MEMBERSHIP INTEREST PURCHASE AGREEMENT

Exhibit 10.1

MEMBERSHIP INTEREST PURCHASE AGREEMENT

DATED AS OF MAY 1, 2009

AMONG

AMBASSADORS INTERNATIONAL, INC.,

a Delaware corporation,

AMBASSADORS MARINE GROUP, LLC,

a Delaware limited liability company,

AND

BELLWETHER FINANCIAL GROUP, INC.

a California corporation

Table of Contents

Table of Contents

Table of Contents

MEMBERSHIP INTEREST PURCHASE AGREEMENT

This Membership Interest Purchase Agreement (“ Agreement ”) is entered into as of May 1, 2009, by and among AMBASSADORS INTERNATIONAL, INC., a Delaware corporation (“ Seller ”), AMBASSADORS MARINE GROUP, LLC, a Delaware limited liability company and wholly-owned subsidiary of Seller (“ AMG ”), and BELLWETHER FINANCIAL GROUP, INC. a California corporation (“ Buyer ”). Seller, AMG and Buyer are referred to herein individually as a “ Party ” and collectively as the “ Parties .”

WHEREAS, Seller owns one hundred percent (100%) of the issued and outstanding limited liability company interest (the “ Interest ”) of AMG; and

WHEREAS, this Agreement contemplates a transaction in which Buyer will purchase from Seller, and Seller will sell to Buyer, the Interest in return for the consideration described in this Agreement.

NOW, THEREFORE, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties, and covenants herein contained, the Parties agree as follows.

ARTICLE I

DEFINITIONS

The following terms, when used in this Agreement, shall have the following meanings. Any of these terms may, unless the context otherwise requires, be used in the singular or plural depending on the reference.

“ AAA ” has the meaning set forth in Section 9.15 below.

“ Accounts Receivable ” has the meaning set forth in Section 4.10 below.

“ Acquired Company ” means any of AMG or its Subsidiaries, and “ Acquired Companies ” means AMG and its Subsidiaries, collectively.

“ Acquired Company Affiliates ” has the meaning set forth in Section 4.24(a) below.

“ Affiliate ” has the meaning set forth in Rule 12b-2 of the regulations promulgated under the Securities Exchange Act.

“ Agreement ” has the meaning set forth in the preface above.

“ Alternate Discussions ” has the meaning set forth in Section 7.4.

“ Alternate Solicitation Activities ” has the meaning set forth in Section 7.4.

“ Alternate Transaction ” has the meaning set forth in Section 7.4.

“ AMG ” has the meaning set forth in the preface above.

“ Bank Indebtedness ” means all indebtedness (including without limitation, principal, interest, fees, expenses, and other charges and amounts) owed by the Acquired Companies to any bank or other financial institution for borrowed money, letters of credit, overdrafts or pursuant to any credit facilities (including without limitation, lines of credit, revolving facilities or term loan facilities.)

“ Bankruptcy or Insolvency Proceeding ” means any bankruptcy, civil rehabilitation, corporate reorganization or special liquidation proceeding.

“ Basis ” means any past or present fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction that forms or could form the basis for any specified consequence.

“ Business Day ” means any day that is not a Saturday or Sunday or a legal holiday on which banks are authorized or required by law to be closed in Los Angeles, California.

“ Buyer ” has the meaning set forth in the preface above.

“ Buyer Acceptance Notice ” has the meaning set forth in Section 7.5(b) below.

“ Buyer Indemnitees ” has the meaning set forth in Section 8.2 below.

“ Cash Balance ” means the cash in bank accounts maintained by the Acquired Companies less the sum of all outstanding checks, debits and bank fees.

“ Cap ” has the meaning set forth in Section 8.8 below.

“ Closing Payment ” has the meaning set forth in Section 2.2 below.

“ Closing ” has the meaning set forth in Section 3.1 below.

“ Closing Date ” has the meaning set forth in Section 3.1 below.

“ Closing Intercompany Balances Certificate ” means a written certificate executed by an executive officer of Seller certifying as to the respective Intercompany Balances on the Closing Date but immediately prior to the Closing, which respective Intercompany Balances set forth thereon shall equal the Preliminary Intercompany Balances.

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

“ Competing Offer ” has the meaning set forth in Section 7.4 below.

“ Competing Offer Notice ” has the meaning set forth in Section 7.5(a) below.

“ Competing Offeror ” has the meaning set forth in Section 7.4 below.

“ Contracts ” has the meaning set forth in Section 4.18 below.

“ Damages ” has the meaning set forth in Section 8.2 below.

“ Disclosure Letter ” has the meaning set forth in Article IV below.

“ Dispute ” has the meaning set forth in Section 9.15 below.

“ Employees ” has the meaning set forth in Section 4.21(b) below.

“ Employee Plan ” means each “employee benefit plan” as defined in Section 3(3) of ERISA, and any other plan, policy, program, practice, agreement, understanding or arrangement (whether written or oral) providing compensation or other benefits to any current or former director, officer, employee, contractor or consultant (or to any dependent or beneficiary thereof) of Seller or any Acquired Company, which are now, or were within the past three (3) years, maintained, sponsored or contributed to by any Acquired Company, or with respect to which any Acquired Company has incurred or may incur any obligation or Liability, including, without limitation, all incentive, bonus, retirement, deferred compensation, vacation, holiday, cafeteria, medical, disability, stock purchase, stock option, stock appreciation, phantom stock, restricted stock or other stock-based compensation plans, policies, programs, practices or arrangements.

“ Encumbrance ” means any charge, claim, community property interest, condition, equitable interest, lien, mortgage, option, pledge, security interest, right of first refusal, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.

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

“ Environmental Action ” means any notice, claim, act, cause of action, order, decree or investigation by any third party (including, without limitation, any Governmental Authority) alleging potential liability (including potential liability for investigatory costs, cleanup costs, governmental response costs, natural resources damage, damage to flora or fauna caused by Environmental Conditions, real property damage, personal injuries or penalties) arising out of, based on or resulting from the Release of or exposure of any individual to any Hazardous Materials.

“ Environmental Conditions ” means the presence in the environment, including the soil, groundwater, surface water or ambient air, of any Hazardous Materials at any level which exceeds any applicable standard or threshold under any Environmental, Health and Safety Law or otherwise requires investigation or remediation (including, without limitation, investigation, study, health or risk assessment, monitoring, removal, treatment or transport) under any applicable Environmental, Health and Safety Law.

“ Environmental, Health, and Safety Laws ” means any and all applicable international, federal, state, or local laws, statutes, ordinances, regulations, policies, guidance, rules, judgments, orders, court decisions or rule of common law, permits, restrictions and licenses, which (i) regulate or relate to the protection or clean up of the environment; the use, treatment, storage, transportation, handling, disposal or release of Hazardous Materials, the preservation or protection of waterways, groundwater, drinking water, air, wildlife, plants or other natural resources; or the health and safety of persons or property, including without limitation protection of the health and safety of employees; or (ii) impose liability or responsibility with respect to any of the foregoing, including without limitation the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Resource Conservation and Recovery Act of 1976, and the Occupational Safety and Health Act of 1970, each as amended.

