INVESTMENT AGREEMENT BY AND AMONG CD&R ALLIED HOLDINGS, L.P., AS INVESTOR, TYCO INTERNATIONAL HOLDING S.A.R.L., AS SELLER, TYCO INTERNATIONAL LTD., AS SELLER PARENT AND ATKORE INTERNATIONAL GROUP INC. DATED AS OF NOVEMBER 9, 2010

unavailable on the terms and conditions contemplated in the Debt Financing Commitments, Investor shall promptly notify Seller and shall use its reasonable best efforts to arrange for alternative financing from alternative sources (1) in an amount such that the aggregate funds that would be available to the Company at the Closing will be sufficient to pay all amounts contemplated by Section 1.3(b) of this Agreement to be paid by it and to perform its obligations hereunder, (2) with conditions to closing and funding of which are not, when taken as a whole, more onerous than those in the Debt Financing Commitments, and (3) which shall not (absent the prior written consent of Seller) include terms that would require Seller’s consent pursuant to Schedule 4.12.  Investor shall promptly (and on a current basis) deliver to Seller true and complete copies of all drafts of any alternative financing commitments (and consider in good faith any changes or comments thereto reasonably proposed by Seller) and all final agreements pursuant to which any such alternative source shall have committed to provide Investor with any portion of the Debt Financing.  For purposes of this Section 4.12, Section 3.6 and Section 4.13, references to “Debt Financing” shall include the financing contemplated by the Debt Financing Commitments as permitted by this Section 4.12 to be amended, modified or replaced and references to “Debt Financing Commitments”, “Fee Letter” and “Engagement Letter” shall include such documents as permitted by this Section 4.12 to be amended, modified or replaced, in each case from and after such amendment, modification or replacement.

(b)           Nothing contained in this Agreement or otherwise shall require, and in no event shall the reasonable best efforts of Investor be deemed or construed to require, Investor to bring any enforcement action against any source of the Financing to enforce its rights under the Financing Commitments, except that (i) Investor shall enforce, including by bringing suit for specific performance, the Equity Financing Commitment solely if Seller seeks and is granted a decree of specific performance of the obligations pursuant to the terms of this Agreement to cause the Equity Financing to be funded to fund the Investment and to consummate the Investment after all conditions to the granting therefor set forth in Section 10.3(b) have been satisfied and (ii) following a written request by Seller, Investor shall use its reasonable best efforts to enforce (including by litigation) its rights under the Debt Financing Commitments to cause the Financing Sources thereunder to, subject to the terms and conditions of the Debt Financing Commitments and the satisfaction or waiver of the conditions in ARTICLE VI hereof, fund the applicable portion of the Debt Financing at the Closing.

4.13                 Debt Financing Cooperation

(a)           Prior to the Closing, Seller shall, and shall cause its Affiliates (including the Company and the Company Subsidiaries) to, and shall use its reasonable best efforts to cause its and their representatives to, provide to Investor such cooperation reasonably requested by Investor to assist Investor in causing the conditions in the Debt Financing Commitment to be satisfied and such cooperation as is otherwise necessary or reasonably requested by Investor in connection with the Company obtaining the Debt Financing in accordance with its terms, including cooperation that consists of:

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(1)           participating in a customary and reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies;

(2)           providing authorization letters to Financing Sources authorizing the distribution of information to prospective lenders or investors;

(3)           executing and delivering any securities purchase agreement, credit agreement, indentures, notes, guarantees, pledge and security documents, supplemental indentures, currency or interest hedging arrangements, other definitive financing documents, a certificate of the chief financial officer of the Business or another officer of Seller Parent or its subsidiaries reasonably satisfactory to the Financing Sources with respect to solvency of the Borrower and its Subsidiaries (after giving effect to the Reorganization) on a consolidated basis, a customary “borrowing base” certificate, and other certificates or documents and back-up therefor and for legal opinions as may be reasonably requested by Investor or Financing Sources (including consents of accountants for use of their reports in any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral; provided that none of the Company or Company Subsidiaries or any of their respective officers or employees shall be required to or execute any document in connection with this Section 4.13(a)(3) which document would be effective at any time before the time that will be immediately prior to the Closing;

(4)           (A) furnishing Investor and its Financing Sources as promptly as practicable with unaudited combined balance sheets and related statements of income and cash flows of the Business prepared in accordance with GAAP for each fiscal quarter ended after the close of its most recent fiscal year and at least 45 days prior to the Closing Date and for the comparable quarter of the prior fiscal year, (B) furnishing Investor and its Financing Sources as promptly as practicable with (I) all financial statements and pro forma financial information prepared in accordance with GAAP, financial data, audit reports and other information regarding the Business of the type that would be required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a registered public offering of non-convertible debt securities of the Company (including for the Company’s preparation of pro forma financial statements), to the extent the same is of the type and form customarily included in an offering memorandum for private placements of non-convertible high-yield bonds under Rule 144A promulgated under the Securities Act, or otherwise necessary to receive from the Company’s independent accountants (and any other accountant to the extent financial statements audited or reviewed by such accountants are or would be included in such offering memorandum) customary “comfort” (including “negative assurance” comfort), together with drafts of customary comfort letters that such independent accountants are prepared to deliver upon Closing, with respect to the financial information to be included in such offering memorandum and which, with respect to any interim financial statements, shall have been reviewed by the Company’s independent accountants as provided in AU 722, and (II) a draft customary “10b-5” disclosure letter with respect to the offering memoranda in respect of the Debt Financing from counsel to the Company; (C) assisting Investor in the preparation of customary rating agency presentations, lender presentations and high yield road show presentations or memoranda, customary bank offering memoranda, syndication memoranda, private offering memoranda, and other marketing materials or memoranda, including business and financial projections reasonably requested by Investor, in each case, required in connection with the Debt Financing (the

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“Offering Materials”) and (D) furnishing Investor and its Financing Sources completed field audits and appraisals satisfactory to Investor’s Financing Sources of the customer Accounts Receivable and Inventory of the Business suitable to be pledged as collateral for an asset-based loan facility to be established pursuant to the Debt Financing Commitments (all such information in this clause (4), together with any replacements or restatements thereof, and supplements thereto, if any such information would go stale or otherwise be unusable for such purposes the “Required Information”);

(5)           using reasonable best efforts to cooperate with Investor and Investor’s efforts to obtain customary and reasonable corporate and facilities ratings, consents, landlord waivers and estoppels, non disturbance agreements, non-invasive environmental assessments, legal opinions, surveys and title insurance (including providing reasonable access to Investor and its representatives to all Owned Real Property and Leased Real Property) as reasonably requested by Investor;

(6)           taking all actions reasonably necessary to (x) permit Financing Sources to evaluate the Company’s and the Company Subsidiaries’ current assets, inventory, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements to the extent customary and reasonable and (y) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, provided that such agreements and arrangements will only be effective upon the Closing;

(7)           granting Financing Sources, on reasonable terms and upon reasonable request, at reasonable times and on reasonable notice, access to the Company’s and the Company Subsidiaries’ respective properties, assets and cash management and accounting systems (including cooperating in and facilitating the completion of field examinations, collateral audits, asset appraisals, surveys, Phase I environmental site assessments and engineering/property condition reports);

(8)           taking all corporate actions reasonably requested by a Financing Source to permit the consummation of the Debt Financing;

(9)           obtaining customary payoff letters, Encumbrance terminations and instruments of discharge to be delivered at Closing to allow for the payoff, discharge and termination in full on the Closing Date of all indebtedness (other than that comprising the Debt Financing); and

(10)         furnishing Investor and its Financing Sources promptly with all documentation and other information which any lender providing or arranging Debt Financing has reasonably requested and that such lender has determined is required by regulatory authorities in connection with such Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act;

provided that (x) nothing in this Section 4.13(a) shall require such cooperation to the extent it would require Seller to waive or amend any terms of this Agreement or agree to pay any fees or reimburse any expenses prior to the Closing for which it has not received prior reimbursement by

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or on behalf of Investor (except to the extent Investor has provided the indemnities set forth in Section 4.13(c)), (y) nothing herein shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere with the ongoing operations of Seller or its Affiliates, and (z) none of Seller or any of its Affiliates or any of their respective representatives shall have any liability under any certificate, agreement, arrangement, document or instrument relating to the Debt Financing except, in the case of the Company and the Company Subsidiaries, upon the Closing.

(b)           Investor shall promptly, upon request by Seller, reimburse Seller for all of its and its Affiliates’ documented reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Seller and its Affiliates in connection with the cooperation of Seller and its Affiliates contemplated by this Section 4.13.

(c)           Seller, its Affiliates and their respective officers, advisors and representatives shall be indemnified and held harmless by Investor for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing and/or the provision of information utilized in connection therewith (other than information provided in writing specifically for such use by or on behalf of Seller or any of its Affiliates) to the fullest extent permitted by applicable Law, other than to the extent any of the foregoing arises from (i) the willful misconduct, gross negligence, or material breach of its obligations of any of Seller, its Affiliates (including the Company and the Company Subsidiaries) or its or their respective directors, officers, employees, attorneys, accountants or other advisors or representatives or (ii) any information provided by or on behalf of Seller or any of its Affiliates (including the Company and the Company Subsidiaries) in connection with the Debt Financing to the extent such information is the subject of any of the representations or warranties set forth in ARTICLE II and where such information would constitute a breach of any such representation or warranty as of the times upon which the accuracy of such representation or warranty is tested pursuant to this Agreement.

(d)           Seller shall or shall cause the Company to supplement the Required Information on a reasonably current basis to the extent that any such Required Information, to the Knowledge of Seller or the Company, when taken as a whole and in light of the circumstances under which such statements were made, contains any material misstatement of fact or omits to state any material fact necessary to make such information not materially misleading.

(e)           With the prior written consent of Seller (not to be unreasonably withheld or delayed) in connection with any proposed use, the Company’s and the Company Subsidiaries’ logos (other than any logo incorporating the “Tyco” name) may be used in connection with the Financing; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of the Company Subsidiaries or the reputation or goodwill of the Company or any of the Company Subsidiaries.

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4.14                 Intellectual Property Assignments

As soon as practicable after the date hereof, Seller shall, at its expense, prepare or cause to be prepared and shall file or cause to be filed, and thereafter use commercially reasonable efforts to pursue in the United States Patent and Trademark Office and those other foreign trademark and patent registries or domestic or foreign registries set forth in Schedule 4.14 assignment documents in substance and form reasonably satisfactory to Investor with respect to the registered and applied for Marks, Patents and Domain Names listed on Schedule 4.14 and to record the Company or a Company Subsidiary as the record and beneficial owner of such registered or applied for Marks, Patents and Domain Names.

4.15                 Internal IT Systems and Data Separation

As soon as practicable after the date hereof, Seller shall, at its expense, use commercially reasonable efforts (and shall cause its Affiliates to use commercially reasonable efforts) to separate logically and physically the Internal IT Systems and data of Seller and the Non-Company Affiliates from the Internal IT Systems and data of the Company and the Company Subsidiaries, in such a manner that the Internal IT Systems and data of the Company and the Company Subsidiaries are not accessible to Seller and its Affiliates and the Internal IT Systems and data of Seller and its Affiliates are not accessible to the Company and the Company Subsidiaries, in each case, after the Closing, except as and to the extent otherwise set forth in the Transition Services Agreement.

