  Insurance  Escrow  Amount  is  insufficient  to  fully  satisfy  the  additional  premium  for  such  endorsement,  Sellers  shall  satisfy such  insufficiency by paying the requisite additional amount to the insurer under the PLL Policy in accordance  with the insurer’s payment instructions.               (b)   During the period ending on the fifth anniversary of the Closing Date, Buyer shall  cause Coram to maintain (i) the PLL Policy (provided that, following the expiration of the PLL Policy, the  continuance of the extended reporting period thereunder shall satisfy Buyer’s obligation hereunder) and (ii)  the  policy  of insurance  described  in Section 6.09(b) of the  Disclosure  Schedules  (the  “Environmental  Policy”) (provided that Coram is the first named insured thereunder, the policy term of the Environmental  Policy is for no less than five years following the Closing Date, and that Sellers shall have taken all actions  necessary to bind coverage under such policy, including the satisfaction of all application and underwriting  requirements, and shall have paid the full policy premium for the full policy term of the Environmental  Policy), and shall not waive, amend, modify, revise, or apply to the insurer to modify or revise, the PLL  Policy or the Environmental Policy (as applicable), or change the broker of record under the PLL Policy or  the Environmental Policy (as applicable), in each case in any manner adverse to Sellers, without the written  approval of Sellers, which shall not be unreasonably withheld, conditioned or delayed; provided that in no  event will Buyer eliminate a Seller or Sellers as named insured, reduce any coverage limit, or otherwise  impair the coverage afforded Sellers under the PLL Policy or the Environmental Policy (as applicable).  Buyer may increase the coverage limits of the PLL Policy or the Environmental Policy (as applicable)  following the Closing in its sole discretion and at its sole cost and expense.  For the avoidance of doubt, all  costs and expenses associated with the Environmental Policy as of the date of its inception or in connection  with its inception (including the full policy premium, any attorneys’ fees or any broker fees or commissions)  shall be the responsibility of Sellers.         Section 6.10 Termination  of  Related  Party  Agreements.  Each  Contract  set  forth  on,  or  required to be set forth on, Section 3.08(a)(xv) of the Disclosure Schedules is hereby terminated and of no  force and effect as of the Closing.                                                                                   36  302010047 v18 





 






         Section 6.11 401(k) Plan Termination.  As promptly as possible following the Closing, Sellers  shall (a) submit to the Internal Revenue Service the appropriate application for determination as to the  Terminated 401(k) Plan’s qualified status; and (b) deliver copies of and evidence thereof to Buyer.         Section 6.12 Bank Account Transition.  As promptly as possible following the Closing, Sellers  shall take all necessary actions to remove the Companies’ names, taxpayer identification numbers and other  identifying information on each of the accounts set forth on Section 3.23 of the Disclosure Schedules, other  than the account noted as “Bond Security,” which is the subject of Section 6.08.  Following the Closing,  Sellers shall promptly pay over to Buyer any Accounts Receivable or other amounts for the account of  Buyer or any Company that may be received by Sellers following the Closing, including any such amounts  deposited into such bank accounts, in order to more fully carry out the provisions of, and give effect to the  purposes and intent of, this Agreement.  The parties acknowledge that such bank accounts shall be Excluded  Assets for purposes of this Agreement.                                    ARTICLE VII                                  TAX MATTERS         Section 7.01 Tax Covenants.               (a)   Without the prior written consent of Buyer, each Seller (and, prior to the Closing,  each Company, their respective Affiliates and their respective Representatives) shall not, to the extent it  may affect, or relate to, any Company, make, change or rescind any Tax election, amend any Tax Return  or take any position on any Tax Return, take any action, omit to take any action or enter into any other  transaction that would have the effect of increasing the Tax liability of Buyer or any Company in respect  of any Post-Closing Tax Period. Sellers agree that Buyer is to have no liability for any Tax resulting from  any action of any Seller, any Company (to the extent such action occurs prior to the Closing Date or is  otherwise based on any action by any Seller on behalf of any Company, except with respect to any action  taken by any  Seller on behalf of any Company  at the  direction of Buyer, its  Affiliates or any  of their  respective Representatives), any of Sellers’ Affiliates or any of their respective Representatives, and agree,  jointly and severally, to indemnify and hold harmless Buyer (and, after the Closing Date, each Company)  against any such Tax.               (b)   All transfer, documentary, sales, use, stamp, registration, value added and other  such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement and  the other Transaction Documents (including any real property transfer Tax and any other similar Tax) shall  be borne and paid by Sellers when due. Sellers shall, at their own expense, timely file any Tax Return or  other  document  with  respect  to such  Taxes  or  fees  (and  Buyer  shall cooperate  with  respect thereto  as  necessary).               (c)   Sellers shall prepare, or cause to be prepared, all Tax Returns required to be filed  by each Company after the Closing Date with respect to a Pre-Closing Tax Period. Any such Tax Return  shall be prepared in a manner consistent with past practice (unless otherwise required by Law) and without  a change of any election or any accounting method and shall be submitted by Sellers to Buyer (together  with schedules, statements and, to the extent requested by Buyer, supporting documentation) at least thirty  (30) days prior to the due date (including extensions) of such Tax Return. If Buyer objects to any item on  any such Tax Return, it shall, within fifteen (15) days after delivery of such Tax Return, notify Sellers in  writing that it so objects, specifying with particularity any such item and stating the specific factual or legal  basis  for  any  such  objection.  If  a  notice  of  objection  shall  be  duly  delivered,  Buyer  and  Sellers  shall  negotiate in good faith and use their reasonable best efforts to resolve such items. If Buyer and Sellers are  unable to reach such agreement within ten (10) days after receipt by Sellers of such notice, the disputed  items  shall  be  resolved  by  the  Independent  Accountant  and  any  determination  by  the  Independent                                                                                  37  302010047 v18 





 






   Accountant shall be final. The Independent Accountant shall resolve any disputed items within twenty (20)  days of having the item referred to it pursuant to such procedures as it may require. If the Independent  Accountant is unable to resolve any disputed items before the due date for such Tax Return, the Tax Return  shall  be  filed  consistently  with  Buyer’s  objections  and  then,  if  necessary,  amended  to  reflect  the  Independent Accountant’s resolution. The costs, fees and expenses of the Independent Accountant shall be  borne equally by Buyer and Sellers. The preparation and filing of any Tax Return of any Company that  does not relate to a Pre-Closing Tax Period shall be exclusively within the control of Buyer.          Section 7.02 No Existing Tax Sharing Agreements. No tax sharing agreements exist (whether  written or oral).         Section 7.03 Tax Indemnification.                (a)   Sellers shall jointly and severally indemnify each Company, Buyer and each Buyer  Indemnitee  and  hold  them  harmless  from  and  against  (a)  any  Loss  attributable  to  any  breach  of  or  inaccuracy in any representation or warranty made in Section 3.20; (b) any Loss attributable to any breach  or  violation  of,  or  failure  to  fully  perform,  any  covenant,  agreement,  undertaking  or  obligation  in  Article VII; (c) all Pre-Closing Taxes, including, without limitation, all Taxes attributable to the Section  338(h)(10) Elections; (d) all Taxes of any member of an affiliated, consolidated, combined or unitary group  of which any Company (or any predecessor of any Company) is or was a member on or prior to the Closing  Date by reason of a liability under Treasury Regulation Section 1.1502-6 or any comparable provisions of  foreign, state or local Law; and (e) any and all Taxes of any Person imposed on any Company arising under  the principles of transferee or successor liability or by contract, relating to an event or transaction occurring  before the Closing Date; provided, however, that in the case of clauses (c), (d) and (e) above, Sellers shall  not be liable for any Taxes treated as a Liability in the calculation of Trade Working Capital. In each of the  above  cases,  together  with  any  out-of-pocket  fees  and  expenses  (including  reasonable  attorneys’  and  accountants’ fees) incurred in connection therewith. Sellers shall reimburse Buyer for any Taxes of any  Company that are the responsibility of any Seller pursuant to this Section 7.03 within ten (10) Business  Days after payment of such Taxes by Buyer or the applicable Company.               (b)   The  indemnifications  provided  in  this Section 7.03 shall  not  be  subject  to  any  baskets, caps, thresholds, or other limitations.         Section 7.04 Straddle  Period. In the  case  of  Taxes  that  are  payable  by  any  Company  with  respect to a taxable period that begins before and ends after the Closing Date (each such period, a “Straddle  Period”), the portion of any such Taxes that are treated as Pre-Closing Taxes for purposes of this Agreement  shall be:               (a)   in the case of Taxes based upon, or related to, income or receipts, deemed equal to  the amount that would be payable if the taxable year ended with the Closing Date; and               (b)   in the case of other Taxes, deemed to be the amount of such Taxes for the entire  period multiplied by a fraction the numerator of which is the number of days in the period ending on the  Closing Date and the denominator of which is the number of days in the entire period.         Section 7.05 Contests. Buyer agrees to give written notice to Sellers of the receipt of any written  notice by any Company, Buyer or any of Buyer’s Affiliates that involves the assertion of any claim, or the  commencement of any Action, in respect of which an indemnity may be sought by Buyer pursuant to this  Article VII (a “Tax Claim”); provided, that failure to comply with this provision shall not affect Buyer’s  right  to  indemnification  hereunder,  unless  the  indemnifying  party  is  materially  prejudiced  by  Buyer’s  failure to provide the aforementioned notice. Buyer shall control the contest or resolution of any Tax Claim;                                                                                  38  302010047 v18 





 






   provided, however, that Buyer shall obtain the prior written consent of Sellers (which consent shall not be  unreasonably withheld, conditioned or delayed) before entering into any settlement of a claim or ceasing to  defend such claim; and, provided, further, that Sellers shall be entitled to participate in the defense of such  claim and to employ counsel of its choice for such purpose, the fees and expenses of which separate counsel  shall be borne solely by Sellers.         Section 7.06 Cooperation and Exchange of Information. Sellers and Buyer shall provide each  other with such cooperation and information as either of them reasonably may request of the other in filing  any Tax Return pursuant to this Article VII or in connection with any audit or other proceeding in respect  of Taxes of any Company. Such cooperation and information shall include providing copies of relevant Tax  Returns or portions thereof, together with accompanying schedules, back-up materials, related work papers  and documents relating to rulings or other determinations by a Governmental Authority. Each of Sellers  and Buyer shall retain all Tax Returns, schedules and work papers, records and other documents in its  possession relating to Tax matters of each Company for any taxable period beginning before the Closing  Date until the expiration of the statute of limitations of the taxable periods to which such Tax Returns and  other documents relate, without regard to extensions except to the extent notified by the other party in  writing of such extensions for the respective Tax periods. Prior to transferring, destroying or discarding any  Tax Returns, schedules and work papers, records and other documents in its possession relating to Tax  matters of any Company for any taxable period beginning before the Closing Date, Sellers or Buyer (as the  case may be) shall provide the other party with reasonable written notice and offer the other party the  opportunity to take custody of such materials.         Section 7.07 Tax Treatment of Indemnification Payments. Any indemnification payments  pursuant to this Article VII and Article VIII shall be treated as an adjustment to the aggregate purchase  price  for the  Securities by the  parties for Tax  purposes,  unless  otherwise required  by Law.  Any such  adjustment shall be allocated for Tax purposes to the portion of the aggregate purchase price allocated to  the Company whose assets or activities gave rise to such indemnification payment.  If it is impracticable to  identify such Company, the purchase price adjustment shall be made ratably among the Companies in the  same proportions as the original purchase price was allocated among the Securities pursuant to Exhibit G.         Section 7.08 Survival. Notwithstanding  anything  in  this  Agreement  to  the  contrary,  the  provisions of Section 3.20 and this Article VII shall survive for the full period of all applicable statutes of  limitations (giving effect to any waiver or extension thereof) plus sixty (60) days.         Section 7.09 Overlap. To the extent that any obligation or responsibility pursuant to Article  VIII may overlap with an obligation or responsibility pursuant to this Article VII, the provisions of this  Article VII shall govern and control.         Section 7.10 Section  338(h)(10)  Elections. At  Buyer’s  option, in  its  sole  discretion,  Sellers  shall  join  in  an  appropriate  and  timely  manner  with  Buyer and  shall  make  elections  under  Section  338(h)(10)  of  the  Code  and  any  corresponding  election  permitted  under  any  local,  state  or  non-U.S.  jurisdiction  (collectively,  “Section  338(h)(10)  Elections” )  with  respect  to Buyer’s  acquisition  of  the  Securities issued by the S Corporations.  Sellers shall cooperate with Buyer to take all actions necessary or  appropriate to effect and preserve timely Section 338(h)(10) Elections with respect to Buyer’s acquisition  of the Securities issued by the S Corporations, including but not limited to participating in the timely filing  and execution of Internal Revenue Service Form 8023 and related or comparable forms for state, local or  non-U.S. law purposes (collectively, the “Section 338(h)(10) Forms” ).  Buyer shall prepare all Section  338(h)(10) Forms (other than sections or such forms that relate to information regarding Sellers) and shall  provide the Section 338(h)(10) Forms to Sellers prior to the Closing Date.  Sellers shall promptly and  properly review, comment on (if needed), complete, execute and deliver to Buyer at the Closing all of the  Section 338(h)(10) Forms provided by Buyer.  Buyer shall be authorized to complete the Section 338(h)(10)                                                                                  39  302010047 v18 





