EXHIBIT NO 2.6 EXECUTION COPY - -------------------------------------------------------------------------------- STOCK PURCHASE AGREEMENT by and among GEORGE M. CONSTRUCTION, INC., THOMAS E. MURRELL and LINC.NET, INC. Dated as of May 2, 2000 - -------------------------------------------------------------------------------- TABLE OF CONTENTS Page ARTICLE I CERTAIN DEFINITIONS.............................................................- 1 - 1.1 Definitions........................................................- 1 - ARTICLE II PURCHASE AND SALE OF THE SHARES.................................................- 8 - 2.1 Basic Transaction...................................................- 8 - 2.2 Closing Transactions................................................- 9 - 2.3 Purchase Price......................................................- 9 - 2.4 Earnout Payments...................................................- 12 - 2.5 Certain Adjustments Prohibited.....................................- 13 - ARTICLE III CONDITIONS TO CLOSING..........................................................- 13 - 3.1 Conditions to Buyer's Obligations..................................- 13 - 3.2 Conditions to Seller's Obligations.................................- 16 - ARTICLE IV [INTENTIONALLY OMITTED.].......................................................- 17 - ARTICLE V REPRESENTATIONS AND WARRANTIES CONCERNING THE COMPANY AND SELLER.........................................................- 18 - 5.1 Organization, Corporate Power and Licenses.........................- 18 - 5.2 Capital Stock and Related Matters; Title to Shares.................- 18 - 5.3 Authorization; Noncontravention....................................- 19 - 5.4 Subsidiaries.......................................................- 19 - 5.5 Financial Statements...............................................- 19 - 5.6 Accounts Receivable................................................- 20 - 5.7 Inventory..........................................................- 20 - 5.8 Absence of Undisclosed Liabilities.................................- 20 - -i- TABLE OF CONTENTS (CONTINUED) Page 5.9 No Material Adverse Effect.........................................- 21 - 5.10 Absence of Certain Developments....................................- 21 - 5.11 Assets.............................................................- 23 - 5.12 Contracts and Commitments..........................................- 25 - 5.13 Intellectual Property Rights.......................................- 27 - 5.14 Litigation.........................................................- 28 - 5.15 Compliance with Laws...............................................- 28 - 5.16 Environmental and Safety Matters...................................- 29 - 5.17 Employees..........................................................- 30 - 5.18 Employee Benefit Plans.............................................- 30 - 5.19 Insurance..........................................................- 32 - 5.20 Tax Matters........................................................- 32 - 5.21 Brokerage and Transaction Bonuses..................................- 34 - 5.22 Bank Accounts......................................................- 34 - 5.23 Names and Locations................................................- 34 - 5.24 Affiliate Transactions.............................................- 34 - 5.25 Service Warranties.................................................- 34 - 5.26 Customers and Suppliers............................................- 35 - 5.27 Disclosure.........................................................- 35 - ARTICLE VI REPRESENTATIONS AND WARRANTIES OF BUYER........................................- 35 - 6.1 Organization and Power.............................................- 36 - 6.2 Capitalization.....................................................- 36 - 6.3 Authorization......................................................- 36 - 6.4 No Violation.......................................................- 36 - 6.5 Governmental Authorities and Consents..............................- 36 - 6.6 Litigation.........................................................- 36 - 6.7 Brokerage..........................................................- 37 - ARTICLE VII [INTENTIONALLY OMITTED.........................................................- 37 - -ii- ARTICLE VIII ADDITIONAL AGREEMENTS; COVENANTS AFTER CLOSING.................................- 37 - 8.1 Survival of Representations and Warranties.........................- 37 - 8.2 Indemnification....................................................- 38 - 8.3 Mutual Assistance..................................................- 42 - 8.4 Non-Competition; Non-Solicitation..................................- 42 - 8.5 Press Release and Announcements....................................- 44 - 8.6 Expenses...........................................................- 44 - 8.7 Specific Performance...............................................- 44 - 8.8 Arbitration Procedure..............................................- 44 - 8.9 Further Assurances.................................................- 46 - 8.10 Confidentiality....................................................- 46 - 8.11 Tax Matters........................................................- 46 - ARTICLE IX MISCELLANEOUS..................................................................- 48 - 9.1 Amendment and Waiver...............................................- 48 - 9.2 Notices............................................................- 49 - 9.3 Successors and Assigns.............................................- 50 - 9.4 Severability.......................................................- 51 - 9.5 Interpretation.....................................................- 51 - 9.6 Captions...........................................................- 51 - 9.7 No Third-Party Beneficiaries.......................................- 51 - 9.8 Complete Agreement.................................................- 52 - 9.10 Delivery by Facsimile..............................................- 52 - 9.11 Governing Law......................................................- 52 - 9.12 Schedules..........................................................- 52 - -iii- EXHIBITS AND SCHEDULES EXHIBITS: Exhibit A-1 - Employment Agreements (Murrell) Exhibit A-2 - Employment Agreement (Hamilton, George, Crouch) Exhibit B - Executive Purchase Agreement Exhibit C - Amended and Restated Stockholders Agreement Exhibit D - Amended and Restated Registration Agreement Exhibit E - Opinion of Counsel for Seller and the Company Exhibit F - Real Property Distribution Exhibit G - Lease Agreement SCHEDULES Accounting Schedule Accounts Receivable Schedule Affiliated Transactions Schedule Assets Schedule Bank Account Schedule Brokerage Schedule Buyer Consents Schedule Compliance Schedule Contracts Schedule Customers and Suppliers Schedule Developments Schedule Employee Benefits Schedule Employees Schedule Environmental Schedule Financial Statements Schedule Indemnification Schedule Insurance Schedule Intellectual Property Schedule Leased Realty Schedule Liabilities Schedule Litigation Schedule Material Adverse Effect Schedule Names and Locations Schedule Officers and Directors Schedule Permits Schedule Permitted Liens Schedule Restrictions Schedule -iv- Taxes Schedule Transaction Bonuses Schedule Warranty Schedule -v- STOCK PURCHASE AGREEMENT THIS STOCK PURCHASE AGREEMENT (this "AGREEMENT") is made and entered into as of April __, 2000, by and among George M. Construction, Inc., a Texas corporation (the "COMPANY"), Thomas E. Murrell ("SELLER") and Linc.net, Inc. a Delaware corporation ("BUYER"). WHEREAS, Seller owns all of the issued and outstanding capital stock of the Company (the "SHARES"); and WHEREAS, on the terms and subject to the conditions set forth in this Agreement, Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, all of the Shares. NOW, THEREFORE, in consideration of the mutual covenants, agreements and understandings contained herein and intending to be legally bound, the parties hereto hereby agree as follows: ARTICLE I CERTAIN DEFINITIONS 1.1 DEFINITIONS. For the purposes of this Agreement, the following terms have the meanings set forth below: "ACCOUNTING FIRM" has the meaning set forth in Section 2.3(c). "AFFILIATE" of any particular Person means any other Person controlling, controlled by or under common control with such Person. For purposes of this definition, "CONTROL" (including the terms "CONTROLLING," "CONTROLLED BY" and "UNDER COMMON CONTROL WITH") means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and such "control" will be presumed if any Person owns 10% or more of the voting capital stock or other ownership interests, directly or indirectly, of any other Person. "AFFILIATED GROUP" means an affiliated group as defined in Section 1504 of the Code (or any analogous combined, consolidated or unitary group defined under state, local or foreign income Tax law) of which the Company is or has been a member. "AGGREGATE 2000 SAN ANTONIO LOSS" has the meaning set forth in Section 2.4(b). "AGREEMENT" has the meaning set forth in the preamble. "APPLICABLE RATE" means the prime rate of interest reported from time to time by the WALL STREET JOURNAL. "BUYER" has the meaning set forth in the preamble. - 1 - "BUYER PARTIES" has the meaning set forth in Section 8.2(a). "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended. "CLOSING" has the meaning set forth in Section 2.2(a). "CLOSING BALANCE SHEET" has the meaning set forth in Section 2.3(c). "CLOSING CASH AMOUNT" has the meaning set forth in Section 2.3(a). "CLOSING DATE" has the meaning set forth in Section 2.2(a). "CLOSING INDEBTEDNESS" has the meaning set forth in Section 2.3(a). "CLOSING TAX LIABILITY" has the meaning set forth in Section 2.3(a). "CODE" means the Internal Revenue Code of 1986, as amended, and any reference to any particular Code section shall be interpreted to include any revision of or successor to that section regardless of how numbered or classified. "COMPANY" has the meaning set forth in the preamble. "COMPANY TRANSACTION" means any (a) reorganization, liquidation, dissolution or recapitalization of the Company, (b) merger or consolidation involving the Company, (c) purchase or sale of any assets or capital stock (or any rights to acquire, or securities convertible into or exchangeable for, any such capital stock) of the Company (other than the purchase and sale of inventory and capital equipment in the ordinary course of business consistent with past custom and practice), or (d) similar transaction or business combination involving the Company or its business or assets. "CONFIDENTIAL INFORMATION" means all information of a confidential or proprietary nature (whether or not specifically labeled or identified as "confidential"), in any form or medium, that relates to the business, products, services or research or development of the Company or its suppliers, distributors, customers, independent contractors or other business relations. Confidential Information includes, but is not limited to, the following: (i) internal business information (including information relating to strategic and staffing plans and practices, business, training, marketing, promotional and sales plans and practices, cost, rate and pricing structures and accounting and business methods); (ii) identities of, individual requirements of, specific contractual arrangements with, and information about, the Company's suppliers, distributors, customers, independent contractors or other business relations and their confidential information; (iii) trade secrets, know-how, compilations of data and analyses, techniques, systems, formulae, recipes, research, records, reports, manuals, documentation, models, data and data bases relating thereto; (iv) inventions, - 2 - innovations, improvements, developments, methods, designs, analyses, drawings, reports and all similar or related information (whether or not patentable); and (v) other Intellectual Property Rights. "DISPUTES" has the meaning set forth in Section 8.8(a). "DISPUTING PERSON" has the meaning set forth in Section 8.8(b). "EARNOUT PAYMENT" has the meaning set forth in Section 2.4(c). "EBITDA" means, for any period, the Company's net income for such period, PLUS, to the extent (but only to the extent) deducted in determining such net income (A) income tax expense, (B) interest expense for indebtedness for borrowed money, (C) depreciation expense and (D) amortization expense, MINUS to the extent (but only to the extent) added in determining such consolidated net income (Y) interest income and (Z) extraordinary or nonrecurring items of income or gain. For purposes of this Agreement, EBITDA shall not take into account revenues, costs or expenses of the Company relating to or arising out of jobs involving road or highway construction. Except as otherwise specifically set forth on the ACCOUNTING SCHEDULE, net income and corresponding EBITDA shall be determined in accordance with GAAP. "EMPLOYMENT AGREEMENTS" has the meaning set forth in Section 3.1(i). "ENCUMBRANCE" means any lien, charge, security interest, claim, pledge, Tax, option, warrant, right, contract, call, commitment, equity, demand, proxy, voting agreement, restriction on transfer (other than restrictions on transfer under the Securities Act and applicable state securities laws) or other encumbrance. "ENVIRONMENTAL AND SAFETY REQUIREMENTS" means all federal, state, local and foreign statutes, regulations, ordinances and other provisions having the force or effect of law, all judicial and administrative orders and determinations, all contractual obligations and all common law, in each case concerning public health and safety, worker health and safety and pollution or protection of the environment (including all those relating to the presence, use, production, generation, handling, transport, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, control or cleanup of any hazardous or otherwise regulated materials, substances or wastes, chemical substances or mixtures, pesticides, pollutants, contaminants, toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated biphenyls, noise, radiation or radon), each as amended and as now or hereafter in effect. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. "ESTIMATED PURCHASE PRICE" has the meaning set forth in Section 2.3(b). "EXCESS COMPENSATION" has the meaning set forth in Section 2.3(a). - 3 - "EXCLUDED WRITE-OFF" has the meaning set forth in Section 2.3(a). "EXECUTIVE PURCHASE AGREEMENT" has the meaning set forth in Section 3.1(j). "EXECUTIVE SECURITIES" means the shares of Buyer's Series A Preferred Stock and Common Stock issued to the Seller pursuant to the Executive Purchase Agreement between Seller and Buyer. "FINAL DETERMINATION" has the meaning set forth in Section 8.8(d). "FINAL PURCHASE PRICE" has the meaning set forth in Section 2.3(d). "GAAP" means United States generally accepted accounting principles, as in effect from time to time. "GOVERNMENTAL APPROVALS" has the meaning set forth in Section 3.1(b). "GUARANTY" means any agreement, undertaking or arrangement by which any Person guarantees, endorses or otherwise becomes or is contingently liable upon the debt, obligation or other liability of any other Person (other than by endorsements of instruments in the ordinary course of collection), or guaranties of the payment of dividends or other distributions upon the shares of any other Person. "HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. "INDEBTEDNESS" means, with respect to any Person at any date, without duplication: (i) all obligations of such Person for borrowed money or in respect of loans or advances, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments or debt securities, (iii) all obligations in respect of letters of credit and bankers' acceptances issued for the account of such Person, (iv) all obligations arising from cash/book overdrafts, (v) all obligations arising from deferred compensation arrangements, (vi) all obligations of such Person secured by a Lien, (vii) all Guaranties of such Person in connection with any of the foregoing, but only to the extent that payment is actually required under the Guaranties or if such Guaranties are not terminated by Seller as of the Closing, (viii) all capital lease obligations, (ix) all deferred rent, (x) all indebtedness for the deferred purchase price of property or services with respect to which a Person is liable, contingently or otherwise, as obligor or otherwise (other than trade payables incurred in the ordinary course of business which are not past due more than 60 days), (xi) all other liabilities classified as non-current liabilities in accordance with GAAP as of the Closing Date, except deferred federal income taxes, and (xii) all accrued interest, prepayment premiums or penalties related to any of the foregoing. "INDEMNITEE" has the meaning set forth in Section 8.2(d). - 4 - "INDEMNITOR" has the meaning set forth in Section 8.2(d). "INSURANCE RECOVERY AMOUNT" has the meaning set forth in Section 8.2(b)(v). "INTELLECTUAL PROPERTY RIGHTS" means all (i) patents, patent applications, patent disclosures and inventions, (ii) Internet domain names, trademarks, service marks, trade dress, trade names, logos and corporate names and registrations and applications for registration thereof together with all of the goodwill associated therewith, (iii) copyrights (registered or unregistered) and copyrightable works and registrations and applications for registration thereof, (iv) mask works and registrations and applications for registration thereof, (v) computer software, data, data bases and documentation thereof, (vi) trade secrets and other confidential information (including ideas, formulas, recipes, compositions, inventions (whether patentable or unpatentable and whether or not reduced to practice), know-how, manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, technical data, copyrightable works, financial and marketing plans and customer and supplier lists and information), (vii) other intellectual property rights and (viii) copies and tangible embodiments thereof (in whatever form or medium). "INVESTMENT" as applied to any Person means (i) any direct or indirect purchase or other acquisition by such Person of any notes, obligations, instruments, stock, securities or ownership interest (including limited liability company interests, partnership interests and joint venture interests) of any other Person and (ii) any capital contribution by such Person to any other Person. "KNOWLEDGE" with respect to any matter means that which any of Thomas E. Murrell, Thomas Hamilton, Thomas Coale and John George knows or should know after reasonable investigation (including inquiry of the Company's legal and accounting advisors' actual knowledge); provided, that "knowledge" regarding the union plans referenced on the EMPLOYEE BENEFITS SCHEDULE means only the actual knowledge of any of Thomas E. Murrell, Thomas Hamilton, Thomas Coale and John George. "LATEST BALANCE SHEET" has the meaning set forth in Section 5.5(b). "LEASE AGREEMENT" has the meaning set forth in Section 3.1(p). "LEASED