STOCK PURCHASE AGREEMENT RELATING TO IDAHO PACIFIC HOLDINGS, INC. AMONG IPH ACQUIRER INC. 7820429 CANADA INC. VARISTAR CORPORATION AND OTTER TAIL CORPORATION May 6, 2011 TABLE OF CONTENTS

Section 1.1         Defined Terms The following terms when used in this Agreement, including its preamble and recitals, shall, except where the context otherwise requires, have the following meanings (such meanings to be equally applicable to the singular and plural forms thereof):

therein), general conditions in the financial markets in the United States or any other country (or changes therein), including fluctuations in prevailing exchange and/or interest rates, and general political conditions in the United States or any other country (or changes therein), in any such case to the extent that such conditions do not have a materially disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, relative to other companies similarly situated in the industries or geographies in which the Company and its Subsidiaries operate; (b) general conditions in the industries in which the Company and its Subsidiaries conduct business (or changes therein), in any such case to the extent that such conditions do not have a materially disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, relative to other companies similarly situated in such industries; (c) any conditions arising out of acts of terrorism, armed hostilities or war, weather conditions or other force majeure events to the extent that such conditions do not have a materially disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, relative to other companies similarly situated in the industries or geographies in which the Company operates; (d) the announcement of the Purchase Agreements, the consummation of the transactions contemplated by the Purchase Agreements, any action required to cause compliance with the terms of, or the taking of any action expressly required by, either of the Purchase Agreements or any action approved or consented to in writing by Buyer; (e) any changes after the date hereof in GAAP or accounting requirements applicable to the industries in which the Company or its Subsidiaries conduct business (or the interpretation of any of the foregoing); (f)  any failure by the Company or any of its Subsidiaries to meet their internal budgets, plans or forecasts of their respective financial performance (but, in each case, not the underlying cause of such failure or the effects therefrom, to the extent any such cause is independently a Material Adverse Effect); or (g) any breach by Buyer of this Agreement or by ###-###-#### of the Agrawest Acquisition Agreement.

under the Agrawest Acquisition Agreement have been assigned to another party), but  excluding each of the following: (i) the current portion of any long-term Indebtedness and any outstanding checks (including issued checks) and checks written from and to the Company or any of its Subsidiaries (other than the Canadian Subsidiaries), (ii) income Taxes of the Company and its Subsidiaries, (iii) Taxes arising in respect of the Agrawest Transaction or in respect of any stock dividends paid by AWI immediately before the AWI Closing (as defined in the Agrawest Acquisition Agreement) and (iv) the Closing Debt.

Section 2.1         Agreement to Sell    At the completion of the sale and purchase of the Company Shares as contemplated hereby (the “Closing”), Seller shall grant, sell, convey, assign, transfer and deliver to Buyer, upon and subject to the terms and conditions of this Agreement, the Company Shares, free and clear of all Encumbrances.

Section 2.2         Agreement to Purchase  At the Closing, Buyer shall purchase all of the Company Shares from Seller, upon and subject to the terms and conditions of this Agreement and in reliance on the representations, warranties and covenants of Seller contained herein, in exchange for the Final Purchase Price.

Section 2.3         Estimated Purchase Price and Final Purchase Price

the day prior to the Closing Date (the “Estimated Working Capital”), (ii) Seller’s good faith estimate of the amount of the Indebtedness as of the close of business on the day prior to the Closing Date (the “Estimated Indebtedness”) and (iii) the amount of Closing Debt (based on the payoff letters delivered by Seller to Buyer pursuant to Section 2.3(b)), upon which the Parties acknowledge that the Estimated Purchase Price shall be based. To the extent that the Estimated Working Capital is greater or less than the Target Working Capital, the Estimated Purchase Price shall be increased or decreased, as the case may be, on a dollar-for-dollar basis.

disputed items submitted to the Independent Accounting Firm that is unsuccessfully disputed (as finally determined by the Independent Accounting Firm) bears to the total amount of disputed items so disputed.

pay to Seller an amount equal to the Working Capital Excess and/or the Indebtedness Shortfall, as the case may be, within five (5) Business Days following the date of final determination of the Closing Balance Sheet pursuant to Section 2.4(f)(ii). The Estimated Purchase Price, as adjusted pursuant to this Section 2.4, shall be deemed to be the Final Purchase Price. In the event payments are required to be made by both Seller to Buyer and Buyer to Seller pursuant to this Section 2.4, such payments shall be discharged by set off, with the debtor of the larger amount to be paid pursuant to this Section 2.4 making payment of the net amount of such payment to the other party after deduction of the amount owed by the other party pursuant to this Section 2.4. Any payment under this Section 2.4 shall be made by wire transfer of immediately available funds to one or several accounts designated by the party entitled to the payment.

Section 2.5         Escrow    At the Closing, an amount equal to three million dollars ($3,000,000) (the “Escrow Amount ”) will be withheld from the Estimated Purchase Price and deposited by Buyer into the Escrow Account, such Escrow Amount to be held in escrow and dealt with by the Escrow Agent pursuant to the terms of the Escrow Agreement. The Escrow Amount shall be so placed in escrow for the purpose of securing the performance by Seller and Seller Parent of their indemnification obligations set forth in Article IX hereof. The Escrow Amount shall be distributed to Seller or to Buyer Group in accordance with the terms of the Escrow Agreement.

Section 3.1         Time and Place   On the terms and subject to the conditions set forth in this Agreement, the Closing shall take place at Seller’s offices at 4334 18th Avenue South, Suite 200, Fargo, North Dakota 58103, on the day following the closing of the Agrawest Transaction (the “Closing Date”), or at such other place and on such other date as may be mutually agreed by Buyer and Seller, in which case Closing Date means the date so agreed.  The Closing will be effective as of 12:01 a.m. on the Closing Date.  The parties hereto acknowledge and agree that prior to the Closing, the Estimated Purchase Price (as defined in the Agrawest Transaction Agreement) shall have been distributed from the Company to Seller.

Section 4.1         Incorporation; Power and Authority; Qualification    The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. The Company has the requisite power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted, and is duly qualified to do business as a foreign entity in each jurisdiction where the character of the property owned or leased by it or the nature of its activities makes such qualification necessary, except where the failure to be so qualified, individually or in the aggregate, is not or would not reasonably be expected to be material to the Company and its Subsidiaries taken as a whole.  Section 4.1 of the Disclosure Schedule sets forth a list of each jurisdiction (i) in which the Company is qualified to do business as a foreign entity and (ii) in which its assets or employees are located. True, correct and complete copies of the certificate of incorporation and bylaws of the Company, each as currently in effect, have been provided to Buyer or made available in the Data Room.