 






   Forms in accordance with the provisions of this Agreement and file the Section 338(h)(10) Forms with the  applicable Governmental Authority.         Section 7.11 Purchase  Price  Allocation.   The  Purchase  Price  shall  be  allocated  among the  Securities and further allocated among the assets of each Company in accordance with Exhibit G (it being  acknowledged that “fair market value” shall be determined by an independent appraisal to be completed by  Buyer as promptly as possible following the Closing), and the parties and each of their respective Affiliates  shall report the acquisition of Securities and allocation of the Purchase Price among the assets of each  Company in a manner consistent with such allocation on all Tax Returns (including IRS Form 8883) and  shall not take any position on any Tax Return or during the course of any audit or other proceeding that is  inconsistent with Exhibit G unless required by a determination of a Governmental Authority that is final.   Within 60 days following the Closing Date, Buyer shall provide to Sellers a schedule that sets forth the fair  market value of the assets constituting Class IV and Class V assets of each Company (the “Class IV and V  Allocation Schedule”).  Sellers shall have 60 days after the Class IV and V Allocation Schedule is delivered  to  Sellers  to  review  and  comment  on  the  Class  IV  and  V  Allocation  Schedule  and  identify  potential  adjustments thereto.  If Sellers fail to identify potential adjustments within such 60 day period, the Class  IV and V Allocation Schedule shall be deemed accepted.  Sellers and Buyer shall work together in good  faith to resolve differences with respect to the allocation.  To the extent there remains any disagreement  between Sellers and Buyer within 15 days after the delivery by the Sellers of proposed adjustments to  Buyer’s proposed allocation, (i) each party shall be permitted to file all Tax Returns based on an allocation  of value to Class IV, V, VI and VII assets that such party determines in its own discretion, or (ii) Buyer and  Sellers may jointly decide to refer the dispute to the Independent Accountant to resolve the dispute and the  Independent Accountant shall make within 60 days a final determination binding upon the parties of the  appropriate allocation of value to Class IV and Class V assets.  Buyer and Sellers shall cooperate with each  other to enable the Independent Accountant to render a proper decision.  The fees and expenses of the  Independent  Accountant  shall  be  borne  under  the  same  methodology  as  the  fees  of  the Independent  Accountant as set forth Section 2.04(e).  Neither Sellers, Buyer, nor any of their respective Affiliates shall  take any position (whether in audits, Tax Returns or otherwise) that is inconsistent with such allocation and  Exhibit G unless required to do so by applicable Law.  The parties shall, as applicable, timely and properly  prepare, execute, file and deliver all such documents, forms and other information as the other parties may  reasonably request in connection with Exhibit G including the agreed allocation, if any, of value to Class  IV and Class V assets.  The parties shall promptly advise one another of the existence of any Tax audit,  controversy or litigation related to the allocation set forth on Exhibit G.  In the event that such allocation is  disputed by any Governmental Authority, the party receiving notice of such dispute will promptly notify  the other parties and the parties will consult in good faith how to resolve such dispute in a manner as  consistent  as  possible  with  such  allocation.   The  parties  acknowledge  that,  by  reason  of  the  sale  and  purchase of the outstanding equity interests of MPD LLC, MPD LLC will terminate as a partnership for  federal Tax purposes pursuant to situation 2 in Revenue Ruling 99-6.  The parties recognize that Buyer’s  purchase of the MPD LLC equity interests will be treated for federal income Tax purposes as (a) a sale by  Sellers of limited liability company interests, and (b) a purchase by Buyer of MPD LLC’s assets.                                   ARTICLE VIII                                INDEMNIFICATION         Section 8.01 Survival. Subject to the limitations and other provisions of this Agreement, the  representations and warranties contained herein shall survive the Closing and shall remain in full force and  effect until the date that is eighteen (18) months from the Closing Date; provided, however, that (a) the  representations  and  warranties  in  each  of Section 3.01, Section 3.02, Section 3.03,  Section  3.04,  Section 3.28 (collectively,  the  “Company  Fundamental  Representations”), Section 4.01, Section 4.02,  Section 4.03 (with respect to clauses (a) and (b) only), Section 4.04, Section 4.06 (collectively, the “Seller  Fundamental Representations”), Section 5.01, Section 5.02, Section 5.03 and Section 5.05 (collectively,                                                                                  40  302010047 v18 





 






   the  “Buyer  Fundamental  Representations”)  shall  survive  indefinitely,  and  (b)  the  representations  and  warranties in Section 3.17 (the “Environmental Representation”) shall survive until the fifth anniversary  of the Closing Date or for the full period of all applicable statutes of limitations (giving effect to any waiver  or extension thereof) plus sixty (60) days, whichever period is shorter.  All covenants and agreements of  the  parties  contained  herein  contemplating  performance  after  the  Closing  shall  survive the  Closing  in  accordance  with  their  terms.  Notwithstanding  the  foregoing,  any  claims  asserted  in  good  faith  with  reasonable specificity (to the extent known at such time) and in writing by notice from the non-breaching  party to the breaching party prior to the expiration date of the applicable survival period shall not thereafter  be barred by the expiration of the relevant representation or warranty and such properly asserted claims and  the representations and warranties with respect thereto shall survive until finally resolved.         Section 8.02 Indemnification  by  Sellers.  Subject  to  the  other  terms  and  conditions  of  this  Agreement,  Sellers,  jointly  and  severally,  shall  indemnify  and  defend  each  of  Buyer  and  its  Affiliates  (including, after the Closing, each Company) and each of their respective Representatives (collectively, the  “Buyer Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and  reimburse  each of  them  for,  any  and  all  Losses  incurred  or  sustained  by,  or imposed  upon, the  Buyer  Indemnitees based upon or arising out of:               (a)   any inaccuracy in or breach of any of the representations or warranties of any Seller  or any Company in any Transaction Document, including any of the representations or warranties contained  in Article III or Article IV or any certificate or instrument delivered by or on behalf of any Seller or any  Company at the Closing pursuant to this Agreement, or any allegation by a third party that, if proven true,  would constitute such an inaccuracy or breach;                (b)   any  breach  or  non-fulfillment  of  any  covenant,  agreement  or  obligation  to  be  performed by any Seller or any of its respective Affiliates (including any covenant, agreement or obligation  to be performed by any Company on or prior to the Closing) pursuant to any Transaction Document or any  allegation by a third party that, if proven true, would constitute such a breach or non-fulfillment;               (c)   any Closing Indebtedness or Transaction Expenses to the extent not set forth on  the Payoff Letters or otherwise reflected in and adjusted for in the Final Closing Statement;               (d)   any claim asserted by any Person who is or was, or who claims to be or to have  been, the holder of, or entitled to acquire or receive, any Securities, equity interest, option or other security  of any Company or who claims any consideration with respect thereto;               (e)   any indemnification obligations  owing by any Company to any past or present  officers,  managers,  managing-members,  directors,  employees,  former  employees  or  independent  contractors  of  any  Company  (whether  under  Law,  any  Organizational  Document,  any  current  indemnification agreement, this Agreement or otherwise) with respect to claims made against such past or  present officers, managers, managing-members, directors, employees, former employees or independent  contractors, in each case, which (i) are asserted on or prior to the Closing Date or (ii) arise or are based, in  whole or primarily upon, on any events, activities or actions occurring on or prior to the Closing Date or  conditions caused or contributed to on or prior to the Closing Date;               (f)   subject to Section 8.04(k), (i) any Environmental Claim by reason of or arising out  of any action, failure to act, event or condition (whether known or unknown on or prior to the Closing Date)  (1) associated with the ownership or operation by any Company of, or at, (x) the Real Property, or (y)  property formerly owned, operated or leased by any Company during the time of such Company’s (or any  other Person’s, to the extent such Person would qualify as such Company at such time) ownership, operation  or lease of such property, (ii) the presence or Release of any Hazardous Material on, at, to or from any                                                                                  41  302010047 v18 





 






   location where Hazardous Materials were disposed of, transported to or transferred by or on behalf of any  Company,  and  any  subsequent  migration  of  such  Hazardous  Materials,  or  (iii)  any  matter  set  forth  in  Sections 3.17(a)-(c) of the Disclosure Schedules, but only to the extent that such actions, failures to act,  events or conditions, or such presence or Release of Hazardous Material, or such matter described in such  Disclosure Schedules (as described in clauses (i), (ii) and (iii) of this Section 8.02(f), respectively) occurred  or existed on or before the Closing Date; provided that in no event shall Sellers have any obligations under  this Section 8.02(f) for any Losses to the extent arising (A) from a change in any Environmental Law after  the Closing Date; (B) from an Emerging Contaminant; (C) from or as a result of a Buyer Indemnitee’s own  independent investigation or independent disclosure, report or notification to any Governmental Authority,  in each case, absent an affirmative obligation under any Environmental Law, Environmental Notice or  Environmental Permit to make such an investigation or make such disclosure, report or notification, or (D)  from any excavation of a portion or all of the landfill located on the Real Property or otherwise causing the  closed  status  of  such  landfill  to  be  disrupted  other  than  as  a  necessary  remedial  action  that  a  Buyer  Indemnitee is legally obligated to undertake not resulting from a failure to maintain the cap on such Landfill  or non-compliance with Environmental Law, Environmental Notice, or Environmental Permit on or after  the Closing Date.               (g)   any  Action  set  forth  on Section 3.13(a)(ii), Section 3.13(b)(ii), Section 3.16(a),  Section 3.17(a), or Section 3.19(c) of the Disclosure Schedules;               (h)   any Excluded Item;               (i)   any Related Party Matter; or               (j)   any Liabilities in connection with any Third Party Claims arising out of or related  to any matter set forth on Section 8.02(j) of the Disclosure Schedules;               (k)   any Liabilities arising out of or related to the operation of the business of any of  the Companies prior to the Closing Date to the extent not subject to clauses (a) through (j) above or excluded  under the terms thereof, including 8.02(f) (A)-(D);               (l)   any  Action  relating  to  any  matter  referred  to  in  clauses (a) through  (k)  above  (including any Action commenced by any Buyer Indemnitee for the purpose of enforcing its rights under  this Agreement, including this Article VIII).         Section 8.03 Indemnification  by  Buyer. Subject  to  the  other  terms  and  conditions  of  this  Article  VIII,  Buyer  shall  indemnify  and  defend  each  Seller  and  his  or  her  respective  Affiliates  and  Representatives (collectively, the “Seller Indemnitees”) against, and shall hold each of them harmless from  and against, and shall pay and reimburse each of them for, any and all Losses incurred or sustained by, or  imposed upon, the Seller Indemnitees based upon or arising out of:                (a)   any inaccuracy in or breach of any of the representations or warranties of Buyer in  any Transaction Document, including any of the representations or warranties contained in Article V or in  any certificate or instrument delivered by or on behalf of Buyer at the Closing pursuant to this Agreement,  or any allegation by a third party that, if proven true, would constitute such an inaccuracy or breach;               (b)   any  breach  or  non-fulfillment  of  any covenant,  agreement  or  obligation  to  be  performed  by  Buyer  or  any  of  its  Affiliates  (including  any  covenant,  agreement  or  obligation  to  be  performed by any Company after the Closing) pursuant to any Transaction Document or any allegation by  a third party that, if proven true, would constitute such a breach or non-fulfillment;                                                                                    42  302010047 v18 





