STOCK PURCHASE AGREEMENT

Exhibit 10.1

STOCK PURCHASE AGREEMENT

by and between

Energy West Incorporated

and

Richard M. Osborne, Trustee
Rebecca Howell
Stephen G. Rigo
Marty Whelan
Thomas J. Smith

Dated as of September 12, 2008

TABLE OF CONTENTS

LIST OF EXHIBITS

LIST OF SCHEDULES

STOCK PURCHASE AGREEMENT

      THIS STOCK PURCHASE AGREEMENT (this “ Agreement ”) is entered into as of this 12 ^th day of September, 2008 (the “Effective Date”), by and among RICHARD M. OSBORNE, TRUSTEE, an Ohio resident (“ RMO ”), REBECCA HOWELL (“ Howell ”), STEPHEN G. RIGO (“ Rigo ”), MARTY WHELAN (“ Whelan ”), and THOMAS J. SMITH (“ Smith ”) (RMO, Howell, Rigo, Whelan and Smith are hereinafter collectively referred to as “ Seller ”), and ENERGY WEST INCORPORATED, a corporation incorporated under the laws of the State of Montana, USA (“ Purchaser ”).

W I T N E S S E T H:

     WHEREAS, Seller collectively own one hundred percent (100%) of the outstanding shares of common stock of Lightning Pipeline Co., Inc., an Ohio corporation (“ Lightning ”), Great Plains Natural Gas Company, an Ohio corporation (“ Great Plains ”), and Brainard Gas Corp., an Ohio corporation (“ BGC ”) and one hundred percent (100%) of the membership interests in Great Plains Land Development Co., Ltd., an Ohio limited liability company (“ GPL ” together with Lightning, Great Plains, and BGC, to collectively be referred to as the “ Companies ” and each to be sometimes referred to as a “ Company ”);

     WHEREAS, Orwell Natural Gas Company, an Ohio corporation (“ ONG ”) and Northeast Ohio Natural Gas Corp., an Ohio corporation (“ NEO ”) are wholly owned subsidiaries of Lightning and Great Plains, respectively (collectively the “ Subsidiaries ” and each to sometimes be referred to as a Subsidiary);

     WHEREAS, Purchaser is a regulated utility company whose service area includes Montana, Wyoming, Maine, and North Carolina;

     WHEREAS, ONG, NEO, and BGC are regulated utility companies whose service areas include portions of Ohio and Pennsylvania;

     WHEREAS, Purchaser desires to increase its service area into Ohio and Pennsylvania; and

     WHEREAS, Seller desires to sell to Purchaser and Purchaser desires to purchase, all of the issued and outstanding capital stock of the Lightning, Great Plains, and BGC, and the all of the issued and outstanding membership units of GPL, all in accordance with the terms and subject to the conditions set forth herein.

      NOW, THEREFORE , in consideration of the premises and the mutual promises, representations, warranties and covenants hereinafter set forth, the parties hereto agree as follows:

1. DEFINITIONS

          1.1. Defined Terms .

     As used herein, the following terms shall have the following meanings unless the context otherwise requires:

     “ Accounts Receivable ” means any and all accounts receivable of the Companies and Subsidiaries, as the term “accounts receivable” is understood under GAAP.

     “ Accrued Tax Liability ” means the aggregate amount of Income Tax liabilities (including deferred Taxes) of the Companies, Subsidiaries, and Affiliates as reflected on the Closing Date balance sheet.

     “ Action ” has the meaning set forth in Section 11.6.1 .

     “ Active Customers ” means all customers that receive a gas bill for an active meter from either NEO, BGC or ONG during the ninety (90) days prior to the Closing Date.

     “ Affiliate ” means (a) with respect to RMO, the Companies, and each of the Subsidiaries; and (b) with respect to any other Person, any Person that, directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such first Person. For purposes of this definition and this Agreement, the Companies and Subsidiaries shall be deemed to be Affiliates of Seller prior to the Closing and Affiliates of Purchaser from and after the Closing.

     “ Agreement ” has the meaning set forth in the Preamble.

     “ Assets ” means all of the assets, rights, interests, contract rights, accounts, claims, credits, franchises and properties of the Companies and the Subsidiaries, whether real, personal, tangible or intangible.

     “ Assumed Debt ” means all long term debt obligations of the Companies and Subsidiaries as of the date of Closing, provided, however, that Assumed Debt shall be limited to long term debt obligations that have been incurred in the Ordinary Course of Business and, further provided that, Assumed Debt as of August 15, 2008, was approximately $20,867,865.63, as set forth in Schedule 1.1 .

     “ Average Closing Price ” means the average of the closing prices per share of the common stock of Purchaser as reported on Nasdaq for the twenty (20) consecutive trading days ending seven (7) calendar days before the Closing Date.

     “ Benefit Plan ” means: (a) each “employee benefit plan,” as such term is defined in Section 3(3) of ERISA, (b) each plan that would be an “employee benefit plan”, as such term is defined in Section 3(3) of ERISA, if it was subject to ERISA, such as foreign plans and plans for directors, (c) each stock bonus, stock ownership, stock option, stock purchase, stock appreciation rights, phantom stock, or other stock plan (whether qualified or nonqualified), and (d) each bonus or incentive compensation plan; provided , however , the term “Benefit Plan” shall not

include (i) routine employment policies and procedures or payroll plans developed and applied in the ordinary course of business and consistent with past practice, including wage, vacation, holiday, and sick or other leave policies, (ii) workers’ compensation insurance, and (iii) directors’ and officers’ liability insurance.

     “ Business Day ” means any day excluding Saturday, Sunday and any day that is a legal holiday in the State of Ohio.

     “ CERCLA ” has the meaning given to it in the definition of “Environmental Law.”

     “ Closing ” means the consummation of the transactions contemplated by Section 10.2 .

     “ Closing Date ” has the meaning set forth in Section 10.1 .

     “ Companies ” has the meaning set forth in the Preamble.

     “ Company ” has the meaning set forth in the Preamble.

     “ Company Insurance Policies ” means any

     “ Company Plans ” means each Benefit Plan (other than the Seller Plans) that is sponsored or maintained as of the date of this Agreement by any of the Companies, or the Subsidiaries for the benefit of any of their current or former directors, members (as the case may be), officers or employees.