4.16                 Preferred Shares Certificate of Designations; Charter and By-Laws

Prior to the Closing, (i) Seller shall cause the Company to file with the Secretary of State of the State of Delaware the Preferred Shares COD and to issue to Seller the Purchased Preferred Shares, and (ii) Seller and Investor shall negotiate in good faith forms of the amendments to the charter, by-laws and board committees (if any) reflecting terms consistent with the board representation rights described in the Stockholders Agreement.

4.17                 Supply Agreement

Promptly following the date hereof, Seller and Investor shall negotiate in good faith a supply agreement to be entered into among Tyco Fire Products, L.P. and the Company and effective as of the Closing which shall incorporate the terms set forth in the term sheet included as Exhibit D hereto (the “Supply Agreement”).

4.18                 Certain Payments

At the Closing, the Company shall, without duplication, (a) pay the CD&R Deal Fee to Clayton, Dubilier & Rice, LLC, (b) pay or, as appropriate, reimburse Investor for the Transaction Expenses, (c) pay the Tyco Deal Fee to Seller (or its designee) and (d) pay all fees and other amounts required to be paid to the Financing Sources pursuant to the Debt Financing Commitments or otherwise in connection with the Debt Financing (the “Debt Financing Fees and Expenses”), in each case by wire transfer of immediately available funds in U.S. dollars to the account (or accounts) designated in writing by Seller, Investor or the Financing Sources, as the case may be, at least two Business Days prior to the Closing.

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4.19                 Further Assurances

Following the Closing, each of Investor, on the one hand, and Seller, on the other hand, shall (and shall cause their Affiliates and their representatives to) from time to time, at the other’s reasonable request, execute and deliver, or cause to be executed and delivered, such further instruments, documents, conveyances or assurances and perform such further acts, as such other party may reasonably require in order to fully effect the Investment and to otherwise consummate the transactions contemplated by this Agreement.

4.20         Certain Leases

Prior to the Closing, Seller shall use its commercially reasonable efforts to cause its Affiliates to enter into the agreements listed in Schedule 4.20 with the Company and/or Company Subsidiaries, which agreements shall be in forms substantially similar to the forms that were previously made available to Investor.  Seller shall use its commercially reasonable efforts to cause the applicable landlords under the related master leases to grant any and all consents required in connection therewith, including as a result of the execution of such agreements and/or the completion of the Investment.

4.21                 Investor Actions

Following the Closing, to the extent Investor has the power to appoint a majority of the members of the board of directors of the Company, Investor shall use its reasonable best efforts to cause the Company to comply with its covenants and agreements hereunder, to the extent such covenants and agreements by their terms contemplate performance after the Closing.

4.22                 Disaster Recovery Systems

Seller shall cause the Company to enter into prior to the Closing (to the extent not already entered into as the date hereof) operating leases in respect of, and the Company shall maintain, two IBM AS400s (which will establish a backup and recovery system for the Internal IT Systems of the Company and the Company Subsidiaries), and the Company shall work diligently to, and Seller shall provide, prior to the Closing, all assistance reasonably requested by the Company to, install such IBM AS400s and implement any corresponding backup and recovery systems for the Internal IT Systems of the Company and the Company Subsidiaries as promptly as reasonably practicable (it being understood and agreed that the implementation of such backup and recovery systems shall not be a condition to the Closing).

ARTICLE V
TAX MATTERS

5.1   Tax Indemnification

(a)           Indemnification by Seller.

(1)           From and after the Closing, Seller and Seller Parent, on a joint and several basis, agree to indemnify the Company Indemnified Parties against, and to hold the Company Indemnified Parties harmless from and to pay, all Losses arising out of (i) any Taxes of the Company or any Company Subsidiary with respect to any Pre-Closing Tax Period, together with any interest, penalty or additions to Tax accruing after the Closing on Taxes

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described in this clause (i); (ii) any Liability of the Company or any Company Subsidiary for the Taxes of any Person (other than the Company or any Company Subsidiary) by reason of (A) being a transferee or successor to such Person prior to the Closing Date, (B) pursuant to Section 1.1502-6 of the Treasury Regulations (or comparable provision under any other applicable Law) by reason of being affiliated with such Person prior to the Closing or (C) by reason of any Contract entered into by such Company or Company Subsidiary prior to the Closing Date but only if, in the case of clauses (A) and (C), such Taxes relate to an event or transaction occurring on or before the Closing Date; (iii) any Taxes attributable to any inaccuracy of or breach by Seller of any representation or warranty made by Seller in Section 2.9; (iv) any Taxes attributable to any failure by Seller to perform or comply with any covenant or agreement in this Agreement relating to Taxes; (v) any Taxes that arise as the result of any inclusion under Section 951 of the Code by the Company or any Company Subsidiary organized in the United States at the end of the taxable year of any Company Subsidiary that is a controlled foreign corporation (as defined under Section 957 of the Code) that includes the Closing Date to the extent such inclusion results from any transactions or activities not in the ordinary course of business occurring between the beginning of the taxable year of such controlled foreign corporation that includes the Closing Date and through the Closing; (vi) any Taxes that arise from the Reorganization and any other transactions or activities contemplated by Section 4.9 and (vii) Liability of the Company or any Company Subsidiary for any Taxes of Seller or any Non-Company Affiliate with respect to any Post-Closing Tax Period; provided, however, that Seller in all events shall have no obligation to indemnify the Company or the Company Subsidiaries under this Section 5.1(a)(1) from and against (A) any Taxes or Losses described in Section 5.1(b) or Section 5.1(c), (B) any Taxes to the extent such Taxes are accrued as a current Liability in Closing Working Capital as finally determined pursuant to Section 1.5, or (C) any Taxes or Losses that arise as a result of the Company filing or causing or permitting any Company Subsidiary to file any amended return or other Tax Return, or taking any action relating to a Tax Return (including the provision of an extension of the period of limitations for assessment of any Tax), after the Closing Date with respect to any Pre-Closing Tax Period, or making any Tax election or effecting any change in Tax accounting method after the Closing Date where such election or change affects a Pre-Closing Tax Period, in each case except as required by applicable Law or if undertaken pursuant to Sections 5.2(b) or Section 5.3(a); provided, further, that if the Company believes any such amended return or other Tax Return, action, election, or change is required under applicable Law, the Company shall provide a copy of such Tax Return or notice in reasonable detail of any such action, election, or change in Tax accounting method at least 30 calendar days prior to the filing or implementation thereof.  If Seller notifies the Company in writing within 10 Business Days of receiving such Tax Return or notice that Seller believes that filing or implementing any such amended return or other Tax return, action, election or change is not required under applicable Law, then the disputed item shall be submitted to one or more tax experts at the Accounting Firm who shall be directed to, within 10 calendar days after such submission, render a decision with respect to whether such item is required under applicable Law, and the Company shall be entitled to proceed with such filing or implementation unless the Accounting Firm decides such filing or implementation is not required under applicable Law.  Such decision shall be final, binding and conclusive on the parties hereto as to whether the Company shall be entitled to proceed with such filing or implementation.  The fees and disbursements of the Accounting Firm shall be shared equally by Seller and the Company, provided that Seller shall reimburse the Company for the Company’s share of such

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fees and disbursements unless the Accounting Firm decides that the filing or implementation by the Company or the applicable Company Subsidiary is not required under applicable Law.  A decision by the Accounting Firm pursuant to this Section 5.1(a)(1) that a filing or implementation by the Company is not required under applicable Law shall not relieve Seller of its indemnification obligations hereunder.  For the avoidance of doubt, Seller shall not be relieved of its indemnification obligation under this Section 5.1(a)(1) as a result of the filing of a Tax Return, making any Tax election or effecting a change in Tax accounting method required pursuant to the resolution of a Tax Claim under Section 5.2(b).

(2)           From and after the Closing Date, Seller agrees to indemnify Investor against, and to hold Investor harmless from and to pay, all Transaction Taxes that are allocated to Seller under Section 5.4.

(b)           Indemnification by the Company.  From and after the Closing Date, the Company agrees to indemnify Investor, Seller and the Non-Company Affiliates against, and to be responsible for, to pay and to hold Investor, Seller and Non-Company Affiliates harmless from, all Losses arising out of (i) Liability of Seller or any Non-Company Affiliate for any Taxes of the Company or Company Subsidiary with respect to any Post-Closing Tax Period (other than those Seller or any Non-Company Affiliate is required to indemnify the Company and Company Subsidiaries against under this Agreement), (ii) any Taxes attributable to any failure by the Company or any Company Subsidiary to perform or comply with any covenant or agreement in this Agreement after the Closing related to Taxes and (iii) any Taxes attributable to any transaction undertaken by the Company or any Company Subsidiary outside the ordinary course of business occurring after the Closing on the Closing Date and not contemplated by this Agreement or directed by Seller or any Non-Company Affiliate prior to the Closing.

(c)           Indemnification by Investor.  From and after the Closing Date, Investor agrees to indemnify Seller and the Non-Company Affiliates against, and to be responsible for, to pay and to hold Seller and the Non-Company Affiliates harmless from, any Transaction Taxes that are allocated to Investor under Section 5.4.

5.2   Procedures Relating to Certain Tax Indemnification

(a)           If a claim for Taxes, including notice of a pending audit, shall be made by any Tax Authority in writing, which, if successful, might result in an indemnity payment pursuant to Section 5.1 (any such claim, a “Tax Claim”), the party which receives such notice shall notify the other party in writing of the Tax Claim within 15 Business Days after receipt of such Tax Claim.  If the party seeking indemnification (the “Tax Indemnified Party”) does not give notice of a Tax Claim to the other party (the “Tax Indemnifying Party”) within such period or in detail sufficient to apprise the Tax Indemnifying Party of the nature of the Tax Claim, the Tax Indemnifying Party shall not be liable to the Tax Indemnified Party to the extent that the Tax Indemnifying Party’s position is prejudiced as a result thereof.

(b)           The Tax Indemnifying Party shall control all proceedings in connection with any Tax Claim (including selection of counsel) and, without limiting the foregoing, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences

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with any Tax Authority with respect thereto, and may either pay the Tax Claim and sue for a refund where applicable Law permits such refund suits or contest such Tax Claim in any permissible manner; provided, however, that (i) the Tax Indemnifying Party shall keep the Tax Indemnified Party regularly informed as to the status of such proceedings and (ii) except as provided in Sections 5.14(b) or 5.2(c), the Tax Indemnifying Party shall not settle or otherwise compromise such Tax Claim to the extent that any such settlement or compromise could reasonably be expected to result in Liability of the Tax Indemnified Party for Taxes with respect to a Post-Closing Tax Period that exceeds $50,000 without the Tax Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, unless the Tax Indemnifying Party indemnifies and holds harmless the Tax Indemnified Party from and against any such Taxes (including the first $50,000 thereof) actually incurred as a result of such settlement or compromise to the extent that such Liability is reasonably anticipated at the time of such settlement or compromise and otherwise would not have been incurred.  Any indemnification payment resulting from application of the foregoing sentence shall be paid (without penalties or interest) at the time such liability for Taxes is actually incurred by the Tax Indemnified Party and the Tax Indemnifying Party shall be deemed to elect not to control any proceedings related to such Taxes arising in a Post-Closing Tax Period.  If any Tax Indemnifying Party elects not to control any proceedings relating to a Tax Claim, the Tax Indemnified Party shall control such proceedings; provided, however, (i) the Tax Indemnified Party shall keep the Tax Indemnifying Party reasonably informed as to the status of such proceedings (including by providing copies of all notices received from the relevant Tax Authority) and the Tax Indemnifying Party shall have the right to review and comment on any correspondence from the Tax Indemnified Party to the relevant Tax Authority prior to submission of such correspondence to the Tax Authority and (ii) the Tax Indemnified Party shall not settle or compromise such Tax Claim without the Tax Indemnifying Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed).