 






               (c)   any Liabilities arising out of or related to the operation of the business of any of  the Companies on or after the Closing Date; or               (d)   (i) any Environmental Claim by reason of or arising out of any action, failure to  act, event or condition associated with the ownership or operation by any Company of, or at, the Real  Property, or (ii) the presence or Release of any Hazardous Material on, at, to or from any location where  Hazardous Materials were disposed of, transported to or transferred by or on behalf of any Company, and  any subsequent migration of such Hazardous Materials, but only to the extent that such actions, failures to  act, events or conditions, or such presence or Release of Hazardous Material (as described in clauses (i) and  (ii) of this Section 8.03(d), respectively) first occurred after the Closing Date;               (e)   any  Action  relating  to  any  matter  referred  to  in  clauses  (a)  through  (d)  above  (including any Action commenced by any Seller Indemnitee for the purpose of enforcing its rights under  this Agreement, including this Article VIII).         Section 8.04 Certain  Limitations. The  indemnification  provided  for  in Section 8.02 and  Section 8.03 shall be subject to the following limitations:               (a)   Buyer’s  Deductible.   Sellers  shall  not  be  liable  to  the  Buyer  Indemnitees  for  indemnification (i) under Section 8.02(a) with respect to any Loss or any claim for indemnification arising  out of any inaccuracy in or breach of any representation or warranty other than the Company Fundamental  Representations or the Seller Fundamental Representations, (ii) under Section 8.02(f), (iii) under Section  8.02(j), or (iv) under Section 8.02(k) until the aggregate amount of all such Losses and claims exceeds on  a cumulative basis one-quarter percent (0.25%) of the Purchase Price (the “Deductible” ), in which event  Sellers shall be required to pay or be liable for all such Losses and claims in excess of the Deductible, but  subject to the other limitations set forth in this Article VIII.               (b)   Buyer Deductible Exclusions.  For the avoidance of doubt, the limitations in clause  (a) of this Section 8.04 shall not apply to (i) any Loss or any claim for indemnification based upon or arising  out  of  any  inaccuracy  in  or  breach  of  any  representation  or  warranty  in  any  Company  Fundamental  Representation or any Seller Fundamental Representation, (ii) any Loss or any claim for indemnification  under clauses (b)-(e) and (g)-(i) of Section 8.02, or (iii) any Loss or any claim for indemnification based  upon or arising out of any (A) fraud, (B) intentional or willful misrepresentation, or (C) criminal activity or  breach of Law by any Seller or any Company, in each case, to the extent occurring on or prior to the Closing  (the  matters  described  in  clauses  (i)-(iii)  of  this Section  8.04(b),  collectively,  the  “Buyer  Deductible  Exclusions”).               (c)   Sellers’ Deductible; Seller Deductible Exclusions.  Buyer shall not be liable to the  Seller Indemnitees for indemnification under Section 8.03(a) until the aggregate amount of all Losses in  respect of indemnification under Section 8.03(a) exceeds on a cumulative basis one-quarter percent (0.25%)  of the Purchase Price, in which event Buyer shall be required to pay or be liable for all such Losses in  excess of such amount; provided, however, that the limitation set forth in this Section 8.04(c) shall not apply  to any Loss or any claim for indemnification based upon or arising out of (i) any inaccuracy in or breach of  any  representation  or  warranty  in  the  Buyer  Fundamental  Representations  or  (ii)  any  (A)  fraud,  (B)  intentional or willful misrepresentation, or (C) criminal activity or breach of Law by Buyer, in each case,  to the extent occurring on or prior to the Closing (the matters described in clauses (i) and (ii) of this Section  8.04(c), the “Seller Deductible Exclusions”).               (d)   Cap and Claims Period — General Representations and Warranties and General  Pre-Closing Liabilities.  (A) The aggregate liability of Sellers under (i) Section 8.02(a) with respect to any  and  all  Losses  and  claims  for  indemnification  arising  out  of  any  inaccuracy  in  or  breach  of  any                                                                                  43  302010047 v18 





 






   representation or warranty other than the Company Fundamental Representations, the Seller Fundamental  Representations, or the Environmental Representation or (ii) under Section 8.02(k), on the one hand, and  (B) the  aggregate liability of Buyer under Section 8.03(a) with respect to any Losses or any claim for  indemnification arising out of any inaccuracy or breach of any representation or warranty other than the  Buyer  Fundamental  Representations,  on  the  other,  to  indemnify  the  Buyer  Indemnitees  or  the  Seller  Indemnitees,  respectively,  shall  not  exceed  seven  and  one-half  percent  (7.5%)  of  the  Purchase  Price,  respectively.  Neither Sellers nor Buyer shall have any liability with respect to any Loss or any claim for  indemnification arising out of or relating to such matters unless such Loss or claim is asserted in good faith  by written notice of claim specifying the factual basis thereof in reasonable detail (to the extent known at  such  time)  from  the  Indemnified  Party  given  to  the  Indemnifying  Party  on  or  prior  to  the  18  month  anniversary of the Closing Date.               (e)   Cap and Claims Period — General Environmental Matters.  The aggregate liability  of Sellers under (i) under Section 8.02(a) with respect to any and all Losses and claims for indemnification  arising  out  of  any  inaccuracy  in  or  breach  of  any  representation  or  warranty  in  the  Environmental  Representation or (ii) under Section 8.02(f), in each case arising out of or related to any matter other than  the Landfill Matters (the matters referred to in the foregoing clauses (i) and (ii) collectively, the “General  Environmental Indemnification Matters”) to indemnify the Buyer Indemnitees shall not exceed seven and  one-half percent (7.5%) of the Purchase Price.  Sellers shall not have any liability with respect to any Loss  or any claim for indemnification arising out of or relating to such matters unless such Loss or claim is  asserted in good faith by written notice of claim specifying the factual basis thereof in reasonable detail (to  the extent known at such time) from the Indemnified Party given to the Indemnifying Party on or prior to  the fifth anniversary of the Closing Date or the date that is 60 days following the expiration of all applicable  statutes of limitations (giving effect to any waiver or extension thereof), whichever date is earlier.               (f)   Cap  and  Claims  Period — Landfill Matters.  The  aggregate liability of Sellers  under (i) under Section 8.02(a) with respect to any and all Losses and claims for indemnification arising  out of any inaccuracy in or breach of any representation or warranty in the Environmental Representation  or (ii) under Section 8.02(f), in each case arising out of or related to any Landfill Matter (the matters referred  to in the foregoing clauses (i) and (ii) collectively, the “Landfill Indemnification Matters” ) to indemnify  the Buyer Indemnitees shall not exceed seven and one-half percent (7.5%) of the Purchase Price.  Sellers  shall not have any liability with respect to any Loss or any claim for indemnification arising out of or  relating to such matters unless such Loss  or claim is asserted in good faith by written notice of claim  specifying  the  factual  basis  thereof  in  reasonable  detail  (to  the  extent  known  at  such  time)  from  the  Indemnified Party given to the Indemnifying Party on or prior to the fifth anniversary of the Closing Date  or the date that is 60 days following the expiration of all applicable statutes of limitations (giving effect to  any waiver or extension thereof), whichever date is earlier.               (g)   Cap and Claims Period — Specified Liability.  Notwithstanding anything in this  Section  8.04 to  the  contrary,  the  aggregate  liability  of  Sellers  under Section  8.02(j) shall  not  exceed  $2,000,000.  Buyer’s sole recourse with respect to the indemnity provided under Section 8.02(j) shall be to  set off, offset and recoup from the Post-Closing Payments any liability for which a Seller is determined to  be liable to Buyer or any Affiliate of Buyer pursuant to Section 8.02 related to such matter.  Sellers shall  not have any liability with respect to any Losses or any claim for indemnification arising out of or relating  to such matter unless such Loss or claim is asserted in good faith by written notice of claim specifying the  factual basis thereof in reasonable detail (to the extent known at such time) from the Indemnified Party  given to the Indemnifying Party on or prior to the second anniversary of the Closing Date.               (h)   Subject to clauses (k) and (l) of this Section 8.04, each of the limitations on the  aggregate liability of Sellers set forth in clauses (d), (e), (f) and (g) of this Section 8.04 shall be separate  and independent limitations on the aggregate liability of Sellers under this Article VIII.  The limitations on                                                                                  44  302010047 v18 





 






   the aggregate liability of Sellers set forth in clauses (d), (e), (f) and (g) of this Section 8.04 shall not apply  to any claims based upon or arising out of any of the Buyer Deductible Exclusions or the Seller Deductible  Exclusions.   For  the  avoidance  of  doubt,  the  limitations  set forth in this Section  8.04 apply  to  Losses  incurred or sustained by, or imposed upon, the Buyer Indemnitees collectively and not individually.               (i)   The  limitations  on  the  liability  of  Sellers  under,  and  the  period  in  which  the  Indemnified Party must give written notice asserting a claim or Loss with respect to, Section 8.02(l) shall  be governed by the clause(s) of this Section 8.04 applicable to the underlying matter related to such Action.               (j)   In the event any Company or any of their respective Subsidiaries suffers, incurs or  otherwise becomes subject to any Losses as a result of or in connection with any inaccuracy in or breach or  alleged breach of any representation, warranty, covenant or obligation, then Buyer shall also be deemed,  by virtue of its ownership of the Securities, without duplication to have incurred Losses as a result of and  in connection with such inaccuracy or breach.                 (k)   No Buyer Indemnitee shall be entitled to recover for any Loss or claim pursuant to  any provision of this Agreement (i) to the extent any Buyer Indemnitee has already recovered such Loss or  claim under any other provision of this Agreement or (ii) to the extent that the limitation on the aggregate  liability of Sellers applicable to such Loss or claim (as set forth in clauses (d), (e), (f) or (g) of this Section  8.04(k)), if any, has been reached.               (l)   A Buyer Indemnitee shall only be entitled to recover against Sellers with respect  to any individual Loss or claim pursuant to one clause of Section 8.02 (provided that the Environmental  Indemnification Provisions shall be deemed to be one clause for this purpose), and the limitation set forth  in this Section 8.04 applicable to such clause shall apply to such Loss or claim.  By way of example, it is  the parties’ intention that a Buyer Indemnitee shall not be entitled to recover with respect to any individual  Loss  under  both Section  8.04(e) (General  Environmental  Indemnification  Matters)  and Section  8.04(f)  (Landfill Indemnification Matters), but rather under only one such section.               (m)   No Buyer Indemnitee or Seller Indemnitee shall be entitled to recover any Loss  pursuant to any provision of this Agreement to the extent such Loss is agreed by such Buyer Indemnitee or  Seller Indemnitee, as applicable, to be, or is determined by final, non-appealable adjudication to be, the  direct result of the gross negligence, willful misconduct, criminal activity or willful violation of Law of  such  Buyer  Indemnitee  or  Seller  Indemnitee,  as  applicable.   Except  as  provided  in  the  immediately  preceding sentence, each of Sellers on the one hand and Buyer and the Companies on the other hand waives,  and acknowledges and agrees that each such party shall not have and shall not exercise or assert (or attempt  to exercise or assert), any right of contribution, right of indemnity or other right or remedy against the other  party in connection with any indemnification obligation or any other Liability to which any party may  become subject under or in connection with this Agreement or any Transaction Document.               (n)   For the purposes of this Article VIII, any Losses shall be determined on a net basis  after giving effect to any actual cash payments, setoffs, recoupment or any other payments in each case  received or retained by the Indemnified Party (including any Insurance Proceeds actually received by the  Indemnified Party) as a result of any event giving rise to a claim for such indemnification.  Any Insurance  Proceeds actually received or paid related to the PLL Policy or the Environmental Policy with respect to a  claim based on a General Environmental Indemnification Matter or a Landfill Indemnification Matter (and  not later recouped or otherwise required to be returned to the applicable insurer) shall reduce dollar for  dollar the applicable limitation set forth in clause (e) or clause (f) of this Section 8.04; provided, however,  that for the avoidance of doubt, to the extent any Loss is paid directly by Sellers to a Buyer Indemnified  Party, and Insurance Proceeds are received or paid with respect to such Loss, such amount shall only be  counted once for purposes of reducing such applicable limitation (by way of example and not limitation, if                                                                                  45  302010047 v18 