REAL PROPERTY" and "LEASED REALTY" have the respective meanings set forth in Section 5.11(b). "LIEN" means any mortgage, pledge, hypothecation, lien (statutory or otherwise), preference, priority, security interest, security agreement, easement, covenant, restriction or other encumbrance of any kind or nature whatsoever (including any conditional sale or other title retention -5- agreement and any lease having substantially the same effect as any of the foregoing and any assignment or deposit arrangement in the nature of a security device). "LOSSES" has the meaning set forth in Section 8.2(a). "MATERIAL ADVERSE EFFECT" means a material and adverse effect or development upon the business, operations, assets, liabilities, financial condition, value, business prospects, operating results, cash flow or employee, customer or supplier relations of the Company. "MONTHLY SAN ANTONIO LOSS" has the meaning set forth in Section 2.4(b). "NET CURRENT ASSETS" means as of any date of determination, the excess of the Company's total current assets (excluding cash) as of such date over the Company's total current liabilities as of such date determined in accordance with GAAP except as otherwise specifically provided herein. In determining total current assets and total current liabilities hereunder, (i) all accounting entries shall be taken into account regardless of their amount and all errors and omissions corrected, (ii) all proper adjustments shall be made, and (iii) appropriate reserves for all liabilities and obligations for which reserves are appropriate in accordance with GAAP shall be included. "1999 SAN ANTONIO LOSS" means the San Antonio EBITDA for the twelve months ended December 31, 1999. "NOTICE OF ARBITRATION" has the meaning set forth in Section 8.8(b). "NOTICE OF DISAGREEMENT" has the meaning set forth in Section 2.3(c). "PERMITTED LIENS" means (i) Liens that are set forth on the PERMITTED LIENS SCHEDULE attached hereto, (ii) Liens for Taxes not delinquent or the validity of which are being contested in good faith by appropriate proceedings and as to which adequate reserves have been established on the Company's financial statements in accordance with GAAP, (iii) statutory landlord's, mechanic's, carrier's, workmen's, repairmen's or other similar Liens arising or incurred in the ordinary course of business and (iv) Liens arising from zoning ordinances. "PERSON" means any individual, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited liability company, entity or governmental entity (whether federal, state, county, city or otherwise and including any instrumentality, division, agency or department thereof). "PLAN" has the meaning set forth in Section 5.18(a). "POSITIVE MONTHS" has the meaning set forth in Section 2.4(c). -6- "PRE-CLOSING TAXES" has the meaning set forth in Section 8.11(b). "PRICE ADJUSTMENT COMPONENTS" has the meaning set forth in Section 2.3(a). "PURCHASE PRICE" has the meaning set forth in Section 2.3(a). "REALTY LEASES" has the meaning set forth in Section 5.11(b). "REGISTRATION AGREEMENT" has the meaning set forth in Section 3.1(l). "RESTRICTED TERRITORIES" has the meaning set forth in Section 8.4(a). "RESTRICTIVE COVENANTS" has the meaning set forth in Section 8.4(c). "REVIEWING ACCOUNTING FIRM" has the meaning set forth in Section 2.4(c). "SAN ANTONIO EBITDA" means for any period, the Company's EBITDA for its San Antonio operations; provided that such EBITDA shall exclude any overhead or general or administrative expenses associated with the Company's headquarters in Houston and any of Buyer's overhead or general and administrative expenses. "SAN ANTONIO REPORTS" has the meaning set forth in Section 2.4(a). "SECURITIES ACT" means the Securities Act of 1933, as amended, or any similar federal law then in force. "SELLER" has the meaning set forth in the preamble. "SHARES" has the meaning set forth in the preamble. "STOCKHOLDERS AGREEMENT" has the meaning set forth in Section 3.1(k). "STRADDLE TAX RETURNS" has the meaning set forth in Section 8.11(b). "SUBSIDIARY" means, with respect to any Person, any corporation, partnership, limited liability company, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (irrespective of whether, at the time, stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if a partnership, limited liability -7- company, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. "TAX" means any (i) federal, state, local or foreign income, gross receipts, franchise, estimated, alternative minimum, add-on minimum, sales, use, transfer, registration, value added, excise, natural resources, severance, stamp, occupation, premium, windfall profit, environmental, customs, duties, real property, personal property, capital stock, social security, unemployment, disability, payroll, license, employee or other withholding, or other tax, of any kind whatsoever, including any interest, penalties or additions to tax or additional amounts in respect of the foregoing; (ii) liability of the Company for the payment of any amounts of the type described in clause (i) above arising as a result of being (or ceasing to be) a member of any Affiliated Group (or being included (or required to be included) in any Tax Return relating thereto); and (iii) liability of the Company for the payment of any amounts of the type described in clause (i) above as a result of any express or implied obligation to indemnify or otherwise assume or succeed to the liability of any other Person. TAX REDUCTION AMOUNT" has the meaning set forth in Section 8.2(b)(v). "TAX RETURNS" means returns, declarations, reports, claims for refund, information returns or other documents (including any related or supporting schedules, statements or information) filed or required to be filed in connection with the determination, assessment or collection of any Taxes of any party or the administration of any laws, regulations or administrative requirements relating to any Taxes. "THIRD-PARTY APPROVALS" has the meaning set forth in Section 3.1(a). "UNBILLED WIP" has the meaning set forth in Section 2.3(a). ARTICLE II PURCHASE AND SALE OF THE SHARES 2.1 BASIC TRANSACTION. On the terms and subject to the conditions set forth in this Agreement, at the Closing, Buyer shall purchase from Seller, and Seller shall sell, convey, assign, transfer and deliver to Buyer, all of the Shares, free and clear of all Encumbrances. 2.2 CLOSING TRANSACTIONS. -8- (a) CLOSING. The closing of the transactions contemplated by this Agreement (the "CLOSING") shall take place at the offices of Kirkland & Ellis in Chicago, Illinois, at 9:00 a.m. local time on April ___, 2000, or at such other time or place as is mutually agreeable to the parties, or, if any of the conditions to Closing set forth in Article III have not been satisfied at or waived by the party entitled to the benefit thereof on or prior to such date, on the second business day following satisfaction or waiver of such conditions (the "CLOSING DATE"). (b) DELIVERIES. At the Closing: (i) Buyer shall pay to Seller cash in an amount equal to the Estimated Purchase Price, by wire transfer of immediately available funds to an account designated by Seller; (ii) Seller shall deliver to Buyer the certificate or certificates representing the Shares, duly endorsed in blank or accompanied by duly executed stock powers, with appropriate transfer stamps (if any) affixed thereto; (iii) the Company, Seller and Buyer, as applicable, shall deliver the opinions, certificates and other documents and instruments required to be delivered by or on behalf of such party under Article III below; and (iv) Seller shall deliver to Buyer all corporate books and records and other property of the Company in his possession. 2.3 PURCHASE PRICE. (a) The aggregate purchase price to be paid for the Shares (the "PURCHASE PRICE") shall be an amount equal to (i)(A) 4.5 MULTIPLIED BY (B)(1) the EBITDA of the Company for the twelve months ended December 31, 1999, PLUS (2) the $591,006 of accounts receivable that were written off in the first calendar quarter of 1999 because they represented either duplicate or incorrect billings (the "EXCLUDED WRITE-OFF"), PLUS (3) the amount of compensation paid by the Company to Seller in excess of $200,000 for services performed by Seller for the Company with respect to the twelve months ended December 31, 1999 (the "EXCESS COMPENSATION"), PLUS (4) the amount of the Company's unbilled work in process as of December 31, 1999 (the "UNBILLED WIP") if not otherwise already included in calculating EBITDA, MINUS (ii) an amount equal to the aggregate amount of all Indebtedness (if any) of the Company existing as of the end of business on the day immediately preceding the Closing Date (the "CLOSING INDEBTEDNESS"), MINUS (iii) an amount equal to the aggregate amount of all foreign, federal, state and local Taxes of or payable by the Company with respect to any taxable year or taxable period or portion thereof ended on or prior to the end of business on the day immediately preceding the Closing Date to the extent not already included in Closing Indebtedness (the "CLOSING TAX LIABILITY"), MINUS (iv) the amount (if any) by which the cash of the Company as of the end of business on the day immediately preceding the Closing Date as -9- shown on the Closing Balance Sheet (as defined in Section 2.3(c) below and as prepared in accordance with the provisions thereof) (the "CLOSING CASH AMOUNT") is less than $1,700,000. The parties recognize and agree that the San Antonio Loss was included in calculating the Company's EBITDA for the twelve months ended December 31, 1999, and shall be subject to adjustment following the Closing pursuant to Section 2.3(c) below. The EBITDA of the Company for the twelve months ended December 31, 1999, the Excluded Write-Off, the Excess Compensation, the Unbilled WIP, the Closing Indebtedness, the Closing Tax Liability, the Closing Cash Amount and the 1999 San Antonio Loss shall hereinafter collectively be referred to as the "PRICE ADJUSTMENT COMPONENTS." (b) At the Closing, Buyer shall pay to Seller in the manner described in clause (i) of Section 2.2(b) above an amount equal to the Purchase Price, including the Price Adjustment Components, as estimated in good faith by Buyer and Seller in a writing completed not less than two days prior to the Closing (the "ESTIMATED PURCHASE PRICE"). (c) Within 120 days following the Closing Date, Buyer shall deliver to Seller a balance sheet of the Company as of the end of the business day on the day immediately preceding the Closing Date (in its final and binding form, the "CLOSING BALANCE SHEET"), including Buyer's calculation of each of the Price Adjustment Components (as of the dates contained in the definitions thereof provided under Section 2.3(a) above) and the resulting Purchase Price calculated with reference to such amounts. The Closing Balance Sheet shall include all known adjustments required in a year-end closing of the books and shall be prepared in accordance with GAAP, except as otherwise provided in Section 2.5 below. Seller shall cooperate as reasonably requested in connection with the preparation of the Closing Balance Sheet. During the 20-day period immediately following Seller's receipt of the Closing Balance Sheet, Seller shall be permitted to review the Company's books and records and the Company's working papers related to the preparation of the Closing Balance Sheet and determination of the Purchase Price. The Closing Balance Sheet, the Price Adjustment Components and the resulting Purchase Price shall become final and binding upon the parties 20 days following Seller's receipt thereof, unless Seller shall give written notice of its disagreement (a "NOTICE OF DISAGREEMENT") to Buyer prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature and dollar amount of any disagreement so asserted and shall be delivered only if (and to the extent that) Seller reasonably and in good faith determines that the Closing Balance Sheet, the Price Adjustment Components and the resulting Purchase Price calculated with reference thereto delivered by Buyer has not been determined in accordance with the guidelines and procedures set forth in this Agreement. If a timely Notice of Disagreement is received by Buyer, then the Closing Balance Sheet, the Price Adjustment Components and the resulting Purchase Price (as revised in accordance with clause (x) or (y) below) shall become final and binding upon the parties on the earliest of (x) the date the parties resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (y) the date all matters in dispute are finally resolved in writing by the Accounting Firm (defined below). During the 20 days following delivery of a Notice of Disagreement, the Parties shall seek in good faith to resolve in writing any differences which they have with respect to the -10- matters specified in the Notice of Disagreement. Following delivery of a Notice of Disagreement, Buyer and its agents and representatives shall be permitted to review Seller's and its representatives' working papers relating to the Notice of Disagreement. At the end of the 20-day period referred to above, the parties shall submit to a mutually satisfactory independent "big-five" accounting firm other than Ernst & Young LLP for review and resolution of all matters (but only such matters) that remain in dispute and that were properly included in the Notice of Disagreement. If the parties are unable to mutually agree upon an accounting firm, Buyer and Seller shall select by lot a "big-five" accounting firm other than Ernst & Young LLP. The parties shall instruct the accounting firm ultimately agreed upon or selected by lot under this Section 2.3(c) (the "ACCOUNTING FIRM") to make a final determination of the Closing Balance Sheet, the Price Adjustment Components and the resulting Purchase Price calculated with reference to such amounts to the extent such amounts are in dispute, in accordance with the guidelines and procedures set forth in this Agreement. The Parties will cooperate with the accounting firm during the term of its engagement. The Parties shall instruct the Accounting Firm to not assign a value to any item in dispute greater than the greatest value for such item assigned by Buyer, on the one hand, or Seller, on the other hand, or less than the smallest value for such item assigned by Buyer, on the one hand, or Seller, on the other hand. The Parties shall also instruct the Accounting Firm to make its determination based solely on presentations by Buyer and Seller which are in accordance with the guidelines and procedures set forth in this Agreement (i.e. not on the basis of an independent review). The Closing Balance Sheet and the determination of the Price Adjustment Components and the resulting Purchase Price calculated with reference thereto shall become final and binding on the Parties on the date the Accounting Firm delivers its final resolution in writing to the parties (which final resolution shall be requested by the Parties to be delivered not more than 45 days following submission of such disputed matters). The fees and expenses of the Accounting Firm shall be shared equally by Buyer and Seller. (d) Promptly after the Closing Balance Sheet and the determination of the Price Adjustment Components and the resulting Purchase Price calculated with reference to such amounts become final and binding on the parties under Section 2.3(c) above, the Estimated Purchase Price shall be recalculated by giving effect to the final and binding Price Adjustment Components (as recalculated, the "FINAL PURCHASE PRICE"). If the Estimated Purchase Price is greater than the Final Purchase Price, Seller shall, and if the Final Purchase Price is greater than the Estimated Purchase Price, Buyer shall, within three business days after the Closing Balance Sheet, the Price Adjustment Components and the resulting Purchase Price become final and binding on the parties, make payment by wire transfer to Buyer or Seller, as the case may be, in immediately available funds of the amount of such difference, together with interest thereon at a rate per annum equal to the Applicable Rate, calculated on the basis of the actual number of days elapsed over 360, from the Closing Date to the date of payment. -11- 2.4 EARNOUT PAYMENTS. (a) Following Closing, the Company shall cause to be prepared monthly reports (the "SAN ANTONIO REPORTS") setting forth in reasonable detail the San Antonio EBITDA for the previous calendar month. Each San Antonio Report shall be prepared in accordance with GAAP (except as otherwise specifically provided herein) and shall be completed no later than 45 days following the last day of the month with respect to which such San Antonio Report is prepared; PROVIDED THAT the San Antonio EBITDA for January, February and March 2000 may be included in the San Antonio Report for April 2000. A copy of each San Antonio Report shall be promptly delivered to Seller upon its completion. (b) In the event that a San Antonio Report indicates that the Company realized negative San Antonio EBITDA for the month with respect to which such San Antonio Report was issued (a "MONTHLY SAN ANTONIO LOSS"), such Monthly San Antonio Loss shall be aggregated with all prior 2000 Monthly San Antonio Losses (if any)(such sum hereinafter referred to as the "AGGREGATE 2000 SAN ANTONIO LOSS") for purposes of calculating the amount of the Earnout Payment pursuant to Section 2.4(c) below. (c) In the event that the San Antonio Reports indicate that the Company has realized positive monthly San Antonio EBITDA for at least two consecutive months (the "POSITIVE MONTHS") or in the event that Seller provides written notice (a "TERMINATION NOTICE") to the Company of his desire that the Company's San Antonio Operations be discontinued, Buyer shall deliver by wire transfer of immediately available funds, to an account designated by Seller, at such time as the amounts in clauses (i) and (ii) below are finally determined, an amount equal to 4.5 MULTIPLIED BY the excess, if any, of (i) the absolute value of the amount of the 1999 San Antonio Loss as settled on the final Closing Balance Sheet over (ii) the absolute value of the Aggregate 2000 San Antonio Loss, if any, for the period beginning January 1, 2000 and ending the last day of the second of the Positive Months or the date of delivery of the Termination Notice, whichever is applicable (the "EARNOUT PAYMENT"). (d) Each San Antonio Report shall be final and binding upon Buyer and Seller for all purposes unless, within 20 days after the delivery of such San Antonio Report, Seller requests in writing that a nationally recognized "Big Five" accounting firm (other than Ernst & Young LLP) (the "REVIEWING ACCOUNTING FIRM"), mutually agreed upon by Buyer and Seller, review such San Antonio Report and determine the San Antonio EBITDA identified therein. The adjustment (if any) of San Antonio EBITDA contemplated in the disputed San Antonio Report by the Reviewing Accounting Firm shall be final, conclusive and binding on Buyer and Seller, and all fees, expenses and disbursements of the Reviewing Accounting Firm shall be borne by (i) Buyer (in the case that the absolute value of the San Antonio EBITDA as determined by the Reviewing Accounting Firm is more than 10% greater than the absolute value of the San Antonio EBITDA as set forth on the disputed San Antonio Report) or (ii) Seller (in the case that the absolute value of the San Antonio EBITDA as -12- determined by the Reviewing Accounting Firm is less than or equal to 10% greater than the absolute value of the San Antonio EBITDA as set forth on the disputed San Antonio Report). 