ASSET PURCHASE AGREEMENT

Exhibit 2.1

ASSET PURCHASE AGREEMENT

among

PIKE ELECTRIC, INC.,

SHAW ENERGY DELIVERY SERVICES, INC.

and

CERTAIN RELATED PARTIES

June 18, 2008

TABLE OF CONTENTS

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 iv 

ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement (this “Agreement” ) is entered into as of June 18, 2008, by Pike Electric, Inc., a North Carolina corporation (the “Buyer” ), and Shaw Energy Delivery Services, Inc., a North Carolina corporation (the “Seller” ). Pike Electric Corporation, a Delaware corporation ( “Pike” ), and The Shaw Group Inc., a Louisiana corporation ( “Shaw” ), hereby enter into this Agreement solely for the limited purposes set forth in Section 11.15.

STATEMENT OF PURPOSE

The Buyer has agreed to purchase from the Seller, and the Seller has agreed to sell to the Buyer, substantially all of the Seller’s assets for the consideration, including the Buyer’s assumption of certain stated liabilities, and on the terms and subject to the conditions set forth in this Agreement.

ARTICLE I
DEFINITIONS

“Accounts Receivable” is defined in Section 2.1.

“Accrued Vacation Amount” means, with respect to each Active Employee, the amount of cash (including employer-related withholding and payroll Taxes associated therewith) equal to up to forty (40) accrued vacation hours as of the Closing Date, as determined on a basis consistent with the Seller’s past accounting practices.

“Acquisition Proposal” is defined in Section 5.6.

“Active Employees” means all employees employed by the Seller active in the Business, including employees on temporary leave of absence, including family medical leave, military leave, temporary disability or sick leave, but excluding employees on long-term disability leave.

“Affiliate” means, with respect to a specified Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, the specified Person. The term “control” means (a) the possession, directly or indirectly, of the power to vote 50% or more of the securities or other equity interests of a Person having ordinary voting power, (b) the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of a Person, by contract or otherwise or (c) being a director, officer, executor, trustee or fiduciary (or their equivalents) of a Person or a Person that controls such Person.

“Agreement” is defined in the opening paragraph.

“Allocation Schedule” is defined in Section 2.9.

“Altec Lease” means the operating leases between the Seller, as lessee and Altec Capital Services, L.L.C. (and any of its Affiliates), as lessor, concerning the lease by the Seller of various vehicles used by it in the Business, including that certain Vehicle Leasing Agreement between the Seller and Altec Capital Services, L.L.C. dated as of May 3, 2004.

“Assumed Liabilities” is defined in Section 2.3.

“Assumed Wages” is defined in Section 2.3.

“Austin Offices” means those offices used by the Seller in the Business located at 8501 N. Mopac Expressway, Suite 330, Austin, TX 78759-8341

“Balance Sheet” means the balance sheet of the Seller as of August 31, 2007.

“Balance Sheet Date” means the date of the Balance Sheet.

“Basket” is defined in Section 10.4.

“Books and Records” is defined in Section 2.1.

“Business” means (i) the business conducted by the Seller, including the activities carried on by the Seller (and those of its Affiliates) for the purpose of (a) constructing and maintaining transmission and distribution lines and substations, (b) designing power transmission lines and substations, (c) distribution, transmission and substation engineering, and (d) procurement and project management of transmission and distribution lines and substations, and (ii) the business(es) in which the Seller is or was engaged on the date of this Agreement or during the 12 month period prior to such date.

“Business Day” means any day that is not a Saturday, Sunday or any other day on which banks are required or authorized by law to be closed in Charlotte, North Carolina.

“Buyer” is defined in the opening paragraph.

“Cap” is defined in Section 10.4.

“Capital Lease Obligations” means the amount of Liabilities of the Seller for capital lease obligations determined on a basis consistent with the Seller’s past practices, the amount of which (and the manner of determining such amount) as of the Interim Date and a list of the Contracts giving rise thereto all being set forth on Schedule 2.1(e)(i) .

“Cash Purchase Price” is defined in Section 2.5.

“Charlotte Offices” means those offices used by the Seller in the Business located at 121 West Trade Street, Charlotte, NC 28202.

“Closing” is defined in Section 2.6.

“Closing Date” is defined in Section 2.6.

“Closing Statement” is defined in Section 2.7.

“COBRA” means the requirements of Part 6 of Subtitle B of Title I of ERISA and Code § 4980B.

“Concord Offices” means those offices used by the Seller in the Business located at (i) 4005 Port Chicago Highway, Concord, CA 94520 and (ii) 4120 Port Chicago Highway, Concord, CA 94521.

“Code” means the Internal Revenue Code of 1986, as amended.

“Confidential Information” means information concerning the Business or affairs of the Seller and of the Buyer, including information relating to customers, clients, suppliers, distributors, investors, lenders, consultants, independent contractors or employees, customer and supplier lists, price lists and pricing policies, cost information, financial statements and information, budgets and projections, business plans, production costs, market research, marketing plans and proposals, sales and distribution strategies, manufacturing and production processes and techniques, processes and business methods, technical information, pending projects and proposals, new business plans and initiatives, research and development projects, inventions, discoveries, ideas, technologies, trade secrets, know-how, formulae, technical data, designs, patterns, marks, names, improvements, industrial designs, mask works, compositions, works of authorship and other Intellectual Property, devices, samples, plans, drawings and specifications, photographs and digital images, computer software and programming, all other confidential information and materials relating to the Business, and all notes, analyses, compilations, studies, summaries, reports, manuals, documents and other materials prepared by or for the Seller containing or based in whole or in part on any of the foregoing, whether in verbal, written, graphic, electronic or any other form and whether or not conceived, developed or prepared in whole or in part by the Seller.

“Consent” means any consent, approval, authorization, permission or waiver.

“Contract” means any contract, obligation, commitment, lease, license, purchase order, work order, bid or other agreement, whether written or oral or whether express or implied, together with all amendments and other modifications thereto.

“Employee Benefit Plan” means any (a) qualified or nonqualified Employee Pension Benefit Plan (including any Multiemployer Plan) or deferred compensation or retirement plan or arrangement, (b) Employee Welfare Benefit Plan or (c) equity-based plan or arrangement (including any stock option, stock purchase, stock ownership, stock appreciation or restricted stock plan) or material fringe benefit or other retirement, severance, bonus, profit-sharing or incentive plan or arrangement.

“Employee Pension Benefit Plan” has the meaning set forth in ERISA § 3(2).

“Employee Welfare Benefit Plan” has the meaning set forth in ERISA § 3(1).

“Employment Agreements” means the Employment Agreements between the Buyer and each of Jim Hicks and Don Robertson dated as of the Closing Date.

“Encumbrance” means any lien, mortgage, pledge, encumbrance, charge, security interest, adverse or other claim, community property interest, condition, equitable interest, option, right of first refusal, easement, license, servitude, right of way, covenant, zoning or other similar restriction.