 






   a Buyer Indemnitee experiences a $5,000 Loss and receives payment in respect thereof by Sellers, and  thereafter the Sellers receive $5,000 of Insurance Proceeds in respect of such Loss, the applicable limitation  shall be reduced by $5,000).  Any Insurance Proceeds actually received by or paid to Buyer related to the  Environmental Policy with respect to a claim that is not an Insured Indemnification Claim (and not later  recouped or otherwise required to be returned to the applicable insurer) shall reduce dollar for dollar the  applicable limitation set forth in clause (e) or clause (f) of this Section 8.04. If an Indemnified Party receives  a payment pursuant to this Article VIII from an Indemnifying Party in respect of any Loss (an “Indemnity  Payment” ) and subsequently receives Insurance Proceeds or proceeds from any third party in respect of  indemnification for such Loss that actually reduce the amount of such Loss, then the Indemnified Party  shall pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payment received by  the Indemnified Party over the Indemnified Party’s actual Loss (as so reduced by such Insurance Proceeds  or third party proceeds actually received); provided, however, that if any insurance carrier or other third  party  recoups  such  Insurance  Proceeds  or  third  party  proceeds  or  otherwise  requires  such  Insurance  Proceeds or third party proceeds to be returned to such carrier or third party, under a reservation of rights  or otherwise, then (i) if the Indemnified Party has paid to the Indemnifying Party such Insurance Proceeds  or third party proceeds pursuant to this clause (n) of this Section 8.04, the Indemnifying Party shall promptly  pay over such Insurance Proceeds or third party proceeds to the applicable carrier or third party and (ii) if  the Indemnified Party has not yet paid to the Indemnifying Party such Insurance Proceeds or third party  proceeds,  the  Indemnified  Party  shall  not  be  obligated  to  pay  such  Insurance  Proceeds  or  third  party  proceeds to the Indemnifying Party and shall instead return such Insurance Proceeds or third party proceeds  to the applicable carrier or third party.               (o)   The Parties acknowledge that nothing in this Article VIII is intended relieve any  obligation of any insurer under the terms of the applicable insurance policy, including any obligation to pay  a claim under such policy. In furtherance of the foregoing the applicable Indemnified Party, subject to  Section  8.07,  shall  use  commercially  reasonable  good  faith  efforts  to  seek  to  collect  or  recover  any  Insurance Proceeds to which such Indemnified Party is entitled in connection with any Loss for which the  Indemnified Party seeks indemnification pursuant to this Article VIII; provided, however, that if the Loss  is subject to the Environmental Indemnification Provisions, the applicable Buyer Indemnitee shall only be  required to seek to collect or recover Insurance Proceeds under the PLL Policy or the Environmental Policy  and not any other insurance policy; and provided, further, that the parties acknowledge that any claims by  any Indemnified Party against an Indemnifying Party under this Article VIII are separate and independent  from any claims under any applicable insurance policies and that the Indemnifying Party’s obligation to  indemnify, defend and hold harmless the Indemnified Party for such Losses is not limited, conditioned or  otherwise affected in any way upon any potential or actual recovery under such policies, or any position  taken by Sellers, Buyer or any Company with any carrier or other third party in connection with any claims  under such policies, or any assistance provided by Sellers, Buyer or any Company in connection with any  claims under such policies.               (p)   The  Parties acknowledge  that the  indemnification  rights  and  obligations  of the  Parties specifically set forth in this Article VIII are the sole and exclusive indemnification rights of the  Parties with respect to the matters set forth in this Article VIII and any matters related thereto and that the  Parties expressly disclaim any and all statutory or common law rights of indemnification with respect to  the matters set forth in this Article VIII.           Section 8.05 Indemnification Procedures. The party making a claim under this Article VIII is  referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this  Article VIII is referred to as the “Indemnifying Party”.                (a)   Third Party Claims. If any Indemnified Party receives notice of the assertion or  commencement of any Action made or brought by any Person who is not a party to this Agreement or an                                                                                  46  302010047 v18 





 






   Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third Party Claim”) against  such  Indemnified  Party  with  respect  to  which  the  Indemnifying  Party  is  obligated  to  provide  indemnification under this Agreement, the Indemnified Party shall give the Indemnifying Party reasonably  prompt written notice thereof, but in any event not later than ten (10) days after receipt of such notice of  such Third Party Claim. The failure to give such prompt written notice shall not, however, relieve the  Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying  Party is prejudiced or forfeits rights or defenses by reason of such failure. Such notice by the Indemnified  Party shall (A) describe the Third Party Claim in reasonable detail, (B) in the case of a Third Party Claim  against a Buyer Indemnitee, shall specify the applicable clause(s) of Section 8.02 under which such Buyer  Indemnitee is claiming indemnification from Sellers and the applicable limitation provision(s) of Section  8.04 related thereto, and (C) shall include copies of all material written evidence thereof and shall indicate  the  estimated  amount, if reasonably practicable,  of the  Loss  that has been  or may  be  sustained by the  Indemnified Party. The Indemnifying Party shall have the right to participate in, or by giving written notice  to the Indemnified Party within fifteen (15) days of receipt of notice from the Indemnified Party of the  commencement  of  such  Third  Party  Claim,  to  assume  the  defense  of  any  Third  Party  Claim  at  the  Indemnifying Party’s expense and by the Indemnifying Party’s own counsel, and the Indemnified Party  shall cooperate in good faith in such defense; provided, however, that the Indemnifying Party shall not be  entitled to assume the defense, contest, or prosecute such Third Party Claim, or any portion thereof, if (i)  the Third Party Claim, or any portion thereof, relates to any criminal activity or breach of Law or Action  with respect thereto, (ii) the Third Party Claim primarily seeks an injunction or non-monetary or equitable  relief against the Indemnified Party, (iii) the amount in dispute exceeds the maximum amount for which  the  Indemnifying  Party  can  then  be  liable  pursuant  to  this Article  VIII in  light  of  the  limitations  on  indemnification contained in this Article VIII, if applicable, and any prior indemnification claims paid or  outstanding (unless the Indemnified Party agrees to waive such limitations on indemnification contained in  this Article VIII, if applicable, with respect to such dispute), (iv) the Indemnifying Party does not agree in  writing that it is obligated to pay all Losses arising from or related to such Third Party Claim subject only  to the limitations on indemnification contained in this Article VIII, if applicable, (v) the Indemnifying Party  does not, upon assumption thereof in accordance herewith, conduct the defense of such Third Party Claim  actively and diligently, (vi) such Third Party Claim includes as the named parties in any such claim both  the Indemnifying Party and the Indemnified Party and the Indemnifying Party or the Indemnified Party  reasonably determine upon the advice of counsel that representation of both parties by the same counsel  would be prohibited by applicable codes of professional conduct, or (vii) the Third Party Claim is asserted  directly or indirectly by a customer or supplier, including any Material Customer or Material Supplier, of  any  Company;  provided  that  the  Indemnified  Party  agrees  to  consult  with  the  Indemnifying  Party  in  connection with Third Party Claims described in subsections (iii) through (vii) of this Section 8.05(a). In  the  event  that  the  Indemnifying  Party  assumes  the  defense  of  any  Third  Party  Claim,  subject  to  Section 8.05(b), it shall have the right to take such action as it deems necessary to avoid, dispute, defend,  appeal or make counterclaims pertaining to any such Third Party Claim in the name and on behalf of the  Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third  Party Claim with counsel selected by it subject to the Indemnifying Party’s right to control the defense  thereof. The fees  and disbursements  of such  counsel shall be  at the  expense  of the  Indemnified  Party,  provided, however, that, if, in the reasonable opinion of counsel to the Indemnified Party, (A) there are  legal defenses available to an Indemnified Party that are different from or additional to those available to  the Indemnifying Party; or (B) there exists a conflict of interest between the Indemnifying Party and the  Indemnified Party that cannot be waived, the Indemnifying Party shall, subject to the provisions of this  Article VIII (including Section 8.04 hereof), be liable for the reasonable fees and expenses of one counsel  to the Indemnified Party in each jurisdiction where the Indemnified Party determines counsel is reasonably  required. If the Indemnifying Party elects not to compromise or defend such Third Party claim, fails to  promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement or  fails to actively and diligently prosecute the defense of such Third Party Claim, or is not entitled to assume  the defense of (or subsequently fails to be entitled to continue to assume the defense of) such Third Party                                                                                  47  302010047 v18 





 






   Claim, the Indemnified Party may, subject to Section 8.05(b), pay, compromise or defend such Third Party  Claim and shall be entitled, subject to the provisions of this Article VIII, to seek indemnification for any  and all Losses based upon, arising from or relating to such Third Party Claim (including the advancement  of its attorneys’ fees and expenses in defending such Third Party Claim). Sellers and Buyer shall cooperate  with each other in all reasonable respects in connection with the defense of any Third Party Claim, including  making available pertinent records and other information in the possession or control of the non-defending  party relating to such Third Party Claim and furnishing, without expense (other than reimbursement of  actual out-of-pocket expenses) to the defending party, management employees of the non-defending party  as may be reasonably necessary for the preparation of the defense of such Third Party Claim.               (b)   Settlement of Third Party Claims. Notwithstanding any other provision of this  Agreement, neither the Indemnifying Party nor the Indemnified Party shall enter into settlement or consent  to the entry of any judgment with respect to any Third Party Claim without the prior written consent of the  other party, which consent shall not be unreasonably withheld, conditioned or delayed, in each case, except  as provided in this Section 8.05(b). If a firm offer is made to settle a Third Party Claim without leading to  liability or the creation of a financial or other obligation on the part of the Indemnified Party and provides,  in  customary  form,  for  the  unconditional  release  of  each  Indemnified  Party  from  all  liabilities  and  obligations in connection with such Third Party Claim and the Indemnifying Party desires to accept and  agree to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party.  If the Indemnified Party fails to consent to such firm offer within ten (10) days after its receipt of such  notice, the Indemnified Party may continue to contest or defend such Third Party Claim and in such event,  the maximum liability of the Indemnifying Party as to such Third Party Claim shall not exceed the amount  of such settlement offer. If the Indemnified Party fails to consent to such firm offer and also fails to promptly  assume defense of such Third Party Claim, the Indemnifying Party may settle the Third Party Claim upon  the terms set forth in such firm offer to settle such Third Party Claim. If the Indemnified Party has assumed  the defense pursuant to Section 8.05(a), it shall not agree to any settlement without the written consent of  the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).               (c)   Direct Claims. Any Action by an Indemnified Party on account of a Loss that does  not result from a Third Party Claim (a “Direct Claim”) shall be asserted by the Indemnified Party giving  the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than thirty (30)  days after the Indemnified Party becomes aware of such Direct Claim. The failure to give such prompt  written notice shall not, however, relieve the Indemnifying Party of its indemnification obligations, except  and only to the extent that the Indemnifying Party is prejudiced or forfeits rights or defenses by reason of  such failure. Such notice by the Indemnified Party (i) shall describe the Direct Claim in reasonable detail,  (ii) in the case of a Direct Claim by a Buyer Indemnitee, shall specify the applicable clause(s) of Section  8.02 under  which  such  Buyer  Indemnitee  is  claiming  indemnification  from  Sellers  and  the  applicable  limitation provision(s) of Section 8.04 related thereto, and (iii) shall include copies of all material written  evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss that has  been or may be sustained by the Indemnified Party. The Indemnifying Party shall have thirty (30) days after  its receipt of such notice to respond in writing to such Direct Claim. The Indemnified Party shall allow the  Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give  rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct  Claim  and the  Indemnified  Party  shall  assist  the  Indemnifying  Party’s  investigation  by  giving  such  information and assistance (including access to the Companies’ premises and personnel and the right to  examine and copy any accounts, documents or records) as the Indemnifying Party or any of its professional  advisors may reasonably request. If the Indemnifying Party does not so respond within such thirty (30) day  period, the Indemnifying Party shall be deemed to have rejected such claim, in which case the Indemnified  Party shall be free to pursue such remedies as may be available to the Indemnified Party on the terms and  subject to the provisions of this Agreement.                                                                                   48  302010047 v18 