Section 4.2         Capitalization     The authorized capital stock of the Company consists of 49,850 shares of capital stock, of which (i) 25,750 shares are designated as Class A common stock, par value $0.01 per share (the “Class A Common Stock”), of which 10,002 shares are issued and outstanding, (ii) 8,250 shares are designated as Class B common stock, par value $0.01 per share (the “Class B Common Stock”), none of which are outstanding, and (iii) 15,850 shares are designated as preferred stock, par value $0.01 per share (the “Preferred Stock”), none

of which are outstanding.  All of the issued and outstanding shares of Class A Common Stock of the Company are held of record by Seller, free and clear of any Encumbrances. The authorized capital stock of AWI consists of an unlimited number of common shares without par value, of which one common share is outstanding. Except as set forth in Section 4.2 of the Disclosure Schedule, there are no outstanding or authorized options, warrants, purchase rights, subscription rights, conversion rights, exchange rights or other contracts or commitments that would require the Company to issue, sell or otherwise cause to become outstanding any of its capital stock.  There are no outstanding or authorized stock appreciation, phantom stock, profit participation or similar rights with respect to the Company. Excluding any actions by Buyer Group, (i) immediately following the Closing, Buyer will be the sole beneficial owner of all of the issued and outstanding shares in the capital of the Company and (ii) as a result of the completion of the Agrawest Transaction, 7820429 will be the sole beneficial owner of all of the issued and outstanding shares in the capital of AWI, in each case free and clear of any Encumbrances (other than any Encumbrances created by, or suffered  to exist against, Buyer Group).

Section 4.5         Government Authorizations  Except as set forth in Section 4.5 of the Disclosure Schedule, the Company or its Subsidiaries, as applicable, possess all permits, licenses, waivers, authorizations, approvals and certificates from Governmental Entities which are necessary to conduct their business in the manner in which it is presently being conducted, except for those the absence of which would be immaterial to the Company and its Subsidiaries, taken as a whole (the “Authorizations”).  The Authorizations are valid, in good standing and in full force and effect, and the Company and its Subsidiaries, as applicable, are in compliance in all material respects with each such Authorization, except for any non-compliance as would be immaterial to the Company and its Subsidiaries, taken as a whole, or that would not reasonably be expected to result in a loss or non-renewal of the Authorization.

Section 4.6         Financial Statements   Attached hereto as Section 4.6 of the Disclosure Schedule are true and complete copies of (i) the unaudited consolidated balance sheet of the Company as of March 31, 2011 (the “Latest Balance Sheet”) and the unaudited consolidated statement of income of the Company for the three-month period ended March 31, 2011 (such statements and the Latest Balance Sheet, the “Latest Financial Statements”), (ii) the audited consolidated balance as of September 30, 2010 (the “Audited Balance Sheet Date”) of the Company (the “Audited Balance Sheet”) and the audited consolidated statement of income of the Company for the nine-month period then ended (such statement and the Audited Balance Sheet, the “Audited Financial Statements”) and (iii) the unaudited consolidated balance sheets as of December 31, 2009 and December 31, 2010 (the “Last Year End”) of the Company and the unaudited consolidated statements of income for the fiscal years ended December 31, 2009 and December 31, 2010 (collectively, the “Annual Financial Statements”). The Annual Financial Statements were prepared in connection with the preparation of the audited consolidated balance sheets and statements of income of Seller Parent for each of such fiscal years.  The Latest Financial Statements, the Audited Financial Statements and the Annual Financial Statements:

Section 4.7         Absence of Certain Changes  Except (i) as set forth in Section 4.7 of the Disclosure Schedule, (ii) as clearly contemplated or required by the Purchase Agreements, and (iii) for the distribution of the purchase price for the AWI Shares to be paid pursuant to the Agrawest Acquisition Agreement from the Company to Seller following the completion of the Agrawest Transaction, since the Audited Balance Sheet Date, the Company and its Subsidiaries have conducted their business in the ordinary course of business consistent with past practices and have not entered into any material transaction other than in the ordinary course of business consistent with past practices, and, without limiting the generality of the foregoing, none has:

Section 4.8         Absence of Undisclosed Liabilities  The Company and its Subsidiaries have no liabilities or obligations, whether accrued, absolute, asserted or unasserted, contingent or otherwise that are required to be disclosed in financial statements prepared in accordance with GAAP (“Liabilities”), except as and to the extent reflected or reserved for in the Annual Financial Statements, the Audited Financial Statements or the Latest Financial Statements and except for (a) current Liabilities incurred in the ordinary course of business consistent with past practices since the Audited Balance Sheet Date and (b) Liabilities identified in Section 4.8 of the Disclosure Schedule.  Except as disclosed in Section 4.8 of the Disclosure Schedule, neither the Company nor any of its Subsidiaries has any Liability or obligation under any Derivatives.

Section 4.11       Accounts Receivable  All notes and accounts receivable of the Company and its Subsidiaries are reflected properly in all material respects on their respective books and records, are valid and have arisen from bona fide transactions in the ordinary course of business consistent with past practices.

Section 4.12       Inventory   Except as set forth in Section 4.12 of the Disclosure Schedule, (a) the inventory of raw materials, work in process, supplies and finished goods of each of the Company and its Subsidiaries consists of items of a quality and quantity usable and, with respect to finished goods only, salable, in each case, in the ordinary course of business consistent with past practices, and (b) the inventory of raw materials, work in process, supplies and finished goods is not obsolete, damaged or defective, subject only to any reserve for inventory reflected on the Audited Balance Sheet and the Latest Balance Sheet, as adjusted for passage of time through the date of this Agreement.

Section 4.13       Condition of Assets     All buildings, structures, improvements and appurtenances situated on the Real Property and all material machinery  and equipment of the Company and its Subsidiaries, taken as a whole, are in reasonably good operating condition and have been reasonably maintained in light of their current use and subject to ordinary wear and tear.  The Company or one of its Subsidiaries, as applicable, has good and marketable title to the material equipment, fixtures or other items of tangible personal property which it purports to own, other than assets or properties disposed of in the ordinary course of business consistent with past practices since the Audited Balance Sheet Date, free and clear of all Encumbrances, except for Permitted Encumbrances and Encumbrances listed in Section 4.13 of the Disclosure Schedule.

Section 4.14       Compliance with Law    Except as set forth in Section 4.13 of the Disclosure Schedule, the business of the Company and its Subsidiaries is, and since January 1, 2008 has been, conducted in compliance in all material respects with all Laws applicable to the Company and its Subsidiaries.

