AGREEMENT AND PLAN OF MERGER

Exhibit 2(a)-4

EXECUTION VERSION

AGREEMENT AND PLAN OF MERGER

Dated as of July 25, 2008

by and among

SEMPRA ENERGY,

EMS HOLDING CORP.

and

ENERGYSOUTH, INC.

TABLE OF CONTENTS

INDEX OF DEFINED TERMS

AGREEMENT AND PLAN OF MERGER

          This AGREEMENT AND PLAN OF MERGER (this “ Agreement ”), dated as of July 25, 2008, is entered into by and among Sempra Energy, a California corporation (“ Parent ”), EMS Holding Corp., a Delaware corporation and a wholly owned indirect subsidiary of Parent (“ Merger Sub ”), and EnergySouth, Inc., a Delaware corporation (the “ Company ”).

          WHEREAS, it is proposed that, on the terms and subject to the conditions set forth in this Agreement, Merger Sub shall merge with and into the Company (the “ Merger ”), and each outstanding share of common stock, par value $0.01 per share, of the Company (the “ Common Stock ”) shall be converted into the right to receive $61.50 in cash (the “ Merger Consideration ”), except for (i) shares of Common Stock held by holders who comply with the relevant provisions of the Delaware General Corporation Law (the “ DGCL ”) regarding the right of stockholders to dissent from the Merger and require appraisal of their shares; (ii) shares of Common Stock held in the treasury of the Company; and (iii) and shares of Common Stock owned by Parent, Merger Sub or any other wholly owned Subsidiary of Parent or the Company; and

          WHEREAS, the Board of Directors of the Company has (i) approved and adopted this Agreement, (ii) determined that the Merger and the other transactions contemplated by this Agreement (the “ Transactions ”) are fair to and in the best interests of the Company and its stockholders, (iii) declared the advisability of this Agreement in accordance with the DGCL, and (iv) recommended that the holders of shares of Common Stock (the “ Company Stockholders ”) adopt this Agreement, in each case, upon the terms and subject to the conditions set forth in this Agreement.

          NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement, and subject to the conditions set forth herein, the parties hereto agree as follows:

ARTICLE I

THE MERGER

     Section 1.01. The Merger . Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, Merger Sub shall be merged with and into the Company at the Effective Time. As a result of the Merger, the separate corporate existence of Merger Sub shall cease and the Company shall continue its existence under the Laws of the State of Delaware as a wholly owned indirect subsidiary of Parent, as the surviving corporation of the Merger (the “ Surviving Corporation ”).

     Section 1.02. Closing . The closing of the Merger (the “ Closing ”) shall take place at 10:00 a.m., local time, on a date to be specified by the parties, which shall be no later than the third (3rd) Business Day after satisfaction or (to the extent permitted by applicable Law) waiver of the conditions set forth in Article VII, at the offices of Alston & Bird LLP, One Atlantic Center, 1201 West Peachtree Street, Atlanta, GA, unless another time, date or place is agreed to

in writing by Parent and the Company. The date on which the Closing occurs is referred to in this Agreement as the “ Closing Date .”

     Section 1.03. Effective Time . Subject to the provisions of this Agreement, at the Closing, the parties shall cause the Merger to be consummated by filing with the Secretary of State of the State of Delaware a certificate of merger (the “ Certificate of Merger ”), in such form as required by, and executed and acknowledged by the parties in accordance with, the relevant provisions of the DGCL, and shall make all other filings or recordings required under the DGCL in connection with the Merger. The Merger shall become effective upon the filing of the Certificate of Merger with the Secretary of State of the State of Delaware or at such later time as Parent and the Company shall agree and shall specify in the Certificate of Merger (the time the Merger becomes effective being hereinafter referred to as the “ Effective Time ”).

ARTICLE II

EFFECTS OF THE MERGER; EXCHANGE OF CERTIFICATES

     Section 2.01. Effects of the Merger . The Merger shall have the effects set forth herein and in the applicable provisions of the DGCL. Without limiting the generality of the foregoing and subject thereto, at the Effective Time, all the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation and all debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation.

     Section 2.02. Certificate of Incorporation and Bylaws .

     At the Effective Time:

          (a) The Certificate of Incorporation of Merger Sub, as in effect immediately prior to the Effective Time, shall be the Certificate of Incorporation of the Surviving Corporation until thereafter changed or amended as provided therein and by applicable Law, except that the name of the Surviving Corporation will be EnergySouth, Inc.

          (b) The Bylaws of Merger Sub, as in effect immediately prior to the Effective Time, shall be the Bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable Law.

     Section 2.03. Directors of the Surviving Corporation . The directors of Merger Sub immediately prior to the Effective Time shall be the directors of the Surviving Corporation until the earlier of their death, resignation or removal or until their respective successors are duly elected and qualified.

     Section 2.04. Officers of the Surviving Corporation . The officers of the Company immediately prior to the Effective Time shall be the officers of the Surviving Corporation, each to hold office until the earlier of their death, resignation or removal or until their respective successors are duly appointed.

     Section 2.05. Additional Actions . If, at any time after the Effective Time, the Surviving Corporation shall consider or be advised that any further deeds, assignments or assurances in Law or any other acts are necessary or desirable to (a) vest, perfect or confirm, of record or otherwise, in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of the Company or (b) otherwise carry out the provisions of this Agreement, the Company and its officers and directors shall be deemed to have granted to the Surviving Corporation an irrevocable power of attorney to execute and deliver all such deeds, assignments or assurances in Law and to take all acts necessary, proper or desirable to vest, perfect or confirm title to and possession of such rights, properties or assets in the Surviving Corporation and otherwise to carry out the provisions of this Agreement, and the officers and directors of the Surviving Corporation are authorized in the name of the Company or otherwise to take any and all such action.

     Section 2.06. Effect on Capital Stock . At the Effective Time, by virtue of the Merger and without any action on the part of the Company Stockholders, or any holder of shares of capital stock of Parent or Merger Sub:

          (a) Capital Stock of Merger Sub . Each issued and outstanding share of capital stock of Merger Sub shall be converted into and become one validly issued, fully paid and nonassessable share of common stock, par value $0.0001 per share, of the Surviving Corporation.

          (b) Cancellation of Treasury Stock and Parent-Owned Stock . Each share of Common Stock that is directly owned by the Company (other than shares held in the Rabbi Trust), Parent or Merger Sub immediately prior to the Effective Time shall automatically be canceled and shall cease to exist, and no consideration shall be delivered in exchange therefor. Any shares of Common Stock that are owned by a wholly owned Subsidiary of Parent (other than Merger Sub) or the Company shall remain outstanding after the Effective Time, appropriately adjusted such that such Subsidiary owns the same percentage of the Company after the Merger as it owned immediately prior to the Merger.

          (c) Merger Consideration . Each share of Common Stock issued and outstanding (including shares held in the Rabbi Trust) immediately prior to the Effective Time (other than shares to be canceled or to remain outstanding in accordance with Section 2.06(b) and any Dissenting Shares) shall be converted into the right to receive an amount of cash, without interest, equal to the Merger Consideration, payable to the holder thereof. At the Effective Time, all such shares of Common Stock shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each holder of such shares of Common Stock immediately prior to the Effective Time shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration paid in consideration therefor upon surrender of such interest in accordance with Section 2.07(b) . The right of any Company Stockholder to receive the Merger Consideration shall be subject to and reduced by the amount of any withholding that is required under applicable Tax Law.

