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PRO-BUYER STOCK PURCHASE AGREEMENT

STOCK PURCHASE AGREEMENT


BETWEEN
_____________________________
_____________________________
AND
_____________________________
_______________, 20___

STOCK PURCHASE AGREEMENT


This STOCK PURCHASE AGREEMENT (this Agreement) among ____________________, a
______________
corporation
(the
Buyer),
and
____________________________,
[a
_______________ corporation] (Seller 1), and ______________, [a _______________ corporation]
(Seller 2) (each of Seller 1 and Seller 2, a Seller and, collectively, the Sellers) takes effect on
_______________ __, 20__. The Buyer and the Sellers are referred to individually as a Party and
collectively as the Parties.

RECITALS
The Sellers in the aggregate own all of the issued and outstanding capital stock in
_________________, a _______________ corporation (the Company).
This Agreement contemplates a transaction in which the Buyer will purchase from the Sellers, and the
Sellers will sell to the Buyer, all of the issued and outstanding capital stock of the Company, on the terms
and subject to the conditions of this Agreement.

AGREEMENT
In consideration of the above recitals and the promises set forth in this Agreement, the Parties agree
as follows:
1. Definitions.
Adverse consequences means all actions, suits, proceedings, hearings, investigations, charges,
complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues,
penalties, fines, costs, amounts paid in settlement, liabilities, obligations, taxes, liens, losses,
expenses and fees, including court costs and reasonable attorneys fees and expenses.
Affiliate has the meaning set forth in Rule 12b-2 of the regulations promulgated under the
Securities Exchange Act of 1934, as amended.
Affiliated group means any affiliated group within the meaning of Code 1504(a) or any similar
group defined under a similar provision of law.
Agreement has the meaning set forth in the preface above.
Buyer has the meaning set forth in the preface above.
Buyer Parties means the Buyer and its officers, directors, employees, shareholders, agents and
affiliates.
Buyers Disclosure Schedule has the meaning set forth in section 3.2 of this Agreement.
Closing has the meaning set forth in section 2.5 of this Agreement.
Closing date has the meaning set forth in section 2.5 of this Agreement.
Closing Date Balance Sheet has the meaning set forth in section 2.4 of this Agreement.
COBRA means the requirements of Part 6, Subtitle B, Title I of ERISA and Code 4980B and of
any similar state law.

Code means the Internal Revenue Code of 1986, as amended.


Company has the meaning set forth in the preface above.
Company employee has the meaning set forth in section 6.7 of this Agreement.
Confidential information means any information concerning the business and affairs of any of
the Company and its subsidiaries that is not already generally available to the public.
Consolidated net working capital means the difference between the total current assets and the
total current liabilities as shown on the Closing Date Balance Sheet.
Deferred Intercompany Transaction has the meaning set forth in Treas. Reg. 1.1502-13.
Draft Closing Date Balance Sheet has the meaning set forth in section 2.4 of this Agreement.
Employee Benefit Plan means any: (a) employee benefit plan as such term is defined in
ERISA 3(3); (b) nonqualified deferred compensation or retirement plan or arrangement;
(c) qualified defined contribution retirement plan or arrangement that is an Employee Pension
Benefit Plan; (d) qualified defined benefit retirement plan or arrangement that is an Employee
Pension Benefit Plan (including any Multiemployer Plan); or (e) Employee Welfare Benefit Plan or
material fringe benefit or other retirement, bonus, incentive, life, disability, medical, dental or other
similar plan, program or arrangement.
Employee Pension Benefit Plan has the meaning set forth in ERISA 3(2).
Employee Welfare Benefit Plan has the meaning set forth in ERISA 3(1).
Environmental, health and safety requirements means all laws, all judicial and administrative
orders and determinations, all contractual obligations and all common law concerning public
health and safety, worker health and safety, and pollution or protection of the environment,
including without limitation the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. 9601 et seq., the Resource Conservation and
Recovery Act of 1976, as amended, 42 U.S.C. 6901 et seq., the Clean Air Act, as amended, 42
U.S.C. 7401 et seq., the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et
seq., the Oil Pollution Act of 1990, as amended, 33 U.S.C. 2701 et seq., and the Occupational,
Safety and Health Act, as amended, 29 U.S.C. 651 et seq., as well as all those relating to the
presence, use, production, generation, handling, transportation, treatment, storage, disposal,
distribution, labeling, testing, processing, discharge, release, threatened release, control or
cleanup of any hazardous materials, substances or wastes, chemical substances or mixtures,
pesticides, pollutants, contaminants, toxic chemicals, petroleum products or byproducts,
asbestos, polychlorinated biphenyls, noise or radiation, each as amended and in effect, now or in
the future.
ERISA means the Employee Retirement Income Security Act of 1974, as amended.
ERISA affiliate means each entity that is treated as a single employer with the Sellers for
purposes of Code 414.
Excess loss account has the meaning set forth in Treas. Reg. 1.1502-19.
Fiduciary has the meaning set forth in ERISA 3(21).

Financial Statements has the meaning set forth in section 4.7 of this Agreement.
GAAP means United States generally accepted accounting principles as in effect from time to
time.
Governmental authority means (a) any federal, state, local or foreign governmental,
administrative or regulatory authority, court, agency or body, or any division or subdivision, or
(b) any arbitrator, arbitration board, tribunal or mediator.
GUST has the meaning set forth in IRS Revenue Procedure 2001-55 and any superseding
guidance issued by the Internal Revenue Service.
HSR Act means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
Income tax means any federal, state, local or foreign income tax (or other tax, such as a
franchise tax, the computation of which is based upon net income), including any interest, penalty
or addition, whether disputed or not.
Income Tax Return means any return, declaration, report, claim for refund, or information return
or statement relating to income taxes, including any schedule, attachment or amendments.
Indemnified Party has the meaning set forth in section 8.4 of this Agreement.
Indemnifying Party has the meaning set forth in section 8.4 of this Agreement.
Intellectual property means all of the following in any jurisdiction throughout the world: (a) all
inventions (whether patentable or unpatentable and whether or not reduced to practice), all
improvements, and all patents, patent applications and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions and reexaminations;
(b) all trademarks, service marks, trade dress, logos, trade names, slogans, internet domain
names, Internet addresses, corporate names and rights in telephone numbers, together with all
translations, adaptations, derivations and combinations and including all associated goodwill, and
all applications, registrations and renewals; (c) all copyrightable works, all copyrights, and all
applications, registrations and renewals; (d) all mask works and all applications, registrations and
renewals; (e) all trade secrets and confidential business information, including ideas, research
and development, know how, formulas, compositions, manufacturing and production processes
and techniques, technical data, designs, drawings, specifications, customer and supplier lists,
pricing and cost information, and business and marketing plans and proposals; (f) all computer
software, including all source code, object code, executable code, firmware, development tools,
files, records, data, data bases and related documentation, regardless of the media on which it is
recorded, and all Internet sites (and all contents of the sites); (g) all advertising and promotional
materials; (h) all other proprietary rights; and (i) all copies and tangible embodiments of any of the
foregoing (in whatever form or medium).
Knowledge means actual knowledge after reasonable investigation and knowledge that could
have been obtained through reasonable inquiry.
Law means any federal, state, local or foreign constitution, law, code, plan, statute, rule,
regulation, ordinance, order, determination, writ, injunction, ruling, judgment, decree, charge,
restriction or permit of any governmental authority, each as amended and in effect, now or in the
future.

Liability means any liability or obligation of whatever kind or nature, whether known or unknown,
whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due, including without limitation
any liability for taxes.
Material adverse effect means any change or effect that is reasonably likely to be materially
adverse to the business, operation, properties, financial conditions, assets, liabilities (including
without limitation contingent liabilities) or prospects of an entity or its subsidiaries, individually or
collectively.
Most recent Balance Sheet means the balance sheet contained within the most recent Financial
Statements.
Most recent Financial Statements has the meaning set forth in section 4.7 of this Agreement.
Most recent fiscal month end has the meaning set forth in section 4.7 of this Agreement.
Most recent fiscal year end has the meaning set forth in section 4.7 of this Agreement.
Multiemployer Plan has the meaning set forth in ERISA 3(37).
Ordinary course of business means the ordinary course of business consistent with past custom
and practice (including with respect to quantity and frequency).
Party has the meaning set forth in the preface above.
PBGC means the Pension Benefit Guaranty Corporation.
Permit means any permits, authorizations, approvals, decisions, zoning orders, franchises,
registrations, licenses, filings, certificates, variances or similar rights granted by or obtained from
any governmental authority.
Permitted Lien means (a) mechanics, materialmens and similar liens that are being contested
in good faith and for which the particular entity has provided adequate reserves; (b) liens for taxes
not yet due and payable or for taxes that the taxpayer is contesting in good faith through
appropriate proceedings and for which the taxpayer has provided adequate reserves;
(c) purchase money liens and liens securing rental payments under capital lease arrangements;
and (d) other liens arising in the ordinary course of business and not incurred in connection with
the borrowing of money.
Person means an individual, a partnership, a corporation, a limited liability company, an
association, an entity, a joint stock company, a trust, a joint venture, an unincorporated
organization, any other business entity or any governmental authority.
Prohibited Transaction has the meaning set forth in ERISA 406 and Code 4975.
Purchase price has the meaning set forth in section 2.2 of this Agreement.
Reportable event has the meaning set forth in ERISA 4043.
Security interest means any mortgage, pledge, lien, encumbrance, charge or other security
interest.

Seller 1 has the meaning set forth in the preface above.


Seller 2 has the meaning set forth in the preface above.
Sellers has the meaning set forth in the preface above.
Sellers Disclosure Schedule has the meaning set forth in section 3.1 of this Agreement.
Shares means any share of the common stock, par value $_____ per share, of the Company.
Software means the Companys ____________________, and all ancillary software necessary
to use the Companys ____________________.
subsidiary means, with respect to any person, any corporation, partnership, limited liability
company or other entity in which any person has direct or indirect equity or other ownership
interest that represents 50% or more of the aggregate equity or other ownership interest in such
entity, or has the power to vote or direct the voting of sufficient securities to elect a majority of the
directors, governors or persons holding similar positions.
Survey has the meaning set forth in section 5.9 of this Agreement.
Tax means any federal, state, local or foreign income, gross receipts, license, payroll,
employment, excise, severance, stamp, occupation, premium, windfall profits, environmental
(including taxes under Code 59A), customs duties, capital stock, franchise, profits, withholding,
social security (or similar), unemployment, disability, real property, personal property, sales, use,
transfer, registration, value added, alternative or add-on minimum, estimated, or other tax of any
kind whatsoever, including any interest, penalty or addition, whether disputed or not.
Tax Return means any return, declaration, report, claim for refund, or information return or
statement relating to taxes, including any schedule, attachment or amendment.
Third party claim has the meaning set forth in section 8.4 of this Agreement.
Transaction Documents means all documents and agreements to be entered into by one or
more of the Parties in connection with the transactions contemplated by this Agreement.
2. Purchase and Sale of the Shares.
2.1
Basic Transaction. On the terms and subject to the conditions of this Agreement, the
Buyer agrees to purchase and accept delivery from each of the Sellers, and each of the Sellers agrees to
sell, assign, transfer and deliver to the Buyer, all of the issued and outstanding shares, free and clear of
all security interests or restrictions, at the closing.
2.2
Purchase Price. The total purchase price for the transfer of the shares equals
$____________________ (the purchase price). The purchase price will be subject to a post-closing
adjustment as set forth in section 2.4 of this Agreement. The purchase price will be allocated among the
Sellers in proportion to their respective holding of the shares as set forth in section 4.2 of the Sellers
Disclosure Schedule.
2.3

Payment of Purchase Price. The Buyer will pay the purchase price as follows:

(a)
At the closing, the Buyer will pay, by wire transfer or delivery of other immediately
available funds, $_____________ of the purchase price, to the Sellers.
(b)
At the closing, the Buyer will deposit with ___________, as escrow agent,
$______________ of the purchase price (the escrow). The escrow and any accrued interest will serve
as partial security for satisfaction of any adjustment to the purchase price in favor of the Buyer pursuant to
section 2.4(c)(ii) of this Agreement and any indemnification obligations of the Sellers under section 8 of
this Agreement. The escrow will be subject to the terms of an Escrow Agreement substantially in the form
of the attached Exhibit ___.
2.4

Purchase Price Adjustment.

(a)
Within 60 days after the closing date, the Buyer will prepare and deliver to the
Sellers a draft consolidated balance sheet (the Draft Closing Date Balance Sheet) for the Company and
its subsidiaries as of the close of business on the closing date (determined on a pro forma basis as
though the Parties had not consummated the transactions contemplated by this Agreement). The Buyer
will prepare the Draft Closing Date Balance Sheet in accordance with GAAP.
The Buyer will make available to the Sellers and their accountants the work papers
and back-up materials used in preparing the Draft Closing Date Balance Sheet.
(b)
If the Sellers have any objections to the Draft Closing Date Balance Sheet, then
they must deliver a detailed statement describing their objections to the Buyer within 30 days after
receiving the Draft Closing Date Balance Sheet. The Buyer and the Sellers will use reasonable efforts to
resolve any such objections themselves through good faith negotiation. If the Parties do not obtain a final
resolution within 30 days after the Buyer has received the statement of objections, however, the Buyer
and the Sellers will select a mutually acceptable, nationally-recognized accounting firm to resolve any
remaining objections. The Buyer will pay 50% and the Sellers will pay 50% of the costs and expenses of
any accounting firm so used. The determination made by such accounting firm will be set forth in writing
and will be conclusive and binding upon the Parties. The Closing Date Balance Sheet means the Draft
Closing Date Balance Sheet together with any revisions made pursuant to this section 2.4(b).
(c)

The purchase price will be adjusted as follows:

(i) If the consolidated net working capital is greater than $_______________, then
the Buyer will pay to the Sellers, by wire transfer or delivery of other immediately available funds, an
amount equal to such excess. Such payment will be made within five days after the date on which the
Closing Date Balance Sheet is determined pursuant to section 2.4(b) of this Agreement. This additional
amount would be allocated between the Sellers in proportion to their ownership of the Company
immediately prior to the closing.
(ii) If the consolidated net working capital is less than $_______________, then the
Sellers will pay to the Buyer, by wire transfer or delivery of other immediately available funds, an amount
equal to such deficiency. Such payment will be made within five days after the date on which the Closing
Date Balance Sheet is determined pursuant to section 2.4(b) of this Agreement. [In the event the
Sellers do not make such payment within such period, the Buyer will have the option of
recovering from the escrow all or any part of any amount the Sellers owe it pursuant to this
section 2.4(c)(ii).]
2.5
The Closing. The closing of the transactions contemplated by this Agreement (the
closing) will take place at the offices of ____________________, in _______________, _________, at
9:00 a.m., on the second business day after the respective Parties have satisfied or waived all conditions

to the obligations of the Parties to consummate the transactions contemplated by this Agreement (other
than actions the Parties will take at the closing itself) or any other time and date as the Parties may agree
(the closing date).
2.6
Deliveries at the Closing. At the closing: (a) the Sellers will execute, acknowledge (if
appropriate) and deliver to the Buyer any certificates, instruments and documents, including those
referred to in section 7.1 of this Agreement, as the Buyer and its counsel may reasonably request; (b) the
Buyer will execute, acknowledge (if appropriate) and deliver to the Sellers any certificates, instruments
and documents, including those referred to in section 7.2 of this Agreement, as the Sellers and their
counsel may reasonably request; (c) the Sellers will deliver to the Buyer certificates, if any, representing
all of the shares, endorsed in blank or accompanied by duly executed assignment documents, along with
duly executed spousal consents, as necessary, and (d) the Buyer will deliver to the Sellers that portion of
the purchase price to be paid at the closing.
3. Representations and Warranties Concerning the Transaction.
3.1
Representations and Warranties of the Sellers. Each of the Sellers represents and
warrants to the Buyer that the statements contained in this section 3.1 are correct and complete as of the
date of this Agreement and will be correct and complete as of the closing date, except as set forth in the
disclosure schedule of the Sellers (the Sellers Disclosure Schedule) attached to this Agreement.
The Sellers Disclosure Schedule will be arranged in paragraphs corresponding to the
sections contained in this section 3.1.
(a)
Organization of the Seller. The Seller, if a corporation or other entity, is duly
organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or
other formation.
(b)
Authorization of Transaction. Each of the Sellers has full power and authority
(including full corporate or other entity power and authority) to execute and deliver this Agreement and the
Transaction Documents to which such Seller is a party, and to perform his, her or its obligations under this
Agreement and the Transaction Documents to which such Seller is a party. This Agreement and the
Transaction Documents to which such Seller is a party constitute the valid and legally binding obligations
of such Seller, enforceable in accordance with their respective terms and conditions. None of the Sellers
needs to give any notice to, make any filing with, or obtain any authorization, consent or approval of, any
governmental authority or other person in order to consummate the transactions contemplated by this
Agreement and the Transaction Documents to which such Seller is a party[, except for the filings
required under the HSR Act].
Each of the Sellers has duly authorized the execution, delivery and performance of
this Agreement and the Transaction Documents to which such Seller is a party.
(c)
Noncontravention. Neither the execution and the delivery of this Agreement or
the Transaction Documents to which any of the Sellers is a party, nor the consummation of the
contemplated transactions, will (i) violate any law to which any of the Sellers is subject, or any provision of
such Sellers articles, charter, limited liability company agreement, partnership agreement, bylaws, or
other organizational documents or governance provisions; (ii) conflict with, result in a breach of, constitute
a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify
or cancel, or require any notice under any agreement, contract, lease, license, instrument or other
arrangement to which any of the Sellers is a party or by which it is bound, or to which any of its assets is
subject[, except for such violations, defaults, breaches or other occurrences that do not,
individually or in the aggregate, have a material adverse effect on such Seller, its business or
financial condition]; or (iii) result in the imposition or creation of any security interest on the shares.