     “ Confidential Information ” means (a) all information concerning a party hereto and/or its Affiliates furnished to another party hereto or any director, member, officer, employee, agent, advisor, or other representative (a “ Representative ”) of such receiving party or any of its Affiliates in writing, orally or electronically by such disclosing party or any Representative of such disclosing party or any of its Affiliates in connection with this Agreement or the transactions contemplated herein, whether before or after the date hereof, including, but not limited to, any such information (i) concerning the business, financial condition, operations, products, services, assets, customers, forecasts and/or liabilities of such disclosing party and/or its Affiliates, (ii) which relates to technologies, intellectual property or capital, models, concepts, or ideas of such disclosing party and/or its Affiliates, (iii) of third parties that such disclosing party and/or its Affiliates is required under applicable Law or contracts to keep confidential, or (iv) that has been clearly identified as confidential; and (b) terms and conditions of this Agreement and any other agreement entered into pursuant hereto, the fact that the parties hereto have entered into this Agreement, and that this Agreement exists; provided , however , the term “Confidential Information” shall not include information that: (i) is already known or in the possession of such receiving party at the time of disclosure, as evidenced by such receiving party’s written documentation, unless received or obtained as confidential information; (ii) becomes subsequently available to such receiving party on a non-confidential basis from a source not known or reasonably suspected by such receiving party to be bound by a confidentiality agreement or secrecy obligation owed to such disclosing party; (iii) is or becomes generally available to the public other than as a result of a breach of Section 3.4.2 by such receiving party or any Representative of such receiving party or any of its Affiliates; or (iv) is independently developed by such receiving party without use, directly or indirectly, of

Confidential Information of such disclosing party, as evidenced by such receiving party’s written documentation; provided further , however , if only a portion of the Confidential Information falls under one of the foregoing exceptions, then only that portion shall not be deemed Confidential Information.

     “ Consolidated ” means: (i) with respect to the financial statement(s) of the Companies and the Subsidiaries, the presentation of the results of operations and the financial position of the Companies and the Subsidiaries essentially as if the Companies and the Subsidiaries were a single company with one or more branches or divisions; and (ii) with respect to any financial item(s) of the Companies and the Subsidiaries, the presentation of such item(s) essentially as if the Companies and the Subsidiaries were a single company with one or more branches or divisions, in each case as determined in accordance with GAAP (whether or not the Companies and the Subsidiaries would in fact be Consolidated under GAAP).

     “ Consolidated Income Tax Returns ” means any Income Tax Returns filed for any consolidated, combined or unitary group of corporations under federal, state or local laws, the common parent of which is Seller.

     “ Contract ” means any legally binding obligation or agreement (other than a Benefit Plan) to which the Companies or any of the Subsidiaries is a party, whether or not reduced to writing, and specifically including but not limited to any note, bond, mortgage, lease of real or personal property, license agreement, construction contract, subcontract, engineering contract, guarantee, suretyship agreement, pledge agreement, indemnity, joint venture or partnership agreement, confidentiality agreement, non-competition agreement, insurance contract, employment agreement or other contract or agreement.

     “ Control ” means (a) possession, directly or indirectly, of the power to direct or cause the direction of management and policies of a Person, whether through the ownership of voting securities, as a trustee or executor, by contract or credit arrangement or otherwise, or (b) the ownership of more than fifty percent (50%) of the equity interest in a Person.

     “ Deductible ” has the meaning set forth in Section 11.5 .

     “ Default ” shall mean (a) a material breach or default, or (b) the occurrence of an event that with the passage of time or the giving of notice or both would constitute a material breach or default.

     “ DOJ ” means the United States Department of Justice.

     “ Dollar ” or “ $ ” means the lawful currency of the United States.

     “ Environmental Law ” means any federal, state, provincial or local law, statute, ordinance, rule, regulation, or order relating to the protection of the environment, including the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et seq. ) (“ CERCLA ”), the Hazardous Material Transportation Act (49 U.S.C. § 1801 et seq. ), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq. ), the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq. ), the Clean Air Act (42 U.S.C. § 7401 et seq. ),

the Toxic Substances Control Act (15 U.S.C. § 2601 et seq. ), and the Safe Drinking Water Act (42 U.S.C. § 300 et seq. ), as amended or supplemented, that is in effect on the Closing Date.

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

     “ FERC ” means the United States Federal Energy Regulatory Commission.

     “ Financial Statements ” means the Year-End Financial Statements.

     “ FIRPTA Certificate ” means a certificate, as described in Treasury Regulation Section 1.1445-2(b)(2), which is signed under penalties of perjury by an authorized representative of Seller, and which (i) certifies that the Seller is not a “foreign person,” as defined in Treasury Regulation Section 1.1445-2(b)(2), and (ii) provides Seller’s name, identifying number (as defined in Section 6109 of the Code), and office address.

     “ FTC ” means the United States Federal Trade Commission.

     “ GAAP ” means generally accepted accounting principles as recognized by the American Institute of Certified Public Accountants, as in effect from time to time.

     “ Governmental Authority ” means any nation, province, state, county, municipality and any other political subdivision of any of the foregoing, and any Person exercising executive, legislative, regulatory or administrative functions of or pertaining to government, including MPSC, WPSC, PPUC, FERC, FTC, DOJ, PUCO, SEC and IRS.

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

     “ Hazardous Substance ” means and includes each substance designated as a hazardous waste, hazardous substance, hazardous material, pollutant, contaminant or toxic substance under any Environmental Law and any petroleum hydrocarbons.

     “ Income Tax ” means any Taxes imposed on, or measured by, net income.

     “ Income Tax Returns ” means any Tax Returns relating to Income Taxes.

     “ Indemnified Party ” means any Person seeking indemnification from another Person pursuant to Section 11 .

     “ Indemnifying Party ” means any Person against whom a claim for indemnification is asserted pursuant to Section 11 .

     “ Index Price ” on a given date means the closing value on such date of the American Gas Stock Index as maintained by the American Gas Association.

     “ Intellectual Property ” means the following intellectual property rights, including both statutory and common law rights, if applicable: (a) copyrights and registrations for copyrights, (b) trademarks, service marks, trade names, slogans, domain names, logos, symbols, and trade dress, and registrations and applications for registrations thereof, and (c) trade secrets and confidential information, including ideas, designs, concepts, compilations of information, methods, techniques, procedures, processes and other know-how, whether or not patentable.

     “ IRS ” means the United States Internal Revenue Service.

     “ Law ” means any law, statute, code, ordinance, regulation, order, reporting or licensing requirement, or rule, including those promulgated, interpreted or enforced by any Governmental Authorities.

