MEMBERSHIP INTEREST PURCHASE AGREEMENT by and among TOWER TECH HOLDINGS INC., ENERGY MAINTENANCE SERVICE, LLC. and the MEMBERS OF ENERGY MAINTENANCE SERVICE, LLC. Dated as of December 9, 2007

Exhibit 2.1

MEMBERSHIP INTEREST PURCHASE AGREEMENT

by and among

TOWER TECH HOLDINGS INC.,

ENERGY MAINTENANCE SERVICE, LLC.

and

the MEMBERS OF

ENERGY MAINTENANCE SERVICE, LLC.

Dated as of December 9, 2007

Table of Contents

1	DEFINITIONS		1
	1.1	Certain Definitions	1
	1.2	Glossary of Other Defined Terms	9

2	SALE AND TRANSFER OF MEMBERSHIP INTERESTS; PURCHASE PRICE		10
	2.1	Membership Interests	10
	2.2	Purchase Price	10
	2.3	Payment of Purchase Price	11
	2.4	Consideration for Non-Competition	12

3	CLOSING		12
	3.1	Closing	12
	3.2	Closing Obligations	13

4	REPRESENTATIONS AND WARRANTIES OF THE SELLERS		15
	4.1	Organization and Good Standing	15
	4.2	Authority; No Conflict	15
	4.3	Required Consents	16
	4.4	Capitalization	16
	4.5	Financial Statements	16
	4.6	Books and Records	17
	4.7	Title To Properties; Membership Interests; Encumbrances	17
	4.8	Accounts Receivable	17
	4.9	Inventory	18
	4.10	No Undisclosed Liabilities	18
	4.11	Indebtedness	18
	4.12	Taxes	18
	4.13	No Material Adverse Effect	19
	4.14	Employee Benefits	19
	4.15	Compliance with Legal Requirements; Governmental Authorizations	22
	4.16	Legal Proceedings	22
	4.17	Absence of Certain Changes and Events	23
	4.18	Contracts; No Defaults	23
	4.19	Insurance	26
	4.20	Real Property	26
	4.21	Environmental Matters	27
	4.22	Employees	28
	4.23	Labor Relations; Compliance	29
	4.24	Intellectual Property	30
	4.25	Customers and Suppliers	31
	4.26	Relationships With Related Persons	31
	4.27	Credit, Rebate, Warranties and Related Matters	32
	4.28	Brokers or Finders	32
	4.29	Bank Accounts	32

5	REPRESENTATIONS AND WARRANTIES OF BUYER		32
	5.1	Organization and Good Standing	32
	5.2	Authority; No Conflict	32
	5.3	Consents	33
	5.4	Investment Intent	33
	5.5	Legal Proceedings	33
	5.6	Brokers or Finders	34
	5.7	Valid Issuance	34
	5.8	Capitalization	34
	5.9	SEC Filings	34
	5.10	No Material Adverse Effect	34
	5.11	Compliance with Legal Requirements	35
	5.12	No Undisclosed Liabilities	35

6	PRE-CLOSING COVENANTS		35
	6.1	Access and Investigation	35
	6.2	Operation of the Businesses of the Company	35
	6.3	Required Approvals	38
	6.4	Efforts to Satisfy Conditions	39
	6.5	Notices of Certain Events	39
	6.6	No Negotiation	39
	6.7	Bank Accounts; Powers of Attorney	39
	6.8	Supplements to Disclosure Schedule	39
	6.9	Certain Tax Matters	40
	6.10	Audited Financial Statements	40
	6.11	Tax Distribution of Permitted Tax Distribution Amount	41

7	POST-CLOSING COVENANTS		41
	7.1	Covenant Not to Compete	41
	7.2	Certain Tax Matters	42
	7.3	Further Assurances	43
	7.4	Litigation Support	43
	7.5	Reconciliation of Permitted Tax Distribution Amount	43

8	CONDITIONS PRECEDENT TO BUYER’S OBLIGATION TO CLOSE		44
	8.1	Accuracy of Representations and Warranties	44
	8.2	Sellers’ Performance	44
	8.3	Consents	45
	8.4	No Proceedings	45
	8.5	No Claim Regarding Membership Interests or Sale Proceeds	45
	8.6	No Prohibition	45
	8.7	No Material Adverse Effect	45
	8.8	Payment of Indebtedness to Xxxxx	45
	8.9	Release of Liens	45
	8.10	Real Property Leases	45

9	CONDITIONS PRECEDENT TO SELLERS’ OBLIGATION TO CLOSE		46

	9.1	Accuracy of Representations and Warranties	46
	9.2	Buyer’s Performance	46
	9.3	No Injunction	46
	9.4	No Proceedings	46
	9.5	No Prohibition	47
	9.6	No Material Adverse Effect	47
	9.7	Guarantees	47

10	TERMINATION		47
	10.1	Termination Events	47
	10.2	Effect of Termination	48

11	INDEMNIFICATION		49
	11.1	Survival	49
	11.2	Indemnification by Sellers	49
	11.3	Indemnification by Buyer	50
	11.4	Limitations on Indemnification	50
	11.5	Procedure for Indemnification	51
	11.6	Additional Agreements Regarding Indemnity	53
	11.7	Effect of Insurance and Other Sources of Reimbursement	54
	11.8	No Additional Warranties	54
	11.9	Other Information	54

12	GENERAL PROVISIONS		55
	12.1	Expenses	55
	12.2	Public Announcements	55
	12.3	Confidentiality	55
	12.4	Notices	56
	12.5	Sellers’ Representative	57
	12.6	Exhibits and Schedules	58
	12.7	Governing Law; Submission to Jurisdiction	58
	12.8	Waiver of Jury Trial	59
	12.9	No Third Party Beneficiaries	59
	12.10	Waiver	59
	12.11	Entire Agreement and Modification	59
	12.12	Assignments and Successors	60
	12.13	Severability	60
	12.14	Interpretation and Rules of Construction	60
	12.15	Time of Essence	60
	12.16	Counterparts	60

Exhibits:

Exhibit A	Form of Escrow Agreement
Exhibit B	Sellers’ Release
Exhibit C	Xxxxxxx Employment Agreement
Exhibit D	Registration Rights Agreement
Exhibit E	Option Termination Agreement

Schedules:

Sellers’ Disclosure Schedule

Buyer’s Disclosure Schedule

Stock Options to be Issued to Employees Schedule 2.3(d)

EXECUTION VERSION

MEMBERSHIP INTEREST PURCHASE AGREEMENT

This Membership Interest Purchase Agreement (“Agreement”) is made as of December 9, 2007 (the “Effective Date”), by and among TOWER TECH HOLDINGS INC., a Nevada corporation (“Buyer”), ENERGY MAINTENANCE SERVICE, LLC., a Delaware Limited Liability Company (the “Company”), Xxxxxx X. Xxxxxxx, an individual residing at 0000 Xxxxxxxxx Xxxxx, Xxxx, Xxxxx Xxxxxx 00000 (“Xxxxxxx”), EMS, Inc., a South Dakota corporation (“EMS”), and Xxxxx, Inc., a Minnesota corporation (“Xxxxx”) and Xxxxxx X. Xxxxxx, an individual residing at 0000 Xxxxxxxx Xxxx, Xx. Xxxx, XX (“Yarano”) (Xxxxxxx, EMS, Xxxxx and Yarano are hereinafter collectively referred to as the “Sellers”).

R E C I T A L S

A. The Company is engaged in the business of providing products and services to the North American wind energy industry including such products and services utilized or required in construction, operations and maintenance and component repairs, including control systems and gear boxes, retrofit programs and warranty service (the “Business”).

X. Xxxxxxx own all of the outstanding membership interests of the Company.

X. Xxxxxxx desire to sell, and Buyer desires to purchase, all of the issued and outstanding membership interests of the Company (the “Membership Interests”) for the consideration and on the terms set forth in this Agreement.

AGREEMENT

In consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer, the Company and Sellers agree as follows:

ARTICLE 1

DEFINITIONS

1.1 Certain Definitions. For purposes of this Agreement, the following terms have the following meanings:

“Adverse Consequence” means any loss, Liability, claim, damage (including consequential damages which are reasonably foreseeable but excluding consequential damages which are not reasonably foreseeable and special, punitive, exemplary or incidental damages, unless such consequential, special, punitive, exemplary or incidental damages shall be payable to a third party other than Buyer, in which event such damages shall be deemed included within the definition of Adverse Consequence), expense (including costs of investigation and defense and reasonable attorneys’ fees) diminution of value, or costs of cleanup, containment, or other remediation, whether or not involving a third party claim.

“Affiliate” of a specified Person means a Person who, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such specified Person, or is an owner of ten percent (10%) or more of such specified Person.

“Applicable Contract” of either the Buyers or the Company means any Contract (a) under which such party has or may acquire any rights, (b) under which such party has or may become subject to any Liability, or (c) by which such party or any of the assets owned or used by it is or may become bound.

“Base Purchase Price” means $32,250,000 which includes the sum of $2,250,000 as a full and final tax adjustment payment to Sellers other than the payment referred to in Section 6.11 and Section 7.5 below.

A “Breach” of a representation, warranty, covenant, obligation, or other provision of this Agreement or any instrument delivered pursuant to this Agreement will be deemed to have occurred if there is or has been any inaccuracy in or breach of, or any failure to perform or comply with, such representation, warranty, covenant, obligation, or other provision.

“Buyer Common Stock” means the common stock, $0.001 par value, of the Buyer.

“Buyer Indemnified Persons” means Buyer and its Representatives, Related Persons and Affiliates, including, from and after the Closing, the Company.

“Buyer’s Disclosure Schedule” means the disclosure schedule attached hereto and delivered by Buyer to Sellers in connection with this Agreement.

“Closing Date” means the date and time as of which the Closing actually takes place.

“Company Stock Option Plan” means collectively the 2006 Option Plan authorizing the options issued therein to acquire Class C Units of Company and any successor entity, as the case may be.

“Consent” means any approval, consent, ratification, waiver, or other authorization (including any Governmental Authorization).

“Contemplated Transactions” means all of the transactions contemplated by this Agreement, including: (a) the sale of the Membership Interests by Sellers to Buyer; (b) the issuance of Buyer Common Stock to the Sellers, (c) the execution, delivery, and performance of the Xxxxxxx Agreement, the Registration Rights Agreement and the Escrow Agreement; and (d) the issuance of options to acquire Buyer Common Stock; and (e) the performance by Buyer and Sellers of their respective covenants and obligations under this Agreement and any agreement executed and delivered pursuant to the terms hereof and Sellers’ Closing Documents.

“Contract” means any agreement, contract, obligation, promise, or undertaking (whether written or oral and whether express or implied) that is legally binding.

“Encumbrance” means any charge, claim, community property interest, condition, equitable interest, lien, option, pledge, security interest, hypothecation, mortgage, right of first

refusal, or similar encumbrance or restriction of any kind, including any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership.

“Enforceability Exceptions” means (a) bankruptcy, insolvency, reorganization, moratorium or other similar Laws now or hereafter in effect affecting the enforceability of creditors’ rights generally, and (b) general principles of equity which may limit the availability of remedies (regardless of whether enforceability is considered in a proceeding in equity or at law)

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

“Environmental, Health, and Safety Liabilities” means any cost, damages, expense, Liability, obligation, or other responsibility arising from or under Environmental Law or Occupational Safety and Health Law and consisting of or relating to: (a) any environmental, health, or safety matters or conditions (including on-site or off-site contamination, occupational safety and health, and regulation of chemical substances or products); (b) fines, penalties, judgments, awards, settlements, legal or administrative proceedings, damages, losses, claims, demands and response, investigative, remedial, or inspection costs and expenses arising under Environmental Law or Occupational Safety and Health Law; (c) financial responsibility under Environmental Law or Occupational Safety and Health Law for cleanup costs or corrective action, including any investigation, cleanup, removal, containment, or other remediation or response actions (“Cleanup”) required by applicable Environmental Law or Occupational Safety and Health Law (whether or not such Cleanup has been required or requested by any Governmental Body or any other Person) and for any natural resource damages; or (d) any other compliance, corrective, investigative, or remedial measures required under Environmental Law or Occupational Safety and Health Law. The terms “removal,” “remedial,” and “response action,” include the types of activities covered by the United States Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq., as amended (“CERCLA”).

“Environmental Law” means any Legal Requirement which both has been adopted and is effective prior to the Closing Date that requires or relates to: (a) advising appropriate authorities, employees, and the public of intended or actual releases of pollutants or hazardous substances or materials, violations of discharge limits, or other prohibitions and of the commencements of activities, such as resource extraction or construction, that could have significant impact on the Environment; (b) preventing or reducing to acceptable levels the release of pollutants or hazardous substances or materials into the Environment; (c) reducing the quantities, preventing the release, or minimizing the hazardous characteristics of wastes that are generated; (d) assuring that products are designed, formulated, packaged, and used so that they do not present unreasonable risks to human health or the Environment when used or disposed of; (e) protecting resources, species, or ecological amenities; (f) reducing to acceptable levels the risks inherent in the transportation of hazardous substances, pollutants, oil, or other potentially harmful substances; (g) cleaning up pollutants that have been released, preventing the threat of release, or paying the costs of such clean up or prevention; or (h) making responsible parties pay private parties, or groups of them, for damages done to their health or the Environment, or

permitting self-appointed representatives of the public interest to recover for injuries done to public assets.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any successor law, and regulations and rules issued pursuant to that Act or any successor law.

“Facilities” means any real property, leaseholds, or other interests currently or formerly owned or operated by the Company and any buildings, plants, structures, or fixtures thereon.

“Financial Statements” means, collectively, the Reviewed Financial Statements and the Audited Financial Statements.

“GAAP” means generally accepted United States accounting principles, applied on a basis consistent with the basis on which the Financial Statements were prepared.

“Governmental Authorization” means any approval, consent, license, permit, waiver, or other authorization issued, granted, given, or otherwise made available by or under the authority of any Governmental Body or pursuant to any Legal Requirement.

“Governmental Body” means any: (a) nation, state, province, county, city, town, village, district, or other jurisdiction of any nature; (b) federal, state, provincial, local, municipal, foreign, or other government; (c) governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal); (d) multi-national organization or body; or (e) body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature.

“Hazardous Activity” means the distribution, generation, handling, importing, management, manufacturing, processing, production, refinement, Release, storage, transfer, transportation, treatment, or use (including any withdrawal or other use of groundwater) of Hazardous Materials in, on, under, about, or from the Facilities or any part thereof into the Environment.

“Hazardous Materials” means any waste or other substance that is listed, defined, designated, or classified as, or otherwise determined to be, hazardous, radioactive, or toxic or a pollutant or a contaminant under or pursuant to any Environmental Law, including any admixture or solution thereof, and specifically including petroleum and all derivatives thereof or synthetic substitutes therefor, silica or silica-containing materials and asbestos or asbestos-containing materials.

“Income Taxes” means all Taxes based upon or measured by gross or net receipts or gross or net income, including Taxes in the nature of minimum taxes, tax preference items, and alternative minimum taxes, and Taxes on capital or net worth, membership interests or capital stock, but excluding Taxes that are in the nature of sales, use, property, Transfer, recording, or similar Taxes.

“Indebtedness” means all obligations of the Company in respect of (i) indebtedness for borrowed money, (ii) notes, bonds, debentures, and similar instruments; (ii) capitalized leases;

(iii) obligations under conditional sale or other title retention agreements; (iv) deferred purchase price for property or services (including all “earnout” and similar obligations; (v) guarantees of indebtedness of any other Person; (vi) obligations, contingent or otherwise, as an account party in respect of letters of credit and letters of guaranty; and (vii) obligations, contingent or otherwise, in respect of any accrued interest, success fees, prepayment penalties, interest rate SWAP breakage costs, make-whole premiums or penalties and other costs and expenses associated with the repayment of any of the foregoing; provided, however, in no event shall Indebtedness include accrued liabilities or accounts payable incurred in the Ordinary Course of Business and reflected as Current Liabilities on the Financial Statements.

“Intellectual Property” means (a) patents, patent applications and inventions and discoveries that may be patentable, (b) trademarks, service marks, trade names, fictional business names, service marks, trade dress and domain names, together with the goodwill associated therewith, (c) copyrights, including copyrights in computer software, (d) all rights in mask works, (e) confidential and proprietary information, including trade secrets, know-how, customer lists, software, technical information, data, process technology, plans, drawings, and blue prints, (f) registrations and applications for registration of the foregoing, and (g) all causes of action, if any, for infringement, conversion or misuse of any of the foregoing, and all rights of recovery related thereto.

“Inventory” means all inventories of raw materials, work in process, component parts and finished goods (including goods in transit from or to the locations at which the Business is conducted), including any of the foregoing purchased subject to conditional sales or title retention agreements in favor of any third party.

“IRC” or “Code” means the Internal Revenue Code of 1986, as amended, or any successor law, and regulations issued by the IRS pursuant to the Internal Revenue Code or any successor law.

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

“Knowledge” when used (i) in relation to the Company means the actual knowledge (excluding thereby any implied, imputed, constructive or other type of knowledge) of a particular fact or other matter being possessed as of the pertinent date by Xxxxxxx or Xxxx Xxxxxx, and (ii) in relation to the Buyer means the actual knowledge of a particular fact or other matter being possessed as of the pertinent date by any officer or director of the Buyer.

“Legal Requirement” means any federal, state, provincial, local, municipal, foreign, international, multinational, or other administrative order, constitution, law, ordinance, principle of common law, regulation, statute, or treaty.

“Liability” means, with respect to any Person, any liability or obligation of such Person of any kind, character or description, whether known or unknown, absolute or contingent, accrued or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, due to become due, vested or unvested, executory, determined, determinable or

otherwise, and whether or not the same is required to be accrued on the financial statements of such Person.

“Material Adverse Effect” means when used with respect to the Company or the Buyer, any change or effect that, individually or taken together with all other such changes or effects that have occurred prior to the date of determination of the Material Adverse Effect, is materially adverse to the Business, assets, financial condition or results of operations of the Company considered as a whole; or Buyer and its subsidiaries considered as a whole; provided, however, that in no event shall any of the following, alone or in combination, be deemed to constitute, nor shall any of the following be taken into account in determining whether there has been, or will be, a Material Adverse Effect: (a) changes in general economic conditions; (b) changes that are generally applicable to the industry in which the Company or Buyer, as the case may be, operates (which changes do not affect the Company or Buyer, as the case may be, in a materially disproportionate manner); (c) changes resulting from or related to the transactions contemplated hereby including any loss, diminution or disruption of existing or prospective employee, customer, distributor or supply relationships; (d) any failure of the Company to meet internal financial projections or forecasts for any period ending on or after the date of this Agreement; (e) changes in GAAP or any interpretation thereof; or (f) the Buyer’s failure or inability to obtain any concession from any labor union. In determining whether a Material Adverse Effect has occurred such determination shall be made on an after-tax basis and in addition an item of loss, expenses or liability shall be disregarded to the extent (i) of the aggregate reserve for the category of such item established in the Audited Financial Statements of the Company, (ii) such item is covered by insurance or any other third party indemnification, contribution or reimbursement obligation and the insurance carrier or third party, as the case may be, has acknowledged the coverage or indemnification, contribution or reimbursement obligation, as the case may be, or (iii) disclosure of such item has been made in the Company’s Disclosure Schedule or, with respect to Buyer, in Buyer’s Disclosure Schedule.