          (d) Dissenting Shares .

               (i) Notwithstanding anything in this Agreement to the contrary, shares of Common Stock outstanding immediately prior to the Effective Time and held by a holder who is entitled to and properly demands appraisal of such shares (“ Dissenting Shares ”) pursuant to, and who complies in all respects with, Section 262 of the DGCL (the “ Dissenters’ Provisions ”) shall be entitled to payment of the fair value of such Dissenting Shares in accordance with the Dissenters’ Provisions; provided , however, that if any such holder shall fail to perfect or otherwise shall waive, withdraw or lose the right to dissent under the Dissenters’ Provisions, then the right of such holder to be paid the fair value of such holder’s Dissenting Shares shall cease and such Dissenting Shares shall be deemed to have been converted as of the Effective Time into, and to have become exchangeable solely for the right to receive, the Merger Consideration (payable without any interest thereon).

               (ii) The Company shall promptly notify Parent of any demands received by the Company for dissenter’s rights of any shares of Common Stock, and Parent shall have the right to participate in all negotiations and proceedings with respect to such demands. Prior to the Effective Time, the Company shall not, without the prior written consent of Parent, make any payment with respect to, or settle or compromise or offer to settle or compromise, any such demand, or agree to do any of the foregoing.

     Section 2.07. Exchange of Shares .

          (a) Exchange Agent . Prior to the Effective Time, Parent shall appoint a bank or trust company that is reasonably satisfactory to the Company to act as exchange agent (the “ Exchange Agent ”) for the payment of the Merger Consideration for the benefit of the holders of (i) certificates representing shares of Common Stock (the “ Certificates ”) and (ii) shares of uncertificated Common Stock (“ Uncertificated Shares ”) outstanding immediately prior to the Effective Time. Prior to the Effective Time, Parent shall deposit or cause the Surviving Corporation to deposit with the Exchange Agent, for the benefit of the holders of the Certificates and the Uncertificated Shares, cash in an amount sufficient to pay the aggregate Merger Consideration required to be paid pursuant to Section 2.06(c) . Any funds deposited with the Exchange Agent pursuant to this Section 2.07(a) shall hereinafter be referred to as the “ Exchange Fund .” The Exchange Fund shall not be used for any other purpose.

          (b) Exchange Procedures . Promptly (and in any event within five (5) Business Days) after the Effective Time, Parent shall cause the Exchange Agent to mail to each Company Stockholder of record whose shares of Common Stock were converted into the right to receive the Merger Consideration (i) a form of letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates or transfer of the Uncertificated Shares to the Exchange Agent and which shall be in customary form and contain customary provisions) and (ii) instructions to effect the surrender of the Certificates or transfer of the Uncertificated Shares in exchange for the Merger Consideration. Each Company Stockholder of record shall, upon surrender or transfer to the Exchange Agent of the Common Stock, together with such duly executed letter of transmittal and such other documents as may reasonably be required by the Exchange Agent, be entitled to receive in exchange therefor the amount of cash to which such holder is entitled pursuant to

Section 2.06(c) . In the event of a transfer of ownership of Common Stock that is not registered in the transfer records of the Company, payment of the Merger Consideration in accordance with this Section 2.07(b) may be made to a Person other than the Person in whose name the Certificate so surrendered is registered if such Certificate shall be properly endorsed or otherwise be in proper form for transfer and the Person requesting such payment shall pay any transfer Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of such Certificate or establish to the reasonable satisfaction of Parent that such Taxes have been paid or are not applicable. Until surrendered as contemplated by this Section 2.07(b) , each Certificate or Uncertificated Share shall be deemed at any time after the Effective Time to represent only the right to receive the Merger Consideration upon surrender. No interest shall be paid or will accrue on any payment to holders of Certificates or Uncertificated Shares pursuant to the provisions of this Article II.

          (c) No Further Ownership Rights in Common Stock . The Merger Consideration paid upon the surrender of shares of Common Stock in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to such shares of Common Stock. At the close of business on the day on which the Effective Time occurs, the share transfer books of the Company shall be closed, and there shall be no further registration of transfers on the share transfer books of the Surviving Corporation of the shares of Common Stock outstanding immediately prior to the Effective Time.

          (d) Termination of the Exchange Fund . Any portion of the Exchange Fund that remains undistributed to the Company Stockholders on the date that is one (1) year after the Effective Time shall be delivered to Parent, upon demand, and any Company Stockholders who have not theretofore complied with this Article II shall thereafter look only to Parent for, and Parent shall remain liable for, payment of their claim for the Merger Consideration in accordance with this Article II.

          (e) No Liability . None of Parent, Merger Sub, the Company, the Surviving Corporation or the Exchange Agent shall be liable to any Person in respect of any funds from the Exchange Fund properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.

          (f) Investment of Exchange Fund . The Exchange Agent shall invest the cash in the Exchange Fund as directed by Parent; provided that such investments shall be in obligations of, or guaranteed by, the United States or of any agency thereof and backed by the full faith and credit of the United States, in commercial paper obligations rated A-1 or P-1 or better by Moody’s Investors Service, Inc. or Standard & Poor’s Corporation, respectively, or in deposit accounts, certificates of deposit or banker’s acceptances of, repurchase or reverse repurchase agreements with, or Eurodollar time deposits purchased from, commercial banks with capital, surplus and undivided profits aggregating in excess of $500 million (based on the most recent financial statements of such bank that are then publicly available at the SEC or otherwise). Any interest and other income resulting from such investments shall be paid to and be income of Parent. If for any reason (including losses), the cash in the Exchange Fund shall be insufficient to fully satisfy all of the payment obligations to be made in cash by the Exchange Agent hereunder, Parent shall, or shall cause the Surviving Corporation to, promptly deposit cash into the Exchange Fund in the amount required to fully satisfy such cash payment obligations.

          (g) Lost Certificates . If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person (who shall be the record owner of such Certificate) claiming such Certificate to be lost, stolen or destroyed, and, if required by the Exchange Agent or Parent, the posting by such Person of a bond in customary amount and upon such terms as may be required as indemnity against any claim that may be made against them or the Surviving Corporation with respect to such Certificate, the Exchange Agent shall deliver in exchange for such lost, stolen or destroyed Certificate the Merger Consideration pursuant to this Article II.

          (h) Withholding Rights . Each of Parent, the Surviving Corporation or the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement such amounts as it reasonably determines that it is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “ Code ”), or any provision of state, local or foreign Tax Law. To the extent that amounts are so withheld and paid over to the appropriate Taxing Authority by Parent, the Surviving Corporation or the Exchange Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Company Stockholder in respect of which such deduction and withholding was made by Parent, the Surviving Corporation or the Exchange Agent.

     Section 2.08. Company Stock-Based Awards .