Section 4.15       Taxes   Except (i) as set forth in Section 4.15 of the Disclosure Schedule and (ii) for Taxes payable, Tax Returns and Tax Liens arising in respect of the completion of the Agrawest Transaction and of the declaration and payment of any stock dividends by AWI immediately before the AWI Closing (as defined in the Agrawest Acquisition Agreement):

and complete in all respects, and all Taxes shown thereon as owing have been timely and properly paid; no jurisdiction in which either the Company or its Subsidiaries does not file a Tax Return has alleged that the Company or such Subsidiary is required to file a Tax Return;

any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any intercompany transaction or excess loss account described in Treasury Regulations under Code Section 1502 (or any corresponding or similar provision of state, local, or non-United States income Tax law).

Section 4.16       Environmental Matters  Since August 18, 2004 and except as set forth in Section 4.16 of the Disclosure Schedule:

Section 4.17       Books and Records  The financial books and records of the Company and its Subsidiaries are complete and correct in all material respects and have been maintained in accordance with sound business practices.  To Seller’s Knowledge, the books and records of the Company and its Subsidiaries are not recorded, stored, maintained, operated or otherwise wholly or partly dependent upon or held by any means which will not be available to Buyer Group in the ordinary course of business.

Section 4.18       Non-Arm's Length Transactions  No officer, director or shareholder of the Company or its Subsidiaries and no other entity which is an Affiliate of the Company (including

Seller and Seller Parent): (i) owns, directly or indirectly, any interest in (except for shares representing less than one per cent of the outstanding shares of any class or series of any publicly-traded company), or is an officer, director, employee or consultant of, any Person which is, or is engaged in business as, a competitor of the business of the Company or any of its Subsidiaries or is a lessor, lessee, supplier, distributor or sales agent of the business of the Company or any of its Subsidiaries; (ii) owns, directly or indirectly, in whole or in part, any property that the Company or its Subsidiaries use in the operation of their business; or (iii) has any cause of action or other claim against, or owes any amount to, the Company or its Subsidiaries in connection with their business, except for claims in the ordinary course of business consistent with past practices, such as for wages on a current basis, accrued vacation pay and accrued benefits under employee plans and reimbursements of ordinary business expenses.

Section 4.19       No Joint Venture Interests  Neither the Company nor any of its Subsidiaries is a partner, beneficiary, trustee, co-tenant or joint-venturer in, or has any other ownership interest in, any partnership, trust, joint venture, co-tenancy or similar jointly owned business undertaking, and neither the Company nor any of its Subsidiaries has entered into any written agreement or, to the Knowledge of Seller, any oral agreement with respect to any of the foregoing.

Section 4.20       Bank Accounts  Section 4.20 of the Disclosure Schedule contains a true and complete list showing the name of each bank, trust company or similar institution in which the Company and its Subsidiaries have accounts or safe deposit boxes, the number or designation of each such account and safety deposit box and the names of all persons authorized to draw thereon or to have access thereto.

Section 4.21       Absence of Certain Business Practices  Neither the Company nor any of its Subsidiaries, nor any of their respective directors, officers, employees or agents acting on their behalf, directly or indirectly, has (i) used any material amount of funds for unlawful contributions, gifts, entertainment or other unlawful payments relating to any political activity, or (ii) made any material unlawful payment to any foreign, domestic or supra-national government official or employee or to any foreign or domestic political party or campaign or violated in any material respect any provision of the United States Foreign Corrupt Practices Act, the Corruption of Foreign Public Officials Act (Canada) or similar applicable Laws, or the Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in Business Transactions.

Section 4.22       Litigation  Except as set forth in Section 4.22 of the Disclosure Schedule, there is no action, order, writ, injunction judgment or decree outstanding or claim, suit, litigation, proceeding or labor dispute (“Action”), pending or, to the Knowledge of Seller, threatened against the Company or any of its Subsidiaries or any of their respective assets or properties or any of their respective officers or directors (in their capacities as such). To the Knowledge of Seller, there is no judgment, decree or order against the Company, its Subsidiaries, any of their respective assets or properties that would be reasonably likely to prevent, enjoin, or materially alter or delay any of the transactions contemplated by the Purchase Agreements.

complete list of all of the following Contracts, other than Contracts constituting Leases which are disclosed in Section 4.9(b) of the Disclosure Schedule, under which the Company, any of its Subsidiaries or any other party thereto has unperformed obligations or unsatisfied liabilities:

or binding upon the Company or any of its Subsidiaries that cover current and former employees of the Company or any of its Subsidiaries, including all retirement, pension, profit sharing, deferred compensation, severance pay, healthcare, dental, disability, life insurance, stock option, stock bonus and stock purchase benefit plans (collectively referred to in this Section 4.25(a) as the “Canadian Plans”).  Copies of all written Canadian Plans and, to the extent applicable and in existence, related trust agreements, summary plan descriptions, actuarial reports and Canada Revenue Agency determination letters have been provided to Buyer Group or made available in the Data Room. Neither the Company nor the Subsidiaries maintain, sponsor, participate or contribute to any benefit pension plan with respect to such employees.

Laws prohibiting discrimination and/or harassment or requiring accommodation on the basis of race, color, national origin, religion, gender, disability, age, sexual orientation or otherwise), affirmative action and other hiring practices, occupational safety and health, workers’ compensation, unemployment compensation, the payment of social security and other Taxes, and unfair labor practices under the National Labor Relations Act, the Labour Act (Prince Edward Island) or other applicable Laws.  The Company and its Subsidiaries have no pending labor complaints, no pending human rights charges, and no pending civil actions arising out of employment matters and, to the Actual Knowledge of Seller, there are no such complaints, charges or actions threatened against the Company or its Subsidiaries.

Section 4.27       Employee Accruals  Except as set forth in Section 4.27 of the Disclosure Schedule, all accruals for unpaid vacation pay, premiums and contributions for statutory benefit plans that the Company or its Subsidiaries is required to participate in or comply with, including the Canada Pension Plan and plans administered pursuant to applicable health tax, workplace safety insurance and employment insurance legislation, accrued wages, salaries and commissions and employee plan payments, have been reflected in the books and records of the Company and its Subsidiaries and in the Audited Financial Statements and the Latest Financial Statements.