“Neutral Accountant” means, unless otherwise agreed in writing by Sellers’ Representative and Buyer, an accountant mutually satisfactory to Sellers’ Representative and Buyer who satisfies each of the following requirements (unless otherwise agreed by Sellers’ Representative and Buyer): (i) neither the accountant nor the firm that employs the accountant shall have performed any accounting or consulting services for any party or any Affiliate of any party at any time during the three year period prior to the date of this Agreement; (ii) the accountant is not related in any way by blood or marriage to any party or any executive officer or director of any party or any Affiliate of such party; (iii) the accountant has been a certified public accountant duly licensed to practice in the state where he or she has his or her primary office for a period of not less than ten years; and the accountant is willing to accept engagement as a Neutral Accountant on the terms and conditions of this Agreement.

“Occupational Safety and Health Law” means any Legal Requirement which both has been adopted and is effective prior to the Closing Date and which is designed to provide safe and healthful working conditions and to reduce occupational safety and health hazards, and any program, whether governmental or private (including those promulgated or sponsored by industry associations and insurance companies), designed to provide safe and healthful working conditions.

“Ordinary Course of Business” means an action taken by a Person will be deemed to have been taken in the “Ordinary Course of Business” only if such action is consistent with the past practices of such Person and is taken in the ordinary course of the normal day-to-day operations of such Person.

“Organizational Documents” means (a) the articles or certificate of incorporation or organization and the bylaws or operating agreement of an entity; (b) any charter or similar document adopted or filed in connection with the creation, formation, or organization of an entity; (c) any agreements relating to the ownership of the capital stock, membership interests of an entity and/or the governance of such entity to which shareholders or members of such entity are parties; and (d) any amendment to any of the foregoing.

“Permitted Encumbrances” means (a) liens for Taxes, assessments or government charges not yet due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings and which are subject to reasonable reserves; (b) mechanics, materialmen’s, carriers, warehouseman’s, repairman’s and similar Encumbrances incurred in the ordinary course of business consistent with past practice securing amounts not yet due and payable or being contested in good faith by appropriate proceedings; (c) zoning, entitlement, building and other land use regulations that are not violated by the current use and operation of such real property; (d) covenants, conditions, restrictions, easements and other similar matters that appear in the title commitments or insurance policies regarding real property that do not, individually or in the aggregate, materially impair the ownership, occupancy, use, or insurability of such real property as currently owned, used and operated by the Companies ; (e) any pledge or deposit made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance or other social security laws or other statutory obligations of Seller or the Company; (f) any cash deposit or right of set-off to secure the performance of bids, tenders, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds, government contracts and other obligations of a like nature, in each case imposed in the ordinary course of business; (g) any Encumbrance created by Buyer; (h) those Encumbrances listed in Section 4.7 of the Sellers’ Disclosure Schedule; and (i) those liens or security interests existing on the date hereof that secure Indebtedness that will not be repaid in full at the Closing.

“Person” means any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, labor union, or other entity or Governmental Body.

“Price Per Share” means $8.48 per share of the Buyer’s Common Stock.

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

“Reference Date” means December 31, 2004.

“Related Person” means, (a) with respect to a particular individual, (i) each other member of such individual’s Family; (ii) any Person that is directly or indirectly controlled by such individual or one or more members of such individual’s Family; (iii) any Person in which

such individual or members of such individual’s Family hold (individually or in the aggregate) a Material Interest; and (iv) any Person with respect to which such individual or one or more members of such individual’s Family serves as a director, officer, partner, executor, or trustee (or in a similar capacity); (b) with respect to a specified Person other than an individual, (i) any Person that directly or indirectly controls, is directly or indirectly controlled by, or is directly or indirectly under common control with such specified Person; (ii) any Person that holds a Material Interest in such specified Person; (iii) each Person that serves as a director, officer, partner, executor, or trustee of such specified Person (or in a similar capacity); (iv) any Person in which such specified Person holds a Material Interest; (v) any Person with respect to which such specified Person serves as a general partner or a trustee (or in a similar capacity); and (vi) any Related Person of any individual described in clause (ii) or (iii). For purposes of this definition, (x) the “Family” of an individual includes (i) the individual, (ii) the individual’s spouse and children who reside with such individual, and (y) “Material Interest” means direct or indirect beneficial ownership (as defined in Rule 13d-3 under the Securities Exchange Act of 1934) of voting securities or other voting interests representing at least 10% of the outstanding voting power of a Person or equity securities or other equity interests representing at least 10% of the outstanding equity securities or equity interests in a Person.

“Release” means any spilling, leaking, emitting, discharging, depositing, escaping, leaching, dumping, or other releasing into the Environment, whether intentional or unintentional.

“Representative” means with respect to a particular Person, any director, officer, employee, agent, consultant, advisor, or other representative of such Person, including legal counsel, accountants, and financial advisors.

“Securities Act” means the Securities Act of 1933, as amended, or any successor law, and regulations and rules issued pursuant to that act or any successor law.

“Seller Indemnified Persons” means Sellers and their Representatives, Related Persons and Affiliates, including, prior to the Closing, the Company.

“Seller’s Disclosure Schedule” means the disclosure schedule attached hereto and delivered by Sellers to Buyer in connection with this Agreement.

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

“Tax” means all taxes, charges, fees, levies or other similar assessments or liabilities, including, without limitation, income, gross receipts, ad valorem, premium, value-added, excise, real property, personal property, sales, use, services, transfer, withholding, employment, payroll and franchise taxes imposed by the United States of America or any state, province, government, foreign taxing authority or any agency thereof, and any interest, fines, penalties, assessments or

additions to tax resulting from, attributable to or incurred in connection with any tax or any contest or dispute thereof.

“Tax Distribution” means the permitted tax distribution from the Company to its members pursuant to the provisions of Section 6.11 below.

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

“Threat of Release” means a substantial likelihood of a Release that may require action in order to prevent or mitigate damage to the Environment that may result from such Release.

“Threatened” means a claim, Proceeding, dispute or audit will be deemed to have been “Threatened” if any demand or statement has been made in writing or any notice has been given in writing that would lead a prudent Person to reasonably conclude that such a claim, Proceeding, dispute or audit is likely to be asserted, commenced, taken, or otherwise pursued prior to expiration of any applicable statute of limitations.

“Threshold Amount” means $100,000.

1.2 Glossary of Other Defined Terms. The following sets forth the location of definitions of capitalized terms defined in the body of this Agreement:

“Accounts Receivable”		Section 4.8
“Agreement”		Preamble
“Audited Balance Sheet”		Section 4.5(b)
“Audited Financial Statements”		Section 4.5(b)
“Auditor Consent”		Section 4.5(b)
“Base Balance Sheet”		Section 4.5(a)
“Buyer”		Preamble
“Buyer Consents”		Section 5.3
“Buyer’s Advisors”		Section 6.1
“Cash Purchase Price”		Section 2.3(a)
“Claim Notice”		Section 11.6(b)
“Closing”		Section 3.1
“Company”		Recitals
“Company Benefit Plan”		Section 4.14
“Competing Business”		Section 4.26
“Effective Date”		Preamble
“ERISA Affiliate”		Section 4.14
“Escrow Account”		Section 2.3(c)
“Escrow Agent”		Section 2.3(c)
“Escrow Agreement”		Section 2.3(c)

“Escrow Amount”		Section 2.3(c)
“Escrow Period”		Section 2.3(c)
“Éscrow Rate”		Section 2.3(c)
“Final Closing Balance Sheet”		Section 2.3(c)
“Foreign Plans”		Section 4.14
“Indemnified Party”		Section 11.6(a)
“Indemnifying Party”		Section 11.6(a)
“Indemnity Basket”		Section 11.4(b)
“Indemnity Cap”		Section 11.4(a)
“Xxxxxxx Agreement”		Section 3.2(a)(iv)
“Leased Real Property”		Section 4.20(a)
“Material Contracts”		Section 4.15(a)
“Materiality Qualifier”		Section 8.1
“McGladrey”		Section 6.10
“Membership Interests”		Recitals
“Multiemployer Plan”		Section 4.14
“Notice of Indemnifiable Loss”		Section 11.6(a)
“Owned Real Property”		Section 4.20(a)
“Permitted Tax Distribution Amount”		Section 6.2(a)(i)
“Preliminary Closing Balance Sheet”		Section 2.3(c)
“Purchase Price Allocation”		Section 2.7
“Price Per Share”		Section 2.3(b)
“Purchase Price”		Section 2.2
“Real Property”		Section 4.20(a)
“Required Consents”		Section 4.3
“Reviewed Financial Statements”		Section 4.5(a)
“Scheduled Debt”		Section 4.11
“Sellers”		Preamble
“Sellers’ Closing Documents”		Section 4.2(a)
“Sellers’ Releases”		Section 3.2(a)(iii)
“Sellers’ Representative”		Section 12.5
“Stock Purchase Price”		Section 2.3(b)
“Survival Period”		Section 11.1(a)

ARTICLE 2

SALE AND TRANSFER OF MEMBERSHIP INTERESTS;
PURCHASE PRICE

2.1 Membership Interests. Subject to the terms and conditions of this Agreement, at the Closing, Sellers will sell and transfer the Membership Interests to Buyer, and Buyer will purchase the Membership Interests from Sellers.

2.2 Purchase Price. The aggregate purchase price for the Membership Interests (the “Purchase Price”) is equal to:

(a) The Base Purchase; minus

(b) the aggregate amount required at Closing, or paid by the Company prior to Closing, or authorized or contracted for by the Company prior to the Closing but payable after the Closing to discharge any and all (i) severance payments, termination payments or other amounts payable (including, without limitation, the estimated costs of benefits required to be provided) under the terms of any employment agreement, plan or other arrangement payable if the employee’s employment with the Company is terminated by the employee after the occurrence of a “change of control” or other similar event, (ii) stay bonuses, success bonuses or other similar payments under the terms of any employment agreement, plan or other arrangement and relating to the transactions contemplated by this Agreement, (iii) cash payments required to cancel and terminate all outstanding options to acquire membership interests in the Company, (iv) the employer’s portion of social security, Medicare, unemployment or other employment Taxes imposed with respect to the amounts described above, and (v) the aggregate amount of any distributions to Sellers from the Company after the date hereof to and including the Closing Date (other than the Tax Distribution and the payment of normal compensation and benefits in the Ordinary Course of Business pursuant to existing compensation and benefit arrangements in effect on the date hereof).

2.3 Payment of Purchase Price. The Purchase Price shall be paid by Buyer as follows:

(a) Cash Purchase Price. At the Closing, Buyer shall pay to Sellers in cash the sum of $2,250,000 plus fifty percent (50%) of the remaining balance of the Purchase Price after taking into account said $2,250,000 amount (the “Cash Purchase Price”), One Million Dollars ($1,000,000) of which Sellers authorize Buyer to deposit in the Escrow Account on behalf of Sellers pursuant to Section 2.3(c) below (the “Cash Escrow Deposit”).

(b) Stock Purchase Price. Subject to the provisions of Section 2.3(d) below, at the Closing Buyer shall deliver to Sellers a number of shares of Buyer Common Stock equal to the remaining balance of the Purchase Price (the Purchase Price minus the Cash Purchase Price) divided by the Price Per Share, which the parties acknowledge and agree is Eight and 48/100 Dollars ($8.48) per share, adjusted proportionately for any stock dividends, stock splits, combination of shares or other change in Buyer’s capital structure between the date hereof and the Closing Date. The aggregate value of such Buyer Common Stock delivered to the Sellers at Closing combined with the aggregate value of Buyer Common Stock deposited directly in the Escrow Account is referred to herein as the “Stock Purchase Price”, with such value being determined by multiplying the number of shares of Buyer Common Stock so delivered or deposited by the Per Share Price.

(c) Escrow Amount. To secure and to serve as a fund in respect of the indemnification obligations of Sellers under this Agreement, Buyer, Sellers and Xxxxx Fargo Bank, as Escrow Agent, (the “Escrow Agent”), at Closing shall enter into an Escrow Agreement substantially in the form annexed hereto as Exhibit A (the “Escrow Agreement”). At the Closing, Buyer shall deposit (i) Two Million Dollars ($2,000,000) of Buyer Common Stock or, Two Hundred and Thirty-Five Thousand Eight Hundred and Forty-Nine (235,849) Shares (based upon the Price Per Share) (“Stock Escrow Deposit”),

and (ii) the Cash Escrow Deposit (the “Escrow Amount”) with the Escrow Agent to be held in an account (collectively, the “Escrow Account”) pursuant to the terms of the Escrow Agreement. Except with respect to amounts that have been previously paid from the Escrow Account to Buyer pursuant to the joint written instruction of Sellers and Buyer, and except with respect to indemnity claims duly made in accordance with ARTICLE 11 on or before the third anniversary date of the Closing Date, all amounts in the Escrow Account (with any interest or other earnings paid thereon) shall be distributed to Sellers in accordance with the Escrow Agreement within ten (10) business days after the expiration of said three year escrow period (the “Escrow Period”).

(d) Issuance of Buyer Stock Options. In connection with the Closing on the Closing Date, by virtue of the Contemplated Transactions Buyer shall issue options to acquire Buyer Common Stock pursuant to the Tower Tech Holding, Inc. 2007 Equity Incentive Plan to those employees of the Company who are identified on Schedule 2.3(d) attached hereto in the amounts listed on such Schedule 2.3(d), subject to pro rata adjustment for any stock split, stock dividend, combination of shares, recapitalization or similar transaction. For the avoidance of doubt, the Buyer Common Stock issuable upon exercise of options granted hereunder shall not be a part of or be deducted from the Buyer Common Stock that is payable as part of the Base Purchase Price pursuant to Section 2.3(b) hereof. After the Closing Date, no Company options shall be deemed to be outstanding and all of the Company’s equity option or incentive plans or arrangements shall be terminated and of no further force or effect.

(e) Method of Cash Payment. All cash payments made under this Section 2.3 shall be made by wire transfer of immediately available funds to an account designated by the recipient in writing.

(f) Each Seller. As between Sellers, any Purchase Price payable to Sellers, or payments payable to Sellers from the Escrow Account, shall be paid pro rata among the Sellers based on such Seller’s equity ownership percentage of the Company immediately prior to the Closing. No fractional shares of Buyer Common Stock will be issued to the Sellers. Sellers shall receive cash in lieu of any fractional shares of Buyer Common Stock to which any such Seller would otherwise have been entitled pursuant to the Contemplated Transactions at the Price Per Share.

2.4 Consideration for Non-Competition. Each of Xxxxxxx and Xxxxx acknowledges and agrees that a portion of the Purchase Price equal to Five Thousand Dollars ($5,000.00) represents consideration for the restrictive covenants contained in Section 7.1 of this Agreement.

ARTICLE 3

CLOSING

3.1 Closing. The purchase and sale (the “Closing”) provided for in this Agreement will take place at the offices of DLA Piper US LLP, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 commencing at 10:00 a.m. (local time) on January 3, 2008, which

Closing, upon the consummation thereof, shall be deemed effective as of the opening of business on January 1, 2008 for all purposes hereunder, or at such other time and place as the parties may agree. By agreement of the parties the Closing may take place by delivery of the documents to be delivered at the Closing by facsimile or other electronic transmission. Subject to the provisions of ARTICLE 10, failure to consummate the purchase and sale provided for in this Agreement on the date and time and at the place determined pursuant to this Section 3.1 will not result in the termination of this Agreement and will not relieve any party of any obligation under this Agreement.

3.2 Closing Obligations. At the Closing:

(a) Deliveries by Sellers. Sellers will deliver, or cause to be delivered, to Buyer:

(i) the Escrow Agreement executed by Sellers;

(ii) certificates representing the Membership Interests, duly endorsed by each Seller (as to such Seller’s membership interest) for transfer to Buyer and, if the Membership Interests shall not be certificated, then each Seller shall execute and deliver an assignment of such membership interest;

(iii) releases executed by Sellers in the form of Exhibit B attached hereto (collectively, “Sellers’ Releases”);

(iv) an Employment Agreement in the form attached hereto as Exhibit C executed by Xxxxxxx (the “Xxxxxxx Agreement”);

(v) executed letters of resignation from all managers, officers and directors of the Company, effective upon the Closing, in forms reasonably acceptable to Buyer;

(vi) a certificate signed by Sellers, certifying to the fulfillment of the conditions specified in Section 8.1 and Section 8.2;

(vii) an opinion of counsel to Sellers and the Company, each dated the Closing Date, in forms reasonably acceptable to Buyer;

(viii) evidence of full and final payment by the Company of all amounts owing to holders of options to acquire membership interests in the Company, for the complete cancellation and termination of such options;

(ix) the Registration Rights Agreement in the form attached hereto as Exhibit D;

(x) the Required Consents;

(xi) a payoff letter from Xxxxx, dated as of the Closing Date, addressed to the Company and setting forth the amount required to pay in full any portion of the Indebtedness owed by the Company to Xxxxx;

(xii) a certificate signed by the Chief Executive Officer of Xxxxx authorizing and approving the execution and delivery of this Agreement to Buyer and the consummation of the transactions contemplated hereby, dated as of the Closing Date.

(xiii) a copy of a resolution of the Board of Directors and shareholders of EMS authorizing and approving the execution and delivery of this Agreement to Buyer and the consummation of the transactions contemplated hereby, duly certified by an officer of EMS as of the Closing Date as being true, correct, complete and unamended; and

(xiv) an Option Termination Agreement in the form attached hereto as Exhibit E, duly executed by each Person who is a holder of any options to acquire any membership interest or any membership units of the Company.

(b) Deliveries by Buyer. Buyer will deliver to Sellers:

(i) the Escrow Agreement, executed by Buyer;

(ii) the payments to be made at Closing to Sellers pursuant to Section 2.3;

(iii) the Xxxxxxx Agreement, executed by Buyer;

(iv) the Registration Rights Agreement, executed by Buyer;

(v) an opinion of counsel to Buyer, dated the Closing Date, in a form reasonably acceptable to Sellers;

(vi) a certificate signed by Buyer, certifying to the fulfillment of the conditions specified in Section 9.1 and Section 9.2;

(vii) Issuance of Buyer Options pursuant to Section 2.3(d); and

(viii) a copy of a resolution of the Board of Directors of Buyer authorizing and approving the execution and delivery of this Agreement to Sellers and the consummation of the transactions contemplated hereby, duly certified by an officer of Buyer as of the Closing Date as being true, correct and unamended.