          (a) As of the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof, each Company Stock Option outstanding immediately prior to the Effective Time, whether or not vested or exercisable, shall be cancelled and the holder thereof shall be entitled to receive at the Effective Time from the Surviving Corporation an amount of cash, without interest, equal to the product of (i) the total number of shares subject to such Company Stock Option, multiplied by (ii) the excess, if any, of the Merger Consideration over the exercise price per share of such Company Stock Option (with the aggregate amount of such payment to the holder to be rounded to the nearest cent), less the amount of any withholding required under applicable Tax Law.

          (b) As of the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof, each outstanding Performance Share Award and Performance-Based Restricted Stock Unit Award outstanding immediately prior to the Effective Time shall be cancelled and the holder thereof shall be entitled to receive at the Effective Time from the Surviving Corporation an amount of cash, without interest, equal to the product of (i) the target number of shares or units underlying such award, multiplied by (ii) the Merger Consideration (with the aggregate amount of such payment to the holder to be rounded to the nearest cent), less the amount of any withholding required under applicable Tax Law.

          (c) As of the Effective Time, by virtue of the Merger and without any action on the part of the participants therein, the phantom stock units (“ Phantom Stock Units ”) credited to each participant’s account under the Second Amended and Restated EnergySouth, Inc. Non-Employee Directors Deferred Fee Plan and the 2005 Non-Employee Directors Deferred Fee Plan (“ Deferred Fee Plans ”) shall be converted into a dollar amount equal to the product of (i) the number of Phantom Stock Units credited to such participant’s account, multiplied by (ii) the

Merger Consideration (with such amount to be rounded to the nearest cent). As of the Effective Time, such dollar amount shall be credited to such participant’s cash account under the applicable Deferred Fee Plan, and the Phantom Stock Units shall be debited from such participant’s plan account. As of the Effective Time and thereafter, such participant’s account shall be credited with interest when and as provided in the applicable Deferred Fee Plan and distributable in cash in accordance with the participant’s distribution election and the terms and conditions of the Deferred Fee Plans. Prior to the Effective Time, the Company shall amend the Deferred Fee Plans to provide that, as of the Effective Time and thereafter, no further Phantom Stock Units shall be credited to the accounts of participants and the accounts of participants shall be distributable only in the form of cash.

          (d) Prior to the Effective Time, the Board of Directors of the Company (or the appropriate committee thereof) shall take or cause to be taken all actions necessary to effectuate this Section 2.08 to the extent such treatment is not expressly provided for by the terms of the applicable Stock Plans and related award agreements, Contracts or participant election forms, including, without limitation, the adoption of any necessary amendments to the Stock Plans. Prior to the Effective Time and as soon as administratively practicable, the Company shall use commercially reasonable efforts to obtain from each holder of Company Stock Options granted under the Amended and Restated Stock Option Plan of EnergySouth, Inc. and the 2003 Stock Option Plan of EnergySouth, Inc. a written consent and release (in a form reasonably acceptable to Parent) providing for the treatment of such Company Stock Options as provided under Section 2.08(a) hereof, which Section 2.08(a) will govern regardless of whether a particular holder of a Company Stock Option delivers such a consent.

          (e) Notwithstanding anything in this Agreement to the contrary, if the Effective Time occurs prior to November 15, 2008, immediately prior to the Effective Time, the Company shall pay any amounts due to each employee then actively employed by the Company or a Company Subsidiary under an outstanding award granted under the Company’s Executive Incentive Compensation Plan or Employee Incentive Compensation Plan with respect to the full fiscal year ending on September 30, 2008. The amount of each such payment shall be reasonably consistent with the intent of the Company’s Executive Incentive Compensation Plan or Employee Incentive Compensation Plan, as determined in the exercise of reasonable good faith discretion by the Compensation Committee of the Board of Directors with regard to the Executive Incentive Compensation Plan and by the President and Chief Executive Officer of the Company with regard to the Employee Incentive Compensation Plan; provided, that the aggregate amount of such payments under both such Plans shall not exceed $4,800,000. In the event the Effective Time occurs on or after November 15, 2008, immediately prior to the Effective Time, the Company shall pay to each employee any amounts due such employee under the terms and conditions of such an award and the Executive Incentive Compensation Plan or Employee Incentive Compensation Plan for the full fiscal year ending September 30, 2008; provided, that the aggregate amount of such payments under both such Plans shall not exceed $4,800,000. For the avoidance of doubt, the $4,800,000 cap on payments described above under this Section 2.08(e) shall be exclusive of the bonus pool funding the Team Performance Awards, as defined in the Employment Agreements, effective April 2, 2007, between EnergySouth Midstream, Inc. and Ben J. Reese, W. Todd Brown and John A. Pirraglia, which Team Performance Awards shall be paid in accordance with such Employment Agreements. Not less than five (5) Business Days prior to the determination of the amounts of such payments by the

Compensation Committee of the Board of Directors of the Company (in the case of the Executive Incentive Compensation Plan), or the Chief Executive Officer of the Company (in the case of the Employee Incentive Compensation Plan), as applicable, the Company shall provide to Parent a schedule setting forth the employees to whom the payments described in this Section 2.08(e) are to be made, and the amount of each such payment. For purposes of any employment agreement entered into between the Company or a Company Subsidiary and such an employee, such payment shall be deemed full payment of such employee’s annual incentive award pursuant to the terms of such employee’s employment agreement.

     Section 2.09. Adjustments to Prevent Dilution . In the event that the Company changes the number of shares of Common Stock or securities convertible or exchangeable into or exercisable for shares of Common Stock issued and outstanding prior to the Effective Time as a result of a reclassification, stock split (including a reverse stock split), stock dividend or distribution, recapitalization, merger, issuer tender or exchange offer, or other similar transaction, the Merger Consideration shall be equitably adjusted.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

          Except (a) as disclosed in the Company’s Annual Report on Form 10-K for the fiscal year ended September 30, 2007, as amended, the Company’s Quarterly Reports on Form 10-Q for the quarters ended December 31, 2007 and March 31, 2008, or any Current Report on Form 8-K filed by the Company since September 30, 2007 and prior to the date of this Agreement (but, in any case, only to the extent (x) such disclosure does not constitute a “risk factor” and is not cautionary, predictive or forward looking in nature and (y) the applicability of such disclosure to a section or subsection of these representations and warranties is reasonably apparent) or (b) as set forth in the disclosure schedule delivered by the Company to Parent immediately prior to the execution of this Agreement (the “ Company Disclosure Schedule ”), the Company represents and warrants to Parent and Merger Sub as set forth below. Each disclosure set forth in the Company Disclosure Schedule is identified by reference to, or has been grouped under a heading referring to, a specific individual section of this Agreement, and disclosure made pursuant to any section of the Company Disclosure Schedule shall be deemed to be disclosed on each of the other sections of the Company Disclosure Schedule to the extent the applicability of the disclosure to such other section is reasonably apparent, except in the case of the disclosure applicable to qualifying the representation set forth on Section 3.08(c) which shall be set forth only on Section 3.08(c) of the Company Disclosure Schedule.

     Section 3.01. Organization and Qualification; Subsidiaries .