Section 4.31       Insurance   The Company and its Subsidiaries incorporated in the United States are named insureds with respect to insurance maintained by Seller Parent which relates to the respective businesses of the Company and such Subsidiaries.  Such insurance is in full force and effect and is sufficient for compliance with all requirements of applicable Law and of any Material Contract to which the Company or any of such Subsidiaries is subject.  The Canadian

 

 

Subsidiaries are named insureds with respect to insurance maintained by Agrawest  which relates to the respective businesses of the Canadian Subsidiaries.  Except as disclosed in Section 4.31 of the Disclosure Schedule of the Disclosure Schedule, such insurance is in full force and effect and is sufficient for compliance with all requirements of applicable Law and of any Material Contract to which the Company or any of the Canadian Subsidiaries is subject.  Section 4.31 of the Disclosure Schedule sets out all claims relating to the Company and its Subsidiaries made under any insurance policy from January 1, 2005 through March 31, 2011.  To the Actual Knowledge of Wally Browning, the Company’s Chief Executive Officer, except as set forth in Section 4.31 of the Disclosure Schedule, no additional claims relating to the Company and its Subsidiaries have been made under any insurance policy from April 1, 2011 through the date hereof .

Section 4.32       Customers  Section 4.32 of the Disclosure Schedule lists the 25 largest customers of the Company and its Subsidiaries on a consolidated basis for the fiscal year ended December 31, 2010 and sets forth opposite the name of each such customer the dollar amount and percentage of net sales by the Company and its Subsidiaries attributable to such customer for such period.  No customer listed in Section 4.32 of the Disclosure Schedule has provided written notice or, to the Actual Knowledge of Seller, oral notice, to the Company or any Subsidiary of the Company that it will cease or significantly reduce doing business with the Company or any Subsidiary of the Company. Except as set out in Section 4.32 of the Disclosure Schedule, no customers of the Company or any Subsidiary receive material discounts, allowances, rebates, credits, preferential terms or similar material reductions in price or other trade terms arising from any agreements or understandings with or material concessions granted to any customer or rights to any material refunds of any amount paid.

Section 4.33       Suppliers  Section 4.33 of the Disclosure Schedule lists the 20 largest suppliers of the Company and its Subsidiaries on a consolidated basis for the fiscal year ended December 31, 2010 and sets forth opposite the name of each such supplier the approximate percentage of purchases by the Company and its Subsidiaries attributable to such supplier for such period.  No supplier listed in Section 4.33 of the Disclosure Schedule has provided written notice or, to the Actual Knowledge of Seller, oral notice, to the Company or any Subsidiary of the Company that it will cease or significantly reduce doing business with the Company or any Subsidiary of the Company.

Section 4.35       No Other Warranties  EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS ARTICLE IV, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE WITH RESPECT TO THE COMPANY, ANY OF THE COMPANY’S SUBSIDIARIES, THE SHARES, THE ASSETS OF THE COMPANY OR THE ASSETS OF ANY OF THE COMPANY’S SUBSIDIARIES, AND SELLER HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Section 5.1         Title to Shares  Seller is the sole beneficial and record owner of the Company Shares, and at the Closing will deliver to Buyer good and valid title to the Company Shares, free and clear of any and all Encumbrances, other than Encumbrances created by, or suffered to exist against, Buyer Group. The Company is the sole beneficial and record owner of the AWI Shares, and at the time of the completion of the Agrawest Transaction will deliver to 101443 good and valid title to the AWI Shares, free and clear of any and all Encumbrances, other than Encumbrances created by, or suffered to exist against, Buyer Group.

Section 5.2         Incorporation; Power and Authority  Each of Seller and Seller Parent is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Minnesota.  Each of Seller and Seller Parent has the requisite power and authority to execute, deliver and perform its respective obligations under this Agreement and the Collateral Documents.  The execution, delivery and performance of this Agreement and the Collateral Documents and the consummation by each of Seller and Seller Parent of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action, as applicable, on the part of the Company, its Subsidiaries, Seller and Seller Parent, as applicable. Each of this Agreement and the Collateral Documents has been duly executed and delivered by each of Seller and Seller Parent and, assuming the same have been duly and validly authorized, executed and delivered by Buyer, each constitutes the valid and binding agreement of each of Seller and Seller Parent, enforceable against Seller and Seller Parent, respectively, in accordance with its terms, except as such enforceability is subject to the effect of (a) any applicable bankruptcy, insolvency, reorganization or similar Laws  relating to or affecting creditors’ rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

Section 5.3         No Conflicts; Consents and Approvals  The execution, delivery and performance by Seller and Seller Parent of this Agreement and the Collateral Documents and the consummation by Seller and Seller Parent of their respective obligations hereunder and thereunder do not and will not (a) violate any Law applicable to Seller or Seller Parent or any material portion of their respective properties and assets, or (b) conflict with, result in a breach of, constitute a default under, result in the acceleration of, or create in any party the right to accelerate, terminate, modify, cancel or require any notice under, any material written agreement to which it is a party or by which it is bound, except, in each case, as would not reasonably be expected to materially impair Seller’s ability to consummate the sale of the Company Shares or the Company’s ability to consummate the sale of the AWI Shares.  Other than any applicable filing under the HSR Act or any applicable Foreign Antitrust Laws, and the expiration or

termination of the applicable waiting periods thereunder, and except as set forth in Section 5.3 of the Disclosure Schedule, no consent, order, approval, authorization, declaration or filing from or with any Governmental Entity or Person is required on the part of Seller or Seller Parent in order to consummate the transactions contemplated by the Purchase Agreements, other than any of the foregoing that would not reasonably be expected to materially impair the ability of Seller to consummate the sale of the Company Shares or of the Company to consummate the sale of the AWI Shares. There is no action, suit, proceeding, arbitration, or governmental investigation, hearing or proceeding before any court or Governmental Entity now pending or, to the Knowledge of Seller, threatened against Seller or Seller Parent that would adversely affect (a) Seller’s rights in and to the Company Shares, (b) the Company’s rights in and to the AWI Shares, (c) the ability of Seller to consummate the sale of the Company Shares, or (d) the ability of the Company to consummate the sale of the AWI Shares.

Section 5.4         Litigation  There is no Action pending or, to the Knowledge of Seller, threatened against Seller or Seller Parent that is or that would reasonably be expected to materially impair the ability of Seller or Seller Parent to consummate the transactions contemplated by the Purchase Agreements.  Neither Seller nor Seller Parent is in default with respect to any judgment, order, writ, injunction or decree of any court or Governmental Entity, and there are no unsatisfied judgments against Seller or Parent, which, in either case, materially impair or would reasonably be expected to materially impair Seller’s or Seller Parent’s ability to consummate the transactions contemplated by the Purchase Agreements.