(d)
Brokers Fees. None of the Sellers has any liability to pay any fees or
commissions to any broker, finder or agent with respect to the transactions contemplated by this
Agreement for which the Buyer could become liable or obligated.
(e)
Shares. Each of the Sellers holds of record and owns beneficially the type and
number of shares set forth next to his, her or its name in section 4.2 of the Sellers Disclosure Schedule,
free and clear of any restrictions on transfer, taxes, security interests, options, warrants, purchase rights,
contracts, commitments, equities, claims and demands. None of the Sellers is a party to any option,
warrant, purchase right or other contract or commitment that could require the Seller to sell, transfer or
otherwise dispose of the shares or any other capital stock of the Company (other than this Agreement).
None of the Sellers is a party to any voting trust, proxy or other agreement or understanding with respect
to the voting of the shares or any other capital stock of the Company. There are no outstanding powers of
attorney executed by any of the Sellers that would affect any of the Sellers ability to transfer the shares to
the Buyer. [None of the Sellers is or has been a party, or is or has been threatened to be made a
party, to any action, suit, proceeding, hearing or investigation of, in or before any governmental
authority that would affect any of the Sellers ability to transfer the shares to the Buyer.]
[(f)
Intellectual Property. None of the Sellers developed any of the intellectual
property of the Company on such Sellers own time or without the use of any equipment, supplies,
facilities or trade secret information of the Company.]
3.2
Representations and Warranties of the Buyer. The Buyer represents and warrants to
the Sellers that the statements contained in this section 3.2 are correct and complete as of the date of this
Agreement and will be correct and complete as of the closing date, except as set forth in the disclosure
schedule of the Buyer (the Buyers Disclosure Schedule) attached to this Agreement. The Buyers
Disclosure Schedule will be arranged in paragraphs corresponding to the sections contained in this
section 3.2.
(a)
Organization of the Buyer. The Buyer is a [corporation] duly organized,
validly existing and in good standing under the laws of the State of ______________.
(b)
Authorization of Transaction. The Buyer has full power and authority
(including full corporate power and authority) to execute and deliver this Agreement and the Transaction
Documents to which it is a party, and to perform its obligations under this Agreement and the Transaction
Documents to which it is a party. This Agreement and the Transaction Documents to which it is a party
constitute the valid and legally binding obligations of the Buyer, enforceable in accordance with their
respective terms and conditions. The Buyer need not give any notice to, make any filing with, or obtain
any authorization, consent or approval of, any governmental authority or any other person in order to
consummate the transactions contemplated by this Agreement and the Transaction Documents to which it
is a party[, except for the filings required under the HSR Act]. The Buyer has duly authorized the
execution, delivery and performance of this Agreement and the Transaction Documents to which it is a
party.
(c)
Noncontravention. Neither the execution and the delivery of this Agreement or
the Transaction Documents to which the Buyer is a party, nor the consummation of the contemplated
transactions, will (i) violate any law to which the Buyer is subject, or any provision of the Buyers [Articles
of Incorporation or Bylaws], or (ii) conflict with, result in a breach of, constitute a default under, result in
the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, or require any
notice under any agreement, contract, lease, license, instrument or other arrangement to which the Buyer
is a party or by which it is bound or to which any of its assets is subject[, except for such violations,
defaults, breaches or other occurrences that do not, individually or in the aggregate, have a material
adverse effect on the Buyer, its business or financial condition].

(d)
Brokers Fees. The Buyer has no liability to pay any fees or commissions to any
broker, finder or agent with respect to the transactions contemplated by this Agreement for which any of
the Sellers could become liable or obligated.
(e)
Investment. The Buyer is not acquiring the shares with a view to or for the sale
in connection with any distribution of such shares within the meaning of the Securities Act of 1933, as
amended.
4. Representations and Warranties Concerning the Company.
The Sellers jointly and severally represent and warrant to the Buyer that the statements contained
in this section 4 are correct and complete as of the date of this Agreement and will be correct and
complete as of the closing date, except as set forth in the Sellers Disclosure Schedule. The Sellers
Disclosure Schedule will be arranged in paragraphs corresponding to the sections contained in this
section 4.
4.1
Organization, Qualification and Power. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of __________. The Company is duly
authorized to conduct business and is in good standing under the laws of each jurisdiction where such
qualification is required. The Company has full corporate power and authority and all permits necessary
to carry on the businesses in which it is engaged and in which it presently proposes to engage, and to
own and use the properties owned and used by it. The Sellers have delivered to the Buyer correct and
complete copies of the charter, bylaws or other governing documents of the Company (as amended to
date). The minute books, stock certificate books and stock record books of the Company are correct and
complete. The Company is not in default under or in violation of any provision of its charter, bylaws or
other governing documents.
4.2
Capitalization. The authorized capital of the Company consists of _____ shares, of
which ____ are issued and outstanding. All of the issued and outstanding shares have been duly
authorized, are validly issued, fully paid and nonassessable, and are held of record by the respective
Sellers as set forth in section 4.2 of the Sellers Disclosure Schedule. There are no outstanding or
authorized option, warrant, purchase right, phantom stock or other contracts or commitments that could
require the Company to issue, sell or otherwise cause to become outstanding any of its capital stock.
There are no outstanding or authorized appreciation, phantom interest, profit participation or similar rights
with respect to the Company. There are no voting trusts, proxies or other agreements or understandings
with respect to the voting of the capital stock of the Company.
4.3
Noncontravention; Consents and Approvals. Neither the execution and the delivery
of this Agreement or the Transaction Documents, nor the consummation of the contemplated
transactions, will (a) violate any law to which the Company is subject, or any provision of the articles,
charter, limited liability company agreement, partnership agreement, bylaws or other organizational
documents of any of the Company or its subsidiaries; (b) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify or
cancel, or require any notice or consent under any agreement, contract, lease, license, instrument or
other arrangement to which any of the Company or its subsidiaries is a party or by which it is bound, or to
which any of its assets is subject (or result in the imposition of any security interest upon its assets); or
(c) result in the cancellation, forfeiture, revocation, suspension or adverse modification of any permit
owned or held by any of the Company or its subsidiaries. Except as indicated in section 4.3 of the
Sellers Disclosure Schedule, none of the Company and its subsidiaries needs to give any notice to, make
any filing with, or obtain any authorization, consent or approval of, any person (including any
governmental authority) in order for the Parties to consummate the transactions contemplated by this
Agreement.

4.4
Brokers Fees. None of the Company and its subsidiaries has any liability to pay any
fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this
Agreement for which the Buyer could become liable or obligated.
4.5
Title to Assets. The Company and its subsidiaries have good and marketable title to, or
a valid leasehold interest in, all properties and assets (tangible and intangible) used by any of them,
located on any of their premises or shown on the most recent Balance Sheet or acquired after the date of
the most recent Balance Sheet, and hold such properties and assets free and clear of all security
interests (other than permitted liens), except for properties and assets disposed of in the ordinary course
of business since the date of the most recent Balance Sheet.
4.6

Subsidiaries.

The Company has no subsidiaries and does not otherwise control, own directly or indirectly,
or have any equity participation directly or indirectly in any corporation, limited liability company,
partnership, joint venture, trust or other business association.
(a)
Section 4.6 of the Sellers Disclosure Schedule sets forth for each subsidiary of
the Company the following: (i) its name and jurisdiction of incorporation or formation; (ii) the number of
shares of authorized capital stock of each class of its capital stock or number of unit and class of units;
(iii) the number of issued and outstanding shares of each class of its capital stock or units, the names of
the holder of the shares or units, and the number of shares or units held by each such holder; (iv) the
number of shares of its capital stock held in treasury; and (v) its directors and officers or governors and
managers. The Sellers have delivered to the Buyer correct and complete copies of the charter, bylaws or
other governing documents of each subsidiary of the Company (as amended to date). The minute books,
stock certificate books and stock record books of each subsidiary of the Company are correct and
complete. None of the Companys subsidiaries is in default under or in violation of any provision of its
charter, bylaws or other governing documents.
(b)
Each subsidiary of the Company is a corporation or limited liability company duly
organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or
formation. Each subsidiary of the Seller is duly authorized to conduct business and is in good standing
under the laws of each jurisdiction requiring qualification. Each subsidiary has full corporate or company
power and authority and all permits necessary to carry on the businesses in which it is engaged and in
which it presently proposes to engage and to own and use the properties owned and used by it.
(c)
With respect to the capital stock of each subsidiary of the Company: (i) all of the
issued and outstanding shares of capital stock or units of each subsidiary of the Company have been duly
authorized and are validly issued, fully paid and nonassessable; (ii) the Company or one of its
subsidiaries holds of record and owns beneficially all of the outstanding shares or units free and clear of
any restrictions on transfer, taxes, security interests, options, warrants, purchase rights, contracts,
commitments, equities, claims and demands; (iii) there are no outstanding or authorized options,
warrants, purchase rights, subscription rights, conversion rights, exchange rights or other contracts or
commitments that could require any of the Company and its subsidiaries to sell, transfer or otherwise
dispose of any capital stock or units of any of its subsidiaries or that could require any subsidiary of the
Company to issue, sell or otherwise cause to become outstanding any of its own capital stock or units
(other than this Agreement); (iv) there are no outstanding stock or units appreciation, phantom stock or
units, profit participation or similar rights with respect to any subsidiary of the Company; and (v) there are
no voting trusts, proxies or other agreements or understandings with respect to the voting of any capital
stock or units of any subsidiary of the Company.
(d)
None of the Company and its subsidiaries controls directly or indirectly or have
any direct or indirect equity participation in any corporation, limited liability company, partnership, trust or

other business association that is not a subsidiary of the Company. Except for the Companys
subsidiaries set forth in section 4.6 of the Sellers Disclosure Schedule, neither the Company nor any of
its subsidiaries owns or has any right to acquire, directly or indirectly, any outstanding capital stock of, or
other equity interest in, any person.
4.7
Financial Statements. Attached to section 4.7 of the Sellers Disclosure Schedule are
the following Financial Statements (collectively, the Financial Statements): (a) audited consolidated and
unaudited consolidating balance sheets and statements of income, changes in shareholders equity, and
cash flow as of and for the fiscal years ended [December 31], 20__, [December 31], 20__, and
[December 31], 20__ (the most recent Fiscal Year End) for the Company and its subsidiaries; and
(b) unaudited consolidated and consolidating balance sheets and statements of income, changes in
shareholders equity and cash flow as of and for the months ended ___________ __, 20__ (the most
recent Fiscal Month End) for the Company and its subsidiaries. The Financial Statements (including the
notes) have been prepared in accordance with GAAP applied on a consistent basis throughout the
periods covered, present fairly the financial condition and the results of operations of the Company and its
subsidiaries for those periods, are correct and complete, and are consistent with the books and records of
the Company and its subsidiaries (which books and records are correct and complete). The most recent
Financial Statements, however, are subject to normal year-end adjustments (which will not be material
individually or in the aggregate) and lack footnotes and other presentation items.
4.8
Subsequent Events. Since the most recent fiscal year end, there have been no
changes in the assets, business, financial condition, operations, results of operations or future prospects
of any of the Company and its subsidiaries that individually or in the aggregate would have a material
adverse effect on any of the Company and its subsidiaries. Without limiting the foregoing, since that date:
(a)
none of the Company and its subsidiaries have sold, leased, transferred or
assigned any of its assets, tangible or intangible, other than for fair consideration in the ordinary course of
business;
(b)
none of the Company and its subsidiaries have entered into any agreement,
contract, lease or license (or series of related agreements, contracts, leases and licenses) either involving
more than $__________ or outside the ordinary course of business;
(c)
no party (including any of the Company and its subsidiaries) has accelerated,
terminated, modified or cancelled any agreement, contract, lease or license (or series of related
agreements, contracts, leases and licenses) involving more than $__________ to which any of the
Company and its subsidiaries is a party or by which any of them is bound;
(d)
none of the Company and its subsidiaries have imposed, or had imposed against
it, any security interest (other than permitted liens) upon any of its assets, tangible or intangible;
(e)
none of the Company and its subsidiaries have made any capital expenditure (or
series of related capital expenditures) either involving more than $__________, or outside the ordinary
course of business;
(f)
none of the Company and its subsidiaries have made any capital investment in,
any loan to or any acquisition of the securities or assets of, any other person (or series of related capital
investments, loans and acquisitions) either involving more than $__________, or outside the ordinary
course of business;
(g)
none of the Company and its subsidiaries have issued any note, bond or other
debt security or created, incurred, assumed or guaranteed any indebtedness for borrowed money or

capitalized lease obligation either involving more than $__________ singly, or $__________ in the
aggregate;
(h)
none of the Company and its subsidiaries have delayed or postponed the
payment of accounts payable and other liabilities outside the ordinary course of business;
(i)
none of the Company and its subsidiaries have cancelled, compromised, waived
or released any right or claim (or series of related rights and claims) either involving more than
$____________, or outside the ordinary course of business;
(j)
none of the Company and its subsidiaries have granted any license or sublicense
of any rights under or with respect to any intellectual property;
(k)
there have been no change made or authorized in the Articles, Charter, Limited
Liability Company Agreement, Partnership Agreement, Bylaws or other organizational documents of any
of the Company and its subsidiaries;
(l)
none of the Company and its subsidiaries have issued, sold or otherwise
disposed of any of its capital stock, or granted any options, warrants or other rights to purchase or obtain
(including upon conversion, exchange or exercise) any of its capital stock;
(m)
none of the Company and its subsidiaries have declared, set aside or paid any
dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or
redeemed, purchased or otherwise acquired any of its capital stock;
(n)
none of the Company and its subsidiaries have experienced any damage,
destruction or loss (whether or not covered by insurance) to its real or personal property;
(o)
none of the Company and its subsidiaries have made any loan to, or received a
loan from, or entered into any other transaction with, any director, officer or employee;
(p)
none of the Company and its subsidiaries have entered into any employment
contract or collective bargaining agreement, written or oral, or modified the terms of any such existing
contract or agreement;
(q)
none of the Company and its subsidiaries have granted any increase in the base
compensation of any director, officer or employee outside the ordinary course of business;
(r)
none of the Company and its subsidiaries have adopted, amended, modified or
terminated any Employee Benefit Plan or any bonus, profit sharing, incentive, severance or other plan,
contract or commitment for the benefit of any director, officer or employee (or taken any such action with
respect to any other Employee Benefit Plan);
(s)
none of the Company and its subsidiaries have made any other material change
in employment terms for any director, officer or employee outside the ordinary course of business;
(t)
none of the Company and its subsidiaries have made or pledged to make any
charitable or other capital contribution outside the ordinary course of business;
(u)
none of the Company and its subsidiaries have discharged any material liability
or security interest outside the ordinary course of business;