          (a) The Company and each Subsidiary of the Company (collectively, the “ Company Subsidiaries ”) is a corporation, limited liability company, general partnership or limited partnership duly formed, validly existing and in good standing (to the extent applicable) under the Laws of the jurisdiction of its formation. The Company and each Company Subsidiary has the requisite corporate, limited liability company or partnership power and authority to own, lease, sublease, use and operate its properties and assets and to carry on its business as it is now being conducted, except as has not had and would not reasonably be expected to have a Material

Adverse Effect. The Company and each Company Subsidiary is duly qualified as a foreign corporation, limited liability company, general partnership or limited partnership to do business, and is in good standing (to the extent applicable), in each jurisdiction where the character of the properties and assets owned, leased, subleased, used or operated by it or the nature of its business makes such qualification and good standing necessary, except where the failure to be so qualified and in good standing has not had and would not reasonably be expected to have a Material Adverse Effect.

          (b) Section 3.01(b) of the Company Disclosure Schedule sets forth a true and complete list of each Company Subsidiary, together with the jurisdiction of formation of each Company Subsidiary and the percentage of the outstanding equity interests of each Company Subsidiary owned by the Company and owned of record by and, to the Knowledge of the Company, owned beneficially by, each other Person. Except for the Company Subsidiaries, the Company does not directly or indirectly own any equity or similar interest in, or any interest convertible into or exchangeable or exercisable for any equity or similar interest in, any corporation, limited liability company, partnership, joint venture or other business association or entity.

     Section 3.02. Certificate of Incorporation and Bylaws . The Company has made available to Parent and Merger Sub a complete and correct copy of the Company’s certificate of incorporation (the “ Company Certificate ”) and bylaws (the “ Company Bylaws ”) and the certificate of incorporation and the bylaws (or the equivalent organizational documents) of each Company Subsidiary in full force and effect as of the date of this Agreement. Neither the Company nor any Company Subsidiary is in material violation of any provision of its certificate of incorporation or bylaws (or equivalent organizational documents).

     Section 3.03. Capitalization .

          (a) The authorized capital stock of the Company consists of (i) 20,000,000 shares of Common Stock and (ii) 10,000,000 shares of preferred stock, par value $0.01 per share (the “ Preferred Stock ”). As of July 25, 2008, (i) 8,111,632 shares of Common Stock were issued and outstanding (including shares held in the Rabbi Trust), all of which are validly issued, fully paid and nonassessable, (ii) no shares of Preferred Stock are issued and outstanding, (iii) no shares of Common Stock or Preferred Stock were held in the treasury of the Company, and (iv) 580,816 shares of Common Stock were reserved for issuance pursuant to the Stock Plans.

          (b) Section 3.03(b) of the Company Disclosure Schedule sets forth the name of each holder of an outstanding Company Stock Option, Performance Share Award, Performance-Based Restricted Stock Unit or Phantom Stock Unit, together with the number of shares of Common Stock issuable or amount of cash payable thereunder (as applicable), the grant date, exercise price (if applicable), expiration date and the vesting schedule. Except as set forth on Section 3.03(b) of the Company Disclosure Schedule, there are no options, warrants, restricted stock, restricted stock units, stock appreciation rights, deferred stock, phantom stock, convertible securities, calls, preemptive rights, rights of first refusal or other rights, or agreements or commitments of any nature obligating the Company or any Company Subsidiary to issue, transfer or sell any shares of capital stock of, or other equity interests in, the Company or any Company Subsidiary or to pay or distribute cash or any other amount determined by the

value of any shares of capital stock of, or other equity interests in, the Company or any Company Subsidiary (“ Company Stock-Based Awards ”). The grant date of each Company Stock Option set forth in Section 3.03(b) of the Company Disclosure Schedule is the date that such Company Stock Option was actually granted to the holder thereof, and the exercise price of each Company Stock Option is no less than the fair market value of a share of Common Stock as determined on the date of grant of such Company Stock Option. The Company has furnished to Parent and Merger Sub correct and complete copies of each form of agreement evidencing a Company Stock-Based Award (and any individual agreement that deviates from the form of such agreement in any material respect).

          (c) Except as set forth in Section 3.03(c) of the Company Disclosure Schedule, there are no outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity interests in, the Company or any Company Subsidiary. To the Knowledge of the Company, there are no stockholders agreements, voting trusts or other agreements or understandings relating to voting of any shares of Common Stock or granting to any Person the right to elect, or to designate or nominate for election, a director to the Board of Directors of the Company.

          (d) Each outstanding share of capital stock of, or other equity interest in, each Company Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and, except as set forth in Section 3.03(d) of the Company Disclosure Schedule, each such share or other equity interest that is owned directly or indirectly by the Company is owned by the Company or another Company Subsidiary free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, rights of first offer, charges and other encumbrances of any nature whatsoever (collectively, “ Liens ”) other than (i) Liens for current Taxes not yet past due and payable and Liens for Taxes that are being contested in good faith by appropriate proceedings and for which adequate reserves are being maintained in accordance with GAAP, and as would not reasonably be expected to have a Material Adverse Effect, (ii)  mechanics’ and materialmen’s Liens for construction in progress and workmen’s, repairmen’s, warehousemen’s and carriers’ Liens, in each case imposed by Law and arising in the ordinary course of business of the Company or a Company Subsidiary consistent with past practice either for amounts not yet past due and payable or for amounts that are being contested in good faith by appropriate proceedings and for which adequate reserves are being maintained in accordance with GAAP, and as would not reasonably be expected to have a Material Adverse Effect, and (iii) all matters of record, Liens and other imperfections of title and encumbrances that would not reasonably be expected to have a Material Adverse Effect ((i)-(iii), collectively, “ Permitted Liens ”). Upon any issuance of any Common Stock in accordance with the terms of the Stock Plans, such Common Stock will be duly authorized, validly issued, fully paid and nonassessable.

     Section 3.04. Authority Relative to the Transactions . The Company has the corporate power and authority necessary to execute and deliver this Agreement, to perform its obligations hereunder and, subject to the adoption of this Agreement by the holders of a majority of the outstanding shares of Common Stock entitled to vote thereon, to consummate the Transactions. The execution and delivery by the Company of this Agreement and the consummation by the Company of the Transactions have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of the Company are necessary to authorize

the Company’s execution and delivery of this Agreement or to consummate the Transactions (other than the adoption of this Agreement by the holders of a majority of the outstanding shares of Common Stock entitled to vote thereon and the filing of the Certificate of Merger). This Agreement has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Parent and Merger Sub, constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms (except to the extent its enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar Laws affecting the enforcement of creditors’ rights generally and by general equitable principles).

     Section 3.05. No Conflict; Required Filings and Consents .

          (a) The execution and delivery by the Company of this Agreement do not, and the performance by the Company of this Agreement and the consummation of the Transactions will not, (i) conflict with or violate the Company Certificate or Company Bylaws or the comparable governing instruments of any Company Subsidiary, (ii) assuming that all consents, approvals, authorizations and other actions described in Section 3.05(b) have been obtained or taken and all filings and obligations described in Section 3.05(b) have been made or fulfilled, conflict with or violate any Law applicable to the Company or any Company Subsidiary or by which any property or asset of the Company or any Company Subsidiary is bound or affected, (iii) except as set forth in Section 3.05(a) of the Company Disclosure Schedule, conflict with, violate, result in a breach of or constitute (with or without notice or lapse of time or both) a default under, or give rise to any right of termination, acceleration or cancellation of, or result in the creation or imposition of a Lien on any property or asset of the Company pursuant to, any material note, bond, mortgage, indenture, contract, agreement, lease, sublease, license, permit, franchise or other instrument or obligation (“ Contract ”), except, with respect to clauses (ii) and (iii) of this Section 3.05(a) , to the extent any such conflicts, violations, breaches, defaults or other occurrences has not had and would not reasonably be expected to have a Material Adverse Effect.