“Environmental Law” means any Law relating to the environment, health or safety, including any Law relating to the presence, use, production, generation, handling, management, transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, control or cleanup of any Hazardous Substance.

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

“Estimated Cash Purchase Price” is defined in Section 2.5.

“Estimated Capital Lease Obligations” means the Capital Lease Obligations as of the Interim Date.

“Estimated Working Capital” means the Working Capital as of the Interim Date.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Excluded Assets” is defined in Section 2.2.

“Excluded Liabilities” is defined in Section 2.4.

“Financial Statements” is defined in Section 3.5.

“Forfeited Amount” is defined in Section 8.4.

“GAAP” means generally accepted accounting principles in the United States as set forth in pronouncements of the Financial Accounting Standards Board (and its predecessors) and the American Institute of Certified Public Accountants and, unless otherwise specified, as in effect on the date hereof or, with respect to any financial statements, the date such financial statements were prepared.

“Governmental Body” means any federal, state, local, foreign or other government or quasi-governmental authority or any department, agency, subdivision, court or other tribunal of any of the foregoing.

“Guaranty or Bond” means any guaranty, letter of credit, surety or performance bond and any other similar material agreement or arrangement pursuant to which the Seller or one or more of its Affiliates has obligations with respect to any obligations of the Business, and any security or collateral furnished in connection with any such guaranty, letter of credit, surety or performance bond or other similar agreement or arrangement.

“Hazardous Substance” means any material, substance or waste that is limited or regulated by any Governmental Body. The term includes asbestos, polychlorinated biphenyls, petroleum products and all materials, substances and wastes regulated under any Environmental Law.

“Hired Active Employees” is defined in Section 8.1.

“Indebtedness” means as to any Person at any time: (a) obligations of such Person for borrowed money; (b) obligations of such Person evidenced by bonds, notes, debentures or other similar instruments; (c) obligations of such Person to pay the deferred purchase price of property or services (including obligations under noncompete, consulting or similar arrangements), except trade accounts payable of such Person arising in the ordinary course of business that are not past due by more than 90 days or that are being contested in good faith by appropriate proceedings diligently pursued and for which adequate reserves have been established on the financial statements of such Person; (d) capitalized lease obligations of such Person; (e) indebtedness or other obligations of others guaranteed by such Person; (f) obligations secured by an Encumbrance existing on any property or asset owned by such Person; and (g) reimbursement obligations of such Person relating to letters of credit, bankers’ acceptances, surety or other bonds or similar instruments.

“Indemnified Party” is defined in Section 10.6.

“Indemnifying Party” is defined in Section 10.6.

“Insurance Policies” means all insurance policies to which the Seller is a party, a named insured or otherwise the beneficiary of coverage as of the Closing Date.

“Intellectual Property” means (a) inventions (whether patentable or unpatentable and whether or not reduced to practice), improvements thereto, and patents, patent applications, and patent disclosures, together with reissuances, continuations, continuations-in-part, revisions, extensions and reexaminations thereof; (b) trademarks, service marks, trade dress, logos, trade names, and corporate names, together with translations, adaptations, derivations and combinations thereof and including goodwill associated therewith, and applications, registrations, and renewals in connection therewith; (c) copyrightable works, copyrights, and applications, registrations and renewals in connection therewith; (d) mask works and applications, registrations and renewals in connection therewith; (e) trade secrets and Confidential Information; (f) computer software, in object and source code format (including data and related documentation); (g) plans, drawings, architectural plans and specifications; (h) websites and domain names; (i) other proprietary rights; and (j) copies and tangible embodiments and expressions thereof (in whatever form or medium), all improvements and modifications thereto and derivative works thereof.

“Intercompany Receivables” is defined in Section 2.2(p).

“Interim Balance Sheet” is defined in Section 3.5.

“Interim Date” means April 30, 2008.

“Inventory” is defined in Section 2.1.

“IRS” means the U.S. Internal Revenue Service.

“Knowledge” means actual knowledge.

“Knowledge of the Seller” means the Knowledge of Jim Hicks, Brian Hay, John Kiser, Don Robertson, Kirk Saunders, Clarence Ray, Rance Hall, Sonny Cook, Jeremy Turner, Craig Smithey, Malcom Niven, Stacy Morin, Bert Parmenter, Richard Selim, Richard Shimota, Clifton S. Rankin, Brian Ferraioli and E. Kenneth Jenkins.

“Law” means any federal, state, local, foreign or other law, statute, ordinance, regulation, rule, regulatory or administrative guidance, Order, constitution, treaty, principle of common law or other restriction of any Governmental Body.

“Lease” is defined in Section 3.12.

“Liability” means any liability, obligation or commitment of any kind or nature, whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to become due.

“License” is defined in Section 3.14.

“Loss” means any loss, claim, demand, Order, damage, penalty, fine, cost, settlement payment, Liability, Tax, expense, fee, court costs or attorneys’ fees and expenses.

“Lower Limit” means the product of 90% and the Target Working Capital.

“Master Services Agreement” means the Master Services Agreement to be signed by the Buyer and Shaw, in the form of Exhibit A .

“Material Adverse Effect” means any material adverse effect on the Business, operations, properties, assets, Liabilities, condition (financial or otherwise) or Prospects of the Seller.

“Material Consents” is defined in Section 5.2.

“Material Contract” is defined in Section 3.13.

“Multiemployer Plan” has the meaning set forth in ERISA § 3(37).

“Negative Vacation Balance” means lesser of (1) the amount, if any, equal to the Active Employees’ negative vacation balances as of the Closing Date in the aggregate and (2) $50,000.

“Noncompete Agreement” means the Noncompete Agreement to be signed by the Buyer and Shaw, in the form of Exhibit B .

“Order” means any order, award, decision, injunction, judgment, ruling, decree, charge, writ, subpoena or verdict entered, issued, made or rendered by any Governmental Body or arbitrator.

“Organizational Documents” means (a) the certificate or articles of incorporation and the bylaws, (b) any documents comparable to those described in clause (a) as may be applicable pursuant to any Law and (c) any amendment or modification to any of the foregoing.

“Party” means the Buyer or the Seller.

“PBGC” means the Pension Benefit Guaranty Corporation.

“Permit” means any permit, license or Consent issued by any Governmental Body or pursuant to any Law.

“Permitted Encumbrance” means (a) any Encumbrance set forth on Schedule 3.8 related to the Altec Lease or the Capital Lease Obligations, (b) any mechanic’s, materialmen’s or similar statutory lien incurred in the ordinary course of business for monies not yet due, (c) any lien for Taxes not yet due and (d) any recorded easement, covenant, zoning or other restriction on the Real Property that, together with all other Permitted Encumbrances, does not prohibit or impair the current use, occupancy, value or marketability of title of the property subject thereto.

