STOCK PURCHASE AGREEMENT between Lawrence E. Ekey and Fuel Tech, Inc. April 28, 2014

This Stock Purchase Agreement (“Agreement”) is made on April 28, 2014 by Fuel Tech, Inc., a Delaware corporation (“Buyer”) and Lawrence E. Ekey, an individual (“Seller”). Each of Buyer and Seller are sometimes individually referred to as a “Party,” or, collectively, as the “Parties.”

Seller desires to sell, and Buyer desires to purchase, all issued and outstanding shares (the “Shares”) of capital stock of Cleveland Roll Forming Environmental Division, Inc., an Ohio corporation (the “Company”), for the consideration and on the terms set forth in this Agreement. The Parties, intending to be legally bound, agree as follows:

1.1    Definitions. For purposes of this Agreement, the following terms have the meanings specified or referred to in this Section 1.1:

“Adjoining Property”-as defined in Section 3.19(e).

“Adjustment Amount”-as defined in Section 2.5(a).

“Agreement”-as defined in the first paragraph of this Agreement.

“Applicable Contract”-any Contract (a) under which Company has or could acquire any rights, (b) under which Company has or could become subject to any obligation or liability, or (c) by which Company or any assets owned or used by it is or could become bound.

“Balance Sheet Date”-as defined in Section 3.4.

“Breach”-any breach of, or any inaccuracy in, any representation or warranty or breach of, or failure to perform or comply with, any covenant or obligation in or of the Contract in question, or any event that with the passing of time or the giving of notice, or both, would constitute such a breach, inaccuracy, or failure.

“Business Day”-any day other than (a) Saturday or Sunday or (b) any other day on which national banks in the State of Illinois are generally permitted or required to be closed.

“Buyer”-as defined in the first paragraph of this Agreement.

“Buyer Group”-as defined in Section 5.1.

“Buyer Indemnified Persons”-as defined in Section 11.2.

“Buyer’s Closing Documents”-the Escrow Agreement and the Lease Agreement.

“Cleanup”-all actions to clean up, remove, treat, or in any other way address the presence, Release, or Threat of Release of any Hazardous Material whether or not any expense incurred in connection with such action constitutes a capital expenditure.

“Closing”-as defined in Section 2.3.

“Closing Balance Sheet”-as defined in Section 2.6(a).

“Closing Net Working Capital”-as defined in Section 2.5(a).

“Closing Date”-the date on which the Closing occurs.

“Closing Payment”-as defined in Section 2.2.

“COBRA”-as defined in Section 3.13(d).

“Code”-the Internal Revenue Code of 1986.

“Company”-as defined in the Recitals of this Agreement.

“Confidential Information”-as defined in Section 7.3(a).

“Consent”-any approval, consent, ratification, waiver, or other authorization.

“Contemplated Transactions”-the transactions contemplated by this Agreement.

“Contract”-any agreement, contract, lease, consensual obligation, promise, commitment, or undertaking (whether written or oral and whether express or implied), whether or not legally binding.

“Copyrights”-as defined in Section 3.22(a)(iii).

“Disclosure Letter”-the disclosure letter delivered by Seller to Buyer concurrently with the execution and delivery of this Agreement.

“Employee Plan”-as defined in Section 3.13(a).

“Encumbrance”-any charge, claim, community or other marital property interest, condition, equitable interest, lien, option, pledge, security interest, mortgage, right of way, easement, encroachment, servitude, right of first option, right of first refusal, or similar restriction, including any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership.

“End Date”-as defined in Section 10.1(d).

“Environment”-soil, land surface and subsurface strata, surface waters (including navigable and non-navigable inland and ocean waters), groundwaters, drinking water supply, stream sediments, ambient air (indoor air), plant and animal life, and any other environmental medium or natural resource.

Environmental, Health, and Safety Liability”-any Loss, obligation, or other responsibility resulting from or arising under an Environmental Law or an Occupational Safety and Health Law.

“Environmental Law”-any Legal Requirement that provides for or relates to:

(a)    advising appropriate authorities, employees, or the public with respect to the use of any Hazardous Material, the Release or Threat of Release of Hazardous Material, violation of discharge or emission limits or other prohibitions, or any Hazardous Activity or any activity, such as resource extraction or construction, that could have a significant effect on the Environment;

(b)    preventing or reducing to acceptable levels the Release of Hazardous Material into the Environment;

(c)    reducing the quantities, or minimizing or controlling the hazardous characteristics, of Hazardous Material that are generated;

(d)    assuring that products are designed, formulated, packaged, and used so that they do not present an unreasonable risk to human health or the Environment when used or disposed of;

(e)    protecting the Environment;

(f)    reducing the risks involved in the transportation of Hazardous Material;

(g)    the cleanup of Hazardous Material that has been Released, preventing its Release, or addressing the Threat of Release, or paying the costs of such actions; or

(h)    making a Person compensate any other Person for damage done to its health or property or the Environment or permitting self-appointed representatives of the public interest to recover for injuries done to public assets or resources.

“Equity Security”-in respect of any Person, (a) any capital stock or similar security, (b) any security convertible into or exchangeable for any security described in clause (a), (c) any option, warrant, or other right to purchase or otherwise acquire any security described in clauses (a), (b), or (c), and (d) any “equity security” within the meaning of the Exchange Act.

“ERISA”-the Employee Retirement Income Security Act of 1974.

“Escrow Agent”-as defined in the Escrow Agreement.

“Escrow Agreement”-as defined in Section 2.4(a)(vi).

“Escrow Funds”-as defined in Section 2.2(b).

“Exchange Act”-the Securities Exchange Act of 1934.

“Facilities”-any real property owned or operated or formerly owned or operated by Company and any buildings, plants, structures, or equipment (including motor vehicles, tank cars, and rolling stock) owned or operated or formerly owned or operated by Company.

“Financial Statements”-as defined in Section 3.4.

“GAAP”-generally accepted accounting principles in the United States.

“Governmental Authorization”-any (a) Consent, license, registration, or permit issued, granted, given, or otherwise made available by or under the authority of any Governmental Body or pursuant to any Legal Requirement; or (b) right under any Contract with any Governmental Body.