 






         Section 8.06 Payments. Once  a  Loss  is  agreed  to  by  the  Indemnifying  Party  or  finally  adjudicated to be payable pursuant to this Article VIII, the Indemnifying Party shall satisfy its payment  obligations  under this Article  VIII within fifteen (15)  Business  Days of such agreement  or  final,  non- appealable adjudication by wire transfer of immediately available funds; provided, however, that in the case  of a claim (i) under Section 8.02(a) with respect to any Losses or any claim for indemnification arising out  of any inaccuracy in or breach of any representation or warranty in the Environmental Representation or  (ii)  under Section  8.02(f) (collectively, the  “Environmental  Indemnification  Provisions” ),  if  a  Buyer  Indemnitee has submitted a claim regarding such Loss to the applicable carrier under the PLL Policy, the  Environmental Policy, or both, and such Buyer Indemnitee has elected to have Sellers control such claim,  Sellers shall satisfy their payment obligations within ninety (90) calendar days of such agreement or non- appealable adjudication by wire transfer of immediately available funds; provided, further, that the receipt  of any insurance proceeds by any Indemnifying Party shall not be a condition to such Indemnifying Party’s  payment obligations under this Section 8.06. The parties agree that should a Indemnifying Party not make  full payment of any such obligations within such fifteen (15) Business Day or ninety (90) calendar day  period, as applicable, any amount payable shall accrue interest from and including the date of agreement of  the Indemnifying Party or final, non-appealable adjudication to and including the date such payment has  been made at a rate per annum equal to the Reference Rate. Such interest shall be calculated daily on the  basis of a 365 day year and the actual number of days elapsed, without compounding. If an Indemnifying  Party breaches its obligation to pay any amount hereunder, the Indemnified Party may, in addition to any  other rights or remedies it may have, proceed against any securities, payments or other property, directly or  indirectly, owned by or owed to any member or shareholder, as applicable, of the Indemnifying Party,  including, with respect to Sellers, any securities, payments, or other property owned or owed under any  other Transaction Document, and the Indemnifying Party shall take any and all actions, including granting  any powers of attorney, stock transfer powers, or other authorizations amending any Contracts, to permit  such recourse.         Section 8.07 Insured Claims. An Indemnified Party shall provide prompt written notice to the  Indemnifying Party of any claim submitted by it to an insurance carrier, including a claim submitted under  the  PLL  Policy  or  the Environmental Policy,  related  to  a  matter  subject  to  indemnification  under  this  Agreement and of any Insurance Proceeds related thereto.  With respect to any claim submitted to the  applicable carrier under the PLL Policy, the Environmental Policy, or both, based on any Losses subject to  Seller’s obligations under the  Environmental Indemnification Provisions (an “Insured Indemnification  Claim”), provided that Sellers have agreed in writing that they are obligated to pay for all such Losses,  subject only to the limitations on indemnification contained in this Article VIII, a Buyer Indemnitee may  elect, by delivering to Sellers a timely notice that a claim has been submitted to the applicable carrier under  the PLL Policy, the Environmental Policy, or both, which notice includes such election, to have Sellers  control  such  claim  for  insurance  coverage  under  the  PLL  Policy  and/or  the Environmental Policy  (as  applicable) on behalf of all named insureds under the PLL Policy and/or the Environmental Policy (as  applicable), and in such event, (i) Sellers shall actively and diligently pursue such claim under the PLL  Policy and/or the Environmental Policy (as applicable) at Sellers’ expense, (ii) Sellers shall not settle or  consent  to  any  judgment  with respect  to  such  claim  without  Buyer’s  prior  written  consent,  not  to  be  unreasonably withheld, conditioned or delayed, and (iii) Buyer shall, and shall cause its Affiliates (including  Coram)  to,  cooperate  with  Sellers  in  all  reasonable  respects  in  connection  with  such  claim,  including  making available pertinent records and other information in the possession or control of and furnishing,  without  expense  (other  than  reimbursement of  actual  out-of-pocket  expenses)  to  Sellers,  employees  of  Buyer, in each case as may be reasonably necessary for the pursuit of such claim.  If (A) the applicable  Buyer Indemnitee has not elected to have Sellers control a claim under the PLL Policy, the Environmental  Policy, or both, and (B) in the case of a Insured Indemnification Claim, Sellers have agreed in writing that  they are obligated to pay for all such Losses underlying an Insured Indemnification Claim, subject only to  the limitations on indemnification contained in this Article VIII, then Buyer and Coram shall have the  exclusive right, on behalf of all named insureds under such policies (including Sellers), to control any claim                                                                                  49  302010047 v18 





 






   made against the PLL Policy or the Environmental Policy, whether such claim is an Insured Indemnification  Claim or otherwise, and shall have the right, in its sole and absolute discretion, to take all such actions as it  deems necessary with respect to such claim, and to make any and all determinations regarding the timing  of such claim, the amount of such claim, the timing and amount of any settlement, or any other matter  related  to  the  claim  process; provided that  Buyer  and  Coram  (i)  shall,  in  the  case  of  an  Insured  Indemnification Claim, pursue such claim against the  PLL Policy and/or the  Environmental Policy (as  applicable) actively, diligently and in good faith, and shall use commercially reasonable efforts to maximize  Insurance  Proceeds  with respect to  such  claim,  taking  into account  the  relative  costs  of  pursuing such  Insurance Proceeds, the potential magnitude of recovery (if determinable), the likelihood of success of such  efforts,  and  whether  any  Losses incurred  in  connection  with  such  efforts  would  exceed the  applicable  limitations on Sellers’ liability under Section 8.04, (ii) shall not settle or consent to any judgment with  respect to an Insured Indemnification Claim without Sellers’ prior written consent, not to be unreasonably  withheld, conditioned or delayed; and (iii) copy Sellers on all correspondence and submissions related to  such claims.  Notwithstanding the foregoing, during the period beginning on the Closing Date and ending  on the date that Sellers are no longer liable under the Environmental Indemnification Provisions, Buyer  shall not, and shall cause its Affiliates and Representatives not to, make any claim against the PLL Policy  with respect to any matter that is not an Insured Indemnification Claim or a claim with respect to Losses  arising  from  an  Emerging  Contaminant.   The  parties acknowledge  that  the PLL Policy  and  the  Environmental  Policy  are  or  may  be  subject  to  various  limitations,  including  retrospectively-rated  premiums,  deductibles,  self-insured  retentions,  retentions,  insurer  insolvencies,  impairment,  erosion,  exhaustion, and various settlements and/or releases that may impose defense, indemnification or any other  obligations  on  Seller,  Buyer  or  the  Companies.  The  parties  further  acknowledge  that,  if  any  named  insured’s assertion of insurance rights under any policy of insurance in accordance with this Agreement  gives rise, directly or indirectly, to any obligations imposed on the Sellers, Buyer, any Company or any of  their  respective  Affiliates,  including  any  costs,  expenses,  attorneys’  fees,  deductibles,  self-insured  retentions, retentions or retrospectively-rated premiums, or to any defense, indemnity or hold harmless  obligations related to insurance settlement(s), such obligations shall be considered Losses subject to the  applicable  obligations  of  Sellers  under Section  8.02 (in  cases  where  any  Buyer  Indemnitee  is  the  Indemnified Party) or Buyer under Section 8.03 (in cases where any Seller Indemnitee is the Indemnified  Party), as the case may be.                                    ARTICLE IX                                MISCELLANEOUS         Section 9.01 Expenses. Except as otherwise expressly provided herein, all costs and expenses,  including fees and disbursements of counsel, Representatives, financial advisors, accountants and other  professional  service  providers,  incurred  in  connection  with  this  Agreement  and  the  transactions  contemplated  hereby  shall  be  paid  by the  party incurring  such  costs  and  expenses,  whether  or  not  the  Closing  shall  have  occurred.   Notwithstanding  the  foregoing,  the  parties  acknowledge  that  Buyer  is  responsible for, and has paid, the entire cost of any filing required to be made on behalf of Buyer, Sellers  or the Companies pursuant to the HSR Act in connection with the transactions contemplated hereby.         Section 9.02 Notices.  All  notices,  requests,  consents,  claims,  demands,  waivers  and  other  communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered  by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally  recognized  overnight  courier (receipt requested); (c) on  the  date  sent  by  facsimile  or  e-mail  of  a  PDF  document (with confirmation of transmission) if sent during normal business hours of the recipient, and on  the next Business Day if sent after normal business hours of the recipient; or (d) on the fifth day after the  date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications  must be sent to the respective parties at the following addresses (or at such other address for a party as shall  be specified in a notice given in accordance with this Section 9.02):                                                                                  50  302010047 v18 





 






   If to the Companies prior to the Coram Materials Corp.  Closing:                     P. O. Box 5810                               Miller Place, New York 11764                               Facsimile: 631-924-8353                               E-mail: [*****]                                  with copies to (which shall not Ruskin Moscou Faltischek, P.C.  constitute notice):          1425 RXR Plaza                               East Tower, 15th Floor                               Uniondale, New York 11556                               Attention: Russell H. Stern, Esq.                               Facsimile: 516-663-6782                               E-mail: [*****]                                 If to any Seller(s):         Lorraine Vigliarolo                               P.O. Box 1555                               Miller Place, New York 11764                               Facsimile: 631-924-8353                               E-mail: [*****]                                                              Michael Vigliarolo                               354 Parkside Avenue                               Miller Place, New York 11764                               Facsimile: 631-924-8353                               E-mail: [*****]                                  with copies to (which shall not Ruskin Moscou Faltischek, P.C.  constitute notice):          1425 RXR Plaza                               East Tower, 15th Floor                               Uniondale, New York 11556                               Attention: Russell H. Stern, Esq.                               Facsimile: 516-663-6782                               E-mail: [*****]                                 If to Buyer (or the Companies 331 N. Main Street  following the Closing):      Euless, Texas 76039                               Attention: Chief Executive Officer                               Facsimile: (817) 835-4165                                 with copies to (which shall not 331 N. Main Street  constitute notice):          Euless, Texas 76039                               Attention: Paul M. Jolas                               Facsimile: (817) 835-4165                                                                                                                  51  302010047 v18 





 