2.5 CERTAIN ADJUSTMENTS PROHIBITED. Notwithstanding any contrary terms or provisions of this Agreement, the Closing Balance Sheet shall be prepared, adjustments (if any) to the Price Adjustment Components shall be made, and the Final Purchase Price shall be calculated in accordance with the provisions set forth on the ACCOUNTING SCHEDULE. ARTICLE III CONDITIONS TO CLOSING 3.1 CONDITIONS TO BUYER'S OBLIGATIONS. The obligation of Buyer to consummate the transactions contemplated by this Agreement is subject to the satisfaction of the following conditions on or prior to the Closing Date: (a) The representations and warranties in Article V hereof that are subject to materiality qualifications shall be true and correct in all respects at and as of the Closing and the representations and warranties contained in Article V hereof that are not subject to materiality qualifications shall be true and correct in all material respects at and as of the Closing, and each of Seller and the Company shall have performed in all material respects all of the covenants and agree ments required to be performed by Seller and the Company hereunder prior to the Closing; (b) Seller and the Company shall have received or obtained all third-party consents and approvals that are necessary (i) for the consummation of the transactions contemplated hereby or (ii) to prevent a breach of or default under, or a termination, modification or acceleration of, any instrument, contract, lease, license or other agreement identified with an asterisk on the attached RESTRICTIONS SCHEDULE (collectively, the "THIRD-PARTY APPROVALS"), in each case on terms reasonably satisfactory to Buyer; (c) Buyer and the Company shall have received or obtained all governmental and regulatory consents, approvals, licenses and authorizations that are necessary (i) for the consummation of the transactions contemplated hereby or (ii) for Buyer to own the Shares and to operate the businesses of and control the Company following the Closing (including any required approvals from the State of Texas), in each case on terms and conditions reasonably satisfactory to Buyer (collectively, the "GOVERNMENTAL APPROVALS"); (d) No suit, action or other proceeding shall be pending or threatened before any court or governmental or regulatory official, body or authority or any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (i) prevent the performance of this -13- Agreement or the consummation of any of the transactions contemplated hereby or declare unlawful any of the transactions contemplated hereby, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (iii) affect adversely the right of Buyer to own the Shares or operate the businesses of or control the Company or (iv) affect adversely the right of the Company to own its assets or control its businesses, and no such injunction, judgment, order, decree or ruling shall have been entered or be in effect; (e) Since December 31, 1999, there shall have been no material adverse change, in the aggregate taking into account all changes, or development in the business, financial condition, value, operating results, assets, operations, business prospects, cash flow or customer, supplier or employee relations of the Company taken as a whole (as determined by Buyer in its sole discretion); (f) Buyer shall have completed and shall be satisfied in its reasonable discretion with the results of its and its attorneys', accountants' and other representatives' business, legal, accounting and financial due diligence investigation and evaluation of the Company (which investigation and evaluation shall include a review of the Company's relationships with key customers and suppliers, ongoing relationships with key employees (including Seller) and Intellectual Property Rights, as well as the Company's acquisition opportunities and any other matters as deemed appropriate by Buyer); (g) Buyer shall have obtained all of the financing it needs in order to consummate the transactions contemplated hereby and fund the working capital requirements of the Company following the Closing (in each case on terms and conditions satisfactory to Buyer in its sole discretion); (h) Seller shall have delivered to the Company (i) all property owned by the Company that is currently used by any persons who are not full-time employees of the Company, and (ii) all credit cards issued in the name of the Company and used by any persons who are not full-time employees of the Company; (i) The Company shall have obtained and delivered to Buyer a letter of consent and estoppel certificate and landlord lien waiver from each lessor of the Leased Realty in form and substance reasonably satisfactory to Buyer and Buyer's lender and their special counsel and such other endorsements and affidavits and related items as Buyer or Buyer's lenders may reasonably request; (j) The Company shall have terminated all employment agreements between the Company and its employees, and each of Seller, Thomas Hamilton, Johnny George and Glen Crouch shall have entered into an agreement for employment with the Company in forms substantially the same as those attached hereto as EXHIBIT A-1 (in the case of Seller) and EXHIBIT A-2 (in the case of Messrs. Hamilton, George and Crouch), respectively (the "EMPLOYMENT AGREEMENTS"), and all of such agreements shall be in full force and effect at the Closing; -14- (k) Seller shall have entered into an executive stock purchase agreement with Buyer providing for the purchase of capital stock of Buyer, in form substantially the same as that attached hereto as EXHIBIT B (the "EXECUTIVE PURCHASE AGREEMENT"), and such agreement shall be in full force and effect at the Closing; (l) Seller shall have entered into an Amended and Restated Stockholders Agreement among Buyer and the stockholders of Buyer dated December 21, 1999 and attached hereto as EXHIBIT C (the "STOCKHOLDERS AGREEMENT"), and such agreement shall be in full force and effect at the Closing; (m) Seller shall have entered into an Amended and Restated Registration Agreement among Buyer and the stockholders of Buyer dated December 21, 1999 and attached hereto as EXHIBIT D (the "REGISTRATION AGREEMENT"), and such agreement shall be in full force and effect at the Closing; (n) Buyer shall have received from Baker & Hostetler LLP, counsel for Seller and the Company, an opinion with respect to the matters set forth in EXHIBIT E attached hereto, which shall be addressed to Buyer and Buyer's lenders, dated as of the Closing Date, and in form and substance reasonably satisfactory to Buyer and Buyer's lenders; (o) Buyer shall have received evidence (in form and substance satisfactory to Buyer) that the Company's and Seller's legal counsel, investment bankers, brokers, and other agents and representatives have been paid in full and that the Company has no liability to any of the Company's or Seller's legal counsel, investment bankers, brokers, agents or representatives; (p) The Company shall have obtained releases of all Liens (other than any Permitted Liens) relating to the assets and properties of the Company and the Company shall have obtained and delivered to Buyer and Buyer's lenders payoff letters with respect to all Indebtedness for borrowed money outstanding as of the Closing (in each case on terms and conditions satisfactory to Buyer); (q) Seller or an Affiliate of Seller shall have entered into an agreement in the form substantially the same as that attached hereto as EXHIBIT G (the "LEASE AGREEMENT") for the lease to Buyer of the real property identified therein, providing for a five year initial term and an additional five year renewal term, and the Lease Agreement shall be in full force and effect at the Closing; (r) Seller and the Company shall have obtained and delivered to Buyer a letter of consent and an estoppel certificate and landlord lien waiver agreement from each lessor of Leased Realty in form and substance reasonably satisfactory to Buyer and Buyer's lender and their special counsel and such other related items as Buyer and Buyer's lenders may reasonably request; (s) Seller and the Company shall have delivered to Buyer copies of the Company's interim monthly and year-to-date financial statements pursuant to Section 4.11 below; -15- (t) On the day immediately preceding the Closing Date, the Company shall have distributed the real property identified in EXHIBIT F attached hereto as a dividend or a redemption with respect to Seller's common stock in the Company; (u) At the Closing, Seller shall have delivered to Buyer (i) a certificate, dated the Closing Date, stating that the conditions specified in subsections (a) through (t) above (other than subsections (f), (g) and (n) above) have been satisfied as of the Closing; (ii) a certificate from Seller and the Company indicating their good faith and best estimates of the Price Adjustment Components and the resulting Purchase Price; (iii) copies of all Third-Party Approvals and Governmental Approvals; (iv) certified copies of the resolutions of the Company's board of directors authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby and the consummation of the transactions contemplated hereby and thereby; (v) the resignations, effective as of the Closing, of each director of the Company; (vi) good standing certificates for the Company from its jurisdiction of incorporation and each jurisdiction in which the Company is quali fied to do business as a foreign corporation, in each case dated as of a recent date prior to the Closing Date; and (vii) such other documents or instruments as are required to be delivered by Seller or the Company at the Closing pursuant to the terms hereof or that Buyer reasonably requests prior to the Closing Date to effect the transactions contemplated hereby. All proceedings to be taken by Seller and the Company in connection with the consummation of the transactions contemplated hereby and all certificates, opinions, instruments and other documents required to effect the transactions contemplated hereby reasonably requested by Buyer shall be reasonably satisfactory in form and substance to Buyer and its special counsel. Any condition specified in this Section 3.1 may be waived by Buyer if such waiver is set forth in a writing duly executed by Buyer. 3.2 CONDITIONS TO SELLER'S OBLIGATIONS. The obligation of Seller to consummate the transactions contemplated by this Agreement is subject to the satisfaction of the following conditions at or prior to the Closing: (a) The representations and warranties made in Article VI hereof shall be true and correct in all material respects at and as of the Closing Date, and Buyer shall have performed in all material respects all the covenants and agreements required to be performed by Buyer hereunder prior to the Closing; (b) No suit, action or other proceeding shall be pending before any court or governmental or regulatory official, body or authority wherein an unfavorable injunction, judgment, order, decree or ruling would (i) prevent consummation of the transactions contemplated by this Agreement or (ii) cause the transactions contemplated by this Agreement to be rescinded following consummation, and no such injunction, judgment, order, decree or ruling shall be in effect; -16- (c) Buyer shall have executed and delivered the Stockholders Agreement, and the Stockholders Agreement shall be in full force and effect as of the Closing; (d) Buyer shall have executed and delivered the Registration Agreement, and the Registration Agreement shall be in full force and effect as of the Closing; (e) Buyer shall have executed and delivered each of the Executive Purchase Agreements, and each of the Executive Purchase Agreements shall be in full force and effect as of the Closing; and (f) At the Closing, Buyer shall have delivered to Seller (i) a certificate, dated the date of the Closing, stating that the conditions specified in subsection (b) above have been satisfied, (ii) certified copies of the resolutions of Buyer's board of directors authorizing the execution, delivery and performance of this Agreement and the other agreements contemplated hereby and the consummation of the transactions contemplated hereby and thereby and (iii) such other documents or instruments as are required to be delivered by Buyer at the Closing pursuant to the terms hereof or that Seller reasonably requests prior to the Closing Date to effect the transactions contemplated hereby. All proceedings to be taken by Buyer in connection with the consummation of the trans actions contemplated hereby and all documents required to be delivered by Buyer to effect the trans actions contemplated hereby reasonably requested by Seller shall be reasonably satisfactory in form and substance to Seller. Any condition specified in this Section 3.2 may be waived if such waiver is set forth in a writing duly executed by Seller. ARTICLE IV [INTENTIONALLY OMITTED.] ARTICLE V REPRESENTATIONS AND WARRANTIES CONCERNING THE COMPANY AND SELLER As a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated hereby, each of Seller and the Company hereby jointly and severally represents and warrants to Buyer that: -17- 5.1 ORGANIZATION, CORPORATE POWER AND LICENSES. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas and is qualified to do business in every jurisdiction in which its ownership of property or conduct of business requires it to qualify. The Company possesses all requisite corporate power and authority and all licenses, permits and authorizations necessary to own and operate its properties, to carry on its businesses as now conducted and presently proposed to be conducted and to carry out the transactions contemplated by this Agreement. The copies of the Company's articles of incorporation and by-laws which have been furnished to Buyer's special counsel reflect all amendments made thereto at any time prior to the date of this Agreement and are correct and complete. The minute books (containing the records of meetings of the Company's stockholders and board of directors), the stock certificate books and the stock record books of the Company are correct and complete in all material respects. The Company is not in default under or in violation of any provision of its articles of incorporation or by-laws. The attached OFFICERS AND DIRECTORS SCHEDULE sets forth a list all of the officers and directors of the Company. 5.2 CAPITAL STOCK AND RELATED MATTERS; TITLE TO SHARES. The entire authorized capital stock of the Company consists of 500,000 shares of common stock, $0.10 par value per share, of which 10,000 shares are issued and outstanding. Seller is the record owner of, and has good and marketable title to, all of the outstanding shares of common stock of the Company, free and clear of all Encumbrances. At the Closing, Seller shall sell to Buyer good and marketable title to the Shares, free and clear of all Encumbrances. The Company does not have outstanding any stock or securities convertible or exchangeable for any shares of its capital stock or containing any profit participation features, nor any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock or any stock appreciation rights or phantom stock plan. The Company is not subject to any option or obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options or other rights to acquire its capital stock. The Company has not violated any federal or state securities laws in connection with the offer, sale or issuance of its capital stock. All of the outstanding shares of the Company's capital stock have been validly issued and are fully paid and nonassessable. There are no agreements between the Company's stockholders with respect to the voting or transfer of the Company's capital stock or with respect to any other aspect of the Company's affairs. 5.3 AUTHORIZATION; NONCONTRAVENTION. The execution, delivery and performance of this Agreement and all of the other agreements and instruments contemplated hereby to which the Company or the Seller is a party have been duly authorized by the Company and the Seller, as applicable, and no other corporate act or other proceeding on the part of the Company, its board of directors or the Seller is necessary to authorize the execution, delivery or performance of this Agreement or the other agreements contemplated hereby and the consummation of the transactions contemplated hereby or thereby. This Agreement has been duly executed and delivered by each of Company and Seller and constitutes a valid and binding obligation of each of the Company and Seller, enforceable in accordance with its terms, and each of the other agreements and instruments -18- contemplated hereby to which the Company or Seller is a party, when executed and delivered by the Company or Seller, as applicable, in accordance with the terms hereof and thereof, shall each constitute a valid and binding obligation of such Person, enforceable in accordance with its respective terms. Except as set forth on the attached RESTRICTIONS SCHEDULE and except for any filing, notice or authorization required pursuant to the HSR Act, the execution and delivery by the Company and Seller of this Agreement and all of the other agreements and instruments contemplated hereby to which the Company or Seller is a party and the fulfillment of and compliance with the respective terms hereof and thereof by the Company and Seller do not and shall not (a) conflict with or result in a breach of the terms, conditions or provisions of, (b) constitute a default under (whether with or without the passage of time, the giving of notice or both), (c) result in the creation of any Lien upon the Company's capital stock or assets pursuant to, (d) give any third party the right to modify, terminate or accelerate any obligation under, (e) result in a violation of, or (f) require any authorization, consent, approval, exemption or other action of or by or notice or declaration to, or filing with, any third party or any court or administrative or governmental body or agency pursuant to, Seller's or the Company's charter documents, bylaws or other constituent documents (including trust instruments), or any law, statute, rule or regulation to which the Company or Seller is subject, or any agreement, instrument, license, permit, order, judgment or decree to which the Company or Seller is subject. Neither the Company nor Seller is a party to or bound by any written or oral agreement or understanding with respect to a Company Transaction other than this Agreement, and each such Person has terminated all discussions with third parties (other than with Buyer and its Affiliates) regarding Company Transactions. 5.4 SUBSIDIARIES. The Company has no and never has had any Subsidiaries or Investments. 