“Governmental Body”-any:

(a)    nation, state, county, city, town, borough, village, district, or other jurisdiction;

(b)    federal, state, local, municipal, foreign, multinational, or other government;

(c)    governmental or quasi-governmental authority of any nature (including any agency, branch, department, board, commission, court, tribunal, or other entity exercising governmental or quasi-governmental powers);

(d)    body exercising, or entitled or purporting to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power, whether local, national, or international; or

(e)    official of any of the foregoing.

“Hazardous Activity”-the distribution, generation, handling, importing, management, manufacturing, processing, production, refinement, Release, storage, transfer, transportation, treatment, or use of Hazardous Material and any other act, business, operation, or activity that increases the danger, or poses a risk of harm, to the Environment.

“Hazardous Material”-any substance, material, or waste that is or will foreseeably be regulated by any Governmental Body, including any material, substance, or waste that is defined or classified as a “hazardous waste,” “hazardous material,” “hazardous substance,” “extremely hazardous waste,” “pollutant,” “restricted hazardous waste,” “contaminant,” “toxic waste,” “pollutant,” or “toxic substance” under any provision of Environmental Law, including petroleum, petroleum products, asbestos, presumed asbestos-containing material or asbestos-containing material, urea formaldehyde, or polychlorinated biphenyls.

“Indemnified Person”-as defined in Section 11.8(a).

“Indemnifying Person”-as defined in Section 11.8(a).

“Independent Accountants”-as defined in Section 2.6(d).

“Intellectual Property Assets”-as defined in Section 3.22(a).

“Interim Balance Sheet”-as defined in Section 3.4.

“Interim Balance Sheet Date”-as defined in Section 3.4.

“Invention Disclosures”-as defined in Section 3.22(c)(i).

“IRS”-the United States Internal Revenue Service or any successor agency, and, to the extent relevant, the United States Department of the Treasury.

“Knowledge”-

(a)    An individual will be deemed to have Knowledge of a particular fact or other matter if:

(i)    that individual is actually aware of that fact or matter; or

(ii)    a prudent individual could be expected to discover or otherwise become aware of that fact or matter in the course of conducting a reasonably comprehensive investigation regarding the accuracy of any representation or warranty in this Agreement.

(b)    A Person (other than an individual) will be deemed to have Knowledge of a particular fact or other matter if any individual who is serving, or who has at any time served, as a director, officer, partner, manager, executor, or trustee of that Person (or in any similar capacity) has, or at any time had, Knowledge of that fact or other matter (as set forth in clauses (a)(i) and (ii) above).

“Lease Agreement”-as defined in Section 2.4(a)(vii).

“Leased Real Property”-as defined in Section 3.6(b).

“Legal Requirement”-any constitution, law, ordinance, principle of common law, code, rule, regulation, statute, act, treaty, or order of general applicability of any Governmental Body, including rules and regulations promulgated thereunder.

“Loss”-any cost, loss, liability, obligation, claim, cause of action, damage, deficiency, expense (including costs of investigation and defense and reasonable attorneys’ fees and expenses), fine, penalty, judgment, award, assessment, or diminution of value.

“Major Customers”-as defined in Section 3.26

“Major Suppliers”-as defined in Section 3.26.

“Marks”-as defined in Section 3.22(a)(i).

“Material Adverse Change”-with respect to Company, any event, change, development, or occurrence that, individually or together with any other event, change, development, or occurrence, is materially adverse to its business, condition (financial or otherwise), assets, results of operations, or prospects.

“Material Consents”-as defined in Section 8.4.

“Net Names”-as defined in Section 3.22(a)(vii).

“Net Working Capital” means (a) all of Company’s current assets (including current prepaid assets, work in process and current accounts net of allowances for doubtful accounts, but excluding

cash and cash equivalents) arising in the ordinary course of business minus (b) all of Company’s current liabilities, in each case calculated in accordance with GAAP.

“Objection Notice”-as defined in Section 2.6(c).

“Occupational Safety and Health Law”-any Legal Requirement designed to promote safe and healthful working conditions and to reduce occupational safety and health hazards, including the Occupational Safety and Health Act, and any program, whether governmental or private (such as those promulgated or sponsored by industry associations and insurance companies), designed to promote safe and healthful working conditions.

“Order”-any order, injunction, judgment, decree, ruling, assessment, or arbitration award of any Governmental Body or arbitrator.

“Ordinary Course of Business”-an action taken by a Person will be deemed to have been taken in the Ordinary Course of Business only if that action:

(a)    is consistent in nature, scope, and magnitude with the past practices of such Person and is taken in the ordinary course of the normal, day-to-day operations of such Person; and

(b)    does not require authorization by the board of directors of such Person (or by any Person or group of Persons exercising similar authority) and does not require any other separate or special authorization of any nature.

“Organizational Documents”-(a) the articles or certificate of incorporation and the bylaws of a corporation; (b) the certificate of formation and limited liability company agreement, operating agreement, or like agreement of a limited liability company; (c) the partnership agreement and any statement of partnership of a general partnership; (d) the limited partnership agreement and the certificate of limited partnership of a limited partnership; (e) any charter or agreement or similar document adopted or filed in connection with the creation, formation, or organization of a Person; and (f) any amendment to or restatement of any of the foregoing.

“Owned Real Property”-as defined in Section 3.6(a).

“Patents”-as defined in Section 3.22(a)(ii).

“Permitted Encumbrances”-(a) Encumbrances for Taxes and other governmental charges and assessments (except assessments for public improvements levied, pending, or deferred against Owned Real Property) that are not yet due and payable, (b) Encumbrances of carriers, warehousemen, mechanics, and materialmen and other like Encumbrances arising in the Ordinary Course of Business (provided lien statements have not been filed or such Encumbrances otherwise perfected), (c) statutory Encumbrances in favor of lessors arising in connection with any property leased to Company, and (d) Encumbrances disclosed in the Financial Statements.

“Person”-an individual, partnership, corporation, business trust, limited liability company, limited liability partnership, joint stock company, trust, unincorporated association, joint venture, other entity, or a Governmental Body.

“Plan”-as defined in Section 3.13.

“Proceeding”-any action, arbitration, mediation, audit, hearing, investigation, litigation, or suit (whether civil, criminal, administrative, judicial, or investigative) commenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Body or arbitrator.

“Promissory Notes”-as defined in Section 2.2(b).

“Purchase Price”-as defined in Section 2.2.

“Real Property”-as defined in Section 3.6(b).

“Record”-information that is inscribed on a tangible medium or that is stored in an electronic or other medium.