“Person” means any individual, corporation, limited liability company, partnership, company, sole proprietorship, joint venture, trust, estate, association, organization, labor union, Governmental Body or other entity.

“Pike” is defined in the opening paragraph.

“Portland Offices” means those offices used by the Seller in the Business located at 10300 SW Nimbus Ave., Suite B, Bldg. P, Portland, OR 97223-4345

“Proceeding” means any proceeding, charge, complaint, claim, demand, notice, action, suit, litigation, hearing, audit, investigation, arbitration or mediation (in each case, whether civil, criminal, administrative, investigative or informal) commenced, conducted, heard or pending by or before any Governmental Body, arbitrator or mediator or, to the Knowledge of a relevant Party, the filing or commencement of which is imminent.

“Prospect” means any specifically identifiable opportunity which might reasonably be expected to materially, positively affect the future condition (financial or otherwise) of the Seller.

“Purchase Price” is defined in Section 2.5.

“Purchased Assets” is defined in Section 2.1.

“Real Property” is defined in Section 3.12.

“Related Person” means (a) with respect to a specified individual, any member of such individual’s Family and any Affiliate of any member of such individual’s Family and (b) with respect to a specified Person other than an individual, any Affiliate of such Person and any member of the Family of any such Affiliates that are individuals. The “ Family ” of a specified individual means the individual, such individual’s spouse and former spouses, any other individual who is related to the specified individual or such individual’s spouse or former spouse within the third degree, and any other individual who resides with the specified individual.

“Representation Schedules” means the schedules to this Agreement corresponding to the sections contained in Article III.

“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.

“Resolution Accountants” is defined in Section 2.7(c).

“Seller” is defined in the opening paragraph.

“Seller’s Savings Plans” is defined in Section 8.4.

“Share” means any share of common stock, par value $1.00 per share, of the Seller.

“Shareholder” is defined in Section 3.2.

“Shaw” is defined in the opening paragraph.

“Tangible Personal Property” is defined in Section 2.1.

“Target Working Capital” means $10,549,108.

“Tax” means (a) any federal, state, local, foreign or other income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Code § 59A), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, general service, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, however denominated or computed, and including any interest, penalty, or addition thereto, whether disputed or not; and (b) Liability for the payment of any amounts of the type described in clause (a) as a transferee or successor, by Contract or from any express or implied obligation to indemnify or otherwise assume or succeed to the Liability of another Person.

“Tax Return” means any return, declaration, report, claim for refund, or information return or other document or statement relating to Taxes, including any form, schedule or attachment thereto and any amendment or supplement thereof.

“Third-Party Claim” is defined in Section 10.6.

“Transactions” means the transactions contemplated by the Transaction Documents.

“Transaction Documents” means this Agreement, the Transition Agreement, the Noncompete Agreement, the Employment Agreements, the Master Services Agreement and all other written agreements, documents and certificates contemplated by any of the foregoing documents.

“Transition Agreement” means the Transition Services Agreement to be signed by the Buyer and Shaw, in the form of Exhibit C .

“Upper Limit” means the product of 110% and the Target Working Capital.

“WARN Act” means the Worker Adjustment Retraining and Notification Act of 1988.

“Working Capital” means (a) the amount of current assets of the Seller included in the Purchased Assets, minus (b) the amount of the current liabilities of the Seller included in the Assumed Liabilities, based upon their respective book values and determined on a basis consistent with past accounting practices of the Seller (specifically, those accounting practices used in preparation of the Interim Balance Sheet), as set forth in greater detail on Schedule 1.1 . For purposes of this Agreement, the Sellers’ and it’s Affiliates’ transaction expenses shall be excluded from the calculation of Working Capital.

ARTICLE II
SALE AND PURCHASE OF ASSETS

2.1 Sale and Purchase of Assets . Subject to the terms and conditions of this Agreement, the Seller will sell, assign, transfer and convey to the Buyer, and the Buyer will purchase, acquire and accept from the Seller, free and clear of all Encumbrances other than Permitted Encumbrances, all of the Seller’s assets of every kind and description (other than the Excluded Assets) on the Closing Date (the “Purchased Assets” ), including without limitation the following assets of the Seller (other than the Excluded Assets):

(a) All machinery, equipment, parts, tools, fixtures, furniture, office equipment, computer hardware, supplies, motor vehicles, fork-lift trucks and other rolling stock and other items of tangible personal property (other than Inventory), including without limitation those listed on Schedule 2.1(a) (the “Tangible Personal Property” );

(b) All trade and other accounts receivable, billed and unbilled (which includes without limitation all receivables accruing for work completed but not billed), and other Indebtedness owing to the Seller, including the benefit of all collateral, security, guaranties, and similar undertakings received or held in connection therewith and any claim, remedy or other right related to the foregoing, including without limitation those listed on Schedule 2.1(b) (the “Accounts Receivable” ), including Accounts Receivable owing to the Seller from Affiliates of Shaw other than the Intercompany Receivables;

(c) All inventories wherever located, including raw materials, goods consigned to vendors or subcontractors, works in process, finished goods, spare parts, goods in transit, products under research and development, demonstration equipment and inventory on consignment, including without limitation those listed on Schedule 2.1(c) (the “Inventory” );

(d) All leases and subleases of real property used by the Seller as to which the Seller or Shaw Facilities, Inc., an Affiliate of Shaw, is the lessor or sublessor and all leases and subleases of real property as to which the Seller is the lessee or sublessee, together with any options to purchase the underlying property and leasehold improvements thereon, and in each case all other rights, subleases, licenses, permits, deposits and profits appurtenant to or related to such leases and subleases, including without limitation those listed on Schedule 3.12(b) ; provided , the foregoing shall not include the leases for the Austin Offices, the Charlotte Offices, the Concord Offices or the Portland Offices;

(e) All rights and interests in and to any Contracts, including without limitation those Contracts of the Seller or its Affiliates listed on Schedule 3.13 and all equipment leases set forth on Schedule 2.1(e) ;

(f) All Intellectual Property, including without limitation that which is listed on Schedule 2.1(f) ;

(g) All business, employee and financial records, books, ledgers, files, correspondence, documents, lists, studies and reports, including customer lists, supplier lists and equipment repair, maintenance, service, personnel, payroll, employee benefit, quality control and insurance records, whether written, electronically stored or otherwise recorded (the “Books and Records” );

(h) All goodwill and all sales, advertising, promotional and marketing information and materials;

(i) All telephone, fax and pager numbers assigned to the Seller;

(j) All Permits (including without limitation all FCC licenses held by Shaw or its Affiliates for truck radios which are Purchased Assets), except for those listed on Schedule 3.4 ;

(k) All rights of the Seller to causes of action, lawsuits, judgments, claims and demands of any nature and all counterclaims, rights of setoff, rights of indemnification and affirmative defenses to any claims that may be brought against the Buyer by third parties;

(l) All rights to refunds from customers and suppliers, all prepaid expenses and deposits and all rights to condemnation proceeds;

(m) All Tangible Personal Property used by the Seller located at the Concord Offices and the Portland Offices; and

(n) All other properties and assets to the extent the Seller has any rights thereto or interests therein, whether a present or future interest, an inchoate right or otherwise and whether such properties or assets are tangible or intangible and whether or not of a type falling within any of the categories of assets or properties described above.