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

“ ERISA Affiliate ”, with respect to any entity, shall mean any entity which is (or at any relevant time was) a member of a “controlled group of corporations” with, under “common control” with, or a member of an “affiliated service group” with, the identified entity, as defined in Section 414(b), (c), (m) or (o) of the Code, or under “common control” with the identified entity, within the meaning of Section 4001(b)(1) of ERISA.

“ Extremely Hazardous Substance ” has the meaning set forth in Section 302 of the Emergency Planning and Community Right-to-Know Act of 1986, as amended.

“ Facility ” means real property, leaseholds, or other interests currently or formerly owned or operated by any Acquired Company and any buildings, plants, structures or equipment (including motor vehicles, tank cars, and rolling stock) currently or formerly owned or operated by any Acquired Company.

“ Financial Statements ” has the meaning set forth in Section 4.6(a) below.

“ GAAP ” means United States generally accepted accounting principles as in effect from time to time.

“ Governmental Authority ” means any United States or any non-United States, foreign, international, federal, state, local or municipal government, court, legislature, governmental agency or governmental commission, judicial or quasi-judicial authority, regulatory authority, agency, department, body or instrumentality of any government.

“ Hazardous Activity ” means the distribution, generation, handling, importing, management, manufacturing, processing, production, refinement, release, storage, transfer, transportation, treatment, or use (including any withdrawal or other use or groundwater) of Hazardous Materials in, on, under, about or from the Facilities or any part thereof into the Environment, that poses an unreasonable risk of harm to persons or property on or off the Facilities, or that may affect the value of the Facilities or the Acquired Companies.

“ Hazardous Materials ” means any pollutant, chemical, or substance and any toxic, infectious, carcinogenic, reactive, corrosive, ignitable or flammable chemical, or chemical compound, or hazardous substance, material or waste, whether solid, liquid or gas, that is subject to regulation, control or remediation under any Environmental, Health and Safety Laws, including without limitation, any quantity of asbestos in any form, urea, formaldehyde, PCBs, radon gas, crude oil or any fraction thereof, all forms of natural gas, petroleum products or by-products or derivatives.

“ Indemnified Party ” has the meaning set forth in Section 8.5(a) below.

“ Indemnifying Party ” has the meaning set forth in Section 8.5(a) below.

“ Indemnity Claim ” has the meaning set forth in Section 8.5(a) below.

“ Intellectual Property ” means (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof, (b) all trademarks, service marks, trade dress, logos, trade names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith, (d) all mask works and all applications, registrations, and renewals in connection therewith, (e) all trade secrets and confidential business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals), (f) all computer software (including data and related documentation), (g) all internet domain names, (h) all other proprietary rights, and (i) all copies and tangible embodiments thereof (in whatever form or medium).

“ Intercompany Balance ” means (i) with respect to the Acquired Companies, the aggregate amount of indebtedness or other amounts owed by any of the Acquired Companies to Seller or any of its Affiliates (other than the Acquired Companies) and (ii) with respect to Seller and its Affiliates (other than the Acquired Companies), the sum of the aggregate amount of indebtedness or other amounts owed by Seller or any of its Affiliates (other than the Acquired Companies) to any of the Acquired Companies.

“ Interest ” has the meaning set forth in the preface above.

“ Interim Financial Statements ” has the meaning set forth in Section 4.6(a) below.

“ Interim Financial Statements Date ” has the meaning set forth in Section 4.6(a) below.

“ Knowledge ” or “ Known ” means (i) with respect to the Acquired Companies, actual knowledge after reasonable investigation of the following officers: Paul Chapman — Bellingham Marine Industries, Inc. Vice President Finance, Tina M. DeVries — Bellingham Marine Industries, Inc. Vice President of Administration, J. Everett Babbitt — Bellingham Marine Industries, Inc. President, Phillip Greenman — Bellingham Marine Industries, Inc. Executive Vice President, and Errol Redman — Bellingham Marine Industries, Inc. Chief Financial Officer (New Zealand, Australia, Malaysia) and Jesse Salem — Vice President of Shipyard Operations — Bellport Group, or (ii) with respect to Seller, actual knowledge after reasonable investigation of Joseph McCarthy. With respect to Section 4.20 (Environmental, Health and Safety Matters), “Knowledge” means (i) with respect to the Acquired Companies, actual knowledge without further investigation of the following officers: Paul Chapman — Bellingham Marine Industries, Inc. Vice President Finance, Tina M. DeVries — Bellingham Marine Industries, Inc. Vice President of Administration, J. Everett Babbitt — Bellingham Marine Industries, Inc. President, Phillip Greenman — Bellingham Marine Industries, Inc. Executive Vice President, and Errol Redman — Bellingham Marine Industries, Inc. Chief Financial Officer (New Zealand, Australia, Malaysia) and Jesse Salem — Vice President of Shipyard Operations — Bellport Group, or (ii) with respect to Seller, actual knowledge without further investigation of Joseph McCarthy.

“ Laws ” means (a) all applicable domestic, international, foreign, admiralty and maritime laws, including all statutes, codes, plans, constitutions, treaties, principles of common law, ordinances, regulations, decrees, rules, municipal by-laws and orders of every Governmental Authority and (b) any applicable judicial, arbitral, administrative, ministerial, departmental or regulatory judgment, decision, injunction, decree, charge, ruling, order or other restriction of any court or Governmental Authority.

“ Leased Real Property ” has the meaning set forth in Section 4.9(b) below.

“ Liability ” means any liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any liability for Taxes.

“ Licenses and Permits ” means any approval, consent, license, permit, franchise, approval registration, waiver or other authorization issued, granted, given or otherwise made available by or under the authority of any Governmental Authority or pursuant to any Law, including without limitation any Environmental, Health and Safety Law, that is held by or otherwise relates to the business of, or to any of the assets owned or used by, any Acquired Company.

“ Material Adverse Change ” means any change relating to the business, properties, assets, condition (financial or otherwise) or results of operation of the Acquired Companies taken as a whole that has had or would reasonably be expected to have a Material Adverse Effect.

“ Material Adverse Effect ” means any material adverse effect on the business, properties, assets, condition (financial or otherwise) or results of operation of the Acquired Companies taken as a whole.

“ NASDAQ ” has the meaning set forth in Section 9.1 below.

“ Non-Competition and Non-Disclosure Agreement ” has the meaning set forth in Section 6.1(f)(ix) below.

“ Non-Solicitation Area ” has the meaning set forth in Section 7.11 below.

“ Non-Solicitation Period ” has the meaning set forth in Section 7.11 below.

“ Notice ” has the meaning set forth in Section 8.5(a) below.

“ Objection Notice ” has the meaning set forth in Section 8.6(a) below.

“ Option Period ” has the meaning set forth in Section 7.5(b) below.

“ Order ” means any award, decision, injunction, judgment, decree, ruling, subpoena, verdict or order entered, issued, made, or rendered by any court, administrative agency, or other Governmental Authority or by any arbitrator.

“ Ordinary Course of Business ” means the ordinary course of business consistent with past custom and practice (including with respect to quantity and frequency); provided , however , that as to any contract, it shall be deemed to be in the “Ordinary Course of Business” if the liability of any Acquired Company, in the aggregate, is less than $25,000.