                                K&L Gates LLP                               One Newark Center, 10th Floor                               1085 Raymond Boulevard                               Newark, NJ  07102                               Attention: Brian S. Montag and Michelle R. McCreery                               Facsimile: (973) 848-4001                               E-mail: [*****]; [*****]                                       Section 9.03 Interpretation.                For purposes of this Agreement, (a) the words “include,” “includes,” “including” or any  variation  thereof  shall  be  deemed  to  be  followed  by  the  words  “without  limitation”  and  shall  not  be  construed  to  limit  any  general  statement  that  it  follows  to  the  specific  or  similar  items  or  matters  immediately following it; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,”  “hereto”  and  “hereunder”  refer  to  this  Agreement  as  a  whole.  Unless  the  context  otherwise  requires,  references herein: (x) to Articles, Sections, Schedules and Exhibits mean the Articles and Sections of, and  Schedules and Exhibits attached to, this Agreement; and (y) to an agreement, instrument or other document  means such agreement, instrument or other document as amended, supplemented and modified from time  to time to the extent permitted by the provisions thereof. References to any Laws shall be deemed to include  any and all rules and regulations promulgated thereunder and shall refer to such Laws, rules and regulations  as amended from time to time and any successor legislation thereto (for the avoidance of doubt, with respect  to any representations or warranties related to compliance with any Law, such representation or warranty  shall be made as to the Law in effect as of the date such representation or warranty is made). Any reference  in this Agreement to gender shall include all genders, and words imparting the singular number shall include  the plural and vice versa. This Agreement shall be construed without regard to any presumption or rule  requiring construction or interpretation against the party drafting an instrument or causing any instrument  to be drafted. The Schedules and Exhibits referred to herein shall be construed with, and as an integral part  of, this Agreement to the same extent as if they were set forth verbatim herein. Items and matters disclosed  in the Disclosure Schedules are organized to correspond only to the sections of this Agreement to which  the matters relate and shall not qualify any other provisions of this Agreement. The parties intend that each  representation, warranty and covenant contained herein will have independent significance. If any party has  breached any representation, warranty or covenant contained herein in any respect, the fact that there exists  another representation, warranty or covenant relating to the same subject matter (regardless of the relative  levels of specificity) that such party has not breached will not detract from or mitigate the fact that the party  is in breach of the other representation, warranty or covenant. The specification of any dollar amount or the  inclusion of any item in the representations and warranties contained in this Agreement or the Disclosure  Schedules  or  any  exhibits  attached  to  this  Agreement shall not  be  deemed  to  establish  a  threshold  for  materiality or to establish the standard for whether a particular act or agreement is within or outside the  Ordinary Course of Business for purposes of this Agreement. When calculating the period of time before  which, within which or following which any act is to be done or step taken pursuant to this Agreement, the  date that is the reference date in calculating such period shall be excluded. If the last day of such period is  a non-Business Day, the period in question shall end on the next succeeding Business Day. As used in this  Agreement, the word “day” shall mean a calendar day and not a Business Day. With respect to all dates and  time periods set forth or referred to in this Agreement, time is of the essence. For purposes of determining  the existence of an inaccuracy in any representations or warranties, the failure of any representations or  warranties  to  be  true  and  correct,  the  breach  of  any  covenants  or  agreements  and  calculating  Losses  hereunder,  any  materiality,  Material  Adverse  Effect,  or  similar  qualifications  in  the  representations,  warranties, covenants and agreements shall be excluded from, given no effect and be otherwise disregarded.         Section 9.04 Headings. The headings in this Agreement are for reference only and shall not  affect the interpretation of this Agreement.                                                                                  52  302010047 v18 





 






         Section 9.05 Severability.  If  any  term  or  provision  of  this  Agreement  is  invalid,  illegal  or  unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other  term or provision of this Agreement or invalidate or render unenforceable such term or provision in any  other jurisdiction. Except as provided in Section 6.02(e), upon such determination that any term or other  provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this  Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable  manner in order that the transactions contemplated hereby be consummated as originally contemplated to  the greatest extent possible.         Section 9.06 Entire  Agreement.  This  Agreement  and  the  other  Transaction  Documents  constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter  contained herein and therein, and supersede all prior and contemporaneous understandings and agreements,  both written and oral, with respect to such subject matter. In the event of any inconsistency between the  statements in the body of this Agreement and those in the other Transaction Documents, the Exhibits and  Schedules (other than as set forth in the Schedules), the statements in the body of this Agreement will  control.         Section 9.07 Successors and Assigns. This Agreement shall be binding upon and shall inure to  the benefit of the parties hereto and their respective successors and permitted assigns. No party may assign  its rights or obligations hereunder without the prior written consent of the other parties, which consent shall  not be unreasonably withheld, conditioned or delayed, and any attempted assignment in violation of this  Section shall be  null and void ab initio; provided,  however, that Buyer may, without the  prior written  consent of any party, assign all or any portion of its rights under this Agreement to any Affiliate of Buyer  now in, or hereinafter to come into, existence, any Person from which it has borrowed money or any Person  to which Buyer or any of its Affiliates proposes to sell, directly or indirectly, all or substantially all of the  Securities or assets of the Companies’ business. No assignment shall relieve the assigning party or any  guarantor of any of its obligations hereunder.         Section 9.08 No Third Party Beneficiaries. Except as provided in Section 7.03 and Article  VIII, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted  assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person or entity  any  legal  or  equitable  right,  benefit  or  remedy  of  any  nature  whatsoever  under  or  by  reason  of  this  Agreement.         Section 9.09 Amendment and Modification; Waiver. This Agreement may only be amended,  modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party  of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the  party so waiving. No action taken pursuant to this Agreement, including any investigation by or on behalf  of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any  representation, warranty, covenant or agreement contained herein. No waiver by any party shall operate or  be construed as a waiver in respect of any failure, breach or default not expressly identified by such written  waiver, whether of a similar or different character, and whether occurring before or after that waiver. No  failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement  shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy,  power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other  right, remedy, power or privilege.         Section 9.10 Governing Law; Submission to Jurisdiction.               (a)   This Agreement shall be governed by and construed in accordance with the laws  of the State of New York without giving effect to any choice or conflict of law provision or rule that would                                                                                  53  302010047 v18 





 






   cause the application of Laws of any jurisdiction other than those of the State of New York.               (b)   ANY  LEGAL  SUIT,  ACTION  OR  PROCEEDING  ARISING  OUT  OF  OR  BASED  UPON  THIS  AGREEMENT,  THE  OTHER  TRANSACTION  DOCUMENTS  OR  THE  TRANSACTIONS  CONTEMPLATED  HEREBY  OR  THEREBY  MUST  BE  INSTITUTED  IN  THE  STATE COURTS OF NEW YORK OR, IF THEY HAVE OR CAN ACQUIRE JURISDICTION, THE  FEDERAL COURTS OF THE UNITED STATES, IN EACH CASE LOCATED IN THE BOROUGH OF  MANHATTAN,  CITY  AND  STATE  OF  NEW  YORK,  AND  EACH  PARTY  IRREVOCABLY  SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION  OR  PROCEEDING.  SERVICE  OF  PROCESS,  SUMMONS,  NOTICE  OR  OTHER  DOCUMENT  IN  ACCORDANCE WITH SECTION 11.02 OF THIS AGREEMENT TO SUCH PARTY’S ADDRESS SET  FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR  OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND  UNCONDITIONALLY  WAIVE  ANY  OBJECTION  TO  THE  LAYING  OF  VENUE  OF  ANY  SUIT,  ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE  NOT  TO  PLEAD  OR  CLAIM  IN  ANY  SUCH  COURT  THAT  ANY  SUCH  SUIT,  ACTION  OR  PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT  FORUM.               (c)   Process in any action or proceeding referred to in this Section may be served on  any party through the procedures established for notice herein, with the exception of facsimile or email  notices.  Nothing herein shall affect the right of any party to serve process in any other manner permitted  by Law to the fullest extent permitted by Law.         Section 9.11 WAIVER  OF  JURY  TRIAL.  EACH  OF  THE  PARTIES  TO  THIS  AGREEMENT  IRREVOCABLY  WAIVES  ANY  AND  ALL  RIGHT  TO  TRIAL  BY  JURY  IN  ANY  LEGAL  PROCEEDING  ARISING  OUT  OF  OR  RELATING  TO  THIS  AGREEMENT  OR  THE  TRANSACTIONS CONTEMPLATED HEREBY.         Section 9.12 Specific Performance. Subject to the provisions of this Agreement, the parties  agree  that  irreparable  damage  would  occur  if  any  provision  of  this  Agreement  were  not  performed  in  accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms  hereof, in addition to any other remedy to which they are entitled at law or in equity.  Nothing in this  Agreement shall limit any Person’s right to seek and obtain any specific performance or other equitable  relief to which any Person shall be entitled or to seek any remedy on account of any party’s fraud, intentional  or willful misrepresentation, bad faith, willful misconduct, or criminal activity.         Section 9.13 Counterparts. This Agreement may be executed in counterparts, each of which  shall be deemed an original, but all of which together shall be deemed to be one and the same agreement.  A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission  shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.                             [SIGNATURE PAGE FOLLOWS]                                                                                  54  302010047 v18 





 






         IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date above  first written.                                      COMPANIES:                                                                    CORAM MATERIALS CORP.                                                                     By:   /s/ Lorraine Vigliarolo                                   Name: Lorraine Vigliarolo                                   Title: VP                                                                                         MILLER PLACE DEVELOPMENT LLC                                                                     By:   /s/ Lorraine Vigliarolo                                   Name: Lorraine Vigliarolo                                   Title: VP                                                                                         A.B. OF SAYVILLE, LTD.                                                                     By:   /s/ Lorraine Vigliarolo                                   Name: Lorraine Vigliarolo                                   Title: VP                                                                                         MLFF REALTY CORP.                                                                     By:   /s/ Lorraine Vigliarolo                                   Name: Lorraine Vigliarolo                                   Title: VP                                                                                         BSLH REALTY CORP.                                                                     By:   /s/ Lorraine Vigliarolo                                   Name: Lorraine Vigliarolo                                   Title: VP                                                                                                                           SELLERS:                                                                                                      /s/ Michael Vigliarolo                                                Michael Vigliarolo                                                                      /s/ Lorraine Vigliarolo                                               Lorraine Vigliarolo                                                             Signature Page to Securities Purchase Agreement 





 






                                           BUYER:                            USC ATLANTIC, INC.                            By:   /s/ Ronnie Pruitt                      Name: Ronnie Pruitt                          Title: President                                 Signature Page to Securities Purchase Agreement                





 






                                      Annex A                                 Certain Definitions         “Action” means  any  claim,  action,  suit,  cause  of  action,  charge,  demand,  lawsuit,  arbitration,  inquiry,  inspection,  audit,  notice  of  violation,  proceeding,  litigation,  citation,  summons,  subpoena,  indictment,  or  investigation  of  any  nature,  civil,  criminal,  administrative,  investigative,  regulatory  or  otherwise, whether at law or in equity.         “Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, through  one or more intermediaries, controls, is controlled by or is under common control with, such Person. The  term  “control”  (including  the  terms  “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.          “Business Day” means any day except Saturday, Sunday or any other day on which commercial  banks located in New York, New York are authorized or required by Law to be closed for business.         “Closing Cash” means, without duplication, all cash and bank deposits of the Companies as of the  Effective Time, calculated on a consolidated basis in accordance with GAAP and in a manner consistent  with  those  methodologies,  policies,  procedures,  practices,  estimation  techniques,  assumptions  and  principles set forth on Schedule II. For the avoidance of doubt, Closing Cash shall (a) be calculated net of  issued but uncleared checks, wire transfers, and drafts and will include received but as of the Effective Time  uncleared checks, wire transfers and drafts deposited in the accounts of the Companies, (b) not include any  restricted cash or escrowed (including all cash posted to support letters of credit, performance bonds or  other  similar  obligations)  or  deposits  with  third  parties  (including  any  lessors  and/or  landlords),  (c)  include all  certificates  of  deposit  of  Coram  at  Peoples  United  Bank,  (d) not  include  any  Accounts  Receivable and (e)  include the prepaid expenses set forth on Exhibit F.         “Closing  Indebtedness”  means,  all  Indebtedness  as  of  the  Effective  Time  of  the  Companies,  calculated  in  accordance  with  GAAP  and  in  a  manner  consistent  with  those  methodologies,  policies,  procedures, practices, estimation techniques, assumptions and principals set forth on Schedule II, including  any such Indebtedness described on Schedule IV.         “Code” means the Internal Revenue Code of 1986, as amended.         “Confidentiality Agreement” means the confidentiality agreement, dated as of July 25, 2016, by  and between U.S. Concrete, Inc. and Coram Materials Corp.         “Contracts” means  all  contracts,  subcontracts,  leases,  subleases,  deeds,  mortgages,  licenses,  sublicenses, instruments, notes, bonds, commitments, undertakings, indentures, joint ventures and all other  agreements, commitments and legally binding arrangements or obligations, whether written or oral.         “Disclosure  Schedules” means  the  Disclosure  Schedules  delivered  by  Sellers  and  Buyer  concurrently with the execution and delivery of this Agreement.         “Dollars or $” means the lawful currency of the United States.         “Emerging Contaminant” means a substance listed pursuant to N.Y. Public Health Law § 1112,  including per- and polyfluoroalkyl substances (which includes perfluorooctanesulfonic acid (PFOS) and  perfluorooctanoic acid (PFOA)), and 1,4-Dioxane or pursuant to the Unregulated Contaminant Monitoring  Rule promulgated by the EPA under the Safe Drinking Water Act.                                      Annex-1   887245.9  302010047 v13  302010047 v18 