2.2 Excluded Assets . The Seller will retain ownership of the following assets of the Seller (collectively, the “Excluded Assets” ):

(a) All cash, cash equivalents and short-term investments;

(b) Organizational Documents, stock books, stock ledgers, minute books and Tax Returns;

(c) Any third-party beneficiary rights or benefits the Seller has under that certain Agreement for Consulting, Engineering, Procurement, Construction and Environmental Services between NRG Energy, Inc. and Stone & Webster, Inc dated September 1, 2003;

(d) All rights to causes of action, lawsuits, judgments, claims and demands of any nature and all counterclaims, rights of setoff, rights of indemnification and affirmative defenses to any claims that may be brought against the Seller by third parties, in each case to the extent that they relate to the Excluded Assets or Excluded Liabilities;

(e) All rights under any Transaction Document;

(f) All Insurance Policies and rights thereunder;

(g) All assets comprising or directly related to any Seller Employee Benefit Plan;

(h) All accounts receivable from the City of Tacoma;

(i) All tax attributes of the Seller, including for example and without limitation, all net operating losses;

(j) That certain Contract between the Seller’s Affiliate and KeyBanc Capital Markets regarding the Transaction;

(k) That certain General Agreement of Indemnity between Shaw, the Seller and Bond Safeguard Insurance Company and/or Lexon Insurance Company dated March 30, 2004;

(l) That certain Agreement of Indemnity between Shaw, the Seller and American International Companies dated June 23, 2003;

(m) The leases for the Austin Offices, the Charlotte Offices, the Concord Offices and the Portland Offices;

(n) All Tangible Personal Property used by the Seller located at the Austin Offices and the Charlotte Offices;

(o) The Intellectual Property identified on Schedule 3.14(a) ; and

(p) Any and all amounts and Liabilities payable by Shaw or its Affiliates to the Seller that are reflected on the JD Edwards account 1325 “Due To / Due From Affiliates – Manual” (the  “Intercompany Receivables” ), which amounts and Liabilities are of a type similar those included in such account consistent with past practices.

2.3 Assumed Liabilities . The Buyer will assume and agree to pay, perform and discharge only the following Liabilities (to the extent not otherwise specified as Excluded Liabilities in subsections 2.4(a) through 2.4(i) below) (collectively, the “Assumed Liabilities” ):

(a) All trade accounts payable of the Seller as of the Closing Date which are in an amount and of a type similar in all material respects to those on in the Interim Balance Sheet;

(b) All Liabilities of the Seller for accrued wages and salaries (including Taxes associated therewith), which are of a type similar in all material respects to those on in the Interim Balance Sheet (the “Assumed Wages” );

(c) All other accrued expenses of the Seller as of the Closing Date incurred in the ordinary course (excluding the Seller’s expenses associated with the Transactions), which are of a type similar in all material respects to those on in the Interim Balance Sheet;

(d) Liabilities of the Seller to be performed after the Closing Date under any executory Contract or Permit incurred by the Seller in the ordinary course of business, including completion of performance of all (i) Contracts in process as of the Closing Date (other than those Contracts set forth in Section 2.2) and (ii) warranty obligations under any and all Contracts (other than those Contracts set forth in Section 2.2) that remain under warranty as of the Closing Date; provided , however , that such Liabilities will only be Assumed Liabilities to the extent that all benefits that have accrued but remain unrealized or that accrue under such Contracts or Permits on and after the Closing Date are transferred to the Buyer pursuant to this Agreement and the existence of such Liabilities does not constitute a breach of the representations and warranties of the Seller set forth in this Agreement or in such Contract or Permit;

(e) Liabilities of the Seller to be performed after the Closing Date under the Altec Lease;

(f) The Capital Lease Obligations; and

(g) Liabilities to be performed after the Closing Date under the Leases described on Schedule 3.12(b) .

2.4 Excluded Liabilities . The Excluded Liabilities will remain the sole responsibility of and will be retained, paid, performed and discharged as and when due solely by the Seller. “Excluded Liabilities” means every Liability of the Seller, other than the Assumed Liabilities, including without limitation:

(a) All Liabilities of the Seller under any Transaction Document, including Seller’s and its Affiliates’ expenses associated with the Transactions, including without limitation any Liabilities owed to KeyBanc Capital Markets, Inc.;

(b) All Liabilities of the Seller for Taxes (whether federal, state, local or foreign), including Taxes incurred in respect of or measured by (i) the sales of goods or services by Seller, (ii) the compensation paid by Sellers to its employees and other service providers (not included in Section 2.3(b)), (iii) the value of Seller’s property (personal as well as real property), (iv) the income of Seller earned on or realized prior to the Closing Date, and (v) any gain and income from the sale of the Purchased Assets and other Transactions;

(c) All Liabilities of the Seller for accrued bonuses, paid-time off (including without limitation vacation, sick leave, holiday, personal leave and similar items), severance and incentive plans including without limitation any amounts related to any wage and hour Law violations for time periods ending prior to the Closing Date;

(d) All Liabilities of the Seller for environmental, ecological, health or safety claims to the extent relating to or arising from the ownership or operation of the Business or the Purchased Assets on or prior to the Closing Date;

(e) All Liabilities of the Seller arising from the Seller’s and its Affiliates’ relationship with the City of Tacoma;

(f) All Liabilities of the Seller for workers’ compensation, auto and general liability claims with respect to actions and incidents occurring prior to the Closing Date;

(g) All Liabilities of the Seller to indemnify any Person (including any Affiliate of Shaw) by reason of the fact that such Person was a director, officer, employee or agent of the Seller;

(h) All Liabilities of the Seller in favor of, or Losses owing to, Shaw or any of its Affiliates, other than Liabilities under executory Contracts assumed by the Buyer pursuant to Section 2.3(d); and

(i) All Liabilities of the Seller in respect of those matters listed on Schedule 3.7 (except for those related to the Altec Lease, which Liabilities are assumed by the Buyer pursuant to Section 2.3(e) above) and on Schedule 3.17 .

2.5 Purchase Price .

(a) The purchase price for the Purchased Assets (the “Purchase Price” ) will be an amount equal to: (i) $24,250,000; minus (ii) the Capital Lease Obligations as of the Closing Date; (iii) plus the amount, if any, by which the Working Capital exceeds the Upper Limit, (iv) minus the amount, if any, by which the Working Capital is less than the Lower Limit; and (v) plus the assumption of the Assumed Liabilities. The amounts in items (i) through (iv), as adjusted pursuant to Section 2.8, is the “Cash Purchase Price” .