(c)                                  To the extent a settlement or compromise under Section 5.2(b) would adversely affect a carryover of a Tax attribute other than the Allied NOL from a Pre-Closing Tax Period to a Post-Closing Tax Period (such adversely-affected Tax attribute, a “Specified Tax Attribute”), it shall be unreasonable for the Company to withhold consent for a proposed settlement or compromise of such Specified Tax Attribute if the reasonably expected Liability of the Company or any Company Subsidiary for Taxes with respect to any Post-Closing Tax Period resulting from such settlement or compromise, together with the aggregate Liability for such Taxes resulting from any prior settlement or compromise under Section 5.2(b) related to a Specified Tax Attribute, would not in the aggregate exceed $5 million.  In all other cases, reasonableness shall be based on all facts and circumstances, including the technical merits of the Tax Authority’s position and the post-Closing effects on the Company and the Company Subsidiaries.

5.3         Tax Returns

(a)                                  Seller shall timely prepare and file or cause to be timely prepared and filed with the appropriate Tax Authorities all U.S. federal and state income Tax Returns required

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to be filed by or with respect to the Company or any Company Subsidiary, as applicable, for any taxable period ending on or prior to the Closing Date, and shall pay all such Taxes that are Consolidated Taxes or Taxes that are the responsibility of Seller pursuant to Section 5.1(a), and the Company or applicable Company Subsidiary shall pay the remainder of such Taxes.  All such Tax Returns shall be prepared in a manner consistent with most recent past practice, except as otherwise required by applicable Law.  The Company shall timely prepare and file or cause to be timely prepared and filed with the appropriate Tax Authorities all other Tax Returns required to be filed with respect to the Company or any Company Subsidiary, as applicable, and to the extent such Tax Returns are for Pre-Closing Tax Periods, such Tax Returns shall be prepared on a basis consistent with past practice and prior Tax reporting positions (except as otherwise required by applicable Law), and from and after the Closing Date the Company shall provide Seller, at least 30 calendar days prior to the applicable deadline for filing any such Tax Return with respect to a Pre-Closing Tax Period, a copy of the Tax Return for Seller’s review and comment.  Seller shall have 10 Business Days to provide the Company with a statement of any disputed items with respect to such Tax Return.  If the disputed items are not resolved by Seller and the Company within 5 calendar days following Seller’s submission of its statement of disputed items, the matter shall be submitted to one or more tax experts at the Accounting Firm who shall be directed to, within 10 calendar days after such submission, render a decision with respect to all matters in dispute, and such decision shall be final, binding and conclusive on the parties hereto.  The fees and disbursements of the Accounting Firm shall be shared equally by Seller and the Company.  Seller shall pay to the applicable Company Subsidiary, no later than two Business Days prior to the due date therefor, all Taxes of such Company Subsidiary shown as due on any Tax Return not described in the first sentence of this Section 5.3(a) or payable with any applicable extension to the extent such Taxes are attributable to the Pre-Closing Tax Period and not accrued as a current tax payable in the Closing Working Capital as finally determined.

(b)                                 Except as required by applicable Law or if undertaken pursuant to Section 5.2(b) or pursuant to Section 5.3(a), Seller and the Non-Company Affiliates shall not file any amended return or other Tax Return, make any Tax election or effect any change in Tax accounting method with respect to any Pre-Closing Tax Period of the Company or any Company Subsidiary to the extent such action could reasonably be expected to have a cost to the Company or any Company Subsidiary for a Post-Closing Tax Period in excess of $50,000, without the prior written consent of the Company, which may be given or withheld in the Company’s sole discretion, provided that the Company shall consent if Seller agrees to reimburse such cost (including the first $50,000 thereof).  Except as required by applicable Law, or if undertaken pursuant to Section 5.2(b) or pursuant to Section 5.3(a), the Company shall not file or cause or permit any Company Subsidiary to file any amended return or other Tax Return, or take any action relating to a Tax Return (including the provision of an extension of the period of limitations for assessment of any Tax), after the Closing Date with respect to any Pre-Closing Tax Period, or make any Tax election or effect any change in Tax accounting method after the Closing Date where such election or change affects a Pre-Closing Tax Period to the extent such action could reasonably be expected to have a cost to Seller (through an indemnification obligation or otherwise) in excess of $50,000, without the prior written consent of Seller, which may be given or withheld in Seller’s sole discretion,

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provided that Seller shall consent if the Company agrees to reimburse such cost (including the first $50,000 thereof).

(c)                                  Seller and the Company shall reasonably cooperate, and shall cause their respective Affiliates, officers, employees, agents, auditors and representatives reasonably to cooperate, in preparing and filing all Tax Returns relating to the Company or any Company Subsidiary, including by provision of any required power-of-attorney (or other form of authorization), and in maintaining and making available to each other all records necessary in connection with Taxes and in resolving all disputes and audits, and in connection with any other legitimate matters (including, for the avoidance of doubt, (i) reasonable requests for information by Seller or by the Investor, its Affiliates or their employees or representatives, relating to the tax planning of the Company and the Company Subsidiaries and (ii) requests by the Company for Seller to furnish the information set forth in Treasury Regulations Section 1.959-1(d) with respect to any Company Subsidiary that is a controlled foreign corporation (as defined under Section 957 of the Code) as of the Balance Sheet Date) with respect to all taxable periods relating to Taxes.

(d)                                 Any overpayments, refunds or credits of, Taxes attributable to Pre-Closing Tax Periods of the Company and Company Subsidiaries (including in respect of the Straddle Period) for which Seller is responsible pursuant to Section 5.1(a) to the extent not included in Closing Working Capital as finally determined, plus any interest actually received with respect thereto from an applicable Tax Authority (and including refunds or credits in respect of such Taxes arising by reason of amended Tax Returns filed after the Closing Date), shall be for the account of Seller unless such refunds or credits result from a carryback of losses or other Tax attributes from a Post-Closing Tax Period.  The Company shall pay or cause to be paid such amount to Seller less reasonable out-of-pocket expenses incurred in connection with obtaining such refunds less any Taxes incurred by the Company or any Company Subsidiary as a result of such refunds or credits (including interest thereon).  The Company shall, if reasonably requested by Seller and solely at Seller’s cost, use its commercially reasonable efforts to file for, or cause to be filed for, and to obtain the receipt of, any refund to which Seller is entitled under this Section 5.3(d).

5.4         Transaction Taxes

Notwithstanding any other provision of this Agreement to the contrary, all transfer, documentary, sales, use, excise, stamp, registration and other such Taxes imposed by or payable to any jurisdiction or any Governmental Body arising from the transfer of the Preferred Shares to Investor by Seller (collectively, “Transaction Taxes”) shall be borne one half by Investor and one half by Seller.  All necessary Tax Returns with respect to all such Transaction Taxes shall be filed by the Company.  For the avoidance of doubt, Transaction Taxes do not include any Taxes arising from the Reorganization, any recapitalization of the Company prior to the Investment or any transaction contemplated under Section 4.9, which shall be borne exclusively by Seller and Seller Parent and shall be indemnified pursuant to Section 5.1(a).

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5.5         Records Retention

The Company and Seller shall (and shall cause their respective Affiliates to) (i) provide the other party and its Affiliates with such assistance as may be reasonably requested in connection with the preparation of any Tax Return or any audit or other examination by any Tax Authority or any judicial or administrative proceeding relating to Taxes, provided that the foregoing shall be done in a manner so as not to interfere unreasonably with the conduct of the business of the parties, and (ii) retain (and provide the other party and its Affiliates with reasonable access to), until the expiration of the later of (A) the seventh anniversary of the Closing Date, or (B) the date on which Taxes may no longer be assessed under the applicable statute of limitation, including any waivers or extensions thereof, all records or information which may be relevant to such Tax Return, audit, examination or proceeding in a manner consistent with most recent past practice.

5.6         Tax Sharing Agreements

Seller shall release or cause the release of the Company and each Company Subsidiary from any obligation under any agreement relating to the allocation, indemnification or sharing of Taxes other than this Agreement (“Tax Sharing Agreements”) with any Person (other than the Company or any Company Subsidiary) prior to the Closing Date.  For the avoidance of doubt, Seller shall cause each Company and Company Subsidiary to have no obligation under any Tax Sharing Agreement to any Person (other than the Company or any Company Subsidiary) for the payment of Taxes.

5.7         Closing of Tax Years; Straddle Period

To the extent permitted by Law, Seller, the Company and the Company Subsidiaries, as applicable, shall close each taxable period of the Company and each Company Subsidiary as of the Closing Date.  For purposes of this ARTICLE V, in the case of any Straddle Period, the amount of any (i) Taxes based on or measured by income or receipts of the Company and Company Subsidiaries for the Pre-Closing Tax Period and (ii) all other Taxes that otherwise can be reasonably allocated to the Pre-Closing Tax Period shall be determined based on an interim closing of the books as of the close of business on the Closing Date (and for such purpose, the taxable period of any partnership or other pass-through entity in which the Company holds a beneficial interest shall be deemed to terminate at such time).  The amount of any Taxes of the Company and Company Subsidiaries for a Straddle Period to be attributed to the Pre-Closing Tax Period that is not susceptible to allocation based on the methodology described in the preceding sentence shall be determined by multiplying the amount of such Tax for the entire taxable period by a fraction the numerator of which is the number of days in the taxable period ending on the Closing Date and the denominator of which is the number of days in such Straddle Period.

5.8         Waiver of Loss Carrybacks

To the extent permitted under applicable Law, the Company or any Company Subsidiary shall not carry any losses or other Tax attributes arising in any Post-Closing Tax Period in respect of a consolidated, combined or unitary Tax Return to any Pre-Closing Tax Period, provided that in cases where the Company or any Company Subsidiary is required by law to carry such losses or Tax attributes to any Pre-Closing Tax Period before it can carry forward

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such losses or Tax attributes, any net Tax benefit actually realized by Seller or any of its Affiliates shall be remitted by Seller to the Company at the time such Tax benefit is actually realized.

5.9         Consolidated Return Elections

Seller shall make or cause to be made (and shall refrain from making or causing to be made as applicable) Tax elections (including on a protective basis) so that neither the Company nor any Company Subsidiary shall suffer any reduction in tax basis or other attributes pursuant to Treasury Regulations Section 1.1502-36.

5.10                                                   No Section 108(i) Election

Seller shall not make (or permit to be made) any election under Section 108(i) of the Code (or any similar provision under state, local or foreign Law) that applies to any income or deduction realized by the Company or any Company Subsidiary prior to the Closing.

5.11                                                   Computational Matters; Indemnification Cap

(a)                                  The indemnification obligations of Seller, Investor, and the Company pursuant to this ARTICLE V shall, in respect of computational matters, be subject to Section 9.5.