     “ Lien ” means any mortgage, pledge, lien, security interest, hypothecation, conditional sale agreement, restriction, option, defect in title, easement, encumbrance, charge, or other similar title exception; provided , however , that the term “Lien” shall not include (a) liens for current Taxes not yet due and payable, including liens for nondelinquent ad valorem taxes and nondelinquent statutory liens arising other than by reason of any default on the part of any of the Companies, the Subsidiaries, Seller or any of their Affiliates, (b) liens in favor of carriers, warehousemen, mechanics, landlords and materialmen imposed by mandatory provisions of Law and incurred in the Ordinary Course of Business for sums not yet due and payable, and (c) as to any leased Asset, the rights of the lessor or landlord with respect to such leased Asset.

     “ Losses ” has the meaning set forth in Section 11.2.1 .

     “ Major Customer ” shall mean any customer of the Companies or any of the Subsidiaries from which the Companies or the Subsidiaries recognized in accordance with GAAP at least Twenty-Five Thousand Dollars ($25,000.00) in revenue between January 1, 2008, and June 30, 2008.

     “ Material Adverse Effect ” means any change (or changes taken together) in, or effect on, the business, financial condition, prospects, or operations of any of the Companies or Subsidiaries that is (are) materially adverse to the business, financial condition, prospects, or operations of the Companies or Subsidiaries, taken as a whole, but excluding any change (or changes taken together) or effect which is cured (including by the payment of money) before the earlier of the Closing or the termination of this Agreement under Section 12.1 . Without limiting the foregoing and except for purposes of Sections 5.7(l) and 8.5 , any uninsured loss or damage suffered by the Companies or Subsidiaries individually of Twenty-Five Thousand Dollars ($25,000) (or in the aggregate in excess of One Hundred Thousand Dollars ($100,000.00) shall be deemed to have a Material Adverse Effect.

     “ Material Contracts ” has the meaning set forth in Section 5.12.1 .

     “Mortgage” means any real estate mortgages which secure land and buildings owned by GPL.

     “ MPSC ” means the Montana Public Service Commission.

     “ New Guaranty or Bond ” has the meaning set forth in Section 4.3.1 .

     “ Non-Company Affiliate ” means any Affiliate controlled by RMO other than the Companies or the Subsidiaries.

     “ Ordinary Course of Business ” means, with respect to the Companies and Subsidiaries, the ordinary course of business which is consistent with past practices of the Companies and the Subsidiaries.

     “ Organizational Documents ” means articles of incorporation, articles of organization, certificate of incorporation, charter, bylaws, code of regulations, certificate of formation, limited liability company operating agreement, joint venture agreement or partnership agreement, as applicable.

     “ Patent ” means (a) any patent granted by the U.S. Patent and Trademark Office or comparable agency of any other country, as well as any reissued and reexamined patent and extensions corresponding to such patent, and (b) any patent application filed with the U.S. Patent and Trademark Office or comparable agency in any other country, as well as any related continuation or continuation in part, any divisional application and patent issuing therefrom, and any respective foreign counterpart patent application or foreign patent issuing therefrom.

     “ Permits ” means all licenses and permits issued by any Governmental Authority.

     “ Person ” means an individual, partnership, limited partnership, joint venture, limited liability company or partnership, corporation, bank, trust, company, business entity, governmental entity or organization, or unincorporated organization.

     “PPUC” means the Pennsylvania Public Utilities Commission.

     “ Pre-Closing Income Tax Returns ” has the meaning set forth in Section 4.1.1 .

     “ Property and Casualty Claims ” has the meaning set forth in Section 4.5 .

     “ PUCO ” means The Public Utilities Commission of Ohio.

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

     “ Purchased Shares ” has the meaning set forth in Section 2.1 .

     “ Purchaser ” has the meaning set forth in the Preamble.

     “ Purchaser Indemnitees ” has the meaning set forth in Section 11.2.1 .

     “ Purchaser’s Plans ” has the meaning set forth in Section 4.2.1 [no def/ref only] .

     “ Real Property Leases ” has the meaning set forth in Section 5.10.2 .

     “ Regulatory Approval ” means the approval by the MPSC, WPSC, PPUC and PUCO of the transaction contemplated by this Agreement.

     “ Regulatory Filings ” has the meaning set forth in Section 3.3.3(a) .

     “ Representative ” has the meaning given to it in the definition of “Confidential Information.”

     “ Restricted Period ” means the period commencing on the Closing Date and expiring on the second anniversary of the Closing Date.

     “ Retained Employee Liabilities ” has the meaning set forth in Section 4.2.1.

     “ Scheduled Claim ” means any of the matters set forth in Schedule 5.7 .

     “ SEC ” means the United States Securities and Exchange Commission.

     “ Seller ” has the meaning set forth in the Preamble.

     “ Seller Indemnitees ” has the meaning set forth in Section 11.3 .

     “ Seller Insurance Policies ” means policies of insurance with insurance carriers and contractual arrangements with insurance adjusters maintained by the Company or Subsidiaries or by any Non-Company Affiliate that covers the Company or Seller prior to the Closing.

     “ Seller Plan ” means each Benefit Plan (other than the Company Plans) that is sponsored, maintained or contributed to as of the Closing Date by the Companies or Subsidiaries or a Non-Company Affiliate and that covers the current or former directors, officers or employees of the Companies or Subsidiary.

     “ Seller’s Employees ” has the meaning set forth in Section 4.2.1 .

     “ Separate Income Tax Returns ” means Income Tax Returns of the Companies, its Subsidiaries, and any Affiliate, other than Consolidated Income Tax Returns.

     “ Share Consideration Value ” shall mean a dollar amount equal to the aggregate number of shares of Purchaser’s common stock being issued to Seller hereunder multiplied by the Average Closing Price (where such calculation shall be made to the closest whole dollar).

     “ Software ” means computer software programs including operating systems, application programs and software tools.

     “ Starting Date ” shall mean the last full trading day prior to the announcement by press release of the transaction contemplated by this Agreement or, if such announcement occurs after the close of trading on any trading day, such trading day.

     “ Straddle Returns ” has the meaning set forth in Section 4.1.2 .

     “ Subsidiaries ” has the meaning set forth in the Preamble.

     “ Tangible Personal Property ” means all machines, equipment, tools, computers, terminals, telephones, telephone systems, furniture, automobiles, fixtures, leasehold

improvements, parts and other tangible personal property and fixtures owned or leased by the Companies or the Subsidiaries, including the property listed on Schedule 5.5.1 .