ARTICLE 4

REPRESENTATIONS AND WARRANTIES OF THE SELLERS

Each of the Sellers, jointly and severally, represents and warrants to Buyer that the statements contained in this ARTICLE 4 are true and correct as of the date of this Agreement and as of the Closing Date, except as set forth in the section of the Sellers’ Disclosure Schedule numbered to correspond to the Section of this ARTICLE 4 to which such exception relates:

4.1 Organization and Good Standing.

(a) Good Standing. The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, with full limited liability company power and authority to conduct its business as it is now being conducted, to own or use the properties and assets that it purports to own or use, and to perform all of its obligations under Applicable Contracts. The Company is duly qualified to do business as a foreign limited liability company and is in good standing under the laws of each state or other jurisdiction where the failure to be so qualified would have a Material Adverse Effect.

(b) Organizational Documents. Sellers have delivered to Buyer true and complete copies of the Organizational Documents of the Company, as currently in effect.

(c) Subsidiaries. The Company has no subsidiaries. The Company does not own directly or indirectly any equity ownership interest in any other Person.

4.2 Authority; No Conflict.

(a) Enforceability. This Agreement constitutes the legal, valid and binding obligation of Company and Sellers, enforceable against Company and Sellers in accordance with its terms, except that such enforceability may be limited by the Enforceability Exceptions. Upon the execution and delivery by Sellers of the Escrow Agreement, the Xxxxxxx Agreement, the Registration Rights Agreement and Sellers’ Releases (collectively, the “Sellers’ Closing Documents”) the Sellers’ Closing Documents will constitute the legal, valid and binding obligations of Sellers, enforceable against Sellers in accordance with their respective terms, subject to the Enforceability Exceptions. Sellers have the absolute and unrestricted right, power, authority, and capacity to execute and deliver this Agreement and the Sellers’ Closing Documents and to perform their obligations under this Agreement and the Sellers’ Closing Documents.

(b) No Conflict. Except as set forth in Section 4.2(b) of the Sellers’ Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation or performance of any of the Contemplated Transactions will, directly or indirectly (with or without notice or lapse of time): (i) contravene, conflict with, or result in a violation of (A) any provision of the Organizational Documents of the Company, or (B) any resolution adopted by the Manager or Members of the Company; (ii) contravene, conflict with, or result in a violation of, or give any Governmental Body or other Person the right to challenge any of the Contemplated Transactions or to exercise any remedy or

obtain any relief under, any Legal Requirement to which the Company or either Seller, or any of the assets owned or used by the Company, may be subject; (iii) contravene, conflict with, or result in a violation of any of the terms or requirements of, or give any Governmental Body the right to revoke, withdraw, suspend, cancel, terminate, or modify, any Governmental Authorization that is held by the Company or that otherwise relates to the business of, or any of the assets owned or used by, the Company; (iv) cause Buyer or the Company to become subject to, or to become liable for the payment of, any Tax; (v) contravene, conflict with, or result in a violation or breach of any provision of, or give any Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; or (vi) result in the imposition or creation of any Encumbrance upon or with respect to any of the assets owned or used by the Company.

4.3 Required Consents. Except as set forth in Section 4.3 of the Sellers’ Disclosure Schedule, neither any of the Sellers nor the Company is or will be required to give any notice to or obtain any Consent from any Person in connection with the execution and delivery of this Agreement or the consummation or performance of any of the Contemplated Transactions (the matters set forth in Section 4.3 of the Sellers’ Disclosure Schedule, the “Required Consents”).

4.4 Capitalization. The authorized and outstanding limited liability company interests of the Company consist of 820,000 Class A units, 180,000 Class B units and 50,000 Class C units. The Company has authorized the reserve of 250,000 Class C Units to be issued upon exercise of options pursuant to Company Stock Option Plan. The Company has issued options for 210,500 units pursuant to the Company Stock Option Plan. Sellers own the Membership Interests in the proportions set forth in Section 4.4 of the Sellers’ Disclosure Schedule. No legend or other reference to any purported Encumbrance appears upon any certificate representing equity securities of the Company. All of the outstanding equity securities of the Company have been duly authorized and validly issued and are fully paid and nonassessable. Other than as listed on Section 4.4 of the Sellers’ Disclosure Schedules, there are no options, warrants, convertible securities or other rights, agreements, arrangements or commitments relating to the Membership Interests of the Company or obligating either a Seller or the Company to issue, sell or redeem any equity interests in the Company or other securities of the Company. None of the outstanding equity securities or other securities of the Company was issued in violation of the Securities Act or any other Legal Requirement. Except as is disclosed in Section 4.4 of Seller’s Disclosure Schedule, the Company does not own, or have any Contract to acquire, any equity securities or other securities of any Person (other than the Company) or any direct or indirect equity or ownership interest in any other business.

4.5 Financial Statements.

(a) Sellers have made available to Buyer: (i) reviewed unaudited balance sheets of the Company as of December 31, 2005 and 2006, and the related statements of income, statements of members’ equity, and cash flow for each of the fiscal years then ended, together with the notes thereto and the report thereon, and (ii) an unaudited balance sheet of the Company as of September 30, 2007 (the “Base Balance Sheet”), and related statement of income for the nine month period then ending (all financial

statements referenced in this Section 4.5(a) collectively, including the Base Balance Sheet, are hereinafter referred to as the “Reviewed Financial Statements”).

(b) The Reviewed Financial Statements, and, upon delivery to Buyer the Audited Financial Statements will, fairly present in all material respects the financial condition and the results of operations, member’s equity and cash flow of the Company as at the respective dates of and for the period referred to in such financial statements, the Reviewed Financial Statements, and, upon delivery to Buyer the Audited Financial Statements will, reflect the consistent application of such accounting principles throughout the periods involved, except as disclosed in the notes to such financial statements. No financial statements of any Person other than the Company are required by GAAP to be included in the financial statements of the Company.

4.6 Books and Records. The books of account, minute books, membership record books, and other records of the Company, all of which have been made available to Buyer, have been maintained in accordance with sound business practices from and after the Reference Date. The minute books of the Company contain accurate and complete records of all meetings held of, and Company action taken by, the Members, the Manager, and committees of the Company from and after the Reference Date, and no meeting of any such Members, Manager, or committee has been held from and after the Reference Date for which minutes have not been prepared and are not contained in such minute books. At the Closing, all of those books and records will be in the possession, or under the control of, of the Company.

4.7 Title To Properties; Membership Interests; Encumbrances. The Company owns subject only to the matters permitted by the following sentence all of the properties and assets (whether real, personal, or mixed and whether tangible or intangible) that it purports to own located in the facilities owned or operated by the Company or reflected as owned in the books and records of the Company, including all of the properties and assets reflected in the Base Balance Sheet (except for assets held under capitalized leases disclosed in Section 4.7 of the Sellers’ Disclosure Schedule and personal property sold since the date of the Base Balance Sheet, as the case may be, in the Ordinary Course of Business), and all of the properties and assets purchased or otherwise acquired by the Company since the date of the Base Balance Sheet (except for personal property acquired and sold since the date of the Base Balance Sheet in the Ordinary Course of Business and consistent with past practice), which subsequently purchased or acquired properties and assets with a book value in excess of the Threshold Amount (other than inventory and short-term investments) are listed in Section 4.7 of the Sellers’ Disclosure Schedule. All material properties and assets reflected in the Base Balance Sheet are free and clear of all Encumbrances other than Permitted Encumbrances. Each Seller is the lawful record and beneficial owner of the Membership Interests transferred hereby. The Membership Interests represent all of the issued and outstanding membership interests of the Company. Each Seller owns the Membership Interests transferred by such Seller hereby free and clear of all Encumbrances except for restrictions on transfer under federal and state securities laws.

4.8 Accounts Receivable. All accounts receivable of the Company that are reflected on the Base Balance Sheet or on the accounting records of the Company as of the Closing Date (collectively, the “Accounts Receivable”) represent or will represent valid obligations of a Company customer owed to the Company arising from sales actually made or services actually

performed in the Ordinary Course of Business. To the Knowledge of Sellers, there is no contest, claim, or right of set-off, other than returns in the Ordinary Course of Business, under any Contract with any obligor of an Accounts Receivable relating to the amount or validity of such Accounts Receivable. Section 4.8 of the Sellers’ Disclosure Schedule contains a complete and accurate list of all Accounts Receivable as of the date of the Base Balance Sheet, which list sets forth the aging of such Accounts Receivable.

4.9 Inventory. All Inventory of the Company, whether or not reflected in the Base Balance Sheet, consists of a quality and quantity usable and salable in the Ordinary Course of Business, except for obsolete items and items of below-standard quality, all of which have been written off or written down to net realizable value in the Base Balance Sheet or on the accounting records of the Company as of the Closing Date, as the case may be.

4.10 No Undisclosed Liabilities. The Company has no Liabilities which are required under GAAP to be disclosed in the Financial Statements of the Company except for Liabilities reflected or reserved against in the Base Balance Sheet and reflected in the notes to the Reviewed Financial Statements, Liabilities incurred in the Ordinary Course of Business since the respective dates thereof and Liabilities under any of the transaction documents relating to any of the Contemplated Transactions.

4.11 Indebtedness. Section 4.11 of the Sellers’ Disclosure Schedule sets forth all of the outstanding Indebtedness of the Company (the “Scheduled Debt”) as of the date hereof, together with any prepayment or other penalties that would result from the prepayment or refinancing of such Indebtedness. All of the Scheduled Debt has been incurred in the Ordinary Course of Business and has been used for valid corporate purposes.

4.12 Taxes.

(a) Compliance. The Company has timely filed or timely requested extensions to file those Tax Returns which are currently due or, if not yet due, will timely file or timely request extensions to file with the appropriate Governmental Bodies all Tax Returns required to have been filed by the Closing, the information included in the Tax Returns filed is or will be when filed, complete and accurate in all material respects, and the Company has paid all Taxes shown to be due and payable on such returns. All Taxes for which the Company is obligated and which are attributable to fiscal periods ending on or before the Closing Date (including, without limitation, any Taxes attributable to the portion of any fiscal period that precedes, but does not end on, the Closing Date) have either been paid or are reflected as a liability on the books and records of the Company. The Company has, within the time and manner prescribed by applicable law, rules and regulations, withheld and paid over to proper taxing or other Governmental Bodies all Taxes required to be withheld and paid over.

(b) Audits. Subsequent to the Reference Date the Company has not received any written notice that any deficiencies for Taxes have been claimed, proposed, or assessed by any Governmental Body with respect to the Company for any period ending before the Closing Date that have not been resolved, and the Company has not received any written notice that there are any pending or, to the Knowledge of Sellers and the

Company, Threatened, audits, investigations, or claims for or relating to any liability of the Company in respect of Taxes. Audits of federal, state, and local Tax Returns of the Company, if any, by the relevant Governmental Bodies have been completed for each period set forth in Section 4.12 of the Sellers’ Disclosure Schedule. No extension or waiver of a statute of limitations relating to Taxes is in effect with respect to any Company Tax Return.

4.13 No Material Adverse Effect. Since December 31, 2006, there has not been any Material Adverse Effect on the Company.

4.14 Employee Benefits.

(a) List of Plans. Section 4.14(a) of the Sellers’ Disclosure Schedule sets forth a complete list of each “employee benefit plan” as defined in Section 3(3) of the ERISA (whether or not subject to ERISA) and any other plan, policy, program practice, agreement, understanding or arrangement (whether written or oral) providing compensation or other benefits to any current or former director, officer, employee or consultant (or to any dependent or beneficiary thereof of the Company or any ERISA Affiliate (as defined below)), which are now, or were within the past six (6) years, maintained, sponsored or contributed to by the Company or any ERISA Affiliate, or under which the Company or any ERISA Affiliate has any obligation or liability, whether actual or contingent, including, without limitation, all incentive, bonus, deferred compensation, vacation, holiday, cafeteria, medical, disability, equity purchase, equity option, equity appreciation, phantom equity, restricted equity or other equity based compensation plans, policies, programs, practices or arrangements (each, a “Company Benefit Plan”). For purposes of this Section 4.14, “ERISA Affiliate” means any entity (whether or not incorporated) other than the Company that, together with the Company, is (or at the relevant time was) considered under common control and treated as one employer under Section 414(b), (c), (m) or (o) of the Code.

(b) Deliveries. With respect to each Company Benefit Plan, the Company has made available to Buyer complete copies of (i) the Company Benefit Plan (or, if not written a written summary of its material terms), including, without limitation, all plan documents, trust agreements, insurance contracts or other funding vehicles and all amendments thereto, (ii) all summaries and summary plan descriptions, including any summary of material modifications (iii) the most recent annual reports (Form 5500 series) filed with the IRS with respect to such Company Benefit Plan (and, if the most recent annual report is a Form 5500R, the most recent Form 5500C filed with respect to such Company Benefit Plan), (iv) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, (v) the most recent determination or opinion letter, if any, issued by the IRS with respect to the Company Benefit Plan and any pending request for such a determination letter, (vi) the most recent nondiscrimination tests performed under the Code (including 401(k) and 401(m) tests) for the Company Benefit Plan, (vii) all filings, other than routine tax return filings, made with any Governmental Bodies, including, but not limited to, any filings under the Voluntary Compliance Resolution or Closing Agreement Program or the Department of Labor Delinquent Filer Program.

(c) General Compliance. Each Company Benefit Plan has been administered in all material respects in accordance with its terms and all applicable Laws, including ERISA and the Code, and contributions required to be made under the terms of any of the Company Benefit Plans as of the date of this Agreement have been timely made or, if not yet due, have been properly reflected on the most recent consolidated balance sheet filed or incorporated by reference in the financial statements of the Company prior to the date of this Agreement. All Tax, annual reporting and other governmental filings required by ERISA and the Code have been timely filed with the appropriate Governmental Body and all notices and disclosures have been timely provided to participants.

(d) Tax Qualification of Plans. Each Company Benefit Plan which is intended to qualify under Section 401(a), Section 401(k), Section 401(m) or Section 4975(e)(6) of the Code has either (i) received a favorable determination letter from the IRS as to its qualified status and the tax-exempt status of the related trust, (ii) may rely upon a prototype opinion letter or (iii) the remedial amendment period for such Company Benefit Plan has not yet expired, and each trust established in connection with the Company Benefit Plan which is intended to be exempt from federal income taxation under Section 501(a) of the Code is so exempt.

(e) Prohibited Transactions, Legal Actions, Ability to Amend, and Deductibility. Except as set forth on Section 4.14 of the Sellers’ Disclosure Schedule, (i) to the Knowledge of Sellers and the Company, there has been no prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code and other than a transaction that is exempt under a statutory or administrative exemption) with respect to the Company Benefit Plan that could result in liability to the Company or an ERISA Affiliate, (ii) the Company Benefit Plan can be amended, terminated or otherwise discontinued after the Closing Date in accordance with its terms, without liability (other than (A) liability for ordinary administrative expenses typically incurred in a termination event or (B) if the Company Benefit Plan is a pension benefit plan subject to Part 2 of Title I of ERISA, liability for the accrued benefits as of the date of such termination (if and to the extent required by ERISA) to the extent that either there are sufficient assets set aside in a trust or insurance contract to satisfy such liability or such liability is reflected on the most recent balance sheet included in the financial statements of the Company prior to the date of this Agreement), (iii) no suit, administrative proceeding, action or other litigation has been brought, or to the Knowledge of Sellers and the Company, is Threatened, against or with respect to any such Company Benefit Plan, including any audit or inquiry by the IRS or United States Department of Labor (other than routine benefits claims), and (iv) to the Knowledge of Sellers and the Company, (A) none of the Company or any ERISA Affiliate has any liability under ERISA Section 502, (B) all contributions and payments to such Company Benefit Plan are deductible and have been deductible under Code sections 162 or 404, and (C) no excise tax could be imposed upon the Company under Chapter 43 of the Code.

(f) Title IV of ERISA. Except as set forth in Section 4.14 of the Sellers’ Disclosure Schedule, no Company Benefit Plan is a multiemployer pension plan (as defined in Section 3(37) of ERISA) (“Multiemployer Plan”) or other pension plan

subject to Title IV of ERISA and neither the Company nor any ERISA Affiliate has sponsored or contributed to or been required to contribute to a Multiemployer Plan or other pension plan subject to Title IV of ERISA. No material liability under Title IV of ERISA has been incurred by the Company or any ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to the Company or any ERISA Affiliate of incurring or being subject (whether primarily, jointly or secondarily) to a material liability thereunder. None of the assets of the Company or any ERISA Affiliate is, or may reasonably be expected to become, the subject of any lien arising under ERISA or Section 412(n) of the Code.

(g) Change in Control. Except as set forth in Section 4.14 of the Sellers’ Disclosure Schedule, no amount that has been or could be received (whether in cash or property or the vesting of property), by any employee, officer, Manager or director of the Company who is a “disqualified individual” (as such term is defined in Treasury Regulation Section 1.280G-1) under the Company Benefit Plan could be characterized as an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code), as a result of the consummation of the Contemplated Transactions. Set forth in Section 4.14 of the Sellers’ Disclosure Schedule is (i) the estimated maximum amount that could be paid to any disqualified individual as a result of the Contemplated Transactions under all employment, severance and termination agreements, other compensation arrangements and Company Benefit Plans currently in effect, and (ii) the “base amount” (as defined in Section 280G(b)(e) of the Code) for each such individual as of the date of this Agreement.

(h) Retiree Health/COBRA. Except as set forth in Section 4.14 of the Sellers’ Disclosure Schedule, no Company Benefit Plan provides any of the following retiree or post-employment benefits to any Person: medical, disability or life insurance benefits. No Company Benefit Plan is a voluntary employee benefit association under Section 501(a)(9) of the Code. The Company and the ERISA Affiliates are in material compliance with (i) the requirements of the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the regulations (including proposed regulations) thereunder and any similar state Law and (ii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996, as amended, and the regulations (including the proposed regulations) thereunder.

(i) 409A / Deferred Compensation/Backdating. No payment or benefit provided pursuant to the Company Benefit Plan between the Company and any “service provider” (as such term is defined in Section 409A of the Code and the Treasury Regulations and Internal Revenue Service guidance thereunder), including the grant, vesting or exercise of any option to purchase membership interests of the Company or appreciation right, will or may provide for the deferral of compensation subject to Section 409A of the Code, whether pursuant to the execution and delivery of this Agreement by Sellers or the consummation of the Contemplated Transactions (either alone or upon the occurrence of any additional or subsequent events) or otherwise. The Company option and membership interest appreciation right was granted in compliance with applicable Law and with an exercise price that was not less than the fair market

value of the underlying Company membership interest on the date the option or right was granted based upon a reasonable valuation method. The Company is not a party to, or otherwise obligated under, the Company Benefit Plan, that provides for the gross-up of the Tax imposed by Section 409A(a)(1)(B) of the Code. The execution and delivery of this Agreement and the consummation of the Contemplated Transactions will not (either alone or upon the occurrence of any additional or subsequent events) constitute an event under the Company Benefit Plan or Contract that will or may result in any payment of deferred compensation which will not be in compliance with Section 409A of the Code.