          (b) Except as set forth in Section 3.05(b) of the Company Disclosure Schedule, the execution and delivery by the Company of this Agreement do not, and the performance by the Company of this Agreement and the consummation by the Company of the Transactions will not, require any consent, approval, registration, authorization or permit of, or filing with or notification to, any domestic (Federal, state or local) or foreign government or governmental, regulatory or administrative authority, agency, instrumentality or commission, or any court, tribunal, or judicial, legislative or arbitral body (each, a “ Governmental Authority ”), except for (i) applicable requirements, if any, of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “ HSR Act ”), the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), the Securities Act of 1933, as amended (the “ Securities Act ”), and the rules and regulations thereunder, (ii) requirements under the rules of The Nasdaq Stock Market, Inc. (“ Nasdaq ”), (iii) the filing and recordation of the Certificate of Merger, (iv) applicable requirements, if any, under any state public utility Laws, including rules and regulations promulgated by the Alabama Public Service Commission (the “ APSC ”), (v) the approval of the Federal Communications Commission (the “ FCC ”), and (vi) where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not reasonably be expected to have a Material Adverse Effect.

     Section 3.06. Compliance with Laws; Permits .

          (a) The Company and each Company Subsidiary is, and has been since January 1, 2007, in compliance with all Laws applicable to the Company or such Company Subsidiary or by which any property or asset of the Company or such Company Subsidiary is bound or affected, except where failure to comply would not reasonably be expected to have a Material Adverse Effect. Except with respect to regulatory matters covered by Section 6.03 , no material investigation or review by any Governmental Authority with respect to the Company or any Company Subsidiary or any Benefit Plan is pending or, to the Knowledge of the Company, threatened with respect to the Company or any Company Subsidiary, except for such investigations or reviews, the outcome of which would not reasonably be expected to have a Material Adverse Effect.

          (b) The Company and each Company Subsidiary has all permits, licenses, franchises, certifications, approvals, registrations, consents, authorizations, variances, exemptions and orders issued or granted by a Governmental Authority necessary for the Company or such Company Subsidiary to own, lease, sublease, use and operate its properties and assets or to carry on its business as it is now being conducted (each, a “ Permit ” and collectively, the “ Permits ”), except where the failure to have any Permit would not reasonably be expected to have a Material Adverse Effect. No suspension, cancellation or materially adverse modification of any material Permit is pending or, to the Knowledge of the Company, threatened. The Company and each Company Subsidiary is in material compliance with the terms of the Permits. All applications required to have been filed for the renewal of all material Permits have been duly filed on a timely basis with the appropriate Governmental Authority, and all other filings required to have been made with respect to each such Permit have been duly made on a timely basis with the appropriate Governmental Authority, except where the failure to so file would not reasonably be expected to have a Material Adverse Effect.

          (c) All filings required to be made by the Company or any Company Subsidiary since August 1, 2005, and in the case of any filing made pursuant to the Public Utility Holding Company Act of 1935, as amended and in effect prior to its repeal effective February 8, 2006 (the “ PUHCA ”), prior to February 8, 2006, under the Natural Gas Act of 1938, as amended, the PUHCA and other applicable Laws, have been filed with the Federal Energy Regulatory Commission, the Department of Energy or any other applicable Governmental Authority (including, to the extent required, the APSC, the Alabama Oil and Gas Board and the Mississippi Oil and Gas Board), as the case may be, including all forms, statements, reports, agreements, and all documents, exhibits, amendments and supplements appertaining thereto, including all rates, tariffs, franchises, service agreements and related documents, and all such filings complied, as of their respective dates, with all applicable requirements of the applicable Laws, except for filings the failure of which to make or the failure of which to make in compliance with all applicable Laws would not reasonably be expected to have a Material Adverse Effect.

     Section 3.07. SEC Filings; Financial Statements; Undisclosed Liabilities .

          (a) The Company has filed with or furnished to, as applicable, the SEC all forms, reports, statements, schedules and other documents required to be filed or furnished by it

pursuant to the U.S. Federal securities Laws and the rules and regulations thereunder since September 30, 2004 (collectively, including any amendments thereto, the “ SEC Reports ”). Each of the SEC Reports (i) complied at the time of its filing or being furnished as to form in all material respects in accordance with the requirements of the Securities Act and the Exchange Act, as applicable, and the rules and regulations promulgated thereunder and (ii) did not, at the time they were filed or furnished, or, if amended or supplemented in a filing filed prior to the date hereof, as of the date of such amendment or supplement, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. There are no material unresolved comments issued by the staff of the SEC with respect to any of the SEC Reports. No Company Subsidiary is required to file any form, report, statement, schedule or other document with the SEC.

          (b) Each of the consolidated financial statements (including, in each case, any notes thereto) contained or incorporated by reference in the SEC Reports, as amended or supplemented prior to the date hereof, including any amendments or restatements thereto prior to the date hereof, was prepared in all material respects in accordance with published rules and regulations of the SEC (including Regulation S-X) and United States generally accepted accounting principles (“ GAAP ”) applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto or, in the case of unaudited interim statements, the omission of footnotes and otherwise as permitted by Form 10-Q of the SEC) and each fairly presents, in all material respects in accordance with GAAP, the consolidated financial position, results of operations and cash flows of the Company and its consolidated Subsidiaries as of the respective dates thereof and for the respective periods indicated therein, except that the unaudited interim statements are subject to normal and recurring year-end adjustments, none of which were, or are expected to be, material in amount.

          (c) Except as set forth in Section 3.07(c) of the Company Disclosure Schedule, neither the Company nor any Company Subsidiary has, as of the date of this Agreement, any liability or obligation of any nature (whether accrued, absolute, contingent or otherwise) whether or not required by GAAP to be set forth on a consolidated balance sheet of the Company and its consolidated Subsidiaries, except (i) liabilities reflected, reserved for or disclosed in the consolidated balance sheet of the Company and its consolidated Subsidiaries as of March 31, 2008, including the notes thereto, contained in the SEC Reports, (ii) liabilities incurred or accrued in the ordinary course of business consistent with past practice since March 31, 2008, (iii) liabilities incurred in connection with the Transactions, and (iv) liabilities that would not reasonably be expected to have a Material Adverse Effect.

          (d) The Company is in compliance in all material respects with the applicable listing and corporate governance rules of Nasdaq.