(v)

none of the Company and its subsidiaries have made any loans or advances of

(w)

none of the Company and its subsidiaries have disclosed any confidential

money;

information;
(x)
there has not been any other material occurrence, event, incident, action, failure
to act or transaction outside the ordinary course of business involving any of the Company and its
subsidiaries;
(y)

______________________ [include any other specific concerns]; and

(z)
none of the Seller and its subsidiaries have committed to any of the items
described in this section 4.8.
4.9
Undisclosed Liabilities. None of the Company and its subsidiaries have any liability
(and there is no basis for any present or future action, suit, proceeding, hearing, investigation, charge,
complaint, claim or demand against any of them giving rise to any liability), except for (a) liabilities set
forth on the most recent Balance Sheet (rather than in its notes); and (b) liabilities that have arisen after
the most recent fiscal month end in the ordinary course of business (none of which results from, arises
out of, relates to, is in the nature of or was caused by any breach of contract, breach of warranty, tort,
infringement or violation of law).
4.10
Legal Compliance. The Company, its subsidiaries and their respective predecessors
and affiliates have complied with and are in compliance with all applicable laws, and no action, suit,
proceeding, hearing, investigation, charge, complaint, claim, demand or notice has been filed or
commenced, or to the Sellers knowledge threatened to be commenced, against any of them alleging any
failure to so comply. No payment of either cash or other consideration has been made to any person by
or on behalf of the Company by any officer, director, shareholder or other person that was unlawful under
any law.
4.11

Tax Matters.
[Alternative Short Form]

The Company and its subsidiaries have filed all required Tax Returns. All such Tax Returns
were correct and complete in all respects. All taxes owed by any of the Company and its subsidiaries
(whether or not shown on any Tax Return) have been paid.
[Alternative Long Form]
(a)
The Company and its subsidiaries have filed all required Tax Returns. All such
Tax Returns were correct and complete in all respects. All taxes owed by any of the Company and its
subsidiaries (whether or not shown on any Tax Return) have been paid. None of the Company and its
subsidiaries currently is the beneficiary of any extension of time within which to file any Tax Return. No
claim has ever been made that any of the Company and its subsidiaries is or may be subject to taxation
by a jurisdiction where it does not file Tax Returns. No assets of the Company or its subsidiaries are
subject to a Security Interest that arose in connection with any failure (or alleged failure) to pay any tax.
(b)
The Company and its subsidiaries have withheld and paid all taxes required to
have been withheld and paid in connection with amounts owing to any employee, independent contractor,
creditor, shareholder or other third party.

(c)
No Seller, director, officer or employee responsible for tax matters of any of the
Company and its subsidiaries expects any authority to assess any additional taxes for any period for
which Tax Returns have been filed. None of the Company and its subsidiaries have any dispute or claim
concerning its liability for taxes either (i) claimed or raised by any authority in writing, or (ii) as to which
any of the Sellers and the directors and officers (and employees responsible for tax matters) of the
Company and its subsidiaries has knowledge based upon personal contact with any agent of any
authority. Section 4.11(c) of the Sellers Disclosure Schedule lists all Income Tax Returns filed by any of
the Company and its subsidiaries for taxable periods ended after _______________, 20___, indicates
those Tax Returns that have been audited, and indicates those Tax Returns that currently are the subject
of audit. The Company has delivered to the Buyer correct and complete copies of all federal Income Tax
Returns, examination reports and statements of deficiencies assessed against or agreed to by the
Company and its subsidiaries since _______________, 20___.
(d)
The Company and its subsidiaries have not waived any statute of limitations or
agreed to any extension of time with respect to a tax assessment or deficiency.
(e)
The unpaid taxes of the Company and its subsidiaries (i) did not, as of the most
recent fiscal month rnd, exceed the reserve for tax liability (rather than any reserve for deferred taxes
established to reflect timing differences between book and tax income) set forth on the most recent
Balance Sheet (rather than in its notes); and (ii) do not exceed that reserve as adjusted for the passage of
time through the closing date in accordance with the past custom and practice of the Company and its
subsidiaries in filing their Tax Returns.
(f)
The Company does not have an obligation to make a payment that will not be
deductible under Code 280G. The Company and its subsidiaries have disclosed on their federal
Income Tax Returns all positions taken that could give rise to a substantial understatement of federal
income tax within the meaning of Code 6662. None of the Company and its subsidiaries: (i) is a party
to any tax allocation or sharing agreement; (ii) has been a member of an affiliated group filing a
consolidated federal Income Tax Return (other than a group the common parent of which was the
Company); or (iii) has any liability for the taxes of any person (other than any of the Company and its
subsidiaries) under Treas. Reg. 1.15026 (or any similar provision of law), as a transferee or successor,
by contract or otherwise. The Company has not filed a consent under Code 341(f) concerning
collapsible corporations. The Company will not be required to include any item of income in taxable
income for any taxable period (or portion thereof) ending after the closing date as a result of any change
in method of accounting for a taxable period ending on or prior to the closing date or any installment, sale
or open transaction disposition made on or prior to the closing date. The Company has not been a United
States real property holding corporation within the meaning of Code 897(c)(2) during the applicable
period specified in Code 897(c)(1)(A)(ii).
(g)
Section 4.11 of the Sellers Disclosure Schedule sets forth the following
information for each of the Company and its subsidiaries as of the most recent practicable date (as well
as on an estimated pro forma basis as of the closing giving effect to the consummation of the
contemplated transactions): (i) the basis of the Company or its subsidiary in its assets; (ii) the basis of the
shareholder(s) of the subsidiary in its stock (or the amount of any excess loss account); (iii) the amount of
any net operating loss, net capital loss, unused investment or other credit, unused foreign tax or excess
charitable contribution allocable to the Company or its subsidiary; and (iv) the amount of any deferred
gain or loss allocable to the Company or its subsidiary arising out of any Deferred Intercompany
Transaction.
(h)
There are no tax sharing agreements or similar agreements with respect to or
involving the Company.
4.12

Real Property.

(a)
[If no owned real estate is involved, then use the following sentence in lieu
of the remainder of part (a): None of the Company or its subsidiaries owns or has owned any real
property.]
Section 4.12(a) of the Sellers Disclosure Schedule lists and describes briefly all real
property that any of the Company and its subsidiaries owns. With respect to each parcel of owned real
property listed in section 4.12(a) of the Sellers Disclosure Schedule:
(i) the identified owner has good and marketable title to the parcel of real property,
free and clear of any security interest, easement, covenant or other restriction, except for installments of
special assessments not yet delinquent and recorded easements, covenants and other restrictions that do
not impair the current use, occupancy or value, or the marketability of title, of the subject property;
(ii) there are no pending or[, to the knowledge of the Sellers and the directors
and officers (and employees with responsibility for real estate matters) of the Company and its
subsidiaries,] threatened condemnation proceedings, lawsuits or administrative actions relating to the
property or other matters affecting materially and adversely the current use, occupancy or value;
(iii) the legal description for the parcel contained in the deed describes the parcel
fully and adequately, the buildings and improvements are located within the boundary lines of the
described parcels of land, are not in violation of applicable setback requirements, zoning laws and
ordinances (and none of the properties or buildings or improvements are subject to permitted nonconforming use or permitted non-conforming structure classifications), and do not encroach on any
easement that may burden the land, the land does not serve any other property for any purpose
inconsistent with the use of the land, and the property is not located within any flood plain or subject to
any similar type restriction for which any permits necessary to the use have not been obtained;
(iv) all facilities have received all approvals of governmental authorities (including
permits) required in connection with the ownership or operation and have been operated and maintained
in accordance with applicable laws;
(v) there are no leases, subleases, licenses, concessions or other agreements,
written or oral, granting to any party or parties the right of use or occupancy of any portion of the real
property;
(vi) there are no outstanding options or rights of first refusal to purchase the real
property, or any portion or interest of the real property;
(vii)there are no parties (other than the Company and its subsidiaries) in possession
of the real property, other than tenants under any leases disclosed in section 4.12(b) of the Sellers
Disclosure Schedule, who are in possession of space to which they are entitled;
(viii)
all facilities located on the real property are supplied with utilities and
other services necessary for the operation of the facilities, including gas, electricity, water, telephone,
sanitary sewer and storm sewer, all of which services are adequate in accordance with all applicable laws
and are provided via public roads or via permanent, irrevocable, appurtenant easements benefiting the
real property; and
(ix) each parcel of real property abuts on and has direct vehicular access to a public
road, or has access to a public road via a permanent, irrevocable, appurtenant easement benefiting the
real property, and access to the property is provided by paved public right-of-way with adequate curb cuts
available.

(b)
Section 4.12(b) of the Sellers Disclosure Schedule lists and describes briefly all
real property leased or subleased to any of the Company and its subsidiaries. Section 4.12(b) of the
Sellers Disclosure Schedule also identifies the leased or subleased properties for which title insurance
policies are to be procured in accordance with section 5.8(b) of this Agreement. The Company has
delivered to the Buyer correct and complete copies of the leases and subleases listed in section
4.12(b) of the Sellers Disclosure Schedule (as amended to date). With respect to each lease and
sublease listed in section 4.12(b) of the Sellers Disclosure Schedule:
(i) the lease or sublease is legal, valid, binding, enforceable and in full force and
effect;
(ii) the lease or sublease will continue to be legal, valid, binding, enforceable and in
full force and effect on identical terms following the consummation of the contemplated transactions;
(iii) no party to the lease or sublease is in breach or default, and no event has
occurred that, with notice or lapse of time, would constitute a breach or default or permit termination,
modification or acceleration;
(iv) no party to the lease or sublease has repudiated any provision;
(v) there are no disputes, oral agreements or forbearance programs in effect as to
the lease or sublease;
(vi) for each sublease, the representations and warranties set forth in subsections
(i) through (v) above are true and correct for the underlying lease;
(vii)none of the Company and its subsidiaries have assigned, transferred, conveyed,
mortgaged, deeded in trust or encumbered any interest in the leasehold or subleasehold;
(viii)
all facilities leased or subleased have received all required approvals of
governmental authorities (including permits) and have been operated and maintained in accordance with
applicable laws;
(ix) all facilities leased or subleased are supplied with utilities and other services
necessary for the operation of the facilities; and
(x) the owner of the facility leased or subleased has good and marketable title to the
parcel of real property, free and clear of any security interest, easement, covenant or other restriction,
except for installments of special easements not yet delinquent and recorded easements, covenants and
other restrictions that do not impair the current use, occupancy or value or the marketability of title of the
property.
4.13

Intellectual Property.
[Alternative Short Form]

Each of the Company and its subsidiaries owns or has the right to use pursuant to license,
sublicense, agreement or permission all intellectual property necessary for the operation of the
businesses of any of the Company and its subsidiaries as presently conducted and as presently proposed
to be conducted. Each item of intellectual property owned or used by any of the Company and its
subsidiaries immediately before the closing will be owned or available for use by the Buyer on identical
terms and conditions immediately after the closing. Each of the Company and its subsidiaries has taken

all necessary action to maintain and protect each item of intellectual property that it owns or uses. None
of the Company and its subsidiaries has interfered with, infringed upon, misappropriated or otherwise
come into conflict with any intellectual property rights of any third party.
[Alternative Long Form]
(a)
Each of the Company and its subsidiaries owns or has the right to use pursuant
to license, sublicense, agreement or permission all intellectual property necessary for the operation of the
businesses of any of the Company and its subsidiaries as presently conducted and as presently proposed
to be conducted. Each item of intellectual property owned or used by any of the Company and its
subsidiaries immediately before the closing will be owned or available for use by the Buyer on identical
terms and conditions immediately after the closing. Each of the Company and its subsidiaries have taken
all necessary actions to maintain and protect each item of intellectual property that it owns or uses.
(b)
None of the Company and its subsidiaries have interfered with, infringed upon,
misappropriated or otherwise come into conflict with any intellectual property rights of any third party.
None of the Company and its subsidiaries have received any charge, complaint, claim, demand or notice
alleging any such interference, infringement, misappropriation or violation (including any claim that any of
the Company and its subsidiaries must license or refrain from using any intellectual property rights of any
third party). No third party has interfered with, infringed upon, misappropriated or otherwise come into
conflict with any intellectual property rights of any of the Company and its subsidiaries.
(c)
Section 4.13(c) of the Sellers Disclosure Schedule identifies the following:
(i) each patent or registration that has been issued to any of the Company and its subsidiaries for any
intellectual property; (ii) each pending patent application or application for registration that any of the
Company and its subsidiaries has made for any of its intellectual property; (iii) each license, sublicense,
agreement or other permission that any of the Company and its subsidiaries has granted to any third
party with respect to intellectual property (together with any exceptions); and (iv) each registered or
unregistered trademark, service mark, trade name, corporate name, internet domain name or copyright
and each computer software item (other than commercially available off-the-shelf software purchased or
licensed for less than a total cost of $1,000 in the aggregate) used by any of the Company and its
subsidiaries in connection with its business. The Company has delivered to the Buyer correct and
complete copies of all such patents, registrations, applications, licenses, sublicenses, agreements and
permissions (as amended to date) and has made available to the Buyer correct and complete copies of all
other written documentation evidencing ownership and prosecution (if applicable) of each item.
(d)
With respect to each item of intellectual oroperty required to be identified in
section 4.13(c) of the Sellers Disclosure Schedule: (i) the Company and its subsidiaries own and
possess all right, title and interest in and to the item, free and clear of any security interest, license or
other restriction, or limitation regarding use or disclosure; (ii) the item is not subject to any outstanding
injunction, judgment, order, decree, ruling or charge; (iii) no action, suit, proceeding, hearing,
investigation, charge, complaint, claim or demand is pending or, to the Sellers knowledge, is threatened
that challenges the legality, validity, enforceability, use or ownership of the item; (iv) none of the Company
and its subsidiaries has agreed to indemnify any person for or against any interference, infringement,
misappropriation or other conflict with respect to the item; and (v) no loss or expiration of the item is
threatened, pending or reasonably foreseeable, except for patents expiring at the end of their statutory
terms (and not as a result of any act or omission by the Company or its subsidiaries).
(e)
Section 4.13(e) of the Sellers Disclosure Schedule identifies each item of
intellectual property that any third party owns and that any of the Company and its subsidiaries uses
pursuant to license, sublicense, agreement or permission. No intellectual property of any third party is
embedded in any of the Companys intellectual property. The Seller has delivered to the Buyer correct