     “ Tax ” or “ Taxes ” means all United States, federal, state and local, and all foreign, income, profits, franchise, gross receipts, payroll, transfer, sales, employment, use, property, excise, value added, ad valorem , estimated, stamp, alternative or ad-on minimum, recapture, environmental, withholding and any other taxes, charges, duties, impositions or assessments, together with all penalties and additions imposed on or with respect to such amounts, or levied, assessed or imposed against the Companies or any of the Subsidiaries, including any liability for taxes of any predecessor entity.

     “ Tax Audit ” has the meaning set forth in Section 4.1.7(a) .

     “ Tax Indemnified Person ” has the meaning set forth in Section 4.1.7(a) .

     “ Tax Indemnifying Person ” has the meaning set forth in Section 4.1.7(a)

     “ Tax Return ” means any return, declaration, report, claim for refund, or information return or statement filed or required to be filed by the Companies, including any predecessor entities, with any taxing authority in connection with the determination, assessment, collection or imposition of any Taxes.

     “ Third Party ” means any Person other than Seller, Purchaser, any Indemnified Party or any Affiliate of Seller, Purchaser or any Indemnified Party.

     “ Transfer Tax ” has the meaning set forth in Section 4.1.6 “ Transferred Employee ” has the meaning set forth in Section 4.2.1 .

     “ Walkaway Determination Date ” shall mean the date that is seven (7) calendar days prior to the Closing Date.

     “ WPSC ” means the Wyoming Public Service Commission.

     “ Year-End Financial Statements ” means the unaudited, pro forma consolidated balance sheet of the Companies dated December 31, 2007.

          1.2. Construction of Certain Terms and Phrases

     Unless the context of this Agreement otherwise requires, (a) words of any gender include the other gender; (b) words using the singular or plural number also include the plural or singular number, respectively; (c) the terms “hereof,” “herein,” “hereunder,” “hereby” and derivative or similar words refer to this entire Agreement; (d) the terms “include,” “includes,” and “including” shall be deemed to be followed by the words “but not limited to;” (e) the term “Section” refers to the specified Section of this Agreement; (f) the term “Schedule” or “Exhibit” refers to a Schedule or Exhibit attached to this Agreement; (g) references to time are to Cleveland, Ohio time; and (h) the term “material” and derivative or similar words refer to materiality with respect to the Companies and the Subsidiaries on an aggregate basis. Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. Except as otherwise stated herein, all accounting terms used herein and not expressly defined herein shall have the meanings given to them under GAAP.

2. THE PURCHASE AND SALE OF STOCK

          2.1. Sale and Transfer

     Upon the terms and subject to the conditions hereinafter set forth, Seller shall, at the Closing, sell, assign, transfer, convey and deliver to Purchaser, and Purchaser shall purchase and acquire from Seller, all of Seller’s right, title and interest in and to all of the issued and outstanding shares of common stock of Lightning, Great Plains and BGC, and the issued and outstanding membership units of GPL (the “ Purchased Shares ”), in exchange for the Purchase Price.

          2.2. Payment of the Purchase Price

               2.2.1. Upon the terms and subject to the conditions hereinafter set forth, the aggregate purchase price to be paid by Purchaser shall be Thirty-Four Million Three Hundred Four Thousand Dollars ($34,304,000.00) (the “ Preliminary Purchase Price ”), subject to adjustment up or down, as the case may be, by the Adjustment Amount. The Preliminary Purchase Price as adjusted by the Adjustment Amount shall be referred to in the Agreement as the “ Purchase Price ”. Purchaser shall pay the Purchase Price at Closing by assuming the Assumed Debt, as reflected on the respective balance sheets of the Companies for the month preceding the Closing Date, and the balance of the Purchase Price shall be paid by the issuance of a certain number of validly issued, fully paid and non-assessable shares of Purchaser’s common stock.

     For purposes of this Agreement, the share price utilized for purposes of the Purchase Price shall be the greater of (i) the average closing price of Purchaser’s common stock for the ten (10) trading days prior to the execution of this Agreement or (ii) Ten Dollars ($10.00).

               2.2.2. The parties acknowledge that as of June 12, 2008 the number of aggregate Active Customers of ONG, BGC, and NEO was 20,900. Within three (3) business days prior to Closing the parties will determine the actual aggregate Active Customers of ONG, BGC and NEO. At Closing, the Preliminary Purchase Price shall be increased or decreased, as the case may be, by the difference between (i) the actual number of aggregate Active Customers as of the Closing Date and (ii) 20,900, which difference shall then multiplied by $1,598.09, the product of which shall be referred to herein as the “ Adjustment Amount ”. For example, if the actual number of Active Customers at Closing is 21,000, then the Adjustment Amount shall be $159,809 [21,000 - 20,900 = 100 x $1,598.09]. If on the other hand the number of Active Customers is 20,800, then the Adjustment Amount shall be ($159,809) [20,800 - 20,900 = (100) x $1,598.09].

               2.2.3. The Purchase Price shall be allocated as follows: Three Million One Hundred Thousand Dollars ($3,100,000.00) shall be allocated to the purchase of the real property owned by GPL and the balance shall be allocated to the other Assets of the Companies and Subsidiaries. This allocation shall be binding on the parties, shall be used for all purposes on

their respective federal, state and local income tax returns, and shall be supported by them in any audits or other disputes or litigation involving any such returns.

3. PRE-CLOSING COVENANTS AND UNDERTAKINGS

          3.1. Satisfaction of Closing Conditions

The parties shall use their commercially reasonable efforts to bring about, as soon as practica l after the date hereof, the satisfaction of all the conditions set forth in Sections 8 and 9 .