(j) Unfunded Liabilities. Except as set forth in Section 4.14 of the Sellers’ Disclosure Schedule, neither the Company nor any of its ERISA Affiliates has any unfunded Liabilities pursuant to the Company Benefit Plan that is not intended to be qualified under Section 401(a) of the Code and is an employee pension benefit plan within the meaning of Section 3(2) of ERISA, a nonqualified deferred compensation plan or an excess benefit plan. No Company Benefit Plan is a “nonqualified deferred compensation plan” (as defined under Section 409A(d)(1) of the Code).

4.15 Compliance with Legal Requirements; Governmental Authorizations.

(a) Compliance. Except as set forth in Section 4.15(a) of the Sellers’ Disclosure Schedule the Company is, and at all times since the Reference Date has been, in compliance in all material respects with each Legal Requirement that is or was applicable to it or to the conduct or operation of its business or the ownership or use of any of its assets, including, without limitation, all applicable import and export control laws.

(b) Governmental Authorizations. Section 4.15(b) of the Sellers’ Disclosure Schedule contains a complete and accurate list of each Governmental Authorization that is held by the Company. Each Governmental Authorization listed or required to be listed in Section 4.15(b) of the Sellers’ Disclosure Schedule is valid and in full force and effect. Except as set forth in 4.15(b) of the Sellers’ Disclosure Schedule the Company is, and at all times since the Reference Date has been, in material compliance with all of the material terms and requirements of each Governmental Authorization identified or required to be identified in Section 4.15(b) of the Sellers’ Disclosure Schedule. The Governmental Authorizations listed in Section 4.15(b) of the Sellers’ Disclosure Schedule collectively constitute all of the Governmental Authorizations necessary to permit the Company to lawfully conduct and operate its business as such business is currently operated and to permit the Company to own and use its assets as such assets are currently used.

4.16 Legal Proceedings. Except as set forth in Section 4.16 of the Sellers’ Disclosure Schedule, Sellers have not received any written notice there is pending or Threatened any Proceeding: (i) that has been commenced by or against the Company seeking or asserting damages in excess of the Threshold Amount or (ii) that challenges, or that may have the effect of preventing, delaying, making illegal, or otherwise interfering with, any of the Contemplated Transactions. To the Knowledge of Sellers and the Company, no such Proceeding has been Threatened. Sellers have made available to Buyer copies of all pleadings, correspondence, and

other documents relating to each Proceeding listed in Section 4.16 of the Sellers’ Disclosure Schedule.

4.17 Absence of Certain Changes and Events. Except as set forth in Section 4.17 of the Sellers’ Disclosure Schedule, since December 31, 2006, the Company has conducted its business only in the Ordinary Course of Business in all material respects and there has not been any: (a) event that has had a Material Adverse Effect; (b) change in the Company’s authorized or issued membership interests; grant of any option or right to purchase membership interests of the Company; issuance of any security convertible into such membership interests; grant of any registration rights; purchase, redemption, retirement, or other acquisition by the Company of any membership interests; or declaration or payment of any dividend or other distribution or payment in respect of membership interests other than distributions to Sellers to enable Sellers to pay all Tax due with respect to the income of the Company; (c) amendment to the Organizational Documents of the Company; (d) payment or increase by the Company of any bonuses, salaries, or other compensation to any member, manager, director, officer, or (except in the Ordinary Course of Business) employee or entry into any employment, severance, or similar Contract with any manager, director, officer, or employee; (e) adoption of, or increase in the payments to or benefits under, any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or other employee benefit plan for or with any employees of the Company other than pursuant to the terms of such plan; (f) damage to or destruction or loss of any asset or property of the Company in excess of the Threshold Amount, whether or not covered by insurance; (g) entry into, termination of, or receipt of notice of termination of (i) any license, distributorship, dealer, sales representative, joint venture, credit, or similar agreement, or (ii) any Contract or transaction involving a total remaining commitment by or to the Company of at least the Threshold Amount; (h) sale (other than sales of Inventory in the Ordinary Course of Business and disposal of obsolete, damaged or defective Inventory or other assets in the Ordinary Course of Business), lease, or other disposition of any asset or property of the Company or mortgage, pledge, or imposition of any lien or other encumbrance on any material asset or property of the Company, including the sale, lease, or other disposition of any of the Intellectual Property Assets; (i) cancellation or waiver of any claims or rights with a value to the Company in excess of the Threshold Amount; (j) material change in the accounting methods used by the Company; or (k) agreement, whether oral or written, by the Company to do any of the foregoing.

4.18 Contracts; No Defaults.

(a) Material Contracts. Section 4.18(a) of the Sellers’ Disclosure Schedule contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of the following Contracts (the “Material Contracts”) to which the Company is a party or by which the Company is bound as of the date hereof:

(i) each Applicable Contract that involves performance of services or delivery of goods or materials by the Company of an amount or value in excess of the Threshold Amount and is not terminable on notice or thirty (30) days or less;

(ii) any Applicable Contract of an amount or value in excess of the Threshold Amount for the purchase of any materials, supplies, equipment, merchandise or services that contains an escalation clause or that obligates the

Company to purchase all or substantially all of its requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier;

(iii) any Applicable Contract of an amount or value in excess of the Threshold Amount for the sale of any of the assets, properties or securities of the Company other than in the Ordinary Course of Business or for the grant to any Person of any option, right of first refusal or preferential or similar right to purchase any such assets, properties or securities;

(iv) any Applicable Contract relating to the acquisition by the Company of any operating business or the equity of any other Person;

(v) any Applicable Contract of an amount or value in excess of the Threshold Amount with customers or suppliers that contains provisions for rebates, credits, discounts or the sharing of fees (but excluding Applicable Contracts containing such provisions relating only to prompt payment of amounts due thereunder);

(vi) any Applicable Contract obligating the Company containing a “most favored nation “ pricing clause;

(vii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than the Threshold Amount and with terms of less than one year);

(viii) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets, and any Applicable Contract involving the assignment, transfer pledge or encumbrance of any of the Intellectual Property Assets;

(ix) each employment contract binding on the Company which requires the Company to make annual payments in excess of the Threshold Amount;

(x) each collective bargaining agreement and other Applicable Contract with any labor union or other employee representative of a group of employees;

(xi) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs or Liabilities by the Company with any other Person;

(xii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company or any Affiliate of the Company or limit the freedom of the Company or any Affiliate of the Company to engage in any line of business or to compete with any Person or in any geographic area;

(xiii) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods or services and other than as provided for in Section 4.18(xvii) below;

(xiv) each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by the Company to be responsible for consequential damages;

(xv) each Applicable Contract for capital expenditures in excess of the Threshold Amount;

(xvi) each written warranty or guaranty with respect to contractual performance extended by the Company other than in the Ordinary Course of Business;

(xvii) any Applicable Contract requiring the payment to any Person of a brokerage or sale commission or a finder’s or referral fee (other than arrangements to pay commissions or fees to employees, agents or recruiters in the Ordinary Course of Business); and

(xviii) any Applicable Contract relating to or evidencing the Scheduled Debt.

(b) Compliance. Except as set forth in Section 4.18(b) of the Sellers’ Disclosure Schedule, each Contract identified or required to be identified in Section 4.18(a) of the Sellers’ Disclosure Schedule is in full force and effect and is valid and enforceable in accordance with its terms, except as such enforceability may be limited by the Enforceability Exceptions. Except as set forth in Section 4.18(b) of the Sellers’ Disclosure Schedule:

(i) the Company is not in default under or in breach of the material terms of any Material Contract.

(ii) to the Knowledge of Sellers no other Party to any Material Contract is in breach of or default under any such Material Contract; and

(iii) no written termination notice has been delivered by any party to any other party with respect to any Material Contract.

(c) Renegotiations. There are no pending renegotiations of, or outstanding rights to renegotiate any material amounts paid or payable to the Company, or the amount, nature or scope of goods or services to be provided by or to the Company, under

current or completed Material Contracts with any Person and, to the Knowledge of Sellers no such Person has made written demand for such renegotiation.

4.19 Insurance. Set forth in Section 4.19 of the Sellers’ Disclosure Schedule is a complete and accurate list and description of all insurance policies, including life, fire, liability, product liability, workers compensation, health and other forms of insurance, currently issued to the Company or paid for by the Company for the benefit of the Sellers with respect to the Business, including any self-insurance arrangement by or affecting the Company, any contract or arrangement, other than a policy of insurance, for the transfer or sharing of any risk by the Company, and all obligations of the Company to third parties with respect to insurance (including such obligations under leases and service agreements) (collectively, the “Insurance Policies”), which description includes the following: the name, address, and telephone number of the agent; the name of the insurer, the name of the policyholder, the name of each covered insured; the policy number and the period of coverage. Sellers have made available to Buyer true and complete copies of the Insurance Policies. With respect to each Insurance Policy, and except as set forth in Section 4.19 of the Sellers’ Disclosure Schedule, (a) the policy is legal, valid, binding and in full force and effect and (b) the Company is not in default under the policy in any material respect. The Company has given timely notice to the insurer of all claims that may be insured thereby, and there is no claim by the Company pending under any such policies as to which such Company has received written notice that coverage has been questioned, denied or disputed by the underwriters of such policies. Section 4.19 of the Sellers’ Disclosure Schedule sets forth a summary of the loss experience under each Insurance Policy since the Reference Date and a statement describing each claim under an insurance policy since the Reference Date for an amount in excess of the Threshold Amount. The Insurance Policies, taken together, are sufficient for compliance with all Legal Requirements and Contracts which specify specific insurance coverage requirements to which the Company is a party or by which it is bound and will continue in full force and effect following the consummation of the Contemplated Transactions. The Company has paid all premiums due, and has otherwise performed all of its material obligations, under each insurance policy to which the Company is a party or that provides coverage to the Company or any officer or director thereof.

4.20 Real Property.

(a) Real Property. Except as is disclosed in Section 4.20(a) of the Seller’s Disclosure Schedule, the Company does not own any real property and, prior to the date hereof, the Company has never owned any real property. The Company currently leases the Facilities identified as being so currently leased on Section 4.20 of the Sellers’ Disclosure Schedule, and prior to the date hereof the Company has previously leased the Facilities identified as being so previously leased on Schedule 4.20 of the Sellers’ Disclosure Schedule (the “Leased Real Property”, and collectively, the “Real Property”). Except as set forth on Section 4.20 of the Sellers’ Disclosure Schedule, neither Sellers nor the Company have received written notice that there are any pending or, to the Knowledge of Sellers and the Company, Threatened, condemnation or other Proceedings relating to the Real Property or other matters adversely affecting the current use or occupancy of the Real Property. To the Knowledge of Sellers and the Company, the Company has received all requisite approvals of Governmental Bodies (including licenses and permits) required in connection with the operation of the Real Property and

neither the Sellers nor the Company have received written notice that the Real Property has not been operated and maintained in all material respects in accordance with applicable Laws. The Company has not entered into any leases, subleases, licenses, concessions, or other agreements, written or oral, granting to any party the right of use or occupancy of any portion of the Real Property.

(b) All Real Property has access to public roads and streets. The Real Property is supplied with utilities and other services necessary for the operation of such Real Property, including gas, electricity, water, telephone, sanitary sewer, and storm sewer.

(c) Except as is set forth in Section 4.20(c) of Sellers’ Disclosure Schedule, there are no (i) unrecorded agreements between the Company and any third parties or Governmental Bodies which affect any of the Real Property; or (ii) underground or above ground storage tanks on any Real Property. All of the assets of the Company are located at the Real Property, other than with respect to Inventory in transit or machinery, equipment or other assets which are being maintained or repaired at the location of a third party.

4.21 Environmental Matters. Except as disclosed in Section 4.21 of the Sellers’ Disclosure Schedule or any environmental engineering report made available to Buyer by the Company or any Seller:

(a) To the Knowledge of Sellers and the Company, the Company is, and at all times has been, in compliance with, and has not been and is not in material violation of or liable under, any Environmental Law except for such violations as would not reasonably be expected to result in expenditures in excess of the Threshold Amount. The Company has not received, in writing, any actual or Threatened order, notice, or other communication from (i) any Governmental Body or private citizen acting in the public interest, or (ii) the current or prior owner or operator of any Facilities, of any actual or potential violation or failure by the Company to comply with any Environmental Law, or of any actual or Threatened obligation of the Company to undertake or bear the cost of any Environmental, Health, and Safety Liabilities with respect to any of the Facilities or any other properties or assets (whether real, personal, or mixed) in which the Company has had an interest, or with respect to any property or Facility at or to which Hazardous Materials were generated, manufactured, refined, transferred, imported, used, or processed by the Company, or any other Person for whose conduct the Company is responsible, or from which Hazardous Materials have been transported, treated, stored, handled, transferred, disposed, recycled, or received.

(b) Neither the Company nor the Sellers have received any written notice, that there are any pending or, to the Knowledge of Sellers and the Company, Threatened claims or Encumbrances resulting from any Environmental, Health, and Safety Liabilities or arising under or pursuant to any Environmental Law, with respect to or affecting any of the Facilities or any other properties and assets (whether real, personal, or mixed) owned or operated by the Company.

(c) Since the Reference Date neither Sellers nor the Company has received, any written citation, directive, inquiry, notice, Order, summons, warning, or other communication that relates to Hazardous Activity, Hazardous Materials, or any alleged, actual, or potential material violation or failure to comply with any Environmental Law, or of any alleged, actual, or potential material obligation to undertake or bear the cost of any Environmental, Health, and Safety Liabilities with respect to any of the Facilities or any other properties or assets (whether real, personal, or mixed) owned or operated by the Company, or with respect to any property or facility to which Hazardous Materials generated, manufactured, refined, transferred, imported, used, or processed by the Company, or any other Person for whose conduct it is responsible, have been transported, treated, stored, handled, transferred, disposed, recycled, or received.

(d) To the Knowledge of Sellers and the Company, there are no Hazardous Materials present at the Facilities or any facility or property leased or operated by the Company that give rise to any current obligation under any Environmental Law. To the Knowledge of Sellers and the Company, neither the Company nor any other Person for whose conduct they are or may be held responsible, or to the Knowledge of Sellers and the Company, any other Person, has permitted or conducted any Hazardous Activity conducted since the Reference Date with respect to the Facilities or any facility or property leased or operated by the Company that give rise to any current obligation under any Environmental Law.

(e) To the Knowledge of Sellers and the Company, the Company has not treated, stored, disposed of, transported, handled or released any Hazardous Materials except in material compliance with Environmental Laws.

(f) Sellers have made available to Buyer true and complete copies of any reports, studies, analyses, tests, or monitoring possessed or initiated by Sellers or the Company pertaining to Hazardous Materials or Hazardous Activities in, on, or under the Facilities, or concerning compliance by the Company or any other Person for whose conduct it is responsible, with Environmental Laws since the Reference Date.

4.22 Employees.

(a) Section 4.22(a) of the Sellers’ Disclosure Schedule contains a list of a recent date of the following information for each Person who is a director, officer, manager or other salaried employee of the Company, including each salaried employee on leave of absence or layoff status: name; job title; current compensation paid or payable and any change in compensation since December 31, 2006; vacation accrued; and service credited for purposes of vesting and eligibility to participate under the Company’s pension, retirement, profit-sharing, thrift-savings, deferred compensation, equity bonus, equity option, cash bonus, employee membership ownership (including investment credit or payroll equity ownership), termination notice or pay, severance pay, insurance, medical, welfare, vacation plan or any other employee benefit plan. For any salaried employee who is on leave of absence, Section 4.22(a) of the Sellers’ Disclosure Schedule indicates the reason for absence and the expected duration. Other than any limitations imposed under the collective bargaining agreements set forth in Section 4.22(a) of the

Sellers’ Disclosure Schedule, except as is set forth in Section 4.22(a) of the Sellers’ Disclosure Schedule, all employees of the Company are employees at will, and no severance or other amounts are payable to such employees upon termination of employment, other than with respect to vested rights under the Company Benefit Plans.

(b) The Company is in compliance in all material respects with all applicable Laws relating to employment and employment practices, workers’ compensation, terms and conditions of employment, worker safety, pay equity, employment insurance, wages and hours and the Worker Adjustment and Retraining Notification Act. Except as set forth in Section 4.22(b) of the Sellers’ Disclosure Schedule, since the Reference Date, there have been no claims of harassment, discrimination, retaliatory act or similar actions filed against any officer, director, manager or employee of the Company. The Company has made all required payments to its unemployment compensation reserve accounts with the appropriate governmental departments of the states where it is required to maintain such accounts, and each of such accounts has a positive balance. The Company has made available to Buyer copies of, all reports of the Company required since the Reference Date under the Federal Occupational Safety and Health Act of 1970, as amended, and under all other applicable health and safety Laws and regulations. The deficiencies, if any, noted on such reports or any reports prepared by independent consultants have been corrected or otherwise resolved to the satisfaction of the Governmental Body that gave notice of such deficiency, which satisfaction has been confirmed in writing by such applicable Governmental Body and copies of which have been made available to Buyer.

(c) Except as set forth in Section 4.22(c) of the Sellers’ Disclosure Schedule, the Company has not received written notice that any employee identified in Section 4.22(a) of the Sellers’ Disclosure Schedule intends to terminate his employment with the Company.

(d) Section 4.22(d) of the Sellers’ Disclosure Schedule contains a complete and accurate list of the following information for each retired employee, manager or director of the Company, or their dependents, receiving benefits or scheduled to receive benefits in the future: name, pension benefit, pension option election, retiree medical insurance coverage, retiree life insurance coverage, and other benefits.

4.23 Labor Relations; Compliance. Section 4.23 of the Sellers’ Disclosure Schedule identifies every collective bargaining or other labor Contract to which the Company is a party at the date hereof. Except as is set forth in Section 4.23 of the Sellers’ Disclosure Schedule, since the Reference Date, there has not been, and the Company has not received written notice that there is presently pending or existing, and to the Knowledge of Sellers and the Company, there is not Threatened, (a) any strike, slowdown, picketing, work stoppage, or employee grievance process, (b) any Proceeding against or affecting the Company relating to the alleged violation of any Legal Requirement pertaining to labor relations or employment matters, including any charge or complaint filed by an employee or union with the National Labor Relations Board, the Equal Employment Opportunity Commission, or any comparable Governmental Body, organizational activity, or other labor or employment dispute against or affecting any of the Company or its premises, or (c) any application for certification of a collective bargaining agent. The Company is not currently engaged in bargaining with a bargaining agent or other

representative of a group of employees. There is no currently pending lockout of any employees by the Company, and no such action is contemplated by the Company. The Company has complied in all material respects with all Legal Requirements relating to employment, equal employment opportunity, nondiscrimination, immigration, wages, hours, benefits, collective bargaining, the payment of social security and similar taxes, occupational safety and health, pay equity, workers’ compensation, and plant closing.