and complete copies of all such licenses, sublicenses, agreements and permissions (as amended to
date).
(f)
With respect to each item of intellectual property required to be identified in
section 4.13(e) of the Sellers Disclosure Schedule: (i) the license, sublicense, agreement or permission
covering the item is legal, valid, binding, enforceable and in full force and effect; (ii) the license,
sublicense, agreement or permission will continue to be legal, valid, binding, enforceable and in full force
and effect on identical terms following the consummation of the contemplated transactions; (iii) no party to
the license, sublicense, agreement or permission is in breach or default, and no event has occurred that,
with notice or lapse of time, would constitute a breach or default or permit termination, modification or
acceleration; (iv) no party to the license, sublicense, agreement or permission has repudiated any
provision thereof; (v) for each sublicense, the representations and warranties set forth in subsections
(i) through (iv) above are true and correct for the underlying license; (vi) the underlying item of intellectual
property is not subject to any outstanding injunction, judgment, order, decree, ruling or charge; (vii) no
action, suit, proceeding, hearing, investigation, charge, complaint, claim or demand is pending or, to the
Sellers knowledge, is threatened that challenges the legality, validity or enforceability of the underlying
item of intellectual property; and (viii) none of the Company and its subsidiaries has granted any
sublicense or similar right with respect to the license, sublicense, agreement or permission.
(g)
To the Sellers knowledge, none of the Company or its subsidiaries will interfere
with, infringe upon, misappropriate or otherwise come into conflict with, any intellectual property rights of
any third party as a result of the continued operation of their businesses as presently conducted and as
presently proposed to be conducted.
(h)
With respect to the software, the Company owns all components included in the
software. The software contains no freeware, shareware or other open source free or public domain
software. The Company owns, possesses and controls all source code, object code, documentation,
benchmark tests, programmer level documentation, user level documentation, specifications and other
materials necessary for the use of the software. No copies of the softwares source code, object code,
programmer level documentation, user level documentation, benchmark tests or any other documentation
relating to the software have been provided to any third parties. The software is free of any remote or
automatic disabling or recapture devices, passwords, master access keys, security devices, trap doors or
computer viruses. The software fully complies in all respects with the associated documentation,
including without limitation the specifications set forth on Schedule ___ to this Agreement, and such
documentation accurately and completely describe the operation and use of the software.
(i)
[Section 4.13(i) of the Sellers Disclosure Schedule sets forth the name of
all persons conducting pre-release testing and all persons who have pre-release agreements,
whether written or oral, with the Company relating to the software. Section 4.13(i) of the Sellers
Disclosure Schedule sets forth a summary of the terms and conditions of the Companys prerelease (e.g., alpha, beta or similar designation) agreements with the entities set forth on section
4.13(i) of the Sellers Disclosure Schedule. The Company is not obligated to support or update
any of the software currently in pre-release (e.g., alpha, beta or similar designation) with the
persons set forth on section 4.13(i) to the Sellers Disclosure Schedule.]
(j)
To the Sellers knowledge, none of the Sellers or the Company has used any
intellectual property that any of the current or former employees or consultants of the Company created in
any former employment or contractual relationship with any third party in the development of any of the
Companys intellectual property, including the software, except as permitted by law.
(k)
All former and current employees, consultants, contractors and other persons
who have ever been involved in any aspect of the design or creation of any of the Companys intellectual
property, including the software, have executed valid and enforceable written agreements that cause

ownership to accrue to or that assign to the Company any and all rights to all intellectual property,
including inventions, improvements or discoveries, whether patentable or not, made by them during their
service to the Company. The Sellers have delivered to the Buyer correct and complete copies of all such
written agreements.
(l)
The Company has taken all steps necessary and appropriate to protect and
preserve the confidentiality of all confidential information. All former and current employees, consultants,
contractors and other persons who have ever had access to any confidential information have executed
valid and enforceable written Confidentiality Agreements. All use, disclosure or appropriation of
confidential information to or by any third party has been pursuant to the terms of a valid and enforceable
written Confidentiality Agreement between the Company and such third party. The Sellers have delivered
to the Buyer correct and complete copies of all such written Confidentiality Agreements.
[(m)
The Sellers do not have any knowledge of any new products, inventions,
procedures or methods of manufacturing or processing that any competitors or other persons
have developed that reasonably could be expected to supersede or make obsolete any product or
process of any of the Seller and its subsidiaries.]
4.14
Tangible Assets. The Company and its subsidiaries own or lease all buildings,
machinery, equipment and other tangible assets necessary for the conduct of their businesses as
presently conducted [and as presently proposed to be conducted]. Each such tangible asset is free
from defects (patent and latent), has been maintained in accordance with normal industry practice, is in
good operating condition and repair (subject to normal wear and tear), and is suitable for the purposes for
which it presently is used [and presently is proposed to be used].
4.15
Inventory. The inventory of the Company and its subsidiaries consists of raw materials
and supplies, manufactured and purchased parts, goods in process, and finished goods, all of which is
merchantable and fit for the purpose for which it was procured or manufactured, and none of which is
slow-moving, obsolete, damaged or defective, subject only to the reserve for inventory writedown set forth
on the most recent Balance Sheet (rather than in any of its notes) as adjusted for the passage of time
through the closing date in accordance with the past custom and practice of the Company and its
subsidiaries.
4.16

Contracts.
[Alternative Short Form]

Section 4.16 of the Sellers Disclosure Schedule lists all [material] contracts and other
agreements, whether written or oral, to which any of the Company and its subsidiaries is a party or by
which any of them is bound. The Company has delivered to the Buyer a correct and complete copy of
each written agreement listed in section 4.16 of the Sellers Disclosure Schedule (as amended to
date) and a written summary setting forth the terms and conditions of each oral agreement referred to in
section 4.16 of the Sellers Disclosure Schedule. With respect to each such agreement: (a) the
agreement is legal, valid, binding, enforceable and in full force and effect; (b) the agreement will continue
to be legal, valid, binding, enforceable and in full force and effect on identical terms following the
consummation of the transactions contemplated hereby; (c) no party is in breach or default; (d) no event
has occurred that, with notice or lapse of time, would constitute a breach or default, or permit termination,
modification or acceleration, under the agreement; and (e) no party has repudiated any provision of the
agreement.
[Alternative Long Form]

Section 4.16 of the Sellers Disclosure Schedule lists the following contracts and other
agreements, whether written or oral, to which any of the Company and its subsidiaries is a party or by
which any of them is bound:
(a)
any agreement (or group of related agreements) for the lease of personal
property to or from any person providing for lease payments in excess of $__________ per year;
(b)
any agreement (or group of related agreements) for the purchase or sale of raw
materials, commodities, supplies, products or other personal property, or for the furnishing or receipt of
services, the performance of which will extend over a period of more than one year, result in a material
loss to any of the Company and its subsidiaries, or involve consideration in excess of $__________;
(c)

any agreement concerning a partnership, joint venture or consulting relationship;

(d)
any agreement (or group of related agreements) under which it has created,
incurred, assumed or guaranteed any indebtedness for borrowed money, or any capitalized lease
obligation, in excess of $__________ or under which it has imposed a security interest (other than a
permitted lien) on any of its assets, tangible or intangible;
(e)

any agreement concerning confidentiality or noncompetition;

(f)
any agreement involving any of the Seller and their affiliates (other than the
Company and its subsidiaries);
(g)
any profit sharing, stock option, stock purchase, stock appreciation, deferred
compensation, severance or other [material] plan or arrangement for the benefit of its current or former
directors, officers and employees;
(h)

any collective bargaining agreement;

(i)
any agreement for the employment of any individual on a full-time, part-time,
consulting or other basis providing annual compensation in excess of $__________ or providing
severance benefits;
(j)
any agreement under which it has advanced or loaned any amount to any person
(including its directors, officers and employees outside the ordinary course of business);
(k)
any agreement granting any power of attorney with respect to the affairs of any of
the Company and its subsidiaries;
(l)
any Indemnity Agreement, Suretyship Contract, Performance Bond, Working
Capital Maintenance or other form of Guaranty Agreement;
(m)

any agreement to indemnify, hold harmless or defend any person;

(n)
any agreement under which the consequences of a default or termination could
have a material adverse effect on any of the Company and its subsidiaries; or
(o)
any other agreement (or group of related agreements) the performance of which
involves consideration in excess of $__________.

The Company has delivered to the Buyer a correct and complete copy of each written
agreement listed in section 4.16 of the Sellers Disclosure Schedule (as amended to date) and a written
summary setting forth all terms and conditions of each oral agreement referred to in section 4.16 of the
Sellers Disclosure Schedule. With respect to each such agreement: (i) the agreement is legal, valid,
binding, enforceable and in full force and effect; (ii) the agreement will continue to be legal, valid, binding,
enforceable and in full force and effect on identical terms following the consummation of the contemplated
transactions; (iii) no party to the agreement is in breach or default, and no event has occurred that, with
notice or lapse of time, would constitute a breach or default, or permit termination, modification, or
acceleration, under the agreement; and (iv) no party has repudiated any provision of the agreement.
4.17
Permits. Section 4.17 of the Sellers Disclosure Schedule lists all permits issued to any
of the Company and its subsidiaries. Each of such permits is in full force and effect, and each of the
Company and its subsidiaries is in compliance with all of its obligations with respect to such permits.
None of the permits were denied or otherwise opposed prior to issuance, nor are they currently the
subject of any review by any governmental authority or opposition by any person. To the Sellers
knowledge, no event has occurred that allows, or upon the giving of notice or the lapse of time or
otherwise would allow, revocation or termination of any such permits. Each of the Company and its
subsidiaries has paid, or caused to be paid, all amounts that are currently due and owing as of the date of
this Agreement under each of the permits. To the Sellers knowledge, the permits listed in section 4.17 of
the Sellers Disclosure Schedule constitute all permits necessary in order for any of the Company and its
subsidiaries to carry on its business as presently conducted or as presently proposed to be conducted.
The Sellers have provided to the Buyer correct and complete copies of each of the permits listed in
section 4.17 of the Sellers Disclosure Schedule.
4.18
Accounts Receivable. All notes and accounts receivable of any of the Company and its
subsidiaries are reflected properly on its books and records, are valid receivables subject to no setoffs or
counterclaims, are current and collectible, and will be collected in accordance with their terms at their
recorded amounts, subject only to the reserve for bad debts set forth on the most recent Balance Sheet
(rather than in any of its notes) as adjusted for the passage of time through the closing date in
accordance with the past custom and practice of any of the Company and its subsidiaries.
4.19
Powers of Attorney. There are no outstanding powers of attorney executed on behalf of
the Company and its subsidiaries.
4.20

Insurance.

(a)
Section 4.20 of the Sellers Disclosure Schedule sets forth the following
information with respect to each insurance policy (including without limitation policies providing property,
casualty, liability and workers compensation coverage and bond and surety arrangements) to which any
of the Company and its subsidiaries is or has been a party, a named insured or otherwise the beneficiary
of coverage at any time within the past ten years: (i) the name, address and telephone number of the
agent; (ii) the name of the insurer, the name of the policyholder, and the name of each covered insured;
(iii) the policy number and the period of coverage; (iv) the scope (including an indication of whether the
coverage is or was on a claims made, occurrence or other basis) and amount (including a description of
how deductibles and ceilings are calculated and operate) of coverage; and (v) a description of any
retroactive premium adjustments or other loss-sharing arrangements.
(b)
With respect to each insurance policy required to be identified in section 4.20 of
the Sellers Disclosure Schedule: (i) the policy is legal, valid, binding, enforceable and in full force and
effect; (ii) the policy will continue to be legal, valid, binding, enforceable and in full force and effect on
identical terms following the consummation of the contemplated transactions; (iii) neither any of the
Company and its subsidiaries nor any other party to the policy is in breach or default (including with
respect to the payment of premiums or the giving of notices), and no event has occurred that, with notice

or the lapse of time, would constitute a breach or default, or permit termination, modification or
acceleration, under the policy; and (iv) no party to the policy has repudiated any provision of such policy.
(c)
Each of the Company and its subsidiaries has been covered during the past ten
years by insurance in scope and amount customary and reasonable for the business in which it has
engaged during that period.
(d)
Section 4.20 of the Sellers Disclosure Schedule describes any self-insurance
arrangements affecting any of the Company and its subsidiaries.
4.21
Litigation. Section 4.21 of the Sellers Disclosure Schedule sets forth each instance in
which any of the Company and its subsidiaries (a) is or has been subject to any injunction, judgment,
order, decree, ruling or charge, or (b) is or has been a party or[, to the Sellers knowledge,] is threatened
to be made a party to any action, suit, proceeding, hearing or investigation of, in or before any
governmental authority or before any arbitrator. None of the actions, suits, proceedings, hearings and
investigations set forth in section 4.21 of the Sellers Disclosure Schedule could result in any [material]
adverse change in the business, financial condition, operations, results of operations or future prospects
of any of the Company and its subsidiaries. None of the Seller and the directors and officers (and
employees with responsibility for litigation matters) of the Company and its subsidiaries has any reason to
believe that any such action, suit, proceeding, hearing or investigation may be brought or threatened
against any of the Company and its subsidiaries.
4.22
Product Warranty. Section 4.22 of the Sellers Disclosure Schedule includes copies of
the standard terms and conditions of sale or lease for each product or service of the Company or its
subsidiaries (containing applicable guaranty, warranty and indemnity provisions).
Each product
manufactured, sold, leased or delivered by any of the Company and its subsidiaries: (a) has been in
conformity with all applicable contractual commitments and all express and implied warranties; (b) has
presented no liability to the Company and its subsidiaries (and there is no basis for any present or future
action, suit, proceeding, hearing, investigation, charge, complaint, claim or demand against any of them
giving rise to any liability) for replacement or repair or other damages, subject only to the reserve for
product warranty claims set forth on the most recent Balance Sheet (rather than in any of its notes) as
adjusted for the passage of time through the closing date in accordance with the past custom and practice
of the Company and its subsidiaries; and (c) is not subject to any guaranty, warranty or other indemnity
beyond the applicable standard terms and conditions of sale or lease.
4.23
Product liability. None of the Company and its subsidiaries has any liability (and there
is no basis for any present or future action, suit, proceeding, hearing, investigation, charge, complaint,
claim or demand against any of them giving rise to any liability) arising out of any injury to individuals or
property as a result of the ownership, possession or use of any product manufactured, sold, leased or
delivered by the Company and its subsidiaries.
4.24

Employment Matters.
[Alternative Short Form]

The Company and its subsidiaries have complied in all respects with all laws relating to
employment, including without limitation all laws concerning equal employment opportunity,
nondiscrimination, leaves and absences, immigration, wages, hours, benefits, collective bargaining, the
payment of social security and similar taxes, occupational safety and health, and plant closing. To the
Sellers knowledge, no executive, key employee or group of employees has any plans to terminate
employment with any of the Company and its subsidiaries. There are no unresolved employment-related
charges, claims, complaints or lawsuits involving any of the Company or its subsidiaries. None of the
Company and its subsidiaries are party to or bound by any collective bargaining agreement, nor has any

of them experienced any strikes, grievances, claims of unfair labor practices or other collective bargaining
disputes. None of the Company and its subsidiaries has committed any unfair labor practice. To the
Sellers knowledge, there are no organizational efforts presently being made or threatened by or on behalf
of any labor union with respect to employees of any of the Company and its subsidiaries.
4.25

Employee Benefits.