“Related Person”-

(a)    With respect to an individual:

(i)    each other member of such individual’s Family;

(ii)    any Person that is directly or indirectly controlled by such individual or any one or more members of such individual’s Family;

(iii)    any Person in which members of such individual’s Family hold (individually or in the aggregate) a Material Interest; and

(iv)    any Person with respect to which one or more members of such individual’s Family serves as a director, officer, partner, manager, executor, or trustee (or in a similar capacity).

(b)    With respect to a Person other than an individual:

(i)    any Person that directly or indirectly controls, is directly or indirectly controlled by, or is directly or indirectly under common control with, such specified Person;

(ii)    any Person that holds a Material Interest in such specified Person;

(iii)    each Person that serves as a director, officer, partner, manager, executor, or trustee of such specified Person (or in a similar capacity);

(iv)    any Person in which such specified Person holds a Material Interest; and

(v)    any Person with respect to which such specified Person serves as a general partner, manager, or a trustee (or in a similar capacity).

(c)    For purposes of this definition:

(i)    “control” (including “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 shall be construed as such term is used in the rules promulgated under the Exchange Act;

(ii)    the “Family” of an individual includes (A) the individual, (B) the individual’s spouse, (C) any other natural person who is related to the individual or the individual’s spouse within the second degree, and (D) any other natural person who resides with such individual; and

(iii)    “Material Interest” means direct or indirect beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of voting securities or other voting interests representing at least 10% of the outstanding voting power of a Person or Equity Securities representing at least 10% of the outstanding equity interests in a Person.

“Release”-any release, spill, emission, leaking, pumping, pouring, dumping, emptying, injection, deposit, disposal, discharge, dispersal, leaching, or migration on or into the Environment, or into or out of any property.

“Representative”-with respect to a particular Person, includes any director, officer, manager, employee, agent, consultant, advisor, accountant, financial advisor, or legal counsel of such Person.

“Securities Act”-the Securities Act of 1933.

“Seller”-as defined in the first paragraph of this Agreement.

“Seller’s Closing Documents”-the releases specified in Section 2.4(a)(v), the Escrow Agreement, and each other document to be executed or delivered by Seller at the Closing.

“Seller’s Knowledge”-Knowledge of Lawrence E. Ekey and the Knowledge of all employees of PECO as of the Closing Date following reasonable inquiry.

“Seller’s Releases”-as defined in Section 2.4.

“Shares”-as defined in the Recitals of this Agreement.

“Software”-as defined in Section 3.22(a)(v).

“Subsidiary”-with respect to any Person (the “Owner”), any corporation or other Person of which securities or other interests having the power to elect a majority of that corporation’s or other Person’s board of directors or similar governing body, or otherwise having the power to direct the business and policies of that corporation or other Person (other than Equity Securities or other interests having such power only upon the happening of a contingency that has not occurred) are held by the Owner or one or more of its Subsidiaries; when used without reference to a particular Person, “Subsidiary” means a Subsidiary of Company.

“Tax”-any income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, property, environmental, windfall profit, customs, vehicle, airplane, boat, vessel or other title or registration, capital stock, franchise, employees’ income withholding, foreign or domestic withholding, Social Security, unemployment, disability, real property, personal property,

sales, use, transfer, value added, concession, alternative, add-on minimum and other tax, fee, assessment, escheat, unclaimed property, levy, tariff, charge, or duty of any kind whatsoever and any interest, penalty, addition, or additional amount thereon imposed, assessed, or collected by or under the authority of any Governmental Body or payable under any tax-sharing agreement or any other Contract.

“Tax Return”-any return (including any information return), report, statement, schedule, notice, form, declaration, claim for refund, or other document or information filed with or submitted to, or required to be filed with or submitted to, any Governmental Body in connection with the determination, assessment, collection, or payment of any Tax or in connection with the administration, implementation, or enforcement of or compliance with any Legal Requirement relating to any Tax.

“Third Party”-a Person that is not a Party to this Agreement.

“Third-Party Claim”-any claim against any Indemnified Person by a Third Party, whether or not involving a Proceeding.

“Threat of Release”-a reasonable possibility of a Release that could require action (including triggering notification or reporting under Environmental Law) in order to prevent or mitigate damage to the Environment that could result from such Release.

“Trade Secrets”-as defined in Section 3.22(a)(vi).

1.2    Construction. Any reference in this Agreement to an “Article,” “Section,” “Exhibit” or “Schedule” refers to the corresponding Article, Section, Exhibit or Schedule of or to this Agreement, unless the context indicates otherwise. The table of contents and the headings of Articles and Sections are provided for convenience only and are not intended to affect the construction or interpretation of this Agreement. All words used in this Agreement are to be construed to be of such gender or number as the circumstances require. The words “including,” “includes,” or “include” are to be read as listing non-exclusive examples of the matters referred to, whether or not words such as “without limitation” or “but not limited to” are used in each instance. Where this Agreement states that a party “shall,” “will” or “must” perform in some manner or otherwise act or omit to act, it means that the party is legally obligated to do so in accordance with this Agreement. Any reference to a statute is deemed also to refer to any amendments or successor legislation as in effect at the relevant time. Any reference to a Contract or other document as of a given date means the Contract or other document as amended, supplemented and modified from time to time through such date.

2.1    Shares. Subject to the terms and conditions of this Agreement, and in reliance upon the representations, warranties, and covenants contained in this Agreement, at the Closing, Buyer shall purchase the Shares from Seller, and Seller shall sell and transfer the Shares to Buyer, free and clear of any Encumbrance.

2.2    Purchase Price. The purchase price for the Shares (the “Purchase Price”) is Seven Million Two Hundred Fifty Thousand dollars ($7,250,000), plus or minus the Adjustment Amount. At the Closing, Buyer shall deliver as payment on account of the Purchase Price: (a) Six Million Fifty Thousand dollars ($6,050,000) (the “Closing Payment”) which shall be paid by wire transfer to the Seller pursuant to written wire transfer instructions delivered to Buyer by Seller at least three (3) Business Days prior to the Closing; and (b) One Million Two Hundred Thousand dollars ($1,200,000) paid by wire transfer to the Escrow Agent pursuant to the Escrow Agreement (the “Escrow Funds”). The Adjustment Amount shall be paid by Seller or Buyer, as the case may be, in accordance with Section 2.5.