(b)                                 Under no circumstance shall Seller’s aggregate obligation to provide indemnification for matters covered by Section 5.1(a) (but excluding Liabilities described in Section 5.1(a)(1)(ii) and Taxes described in Section 5.1(a)(1)(vii), which shall not be subject to any cap) exceed an amount equal to the sum of (i) 100% of the Tyco Proceeds, (ii) any Losses arising out of Taxes described in Section 5.1(a)(1)(vi) to the extent such Losses are incurred as a result of a modification to the steps set forth on Schedule 4.9(c) and (iii) any Losses arising out of failure to comply with the last sentence of Section 5.3(a).

5.12                                                   Certain Tax Elections

(a)                                  Neither the Company nor Seller shall take any Tax reporting position inconsistent with characterizing the transfer of any Company Subsidiary that is organized under the laws of a jurisdiction other than the United States, any U.S. state or the District of Columbia (other than Abahsain Cope Saudi Arabia Limited) to the Company pursuant to Schedule 4.9(c) as a “qualified stock purchase” within the meaning of Section 338 of the Code.  To the extent permitted by Law, the Company shall make (or cause to be made) a Section 338(g) election with respect to the transfer of any such Company Subsidiary (and lower-tier Affiliates thereof) that are not controlled foreign corporations (as defined under Section 957 of the Code) as of the Balance Sheet Date.

(b)                                 The Company shall not, without the prior written consent of Seller, make (or cause to be made) any election under Treasury Regulation Section ###-###-####-3 to change the U.S. federal tax classification of the Company or any Company Subsidiary where such election would be effective on or before the day after the Closing Date.

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5.13                                                   OFL Allocation

Seller and its Affiliates shall not take any position inconsistent with determining the “overall foreign loss” allocable to the Company and applicable Company Subsidiaries pursuant to Treasury Regulations Section 1.1502-9T(c)(2)(ii) based on the Company’s and applicable Company Subsidiaries’ share of the foreign assets of the applicable U.S. federal consolidated income tax groups at the time the Company and applicable Company Subsidiaries cease to be members of such groups (as opposed to using “values on other dates” as described in the penultimate sentence of Treasury Regulations Section 1.1502-9T(c)(2)(ii)).  For the avoidance of doubt, nothing in this Section 5.13 shall require Seller and its Affiliates to actually determine the “overall foreign loss” allocable to the Company and applicable Company Subsidiaries.

5.14                                                   Preservation and Utilization of Tax Attributes

(a)                                  Neither Seller nor any of the Non-Company Affiliates shall undertake, or cause the Company or any of the Company Subsidiaries to undertake, any transaction outside the ordinary course of business (other than the Reorganization) prior to Closing that would result in a reduction in the consolidated net operating loss otherwise attributable to Allied Tube & Conduit Corp. (“Allied Tube”) under Treasury Regulations Section 1.1502-21(b)(2)(iv) as a result of Allied Tube leaving the Keystone France Holdings Corp. consolidated group during the Tax period that includes the Closing (the “Allied NOL”).

(b)                                 If Investor, together with other entities directly or indirectly managed by Clayton, Dubilier & Rice LLC (or any Affiliate thereof or successor thereto), shall own in the aggregate less than 12.75% of Outstanding Capital Shares (as defined in the Stockholders Agreement) of the Company or any successor thereto at a time that a Tax Indemnifying Party settles or compromises a Tax Claim, and such settlement would result in the utilization or diminution of the portion, if any, of Allied NOL that had not been utilized prior to the date of such settlement or compromise (an “NOL Reduction”), then (i) such Tax Indemnifying Party shall not be required to obtain the consent of the Tax Indemnified Party to settle or otherwise compromise such Tax Claim to the extent such settlement or compromise would result in an NOL Reduction, and (ii) the Tax Indemnifying Party shall not be required to indemnify the Tax Indemnified Party in respect of such NOL Reduction, other than pursuant to Section 5.1(a)(1)(i).

5.15                                                   Registration to Do Business in Illinois

Prior to the Closing, Seller and its Affiliates shall not register (or cause to be registered) the Company, Atkore International Holdings Inc. or the Borrower with the Secretary of State of Illinois for purposes of conducting business in Illinois.

5.16                                                   Exclusivity

To the extent of any inconsistency between this ARTICLE V and ARTICLE IX, this ARTICLE V shall control as to Tax matters.

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ARTICLE VI
CONDITIONS TO THE CLOSING

6.1         Conditions to Obligations of Seller

The obligations of Seller to consummate the purchase and sale of the Purchased Preferred Shares will be subject to the fulfillment (or written waiver by Seller), at or prior to the Closing Date, of each of the following conditions:

(a)                                  Accuracy of Representations and Warranties.  The representations and warranties of Investor contained in this Agreement shall be true and correct in all respects (without giving effect to any qualifications or limitations as to “materiality” or “material adverse effect” included therein) on and as of the date hereof and the Closing Date as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be accurate as of such certain date), except where the failure of such representations and warranties to be true and correct would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Investor’s ability to consummate the transactions contemplated by this Agreement and the Ancillary Agreements.

(b)                                 Compliance with Agreements and Covenants.  All the covenants and agreements contained in this Agreement to be complied with by Investor on or before the Closing will have been complied with in all material respects.

(c)                                  Certificate of Compliance.  Investor shall have delivered to Seller a certificate dated as of the Closing Date, signed by a duly authorized officer of Investor, certifying as to compliance with Section 6.1(a) and Section 6.1(b).

(d)                                 Antitrust Approvals.  All applicable waiting periods and clearances pursuant to the HSR Act and Applicable Non-U.S. Antitrust Approvals shall have unconditionally expired, been terminated or been obtained, as applicable.

(e)                                  No Adverse Order.  No Governmental Body shall have enacted, issued, promulgated, enforced or entered any Law or Governmental Order which is in effect and has the effect of making the transactions contemplated by this Agreement or the Ancillary Agreements illegal or otherwise restraining or prohibiting consummation of such transactions.

(f)                                    Other Agreements.  Investor shall have delivered to Seller copies of each of the Ancillary Agreements, duly executed by and approved in accordance with applicable Law and the organizational documents of Investor.

6.2         Conditions to Obligations of Investor

The obligations of Investor to consummate the purchase and sale of the Purchased Preferred Shares will be subject to the fulfillment (or written waiver by Investor), at or prior to the Closing Date, of each of the following conditions:

(a)                                  Accuracy of Representations and Warranties and Certain Covenant Compliance.  (i)(A) The representations and warranties of Seller contained in this Agreement

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(other than the representations and warranties identified in clause (ii) hereof) shall be true and correct in all respects (without giving effect to any qualifications or limitations as to “materiality” or “Material Adverse Effect” included therein) and (B) the covenants and agreements contained in Section 4.1(b)(18) will have been complied with in all respects, except where the failure of such representations and warranties to be true and correct or the failure of such covenants and agreements to be complied with would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (ii) the representations and warranties in Sections 2.1 (other than the third sentence thereof), 2.2(a), (b), (c) and (e), and 2.18 shall be true and correct in all respects, in the case of the representations and warranties referenced in each of the foregoing clauses (i) and (ii) on and as of the date hereof and the Closing Date as if made on and as of such date (other than representations and warranties which address matters only as of a certain date which shall be accurate as of such certain date).

(b)                                 Compliance with Agreements and Covenants.  The covenants and agreements contained in Section 4.9(a) will have been complied with by Seller on or before Closing in all respects and all the other covenants and agreements contained in this Agreement to be complied with by Seller on or before the Closing (other than those covenants and agreements contained in Section 4.1(b)(18)) will have been complied with in all material respects.

(c)                                  Certificate of Compliance.  Seller shall have delivered to Investor a certificate dated as of the Closing Date, signed by a duly authorized officer of Seller, certifying as to compliance with Section 6.2(a) and Section 6.2(b).

(d)                                 Antitrust Approvals.  All applicable waiting periods and clearances pursuant to the HSR Act and Applicable Non-U.S. Antitrust Approvals shall have unconditionally expired, been terminated or been obtained, as applicable.

(e)                                  No Adverse Order.  No Governmental Body shall have enacted, issued, promulgated, enforced or entered any Law or Governmental Order which is in effect and has the effect of making the transactions contemplated by this Agreement or the Ancillary Agreements illegal or otherwise restraining or prohibiting consummation of such transactions.

(f)                                    Other Agreements.  Seller and the Company shall have delivered to Investor copies of each of the Ancillary Agreements, to the extent a party thereto, duly executed by and approved in accordance with applicable Law and the organizational documents of Seller, the Company and/or their Affiliates (to the extent a party thereto).

(g)                                 [reserved]

(h)                                 Director Resignations.  The members of the Company’s Board of Directors who are not among those directors who will serve on the Board of Directors immediately after the Closing in accordance with the Stockholders Agreement shall have resigned or been removed effective as of the Closing.

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(i)                                     Preferred Shares COD.  The Company shall have filed with the Secretary of State of the State of Delaware the Preferred Shares COD and issued the Purchased Preferred Shares to Seller.

(j)                                     Board Action.  The Board of Directors of the Company shall on the Closing Date (but prior to the Closing) take all actions necessary and appropriate to approve the Debt Financing.

(k)                                  Amended Charter and Bylaws.  The Board of Directors or the Company shall have adopted amendments to the charter, by-laws and committee charters of the Company consistent with the board representation rights described in the Stockholders Agreement.

(l)                                     No Material Adverse Effect.  No change, effect, event, development or occurrence shall exist as of the Closing Date or shall have occurred since the date hereof that has had or would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; provided that for purposes of this Section 6.2(l), all matters disclosed in the Schedules shall be disregarded and not taken into account for purposes of determining whether such Material Adverse Effect has occurred or would be reasonably likely to occur.

6.3         Frustration of Closing Conditions

Neither Seller nor Investor may rely, either as a basis for not consummating the purchase and sale of the Purchased Preferred Shares or terminating this Agreement and abandoning such purchase and sale, on the failure of any condition set forth in Section 6.1 or 6.2, as the case may be, to be satisfied if such failure was caused by such party’s breach in any material respect of any provision of this Agreement or failure to use all the requisite efforts required to consummate the transactions contemplated hereby, as required by and subject to Section 4.2 and any other applicable provisions of this Agreement.

ARTICLE VII
DELIVERIES

7.1         Deliveries by Seller

At the Closing, Seller shall deliver or cause to be delivered to Investor all of the following, and in the case of executed agreements, documents or instruments, in each case executed by a duly authorized representative of the party on such party’s behalf:

(a)                                  share certificates (to the extent such shares are certificated) or such other evidence of ownership of the Purchased Preferred Shares, together with duly executed stock powers or such other documentation evidencing the transfer and assignment of the Purchased Preferred Shares from Seller to Investor, as mutually agreed among Investor and Seller;

(b)                                 the certificate referred to in Section 6.2(c);

(c)                                  executed copies of each of the Ancillary Agreements to which Seller or its Affiliates (other than the Company) is a party; and

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(d)                                 a statement that the Company is not a “United States Real Property Holding Corporation” within the meaning of Section 897(c)(2) of the Code within the five-year period described by Section 897(c)(1) of the Code.