(a)
Section 4.25 of the Sellers Disclosure Schedule lists each Employee Benefit
Plan that any of the Company and its subsidiaries (or any member of the Companys controlled group as
that term is used in Code 414(b) & (c)) sponsors or maintains or to which any of the Company and its
subsidiaries contribute or has any obligation to contribute.
(b)
Each Employee Benefit Plan (and each related trust, insurance contract or
fund) complies in form and in operation in all respects with the applicable requirements of ERISA, the
Code and other applicable laws. All required reports and descriptions (including Form 5500 Annual
Reports, summary annual reports, PBGC-1s and summary plan descriptions) have been timely filed and
distributed appropriately with respect to each Employee Benefit Plan. The requirements of COBRA (and
any applicable state law that mandates continuation coverage) have been met with respect to each
Employee Benefit Plan that is an Employee Welfare Benefit Plan. All contributions (including all employer
contributions and employee salary reduction contributions) that are due have been paid to each
Employee Benefit Plan that is an Employee Pension Benefit Plan, and all contributions for any period
ending on or before the closing date that are not yet due have been paid to each Employee Pension
Benefit Plan or accrued in accordance with the past custom and practice of any of the Company and its
subsidiaries. All premiums or other payments for all periods ending on or before the closing date have
been paid with respect to each Employee Benefit Plan that is an Employee Welfare Benefit Plan. Each
Employee Benefit Plan that is an Employee Pension Benefit Plan meets the requirements of a qualified
plan under Code 401(a), has received, within the last two years, a favorable determination letter from
the Internal Revenue Service that it is a qualified plan, and the Sellers are not aware of any facts or
circumstances that could result in the revocation of the determination letter. Each Employee Pension
Benefit Plan covering employees of the Company and its subsidiaries shall have been amended for
GUST and shall have been submitted to the Internal Revenue Service for a full GUST determination letter
on or before the last day of the GUST remedial amendment period, if the GUST remedial amendment
period for such Employee Pension Benefit Plan expires on or before the closing date. The market value
of assets under each Employee Benefit Plan that is an Employee Pension Benefit Plan (other than any
Multiemployer Plan) equals or exceeds the present value of all vested and nonvested liabilities
determined in accordance with PBGC methods, factors and assumptions applicable to an Employee
Pension Benefit Plan terminating on the date for determination.
(c)
The Company has delivered to the Buyer correct and complete copies of the plan
documents, plan amendments and summary plan descriptions, the most recent determination letter
received from the Internal Revenue Service, the three most recent Form 5500 Annual Reports (including
all attachments and schedules), and all related trust agreements, insurance and annuity contracts and
other funding agreements that implement each Employee Benefit Plan. The Company has delivered to
the Buyer correct and complete copies of the following: (i) resolutions approving the adoption or
amendment of each Employee Benefit Plan; (ii) reports showing discrimination and top-heavy testing
results for each Employee Pension Benefit Plan and cafeteria plan; (iii) any IRS determinations that the
Company or any of its subsidiaries is a separate line of business for qualified plan purposes; (iv) closing
agreements, compliance statements, work papers, and other documents and correspondence relating to
any operational or document defect of any Employee Benefit Plan occurring within the last three years, or
the correction of such plan; (v) third-party administrator service agreements currently in force with respect
to any Employee Benefit Plan; (vi) the fidelity bond for any Employee Benefit Plan subject to the
requirements of ERISA 412; and (vii) any fiduciary insurance policy covering any fiduciary.

(d)
With respect to each Employee Benefit Plan that any of the Company, its
subsidiaries and any ERISA Affiliate maintains or ever has maintained or to which any of them
contributes, ever has contributed or ever has been required to contribute:
(i) No such Employee Benefit Plan that is an Employee Pension Benefit Plan (other
than any Multiemployer Plan) has been completely or partially terminated or been the subject of a
reportable event as to which notices would be required to be filed with the PBGC. No proceeding by the
PBGC to terminate any Employee Pension Benefit Plan (other than any Multiemployer Plan) has been
instituted or[, to the knowledge of any of the Sellers and the directors and officers (and employees with
responsibility for employee benefits matters) of the Company and its subsidiaries,] threatened.
(ii) There have been no prohibited transactions with respect to any Employee
Benefit Plan. No fiduciary has any liability for breach of fiduciary duty or any other failure to act or comply
in connection with the administration or investment of the assets of any Employee Benefit Plan. No
action, suit, proceeding, hearing or investigation with respect to the administration or the investment of the
assets of any Employee Benefit Plan (other than routine claims for benefits) is pending or[, to the
knowledge of any of the Sellers and the directors and officers (and employees with responsibility
for employee benefits matters) of the Company and its subsidiaries,] threatened. To the knowledge
of any of the Sellers and the directors and officers (and employees with responsibility for employee
benefits matters) of the Company and its subsidiaries, there is no basis for any such action, suit,
proceeding, hearing or investigation.
(iii) None of the Company and its subsidiaries (or any member of the Companys
controlled group as that term is used in Code 414(b), (c)) have incurred, and none of the Sellers and
the directors and officers (and employees with responsibility for employee benefits matters) of the
Company and its subsidiaries have any reason to expect that any of the Company and its subsidiaries will
incur any liability to the PBGC (other than PBGC premium payments) or otherwise under Title IV of
ERISA (including any withdrawal liability as defined in ERISA 4201) or under the Code with respect to
any Employee Benefit Plan that is an Employee Pension Benefit Plan.
(e)
None of the Company, its subsidiaries and any ERISA affiliate contributes to,
have contributed to or has been required to contribute to any Multiemployer Plan or has any liability
(including withdrawal liability as defined in ERISA 4201) under any Multiemployer Plan.
(f)
None of the Company and its subsidiaries maintains or ever has maintained or
contributes, ever have contributed to or ever have been required to contribute to any Employee Welfare
Benefit Plan providing medical, health or life insurance or other welfare-type benefits for current or future
retired or terminated employees, their spouses or their dependents (other than in accordance with Code
4980B).
4.26
Guaranties. None of the Company and its subsidiaries are a guarantor or otherwise
liable for any liability (including indebtedness) of any other person.
4.27

Environmental, Health and Safety Matters.


[Alternative Short Form]

Each of the Company, its subsidiaries and their respective predecessors and affiliates have
complied and is in compliance with all laws concerning public health and safety, worker health and safety,
and pollution or protection of the environment, the presence, use, production, generation, handling,
transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release,
threatened release, control or cleanup of any chemical substances or mixtures, pesticides, pollutants,

contaminants, toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated biphenyls,


noise or radiation, each as amended and in effect, now or in the future.
[Alternative Long Form]
(a)
Each of the Company, its subsidiaries and their respective predecessors and
affiliates have complied and is in compliance with all environmental, health and safety requirements.
(b)
More specifically, each of the Company, its subsidiaries and their respective
affiliates have obtained and complied with, and is in compliance with, all permits that are required
pursuant to environmental, health and safety requirements for the occupation of its facilities and the
operation of its business. A list of all such permits is set forth in section 4.27(b) of the Sellers Disclosure
Schedule.
(c)
Neither the Company, its subsidiaries nor their respective predecessors or
affiliates have received any written or oral notice, report or other information regarding any actual or
alleged violation of environmental, health and safety requirements, or any liabilities or potential liabilities
(whether accrued, absolute, contingent, unliquidated or otherwise), including any investigatory, remedial
or corrective obligations, relating to any of them or its facilities arising under environmental, health and
safety requirements.
(d)
None of the following exists at any property or facility owned or operated by the
Company or its subsidiaries: (i) underground storage tanks; (ii) asbestos-containing material in any form
or condition; (iii) materials or equipment containing polychlorinated biphenyls; or (iv) landfills, septic
systems, drainfields, wells, drywells, surface impoundments or disposal areas.
(e)
None of the Company, its subsidiaries or their respective predecessors or
affiliates have treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled
or released any substance, including without limitation any hazardous substance, or owned or operated
any property or facility (and no such property or facility is contaminated by any such substance) in a
manner that has given or would give rise to liabilities, including any liability for response costs, corrective
action costs, personal injury, property damage, natural resources damages or attorney fees, pursuant to
any environmental, health and safety requirements, including the Comprehensive Environmental
Response, Compensation and liability Act of 1980, as amended and the Solid Waste Disposal Act, as
amended.
(f)
Neither this Agreement nor the consummation of the transaction that is the
subject of this Agreement will result in any obligations for site investigation or cleanup, or notification to or
consent of governmental authorities or other persons, pursuant to any of the so-called transactiontriggered or responsible property transfer environmental, health and safety requirements.
(g)
Neither the Company, its subsidiaries nor any of their respective predecessors or
affiliates have, either expressly or by operation of law, assumed or undertaken any liability, including
without limitation any obligation for corrective or remedial action, of any other person relating to
environmental, health and safety requirements.
(h)
No facts, events or conditions relating to the past or present facilities, properties
or operations of the Company, its subsidiaries or any of their respective predecessors or affiliates: (i) will
prevent, hinder or limit continued compliance with environmental, health and safety requirements; (ii) give
rise to any investigatory, remedial or corrective obligations pursuant to environmental, health and safety
requirements; or (iii) give rise to any other liabilities (whether accrued, absolute, contingent, unliquidated
or otherwise) pursuant to environmental, health and safety requirements, including without limitation any

relating to onsite or offsite releases or threatened releases of hazardous materials, substances or wastes,
personal injury, property damage or natural resources damage.
4.28
Transactions with Affiliates. Section 4.28 of the Sellers Disclosure Schedule lists all
contracts and agreements between any of the Company and its subsidiaries, on one hand, and any of the
Sellers or their affiliates, on the other. All such contracts and agreements will, except as noted on section
4.28 of the Sellers Disclosure Schedule, be terminated immediately prior to the closing. None of the
Sellers, their affiliates, the Sellers directors, officers, employees and shareholders, and the Companys
and its subsidiaries directors, officers, employees and shareholders owns any asset, tangible or
intangible, that is used in the business of any of the Company and its subsidiaries.
4.29

Customers and Suppliers.

(a)
Section 4.29(a) of the Sellers Disclosure Schedule lists the [25] largest
customers of the Company (on a consolidated basis) for each of the two most recent fiscal years and sets
forth opposite the name of each such customer the percentage of consolidated net sales attributable to
such customer. Section 4.29(a) of the Sellers Disclosure Schedule also lists any additional current
customers that the Company anticipates will be among the [25] largest customers for the current fiscal
year.
(b)
Section 4.29(b) of the Sellers Disclosure Schedule lists the [25] largest suppliers
of the Company (on a consolidated basis) for each of the two most recent fiscal years and sets forth
opposite the name of each such supplier the percentage of materials or services attributable to such
supplier. Section 4.29(b) of the Sellers Disclosure Schedule also lists any additional current suppliers
that the Company anticipates will be among the [25] largest suppliers for the current fiscal year.
(c)
No customer listed on section 4.29(a) of the Sellers Disclosure Schedule has
indicated that it will stop, or decrease the rate of, buying materials, products or services from the
Company or any of its subsidiaries. No supplier listed on section 4.29(b) of the Sellers Disclosure
Schedule has indicated that it will stop, or decrease the rate of, supplying materials, products or services
to the Company or any of its subsidiaries.
4.30
Other Information. The information concerning any of the Company and its subsidiaries
set forth in this Agreement and the Schedules and Exhibits attached to this Agreement, and any
statement or certificate of the Company furnished or to be furnished to the Buyer pursuant to this
Agreement, does not and will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated herein or therein or necessary to make the statements and facts
contained herein or therein, in light of the circumstances in which they are made, not false or misleading.
5. Pre-Closing Covenants.
The Parties agree as follows with respect to the period between the execution of this Agreement
and the closing.
5.1
General. Each of the Parties will use his, her or its reasonable best efforts to take all
action and to do all things necessary, proper or advisable in order to consummate and make effective the
transactions contemplated by this Agreement (including satisfaction, but not waiver, of the closing
conditions set forth in section 7 of this Agreement).
5.2

Notices and Consents.

(a)
The Sellers will cause each of the Company and its subsidiaries to give any
notices to third parties and will cause each of the Company and its subsidiaries to use its reasonable best
efforts to obtain any third party consents that are necessary or that the Buyer may reasonably request in
connection with the transactions contemplated by this Agreement. Each of the Parties will (and the
Sellers will cause each of the Company and its subsidiaries to) give any notices to, make any filings with,
and use its reasonable best efforts to obtain any authorizations, consents and approvals of any
governmental authority necessary in connection with the transactions contemplated by this Agreement.
(b)
[More specifically, each of the Parties will file any Notification and Report
Forms and related material that it may be required to file with the Federal Trade Commission and
the Antitrust Division of the United States Department of Justice under the HSR Act, will use its
reasonable best efforts to obtain an early termination of the applicable waiting period and will
make (and the Sellers will cause each of the Company and its subsidiaries to make) any further
filings that may be necessary, proper or advisable relating to the HSR Act. Each of the Parties will
cooperate and coordinate with the other Party in connection with such filings and actions. Also
identify who is paying the HSR fee.]
5.3
Operation of Business. The Sellers will not, without the consent of the Buyer, cause or
permit any of the Company and its subsidiaries to engage in any practice, take any action, or enter into
any transaction outside the ordinary course of business, except as expressly contemplated by this
Agreement. Without limiting the foregoing, the Sellers will not, without the consent of the Buyer, except
as expressly contemplated by this Agreement, cause or permit any of the Company and its subsidiaries to
do any of the following:
(a)
sell, lease (as lessor), transfer or otherwise dispose of, any of material assets of
any of the Company and its subsidiaries, other than as used, consumed or replaced in the ordinary
course of business consistent with good business practices, or encumber, pledge, mortgage or suffer to
be imposed on any of the material assets of any of the Company and its subsidiaries any security
interests;
(b)
amend, terminate, allow to lapse or expire, fail to timely apply for renewal of, or
otherwise modify in any respect any agreement identified in section 4.16 of the Sellers Disclosure
Schedule or any permit other than in the ordinary course of business or as may be required in connection
with transferring the rights or obligations under such agreement or permit to the Buyer pursuant to this
Agreement;
(c)
make any capital expenditures of more than [$10,000] or enter into a capital
commitment with respect thereto;
(d)
amend or otherwise change its charter, bylaws, member control agreement or
equivalent organizational documents;
(e)
issue, sell, pledge, dispose of, grant, encumber or authorize the issuance, sale,
pledge, disposition, grant or encumbrance of, any capital stock in any of the Company and its
subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any
capital stock or any other ownership interest (including without limitation any phantom stock), in any of the
Company and its subsidiaries;
(f)
acquire (including without limitation by merger, consolidation or acquisition of
stock or assets) any corporation, partnership or other business organization or any division thereof or any
material amount of assets; incur any indebtedness for borrowed money or issue any debt securities or
assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the
obligations of any person, or make any loans or advances, except borrowing in the ordinary course of

business pursuant to any existing credit agreements; or enter into or amend a contract, agreement,
commitment or arrangement with respect to any matter set forth in this paragraph (f);
(g)
hire any employees, increase the compensation payable or to become payable
to, or grant any severance or termination pay to, its officers, directors or consultants, if any, or enter into
any employment, consulting or severance agreement with, any director, officer or other employee or
consultant of any of the Company and its subsidiaries, or establish, adopt, enter into or amend any
collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension,
retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust,
fund, policy or arrangement (including any Employee Benefit Plan) for the benefit of any director, officer,
employee or consultant;
(h)
declare, set aside or pay any dividend or make any distribution with respect to its
capital stock, or redeem, purchase or otherwise acquire any of its capital stock;
(i)

__________________________________________

[include

any

specific

limitations]; or
(j)
otherwise engage in any practice, take any action or enter into any transaction of
the sort described in section 4.8 of this Agreement.
5.4
Preservation of Business. The Sellers will cause each of the Company and its
subsidiaries to keep its business and properties substantially intact, including its present operations,
physical facilities, working conditions, insurance policies and relationships with lessors, licensors,
suppliers, customers and employees.
5.5
Full Access. The Sellers will permit, and the Sellers will cause each of the Company
and its subsidiaries to permit, representatives of the Buyer to have full access, at all reasonable times,
and in a manner so as not to interfere with the normal business operations of any of the Company and its
subsidiaries, to all premises, properties, personnel, books, records (including tax records), contracts and
documents of or pertaining to any of the Company and its subsidiaries.
5.6

Notice of Developments.

(a)
Each Party will give prompt written notice to the others of any development
causing a breach of any of its own representations and warranties in section 3 of this Agreement. No
disclosure by any Party pursuant to this section 5.6(a), however, will be deemed to amend or supplement
the Sellers Disclosure Schedule or the Buyers Disclosure Schedule, as applicable, to have qualified the
representations and warranties contained in section 3 of this Agreement, or to prevent or cure any
misrepresentation, breach of warranty or breach of covenant.
(b)
The Sellers will give prompt written notice to the Buyer of any development
causing a breach of any of the representations and warranties in section 4 of this Agreement. No
disclosure by the Sellers pursuant to this section 5.6(b), however, will be deemed to have amended or
supplement any of the Sellers Disclosure Schedule, to have qualified the representations and warranties
contained in section 4 of this Agreement, or to prevent or cure any misrepresentation, breach of warranty
or breach of covenant.
5.7
Exclusivity. The Sellers will not, and the Sellers will not cause or permit any of the
Company and its subsidiaries to, (a) solicit, initiate or encourage the submission of any proposal or offer
from any person relating to the acquisition of any capital stock or other voting securities, or any
substantial portion of the assets, of any of the Company and its subsidiaries (including any acquisition

structured as a merger, consolidation or share exchange), or (b) participate in any discussions or


negotiations regarding, furnish any information, assist or participate in, or facilitate in any other manner
any effort or attempt by any person to do or seek any of the activities under section 5.7(a) of this
Agreement. The Sellers will notify the Buyer immediately if any person makes any proposal, offer, inquiry
or contact in this regard.
5.8

Title Insurance.