“ Organizational Documents ” means (a) the articles or certificate of incorporation and the bylaws of a corporation; (b) the partnership agreement and any statement of partnership of a general partnership; (c) the limited partnership agreement and the certificate of limited partnership of a limited partnership; (d) the articles or certificate of organization and the operating agreement of a limited liability company; (e) any charter or similar document adopted or filed in connection with the creation, formation or organization of a Person; and (f) any amendment to any of the foregoing.

“ Owned Real Property ” has the meaning set forth in Section 4.9(a) below.

“ Party ” has the meaning set forth in the preface above.

“ Person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a governmental entity (or any department, agency, or political subdivision thereof).

“ Post-Closing Tax Period ” means any Tax period beginning on the day after the Closing Date and that portion of any Straddle Period beginning on the day after the Closing Date.

“ Pre-Closing Tax Period ” means any Tax period ending on or before the Closing Date and the portion of any Straddle Period ending on the Closing Date.

“ Preliminary Intercompany Balances ” has the meaning set forth in Section 4.6(b) below.

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

“ Properties ” means any real property currently owned or under lease by the Acquired Companies on the Closing Date.

“ Purchase Price ” has the meaning set forth in Section 2.2 below.

“ Release ” means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration into the indoor or outdoor environment, including, without limitation, the movement of Hazardous Materials through ambient air, soil, surface water, groundwater, wetlands, land or subsurface strata.

“ Securities Act ” means the Securities Act of 1933, as amended.

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

“ Seller ” has the meaning set forth in the preface above.

“ Seller Indemnitees ” has the meaning set forth in Section 8.4 below.

“ Seller Loan Agreement ” means that certain Loan Agreement dated as of September 1, 2006, as amended, among Bank of America, N.A, Seller, AMG and certain Affiliates of Seller.

“ Seller Representatives ” has the meaning set forth in Section 7.4 below.

“ Solicitation Period ” has the meaning set forth in Section 7.4 below.

“ Straddle Period ” means any Tax period beginning before and ending after the Closing Date.

“ Subsidiary ” means, with respect to any party, any corporation, limited liability company or other organization, whether incorporated or unincorporated, of which (i) such party or any other Subsidiary of such party is a general partner (excluding partnerships, the general partnership interests of which held by such party or any Subsidiary of such party do not have a majority of the voting interest in such partnership) or manager of a limited liability company, (ii) at least a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation, limited liability company or other organization is directly or indirectly owned or controlled by such party or by any one or more of its Subsidiaries, or by such party and one or more of its Subsidiaries, or (iii) such party or any direct or indirect Subsidiary of such party owns at least fifty percent (50%) of the equity interests or voting interests of such corporation, limited liability company or other organization.

“ Superior Competing Offer ” has the meaning set forth in Section 7.5(a).

“ Survival Period ” has the meaning set forth in Section 8.1 below.

“ Tax ” means any federal, state, local, or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental (including taxes under Code Section 59A), customs duties, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, intangible property, sales, use, transfer, registration, recording, occupancy, value added, alternative or add-on minimum, estimated, or other tax, charge, fee, levy, deficiency or other assessment of any kind whatsoever imposed by a Governmental Authority, including any Liability therefor as a transferee, successor, member of a consolidated, combined or unitary group, pursuant to an agreement or otherwise, including any interest, addition to tax, penalty, or addition thereto, in each case whether disputed or not.

“ Tax Return ” means any return, declaration, report, claim for refund, or information return or statement relating to the determination, assessment, collection, payment, reporting or administration of any Tax, including any schedule or attachment thereto, and including any amendment thereof, whether on a separate, consolidated, combined, unitary or other basis.

“ Third-Party Claim ” has the meaning set forth in Section 8.5(b) below.

“ Threatened ” means, with respect to a claim, Proceeding, dispute, action or other matter, that any demand or statement has been made (orally or in writing) or any notice has been given (orally or in writing), or any other event has occurred or any other circumstances exist, that would lead a prudent Person to conclude that such a claim, Proceeding, dispute, action, or other matter is likely to be asserted, commenced, taken or otherwise pursued in the future.

“ Threshold ” has the meaning set forth in Section 8.8 below.

“ Transfer Taxes ” has the meaning set forth in Section 7.11(d) below.

“ WARN Act ” has the meaning set forth in Section 4.21(e) below.

“ Year End Financial Statements ” has the meaning set forth in Section 4.6(a) below.

ARTICLE II

SALE AND PURCHASE OF THE INTEREST

Section 2.1 Basic Transaction .

On and subject to the terms and conditions of this Agreement, Buyer agrees to purchase from Seller, and Seller agrees to sell to Buyer, all of Seller’s right, title and interest in the Interest, free and clear of all liens, pledges, Encumbrances, charges and claims thereon, for the consideration specified below. Upon consummation of the transaction, Buyer will hold all of the issued and outstanding Interest, free and clear of any and all liens, pledges, Encumbrances, charges and claims.

Section 2.2 Closing Payment .

On and subject to the terms and conditions of this Agreement, Buyer agrees to pay Seller the sum of Five Million Two Hundred Fifty Thousand Dollars ($5,250,000) in cash as such amount may be adjusted pursuant to Section 2.3 below (the “ Cash Consideration ”), payable as follows:

(a) Subject to Section 2.3 below, Five Million Dollars ($5,000,000) at Closing (the “ Closing Payment ”) by delivery of cash payable by wire transfer or delivery of other immediately available funds to an account designated by Seller;

(b) One Hundred Thousand Dollars ($100,000) payable on the date one month after the Closing Date;

(c) One Hundred Thousand Dollars ($100,000) payable on the date two months after the Closing Date; and

(d) Fifty Thousand Dollars ($50,000) payable on the date three months after the Closing Date.

Section 2.3 Purchase Price Adjustment .

If the total amount of the Bank Indebtedness owed immediately prior to the Closing exceeds the aggregate Cash Balance of the Acquired Companies immediately prior to the Closing but following the cancellation and settlement of the Intercompany Balances, the Purchase Price and the Closing Payment shall be reduced by such amount and the Closing Date shall be extended by one Business Day. If such Cash Balance exceeds the total amount of such Bank Indebtedness immediately prior to the Closing, AMG shall distribute such amount to Seller; provided, however, that to the extent that Seller is entitled to such distribution but AMG is unable to make such distribution in full for any reason, the Purchase Price and the Closing Payment shall be increased by such amount.

Section 2.4 Cancellation of Intercompany Indebtedness .

Immediately prior to the Closing, Seller, AMG, the Acquired Companies and any of their respective Affiliates shall execute appropriate documentation to reflect the cancellation and settlement of the Intercompany Balances.

Section 2.5 Withholding .

Buyer shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to Seller such amounts as it is required to deduct and withhold with respect to such payment under the Code, or any provision of state, local or foreign Tax law. To the extent that amounts are so withheld by Buyer, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to Seller.

Section 2.6 Purchase Price Allocation .

After a thorough analysis and arm’s length negotiations between the parties, Buyer and Seller agree that the Purchase Price shall be allocated among the assets deemed for income tax purposes to be purchased hereunder in the manner set forth on Schedule 2.6 . The parties shall be bound by such allocation for all purposes, shall prepare Tax Returns in accordance with such allocations and shall not take a position inconsistent with such allocations.

ARTICLE III

CLOSING

Section 3.1 The Closing .