7.2         Deliveries by Investor

At the Closing, Investor shall deliver or cause to be delivered to Seller all of the following, and in the case of executed agreements, documents or instruments, in each case executed by a duly authorized representative of Investor on Investor’s behalf:

(a)                                  the Purchase Price in immediately available funds to an account specified in writing by Seller no later than two Business Days prior to the Closing Date;

(b)                                 the certificate referred to in Section 6.1(c); and

(c)                                  executed copies of each of the Ancillary Agreements to which Investor is a party.

7.3         Deliveries by the Company

At the Closing, the Company shall deliver or cause to be delivered:

(a)                                  to Investor and Seller, executed copies of each of the Ancillary Agreements to which the Company is a party; and

(b)                                 to Seller executed powers of attorney, in the form agreed on by Seller and Investor, relating to all Tax audits of the Company or any Company Subsidiary that are open as of the Closing Date with respect to any Pre-Closing Tax Period, provided, that such powers of attorney shall not affect in any manner Seller’s indemnification obligations under Section 5.1(a) or the procedures relating to tax indemnification in Section 5.2.

ARTICLE VIII
CERTAIN RESTRICTIONS

8.1         Non-Competition

(a)                                  Seller agrees that for the period from the Closing Date until the second anniversary of the date Seller owns less than 50% of the Common Shares they own as of the Closing (the “Non-Competition Period”) they shall not and shall cause the Non-Company Affiliates not to, engage in the Business, as conducted as of the date hereof, in the Restricted Areas (each, a “Competitive Activity”); provided that, the foregoing shall not prohibit Seller or any of its Affiliates from collectively owning (i) the Common Shares or other equity interests in the Company (or any successor entity) or participating in the management of the Company and the Company Subsidiaries pursuant to this Agreement and the Ancillary Agreements or (ii) up to an aggregate of five percent of the outstanding shares of any class of capital stock of any publicly traded Person that engages in any Competitive Activity (a “Competing Person”) so long as neither Seller nor any of its Affiliates has any participation

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in the management (excluding directorships or substantially similar positions) of such Competing Person.

(b)           Notwithstanding anything to the contrary in the foregoing, nothing in this Section 8.1 shall:

(A)          prevent Seller or any of its Affiliates from making a bona fide sale or divestiture of any or all of its assets or businesses to any Person that is not an Affiliate of such Seller, and such Person shall in no way be bound by the restrictions set forth in this Section 8.1;

(B)           prohibit Seller or any of its Affiliates from acquiring the whole or any part of a Person or business which engages in any Competitive Activity or the whole or any part of a business which includes any Competitive Activity; provided, that, where such Competitive Activities of such Person or business represent greater than 30% of the revenues of such Person or business acquired as set out in the latest available annual financial statements of that Person or business, Seller and/or its Affiliates shall be required to use its commercially reasonable efforts to divest such Person, business or portion thereof to the extent engaging in such Competitive Activity within 18 months after the consummation of such acquisition;

(C)           prohibit Seller or any of its Affiliates from acquiring a Minority Investment in a Person or business which engages in, or includes, any Competitive Activity.  As used in this Agreement, the term “Minority Investment” means any minority equity investment by Seller or any of its Affiliates in any Person in which Seller and any of Seller’s Affiliates, as applicable, collectively hold less than 20% of the outstanding voting securities or similar equity interests of such Person entitled to elect the board of directors (or similar governing body) of such Person;

(D)          prevent Seller or any of its Affiliates from selling, distributing, installing, servicing or, to the extent conducted by Seller or the Non-Company Affiliates as of the date hereof, designing, whether individually or as a part of a bundled set of products, in any jurisdiction (A) any product manufactured by the Business, (B) any product similar to those manufactured by the Business (including, e.g., sales under Seller’s or any of its Affiliates’ then current Marks and similar products manufactured by third parties and customized for Seller or any of its Affiliates acting in the capacity of a “private label” distributor or OEM customer), or (C) any product that otherwise incorporates or uses as a component any of the products of the type manufactured by the Business (whether or not procured from the Company or any Company Subsidiaries), so long as in each case such products are not manufactured by Seller or any of its Affiliates, other than on a contract manufacture basis to the extent so manufactured on a contract manufacture basis as of the date hereof; or

(E)           prevent Seller or any of its Affiliates from engaging in any of the activities set forth on Schedule 8.1(b)(E).

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8.2   Non-Solicitation

(a)           Seller and Seller Parent agrees that from and after the date of this Agreement until one year after the Closing Date (the “Non-Solicitation Period”), they shall not, and shall cause the Non-Company Affiliates not to request or induce any Person who is at any time from the date of this Agreement to the Closing Date employed by the Company or any Company Subsidiary as a vice president or higher officer to terminate his or her employment with the Company and the Company Subsidiaries, except in the ordinary course of business, and except for employees that are not Transferred Employees; provided, however, that the foregoing shall not apply (i) to solicitations made by job opportunity advertisements and headhunter searches directed to the general public rather than targeting any employees of the Company or the Company Subsidiaries or (ii) with respect to any employee who has been terminated by the Company or the Company Subsidiaries (or has voluntarily left his or her employment more than six months prior to such solicitation).

(b)           Investor agrees that during the Non-Solicitation Period, it shall not, and it shall cause its Affiliates (including the Company and the Company Subsidiaries) not to, directly or indirectly, request or induce any employee who is not a Transferred Employee or any Person who is at any time during the Non-Solicitation Period employed by Seller or any of its Non-Company Affiliates, in each case, as a vice president or higher officer (whether at the Seller Parent corporate or business division level) with whom it had contact in the course of evaluating and negotiating a possible transaction involving the Company with Seller, to terminate his or her employment with Seller or any of its Non-Company Affiliates; provided, however, that the foregoing shall not apply (i) to solicitations made by job opportunity advertisements and headhunter searches directed to the general public rather than targeting any employees of Seller or any of its Affiliates or (ii) with respect to any employee who has been terminated by Seller or any of its Affiliates, as applicable, (or has voluntarily left his or her employment) more than six months prior to such solicitation.

8.3   Specific Performance

Seller and Investor recognize and affirm that in the event of breach by any such party or its Affiliates of any of the provisions of this ARTICLE VIII, money damages would be inadequate and the other parties would have no adequate remedy at law.  Accordingly, Seller, on the one hand, and Investor, on the other hand, agree that the other party shall have the right, in addition to any other rights and remedies existing in its favor, to enforce its rights and the other party’s obligations under this ARTICLE VIII not only by an action or actions for damages, but also by an action or actions for specific performance, injunction and/or other equitable relief in order to enforce or prevent any violations (whether anticipatory, continuing or future) of the provisions of this ARTICLE VIII.  Seller and Investor agree that the other party is not required to post a bond in order for the other party to secure an injunction.

8.4   Severability

If at any time any of the provisions of this ARTICLE VIII shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to duration, area or scope of activity, or otherwise, then this ARTICLE VIII shall be considered divisible (with the other provisions to remain in full force and effect) and the invalid or unenforceable provisions shall become and be deemed to be immediately amended to include only such time, area, scope of

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activity and other restrictions, as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter, and the parties hereto expressly agree that this Agreement, as so amended, shall be valid and binding as though any invalid or unenforceable provision had not been included herein.  Without limiting the foregoing, if the length of the Non-Competition Period is determined to be unacceptable under applicable Law, the Non-Competition Period shall be modified as determined by a court or other agency of competent jurisdiction or statute, as applicable, to be of the maximum length permitted under applicable Law.

8.5   Use of Intellectual Property

(a)           Except as otherwise provided in this Agreement or an Ancillary Agreement, after Closing, Investor shall, and the Company shall and shall cause the Company Subsidiaries to, refrain from using any Intellectual Property owned by Seller or Seller’s Affiliates (other than Intellectual Property owned by the Company and the Company Subsidiaries).  Without limiting the generality of the foregoing and except as otherwise provided in this Section 8.5, Investor shall, and the Company shall and shall cause the Company Subsidiaries to, specifically refrain from using in any manner the designation “Tyco”, or any variation, derivation, or translation thereof or any related mark or logo, or any name likely to cause confusion with the mark “Tyco” (the “Tyco Designations”).

(b)           As soon as practicable after the Closing, but in no event later than 180 calendar days after Closing, the Company shall, and shall cause the Company Subsidiaries to, remove or render illegible all references to the Tyco Designations appearing on any sales, marketing, advertising, shipping and related materials (including websites and stationery) used in connection with goods and services owned or offered by the Company or Company Subsidiaries, in each case, that are in the possession or under the control of the Company or Company Subsidiaries.  To the extent that any Domain Names or Marks used, registered, or otherwise controlled by the Company or the Company Subsidiaries contain, either alone or in combination, any reference to Tyco Designations or any of Seller’s or Seller’s Affiliates’ (excluding the Company and the Company Subsidiaries) Marks, the Company and each of the Company Subsidiaries shall cease all use thereof promptly after the Closing Date (except as otherwise expressly permitted by this Agreement or an Ancillary Agreement), and as soon as practicable after the Closing Date (but in no event more than 180 calendar days thereafter), abandon all rights in and to such Domain Names and Marks, including abandoning any such registrations and applications for registrations.  Notwithstanding the foregoing, should Investor, following the Closing Date, become aware of any Domain Name registration owned by the Company or any of the Company Subsidiaries that includes or incorporates the Tyco Designations or any of Seller’s or its Affiliates’ marks, Investor shall promptly notify Seller of the existence of such Domain Name registration and, upon Seller’s request, shall, or shall cause its Affiliates to, at the sole cost and expense of Seller (including out-of-pocket expenses and fees, including reasonable attorneys’ fees), assign and transfer all right, title and interest in or to such Domain Name registration to Seller or an Affiliate of Seller.

(c)           Any use of the Tyco Designations by the Company or the Company Subsidiaries pursuant to this Section 8.5 shall: (i) be in conformity with the practices of the Company and the Company Subsidiaries prior to Closing, (ii) be in a manner that does not

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harm or disparage Seller or its Affiliates or the reputation or goodwill of the Tyco Designations, and (iii) be subject to the Company and Company Subsidiaries maintaining the quality of goods and services used in connection with the Tyco Designations at a standard at least as high as that of the goods and services with which the Tyco Designations were used that were offered and sold by the Company and Company Subsidiaries as of Closing.

(d)           Without undue delay after Closing, but in any event not later than within 30 Business Days after the Closing, the Company shall and shall cause the Company and the Company Subsidiaries to execute and file in the relevant offices of such amended organizational documents so that any reference to Tyco Designations shall be eliminated from the corporate names of the Company and Company Subsidiaries and shall as soon as practicable thereafter pursue such name changes until effective.

8.6   Intellectual Property License

(a)           Subject to the terms and conditions of this Agreement, the Company hereby grants, effective as of the Closing, to Seller and its Affiliates a non-exclusive, perpetual, irrevocable, non-sublicensable and non-assignable (except as provided in Section 8.6(b)), royalty-free, fully paid-up, worldwide license, in connection with the current and future operation of their businesses, to use and exercise all rights under all Intellectual Property (other than Marks and Domain Names) that is owned by the Companies and/or Company Subsidiaries and is or was used by Seller and its Affiliates (other than the Companies and/or Company Subsidiaries) as of or prior to the Closing Date, but only to the same extent and manner that Seller and its Affiliates used such Intellectual Property in their businesses as of the Closing Date.