2.3    Closing. Subject to Article 10, the purchase and sale (the “Closing”) provided for in this Agreement will take place at the offices of Buyer at 27601 Bella Vista Parkway, Warrenville, Illinois 60555 commencing at 10:00 a.m. (local time) on April 30, 2014 or at such other date and time as Buyer and Seller may otherwise agree, provided that on or prior to that date all conditions set forth in Articles 8 and 9 have been satisfied or waived. If all conditions set forth in Articles 8 and 9 are not satisfied or waived by April 30, 2014, subject to Article 10, the Closing will take place upon the earlier of (a) five (5) Business Days following notice given by Buyer stating that all conditions set forth in Articles 8 and 9 have been satisfied or waived (other than conditions to be satisfied on the Closing Date), and (b) the End Date. The Closing will be deemed to be effective as of the close of business on the Closing Date for tax and accounting purposes.

2.4    Closing Obligations. At the Closing:

the range established by the amounts in (i) the Closing Balance Sheet and the determination of the Adjustment Amount proposed by Buyer, and (ii) Seller’s proposed adjustments thereto. Such determination will be final, binding, and conclusive on the Parties as of the date of the determination notice sent by the Independent Accountants.

Seller represents and warrants to Buyer as follows:

3.4    Financial Statements. Seller has delivered to Buyer: (a) unaudited consolidated balance sheets of Company as of December 31, 2013 (the “Balance Sheet Date”) and as of December 31, 2012, and the related unaudited consolidated statements of income, changes in shareholders’ equity, and cash flows for each of the two fiscal years ended on such dates, , and (b) an unaudited consolidated balance sheet (the “Interim Balance Sheet”) of Company as of March 31, 2014 (the “Interim Balance Sheet Date”), and the related unaudited consolidated statements of income, changes in shareholders’ equity, and cash flows for the three months then ended (collectively, the “Unaudited Financial Statements”, and together with the Audited Financial Statements, the “Financial Statements”). Seller

has delivered to Buyer an unaudited consolidated balance sheet (the “Interim Balance Sheet”) of Company as of March 31, 2014 (the “Interim Balance Sheet Date”), and the related unaudited consolidated statements of income, changes in shareholders’ equity, and cash flows for the three months then ended (collectively, the “Unaudited Financial Statements”, and together with the “Audited Financial Statements” to be delivered pursuant to Section 7.9 below, the “Financial Statements”). At the time of delivery to Buyer, the Financial Statements will (i) fairly present the consolidated financial condition and the results of operations, changes in shareholders’ equity, and cash flows of Company as at the respective dates of, and for the periods referred to in, the Financial Statements, and (ii) will have been prepared in accordance with GAAP, subject, in the case of the Unaudited Financial Statements, to normal recurring year-end adjustments (the effect of which will not, individually or in the aggregate, be material) and the absence of notes (that, if presented, would not differ materially from those included in the Audited Financial Statements). The Financial Statements will reflect the consistent application of GAAP throughout the periods involved, except as disclosed in the notes to the Audited Financial Statements. No financial statements of any Person other than Company are required by GAAP to be included or reflected in the Financial Statements. The Financial Statements will be prepared from, and are consistent with, the accounting Records of Company. Seller has also delivered to Buyer copies of all letters from Company’s auditors to Company’s board of directors or audit committee thereof during the 36 months prior to the date of this Agreement, together with copies of all responses thereto.

3.8    Accounts Receivable. All accounts receivable of Company, whether or not reflected on the Interim Balance Sheet, represent valid obligations arising from sales actually made or services actually performed in the Ordinary Course of Business. Company’s accounts receivable are current and collectible net of the reserve shown on the Interim Balance Sheet (which reserve is adequate and calculated consistent with practice employed in the preparation of the Audited Financial Statements). Subject to such reserve, each of the accounts receivable either has been or will be collected in full, without any setoff, expense, or other reduction, within 90 days after the day on which it first becomes due and payable. There is no contest, claim, defense, or right of setoff, other than returns in the Ordinary Course of Business, with respect to any account receivable. Part 3.8 of the Disclosure Letter lists and sets forth the aging of all accounts receivable as of the Interim Balance Sheet Date.

3.9    Inventories. All of Company’s inventories, whether or not reflected on the Interim Balance Sheet, consist of a quality and quantity usable and, with respect to finished goods, saleable, in the Ordinary Course of Business. Company is not in possession of any goods not owned by Company. Except as set forth in Part 3.9 of the Disclosure Letter, Company’s inventories (other than goods in transit) are located on the premises of Company. All inventories are valued at the lower of cost or [market] [net realizable] value on a [first-in, first-out] [last-in, first-out] basis consistent with past practice used in the preparation of the Financial Statements. The reserve for obsolescence with respect to inventories [as adjusted for the passage of time,] is adequate and calculated consistent with past practice. Inventories that were purchased after the Interim Balance Sheet Date were purchased in the Ordinary Course of Business at a cost not exceeding market prices prevailing at the time of purchase for items of similar quality and quantity. The quantities of each item of inventory are not excessive, but are reasonable for the continued operation of Company in the Ordinary Course of Business.

3.10    No Undisclosed Liabilities. Except as set forth in Part 3.10 of the Disclosure Letter, Company has no liability or obligation of any nature (whether known or unknown and whether absolute, accrued, contingent, or otherwise) other than liabilities or obligations to the extent shown on the Interim Balance Sheet and current liabilities incurred in the Ordinary Course of Business since the date of the Interim Balance Sheet (none of which relates to a breach of contract, breach of warranty, tort, infringement, environmental, health or safety matter, violation of a Legal Requirement or proceeding brought by a Governmental Body).

Part 3.11(b) of the Disclosure Letter, no issues relating to Taxes have been raised in writing by the IRS or other Governmental Body during any pending audit, and no issues relating to Taxes have been raised in writing by the IRS or other Governmental Body in any audit that could recur in a later taxable period. Except as set forth in Part 3.11(b) of the Disclosure Letter, there is no proposed Tax assessment against Company.

The charges, accruals, and reserves with respect to Taxes on the accounting Records of Company are adequate and are at least equal to Company’s liability for Taxes.

3.12    No Material Adverse Change. Since the Balance Sheet Date, Company has not suffered any Material Adverse Change and no event has occurred, and no circumstance exists, that can reasonably be expected to result in a Material Adverse Change.