(b) No later than five Business Days prior to the Closing Date, the Seller will deliver to the Buyer a statement prepared in good faith, together with any related documentation requested by the Buyer, of (i) the Estimated Working Capital and (ii) the Estimated Capital Lease Obligations.

(c) The estimated cash purchase price for the Purchased Assets (the “Estimated Cash Purchase Price” ) will be will be an amount equal to: (i) $24,250,000; minus (ii) the Estimated Capital Lease Obligations; (iii) plus the amount, if any, by which the Estimated Working Capital exceeds the Upper Limit; and (iv) minus the amount, if any, by which the Estimated Working Capital is less than the Lower Limit.

(d) Subject to the terms and conditions of this Agreement, the Buyer will pay the Estimated Cash Purchase Price at Closing to the Seller by wire transfer of immediately available funds to a bank account designated by the Seller at least two Business Days prior to the Closing Date.

2.6 Closing . The closing of the Transactions to be performed on the Closing Date (the “Closing” ) will take place at the offices of Kennedy Covington Lobdell & Hickman, L.L.P. in Charlotte, North Carolina, commencing at 9:00 a.m. local time on the later of (a) August 15, 2008, or (b) the second Business Day following the satisfaction or waiver of all conditions to the obligations of the Parties to consummate the Transactions to be performed on the Closing Date (other than conditions with respect to actions the Parties will take at the Closing) or such other date as the Buyer and the Seller may mutually determine (the “Closing Date” ). Subject to the consummation of the Closing on the Closing Date, the sale, assignment, transfer and conveyance to the Buyer of the Purchased Assets and the assumption by the Buyer of the Assumed Liabilities will be deemed effective as of 11:59 p.m. local time on the Closing Date or such other date and time as mutually agreed upon by the Parties.

2.7 Closing Statement .

(a) After the Closing, the Buyer will prepare a statement (the “Closing Statement” ) of: (i) Working Capital as of the Closing Date and (ii) Capital Lease Obligations as of the Closing Date, calculated in a manner consistent with Schedule 1.1 . In preparing the Closing Statement, the Seller will, and cause its Affiliates to, make available to the Buyer and its representatives in a timely manner all books, records and related materials reasonably requested by the Buyer and its representatives in connection with its preparation of the Closing Statement. Within 60 days after the Closing Date, the Buyer will deliver to the Seller the Closing Statement and the calculation of the Working Capital and the Capital Lease Obligations, all as of the Closing Date, and the Cash Purchase Price determined in accordance with Section 2.8.

(b) The Seller and its representatives will be entitled to examine the work papers related to the preparation of the Closing Statement and the relevant books and records of the Buyer and to discuss the preparation of the Closing Statement with the Buyer.

(c) If the Seller disagrees with the calculation of the Cash Purchase Price, the Seller must deliver to the Buyer, within 45 days after the date the Buyer delivered the Closing Statement and its Cash Purchase Price calculation to the Seller, a written description of each such disagreement. The Buyer and the Seller will negotiate in good faith to resolve any such disagreements. If, after a period of 45 days following the date on which such written description is delivered regarding Working Capital, Capital Lease Obligations or Cash Purchase Price, the Buyer and the Seller have not resolved each such disagreement, then either the Buyer or the Seller will be entitled to submit such disagreements to PricewaterhouseCoopers (the “Resolution Accountants” ) so long as such submitting party provides written notice of such submission to the nonsubmitting party.

(d) Each of the Buyer and the Seller will grant to the Resolution Accountants reasonable access to its books, records and work papers to discuss the preparation of the Closing Statement, the calculation of the Working Capital, Capital Lease Obligations and the Cash Purchase Price as of the Closing Date. The Resolution Accountants will resolve the disagreements within 30 days after the date on which the Resolution Accountants are engaged, and the calculation of the Cash Purchase Price by the Resolution Accountants will be binding upon the Parties. The cost of the services of the Resolution Accountants will be borne half by the Buyer and half by the Seller.

2.8 Post-Closing Purchase Price Adjustment . Within ten Business Days after the final determination of the Cash Purchase Price (i) if the Cash Purchase Price exceeds the Estimated Cash Purchase Price, the Buyer will pay to the Seller, by wire transfer of immediately available funds to the bank account designated by the Seller pursuant to Section 2.5, the amount of such excess; or (ii) if the Cash Purchase Price is less than the Estimated Cash Purchase Price, the Seller will pay to the Buyer, by wire transfer of immediately available funds to a bank account designated by the Buyer, the amount of such deficit.

2.9 Allocation of Purchase Price . Within sixty (60) days following the Closing (or later, as mutually agreed), the Buyer and the Seller shall negotiate and prepare a schedule (the “Allocation Schedule” ) allocating the Purchase Price (including, for purposes of this Section 2.9, any other consideration paid to the Seller) among the Purchased Assets. The Allocation Schedule shall be reasonable and shall be prepared in accordance with the requirements of Code § 1060 and the regulations thereunder. The Buyer and the Seller each agrees to file IRS Form 8594, or a successor form, and any amendments thereto, and all United States federal, state and local, and non-U.S., Tax Returns, in accordance with the Allocation Schedule, as and when required by applicable Law. The Buyer and the Seller each agrees to provide the other promptly with any other information required to complete IRS Form 8594.

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER

The Seller hereby represents and warrants as follows:

3.1 Organization, Qualification and Corporate Power . Schedule 3.1 sets forth the Seller’s jurisdiction of incorporation, the other jurisdictions in which it is qualified to do business, and its directors and officers. The Seller is a corporation duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation. The Seller has delivered to the Buyer correct and complete copies of the Organizational Documents of the Seller. The minute books, the stock certificate books and the stock ledger of the Seller, in each case as delivered or made available to the Buyer, are correct and complete.

3.2 Capitalization . The entire authorized capital stock of the Seller consists solely of 10,000 Shares, of which only 100 Shares are outstanding. Such outstanding Shares of capital stock are owned of record and beneficially by Shaw Transmission & Distribution Services, Inc. ( “Shareholder” ), which is a wholly-owned, indirect subsidiary of Shaw. All of the outstanding capital stock of the Seller has been duly authorized and is validly issued, fully paid and nonassessable. There are no outstanding securities convertible or exchangeable into capital stock of the Seller. The Seller does not directly or indirectly own or control any direct or indirect equity interest in any Person. Schedule 3.2 sets forth each Person in which Shaw possesses, directly or indirectly, 10% or more of the outstanding securities or equity interests of such Person.