(b)           Seller or its Affiliates may assign or sub-license the license set forth in Section 8.6(a) to any Affiliate, or in connection with a merger, reorganization, or sale of all, or substantially all, of any of the businesses to which this license relates, so long as: (i) the assigning or sublicensing party provides Investor and the Company or its successor or assignee with prompt written notice of such transaction; and (ii) the assignee or sublicensee cannot extend the benefits of this license to its other businesses, provided that no such assignment or sublicense pursuant to this Section 8.6(b) shall relieve the assigning or sublicensing party of its obligations hereunder.

(c)           Subject to the terms and conditions of this Agreement, Seller hereby grants, effective as of the Closing, to the Company and the Company Subsidiaries a non-exclusive, perpetual, irrevocable, non-sublicensable and non-assignable (except as provided in Section 8.6(d)), royalty-free, fully paid-up, worldwide license, in connection with the current and future operation of the Business, to use and exercise all rights under all Intellectual Property (other than Marks and Domain Names) that is owned by Seller or its Affiliates and is or was used by the Company and the Company Subsidiaries in connection with the Business as of or prior to the Closing Date, but only to the same extent and manner that the Company and the Company Subsidiaries used such Intellectual Property in the Business as of the Closing Date.

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(d)           The Company and the Company Subsidiaries may assign or sub-license the license set forth in Section 8.6(c) to any Affiliate, or in connection with a merger, reorganization, or sale of all, or substantially all, of any of the businesses to which this license relates, so long as: (i) the assigning or sublicensing party provides Seller with prompt written notice of such transaction; and (ii) the assignee or sublicensee cannot extend the benefits of this license to its other businesses, provided that no such assignment or sublicense pursuant to this Section 8.6(d) shall relieve the assigning or sublicensing party of its obligations hereunder.

(e)           All rights not expressly granted by a party hereunder or under the Ancillary Agreements are reserved to such party.

ARTICLE IX

INDEMNIFICATION

9.1   Indemnification by Investor

Subject to the other terms, conditions and limitations of this Agreement (including the provisions of ARTICLE V and Sections 9.4, 9.5 and 9.6), from and after the Closing, Investor agrees to indemnify Seller and its Affiliates and its and their officers, directors, employees, agents, successors and assigns (the “Seller Indemnified Parties”) against, and to pay and to hold Seller Indemnified Parties harmless from, all Losses suffered or incurred by any of Seller Indemnified Parties to the extent arising out of:

(a)           any inaccuracy or breach by Investor of any representation or warranty made by Investor in ARTICLE III of this Agreement; and

(b)           any failure by Investor to perform or comply with any of its covenants or agreements in this Agreement (including any other provision set forth herein that requires Investor to indemnify Seller and/or its Affiliates upon the occurrence of certain events as described therein), other than any covenant or agreement set forth in Section 4.21.

9.2   Indemnification by Seller

Subject to the other terms, conditions and limitations of this Agreement (including the provisions of ARTICLE V and Sections 9.4, 9.5 and 9.6), from and after the Closing, Seller and Seller Parent, on a joint and several basis, agree to indemnify (x) in the case of the indemnification under Sections 9.2(a), 9.2(b), 9.2(c), 9.2(e), 9.2(f) and 9.2(g) the Company and the Company Subsidiaries and its and their officers, directors, employees, agents, successors and assigns (the “Company Indemnified Parties”) and (y) in the case of the indemnification under Section 9.2(d), Investor and its officers, directors, employees, agents, successors and assigns (the “Investor Indemnified Parties”) against, and to pay and to hold the Company Indemnified Parties or the Investor Indemnified Parties, as applicable, harmless from, all (or, in the case solely of the indemnification provided by Section 9.2(g), 15% of) Losses suffered or incurred by any of the Company Indemnified Parties or the Investor Indemnified Parties, as applicable, to the extent arising out of:

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(a)           any inaccuracy of or breach by Seller of any representation or warranty made by Seller in ARTICLE II of this Agreement (other than Section 2.2(c) and Section 2.2(e), and Section 2.9 (such Section 2.9 shall be governed by ARTICLE V)) or any failure by Seller or Seller Parent to perform or comply with any covenant or agreement set forth in Section 4.1(b)(18);

(b)           any failure by Seller or Seller Parent to perform or comply with any covenant or agreement in this Agreement (including any other provision set forth herein that requires Seller to indemnify Investor upon the occurrence of certain events as described therein and other than any covenant or agreement in this Agreement relating to Taxes, which shall be governed by ARTICLE V), other than any covenant or agreement set forth in Section 4.1(b)(18);

(c)           the operations and Liabilities of Seller Parent and the Non-Company Affiliates before or after the Closing; provided, however, that this Section 9.2(c) shall not obligate Seller or Seller Parent to indemnify any Company Indemnified Party for any Loss for which a Seller Indemnified Party would be entitled to indemnification under Sections 9.3(b), 9.3(c), or 9.3(d);

(d)           any inaccuracy of or breach by Seller of any representations or warranty made by Seller in Section 2.2(c) or 2.2(e) of this Agreement;

(e)           any modification to the steps set forth in Schedule 4.9(c) as of the date hereof or the failure by Seller or its Affiliates to take or complete any of the steps set forth on Schedule 4.9(c) as of the date hereof (but excluding any matters to the extent indemnification with respect thereto is provided pursuant to ARTICLE V);

(f)            Special Product Claims, other than Losses suffered or incurred by any of the Company Indemnified Parties or Seller Indemnified Parties arising out of Disclosed Claims; provided that the Company Indemnified Parties have suffered Losses after the date hereof in respect of Special Product Claims other than Disclosed Claims (for the avoidance of doubt, including through the satisfaction of the Company’s indemnification obligations under Section 9.3(b)(y) or Section 9.3(c)(y)) in an aggregate amount equal to or greater than the Special Product Deductible; and

(g)           85% SP Claims, (x) to the extent arising out of Disclosed Claims and (y) until such time as the Company Indemnified Parties have suffered Losses after the date hereof in respect of Special Product Claims other than Disclosed Claims (for the avoidance of doubt, including through the satisfaction of the Company’s indemnification obligations under Section 9.3(b)(y) or Section 9.3(c)(y)) in an aggregate amount equal to the Special Product Deductible (at which time Section 9.2(f) shall apply in respect of such Losses arising out of such 85% SP Claims).

Notwithstanding anything in this Agreement to the contrary, solely for determining whether there is an inaccuracy or has been a breach of any representation or warranty for purposes of Section 9.2(a), except with respect to the representations and warranties set forth in the first sentence of Section 2.10, no effect shall be given to any qualification as to “materiality” or

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“Material Adverse Effect” and phrases of similar import so long as the liability to the Company and the Company Subsidiaries that would result from such breach or inaccuracy (without giving effect to any qualification as to “materiality,”  “Material Adverse Effect” and phrases of similar import) would exceed $750,000.

9.3   Indemnification by the Company

Subject to the other terms, conditions and limitations of this Agreement (including the provisions of ARTICLE V and Sections 9.4, 9.5 and 9.6), from and after the Closing, the Company agrees to indemnify the Seller Indemnified Parties against, and to pay and to hold the Seller Indemnified Parties harmless from, all (or, in the case solely of the indemnification provided by Section 9.3(c), 85% of) Losses suffered or incurred by any of the Seller Indemnified Parties to the extent arising out of:

(a)           the operations and Liabilities of the Business, the Company and the Company Subsidiaries before or after the Closing (but excluding Losses in respect of Taxes, which shall be governed by ARTICLE V); provided, however, that this Section 9.3(a) shall not obligate the Company to indemnify any Seller Indemnified Party for any Loss for which a Company Indemnified Party or Investor Indemnified Party would be entitled to indemnification under Sections 9.2(a), 9.2(b), 9.2(d), 9.2(e), 9.2(f) or 9.2(g);

(b)           100% SP Claims (x) to the extent arising out of Disclosed Claims, and (y) until such time as the Company Indemnified Parties have suffered Losses after the date hereof in respect of Special Product Claims other than Disclosed Claims (for the avoidance of doubt, including through the satisfaction of the Company’s indemnification obligations under this Section 9.3(b)(y) or Section 9.3(c)(y)) in an aggregate amount equal to the Special Product Deductible;

(c)           85% SP Claims (x) to the extent arising out of the Disclosed Claims, and (y) until such time as the Company Indemnified Parties have suffered Losses after the date hereof in respect of Special Product Claims other than Disclosed Claims (for the avoidance of doubt, including through the satisfaction of the Company’s indemnification obligations under Section 9.3(b)(y) and this Section 9.3(c)(y)) in an aggregate amount equal to the Special Product Deductible; and

(d)           any failure by the Company to perform or comply with any covenant or agreement in this Agreement to the extent such covenant or agreement is to be performed in whole or in part following the Closing (including any other provision set forth herein that requires the Company to indemnify Seller and/or its Affiliates upon the occurrence of certain events as described therein).

9.4   Limitations on Indemnification

(a)           The representations and warranties set forth in this Agreement, and the right to assert a claim for indemnification with respect thereto pursuant to Section 9.1(a) or 9.2(a) shall survive the Closing until the eighteen month anniversary of the Closing Date and shall thereafter be of no further force or effect; provided, that the representations and warranties in Sections 2.1 (other than the third sentence thereof), 2.2(a), (b), (c) and (e), 2.18,

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3.1 and 3.5 (the “Fundamental Representations”) and the right to assert a claim for indemnification with respect thereto pursuant to Section 9.1(a) or 9.2(a) shall survive the Closing indefinitely and the representations and warranties in Section 2.9 and the right to assert a claim for indemnification with respect thereto pursuant to Section 5.1(a) shall survive the Closing until the expiration of the applicable statute of limitations for assessments plus thirty (30) days, giving effect to any waiver, mitigation or extension of such period.  The covenants and agreements set forth in this Agreement, and the right to assert a claim for indemnification with respect thereto pursuant to Sections 9.1(b), 9.2(a) (in the case of the covenants or agreements set forth in Section 4.1(b)(18)) or 9.2(b) shall not survive the Closing; provided, however, that those covenants and agreements set forth in Section 4.1(a), Section 4.1(b), Section 4.2(c) (to the extent its terms contemplate performance prior to the Closing), Section 4.9, Section 4.11, Section 4.14 and Section 4.15 shall survive the Closing for a period of 18 months, provided, further that those covenants and agreements that by their terms contemplate performance in whole or in part after the Closing shall remain in full force and effect until thirty (30) days the date by which such covenant or agreement is required to be performed.  If a party delivers an indemnification notice to the other party before the expiration of a representation or warranty or covenant or agreement, then the right to assert a claim for indemnification with respect to the applicable representation or warranty or covenant or agreement shall survive until, but only for purposes of, the resolution of the matter covered by such notice.  No claim for indemnification under Section 9.1(a), 9.1(b), 9.2(a) or 9.2(b) may be made after the expiration of the applicable survival period.