          3.2. Conduct of the Business of the Companies and Subsidiaries Prior to Closing

     Except as in the Ordinary Course of Business or with the prior written consent of Purchaser (which consent shall not be unreasonably withheld, delayed or denied), or as otherwise provided in Schedule 3.2 or in any other Schedule attached to this Agreement, and except as may be required to effect the transactions contemplated by this Agreement, or as is otherwise authorized by this Agreement, RMO covenants that he shall, and shall cause the Companies and Subsidiaries to, during the period commencing on the date of this Agreement and terminating at the Closing:

                    (a) preserve intact the legal existence of the Companies and Subsidiaries and carry on each Company’s and each Subsidiary’s business in the Ordinary Course of Business, and use its commercially reasonable efforts to preserve the goodwill of the Companies and Subsidiaries;

                    (b) maintain the Tangible Personal Property in the Ordinary Course of Business;

                    (c) keep in force at no less than their present limits all existing surety bonds and policies of insurance insuring the Assets and each Company’s and Subsidiary’s business, except to the extent that any such surety bond or insurance policy is no longer applicable or otherwise required pursuant to the business of the Companies and Subsidiaries;

                    (d) use commercially reasonable efforts to maintain in full force and effect all Permits held by the Companies or Subsidiaries, except those Permits the failure of which to hold, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect;

                    (e) neither enter into, modify, amend or terminate any Material Contract or Real Property Lease, nor waive, release, compromise or assign any material rights or claims thereunder, nor suffer, permit or incur any of the transactions or events described in Section 5.7 to the extent such events or transactions are within the reasonable control of Seller, the Companies, or the Subsidiaries;

                    (f) not make any distributions of the Assets to Seller in the form of return of capital or dividends, except for the transactions contemplated in Section 4.1 ;

                    (g) not make or permit any change in each Company’s or Subsidiary’s Organizational Documents, or in any Company’s or Subsidiary’s authorized, issued or outstanding securities, except that Great Plains may increase the number of its outstanding shares to two million (2,000,000) and Lightning may increase the number of its outstanding shares to one million (1,000,000) shares;

                    (h) not issue any additional shares of capital stock, membership interests or other securities or ownership interests of any Company or Subsidiary, grant any stock option or right to purchase any security or ownership interest of any Company or Subsidiary, issue any security or ownership interest convertible into such securities or ownership interests, purchase, redeem, retire or otherwise acquire any of such securities or ownership interests, or declare, set aside or pay any dividend or cash distribution in respect of the securities or ownership interests of any Company or Subsidiary, except for the transfer of shares prior to Closing to Howell, Rigo, Whelan, and Smith in accordance with the ownership allocation set forth in Schedule 5.2.1 ;

                    (i) not make any changes in the accounting methods or practices of the Companies or Subsidiaries;

                    (j) not (i) pay, or incur any obligation for any payment of, any contribution or other amount to, or with respect to, any Company Plan, (ii) pay any bonus to, make any loan, pay or transfer any Assets to, or grant any increase in the compensation of, any Company or Subsidiary director, officer, or employee, (iii) make any increase in the pension, retirement or other benefits of the directors, officers, or employees, except as set forth in Schedule 3.2(j ), or (iv) hire any additional employees without the prior written consent of the Purchaser, which consent shall not be unreasonable withheld;

                    (k) not have the Companies or Subsidiaries pay, lend or advance any amount to or in respect of, or sell, transfer or lease any Assets to, or enter into any agreement, arrangement or transaction with, Seller or any Non-Company Affiliate, except for the payments, agreements, arrangements, leases, transactions and arrangements set forth in Schedule 3.2(k);

                    (l) not permit the Companies or Subsidiaries to (i) incur or assume any indebtedness for borrowed money or issue any debt securities, or (ii) assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any Person;

                    (m) not permit the Companies or Subsidiaries to (i) make any loans, advances or capital contributions to, or investments in, any Person, (ii) pledge or otherwise encumber shares of any Company or Subsidiary capital stock, or (iii) mortgage or pledge any of the Assets, or create or suffer to exist any Lien thereupon;

                    (n) not permit the Companies or Subsidiaries to acquire, sell, lease or dispose of any Assets ;

                    (o) not permit the Companies or Subsidiaries to (i) acquire any Person (or division thereof), any equity interest therein or all or substantially all of the assets thereof whether through a merger, consolidation or purchase, or (ii) enter into a joint venture, partnership or any other equity alliance with any Person;

                    (p) not permit RMO or any Non-Company Affiliate to hire away any essential employee of the Companies or Subsidiaries without Purchaser’s prior written consent; and

                    (q) not agree to do anything, or agree to permit the Companies or Subsidiaries to do anything, that would violate any of the foregoing affirmative and negative covenants of this Section 3.2 .

          3.3. Consents and Approvals

               3.3.1. Subject to the allocation of responsibility set forth in Section 3.3.2 , RMO agrees to, and agrees to cause the Companies or Subsidiaries, as the case may be, to apply for and use commercially reasonable efforts to obtain no later than at the Closing (a) the Regulatory Approval, (b) the waiver, consent and approval of all Persons whose waiver, consent or approval is required by Law for Seller’s execution and delivery of this Agreement and Seller’s and each Company’s or Subsidiary’s consummation of the transactions contemplated herein, and (c) the waiver, consent and approval of all Persons whose waiver, consent or approval is required by any Material Contract, Real Property Lease, consent, judgment, decree, order or Permit to which Seller, the Companies, or Subsidiaries is a party or subject immediately prior to the Closing, and which would prohibit or require the waiver, consent or approval of any Person to, such transactions or under which, without such waiver, consent or approval, such transactions would constitute an occurrence of Default under the provisions thereof, provided , however , that neither RMO nor the Companies or Subsidiaries shall make any agreements or understandings adversely affecting the Assets or the Companies or Subsidiaries, or their business, as a condition to obtaining any waivers, consents or approvals required by this Section 3.3.1 , except as otherwise provided herein or with the prior written consent of Purchaser, and further provided that if RMO fails to obtain any consents that are required under this Section 3.3 prior to Closing (except any required governmental consents, consents of lenders or consents relating to any of the pipelines), such failure shall not be deemed a Default under this Agreement and/or cause this Agreement not to be consummated so long as the failure to obtain the consent does not have a Material Adverse Effect on the consummation of this Agreement, the Company, the Subsidiaries, or the Assets.

               3.3.2. Each of the parties hereto (a) will take all commercially reasonable actions necessary to comply promptly with all Laws that may be imposed on such party with respect to the transactions contemplated herein (including requesting all necessary approvals for and executing all necessary agreements for the novation of any Material Contracts with any Governmental Authority, requesting all necessary material approvals of subcontractors to such contracts, providing notices and disclosures as required for foreign Persons, and furnishing all information required under any Law in connection with approvals of or filings with any Governmental Authority (including without limitation MPSC, PUCO, WPSC, FTC, DOJ, SEC, PPUC or IRS)); provided , however , the foregoing shall not require any of the parties hereto or any of their Affiliates to sell or otherwise divest of a material portion of their respective assets or properties or discontinue any of their respective significant operations; and (b) will promptly cooperate with and furnish information to each other in connection with any such legal

requirements imposed upon any of them in connection with the transactions contemplated herein. Any filings or approvals required to be accomplished by Seller, the Companies, Subsidiaries or any Non-Company Affiliate in accordance with this Section 3.3.1 shall be at Seller’s or such Non-Company Affiliate’s expense.