(a)
The Company will obtain (and will cause its subsidiaries to obtain) the following
title insurance commitments, policies and riders in preparation for the closing:
(i) with respect to each parcel of real estate that any of the Company and its
subsidiaries owns, an ALTA Owners Policy of Title Insurance Form B-1987 (or equivalent policy
reasonably acceptable to the Buyer if the real property is located in a state in which an ALTA Owners
Policy of Title Insurance Form B-1987 is not available) issued by a title insurer reasonably satisfactory to
the Buyer (and, if requested by the Buyer, reinsured in whole or in part by one or more insurance
companies and pursuant to a direct access agreement reasonably acceptable to the Buyer), in such
amount as the Buyer reasonably may determine to be the fair market value of such real property
(including all improvements), insuring title to such real property to be in the Buyer or the subsidiary as of
the closing (subject only to the title exceptions described in section 4.12(a) of this Agreement and in
section 4.12(a) of the Sellers Disclosure Schedule); and
(ii) with respect to each parcel of real estate that any of the Company and its
subsidiaries leases or subleases and that is listed on section 4.12(b) of the Sellers Disclosure Schedule
as a property for which a title insurance policy is to be procured, an ALTA Leasehold Owners Policy of
Title Insurance-1987 (or equivalent policy reasonably acceptable to the Buyer if the real property is
located in a state in which an ALTA Leasehold Owners Policy of Title Insurance-1987 is not
available) issued by a title insurer satisfactory to the Buyer (and, if requested by the Buyer, reinsured in
whole or in part by one or more insurance companies and pursuant to a direct access agreement
reasonably acceptable to the Buyer) in such amount as the Buyer reasonably may determine (taking into
account the time cost of money and such other factors as whether the fair market rental value of the
premises exceeds the stipulated consideration in the lease or sublease, whether the tenant or subtenant
has any option to renew or extend, whether the tenant or subtenant owns any improvements located on
the premises, whether the tenant or subtenant is permitted to sublease, and whether the tenant or
subtenant would owe any amount under the lease or sublease if evicted), insuring title to the leasehold or
subleasehold estate to be in the Buyer or the subsidiary as of the closing (subject only to the title
exceptions described in section 4.12(b) of this Agreement and in section 4.12(b) of the Sellers Disclosure
Schedule).
(b)
Each title insurance policy delivered under section 5.8(a) of this Agreement will:
(i) insure title to the real property and all recorded easements benefiting such real property; (ii) contain an
extended coverage endorsement insuring over the general exceptions contained customarily in such
policies; (iii) contain an ALTA Zoning Endorsement 3.1 (or equivalent); (iv) contain an endorsement
insuring that the real property described in the title insurance policy is the same real estate as shown on
the survey delivered with respect to such property; (v) contain an endorsement insuring that each street
adjacent to the real property is a public street and that there is direct and unencumbered pedestrian and
vehicular access to such street from the real property; (vi) contain an inflation endorsement providing for
annual adjustments in the amount of coverage corresponding to the annual percentage increase, if any, in
the United States Department of Commerce Composite Construction Cost Index (Base Year = ____);
(vii) if the real property consists of more than one record parcel, contain a contiguity endorsement
insuring that all of the record parcels are contiguous to one another; and (viii) contain a non-imputation
endorsement to the effect that title defects known to the officers, directors, and shareholders of the owner
prior to the closing shall not be deemed facts known to the insured for purposes of the policy.

5.9
Surveys. With respect to each parcel of real property that the Company and its
subsidiaries own, lease or sublease, and as to which a title insurance policy is to be procured pursuant to
section 5.8 of this Agreement, the Company will procure (and will cause its subsidiaries to procure) in
preparation for the closing a current survey of the real property certified to the Buyer, prepared by a
licensed surveyor and conforming to current ALTA Minimum Detail Requirements for Land Title Surveys,
disclosing the location of all improvements, easements, party walls, sidewalks, roadways, utility lines and
other matters shown customarily on such surveys, and showing access affirmatively to public streets and
roads (the survey). The survey shall not disclose any survey defect or encroachment from or onto the
real property that has not been cured or insured over prior to the closing.
5.10
Tax Matters. Without the prior written consent of the Buyer, none of the Company and its
subsidiaries may make or change any election, change an annual accounting period, adopt or change
any accounting method, file any amended Tax Return, enter into any closing agreement, settle any tax
claim or assessment relating to the Company or any of its subsidiaries, surrender any right to claim a
refund of taxes, consent to any extension or waiver of the limitation period applicable to any tax claim or
assessment relating to the Company or any of its subsidiaries, or take any other similar action relating to
the filing of any Tax Return or the payment of any tax, if such election, adoption, change, amendment,
agreement, settlement, surrender, consent or other action would have the effect of increasing the tax
liability of the Buyer or any of its subsidiaries for any period ending after the closing date or decreasing
any tax attribute of the Buyer or any of its subsidiaries existing on the closing date.
6. Post-Closing Covenants.
The Parties agree as follows with respect to the period following the closing.
6.1
General. If after the closing any further action is necessary or desirable to carry out the
purposes of this Agreement, the Transaction Documents and the contemplated transactions, each of the
Parties will take such further action (including the execution and delivery of such further instruments and
documents) as any other Party reasonably may request, and the requesting Party will pay all reasonable
out-of-pocket costs and expenses of the requested Party (unless the requesting Party is entitled to
indemnification for the requested action under section 8 of this Agreement). The Sellers acknowledge
and agree that from and after the closing the Buyer will be entitled to possession of all documents, books,
records (including tax records), agreements and financial data relating to the Company and its
subsidiaries.
6.2
Transition. The Sellers and their affiliates will not take any action that is designed or
intended to have the effect of discouraging any lessor, licensor, customer, supplier or other business
associate of any of the Company and its subsidiaries from maintaining the same business relationships
with any of the Company and its subsidiaries after the closing as it maintained with any of the Company
and its subsidiaries prior to the closing. Each of the Sellers will refer all customer inquiries relating to the
businesses of the Company and its subsidiaries to the Buyer from and after the closing.
6.3
Confidentiality. The Sellers will treat and hold as such all of the confidential information,
refrain from using any of the confidential information except in connection with this Agreement, and
deliver promptly to the Buyer or destroy, at the request and option of the Buyer, all tangible embodiments
(and all copies) of the confidential information that are in his, her or its possession. In the event that the
Sellers are requested or required (by oral question or request for information or documents in any legal
proceeding, interrogatory, subpoena, civil investigative demand or similar process) to disclose any
confidential information, the Sellers will notify the Buyer promptly of the request or requirement so that the
Buyer may seek an appropriate protective order or waive compliance with the provisions of this section
6.4. If, in the absence of a protective order or the receipt of a waiver, the Sellers are, on the advice of
counsel, compelled to disclose any confidential information to the tribunal or else stand liable for
contempt, the Sellers may disclose the confidential information to the tribunal. The disclosing party must

use his, her or its reasonable best efforts to obtain, at the reasonable request of the Buyer, an order or
other assurance that confidential treatment will be accorded to such portion of the confidential information
required to be disclosed as the Buyer shall designate. The obligations of the Sellers under this section
6.3 are in addition to and not in derogation of any other confidentiality obligations of the Sellers to the
Buyer, its subsidiaries (including, after the closing, the Company) and their affiliates, whether by contract,
law or otherwise.
6.4

Covenant Not to Compete.

(a)
For a period of five years from and after the closing date, none of the Sellers and
their affiliates will engage directly or indirectly (except having less than 1% ownership of the outstanding
stock in any publicly-traded corporation) in any business that any of the Company and its subsidiaries
conducts as of the closing date in any geographic area in which any of the Company and its subsidiaries
conducts that business as of the closing date. The Buyers rights under this section 6.4 may be enforced
by any successor or assign of any of the Buyer or its affiliates.
(b)
If the final judgment of a court of competent jurisdiction declares that any term or
provision of this section 6.5 is invalid or unenforceable, the Parties agree that the court making the
determination of invalidity or unenforceability will have the power to reduce the scope, duration or area of
the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term
or provision with a term or provision that is valid and enforceable and that comes closest to expressing
the intention of the invalid or unenforceable term or provision, and this Agreement will be enforceable as
so modified after the expiration of the time within which the judgment may be appealed.
(c)
Each of the Sellers acknowledges and agrees that this covenant not to compete
is reasonable and necessary to protect the Buyers legitimate business interests, including without
limitation the confidential and professional information and trade secrets of the Buyer and its subsidiaries
(including the Company).
6.5

Nonsolicitation; Non-Hire and Noninterference.

(a)
For a period of five years from and after the closing date, none of the Sellers and
their affiliates will directly or indirectly (i) induce or attempt to induce any person employed by the
Company within 12 months prior to the closing date (each, a company employee) to leave the employ of
the Buyer and its affiliates (including the Company), or in any way interfere adversely with the relationship
between any company employee and the Buyer and its affiliates (including the Company), (ii) induce or
attempt to induce any company employee to work for, render services or provide advice to or supply
confidential business information or trade secrets of the Buyer and its affiliates (including the Company) to
any person, (iii) employ, or otherwise pay for services rendered by, any company employee in any
business enterprise with which any of the Seller and their affiliates may be associated, connected or
affiliated, or (iv) induce or attempt to induce any customer, supplier, licensee, licensor or other person
having a business relationship with the Company to cease doing business with the Buyer and its affiliates
(including the Company), or in any way interfere with the relationship between any such customer,
supplier, licensee, licensor or other such person and the Buyer and its affiliates (including the Company).
The Buyers rights under this section 6.5 may be enforced by any successor or assign of any of the Buyer
or its affiliates.
(b)
If the final judgment of a court of competent jurisdiction declares that any term or
provision of this section 6.6 is invalid or unenforceable, the Parties agree that the court making the
determination of invalidity or unenforceability will have the power to reduce the scope, duration or area of
the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term
or provision with a term or provision that is valid and enforceable and that comes closest to expressing

the intention of the invalid or unenforceable term or provision, and this Agreement will be enforceable as
so modified after the expiration of the time within which the judgment may be appealed.
7. Conditions to Obligation to Close.
7.1
Conditions to Obligation of the Buyer. The obligation of the Buyer to consummate the
transactions to be performed by it in connection with the closing is subject to satisfaction of the following
conditions:
(a)
the representations and warranties set forth in sections 3.1 and 4 of this
Agreement will be true and correct in all material respects at and as of the closing date, except to the
extent that such representations and warranties are qualified by terms such as material and material
adverse effect, in which case such representations and warranties will be true and correct in all respects
at and as of the closing date;
(b)
the Sellers will have performed and complied with all of his, her or its covenants
contained in this Agreement in all material respects through the closing, except to the extent that such
covenants are qualified by terms such as material and material adverse effect, in which case such
covenants will be true and correct in all respects at and as of the closing date;
(c)
the Sellers will have procured all of the necessary third party consents,
authorizations and approvals, all of which must be final and non-appealable, all of the title insurance
commitments, policies and riders specified in section 5.8 of this Agreement, and all of the surveys
specified in section 5.9 of this Agreement;
(d)
no action, suit or proceeding will be pending or threatened before any
governmental authority in which an unfavorable injunction, judgment, order, decree, ruling or charge
would: (i) prevent consummation of any of the transactions contemplated by this Agreement; (ii) cause
any of the transactions contemplated by this Agreement to be rescinded following consummation;
(iii) affect adversely the right of the Buyer to own the shares and to control the Company and its
subsidiaries; or (iv) affect adversely the right of any of the Company and its subsidiaries to own its assets
and to operate its business (and no such injunction, judgment, order, decree, ruling or charge will be in
effect);
(e)
each of the Sellers will have executed and delivered to the Buyer a certificate to
the effect that each of the conditions specified in this section 7.1(a) to (d) is satisfied in all respects;
(f)
[all applicable waiting periods (and any extensions) under the HSR Act will have
expired or otherwise been terminated, and] the Parties will have received all other necessary
authorizations, consents and approvals of any governmental authority, all of which must be final and nonappealable;
(g)
the relevant parties will have entered into ______________________ [list side
agreement] in form and substance as set forth in the attached Exhibit __, which must be in full force and
effect;
(h)
the Buyer will have received from counsel to the Sellers an opinion in form and
substance as set forth in the attached Exhibit __, addressed to the Buyer, and dated as of the closing
date;
(i)
[the Buyer will have obtained on terms and conditions reasonably
satisfactory to it all of the financing it needs in order to consummate the contemplated

transactions [and to fund the working capital requirements of the acquired businesses after the
closing]];
(j)
each of the Sellers will have delivered a certificate of incumbency, dated as of the
closing date, as to the officers and other personnel of such Seller executing this Agreement and any
certificate, instrument or document to be delivered by such Seller at the closing;
(k)
each of the Sellers will have delivered a certified copy of corporate resolutions
authorizing the execution and delivery of this Agreement and the consummation of the transactions
contemplated by this Agreement;
(l)
the Sellers each will have executed and delivered to the Buyer a non-foreign
affidavit as described in section 1445(b)(2) of the Code and its regulations;
(m)
there will not have occurred any material adverse change in the condition
(financial or otherwise), properties, liabilities, business, operations, results of operation or prospects of
any of the Company and its subsidiaries, individually or in the aggregate;
(n)
[the Buyer will have received the approval of its board of directors (which
approval may be given or withheld in its sole discretion) to execute this Agreement and to
consummate the transactions contemplated by this Agreement;]
(o)
each of the Company and its subsidiaries will deliver to the Buyer written
resignations of all of the incumbent officers, directors or persons holding similar positions of each of the
Company and its subsidiaries;
(p)
______, _______ and _____ will have entered into Non-Competition Agreements
with the Buyer, in form and substance as set forth in the attach Exhibit __, which will be in full force and
effect;
(q)
the Buyer will have entered into satisfactory employment or retention agreements
or arrangements with the following key employees: ______, _______ and _____;
(r)
[the Buyer will have received estoppel certificates addressed to it from the
landlord under each lease to which the Company is a party dated not more than five business
days of the closing date and in form and substance reasonably acceptable to the Buyer,
confirming that, with respect to such lease, the terms of its lease as set forth in section 4.12 of the
Sellers Disclosure Schedule and the representations and warranties contained in section
4.12(a) of this Agreement are true and correct;]
(s)
the Sellers will have delivered such other documents and instruments as are
reasonably necessary or appropriate to effect the consummation of the contemplated transactions or that
may be required under any laws or any agreements to which the Company is a party; and
(t)
all actions to be taken by the Sellers in connection with consummation of the
contemplated transactions and all certificates, opinions, instruments and other documents required to
effect these transactions will be reasonably satisfactory in form and substance to the Buyer.
The Buyer may waive any condition specified in this section 7.1 by providing a written
waiver at or prior to the closing.