4.24 Intellectual Property.

(a) Sufficiency. The Company owns or has the right to use pursuant to licenses or sublicenses, all Intellectual Property necessary for the operation of its business. Each item of Intellectual Property owned or used by the Company immediately prior to the Closing will be owned or available for use by the Company on identical terms and conditions immediately subsequent to the Closing. The Company has taken reasonable action to maintain and protect each item of Intellectual Property that it owns.

(b) Non-Interference. To the Knowledge of Sellers and the Company, since the Reference Date, the Company has not knowingly interfered with, infringed upon, misappropriated, or otherwise come into conflict with any Intellectual Property of third parties, received any written charge, complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation, or violation (including any claim that the Company must license or refrain from using any Intellectual Property of any third party). To the Knowledge of Sellers and the Company, no third party has interfered with, infringed upon, misappropriated, or otherwise come into conflict with any Intellectual Property owned by the Company.

(c) Owned Intellectual Property. Section 4.24 of the Sellers’ Disclosure Schedule sets forth a true and complete list of (i) each registration that has been issued to the Company with respect to any of its Intellectual Property, (ii) each outstanding application for registration that the Company has made with respect to any of its Intellectual Property, and (iii) each outstanding license or sublicense that the Company has granted to any third party with respect to any of its Intellectual Property (together with any exceptions). Sellers have made available to Buyer true, correct and complete copies of all such registrations, applications, licenses or sublicenses (as amended to date) have made available to Buyer true, correct and complete copies of all other written documentation evidencing ownership and prosecution (if applicable) of each such item. Section 4.24 of the Sellers’ Disclosure Schedule also sets forth a true and complete list of each trade name or unregistered trademark now owned by the Company and used in connection with the Business. With respect to each item of Intellectual Property owned by the Company and required to be identified in Section 4.24 of the Sellers’ Disclosure Schedule, except as set forth in such Section 4.24, the Company:

(i) possesses all right, title, and interest in and to the item, free and clear of any Lien, license or other restriction other than a Permitted Encumbrance;

(ii) has not received any written notice that action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand is pending or, to the

Knowledge of Sellers and the Company, is Threatened, that challenges the legality, validity, enforceability, use, or ownership of the item; and

(iii) has no outstanding obligations to indemnify any Person for or against any interference, infringement, misappropriation, or other conflict with respect to the item.

(d) Intellectual Property Licensed to the Company. Section 4.24 of the Sellers’ Disclosure Schedule sets forth a true and complete list of each item of Intellectual Property that any third party owns and that the Company uses pursuant to license or sublicense granted to the Company; provided, however, that Section 4.24 of the Sellers’ Disclosure Schedule need not identify licenses for commercially available computer software. Sellers have made available to Buyer true, correct and complete copies of all such licenses and sublicenses, as amended to date. With respect to each item of Intellectual Property licensed by the Company and required to be identified in Section 4.24 of the Sellers’ Disclosure Schedule, and except as specified in such Section 4.24, (i) the Company is not default thereunder in any material respect; (ii) the license or sublicense covering the item is legal, valid, binding, enforceable against the Company, and in full force and effect; and (iii) no third party to the license or sublicense is in default thereunder in any material respect.

4.25 Customers and Suppliers. Section 4.25 of the Sellers’ Disclosure Schedule sets forth (a) the six (6) largest customers of the Company, on the basis of revenues for services provided for the most recent fiscal year ending December 31, 2006, and states the approximate total sales by the Company to each such customer during such period, and (b) the ten (10) largest suppliers to the Company, on the basis of cost of goods or services purchased for the fiscal year ending December 31, 2006. Neither any of the Sellers nor the Company have received any written notice indicating a plan or intention of any of such customers or suppliers to terminate, cancel or otherwise adversely modify its relationship with the Company or to decrease materially or limit any of its products or services to the Company or its usage or purchase of any of the services or products of the Company, or to change the prices at which such services or products are purchased or sold.

4.26 Relationships With Related Persons. Except as set forth in Section 4.26 of the Seller’s Disclosure Schedule, no Seller or any Related Person of any Seller or the Company has any interest in any property (whether real, personal, or mixed and whether tangible or intangible), used in or pertaining to the Business. Except as set forth in Section 4.26 of the Sellers’ Disclosure Schedule, no Seller or any Related Person of any Seller or the Company is the owner of, or since the Reference Date has owned (of record or as a beneficial owner) an equity interest or any other financial or profit interest in, a Person that has (i) had business dealings or a material financial interest in any transaction with the Company other than business dealings or transactions conducted in the Ordinary Course of Business with the Company at substantially prevailing market prices and on substantially prevailing market terms, or (ii) engaged in competition with the Company with respect to any line of the products or services of the Company (a “Competing Business”) in any market presently served by such Company except for less than one percent (1%) of the outstanding equity interests of any Competing Business that is publicly traded on any recognized exchange or in the over-the-counter market. Except as set

forth in Section 4.26 of the Sellers’ Disclosure Schedule, no Seller or any Related Person of any Seller or the Company is a party to any Contract with, or has any claim or right against, the Company.

4.27 Credit, Rebate, Warranties and Related Matters. Section 4.27 of the Sellers’ Disclosure Schedule contains a true, correct and complete (a) list of the names and amounts of credits and rebates with any customers totaling more than the Threshold Amount per customer in 2005, 2006 or 2007, and the current credit and rebate policies of the Company, (b) list of the names and amounts of rebates received from any supplier of the Company totaling more than the Threshold Amount per supplier in 2005, 2006 or 2007, and (c) a copy of the Company’ standard warranty or warranties for services provided. Except as set forth in Section 4.27 of the Sellers’ Disclosure Schedule and for manufacturer warranties passed through to customers, there are no warranties, commitments or obligations with respect to the services provided by the Company. Section 4.27 of the Sellers’ Disclosure Schedule sets forth the aggregate annual cost to Seller of performing warranty obligations for customers for each of the three (3) preceding fiscal years and the current fiscal year.

4.28 Brokers or Finders. Neither the Company nor Sellers or their agents have incurred any Liability for brokerage or finders’ fees or agents’ commissions or other similar payment in connection with this Agreement.

4.29 Bank Accounts. Section 4.29 of Sellers’ Disclosure Schedule sets forth a complete and correct list of each bank, deposit, lock box or cash collection, management or other account of the Company, including the title and number of the account and the financial or other institution at which such account is located (designating each authorized signatory).

ARTICLE 5

REPRESENTATIONS AND WARRANTIES OF BUYER

Except as disclosed in the Buyer’s Disclosure Schedule, Buyer represents and warrants to Sellers as of the date hereof and as of the Closing Date as follows:

5.1 Organization and Good Standing. Buyer is a corporation duly organized, validly existing, and in good standing under the laws of the State of Nevada. Buyer is duly qualified or licensed to do business and is in good standing, in each jurisdiction where the assets and properties owned, leased or operated by it or the nature of its business make such qualification or licensing necessary, except for failures to be so qualified or licensed and in good standing that do not have a Material Adverse Effect on Buyer.

5.2 Authority; No Conflict.

(a) Enforceability. Buyer has all necessary corporate power and authority to execute and deliver this Agreement and the other transaction documents relating to any of the Contemplated Transactions to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated by this Agreement and relating to any of the Contemplated Transactions have been duly and validly authorized by all necessary corporate action on the part of Buyer, and no other corporate

proceedings on the part of Buyer are necessary to authorize this Agreement or transactions contemplated by this Agreement and relating to any of the Contemplated Transactions. This Agreement and such other transaction documents have been or will be duly executed and delivered by Buyer and, assuming the due authorization, execution and delivery by Sellers and the Company, this Agreement constitutes, and each other transaction document upon execution will constitute, a legal, valid and binding obligation of Buyer enforceable against Buyer in accordance with its terms, subject to the effect of any Enforceability Exceptions. Upon the execution and delivery by Buyer of the Escrow Agreement, the Xxxxxxx Agreement and the Registration Rights Agreement (collectively, the “Buyer’s Closing Documents”), Buyer’s Closing Documents will constitute the legal, valid, and binding obligations of Buyer, enforceable against Buyer in accordance with their respective terms, subject to the Enforceability Exceptions. Buyer has the absolute and unrestricted right, power, and authority to execute and deliver this Agreement and Buyer’s Closing Documents and to perform its obligations under this Agreement and Buyer’s Closing Documents.

(b) No Conflict. The execution and delivery of this Agreement by Buyer do not, and the performance by Buyer of its obligations hereunder and the consummation of any of the Contemplated Transactions will not: (a) conflict with or violate any provision of the certificate of incorporation or by-laws of Buyer; (b) assuming that all required filings and notifications have been made, conflict with or violate any law or order applicable to Buyer or by which Buyer or any of its assets or properties is bound or affected; or (c) result in any breach of or constitute a default under, or require notice or consent under, any mortgage, indenture, deed of trust, lease, contract, agreement, license or other instrument to which Buyer is a party or by which any of Buyer’s assets or properties are bound, or result in the creation of a material Encumbrance on any asset or property of Buyer.

5.3 Consents. Except for such Consents as Buyer may be required to obtain prior to Closing and described in Section 5.3 of Buyer’s Disclosure Schedule (the “Buyer Consents”), Buyer is not and will not be required to obtain any Consent from any Person in connection with the execution and delivery of this Agreement or the consummation or performance of any of the Contemplated Transactions.

5.4 Investment Intent. Buyer is acquiring the Membership Interests for its own account and not with a view to their distribution within the meaning of the Securities Act.

5.5 Legal Proceedings. Except as set forth in Section 5.5 of the Buyer’s Disclosure Schedule, Buyer has not received any written notice there is pending any Proceeding: (i) that has been commenced by or against Buyer seeking or asserting damages in excess of the Threshold Amount, or (ii) that challenges, or that may have the effect of preventing, delaying, making illegal, or otherwise interfering with, any of the Contemplated Transactions. To the Knowledge of Buyer, no such Proceeding has been Threatened.

5.6 Brokers or Finders. Buyer and its officers and agents have incurred no Liability for brokerage or finders’ fees or agents’ commissions or other similar payment in connection with this Agreement or any of the Contemplated transactions.

5.7 Valid Issuance. The Buyer Common Stock to be issued in the Contemplated Transactions has been duly authorized and will, when issued in accordance with the provisions of this Agreement, be validly issued, fully paid and nonassessable and will not be subject to any restriction on resale under the Securities Act, other than restrictions imposed by Rules 144 and 145 under the Securities Act and restrictions imposed in the Registration Rights Agreement.

5.8 Capitalization. The authorized equity securities of the Buyer consist of 100,000,000 shares of common stock, par value $0.001 per share, of which 76,260,912 shares were issued and outstanding as of the date hereof. All of the outstanding equity securities of the Company have been duly authorized and validly issued and are fully paid and nonassessable. Except as disclosed in Section 5.8 of the Buyer’s Disclosure Schedule (i), there are no Contracts relating to the issuance, sale, or transfer of any equity securities or other securities of the Buyer, and (ii) there are no options, warrants, convertible securities or other rights, agreements, arrangements or commitments relating to the capital stock of the Buyer or obligating Buyer to issue, sell or redeem any equity interests in the Company. None of the outstanding equity securities or other securities of the Buyer was issued in violation of the Securities Act or any other Legal Requirement. Except as disclosed in Section 5.8 of the Buyer’s Disclosure Schedule, the Buyer does not own, or have any Contract to acquire, any equity securities or other securities of any Person (other than the current Subsidiaries of the Buyer) or any direct or indirect equity or ownership interest in any other business.

5.9 SEC Filings. Buyer has made available to the Sellers or the Sellers have had access through the XXXXX filing system to accurate and complete copies (excluding copies of exhibits) of each report, registration statement (on a form other than Form S-3 or S-8) and definitive proxy statement filed by Buyer with the Securities and Exchange Commission (the “SEC”) between January 1, 2007 and the date of this Agreement (the “Buyer SEC Documents”). As of the time it was filed with the SEC (or, if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing): (i) each of the Buyer SEC Documents complied in all material respects with the applicable requirements of the Securities Act or the Exchange Act, as the case may be; and (ii) none of the Buyer SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances Buyer SEC Documents: (i) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (ii) were prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods covered, except as may be indicated in the notes to such financial statements and (in the case of unaudited statements) as permitted by Form 10-Q, and except that unaudited financial statements may not contain footnotes and are subject to year-end audit adjustments; and (iii) fairly present the consolidated financial position of the Buyer as of the respective dates thereof and the consolidated results of operations of the Buyer for the periods covered thereby.

5.10 No Material Adverse Effect. Since December 31, 2006 there has not been any Material Adverse Effect on the Buyer or any of its Subsidiaries.

5.11 Compliance with Legal Requirements. Except as set forth in Section 5.11 of the Buyer’s Disclosure Schedule, Buyer and each of its Subsidiaries is, and at all times since December 31, 2006 has been, in material compliance with each Legal Requirement that is or was

applicable to it or to the conduct or operation of its business or the business of any of its Subsidiaries, or the ownership or use of any of its assets or the assets of any of its Subsidiaries.

5.12 No Undisclosed Liabilities. The Buyer has no material Liabilities which are required under GAAP to be disclosed in its financial statements except for Liabilities reflected or reserved against in the consolidated financial statements of the Buyer dated September 30, 2007 and reflected in the notes thereto and Liabilities incurred in the Ordinary Course of Business since such date and Liabilities under any of the transaction documents relating to any of the Contemplated Transactions.

ARTICLE 6

PRE-CLOSING COVENANTS

6.1 Access and Investigation. Between the date of this Agreement and the Closing Date, Sellers and the Company, on the one hand, and Buyer, on the other hand, will, and will cause each of their respective Representatives to, (a) afford the other party and its Representatives and prospective lenders and their Representatives (collectively, “Advisors”), upon reasonable advance notice and during regular business hours, and subject to any required approval of any landlord of any of the Leased Real Property full and free access to the Company’s or Buyer’s (and each of its subsidiaries) as the case may be, personnel, properties, contracts, books and records, and other documents and data, (b) furnish the other party and its Advisors with copies of all such contracts, books and records, and other existing documents and data as the other party may reasonably request, and (c) furnish to the other party and its Advisors with such additional financial, operating, and other data and information as the other party may reasonably request.

6.2 Operation of the Businesses of the Company.

(a) Ordinary Course. Except as expressly provided or permitted herein, or as disclosed in Section 6.2(a) of the Buyer’s Disclosure Schedule, or as consented to in writing by Buyer, as it relates to the Company or Sellers, during the period commencing on the date of this Agreement and ending on the Closing Date or such earlier date as this Agreement may be terminated in accordance with its terms (the “Pre-Closing Period”), the Company shall act and carry on its businesses in the Ordinary Course of Business and shall use commercially reasonable efforts to maintain and preserve its business organization, assets and properties, preserve its business relationships with customers, strategic partners, suppliers, distributors and others having business dealings with it and keep available the services of its present officers, managers, employees and consultants. Without limiting the generality of the foregoing, except as expressly provided or permitted herein, or as disclosed in Section 6.2(a) of the Buyer’s Disclosure Schedule, or pursuant to the terms of any Applicable Contract which is disclosed in Sellers’ Disclosure Schedule, during the Pre-Closing Period, the Company shall not directly or indirectly, do any of the following without the prior written consent of the Buyer, which consent shall not be unreasonably withheld or delayed:

(i) declare, set aside or pay any distributions or dividends on, or make any other distributions (whether in cash, securities or other property) in respect of, any of its membership interests, except that the Company may make distributions to the Sellers in sufficient amount to pay federal, state and local income taxes, at the highest marginal tax rates applicable to such Sellers on the net distributive share of the Company’s income, losses, deductions and credits that have been separately stated and passed through to the Sellers under the Code for the period commencing January 1, 2007 and ending on the close of business on the day immediately preceding the Closing Date, less any amount previously distributed to the Sellers for the purpose of paying any of said taxes which are payable with respect to calendar year 2007 income (collectively the “Permitted Tax Distribution Amount”), provided that the Buyer shall be notified in advance of such distributions; split, combine or reclassify any of its membership interests or other equity securities or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for membership interests or any of its other securities; or purchase, redeem or otherwise acquire any membership interests or any of its other securities or any rights, warrants or options to acquire any such membership interests or other securities;

(ii) issue, deliver, sell, grant, pledge or otherwise dispose of or encumber any membership interests, any other voting securities or any securities convertible into or exchangeable for, or any rights, warrants or options to acquire, any such membership interests, voting securities or convertible or exchangeable securities (other than the issuance of shares of membership interests upon the exercise of options or warrants outstanding on the date of this Agreement);

(iii) amend any of the Organizational Documents or other comparable charter or organizational documents or enter into any new line of business or discontinue any existing line of business;

(iv) acquire by merging or consolidating with, or by purchasing all or a substantial portion of the assets or any stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof, or any assets that are material, in the aggregate, to the Company;

(v) sell, lease, license, pledge, or otherwise dispose of or encumber any material properties or material assets of the Company other than in the Ordinary Course of Business;

(vi) knowingly or irrevocably waive any material right of such company under any Material Contract;

(vii) (A) incur any Indebtedness other than draws under such company’s existing line of credit in the Ordinary Course of Business, make any payments on any existing Indebtedness other than regular payments made pursuant to the terms of such existing Indebtedness, or pay any guaranty fees or other fees to any

guarantor of any Indebtedness of such company, or payments required under the terms of this Agreement, (B) issue, sell or amend any debt securities or warrants or other rights to acquire any debt securities of such company, guarantee any debt securities of another Person, enter into any “keep well” or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, (C) make any loans, advances or capital contributions to, or investment in, any other Person; provided, however, that the Company may, in the Ordinary Course of Business, invest in debt securities maturing not more than ninety (90) days after the date of investment, or (iv) other than in the Ordinary Course of Business, enter into any hedging agreement or other financial agreement or arrangement designed to protect the Company against fluctuations in commodities prices or exchange rates;

(viii) make any capital expenditures or other expenditures with respect to property, plant or equipment in excess of the Threshold Amount in the aggregate;

(ix) make any changes in accounting methods, principles or practices, except insofar as may have been required by a change in GAAP;

(x) except as required to comply with applicable Law or agreements, plans or arrangements existing on the date hereof, (A) adopt, enter into, terminate or materially amend any employment, severance or similar agreement or material benefit plan for the benefit or welfare of any current or former director, officer or employee, (B) increase in any material respect the compensation or fringe benefits of, or pay any bonus to, any director, officer or employee, (C) accelerate the payment, right to payment or vesting of any material compensation or benefits, including any outstanding options or restricted equity awards, other than as contemplated by this Agreement, (D) grant any options to purchase membership interests, equity appreciation rights, equity based or equity related awards, performance units or restricted equity, or (E) take any action other than in the Ordinary Course of Business to fund or in any other way secure the payment of compensation or benefits under any Benefit Plan of such Company;

(xi) make or change any election in respect of Taxes, adopt or change any accounting method in respect of Taxes, file any amendment to a Tax Return, settle any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;

(xii) enter into or amend any Contract or agreement other than in the Ordinary Course of Business or terminate any Material Contract or amend any of its material terms (other than amendments designed to remedy defaults thereunder);

(xiii) commence, pay, discharge, settle or satisfy any lawsuits, claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the Ordinary Course of Business of liabilities reflected or reserved against in the Base Balance Sheet (as it relates to the Company) or the Buyer’s most recent financial statements referred to above or subsequently incurred in the Ordinary Course of Business, or waive any material benefits of any confidentiality, standstill or similar agreements to which such company is a party;

(xiv) permit any material increase in the number of employees employed by the Company on the date hereof;

(xv) terminate or fail to renew any Governmental Authorization that is required for continued operations;

(xvi) enter into any collective bargaining agreement or union contract with any labor organization or union;

(xvii) accelerate or defer any obligation or payment by or to the Company, or not pay any accounts payable or other obligation of the Company when due and other than in the Ordinary Course of Business;

(xviii) decrease or defer in any material respect the level of training provided to the employees of the Company, any required maintenance, repair or replacement of any property, plant or equipment of the Company or the level of costs expended in connection therewith; and

(xix) fail to maintain insurance at levels at least comparable to current levels or otherwise in a manner inconsistent with past practice.