 






         “Encumbrance” means any encumbrance, security interest, charge, claim, limitation, mortgage,  option, community property interest, pledge, condition, equitable interest, deed of trust, deed to secure debt,  statutory  or  other  lien  (including  any  monetary  lien  of  any  type  or  character  (e.g.,  any  mechanic’s  or  materialmen’s lien, security interest or mortgage)), proxy, voting trust or agreement, easement, servitude,  encroachment, right of way, option, right of first offer, rights of first refusal or restriction of any kind,  including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of  ownership, rights of reversion or any reservation right and any third party possessory interests including  any Contract granting any of the foregoing.         “Environmental Claim” means any Action, Order, lien, Liability, fine, penalty or, as to each, any  settlement or judgment arising therefrom, by or from any Person alleging Liability of whatever kind or  nature  (including  Liability  or  responsibility  for  the  costs  of  enforcement  proceedings,  investigations,  cleanup, governmental response, removal or remediation, natural resources damages, property damages,  testing, site monitoring, personal injuries, medical monitoring, penalties, contribution, indemnification and  injunctive relief) arising out of, based on or resulting from: (a) the presence, Release of or exposure to, any  Hazardous Materials; or (b) any actual or alleged non-compliance with any Environmental Law or term or  condition of any Environmental Permit.         “Environmental  Law” means  any  Law,  and  any  Order  or  binding  agreement  with  any  Governmental  Authority:  (a)  relating  to  pollution  (or  the  cleanup  thereof)  or  the  protection  of  natural  resources, endangered or threatened species, human health or safety or the environment (including ambient  air, soil, surface water or groundwater or subsurface strata); or (b) concerning the presence of, exposure to  or  the  management,  manufacture,  use,  handling,  containment,  storage,  recycling,  reclamation,  reuse,  treatment,  generation,  discharge,  transportation,  transfer,  distribution,  processing,  production,  disposal,  discharge,  Release,  control  or  other  action  or  failure  to  act  involving  remediation  of  any  Hazardous  Materials. The term “Environmental Law” includes the following (including their implementing regulations  and any state analogs): the Comprehensive Environmental Response, Compensation and Liability Act of  1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§ 9601 et  seq.; the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976,  as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 et seq.; the Federal  Water Pollution Control Act of 1972, as amended by the Clean Water Act of 1977, 33 U.S.C. §§ 1251 et  seq.; the Toxic Substances Control Act of 1976, as amended, 15 U.S.C. §§ 2601 et seq.; the Emergency  Planning and Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001 et seq.; the Clean Air Act of  1966,  as  amended  by  the  Clean  Air  Act  Amendments  of  1990,  42  U.S.C.  §§ 7401  et  seq.;  and  the  Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. §§ 651 et seq.         “Environmental Notice” means any directive, notice of violation or infraction or notice respecting  any Environmental Claim relating to actual or alleged non-compliance with any Environmental Law or any  term or condition of any Environmental Permit.         “Environmental Permit” means any Permit, letter, clearance, condition, consent, waiver, closure,  exemption, decision or other action required under or issued, granted, given, authorized by or made pursuant  to Environmental Law.         “ERISA” means  the  Employee  Retirement  Income  Security  Act  of  1974,  as amended,  and  the  regulations promulgated thereunder.         “ERISA Affiliate” means, with respect to any Person, any other Person that, together with such  first Person, would be treated as a single employer under Section 4001(b)(1) of ERISA or Section 414 of  the Code.                                                                                Annex-2  302010047 v18 





 






         “Excluded Item” means any and all Liabilities based upon or arising out of (or alleged to be based  upon or arising out of): (a) any Contracts with, obligations to, or prior relationships or dealings with any  Related Party, (b) any Indebtedness owed by or to any Seller or any Affiliate of any Seller (other than the  Closing Indebtedness set forth on the Payoff Letters), (c) any Outstanding Consents, (d) any dispute or  allegations  among the  Sellers,  and (e) any  item, event, or other matter set forth on or described  as an  Excluded Item on Schedule III.         “GAAP” means United States generally accepted accounting principles as in effect from time to  time.         “Governmental  Authority” means  any  federal,  state,  local  or  foreign  government  or  political  subdivision  thereof,  or  any  agency,  authority,  board,  branch,  bureau,  commission,  department,  instrumentality, official, subdivision, or instrumentality of such government or political subdivision, or any  self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority  (to the extent that the rules, regulations or orders of such organization or authority have the force of Law),  or any arbitrator, court or tribunal of competent jurisdiction.         “Hazardous Materials” means: (a) any material, substance, chemical, waste, product, derivative,  compound, mixture, solid, liquid, mineral or gas, in each case, whether naturally occurring or manmade,  the presence of which requires investigation, control or remediation under any Environmental Laws or that  is hazardous, acutely hazardous, a pollutant, toxic, explosive, corrosive, flammable, infectious, radioactive,  carcinogenic  or  words  of  similar  import  or  regulatory  effect  under  Environmental  Laws;  and  (b)  any  petroleum or petroleum-derived products, radon, radioactive materials or wastes, asbestos in any form, lead  or lead-containing materials, urea formaldehyde foam insulation and polychlorinated biphenyls.         “HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.         “Indebtedness” of any Person means, without duplication, (a) the principal, accrued and unpaid  interest, prepayment and redemption premiums or penalties (if any), unpaid fees or expenses and other  monetary  obligations  in  respect  of  (i) indebtedness  of  such  Person  for  money  borrowed  and  (ii) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of  which such Person is responsible or liable; (b) all vendor financing arrangements; (c) all obligations of such  Person issued or assumed as the deferred purchase price of property, all conditional sale obligations of such  Person and all obligations of such Person under any title retention agreement; (d) all obligations of such  Person under leases required to be capitalized in accordance with GAAP; (e) all obligations of such Person  for the reimbursement of any obligor on any letter of credit, banker’s acceptance, surety bond, performance  bond or similar credit transaction; (f) all obligations of such Person under interest rate or currency swap  transactions  or  commodity  hedges  (valued  at  the  termination  value  thereof);  (g) the  liquidation  value,  accrued and unpaid dividends, prepayment or redemption premiums and penalties (if any), unpaid fees or  expenses and other monetary obligations in respect of any redeemable preferred stock (or other equity) of  such Person; (h) an aggregate amount equal to the earned and unused vacation pay, sick pay and paid time  off of or owed to the employees of each Company as of the Closing Date; (i) all obligations of the type  referred  to  in  clauses (a)  through  (h)  of  any  other  Persons  for  the  payment  of  which  such  Person  is  responsible or liable, directly or indirectly, as obligor, guarantor, surety or otherwise, including guarantees  of such obligations; (j) all obligations of the type referred to in clauses (a) through (h) of other Persons  secured by (or for which the holder of such obligations has an existing right, contingent or otherwise, to be  secured by) any Encumbrance on any property or asset of such Person (whether or not such obligation is  assumed by such Person).         “Insurance Proceeds” means those monies (i) received by an insured (or its successor-in-interest)  from an insurance carrier or (ii) paid by an insurance carrier on behalf of an insured (or its successor-in-                                                                              Annex-3  302010047 v18 





 






   interest),  in  each  case  net  of  any  applicable  deductible,  retention  and  costs  of  pursuing  any  insurance  providers (including reasonable attorneys’ fees).         “Intellectual  Property” means  all  rights  in  and  to  the  following  worldwide:  (a) trade  names,  trademarks, service marks, trade dress and logos, Internet domain names, other indicia of origin and all  registrations of and applications to register any of the foregoing, including the goodwill symbolized thereby  or associated therewith; (b) patents, patent applications, utility models, statutory invention registrations,  mask  works,  invention  disclosures  and  industrial/product  designs,  whether  or  not  patentable,  and  all  reissues,  divisional,  renewal,  extensions,  provisionals,  continuations  and  continuations-in-part  thereof;  (c) copyrights and original works of authorship, including rights in proprietary computer software, source  code, object code, other original works of authorship and moral rights; (d) Trade Secrets and (e) other  proprietary and/or confidential information.          “Knowledge of Sellers” or “Sellers’ Knowledge” or any other variant thereof or similar knowledge  qualification,  means  the  actual  knowledge in  each  case,  after  due  inquiry,  of  any  Seller  or  Michael  Vigliarolo, Jr.         “Landfill Matter” means any matter described in Section 8.02(f) that arises out of or relates to the  landfill located on the Real Property.         “Law” means any statute, law, ordinance, regulation, rule, code, Order, constitution, treaty or other  requirement or rule of law of any Governmental Authority, including an arbitration panel, and any principle  of common law or judicial or administrative interpretation thereof.         “Liabilities”  means any debt, loss,  damage, adverse claim, fine,  penalty, liability or obligation  (whether direct or indirect, known or unknown, asserted or unasserted, absolute or contingent, accrued or  unaccrued,  matured  or  unmatured,  determined  or  determinable,  disputed  or  undisputed,  liquidated  or  unliquidated,  conditional  or  unconditional,  or  due  or  to  become  due,  joint  or  several,  and  whether  in  contract, tort, strict liability or otherwise, and including all costs and expenses relating thereto including all  reasonable fees, disbursements and expenses of legal counsel, experts, engineers, and consultants and costs  of investigation), regardless of whether such debt, loss, damage, adverse claim, fine, penalty, liability or  obligation would be required to be disclosed on a balance sheet prepared in accordance with GAAP and  regardless  of  whether  such  debt,  loss  damage,  adverse  claim,  fine,  penalty,  liability  or  obligation  is  immediately due and payable.         “Losses” means losses, damages, Liabilities, deficiencies, judgments, interest, awards, settlement  payments  or  other  amounts,  penalties,  fines,  costs  or  expenses  of  whatever  kind,  including  reasonable  attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing  any insurance providers; provided, however, that “Losses” shall not include punitive damages (except to  the extent paid or payable in connection with a Third Party Claim).         “Material Adverse Effect” means any result, event, occurrence, fact, condition, violation or change  (whether or not constituting a breach of a representation, warranty or covenant set forth in this Agreement)  that has, or could reasonably be expected to have, individually or in the aggregate, a materially adverse  effect on (a) the business, results of operations, prospects or condition (financial or otherwise) liabilities, or  assets of the Companies, taken as a whole, or (b) the ability of Sellers to consummate the transactions  contemplated hereby on a timely basis in accordance with the terms of this Agreement; provided, however,  that “Material Adverse Effect” shall not include any result, event, occurrence, fact, condition, violation or  change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions;  (ii)  changes  that  generally  affect  the  industries  in  which  the  Companies  operate;  (iii)  any  changes  in  accounting rules  or  principles,  including  changes  in GAAP;  (iv) any  changes  in  financial or  securities                                                                               Annex-4  302010047 v18 