          (e) The Company and each of the Company Subsidiaries have implemented and maintain a system of internal accounting controls and financial reporting (as required by Rule 13a-15(a) under the Exchange Act) that are sufficient in all material respects to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements in accordance with GAAP. The Company maintains disclosure controls and procedures required by Rule 13a-15 under the Exchange Act. Such disclosure controls and

procedures are effective in all material respects to ensure that information required to be disclosed by the Company is recorded and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC and other public disclosure documents. Since the enactment of the Sarbanes-Oxley Act of 2002, neither the Company nor any of its Subsidiaries has made any prohibited loans to any executive officer of the Company (as defined in Rule 3b-7 under the Exchange Act) or director of the Company or any of the Company Subsidiaries.

     Section 3.08. Absence of Certain Changes or Events . Except as set forth in Section 3.08 of the Company Disclosure Schedule or as contemplated by this Agreement, (a) since March 31, 2008, the Company and each Company Subsidiary has conducted its business in the ordinary course of business consistent with past practice and has not taken any action which, had it been taken after the date hereof, would have required the prior written consent of Parent pursuant to clause (i) or clause (xiv) of Section 5.01(a ), (b) since March 31, 2008, neither the Company nor any of the Company Subsidiaries has suffered any material damage, destruction or loss (whether or not covered by insurance) other than in the ordinary course of business and consistent with past practice, and (c) since September 30, 2007, there has not been any change, effect, event, occurrence, state of facts or development that has had or would reasonably be likely to have a Material Adverse Effect.

     Section 3.09. Litigation . Except as set forth in Section 3.09 of the Company Disclosure Schedule, as of the date of this Agreement there is no suit, claim, action, proceeding, hearing, arbitration or, to the Knowledge of the Company, investigation or inquiry (“ Actions ”) pending or, to the Knowledge of the Company, threatened against the Company or any Company Subsidiary or any of their respective assets, properties or rights by any Person, except for Actions that have not resulted in, or, if determined adversely to the Company or any Company Subsidiary, would not reasonably be expected to result in, payments in excess of $5 million.

     Section 3.10. Labor and Employment Matters . The collective bargaining agreements and labor union Contracts to which the Company or any Company Subsidiary is a party applicable to employees of the Company or any Company Subsidiary are set forth on Section 3.10 of the Company Disclosure Schedule. Except as would not reasonably be expected to have a Material Adverse Effect or as set forth on Section 3.10 of the Company Disclosure Schedule, (a) to the Knowledge of the Company, there are no activities or proceedings of any labor union, works council, representative body or other organization to organize any employees of the Company or any Company Subsidiary or any current union representation questions involving such employees and no such activities or proceedings have been threatened, (b) there is no labor strike, controversy, slowdown, work stoppage or lockout occurring, or, to the Knowledge of the Company, threatened by or with respect to any employees of the Company or any Company Subsidiary, (c) to the Knowledge of the Company, there are no unfair labor practice complaints pending or threatened against the Company or any Company Subsidiary before the National Labor Relations Board or any other Governmental Authority, (d) to the Knowledge of the Company, no charges with respect to or relating to the Company or any Company Subsidiary are pending or threatened before the Equal Employment Opportunity Commission or any other Governmental Authority, (d) there are no Actions with respect to payment of wages, salary or overtime pay that have been asserted or are pending or, to the Knowledge of the Company, threatened before any Governmental Authority by or with respect to any current or former

employees of the Company or any Company Subsidiary, and (e) neither the Company nor any Company Subsidiary has, during the past ninety (90) day period, taken any action which would require any compliance under the Worker Adjustment and Retaining Notification Act of 1988 (the “ WARN Act ”) or similar applicable state or local Law, including the termination or laying off of any employees, or any other action that could constitute a “plant closing” or “mass layoff” as those terms are defined by the WARN Act or similar applicable state or local Law.

     Section 3.11. Employee Benefit Plans .

          (a) Section 3.11(a) of the Company Disclosure Schedule sets forth a true and complete list of all (i) “employee pension benefit plans” (as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”)), (ii) “employee welfare benefit plans” (as defined in Section 3(1) of ERISA), and (iii) other bonus, deferred compensation, pension, profit-sharing, retirement, insurance, stock purchase, stock option, equity or equity-based compensation, vacation pay, sick pay or other fringe benefit plan, employment, consulting, severance, retention, termination or change-of-control plans, agreements, arrangements or understandings, or practice maintained or contributed to by the Company or any Company Subsidiary for the benefit of any of the current or former employees, directors or officers of the Company or any Company Subsidiary or any of their beneficiaries or dependents (collectively, the “ Employees ”) or with respect to which the Company or any Company Subsidiary has or may have any liability (collectively, the “ Benefit Plans ”). The Company has furnished or made available to Parent and Merger Sub, with respect to each Benefit Plan, correct and complete copies of (i) such Benefit Plan, including all amendments thereto, (ii) the most recent annual report on Form 5500 and all attachments thereto filed with the Internal Revenue Service with respect to such Benefit Plan (if applicable) (and all attachments thereto), (iii) the most recent actuarial valuation (if applicable), (iv) the most recent summary plan description for such Benefit Plan for which such summary plan description is required, (v) the trust agreement, insurance contract or other funding instrument relating to such Benefit Plan, and (vi) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, the most recent determination letter (and if a prototype plan, an opinion letter), if any, received from the Internal Revenue Service.

          (b) Schedule 3.11(b) of the Company Disclosure Schedule lists all Benefit Plans that the Company, the Company Subsidiaries or any ERISA Affiliate maintains, contributes to or is otherwise liable that are subject to Section 412 of the Code, Section 302 of ERISA or Title IV of ERISA (“ Pension Plans ”). With respect to each Pension Plan, (i) no “reportable event” within the meaning of Section 4043(c) of ERISA for which the 30-day notice requirement has not been waived has occurred or is expected to occur, (ii) no event subject to Section 4062(e) of ERISA has occurred or is reasonably expected to occur, (iii) no “accumulated funding deficiency” (as defined in Section 302 of ERISA and Section 412 of the Code) has been incurred, whether or not waived, as of the last day of the most recent plan year of such Pension Plan ended prior to the date of this Agreement, (iv) the minimum funding requirements of ERISA have been satisfied, and (v) such Pension Plan has not been terminated. No Benefit Plan is a “multiemployer plan” (within the meaning of Section 3(37) or 4001(a)(3) of ERISA). For purposes of this Agreement, the term “ ERISA Affiliate ” means any Person that, together with the Company or any Company Subsidiary, would be deemed a “single employer” under ERISA or

within the meaning of Section 414(b), (c), (m) or (o) of the Code. There are no ERISA Affiliates other than the Company and the Company Subsidiaries.

          (c) All material contributions required to be made with respect to any Benefit Plan on or before the date hereof have been made and all obligations and liabilities in respect of each Benefit Plan as of the date hereof have been accrued and reflected in the Company’s consolidated financial statements to the extent required by GAAP.

          (d) Each Benefit Plan and all related trusts, insurance contracts and funds have been maintained, funded and administered in all material respects in accordance with the terms of such Benefit Plan and in compliance in all material respects with the applicable provisions of ERISA, the Code and other applicable Laws.

          (e) Each Benefit Plan that is intended to meet the requirements of a “qualified plan” under Section 401(a) of the Code has, as of the date of this Agreement, received a favorable determination letter or opinion letter from the Internal Revenue Service, each trust relating to a Benefit Plan intended to qualify for a tax exemption under of Section 501(c)(9) of the Code has been granted such exemption, and, to the Knowledge of the Company, nothing has occurred prior to the date hereof that would reasonably be expected to adversely affect such Benefit Plan’s or trust’s qualified or tax-exempt status.