Section 5.5         Brokerage  No Person will be entitled to receive any brokerage commission, finder’s fee, fee for financial advisory services or similar compensation in connection with the transactions contemplated by the Purchase Agreements based on any Contract made by or on behalf of the Company, Seller or Seller Parent for which Buyer or the Company or any of its Subsidiaries is or could become liable or obligated, other than Harris Williams & Co. and Robert W. Baird & Co. Incorporated, both of whom shall be paid by Seller.

Section 6.1         Organization; Qualification  Each of Buyer and ###-###-#### is a corporation duly formed, validly existing and in good standing under the Canada Business Corporations Act.

Section 6.2         Power and Authority  Each of Buyer and ###-###-#### has the requisite power and authority to enter into this Agreement and the Collateral Documents to which it is a party and to carry out its obligations hereunder and thereunder.  The execution, delivery and performance of each of this Agreement and the Collateral Documents and the consummation by Buyer and ###-###-#### of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of Buyer and ###-###-####.  This Agreement and the Collateral Documents have been duly executed and delivered by Buyer and ###-###-#### and, assuming the same have been duly and validly authorized, executed and delivered by Seller and

 

Seller Parent, constitutes the valid and binding agreement of each of Buyer and ###-###-####, enforceable against Buyer and ###-###-####, as the case may be, in accordance with its terms, except as such enforceability is subject to the effect of (a) any applicable bankruptcy, insolvency, reorganization or similar Laws relating to or affecting creditors’ rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

Section 6.3         Governmental Approvals  The execution, delivery and performance by Buyer and ###-###-#### of this Agreement and of the Collateral Documents and the consummation by each of them of the transactions contemplated hereby and thereby require no action by or in respect of, or filing with, any Governmental Entity other than (i) any applicable filing under the HSR Act and any applicable Foreign Antitrust Laws and the expiration or termination of the applicable waiting periods thereunder, and (ii) the consent required to be obtained by ###-###-#### pursuant to the Prince Edward Island Lands Protection Act.

Section 6.4         Consents and Approvals; No Violations  The execution and delivery of this Agreement and the Collateral Documents by Buyer and ###-###-#### and the consummation by Buyer and ###-###-#### of the transactions contemplated hereby and thereby will not (a) conflict with or result in any breach of any provision of the certificate or articles of incorporation, bylaws or other organizational documents of Buyer or ###-###-####, (b) constitute a violation or breach of any judgment, order, writ, injunction, decree, law, statute, rule, regulation or ordinance applicable to Buyer or ###-###-#### or any of their respective properties and assets, or (c) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, or require any notice under, any agreement to which Buyer or ###-###-#### is a party or by which either of them is bound.  Other than as referenced in Section 6.3 of this Agreement, no consent, order, approval, authorization, declaration or filing from or with any Governmental Entity or Person is required on the part of Buyer Group in order to consummate the transactions contemplated by the Purchase Agreements, other than any of the foregoing that, individually or in the aggregate, is not and would not reasonably be expected to be material.

Section 6.5         Litigation  There is no Action pending or, to the knowledge of Buyer, threatened against Buyer or ###-###-#### that is or would reasonably be expected to materially impair the ability of Buyer or ###-###-#### to consummate the transactions contemplated by either of the Purchase Agreements.  Neither Buyer nor ###-###-#### is in default with respect to any judgment, order, writ, injunction or decree of any court or Governmental Entity, and there are no unsatisfied judgments against Buyer or ###-###-####, which, in either case, have or would reasonably be expected to materially impair the ability of Buyer or ###-###-#### to consummate the transactions contemplated by either of the Purchase Agreements.

Section 6.6         Brokerage  No Person will be entitled to receive any brokerage commission, finder’s fee, fee for financial advisory services or similar compensation in connection with the transactions contemplated by either of the Purchase Agreements based on any Contract made by or on behalf of Buyer Group for which Seller or Seller Parent is or could become liable or obligated.

Section 6.7         Investment  Buyer is acquiring the Company Shares for its own account as

 

 

an investment without the present intent to sell, transfer or otherwise distribute the same to any other Person, and ###-###-#### has acquired the AWI Shares for its own account as an investment without the present intent to sell, transfer or otherwise distribute the same to any other Person.  Each of Buyer and ###-###-#### has made, independently and without reliance on Seller (except to the extent that each has relied on the representations and warranties of Seller in this Agreement), its own analysis of the Company Shares and the AWI Shares, respectively, for the purpose of acquiring the Company Shares and the AWI Shares, respectively.  Each of Buyer and ###-###-#### acknowledges that the Company Shares and the AWI Shares, respectively, are not registered pursuant to the Securities Act of 1933, as amended (the “1933 Act”), and that none of the Company Shares and none of the AWI Shares may be transferred, except pursuant to a registration statement or an applicable exemption under the 1933 Act.  Buyer is, and immediately prior to its purchase of the AWI Shares ###-###-#### was, an “accredited investor” as defined under Rule 501 promulgated under the 1933 Act and in National Instrument 45-106 – Prospectus and Registration Exemptions.

Section 6.8         Solvency  As of immediately prior to the completion of the Agrawest Transaction ###-###-#### was solvent.  Each member of the Buyer Group is solvent on the date hereof and will not be rendered insolvent by performance of its obligations under this Agreement and the Agrawest Acquisition Agreement and the transactions contemplated by this Agreement and the Agrawest Acquisition Agreement; will not be undercapitalized upon consummation of the transactions contemplated by this Agreement and the Agrawest Acquisition Agreement; and will not, as a result of the consummation of either this Agreement or the Agrawest Acquisition Agreement, incur debts beyond its ability to pay as such debts mature.  No obligation or liability of any member of the Buyer Group will render the Company or its Subsidiaries insolvent immediately following the Closing.

Section 6.9         Non-reliance  Each member of Buyer Group acknowledges that it, together with its advisors, has made its own investigation of the Company, the Company’s Subsidiaries and their respective businesses and assets.  Buyer Group is not relying on any representations, warranties or statements other than those expressly set forth in the Purchase Agreements.

 

relationships with each of the Company and its Subsidiaries after the Closing as it maintained with each of the Company and its Subsidiaries prior to the Closing.