The closing of the transactions contemplated by this Agreement (the “ Closing ”) shall take place at the offices of Rutan & Tucker, LLP in Costa Mesa, California, 92626, on the earlier of (i) two (2) Business Days after the date Seller provides notice to Buyer that it is ready to close, and (ii) June 1, 2009, as such date set forth in clause (i) or (ii) may be extended in accordance with Section 2.3 above, provided that all conditions to Closing set forth herein have been satisfied by such date (the “ Closing Date ”). The Closing shall be effective as of 11:59 p.m. Pacific Time on the Closing Date.

Section 3.2 Deliveries at the Closing .

At the Closing, the Parties shall make the deliveries as set forth in Sections 6.1(f) and 6.2(e) below.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES
OF SELLER AND AMG

Seller with respect to Section 4.1 below, and each of Seller and AMG with respect to all sections of this Article IV except Section 4.1, represents and warrants to Buyer that the statements contained in this Article IV are correct and complete as of the date of this Agreement and will be correct and complete as of the Closing Date (as though made then as and as though the Closing Date were substituted for the date of this Agreement throughout this Article IV) with respect to themselves and their respective Subsidiaries, except where such representations and warranties expressly relate to an earlier date (in which case they were correct and complete as of such earlier date) and except as set forth on the Disclosure Letter delivered by Seller and the Acquired Companies to Buyer on the date hereof (the “ Disclosure Letter ”). Nothing in the Disclosure Letter shall be deemed adequate to disclose an exception to any representation or warranty made herein, however, unless the Disclosure Letter identifies the exception with particularity and describes the relevant facts in detail. Without limiting the generality of the foregoing, the mere listing (or inclusion of a copy) of a document or other item shall not be deemed adequate to disclose an exception to a representation or warranty made herein (unless the representation or warranty addresses the existence of the document or other item itself). The Disclosure Letter is arranged in paragraphs corresponding to the numbered and lettered paragraphs contained in this Agreement.

Section 4.1 Representations and Warranties Concerning Seller .

(a)  Organization and Good Standing . Seller is a corporation duly authorized, validly existing, and in good standing under the Laws of Delaware. Seller is duly qualified to do business as a foreign entity and is in good standing in each jurisdiction where the character of its properties owned or leased or the nature of its activities make such qualification necessary, except where the failure to so qualify and be in good standing would not have a Material Adverse Effect.

(b)  Authority; No Conflict . Seller has full power and authority (including full corporate power and authority) to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement has been duly executed and delivered by Seller and constitutes the valid and legally binding obligation of Seller, enforceable in accordance with its terms and conditions, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors generally, or by general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). Any and all corporate acts and other proceedings necessary for the due and valid authorization, execution, delivery and performance by Seller of this Agreement and the exhibits and schedules hereto and the consummation by Seller of the transactions contemplated hereby have been validly and appropriately taken. Neither the execution and delivery of this Agreement and the exhibits and schedules hereto, nor the consummation of the transactions contemplated hereby, will violate any Law to which Seller is subject, or any Licenses and Permits to which Seller is a party.

(c)  Interest Ownership . Seller holds of record and owns beneficially all of the Interest free and clear of any restrictions on transfer (other than any restrictions under any applicable securities Laws), Taxes, Encumbrances, options, warrants, purchase rights, contracts, commitments, equities, claims and demands. Seller is not a party to any option, warrant, purchase right or other contract or commitment that would require Seller to sell, transfer, or otherwise dispose of any of the Interest (other than this Agreement). Seller is not a party to any voting trust, proxy, or other agreement or understanding with respect to the voting of any of the Interest. Seller has delivered or made available to Buyer copies of all agreements relating to any of the Interest.

(d)  Seller’s Sales Process . On January 9, 2009, Seller’s Board of Directors formed a special committee to oversee the sale of non-Windstar assets (which includes AMG and the other Acquired Companies). Joseph J. Ueberroth was not a member of that special committee. On January 30, 2009, Seller engaged Stephens, Inc. as its investment banker to, among other things, sell the Interest. On February 11, 2009, Seller issued a press release to publicly announce its plans to sell its non-Windstar assets, including but not limited to the Interest. Since the engagement of Stephens, Inc., agents and representatives of Seller have contacted 146 strategic and financial buyers regarding the purchase of the Interest and have received multiple indications of interest from qualified buyers. After receiving formal bid letters from interested parties, the board of directors concluded that, subject to the negotiation of definitive agreements and the receipt of a fairness opinion, accepting the offer from Buyer was in the best interest of Seller’s stockholders. On April 19, 2009, Seller entered into a non-binding term sheet with Buyer relating to purchase of the Interest.

(e)  Use of Proceeds . Seller has no plan or intention to conceal, gift or otherwise dispose of any cash consideration Seller receives pursuant to this Agreement in a manner that may prejudice any rights of any creditor of Seller.

(f)  Broker’s Fees . Except as set forth in Section 4.1(f) of the Disclosure Letter, Seller and its agents have incurred no obligation or Liability, contingent or otherwise, for brokerage or finders’ fees, or agents’ commissions, or other similar payment in connection with this Agreement or any of the transactions contemplated herein.

(g)  Notices and Consents . Except as set forth on Section 4.1(g) of the Disclosure Letter, Seller is not, and will not be, required to give any notice to, make any filing with, or obtain any consent, authorization or approval of, any Person, including any Governmental Authority, in connection with the execution and delivery of this Agreement and the exhibits and schedules hereto or the consummation or performance of the transactions contemplated herein.

Section 4.2 Organization and Good Standing .

Section 4.2 of the Disclosure Letter contains a complete and accurate list of each Acquired Company’s name, jurisdiction of incorporation, other jurisdictions in which it is authorized to do business, capitalization (including the identity of each shareholder or member and the number of shares or percentage of membership interest held by each) and managers, directors, and officers. Each Acquired Company is an entity duly organized, validly existing, and in good standing under the Laws of its jurisdiction of incorporation or organization, with full power and authority to conduct its business as it is now being conducted, to own or use the properties and assets that it purports to own and use, and to perform all its obligations under the Contracts. Except as set forth on Section 4.2 of the Disclosure Letter, each Acquired Company has all material licenses, permits, and authorizations necessary to carry on the business in which it is engaged and in which it presently proposes to engage and to own and use the properties owned and used by it. Each Acquired Company is duly qualified to do business as a foreign entity and is in good standing under the laws of each state or other jurisdiction in which either the ownership or use of the properties owned or used by it, or the nature of the activities conducted by it, requires such qualification, except where the failure to so qualify and be in good standing would not have a Material Adverse Effect. The Acquired Companies have delivered or made available to Buyer correct and complete copies of the Organizational Documents of each Acquired Company, as amended to date and currently in effect. No Acquired Company is in default under or in violation of any provision of its Organizational Documents.

Section 4.3 Authority; No Conflict .