5.5 FINANCIAL STATEMENTS. Attached hereto as the FINANCIAL STATEMENTS SCHEDULE are the following financial statements: (a) the balance sheet of the Company as of March 31, 1999 (reviewed), March 31, 1998 (compiled) and March 31, 1997 (audited), and the related statements of income and cash flows (or the equivalent) for the fiscal years ended March 31, 1999 and March 31, 1998; and (b) the unaudited consolidated balance sheet of the Company as of December 31, 1999 (the "LATEST BALANCE SHEET"), and the related statements of income and cash flows (or the equivalent) for the nine-month period then ended. Each of the foregoing financial statements (including in all cases the notes thereto, if any) is accurate and complete, is consistent with the books and records of the Company (which, in turn, are accurate and complete), fairly presents the financial condition and operating results of the Company and has been prepared in accordance with GAAP consistently applied throughout the periods covered thereby except as expressly noted on the FINANCIAL STATEMENTS SCHEDULE, subject in the case of the unaudited financial statements to the absence of footnote disclosures (none of which footnote disclosures would, -19- alone or in the aggregate, be materially adverse to the business, operations, assets, liabilities, financial condition, operating results, value or cash flow of the Company). 5.6 ACCOUNTS RECEIVABLE. Except as set forth on the attached ACCOUNTS RECEIVABLE SCHEDULE, all accounts and notes receivable reflected on the Closing Balance Sheet (net of allowances for doubtful accounts as reflected thereon and as determined in accordance with GAAP) are or shall be valid receivables arising in the ordinary course of business and, to the Company's knowledge, are or shall be current and collectible at the aggregate recorded amount therefor as shown on the Latest Balance Sheet and on the Closing Balance Sheet, as the case may be (net of allowances for doubtful accounts as reflected thereon and as determined in accordance with GAAP). No Person has any Lien on such receivables or any part thereof, and the receivables shown on the Latest Balance Sheet and Closing Balance Sheet are net of any agreement for deduction, free goods, discount or other deferred price or quantity adjustment. 5.7 INVENTORY. All of the Company's inventory to the extent shown on the Closing Balance Sheet consists of a quantity and quality usable and salable in the ordinary course of business consistent with past practice, is not obsolete, defective, damaged or slow-moving, is merchantable and fit for its intended use, and is being actively marketed in normal commercial channels and in normal commercial quantities, subject only to the reserves for inventory write-down set forth on the face of the Latest Balance Sheet and the Closing Balance Sheet (rather than the notes thereto) and as determined in accordance with GAAP. 5.8 ABSENCE OF UNDISCLOSED LIABILITIES. Except as set forth on the attached LIABILITIES SCHEDULE, the Company does not have knowledge of any obligation or liability (whether accrued, absolute, contingent, unliquidated or otherwise, whether due or to become due and regardless of when or by whom asserted), arising out of any transaction entered at or prior to the date hereof, or any action or inaction at or prior to the date hereof, or any state of facts existing at or prior to the date hereof, other than (a) liabilities reflected on the Latest Balance Sheet, (b) liabilities and obligations which have arisen after the date of the Latest Balance Sheet in the ordinary course of business (none of which is a liability for breach of contract, breach of warranty (of which the Company has knowledge and which has not been cured as of the date hereof), tort, infringement, violation of law, claim or lawsuit), (c) obligations under contracts and commitments described on the attached CONTRACTS SCHEDULE or under contracts and commitments entered into in the ordinary course of business consistent with past practice which are not required to be disclosed on such Schedule pursuant to Section 5.12 below (but not liabilities for any breach of any such contract or commitment occurring on or prior to the Closing Date), and (d) other liabilities and obligations expressly disclosed in the other Schedules referred to in this Article V. 5.9 NO MATERIAL ADVERSE EFFECT. Except as provided on the attached MATERIAL ADVERSE EFFECT SCHEDULE, since March 31, 1999 there has occurred no fact, event or circumstance which has had or would reasonably be expected to have a Material Adverse Effect. Since March 31, 1999, each -20- of the Company has conducted its business only in the ordinary course of business consistent with past practice. 5.10 ABSENCE OF CERTAIN DEVELOPMENTS. Except as set forth on the attached DEVELOPMENTS SCHEDULE, since March 31, 1999, the Company has not: (a) issued any notes, bonds or other debt securities or any capital stock or other equity securities or any securities or rights convertible, exchangeable or exercisable into any capital stock or other equity securities; (b) borrowed any amount or incurred or become subject to any material liabilities, except current liabilities incurred in the ordinary course of business consistent with past practice or liabilities for equipment purchases paid prior to Closing; (c) discharged or satisfied any material Lien or paid any material obligation or liability, other than current liabilities paid in the ordinary course of business or equipment liens paid off prior to Closing; (d) declared, set aside or made any payment or distribution of cash (including so-called "tax distributions") or other property, other than the real property contemplated in the Lease Agreement with respect to the Company's stockholder's capital stock or otherwise, or purchased, redeemed or otherwise acquired any shares of its capital stock or other equity securities (including any warrants, options or other rights to acquire its capital stock or other equity); (e) mortgaged or pledged any of its properties or assets or subjected them to any Lien, except for Permitted Liens or unless removed prior to Closing; (f) sold, assigned, transferred, leased, licensed or otherwise encumbered any of its tangible assets, except in the ordinary course of business consistent with past practice, or canceled any material debts or claims; (g) sold, assigned, transferred, leased, licensed or otherwise encumbered any Intellectual Property Rights, disclosed any proprietary confidential information to any Person (other than to Buyer and its Affiliates and other than in the ordinary course of business consistent with past practice in circumstances in which it has imposed reasonable confidentiality restrictions), or abandoned or permitted to lapse any Intellectual Property Rights; (h) made or granted any bonus or any wage or salary increase to any management employee except as described on the EMPLOYEE SCHEDULE, or made or granted any increase in any employee benefit plan or arrangement, or amended or terminated any existing employee benefit plan or arrangement or adopted any new employee benefit plan or arrangement except for the health -21- insurance plan described on the EMPLOYEE BENEFIT SCHEDULE or entered into, amended or terminated any collective bargaining agreement or other employment agreement except for the collective bargaining agreement described on the CONTRACTS SCHEDULE; (i) implemented any plant closing or other layoff of employees that could implicate the Worker Adjustment and Retraining Notification Act, as amended, or any similar foreign, state or local law, regulation or ordinance; (j) suffered any extraordinary losses or waived any rights of material value (whether or not in the ordinary course of business or consistent with past practice) in excess of $10,000 in the aggregate; (k) made capital expenditures or commitments therefor that amount in the aggregate to more than $10,000, except for equipment purchases and leasehold improvements as described in the ASSETS SCHEDULE; (l) delayed or postponed the payment of any accounts payable or commissions or any other liability or obligation or agreed or negotiated with any party to extend the payment date of any accounts payable or commissions or any other liability or obligation or accelerated the collection of (or discounted) any accounts or notes receivable; (m) made any loans or advances to, guaranties for the benefit of, or any Investments in, any Person (other than advances to the Company's employees or subcontractors in the ordinary course of business consistent with past practice); (n) made any charitable contributions or pledges exceeding in the aggregate $5,000 or made any political contributions; (o) suffered any damage, destruction or casualty loss exceeding in the aggregate $10,000, whether or not covered by insurance; (p) made any change in any method of accounting or accounting policies or made any write-down in the value of its inventory that is material or that is other than in the usual, regular and ordinary course of business consistent with past practice or reversed any accruals (whether or not in the ordinary course of business or consistent with past practice); (q) made any Investment in or taken any steps to incorporate any Subsidiary; (r) amended its articles of incorporation, by-laws or other organizational documents; -22- (s) entered into any agreement or arrangement prohibiting or restricting it from freely engaging in any business or otherwise restricting the conduct of its business anywhere in the world; (t) taken any action or failed to take any action that has, had or would reasonably be expected to have the effect of accelerating to pre-Closing periods sales to the trade or other customers that would otherwise be expected to occur after the Closing; (u) entered into, amended or terminated any contract other than in the ordinary course of business consistent with past practice, entered into any other material transaction contemplating consideration in an amount or having a value in excess of $250,000 (other than transactions with customers and suppliers), whether or not in the ordinary course of business or consistent with past practice, or materially changed any business practice; or (v) agreed, whether orally or in writing, to do any of the foregoing. 5.11 ASSETS. (a) Except as set forth on the attached ASSETS SCHEDULE, the Company has good and marketable title to, or a valid leasehold interest in, all properties and assets used by it, located on its premises or shown on the Latest Balance Sheet or acquired after the date thereof, free and clear of all Liens (other than properties and assets disposed of for fair consideration in the ordinary course of business since the date of the Latest Balance Sheet and except for Liens disclosed on the Latest Balance Sheet (including any notes thereto) and Liens for current property taxes not yet due and payable and Permitted Liens). The Company owns, has a valid leasehold interest in or has the valid and enforceable right to use all assets, tangible or intangible, necessary for the conduct of its business as presently conducted and as presently proposed to be conducted. Except as set forth on the attached ASSETS SCHEDULE, all of the Company's buildings (including all components of such buildings, structures and other improvements), equipment, machinery, fixtures, improvements and other tangible assets (whether owned or leased) currently used in the Company's business are in good condition and repair (ordinary wear and tear excepted) and are fit for use in the ordinary course of the Company's business as presently conducted and as presently proposed to be conducted. All such assets have been installed and maintained in all material respects in accordance with all applicable laws, regulations and ordinances. The attached ASSETS SCHEDULE sets forth and describes in reasonable detail the actual out-of-pocket capital expenditures (as determined in accordance with GAAP) made by the Company during the twelve months ended March 31, 1999 and the eleven months ended February 29, 2000. (b) The Company does not own any real property or possess any right to acquire any real property. The LEASED REAL PROPERTY SCHEDULE attached hereto contains a complete list of all real property leased or subleased by the Company (individually "LEASED REAL PROPERTY" and collectively, the "LEASED REALTY"). The Company has a valid leasehold interest in each Leased Real Property, subject only to Permitted Liens. The Company has previously delivered to Buyer's special -23- counsel complete and accurate copies of each of the leases for the Leased Realty (the "REALTY LEASES"). With respect to each Realty Lease: (i) the Realty Lease is legal, valid, binding, enforceable and in full force and effect; (ii) neither the Company nor any other party to the Realty Lease is in breach or default, and no event has occurred which, with notice or lapse of time or both, would constitute such a breach or default or permit termination, modification or acceleration under the Realty Lease; (iii) no party to the Realty Lease has repudiated any provision thereof; (iv) there are no disputes, oral agreements or forbearance programs in effect as to the Realty Lease; (v) the Realty Lease has not been modified in any respect, except to the extent that such modifications are disclosed by the documents delivered to Buyer; and (vi) the Company has not assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in the Realty Lease. (c) The lessor of the Leased Real Property demised by the Lease Agreement owns such property in fee simple absolute, free and clear of all Liens except Permitted Liens, and does not lease or sublease such property to any Person other than the Company and does not allow any Person other than the Company to use such property. 5.12 CONTRACTS AND COMMITMENTS. (a) Except as expressly contemplated by this Agreement or as set forth on the attached CONTRACTS SCHEDULE, the Company is not a party to or bound by any written or oral: (i) pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements; (ii) contract for the employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis or relating to loans to officers, directors or Affiliates; (iii) contract under which the Company has advanced or loaned any other Person amounts in the aggregate exceeding $10,000; (iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any material asset or material group of assets of the Company; (v) Guaranty; -24- (vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $10,000; (vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company; (viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $10,000, other than purchase and sales orders incurred in the ordinary course of business; (ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights); (x) warranty agreement with respect to its services rendered or its products sold or leased; (xi) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights); (xii) sales, distribution, supply or franchise agreement; (xiii) agreement with a term of more than six months which is not terminable by the Company upon less than 30 days' notice without penalty and involves a consideration in excess of $10,000 annually; (xiv) contract regarding voting, transfer or other arrangements related to the Company's capital stock or warrants, options or other rights to acquire any of the Company's capital stock; (xv) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or (xvi) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $25,000 annually. (b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on the CONTRACTS SCHEDULE are valid, binding and enforceable in accordance with their respective terms and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby. Except as set forth on the CONTRACTS SCHEDULE, (i) the Company has performed all obligations required to be performed by it prior to Closing and is not in default under or in breach of nor in receipt of any claim of default or breach under -25- any contract, lease, agreement or instrument to which the Company is subject; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any contract, lease, agreement or instrument to which the Company is subject; (iii) the Company does not have any present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other material modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) the Company has no knowledge of any breach or anticipated breach by the other parties to any contract, lease, agreement, instrument or commitment to which they are parties. Except as disclosed on the MATERIAL ADVERSE EFFECT SCHEDULE, the Company is not a party to any contract, agreement or commitment the performance of which could reasonably be expected to have a Material Adverse Effect. (c) Buyer's counsel has been supplied with a true and correct copy of each of the written instruments, plans, contracts and agreements and an accurate description of each of the oral arrangements, contracts and agreements which are referred to on the attached CONTRACTS SCHEDULE, together with all amendments, waivers or other changes thereto. 5.13 INTELLECTUAL PROPERTY RIGHTS. (a) The attached INTELLECTUAL PROPERTY SCHEDULE contains a complete and accurate list of all (i) patented or registered Intellectual Property Rights owned or, to the Company's or the Seller's knowledge, used by the Company, (ii) pending patent applications and applications for other registrations of Intellectual Property Rights filed by or on behalf of the Company, and (iii) material unregistered Intellectual Property Rights owned or used by the Company. The attached INTELLECTUAL PROPERTY SCHEDULE also contains a complete and accurate list of all licenses and other rights granted by the Company to any third party with respect to any Intellectual Property Rights and all licenses and other rights granted by any third party to the Company with respect to any Intellectual Property Rights, in each case identifying the subject Intellectual Property Rights. The Company owns and possesses all right, title and interest to, or has the right to use pursuant to a valid and enforceable license, all Intellectual Property Rights necessary for the operation of the businesses of the Company as presently conducted and as presently proposed to be conducted, free and clear of all Liens. Without limiting the generality of the foregoing, the Company owns and possesses all right, title and interest in and to all Intellectual Property Rights created or developed by the Company's employees and independent contractors or under the direction or supervision of the Company's employees or independent contractors relating to the businesses of the Company or to the actual or demonstratively anticipated research or development conducted by the Company. Except as set forth on the attached INTELLECTUAL PROPERTY SCHEDULE, the loss or expiration of any Intellectual Property Right or related group of Intellectual Property Rights owned or used by the Company has not had and would not reasonably be expected to have a Material Adverse Effect, and no loss or expiration of any Intellectual Property Right is threatened, pending or, to the Company's or the Seller's knowledge, reasonably foreseeable. -26- (b) Except as set forth on the attached INTELLECTUAL PROPERTY SCHEDULE, (i) there have been no claims made against the Company asserting the invalidity, misuse or unenforceability of any of the Intellectual Property Rights owned or used by the Company and, to the Company's and the Seller's knowledge, there is no basis for any such claim, (ii) neither the Company nor the Seller has received any notices of, and has no knowledge of any facts which indicate a likelihood of, any infringement or misappropriation by, or conflict with, any third party with respect to any Intellectual Property Rights (including any demand or request that the Company license any rights from a third party), (iii) the conduct of the Company's businesses has not infringed, misappropriated or conflicted with and does not infringe, misappropriate or conflict with any Intellectual Property Rights of other Persons, and (iv) to the Company's and the Seller's knowledge, the Intellectual Property Rights owned by or licensed to the Company have not been infringed, misappropriated or conflicted by other Persons. The transactions contemplated by this Agreement will not have a Material Adverse Effect on the Company's right, title or interest in and to the Intellectual Property Rights listed on the INTELLECTUAL PROPERTY SCHEDULE and all of such Intellectual Property Rights shall be owned or available for use by the Company on identical terms and conditions immediately after the Closing. (c) Except as disclosed on the INTELLECTUAL PROPERTY SCHEDULE, none of the material computer software, computer firmware, computer hardware (whether general or special purpose) or other similar or related computer systems or software that are used or relied on by Company in the conduct of its business will malfunction, will cease to function, will generate incorrect data or will produce incorrect results when processing, providing or receiving (i) date-related data from, into and between the twentieth and twenty-first centuries or (ii) date-related data in connection with any valid date in the twentieth and twenty-first centuries. 