               3.3.3. MPSC, WPSC, PPUC and PUCO Regulatory Filings .

                    (a) Purchaser and Seller shall have joint responsibility for the preparation and filing of the regulatory filings to be made to the MPSC, WPSC, PPUC and PUCO requesting Regulatory Approval ( “ Regulatory Filings ”). Upon the request of the other party, RMO and Purchaser shall use commercially reasonable efforts to cooperate with such other party to prepare and file such Regulatory Filings [if necessary].

                    (b) Purchaser and RMO shall use commercially reasonable efforts to file as soon as practicable after the date hereof the Regulatory Filings, and execute all agreements and documents, in each case, to obtain as promptly as practicable the Regulatory Approvals. Purchaser and RMO shall act diligently, and shall coordinate in completing and submitting the Regulatory Filings. Purchaser and RMO shall each have the right to review and approve (which such approval shall not be unreasonably withheld, delayed or conditioned) in advance all of the information relating to the transactions contemplated by this Agreement which appears in the Regulatory Filings. Purchaser and RMO agree that all telephonic calls and meetings with the MPSC, WPSC, PPUC or PUCO relating to the transactions contemplated by this Agreement shall be conducted by Purchaser and RMO jointly. Each party will bear its own legal costs incurred in connection with the preparation and filing of the Regulatory Filings.

               3.3.4. Nothing in this Agreement will require Purchaser, Seller, Company or Subsidiaries to accept any condition to, limitation on or other term concerning the grant of Regulatory Approval if such condition, limitation or other term, alone or in the aggregate with such other conditions, limitation or other terms would (i) require the disposition by Purchaser, Seller, Company or Subsidiaries of any material asset(s); (ii) have a Material Adverse Effect on Purchaser, Seller, Company or Subsidiaries in its acquisition, ownership, use, operation or disposition of any property other than the Assets; or (iii) materially change or impair the commercial expectation of the Purchaser. Seller, Company or Subsidiaries with respect to the sale or distribution of gas by the Companies or the Subsidiaries.

          3.4. Access, Information and Confidentiality

               3.4.1. Prior to the Closing, Seller shall cause the Companies or Subsidiaries to (a) give Purchaser and its authorized Representatives reasonable access, during normal business hours and upon reasonable notice, to the books, records, files, documents and contracts of the Companies and Subsidiaries, and (b) allow Purchaser (together with its authorized Representatives) to make a reasonable number of visits to each office, facility and other property owned or leased by the Companies or Subsidiaries.

               3.4.2. (a) Subject to the first sentence of subsection (b) of this Section 3.4.2 , a party hereto receiving Confidential Information from another party hereto shall not disclose

and shall keep strictly confidential all such Confidential Information of such disclosing party; provided, however, that such receiving party may disclose Confidential Information of such disclosing party (i) to any Representative of such receiving party or any of its Affiliates who needs to know such information for purposes of consummating the transactions contemplated herein; (ii) to any partner, Affiliate, lender or investor of such receiving party or any of its Affiliates, or any Representative of such partner, Affiliate, lender or investor who needs to know such information for purposes of consummating the transactions contemplated herein; and (iii) to the extent that such receiving party or Representative is required to disclose such information in order to avoid committing a violation of any applicable law, rule or regulation, including any rules or regulations of any securities association, stock exchange or national securities quotation system.

                    (b) In the event that a receiving party or any Representative of such receiving party or any of its Affiliates is requested or required, pursuant to any applicable court order, administrative order, statute, regulation or other official order by any Governmental Authority, to disclose any Confidential Information of a disclosing party, such receiving party shall (i) provide such disclosing party with prompt written notice of any such request or requirement so that such disclosing party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Section 3.4.2 , and (ii) reasonably cooperate with such disclosing party to obtain such protective order or other remedy. In the event such protective order or other remedy is not obtained and a disclosing party fails to waive compliance with the relevant provisions of this Section 3.4.2 , such receiving party agrees to (A) furnish only that portion of the Confidential Information for which such receiving party is advised by written opinion of its legal counsel obtained at the disclosing party’s expense, is legally required to be disclosed, (B) upon such disclosing party’s request and expense, use its commercially reasonable efforts to obtain assurances that confidential treatment will be accorded to such information, and (C) give such disclosing party prior written notice of the Confidential Information to be disclosed.

                    (c) If this Agreement is terminated prior to the Closing or at any other time for any reason, upon the written request of a disclosing party, each receiving party will, and will cause all Representatives of such receiving party or any of its Affiliates to promptly, (i) deliver to such disclosing party all original Confidential Information (whether written or electronic) furnished to such receiving party or any Representative of such receiving party or any of its Affiliates by or on behalf of such disclosing party, and (ii) if specifically requested by such disclosing party, destroy (A) any copies of such Confidential Information (including any extracts therefrom), and (B) any portion of such Confidential Information that may be found in reports, analyses, notes, compilations, studies and other documents prepared by or for such receiving party. From and after the Closing, Purchaser shall be released from all obligations owed by it to Seller under this Section 3.4.2 with respect to the Confidential Information owned by the Companies or Subsidiaries. This Section 3.4.2 shall survive any termination of this Agreement

          3.5. Delivery of Financial Statements and Regulatory Filings

     During the period commencing on the date of this Agreement and terminating at the Closing, RMO shall deliver to Purchaser, within thirty (30) days of being available or filed,

copies of (a) all regularly prepared unaudited monthly, quarterly and annual consolidated financial statements of the Companies and Subsidiaries prepared after the date of this Agreement, and (b) all material filings or submissions by the Companies or Subsidiaries with any Governmental Authority made after the date of this Agreement.