Section 7.3     Confidential Information  From and after the Closing, Seller shall, and shall use commercially reasonable efforts to cause its directors, officers, shareholders and employees to, and shall cause its Affiliates to, and to use their commercially reasonable efforts to cause their directors, officers, shareholders and employees to, hold and treat all technical, business and other information of the Company or its Subsidiaries that is not generally known to or accessible by legal means by the public (“Company Confidential Information”), in confidence and shall not, without the prior written consent of Buyer Group, disclose or reveal any Company Confidential Information to any Person other than the Company, the Company’s Subsidiaries, Buyer Group or their Affiliates.  Seller also agrees that from and after the Closing no Company Confidential Information will be used by Seller, its Affiliates or their directors, officers, shareholders and employees, other than for purposes relating to Seller’s prior ownership of the Company or its Subsidiaries or the operations of the Company or its Subsidiaries prior to Closing.  The obligations of Seller pursuant to this Section 7.3 shall continue until the fifth anniversary of the Closing Date.  Notwithstanding any other provision herein, the obligations of Seller set forth in this Section 7.3 shall not apply to (i) any information which is or comes into the public domain other than as a result of a breach of the provisions of this Section 7.3 by Seller, (ii) any information which is disclosed without restriction to Seller or its Affiliates after the Closing by a third party, other than the Company, any of the Company’s Subsidiaries, Buyer Group or their Affiliates, having the legal right to make such disclosure; or (iii) any information which is required to be disclosed by law or by subpoena, civil investigative demand or other legal process or by any request of any governmental or regulatory agency (in which case Seller shall promptly notify Buyer Group and the Company of such subpoena, demand, process or request to provide Company and its Subsidiaries an opportunity to protect their interests, and shall only disclose information to the extent Seller believes in good faith such disclosure is required and shall use its reasonable best efforts to otherwise comply with this Section 7.3).

Section 7.4         Payment of Certain Obligations  Promptly following the Closing, and in any event not more than ten Business Days following the Closing, Buyer shall cause the Company to (i) pay the amounts set forth on Schedule 3.2(a)(xv) hereto, less all related income tax withholdings, to the holders of all options to purchase securities of the Company that were outstanding prior to the Closing, as set forth on Schedule 3.2(a)(xv) hereto, but only to the extent such amounts are reflected as a specific current liability included in the Estimated Working Capital and will be reflected as a specific current liability included in the Closing Working Capital; and (ii) pay the remaining amounts set forth on Schedule 3.2(a)(xv) hereto to the individuals referred to on such Schedule 3.2(a)(xv), less all related income tax withholdings, but only to the extent such amounts are reflected as a specific current liability included in the Estimated Working Capital and will be reflected as a specific current liability included in the Closing Working Capital.

Section 8.1         Transfer Taxes  Except as otherwise provided in this Agreement (including the next sentence of this Section 8.1) and other than transfer, sales, use, excise, stamp, conveyance or other similar Taxes required to be paid by Buyer Group under applicable Law, Seller shall pay all Taxes applicable to, or resulting from the transactions contemplated by the Purchase Agreements, and Seller shall, at its own expense, file all necessary Tax Returns with respect to such Taxes.  Buyer shall timely pay or shall promptly reimburse Seller for, as applicable, all such other Taxes that are not the responsibility of Seller pursuant to the foregoing sentence. For certainty and notwithstanding any other provision of the Purchase Agreements, neither Seller nor Seller Parent shall be liable or responsible, directly or indirectly, for any Taxes payable in respect of the Agrawest Transaction or the declaration and payment of any stock dividends by AWI immediately before the AWI Closing (as defined in the Agrawest Acquisition Agreement).

Section 8.2         Tax-Sharing Agreements  No amounts shall be paid or payable after the Closing Date by the Company or any of its Subsidiaries under any Tax-Sharing Agreement in respect of any period ending on or prior to the Closing Date.

Tax liabilities reflected on such income Tax Returns.  Seller shall remit to Buyer at least five (5) business days before the due date of any such income Tax Return in respect of a period ending on or prior to the Closing Date an amount equal to the amount, if any, by which the income Taxes actually payable for the period exceeds the income Taxes reflected as a current liability in the Closing Balance Sheet of the Canadian Subsidiaries delivered pursuant to the Agrawest Acquisition Agreement.  Buyer shall remit to Seller within five (5) days following the filing of any income Tax Returns in respect of a period ending on or prior to the Closing Date an amount equal to the amount, if any, by which the income Taxes reflected as a current liability in the Closing Balance Sheet of the Canadian Subsidiaries delivered pursuant to the Agrawest Acquisition Agreement exceeds the income Taxes actually payable for the period.

Section 8.4         Cooperation  Seller and Buyer shall cooperate, and shall cause their respective Affiliates and Representatives to cooperate, fully with the Company, each of its Subsidiaries and each other in the preparation of any Tax Returns for periods ending before or including the Closing Date and in the defense of any audit, litigation or other proceeding in connection with the Taxes or Tax Returns of the Company or any of its Subsidiaries relating to such Tax periods.  Buyer shall cause the Company and each of its Subsidiaries to retain their books and records and all material Tax information relating to periods ending on or before or including the Closing Date, and Seller and Seller Parent shall retain all books and records and all material Tax information relating to periods ending on or before or including the Closing Date insofar as they relate to the Company or any of its Subsidiaries and to the extent they are in the possession of Seller or Seller Parent, until the later of the expiration of the statutes of limitations (as such statutes may be extended) with respect to Taxes for such periods and the conclusion of all litigation with respect to such Taxes. Buyer shall provide to the Representatives of Seller, as reasonably requested by Seller, access to the personnel of the Company and each of its Subsidiaries and such books and records and information.  Buyer shall give Seller reasonable written notice prior to transferring, destroying or discarding any such books and records and, if so requested by Seller, shall cause the Company and each of its Subsidiaries to permit Seller to take possession of such books and records retained by them.  Buyer and Seller further agree, upon request, to use their reasonable best efforts to obtain any certificate or other document from any Governmental Entity or any other Person as may be necessary to mitigate, reduce or eliminate any Tax that could be imposed with respect to the Company or its Subsidiaries or the transactions contemplated hereby.

Section 8.5         Refunds  Any refunds or credits of Taxes (including, without limitation, any interest thereon) received by or credited to the Company or any of its Subsidiaries that are attributable to periods ending on or before the Closing Date (“Refunds”) that were not included or reflected in the Closing Working Capital shall be for the benefit of Seller, and Buyer shall use its reasonable best efforts to obtain such Refunds and shall cause the Company or any of its Subsidiaries (as the case may be) to pay to Seller any such Refunds received within five (5) Business Days after receipt thereof.