5.14 LITIGATION. Except as set forth on the attached LITIGATION SCHEDULE, there are no unresolved (or resolved, in which the amount paid in settlement exceeded $20,000) (and, during the three years preceding the date hereof, there have not been any) actions, suits, proceedings (including any arbitration proceedings), orders, investigations or claims pending or, to the Company's or the Seller's knowledge, threatened against or affecting the Company (or to the Company's or the Seller's knowledge, pending or threatened against or affecting any of the officers, directors or employees of the Company with respect to their business or proposed business activities), or pending or threatened by the Company against any Person, at law or in equity, or before or by any governmental department, commission, board, bureau, agency or instrumentality (including any actions, suits, proceedings or investigations with respect to the transactions contemplated by this Agreement); the Company is not subject to any arbitration proceedings under collective bargaining agreements or otherwise or any governmental investigations or inquiries; and, to the Company's or the Seller's knowledge, there is no basis for any of the foregoing. The foregoing includes, without limitation, actions pending or threatened involving the prior employment of any of the Company's employees, their use in connection with the Company's businesses of any information or techniques allegedly proprietary to any of their former employers or their obligations under any agreements with prior employers. The Company is fully insured with respect to each of the matters set forth on the attached LITIGATION SCHEDULE, except to the extent noted thereon. The Company is not subject to any judgment, order or decree of any court -27- or other governmental agency, and the Company has not received any opinion or memorandum or advice from legal counsel to the effect that it is exposed, from a legal standpoint, to any material liabilities. There are no actions, suits, proceedings (including any arbitration proceedings), orders, investigations or claims pending or, to the Company's or the Seller's knowledge, threatened against or affecting the Company or Seller in which it is sought to restrain or prohibit or to obtain damages or other relief in connection with the transactions contemplated hereby. 5.15 COMPLIANCE WITH LAWS. Except as set forth on the attached COMPLIANCE SCHEDULE: (a) The Company is in compliance with all applicable laws, ordinances, codes, rules, requirements and regulations of foreign, federal, state and local governments and all agencies thereof relating to the operation of its business and the maintenance and operation of its properties and assets. No notices have been received by and no claims have been filed against the Company alleging a violation of any such laws, ordinances, codes, rules, requirements or regulations. The Company has not made any bribes, kickback payments or other similar payments of cash or other consideration, including payments to customers or clients or employees of customers or clients for purposes of doing business with such Persons. (b) The Company holds and is in compliance with all permits, licenses, bonds, approvals, certificates, registrations, accreditations and other authorizations of all foreign, federal, state and local governmental agencies required for the conduct of its business and the ownership of its properties (including as the same relate to Environmental and Safety Requirements), and the attached PERMITS SCHEDULE sets forth a list of all of such material permits, licenses, bonds, approvals, certificates, registrations, accreditations and other authorizations. No notices have been received by the Company alleging the failure to hold any of the foregoing. All of such permits, licenses, bonds, approvals, accreditations, certificates, registrations and authorizations will be available for use by the Company immediately after the Closing. 5.16 ENVIRONMENTAL AND SAFETY MATTERS. Except as set forth on the attached ENVIRONMENTAL SCHEDULE: (a) The Company has complied in all material respects with and is in compliance in all material respects with all Environmental and Safety Requirements. The Company has not received any oral or written notice, report or information regarding any actual or alleged violation of Environmental and Safety Requirements or any liabilities or potential liabilities relating to it or its facilities arising under Environmental and Safety Requirements. (b) Neither this Agreement nor the consummation of the transactions contemplated hereby will result in any obligations for site investigation or cleanup, or notification to or consent of any government agencies or third parties under any Environmental and Safety Requirements (including any so called "transaction-triggered" or "responsible property transfer" laws and regulations). -28- (c) None of the following exists at any property or facility currently or previously owned, occupied or operated by the Company: (i) underground storage tanks; (ii) asbestos-containing material in any form or condition; (iii) materials or equipment containing polychlorinated biphenyls; or (iv) landfills, surface impoundments or other disposal areas. (i) The Company has not treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled or released any substance (including any hazardous substance) or owned, occupied or operated any facility or property (and no such property or facility is contaminated by any such substance) in a manner that has given or could give rise to any liabilities (including any liability for response costs, corrective action costs, personal injury, natural resource damages, property damage or attorneys fees or any investigative, corrective or remedial obligations) pursuant to CERCLA or any other Environmental and Safety Requirements. (ii) The Company has not, either expressly or by operation of law, assumed or undertaken any liability or corrective, investigatory or remedial obligation of any other Person relating to any Environmental and Safety Requirements. (iii) The Company has provided to Buyer all environmental audits, reports and other material environmental documents relating to the Company and any of its facilities, which audits, reports and documents are in its possession, custody or control. 5.17 EMPLOYEES. The attached EMPLOYEES SCHEDULE correctly sets forth the name and current annual salary of each of the Company's union employees receiving more than $100,000 in annual compensation and non-union employees receiving more than $75,000 in annual compensation, and whether any employees are absent from active employment, including, but not limited to, leave of absence or disability. Except as set forth on the attached EMPLOYEES SCHEDULE, (a) the Company is not aware that any executive or key employee of the Company or any group of employees of the Company has any plans to terminate employment with the Company; (b) the Company has complied with all laws relating to the employment of labor (including provisions thereof relating to wages, hours, equal opportunity, collective bargaining and the payment of social security and other Taxes), and the Company is not aware that it has any labor relations problems (including any union organization or decertification activities, threatened or actual strikes or work stoppages or material grievances); and (c) neither the Company nor, to the best of the Company's or the Seller's knowledge, any of their respective employees are subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreements relating to, affecting or in conflict with the present or proposed business activities of the Company, except for agreements between the Company and their present and former employees. The EMPLOYEES SCHEDULE sets forth the bonuses paid and reasonably expected to be paid to the Company's officers and employees during 1999 and for the fiscal year ended March 31, 1999. -29- 5.18 EMPLOYEE BENEFIT PLANS. (a) The attached EMPLOYEE BENEFITS SCHEDULE sets forth an accurate and complete list of each "employee benefit plan" (as such term is defined in Section 3(3) of ERISA) and each other employee benefit plan, program or arrangement providing benefits to current or former employees (including any bonus plan, plan for deferred compensation, retirement, severance, sick leave, employee health or other welfare benefit plan or other arrangement), at any time maintained, sponsored, or contributed to by the Company, or with respect to which the Company has any liability or potential liability. Each such item listed on the attached EMPLOYEE BENEFITS SCHEDULE is referred to herein as a "PLAN." (b) Except for union plans as referenced on the attached EMPLOYEE BENEFITS SCHEDULE, the Company does not have any obligation to contribute to (or any other liability, including current or potential withdrawal liability, with respect to) any "multiemployer plan" (as defined in Section 3(37) of ERISA) or any union-sponsored benefit plan or any employee benefit plan which is a "defined benefit plan" (as defined in Section 3(35) of ERISA), whether or not terminated. (c) Except for union plans as referenced on the attached EMPLOYEE BENEFITS SCHEDULE, the Company does not have any obligation under any Plan or otherwise to provide medical, health, life insurance or other welfare-type benefits to current or future retired or terminated employees (except for limited continued medical benefit coverage required to be provided under Section 4980B of the Code or as required under applicable state law). (d) Except for union plans as referenced on the EMPLOYEE BENEFITS SCHEDULE under the heading "Profit Sharing Plans," the Company does not maintain, contribute to or have any liability or potential liability under (or with respect to) any employee benefit plan which is a "defined contribution plan" (as defined in Section 3(34) of ERISA), whether or not terminated. (e) With respect to the Plans, to the Company's knowledge all required or recommended (in accordance with historical practices) payments, premiums, contributions, reimbursements or accruals for all periods ending prior to or as of the Closing shall have been made or properly accrued on the Latest Balance Sheet. Except for union plans as referenced on the EMPLOYEE BENEFITS SCHEDULE, none of the Plans has any unfunded liabilities which are not reflected on the Latest Balance Sheet. (f) To the Company's knowledge, the Plans and all related trusts, insurance contracts and funds have been maintained, funded and administered in compliance in all material respects with their terms and with the applicable provisions of ERISA, the Code and other applicable laws. To the Company's knowledge, neither the Company nor any trustee or administrator of any Plan has engaged in any transaction with respect to the Plans which would subject the Company or any trustee or administrator of the Plans, or any party dealing with any such Plan, nor do the transactions contemplated by this Agreement constitute transactions which would subject any such party, to either -30- a civil penalty assessed pursuant to Section 502(i) of ERISA or the tax or penalty on prohibited transactions imposed by Section 4975 of the Code. To the Company's knowledge, no actions, suits or claims with respect to the assets of the Plans (other than routine claims for benefits) are pending or, to the Company's or the Seller's knowledge, threatened which could result in or subject the Company to any liability and there are no circumstances which would give rise to or be expected to give rise to any such actions, suits or claims. To the Company's knowledge, no liability to the Pension Benefit Guaranty Corporation or otherwise under Title IV of ERISA has been or could be incurred by the Company. (g) To the Company's knowledge, each of the Plans which is intended to be qualified under Section 401(a) of the Code has received a favorable determination from the Internal Revenue Service that such plan is qualified under Section 401(a) of the Code, and there are no circumstances which would adversely affect the qualified status of any such Plan. 5.19 INSURANCE. The attached INSURANCE SCHEDULE contains a description of each insurance policy maintained by the Company with respect to its properties, assets and businesses, and each such policy is in full force and effect as of the Closing. The Company is not in default with respect to its obligations under any insurance policy maintained by it, and the Company has not been denied insurance coverage. Except as set forth on the INSURANCE SCHEDULE, the Company does not have any self-insurance or co-insurance programs, and the reserves set forth on the Latest Balance Sheet are adequate (and the reserves to be set forth on the Company's books and records as of the Closing will be adequate) to cover all anticipated liabilities with respect to any such self-insurance or co-insurance programs. 5.20 TAX MATTERS. (a) The Company has timely filed all Tax Returns required to be filed by it, each such Tax Return has been prepared in compliance with all applicable laws and regulations, and all such Tax Returns are true and accurate. All Taxes due and payable by the Company have been paid and the Company has withheld and paid over to the appropriate taxing authority all Taxes which it is required to withhold from amounts paid or owing to any employee, stockholder, creditor or other third party. All Taxes accrued but not yet due are accrued on the Latest Balance Sheet and will be accrued on the Closing Balance Sheet. The charges, accruals and reserves for Taxes with respect to the Company for any Tax period (or portion thereof) ending on or before the Closing Date (excluding any provision for deferred income taxes) to be reflected on the Closing Balance Sheet will be adequate to cover such Taxes. (b) Except as set forth on the attached TAXES SCHEDULE: (i) the Company has not requested or been granted an extension of the time for filing any Tax Return which has not yet been filed; -31- (ii) the Company has not consented to extend to a date later than the date hereof the time in which any Tax may be assessed or collected by any taxing authority; (iii) no deficiency or proposed adjustment which has not been settled or otherwise resolved for any amount of Tax has been proposed, asserted or assessed by any taxing authority against the Company; (iv) there is no action, suit, taxing authority proceeding or audit now in progress, pending or, to the Company's or the Seller's knowledge, threatened against or with respect to the Company; (v) the Company does not reasonably expect any taxing authority to claim or assess any amount of additional Taxes against the Company; (vi) no claim has ever been made by a taxing authority in a jurisdiction where the Company does not file Tax Returns claiming that the Company is or may be subject to Taxes assessed by such jurisdiction; (vii) the Company has not made any election under Section 341(f) of the Code (or any corresponding provision of state, local or foreign income Tax law); (viii) there are no Liens for Taxes (other than for current Taxes not yet due and payable) upon the assets of the Company. (ix) the Company will not be required (A) as a result of a change in method of accounting for a taxable period ending on or prior to the Closing Date, to include any adjustment in taxable income for any taxable period (or portion thereof) ending after the Closing Date, (B) as a result of any "closing agreement," as described in Section 7121 of the Code (or any corresponding provision of state, local or foreign income Tax law), to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date, (C) as a result of any sale reported on the installment method, to include in taxable income any amount from a sale in a taxable period ending on or prior to the Closing Date, or (D) as a result of any prepaid amount received in a taxable period ending on or prior to the Closing Date, to include in taxable income such amount (or portion thereof) for any taxable period (or portion thereof) ending after the Closing Date; (x) the Company is not a party to or bound by any Tax allocation or Tax sharing agreement and has no current or potential contractual obligation to indemnify any other Person with respect to Taxes and the Company is not and has never been part of an Affiliated Group for tax purposes; and -32- (xi) Buyer will not be required to deduct and withhold any amount pursuant to Section 1445(a) of the Code upon the transfer of any cash or property pursuant to this Agreement. (xii) The Company made a valid election under Code Section 1362, effective April 1, 1999, to be an S Corporation for all taxable years since such election through and including the current year and has made all corresponding valid elections, where required, in the states in which it does business and such elections have not been terminated. (xiii) The Company, after consulting with its legal and accounting advisors, has no knowledge of any transfer, documentary, sales, use, stamp, registration or other Tax or fee (including any corporate level capital gains tax) that will be incurred by the Company in connection with the sale of the Company's stock contemplated hereunder. 