 






   markets in general; or (v) conditions caused by acts of terrorism or war (whether or not declared); provided  further, however, that any result, event, occurrence, fact, condition, violation or change referred to in clauses  (i), (ii), (iii). (iv) and (v) immediately above shall be taken into account in determining whether a Material  Adverse Effect has occurred or could reasonably be expected to occur to the extent that such result, event,  occurrence, fact, condition, violation or change has a disproportionate effect on the Companies, taken as a  whole, compared to other participants in the industries in which the Companies conduct their business.         “Order” means  any  order,  writ,  judgment,  ruling,  injunction  (temporary,  preliminary,  or  permanent), decree, doctrine, stipulation, assessment, determination or award entered by, with or before  any Governmental Authority.         “Organizational Documents” means (a) in the case of a Person that is a corporation, its articles or  certificate of incorporation and its bylaws, regulations or similar governing instruments required by the  laws of its jurisdiction of formation or organization; (b) in the case of a Person that is partnership, its articles  or certificate of partnership, formation or association, and its partnership agreement (in each case, limited,  limited liability, general or otherwise); (c) in the case of a Person that is a limited liability company, its  articles or certificate of formation or organization and its limited liability company agreement or operating  agreement; and (d) in the case of a Person that is none of a corporation, partnership (limited, limited liability,  general or otherwise), limited liability company or natural person, its governing instruments as required or  contemplated by the laws of its jurisdiction of organization.          “Owned Intellectual Property” means Intellectual Property owned by the Companies, in whole or  in part.         “Payoff Letters” means, (a) with respect to Company Indebtedness, the payoff letter(s) provided  by Sellers in form and substance reasonably acceptable to Buyer, addressed to Buyer (or on which Buyer  is otherwise expressly granted the right to rely), signed by the Persons to which Indebtedness is payable,  setting forth (i) the amount required to pay off in full at the Effective Time all amounts owing in connection  with such Company Indebtedness (including the outstanding principal, accrued and unpaid interest and  prepayment and other penalties), (ii) wire transfer instructions for the payment of such amounts and (iii) the  commitment to release any and all Encumbrances which such Person may hold on any of the assets of the  Companies upon receipt of the payoff amount set forth therein and (b) with respect to Transaction Expenses,  the fee statement letters or other the formal statement(s), in form and substance reasonably acceptable to  Buyer, addressed to Buyer (or on which Buyer is otherwise expressly granted the right to rely), from each  of  the  Representatives  of  Sellers  and  the  Companies  to  which  Transaction  Expenses  will  be  owed  or  outstanding as of the Closing Date indicating (i) that upon payment of the amount specified therein, all  obligations of Sellers and the Companies (other than contingent indemnity obligations) to such Persons  shall be satisfied in full and (ii) the wire transfer instructions for the payment of such amounts.         “Permits” means  all  permits,  licenses,  franchises,  approvals,  authorizations,  registrations,  certificates,  variances  and  similar  rights  obtained,  or  required  to  be  obtained,  from  Governmental  Authorities in respect of the Companies’ business.         “Permitted Encumbrances” means (a) liens for Taxes and water and sewage charges not yet due  and payable,  (b)  covenants,  conditions,  restrictions  and  reservations  that  do  not,  individually or in  the  aggregate interfere in any material respect with the present or future use or occupancy of the Real Property  and (c) variations between tax lot lines and lines of record title, and (d) any state of facts which would be  shown on or by an accurate current survey of the Real Property.         “Person” means  and  includes  natural  persons,  corporations,  limited  partnerships,  general  partnerships,  limited  liability  companies,  limited  liability  partnerships,  joint  stock  companies,  joint                                                                               Annex-5  302010047 v18 





 






   ventures,  associations,  companies,  trusts,  banks,  trust  companies,  land  trusts,  business  trusts  or  other  organizations.         “Post-Closing Tax Period” means any taxable period beginning after the Closing Date and, with  respect to any taxable period beginning before and ending after the Closing Date, the portion of such taxable  period beginning after the Closing Date.         “Pre-Closing Tax Period” means any taxable period ending on or before the Closing Date and,  with respect to any taxable period beginning before and ending after the Closing Date, the portion of such  taxable period ending on and including the Closing Date.         “Pre-Closing Taxes” means (a) Taxes of each Company for any Pre-Closing Tax Period and (b)  any sales (including bulk sales) Tax or similar Tax imposed as a result of the transactions contemplated by  this Agreement and any penalties or interest with respect to such Taxes.         “Reference Rate” means the per annum rate of interest announced from time to time by Bank of  America N.A. (or any successor) as its prime rate (or reference rate).         “Related Party” means, with respect to any specified Person: (a) any Affiliate of such specified  Person, or any director, executive officer, general partner, manager or managing member of such Affiliate;  (b) any Person who serves or within the past five (5) years has served as a director, executive officer,  partner, manager, member or in a similar capacity of such  specified  Person; (c) any immediate  family  member of a Person described in clause (b); (d) any other Person who holds, individually or together with  any Affiliate of such other Person and any member(s) of such Person’s immediate family, more than 5% of  the outstanding voting equity or ownership interests of such specified Person, (e) Frank Vigliarolo, Jr. or  (f) Gail Vigliarolo.          “Release” means any actual or threatened release, spilling, leaking, pumping, pouring, emitting,  emptying, discharging, injecting, escaping, leaching, dumping, abandonment or disposing into the indoor  or outdoor environment (including ambient air, surface water, groundwater, land surface or subsurface  strata) or within any building, structure, facility or fixture, or to, from, into, out of or upon any property.         “Representative” means, with respect to any Person, any and all directors, managing members,  managers, officers, employees, consultants, financial advisors, counsel, accountants and other agents of  such Person.         “Restricted Business” means the production, distribution, mining, pumping, hauling, delivering,  supplying or sale of ready-mixed concrete, sand or aggregates, together with such other businesses currently  operated by, or currently proposed to be operated  by, any  Company, Buyer, or any  of their respective  Affiliates or direct or indirect Subsidiaries.         “Subsidiary” means, with respect to any Person, any corporation, partnership, association, trust or  other form of legal entity of which (a) 50% or more of the voting power of the outstanding voting securities  are on the date hereof directly or indirectly owned by such Person, (b) such Person or any Subsidiary of  such Person is a general partner on the date hereof or otherwise controls such entity or (c) such Person  otherwise consolidates such entity in its financial statements.         “Taxes” means  all  federal,  state,  local,  foreign  and  other  income,  gross  receipts,  sales,  use,  production,  ad  valorem,  transfer,  franchise,  registration,  profits,  license,  lease,  service,  service  use,  withholding,  payroll,  employment,  unemployment, estimated,  excise,  severance,  environmental,  fuel,  stamp, occupation, premium, property (real or personal), real property gains, windfall profits, customs,                                                                               Annex-6  302010047 v18 





 






   duties  or  other taxes,  fees,  assessments  or charges  of  any  kind  whatsoever, together  with any  interest,  additions or penalties with respect thereto and any interest in respect of such additions or penalties including  any obligation to indemnify or otherwise attribute or succeed to the Tax Liability of any other Person.         “Tax  Return” means  any  return,  declaration,  report,  claim  for  refund,  information  return  or  statement or other document relating to Taxes, including any schedule or attachment thereto, and including  any amendment thereof.         “Territory” means, collectively, the area composed of the 100-mile radius of each location where  any Company, Buyer, or any of their Affiliates operates or provides goods or services.          “Title Exceptions” means all exceptions to title set forth in those certain Commitments for Title  Insurance issued by Advantage Title Agency, Inc. bearing Title Numbers: 18-CS-53324; 18-CS-53325; 18- CS-53326; 18-CS-53327; 18-CS-53328; 18-CS-53633; 18-CS-53739.         “Trade  Secrets”  means  proprietary  and/or  confidential  information,  including  all  know-how,  processes  (manufacturing processes),  product  formulae,  technical  data  and  designs,  specifications,  vendor/customer lists and price/fee lists.         “Transaction Documents” means this Agreement, the Seller Release, and any other agreements,  certificates and instruments to be executed or delivered in connection herewith or therewith or pursuant  hereto or thereto.         “Transaction Expenses” means  all unpaid (whether or not accrued) fees  or other payments  or  obligations owed to third parties by any Company or any Seller (including those fees, expenses, payments  and obligations incurred by any Company on behalf of any Seller), arising from or in connection with the  negotiation,  preparation,  execution,  delivery  and  performance  of  this  Agreement,  the  transactions  contemplated hereby and any due diligence requests or activity related to such transactions, including (a)  financial  advisors’,  attorneys’,  accountants’  and  other  professional  fees  and  expenses,  (b)  any  and  all  payments arising from retention, severance, “stay,” sale, transaction or sign-on bonuses as well as any  deferred compensation payable to employees of any Company or any Seller and any other similar payments  to employees and Representatives, including any Company’s, or any Seller’s portion of employment and  similar Taxes associated with such items, (c) any costs or expenses, including any consent fees, license  transfer  fees  or  similar  payments,  payable  to  any  third  party  in  connection  with  the  assignment  or  assumption of any Contract or Permit and/or the consummation of the transactions contemplated hereby,  and (d) any and all fees, expenses, break costs (including costs calculated based on difference in swap and  current  rates)  payments  or  other  costs  related  to  the  termination  of  any  swap  agreements,  derivative  transactions or similar arrangements.         “WARN Act” means the federal Worker Adjustment and Retraining Notification Act of 1988, and  similar state, local and foreign laws related to plant closings, relocations, mass layoffs and employment  losses.                                                                                Annex-7  302010047 v18 





 






                                      Exhibit G                                                                        Purchase Price Allocation                                                                Purchase Price allocated among the Securities:                                                           Company                   Percentage of Purchase Price Allocated to                                                        Securities     Coram Materials Corp.     Miller Place Development LLC                                            Based on the aggregate value of the assets of     A.B. of Sayville, Ltd.                                               each Company, as described below     MLFF Realty Corp.     BSLH Realty Corp.                                                           Purchase Price allocated among the assets of each Company       Cash                           Amount  equal  to  Closing  Cash  as finally  determined     (Class I)                      pursuant to Section 2.04 of this Agreement.                                         Marketable Securities and      Net book value     Certificates of Deposit     (Class II)     Accounts Receivable            Net book value      (Class III)     Inventory                      Fair market value as of the Closing Date      (Class IV)     Prepaid Expenses and Other Current Net book value      Assets      (Class V)      Leasehold Improvements, Machinery Fair market value as of the Closing Date     and Equipment, Furniture and     Fixtures and Vehicles     (Class V)      Real Estate and Buildings      Fair market value as of the Closing Date      (Class V)      Section 197 Assets including   Remainder     Goodwill and Going Concern Value     (Class VI and VII)             302010047 v18 





 






                                    SCHEDULE I                                                                             Resignations                                                                Michael Vigliarolo, Manager/Director, President           Lorraine Vigliarolo, Manager/Director, Vice President, Secretary and Treasurer                                             302010047 v18 





 






                                    SCHEDULE II                          Net Trade Working Capital Principles    The Financial Statements of the Companies have been prepared in a manner consistent with the accounting  principles of GAAP, with the exception that (i) they have never been audited, (ii) they do not account for  inventory, and (iii) certain expenses have been capitalized which may not be eligible for the same type  treatment under GAAP.                              302010047 v18 





 






                                   SCHEDULE III                                                                           Excluded Items                                           The only entities included the transactions contemplated hereby are the Companies.  All other Persons,  including, but not limited to, any Affiliates thereof or of any of the Sellers are excluded and such Persons  and all Liabilities associated therewith shall be Excluded Items.      302010047 v18 





 






                                   SCHEDULE IV                                                                         Closing Indebtedness    302010047 v18