(b)           Notwithstanding anything to the contrary contained herein, except with respect to ERISA Affiliate Liabilities and the Fundamental Representations, an Indemnified Party shall not be entitled to indemnification under Section 9.1(a) or 9.2(a) (“Covered Claims”) until such party (together with its Affiliates) shall have incurred (A) with respect to any particular claim or series of related claims based on the same or related facts, an indemnifiable Loss in excess of $250,000 (such amount, the “Minimum Per Claim Amount”), and (B) as to all claims, indemnifiable Losses in excess of an amount equal to 1.5% of the Tyco Proceeds in the aggregate (the “Deductible”).  Seller and the Company shall keep each other reasonably informed on a quarterly basis with respect to any Losses incurred by the Seller Indemnified Parties or Company Indemnified Parties, as applicable, relating to the matters subject to Sections 9.2(f), 9.2(g), 9.3(b) and 9.3(c).

(c)           Except with respect to ERISA Affiliate Liabilities and the Fundamental Representations, an Indemnifying Party shall be obligated to indemnify, defend or hold harmless any Indemnitee with respect to the matters covered by Section 9.1(a) or 9.2(a) only to the extent the aggregate amount of claims to be payable by such Indemnitee exceeds the Deductible and then only to the extent of such amount that is in excess of the Deductible; provided, that, no individual claim or series of related claims based on the same or related facts shall be so asserted unless and until the aggregate amount that would be payable pursuant to each such claim or series of related claims based on the same or related facts exceeds an amount equal to the Minimum Per Claim Amount (it being understood that any such individual claims or series of related claims for amounts less than the Minimum Per Claim Amount shall be ignored in determining whether the Deductible has been exceeded).  Under no circumstance shall Seller’s aggregate obligation to provide indemnification for matters covered by Section 9.2(a) exceed an amount equal to 30% of the Tyco Proceeds.

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(d)           Each of Seller, Seller Parent and Investor acknowledges and agrees that its sole and exclusive post-Closing remedy with respect to any and all claims relating to this Agreement and the transactions contemplated hereby (other than (x) claims arising from fraud, (y) any disputes relating to Closing Working Capital, Closing Cash and/or Closing Indebtedness, which shall be governed by Section 1.5 and (z) claims arising under any Ancillary Agreement) shall be pursuant to the indemnification provisions set forth in ARTICLE V and this ARTICLE IX.  In furtherance of the foregoing, each of Seller, Seller Parent and Investor hereby waives on its own behalf and on behalf of its Affiliates (including in the case of Investor, the Company and the Company Subsidiaries following the Closing), from and after the Closing, to the fullest extent permitted under Law, any and all claims (other than claims arising from fraud and other than any disputes relating to Closing Working Capital, Closing Cash and/or Closing Indebtedness, which shall be governed by Section 1.5) it may have against the other parties hereto or any of their Affiliates arising under or based upon this Agreement or any document or certificate delivered in connection herewith (other than any Ancillary Agreement), except pursuant to the indemnification provisions set forth in ARTICLE V and this ARTICLE IX.  The foregoing notwithstanding, nothing in this Section 9.4(d) shall limit or restrict the ability or right of Investor, the Company or Seller to seek injunctive or other equitable relief for any breach or alleged breach of any provision of this Agreement (subject to the limitations set forth in Sections 10.2 and 10.3); provided that any procedures in respect of and limitations on Losses or Liabilities in ARTICLE V and this ARTICLE IX shall in no event be diminished or circumvented by such relief.

(e)           Notwithstanding any other provision in this Agreement to the contrary, there shall be no right to indemnification hereunder for any Losses (excluding Taxes, which shall be governed by ARTICLE V) that were taken into account in the final determination of Closing Working Capital, Closing Cash or Closing Indebtedness pursuant to Section 1.5.

(f)            Each party shall take, and shall cause its Affiliates to take, actions to mitigate Losses, to the extent required by applicable Law, upon and after becoming aware of any event which could reasonably be expected to give rise to a claim for indemnification hereunder.

(g)           No Indemnitee shall be entitled to recover any amount relating to any matter arising under one provision of this Agreement to the extent such Indemnitee (or other Company Indemnified Parties in the event of a Company Indemnified Party, other Investor Indemnified Parties in the event of an Investor Indemnified Party or other Seller Indemnified Parties in the event of a Seller Indemnified Party) had already recovered such amount with respect to such matter pursuant to that or other provisions of this Agreement.

(h)           Notwithstanding anything herein to the contrary, in no event shall any Indemnifying Party be liable for any damages other than direct damages, including any  incidental, indirect, special, consequential, multiple, exemplary or punitive damages or damages for lost profits, except (i) in the event of fraud or willful misconduct or (ii) to the extent awarded against an Indemnitee pursuant to a claim by a third party.

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9.5   Computation of Indemnity Payments

(a)           The amount payable under this ARTICLE IX in respect of any Loss shall be calculated net of (A) any reserves set forth in the Post-Closing Statement (including the balance sheet delivered in connection therewith), and (B) any insurance proceeds or other amounts under indemnification agreements with third parties actually received by the Indemnitee on account thereof; provided in each case that the Indemnitee shall (and shall cause its Affiliates to) use commercially reasonable efforts to obtain such insurance (and other) recoveries; and provided further that the Company Indemnified Parties shall have no right to assert any claims under this ARTICLE IX with respect to any matters that would have been covered by insurance had the Company and the Company Subsidiaries maintained the same insurance coverage following the Closing that was maintained by the Company and the Company Subsidiaries (to the extent related to the Business) immediately prior to the Closing.  To the extent the Loss (including any Tax) that gives rise to an indemnity payment pursuant to ARTICLE V or this ARTICLE IX is included in income, the indemnitor shall increase such indemnity payment to the applicable Indemnitee to compensate for any Tax detriment to the Indemnitee that is actually realized by it prior to the end of the close of the taxable year in which the fourth anniversary of such indemnity payment occurs (the aggregate of such indemnity payment and such increase, an “Indemnity Payment”).  To the extent the Loss that gave rise to an Indemnity Payment results in a Tax benefit to the Indemnitee that is actually realized by it prior to the end of the close of the taxable year in which the fourth anniversary of such Indemnity Payment occurs, the Indemnitee shall remit to the applicable indemnitor such Tax benefit (determined on a with and without basis) (a “Tax Benefit Payment”); provided that in no event shall the cumulative Tax benefit remitted by the Indemnitee exceed the amount of the applicable Indemnity Payment. If any such Tax benefit is subsequently disallowed prior to the end of the close of the taxable year in which the fourth anniversary of such Tax Benefit Payment occurs, the applicable indemnitor shall make an appropriate reconciliation payment to the Indemnitee.  Notwithstanding the foregoing provisions of this Section 9.5(a), if any cap described in Section 5.11 or 9.4(c), as the case may be, is applicable and has been met, no Tax Benefit Payment shall be required to be made.

(b)           The Indemnitee shall use commercially reasonable efforts to seek full recovery under all insurance policies and/or indemnification agreements covering any indemnifiable Loss to the same extent as the Indemnitee would if such Loss were not subject to indemnification under this Agreement.  In the event that an insurance or other recovery is made at any time after an indemnification payment by the Indemnitee has been made with respect to any indemnified Loss, then, to the extent of the amount of such indemnification payment, a refund equal to the aggregate net amount of the recovery (less the costs of recovery to the Indemnitee) shall be made promptly to the Person or Persons that provided such indemnity payment to such Indemnitee.  The party making any indemnification payment hereunder shall be subrogated to all rights of the Indemnitee in respect of any Losses indemnified by such party.

(c)           No party shall be entitled to indemnification pursuant to ARTICLE IX, to sue for damages or to assert any other right or remedy with respect to any Loss, cause of action or other claim to the extent it is a Loss, cause of action or claim with respect to which such party or any of its Affiliates has taken action (or caused action to be taken) the primary

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purpose of which is to accelerate the time period in which such matter is asserted or payable in order to ensure the applicability of indemnification pursuant to ARTICLE IX.

9.6   Procedures for Indemnification

(a)           Any Person making a claim for indemnification under Section 9.1, Section 9.2 or Section 9.3 (an “Indemnified Party”) shall notify the party against whom indemnification is sought (an “Indemnifying Party”) of the claim in writing promptly after receiving notice of any action, lawsuit, proceeding, investigation, demand or other claim against the Indemnified Party by a third party (a “Third Party Claim”), describing the Third Party Claim, the amount thereof (if known and quantifiable) and the basis thereof in reasonable detail; provided, that, the failure to so notify an Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that (and only to the extent that) such failure shall have caused the indemnifiable Losses to be greater than such Losses would have been had the Indemnified Party given the Indemnifying Party prompt notice hereunder.  Notwithstanding anything to the contrary set forth herein, to the extent a claim for indemnification in respect of a single action, lawsuit, proceeding, investigation or demand or other claim is being sought by both a Company Indemnified Party under Section 9.2(g) and a Seller Indemnified Party under Section 9.3(c), for purposes of this Section 9.6, the sole Indemnifying Party shall be deemed to be the Company.

Any Indemnifying Party shall be entitled to participate in the defense of such Third Party Claim at such Indemnifying Party’s expense, and at its option shall be entitled to assume the defense thereof by appointing a reputable counsel reasonably acceptable to the Indemnified Party to be the lead counsel in connection with such defense; provided that the Indemnified Party shall be entitled to participate in the defense of such Third Party 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 Indemnified Party and shall not be recoverable from such Indemnifying Party under this ARTICLE IX).  Notwithstanding the foregoing, if the Indemnified Party shall have determined in good faith and upon advice of counsel that (a) an actual or likely conflict of interest makes representation of the Indemnifying Party and the Indemnified Party by the same counsel inappropriate or (b) the defendants in, or targets of, any such action or proceeding include both the Indemnified Party and an Indemnifying Party, and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it or to other Indemnified Parties which are different from or additional to those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to direct the defense of such action or proceeding on behalf of the Indemnified Party), then, in each case, the Indemnified Party may, upon notice to the Indemnifying Party, engage separate counsel, and the reasonable fees and expenses of such separate counsel shall be borne by the Indemnifying Party to the extent the Third Party Claim is indemnifiable hereunder (but only to the extent such separate counsel agrees to comply with any written guidelines established by the Indemnifying Party that are applicable to substantially all outside counsel retained by such Indemnifying Party, which guidelines shall be provided to the Indemnified Party promptly upon the Indemnifying Party’s receipt of notice that the Indemnified Party intends to engage separate counsel due to an actual or likely conflict of interest).

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Upon assumption of the defense of any such Third Party Claim by the Indemnifying Party, the Indemnified Party will not pay, or permit to be paid, any part of the Third Party Claim, unless the Indemnifying Party consents in writing to such payment or unless a final judgment from which no appeal may be taken by or on behalf of the Indemnified Party is entered against the Indemnified Party for such Liability.  Notwithstanding anything to the contrary herein, the Indemnifying Party shall not compromise or settle, or admit any Liability with respect to, any Third Party Claim without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld or delayed), unless the relief consists solely of (i) money damages (all of which the Indemnifying Party shall pay except to the extent otherwise provided in Section 9.2 (as it relates to Section 9.2(g)) and Section 9.3) and (ii) includes a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all Liability with respect thereto.

In all cases with respect to Third Party Claims, the parties shall provide reasonable cooperation to each other in defense of such Third Party Claims, including by making employees, information and documentation reasonably available (including for purposes of fact finding, consultation, interviews, depositions and, if required, as witnesses) and providing such information, testimony and access to their books and records, during normal business hours and upon reasonable notice, in each case as shall be reasonably necessary in connection with the contest or defense.