3.3 Authority . The Seller has full corporate power and authority to execute and deliver the Transaction Documents to which it is a party and to perform its obligations thereunder. The execution, delivery and performance by the Seller of the Transaction Documents to which the Seller is a party have been approved by the board of directors of the Seller, Shareholder and Shaw. At Closing, the execution and delivery by the Seller of each Transaction Document to which the Seller is a party and the performance by the Seller of the Transactions will have been duly authorized by all requisite corporate action of the Seller. This Agreement constitutes the valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with the terms of this Agreement. Upon the execution and delivery by the Seller of each Transaction Document to which it is a party, such Transaction Document will constitute the valid and legally binding obligation of the Seller, enforceable against the Seller in accordance with the terms of such Transaction Document. Shaw has full corporate power and authority to execute and deliver the Transaction Documents to which it is a party and to perform its obligations thereunder. The execution, delivery and performance by Shaw of the Transaction Documents to which Shaw is a party have been approved by the board of directors of Shaw. At Closing, the execution and delivery by Shaw of each Transaction Document to which Shaw is a party and the performance by Shaw of the Transactions will have been duly authorized by all requisite corporate action of Shaw. This Agreement constitutes the valid and legally binding obligation of Shaw, enforceable against Shaw in accordance with the terms of this Agreement. Upon the execution and delivery by Shaw of each Transaction Document to which it is a party, such Transaction Document will constitute the valid and legally binding obligation of Shaw, enforceable against Shaw in accordance with the terms of such Transaction Document.

3.4 No Conflicts . Except as set forth on Schedule 3.4 , neither the execution and delivery of this Agreement nor the performance of the Transactions will, directly or indirectly, with or without notice or lapse of time: (a) violate any Law to which the Seller or any Purchased Asset is subject; (b) violate any Permit held by the Seller or give any Governmental Body the right to terminate, revoke, suspend or modify any such Permit held by the Seller; (c) violate any Organizational Document of the Seller; (d) violate, conflict with, result in a breach of, constitute a default under, result in the acceleration of or give any Person the right to accelerate the maturity or performance of, or to cancel, terminate, modify or exercise any remedy under, any Material Contract to which the Seller is a party or by which the Seller is bound or to which any Purchased Asset is subject or under which the Seller has any rights or the performance of which is guaranteed by the Seller; (e) result in the imposition of any Encumbrance upon any Purchased Asset; or (f) result in any shareholder of the Seller having the right to exercise dissenters’ appraisal rights. Except as set forth on Schedule 3.4 , the Seller is not required to notify, make any filing with, or obtain any Consent of any Person in order to perform the Transactions. The Seller has, through its board of directors, recommended to Shareholder approval of this Agreement and the Transactions and the Shareholder has approved this Agreement and the Transactions.

3.5 Financial Statements .

(a) Attached to Schedule 3.5 are the following financial statements (collectively, the  “Financial Statements” ): (i) balance sheet of the Seller as of August 31 for each of the years 2005 to 2007, and statements of income for each of the fiscal years then ended; and (ii) an unaudited balance sheet (the “Interim Balance Sheet” ) of the Seller as of the Interim Date, and statements of income, for the eight-month period then ended. The Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the periods covered thereby, and present fairly the financial condition of the Seller as of and for their respective dates; provided , however , that the interim financial statements described in clause (ii) above are subject to normal, recurring year-end adjustments (which will not be, individually or in the aggregate, materially adverse) and lack notes (which, if presented, would not differ materially from the notes accompanying the Balance Sheet).

(b) The Books and Records (i) are complete and correct in all material respects and all transactions to which the Seller is or has been a party are accurately reflected therein in all material respects on an accrual basis, (ii) reflect all discounts, returns and allowances granted by the Seller with respect to the periods covered thereby, (iii) form the basis for the Financial Statements and (iv) reflect in all material respects the assets, liabilities, financial position, results of operations and cash flows of the Seller on an accrual basis. All computer-generated reports and other computer output included in the Books and Records are complete and correct in all material respects and were prepared in accordance with sound business practices based upon authentic data. The Seller’s management information systems are adequate for the preservation of relevant information and the preparation of accurate reports.

3.6 Absence of Certain Changes . Except as set forth on Schedule 3.6 , since February 29, 2008:

(a) the Seller has not (i) sold, leased, transferred or assigned any asset or (ii) made any distributions of any assets (cash or otherwise) to any of its Affiliates;

(b) the Seller has not experienced any material damage, destruction or loss (whether or not covered by insurance) to its property or assets;

(c) the Seller has not estimated or recorded any Contract Loss in any single instance of more than $50,000 or any Contract Losses in the aggregate of more than $100,000;

(d) the Seller has not entered into any Contract (or series of related Contracts) involving the payment or receipt of more than $50,000, and no Person has accelerated, terminated, modified or canceled (i) any Material Contract or (ii) any Contract (or series of related Contracts) involving more than $50,000 to which the Seller is a party or by which the Seller or any of its assets are bound;

(e) the Seller has not entered into any operating leases;

(f) no Encumbrance (other than any Permitted Encumbrance) has been imposed upon any asset of the Seller;

(g) the Seller has not made any capital expenditure (or series of related capital expenditures) involving more than $25,000 or made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person (or series of related capital investments, loans or acquisitions) involving more than $25,000;

(h) the Seller has not issued, created, incurred or assumed any Indebtedness (or series of related Indebtedness) or delayed or postponed the payment of accounts payable or other Liabilities beyond the original due date;

(i) the Seller has not canceled, compromised, settled, waived or released any right or claim (or series of related rights or claims) or any Indebtedness (or series of related Indebtedness) owed to it, in any case involving more than $15,000;

(j) the Seller has not issued, sold or otherwise disposed of any of its capital stock, or granted any options, warrants or other rights to acquire (including upon conversion, exchange or exercise) any of its capital stock or declared, set aside, made or paid any dividend or distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased or otherwise acquired any of its capital stock or amended any of its Organizational Documents;

(k) the Seller has not (i) conducted the Business outside the ordinary course of business consistent with past practices, (ii) made any loan to, or entered into any other transaction with, any Affiliate or any of its directors, officers or employees on terms that would not have resulted from an arms-length transaction, (iii) entered into any employment Contract or modified the terms of any existing employment Contract, (iv) granted any increase in the base compensation of any of its directors, officers or, except in the ordinary course of business, employees, or (v) adopted, amended, modified or terminated any Employee Benefit Plan or other Contract for the benefit of any of its directors, officers or employees;

(l) except for matters contained in consolidated or combined Tax Returns filed by Shaw and its subsidiaries and that are specifically unrelated to the Seller, the Seller has not made a change in its fiscal or Tax methods of accounting, made, rescinded or changed any Tax election, settled any Tax claim, assessment or liability, or consented to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or taken any other similar action relating to the filing of any Tax Return or the payment of any Tax;

(m) there has not been any Proceeding commenced nor, to the Knowledge of the Seller, threatened or anticipated relating to or affecting the Seller, the Business or any material asset owned or used by the Seller;

(n) there has not been (i) any loss of any material customer, distribution channel, sales location or source of supply of Inventory, utilities or contract services or the receipt of any notice that such a loss may be pending, (ii) any occurrence, event or incident related to the Seller outside of the ordinary course of business or (iii) any material adverse change in the Business, operations, properties, prospects, assets, Liabilities or condition (financial or otherwise) of the Seller and, to the Knowledge of the Seller no event has occurred or circumstance exists that may result in any such material adverse change; and

(o) the Seller has not agreed or committed to any of the foregoing.