7.2
Conditions to Obligation of the Sellers. The obligation of the Sellers to consummate
the transactions to be performed by them in connection with the closing is subject to satisfaction of the
following conditions:
(a)
the representations and warranties set forth in section 3.2 of this Agreement will
be true and correct in all material respects at and as of the closing date, except to the extent that such
representations and warranties are qualified by terms such as material and material adverse effect, in
which case such representations and warranties will be true and correct in all respects at and as of the
closing date;
(b)
the Buyer will have performed and complied with all of its covenants contained in
this Agreement in all material respects through the closing, except to the extent that such covenants are
qualified by terms such as material and material adverse effect, in which case such covenants will be
true and correct in all respects at and as of the closing date;
(c)
no action, suit or proceeding will be pending or threatened before any
governmental authority in which an unfavorable injunction, judgment, order, decree, ruling or charge
would: (i) prevent consummation of any of the transactions contemplated by this Agreement; or (ii) cause
any of the transactions contemplated by this Agreement to be rescinded following consummation (and no
such injunction, judgment, order, decree, ruling or charge will be in effect);
(d)
the Buyer will have delivered to the Sellers a certificate to the effect that each of
the conditions specified above in this section 7.2(a) to (c) is satisfied in all respects;
(e)
[all applicable waiting periods (and any extensions) under the HSR Act will
have expired or otherwise been terminated,] and the Parties will have received all other necessary
authorizations, consents and approvals of any governmental authority, all of which must be final and nonappealable;
(f)
the relevant parties will have entered into ______________________ [list side
agreement] in form and substance as set forth in the attached Exhibit __, which must be in full force and
effect;
(g)
the Sellers will have received from counsel to the Buyer an opinion in form and
substance as set forth in the attached Exhibit __, addressed to the Sellers, and dated as of the closing
date;
(h)
the Buyer will have delivered a certificate of incumbency, dated as of the closing
date, as to the officers and other personnel of the Buyer executing this Agreement and any certificate,
instrument or document to be delivered by the Buyer at the closing;
(i)
the Buyer will have delivered a certified copy of corporate resolutions authorizing
the execution and delivery of this Agreement and the consummation of the transactions contemplated by
this Agreement;
(j)
the Buyer will have delivered such other documents and instruments as are
reasonably necessary or appropriate to effect the consummation of the contemplated transactions or that
may be required under any laws or any agreements to which the Buyer is a party; and
(k)
all actions to be taken by the Buyer in connection with consummation of the
contemplated transactions and all certificates, opinions, instruments and other documents required to
effect the contemplated transactions will be reasonably satisfactory in form and substance to the Sellers.

The Sellers may waive any condition specified in this section 7.2 by providing a
written waiver at or prior to the closing.
8. Remedies for Breaches of This Agreement.
8.1

Survival of Representations, Warranties and Covenants.

(a)
Notwithstanding any investigation made by or on behalf of any of the Parties or
the results of any investigation, and notwithstanding the participation of the Parties in the closing, all of
the representations and warranties of the Parties contained in section 3 of this Agreement will survive the
closing (even if the damaged Party knew or had reason to know of any misrepresentation or breach of
warranty at the time of the closing) and continue in full force and effect forever.
(b)
Notwithstanding any investigation made by or on behalf of any of the Parties or
the results of any investigation, and notwithstanding the participation of the Parties in the closing, (i) all of
the representations and warranties of the Sellers contained in sections ____, ____ and ___ of this
Agreement will survive the closing (even if the Buyer knew or had reason to know of any
misrepresentation or breach of warranty at the time of the closing), and will continue in full force and
effect for a period of ___________ years after the closing, (ii) all of the representations and warranties of
the Sellers contained in sections [4.1, 4.2, 4.3, 4.4, 4.5 and 4.6] of this Agreement will survive the closing
(even if the Buyer knew or had reason to know of any misrepresentation or breach of warranty at the time
of the closing), and will continue in full force and effect forever, and (iii) all of the representations and
warranties of the Sellers contained in sections ____, ____ and ___ of this Agreement will survive the
closing (even if the Buyer knew or had reason to know of any misrepresentation or breach of warranty at
the time of the closing), and will continue until the expiration of the applicable statutes of limitation to
which the liabilities relate, plus six months.
(c)
The covenants set forth in this Agreement will survive indefinitely, unless a
shorter period of survival is specifically set forth in this Agreement.
8.2

Indemnification Provisions for Benefit of the Buyer.

(a)
In the event any of the Sellers breaches (or in the event any third party alleges
facts that, if true, would mean any of the Sellers has breached) any of his, her or its representations,
warranties or covenants contained in this Agreement or in any Transaction Document to which he, she or
it is a party (provided that the Buyer makes a written claim for indemnification against any of the Sellers
within the applicable survival period set forth in section 8.1 of this Agreement), then each of the Sellers
are obligated jointly and severally to indemnify the Buyer Parties from and against the entirety of any
adverse consequences any of the Buyer Parties may suffer through and after the date of the claim for
indemnification (including any adverse consequences the Buyer Parties may suffer after the end of any
applicable survival period) resulting from, arising out of, relating to, in the nature of, or caused by such
breach (or alleged breach).
[Include the following if the parties agree to limited indemnification:]
The Sellers, however, will not have any obligation under this section 8.2(a) to
indemnify the Buyer Parties from and against any adverse consequences resulting from, arising out of,
relating to, in the nature of or caused by the breach or alleged breach of any representation or warranty of
the Sellers contained in sections _____, ____, ____, ____, ____ and ____ of this Agreement until the
Buyer Parties have suffered adverse consequences by reason of all such breaches (or alleged
breaches) in excess of a $___________ aggregate threshold (at which point the Sellers will be obligated

to indemnify the Buyer Parties from and against all such adverse consequences relating back to the first
dollar).
(b)
Each of the Sellers is obligated jointly and severally to indemnify the Buyer
Parties from and against the entirety of any adverse consequences any of the Buyer Parties may suffer
through and after the date of the claim for indemnification (including any adverse consequences the
Buyer Parties may suffer after the end of any applicable survival period) resulting from, arising out of,
relating to, in the nature of, or caused by any liability of any of the Company and its subsidiaries (i) for any
taxes of any of the Company and its subsidiaries with respect to any tax year or portion thereof ending on
or before the closing date (or for any tax year beginning before and ending after the closing date to the
extent allocable to the portion of such period beginning before and ending on the closing date as provided
in section 9.2 of this Agreement), to the extent such taxes are not reflected in the reserve for tax liability
(rather than any reserve for deferred taxes established to reflect timing differences between book and tax
income) shown on the face of the most recent Financial Statements; and (ii) for the unpaid taxes of any
person (other than the Company and its subsidiaries) under Tres. Reg. 1.15026 (or any similar provision
of law), as a transferee or successor, by contract or otherwise.
(c)
Each of the Sellers is obligated jointly and severally to indemnify the Buyer
Parties from and against the entirety of any adverse consequences any of the Buyer Parties may suffer
through and after the date of the claim for indemnification (including any adverse consequences the
Buyer Parties may incur or suffer after the end of any applicable survival period) resulting from, arising out
of, relating to, in the nature of, or caused by ______. [Identify specific indemnification requirements, if
any.]
8.3
Indemnification Provisions for Benefit of the Sellers. In the event the Buyer
breaches (or in the event any third party alleges facts that, if true, would mean the Buyer has
breached) any of its representations, warranties or covenants contained in this Agreement (provided that
the Sellers makes a written claim for indemnification against the Buyer within the survival period set forth
in section 8.1 of this Agreement), then the Buyer is obligated to indemnify the Sellers from and against the
entirety of any adverse consequences any of the Sellers may suffer through and after the date of the
claim for indemnification (including any adverse consequences the Sellers may suffer after the end of any
applicable survival period) resulting from, arising out of, relating to, in the nature of, or caused by such
breach (or alleged breach).
8.4

Matters Involving Third Parties.

(a)
If any third party notifies any Party (the Indemnified Party) with respect to any
matter (a Third Party Claim) that may give rise to a claim for indemnification against any other Party (the
Indemnifying Party) under this section 8, then the Indemnified Party will promptly notify each
Indemnifying Party in writing. Delay on the part of the Indemnified Party in notifying any Indemnifying
Party will not relieve the Indemnifying Party from their obligation unless (and then solely to the extent) the
Indemnifying Party is prejudiced.
(b)
Any Indemnifying Party will have the right to defend the Indemnified Party against
the Third Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party so long
as (i) the Indemnifying Party notifies the Indemnified Party in writing within [15 days] after the Indemnified
Party has given notice of the Third Party Claim that the Indemnifying Party will indemnify the Indemnified
Party from and against the entirety of any adverse consequences the Indemnified Party may suffer
resulting from, arising out of, relating to, in the nature of or caused by the Third Party Claim; (ii) the
Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the
Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Third
Party Claim and fulfill its indemnification obligations; (iii) the Third Party Claim involves only money
damages and does not seek an injunction or other equitable relief; (iv) settlement of, or an adverse

judgment with respect to, the Third Party Claim is not, in the good faith judgment of the Indemnified Party,
likely to establish a precedential custom or practice materially adverse to the continuing business
interests of the Indemnified Party; and (v) the Indemnifying Party conducts the defense of the Third Party
Claim actively and diligently.
(c)
So long as the Indemnifying Party is conducting the defense of the Third Party
Claim in accordance with section 8.4(b) of this Agreement, (i) the Indemnified Party may retain separate
co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim; (ii) the
Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to
the Third Party Claim without the prior written consent of the Indemnifying Party (not to be withheld
unreasonably); and (iii) the Indemnifying Party will not consent to the entry of any judgment or enter into
any settlement with respect to the Third Party Claim without the prior written consent of the Indemnified
Party (not to be withheld unreasonably).
(d)
If any of the conditions in section 8.4(b) of this Agreement is not or is no longer
satisfied, (i) the Indemnified Party may defend against, and consent to the entry of any judgment or enter
into any settlement with respect to, the Third Party Claim in any manner it reasonably may deem
appropriate (and the Indemnified Party need not consult with, or obtain any consent from, any
Indemnifying Party); (ii) the Indemnifying Parties will reimburse the Indemnified Party promptly and
periodically for the costs of defending against the Third Party Claim (including reasonable attorneys fees
and expenses); and (iii) the Indemnifying Parties will remain responsible for any adverse consequences
the Indemnified Party may suffer resulting from, arising out of, relating to, in the nature of, or caused by
the Third Party Claim to the fullest extent provided in this section 8.
[8.5
Limitations on Certain of Sellers Indemnification Obligations. Except for claims of
fraud or willful misrepresentation, the amount for which the Sellers will be obligated to indemnify
the Buyer Parties from and against any adverse consequences resulting from, arising out of,
relating to, in the nature of or caused by the breach or alleged breach by any of the Sellers of any
representation or warranty contained in sections ____, ____, ____, ____ ____, and ____ of this
Agreement will not exceed $___________. Except for claims of fraud or willful misrepresentation,
the amount for which the Sellers will be obligated to indemnify the Buyer Parties from and against
any adverse consequences resulting from, arising out of, relating to, in the nature of or caused by
the breach or alleged breach by any of the Sellers of any representation or warranty contained in
sections ____, ____ and ____ of this Agreement will not exceed the aggregate purchase price.
There will be no limit on the amount for which the Sellers will be obligated to indemnify the Buyer
Parties from and against any adverse consequences resulting from, arising out of, relating to, in
the nature of or caused by the breach or alleged breach by any of the Sellers of any covenant
contained in this Agreement or any representation or warranty contained in sections ____, ____
and ____ of this Agreement.]
8.6
Adjustment to Purchase Price. All indemnification payments under this section 8 will
be deemed adjustments to the purchase price.
8.7
[Offset. The Buyer will have the option of recouping all or any part of any adverse
consequences it may suffer by deducting such amount from the escrow, and then directly from
the Sellers.]
8.8
Other Indemnification Provisions. The above indemnification provisions are in addition
to, and not in derogation of, any statutory, equitable or common law remedy (including without limitation
any such remedy arising under environmental, health and safety requirements) any Party may have with
respect to the transactions contemplated by this Agreement. Each of the Sellers agrees that he, she or it
will not make any claim for indemnification against any of the Buyer and its subsidiaries (including the
Company) by reason of the fact that he, she or it was a director, officer, employee, shareholder or agent

of any of the Company and its subsidiaries or was serving at the request of the entity as a partner,
trustee, director, officer, employee or agent of another entity (whether the claim is for judgments,
damages, penalties, fines, costs, amounts paid in settlement, losses, expenses or otherwise and whether
the claim is pursuant to any statute, charter document, bylaw, agreement or otherwise) with respect to
any action, suit, proceeding, complaint, claim or demand brought by any of the Buyer Parties against the
Sellers (whether the action, suit, proceeding, complaint, claim or demand is pursuant to this Agreement,
applicable law or otherwise).
9. Tax Matters.
The following provisions will govern the allocation of responsibility as between the Buyer and the
Sellers for certain tax matters following the closing date:
9.1
Tax Periods Ending on or Before the Closing Date. The Buyer will prepare or cause
to be prepared and file or cause to be filed all Tax Returns for the Company and its subsidiaries for all
periods ending on or prior to the closing date that are filed after the closing date other than Income Tax
Returns. The Buyer will permit the Sellers to review and comment on each such Tax Return described in
the preceding sentence prior to filing and will make such revisions to such Tax Returns as are reasonably
requested by the Sellers. The Sellers will reimburse the Buyer for taxes of the Company and its
subsidiaries with respect to such periods within 15 days after payment by the Buyer or any of the
Company and its subsidiaries of such taxes to the extent such taxes are not reflected in the reserve for
tax liability (rather than any reserve for deferred taxes established to reflect timing differences between
book and tax income) shown on the Closing Date Balance Sheet (rather than in its notes).
9.2
Tax Periods Beginning Before and Ending After the Closing Date. The Buyer will
prepare or cause to be prepared and file or cause to be filed any Tax Returns of the Company and its
subsidiaries for tax periods that begin before the closing date and end after the closing date. The Sellers
will pay to the Buyer within 15 days after the date on which taxes are paid with respect to such periods an
amount equal to the portion of such taxes that relates to the portion of such taxable period ending on the
closing date to the extent such taxes are not reflected in the reserve for tax liability (rather than any
reserve for deferred taxes established to reflect timing differences between book and tax income) shown
on the Closing Date Balance Sheet (rather than in its notes). For purposes of this section 9.2 and section
8.2(c) of this Agreement, in the case of any taxes that are imposed on a periodic basis and are payable
for a taxable period that includes (but does not end on) the closing date, the portion of such tax that
relates to the portion of such taxable period ending on the closing date will (a) in the case of any taxes
other than taxes based upon or related to income or receipts, be deemed to be the amount of such tax for
the entire taxable period multiplied by a fraction the numerator of which is the number of days in the
taxable period ending on the closing date and the denominator of which is the number of days in the
entire taxable period; and (b) in the case of any tax based upon or related to income or receipts be
deemed equal to the amount that would be payable if the relevant taxable period ended on the closing
date. Any credits relating to a taxable period that begins before and ends after the closing date will be
taken into account as though the relevant taxable period ended on the closing date. All determinations
necessary to give effect to the foregoing allocations will be made in a manner consistent with prior
practice of the Company and its subsidiaries.
9.3
Refunds and Tax Benefits. Any tax refunds that are received by the Buyer or any of the
Company and its subsidiaries, and any amounts credited against tax to which the Buyer or any of the
Company and its subsidiaries become entitled, that relate to tax periods or portions thereof ending on or
before the closing date and that are not listed as an asset on the Closing Date Balance Sheet will be for
the account of the Sellers, and the Buyer will pay over to the Sellers any such refund or the amount of any
such credit within 15 days after receipt or entitlement thereto. In addition, to the extent that a claim for
refund or a proceeding results in a payment or credit against tax by a taxing authority to the Buyer or any
of the Company or its subsidiaries of any amount accrued on the Closing Date Balance Sheet (rather than

in its notes), the Buyer will pay such amount to the Sellers within 15 days after receipt or entitlement
thereto.
9.4

Cooperation on Tax Matters.