          3.6. Public Announcements

     No party hereto or any of its Affiliates shall make any public announcement of the execution and delivery of this Agreement or the transactions contemplated by this Agreement without first obtaining the prior written consent of the other party hereto, such consent not to be unreasonably withheld, delayed or conditioned; provided , however , that nothing contained in this Section 3.6 shall prohibit any party hereto or any of its Affiliates from (a) making any disclosures or having any discussions with the MPSC, WPSC, PPUC or PUCO regarding this Agreement or the transaction contemplated by this Agreement in accordance with Section 3.3.2 , or (b) making any public announcement in accordance with any required SEC filing, or (c) having discussions with its lenders, or (d) making any public announcement if such party or its Affiliate determines in good faith, on the advice of legal counsel, that such public disclosure is required by applicable Law or any listing agreement with a national securities exchange or trading market; provided further , that in such event, such party or its Affiliate shall consult with the other party hereto prior to making such disclosure to the extent reasonably practicable.

4. ADDITIONAL AGREEMENTS

          4.1. Tax Matters

               4.1.1. RMO shall (i) cause each Company and Subsidiary to prepare and file on a timely basis all Tax Returns of the Companies and Subsidiaries for all Tax periods which end on or prior to the Closing Date, which are filed before or after the Closing Date; and (ii) pay all Taxes of the Companies and Subsidiaries with respect to such Tax periods, or, at Purchaser’s option, shall reimburse Purchaser within fifteen (15) days after payment by Purchaser of such Taxes. RMO shall cause to be prepared all Income Tax Returns of the Companies and Subsidiaries due after the Closing Date that relate solely to periods ending on or before the Closing Date (such Separate Income Tax Returns being referred to as “ Pre-Closing Income Tax Returns ”). RMO shall submit to Purchaser any Pre-Closing Income Tax Returns at least thirty (30) days prior to the due date of such Tax Return for Purchaser’s review. Purchaser and Seller shall collectively cause the Companies and Subsidiaries to timely and appropriately file all Pre-Closing Income Tax Returns submitted by the Seller in accordance with this Section 4.1.1 .

               4.1.2. Purchaser shall cause the Companies and Subsidiaries to prepare and file on a timely basis all Tax Returns of the Companies and Subsidiaries (other than Pre-Closing Income Tax Returns) due after the Closing Date, including all Tax Returns that relate to periods beginning before and ending after the Closing Date (“ Straddle Returns ”). All Straddle Returns shall be prepared on a basis consistent with procedures and practices of the Companies and Subsidiaries in effect as of the date hereof for filing such Tax Returns. Purchaser shall submit all Straddle Returns related to Income Taxes to Seller at least thirty (30) days prior to the due date of such Straddle Return for Seller’s review and approval (which will not be unreasonably withheld, delayed or conditioned).

               4.1.3. Purchaser and RMO shall to the extent permitted under applicable law (i) elect to have the tax year of the Companies and Subsidiaries that end on the Closing Date to end on (and include) the Closing Date and (ii) treat all transactions occurring on the Closing Date but after the Closing as occurring on the day after the Closing Date. To the extent that the tax year of the Companies and Subsidiaries does not end on the Closing Date such that the Tax Return is a Straddle Return, the Income Taxes payable on the Straddle Return shall be allocated between the portion of the period ending on the Closing Date and the portion of the period beginning after the Closing Date assuming that the taxable period for the Straddle Return actually included two separate periods, one ending on the Closing Date and one beginning on the date after the Closing Date, provided that all exemptions, allowances, or deductions for the entire taxable for the Straddle Return which are calculated on an annual basis (including, but not limited to, depreciation and amortization deductions) shall be allocated between the two short periods in proportion to the number of days in each period.

               4.1.4. Access to Information

                    (a) From and after the Effective Date, RMO shall grant to Purchaser (or its designees) access to the information, books and records relating to the Companies and Subsidiaries (including without limitation work papers and correspondence with taxing authorities, and shall afford Purchaser (or its designees) the right to take extracts therefrom and to make copies thereof for purposes of preparing Tax Returns, to conduct negotiations with taxing authorities, and to implement the provisions of, or to investigate or defend any claims between the parties arising under, this Section 4.1 .

                    (b) From and after the Effective Date, Purchaser shall grant to RMO (or its designees) access to all of the information, books and records relating to the Companies and Subsidiaries within the possession of Purchaser or the Companies and Subsidiaries (including without limitation work papers and correspondence with taxing authorities), and shall afford RMO (or his designees) the right (at RMO’s expense) to take extracts therefrom and to make copies thereof, to the extent reasonably necessary to permit RMO (or his designees) to prepare Tax Returns, to conduct negotiations with taxing authorities, and to implement the provisions of, or to investigate or defend any claims between the parties arising under, this Agreement.

                    (c) Each of the parties hereto will preserve and retain all schedules, work papers and other documents relating to any Tax Returns of or with respect to the Companies or Subsidiaries or to any claims, audits or other proceedings affecting the Companies or Subsidiaries until the expiration of the statute of limitations (including extensions) applicable to the taxable period to which such documents relate or until the final determination of any controversy with respect to such taxable period, and until the final determination of any payments that may be required with respect to such taxable period under this Agreement.

               4.1.5. Purchaser and RMO shall provide (and cause the Companies and Subsidiaries to provide) each other with such assistance as may reasonably be requested by the other in connection with the preparation of any Tax Return, any audit or other examination by any taxing authority, or any judicial or administrative proceedings relating to liabilities for Taxes. Such assistance shall include making employees available on a mutually convenient basis to provide additional information or explanation of material provided hereunder and shall include

providing copies of relevant tax returns and supporting material. Purchaser and RMO will retain (and shall cause the Companies and Subsidiaries to retain) for the full period of any statute of limitations any documents which may be relevant to such preparation, audit, examination, proceeding or determination.

               4.1.6. Purchaser shall pay all federal, state, local, foreign and other transfers, sales, use or similar Tax (a “ Transfer Tax ”) applicable to, imposed upon or arising out of the transfer of the Purchased Shares or any other transaction contemplated by this Agreement.

               4.1.7. Contest Provisions .

                    (a) Each of Purchaser, on the one hand, and Seller, on the other hand (the “ Tax Indemnified Person ”), shall promptly notify the chief tax officer (or other appropriate person) of Seller or Purchaser, as the case may be (the “ Tax Indemnifying Person ”), in writing upon receipt by the Tax Indemnified Person of written notice of any pending or threatened audits, adjustments, claims, examinations, assessments or other proceedings (a “ Tax Audit ”) which are likely to affect the liability for Taxes of such other party, provided, however, that failure to file timely written notice to the other party shall not affect the other party’s indemnification obligations hereunder unless such failure materially adversely affects the other party’s rights to participate in the Tax Audit.