Section 414 of the Code or Section 4001(a)(14) or 4001(b) of ERISA. Part 3.13(a) of the Disclosure Letter lists each “employee benefit plan” as defined by Section 3(3) of ERISA, and all specified fringe other employee benefit plans as defined in Section 6039D of the Code, and including all other bonus, incentive-compensation, deferred-compensation, profit-sharing, stock-option, stock-appreciation-right, stock-bonus, stock-purchase, employee-stock-ownership, savings, severance, change-in-control, supplemental-unemployment, layoff, salary-continuation, retirement, pension, health, life-insurance, disability, flexible spending, accident, group-insurance, vacation, holiday, sick-leave, fringe-benefit, or welfare plan, and any other employee compensation or benefit plan, policy, practice, or Contract (whether qualified or nonqualified, effective or terminated, written or unwritten) and any trust, escrow, or other Contract related thereto that (i) is or has been during the six (6) year period immediately preceding the date hereof maintained or contributed to by Company and (ii) provides benefits to, or describes policies or procedures applicable to, any current or former director, officer, employee, or service provider of Company, or the dependents of any thereof, regardless of how (or whether) liabilities for the provision of benefits are accrued or assets are acquired or dedicated with respect to the funding thereof (each, an “Employee Plan”). Part 3.13(a) of the Disclosure Letter identifies as such any Employee Plan that is (x) a plan intended to meet the requirements of Section 401(a) of the Code or (y) a plan subject to Title IV of ERISA. Other than Company, no corporation or trade or business has ever been controlled by, controlling, or under common control with Seller within the meaning of Section 414 of the Code or Section 4001(a)(14) or 4001(b) of ERISA.

of time), obligate Company to pay any separation, severance, termination, or similar benefit to, or accelerate the time of vesting for, change the time of payment to, or increase the amount of compensation due to, any director, employee, officer, former employee, or former officer of Company. There is no Contract providing for payments that could subject any Person to liability under Section 4999 of the Code.

To Seller’s Knowledge, no event has occurred or circumstance exists that could give rise to or serve as a basis for the commencement of any such Proceeding. Seller has delivered to Buyer copies of all pleadings, correspondence, and other documents relating to each pending or threatened Proceeding listed in Part 3.15(a) of the Disclosure Letter. None of the pending or threatened Proceedings listed in Part 3.15(a) of the Disclosure Letter, individually or in the aggregate, will or could reasonably be expected to result in an adverse consequence to Company or in Company incurring Losses of $25,000 or more or being subjected to any Order.

3.16    Absence of Certain Changes and Events. Except as set forth in Part 3.16 of the Disclosure Letter, since the Balance Sheet Date, Company has conducted its business only in the Ordinary Course of Business, and there has not been any:

manager, officer, employee, or consultant or entry into or amendment of any employment, severance, bonus, retirement, loan, or other Contract with any holder of any Equity Security, director, manager, officer, employee, or consultant;

without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, in violation of any Legal Requirement.

benefit of Company or (ii) denial of coverage for a risk otherwise covered by any such insurance policy or bond.

3.19    Environmental Matters.

Except as set forth in Part 3.19 of the Disclosure Letter:

contractor (i) to engage in or continue or perform any conduct, activity, duties, or practice relating to the business of Company or (ii) to assign to Company any rights to any invention, improvement, or discovery. No former or current employee of Company is a party to, or is otherwise bound by, any Contract that in any way adversely affected, affects, or could affect the ability of Company to continue to conduct its business as conducted.

The term “Intellectual Property Assets” means all intellectual property owned, licensed (as licensor or licensee), or used by Company, including:

without payment to any Person. Company is not bound by, and none of the owned Intellectual Property Assets is subject to, any Contract that in any way limits or restricts the ability of Company to use, exploit, assert, or enforce any such Intellectual Property Asset anywhere in the world.

process or know-how used, by Company infringes or is alleged to infringe any patent or other proprietary right of any other Person.

copyright of any Person or is a derivative work based upon the work of any other Person.

All Software owned, licensed, or used by Company (other than commonly available, noncustomized third-party software licensed to Company for internal use on a nonexclusive basis) is listed in Parts 3.22(c), (e), or (f) or 3.17(a)(v) of the Disclosure Letter. Company has all rights necessary to use all copies of all Software used by Company.

3.23    Foreign Corrupt Practices Act, Export Control and Anti-Boycott Laws. Neither Company or any Representative of Company in its capacity as such has violated the Foreign Corrupt Practices Act or the anticorruption laws of any jurisdiction where Company does business. Company has at all times complied with all Legal Requirements relating to export control and trade sanctions or embargoes. Company has not violated the anti-boycott prohibitions contained in 50 U.S.C. Sections 2401 et seq. or taken any action that can be penalized under Section 999 of the Code.

3.24    Relationships with Related Persons. Neither Seller nor any Related Person of Seller or of Company has, any interest in any asset owned or used by Company. Neither Seller nor any Related Person of Seller or of Company is a Related Party of or the owner (of record or beneficially) of any Equity Security or any other financial or profit interest in, a Person that has (a) had business dealings or a material financial interest in any transaction with Company or (b) engaged in competition with Company, other than ownership of less than one percent of the outstanding capital stock of a Person that is listed on any national or regional securities exchange. Except as set forth in Part 3.24 of the Disclosure Letter, neither Seller nor any Related Person of Seller or of Company is a party to any Applicable Contract with, or has any claim or right against, Company.

3.25    Customers and Suppliers. Part 3.25 of the Disclosure Letter lists for each of the five years ending December 31 2009, 2010, 2011, 2012 and 2013, respectively, the names of the respective customers that were, in the aggregate, the five largest customers in terms of dollar value of products or services, or both, sold by Company (“Major Customers”). Part 3.25 of the Disclosure Letter also lists for each such year, the names of the respective suppliers that were, in the aggregate, the five largest suppliers in terms of dollar value of products or services, or both, to Company (“Major Suppliers”). Except as set forth in Part 3.25 of the Disclosure Letter, no Major Customer or Major Supplier has given Company notice (written or oral) terminating, canceling, reducing the volume under, or renegotiating the pricing terms or any other material terms of any Applicable Contract or relationship with Company or threatening to take any of such actions, and, to Seller’s Knowledge, no Major Customer or Major Supplier intends to do so.

(written or oral) of any such product from any Governmental Body. No event has occurred or circumstance exists that (with or without notice or lapse of time) could result in any such liability or recall.