5.21 BROKERAGE AND TRANSACTION BONUSES. Except for brokerage fees set forth on the attached BROKERAGE SCHEDULE, there are no claims for brokerage commissions, finders' fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement binding upon Seller or the Company. Except as set forth on the attached TRANSACTION BONUSES SCHEDULE, there are no special bonuses or other similar compensation payable to any employee of the Company in connection with the transactions contemplated hereby. Seller shall pay, and hold the Company, Buyer and its Affiliates harmless against, any liability, loss or expense (including reasonable attorneys' fees and out-of-pocket expenses) arising in connection with any such claim for special bonus or other similar compensation. 5.22 BANK ACCOUNTS. The BANK ACCOUNT SCHEDULE attached hereto lists all of the Company's bank accounts (designating each authorized signatory and the level of each signatory's authorization). 5.23 NAMES AND LOCATIONS. Except as set forth on the attached NAMES AND LOCATIONS SCHEDULE, during the five-year period prior to the execution and delivery of this Agreement, the Company has not used any name or names under which it has invoiced account debtors, maintained records concerning its assets or otherwise conducted business. All of the tangible assets and properties of the Company are located at the locations set forth on the NAMES AND LOCATIONS SCHEDULE. 5.24 AFFILIATE TRANSACTIONS. Except as set forth on the attached AFFILIATED TRANSACTIONS SCHEDULE, no officer, director, shareholder, employee or Affiliate of the Company or, to the Company's or the Seller's knowledge, any individual related by blood, marriage or adoption to any such individual or any entity in which any such Person or individual owns any beneficial interest, is a party to any agreement, contract, commitment or transaction with the Company or has any interest in any property used by the Company (including any Intellectual Property Rights). The Company has not paid any fees, expenses or costs of the type described in Section 8.6 below that are to be paid by Seller pursuant to Section 8.6 below. -33- 5.25 SERVICE WARRANTIES. To the Company's knowledge, all services rendered by the Company have been in conformity in all material respects with all applicable contractual commitments and all express and implied warranties, and the Company does not have knowledge of any liability (and, to the Company's knowledge, there is no reasonable basis for any present or future action, suit, proceeding, hearing, investigation, charge, complaint, claim or demand against it giving rise to any such liability) for curing or providing services related to any specific claims already made or other damages in connection therewith. To the Company's knowledge, no services rendered by the Company are subject to any guaranty, warranty or other indemnity beyond the applicable standard terms and conditions of such sale (including as a result of any course of conduct between the Company and any Person or as a result of any statements in any of the Company's service or promotional literature). The attached WARRANTY SCHEDULE includes references to those contracts containing such standard terms and conditions of sale for the Company (containing applicable guaranty, warranty and indemnity provisions). The Company has not been notified of any claims for (and the Company has no knowledge of any threatened claims for) any extraordinary warranty obligations or additional services relating to any of its services. 5.26 CUSTOMERS AND SUPPLIERS. The CUSTOMERS AND SUPPLIERS SCHEDULE attached hereto sets forth (a) a list of the top twenty customers of the Company (on a consolidated basis) (by volume of sales to such customers) and (b) a list of the top ten suppliers of the Company (on a consolidated basis) (by volume of purchases from such suppliers), for the twelve months ended December 31, 1999 and, with respect to such customers, the committed volume of purchases by such customers for the twelve months ended December 31, 1999 and prices related thereto. The Company has not received any indication from any material customer of the Company to the effect that, and the Company has no reason to believe that, such customer will stop, materially decrease the rate of, or materially change the terms (whether related to payment, price or otherwise) with respect to, buying products from the Company (whether as a result of the consummation of the transactions contemplated hereby or otherwise). The Company has not received any indication from any material supplier to the Company to the effect that, and the Company has no reason to believe that, such supplier will stop, materially decrease the rate of, or materially change the terms (whether related to payment, price or otherwise) with respect to, supplying materials, products or services to the Company (whether as a result of the consummation of the transactions contemplated hereby or otherwise). 5.27 DISCLOSURE. Neither this Article V or any of the Exhibits or Schedules attached hereto nor any of the written statements, documents, certificates or other items prepared and supplied to Buyer or its Affiliates by or on behalf of the Company or Seller in connection with the transactions contemplated hereby, when taken together as a whole, contain any untrue statement of a material fact or omit a material fact necessary to make each statement contained herein or therein, in light of the circumstances in which they were made, not misleading. There is no fact which the Company has not disclosed to Buyer in writing and of which any of its stockholders, officers, directors or executive employees is aware which has had or would reasonably be expected to have a Material Adverse Effect. -34- ARTICLE VI REPRESENTATIONS AND WARRANTIES OF BUYER As an inducement to Seller and the Company to enter into this Agreement and consummate the transactions contemplated hereby, Buyer hereby represents and warrants to Seller and the Company as follows: 6.1 ORGANIZATION AND POWER. Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Buyer has all requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. 6.2 CAPITALIZATION. The authorized capital stock of Buyer consists of 1,500,000 shares of Common Stock and 150,000 shares of Series Preferred Stock, of which 665,761.467 shares of Common Stock, 52,696.032 shares of Series A Redeemable Preferred Stock and 4,860.000 shares of Series B Preferred Stock are issued and outstanding. All of such capital stock has been validly issued, is fully paid and nonassessable, and has not been issued in violation of any preemptive rights or rights of refusal. There are no voting trusts, proxies or any other agreements or understandings with respect to the voting of the capital stock of the Company other than under the Stockholders Agreement. The Company is not subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock other than under the Stockholders Agreement. 6.3 AUTHORIZATION. The execution, delivery and performance by Buyer of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by Buyer and no other corporate act or proceeding on the part of Buyer, its board of directors or stockholders is necessary to authorize the execution, delivery or performance of this Agreement and the consummation of the transactions contemplated hereby. This Agreement has been duly executed and delivered by Buyer and this Agreement constitutes a valid and binding obligation of Buyer, enforceable in accordance with its terms. 6.4 NO VIOLATION. Buyer is not subject to nor obligated under its articles of incorporation or by-laws, or any applicable law, rule or regulation of any governmental authority, or any agreement, instrument, license or permit, or subject to any order, writ, injunction or decree, which would be breached or violated by its execution, delivery or performance of this Agreement or the consummation of the transactions contemplated hereby. 6.5 GOVERNMENTAL AUTHORITIES AND CONSENTS. Except as set forth on the BUYER CONSENTS SCHEDULE attached hereto no permit, consent, approval or authorization of, or declaration to or filing with, any governmental or regulatory authority or any other Person is required in connection with the execution, delivery or performance of this Agreement by Buyer or the consummation by Buyer of the transactions contemplated hereby. -35- 6.6 LITIGATION. There are no actions, suits, proceedings, orders or investigations pending or, to Buyer's knowledge, threatened against or affecting Buyer, at law or in equity, or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which would adversely affect Buyer's performance under this Agreement or the consummation of the transactions contemplated hereby. 6.7 BROKERAGE. There are no claims for brokerage commissions, finders' fees or similar compensation in connection with the transactions contemplated by this Agreement based on any arrangement or agreement made by or on behalf of Buyer. ARTICLE VII [INTENTIONALLY OMITTED.] ARTICLE VIII ADDITIONAL AGREEMENTS; COVENANTS AFTER CLOSING 8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The indemnities and actions expressly provided for or expressly referenced in this Article VIII are the exclusive remedies of the parties and their successors or assigns for any breach of this Agreement (with it being understood, however, that nothing in this Agreement (including this Section 8.1) shall limit or restrict any of the Buyer Parties' right to maintain or recover any amounts in connection with any action or claim based upon fraudulent misrepresentation or deceit). The representations and warranties in this Agreement and the Schedules and Exhibits attached hereto or in any writing delivered by any party to another party in connection with this Agreement shall survive the Closing as follows: (a) the representations and warranties in Section 5.20 (Tax Matters) shall terminate when the applicable statutes of limitations with respect to the liabilities in question expire (after giving effect to any extensions or waivers thereof), PLUS thirty (30) days; (b) the representations and warranties in Section 5.2 (Capital Stock and Related Matters; Title to Shares) and Section 5.21 (Brokerage and Transaction Bonuses) shall not terminate; (c) all other representations and warranties in this Agreement and the Schedules and Exhibits attached hereto or in any writing delivered by any party to another party in connection with this Agreement shall terminate on the one year anniversary of the Closing Date; PROVIDED THAT any representation or warranty in respect of which indemnity may be sought under Section 8.2 below, and -36- the indemnity with respect thereto, shall survive the time at which it would otherwise terminate pursuant to this Section 8.1 if notice of the inaccuracy or breach or potential inaccuracy or breach thereof giving rise to such right or potential right of indemnity shall have been given to the party against whom such indemnity may be sought prior to such time (regardless of when the Losses in respect thereof may actually be incurred). The representations and warranties in this Agreement and the Schedules and Exhibits attached hereto or in any writing delivered by any party to another party in connection with this Agreement shall survive for the periods set forth in this Section 8.1 and shall in no event be affected by any investigation, inquiry or examination made for or on behalf of any party, or the knowledge of any party's officers, directors, stockholders, employees or agents or the acceptance by any party of any certificate or opinion hereunder. The parties acknowledge that indemnification hereunder with respect to the breach of any covenant or agreement contained herein, including any breach of any covenant or agreement contained in this Article VIII, shall not be subject to any time or other limitations, except as otherwise set forth in this Agreement. 8.2 INDEMNIFICATION. (a) INDEMNIFICATION BY SELLER. Seller agrees to and shall indemnify Buyer and its Affiliates, stockholders, officers, directors, employees, agents, partners, representatives, successors and assigns (collectively, the "BUYER PARTIES") and save and hold each of them harmless against and pay on behalf of or reimburse such Buyer Parties as and when incurred for any loss, liability, demand, claim, action, cause of action, cost, damage, deficiency, Tax, penalty, fine or expense, whether or not arising out of third-party claims (including interest, penalties, reasonable attorneys' fees and expenses and all amounts paid in investigation, defense or settlement of any of the foregoing) (collectively, "LOSSES"), which any such Buyer Party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of: (i) any breach by the Company or Seller of any representation or warranty made by the Company or Seller in this Agreement or any of the Schedules or Exhibits attached hereto, or in any of the certificates or other instruments or documents furnished by the Company pursuant to this Agreement; (ii) any nonfulfillment or breach of any covenant, agreement or other provision by the Company, Seller under this Agreement or any of the Schedules and Exhibits attached hereto; (iii) any action, demand, proceeding, investigation or claim by any Person against or affecting the Company or any Buyer Party which, if successful, would give rise to or evidence the existence of or relate to a breach of any of the representations, warranties, covenants or agreements of the Company or the Seller under this Agreement; (iv) any Taxes of the Company with respect to any Tax year or portion thereof ending on or before the Closing Date as determined in accordance with Section 8.11 hereof; or (v) any of the matters set forth on the INDEMNIFICATION SCHEDULE attached hereto; PROVIDED THAT Seller shall not have any liability under clauses (i) and (iii) above (other than with respect to the representations and warranties contained in Section 5.2 (Capital Stock and Related Matters; Title to Shares), Section 5.20 (Tax Matters) and Section 5.21(Brokerage and Transaction Bonuses)) unless the aggregate of all Losses relating thereto for which Seller would, but for this proviso, be liable exceeds on a cumulative basis an amount equal to $100,000 (and then Seller shall be liable for all such Losses including the $100,000 threshold amount); and PROVIDED FURTHER that Seller's aggregate liability under clause (i) above (other than with -37- respect to the representations and warranties contained in Section 5.2 (Capital Stock and Related Matters; Title to Shares), Section 5.20 (Tax Matters) and Section 5.21 (Brokerage and Transaction Bonuses)), shall in no event exceed an amount equal to one-half of the Purchase Price (with it being understood, however, that nothing in this Agreement (including this Section 8.2(a)) shall limit or restrict any of the Buyer Parties' right to maintain or recover any amounts in connection with any action or claim based upon fraudulent misrepresentation or deceit). (b) FURTHER LIMITATIONS ON INDEMNIFICATION. (i) Each addition to the asset portion of the Company's balance sheet that corresponds to a liability, obligation, cost or expense to be indemnified by Seller hereunder shall be taken into account as an offset to such corresponding liability, obligation, cost or expense for purposes of determining Seller's indemnification liability with respect to such liability, obligation, cost and expense, to the extent such asset addition did not appear on the Latest Balance Sheet or Closing Balance Sheet (i.e., if a liability under a capital lease is to be indemnified by Seller hereunder, the corresponding asset under such capital lease shall also be taken into account for purposes of determining Seller's indemnification liability, but only to the extent of such liability). (ii) No breach of Seller's and the Company's representations and warranties and no claim for adjustment of the Purchase Price shall be asserted by Buyer based upon any change in the accounting methods set forth on the Accounting Schedule. (iii) No breach of the representations and warranties and no claim for adjustment of the Purchase Price shall be asserted that results from the creation of any new or additional reserve fund(s) with respect to accrual of liabilities for future or contingent claims or otherwise unless the Company had knowledge of a specific claim. (iv) Notwithstanding any provision herein to the contrary, any Loss for which an Indemnitor claims indemnification under this Section 8.2 shall take into account (A) the proceeds of any insurance actually received by the Indemnitee with respect to such Loss less any increase in premiums to such Person as a result of such claim for insurance proceeds (the "INSURANCE RECOVERY AMOUNT"), (B) the amount of any reduction in Tax that (1) is actually realized by a reduction of Taxes actually paid or by a refund actually received by the Indemnitee, and (2) is attributable to any deduction, loss, credit or other Tax benefit arising from or arising out of such Loss (the "TAX REDUCTION AMOUNT"). Any indemnification payment under this Section 8.2 shall initially be made without regard to clauses (A) and (B) of this Section 8.2(b)(v) and the Indemnitee shall remit to the Indemnitor the Tax Reduction Amount or the Insurance Recovery Amount, as the case may be, when the Indemnitee actually realizes the Tax Reduction Amount or actually receives the Insurance Recovery Amount, as the case may be. (c) INDEMNIFICATION BY BUYER. Buyer agrees to and shall indemnify Seller and hold it harmless against any Losses which Seller may suffer, sustain or become subject to, as the result of, -38- in connection with, relating or incidental to or by virtue of the breach by Buyer of any representation, warranty, covenant or agreement made by Buyer in this Agreement, including without limitation the representation and warranty by Buyer contained in Section 6.8 above. (d) MANNER OF PAYMENT. Except as otherwise provided herein, any indemnification of the Buyer Parties or Seller pursuant to this Section 8.2 shall be effected by wire transfer of immediately available funds from Seller or Buyer, as the case may be, to an account designated by the applicable Buyer Party or Seller, as the case may be, within ten days after the determination thereof. Any such indemnification payments shall include interest at the Applicable Rate calculated on the basis of the actual number of days elapsed over 360, from the date any such Loss is suffered or sustained to the date of payment. Any amounts owing from Seller pursuant to this Section 8.2 shall be made directly by Seller in accordance with the terms of this Section 8.2(d). All indemnification payments under this Section 8.2 shall be deemed adjustments to the Purchase Price set forth in Section 2.3(a) above. (e) DEFENSE OF THIRD-PARTY CLAIMS. Any Person making a claim for indemnification under this Section 8.2 (an "INDEMNITEE") shall notify the indemnifying party (an "INDEMNITOR") of the claim in writing promptly after receiving written notice of any action, lawsuit, proceeding, investigation or other claim against it (if by a third party), describing the claim, the amount thereof (if known and quantifiable) and the basis thereof; PROVIDED THAT the failure to so notify an Indemnitor shall not relieve the Indemnitor of its obligations