The Acquired Companies have delivered or made available to Buyer an execution copy of all actions by the Acquired Companies’ boards of directors or other corporate authority performing similar functions necessary to approve this Agreement and the transactions contemplated herein. This Agreement and the exhibits and schedules hereto has been duly executed and delivered by AMG and constitutes the legal, valid and binding obligations of AMG, enforceable against AMG in accordance with its terms, except where such enforceability may be limited to bankruptcy, insolvency, reorganization, moratorium and similar laws relating to or affecting creditors generally and by general equity principles. Subject to the requisite consents referenced in Section 4.4 of the Disclosure Letter, neither the execution and delivery of this Agreement nor the consummation or performance of any of the transactions contemplated herein will, directly or indirectly (with or without notice or lapse of time):

(a) contravene, conflict with, or result in a violation of (i) any provision of the Organizational Documents of the Acquired Companies, or (ii) any resolution adopted by the board of directors (other corporate authority performing similar functions) or stockholders (or other equity owners) of any Acquired Company;

(b) contravene, conflict with, or result in a violation of, or give any Governmental Authority or other Person the right to challenge any of the transactions contemplated by this Agreement or to exercise any remedy or obtain any relief under, any Law or any Order to which any Acquired Company or any of the assets owned or used by any Acquired Company may be subject;

(c) contravene, conflict with, or result in a violation of any of the terms or requirements of, or give any Governmental Authority or Other Person the right to revoke, withdraw, suspend, cancel, terminate, or modify, any License or Permit that is held by any Acquired Company or that otherwise relates to the business of, or any of the assets owned or used by, any Acquired Company;

(d) contravene, conflict with, or result in a violation or breach of any provision of, or give any Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Contract; or

(e) result in the imposition or creation of any Encumbrance upon or with respect to any of the assets owned or used by any Acquired Company.

Section 4.4 Notices and Consents .

Except as set forth on Section 4.4 of the Disclosure Letter, no Acquired Company is or will be required to give any notice to, make any filing with, or obtain any consent, authorization or approval of, any Person, including any Governmental Authority, in connection with the execution and delivery of this Agreement and the exhibits and schedules hereto or the consummation or performance of the transactions contemplated herein.

Section 4.5 Capitalization .

Seller is the sole member of AMG and Seller owns the Interest and the Interest comprises all of the issued and outstanding limited liability company interests in AMG. Seller is and will be on the Closing Date the record and beneficial owner and holder of the Interest, free and clear of all Encumbrances. With the exception of the Interest (which are owned by Seller), all of the outstanding equity securities and other securities of each Acquired Company are owned of record and beneficially by one or more of the Acquired Companies, free and clear of all Encumbrances. Other than standard Securities Act restrictions, no legend or other reference to any purported Encumbrance appears upon any certificate representing equity securities of any Acquired Company. All of the outstanding equity securities of each Acquired Company have been duly authorized and validly issued and are fully paid and nonassessable. There are no outstanding or authorized options, warrants, purchase rights, subscription rights, conversion rights, exchange rights or other contracts or commitments that could require any of the Acquired Companies to issue, sell, transfer or otherwise cause to become outstanding any equity securities or other securities of any Acquired Company. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or similar rights with respect to any of the Acquired Companies. There are no voting trusts, proxies, or other agreements or understandings with respect to the voting of securities of the Acquired Companies. None of the outstanding equity securities or other securities of any Acquired Company was issued in violation of any Law. No Acquired Company owns, or has any agreement to acquire, any equity securities or other securities of any Person (other than Acquired Companies) or any direct or indirect equity or ownership interest in any other business.

Section 4.6 Financial Statements; Preliminary Intercompany Balance .

(a)  Financial Statements . The Acquired Companies have delivered or made available to Buyer a true and complete copy of the audited balance sheet and statements of operations, change in stockholders’ equity (including the related notes) and cash flow for each Acquired Company as of and for the twelve months ended December 31, 2008 (the “ Year End Financial Statements ”), and a true and complete copy of the unaudited balance sheet, statement of operations, and change in stockholders’ equity (including the related notes) for each Acquired Company as of and for the three months ended March 31, 2009 (the “ Interim Financial Statements Date ”) (collectively, the “ Interim Financial Statements ,” and, along with the Year End Financial Statements, the “ Financial Statements ”). The Financial Statements (i) are in accordance with the books and records of the Acquired Companies, (ii) have been prepared in accordance with GAAP consistently applied through the periods covered thereby and (iii) fairly and accurately present the assets, Liabilities (including all reserves) and financial position of the Acquired Companies as of the respective dates thereof and the results of operations for the period then ended (subject, in the case of the Interim Financial Statements, to immaterial year-end adjustments and the fact that there are no notes thereto). Except as set forth in the Financial Statements, no Acquired Company has any Liabilities of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be set forth or reserved for in the Financial Statements or the notes thereto, which are not set forth or reserved for in the Financial Statements or the notes thereto. Nothing has come to the attention of Seller since such respective dates that would indicate that such Financial Statements are not true and correct in all material respects as of the date hereof. Except as set forth on Section 4.6(a) of the Disclosure Letter, no Acquired Company is a guarantor or otherwise liable for any Liability or obligation (including indebtedness) of any other Person.

(b)  Preliminary Intercompany Balances . Section 4.6(b) of the Disclosure Letter sets forth the Intercompany Balances as of the date hereof (the “ Preliminary Intercompany Balances ”).

Section 4.7 Books and Records .

Except as set forth on Section 4.7 of the Disclosure Letter, the books of account, Organizational Documents, stock record books, minutes, and other records of the Acquired Companies, all of which the Acquired Companies have been made available to Buyer, are, to the Acquired Companies’ Knowledge, complete and correct and have been maintained in accordance with sound business practices and the requirements of all applicable Laws. To the Acquired Companies’ Knowledge, the minute books of the Acquired Companies contain accurate and complete records of all meetings held of, and corporation action taken by, the stockholders or other equity owners, the boards of directors or other corporate authority performing similar functions, and committees of the boards of directors of the Acquired Companies, and no meeting of any such stockholders or other equity owners, boards of directors or other corporate authority performing similar functions, or committee has been held for which minutes have not been prepared and are not contained in such minute books. At the Closing, all of those books and records will be in the possession of the Acquired Companies.

Section 4.8 Assets .

Except as set forth on Section 4.8 of the Disclosure Letter, the Acquired Companies have good and marketable title to, or a valid leasehold interest in, the properties and assets used by them or located on their premises, free and clear of any Encumbrances. Such assets include all assets necessary for the conduct of the Acquired Companies’ businesses as presently conducted. To the Knowledge of Seller and the Acquired Companies, all tangible assets and properties of the Acquired Companies are in good operating condition and repair (subject to normal and customary maintenance requirements), are usable in the Ordinary Course of Business and conform in all material respects to all applicable Laws relating to their construction, use and operation, except as set forth on Section 4.8 of the Disclosure Letter. The assets and properties of the Acquired Companies are sufficient for the continued conduct of the Acquired Companies’ businesses after the Closing in substantially the same manner as conducted prior to the Closing.

Section 4.9 Real Property .

(a) Section 4.9(a) of the Disclosure Letter sets forth a complete list of all real property owned by the Acquired Companies (the “ Owned Real Property ”). The Acquired Companies have good and marketable title to the Owned Real Property, free and clear of all Encumbrances.