If the Indemnifying Party shall not reasonably promptly assume the defense of any such Third Party Claim, or fails to prosecute or withdraws from the defense of any such Third Party Claim, the Indemnified Party may defend against such matter, at the Indemnifying Party’s expense, in a manner consistent with the above provisions regarding conduct of the defense by the Indemnified Party; provided, that, the Indemnified Party may not settle any such matter without the written consent of the Indemnifying Party (which consent shall not be unreasonably withheld or delayed).

(b)           The Indemnified Party shall notify the Indemnifying Party with respect to a Covered Claim even though the amount thereof plus the amount of other Covered Claims previously notified by the Indemnified Party aggregate is less than the Deductible or the Special Product Deductible, as applicable.

(c)           In the event that any party or any of its Affiliates alleges that it is entitled to indemnification hereunder, and that its claim is covered under more than one provision of this ARTICLE IX, such party or Affiliates shall be entitled to elect the provision or provisions under which it may bring a claim for indemnification.

(d)           A claim for indemnification for any matter not involving a Third Party Claim may be asserted by notice to the party from whom indemnification is sought.

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ARTICLE X

TERMINATION AND WAIVER

10.1                 Termination

This Agreement may be terminated:

(a)           at any time prior to the Closing by the mutual written consent of Seller and Investor;

(b)           by Investor, if Seller breaches or fails to perform in any respect any of its representations, warranties or covenants contained in this Agreement and such breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 6.2, (B) cannot be or has not been cured within 30 days following delivery of written notice of such breach or failure to perform and (C) has not been waived by Investor;

(c)           by Seller, if (x) Investor breaches or fails to perform in any respect any of its representations, warranties or covenants contained in this Agreement and such breach or failure to perform (i) would give rise to the failure of a condition set forth in Section 6.1, (ii) cannot be or has not been cured within 30 days following delivery of written notice of such breach or failure to perform and (iii) has not been waived by Seller, or (y)(i) all of the conditions set forth in Section 6.2 have been satisfied or waived (other than those conditions that by their terms are to be satisfied at the Closing) and (ii) Seller has given notice to Investor in writing that it is prepared and able to consummate the Closing (assuming the Debt Financing would be available at the Closing and the conditions set forth in Section 6.1 that by their terms are to be satisfied at Closing would be satisfied at the Closing), and (iii) Investor fails to consummate the transactions contemplated by this Agreement on the date the Closing should have occurred pursuant to Section 1.4; and

(d)           by Investor or by Seller, upon written notice to the other party, if the Closing has not occurred on or prior to March 15, 2011 (the “Outside Date”).

Notwithstanding anything else contained in this Agreement, the right to terminate this Agreement under this ARTICLE X shall not be available to any party (a) that is in material breach of its representations, warranties, covenants or other agreements set forth herein or (b) whose failure to fulfill its obligations or to comply with its covenants under this Agreement has been the primary cause of, or primarily resulted in, the failure to satisfy any condition to the obligations of the other party hereunder.

10.2                 Effect of Termination

(a)           In the event of termination in accordance with Section 10.1, this Agreement will forthwith become void and there will be no Liability on the part of any party hereto, except that Sections 2.18 and 3.5 relating to brokers’ fees, Section 4.5 relating to confidentiality, Sections 4.13(b) and (c), this Section 10.2, ARTICLE XI and any corresponding definitions set forth in ARTICLE XII, shall survive termination; provided, however, that except as set forth below, nothing herein shall relieve Seller from Liability for any willful breach hereof prior to such termination.

(b)           In the event that this Agreement is terminated pursuant to (i) Section 10.1(c)(x) and, at such time, (x) Seller has confirmed in written notice to Investor that it was prepared to consummate the Closing at such time (assuming the Debt Financing would be available at the Closing and the conditions set forth in Section 6.1 that by their

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terms are to be satisfied or waived at Closing would be satisfied  or waived at the Closing), (y) all the other conditions set forth in Section 6.2 were satisfied or waived (other than those conditions that by their terms are to be satisfied at Closing) and (z) Investor was required to complete the Closing on the Closing Date pursuant to Section 1.4, or (ii) Section 10.1(c)(y), then Investor shall pay Seller an amount equal to $45 million (the “Termination Fee”) provided, that notwithstanding anything to the contrary set forth herein, Investor shall not be required to pay the Termination Fee with respect to the foregoing clause (ii), if the Financing was not available as a result of the failure of the representations and warranties of Seller set forth in clauses (ii), (iii) and (iv) of the last sentence of Section 2.5(a) to be true and correct in all respects (subject to the disclosures set forth in Schedule 2.5).

(c)           In the event the Termination Fee is payable, such fee will be paid to Seller by Investor in immediately available funds within three Business Days after the date of termination of this Agreement.  Solely for purposes of establishing the basis for the amount thereof, and without in any way increasing the amount of the Termination Fee or expanding the circumstances in which the Termination Fee is to be paid, it is agreed that the Termination Fee is liquidated damages, and not a penalty, and the payment of the Termination Fee in the circumstances specified herein is supported by due and sufficient consideration.  While Seller may pursue both a grant of specific performance under Section 10.3(b) and the payment of the Termination Fee under this Section 10.2(c), under no circumstances shall Seller, prior to the Closing, be permitted or entitled to receive both a grant of specific performance which would result in consummation of the Closing and monetary damages in connection with this Agreement or any termination of this Agreement, including all or any portion of the Termination Fee.

(d)           Seller and Investor acknowledge and agree that the agreements contained in this Section 10.2 are an integral part of the transactions contemplated hereby, and that without these agreements, the parties would not have entered into this Agreement.

(e)           Notwithstanding anything to the contrary in this Agreement, if Investor fails to effect the Closing when required by Section 1.4 for any or no reason or otherwise prior to the Closing breaches this Agreement or fails to perform hereunder (in any case, whether willfully, intentionally, unintentionally or otherwise), then, (i) except for the right of Seller to seek an injunction, specific performance or other equitable relief as and only to the extent expressly permitted by Section 10.3(b) and except for the right of Seller to bring a Pre-Closing Damages Proceeding pursuant to the third sentence of this Section 10.2(e), Seller’s and Seller Parent’s sole and exclusive remedy (whether at law, in equity, in contract, in tort or otherwise) against any of the Investor Parties for any pre-Closing breach, loss or damage shall be to terminate this Agreement as provided in Section 10.1(c)(x) or 10.1(c)(y), and receive payment of the Termination Fee, in each case to the extent provided by Section 10.2(b), or with respect to the obligation to pay the Termination Fee, the Guarantee, as applicable and (ii) upon payment of the Termination Fee, as provided in the immediately foregoing clause (i), none of the Investor Parties will have any liability to Seller or any other Person, whether at Law or equity, in contract in tort or otherwise arising from or in connection with pre-Closing breaches by Investor of its representations, warranties, covenants and agreements contained in this Agreement or arising from any claim or cause of action that the Company or any of its Affiliates may have relating to pre-Closing matters

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under this Agreement, including for a breach of Section 1.4 hereof, and no Person will have any rights or claims against any of the Investor Parties relating to any such matters.  Seller agrees to cause any Proceeding pending in connection with this Agreement or any of the transactions contemplated hereby (including any Proceeding related to the Financing, the Equity Financing Commitments, the Debt Financing Commitment or the Guarantee) by Seller or any of its Affiliates and any of their respective former, current or future directors, officers, employees, agents, general or limited partners, managers, members, stockholders or Affiliates (collectively, the “Seller Parties”) against any of the Investor Parties to be dismissed with prejudice promptly after payment of the Termination Fee.  Notwithstanding clause (i) of the second preceding sentence, the parties agree that in the event that (x) Seller has terminated this Agreement pursuant to Section 10.1(c)(x) because of the willful and intentional failure by Investor to perform any of its covenants contained in this Agreement, (y) the Termination Fee is not payable and (z) Seller has sought an injunction, specific performance and/or other equitable relief with respect to the acts or omissions that gave rise to Seller’s ability to terminate this Agreement pursuant to Section 10.1(c)(x) as contemplated by clause (x) of this sentence and such injunction, specific performance and/or other equitable relief was determined by a court of competent jurisdiction to not be available, then Seller shall be entitled to seek monetary damages against Investor and/or under the Guarantee with respect to the acts or omissions that gave rise to Seller’s ability to terminate this Agreement pursuant to Section 10.1(c)(x) as contemplated by clause (x) of this sentence (a “Pre-Closing Damages Proceeding”); provided, that the monetary damages payable by Investor and Guarantor under all Pre-Closing Damages Proceedings shall not to exceed, in the aggregate, the amount of the Termination Fee.  In no event shall any of the Seller Parties seek or permit to be sought on behalf of any Seller Party any damages from, or otherwise bring any Proceeding against, any of the Investor Parties in connection with pre-Closing breaches of this Agreement or any of the pre-Closing transactions contemplated hereby (including any Proceeding related to the Financing, the Equity Financing Commitments, the Debt Financing Commitment or the Guarantee), other than a Pre-Closing Damages Proceeding, when permitted and to the extent set forth in this Section 10.2(e), or a Proceeding to recover payment of the Termination Fee when permitted and to the extent set forth in Section 10.2(b) or for specific performance solely under the circumstances and as specifically set forth in Section 10.3(b).  In no event shall Seller be entitled to seek the remedy of specific performance of this Agreement other than solely under the circumstances and as specifically set forth in Section 10.3(b).  Nothing in this Section 10.2(d) shall in any way expand or be deemed or construed to expand the circumstances in which Investor or any other Investor Party may be liable under this Agreement or any of the transactions contemplated hereby (including the Financing).

(f)            The parties acknowledge and agree that in no event will Investor be required to pay the Termination Fee on more than one occasion.

10.3                 Enforcement

(a)           The parties agree that irreparable damage would occur in the event that either party does not perform or otherwise breaches provisions of this Agreement in accordance with their specific terms and that, subject to the limitations provided in Section 10.2 and this Section 10.3, any such breach of this Agreement could not be

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adequately compensated in all cases by monetary damages alone.  The parties acknowledge and agree that Investor shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement by Seller and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which it is entitled at law or in equity.  Notwithstanding anything herein to the contrary, except as expressly permitted by Section 10.3(b), the parties hereto acknowledge and agree that neither Seller nor any of its Affiliates shall be entitled (i) to an injunction or injunctions to prevent breaches of this Agreement by Investor, (ii) to enforce specifically the terms and provisions of this Agreement against Investor or (iii) otherwise to obtain any equitable relief or remedy against Investor.

(b)           Subject to the last sentence of Section 10.2(c), it is acknowledged and agreed that Seller shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof (including any expense reimbursement and indemnification obligations).  Notwithstanding the foregoing, Seller shall be entitled to specific performance of Investor’s obligations pursuant to the terms of this Agreement to cause the Equity Financing to be funded to fund the Investment and to consummate the Investment only in the event that each of the following conditions has been satisfied: (i) Investor is required to complete the Closing on the Closing Date pursuant to Section 1.4, (ii) the Debt Financing has been funded or will be funded at the Closing if the Equity Financing is funded at the Closing, (iii) Investor fails to complete the Closing in accordance with Section 1.4 and (iv) Seller has irrevocably confirmed that if specific performance is granted and the Equity Financing and Debt Financing are funded, and Investor otherwise complies with its obligations hereunder, then the Closing will occur.