hereunder except to the extent that (and only to the extent that) such failure shall have caused the damages for which the Indemnitor is obligated to be greater than such damages would have been had the Indemnitee given the Indemnitor prompt notice hereunder. Any Indemnitor shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to an Indemnitee's claim for indemnification at such Indemnitor's expense, and at its option (subject to the limitations set forth below) shall be entitled to assume the defense thereof by appointing a recognized and reputable counsel acceptable to the Indemnitee to be the lead counsel in connection with such defense; PROVIDED THAT prior to the Indemnitor assuming control of such defense it shall first (A) verify to the Indemnitee in writing that such Indemnitor shall be fully responsible (with no reservation of any rights) for all liabilities and obligations relating to such claim for indemnification (without regard to any dollar limitations otherwise set forth herein) and that it shall provide full indemnification (whether or not otherwise required hereunder) to the Indemnitee with respect to such action, lawsuit, proceeding, investigation or other claim giving rise to such claim for indemnification hereunder and (B) enter into an agreement with the Indemnitee in form and substance satisfactory to the Indemnitee which agreement unconditionally guarantees the payment and performance of any liability or obligation which may arise with respect to such action, lawsuit, proceeding, investigation or facts giving rise to such claim for indemnification hereunder; and PROVIDED FURTHER, that: (i) the Indemnitee shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose; PROVIDED THAT the fees and expenses of such separate counsel shall be borne by the Indemnitee (other than any fees and expenses of such -39- separate counsel that are incurred prior to the date the Indemnitor effectively assumes control of such defense which, notwithstanding the foregoing, shall be borne by the Indemnitor, and except that the Indemnitor shall pay all of the fees and expenses of such separate counsel if the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee); (ii) the Indemnitor shall not be entitled to assume control of such defense (unless otherwise agreed to in writing by the Indemnitee) and shall pay the fees and expenses of counsel retained by the Indemnitee if (1) the claim for indemnification relates to or arises in connection with any criminal or quasi-criminal proceeding, action, indictment, allegation or investigation; (2) the Indemnitee reasonably believes an adverse determination with respect to the action, lawsuit, investigation, proceeding or other claim giving rise to such claim for indemnification would be detrimental to or injure the Indemnitee's reputation or future business prospects; (3) the claim seeks an injunction or equitable relief against the Indemnitee; (4) the Indemnitee has been advised by counsel that a reasonable likelihood exists of a conflict of interest between the Indemnitor and the Indemnitee; (5) the claim involves environmental matters in which case the Indemnitee shall have sole control and management authority over the resolution of such claim (including hiring legal counsel and environmental consultants, conducting environmental investigations and cleanups, negotiating with governmental agencies and third parties and defending or settling claims and actions); PROVIDED THAT the Indemnitee shall keep the Indemnitor apprised of any major developments relating to any environmental claim; or (6) upon petition by the Indemnitee, the appropriate court rules that the Indemnitor failed or is failing to vigorously prosecute or defend such claim; and (iii) if the Indemnitor shall control the defense of any such claim, the Indemnitor shall obtain the prior written consent of the Indemnitee before entering into any settlement of a claim or ceasing to defend such claim if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the Indemnitee or if such settlement does not expressly and unconditionally release the Indemnitee from all liabilities and obligations with respect to such claim, without prejudice. (f) CERTAIN WAIVERS; ETC. Seller hereby agrees that he shall not make any claim for indemnification against Buyer, the Company or any of their respective Affiliates by reason of the fact that Seller is or was a stockholder, director, officer, employee or agent of the Company or any of its Affiliates or is or was serving at the request of the Company or any of its Affiliates as a partner, trustee, director, officer, employee or agent of another entity (whether such claim is for judgments, damages, penalties, fines, costs, amounts paid in settlement, losses, expenses or otherwise and whether such 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 Seller pursuant to this Agreement or applicable law or otherwise, and Seller hereby acknowledges and agrees that he shall not have any claim or right to contribution or indemnity from the Company or any of its Affiliates with respect to any amounts paid by him pursuant to this Agreement or otherwise. Effective upon the Closing, Seller hereby irrevocably waives, releases and discharges the Company -40- and its Affiliates from any and all liabilities and obligations to it or him of any kind or nature whatsoever, whether in his capacity as a stockholder, officer or director of the Company or any of its Affiliates or otherwise (including in respect of any rights of contribution or indemnification but excluding compensation otherwise payable as an employee of the Company, in each case whether absolute or contingent, liquidated or unliquidated, known or unknown, and whether arising under any agreement or understanding (other than this Agreement and any of the other agreements executed and delivered in connection herewith) or otherwise at law or equity, and Seller agrees that he shall not seek to recover any amounts in connection therewith or thereunder from the Company or any of its Affiliates. In no event shall the Company or any of its Affiliates have any liability whatsoever to Seller for any breaches of the representations, warranties, agreements or covenants of the Company hereunder, and Seller shall not in any event seek contribution from the Company or any of its Affiliates in respect of any payments required to be made by Seller pursuant to this Agreement. 8.3 MUTUAL ASSISTANCE. Buyer, the Company and Seller agree that they will mutually cooperate in the expeditious filing of all notices, reports and other filings with any governmental authority required to be submitted jointly by the Company and Buyer in connection with the execution and delivery of this Agreement and/or the other agreements contemplated hereby and the consummation of the transactions contemplated hereby or thereby. 8.4 NON-COMPETITION; NON-SOLICITATION. (a) Seller hereby acknowledges that he is familiar with the Company's trade secrets and with other Confidential Information. Seller (who is the sole shareholder and the founder, president and a director of the Company) acknowledges and agrees that the Company would be irreparably damaged if he were to provide services to or otherwise participate in the business of any Person competing with the Company in a similar business and that any such competition by Seller would result in a significant loss of goodwill by the Company. Seller further acknowledges and agrees that the covenants and agreements set forth in this Section 8.4 were a material inducement to Buyer to enter into this Agreement and to perform its obligations hereunder, and that Buyer and its stockholders would not obtain the benefit of the bargain set forth in this Agreement as specifically negotiated by the parties hereto if Seller breached the provisions of this Section 8.4. Therefore, in further consideration of the amounts to be paid hereunder for the Shares and the goodwill of the Company sold by Seller, Seller agrees that until the fifth anniversary of the Closing, Seller shall not (and Seller shall cause his Affiliates not to) directly or indirectly own any interest in, manage, control, participate in (whether as an officer, director, employee, partner, agent, representative or otherwise), consult with, render services for, or in any other manner engage anywhere in the Restricted Territories in any business engaged directly or indirectly in the installation, construction, maintenance or repair of electric transmission lines or the installation, construction, maintenance or repair of telephonic or communication transmission lines and all related services; PROVIDED THAT nothing herein shall prohibit Seller or his Affiliates from being a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded so long as none of such Persons has any active participation in the business of such corporation. For purposes of this Agreement, "RESTRICTED -41- TERRITORIES" shall mean the United States of America. Seller acknowledges that the Company's business has been conducted or is presently proposed to be conducted throughout the Restricted Territories and that the geographic restrictions set forth above are reasonable and necessary to protect the goodwill of the Company's business being sold by Seller pursuant to this Agreement. (b) Seller shall not (and Seller shall cause his Affiliates not to) directly, or indirectly through another Person, (i) induce or attempt to induce any employee of the Company or any of its Affiliates to leave the employ of the Company or any of its Affiliates, or in any way interfere with the relationship between the Company or any of its Affiliates and any employee thereof, (ii) hire any person who was an employee of the Company or any of its Affiliates at any time during the six-month period immediately prior to the date on which such hiring would take place (it being conclusively presumed by the parties so as to avoid any disputes under this Section 8.4(b) that any such hiring within such six-month period is in violation of clause (i) above), or (iii) for so long as Seller has continuing obligations under Section 8.4(a) above, call on, solicit or service any customer, supplier, licensee, licensor or other business relation of the Company or any of its Affiliates in order to induce or attempt to induce such Person to cease doing business with the Company or any of its Affiliates, or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company or any of its Affiliates (including making any negative statements or communications about the Company or any of its Affiliates). (c) If, at the time of enforcement of the covenants contained in this Section 8.4 (the "RESTRICTIVE COVENANTS"), a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. Seller has consulted with legal counsel regarding the Restrictive Covenants and based on such consultation has determined and hereby acknowledges that the Restrictive Covenants are reasonable in terms of duration, scope and area restrictions and are necessary to protect the goodwill of the Company's business and the substantial investment in the Company made by Buyer hereunder. Seller further acknowledges and agrees that the Restrictive Covenants are being entered into by him in connection with the sale by Seller of the Shares and the goodwill of the Company's business pursuant to this Agreement and not directly or indirectly in connection with Seller's employment or other relationship with the Company. (d) If Seller or any of his Affiliates breaches, or threatens to commit a breach of, any of the Restrictive Covenants, the Company shall have the following rights and remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to the Company or its Affiliates at law or in equity: (i) the right and remedy to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction, it being agreed that any breach or threatened breach -42- of the Restrictive Covenants would cause irreparable injury to the Company and that money damages would not provide an adequate remedy to the Company; and (ii) the right and remedy to require Seller to account for and pay over to the Company any profits, monies, accruals, increments or other benefits derived or received by such Person as the result of any transactions constituting a breach of the Restrictive Covenants. (iii) In the event of any breach or violation by Seller of any of the Restrictive Covenants, the time period of such covenant shall be tolled until such breach or violation is resolved. 8.5 PRESS RELEASE AND ANNOUNCEMENTS. Unless required by law (in which case each of Buyer and the Company agree to use reasonable efforts to consult with the other party prior to any such disclosure as to the form and content of such disclosure), after the date hereof and through and including the Closing Date, no press releases, announcements to the employees, customers or suppliers of the Company or other releases of information related to this Agreement or the transactions contem plated hereby will be issued or released without the consent of each of Buyer and the Company. After the Closing, Buyer and the Company may issue any such releases of information without the consent of any other party hereto. 8.6 EXPENSES. Seller and Buyer shall pay all of their own respective fees, costs and expenses (including fees, costs and expenses of legal counsel, investment bankers, brokers or other representatives and consultants and appraisal fees, costs and expenses) incurred in connection with the negotiation of this Agreement, the performance of its obligations hereunder and the consummation of the transactions contemplated hereby. 8.7 SPECIFIC PERFORMANCE. Each of the Company, Seller and Buyer acknowledges and agrees that the other parties would be damaged irreparably in the event any of the provisions of this Agreement is not performed in accordance with its specific terms or is otherwise breached. Accordingly, the Company, Seller and Buyer agree that the other parties shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof in any action instituted in any court in the United States or in any state having jurisdiction over the parties and the matter in addition to any other remedy to which they may be entitled pursuant hereto. 8.8 ARBITRATION PROCEDURE. (a) Each of Buyer and Seller agree that the arbitration procedure set forth below shall be the sole and exclusive method for resolving and remedying claims for money damages arising out of the provisions this Article VIII (the "DISPUTES") following the Closing; PROVIDED THAT nothing in this Section 8.8 shall prohibit a party hereto from instituting litigation to enforce any Final Determination (as defined below). The parties hereby acknowledge and agree that, except as otherwise provided in this Section 8.8, the arbitration procedures and any Final Determination hereunder shall -43- be governed by, and shall be enforced pursuant to, the United States Arbitration Act, 9 U.S.C. Section 1 ET. SEQ. (b) In the event that any party asserts that there exists a Dispute, such party shall deliver a written notice to each other party involved therein specifying the nature of the asserted Dispute and requesting a meeting to attempt to resolve the same. If no such resolution is reached within ten business days after the delivery of such notice, the party delivering such notice of Dispute (the "DISPUTING PERSON") may thereafter commence arbitration hereunder by delivering to each other party involved therein a notice of arbitration (a "NOTICE OF ARBITRATION"). Such Notice of Arbitration shall specify the nature of any Dispute. Buyer and Seller shall mutually agree upon one arbitrator to resolve any Dispute pursuant to the procedures set forth in this Section 8.8; PROVIDED, if Buyer and Seller cannot agree on an arbitrator within ten business days, then they shall request the American Arbitration Association to appoint an arbitrator experienced in the area of dispute who does not have an ongoing business relationship with any of the parties to the dispute. The Arbitrator shall permit and facilitate such discovery as the party initiating such claim shall reasonably request. (c) The arbitrator selected pursuant to Section 8.8(b) will determine the allocation of the costs and expenses of arbitration based upon the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party. For example, if Buyer submits a claim for $1,000 and if Seller contests only $500 of the amount claimed by Buyer, and if the arbitrator ultimately resolves the dispute by awarding Buyer $300 of the $500 contested, then the costs and expenses of arbitration will be allocated 60% (i.e., 300 / 500) to Seller and 40% (i.e., 200 / 500) to Buyer. (d) The arbitration shall be conducted in Miami, Florida. The arbitrator shall conduct the arbitration so that a final result, determination, finding, judgment and/or award (the "FINAL DETERMINATION") is made or rendered as soon as practicable, but in no event later than 90 business days after the delivery of the Notice of Arbitration nor later than 10 days following completion of the arbitration. The Final Determination shall be final and binding on all parties and there shall be no appeal from or reexamination of the Final Determination, except for fraud, perjury, evident partiality or misconduct by an arbitrator prejudicing the rights of any party and to correct manifest clerical errors. (e) Buyer or Seller may enforce any Final Determination in any state or federal court of competent jurisdiction. For the purpose of any action or proceeding instituted with respect to any Final Determination, each party hereto hereby irrevocably submits to the jurisdiction of such courts, irrevocably consents to the service of process by registered mail or personal service and hereby irrevocably waives, to the fullest extent permitted by law, any objection which it may have or hereafter have as to personal jurisdiction, the laying of the venue of any such action or proceeding brought in any such court and any claim that any such action or proceeding brought in any court has been brought in an inconvenient forum. -44- 8.9 FURTHER ASSURANCES. In the event that at any time after the Closing any further action is necessary or desirable to carry out the purposes of this Agreement, each of the parties hereto will take such further action (including the execution and delivery of such further instruments and documents) as any other party hereto reasonably may request. Seller acknowledges and agrees that, from and after the Closing, Buyer will be entitled to possession of all documents, books, records (including Tax records), agreements and financial data of any sort relating to the Company. Seller shall not in any manner take any action which is designed, intended or might be reasonably anticipated to have the effect of discouraging customers, suppliers, lessors, licensors and other business associates from maintaining the same business relationships with the Company and its Affiliates at any time after the date of this Agreement as were maintained with the Company and its Affiliates prior to the date of this Agreement. 