(b) Section 4.9(b) of the Disclosure Letter sets forth a complete list of all real property leased by the Acquired Companies (the “ Leased Real Property ”). Except as set forth on Section 4.9(b) of the Disclosure Letter, the Acquired Companies are not in material default (with or without notice or lapse of time, or both) under any such leases, and the execution of this Agreement and the consummation of the transactions contemplated hereby will not constitute a default under such leases or require the consent of any other party thereto. The Acquired Companies have not, and to the Knowledge of Seller and the Acquired Companies, the other party to any such lease has not, commenced any action in respect of, or arising out of such lease or given any notice to the Acquired Companies for the purpose of terminating or threatening to terminate such lease.

(c) Except as set forth on Section 4.9(c) of the Disclosure Letter, to the Knowledge of Seller and the Acquired Companies, the improvements located on the Owned Real Property and the Leased Real Property used for the Acquired Companies’ material operations are structurally sound, with no material defects, and all building systems contained therein are in good operating condition and repair, subject to ordinary wear and tear.

Section 4.10 Notes and Accounts Receivable .

All notes and accounts receivable of the Acquired Companies that are reflected on the Financial Statements or on the accounting records of the Acquired Companies as of the Closing Date (collectively, the “ Accounts Receivable ”) represent or will represent valid obligations arising from sales actually made or services actually performed in the Ordinary Course of Business. Except as set forth on Section 4.10 of the Disclosure Letter, the Accounts Receivable are current and collectible net of the respective reserves shown on the Financial Statements. Subject to such reserves as reflected on the Financial Statements, as adjusted in the Acquired Companies’ books in the Ordinary Course of Business for the passage of time between the date of the Financial Statements through the Closing Date, each of the Accounts Receivable either has been or will be collected in full, without any set-off, in the Ordinary Course of Business. There is no contest, claim, or right of set-off under any agreement with any obligor of any Accounts Receivable relating to the amount or validity of such Accounts Receivable. Seller has provided to Buyer a complete and accurate list of all Accounts Receivable as of the Interim Financial Statements Date, which list sets forth the aging of such Accounts Receivable.

Section 4.11 Inventory .

All inventory of the Acquired Companies, whether or not reflected on the Financial Statements, consists of a quality and quantity usable and saleable in the Ordinary Course of Business, except for obsolete items and items of below-standard quality, which in all material respects have been written off or written down to net realizable value in the Financial Statements. All inventories not written off have been priced at the lower of cost or market on a first in, first out basis. The quantities of each item of inventory (whether raw materials, work-in-process, or finished goods) are not excessive, but are reasonable in the present circumstances of the Acquired Companies.

Section 4.12 Taxes .

(a)  Filing of Tax Returns . Each of the Acquired Companies has duly and timely filed with the appropriate taxing authorities all material Tax Returns required to be filed. All such Tax Returns are complete and accurate in all material respects. Except as set forth on Section 4.12(a) of the Disclosure Letter, all material Taxes due and owing by any of the Acquired Companies (whether or not shown on any Tax Return) have been paid. None of the Acquired Companies currently is the beneficiary of any extension of time within which to file any Tax Return. No written claim has ever been made by a Governmental Authority in a jurisdiction where any of the Acquired Companies does not file Tax Returns that it is or may be subject to taxation by that jurisdiction.

(b)  Payment of Taxes . The unpaid Taxes of the Acquired Companies did not, as of the dates of the Financial Statements, exceed the reserve for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the balance sheets (rather than in any notes thereto) contained in the Financial Statements. Since the date of the most recent Financial Statement, none of the Acquired Companies has incurred any liability for Taxes outside the Ordinary Course of Business or otherwise inconsistent with past custom and practice.

(c)  Audits, Investigations or Claims . No deficiencies for Taxes against any of the Acquired Companies have been claimed, proposed or assessed by any Governmental Authority in writing. There are no pending or, to the Knowledge of any of the Acquired Companies, Threatened audits, assessments or other Proceedings for or relating to any liability in respect of Taxes of any of the Acquired Companies, and there are no matters under discussion with any Governmental Authority, or Known to the Seller or the Acquired Companies, with respect to Taxes that are likely to result in an additional material liability for Taxes with respect to any of the Acquired Companies. The Acquired Companies have delivered or made available to Buyer complete and accurate copies of federal, state, local and foreign Tax Returns of each of the Acquired Companies and their predecessors for all Tax years beginning after December 31, 2005, and complete and accurate copies of all examination reports and statements of deficiencies assessed against or agreed to by any of the Acquired Companies or any predecessors, and any correspondence with any Governmental Authorities regarding liability for Taxes, since December 31, 2005. No statute of limitations in respect of any Tax (including for assessment of collection of any Tax) of any of the Acquired Companies has been waived or extended.

(d)  Liens . There are no liens for Taxes, other than Taxes not yet due and payable, on any assets of any of the Acquired Companies.

(e)  Tax Elections . None of the Acquired Companies (i) has consented at any time under Section 341(f)(1) of the Code to have the provisions of Section 341(f)(2) of the Code (as such provisions were in effect prior to repeal) apply to any disposition of the assets of any of the Acquired Companies; (ii) has agreed, or is required, to make any adjustment under Section 481(a) of the Code by reason of a change in accounting method or otherwise; (iii) has made an election, or is required, to treat any of its assets as owned by another Person pursuant to the provisions of Section 168(f) of the Internal Revenue Code of 1954 or as tax-exempt bond financed property or tax-exempt use property within the meaning of Section 168 of the Code; (iv) has acquired or owns any assets that directly or indirectly secure any debt the interest on which is tax exempt under Section 103(a) of the Code; (v) has made or will make a consent dividend election under Section 565 of the Code; (vi) has elected at any time to be treated as an S corporation within the meaning of Sections 1361 or 1362 of the Code; or (vii) made any of the foregoing elections or is required to apply any of the foregoing rules under any comparable state, local or foreign Tax provision.

(f)  Tax Sharing Agreements . There are no Tax-sharing agreements or similar arrangements (including indemnity arrangements) with respect to or involving any of the Acquired Companies, and, after the Closing Date, none of the Acquired Companies shall be bound by any such Tax-sharing agreements or similar arrangements or have any liability thereunder for amounts due in respect of periods on or prior to the Closing Date.

(g)  Other Entity Liability . None of the Acquired Companies has been a member of an affiliated group filing a consolidated federal income Tax Return (other than a group the common parent of which is Seller). None of the Acquired Companies has any Liability for the Taxes of any Person (other than Taxes of the Acquired Companies) (i) under Treasury regulation 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.

(h)  No Withholding . Each of the Acquired Companies has withheld or collected, and paid and reported all material Taxes required to have been withheld, collected or paid in connection with amounts paid or owing to, or received from, any employee, independent contractor, creditor, stockholder or other third party. The transaction contemplated herein is not subject to the tax withholding provisions of the Code or under any other provision of applicable Law.

(i)  Permanent Establishment . Except as set forth on Section 4.12(i) of the Disclosure Letter, none of the Acquired Companies has or has had a permanent establishment in any foreign country, as defined in any applicable Tax treaty or convention between the United States of America and such foreign country.

(j)  Disallowance of Interest Deductions . None of the outstanding indebtedness of any of the Acquired Companies constitutes indebtedness with respect to which any interest deductions may be disallowed under Sections 163(i), 163(l), 265 or 279 of the Code or under any other provision of applicable Law.