3.27    Brokers or Finders. Neither Seller nor Company, and none of their respective Representatives, has incurred any obligation or liability, contingent or otherwise, for any brokerage or finder’s fee or agent’s commission or other similar payment in connection with this Agreement or the Contemplated Transactions.

3.28    Disclosure. No representation or warranty or other statement made by Seller in this Agreement, the Disclosure Letter, any supplement to the Disclosure Letter, the certificate delivered pursuant to Section 8.3, or otherwise in connection with the Contemplated Transactions contains any untrue statement of material fact or omits to state a material fact necessary to make the statements in this Agreement or therein, in light of the circumstances in which they were made, not misleading.

Buyer represents and warrants to Seller as follows:

4.1    Organization and Good Standing. Buyer is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware.

4.4    Certain Proceedings. There is no Proceeding pending against Buyer that challenges, or could have the effect of preventing, delaying, making illegal, imposing limitations or conditions on, or otherwise interfering with, any Contemplated Transaction. To Buyer’s Knowledge, no such Proceeding has been threatened.

4.5    Brokers or Finders. Neither Buyer nor any of its Representatives has incurred any obligation or liability, contingent or otherwise, for any brokerage or finder’s fee, agent’s commission, or other similar payment in connection with this Agreement or the Contemplated Transactions.

5.1    Access and Investigation. Prior to the Closing Date, and upon reasonable notice from Buyer, Seller shall, and shall cause Company to, (a) afford Buyer and its Representatives and prospective lenders and their Representatives (collectively, “Buyer Group”) full and free access, during regular business hours, to Company’s personnel, assets, Contracts, and Records, (b) furnish Buyer Group with copies of all such Contracts and Records as Buyer may reasonably request, (c) furnish Buyer Group with such additional financial, operating, and other relevant data and information as Buyer may reasonably request, and (d) otherwise cooperate and assist, to the extent reasonably requested by Buyer, with Buyer’s investigation of the business, condition (financial or otherwise), assets, results of operations, or prospects of Company including, without limitation, access to customers of the Company. In addition, Buyer shall have the right to have the Leased Real Property and the tangible personal property of Company inspected by Buyer Group, at Buyer’s sole cost and expense.

5.2    Operation of Company’s Business. Prior to the Closing Date, Seller shall, and shall cause Company to:

5.3 Notice.

satisfaction of any condition in Article 8 impossible or unlikely and of all corrective actions undertaken, or to be undertaken, by Seller with respect thereto. No such notice will be deemed to have cured any Breach of any covenant or affect any right or remedy of Buyer under this Agreement.

5.4    Payment of Indebtedness by Related Persons. Seller shall cause all indebtedness owed to Company by Seller or any Related Person of Seller to be paid in full prior to Closing.

5.5    Exclusive Dealing. Until this Agreement shall have been terminated pursuant to Section 10.1, Seller shall not, and shall cause Company and each of its respective Representatives not to, directly or indirectly, solicit, initiate, encourage, or entertain any inquiries or proposals from, discuss or negotiate with, provide any nonpublic information to, or consider the merits of any inquiries or proposals from any Person (other than Buyer) relating to any business combination transaction involving Seller or Company, however structured, including the sale of the business or assets (other than in the Ordinary Course of Business) of Company, or any Equity Security of Company, or any merger, consolidation, or similar transaction or arrangement. Seller shall notify Buyer of any such inquiry or proposal within 24 hours of receipt thereof by Seller, Company, or any of their respective Representatives.

6.1    Notice.

to the Contemplated Transactions, Buyer, Seller, or Company, including providing testimony, Records, and other information.

other person engaged in a business relationship with Company or Buyer, to (1) terminate, curtail, or otherwise modify its relationship with Company or Buyer or (2) engage in business with a competitor of Company or Buyer, or (B) interfere in any way with the relationship between Company or Buyer, and any of its customers, suppliers, licensors, licensees, or any such prospective customers, suppliers, licensors, or licensees, or any other Person engaged in a business relationship with Company.

inventions and ideas, past, current, and planned research and development, current and planned manufacturing or distribution methods and processes, computer hardware, Software and computer software, database technologies, systems, structures and architectures; and

(h) are less than the estimated aggregate costs of completion of such projects as set forth in Exhibit 11.2(h), Buyer and Seller shall share equally in the costs savings and Buyer shall promptly remit to Seller its share of the cost savings.

Buyer’s obligations to purchase the Shares and to take the other actions required pursuant to this Agreement to be taken by Buyer at the Closing are subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived in whole or in part by Buyer):

8.2    Seller’s Performance. The covenants and obligations that Seller is required to perform or to comply with pursuant to this Agreement at or prior to the Closing will have been duly performed and complied with in all material respects.

8.3    Bring Down Certificate. Buyer will have received a certificate executed by Seller confirming (a) the accuracy of its representations and warranties as of the date of this Agreement and as of the Closing Date in accordance with Section 8.1 and (b) the performance of and compliance with its covenants and obligations to be performed or complied with at or prior to the Closing in accordance with Section 8.2.

8.4    Consents. Each of the Consents identified in Exhibit 8.4 (the “Material Consents”) will have been obtained in form and substance satisfactory to Buyer and will be in full force and effect. Copies of the Material Consents will have been delivered to Buyer.

8.5    Governmental Authorizations. Buyer will have received such Governmental Authorizations as are necessary or which it considers desirable to allow Buyer to acquire and own the Shares and for Company and Buyer to own and operate the business of Company from and after the Closing.

8.6    Additional Documents. Each of the items to be delivered pursuant to Section 2.4(a) and each of the following documents will have been delivered (or tendered subject only to Closing) to Buyer:

8.7    No Proceedings. Since the date of this Agreement, there will not have been commenced or threatened against Buyer, or against any Related Person of Buyer, any Proceeding (a) involving any challenge to, or seeking relief (monetary or otherwise) in connection with, any Contemplated Transaction or (b) that could have the effect of preventing, delaying, making illegal, imposing limitations or conditions on, or otherwise interfering with, any Contemplated Transaction.

8.8    No Claim Regarding Stock Ownership or Sale Proceeds. There will not have been made or threatened by any Third Party any claim asserting that such Third Party (a) is the holder or the beneficial owner of any Equity Security of Company or (b) is entitled to all or any portion of the Purchase Price.