Section 8.6         Tax Basis Reporting  For Tax reporting purposes, as of the date hereof, Seller intends to take the position that its Tax basis in the shares of the Company and AWI immediately prior to the Closing (the “Tax Basis Amounts”) for purposes of the Code are the amounts set forth in Section 8.6 of the Disclosure Schedule.  Seller shall use commercially reasonable

 

 

efforts to prepare its U.S. Tax Returns in a manner consistent with the Tax Basis Amounts; provided, however, that Seller may adjust the Tax Basis Amounts reflected on its U.S. Tax Returns upon the advice of its accountants, acting in good faith, in which case Seller shall notify Buyer of such adjustment.  Notwithstanding anything else to the contrary in this Agreement, Seller makes no representations or warranties to the Buyer Group as to the Tax Basis Amounts and shall have no obligation to indemnify the Buyer Group in the event that the Tax Basis Amounts are adjusted by Seller or any taxing authority.

Section 9.1         Indemnification by Seller and Seller Parent  Seller and Seller Parent agree to jointly and severally indemnify and hold harmless Buyer Group, the Subsidiaries and Affiliates of each member of Buyer Group, and their respective officers, directors and employees (“Buyer Indemnitees”) from and against any and all claims (including claims by third parties), losses, liabilities, actions or causes of action, assessments, damages, fines, Taxes, penalties, costs and expenses (including reasonable fees and disbursements of counsel and amounts paid in settlement) (collectively “Losses”) incurred or suffered by any Buyer Indemnitees arising out of, resulting from, or relating to:

Section 9.2         Indemnification by Buyer Group  Buyer and ###-###-#### agree to jointly and severally, and after the Closing shall cause the Company and each of its Subsidiaries to, jointly and severally with Buyer Group, indemnify and hold harmless Seller, its Subsidiaries and Affiliates, and their respective officers, directors and employees (“Seller Indemnitees”) from and against any and all Losses incurred or suffered by any Seller Indemnitees arising out of, resulting from, or relating to:

filed by Idaho Pacific Colorado Corporation with the Colorado Department of Agriculture and naming Safeco Insurance Company of America as Surety, solely arising from or related to an event which occurred after the Closing.

of such representation or warranty giving rise to such right of indemnification shall have been given to the party against whom such indemnification may be sought prior to such time.

Indemnification Claim and the Indemnitee’s good faith estimate of Losses resulting from such Indemnification Claim.

Section 9.5         Satisfaction of Claims  Buyer Group shall first seek to satisfy indemnification obligations of Seller and Seller Parent by way of claims from the Escrow Account

 

in accordance with the Escrow Agreement.  Except to the extent that Buyer Group has been indemnified as set forth in the preceding sentence, all Losses of any Indemnitees, whether arising as an Indemnification Claim or a Third Party Claim, established pursuant to this Agreement shall be satisfied by cash payments from the Indemnitor, its successors or assigns.

Section 9.6         Exclusive Remedy  Except as otherwise expressly provided in Section 2.4, Section 7.2(c) and Section 10.11 of this Agreement and in Section 4.13 of the Agrawest Acquisition Agreement, and notwithstanding any other provision of this Agreement or the Agrawest Acquisition Agreement to the contrary, the indemnification provided by this Article IX shall be the parties’ sole and exclusive remedy for any and all claims arising out of or in connection with the Purchase Agreements and any other agreement or similar instrument contemplated by the Purchase Agreements, including, without limitations, claims for an inaccuracy in or breach of any representation, warranty, agreement or covenant contained in the Purchase Agreements or in any other agreement, document, instrument or certificate delivered in connection with the Purchase Agreements.

Section 9.7         Adjustments  Buyer Group shall not make any claim for indemnification under this Article IX with respect to any Losses to the extent an adjustment has been made for such Losses under Section 2.4.  The Parties agree to treat any indemnification payments made pursuant to this Article IX as purchase price adjustments for all Tax purposes, to the extent permitted by Law, and to reasonably allocate such payments as adjustments to the Final Purchase Price for the Company Shares and/or to the “Purchase Price” (as defined in the Agrawest Acquisition Agreement).

(a)           Notwithstanding anything to the contrary contained in this Article IX, the parties shall cooperate with each other to obtain the benefits of any insurance coverage for Third Party Claims that may be in effect at the time a Third Party Claim is asserted, and, if any insurance carrier for Seller or Seller Parent, any Affiliate of Seller, Buyer Group, the Company or any of the Company’s Subsidiaries is obligated or agrees to defend any Third Party Claim, such defense shall be tendered to such insurance carrier and the rights of the parties among themselves regarding the assumption and control of such defense shall be subject to the reasonable requirements of such insurance carrier.  Nothing contained herein shall obligate any party to obtain or continue after the Closing any insurance coverage for any period.

hereunder, such Person receives a Third Party Reimbursement in respect of the same Losses for which indemnification was made and such Third Party Reimbursement was not taken into account in assessing the amount of indemnification, then the Indemnitee shall turn over all of such Third Party Reimbursement to the Indemnitor up to the amount of the indemnification paid pursuant hereto.  

(c)           No Indemnitor shall have any liability under this Article IX for indirect, speculative, special, incidental, consequential, punitive or similar damages, including lost profits, lost opportunity costs or lost prospective economic advantage.

(f)           No party shall have any liability for any Loss which would not have arisen but for any alteration or repeal or enactment of any law after the Closing Date.

Section 9.9         Arbitration   Any dispute arising out of, relating to, or in connection with Purchase Agreements shall be submitted to mandatory, final and binding arbitration before the American Arbitration Association (“AAA”)  pursuant to the United States Arbitration Act, 9 U.S.C., Section 1 et seq., and any such arbitration shall be conducted in New York, New York.  Either Buyer Group or Seller may commence the arbitration process called for by this Agreement by filing a written demand for arbitration with AAA and delivering a copy of such demand to the other party to this Agreement or the Agrawest Acquisition Agreement, as the case may be, in accordance with Section 10.7.  The arbitration shall be conducted in accordance with the commercial arbitration rules of AAA then in effect, subject to the provisions of this Section 9.9.  Other than as expressly set forth in this Article IX, the applicable statutes of limitation and/or other time-based defenses shall be available to the parties, and applicable to disputes between the parties, as if this were an action filed in a court of competent jurisdiction.  The parties shall

 

 

cooperate with AAA and with each other in promptly selecting an arbitrator from AAA’s panel of neutrals and in scheduling the arbitration proceedings in order to fulfill the provisions, purposes and intent of the Purchase Agreements.  Notwithstanding anything to the contrary herein, either party may seek injunctive relief in a court of competent jurisdiction to prevent irreparable harm from occurring prior to the selection of the arbitrator.  The parties covenant that they shall participate in the arbitration in good faith.  The provisions of this Section 9.9 may be enforced by any court of competent jurisdiction, and the arbitrator may, in his or her discretion, award the prevailing party its costs, fees and expenses, including attorneys’ fees incurred in connection with the arbitration.  Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction.