8.10 CONFIDENTIALITY. Seller agrees not to disclose or use at any time (and shall cause each of his Affiliates not to use or disclose at any time) any Confidential Information, except to the extent that such disclosure or use is directly related to and required by the performance of Seller's duties to the Company as an officer or employee. Seller further agrees to take all appropriate steps (and to cause each of his Affiliates to take all appropriate steps) to safeguard such Confidential Information and to protect it against disclosure, misuse, espionage, loss and theft. In the event Seller or any of his Affiliates is required by law to disclose any Confidential Information, Seller shall promptly notify Buyer in writing, which notification shall include the nature of the legal requirement and the extent of the required disclosure, and Seller shall cooperate with Buyer and the Company to preserve the confidentiality of such information consistent with applicable law. 8.11 TAX MATTERS. (a) TAX PERIODS ENDING ON OR BEFORE THE CLOSING DATE. Seller shall prepare or cause to be prepared and file or cause to be filed all Tax Returns for the Company for all periods ending on or prior to the Closing Date or for which the date of measurement for such Tax occurs prior to the Closing Date which are filed after the Closing Date. All such Tax Returns shall be prepared in accordance with past practice insofar as they relate to the Company. Seller shall permit Buyer to review and comment on each such Tax Return prior to filing. Seller shall reimburse Buyer for Taxes of Seller and the Company with respect to such periods within fifteen (15) days prior to any payment by Buyer or the Company of such Taxes to the extent such Taxes are not accrued as a liability on the Closing Balance Sheet and used to determine the Purchase Price pursuant to Section 2.3. Seller shall not be liable for and shall not pay or reimburse Buyer or Company for any Taxes incurred as a result of any election under Section 338 of the Code. (b) TAX PERIODS BEGINNING BEFORE AND ENDING AFTER THE CLOSING DATE. Buyer shall prepare or cause to be prepared and file or cause to be filed any Tax Returns of the Company for Tax periods which begin before the Closing Date and end after the Closing Date ("STRADDLE TAX RETURNS"). Buyer shall permit Seller to review and comment on each such Tax Return prior to filing. Any portion of any Tax which must be paid in connection with the filing of a Straddle Tax Return, to the extent -45- attributable to any period or portion of a period ending on or before the Closing Date, shall be referred to herein as "PRE-CLOSING TAXES." Seller shall pay to Buyer an amount equal to the Pre-Closing Taxes due with any Straddle Tax Returns (to the extent such Taxes are not accrued as a liability on the Closing Balance Sheet used to determine the Final Purchase Price pursuant to Section 2.3) at least ten (10) days before Buyer is required to cause to be paid the related Tax liability. Where the Pre-Closing Taxes involve a period which begins before and ends after the Closing Date, such Pre-Closing Taxes shall be calculated as though the taxable year of the Company terminated as of the close of business on the Closing Date; PROVIDED, HOWEVER, that in the case of a tax not based on income, receipts, proceeds, profits or similar items, Pre-Closing Taxes shall be equal to the amount of tax for the taxable period multiplied by a fraction, the numerator of which shall be the number of days from the beginning of the taxable period through the Closing Date and the denominator of which shall be the number of days in the taxable period. All determinations necessary to give effect to the foregoing allocations shall be made in a manner consistent with prior practice of the Company. (c) CERTAIN TAXES. All transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with the transfer by the Company to Seller of the real property demised by the Lease Agreement), shall be paid by Seller when due and Seller will at his own expense file all necessary Tax Returns and other documentation with respect to all such transfer, documentary, sales, use, stamp, registration and other Taxes and fees, and if required by applicable law, Buyer will, and will cause the Company to, join in the execution of any such Tax Returns and documentation. (d) COOPERATION ON TAX MATTERS. (i) Seller, the Company and Buyer shall 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 8.11 and any audit, litigation or other proceeding with respect to Taxes. Such cooperation shall include signing any Tax Return, amended Tax Returns, claims or other documents necessary to settle any Tax controversy, the retention and (upon the other party's request) the provision of records and information which 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. Seller agrees 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 Buyer, any extensions thereof) of the respective taxable periods, and to abide by all record retention agreements entered into with any taxing authority and to give Buyer reasonable written notice prior to transferring, destroying or discarding any such books and records and, if the other party so requests, Buyer shall allow Seller to take possession of such books and records. (ii) Buyer shall have the right to participate in any Tax proceeding related to a pre-Closing Tax year of the Company which may have the effect of increasing Buyer's or the Company's Tax liability for any Tax period ending after the Closing, and Seller shall not settle or -46- compromise any such proceeding without Buyer's prior written consent (which shall not be unreasonably withheld); PROVIDED HOWEVER, Buyer hereby agrees to consent if Seller fully indemnifies Buyer for any increase in Buyer's or the Company's Tax liability. (iii) Buyer and Seller further agree, upon request by the other, 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, but not limited to, with respect to the transactions contemplated hereby). (iv) Without the prior written consent (which shall not be unreasonably withheld) of Buyer, neither Seller nor the Company shall make or change any election, change an annual accounting period, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Company, surrender any right to claim a refund of Taxes, or take any other similar action, or omit to take any action relating to the filing of any Tax Return or the payment of any Tax, if such action or omission would have the effect of increasing the present or future Tax liability or decreasing any present or future Tax asset of the Company, Buyer or any Affiliate of Buyer. Seller shall notify Buyer of any consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company within fifteen (15) days of making such consent or waiver. (e) NO SECTION 338(h)(10) ELECTION. None of Seller, Buyer or the Company shall make or be required to consent to any election under Section 338(h)(10) of the Code. ARTICLE IX MISCELLANEOUS 9.1 AMENDMENT AND WAIVER. This Agreement may be amended, and any provision of this Agreement may be waived; PROVIDED THAT any such amendment or waiver will be binding upon the Company, prior to the Closing, and Seller only if such amendment or waiver is set forth in a writing executed by Seller, and any such amendment or waiver will be binding upon the Company, after the Closing, and Buyer only if such amendment or waiver is set forth in a writing executed by Buyer or the Company, as the case may be. No course of dealing between or among any Persons having any interest in this Agreement shall be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any Person under or by reason of this Agreement. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions, whether or not similar, nor shall any waiver constitute a continuing waiver. -47- 9.2 NOTICES. All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (i) when personally delivered, sent by telecopy (with hard copy to follow) or sent by reputable overnight express courier (charges prepaid), or (ii) five days following mailing by certified or registered mail, postage prepaid and return receipt requested. Unless another address is specified in writing, notices, demands and communications to Seller, the Company and Buyer shall be sent to the addresses indicated below: NOTICES TO SELLER: Mr. Thomas E. Murrell George M. Construction, Inc. 31479 SM 249 Road Pinehurst, Texas 77362 Telecopy: WITH A COPY TO (WHICH SHALL NOT CONSTITUTE NOTICE TO THE COMPANY OR SELLER): Richard Yount, Esq. Baker & Hostetler LLP 1000 Louisiana, Suite 2000 Houston, TX 77002-5008 Telecopy: (713) 276-1626 NOTICES TO THE COMPANY AND BUYER: Linc.net, Inc. 6303 Blue Lagoon Drive, Suite 305 Miami, FL 33126 Attn: Ismael Perera Telecopy: (305) 266-0875 WITH COPIES TO (WHICH SHALL NOT CONSTITUTE NOTICE TO THE COMPANY OR BUYER): First Chicago Equity Capital 55 West Monroe 16th Floor Chicago, IL 60670 Attn: Burton E. McGillivray Telecopy: (312) 732-7483 -48- Kirkland & Ellis 200 East Randolph Chicago, IL 60601 Attn: Ted H. Zook E. Paul Quinn Telecopy: (312) 861-2200 Saunders, Karp & Megrue 262 Harbor Drive, 4th Floor Stamford, CT 06902 Attn: John F. Megrue Timothy B. Armstrong Telecopy: (203) 708-6677 9.3 SUCCESSORS AND ASSIGNS. This Agreement and all of the covenants and agreements contained herein and rights, interests or obligations hereunder, by or on behalf of any of the parties hereto, shall bind and inure to the benefit of the respective heirs, successors and assigns of the parties hereto whether so expressed or not, except that neither this Agreement nor any of the covenants and agreements herein or rights, interests or obligations hereunder may be assigned or delegated by the Seller prior to or after the Closing, or assigned or delegated by the Company prior to the Closing, without the prior written consent of Buyer. Buyer may assign its rights and obligations hereunder (including its right to purchase the Shares), in whole or in part, to any of its Affiliates without the consent of any of the other parties hereto. In addition, Buyer may assign its rights and obligations pursuant to this Agreement in whole or in part, in connection with any disposition or transfer of all or any portion of the Company or its businesses in any form of transaction without the consent of any of the other parties hereto. Buyer and, following the Closing, the Company may assign any or all of its rights pursuant to this Agreement, including its rights to indemnification, to any of its lenders as collateral security. 9.4 SEVERABILITY. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. 9.5 INTERPRETATION. The headings and captions used in this Agreement, in any Schedule or Exhibit hereto, in the table of contents or in any index hereto are for convenience of reference only and do not constitute a part of this Agreement and shall not be deemed to limit, characterize or in any way affect any provision of this Agreement or any Schedule or Exhibit hereto, and all provisions of this Agreement and the Schedules and Exhibits hereto shall be enforced and construed as if no caption or heading had been used herein or therein. Any capitalized terms used in any Schedule or Exhibit attached hereto and not otherwise defined therein shall have the meanings set forth in this Agreement. -49- Each defined term used in this Agreement shall have a comparable meaning when used in its plural or singular form. The use of the word "including" herein shall mean "including without limitation" and, unless the context otherwise required, "neither," "nor," "any," "either" and "or" shall not be exclusive. The parties hereto intend that each representation, warranty and covenant contained herein shall have independent significance. If any party has breached any representation, warranty or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such party has not breached shall not detract from or mitigate the fact that such party is in breach of the first representation, warranty or covenant. 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 shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 9.6 CAPTIONS. The captions used in this Agreement are for convenience of reference only and do not constitute a part of this Agreement and shall not be deemed to limit, characterize or in any way affect any provision of this Agreement, and all provisions of this Agreement shall be enforced and construed as if no caption had been used in this Agreement. 9.7 NO THIRD-PARTY BENEFICIARIES. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any Person other than the parties hereto and their respective permitted successors and assigns, any rights or remedies under or by reason of this Agreement, such third parties specifically including employees and creditors of the Company. 9.8 COMPLETE AGREEMENT. This Agreement and the agreements and documents referred to herein contain the entire agreement and understanding between the parties with respect to the subject matter hereof and supersede all prior agreements and understandings (including that certain letter of intent dated June 10, 1999, between First Chicago Equity Capital and the Company), whether written or oral, relating to such subject matter in any way. 9.9 COUNTERPARTS. This Agreement may be executed in one or more counterparts (including by means of telecopied signature pages), all of which taken together shall constitute one and the same instrument. 9.10 DELIVERY BY FACSIMILE. This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto shall re-execute original forms thereof and deliver them to all other parties. No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine to deliver a signature or the fact that any signature -50- or agreement or instrument was transmitted or communicated through the use of a facsimile machine as a defense to the formation of a contract and each such party forever waives any such defense. 9.11 GOVERNING LAW. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal law of the State of Texas without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Texas or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Texas. 9.12 SCHEDULES. Nothing in any schedule attached hereto shall be adequate to disclose an exception to a representation or warranty made in this Agreement unless such schedule identifies the exception in reasonable detail. Without limiting the generality of the foregoing, the mere listing (or inclusion of a copy) of a document or other item shall not be adequate to disclose an exception to a representation or warranty made in this Agreement, unless the representation or warranty has to do with the existence of the document or other item itself. No exceptions to any representations or warranties disclosed on one schedule shall constitute an exception to any other representations or warranties made in this Agreement unless the exception is disclosed as provided herein on each such other applicable schedule or cross-referenced in such other applicable section or schedule. * * * * * -51- IN WITNESS WHEREOF, the parties hereto have executed this Stock Purchase Agreement on the date first written above. LINC.NET, INC. By:________________________________ Name: Title: GEORGE M. CONSTRUCTION, INC. By:________________________________ Name: Title: ___________________________________ Thomas E. Murrell 52 ACCOUNTING SCHEDULE 1. The Allowance for Bad Debt as provided on the Latest Balance Sheet and Closing Balance Sheet may or may not be equal to actual bad debt but shall be deemed to be a final and conclusive estimate of uncollectible accounts receivable as of those dates and no adjustment of the Final Balance Sheet, Closing Balance Sheet, Price Adjustment Components, Purchase Price or Final Purchase Price shall be made for actual uncollectible accounts receivable except to the extent (1) it is shown any accounts receivable are based upon work not done or material not delivered, and (2) the Company has knowledge of the uncollectability of any account(s) receivable. 2. The Company has made no allowance or accrual of liability for future warranty work and no adjustment on the Latest Balance Sheet, Closing Balance Sheet, Price Adjustment Components, Purchase Price or the Final Purchase Price shall be made based upon accruals for warranty work relating to finished jobs or jobs in progress unless the Company has knowledge of a service warranty liability as of the Closing. 3. No adjustment of the Latest Balance Sheet, Closing Balance Sheet, Price Adjustment Components, Purchase Price or the Final Purchase Price shall be asserted based upon any change in the methods of calculating the value of unbilled work in progress used for purposes of preparing the Latest Balance Sheet even if the methodology used is not in accordance with GAAP or even if other GAAP methods of accounting are permissible. Nothing contained herein shall prohibit adjustments based on work not done or material not delivered. 4. No claim for adjustment of the Latest Balance Sheet, Closing Balance Sheet, Price Adjustment Components, the Purchase Price or the Final Purchase Price shall be asserted based upon the creation of any new or additional reserve funds with respect to accrual of liabilities for future or contingent tort claims unless the Company has knowledge of specific facts giving rise to such future or contingent tort claims. 5. The Company is required to contribute to certain union-sponsored employee benefit plans pursuant to its union contracts. No adjustment to the Latest Balance Sheet, Closing Balance Sheet, Purchase Price, Price Adjustment Components or Final Purchase Price shall be asserted based upon liability to or for any such union-sponsored employee benefit plan, unless the Company has knowledge of specific facts giving rise to such liability. -53- INDEMNIFICATION SCHEDULE 1. All Losses arising out of or relating to third party or governmental claims with respect to the Company's ownership and operation of real property prior to the date hereof, other than the real property contemplated under the Lease Agreement (except as otherwise specifically provided herein). 2. All Losses incurred but not paid by the Company during or with respect to the period beginning on the date of the Latest Balance Sheet and ending on the date hereof that are not otherwise reflected on the Closing Balance Sheet arising out of or relating to an action, claim or lawsuit based on breach of contract, breach of warranty (except for routine warranty work of the type normally performed by the Company in the ordinary course of business), tort, infringement, violation of law, claim or lawsuit. 3. All Losses arising out of or relating to the claim(s) by Hanron Group, Inc. d/b/a ABA American Business Acquisition for amounts owed to it by the Company and/or Seller in connection with the proposed sale of the Company, including without limitation for brokerage commissions payable by the Company. 4. All Losses arising out of or relating to the use and operation of the water supply well and water supply system at the property contemplated under the Lease Agreement (the "WATER SUPPLY SYSTEM") prior to the Closing Date, including without limitation (a) any fines or penalties resulting from the failure of the Water Supply System to comply with any applicable local, state or federal law, rule, order or regulation and (b) any liabilities resulting from any Person's use of the Water Supply System and any health effects resulting therefrom. -54-