(k)  Tax Shelters . None of the Acquired Companies has entered into any transaction identified as a “reportable transaction” for purposes of Code Section 6707A or Treasury Regulations Sections 1.6011-4(b)(2) or 301.6111-2(b)(2) (or any predecessor provision). If any Acquired Company has entered into any transaction such that, if the treatment claimed by it were to be disallowed, the transaction would constitute a substantial understatement of federal income tax within the meaning of Section 6662 of the Code, then the Acquired Company has either (i) “substantial authority” (within the meaning of Code Section 6662(d)) for the tax treatment of such transaction or (ii) in the case of a transaction other than a “tax shelter” (within the meaning of Code Section 6662(d)(2)(C)(ii)), has “adequately disclosed” (within the meaning of Code Section 6662(d)) on its Tax Return the relevant facts affecting the tax treatment of such transaction.

(l)  Disregarded Entity . AMG is and has always been disregarded as an entity separate from Seller for all income tax purposes.

(m)  No Power of Attorney . There is no outstanding power of attorney authorizing anyone to act on behalf of any of the Acquired Companies in connection with any Tax, Tax Return or Proceeding relating to any Tax.

(n)  No Outstanding Rulings . There is no outstanding closing agreement, ruling request, request for consent to change a method of accounting, subpoena or request for information with or by any Governmental Authority relating to any of the Acquired Companies, its income, assets or business, or any Tax, Tax Return or Proceeding relating to any Tax.

(o)  Post-Closing Tax Periods . None of the Acquire Companies will be required to include any item of income or exclude any item of deduction for any Post-Closing Tax Period as a result of (a) intercompany transactions or excess loss accounts, (b) installment sale, open transaction or use of a completed contract method of accounting with respect to any transaction that occurred on or prior to the Closing Date or (c) prepaid amounts received on or prior to the Closing Date.

(p)  Deemed Ownership . None of the assets of any of the Acquired Companies is required to be treated as being owned by another Person for income tax purposes.

(q)  No Exchanges . During the last two years, none of the Acquired Companies has engaged in any exchange under which gain realized on the exchange was not recognized under Code Section 1031 (or any similar provision of applicable state, local or foreign Law).

(r)  No Spin Off . None of the Acquired Companies has constituted a “distributing corporation” or a “controlled corporation” under Code Section 355 (or any similar provision of applicable state, local or foreign Law) in any distribution in the last two years or pursuant to a plan or series of related transactions (within the meaning of Code Section 355(e) or similar Law) with any transaction contemplated by this Agreement.

(s)  No Special Status . None of the Acquired Companies is or has ever been a “personal holding company” (within the meaning of Code Section 542), or a shareholder in a “controlled foreign corporation” (within the meaning of Code Section 957), a “foreign personal holding company” (within the meaning of Coe Section 552), or a “passive foreign investment company” (within the meaning of Code Section 1297).

(t)  Section 482 . All transactions between an Acquired Company and any other person that is owned or controlled by the same interests (within the meaning of Code Section 482 and the regulations thereunder) have been at arm’s length (within the meaning of such provisions).

(u)  No Deferred Gain . None of the Acquired Companies will be required to include any item of income, or exclude any item of deduction, for any taxable period (or portion thereof) ending after the Closing Date as a result of any: (i) intercompany transaction or excess loss account described in Treasury regulations under Section 1502 of the Code (or any similar provision of state, local, or foreign Law), (ii) installment sale, open transaction or use of a completed contract method of accounting with respect to any transaction that occurred on or prior to the Closing Date, or (iii) prepaid amount received on or prior to the Closing Date.

Section 4.13 Employee Benefits .

(a)  List of Plans; Absence of Certain Arrangements . Section 4.13(a) of the Disclosure Letter lists each Employee Plan and the Seller or Acquired Company that maintains or sponsors such Employee Plan. No Employee Plan (i) is or was a “multiemployer plan,” as defined in Section 3(37) or 4001(a)(3) of ERISA, (ii) is or was subject to Title IV or Part 3 of Title I of ERISA or Section 412 of the Code, and (iii) provides retiree or post-employment benefits (including, without limitation, medical, disability or life insurance, or other welfare benefits) to any person, except as required by Applicable Law. Except as set forth in Section 4.13(a) of the Disclosure Letter, no Employee Plan is or was a “welfare benefit fund,” as defined in Section 419(e) of the Code, or an organization described in Sections 501(c)(9) or 501(c)(20) of the Code, and no Acquired Company nor any ERISA Affiliate of any Acquired Company is required to, or has ever been required to, contribute to or provide benefits under any such Employee Plan, fund or organization or has any Liability or obligation under any such Employee Plan, fund or organization. With respect to each Employee Plan, at the Closing there will be no unrecorded material liabilities with respect to the establishment, implementation, operation, administration or termination of such Employee Plan, or the termination of the participation in any such Employee Plan by any Acquired Company or any ERISA Affiliate of any Acquired Company.

(b)  No Commitments; Ability to Amend . Neither any Acquired Company nor any ERISA Affiliate of any Acquired Company has any announced plan or legally binding commitment to create any additional Employee Plans which are intended to cover employees or former employees of any Acquired Company (with respect to their relationship with such entities) or to amend or modify any existing Employee Plan which covers or has covered employees or former employees of any Acquired Company (with respect to their relationship with such entities). Each Employee Plan can be amended, terminated or otherwise discontinued immediately after the Closing in accordance with its terms, without liability (other than liability for ordinary administrative expenses typically incurred in a termination event).

(c)  No Other Material Liability . Neither Seller nor any Acquired Company is subject to any material Liability, tax or penalty with respect to any Employee Plan under ERISA, the Code or any other Applicable Law, and neither Seller nor any Acquired Company has any Knowledge of any circumstances which reasonably might result in any such material Liability, tax or penalty. No event has (as to Seller’s representation and warranty only, to Seller’s Knowledge) occurred and no condition exists that could subject any Acquired Company, by reason of its affiliation with any ERISA Affiliate of such Acquired Company, to any material Liability, Tax or penalty with respect to any Employee Plan under ERISA, the Code or other Applicable Law, and neither Seller nor any Acquired Company has any Knowledge of any circumstances which reasonably might result in any such material Liability, Tax or penalty.

(d)  Tax Qualification; General Compliance . Each Employee Plan which is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination letter, opinion, notification or advisory letter from the IRS, and each trust established in connection with any Employee Plan which is intended to be exempt from federal income taxation under Section 501(a) of the Code is so exempt. Each Employee Plan has been administered and maintained in compliance in all material respects in accordance with its terms and with ERISA, the Code and all other Applicable Laws. All contributions required to be made under the terms of any Employee Plan as of the date of this Agreement have been timely made in accordance with the terms of such Employee Plan, ERISA, the Code and all other Applicable Laws, or if not yet due, have been properly reflected on the Financial Statements.