          (f) To the Knowledge of the Company, neither the Company nor any Company Subsidiary has engaged in a “prohibited transaction” (as such term is defined in Section 406 of ERISA and Section 4975 of the Code) or any other breach of fiduciary responsibility with respect to any Benefit Plan subject to ERISA that reasonably could be expected to subject the Company or any Company Subsidiary or the Employees to (i) any material Tax or penalty on prohibited transactions imposed by Section 4975 of the Code or (ii) any material liability under Section 502(i) or Section 502(l) of ERISA. As of the date of this Agreement, with respect to any Benefit Plan: (A) no material filing, application or other matter is pending with the Internal Revenue Service, the Pension Benefit Guaranty Corporation, the United States Department of Labor or any other governmental body and (B) to the Knowledge of the Company, there is no material Action pending, other than routine claims for benefits, with respect to any Benefit Plan.

          (g) Neither the Company nor any Company Subsidiary has any plan or obligation to create any additional Benefit Plan, or to amend or modify any existing Benefit Plan in such a manner as would materially increase the cost of such Benefit Plan to the Company or any Company Subsidiary. Except as contemplated under this Agreement, neither the execution and delivery of this Agreement nor the consummation of the Merger will cause the acceleration of vesting in, or payment of, any benefits under any Benefit Plan or otherwise accelerate or materially increase any liability or obligation under any Benefit Plan.

          (h) Each Benefit Plan subject to Section 409A of the Code has been maintained, administered and operated in all material respects in accordance with Section 409A of the Code, the Treasury Regulations and Internal Revenue Service guidance thereunder. No Company Stock Option, Performance Share Award or Performance-Based Restricted Stock Unit is subject to Section 409A of the Code.

     Section 3.12. Title to Assets; Real Property .

          (a) Except as set forth in Section 3.12(a) of the Company Disclosure Schedule, the Company or a Company Subsidiary has good and marketable title to all material assets and properties, including, without limitation, good and marketable fee simple title to all real property owned by the Company and/or the Company Subsidiaries that are material to the Company’s business (on a consolidated basis) (the “ Owned Assets ”), free and clear of all Liens, other than Permitted Liens.

          (b) Except as set forth in Section 3.12(b) of the Company Disclosure Schedule, the Company or a Company Subsidiary has a good and valid leasehold or other real property interest in each parcel or portion of real property, other than Owned Assets and Rights-of-Way, that is material to the Company’s business (on a consolidated basis) (such real property interests, individually a “ Real Property Interest ” and collectively the “ Real Property Interests ”) covered under all documents between the Company or the Company Subsidiaries and third parties, under which Real Property Interests are granted to the Company or a Company Subsidiary (such document individually a “ Real Property Document ” and collectively the “ Real Property Documents ”). Except as set forth in Section 3.12(b) of the Company Disclosure Schedule, the Company or a Company Subsidiary (i) has the exclusive right to the use and occupancy of such Real Property Interests for the full term of the applicable Real Property Document, including any and all renewal terms thereof, (ii) each such Real Property Document is a legal, valid and binding obligation, enforceable in accordance with its terms, of the Company or a Company Subsidiary and, to the Knowledge of the Company, the other parties thereto, and the Company and the Company Subsidiaries have not received or provided notice of any default (with or without notice or lapse of time, or both) with respect to any such Real Property Document, nor has any event occurred which (with or without notice or lapse of time, or both) would result in a default under any such Real Property Document, (iii) neither the Company nor any Company Subsidiary has assigned its interest under any such Real Property Document or sublet any part of the premises covered thereby, and (iv) except as set forth in Section 3.12(c) of the Company Disclosure Schedule, neither the Company nor any Company Subsidiary has entered into any amendment or termination of any such Real Property Document (or allowed any Real Property Interests under the same to expire or elapse), or granted any consent or waiver (written or oral) with respect to any such Real Property Document. The Company has made available to Parent true, correct, complete and, if applicable, recorded copies of each such Real Property Document, each of which is identified in Section 3.12(c) of the Company Disclosure Schedule, and no other such Real Property Document exists except as is identified in Section 3.12(c) of the Company Disclosure Schedule.

          (c) Except as set forth in Section 3.12(c) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to any Real Property Documents or any amendments or terminations of any such Real Property Documents.

          (d) There are no pending or, to the Knowledge of the Company, threatened condemnation proceedings with respect to the Owned Assets or Real Property Interests.

          (e) The Company and each Company Subsidiary, have such consents, easements, servitudes, rights-of-way, permits or licenses (collectively, “ Rights-of-Way ”) as are

sufficient to conduct their businesses in all material respects as currently conducted, except such Rights-of-Way that, if not obtained, would not reasonably be expected to have a Material Adverse Effect. Except as would not be reasonably expected to have a Material Adverse Effect, each of the Company and each Company Subsidiary has fulfilled and performed all its obligations with respect to such Rights-of-Way and no event has occurred that allows, or after notice or lapse of time would allow, expiration, revocation or termination thereof or would result in any impairment of the rights of the holder of any such Rights-of-Way, except for such expirations, revocations, terminations and impairments that do not affect the commercial use of the property for the purposes for which the property is currently being used and except for rights reserved to, or vested in, any municipality or other Governmental Authority or any railroad by the terms of any right, power, franchise, grant, license, permit, or by any other provision of any applicable Law, to terminate, or to require annual or other periodic payments as a condition to the continuance of, such right.

          (f) Section 3.12(f) of the Company Disclosure Schedule sets forth all cavity storage agreements (including all amendments and modifications thereto) through which, to the Knowledge of the Company, the lessor or grantor derives any of the rights leased or granted to the Company or any Company Subsidiary under the Real Property Documents (the referenced cavity agreements being referred to individually as a “ Cavity Agreement ” and collectively as the “ Cavity Agreements ”). Except as set forth in Section 3.12(f) of the Company Disclosure Schedule or would not reasonably be expected to have a Material Adverse Effect, to the Knowledge of the Company, each Cavity Agreement is a legal, valid and binding obligation, enforceable for the full term thereof in accordance with its terms, including any renewal terms, by the parties thereto, and the Company and the Company Subsidiaries have not received notice (and are not aware) of any default under any Cavity Agreement.

     Section 3.13. Intellectual Property .

          (a) Section 3.13(a) of the Company Disclosure Schedule sets forth a true and complete list of U.S. and foreign (i) issued patents and pending patent applications, (ii) trademark registrations and pending applications, (iii) Internet domain name registrations, and (iv) copyright registrations and pending applications, in each case that are owned or exclusively licensed by the Company or any Company Subsidiary, and all of such patents, registrations and applications are valid, subsisting and have not expired or been cancelled or abandoned.

          (b) Except as set forth in Section 3.13(b) of the Company Disclosure Schedule and except as would not reasonably be expected to have a Material Adverse Effect, the Company and each Company Subsidiary own or have sufficient rights to use all material Intellectual Property necessary for the conduct of their respective businesses and, except as would not reasonably be expected to have a Material Adverse Effect, all of such rights shall survive unchanged upon the consummation of the Transactions.