3.7 No Undisclosed Liabilities . Except as set forth on Schedule 3.7 , the Seller has no Liability (and, to the Knowledge of the Seller, no basis exists for any Liability), except for (a) Liabilities under executory Contracts that are either listed on Schedule 3.13 or are not required to be listed thereon, excluding Liabilities for any breach of any executory Contract, (b) Liabilities to the extent reflected or reserved against on the Interim Balance Sheet and (c) current Liabilities incurred in the ordinary course of business since the Interim Date (none of which results from, arises out of, relates to, is in the nature of, or was caused by any breach of Contract, breach of warranty, tort, infringement or violation of Law).

3.8 Title to and Sufficiency of Assets . Except as set forth on Schedule 3.8 , the Seller has good and marketable title to, or a valid leasehold interest in, the Purchased Assets, free and clear of any Encumbrances except Permitted Encumbrances. The Purchased Assets include all tangible and intangible property, assets (except for the Excluded Assets), rights, interests and claims necessary (a) for the continued conduct of the Business after Closing (i) in the same manner as conducted prior to Closing and (ii) in compliance in all material respects with all applicable Laws, Material Contracts and Permits as of the Closing and (b) to perform all of the Assumed Liabilities and obligations of the Business as they exist at Closing. The transfer of the Purchased Assets hereunder will convey to the Buyer good, valid and indefeasible title to the Purchased Assets, free and clear of any Encumbrances except Permitted Encumbrances and any Encumbrance created by the Buyer.

3.9 Tangible Personal Property; Condition of Purchased Assets . Schedule 3.9 lists each item of Tangible Personal Property that has a net book value in excess of $5,000 and its net book value. The buildings, plants, structures, Tangible Personal Property and other tangible assets that are owned or leased by the Seller (including the Purchased Assets) are, to the Knowledge of Seller, except for those Purchased Assets related to the Altec Lease, (i) structurally sound, free from material defects, in good operating condition and repair and adequate for the uses to which they are being put, and (ii) not in need of maintenance or repairs, except for ordinary, routine maintenance and repairs that are not material in nature or cost to such building, plant, structure, Tangible Personal Property or other tangible asset. Except as set forth on Schedule 3.9 , all of the tangible assets owned or leased by the Seller (including the Purchased Assets) are located on the Real Property. Schedule 3.9 sets forth a list of each location of a warehouse in which the Seller has stored Tangible Personal Property.

3.10 Accounts Receivable . All Accounts Receivable that are reflected on the Balance Sheet, the Interim Balance Sheet or the accounting records of the Seller as of the Closing Date represent or will represent valid obligations arising from products or services actually sold by the Seller in the ordinary course of business. Unless paid prior to the Closing Date, the Accounts Receivable are and will be as of the Closing Date current and collectible in accordance with their terms net of the respective reserves shown on the Balance Sheet, the Interim Balance Sheet and the accounting records of the Seller as of the Closing Date, respectively. The foregoing reserves are or will be adequate and calculated consistent with past practices. To the Knowledge of the Seller, there is no contest, claim or right to set-off under any Contract with any obligor of an Account Receivable relating to the amount or validity of such Account Receivable. Schedule 3.10 contains a list of (i) all Accounts Receivable as of the Interim Date, which list sets forth the aging of such Accounts Receivable, and (ii) all cost in excess of billings by customer by job.

3.11 Inventory . The Inventory consists of a quality and quantity usable for its intended purpose in the ordinary course of business consistent with past practices, except for slow-moving and obsolete items and items of below-standard quality, all of which have been written off or written down to net realizable value on the accounting records of the Seller. Except as set forth on Schedule 3.11 , all Inventory not written off has been valued at the lower of cost or market value. The quantities of each type of Inventory are reasonable in the present circumstances of the Seller and are not materially more or less than normal Inventory levels necessary to conduct the Business in the ordinary course consistent with past practices. All of the Inventory is located on the Real Property.

3.12 Real Property .

(a) The Seller does not own any real property.

(b)  Schedule 3.12(b) lists all of the real property and interests therein leased, subleased or otherwise occupied or used by the Seller (with all easements and other rights appurtenant to such property, the “Real Property” ). For each item of Real Property, Schedule 3.12(b) also lists the lessor, the lessee, the lease term, the lease rate, and the lease, sublease, or other Contract pursuant to which the Seller holds a possessory interest in the Real Property and all amendments, renewals or extensions thereto (each, a “Lease” ). Except as set forth on Schedule 3.12(b) , the leasehold interest of the Seller with respect to each item of Real Property is free and clear of any Encumbrances, except Permitted Encumbrances. The Seller is not a sublessor of, and has not assigned any lease covering, any item of Real Property. All leasing commissions or other brokerage fees due from or payable by the Seller with respect to any Lease have been paid in full.

(c) Except as set forth on Schedule 3.12(c) , the Real Property constitutes all interests in real property currently used in connection with the Business. The Real Property is not subject to any rights of way, building use restrictions, title exceptions, variances, reservations or limitations of any kind or nature, except (i) those that in the aggregate do not impair the current use or occupancy of the Real Property, (ii) as set forth in Schedule 3.12(c) and (iii) as set forth in the Lease relating to such item. To the Knowledge of the Seller, all buildings, plants, structures and other improvements owned or used by the Seller lie wholly within the boundaries of the Real Property and do not encroach upon the property, or otherwise conflict with the property rights, of any other Person. Except as set forth in Schedule 3.12(c) , to the Knowledge of the Seller, the Real Property complies with all Laws, including zoning requirements, and the Seller has not received any notifications from any Governmental Body, landlord or insurance company recommending improvements to the Real Property or any other actions relative to the Real Property. The Seller is not a party to or bound by any Contract (including any option) for the purchase or sale of any real estate interest or any Contract for the lease to or from the Seller of any real estate interest not currently in possession of the Seller.