(a)
The Parties will cooperate fully, as and to the extent reasonably requested by the
other Party, in connection with the filing of Tax Returns pursuant to this section 9 and any audit, litigation
or other proceeding with respect to taxes. Such cooperation will include the retention and (upon the other
Partys request) the provision of records and information that are reasonably relevant to any such audit,
litigation or other proceeding and making employees available on a mutually convenient basis to provide
additional information and explanation of any material provided hereunder. The Company, its subsidiaries
and the Sellers agree (i) to retain all books and records with respect to tax matters pertinent to the
Company relating to any taxable period beginning before the closing date until the expiration of the
statute of limitations (and, to the extent notified by the Buyer or the Sellers, any extensions thereof) of the
respective taxable periods, and to abide by all record retention agreements entered into with any taxing
authority; and (ii) to give the other party reasonable written notice prior to transferring, destroying or
discarding any such books and records and, if the other party so requests, the Company, its subsidiaries
or the Sellers, as the case may be, will allow the other party to take possession of such books and
records.
(b)
The Parties further agree, upon request, to use their best efforts to obtain any
certificate or other document from any governmental authority or any other Person as may be necessary
to mitigate, reduce or eliminate any tax that could be imposed (including without limitation with respect to
the transactions contemplated by this Agreement).
9.5
Certain Taxes. All individual income taxes of any of the Sellers and all transfer,
documentary, sales, use, stamp, registration and other such taxes and fees (including any penalties and
interest) incurred in connection with this Agreement and the contemplated transactions will be paid by the
Sellers when due, and the Sellers will, at their own expense, file all necessary Tax Returns and other
documentation with respect to all such income taxes and such transfer, documentary, sales, use, stamp,
registration and other taxes and fees, and, if required by applicable law, the Buyer will, and will cause its
affiliates to, join in the execution of any such Tax Returns and other documentation. Without limiting the
foregoing, each of the Sellers is responsible for the payment of individual Income taxes in connection with
his, her or its receipt of the purchase price.
10. Employment and Benefit Matters.
[Insert specific information regarding employment and benefit matters, if appropriate.]
11. Termination.
11.1

Termination of Agreement. The Parties may terminate this Agreement as provided

below:
(a)
The Buyer and the Sellers may terminate this Agreement by mutual written
consent at any time prior to the closing;
(b)
[The Buyer may terminate this Agreement by giving written notice to the
Sellers on or before the [30th] day following the date of this Agreement if the Buyer is not
[reasonably] satisfied with the results of its continuing business, legal, environmental and
accounting due diligence regarding the Company and its subsidiaries;]

(c)
The Buyer may terminate this Agreement by giving written notice to the Sellers at
any time prior to the closing (i) in the event any of the Sellers has breached any material representation,
warranty or covenant contained in this Agreement in any material respect, the Buyer has notified the
Sellers of the breach, and the breach has continued without cure or written waiver by the Buyer for a
period of 30 days after the notice of breach; or (ii) if the closing does not occur on or before ______ ___,
20__, by reason of the failure of any condition precedent under section 7.1 of this Agreement (unless the
failure results primarily from the Buyer itself breaching any representation, warranty or covenant
contained in this Agreement)[; provided, however, that if any consents, approvals, notices or filings
required to be obtained from any governmental authority on or prior to the closing have not been
obtained from any governmental authority as of _____ __, 20__, then the date set forth in
subsection (ii) above will be extended until the earlier of (A) ten days after the date that all such
consents, approvals, notices or filings will have been obtained from any governmental authority,
or (B) _____ __, 20__];
(d)
The Sellers may terminate this Agreement by giving written notice to the Buyer at
any time prior to the closing (i) in the event the Buyer has breached any material representation, warranty
or covenant contained in this Agreement in any material respect, the Sellers have notified the Buyer of the
breach, and the breach has continued without cure or written waiver by the Sellers for a period of 30 days
after the notice of breach, or (ii) if the closing does not occur on or before _____ __, 20__, by reason of
the failure of any condition precedent under section 7.2 of this Agreement (unless the failure results
primarily from any of the Sellers or the Company itself breaching any representation, warranty or
covenant contained in this Agreement)[; provided, however, that if any consents, approvals, notices or
filings required to be obtained from any governmental authority on or prior to the closing have not been
obtained from any governmental authority as of _____ __, 20__, then the date set forth in subsection
(ii) above will be extended until the earlier of (A) ten days after the date that all such consents, approvals,
notices or filings will have been obtained from any governmental authority, or (B) _____ __, 20__]; and
(e)
Either Party may terminate this Agreement in the event that any Law becomes
effective and continues in effect for 90 days restraining, enjoining or otherwise prohibiting or making
illegal the consummation of any of the contemplated transactions.
11.2
Effect of Termination. If any Party terminates this Agreement pursuant to section 11.1
of this Agreement, all rights and obligations of the Parties under this Agreement will terminate without any
liability of any Party to any other Party (except for any liability of any Party then in breach)[, except for
any rights, obligations or agreements set forth in sections ___, ___ and ___ of this Agreement,
each of which will survive any such termination indefinitely.]
[OPTIONAL PROVISION (consider using if there are multiple Sellers):
12. Sellers Representative.
12.1
Appointment. The Sellers Representative means ______________ or any person
appointed as a successor Sellers Representative pursuant to section 12.2 of this Agreement. There may
be only one Sellers Representative at any time, and the Sellers Representative must be a Seller.
12.2. Election and Replacement. The Sellers may, by a majority vote and upon written notice
to the Sellers Representative and the Buyer, remove the Sellers Representative or appoint a new Sellers
Representative to fill any vacancy created by the death, incapacitation, resignation or removal of the
Sellers Representative. If the Sellers Representative dies, becomes incapacitated, resigns or is
removed pursuant to this section 12.2, the Sellers will, by majority vote, appoint a successor Sellers
Representative to fill the vacancy so created. If the Sellers fail to appoint such successor within ten
business days then the Buyer may appoint such successor and will advise the Sellers of such

appointment. Any replacement Sellers Representative must sign a consent to be bound by the terms of
this Agreement.
12.3
Appointment as Attorney-in-Fact and Agent. Each of the Sellers and their respective
spouses, if any, hereby constitutes and appoints the Sellers Representative as his, her or its true and
lawful attorney-in-fact and agent, and, in his or its name, place and stead, and in any and all capacities, to
sign any documents and to take any actions necessary in connection with this Agreement and the
contemplated transactions. Each of the Sellers and their respective spouses, if any, hereby ratifies and
confirms all documents signed and actions taken by the Sellers Representative pursuant to this section
12.
12.4
Authority. The Sellers Representative is authorized, for and on behalf of each of the
Sellers and their respective spouses, if any, to make and deliver any certificate, notice, consent or
instrument required or permitted to be made or delivered under this Agreement or the Transaction
Documents, which the Sellers Representative determines in his sole discretion to be necessary,
appropriate or desirable. Any party receiving a certificate, notice, consent or instrument from the Sellers
Representative is entitled to rely upon, and act in accordance with, such certificate, notice, consent or
instrument.
12.5
No Liability of the Buyer. The Buyer and the Company will have no liability to any of the
Sellers or their respective spouses, if any, arising out of the acts or ommissions of the Sellers
Representative or any disputes among any of the Sellers or among any of the Sellers, the Individuals and
the Sellers Representative. The Buyer may rely entirely on its dealings with, and notices to and from, the
Sellers Representative to satisfy any obligations the Buyer might have to any of the Sellers under this
Agreement, the Transaction Documents or with respect to the contemplated transactions. Without limiting
the foregoing, delivery to the Sellers Representative of any portion of the purchase price will extinguish
any obligations of the Buyer to the Sellers with respect to such payment, and the Buyer will have no
liability for any act or omission of the Sellers Representative with respect to such payment.
13. Miscellaneous.
13.1
Press Releases and Public Announcements. No Party will issue any press release or
make any public announcement relating to the subject matter of this Agreement prior to the closing
without the prior written approval of the Buyer and the Sellers. Any Party, however, may make any public
disclosure it believes in good faith is required by applicable law or any listing or trading agreement
concerning its publicly-traded securities (in which case the disclosing Party will use its reasonable best
efforts to advise the other Parties prior to making the disclosure).
13.2
No Third-Party Beneficiaries. This Agreement will not confer any rights or remedies
upon any person (including without limitation employees of any of the Company and its subsidiaries) other
than the Parties and their respective successors and permitted assigns.
13.3
Entire Agreement. This Agreement (including the documents referred to in this
Agreement) and the Transaction Documents constitute the entire agreement among the Parties and
supersede any prior understandings, agreements or representations by or among the Parties, written or
oral, to the extent they related in any way to the subject matter of this Agreement.
13.4
Succession and Assignment. This Agreement will be binding upon and inure to the
benefit of the Parties and their respective successors and permitted assigns. No Party may assign either
this Agreement or any of its rights, interests or obligations under this Agreement without the prior written
approval of the other Party. The Buyer, however, may, without the consent of the Sellers, (a) assign any
or all of its rights and interests hereunder to one or more of its affiliates; (b) designate one or more of its
affiliates to perform its obligations under this Agreement; or (c) sell, lease, transfer or otherwise dispose of

all or substantially all of its assets, merge with or into any other entity, or engage in any reorganization or
other similar transaction. Such successor or assign will have all rights of the Buyer under this Agreement,
including without limitation the right to enforce the covenants contained in sections 6.4 and 6.5 of this
Agreement.
13.5
Counterparts and Facsimile Signatures. This Agreement may be executed in one or
more counterparts, each of which will be deemed an original but all of which together will constitute one
and the same instrument, and by facsimile.
13.6
Headings. The section headings contained in this Agreement are inserted for
convenience only and will not affect in any way the meaning or interpretation of this Agreement.
13.7
Notices. All notices, requests, demands, claims and other communications under this
Agreement will be in writing. Any notice, request, demand, claim or other communication under this
Agreement will be deemed duly given two business days after it is sent by registered or certified mail,
return receipt requested, postage prepaid and addressed to the intended recipient as set forth below:
If to the Sellers:
________________________________
________________________________
________________________________
________________________________
Attn: ____________________________
Fax: ____________________________

________________________________
________________________________
________________________________
________________________________
Attn: ____________________________
Fax: ____________________________

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

________________________________
________________________________
________________________________
________________________________
Attn: ____________________________

Fax: ____________________________

If to the Buyer:

________________________________
________________________________
________________________________
________________________________
Attn: ____________________________
Fax: ____________________________

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

________________________________
________________________________
________________________________
________________________________
Attn: ____________________________
Fax: ____________________________

Any Party may send any notice, request, demand, claim or other communication to the
intended recipient at the address set forth above using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary mail or electronic mail), but no such
notice, request, demand, claim or other communication will be deemed to have been duly given unless
and until it actually is received by the intended recipient. Any Party may change the address to which
notices, requests, demands, claims and other communications hereunder are to be delivered by giving
the other Parties notice in the manner set forth in this Agreement.
13.8
Governing Law. This Agreement has been negotiated under and will be governed by
and construed in accordance with the domestic laws of the State of ___________ without giving effect to
any choice or conflict of law provision or rule (whether of the State of _________ or any other

jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of
________________.
13.9
Amendments and Waivers. No amendment of any provision of this Agreement will be
valid unless the same is in writing and signed by the Buyer and the Sellers. No waiver by any Party of
any provision of this Agreement or any default, misrepresentation or breach of warranty or covenant
under this Agreement, whether intentional or not, will be deemed to extend to any prior or subsequent
default, misrepresentation or breach of warranty or covenant under this Agreement or affect in any way
any rights arising by virtue of any prior or subsequent such default, misrepresentation or breach of
warranty or covenant.
13.10 Severability. Any term or provision of this Agreement that is invalid or unenforceable in
any situation in any jurisdiction will not affect the validity or enforceability of the remaining terms and
provisions of this Agreement or the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
13.11 Expenses. Each Party will bear his, her or its own costs and expenses (including legal
fees and expenses) incurred in connection with this Agreement and the contemplated transactions. The
Sellers agree that none of the Company and its subsidiaries has borne or will bear any of the Sellers
costs and expenses (including any of their legal fees and expenses) in connection with this Agreement,
the Transaction Documents or any of the contemplated transactions.
13.12 Construction. The Parties have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement must
be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring
or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Nothing in
either of the Sellers Disclosure Schedule or the Buyers Disclosure Schedule will be deemed adequate to
disclose an exception to a representation or warranty made unless such disclosure schedule identifies the
exception with reasonable particularity and describes the relevant facts in reasonable detail. Without
limiting the foregoing, the mere listing (or inclusion of a copy) of a document or other item is not adequate
to disclose an exception to a representation or warranty (unless the representation or warranty has to do
with the existence of the document or other item itself). The Parties intend that each representation,
warranty and covenant have independent significance. If any Party has breached any representation,
warranty or covenant 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 the Party
has not breached does not detract from or mitigate the fact that the Party is in breach of the first
representation, warranty or covenant.
13.13 Incorporation of Exhibits and Schedules. The Exhibits and the Schedules identified in
this Agreement are incorporated in this Agreement by reference and are made a part of this Agreement.
13.14 Specific Performance. Each of the Parties acknowledges and agrees that the other
Party would be damaged irreparably in the event any of the provisions of this Agreement are not
performed in accordance with their specific terms or otherwise are breached. Accordingly, each of the
Parties agrees that the other Party is entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically this Agreement in any action instituted in any
court of the United States or any state having jurisdiction over the Parties and the matter (subject to the
provisions set forth in section 13.15 of this Agreement), in addition to any other remedy to which it may be
entitled, at law or in equity.
13.15 Submission to Jurisdiction. Each of the Parties submits to the jurisdiction of any state
or federal court sitting in __________________, _______________, in any action or proceeding arising
out of or relating to this Agreement or any of the Transaction Documents and agrees that all claims in

respect of the action or proceeding may be heard and determined there. Each Party also agrees not to
bring any action or proceeding arising out of or relating to this Agreement or any of the Transaction
Documents in any other court. Each of the Parties waives any defense of inconvenient forum to the
maintenance of any action or proceeding so brought and waives any bond, surety or other security that
might be required of any other Party. Each Party agrees that a final judgment in any action or proceeding
so brought will be conclusive and may be enforced by suit on the judgment or in any other manner
provided by law or in equity.
[13.14 Arbitration; Injunctive Relief.].
(a)
Except as qualified below, any dispute among the Parties arising under, out of, or
in connection with or in relation to this Agreement or any of the Transaction Documents will be submitted
to binding arbitration under the authority of the Federal Arbitration Act and will be arbitrated in accordance
with the-then current Commercial Arbitration Rules of the American Arbitration Association (the AAA);
provided, that the Parties will be entitled to conduct discovery as set forth in the __________ Rules of
Civil Procedure and the arbitrator will have the power to compel discovery. The arbitration will take place
before a single arbitrator in ___________, ____________, or at such other place as is mutually agreed to
by the parties. Arbitration will be commenced by a Party giving written notice to the other Party stating the
grounds of the dispute, the relief sought and that the dispute is being arbitrated under this section 13.14.
If the Parties cannot mutually select an arbitrator and agree to administration of the arbitration within 30
days after written notice is given, then the arbitration will be administered by the AAA. The decision of the
arbitrator will be final and binding on all the Parties to the dispute; however, the arbitrator may not under
any circumstances assess punitive or exemplary damages. A judgment may be entered upon the
arbitration award by any state or federal court in ___________. The prevailing party will be entitled to its
costs and expenses of arbitration including without limitation reasonable attorneys fees.
(b)
Each of the Parties acknowledges and agrees that the other Party would be
damaged irreparably in the event any of the provisions of this Agreement are not performed in
accordance with their specific terms or otherwise are breached. Accordingly, each of the Parties agrees
that the other Party is entitled to an injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically this Agreement by applying to state or federal court in
___________ or other court of general jurisdiction for injunctive relief only, together with recovery of
reasonable attorneys fees and other costs incurred in obtaining injunctive relief. The court will refer
proceedings to the arbitrator to determine whether any injunctive relief issued will be made permanent or
be dissolved. The arbitrators findings will be binding and conclusive upon the parties.]
13.16 Separate Legal and Tax Representation. Each of the Sellers acknowledges and
agrees that he, she or it has had the opportunity to review and discuss with his, her or its own legal,
financial and tax advisors, this Agreement, the Transaction Documents and contemplated transactions,
and has relied and will rely solely on such advisors and not on any statements or representations of the
Buyer, its affiliates or its counsel or advisors, other than as expressly set forth in this Agreement.

The Parties have executed this Agreement as of the date first above written.
BUYER:
________________________________
________________________________
Name: __________________________
Title: ____________________________

SELLERS:
________________________________
________________________________
Name: __________________________
Title: ____________________________
________________________________
________________________________
Name: __________________________
Title: ____________________________
________________________________
________________________________
Name: __________________________
Title: ____________________________