6.3 Required Approvals.

(a) Sellers. If applicable, as promptly as practicable after the date of this Agreement, Sellers and the Company will make all filings required by Legal Requirements to be made by them in order to consummate the Contemplated Transactions. Between the date of this Agreement and the Closing Date, Sellers and the Company will (a) cooperate with Buyer with respect to all filings that Buyer elects to make or is required by Legal Requirements to make in connection with the Contemplated Transactions, (b) cooperate with Buyer in obtaining all consents required by Buyer to consummate the Contemplated Transactions, and (c) take all commercially reasonable actions necessary to obtain the Required Consents.

(b) Buyer. As promptly as practicable after the date of this Agreement, Buyer will, and will cause each of its Related Persons to, make all filings required by Legal Requirements to be made by them to consummate the Contemplated Transactions. Between the date of this Agreement and the Closing Date, Buyer will, and will cause each Related Person to, (a) cooperate with Sellers and the Company with respect to all filings that Sellers are required by Legal Requirements to make in connection with the

Contemplated Transactions, and (b) reasonably cooperate with Sellers and the Company in obtaining all Required Consents; provided, that this Agreement will not require Buyer to dispose of or make any change in any portion of its business to obtain a Governmental Authorization.

6.4 Efforts to Satisfy Conditions.

(a) Sellers. Sellers and the Company will use commercially reasonable efforts to cause the conditions in ARTICLE 8 and ARTICLE 9 to be satisfied.

(b) Buyer. Except as set forth in the proviso to Section 6.3(b), between the date of this Agreement and the Closing Date, Buyer will use commercially reasonable efforts to cause the conditions in ARTICLE 8 and ARTICLE 9 to be satisfied.

6.5 Notices of Certain Events. Prior to the Closing Date, each of Sellers and Buyer shall promptly notify the other of:

(a) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the Contemplated Transactions.

(b) any written notice or other communication from any Governmental Authority in connection with any of the Contemplated Transactions; and

(c) any change that would reasonably be expected to have a Material Adverse Effect, or would reasonably be expected to materially delay or impede the ability of either Sellers or Buyer to perform their respective obligations under this Agreement and to consummate the Contemplated Transactions.

6.6 No Negotiation. Until such time, if any, as this Agreement is terminated pursuant to ARTICLE 10, Sellers and the Company and each of their respective Representatives shall not, directly or indirectly solicit, initiate, or encourage any inquiries or proposals from, discuss or negotiate with, provide any non-public information to, or consider the merits of any unsolicited inquiries or proposals from, any Person (other than Buyer) relating to any transaction involving the sale of the business or assets (other than in the Ordinary Course of Business) of the Company, or any of the membership interests of the Company, or any merger, consolidation, business combination, or similar transaction involving the Company. Sellers and the Company will promptly forward to Buyer copies of any such inquiries or proposals received from any Person.

6.7 Bank Accounts; Powers of Attorney. As of the Closing, at Buyer’s request, Sellers and the Company shall cause Buyer’s designees to be added, and the Company’s designees to be removed, as signatories with respect to each of the Company’s bank accounts and to terminate any powers of attorney with respect to the same which are in effect before the Closing.

6.8 Supplements to Disclosure Schedule. Both Sellers and Buyer shall have the right until the Closing Date to amend or supplement their respective Disclosure Schedules with

respect to any matter hereafter arising (excluding matters existing as of the date hereof). No information provided pursuant to this Section 6.8, however, shall be deemed to modify, or to cure any breach of, any representation, warranty or covenant in this Agreement existing at the date hereof.

6.9 Certain Tax Matters.

(a) Tax Status and Elections. For tax purposes the financial books of the Company shall be deemed closed as of the close of business on the day immediately preceding the Closing Date. Sellers and the Company shall cause all tax sharing agreements or similar arrangements with respect to or involving the Company to be terminated as to such entity as of the Closing Date, and, after the Closing Date, the Company shall not be bound thereby or have any liability thereunder. No new elections, and no changes in current elections, with respect to Taxes affecting the Company shall be made after the date of this Agreement without the prior written consent of Buyer. Sellers shall provide Buyer, on or prior to the Closing Date, with an affidavit stating Sellers’ and the Company’s United States taxpayer identification numbers and that none of the Sellers nor the Company is a foreign person pursuant to Section 1445(b)(2) of the Code.

(b) Pre-Closing Tax Returns. Sellers shall prepare (or cause to be prepared for the Company) all Tax Returns of the Company required to be filed prior to Closing. All such Tax returns shall be prepared in accordance with past practice (unless a contrary position is required by Law), to the extent any position taken in such returns may affect the tax liability of Buyer and the Company after the Closing. Sellers shall timely pay, or cause to be paid, all Taxes relating to such Tax Returns. Seller shall provide Buyer or its designee the opportunity to review a substantially completed draft of each pre-Closing Tax Return reasonably prior to the filing of the applicable pre-Closing Tax Return, and reasonable access to the Person(s) actually responsible for preparing the same; provided, however, that the foregoing rights provided to Buyer (or its designee) will in no way affect (whether or not and regardless of the extent to which Buyer exercises such rights) the nature and scope of any of the representations, warranties, covenants and indemnities of Sellers contained in this Agreement. The parties agree that any reductions in the Base Purchase Price pursuant to Section 2.2(b) above including, without limitation, any payments pursuant to the terminations of the Company’s Option Plan, shall be deducted by the Company on its final Pre-Closing Tax Return.

6.10 Audited Financial Statements. Within five business days after the execution of this Agreement Sellers shall cause the Company to engage Xxxxx Xxxxxxxx, independent certified public accountants (“GT”), for purposes of preparing and delivering to Buyer as soon as possible after the Closing Date audited balance sheets of the Company as of December 31, 2006 and 2007, and the related statements of income, statements of members’ equity, and cash flow for each of the fiscal years then ended, together with the notes thereto and the report thereon (the “Audited Financial Statements”). Xxxxxxx and Xxxx Xxxxxx shall have the principal responsibility for providing responses to inquiries from GT in connection with such audit. Xxxxxxx shall immediately provide the Chief Financial Officer of Buyer with a true, correct and complete copy of all material inquiries received by the Company from GT in connection with such audit (or a written confirmation of any material oral request received by the Company from

GT), as well as a true, correct and complete copy of all material written responses provided by the Company to GT (or a written confirmation of any material oral response provided by the Company to GT) in connection with such audit.

6.11 Tax Distribution of Permitted Tax Distribution Amount. Not less than two business days before the Closing Date, Sellers shall deliver to Buyer for its review and approval a written calculation of the estimated Permitted Tax Distribution Amount. Upon receipt of Buyer’s written approval of the Tax Distribution, the Company shall be deemed authorized to make the Tax Distribution to Sellers prior to the Closing Date. The parties acknowledge and agree that receipt by Sellers of Buyer’s written approval of the Tax Distribution shall not in any manner be deemed or construed to be a final and binding determination of the accuracy of the Permitted Tax Distribution Amount. To the contrary, the parties understand and agree that the final and binding determination of the Permitted Tax Distribution Amount shall be governed by the provisions of Section 7.5 below.

6.12 Payment of Indebtedness to Xxxxx. Buyer and Sellers will cause the Company to repay the amounts required to repay all outstanding Scheduled Debt owing to Xxxxx in full in connection with the Closing on the Closing Date.

ARTICLE 7

POST-CLOSING COVENANTS

7.1 Covenant Not to Compete. Nothing in this Agreement shall impair or restrict in any manner Yarano’s right to provide legal advice, legal services or legal counsel to any Person. From and after Closing, Sellers covenant and agree as follows:

(a) Territory and Restricted Period. As used in this Article 7, the term “Territory”, as it applies to any Seller who is not an employee of the Company immediately after the Closing means North America, and, as it applies to any Seller who is an employee of the Company immediately after the Closing, it means North America and any other country in which the Company provides products or services during the twelve (12) month period immediately preceding the termination of employment of such Seller with the Company. As used in this Article 7, the term “Restricted Period”, as it applies to Xxxxxxx, means the later to occur of the third anniversary of the Closing Date or 18 months after Xxxxxxx’x employment with Buyer or the Company shall terminate, and as it applies to any other Seller the term “Restricted Period” means the third anniversary of the Closing Date.

(b) Non-Competition; Non-Solicitation. In order to allow Buyer to realize the full benefit of its bargain in connection with the purchase of the Membership Interests, none of the Sellers or Xxxxxxx will at any time during the Restricted Period, directly or indirectly, acting alone or as a member of a partnership or as a holder of any security of any class, or as an employee, consultant to or representative of, any corporation or other business entity:

(i) engage in, continue in or carry on any business which competes with the Business within the Territory or the businesses conducted by Buyer or any Person indirectly or directly controlled by the Buyer as of the Closing Date, wherever such businesses are then conducted, including owning or controlling any financial interest in any corporation, partnership, firm or other form of business organization which is so engaged; provided, however that, as it applies to Xxxxx, the parties acknowledge that Xxxxx is currently engaged in the wind energy business and that, for purposes of this Section 7.1(b)(i), Xxxxx shall only be prohibited from competing with that portion of the Business which consists of the operation and/or maintenance of wind turbines; provided, however, that if Xxxxx and Buyer mutually agree, such prohibition may be waived to the extent set forth in a written agreement duly executed by Xxxxx and Buyer. Xxxxx further acknowledges and agrees that Buyer shall have the right to reject any such request for waiver in Buyer’s absolute and sole discretion.

(ii) solicit any customers of the Company or of Buyer or any Person indirectly or directly controlled by the Buyer for purposes of offering products or services that are directly competitive with the products or services offered by the Business or of Buyer or any Person indirectly or directly controlled by the Buyer as of the Closing Date; or

(iii) hire, offer to hire, or solicit for employment any employee of the Company, Buyer or any Person indirectly or directly controlled by the Buyer, without the prior consent of Buyer, which may be withheld or delayed by Buyer in its sole discretion, until such employee has been separated from employment by the Company, Buyer or any Person indirectly or directly controlled by the Buyer for at least one year.

(c) Severability; Reformation; Equitable Relief. Sellers acknowledge that if the scope of the covenants set forth in this Section 7.1 is deemed to be too broad in any court proceeding, the court is authorized and requested to reduce the scope as it deems reasonable under the circumstances. Buyer would not have any adequate remedy at law for the breach or threatened breach by a Seller or any of his Affiliates of the covenants and agreements set forth in this Section 7.1 and, accordingly, Buyer and the Company may, in addition to the other remedies which may be available to it hereunder, file suit in equity to enjoin such Seller or any of its respective Affiliates from such breach or threatened breach and such Seller consents to the issuance of injunctive relief hereunder. The act of Buyer in entering into this Agreement, and Buyer’s covenants and payments hereunder, constitute sufficient consideration for Sellers to agree not to compete against Buyer or the Company as set out in this Section 7.1.

7.2 Certain Tax Matters.

(a) Pre-Closing Tax Returns. Sellers shall prepare (or cause to be prepared for the Company) all Tax Returns of the Company required to be filed prior to Closing. All such Tax returns shall be prepared in accordance with past practice (unless a contrary position is required by Law), to the extent any position taken in such returns may affect

the tax liability of Buyer and the Company after the Closing. Sellers shall timely pay, or cause to be paid, all Taxes relating to such Tax Returns. Seller shall provide Buyer or its designee the opportunity to review a substantially completed draft of each pre-Closing Tax Return reasonably prior to the filing of the applicable pre-Closing Tax Return, and reasonable access to the Person(s) actually responsible for preparing the same; provided, however, that the foregoing rights provided to Buyer (or its designee) will in no way affect (whether or not and regardless of the extent to which Buyer exercises such rights) the nature and scope of any of the representations, warranties, covenants and indemnities of Sellers contained in this Agreement.

(b) Cooperation; Audit. After the Closing Date, Buyer and Sellers shall, and shall cause their respective Affiliates, including the Company, to, cooperate in the preparation of all Tax Returns and shall provide, or cause to be provided, to the requesting party any records or other information requested by such party in connection therewith as well as access to, and the cooperation of, the auditors of Buyer and Sellers. Sellers, on the one hand, and Buyer, on the other hand, shall give prompt notice to each other of any proposed adjustment to Taxes for periods ending on or before the Closing Date (or beginning on or before the Closing Date and ending after the Closing Date). Promptly upon receipt by either party of any notification or indication (whether written or oral) from the IRS or any state or other taxing authority that it intends to investigate or audit any pre-Closing Tax Return, the party receiving such information shall notify the other party and convey such information to the other party in writing. Each party shall cooperate with the other in connection with any Tax investigation, Tax audit, or other Tax proceeding. A party shall be reimbursed for reasonable out-of-pocket expenses incurred in taking any action requested by the other party or parties under this Section 7.2(b); provided, however, that the foregoing shall not alter any indemnification rights to which Buyer or Sellers are entitled under this Agreement, including, without limitation, under ARTICLE 11.

7.3 Further Assurances. The parties agree (a) to furnish upon request to each other such further information, (b) to execute and deliver to each other such other documents, and (c) to do such other acts and things, all as the other party may reasonably request for the purpose of carrying out the intent of this Agreement and the documents referred to in this Agreement without any additional consideration therefor.

7.4 Litigation Support. In the event and for so long as Buyer or Company is actively contesting or defending against any litigation or claim in connection with any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act or transaction existing or occurring on or prior to the Closing Date involving the Company or the Business, Sellers will cooperate in the contest or defense and provide such testimony as may be necessary in connection with the contest or defense, at the cost and expense of Buyer (unless and to the extent Buyer is entitled to indemnification therefor hereunder, in which event such costs and expenses shall be borne by Sellers).

7.5 Reconciliation of Permitted Tax Distribution Amount. The federal income tax return of the Company for 2007 and, if the effective date of Closing shall be later than January 1, 2008, the federal income tax return of the Company for the period commencing January 1, 2008

and ending at the close of business on the day immediately preceding the Closing Date shall not be deemed final for purposes of this Agreement unless they have been approved in writing by Buyer (upon issuance of such written approval by Buyer, which shall not be unreasonably withheld or delayed, such return or returns shall collectively be referred to as the “Final Return”). The final Permitted Tax Distribution Amount shall be at the highest marginal tax rates applicable to such Sellers on the net distributive share of the Company’s income, losses, deductions and credits that have been separately stated and passed through to the Sellers under the Code as reflected in such Final Return and the Form K-1 issued to each Seller pursuant thereto (the “Final Permitted Tax Distribution Amount”). In the event the Tax Distribution made to Sellers pursuant to Section 6.11 above shall exceed the Final Permitted Tax Distribution Amount, then Buyer shall be paid the amount of such excess by the Escrow Agent from the Escrow Account. In the event the Tax Distribution shall be less than the Final Permitted Tax Distribution Amount, then Buyer shall pay Sellers the amount of such deficiency.

ARTICLE 8

CONDITIONS PRECEDENT TO BUYER’S OBLIGATION TO CLOSE

Buyer’s obligation to purchase the Membership Interests and to take the other actions required to be taken by Buyer at the Closing is subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Buyer, in whole or in part):

8.1 Accuracy of Representations and Warranties. The representations and warranties of Sellers contained in this Agreement that are qualified by a reference to materiality or a Material Adverse Effect (any such qualification referred to herein as a “Materiality Qualifier”) shall be true and correct in all respects when made and (after giving effect to any schedule updates deemed made or otherwise permitted under Section 6.8) on and as of the Closing as if made at and as of the Closing (other than representations and warranties which address matters only as of a certain date, which shall have been true and correct as of such certain date) and the representations and warranties of Sellers set forth in this Agreement that are not so qualified shall be true and correct in all material respects when made and (after giving effect to any schedule updates deemed made or otherwise permitted under Section 6.8) on and as of the Closing Date as if made on and as of such time (except for those representations and warranties that are not so qualified and relate to a particular date, which representations and warranties shall be true and correct in all material respects as of such date) ; except, in each case, for breaches that do not, when considered in the aggregate, have a Material Adverse Effect; provided that any breach of the Title and Authorization Warranties, Section 4.7 or Section 4.2(a) shall be deemed to be material and adverse to the Business.

8.2 Sellers’ Performance.

(a) Covenants; Etc. All of the covenants and obligations that Sellers are required to perform or to comply with pursuant to this Agreement at or prior to the Closing (considered collectively), and each of these covenants and obligations (considered individually), must have been duly performed and complied with in all material respects, except for breaches that do not, when considered in the aggregate, have

a Material Adverse Effect, it being understood and agreed that the consummation of the Closing shall not in any manner constitute a waiver or release by Buyer of any claim for breach against Sellers. For purposes of this Section 8.2(a) the failure of Sellers to deliver to Buyer at Closing the duly executed Option Termination Agreements referred to in Section 3.2(a)(xiv) above shall be deemed to be a breach which has a Material Adverse Effect for all purposes hereunder.

(b) Documents, Etc. Each document required to be delivered by Sellers pursuant to Section 3.2 must have been delivered.

8.3 Consents. Each of the Required Consents and the Buyer Consents must have been obtained and must be in full force and effect.

8.4 No Proceedings. Since the date of this Agreement, there must not have been commenced or Threatened against Buyer, or against any Person affiliated with Buyer, any Proceeding (a) involving any challenge to, or seeking damages or other relief in connection with, any of the Contemplated Transactions, or (b) that may have the effect of preventing, delaying, making illegal, or otherwise interfering with any of the Contemplated Transactions.

8.5 No Claim Regarding Membership Interests or Sale Proceeds. There must not have been made or Threatened by any Person any claim asserting that such Person (a) is the holder or the beneficial owner of, or has the right to acquire or to obtain beneficial ownership of, any Membership Interests of, or any other voting, equity, or ownership interest in, the Company, or (b) is entitled to all or any portion of the Purchase Price payable for the Membership Interests.