3.13 Contracts .

(a)  Schedule 3.13 lists the following Contracts to which the Seller is a party or by which the Seller is bound or to which any asset of the Seller is subject or under which the Seller has any rights or the performance of which is guaranteed by the Seller (collectively, with the Leases, Licenses and Insurance Policies, the “Material Contracts” ): (i) each Contract (or series of related Contracts) that involves delivery or receipt of products or services of an amount or value in excess of $50,000, that was not entered into in the ordinary course of business or that involves expenditures or receipts in excess of $50,000; (ii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other 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 $50,000 and with terms of less than one year), including each Lease and License; (iii) each written warranty, guaranty, bond or other similar undertaking with respect to contractual performance; (iv) each licensing agreement or other Contract with respect to Intellectual Property, including any agreement with any current or former employee, consultant, or contractor regarding the appropriation or the non-disclosure of any Intellectual Property; (v) each joint venture, partnership or Contract involving a sharing of profits, losses, costs or Liabilities with any other Person; (vi) each Contract containing any covenant that purports to restrict the business activity of the Seller or limit the freedom of the Seller to engage in any line of business or to compete with any Person; (vii) each Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods; (viii) each power of attorney; (ix) each Contract entered into other than in the ordinary course of business that contains or provides for an express undertaking by the Seller to be responsible for consequential, incidental or punitive damages; (x) each Contract (or series of related Contracts) for capital expenditures in excess of $50,000; (xi) each Contract for Indebtedness; (xii) each employment or consulting Contract; (xiii) each Contract set forth on Schedule 1.1 , (xiv) each contract set forth on Schedule 3.23; and (xv) each Contract not terminable without penalty on less than six months notice.

(b) The Seller has delivered to the Buyer a correct and complete copy of each written Material Contract and a written summary setting forth the terms and conditions of each other Material Contract. Each Material Contract, with respect to the Seller, is legal, valid, binding, enforceable, in full force and effect and will continue to be so on identical terms following the Closing Date subject to receiving the consents set forth on Schedule 3.4 . Each Material Contract, with respect to the other parties to such Material Contract, to the Knowledge of the Seller, is legal, valid, binding, enforceable, in full force and effect and will continue to be so on identical terms following the Closing Date. The Seller is not in breach or default, and no event has occurred that with notice or lapse of time would constitute a breach or default, or permit termination, modification or acceleration, under any Material Contract. To the Knowledge of the Seller, (i) no other party is in breach or default, and (ii) no event has occurred that, with notice or lapse of time, would constitute a breach or default, or permit termination, modification or acceleration, under any Material Contract. To the Knowledge of the Seller, no party to any Material Contract has repudiated any provision of any Material Contract.

3.14 Intellectual Property .

(a) The Seller owns or has the right to use all Intellectual Property necessary or prudent for the operation of the Business as presently conducted. Except as set forth on Schedule 3.14(a) , each item of Intellectual Property owned, licensed or used by the Seller immediately prior to the Closing will be owned, licensed or available for use by the Buyer on identical terms and conditions immediately following the Closing. The Seller has taken all necessary and prudent action to maintain and protect each item of Intellectual Property that it owns, licenses or uses. Each item of Intellectual Property owned, licensed or used by the Seller is valid and enforceable and otherwise fully complies with all Laws applicable to the enforceability thereof.

(b) To the Knowledge of the Seller, the Seller has not violated or infringed upon or otherwise come into conflict with any Intellectual Property of third parties, and the Seller has not received any notice alleging any such violation, infringement or other conflict. To the Knowledge of the Seller, no third party has infringed upon or otherwise come into conflict with any Intellectual Property of the Seller.

(c)  Schedule 3.14(c) identifies each patent or registration (including copyright, trademark and servicemark) that has been issued to the Seller (whether active and in force or abandoned, lapsed, canceled or expired) with respect to any of its Intellectual Property, identifies each patent application or application for registration (whether pending, abandoned, lapsed, canceled or expired) that the Seller has made with respect to any of its Intellectual Property, and identifies each license, agreement or other permission that the Seller has granted to any third party (whether active and in force or terminated, canceled or expired) with respect to any of its Intellectual Property. The Seller has delivered to the Buyer correct and complete copies of all such patents, registrations, applications, licenses, agreements and permissions (or, if oral, written summaries thereof) and has made available to the Buyer correct and complete copies of all other written documentation evidencing ownership and prosecution (if applicable) of each such item. Schedule 3.14(c) also identifies each trade name or unregistered trademark or service mark owned by the Seller. With respect to each item of Intellectual Property required to be identified in Schedule 3.14(c) and except as expressly set forth on Schedule 3.14(c) : (i)the Seller possesses all right, title and interest in and to the item, free and clear of any Encumbrance; (ii) the item is not subject to any Order; (iii) no Proceeding is pending or, to the Knowledge of the Seller, is threatened or anticipated that challenges the legality, validity, enforceability, use or ownership of the item; and (iv) the Seller has not agreed to indemnify any Person for or against any interference, infringement, misappropriation or other conflict with respect to the item.

(d)  Schedule 3.14(d) identifies each material item of Intellectual Property that any Person other than the Seller owns and that the Seller uses pursuant to license, agreement or permission (a  “License” ). With respect to each item of Intellectual Property required to be identified in Schedule 3.14(d) : (i) to the Knowledge of the Seller, such item is not subject to any Order; (ii) to the Knowledge of the Seller, no Proceeding is pending or is threatened or anticipated that challenges the legality, validity or enforceability of such item; and (iii) the Seller has not granted any sublicense or similar right with respect to the License relating to such item.

3.15 Tax .

(a) The Seller has timely filed with the appropriate Governmental Body all Tax Returns that the Seller is required to have filed as of the date hereof. All Tax Returns filed by the Seller are true, correct and complete in all respects. All Taxes owed (or to be remitted) by the Seller (whether or not shown or required to be shown on any Tax Return) have been paid to the appropriate Governmental Body. No event has occurred which could impose on Buyer any successor or transferee liability for any Taxes in respect of the Seller or the Business. There are no Encumbrances on any of the assets of the Seller that arose in connection with, or otherwise relate to, any failure (or alleged failure) to pay any Tax. Since the Interim Date, the Seller has not incurred any Liability for Taxes outside the ordinary course of business.

(b) The Seller has withheld and paid proper and accurate Taxes and other amounts from its employees, customers, creditors, stockholders, independent contractors and other third parties, in compliance with all withholding and similar provisions of the Code and any and all other applicable United States, foreign, state or local laws, statutes, codes, ordinances, rules and regulations.

(c) The Seller has not been a United States real property holding corporation within the meaning of Code § 897(c)(2) during the applicable period specified in Code § 897(c)(1)(A)(ii). The Seller has disclosed on its federal income Tax Returns all positions taken therein with respect to the Seller that could give rise to a substantial understatement of federal income Tax within the meaning of Code § 6662. No Purchased Asset (i) is property required to be treated as being owned by another Person pursuant to the provisions of Code § 168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect immediately prior to the enactment of the Tax Reform Act of 1986, or (ii) is “tax-exempt use property” or “tax-exempt bond financed property” within the meaning of Code § 168. No Purchased Asset is subject to the anti-churning provisions of Code § 197(f)(9) or the Treasury Regulations promulgated thereunder. No Purchased Asset is an interest, directly or indirectly, in any joint venture, partnership, limited liability company or other entity that is treated as a partnership for income Tax purposes.

(d)  Schedule 3.15(d) lists each agreement, contract, plan or other arrangement (whether or not written and whether or not an Employ