Section 10.1       Waiver and Amendment  Any term or condition of this Agreement may be waived at any time by the party which is entitled to the benefit thereof, but only if such waiver is evidenced by a writing signed by such party which makes specific reference to this Agreement.  No failure on the part of any party to exercise, and no delay in exercising any right, power or remedy created hereunder, shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy by any party preclude any other or further exercise thereof or the exercise of any other right, power or remedy.  No waiver by any party of any breach of or default in any term or condition of this Agreement shall constitute a waiver of or assent to any succeeding breach of or default in the same or any other term or condition hereof.  This Agreement shall not be altered, supplemented or amended except by an instrument in writing signed by each of the parties hereto.

Section 10.2       Entire Agreement  This Agreement (together with, the Disclosure Schedule) and the Collateral Documents constitute the entire agreement among the parties with respect to the transactions contemplated hereby and supersede all prior discussions (including, without limitation, all management presentations and informational meetings), negotiations and agreements among the parties with respect to these matters.  Each party hereto acknowledges and agrees that no representations, warranties, promises or inducements have been made to such party, except as expressly set forth herein, and that such party is entering into this Agreement without reliance on any written or oral statements or representations, other than those expressly set forth in this Agreement.

Section 10.3   Governing Law  THE DOMESTIC LAW, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, OF THE STATE OF DELAWARE WILL GOVERN ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY AND INTERPRETATION OF THIS AGREEMENT AND THE PERFORMANCE OF THE OBLIGATIONS IMPOSED BY THIS AGREEMENT.

Section 10.4       Jurisdiction  Subject to the procedures specified in Article II, each of the parties submits to the exclusive jurisdiction of any federal or, if such court lacks jurisdiction, state court sitting in Delaware, in any action or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and

determined in any such court.  Each party also agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court.  Each of the parties waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other party with respect to any such action or proceeding.

Section 10.5       Waiver of Jury Trial  EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (III) IT MAKES SUCH WAIVER VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 10.5.

Section 10.6       Interpretation   The descriptive headings contained in this Agreement are for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.  The parties are equally responsible for the content of this Agreement.  In any Action which involves the interpretation of an alleged ambiguity, the language herein shall not be more strictly construed against one party (as the drafter) than the other.  If a term is defined as one part of speech (such as a noun), it shall have a corresponding meaning when used as another part of speech (such as a verb).  Unless the context of this Agreement clearly requires otherwise, words importing the masculine gender shall include the feminine and neutral genders and vice versa.  The words “includes” or “including” shall mean “including without limitation,” the words “hereof,” “hereby,” “herein,” “hereunder” and similar terms in this Agreement shall refer to this Agreement as a whole and not any particular section or article in which such words appear.  Unless otherwise expressly provided herein, currency amounts referenced in this Agreement are in United States Dollars.  Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified.  Whenever any action must be taken hereunder on or by a day that is not a Business Day, then such action may be validly taken on or by the next day that is a Business Day.

Section 10.7       Notices  All notices or other communications under this Agreement shall be in writing and shall be given (and shall be deemed to have been given upon receipt) by delivery in person, by facsimile, by registered or certified mail, postage prepaid, return receipt requested, or by nationally recognized overnight delivery service, addressed as follows:

Section 10.8       Counterparts  This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original but all of which together shall constitute but one agreement.

Section 10.9       Severability  Any term or provision of this Agreement that is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or

 

 

provisions of this Agreement in any other jurisdiction.  If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable.

Section 10.10     Parties in Interest; Assignment  This Agreement is binding upon and is solely for the benefit of the parties hereto and their respective successors and permitted assigns, and no other Person shall have any right, remedy, obligation or liability under this Agreement or be deemed to be a third-party beneficiary hereof.  Neither this Agreement nor of any of the rights or obligations hereunder may be assigned (including by operation of law) by any party hereto without the prior written consent of the other parties.  Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever.  Any permitted assignment by a party pursuant to this Section 10.10 will not relieve such party of any of its obligations hereunder.

Section 10.11     Specific Performance  Each of the parties acknowledges and agrees that the subject matter of this Agreement, including the business, assets and properties of the Company, is unique, that the other parties would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached, and that the remedies at law would not be adequate to compensate such other parties not in default or in breach.  Accordingly, each of the parties agrees that the other parties will be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions of this Agreement in addition to any other remedy to which they may be entitled, at law or in equity (without any requirement that Buyer provide any bond or other security).  The parties waive any defense that a remedy at law is adequate and any requirement to post bond or provide similar security in connection with actions instituted for injunctive relief or specific performance of this Agreement.

Section 10.12     Expenses  All costs and expenses (including the fees and disbursements of legal counsel, investment advisers and accountants) incurred in connection with this Agreement, the Collateral Documents and the transactions contemplated hereby and thereby shall be paid by the party incurring such expenses.  Notwithstanding the foregoing, Seller shall pay (without cost to the Company or its Subsidiaries): (i) all accounting fees resulting from the preparation of the Audited Financial Statements and (ii) all brokerage fees or finder’s fees owed to Harris Williams & Co. and Robert W. Baird & Co. in connection with the transactions contemplated in this Agreement and the Collateral Documents; and Buyer Group shall pay all filing fees payable in connection with the HSR Act, any Foreign Antitrust Laws and any other governmental filings required in connection with this Agreement and the Collateral Documents.

Section 10.13     Publicity  All press releases, public announcements and similar publicity respecting the subject matter hereof shall be made only with the mutual written agreement of the parties; provided, however, that any party hereto may make any disclosure required to be made under applicable Law or stock exchange rule if such party has determined in good faith that it is necessary to do so and used its reasonable best efforts, prior to the issuance of the disclosure, to provide the other parties with a copy of the proposed disclosure.

Section 10.14     Disclosure Schedule  The Disclosure Schedule shall be considered

 

 

incorporated into this Agreement.  Matters disclosed in a particular Section of the Disclosure Schedule shall be deemed to qualify, and constitute exceptions to, the representations and warranties of Seller and Seller Parent contained in the Section of Article IV or Article V that corresponds in number to such Section of the Disclosure Schedule, notwithstanding the absence in such Section of Article IV or Article V of a reference to the Disclosure Schedule (for example, the matters disclosed in Section 4.8 of the Disclosure Schedule shall qualify the representations and warranties in Section 4.8 of this Agreement even if Section 4.8 does not contain a reference to the Disclosure Schedule).