8.6 No Prohibition. Neither the consummation nor the performance of any of the Contemplated Transactions will materially contravene, or conflict with, or result in a material violation of, or cause Buyer or any Affiliate of Buyer to suffer any material adverse consequence under, (a) any applicable Legal Requirement or Order, or (b) any Legal Requirement or Order that has been published, introduced, or otherwise proposed by or before any Governmental Body.

8.7 No Material Adverse Effect. Since the date of this Agreement, there shall not have occurred any event or occurrence creating or reasonably likely to create a Material Adverse Effect respecting the Company.

8.8 Payment of Indebtedness to Xxxxx. Sellers shall have delivered to Buyer a payoff letter, duly executed by Xxxxx not earlier than three days prior to the Closing Date, setting forth the amounts required to repay all outstanding Scheduled Debt owing to Xxxxx in full on the Closing Date, together with wire transfer instructions and directions from Xxxxx;

8.9 Release of Liens. The holders of Scheduled Debt shall have delivered releases of all Liens held by such Persons in any of the Company’s assets, including UCC-3 termination statements; and

8.10 Real Property Leases. All existing real property leases to which the Company is a party on the date hereof shall be in full force and effect on the Closing Date upon the same terms and conditions as were in effect October 30, 2007 and with a remaining term under each said lease of not less than one year after the Closing Date.

ARTICLE 9

CONDITIONS PRECEDENT TO SELLERS’ OBLIGATION TO CLOSE

Sellers’ obligation to sell the Membership Interests and to take the other actions required to be taken by Sellers at the Closing is subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Sellers, in whole or in part):

9.1 Accuracy of Representations and Warranties. The representations and warranties of Buyer contained in this Agreement that are qualified by a reference to a Materiality Qualifier shall be true and correct in all respects when made and (after giving effect to any schedule updates deemed made or otherwise permitted under Section 6.8) on and as of the Closing as if made at and as of the Closing (other than representations and warranties which address matters only as of a certain date, which shall have been true and correct as of such certain date), and the representations and warranties of Buyer set forth in this Agreement that are not so qualified shall be true and correct in all material respects when made and (after giving effect to any schedule updates deemed made or otherwise permitted under Section 6.8) on and as of the Closing Date as if made on and as of such time (except for those representations and warranties that are not so qualified and relate to a particular date, which representations and warranties shall be true and correct in all material respects as of such date); except, in each case, for breaches that do not, when considered in the aggregate, have a Material Adverse Effect on the ability of the Buyer to consummate the purchase of the Membership Interests.

9.2 Buyer’s Performance.

(a) Covenants; Etc. All of the covenants and obligations that Buyer is required to perform or to comply with pursuant to this Agreement at or prior to the Closing (considered collectively), and each of these covenants and obligations (considered individually), must have been performed and complied with in all material respects, except for breaches that do not, when considered in the aggregate, have a Material Adverse Effect, it being understood and agreed that the consummation of the Closing shall not in any manner constitute a waiver or release by Sellers of any claim for breach against Buyer.

(b) Documents, Etc. Buyer must have delivered each of the documents required to be delivered by Buyer pursuant to Section 3.2 and must be prepared to make the cash payments required to be made by Buyer pursuant thereto.

9.3 No Injunction. There must not be in effect any Legal Requirement or any injunction or other Order that (a) prohibits the sale of the Membership Interests by Sellers to Buyer, and (b) has been adopted or issued, or has otherwise become effective, since the date of this Agreement.

9.4 No Proceedings. Since the date of this Agreement, there must not have been commenced or Threatened against Buyer, or against any Person affiliated with Buyer, any Proceeding (a) involving any challenge to, or seeking damages or other relief in connection with,

any of the Contemplated Transactions, or (b) that may have the effect of preventing, delaying, making illegal, or otherwise interfering with any of the Contemplated Transactions.

9.5 No Prohibition. Neither the consummation nor the performance of any of the Contemplated Transactions will materially contravene, or conflict with, or result in a material violation of, or cause the Company to suffer any material adverse consequence under, (a) any applicable Legal Requirement or Order, or (b) any Legal Requirement or Order that has been published, introduced, or otherwise proposed by or before any Governmental Body.

9.6 No Material Adverse Effect. Since the date of this Agreement, there shall not have occurred any event or occurrence creating or reasonably likely to create a Material Adverse Effect respecting the Buyer or any of its Affiliates for the Company.

9.7 Guarantees. Each Seller that has guaranteed the repayment of any Indebtedness of the Company which remains outstanding on the Closing Date shall have either been fully and completely released from each said guarantee by the holder of said Indebtedness or shall have been indemnified and held harmless from any liability under said guarantee by Buyer.

ARTICLE 10

TERMINATION

10.1 Termination Events. This Agreement may, by notice given prior to or at the Closing, be terminated:

(a) Mutual Consent. By mutual written consent of Buyer and Sellers.

(b) after a date which is forty-five (45) days after the date hereof by either Seller or Buyer if the Closing has not occurred by that date; provided, that the right to terminate this Agreement pursuant to this Section 10.1(b) shall not be available to a Party whose action or failure to act has been a principal cause of or resulted in the failure of the Closing to occur on or before such date and such action or failure to act constitutes a breach of this Agreement and provided, further that the terminating Party shall give the other Party not less than two Business Days notice of its intent to terminate this Agreement pursuant to this Section 10.1(b) and within such two Business Day period will discuss with the other Party the basis upon which such notice was given and shall explore possible alternatives, provided, however, that the decision to terminate shall rest solely in the discretion of the notifying Party.

(c) by Sellers, upon written notice, if one or more of the representations and warranties of Buyer shall have become untrue such that the condition set forth in Section 9.1 would not be satisfied or if Buyer shall have materially breached any agreement, obligation or covenant such that the condition set forth in Section 9.2 would not be satisfied; provided, that if the inaccuracy in Buyer’s representations and warranties or the breach of Buyer’s agreement, obligation or covenant is curable through the exercise of Buyer’s commercially reasonable efforts, then Sellers may not terminate this Agreement for thirty (30) days after Sellers shall have given written notice of such inaccuracy or breach to Buyer (so long as Buyer continues to use commercially

reasonable efforts to cure the inaccuracy or breach during such period), it being understood that Seller may not terminate this Agreement if Purchaser cures such inaccuracy or breach within such thirty (30) day period; and provided, further, that the right to terminate this Agreement pursuant to this Section 10.1(c) shall not be available to Sellers if Sellers’ breach of or failure to comply with its obligations under this Agreement is a principal cause of or resulted in the event giving rise to such termination right;

(d) by Buyer, upon written notice, if one or more of the representations and warranties of Sellers shall have become untrue such that the condition set forth in Section 8.1 would not be satisfied or if Sellers or the Company shall have materially breached any agreement, obligation or covenant such that the condition set forth in Section 8.2 would not be satisfied; provided that if the inaccuracy in Sellers’ or the Company’s representations and warranties or the breach of Sellers’ or the Company’s agreement, obligation or covenant is curable through the exercise of commercially reasonable efforts, then Buyer may not terminate this Agreement for fifteen (15) days after Buyer shall have given written notice of such inaccuracy or breach to Sellers (so long as Sellers and/or the Company continue to use commercially reasonable efforts to cure such inaccuracy or breach during such period), it being understood that Buyer may not terminate this Agreement if Sellers or the Company cures such inaccuracy or breach within such fifteen (15) day period; and provided, further, that the right to terminate this Agreement pursuant to this Section 10.1(d) shall not be available to Buyer if Buyer’s breach of or failure to comply with its obligations under this Agreement is a principal cause of or resulted in the event giving rise to such termination event;

(e) by Buyer or Sellers if there shall be any law that makes consummation of the purchase of the shares illegal or otherwise prohibited, or if any order of any Governmental Authority enjoining Buyer or Sellers from consummating the purchase of the Membership Interests is entered and such order shall have become final and nonappealable; provided that the Party seeking to terminate this Agreement pursuant to this provision shall have used all commercially reasonable efforts to remove or vacate such order; or

(f) by Buyer, in the event any amendment or supplement to Sellers’ Disclosure Schedule delivered pursuant to Section 6.8 has or is likely to have a Material Adverse Effect with respect to the Company or by Sellers, in the event any amendment or supplement to Buyer’s Disclosure Schedule delivered pursuant to Section 6.8 has or is likely to have a Material Adverse Effect with respect to the Buyer.

10.2 Effect of Termination. Each party’s right of termination under Section 10.1 is in addition to any other rights it may have under this Agreement or otherwise, and the exercise of a right of termination will not be an election of remedies. If this Agreement is terminated pursuant to Section 10.1, all further obligations of the parties under this Agreement will terminate, except that the obligations in Section 12.1 and Section 12.3 will survive; provided, however, that if this Agreement is terminated by a party because of the Breach of the Agreement by the other party or because one or more of the conditions to the terminating party’s obligations under this Agreement is not satisfied as a result of the other party’s failure to comply with its obligations

under this Agreement, the terminating party’s right to pursue all legal remedies will survive such termination unimpaired.

ARTICLE 11

INDEMNIFICATION

11.1 Survival. Except as set forth below, all representations, warranties, covenants, and obligations in this Agreement, the Sellers’ Disclosure Schedule, the supplements to the Sellers’ Disclosure Schedule, any other certificate or document delivered pursuant to this Agreement will survive the Closing, provided, however, that from and after Closing, the Company shall not have any liability or obligation for any breaches on or before Closing of any its representations, warranties, covenants or agreements, and instead, the Sellers, jointly and severally, shall be liable for any such breaches by the Company as if such representations, warranties, covenants or agreements had been made by them.

(a) In General. Except as set forth below, all of the representations and warranties of Sellers and Buyer contained in this Agreement or any agreement or document executed and delivered pursuant to the terms of this Agreement shall survive the Closing hereunder and continue in full force and effect for a period of eighteen (18) months after the Closing Date (the “Survival Period”).

(b) Exceptions for Sellers. Notwithstanding the above, the Survival Period for the following representations and warranties of Sellers shall be as set forth below:

(i) the representations and warranties set forth in Section 4.12 (Taxes) shall survive the Closing hereunder and continue in full force and effect until the expiration of the applicable statute of limitations period;

(ii) the representations and warranties set forth in Section 4.21 (Environmental Matters) shall survive the Closing hereunder and continue in full force and effect for a period of three (3) years following after the Closing Date.

(iii) the representations and warranties set forth in Sections 4.2 (Authority; No Conflict), 4.4 (Capitalization) and 4.7 (Title to Properties; Membership Interests; Encumbrances), shall survive the Closing hereunder without limitation as to time; and

(iv) claims for indemnification to the extent based on fraud by Sellers shall survive the Closing without limitation as to time.

(c) Covenants and Agreements. The covenants and agreements contained herein shall survive the Closing without limitation as to time unless the covenant or agreement specifies a term, in which case such covenant or agreement shall survive for such specified term.

11.2 Indemnification by Sellers. Sellers, jointly and severally, will indemnify, defend and hold harmless the Buyer Indemnified Persons for, and will pay to the Buyer Indemnified

Persons the amount of, any Adverse Consequences arising directly or from or in connection with:

(a) Representations and Warranties. Any Breach of any representation or warranty made by Sellers in this Agreement or the Registration Rights Agreement;

(b) Covenants and Obligations. Any Breach by Sellers of any covenant or obligation of such Seller in this Agreement;

(c) Brokers. Any claim by any Person for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by any such Person with any of the Sellers or the Company (or any Person acting on their behalf) in connection with any of the Contemplated Transactions.

(d) 2005 Industrial Accident. Any claim by any Person arising out of, related to or in connection with the 2005 turbine fire involving the Company at a turbine owned by Suzlon, the death of Company employee Xxx Xxxxxxx, or the death of, or personal injury or property damage to any other Person.

11.3 Indemnification by Buyer. Buyer will indemnify, defend and hold harmless the Seller Indemnified Persons for, and will pay to the Seller Indemnified Persons the amount of, any Adverse Consequences arising, directly or indirectly, from or in connection with:

(a) Representations and Warranties. Any Breach of any representation or warranty made by Buyer in this Agreement,

(b) Covenants and Obligations. Any Breach by Buyer of any covenant or obligation of Buyer in this Agreement.

(c) Brokers. Any claim by any Person for brokerage or finder’s fees or commissions or similar payments based upon any agreement or understanding alleged to have been made by such Person with Buyer (or any Person acting on its behalf) in connection with any of the Contemplated Transactions.

11.4 Limitations on Indemnification.

(a) Indemnity Cap. Sellers’ liability for indemnification pursuant to Section 11.2(a) of this Agreement shall be limited in total and in the aggregate to Three Million Dollars ($3,000,000) (the “Indemnity Cap”) provided, however, that the Indemnity Cap shall not apply to the breaches of the following representations and warranties of Sellers: Section 4.2 (Authority; No Conflict), Section 4.4 (Capitalization), Section 4.7 (Title to Properties; Encumbrances), Section 4.12 (Taxes), Section 4.17(b) or (e) (Absence of Certain Changes and Events), and Section 4.28 (Brokers or Finders), or to claims for indemnification to the extent based on fraud by Sellers; provided that Sellers shall not have any liability with respect to any breach of a representation or warranty if all Adverse Consequences or series of related Adverse Consequences arising from such breach and any related breach are less than Seven Thousand, Five Hundred Dollars ($7,500) for purposes of which any Materiality Qualifier contained in any

representations, warranties or covenants shall be disregarded when determining the existence of a breach or the magnitude of such Adverse Consequences; provided further, however, that all Adverse Consequences or series of related Adverse Consequences arising from or relating to the same event, occurrence or set of circumstances giving rise to any breach of a representation or warranty shall be aggregated for purposes of determining the Sellers’ liability under this ARTICLE 11. Any disbursement from the Escrow Account shall be one third from the Cash Escrow Deposit and two thirds from the Stock Escrow Deposit.

(b) Indemnity Basket. Buyer shall not assert claims for indemnification under Section 11.2(a), and Sellers shall not assert claims for indemnification under Section 11.3(a), unless and until the aggregate of Adverse Consequences exceeds One Hundred and Fifty Thousand Dollars ($150,000), for purposes of which any Materiality Qualifier contained in any representations, warranties or covenants shall be disregarded when determining the existence of a breach or the magnitude of such Adverse Consequences, at which point Sellers or Buyer, as the case may be, shall be obligated with respect to such Adverse Consequences in excess thereof (the “Indemnity Basket”) subject to the Indemnity Cap; provided, however, that the Indemnity Basket shall not apply to claims for indemnification based on breaches or inaccuracy of Sellers’ representations and warranties contained in the following Sections: 4.2 (Authority; No Conflict), Section 4.4 (Capitalization), 4.7 (Title to Properties; Membership Interests; Encumbrances), Section 4.12 (Taxes), Section 4.17(b) or (e) (Absence of Certain Changes and Events), and 4.28 (Brokers or Finders), or to claims for indemnification to the extent based on fraud by Sellers.

(c) The provisions of this Article 11 shall be the exclusive remedy available to the Seller Indemnified Persons and the Buyer Indemnified Persons after the Closing in the event any such Person shall have a claim with respect to the matters covered by this Agreement. The preceding sentence shall not apply, however, to limit any claim or remedy which might be available to Buyer or Seller with respect to fraud committed against such party by the other party(ies) to this Agreement or their Affiliates in connection with this Agreement or the transactions contemplated hereby.

11.5 Procedure for Indemnification. Subject to the other terms of this ARTICLE 11:

(a) Notice of Indemnifiable Loss. In the event that a Person entitled to indemnification under this ARTICLE 11 (the “Indemnified Party”) shall suffer any Adverse Consequences in respect of which indemnification may be sought under this ARTICLE 11 against the party required to provide indemnification under this ARTICLE 11 (the “Indemnifying Party”), the Indemnified Party must assert a claim for indemnification within the applicable Survival Period by a written notice which contains reasonably sufficient detail and information of the Indemnifiable Losses as then known (the “Notice of Indemnifiable Loss”) to the Indemnified Party. The Notice of Indemnifiable Loss must be provided to the Indemnifying Party as soon as practicable, but in no event later than 30 days after the Indemnified Party acquires knowledge of the basis for the claim for indemnification. Notwithstanding the foregoing, any failure to provide the Indemnifying Party with a Notice of Indemnifiable Loss in such a timely

manner shall not relieve the Indemnifying Party from any liability that it may have to the Indemnified Party under this ARTICLE 11 except to the extent that the Indemnifying Party is materially prejudiced by the Indemnified Party’s failure to give such Notice of Indemnifiable Loss in such a timely manner.

(b) Third Party Claims.

(i) In the event that any third party (including any Governmental Body) asserts a claim against an Indemnified Party for which such Indemnified Party intends to seek indemnity from the Indemnifying Party, then the Indemnified Party shall promptly notify the Indemnifying Party of such claim or demand and the amount thereof, if known, or an estimate thereof, if reasonably capable of estimation (the “Claim Notice”), but any failure to so notify the Indemnifying Party shall not relieve it from any liability that it may have to the Indemnified Party under this ARTICLE 11 except to the extent that the Indemnifying Party is materially prejudiced by the Indemnified Party’s failure to give such notice.

(ii) The Indemnifying Party shall have fifteen (15) days from Claim Notice to undertake, conduct and control the defense of such third party claim; provided, that pending the Indemnifying Party’s decision whether to exercise its right to undertake the conduct and control of the settlement or defense of any third party claim, the Indemnified Party shall undertake, conduct and control the settlement or defense thereof, through counsel of its own choosing if the failure to so act during such period might reasonably be expected to have a material adverse effect on the Indemnified Party, and provided further that (A) the Indemnifying Party notifies the Indemnified Party, in writing, within such 15 days that the Indemnifying Party will assume the defense of the third party claim and pay all attorneys’ fees and other third party defense costs in connection therewith, (B) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the third party claim and fulfill its indemnification obligations hereunder, (C) the third party claim involves only money damages and does not seek an injunction or other equitable relief, and (iv) the Indemnifying Party conducts the defense of the Third Party Claim actively and diligently.

(iii) All costs and expenses incurred by the Indemnifying Party in defending such third party claim shall be paid by the Indemnifying Party. If the Indemnifying Party assumes such defense, the Indemnified Party may participate in, but not control, any such defense or settlement, at its sole cost and expense. So long as the Indemnifying Party is defending such third party claim in good faith, the Indemnified Party shall not settle such claim and any settlement in violation of this restriction shall nullify and make void and unenforceable the Indemnifying Party’s indemnification obligation hereunder. Notwithstanding the foregoing, the Indemnified Party shall have the right to pay or settle any such

third party claim; provided, that in such event it shall waive any right to indemnity therefor by the Indemnifying Party.

(iv) If the Indemnifying Party does not notify the Indemnified Party within 30 days after the receipt of the Indemnified Party’s Claim Notice that it elects to undertake the settlement or defense thereof, the Indemnified Party shall have the right to conduct and control the defense thereof and to contest, settle or compromise the third party claim but shall not thereby waive any right to indemnity therefor pursuant to this Agreement.