          (c) Except as would not reasonably be expected to have a Material Adverse Effect and except as set forth in Section 3.13(c) of the Company Disclosure Schedule, the businesses of the Company and the Company Subsidiaries do not infringe or otherwise violate

any third party’s Intellectual Property rights, and there is no such claim pending or, to the Knowledge of the Company, threatened against the Company or any Company Subsidiary.

          (d) The Company and the Company Subsidiaries take commercially reasonable measures to protect and preserve their material Intellectual Property, including executing confidentiality agreements with all appropriate parties and executing Intellectual Property assignment agreements with all current and former employees and contractors who have contributed to any Intellectual Property purportedly owned by any of them. To the Knowledge of the Company, no Person is violating any Intellectual Property owned or exclusively licensed by the Company or any Company Subsidiary except as would not reasonably be expected to have a Material Adverse Effect.

     Section 3.14. Taxes .

          (a) For purposes of this Agreement, “ Tax ” or “ Taxes ” refers to any and all Federal, state, local and foreign taxes, assessments and other governmental charges, duties, impositions and levies, including taxes based upon or measured by gross receipts, income (gross or net), profits, sales, use and occupation, and value added, ad valorem, transfer, franchise, withholding, payroll, recapture, employment, real property, excise and property taxes, together with all interest, penalties and additions imposed with respect to such amounts. For purposes of this Agreement, “ Tax Return ” or “ Tax Returns ” refers to all Federal, state, local and foreign returns, schedules, attachments, estimates, information statements and reports relating to Taxes, and any amendments thereto, including any return of an affiliated, combined or unitary group that includes the Company or any Company Subsidiary.

          (b) The Company and the Company Subsidiaries have filed all Tax Returns required to be filed by them prior to the date hereof, except where the failure to file such Tax Returns would not reasonably be expected to have a Material Adverse Effect. All such Tax Returns are correct and complete in all respects, except to the extent that it would not reasonably be expected to have a Material Adverse Effect. All Taxes shown as due on such Tax Returns have been timely paid, except where the failure to pay Taxes would not reasonably be expected to have a Material Adverse Effect. Except as set forth in Section 3.14(b) of the Company Disclosure Schedule, neither the Company nor any Company Subsidiary currently is the beneficiary of any extension of time within which to file any Tax Return. Except as would not reasonably be expected to have a Material Adverse Effect, there are no Liens for Taxes upon any property or assets of the Company or the Company Subsidiaries, except (i) Liens for Taxes not yet due and payable and (ii) Liens for Taxes that are being contested in good faith by appropriate proceedings and for which adequate reserves are being maintained in accordance with GAAP.

          (c) Except as would not reasonably be expected to have a Material Adverse Effect, proper accruals pursuant to GAAP have been established (and until the Closing Date will be maintained) on the Company’s consolidated financial statements adequate to pay all Taxes of the Company and the Company Subsidiaries not yet due and payable.

          (d) Except as would not reasonably be expected to have a Material Adverse Effect or except as set forth in Section 3.14(d) of the Company Disclosure Schedule, (i) no deficiency for Taxes with respect to the Company or any Company Subsidiary has been claimed,

proposed or assessed by a Taxing Authority in writing, (ii) no audit or other proceeding for or relating to any liability in respect of Taxes of the Company or any Company Subsidiary is being conducted by any Taxing Authority and neither the Company nor any Company Subsidiary has received notification in writing that any such audit or other proceeding is pending, and (iii) neither the Company nor any Company Subsidiary has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency.

          (e) Except as set forth in Section 3.14(e) of the Company Disclosure Schedule, neither the Company nor any Company Subsidiary is a party to any agreement, contract, arrangement or plan that has resulted or would result, separately or in the aggregate, in any payment that would not be deductible pursuant to Sections 162(m) or 280G of the Code (or any corresponding provision of state, local or foreign Tax Law).

          (f) The Company has not been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.

          (g) Neither the Company nor any Company Subsidiary has any liability for the Taxes of any Person (other than members of the consolidated group of which the Company is the common parent) (i) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or foreign Law), (ii) as a transferee or successor, (iii) by Contract, or (iv) otherwise, except in each case where such liability for Taxes would not reasonably be expected to have a Material Adverse Effect.

          (h) During the two (2) year period ending on the Closing Date, neither the Company nor any Company Subsidiary was a distributing corporation or a controlled corporation in a transaction intended to be governed by Section 355 of the Code.

          (i) Neither the Company nor any Company Subsidiary has entered into any transaction identified as a “listed transaction” for purposes of Treasury Regulations Section 1.6011-4(b)(2).

     Section 3.15. Environmental Matters .

          (a) As used in this Agreement, “ Environmental Laws ” shall mean all Federal, state and local Laws concerning pollution or protection of the environment or human health, as the foregoing are enacted or in effect, on or prior to the date hereof (including ambient air, soil, surface water, ground water, wetlands, land or subsurface strata), including without limitation: (i) the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq.; (ii) the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.; (iii) the Oil Pollution Act (33 U.S.C. §§ 2701 et seq.); (iv) the Emergency Planning and Community Right-to-Know Act (42 U.S.C. §§ 11001 et seq.); (v) the Endangered Species Act (16 U.S.C. §§ 1531 et seq.); (vi) the Clean Air Act (42 U.S.C. §§ 7401 et seq.); (vii) the Federal Water Pollution Control Act (33 U.S.C. §§ 1251 et seq.); (viii) the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.); (ix) the Hazardous Materials Transportation Act (49 U.S.C. §§ 5101 et seq.); and (x) all Alabama and Mississippi Laws

comparable to the foregoing.

          (b) Except as would not reasonably be expected to have a Material Adverse Effect, and except as set forth in Section 3.15(b) of the Company Disclosure Schedule, (i) each of the Company and the Company Subsidiaries is, and has been since September 30, 2005, in compliance with all Environmental Laws applicable to their businesses as presently conducted including, without limitation, holding all Environmental Permits required for the Company’s or the Company Subsidiaries’ properties or facilities, and to the Knowledge of the Company each such Environmental Permit is valid and in full force and effect, and to the Knowledge of the Company there is no pending or threatened action or claim seeking to suspend, modify, revoke or challenge any such Environmental Permit, (ii) to the Knowledge of the Company, neither the Company nor any Company Subsidiary has treated, stored, disposed of, arranged for the disposal of, transported, spilled or Released any Hazardous Materials in violation of applicable Environmental Laws or in any manner, quantity, or location that could reasonably be expected to create environmental response liability for, or an Environmental Claim against, the Company or any Company Subsidiary, (iii) there are no pending or, to the Knowledge of the Company, threatened Environmental Claims against the Company, any Company Subsidiary or any properties, operations or facilities of any of them, (iv) neither the Company nor any of the Company Subsidiaries have entered into any agreement or contract to guarantee, assume or indemnify any Person for any pending or threatened Environmental Claim or other violation or liability pursuant to any Environmental Law, and (v) with respect to Mississippi Hub, to the Knowledge of the Company, neither the Company nor any Company Subsidiary ha