                    (b) If such Tax Audit relates to any taxable period, or portion thereof, ending on or before the Closing Date or for any Taxes for which RMO is liable in full under this Agreement, RMO shall, at his expense, control the defense and settlement of such Tax Audit. If such Tax Audit relates to any taxable period, or portion thereof, beginning on or after the Closing Date or for any Taxes for which Purchaser is liable in full under this Agreement, Purchaser shall, at its expense, control the defense and settlement of such Tax Audit.

                    (c) If such Tax Audit relates to Taxes for which both RMO and Purchaser are liable under this Agreement, to the extent practicable, such Tax items will be distinguished and each party will control the defense and settlement of Taxes for which it is so liable. If such Tax Audit relates to a taxable period, or portion thereof, beginning before and ending after the Closing Date and any Tax item cannot be identified as being a liability of only one party or cannot be separated from a Tax item for which the other party is liable, Purchaser may either elect, at its expense, to control the defense and settlement of the Tax Audit or require RMO, at his expense, to control the defense and settlement of the Tax Audit, provided that such party defends the items as reported on the relevant Tax Return and provided further that no such matter shall be settled without the written consent of both parties, not to be unreasonably withheld.

                    (d) Any party whose liability for Taxes may be affected by a Tax Audit shall be entitled to participate at its expense in such defense and to employ counsel of its choice at its expense and shall have the right to consent to any settlement of such Tax Audit (not to be unreasonably withheld) to the extent such settlement would have an adverse effect for a period for which that party is not liable for Taxes, under this Agreement or otherwise.

               4.1.8. All Tax sharing or similar agreements that include RMO and the Companies or Subsidiaries shall be cancelled prior to the Closing Date such that the Companies or Subsidiaries, as the case may be, shall have no further rights or obligations under such agreements.

               4.1.9. FIRPTA Certificate . Prior to Closing, Seller shall deliver a FIRPTA Certificate to Purchaser.

          4.2. Employee and Benefit Matters

               4.2.1. Schedule 4.2.1 contains a list of employees who are actively employed by the Companies or Subsidiaries (including individuals on vacation, short-term disability or similar leave but excluding those persons on long-term disability leave) on the date hereof who the parties agree and acknowledge will be treated as employees of the Companies and Subsidiaries for purposes of this Agreement, which such Schedule 4.2.1 shall be amended as of the Closing Date to include such employees employed in positions at the Companies and Subsidiaries as of the Closing Date (“ Seller’s Employees ”). Section 4.2.1 shall also include the amount of accrued sick leave, flex time and vacation time for each of Seller’s Employees. From and after the Closing Date, Purchaser shall have the right to terminate any or all of Seller’s Employees at will or to continue the employment of any or all of Seller’s Employees with the Companies and Subsidiaries upon terms and conditions acceptable to Purchaser in Purchaser’s sole and absolute discretion. Purchaser shall provide Seller with written notification at least three (3) days prior to the Closing Date of any employee who will be terminated as of the Closing Date. Each of Seller’s Employees who continues employment with the Companies or Subsidiaries as of the Closing Date shall hereinafter be referred to as a “ Transferred Employee .” Seller shall retain and satisfy any and all responsibility, and Purchaser shall have no liability or responsibility whatsoever, for any and all claims, liabilities and obligations, whether contingent or otherwise, relating to (i) any current, former or retired employee of the Companies or Subsidiaries who is not a Transferred Employee, including, without limitation, any unpaid salary, wages, bonuses or other compensation or severance pay or benefits, (ii) any Transferred Employee arising out of or relating to any period, or otherwise incurred, prior to the Closing Date, including, without limitation, any unpaid salary, wages, bonuses or other compensation or severance pay, benefits or group health care coverage required by Section 4980B of the Code or Section 601 of ERISA, and (iii) the Seller’s Benefit Plans (such claims, liabilities and obligations, collectively the “ Retained Employee Liabilities ”). Purchaser shall have no obligation to continue the employment of any Transferred Employee for any period following the Closing Date, and may terminate the employment of any Transferred Employee at will. Purchaser shall not receive assets from, nor be required to assume any of the liabilities of, the Seller Plans.

               4.2.2. On the Closing Date, Purchaser shall assume all liabilities relating to each Transferred Employee’s unused flexible holiday, vacation and sick time, if any. Schedule 4.2.2 provides the vacation and sick leave policies of NEO and Orwell together with accrued vacation and sick leave as of the date hereof, and Schedule 4.2.2 shall be updated within three (3) business days of Closing.

          4.3. Guaranties or Bonds

               4.3.1. After the date hereof and prior to the Closing, RMO shall not, and shall cause the Company or Subsidiaries not to, without the prior written consent of Purchaser, (a) enter into, issue or obtain any Guaranty or Bond (each individually, a “ New Guaranty or Bond ”), or (b) amend or otherwise modify any Guaranty or Bond; provided , however , that Purchaser shall not unreasonably withhold, delay or condition its consent to any New Guaranty or Bond which is entered into in the Ordinary Course of Business, and Purchaser shall not unreasonably withhold, delay or condition its consent to any amendment or other modification of any Guaranty or Bond in the Ordinary Course of Business if such amendment or other modification would not result in a breach of any provision of this Agreement; and

               4.3.2. RMO shall promptly provide Purchaser with a true and correct copy of any New Guaranty or Bond or amendment or other modification to a Guaranty or Bond.

          4.4. Agreement Not to Solicit Employees

     Unless otherwise consented to in writing by Purchaser, Seller agrees that during the Restricted Period, neither RMO nor any Non-Company Affiliate will solicit or hire away any Transferred Employee.

          4.5. Insurance Claims

     RMO shall be solely responsible for the administration and, to the extent applicable, payment of any Property and Casualty Claims with a date of occurrence prior to the Closing, and hereby releases Purchaser, the Companies, Subsidiaries, and their Affiliates of any responsibility or liability therefor. Purchaser shall be solely responsible for the administration and, to the extent applicable, payment of any Property and Casualty Claims with a date of occurrence on or after the Closing, and hereby releases Seller of any responsibility or liabilities therefor. For purposes hereof, “Property and Casualty Claims” shall mean workers’ compensation, auto liability, general liability, products liability, professional liability, fiduciary liability, pollution liability and director and officer liability claims relating to the business of the Companies and Subsidiaries and claims for damages caused to facilities of the Companies or Subsidiaries generally insured under causes-of-loss — special form property and boiler and machinery insurance coverage, in each case including