(v) The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle, compromise or offer to settle or compromise any third party claim unless: (x) such settlement or judgment includes as an unconditional term thereof the giving by the Person or Persons asserting such claim to all Indemnified Parties an unconditional release from all Liability with respect to such claim and (y) the relief provided in connection with such settlement or judgment effected by the Indemnifying Party is satisfied entirely by the Indemnifying Party. To the extent the Indemnifying Party shall control or participate in the defense or settlement of any third party claim or demand, the Indemnified Party will give to the Indemnifying Party and its counsel access to, during normal business hours, the relevant books and records, and shall permit them to consult with the employees and counsel of the Indemnified Party. The Indemnified Party, at its sole cost and expense, shall use commercially reasonable efforts to cooperate in the defense of all such claims.

(vi) With respect to any pending action or proceeding subject to indemnification under this ARTICLE 11, the parties shall cooperate in such a manner as to preserve in full (to the extent possible) the confidentiality of all confidential business records and the attorney-client and work-product privileges. In connection therewith, (A) each party shall use its commercially reasonable efforts, in any action or proceeding in which he or it has assumed or participated in the defense, to avoid production of confidential business records (consistent with applicable law and rules of procedure), and (B) all communications between any party hereto and counsel responsible for or participating in the defense of any action or proceeding shall, to the extent possible, be made so as to reserve any applicable attorney-client or work-product privilege.

11.6 Additional Agreements Regarding Indemnity.

(a) Waivers. The waiver of any condition based on the accuracy of any representation or warranty, or on the performance of or compliance with any covenant or obligation, will not affect the right to indemnification, payment of Adverse Consequences, or other remedy based on such representations, warranties, covenants, and obligations.

(b) Reliance. The right to indemnification, payment of Adverse Consequences or other remedy based on such representations, warranties, covenants, and

obligations will not be affected by any investigation conducted with respect to, or any Knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant, or obligation.

(c) Company. For the avoidance of doubt, from and after the Closing, the Company shall be Buyer Indemnified Persons and shall have no Liability to the Buyer Indemnified Parties with respect to any Adverse Consequences under this Agreement, and the Sellers shall have sole responsibility for any and all such Adverse Consequences. Sellers waive any subrogation or other claims against the Company with respect to Adverse Consequences under this Agreement.

11.7 Effect of Insurance and Other Sources of Reimbursement. The amount of any Adverse Consequences for which indemnification is provided under this Article 11 shall be reduced by (i) the insurance proceeds received with respect to any such Adverse Consequence (ii) any other amount, if any, recovered from third parties (as a result of indemnification, contribution, guarantee or otherwise) by the Indemnified Party (or its Affiliates) with respect to any Adverse Consequences. If any Indemnified Party shall have received any indemnification payment pursuant to this Article 11 with respect to any Adverse Consequence, such Indemnified Party shall, upon written request by the Indemnifying Party, assign to such Indemnifying Party (to the extent of the indemnification payment) any claim which such Indemnified Party may have under any applicable insurance policy or other Contract which provides coverage for such Adverse Consequence to the extent of such indemnification payment, net of any increase in premiums or other costs resulting solely from such payment. Such Indemnified Party shall reasonably cooperate (at the expense of the Indemnifying Party) to collect under such insurance policy or other Contract. If any Indemnified Party shall have received any payment pursuant to this Article 11 with respect to any Adverse Consequence and has or shall subsequently have received insurance proceeds or other amounts with respect to such Adverse Consequence, then such Indemnified Party shall promptly pay over to the Indemnifying Party the amount so recovered (after deducting the amount of the expenses incurred by it in procuring such recovery and any increase in premiums resulting solely from such recovery), but not in excess of the amount previously so paid by the Indemnifying Party. Payments received by any Party pursuant to this Article 11 shall be treated by the parties as an adjustment to the Purchase Price.

11.8 No Additional Warranties. THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN ARE THE ONLY REPRESENTATIONS OR WARRANTIES GIVEN BY THE PARTIES. NEITHER SELLERS NOR THE COMPANY HAS MADE NOR HEREBY MAKES ANY WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE FITNESS FOR PARTICULAR PURPOSE, QUALITY OR MERCHANTABILITY OF THE COMPANY’S ASSETS OR ANY PORTION THEREOF.

11.9 Other Information. In connection with Buyer’s investigation of the Company and the Business, Buyer may have received from or on behalf of Sellers or the Company certain projections, including projected statements of operating revenues and income from operations of the Company. Buyer acknowledges that there are uncertainties inherent in attempting to make such estimates, projections and other forecasts and plans, that Buyer is familiar with such

uncertainties, that Buyer is making its own evaluation of the adequacy and accuracy of all estimates, projections and other forecasts and plans so furnished to it (including the reasonableness of the assumptions underlying such estimates, projections and forecasts), and that Buyer shall have no claim against Sellers or their Affiliates or Representatives or the Company with respect thereto. Accordingly, Sellers make no representation or warranty with respect to such estimates, projections and other forecasts and plans (including the reasonableness of the assumptions underlying such estimates, projections and forecasts).

ARTICLE 12

GENERAL PROVISIONS

12.1 Expenses. Each of the Buyer and the Sellers will bear their respective investment banking, fairness opinion, legal, accounting, and other fees and expenses relating to the Contemplated Transactions. This shall include audit of the Company’s financial statements required in connection with the Contemplated Transactions, each of which shall be paid by the Sellers.

12.2 Public Announcements. Any public announcement or similar publicity with respect to this Agreement or the Contemplated Transactions will be issued, if at all, at such time and in such manner as Buyer determines. Buyer shall provide the Sellers’ Representative with a draft of any public announcement with respect to the Agreement or the Contemplated Transactions and a reasonable opportunity to comment on such public announcement. Unless consented to by Buyer in advance or required by Legal Requirements, prior to the Closing Sellers and the Company shall keep this Agreement strictly confidential and may not make any disclosure of this Agreement to any Person. Sellers, the Company and Buyer will consult with each other concerning the means by which the Company’s employees, customers, and suppliers and others having dealings with the Company will be informed of the Contemplated Transactions, and Buyer will have the right to be present for any such communication.

12.3 Confidentiality. Between the date of this Agreement and the Closing Date, Buyer, Sellers and the Company will maintain in confidence, and will cause the manager, directors, officers, employees, agents, and advisors of Buyer and the Company to maintain in confidence, any written, oral, or other information obtained in confidence from another party or the Company in connection with this Agreement or the Contemplated Transactions, unless (a) such information is already known to such party or to others not bound by a duty of confidentiality or such information becomes publicly available through no fault of such party, (b) the use of such information is necessary or appropriate in making any filing or obtaining any consent or approval required for the consummation of the Contemplated Transactions, or (c) the furnishing or use of such information is required by legal proceedings. If the Contemplated Transactions are not consummated, each party will return or destroy as much of such written information as the other party may reasonably request. Whether or not the Closing takes place, Sellers and the Company waive any cause of action, right, or claim arising out of the access of Buyer or its representatives to any trade secrets or other confidential information of the Company except for the intentional competitive misuse by Buyer of such trade secrets or confidential information.

12.4 Notices. All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given when (a) delivered by hand (with written confirmation of receipt), (b) sent by telecopier or other electronic transmission (with written confirmation of receipt), provided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate addresses and telecopier numbers set forth below (or to such other addresses and telecopier numbers as a party may designate by notice to the other parties):

Sellers and the Company:		Energy Maintenance Service, LLC 000 Xxxx Xxxxxx X.X. Xxx 000 Xxxx, XX 00000 Attn: Xxxxxx X. Xxxxxxx Facsimile No.: (000) 000-0000

with copies to:		Fabyanske, Westra, Xxxx & Thomson P.A 000 XxXxxxx Xxx. Xxxxx 0000 Xxxxxxxxxxx, XX 00000 Attention: Xxxxx X. Xxxxxxxx Facsimile No.: (000) 000-0000

		and

		Xxxxxx Xxxxxx 0000 Xxxxxxxx Xxxx Xx. Xxxx, XX 00000 Facsimile No.: (000) 000-0000

Buyer:		TOWER TECH HOLDINGS, INC. 000 Xxxxxxxx Xxxxx Xxxxx 0 Xxxxxxxxx, XX 00000 Attention: Chief Executive Officer Facsimile No.: (000) 000-0000

with a copy to:		DLA Piper US LLP 000 X. XxXxxxx Xxxxxx Xxxxx 0000 Xxxxxxx, XX 00000 Attn: Xxxxxxx X. Xxxxxxxx Facsimile No.: (000) 000-0000

Xxxxxxx:		X.X. Xxx 000 000 Xxxx Xxxxxx Xxxx, Xxxxx Xxxxxx 00000 Attention: Xx. Xxxxxx Xxxxxxx Facsimile No.: (000) 000-0000

Xxxxx:		000 X. Xxxxxxx 000 X.X. Xxx 000 Xxxxxxx Xxxxx, XX 00000 Attention: Mrs. Xxxxxxxx Xxxxxxx Facsimile No.: (000) 000-0000

With a copy to:		Xxxxxxx, Street and Deinard The Army and Navy Club Building 0000 Xxx Xxxxxx XX, Xxxxx 000 Xxxxxxxxxx, XX 00000 Attention: Xxxxxxxx X. Xxxxxxxx, Esq. Facsimile No.: (000) 000-0000

12.5 Sellers’ Representative.

(a) Appointment. “Sellers’ Representative” means Xxxxxxx provided, that in the event of the death, resignation or physical or mental incapacity to act of Xxxxxxx as Sellers’ Representative, “Sellers’ Representative” shall mean Xxxxxx Xxxxxxx. Each Seller hereby irrevocably constitutes and appoints the Sellers’ Representative as such Seller’s attorney-in-fact and agent to act in such Seller’s name, place and stead in connection with all matters arising from and under this Agreement, the Escrow Agreement and the Registration Rights Agreement and acknowledges that such appointment is coupled with an interest; provided, however, that the Sellers’ Representative shall have no authority to act as Xxxxx’x attorney-in-fact or agent or otherwise in connection with the contribution agreement that Xxxxxxx, EMS, Yarano and Xxxxx have entered into in connection herewith. Sellers’ Representative hereby accepts such appointment and authorization. Sellers’ Representative shall give each Seller written notice of all actions undertaken by him in his capacity as Sellers’ Representative.

(b) Authority. Each Seller agrees to be bound by all notices received or given by, and all agreements and determinations made by, and all documents executed and delivered by the Sellers’ Representative under this Agreement; authorizes the Sellers’ Representative to assert claims, make demands and commence actions on behalf of Sellers under this Agreement, dispute or to refrain from disputing any claim made by Sellers, negotiate and compromise any dispute that may arise under, and exercise or refrain from exercising remedies available to Sellers under, this Agreement, and to sign any releases or other documents with respect to such dispute or remedy (and to bind Sellers in so doing), give such instructions and do such other things and refrain from doing such things as the Sellers’ Representative shall deem appropriate to carry out the provisions of this Agreement, give any and all consents and notices under this agreement, and perform all actions, exercise all powers, and fulfill all duties otherwise assigned to

the Sellers’ Representative in this Agreement. Each of the Sellers hereby expressly acknowledges and agrees that the Sellers’ Representative has the sole and exclusive authority to act on such Sellers’ behalf in respect of all matters arising under or in connection with this Agreement after execution of this Agreement, notwithstanding any dispute or disagreement among them, and that no Seller shall have any authority to act unilaterally or independently of the Sellers’ Representative in respect to any such matter. Buyer, the Company (after the Closing) and the Escrow Agent shall be entitled to rely on any and all actions taken by the Sellers’ Representative under this Agreement, the Registration Rights Agreement and the Escrow Agreement without any liability to, or obligation to inquire of, any of Sellers. All notices, counter notices or other instruments or designations delivered by any Sellers in regard to this Agreement shall not be effective unless, but shall be effective if, signed by the Sellers’ Representative, and if not, such document shall have no force or effect whatsoever and Buyer, the Company (after the Closing), the Escrow Agent and any other person or entity may proceed without regard to any such document. Buyer, the Company (after the Closing), the Escrow Agent and any other person or entity are hereby expressly authorized to rely on the genuineness of the signature of the Sellers’ Representative, and upon receipt of any writing that reasonably appears to have been signed by the Sellers’ Representative, they may act upon the same without any further duty of inquiry as to the genuineness of the writing. The authorizations of the Sellers’ Representative shall be irrevocable and effective until the Sellers’ Representative’s rights and obligations under this Agreement terminate by virtue of the termination of all obligations of Sellers to Buyer, and Buyer to Sellers, under this Agreement. Neither Buyer nor the Company (after the Closing) shall have any liability for any acts or omissions of the Sellers’ Representative or otherwise with respect to any claim brought by any Seller against the other Seller.

12.6 Exhibits and Schedules. All Exhibits and Disclosure Schedules attached hereto and referred to herein are hereby incorporated herein and made a part of this Agreement for all purposes as if fully set forth herein. The inclusion of any item on any Disclosure Schedule attached hereto shall not constitute an admission that such item is material or that a violation, right of termination, default, liability or other obligation of any kind exists with respect to such item, but rather is intended only to qualify certain representations and warranties in this Agreement and to set forth other information required by the Agreement. The Disclosure Schedules attached hereto are qualified in their entirety by reference to specific provisions of this Agreement. Summaries of, or references to, actual documents and other materials in the Disclosure Schedules are qualified in their entirety by the full text of such documents. Except as expressly set forth on the attached Disclosure Schedules, the definitions contained in the Agreement are incorporated therein by reference. The disclosures in the Disclosure Schedules, and those in any Supplement thereto, must relate only to the representations and warranties in the Section of the Agreement to which they expressly relate and not to any other representation or warranty in this Agreement. In the event of any inconsistency between the statements in the body of this Agreement and those in the Disclosure Schedules (other than an exception expressly set forth as such in the Disclosure Schedules with respect to a specifically identified representation or warranty), the statements in the body of this Agreement will control.

12.7 Governing Law; Submission to Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,

THE LAWS OF THE STATE OF DELAWARE OTHER THAN CONFLICT OF LAWS PRINCIPLES THEREOF DIRECTING THE APPLICATION OF ANY LAW OTHER THAN THAT OF DELAWARE. COURTS WITHIN THE STATE OF MINNESOTA (LOCATED WITHIN THE CITY OF MINNEAPOLIS) WILL HAVE EXCLUSIVE JURISDICTION OVER ALL DISPUTES BETWEEN THE PARTIES ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS. THE PARTIES HEREBY CONSENT TO AND AGREE TO SUBMIT TO THE JURISDICTION OF SUCH COURTS. EACH OF THE PARTIES WAIVES, AND AGREES NOT TO ASSERT IN ANY SUCH DISPUTE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT (A) SUCH PARTY IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS; (B) SUCH PARTY AND SUCH PARTY’S PROPERTY IS IMMUNE FROM ANY LEGAL PROCESS ISSUED BY SUCH COURTS; OR (C) ANY LITIGATION COMMENCED IN SUCH COURTS IS BROUGHT IN AN INCONVENIENT FORUM.

12.8 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION OR AGREEMENT CONTEMPLATED HEREBY OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.

12.9 No Third Party Beneficiaries. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any Person other than the parties hereto and their respective permitted successors and assigns, any rights or remedies under or by reason of this Agreement, such third parties specifically including employees and creditors of the Company.

12.10 Waiver. The rights and remedies of the parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any party in exercising any right, power, or privilege under this Agreement or the documents referred to in this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement or the documents referred to in this Agreement can be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other party; (b) no waiver that may be given by a party will be applicable except in the specific instance for which it is given; and (c) no notice to or demand on one party will be deemed to be a waiver of any obligation of such party or of the right of the party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the documents referred to in this Agreement.

12.11 Entire Agreement and Modification. This Agreement supersedes all prior agreements between the parties with respect to its subject matter (including the Letter of Intent among Buyer, certain Sellers and the Company dated November 20, 2007) and constitutes (along with the documents referred to in this Agreement) a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter. This Agreement may not be amended except by a written instrument signed by Buyer and Sellers.

12.12 Assignments and Successors. No party may assign any of its rights under this Agreement without the prior consent of the other parties, except that Buyer may assign any of its rights under this Agreement to any Subsidiary of Buyer or any lender to Buyer; provided, however, that no such assignment by Buyer shall release or relieve Buyer of any obligation or liability hereunder. Subject to the preceding sentence, this Agreement will apply to, be binding in all respects upon, and inure to the benefit of the successors and permitted assigns of the parties. Nothing expressed or referred to in this Agreement will be construed to give any Person other than the parties to this Agreement any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement.

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

12.14 Interpretation and Rules of Construction. In this Agreement, except to the extent otherwise provided or that the context otherwise requires: (a) when a reference is made in this Agreement to an Article, Section, Paragraph, Exhibit or Schedule, such reference is to an Article or Section or Paragraph of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated; the Exhibits and Schedules form part of and shall have effect as if set out in this Agreement and any reference to this “Agreement” includes the Exhibits and the Schedules; (b) the table of contents and headings for this Agreement, are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement; (c) whenever the words “include,” “includes” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation”; (d) the words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement; (e) all terms defined in this Agreement have the defined meanings when used in any certificate or other document made or delivered pursuant hereto, unless otherwise defined therein; (f) the terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa; (g) references to a Person are also to its successors and permitted assigns; (h) the use of “or” is not intended to be exclusive unless expressly indicated otherwise; (i) the term “Dollars” or “$” shall refer to the currency of the United States of America and (j) all references to time shall refer to Central Standard Time.

12.15 Time of Essence. With regard to all dates and time periods set forth or referred to in this Agreement, time is of the essence.

12.16 Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile and electronic transmission), each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.

[Remainder of page intentionally left blank]

EXECUTION VERSION

IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date first set forth above.

	TOWER TECH HOLDINGS INC.


	By:	/s/ X. Xxxxxxx Drecoll
		Name: X. Xxxxxxx Drecoll
		Title: CEO
	ENERGY MAINTENANCE SERVICE, LLC


	By:	/s/ Xxx Xxxxxxx
		Name: Xxx Xxxxxxx
		Title: President and CEO

	SELLERS:


	EMS, Inc.


	By:	/s/ Xxx Xxxxxxx
		Xxxxxx X. Xxxxxxx
	Its: CEO


	Xxxxx, Inc.


	By:	/s/ Xxx Xxxxx
		Xxxxxx “Xxx” Xxxxx
	Its: President


	/s/ Xxx Xxxxxxx
	Xxxxxx X. Xxxxxxx, individually


	/s/ Xxxxxx X. Xxxxxx
	Xxxxxx Xxxxxx, individually

Document Metadata

Table of Contents

MEMBERSHIP INTEREST PURCHASE AGREEMENT by and among TOWER TECH HOLDINGS INC., ENERGY MAINTENANCE SERVICE, LLC. and the MEMBERS OF ENERGY MAINTENANCE SERVICE, LLC. Dated as of December 9, 2007

Document Metadata