8.9    No Conflict. Neither the consummation nor the performance of any Contemplated Transaction will, directly or indirectly (with or without notice or lapse of time), contravene, conflict with, or violate, or cause Buyer or any Related Person of Buyer to suffer any adverse consequence under, (a) any applicable Legal Requirement or Order or (b) any Legal Requirement or Order that has been published, introduced, or otherwise proposed by or before any Governmental Body.

8.10    No Material Adverse Change. Since the date of this Agreement, Company shall not have suffered any Material Adverse Change and no event will have occurred, and no circumstance will exist, that could result in a Material Adverse Change.

8.11    Closing of FGC Acquisition. Simultaneously with the Closing, Buyer shall acquire all of the equity securities of FGC Corporation in accordance with the terms and conditions set forth in the Stock Purchase Agreement among Buyer, Seller and Elliott M. Drysdale, dated April 28, 2014.

8.12    Bailment Agreement. Buyer shall have entered into a bailment agreement with D’Coil Steel, Inc. in form and substance acceptable to Buyer.

Seller’s obligations to sell the Shares and to take the other actions required pursuant to this Agreement to be taken by Seller at the Closing are subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived in whole or in part by Seller):

9.1    Accuracy of Buyer’s Representations. Each of Buyer’s representations and warranties in this Agreement will have been accurate in all material respects as of the date of this Agreement and will be accurate in all material respects as of the Closing Date as if then made.

9.2    Buyer’s Performance. The covenants and obligations that Buyer is required to perform or to comply with pursuant to this Agreement at or prior to the Closing will have been duly performed and complied with in all material respects.

9.3    Bring Down Certificate. Seller will have received a certificate executed by Buyer confirming (a) the accuracy of its representations and warranties as of the date of this Agreement and as of the Closing Date in accordance with Section 9.1 and (b) the performance of and compliance with its covenants and obligations to be performed or complied with at or prior to the Closing in accordance with Section 9.2.

9.4    Additional Documents. Each of the items to be delivered pursuant to Section 2.4(b) and each of the following documents will have been delivered (or tendered subject only to Closing) to Seller:

9.5    No Legal Prohibition. There will not be in effect any Legal Requirement or Order that prohibits the sale of the Shares by Seller to Buyer or the consummation of any of the other Contemplated Transactions.

10.1    Termination Events. Subject to Section 10.2, by notice given prior to or at the Closing, this Agreement may be terminated as follows:

10.2    Effect of Termination.

Agreement will not relieve any Party from any liability for any Breach of this Agreement occurring prior to termination.

11.2    Indemnification, Payment and Reimbursement by Seller. Seller shall indemnify and hold harmless Buyer, Company and their respective Representatives, shareholders, and Related Persons (collectively, the “Buyer Indemnified Persons”) from, and shall pay to Buyer Indemnified Persons the amount of any Loss that Buyer Indemnified Persons or any of them may suffer, sustain, or become subject to, as a result of, in connection with, or relating to:

11.3    Indemnification, Payment and Reimbursement by Seller: Environmental Matters. In addition to the provisions of Section 11.2, Seller shall indemnify and hold harmless Buyer Indemnified Persons from, and shall pay to Buyer Indemnified Persons the amount of any Loss (including all costs and expenses of any Cleanup (including, without limitation, soil testing, engineering evaluations, fees of experts and reasonable attorneys’ fees) that Buyer Indemnified Persons or any of them may suffer, sustain, or become subject to, as a result of, in connection with, or relating to:

Section 11.8 notwithstanding, Buyer shall be entitled (at its election) to control any Cleanup, any related Proceeding, and, except as provided in the following sentence, any other Proceeding with respect to which relief may be sought under this Section 11.3. The procedure described in Section 11.8, however, will apply to any Third-Party Claim solely for monetary damages relating to a matter covered by this Section 11.3.

11.4    Indemnification, Payment and Reimbursement by Buyer. Buyer shall indemnify and hold harmless Seller from, and shall pay to Seller the amount of, or reimburse Seller for, any Loss that Seller may suffer, sustain, or become subject to, as a result of, in connection with, or relating to:

date that is three years after the Closing Date, Buyer notifies Seller of a claim, specifying the factual basis of the claim in reasonable detail to the extent known by Buyer.

11.7    Right of Setoff. Upon notice to Seller specifying in reasonable detail the basis therefor, Buyer may set off any amount to which it claims to be entitled from Seller, including any amounts that may be owed under this Article 11 or otherwise, against amounts otherwise payable under any provision of this Agreement. The exercise of such right of setoff by Buyer in good faith, whether or not ultimately determined to be justified, will not constitute a default under this Agreement, regardless of whether Seller disputes such setoff claim, or whether such setoff claim is for a contingent or an unliquidated amount. Neither the exercise of, nor the failure to exercise, such right of setoff or give notice of a claim under the Escrow Agreement will constitute an election of remedies or limit Buyer in any manner in the enforcement of any other remedies that may be available to it.

Indemnifying Person does not diligently conduct the defense of a Third-Party Claim, the Indemnified Person may conduct the defense of the Third-Party Claim at the expense of the Indemnifying Person and the Indemnifying Person shall be bound by any determination resulting from such Third-Party Claim or any compromise or settlement effected by the Indemnified Person.

to have payment or reimbursement made from the Escrow Funds pursuant to the terms of the Escrow Agreement, by setoff against amounts otherwise payable under the Promissory Notes or otherwise pursuant to Section 11.7, or in any other manner.

11.9    Other Claims. A claim under this Article 11 for any matter not involving a Third-Party Claim may be made by notice to Seller or Buyer, as the case may be, and shall be indemnified, paid, or reimbursed promptly after such notice. Buyer may elect in its discretion to have payment or reimbursement made from the Escrow Funds pursuant to the terms of the Escrow Agreement, or otherwise pursuant to Section 11.7, or in any other manner.