(e)  Fiduciary Duties and Prohibited Transactions . Neither any Acquired Company nor any plan fiduciary of any Employee Plan which covers or has (as to Seller’s representation and warranty only, to Seller’s Knowledge) covered employees or former employees of any Acquired Company or any ERISA Affiliate of any Acquired Company, has engaged in any transaction in violation of Sections 404 or 406 of ERISA or any “prohibited transaction,” as defined in Section 4975(c)(1) of the Code, for which no exemption exists under Section 408 of ERISA or Section 4975(c)(2) or (d) of the Code, or has otherwise violated the provisions of Part 4 of Title I, Subtitle B of ERISA. None of the Acquired Companies have knowingly participated in a violation of Part 4 of Title I, Subtitle B of ERISA by any plan fiduciary of any Employee Plan (or other employee benefit plan subject to ERISA). None of the Acquired Companies has (as to Seller’s representation and warranty only, to Seller’s Knowledge) any Liability under Section 502 of ERISA. Neither any Acquired Company nor any ERISA Affiliate of any Acquired Company has incurred any excise tax under Chapter 43 of the Code.

(f)  No Acceleration; Code Section 280G . No Employee Plan or other contract, agreement or benefit arrangement covering any current or former employee or independent contractor of any Acquired Company, individually or collectively, would give rise to the payment of, or permit any such individual to retain, any amount or benefit which would constitute a “parachute payment” (as defined in Section 280G of the Code). Except as set forth on Section 4.13(f) of the Disclosure Letter, neither the execution of this Agreement nor the consummation of any of the transactions contemplated hereby (whether alone or upon the occurrence of any additional or further acts or events) will (i) result in any obligation or Liability (with respect to accrued benefits or otherwise) on the part of any Acquired Company to any Employee Plan, or to any present or former employee, officer, director, shareholder, contractor or consultant of any Acquired Company or any of their dependents, or any other person, (ii) be an event under any Employee Plan that will result in any payment (whether of severance pay or otherwise) becoming due to any such present or former employee, officer, director, shareholder, contractor, or consultant of any Acquired Company or any of their dependents, or any other person, or (iii) accelerate the time of payment or vesting, or increase the amount, of any compensation or benefits theretofore or thereafter due or granted to any employee, officer, director, shareholder, contractor, or consultant of any Acquired Company or any of their dependents, or any other person.

(g)  COBRA; HIPAA . Each Acquired Company and each ERISA Affiliate is in compliance in all material respects with (i) the requirements of the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the regulations (including proposed regulations) thereunder and any similar state law, and (ii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996, as amended, and the regulations (including the proposed regulations) thereunder. No Acquired Company or any ERISA Affiliate has incurred any material Liability under Section 4980B of the Code.

(h)  Litigation . Other than routine claims for benefits under the Employee Plans, there are no pending or, to the Knowledge of Seller or any Acquired Company, Threatened actions or proceedings against any Employee Plan, the fiduciaries or administrators of any of the Employee Plans, or Seller or any Acquired Company with respect to any Employee Plan, with any of the IRS, the Department of Labor, the Pension Benefit Guaranty Corporation, any participant in or beneficiary of any Employee Plan or any other person whomsoever. Neither Seller nor any Acquired Company has any Knowledge of any reasonable basis for any such claim, lawsuit, dispute, action or controversy.

(i)  Code Section 409A . Except as set forth in Section 4.13(i) of the Disclosure Letter, no payment or benefit provided or to be provided under to an Employee Plan to or for the benefit of a “service provider” (within the meaning of Section 409A of the Code) will or may provide for the deferral of compensation subject to Section 409A of the Code, whether pursuant to the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby (either alone or upon the occurrence of any additional or subsequent events) or otherwise. Each Employee Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2007 through the date hereof.

(j)  Deductibility of Payments . There is no contract, agreement, plan or arrangement covering any employee or former employee of any Acquired Company (with respect to its relationship with such entities) that, individually or collectively, provides for the payment by any Acquired Company of any amount that is not deductible by such Acquired Company under Section 162(a)(1), 404 or 419 of the Code, whichever is applicable.

(k)  Foreign Plans . With respect to each employee benefit plan, program, or other arrangement providing compensation or benefits to any employee or former employee (or any dependent thereof) of the Seller, any Acquired Company, or any of their respective Subsidiaries, which is subject to the laws of any jurisdiction outside of the United States (the “ Foreign Plans ”): (i) such Foreign Plan has been maintained in all material respects in accordance with all applicable requirements and all applicable laws, (ii) if intended to qualify for special tax treatment, such Foreign Plan meets all requirements for such treatment, (iii) if intended or required to be funded and/or book-reserved, such Foreign Plan is fully funded and/or book-reserved, as appropriate, based upon reasonable actuarial assumptions, and (iv) no material Liability exists or reasonably could be imposed upon the assets of any Acquired Company by reason of such Foreign Plan.

Section 4.14 Compliance With Legal Requirements .

Each Acquired Company is (as to Seller’s representation and warranty only, to Seller’s Knowledge) in compliance with all Laws that are applicable to it or to the conduct or operation of its business or the ownership or use of any of its assets, except for such non-compliance which is not reasonably likely to result in a Material Adverse Effect. No event has occurred or circumstance exists that (with or without notice or lapse of time) (as to Seller’s representation and warranty only, to Seller’s Knowledge) may constitute or result in a violation by any Acquired Company of, or a failure on the part of any Acquired Company to comply with, any Law, except where such violation or failure would not result in a Material Adverse Effect. No Acquired Company has received (as to Seller’s representation and warranty only, to Seller’s Knowledge) any notice, charge, complaint, claim, demand or other communication (whether oral or written) from any Governmental Authority with respect to any action, suit, Proceeding, hearing or investigation by such Governmental Authority regarding any actual, alleged, possible or potential material violation of, or material failure to comply with, any Law, except (a) as has already been resolved with no fine or penalties, (b) with respect to which all fines and penalties have been paid or otherwise satisfied in full or are reserved for on the Financial Statements or (c) as is being disputed in good faith and listed on Section 4.14 of the Disclosure Letter.

Section 4.15 Licenses and Permits .

Section 4.15 of the Disclosure Letter contains a complete and accurate list of all material Licenses and Permits. Each Acquired Company (as to Seller’s representation and warranty only, to Seller’s Knowledge) owns or possesses such respective Licenses and Permits free and clear of any Encumbrances, claims or Liabilities. Such Licenses and Permits (as to Seller’s representation and warranty only, to Seller’s Knowledge) are in full force and effect and there are no proceedings pending or Threatened that seek the revocation, cancellation, suspension or adverse modification thereof. No Acquired Company (as to Seller’s representation and warranty only, to Seller’s Knowledge) has violated any such Licenses and Permits, and each Acquired Company is in compliance in all material respects with all such Licenses and Permits. No Acquired Company (as to Seller’s representation and warranty only, to Seller’s Knowledge) has received any notice to the effect that (i) such Acquired Company is not in compliance with, or is in a violation of, any such Licenses and Permits or (ii) any currently existing circumstances are likely to result in a failure of such Acquired Company to comply with, or in a violation by such Acquired Company of, any such Licenses and Permits. Such Licenses and Permits included on Section 4.15 of the Disclosure Letter constitute (as to Seller’s representation and warranty only, to Seller’s Knowledge) all of the material licenses, approvals, consents, franchises and permits necessary to permit the Acquired Companies to own, operate, use and maintain their assets in the manner in which they are now operated and maintained and to conduct the business of the Acquired Companies as currently conducted. All such Licenses and Permits are (as to Seller’s representation and warranty only, to Seller’s Knowledge) renewable by their terms in the Ordinary Course of Business without the need to comply with any special qualificati