11.10    STRICT LIABILITY OR INDEMNITEE NEGLIGENCE. THE PROVISIONS IN THIS ARTICLE 11 SHALL BE ENFORCEABLE REGARDLESS OF WHETHER THE LIABILITY IS BASED UPON PAST, PRESENT, OR FUTURE ACTS, CLAIMS, OR LEGAL REQUIREMENTS (INCLUDING ANY PAST, PRESENT, OR FUTURE ENVIRONMENTAL LAW, OCCUPATIONAL SAFETY AND HEALTH LAW, OR PRODUCTS LIABILITY, SECURITIES, OR OTHER LEGAL REQUIREMENT) AND REGARDLESS OF WHETHER ANY PERSON (INCLUDING THE PERSON FROM WHOM RELIEF IS SOUGHT) ALLEGES OR PROVES THE SOLE, CONCURRENT, CONTRIBUTORY, OR COMPARATIVE NEGLIGENCE OF THE PERSON SEEKING RELIEF, OR THE SOLE OR CONCURRENT STRICT LIABILITY IMPOSED UPON THE PERSON SEEKING RELIEF.

12.2    Public Announcements. Notwithstanding any confidentiality obligation to which Buyer is subject, any public announcement, including any press release, communication to employees, customers, suppliers, or others having dealings with Company, or similar publicity with respect to this Agreement or any Contemplated Transaction, will be issued, at such time, in such manner, and containing such content as Buyer determines.

12.4    Further Assurances. The Parties will (a) execute and deliver to each other such other documents and (b) do such other acts and things as a Party may reasonably request for the purpose of carrying out the intent of this Agreement, the Contemplated Transactions, and the documents to be delivered pursuant to this Agreement.

12.5    Entire Agreement. This Agreement supersedes all prior agreements, whether written or oral, between the Parties with respect to its subject matter (including any letter of intent and, upon the Closing, any confidentiality obligation to which Buyer is subject) and constitutes (along with the Disclosure Letter, the exhibits, and the other documents to be delivered pursuant to this Agreement) a complete and exclusive statement of the terms of the agreement between the Parties with respect to the subject matter of this Agreement.

12.6    Modification. This Agreement may only be amended, supplemented, or otherwise modified by a writing executed by the Buyer and the Seller.

12.7    Assignments and Successors. No Party may assign any of its rights or delegate any of its obligations under this Agreement without the prior consent of the other parties. Notwithstanding the foregoing, Buyer may (i) assign its rights under this Agreement to one or more of its Related Persons; (ii) designate one or more of its Related Persons to perform its obligations hereunder; (iii) assign its rights under this Agreement to any purchaser of all or substantially all of the assets of Buyer after the Closing, and /or (iv) collaterally assign its rights under this Agreement to the lenders or financing sources of Buyer. Any purported assignment of rights or delegation of obligations in violation of this Section 12.7 will be void. Subject to the foregoing, this Agreement will apply to, be binding in all respects upon, and inure to the benefit of the heirs, executors, administrators, legal representatives, successors, and permitted assigns of the Parties.

12.8    No Third-Party Rights. Other than the Indemnified Persons and the Parties, no Person will have any legal or equitable right, remedy, or claim under or with respect to this Agreement. This

Agreement may be amended or terminated, and any provision of this Agreement may be waived, without the consent of any Person who is not a Party to the Agreement.

12.9    Remedies Cumulative. The rights and remedies of the Parties are cumulative and not alternative.

12.10    Governing Law. All matters relating to or arising out of this Agreement or any Contemplated Transaction and the rights of the Parties (whether sounding in contract, tort, or otherwise) will be governed by and construed and interpreted under the laws of the State of Illinois without regard to conflicts of laws principles that would require the application of any other law.

12.11    Jurisdiction; Service of Process. Except as otherwise provided in this Agreement, any Proceeding arising out of or relating to this Agreement or any Contemplated Transaction shall be brought in the courts of the State of Illinois, County of DuPage, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of Illinois, and each of the Parties irrevocably submits to the exclusive jurisdiction of each such court in any such Proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of such Proceeding shall be heard and determined only in any such court, and agrees not to bring any Proceeding arising out of or relating to this Agreement or the Contemplated Transactions in any other court. Each Party acknowledges and agrees that this Section 12.11 constitutes a voluntary and bargained-for agreement between the Parties. Process in any Proceeding referred to in the first sentence of this Section or in Section 11.8(d) may be served on any Party anywhere in the world, including by sending or delivering a copy of the process to the Party to be served at the address and in the manner provided for the giving of notices in Section 12.16. Nothing in this Section 12.11 will affect the right of any Party to serve legal process in any other manner permitted by law or at equity.

12.12    Waiver of Jury Trial. EACH PartY, KNOWINGLY, VOLUNTARILY, and INTENTIONALLY, waiveS ITS right to trial by jury in any proceeding arising out of or relating to this Agreement or any Contemplated Transaction, whether sounding in contract, tort, or otherwise.

12.13    Attorneys’ Fees. In the event any Proceeding is brought in respect of this Agreement or any of the documents referred to in this Agreement, the prevailing Party will be entitled to recover reasonable attorneys’ fees and other costs incurred in such Proceeding, in addition to any relief to which such Party may be entitled.

12.14    Enforcement of Agreement. Seller acknowledges and agrees that Buyer would be irreparably harmed if any of the provisions of this Agreement are not performed in accordance with their specific terms and that any Breach of this Agreement by Seller could not be adequately compensated in all cases by monetary damages alone. Accordingly, Seller agrees that, in addition to any other right or remedy to which Buyer may be entitled at law or in equity, Buyer shall be entitled to enforce any provision of this Agreement by a decree of specific performance and to obtain temporary, preliminary, and permanent injunctive relief to prevent Breaches or threatened Breaches, without posting any bond or giving any other undertaking.

12.15    No Waiver. Neither any failure nor any delay by any Party in exercising any right, power, or privilege under this Agreement or any of the documents referred to in this Agreement will operate

as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum extent permitted by applicable Legal Requirements, (a) no claim or right arising out of this Agreement or any of the documents referred to in this Agreement can be waived by a Party, in whole or in part, unless made in a writing signed by such Party or Seller on behalf of Seller; (b) a waiver given by a Party will only be applicable to the specific instance for which it is given; and (c) no notice to or demand on a Party will (i) waive or otherwise affect any obligation of that Party or (ii) affect the right of the Party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the documents referred to in this Agreement.

12.16    Notices. All notices and other communications required or permitted by this Agreement shall be in writing and will be effective, and any applicable time period shall commence, when (a) delivered to the following address by hand or by a nationally recognized overnight courier service (costs prepaid) addressed to the following address or (b) transmitted electronically to the following facsimile numbers marked to the attention of the Person (by name or title) designated below (or to such other address, facsimile number, or Person as a Party may designate by notice to the other Party):

12.17    Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.

IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the date first written above.